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/raid1/www/Hosts/bankrupt/CAR_Public/061222.mbx C L A S S A C T I O N R E P O R T E R Friday, December 22, 2006, Vol. 8, No. 254 Headlines ALLEGHENY ENERGY: Enters $4M Settlement in ERISA Breach Lawsuit AMERICAN FUNDS: Faces Suit in Calif. Over Mutual Fund Kickbacks ART TECHNOLOGY: Plaintiffs Appeal Mass. Securities Suit's Nixing BLOCKBUSTER INC: Faces Consolidated Securities Suit in Tex. BLOCKBUSTER INC: Still Faces Lawsuits Over Late Fees Program BLOCKBUSTER INC: Still Faces Stockholder Litigation in Del. CALIFORNIA: Judges to Hear Suit Over Inmate Population Friday CALIFORNIA: Special Education Teens Demand Transition Program CHECK POINT: Settles Securities Fraud Lawsuit in N.Y. for $13M CHOICEPOINT INC: Fla. Court Considers Motion in DPPA Litigation CHOICEPOINT INC: Ga. Court Dismisses DPPA, DTPA Breach Claims DARDEN RESTAURANT: Olive Garden Sued for Norovirus Contamination ELECTRONIC ARTS: Facing Overtime Pay Lawsuit, Report Says GOL AIRLINES: Pre-Trial Proceedings Dates Set in Disaster Suit IMAX CORP: Faces Several Securities Fraud Lawsuits in N.Y. INSIGHT COMMS: Settlement Hearing in Del. Stock Suit Postponed LIFETIME BRANDS: Recalls Lemonade Jars For Lead Exposure Hazard MAINE: Knox County Strip Search Suit Settlement Gets Initial OK MCAFEE INC: Ex-Employees File Suit in Calif. Over Stock Options MIVA INC: Mulls Setting Mediation Session for Click Fraud Suit MIVA INC: N.Y. Court Mulls Dismissal Motions in Click Fraud Suit NEXCEN BRANDS: N.Y. Court Mulls Okay for IPO Suit Settlement NORTEL NETWORKS: Tenn. Court Dismisses Part of ERISA Breach Suit NUMISMATIC GUARANTY: Sued in Florida Over "First Strike" Coins PAINT MANUFACTURERS: Calif. Cities Joins Negligence Lawsuit PREMCOR INC: Hartford Residents Opt Out of Refinery Vapors Suit PXRE GROUP: N.Y. Court Mulls Consolidation of Securities Suits RI NOVELTY: Recalls Kids' Necklaces Due to Lead Poisoning Hazard SINA CORP: N.Y. Court Dismissal Order in Stock Suit Appealed VIACOM INC: Faces ERISA Violations Litigation in N.D. Tex. VIACOM INC: N.Y. ERISA Violations Suit Transferred to Tex. Court ZURICH FINANCIAL: $121.8M Antitrust Suit Deal Gets Initial Okay Asbestos Alert ASBESTOS LITIGATION: Board Ruling in O'Dell Case Upheld in N.Y. ASBESTOS LITIGATION: Johnson Controls Lists $39M for York Claims ASBESTOS LITIGATION: Claims v. Zurn Ind. Drop to 46,200 in 3Q06 ASBESTOS LITIGATION: BJ Services Faces 4 Suits in Miss. Courts ASBESTOS LITIGATION: Trial v. Chase Postponed, No New Date Set ASBESTOS LITIGATION: DuPont Sees $60M Insurance Recovery in 4Q ASBESTOS LITIGATION: Met-Pro Corp. Has 40 Pending Cases at 3Q06 ASBESTOS LITIGATION: Pending Cases v. Tyco Int'l. Rise to 15,500 ASBESTOS LITIGATION: Lucent Technologies Faces Exposure Lawsuits ASBESTOS LITIGATION: Genesis HealthCare Records $5.3M Liability ASBESTOS LITIGATION: Cabot Faces 63T Claims in Respirator Suits ASBESTOS LITIGATION: Scotts Miracle-Gro Still Faces Injury Suits ASBESTOS LITIGATION: Grace's Product Poses No Risks, Court Says ASBESTOS LITIGATION: Hardie's NSW Plant to Reopen, Expert Says ASBESTOS LITIGATION: Miss. Court Grants Grace's Motion to Compel ASBESTOS LITIGATION: Injury Cases v. Corning Inc. Drop to 10,900 ASBESTOS LITIGATION: Corning Reports $13M Expense for Settlement ASBESTOS LITIGATION: Owens Corning Reserves $7B for Claims in 3Q ASBESTOS LITIGATION: Mahoney Sues 143 Companies in Ill. Court ASBESTOS LITIGATION: Green Files FELA Suit v. CSX Transportation ASBESTOS LITIGATION: Ace Ltd.'s Loss Reserves Increase by $200M ASBESTOS LITIGATION: Hyogo Pipeworker's Family to Get Benefits ASBESTOS LITIGATION: Discovery of Hazard Closes Ore. DEQ Office ASBESTOS LITIGATION: Hanson PLC Expects 6,000 New Claims in 2006 ASBESTOS LITIGATION: Nova Scotia Firm Says Not to Touch Asbestos ASBESTOS LITIGATION: New Yorker Indicted in Illegal Removal Act ASBESTOS LITIGATION: NICE Committee to Review Ban on Alimta Drug ASBESTOS LITIGATION: PPG Ind. Mulls Court Ruling Effect on Plan ASBESTOS LITIGATION: Widow of Palmers Ltd. Worker Wins Payout ASBESTOS LITIGATION: Grace Moves to Ban N.Y. Time-Barred Claims ASBESTOS ALERT: Court Junks Buffalo Dismissal in Lindquist Suit New Securities Cases ATRICURE INC: Brower Piven Announces N.Y. Securities Suit Filing HANSEN NATURAL: Scott + Scott Files Calif. Securities Fraud Suit TOP TANKERS: Faruqi & Faruqi Announces Securities Suit Filing ********* ALLEGHENY ENERGY: Enters $4M Settlement in ERISA Breach Lawsuit --------------------------------------------------------------- Allegheny Energy, Inc. reached an agreement to settle the consolidated Employee Retirement Income Security Act (ERISA) class action litigation currently pending against Allegheny Energy and certain of its current and former directors. The proposed settlement remains subject to court approval, following notice to class members. In February and March 2003, two putative class action lawsuits were filed against Allegheny Energy in U.S. District Courts in New York and Maryland alleging that the company violated ERISA by breaching fiduciary duties with respect to the Allegheny Energy Stock Ownership and Savings Plan. The cases were subsequently consolidated in the U.S. District Court for the District of Maryland. Under the proposed settlement in the consolidated ERISA class action, the action will be dismissed with prejudice in exchange for a cash payment of $4 million, of which approximately $3.9 million will be made by Allegheny Energy's insurance carrier. The suit is "Keesecker v. Allegheny Energy, Inc. et al., Case No. 1:03-cv-00843-AMD," filed in the U.S. District Court for the District of Maryland under Judge Andre M. Davis. Representing the plaintiffs is Thomas J. Hart of Slevin and Hart PC, 1625 Massachusetts Ave., NW Ste. 450, Washington, DC 20036, Phone: 12027978700, Fax: 12022348231, E-mail: tjh@slevinhart.com. Representing the company are: (i) Christa D. Haas, Groom Law Group Chtd., 1701 Pennsylvania Ave., NW, Washington, DC 20006, Phone: 12028570620, Fax: 12024594503, E-mail: cdh@groom.com; (ii) Gabrielle S. Moses of Venable Baetjer and Howard LLP, Two Hopkins Plz., Ste. 1800, Baltimore, MD 21201, Phone: 14102447400, Fax: 14102447742, E-mail: gsmoses@venable.com; and (iii) Bradley P. Smith and William J. Snipes of Sullivan and Cromwell, LLP, 125 Broad St., New York, NY 10004-2498, Phone: 12125581660, Fax: 12125583588, E-mail: smithbr@sullcrom.com or snipesw@sullcrom.com. AMERICAN FUNDS: Faces Suit in Calif. Over Mutual Fund Kickbacks --------------------------------------------------------------- Gutride Safier, LLP, filed a purported class action in the U.S. District Court for the Central District of California on behalf of purchasers of American Funds Mutual Funds between Jan. 1, 2000 and March 23, 2005. The complaint alleges that Capital Group Companies, Inc., Capital Research and Management Co., and American Funds Distributors, Inc. violated federal securities laws by paying kickbacks to broker/dealers who sold American Funds Mutual Funds. The complaint asserts that Defendants made false and misleading statements in mutual fund prospectuses and other documents by concealing the existence of the kickback arrangement. According to the suit, defendants illegally used investor assets to pay the kickbacks. The complaint asserts violations of the Securities Act of 1933, U.S. Securities Exchange Act of 1934, and other laws. The suit is "Chin v. Capital Group Companies, Inc, Case No. 2:06-cv-07815," filed in the U.S. District Court for the Central District of California under Judge Florence-Marie Cooper with referral to Judge Carla Woehrle. Representing the defendants are Adam J. Gutride, Seth A. Safier, and Michael R. Reese of Gutride Safier, LLP, 835 Douglass Street San Francisco, CA 94114, US, Phone: 415-271-6469, Web site: http://www.gutridesafier.com. ART TECHNOLOGY: Plaintiffs Appeal Mass. Securities Suit's Nixing ---------------------------------------------------------------- Plaintiffs are appealing a decision by the U.S. District Court for the District of Massachusetts to dismiss the consolidated securities class action filed against Art Technology Group, Inc., and certain of its former officers. The company and certain of the company's former officers were named as defendants in seven purported class action that have been consolidated into one action under the caption, "In re Art Technology Group, Inc. Securities Litigation, Master File No. 01-CV-11731-NG." The case alleged that the company, and certain of the company's former officers, have violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule SEC 10b-5 promulgated thereunder, which generally may subject issuers of securities and persons controlling those issuers to civil liabilities for fraudulent actions in connection with the purchase or sale of securities. The case was originally filed in 2001, and a consolidated amended complaint was filed in March 2002. In April 2002, the company filed a motion to dismiss the case. On Sept. 4, 2003, the court issued a ruling dismissing all but one of the plaintiffs' allegations. The remaining allegation was based on the veracity of a public statement made by one of the company's former officers. In August 2004, the company filed a renewed motion to dismiss and motion for summary judgment as to the remaining allegation, which the court granted in September 2005. Plaintiffs moved for leave to file a second consolidated amended complaint. On Oct. 2, 2006, the court ruled in the company's favor and entered a final order of dismissal of plaintiffs' case. On Oct. 27, 2006, the plaintiffs filed a notice of appeal, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is "In Re: Art Technology Securities Litigation, Case No. 1:01-cv-11731-NG," filed in the U.S. District Court for the District of Massachusetts under Judge Nancy Gertner. Representing the plaintiffs are: (1) Theodore M. Hess-Mahan and Thomas G. Shapiro, Shapiro Haber & Urmy LLP, 53 State Street, Boston, MA 02108, Phone: 617-439-3939, Fax: 617-439-0134, E-mail: ted@shulaw.com (2) David C. Katz, Weiss & Lurie, 551 Fifth Avenue, Suite 1600, New York, NY 10176, Phone: 212-682-3025, Fax: 212-682-3010, E-mail: dkatz@wllawny.com (3) Douglas M. Risen, Sherrie R. Savett, Berger & Montague, P.C., 1622 Locust Street, Philadelphia, PA 19103, Phone: 215-875-3000, (4) Patrick K. Slyne, Stull, Stull & Brody, 6 East 45th Street, New York, NY 10017, Phone: 212-687-7230, Fax: 212-490-2022 Representing the company are: (i) Dyan Finguerra-DeCharme, Mary Jo Johnson, William H. Pane, Jeffrey B. Rudman and Matthew A. Stowe of Wilmer Cutler Pickering Hale and Dorr LLP, 399 Park Avenue, New York, NY 10022, Phone: 212-230-8800, Fax: 212-230- 8888; and (ii) Nancy Margaret Gorton, Wilmer Cutler Pickering Hale and Dorr, LLP, 60 State Street, Boston, MA 02109, Phone: 617-742-9100, E-mail: maryjo.johnson@wilmerhale.com, william.paine@wilmerhale.com, jeffrey.rudman@wilmerhale.com and matthew.stowe@wilmerhale.com. BLOCKBUSTER INC: Faces Consolidated Securities Suit in Tex. ----------------------------------------------------------- Blockbuster, Inc. is a defendant in a consolidated class action in the in the U.S. District Court for the Northern District of Texas, alleging violations of federal securities laws, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. On Nov. 10, 2005, Congregation Ezra Sholom filed a putative collective class action complaint under the Securities Act and the U.S. Securities Exchange Act of 1934 (Exchange Act). On Jan. 4, 2006, Victor Allgeier filed a putative collective class action complaint under the Exchange Act in the same court. On April 28, 2006, the "Sholom" and "Allgeier" lawsuits were consolidated, and later amended. The consolidated lawsuit purports to be filed on behalf of those persons who purchased Blockbuster stock between Sept. 8, 2004 and Aug. 9, 2005. In the consolidated lawsuit, plaintiffs assert claims against: -- the company, -- National Amusements Inc., -- Viacom, Inc., -- John F. Antioco, -- Richard J. Bressler, -- Jackie M. Clegg, -- Philippe P. Dauman, -- Michael D. Fricklas, -- Linda Griego, -- John L. Muething, -- Sumner M. Redstone, and -- Larry J. Zine. Plaintiffs claim the above-referenced defendants committed securities fraud in violation of the Exchange Act by failing to disclose at the time of the Blockbuster split-off from Viacom that Blockbuster lacked the financial and other resources required to implement initiatives announced at that time. They also claim violations of the Exchange Act for allegedly false and misleading statements and omissions of material fact by the defendants regarding Blockbuster's financial results. Thus, plaintiffs are seeking compensatory damages, court costs, attorney's fees and expert witness fees. The suit is "Congregation Ezra Sholom v. Blockbuster, Inc. et al., Case No. 3:05-cv-02213," filed in the U.S. District Court for the U.S. District Court for the Northern District of Texas under Judge David C. Godbey. Representing the plaintiffs are: (1) Clinton D. Howie of Howie Law Firm, 201 Laurence Dr., PMB 314, Heath, TX 75032, Phone: 972/722-9290, E-mail: chowie@howielawfirm.com; and (2) Randall K. Pulliam of Baron & Budd, 3102 Oak Lawn Ave., Suite 1100, Dallas, TX 75219, Phone: 214/521-3605, E- mail: rpulliam@baronbudd.com. Representing the defendants are: (i) Brian Howard Polovoy of Shearman & Sterling - New York, 599 Lexington Ave., New York, NY 10022, Phone: 212/848- 4000, Fax: 646/848-4703, E-mail: bpolovoy@shearman.com; and (ii) Robert C. Walters of Vinson & Elkins - Dallas, 2001 Ross Avenue, Suite 3700, Dallas, TX 75201, Phone: 214/220-7704, Fax: 214/999-7704, E-mail: rwalters@velaw.com. BLOCKBUSTER INC: Still Faces Lawsuits Over Late Fees Program ------------------------------------------------------------ Blockbuster, Inc. remains a defendant in several putative class actions arising out of its "end of late fees" program, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suits were filed in various courts by: -- Anna Kane, -- Thomas Tallarino, -- Gary Lustberg, -- Michael L. Galeno, -- Ronit Yeroushalmi, -- Beth Creighton, -- Gustavo Sanchez, -- Caleb Lucas-Hansen Marker, and -- Kenneth W. Edwards. Kane Litigation The "Kane" suit was filed in 2005 in the Superior Court of New Jersey, Ocean County. It is alleging fraud, breach of contract, negligent misrepresentation, an unfair trade practice and a violation of the New Jersey consumer fraud laws regarding deceptive advertising. The suit sought compensatory and injunctive relief. On Sept. 27, 2005, the New Jersey Superior Court stayed the trial court action and ordered plaintiff's individual claim to arbitration. Rather than proceed to arbitration, in January 2006, plaintiff dismissed her individual claim without prejudice. Tallarino Litigation The "Tallarino" suit was filed on Feb. 22, 2005 in Superior Court of California, Los Angeles County. It is alleging that the company's "no late fees" program constitutes conversion and violates California consumer protection statutes prohibiting untrue and misleading advertising. The suit seeks equitable and injunctive relief. The company removed the case to the U.S. District Court for the Central District of California. Lustberg & Galeno Litigation The "Lustberg" suit was filed on Feb. 22, 2005. It was brought as a putative class action against the company in the Supreme Court of Nassau County, New York. The company removed the case to the U.S. District Court for Eastern District of New York. The "Galeno" suit was filed on Feb. 25, 2005. It was brought as a putative class action in the Supreme Court of New York County, New York. The company removed the case to the U.S. District Court for Southern District of New York. Both "Lustberg" and "Galeno" suits allege breach of contract, unjust enrichment and that Blockbuster's "no late fees" program violates New York's consumer protection statutes prohibiting deceptive and misleading business practices. The suits seek compensatory and punitive damages and injunctive relief. Yeroushalmi Litigation The "Yeroushalmi" suit was filed on March 4, 2005. It was brought as a putative class action in the Superior Court of California, Los Angeles County. It is alleging that the company's "no late fees" program constitutes fraud and violates California consumer protection statutes prohibiting untrue and misleading advertising. The suit also alleged unjust enrichment and sought compensatory and punitive damages, injunctive relief and other equitable remedies. The company removed the case to the U.S. District Court for the Central District of California. In November 2005, Mr. Yeroushalmi dismissed his individual claim with prejudice in exchange for a nominal monetary amount with no admission of liability by the company. Creighton Litigation The "Creighton" suit was filed on March 4, 2005. It was brought as a putative class action in the Circuit Court of Multnomah County, Oregon. It claims that the company's "no late fees" program violates Oregon's consumer protection statutes prohibiting deceptive and misleading business practices. The suit alleges fraud and unjust enrichment and seeks equitable and injunctive relief. The company removed the case to the U.S. District Court for the District of Oregon. Sanchez Litigation The "Sanchez" suit was filed on March 22, 2005. It was brought as a putative class action in the Superior Court of California, Los Angeles County. It alleges a violation of California's business and professions code as an unfair business practice and misleading advertising claim, and a violation of the California rental-purchase act. The suit seeks compensatory, statutory and injunctive relief. Blockbuster removed the case to the U.S. District Court for the Central District of California. Marker Litigation The "Marker" suit was filed on April 11, 2005. It was brought in the District Court of Ingham County, Michigan asserting a violation of Michigan consumer protection act and the advertising and pricing act. The suit sought actual or, alternatively, statutory damages. Blockbuster moved to compel arbitration, the court compelled arbitration, and on July 25, 2005 the case was dismissed with prejudice. Edwards Litigation The "Edwards" suit was filed on April 13, 2005. It was brought as a putative class action in the District Court of Pittsburg County, Oklahoma, alleging fraud and a violation of Oklahoma's consumer protection statute. The suit sought actual damages and civil penalties. The company removed the case to the U.S. District Court, Eastern District of Oklahoma. On Nov. 17, 2005, the court ordered plaintiff's individual claim to arbitration. Blockbuster, Inc. on the Net: http://www.blockbuster.com/. BLOCKBUSTER INC: Still Faces Stockholder Litigation in Del. ----------------------------------------------------------- Blockbuster, Inc. remains a defendant in a purported stockholder class action filed in the Newcastle County Chancery Court, Delaware. On Feb. 10, 2004, Howard Vogel filed the lawsuit against John Muething, Linda Griego, John Antioco, Jackie Clegg, the company, Viacom, Inc. and the company' directors who were also directors and/or officers of Viacom as defendants. The plaintiff alleges that a stock swap mechanism anticipated to be announced by Viacom would be a breach of fiduciary duty to minority stockholders and that the defendants engaged in unfair dealing and coercive conduct. The stockholder class action complaint asks the court to certify a class and to enjoin the then-anticipated transaction. Plaintiff has confirmed that Blockbuster and the other defendants are not required to respond to the pending complaint, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. Blockbuster, Inc. on the Net: http://www.blockbuster.com/. CALIFORNIA: Judges to Hear Suit Over Inmate Population Friday ------------------------------------------------------------- A panel of three federal judges is to rule Friday on a class action that seek to cap the inmate population in California's prison population, it emerged in a report of the Capitol Weekly. Motions were filed in November U.S. District Courts for both the Eastern (Sacramento) and Northern (San Francisco) Districts of California that seek to cap the inmate population in state prisons (Class Action Reporter, Nov. 14, 2006). According to two 2004 reports, there are about 173,000 prisoners in state facilities, over 30,000 more than the prisons are designed to handle. The motion in Sacramento was filed as part of an already settled class action to improve mental health care for prisoners. While the San Francisco court motion is part of a class action over all health care services in the prison system. In October, Gov. Schwarzenegger issued an emergency order to the Department of Corrections and Rehabilitation to enter contracts with out-of-state prison operators to begin transferring up to 5,000 prisoners. For more details, contact Michael Bien of Rosen, Bien & Galvan, LLP, 315 Montgomery Street, Tenth Floor, San Francisco, CA 94104, Phone: (415) 433-6830, Fax: (415) 433-7104, E-mail: rbg@rbg-law.com, Web site: http://www.rbalaw.com/. CALIFORNIA: Special Education Teens Demand Transition Program ------------------------------------------------------------- A group of disabled teens in California filed a class action against the Montebello Unified School District and California Department of Education alleging they have been deprived transition services by the state, The Metropolitan News- Enterprise reports. The suit, filed in U.S. District Court for the Central District of California, seeks a statewide injunction ordering the Department of Education and MUSD to comply with the relevant statutory requirements. California's Education Code and the federal Individuals with Disabilities Education Act require school districts to provide special education students "Individualized Educational Program" by the time they reach 16. The program includes trainings designed to help them in their transition into adult life. Aside from allegations of non-compliance, the suit also raised causes of discrimination. Plaintiffs also include the California Association for Parent- Child Advocacy, a group of parents and advocates of students with disabilities. The suit is "B.L. v. California Department of Education, CV 06- 07630" filed in U.S. District Court for the Central District of California under Judge Florence-Marie Cooper with referral to Victor B. Kenton. Representing plaintiff California Association for Parent Child Advocacy are: (1) Maronel Barajas at Disability Rights Legal Center, 919 Albany Street, Los Angeles, CA 90015, U.S., Phone: 213- 736-1031; and (2) Janeen Steel at Learning Rights Law Center, 634 South Spring Street, Suite 917, Los Angeles, CA 90014, Phone: 213-489-4035. CHECK POINT: Settles Securities Fraud Lawsuit in N.Y. for $13M -------------------------------------------------------------- Check Point Software Technologies Ltd. reached an agreement-in- principle to settle the class action pending against it in the U.S. District Court for the Southern District of New York. The litigation was brought on behalf of shareholders who purchased Check Point common stock between July 10, 2001 and April 4, 2002. The class action plaintiffs have also dismissed, without prejudice, the officers and directors who were named as defendants in the lawsuit. The settlement of $13 million will be paid by Check Point's insurance carrier and will have no financial impact on the company. The settlement is subject to court approval. Check Point denies committing any violation of law or wrongdoing and entered into the settlement solely to avoid the burden and distraction of protracted discovery and litigation. The suit is "In Re: Check Point Software Securities Litigation, Case 1:03-cv-06594-RMB-DFE," filed in the U.S. District Court for the Southern District of New York under Judge Richard M. Berman with referral to Judge Douglas F. Eaton. CHOICEPOINT INC: Fla. Court Considers Motion in DPPA Litigation --------------------------------------------------------------- The U.S. District Court for the Southern District of Florida on has yet to rule on defendants' motion in the purported class action, "Fresco, et al. v. Automotive Directions Inc., et al.," which alleges violation of Driver's Privacy Protection Act and names ChoicePoint, Inc. as one of the defendants. A class action against ChoicePoint was filed on Aug. 11, 2003, alleging that the company obtained, disclosed and used information obtained from the Florida Department of Highway Safety and Motor Vehicles (Florida DHSMV) in violation of DPPA. The plaintiffs seek to represent classes of individuals whose personal information from Florida DHSMV records has been obtained, disclosed and used for marketing purposes or other allegedly impermissible uses by the company without the express written consent of the individual. A number of the company's competitors have also been sued in the same or similar litigation in Florida. This complaint seeks certification as a class action, compensatory damages, attorneys' fees and costs, and injunctive and other relief. The company has joined with the other defendants in a motion for judgment on the pleadings as to the plaintiffs' "obtaining" claim. The court has not ruled on the pending motion, according to the company's Nov. 8 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30. The suit is "Richard Fresco, et al. v. Automotive Directions, Inc., et al., Case No. CIV-03-61063-Martinez/Klein," filed in the U.S. District Court for the Southern District of Florida. CHOICEPOINT INC: Ga. Court Dismisses DPPA, DTPA Breach Claims ------------------------------------------------------------- The U.S. District Court for the Northern District of Georgia, Atlanta Division dismissed certain claims of federal Driver's Privacy Protection Act (DPPA) violation, and Georgia Uniform Deceptive Trade Practices Act (DTPA) violation by ChoicePoint Inc. On June 15, 2005, a purported class action similar to "Harrington, et al. v ChoicePoint, CV05-1294 " filed in the U.S. District Court for the Central District of California was filed against ChoicePoint Inc. in the U.S. District Court for the Northern District of Georgia. The suit is "Wilson v. ChoicePoint Inc., Case No. 1-05-CV-1604." Plaintiffs in the Harrington case allege violations of the federal Fair Credit Reporting Act and certain California statutes. In the Wilson suit, the plaintiffs allege violations of the FCRA, the DPPA, and DTPA. The three named plaintiffs purport to represent a national class of persons whose consumer credit reports as defined in the FCRA or personal or highly restricted personal information as defined in the DPPA was disclosed to third parties as a result of acts or omissions by ChoicePoint. Plaintiffs seek actual, statutory, and punitive damages, injunctive relief and fees and costs. On Feb. 28, 2006, the Court granted ChoicePoint's motion to transfer the Wilson case to the U.S. District Court, Central District of California. On July 10, 2006, the court consolidated the Wilson case with the Harrington case. The cases remain separate but are being handled as one case under the same judge. The company filed a motion for partial summary judgment on Aug. 10, 2006. The court granted that motion on Oct. 12, 2006. The court dismissed with prejudice all claims of one plaintiff, the DPPA and DTPA claims of another plaintiff, and the DTPA claim of the third plaintiff. The FCRA claims of two plaintiffs remain pending. One of the plaintiffs also has a DPPA claim that remains pending. The suit is "Wilson et al. v. ChoicePoint, Inc., Case No. 1:05- cv-01604-JOF," filed in the U.S. District Court for the Northern District of Georgia, Atlanta Division under Judge J. Owen Forrester. Representing plaintiff William Wilson is Natalie Finkelman at Bennett Shepherd Finkelman Miller & Shah, 35 East State Street, Media, PA 19063, Phone: 610-891-9880, E-mail: nfinkelman@classactioncounsel.com. Representing defendant ChoicePoint is Jill Anne Pryor at Bondurant Mixson & Elmore, 1201 West Peachtree Street, N.W., 3900 One Atlantic Center, Atlanta, GA 30309-3417, Phone: 404- 881-4100, E-mail: pryor@bmelaw.com. DARDEN RESTAURANT: Olive Garden Sued for Norovirus Contamination ---------------------------------------------------------------- Olive Garden Restaurant, a Darden Restaurants, Inc. flagship chain, has been named a defendant in a lawsuit filed in the Marion County Circuit/Superior Court in Indiana which claimed more than 370 people who ate at an Olive Garden restaurant became sick with norovirus, contracted from three contaminated employees, The Courthouse News Service reports. Plaintiffs Diana K. Redman and Courtney A. Redman bring this action on their own behalf, and as a class action on behalf of all persons who dined at Olive Garden from Dec. 9, 2006 through Dec. 15, 2006, who then suffered bouts of nausea and/or diarrhea and/or fever and/or vomiting after dining there. The Redmans, identified as residents of Hamilton County, claimed they became ill with symptoms that included nausea, vomiting and diarrhea after eating at the Olive Garden, 6130 E. 82nd St., on Dec. 13. Court documents say the Marion County Health Department found norovirus in three of the restaurant's workers. The disease can be passed by fecal-oral transmission and by contaminated work surfaces. The complaint contends the virus was transmitted to the Redmans and other diners through food contaminated by direct contact with the infected workers or through contact with surfaces they had touched. The two women are among more than 370 patrons who exhibited similar symptoms after eating at the restaurant during a period from Dec. 9 to Dec. 15. The complaint also alleges negligence and breach of warranty on the part of the restaurant's operators. There are predominant questions of law and fact which are common to members of the, but are not limited to, the following: -- the mechanism of the food contamination and/or contamination of working or eating surfaces; -- whether the defendant and its agents were negligent in food preparation and/or restaurant cleanliness leading to food contamination and/or contamination of working surfaces; -- whether the defendant was negligent in its quality control procedures so as to follow contaminated food to be served to patrons and/or to allow contamination of working or eating surfaces; -- whether the defendant and its agents maintained a proper hand-washing policy by food handlers; -- whether the defendant properly monitored employees with symptoms of Norovirus infection; -- whether the food sold and/or served to patrons who became ill was defective and unreasonably dangerous; -- whether the defendant is liable to the plaintiffs and the class in strict liability; and -- whether the defendant is liable to the plaintiffs and the class for a breach of implied warranties. Plaintiffs, on behalf of themselves and all others similarly situated, pray for judgment against defendant in an amount reasonable to compensate them and the plaintiff class for their damages and for all relief and proper in the premises. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?1772 The suit is "Redman, et al. v GMRI, Inc., d/b/a Olive Garden, Case No. 49C010612PL0051132," filed in the Marion County Circuit/Superior Court. Representing plaintiffs are Patrick A. Edward and Kelly R. Eskew both of Bingham McHale LLP, 2700 Market Tower, 10 West Market Street, Indianapolis, Indiana 46204-4900, Phone: (317) 635-8900. ELECTRONIC ARTS: Facing Overtime Pay Lawsuit, Report Says --------------------------------------------------------- Electronic Arts is reportedly facing a purported class action for alleged overtime abuses, according to an entry in Kotaku.com. The suit started on July 29 and has not yet been certified. The entry cited a letter from the company informing workers regarding the suit. The company denied in the memo allegations of improper classifications of employees and failure to pay those employees overtime compensation. Meanwhile, in September, the San Mateo Superior Court in California granted final approval to a $15 million settlement of the employment-related class action, "Hasty v. Electronic Arts, Inc." The suit was filed on Feb. 14, 2005 in the San Mateo Superior Court in California. It alleges that the company improperly classified "engineers" in California as exempt employees. It seeks injunctive relief, unspecified monetary damages, interest and attorneys' fees. On May 16, 2006, the court granted preliminary approval of the settlement pursuant to which the company agreed to make a lump sum payment of approximately $15 million, to be paid to a third- party administrator On Sept. 22, 2006, the court granted final approval of the settlement. Electronic Arts, Inc. on the Net: http://www.ea.com/. GOL AIRLINES: Pre-Trial Proceedings Dates Set in Disaster Suit -------------------------------------------------------------- The U.S. District Court Judge Brian M. Cogan conducted an initial conference in the Gol Airlines disaster litigation. Appearing on behalf of families of more than 21 victims were Lieff Cabraser Heimann & Bernstein, LLP, attorneys Robert L. Lieff, Steven E. Fineman, Lexi J. Hazam and Nicholas Diamand. Counsel for defendants ExcelAire Service, Inc. and Honeywell International Inc. were also present. At the hearing, Judge Cogan set a prompt schedule for resolution of the important issue of forum non conveniens, as requested by plaintiffs. The court required defendants to file their forum non conveniens motion by Jan. 22, 2007, and permitted plaintiffs to proceed immediately with discovery on the issue. Defendants had requested that no discovery occur until the forum non conveniens motion was resolved. "We are grateful the Court permitted the families of the Gol Airlines tragedy to proceed with their lawsuit without delay," stated Lieff Cabraser attorney Lexi J. Hazam. "We have assembled a top notch, global team of attorneys and aviation experts to prosecute the case, and will vigorously contest any efforts by ExcelAire and Honeywell to dismiss the action." Brazilian attorney Leonardo Amarante, whose law firm is working in partnership with Lieff Cabraser, commented, "Proceeding with the lawsuit in an American court ensures that the families will have their voices heard in the United States as to why ExcelAire and Honeywell bear responsibility for the tragedy and must be held accountable." While Plaintiffs' choice of where to file suit is generally accepted by U.S. courts, a forum non conveniens motion filed by the defendants gives the Court the discretion to dismiss the claims of non-United States plaintiffs if the defendants are able to demonstrate that litigation of plaintiffs' claims in the U.S. would result in excessive oppression to the defendants and outweigh plaintiffs' convenience. If the motion is decided in plaintiffs' favor, the case will proceed in U.S. District Court. "Discovery" involves the exchange of information between parties. As part of plaintiffs' discovery, plaintiffs seek to obtain documents and other information from the defendants to strengthen the case against the defendants on subjects on which the Court has allowed discovery. One hundred and forty eight passengers and six crew members died on September 29, 2006, when Gol Airlines Flight 1907 plunged nose-first into the Amazon rainforest after colliding with an Embraer Legacy aircraft operated by ExcelAire. The complaint charges that the pilots of the ExcelAire jet were flying at an incorrect altitude at the time of the collision, failed to operate the jet's transponder and radio equipment properly, and failed to maintain communication with Brazilian air traffic control in violation of international civil aviation standards. If the pilots of the ExcelAire aircraft had followed these standards, the collision would not have occurred, a statement from Lieff Cabraser states. At the time of the collision, the ExcelAire aircraft's transponder manufactured by Honeywell was not functioning. A transponder transmits a plane's altitude and operates its automatic anti-collision system. Honeywell shares responsibility for the tragedy, the complaint alleges, because it defectively designed the transponder on the ExcelAire jet, and failed to warn of dangers resulting from foreseeable uses of the transponder. The lawsuit seeks compensatory and punitive damages against ExcelAire and Honeywell for their negligence. For more details, visit http://www.lieffcabraser.com/. IMAX CORP: Faces Several Securities Fraud Lawsuits in N.Y. ---------------------------------------------------------- IMAX Corp. and certain of its officers and directors were named as defendants in eight purported class action lawsuits filed between Aug. 11, 2006 and Sept. 18, 2006, alleging violations of U.S. federal securities laws. These eight actions were filed in the U.S. District Court for the Southern District of New York. They were brought on behalf of shareholders who purchased the company's common stock between Feb. 17, 2006 and Aug. 9, 2006. The suits allege primarily that the defendants engaged in securities fraud by disseminating materially false and misleading statements during the class period regarding their revenue recognition of theater system installations, and failing to disclose material information concerning the company's revenue recognition practices. Currently there are motions for consolidation, assignment of lead plaintiff, and appointment of lead plaintiff counsel pending before the court. These lawsuits are in very early stages and seek unspecified compensatory damages, costs, and expenses, according to the company's Nov. 9, 2006 Form 10-Q filing for the period ended Sept. 30, 2006. The first identified complaint is "Motti Kaplan, et al. v. IMAX Corporation, et al., Case No. 06-CV-06128," filed in the U.S. District Court for the Southern District of New York under Judge Naomi Reice Buchwald. The plaintiff firms in this or similar case are: (1) Abbey Spanier Rodd Abrams & Paradis, LLP, 212 East 39th Street, New York, NY, 10016, Phone: 212-889-3700, Fax: 212-684-519, E-mail: info@abbeyspanier.com; (2) Brower Piven, The World Trade Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-mail: hoffman@browerpiven.com; (3) Chimicles & Tikellis, LLP, 361 West Lancaster Avenue, Haverford, PA, 19041, Phone: 888.805.7848, Fax: 610.649.3633, E-mail: mail@chimicles.com; (4) Cohen, Milstein, Hausfeld & Toll, P.L.L.C. (Washington, DC), 1100 New York Avenue, N.W., Suite 500, West Tower, Washington, DC, 20005 Phone: 202.408.4600, Fax: 202.408.4699, E-mail: lawinfo@cmht.com; (5) Dyer & Shuman, LLP, 801 E. 17th Avenue, Denver, CO, 80218-1417, Phone: 303.861.3003, Fax: 800.711.6483, E- mail: info@dyershuman.com; (6) Girard Gibbs, LLP, 601 California Street, Suite 1400, San Francisco, CA, 94108, Phone: 415.981.4800, Fax: 415.981.4846, E-mail: mail@girardgibbs.com; (7) Kahn Gauthier Swick, LLC, 650 Poydras St., Suite 2150, New Orleans, LA, 70130, Phone: (504) 455-1400, E-mail: lewis.kahn@kglg.com; (8) Law Offices of Bruce G. Murphy, 265 Llwyds Lane, Vero Beach La, FL, 32963, Phone: 561.231.4202, (9) Milberg Weiss Bershad & Schulman, LLP, (New York), One Pennsylvania Plaza, 49th Floor, New York, NY, 10119, Phone: 212.594.5300, Fax: 212.868.1229, E-mail: info@milbergweiss.com; (10) Murray, Frank & Sailer, LLP, 275 Madison Ave., 34th Flr., New York, NY, 10016, Phone: 212.682.1818, Fax: 212.682.1892, E-mail: email@murrayfrank.com. (11) Paskowitz & Associates, 60 East 42nd Street, 46th Floor, New York, NY, 10165, Phone: 212.685.0969, Fax: 212.685.2306, E-mail: classattorney@aol.com; (12) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT, 06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com; and (13) Wechsler Harwood, LLP, 488 Madison Avenue 8th Floor, New York, NY, 10022, Phone: 212.935.7400, E-mail: info@whhf.com. INSIGHT COMMS: Settlement Hearing in Del. Stock Suit Postponed -------------------------------------------------------------- Parties in the proposed settlement of the consolidated securities class action filed against Insight Communications Co., Inc. have agreed to seek an adjournment of the settlement hearing. Between March 7 and March 15, 2005, five purported class actions were filed in the Delaware Court of Chancery naming the company and each of its directors as defendants. Three of the lawsuits also named The Carlyle Group as a defendant. The cases were subsequently consolidated under the caption, "In Re Insight Communications Co., Inc. Shareholders Litigation (Civil Action No. 1154-N)." On April 11, 2005, a consolidated amended complaint was filed against each director and The Carlyle Group. The complaint alleged, among other things, that the defendant directors breached their fiduciary duties to the company's stockholders in connection with a proposal from Sidney R. Knafel, Michael Willner, together with certain related and other parties, and The Carlyle Group to acquire all of the company's outstanding, publicly-held Class A common stock. The complaint also alleged that the proposed transaction violated the company's Charter and that The Carlyle Group aided and abetted the alleged fiduciary duty breaches. The complaint sought: -- the certification of a class of the company's stockholders; -- a declaration that the proposed transaction violates the company's Charter; -- an injunction prohibiting the defendants from proceeding with the proposed transaction; -- rescission or other damages in the event the proposed transaction is consummated; -- an award of costs and disbursements including attorneys' fees; and -- other relief. On July 28, 2005, the parties to the action entered into a memorandum of understanding setting forth the terms of a proposed settlement of the litigation which, among other things, provides that the buyers shall proceed with the merger, subject to the terms and conditions of the merger agreement including the "majority of the minority" stockholder voting condition, and under which the defendants admit to no wrongdoing or fault. The memorandum of understanding contemplated certification of a plaintiff class consisting of all record and beneficial owners of the company's Class A common stock, other than the buyers, during the period beginning on and including March 6, 2005, through and including the date of the consummation of the merger, a dismissal of all claims with prejudice, and a release in favor of all defendants of any and all claims related to the merger. The proposed settlement is subject to a number of conditions, including consummation of the merger, which closed on Dec. 16, 2005, the plaintiffs' approval of a definitive settlement agreement and final court approval of the settlement. On May 11, 2006, the parties to the action filed a stipulation of settlement with the court. On May 19, 2006, the court entered a scheduling order setting a hearing on the proposed settlement for July 13, 2006. On or before June 6, 2006, the Notice of Pendency of Class Action, Proposed Settlement of Class Action and Settlement Hearing was mailed to company stockholders. On June 28, 2006, Kim D. Kelly, a former employee and officer, filed an objection to the proposed settlement. On July 13, 2006, the court convened the settlement hearing, and with the agreement of all of the parties to the action, the court adjourned the settlement hearing until Sept. 25, 2006 to permit Ms. Kelly to review the existing discovery materials and conduct additional analysis. On Sept. 1, 2006, Ms. Kelly filed a supplemental objection to the settlement. On Sept. 25, 2006, the court convened the settlement hearing, and with the agreement of all of the parties to the action, adjourned the settlement hearing until Nov. 9, 2006. On October 12, 2006, the defendants and plaintiffs filed briefs with accompanying affidavits in support of the settlement. On Nov. 2, 2006, Ms. Kelly filed reply papers in support of her objection. On Nov. 9, 2006, the parties to the action agreed to seek an adjournment of the settlement hearing until a date and time to be determined based on the availability of the parties and the court, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. Insight Communications Co., Inc. on the Net: http://www.insight-com.com/. LIFETIME BRANDS: Recalls Lemonade Jars For Lead Exposure Hazard --------------------------------------------------------------- Lifetime Brands Inc., of Westbury, New York, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 6,600 units of Gemco lemonade jars. The company said the metal spigot contains lead and is in direct contact with the contents of the lemonade jar. Lemonade and other beverages can cause the lead to leach from the spigot. Long-term exposure to lead in children may be associated with behavioral problems, learning disabilities, hearing problems and growth retardation. No injuries have been reported. The recalled product is the Gemco Lemonade Jar is a six-sided glass jar with a round glass lid and a metal spigot at the bottom of the jar. The jar has a yellow and green label on the front that reads "Lemonade Jar" with a picture of two lemons. There is a sticker on the bottom that reads "imported by Gemco, Div. Lifetime Hoan Corp. Westbury, N.Y. 11590 Made in China." These Gemco Lemonade Jars were manufactured in China and are being sold at retailers nationwide from April 2004 through November 2006 for about $16. Picture of recalle Gemco Lemonade Jar: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07053.jpg Consumers are advised to stop using these lemonade jars immediately and return the spigot pieces to Lifetime Brands, Inc. for a full refund. Consumers should wash hands after handling the spigot. For additional information, contact Lifetime Brands Inc., at (888) 561-2269 between 8 a.m. and 5 p.m. ET Monday through Friday or by E-mail: lemonadejar@lifetimebrands.com. MAINE: Knox County Strip Search Suit Settlement Gets Initial OK --------------------------------------------------------------- The U.S. District Court for the District of Maine preliminarily approved a third amended settlement proposal in a suit originally filed by Laurie Tardiff, a Thomaston woman who accused Knox County and Sheriff Dan Davey of illegal strip- searching, the Rockland Village Soup reports. In the original suit, Ms. Tardiff, represented by attorneys Dale F. Thistle, Robert J. Stolt and Sumner Lipman, alleges that her civil and constitutional rights were violated when she was strip-searched by a female officer at the Rockland jail after being arrested on a felony charge of tampering with a witness. That charge and a charge of violating conditions of release, a misdemeanor, later were dismissed. Judge Gene Carter certified the lawsuit in 2003 as a class action. People charged with nonviolent misdemeanors who were strip-searched at the Rockland jail between Nov. 19, 1996, and Dec. 31, 2004 are made eligible to join the suit. The class was decertified in September, allowing Ms. Tardiff to proceed to trial as an individual to determine liability, but the court also requested that the parties attempt to reach an out of court settlement. In early Oct. 2, the parties reached a $3 million settlement under which Ms. Tardiff was supposed to receive a $50,000 bonus payment. The settlement was to be presented for approval to the court on the same month. But before it could happen, Ms. Tardiff sent a letter to Judges Carter and George Singal, the mediator in the settlement stating that she was backing off, asking for $500,000 instead. Ms. Tardiff then hired attorney William D. Robitzek at Lewiston law firm Berman & Simmons and opted out of the class. Parties agreed to substitute Ms. Tardiff with a new class representative, Dale Dare, and filed an amended settlement on Oct. 24. Judge Carter, however, refused to approve the amended settlement because it did not provide two opportunities for all potential class members to opt out, and because the language of the injunction left out a stipulation regarding parties' rights to appeal. The amended settlement now states that by signing the agreement, all parties waive rights to appeal. Judge Carter has found that the third final settlement agreement has met federal law requirements, and the injunction language satisfactory. He set a fairness hearing for April 23, 2007 at 10 a.m. The third final settlement agreement includes a court-issued injunctive order, which is designed to prevent unconstitutional strip searches in the future; recertification of the suit as a class action; and establishment of a common fund of $3 million, to be shared among participating class members, according to the report. It remains undecided whether Ms. Tardiff remains a class member. The suit is "Dare v. Knox County, et al., Case No. 2:02-cv- 00251-GC," filed in the U.S. District Court for the District of Maine under Judge Gene Carter with referral to Judge David M. Cohen. Representing the plaintiff are: (1) Sumner H. Lipman at Lipman, Katz & Mckee, P.O. Box 1051, Augusta, ME 04332-1051, Phone: 207-622-3711, E- mail: slipman@lipmankatzmckee.com; and (2) Dale F. Thistle at the Law Office of Dale F. Thistle 103 Main Street, P.O. Box 160, Newport, ME 04953, Phone: (207) 368-7755, E-mail: dthistle@verizon.net. Representing the defendants are: (1) Peter t. Marchesi of Wheeler & Arey, P.A., 27 Temple Street, P.O. BOX 376, Waterville, ME 04901, Phone: 873- 7771, E-mail: pbear@wheelerlegal.com; and (2) John J. Wall, III of Monaghan Leahy, LLP, P.O. BOX 7046 DTS, Portland, ME 04112-7046, Phone: 774-3906, E-mail: jwall@monaghanleahy.com. MCAFEE INC: Ex-Employees File Suit in Calif. Over Stock Options --------------------------------------------------------------- Seven former McAfee, Inc. employees filed a lawsuit in the U.S. District Court for the Northern District of California alleging they were cheated out of about $2 million total, because the company did not permit them to exercise stock options that then expired during the software company's self-imposed "blackout" period, Law.com reports. Named as defendants in the suit are: -- McAfee, Inc., -- Chief Executive George Samenuk, and -- interim CEO Dale Fuller. Companies with backdating problems often delay filing financial statements until they can make necessary accounting adjustments. At the same time, some of those companies have also imposed a "blackout" barring the issuance of any new shares until the financials are restated. Employees whose option grants expire during the "blackout" are unable to exercise their vested shares. To remedy the dilemma, the company could extend the expiration dates, so that the clock only starts ticking again once the "blackout" is over. However, according to the complaint, the extension didn't happen at the company. The employees' suit alleges McAfee was contractually obligated to let them exercise their options grants within 90 days of the end of their employment, but did not. The net result, plaintiffs say, is that the company is unfairly penalizing them for the alleged accounting misdeeds of management. Plaintiffs also accuse the company of reneging on promises to give former workers a 90-day extension on their window for exercising options. The suit alleges that in August, then-Chief Executive George Samenuk sent an e-mail message to all employees making this promise, and when he retired in October, interim CEO Dale Fuller decided to revoke it. Citing unnamed sources, the complaint accuses Mr. Fuller of telling senior management that he didn't understand why McAfee would "take money out of our pockets and our children's pockets and give it to employees who have left the company." The U.S. Securities and Exchange Commission doesn't require companies to impose a "blackout" in this situation, as it does in some pension-fund disputes, says employment attorney Alisa Baker of San Francisco's Levine & Baker. However, companies may choose to do so to prevent insider trading allegations, explains Morrison & Foerster corporate practice partner Robert Townsend. If an employee or executive is allowed to make a stock trade during this time -- when the company is uncertain about what may end up being material or immaterial information -- the company opens itself up to potential liability, Mr. Townsend said. Common questions of law and fact exist to all members of the class, and predominate over any questions affecting solely individual members of the class. Among questions of law and fact common to the class are: -- whether defendants breached stock option agreements; -- whether defendants' decision to start the 90 day exercise window during the blackout, even though plaintiffs were precluded from exercising their options, violated their duty of good faith and fair dealing; -- whether defendants misrepresented and/or failed to disclose material facts; -- whether defendant MCAfee was unjustly enriched; and -- whether the class members were damaged and the measure of damages. Plaintiffs, on behalf of themselves and the class, pray for judgment as follows: -- declaring this action to be a proper class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the class, and declaring plaintiffs to be proper class representatives and plaintiffs' counsel as counsel for the class; -- awarding plaintiffs and all members of the class compensatory damages and exemplary damages in an amount to be proven at trial; -- awarding plaintiffs and members of the class pre- judgment interest, as well as reasonable fees and costs; -- awarding such other relief as the court deems just and proper. The class consists of all persons who were employed at McAfee and who received stock options but were unable to exercise them due to the blackout imposed by McAfee as of July 28, 2006. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?1783 The suit is "McIntosh et al v. McAfee, et al., Case No. 5:06-cv- 07694-HRL," filed in the U.S. District Court for the Northern District of California under Judge Howard R. Lloyd. Representing plaintiffs are Joseph W. Cotchett, Mark C. Molumphy and Kelly L. Sommerfeld all of Cotchett, Pitre & Simon, 840 Malcolm Road, Suite 200, Burlingame, CA 94010, Phone: 650-697- 6000, Fax: 650-697-0577, E-mail: plee@cpsmlaw.com or mmolumphy@cpsmlaw.com or ksommerfeld@cpsmlaw.com. Representing defendants is Robert Feldman of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California 94304-1050, Phone: 650-493-9300, Fax: 650-493-6811, E-mail: wsgr@wsgr.com. MIVA INC: Mulls Setting Mediation Session for Click Fraud Suit -------------------------------------------------------------- MIVA, Inc., formerly Findwhat.com, Inc., is still in the process of scheduling a mediation session for the purported class action, "Lane's Gifts LLC, et al. v. Yahoo! Inc., et al." On Feb. 17, 2005, a putative class action was filed in Miller County Circuit Court, Arkansas, against that company and others in its sector by: -- Lane's Gifts and Collectibles, LLC, -- U.S. Citizens for Fair Credit Card Terms, Inc., -- Savings 4 Merchants, Inc., and -- Max Caulfield d/b/a Caulfield Investigations, on behalf of themselves and all others similarly situated. The complaint names 11 search engines, web publishers, or performance marketing companies as defendants, including the company. It alleges breach of contract, unjust enrichment, and civil conspiracy. All of the plaintiffs' claims are predicated on the allegation that the plaintiffs have been charged for clicks on their advertisements that were not made by bona fide customers. The lawsuit is brought on behalf of a putative class of individuals that allegedly "were overcharged for [pay per click] advertising," and seeks monetary damages, restitution, prejudgment interest, attorneys' fees, and other remedies. Two plaintiffs -- Savings 4 Merchants and U.S. Citizens for Fair Credit Card Terms, Inc. -- voluntarily dismissed themselves from the case, without prejudice, on April 4, 2005. The company believes it has no contractual or other relationship with either of the remaining plaintiffs. On Sept. 7, 2005, the company filed a motion to dismiss the complaint pursuant to Arkansas Rule 12(b) (6) of the Civil Procedure for failure to state claims on which relief may be granted. On Sept. 14, 2005, the company timely filed a motion to dismiss pursuant to Arkansas Rule 12(b) (2) of the Civil Procedure for lack of personal jurisdiction. The court has not yet ruled on these motions. Google, Inc. and certain other co-defendants in the case have reached settlement with the plaintiffs. The court has granted conditional approval to the class settlement between these parties. The court held a fairness hearing on July 24, 2006 and has taken the review of the settlement terms under advisement. The court subsequently issued a final order approving the settlement with Google. The court has stayed the case as to the remaining defendants, including company, and has ordered the parties to mediation. The company is currently in the process of scheduling the mediation, according to the company's Nov. 9, 2006 Form 10-Q filing for the period ended Sept. 30, 2006. Representing the plaintiffs are: (1) John C. Goodson, Keil & Goodson, P.O. Box 618, Texarkana, AR 75504, Phone: (870) 772-4113, Fax: (870) 773-2967, E-mail: jcgoodson@kglawfirm.com; (2) Stephen F. Malouf, Law Offices of Stephen F. Malouf, P.C., 3506 Cedar Springs Road, Dallas, TX 75219, Phone: (214) 969-7373; and (3) James M. Pratt, Jr., P.A., 144 Washington NW, Post Office Box 938, Camden, AR 71701, Phone: 870-836-7328, Fax: 870-837-2405, E-mail: jamiepratt@cablelynx.com. Representing the defendants are: (i) L. Wren Autrey and Ned A. Stewart, Autrey Autrey & Stewart, 501 East Sixth St., P.O. Box 960, Texarkana, AR 75504, Phone: 870-773-5684, Fax: 870-773-2900, E- mail: lwautrey@cs.com; and (ii) Richard Hays. Rick Holcomb and David J. Stewart, Alston & Bird, One Atlantic Center, 1201 West Peachtree St., Atlanta, GA 30309-3424, Phone: (404) 881-7000. MIVA INC: N.Y. Court Mulls Dismissal Motions in Click Fraud Suit ---------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to rule on motions to dismiss the purported class action filed MIVA, Inc., formerly Findwhat.com, Inc., over allegations of click fraud. On March 10, 2006, Payday Advance Plus, Inc. filed a putative class action against the company and Advertising.com, Inc. The complaint alleges that Advertising.com, a MIVA Media Network distribution partner, engaged in click fraud to increase revenues to themselves with MIVA's alleged knowledge and participation. The lawsuit was brought on behalf of a putative class of individuals who have allegedly been overcharged by the defendants and seeks monetary damages, restitution, prejudgment interest, attorneys' fees, injunctive relief, and other remedies. On May 12, 2006, the company filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted, arguing that plaintiff failed to raise any colorable claims against MIVA. Advertising.com filed a similar motion. The court has taken the motions under advisement and has not yet issued a ruling, according to the company's Nov. 9, 2006 Form 10-Q filing for the period ended Sept. 30, 2006. The suit is "Payday Advance Plus, Inc. v. Findwhat.com, Inc. et al., Case No. 1:06-cv-01923-JGK," filed in the U.S. District Court for the Southern District of New York under Judge John G. Koeltl. Representing the plaintiffs are Robin Bronzaft Howald and Robert M. Zabb of Glancy Binkow & Goldberg, LLP, Phone: (917) 510-0009 and (310)-201-9150, Fax: (646) 366-0895 and (310)-201-9160, E- mail: hobbit99@aol.com and info@glancylaw.com. Representing the company is Karl Geercken of Alston & Bird, LLP, (NYC), 90 Park Avenue, New York, NY 10016, Phone: 212-210-9400, Fax: 212-210-9444, E-mail: kgeercken@alston.com. NEXCEN BRANDS: N.Y. Court Mulls Okay for IPO Suit Settlement ------------------------------------------------------------ The U.S. District Court for the Southern District of New York has yet to issue an order with respect to the final approval of the settlement of a consolidated securities class action against NexCen Brands, Inc. (formerly Aether Holdings, Inc.). NexCen is among the hundreds of defendants named in nine class actions seeking damages due to alleged violations of securities law. The case is being heard in the U.S. District Court for the Southern District of New York. The court has consolidated the actions by all of the named defendants that actually issued the securities in question. There are approximately 310 consolidated cases before Judge Scheindlin, including the Aether Systems action, under the caption In Re Initial Public Offerings Litigation, Master File 21 MC 92 (SAS). As to NexCen, these actions were filed on behalf of persons and entities that acquired the company's stock after its initial public offering (IPO) in Oct. 20, 1999. Among other things, the complaints claim that prospectuses, dated Oct. 20, 1999 and Sept. 27, 2000 and issued by NexCen in connection with the public offerings of common stock, allegedly contained untrue statements of material fact or omissions of material fact in violation of securities laws because the prospectuses allegedly failed to disclose that the offerings' underwriters had solicited and received additional and excessive fees, commissions and benefits beyond those listed in the arrangements with certain of their customers which were designed to maintain, distort and/or inflate the market price of the Company's common stock in the aftermarket. The actions seek unspecified monetary damages and rescission. NexCen believes the claims are without merit and is vigorously contesting these actions. Initial motions to dismiss the case were filed and the court held oral argument on the motions to dismiss on Nov. 1, 2002. On Feb. 19, 2003, the court issued an opinion and order on defendants' motions to dismiss, which granted the motions in part and denied the motions in part. As to NexCen, the motion to dismiss the claims against it was denied in its entirety. Discovery has now commenced. The plaintiffs voluntarily dismissed without prejudice the officer and director defendants of NexCen. On June 26, 2003, the plaintiff's Executive Committee in this case announced a proposed settlement with the issuers. The proposed settlement is a settlement among the plaintiffs, the issuer-defendants, including NexCen, and the officer and director defendants of the issuers. Plaintiffs will continue litigating their claims against the underwriter-defendants. Under terms of the proposed settlement, NexCen has accrued $465,000 for its estimated exposure. After the settlement, NexCen would not incur any material financial or other liability. On June 14, 2004, the plaintiffs and issuer defendants presented the executed settlement agreement to Judge Scheindlin during a court conference. Subsequently, plaintiffs and issuers made a motion for preliminary approval of the settlement agreement. On July 14, 2004, the underwriter defendants filed a memorandum of law in opposition to plaintiffs' motion for preliminary approval of the settlement agreement. Reply briefs in support of the settlement were submitted to the court. In December 2004, the court ordered additional briefing on the motion. All of the additional briefs were submitted to the court. On Feb. 15, 2005, Judge Scheindlin issued an opinion and order granting preliminary approval to the settlement agreement. The process of communicating formal notice of the proposed settlement to the plaintiff classes has been completed. The court held a fairness hearing on the proposed settlement on April 24, 2006, and has not yet ruled on the motion for final approval, according to the Aether Holdings' Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. For more details, visit http://www.iposecuritieslitigation.com/. NORTEL NETWORKS: Tenn. Court Dismisses Part of ERISA Breach Suit ---------------------------------------------------------------- The U.S. District Court for the Middle District of Tennessee granted in part and denied in part renewed motion to dismiss plaintiff's second amended consolidated class action complaint of Employee Retirement Income Security Act (ERISA) violations against Nortel Networks Corp. (NNC). A purported class action was filed in the U.S. District Court for the Middle District of Tennessee on Dec. 21, 2001, on behalf of participants and beneficiaries of the Nortel Long-Term Investment Plan at any time during the period of March 7, 2000 through the filing date and who made or maintained Plan investments in NNC common shares, under the ERISA for Plan-wide relief. The suit alleges, among other things, material misrepresentations and omissions to induce Plan participants to continue to invest in and maintain investments in NNC common shares in the Plan. A second purported class action, on behalf of the Plan and Plan participants for whose individual accounts the Plan purchased NNC common shares during the period from Oct. 27, 2000 to Feb. 15, 2001 and making similar allegations, was filed in the same court on March 12, 2002. A third purported class action, on behalf of persons who are or were Plan participants or beneficiaries at any time since March 1, 1999 to the filing date and making similar allegations, was filed in the same court on March 21, 2002. The first and second purported class actions were consolidated by a new purported class action complaint, filed on May 15, 2002 in the same court and making similar allegations, on behalf of Plan participants and beneficiaries who directed the Plan to purchase or hold shares of certain funds, which held primarily NNC common shares, during the period from March 7, 2000 through Dec. 21, 2001. A fourth purported class action, on behalf of the Plan and Plan participants for whose individual accounts the Plan held NNC common shares during the period from March 7, 2000 through March 31, 2001 and making similar allegations, was filed in the U.S. District Court for the Southern District of New York on March 12, 2003. On March 18, 2003, plaintiffs in the fourth purported class action filed a motion with the Judicial Panel on Multidistrict Litigation to transfer all the actions to the U.S. District Court for the Southern District of New York for coordinated or consolidated proceedings pursuant to 28 U.S.C. section 1407. On June 24, 2003, the Judicial Panel on Multidistrict Litigation issued a transfer order transferring the Southern District of New York action to the U.S. District Court for the Middle District of Tennessee (Consolidated ERISA Action). On Sept. 12, 2003, the plaintiffs in all the actions filed a consolidated class action complaint. On October 28, 2003, the defendants filed a motion to dismiss the complaint and a motion to stay discovery pending disposition of the motion to dismiss. On March 30, 2004, the plaintiffs filed a motion for certification of a class consisting of participants in, or beneficiaries of, the Plan who held shares of the Nortel Stock Fund during the period from March 7, 2000 through March 31, 2001. On April 27, 2004, the Court granted the defendants' motion to stay discovery pending resolution of defendants' motion to dismiss. Amended Consolidated Class Action Complaint On June 15, 2004, the plaintiffs filed a first amended consolidated class action complaint that added additional current and former officers and employees as defendants and expanded the purported class period to extend from March 7, 2000 through to June 15, 2004. On June 17, 2005, the plaintiffs filed a second amended consolidated class action complaint that added additional current and former directors, officers and employees as defendants and alleged breach of fiduciary duty on behalf of the Plan and as a purported class action on behalf of participants and beneficiaries of the Plan who held shares of the Nortel Networks Stock Fund during the period from March 7, 2000 through June 17, 2005. On July 8, 2005, the defendants filed a renewed motion to dismiss plaintiffs' second amended consolidated class-action complaint. On July 29, 2005, plaintiffs filed an opposition to the motion, and defendants filed a reply memorandum on Aug. 12, 2005. On March 30, 2006, the defendants filed an additional motion to dismiss raising the jurisdictional challenge that all former plan participants, including one of the named plaintiffs, lack standing to assert a claim under ERISA. On April 17, 2006, the plaintiffs filed a motion to strike this motion to dismiss. On May 5, 2006, the defendants filed a reply brief in support of this motion to dismiss. On Oct. 11, 2006, the court issued a memorandum order granting in part and denying in part the renewed motion to dismiss plaintiff's second amended consolidated class-action complaint. The suit is "In re Nortel Networks Corp. 'ERISA' Litigation, 3:03-md-01537," filed in the U.S. District Court for the District of Tennessee under Judge John T. Nixon with referral to Judge Juliet Griffin. Representing the plaintiffs are: (1) Laurie B. Ashton of Keller Rohrback, P.L.C., 3101 N. Central Avenue, Suite 900, Phoenix, AZ 85012, Phone: (602) 248-0088; (2) George Edward Barrett of Barrett, Johnston & Parsley, 217 Second Avenue, N. Nashville, TN 37201, Phone: (615) 244-2202, E-mail: gbarrett@barrettjohnston.com; (3) Paul Kent Bramlett of Bramlett Law Offices, P.O. Box 150734, Nashville, TN 37215-0734, Phone: (615) 248- 2828, Fax: (615) 254-4116, E-mail: pknashlaw@aol.com; (4) Clifton David Briley of Briley Law Group, PLLC, 511 Union Street, Suite 1610, Nashville, TN 37219, Phone: (615) 986-2684, E-mail: david@brileylaw.com; (5) Todd S. Collins of Berger & Montague, P.C., 1622 Locust Street, Philadelphia, PA 19103, Phone: (215) 875-3040, Fax: (215) 875-5715, E-mail: tcollins@bm.net; (6) Kenneth A. Elan of The Law Office of Kenneth A. Elan, 217 Broadway, Suite 606, New York, NY 10007, Phone: (212) 619-0261. (7) Robert Izard of Schatz & Nobel, 1 Corporate Center, Suite 1700, Hartford, CT 06103-3202, Phone: (860) 493- 6292, E-mail: firm@snlaw.net; and (8) Edwin J. Mills of Stull, Stull & Brody, Six East 45th Street, New York, NY 10017, Phone: (212) 687-7230, Fax: (212) 490-2022, E-mail: ssbny@aol.com. Representing the defendants are: (i) Aubrey B. Harwell, Jr. and Gerald David Neenan of Neal & Harwell, 150 Fourth Avenue, N. 2000 First Union Tower, Nashville, TN 37219-2498, Phone: (615) 244-1713, E-mail: aharwell@nealharwell.com and gneenan@nealharwell.com; and (ii) Stuart J. Baskin and Tai H. Park of Shearman & Sterling, 599 Lexington Avenue, New York, NY 10022- 6069, Phone: (212) 848-4000. NUMISMATIC GUARANTY: Sued in Florida Over "First Strike" Coins -------------------------------------------------------------- A Miami attorney filed a class action on behalf of coin collectors claiming the labeling of "first strike" in coins by Numismatic Guaranty Corp. (NGC) and Professional Coin Grading Service (PCGS) is deceiving, The Associated Press reports. The cases have been assigned to Judge Jose Martinez of the U.S. District Court for the Southern District of Florida, who has yet to certify the suit as a class action. NGC is based in Sarasota, Florida. PCGS is based in Newport Beach, California. "First strikes" coins are billed as among the first of the year's batch "struck" by the U.S. Mint from a certain die set, and are thought to have far higher quality than those created later when the die is allegedly worn. Coin collectors are often willing to pay an additional price for them, $30 more for a silver American Eagle and $2,200 more for a gold American Buffalo, according to attorney Charles Lipcon, who filed the lawsuits on behalf of collector Thomas Francisco and others. But Mr. Lipcon said the label is misleading because it's impossible to know which coin is the "first strike." The U.S. Mint states at its Web site it does not keep track of the date individual coins were created. PCGS reportedly said its definition of a "first strike" is a coin that that is delivered by the Mint within 30 days of its initial sales date. NGC says it designates a coin "first strike" if it arrives with the proper documentation at the company within the first month of release or is submitted in sealed U.S. Mint packaging at a later date. Mr. Lipcon said PCGS previously used a definition indicating that a "first strike" was one of the first coins produced by a certain die. PCGS said its definition is based on timing and it makes no "representation with regard to rarity or no representation with regard to value." The suit purports to include anyone in the U.S. who bought a "first strike" coin in 2005 and 2006. Since Jan. 1, 2005, about 150,000 coins have been reportedly sold to collectors and investors in all 50 states. Damage payout is estimated to come at more than $10 million, according to the report. The suit is "Francisco v. Numismatic Guaranty Corp. of America d/b/a NGC, Case No. 0:06-cv-61677-JEM," filed in the U.S. District Court for the Southern District of Florida under Judge Jose E. Martinez. Representing the plaintiff is Charles R. Lipcon at Lipcon Margulies & Alsina, 2 South Biscayne Boulevard, 2480 One Biscayne Tower, Miami, FL 33131, Phone: 305-373-3016, Fax: 373- 6204, E-mail: sealaw@aol.com. PAINT MANUFACTURERS: Calif. Cities Joins Negligence Lawsuit ----------------------------------------------------------- The cities of Los Angeles and San Diego have joined other municipalities and school districts in a class action filed against paint companies in California for causing and concealing health hazards of lead-containing paint, NBC4.TV reports. The suit was filed by Santa Clara County Superior Court in 2000. It alleges that several manufacturers and the Lead Industries Association promoted the sale of lead-based paint for decades while disregarding the health risks to children. In addition, the suit also alleges public nuisance, liability, fraud and negligence, and demands the companies remove paint from buildings and pay restitution. Named plaintiffs in the suit are Alameda, Solano and Santa Cruz counties, the city and county of San Francisco and the city of Oakland, along with their unified school districts, housing authorities and Oakland's redevelopment agency. Recently, Monterey and San Mateo counties joined the suit. Defendants in the case include: -- Atlantic Richfield Company (ARCO), -- NL Industries Inc., -- American Cyanamid Co., -- ConAgra Grocery Products Cos., -- E.I. du Pont de Nemours & Company (DuPont), -- Millenium Inorganic Chemicals Inc., -- The Sherwin-Williams Company, -- O'Brien Corp., -- The Glidden Co., and -- SCM Chemicals In 2003, the Santa Clara County Superior Judge Jack Komar dismissed the suit saying that the public nuisance claim could not be filed on a class action basis. In March 2006, the California 6th District Court of Appeals reinstated the suit. Santa Clara County's complaint will be revised to include the new plaintiffs and to conform to the parameters set by the appeals court, said Bruce Simon, an attorney who is assisting with the case. For more details, contact Bruce Simon of Cotchett, Pitre, Simon & McCarthy, San Francisco Airport Office Center, 840 Malcolm Road, Suite 200, Burlingame, California 94010, Phone: (650) 697- 6000, Fax: (650) 697-0577, (650) 692-1112 and (650) 692-3606, Web site: http://www.cpsmlaw.com/. PREMCOR INC: Hartford Residents Opt Out of Refinery Vapors Suit --------------------------------------------------------------- Forty-six current and former Hartford residents have opted out in a class action against Premcor, Inc. and Equilon Pipeline Co. over petroleum vapors in the village of Hartford, The St. Clair Record reports. In November, the law firm of Goldenberg Heller Antognoli Rowland Short & Gori in Edwardsville, Illinois withdrew Eric and Tina Rose along with minor child Derek Rose as plaintiffs, but added another minor, Wesley Lamere. The child's parents were not added to the plaintiff roster. Circuit Judge Daniel Stack had conditionally certified Harry and Ruth Goforth as lead plaintiffs in the suit. He also certified the three Roses, Tim and Kim Sullivan, Michael Hanbaum and John Copeland as class representatives. Case Background Seven Missouri attorneys filed a suit against Premcor Refining Group Inc., Shell Oil and other oil companies in 2003, alleging that the company's refinery created an underground pool of gasoline whose vapors are causing damage to Hartford residents' homes. They proposed and obtained a positive ruling to make Katherine Sparks as lead plaintiff in the suit. In 2004, Goldenberg Heller sued most of the same companies for individual damages on behalf of 65 plaintiffs. The Goldenberg Heller clients did not became part of the "Sparks" class. Apex Oil and Sinclair moved for reconsideration, and Madison County Circuit Judge Daniel Stack granted it. He did not decertify Ms. Sparks as class representative in the Missouri suit. Afterwards, Goldenberg Heller negotiated with Premcor and Shell Oil on an $8 million settlement that would apply throughout Hartford. The parties reached a settlement, and Judge Stack approved it. Attorneys from Missouri asked the Illinois Supreme Court to overturn, but the court refused. The agreement stipulates that $3.5 million of it will be legal fees handed down to Goldenberg, Miller, Heller & Antognoli. A fairness hearing is set March 13, 2007. On Sept. 5, the Missouri lawyers petitioned the Supreme Court directly for a supervisory order against Judge Stack, and moved for an emergency stay of proceedings in Madison County. After several motions, on Sept. 12, Justice Thomas Fitzgerald denied the emergency motion to stay the Madison County proceedings. On Sept. 13, Justice Charles Freeman turned down the Heller firm's motion to deny the supervisory order. On Sept. 19, Elizabeth Heller objected to the supervisory order stating the Missouri attorneys "strained the bounds of ethical propriety" in pursuing the settlement. On Sept. 20, Equilon attorney Gregory Mollett filed an objection. Plaintiffs' counsel is Goldenberg, Heller & Antognoli, P.C., 2227 S. State Route 157, P.O. Box 959, Edwardsville, Illinois 62025, Phone: (618) 656-5150, Fax: (618) 656-6230, E-mail: info@ghalaw.com. PXRE GROUP: N.Y. Court Mulls Consolidation of Securities Suits -------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to rule on a motion to consolidate several securities fraud class actions filed against PXRE Group, Ltd. Initially, several class actions were filed in the U.S. District Court for the Southern District of New York against: -- the company, -- Jeffrey Radke, the company's chief executive officer, and -- John Modin, the company's former chief financial officer. Those suits were brought on behalf of a putative class consisting of investors who purchased the publicly traded securities of PXRE between July 28, 2005 and Feb. 16, 2006. Each of the class action complaints asserts nearly identical claims and alleges that during the purported class period certain PXRE executives made a series of materially false and misleading statements or omissions about PXRE's business, prospects and operations, thereby causing investors to purchase PXRE's securities at artificially inflated prices, in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated under the 1934 Act. The class action complaints allege, among other things, that the company failed to disclose and misrepresented these material adverse facts: -- the full impact on PXRE's business of hurricanes Katrina, Rita and Wilma; -- the doubling of PXRE's cost of the 2005 Hurricanes to an estimated $758 million to $788 million; and -- the magnitude of the loss to PXRE and PXRE's potential loss of its financial-strength and credit ratings from A.M. Best. Further, the complaints allege, based on the foregoing asserted facts, that PXRE's statements with respect to its loss estimates for the 2005 hurricane season lacked any reasonable basis. The class actions seek an unspecified amount of damages, as well as other forms of relief. A motion to consolidate all of the class actions into a single proceeding is currently pending before the court, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The first identified complaint is "Stephen Goldberger, et al. v. PXRE Group Limited, et al., Case No. 06-CV-3410," filed in the U.S. District Court for the Southern District of New York. Plaintiff firms in this or similar case: (1) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala Cynwyd, PA, 19004, Phone: 610.668.7987, Fax: 610.660.0450, E-mail: esmith@Brodsky-Smith.com; (2) Federman & Sherwood, 120 North Robinson, Suite 2720, Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail: wfederman@aol.com; (3) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com; (4) Murray, Frank & Sailer, LLP, 275 Madison Ave 34th Flr., New York, NY, 10016, Phone: 212.682.1818, Fax: 212.682.1892, E-mail: email@murrayfrank.com; (5) Pomerantz Haudek Block Grossman & Gross, LLP, 100 Park Avenue, 26th Floor, New York, NY, 10017-5516, Phone: 212.661.1100, Fax: 212.661.8665, E-mail: info@pomerantzlaw.com; (6) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT, 06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com; (7) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com; (8) Stull, Stull & Brody, (New York), 6 East 45th Street, New York, NY, 10017, Phone: 310.209.2468, Fax: 310.209.2087, E-mail: SSBNY@aol.com; and (9) Yourman Alexander & Parekh, LLP, 3601 Aviation Blvd., Suite 3000, Manhattan Beach, CA, 90266, Phone: 310.725.6400, Fax: 310.725.6420. RI NOVELTY: Recalls Kids' Necklaces Due to Lead Poisoning Hazard ---------------------------------------------------------------- Rhode Island Novelty, of Cumberland, Rhode Island, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 48,000 units of children's Powerpuff Girls necklaces. The company said the recalled jewelry contains high levels of lead. Lead is toxic if ingested by young children and can cause adverse health effects. No injuries have been reported. The recalled necklaces are multi-colored metal pendants that hang from a black cord. The pendants are in the shape of the head of one of three "Powerpuff Girls" cartoon characters. The packaging consists of purple cardboard with the three Powerpuff Girls cartoon characters and the words "CARTOON NETWORK" and "THE POWERPUFF GIRLS" printed on both sides. These Powerpuff Girls necklaces were manufactured in China and are being sold at carnivals, amusement parks, family entertainment centers, small discount stores nationwide and at http://www.rinovelty.comfrom March 2003 through November 2006 for about $1. Pictures of the recalled Powerpuff Girls necklaces: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07054a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07054b.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07054c.jpg Consumers are advised to immediately take this jewelry away from children. Consumers should return the recalled jewelry to the store where purchased for a replacement or contact Rhode Island Novelty for information on how to receive a replacement. For additional information, contact Rhode Island Novelty at 1- 800-528-5599 between 8:30 a.m. and 6 p.m. EST, Monday through Friday, or visit the firm's Web site: http://www.rinovelty.com. SINA CORP: N.Y. Court Dismissal Order in Stock Suit Appealed ------------------------------------------------------------ Plaintiffs in the a securities class action against SINA Corp. and certain of its directors and officers are appealing an order by the U.S. District Court for the Southern District of New York that dismisses the consolidated complaint in the case without leave to amend it. In February 2005, multiple purported securities class action complaints were filed against the company and certain officers and directors of the company in the U.S. District Court for the Southern District of New York, following the company's announcement of anticipated financial results for the first quarter of 2005 ending on March 31, 2005. The complaints sought unspecified damages on alleged violations of federal securities laws during the period from Oct. 26, 2004 to Feb. 7, 2005. The complaints alleged violations of the federal securities laws through the issuance of false or misleading statements during the class period covered. On July 1, 2005, Judge Naomi Buchwald consolidated the cases under the caption, "In re SINA Corp. Securities Litigation," and appointed as lead plaintiff: -- City of Sterling Heights General Employee's Retirement System; -- City of St. Clair Shores Police and Fire Retirement System; and -- Charter Township of Clinton Police and Fire Retirement System (collectively the MAPERS Funds Group). The MAPERS Funds Group filed an amended consolidated complaint on Sept. 9, 2005. The complaints sought unspecified damages on alleged violations of federal securities laws during the period from Oct. 26, 2004 to Feb. 7, 2005. On Sept. 25, 2006, Judge Buchwald issued an order granting the defendants' motion to dismiss the amended consolidated complaint in its entirety, without leave to amend. In the dismissal order, Judge Buchwald held that "the complaint altogether fails to support the conclusion that [SINA] acted with intent to deceive or defraud the public or that they were reckless in this regard." The MAPERS Funds Group filed a notice of appeal from the dismissal order on Oct. 24, 2006, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is "In re SINA Corp. Securities Litigation, Case No. 1:05-cv-02154-NRB," filed in the U.S. District Court for the Southern District of New York under Judge Naomi Reice Buchwald. Representing the plaintiffs are: (1) Samuel Howard Rudman and Mario Alba, Jr. of Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, LLP, 58 South Service Road, Suite 200 Melville, NY 11747, Phone: 631-367-7100, Fax: 631-367-1173, E-mail: srudman@lerachlaw.com and malba@lerachlaw.com; and (2) Robert I. Harwood and Samuel Kenneth Rosen of Wechsler Harwood, LLP, 488 Madison Avenue, 8th Floor, New York, NY 10022, Phone: 212-935-7400, Fax: 212 753-3630, E- mail: rharwood@whesq.com and srosen@whesq.com. Representing SINA Corp. and its directors and officers are Robert P. Varian and Jonathan B. Gaskin of the law firm of Orrick, Herrington & Sutcliffe LLP. VIACOM INC: Faces ERISA Violations Litigation in N.D. Tex. ---------------------------------------------------------- Viacom, Inc. is a defendant in a purported class action in the in the U.S. District Court for the Northern District of Texas, alleging violations of Employee Retirement Income Security Act (ERISA), according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. On Sept. 8, 2006, John Halaris filed a putative collective class action complaint under ERISA in the U.S. District Court for the Northern District of Texas purporting to act on behalf of all persons who were participants in or beneficiaries of the Blockbuster Investment Plan whose accounts included investments in Blockbuster, Inc. stock, at any time, since Nov. 15, 2003. Plaintiff asserts claims against: -- the company, -- the Viacom Investment Committee, -- the Viacom Retirement Committee, -- William A. Roskin, -- John R. Jacobs, -- Mary Bell, -- Bruce Lewis, -- Robert G. Freedline, -- Larry J. Zine, -- Keith M. Holtz, -- Barbara Mickowski, -- Dan Satterthwaite, -- Phillipe P. Dauman, -- Sumner M. Redstone, -- Richard Bressler, -- Michael D. Fricklas, -- John L. Muething, -- Linda Griego, -- Jackie M. Clegg, -- John F. Antioco, -- Peter A. Bassi, -- Robert A. Bowman, -- Gary J. Fernandes, -- Mel Karmazin, -- Blockbuster, -- the Blockbuster Retirement Committee, and -- the Blockbuster Investment Committee. Plaintiff claims that the above-named defendants breached their fiduciary duties in violation of ERISA. They seek declaratory relief, recovery of actual damages, court costs, attorney's fees, a constructive trust, restoration of lost profits to the Blockbuster Investment Plan and an injunction. The suit is "Halaris v. Viacom Inc., et al., Case No. 3:06-cv- 01646," filed in the U.S. District Court for the Northern District of Texas under Judge David C. Godbey. Representing the plaintiffs is Thomas E. Bilek of Hoeffner & Bilek, 1000 Louisiana St., Suite 1302, Houston, TX 77002, Phone: 713/227-7720, Fax: 713/227-9404, E-mail: tbilek@hb-legal.com. Representing the defendants is Kenneth P. Held of Vinson & Elkins, 1001 Fannin St., Suite 2300, Houston, TX 77002-6760, Phone: 713/758-4353, Fax: 713/615-5219, E-mail: kheld@velaw.com. VIACOM INC: N.Y. ERISA Violations Suit Transferred to Tex. Court ---------------------------------------------------------------- A putative collective class action against Viacom, Inc., alleging violations of the Employee Retirement Income Security Act (ERISA) that was originally filed in the U.S. District Court for the Southern District of New York was transferred to the U.S. District Court for the Northern District of Texas. On Nov. 16, 2005, Katherine Corthon filed a complaint in the U.S. District Court for the Southern District of New York on behalf of all any participants in or beneficiaries of the Blockbuster Investment Plan whose accounts included investments in Blockbuster, Inc. stock, at any time, since Nov. 15, 2003. Plaintiff has filed her claim against: -- the company, -- the Viacom Retirement Committee, -- Keith M. Holtz, -- Barbara Mickowski, -- Dan Satterthwaite, -- Phillip P. Dauman, -- Sumner M. Redstone, -- Richard Bressler, -- Michael D. Fricklas, -- John L. Muething, -- Linda Griego, -- Jackie M. Clegg, -- John F. Antioco, -- Peter A. Bassi, -- Robert A. Bowman, -- Gary J. Fernandes, -- Mel Karmazin and unnamed "John Doe," and -- members of the Viacom and Blockbuster Retirement Committees. The suit claims that the defendants breached their fiduciary duties in violation of ERISA. Plaintiff seeks declaratory relief, recovery of actual damages, court costs, attorney's fees, a constructive trust, restoration of lost profits to the Blockbuster Investment Plan and an injunction. On Aug. 18, 2006, this suit was transferred to the U.S. District Court for the Northern District of Texas, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is "Corthon v. Viacom, Inc et al., Case No. 3:06-cv- 01581," filed in the U.S. District Court for the Northern District of Texas under Judge David C. Godbey. Representing the plaintiffs is Lee Squitieri of Squitieri & Fearon, LLP, 32 East 57th Street, 12th Floor, New York, NY 10022, Phone: (212) 421-6492, Fax: (212)-421-6553, E-mail: lee@sfclasslaw.com. Representing the defendants are: (1) Michael Allen Birrer, David Steven Coale and Peggy Glenn-Summitt of Carrington, Coleman, Sloman & Blumenthal, L.L.P., 200 Crescent Court, Suite 1500, Dallas, TX 75201, Phone: (214) 855-3113, (214) 855-3000 and (214) 855-3072, Fax: (214) 855-1333, E-mail: mbirrer@ccsb.com and psummitt@ccsb.com; and (2) Brian Howard Polovoy of Shearman & Sterling, LLP, (New York), 599 Lexington Avenue, New York, NY 10022, Phone: (212) 848-4000, Fax: (212) 848-7179, E-mail: bpolovoy@shearman.com. ZURICH FINANCIAL: $121.8M Antitrust Suit Deal Gets Initial Okay --------------------------------------------------------------- A notice is being published regarding the $121.8 million settlement of the Insurance Brokerage Antitrust Litigation that is pending before the U.S. District Court District of New Jersey. On Nov. 8, the court issued an order preliminarily certifying a class for settlement purposes and preliminarily approving a proposed settlement. Case Background Beginning in August 2004, numerous putative class actions were filed against various insurance brokers and insurers. In August 2005, Zurich Financial Services Group, Zurich American Insurance Co., Steadfast Insurance Co., Fidelity and Deposit Company of Maryland, Empire Fire and Marine Insurance Co., American Guarantee and Liability Insurance Co., Empire Indemnity Insurance Co., and Assurance Company of America were added to the class actions as defendants. The class actions allege that the brokers and insurers engaged in conduct that, among other things, violated federal and state statutes and common law. These putative class actions have been consolidated into this multidistrict proceeding. In a May 25, 2005 order, the court appointed the law firms of Milberg Weiss Bershad & Schulman LLP and Miller Faucher and Cafferty LLP as co-lead counsel for plaintiffs. In a July 17, 2006 order, the court substituted the law firm of Whatley, Drake & Kallas, LLC, for the law firm of Milberg Weiss Bershad & Schulman, LLP, as co-lead counsel. Plaintiffs allege that the defendants "engaged in a combination and conspiracy to suppress and eliminate competition in the sale of insurance by coordinating and rigging bids for insurance policies, allocating insurance markets and customers and raising, or maintaining or stabilizing premium prices above competitive levels." On Oct. 14, 2005, the Zurich defendants and plaintiffs entered into a memorandum of understanding setting forth the principal terms of a settlement of the action. Certified Class On Nov. 8, the court certified a settlement class consisting of all individuals or entities, who, during the period of time from Aug. 26, 1994 through Sept. 1, 2005, inclusive, engaged the services of: (i) one of the Broker Defendants or any subsidiary or affiliate of a broker defendant in connection with a settlement class policy purchase from any Zurich Insurer, any insurer defendant or any insurance company that is not an affiliate or subsidiary of a Zurich Insurer; or (ii) any other broker in connection with a settlement class policy purchase from any Zurich insurer. The court scheduled a fairness hearing for Jan. 26, 2007 at 11:00 a.m. EST in Courtroom No. 1, U.S. Post Office and Courthouse, Federal Square, Newark, New Jersey. Claim filing is until June 12, 2007. Deadline for exclusion and objection is Jan. 11, 2007. A copy of the court's Nov. 8 Order is available for free at: http://ResearchArchives.com/t/s?177a A copy of the Settlement Notice is available at: http://ResearchArchives.com/t/s?177b On the Net: http://www.insurancebrokerageantitrustlitigation.com/zurich/ The suit is "In Re: Insurance Brokerage Antitrust Litigation, MDL No. 1663, Civil No. 04-5184 (FSH)," filed in the U.S. District Court District of New Jersey under Judge Faith S. Hochberg. Settlement Administrator: Complete Claim Solutions, LLC P.O. Box 24721 West Palm Beach, FL 33416 Toll Free: 1-866-722-3544 International: 001-612-359-7999 Asbestos Alert ASBESTOS LITIGATION: Board Ruling in O'Dell Case Upheld in N.Y. --------------------------------------------------------------- The New York Supreme Court, Appellate Division, Third Department, affirmed a Workers' Compensation Board decision, which had ruled that Donald O'Dell's retirement was not causally related to his disability and is therefore not entitled to post- retirement lost wages. The Panel, comprised of Justices D. Bruce Crew III, Karen K. Peters, Carl J. Mugglin, Robert S. Rose, and John A. Lahtinen, handed down the case's decision on Nov. 30, 2006. In 1995, Mr. O'Dell had surgery for the removal of a benign mass from his right lung. He said he had breathing difficulties, prompting him to retire from Consolidated Edison Inc. in November 1996 after 43 years of service. In October 1999, Mr. O'Dell was diagnosed with pulmonary asbestosis and asbestos-related pleural disease, which, the evaluating physician said, was causally related to his employment. Mr. O'Dell applied for workers' compensation benefits and, after various hearings, a Workers' Compensation Law Judge (WCLJ) found that he was permanently partially disabled from work-related asbestosis and that his retirement was caused by the disability. The WCLJ further found, based on Mr. O'Dell's subsequent failure to find work within the restrictions of his disability, that Mr. O'Dell voluntarily withdrew from the labor market after his retirement. Although a Board panel affirmed the WCLJ's decision, the Board modified, finding that Mr. O'Dell's retirement was not due to his causally related disability. On June 22, 2005, Mr. O'Dell appealed. The Appellate Court concluded that the Board's finding that Mr. O'Dell's retirement was voluntary is supported by evidence and that it will not be disturbed. Mr. O'Dell's remaining arguments have been examined and found to be lacking in merit. Timothy J. Rogers of Polsky, Shouldice & Rosen, P.C. of Rockville Centre, N.Y. represented Donald O'Dell. David W. Faber of Cherry, Edson & Kelly of Hempstead, N.Y. represented Consolidated Edison Inc. and another respondent. ASBESTOS LITIGATION: Johnson Controls Lists $39M for York Claims ---------------------------------------------------------------- Johnson Controls Inc., as of Sept. 30, 2006, recorded US$39 million for subsidiary York International Inc.'s liability for estimated loss for known open asbestos-related claims. As of Sept. 30, 2006, the Company also recorded a US$8 million receivable for York's estimated recoveries from the Company's insurance carriers. Before the Company's acquisition of York, York had been named as a defendant in lawsuits alleging personal injury to one or more individuals from exposure to asbestos or asbestos-containing products made by York or by companies from which York bought product lines. In 2003, the Company was involved in an asbestos release during the renovation of a building in Lakeland, Fla. After an investigation, the U.S. Environmental Protection Agency turned its findings over to the U.S. Attorney for the Middle District of Florida. In November 2005, the U.S. Attorney advised the Company that it is considering proceedings against the Company, including proceedings that would involve criminal charges under the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act. The Company said that the release was inadvertent and that this should not be a criminal matter. Headquartered in Milwaukee, Wis., Johnson Controls Inc. makes car seats, interior systems, and batteries, as well as environmental control systems for commercial buildings and HVAC systems through subsidiary York International Inc. ASBESTOS LITIGATION: Claims v. Zurn Ind. Drop to 46,200 in 3Q06 --------------------------------------------------------------- Jacuzzi Brands Inc., as of Sept. 30, 2006, recorded about 46,200 asbestos-related claims pending against its wholly owned subsidiary Zurn Industries Inc., compared with 69,900 claims as of Oct. 1, 2005. As of June 30, 2006, the Company recorded about 59,000 asbestos- related claims pending against Zurn, compared with 69,900 claims as of Sept. 30, 2005. (Class Action Reporter, Sept. 8, 2006) In 2006, about 6,400 new asbestos claims were filed against Zurn, compared with 10,400 in 2005. The pending claims against Zurn as of Sept. 30, 2006 were included in about 4,900 lawsuits, in which Zurn and about 80 other companies were named as defendants. The claims cumulatively alleged damages of about US$11.2 billion against all defendants. In 2006 and as of the end of the period, about 16,300 claims were paid and pending payment and about 24,600 claims were dismissed and pending dismissal. In 2005 and as of the end of the period, about 17,000 claims were paid and pending payment and about 13,600 claims were dismissed and pending dismissal. Since Zurn received its first asbestos claim in the 1980s, Zurn has paid or dismissed or agreed to settle or dismiss about 146,000 asbestos claims including dismissals or agreements to dismiss of about 48,900 of those claims through the end of 2006. Zurn has paid or dismissed or agreed to settle or dismiss about 115,900 asbestos claims including dismissals or agreements to dismiss of about 23,900 of those claims through the end of 2005. At Sept. 30, 2006, the Company recorded US$136 million asbestos liability, compared with US$153 million at Sept. 30, 2005. Of the US$136 million, Zurn expects to pay about US$102 million through 2016 on those claims. Zurn estimated that its available insurance to cover its potential asbestos liability as of Sept. 30, 2006 was about US$286 million. Zurn estimated that its available insurance to cover its potential asbestos liability as of Oct. 1, 2005 was about US$293 million. As of Sept. 30, 2006, Zurn recorded a receivable from its insurance carriers of US$136 million, compared with US$153 million as of Oct. 1, 2005. At the time of Zurn's acquisition in June 1998, Zurn had owned various subsidiaries. Zurn co-defends in asbestos related lawsuits pending in the United States. Plaintiffs' claims alleged personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn that has been accounted for as a discontinued operation. Zurn bought asbestos from its suppliers. Headquartered in West Palm Beach, Fla., Jacuzzi Brands Inc. makes and distributes bath and plumbing products. The Company sells its products worldwide, although the U.S. accounts for almost three-fourths of sales. ASBESTOS LITIGATION: BJ Services Faces 4 Suits in Miss. Courts -------------------------------------------------------------- BJ Services Co. continues to face four asbestos-related lawsuits filed in the Circuit Courts of Jones and Smith Counties in Mississippi, according to the Company's annual report, on Form 10-Q, for the year ended Sept. 30, 2006 filed with the U.S. Securities and Exchange Commission. In August 2004, certain Company predecessors, along with other defendants were named in the four suits, which included 118 individual plaintiffs. The plaintiffs alleged that they suffer illnesses from exposure to asbestos and seeking damages. The suits asserted claims of unseaworthiness, negligence, and strict liability, all based on the status of the Company's predecessors as Jones Act employers. About 25 plaintiffs have identified the Company or its predecessors as their employer. Four individuals against the Company filed amended suits and the remainder of the original 114 claims was dismissed. Of these four suits, three did not name the Company as an employer or manufacturer of asbestos containing products so the Company was dismissed. Subsequently an individual from one of these suits brought his own action against the Company. As a result, the Company is currently named an employer in two of the Mississippi suits. In addition to the Jones Act cases, the Company has been named in a small number of asbestos cases. The allegations in these cases vary, but generally included claims that the Company provided some unspecified product or service, which had or used asbestos. Some of the allegations involved claims that the Company is the successor to the Byron Jackson Co. To date, the Company has obtained dismissals of those cases without any payment in settlements or judgments, although some remain pending at the present time. Headquartered in Houston, Tex., BJ Services Co. provides pressure-pumping services used to protect oil formation, wellbore, and casing pipe during drilling and well completion. The Company operates onshore and offshore in most of the world's major oil and gas producing regions. ASBESTOS LITIGATION: Trial v. Chase Postponed, No New Date Set -------------------------------------------------------------- An asbestos-related trial, set to commence on April 30, 2007, against Chase Corp. has been postponed and no new trial date has been set, according to the Company's annual report, on Form 10- K, for the year ended Aug. 31, 2006 filed with the U.S. Securities and Exchange Commission. The Company is one of more than 100 defendants in a personal injury lawsuit, pending in Ohio, which alleged personal injury from exposure to asbestos found in certain Company products. The plaintiff in the case issued discovery requests to Chase in August 2005, to which Chase timely responded in September 2005. The Ohio lawsuit has been inactive with respect to Chase. The Company had been a defendant in another personal injury suit in Mississippi alleging injury from exposure to asbestos found in certain Company products. However, the Company was dismissed without prejudice from that suit in June 2005. Headquartered in Bridgewater, Mass., Chase Corp. makes tapes and protective coatings used by the electronic, public utility, and oil industries. Products include insulating and conducting materials, electrical repair tapes, protective pipe coatings, thermoelectric insulation, and moisture protective coatings. ASBESTOS LITIGATION: DuPont Sees $60M Insurance Recovery in 4Q -------------------------------------------------------------- E. I. du Pont de Nemours and Co. expects to record, in the 2006- 4th quarter, an estimated benefit of about US$60 million, pre- tax, from insurance recoveries related to asbestos litigation expenses incurred by the Company in prior periods and additional Hurricane Katrina insurance recoveries. On Dec. 11, 2006, the Company issued a press release updating its 2006-4th quarter earnings outlook for significant items. The Company said that these items will be included in its 2006- 4th quarter reported earnings, providing a net benefit of about US$370 million to net income, or US$0.39 per share, and that the Company anticipates 2006 reported earnings per share to be about US$3.25 per share. Headquartered in Wilmington, Del., E. I. du Pont de Nemours and Co.'s five business units produce coatings, crop protection chemicals and genetically modified seeds, electronic materials, polymers and resins for packaging and other uses, and safety and security materials and chemicals. ASBESTOS LITIGATION: Met-Pro Corp. Has 40 Pending Cases at 3Q06 --------------------------------------------------------------- Met-Pro Corp., as of Oct. 31, 2006, recorded a total of 40 pending asbestos-related cases, compared with 151 pending cases as of Oct. 31, 2005. In the fiscal quarter ended Oct. 31, 2006, four new cases were filed against the Company, and the Company was dismissed from or settled six cases. Starting 2002, the Company and one of its divisions were named as defendants in asbestos-related lawsuits filed mostly in Mississippi. These cases were filed on a mass basis by large numbers of plaintiffs against a large number of industrial firms including in particular those in the pump and fluid handling industries. More recently, the Company and this division have been named pump and fluid-handling defendants in asbestos-related suits filed in New York and Maryland by individual plaintiffs. To a lesser extent, the Company and this division have also been named with many other pump and fluid handling defendants in these types of cases in other states as well. The Company and the division have been dismissed from or settled a number of these cases. Through Oct. 31, 2006, the sum total of payments made to settle these cases is US$305,000, all of which has been paid by the Company's insurers, with an average cost per settled claim of about US$28,000. Most of the pending cases have not advanced beyond the early stages of discovery, although several cases are on schedules leading to trial. Headquartered Harleysville, Pa., Met-Pro Corp.'s operations are conducted in two business segments: the manufacture and sale of product recovery-pollution control equipment, and the making and sale of fluid handling equipment. ASBESTOS LITIGATION: Pending Cases v. Tyco Int'l. Rise to 15,500 ---------------------------------------------------------------- Tyco International Ltd., as of Sept. 29, 2006, recorded about 15,500 asbestos liability cases pending against it and its subsidiaries, according to the Company's annual report, on Form 10-K, for the year ended Sept. 29, 2006. As of June 30, 2006, the Company and its subsidiaries recorded about 15,000 pending asbestos-related liability cases. (Class Action Reporter, Sept. 1, 2006) The Company and some of its subsidiaries face personal injury lawsuits based on alleged exposure to asbestos-containing materials. Most of these cases have been filed against subsidiaries in Healthcare and Engineered Products and Services. A limited number of the cases alleged premises liability, based on claims that individuals were exposed to asbestos while on a subsidiary's property. Most of the cases involve product liability claims, based on allegations of past distribution of heat-resistant industrial products with asbestos or the past distribution of industrial valves that had asbestos-containing gaskets or packing. The Company's involvement in asbestos cases has been limited because its subsidiaries did not mine or produce asbestos. Furthermore, in the Company's experience, a large percentage of these claims were never established and have been dismissed by the courts. When appropriate, the Company settles claims. However, the total amount paid in any year to settle and defend all asbestos claims has been immaterial. Headquartered in Princeton, N.J., Tyco International Ltd. offers security and fire-protection systems. The Company has been reorganized into five main business segments: Fire and Security; Electronics; Healthcare; Engineered Products and Services; and Plastics & Adhesives. ASBESTOS LITIGATION: Lucent Technologies Faces Exposure Lawsuits ---------------------------------------------------------------- Lucent Technologies Inc. continues to face asbestos-related lawsuits, which involved exposure to asbestos in premises owned or operated by the Company or by its business predecessors or in products made or sold by the Company or its predecessors. AT&T Corp. and Western Electric Manufacturing Co. were identified as two of the Company's predecessors. The Company has experienced an increase in the number of asbestos claims asserted against it, and these claims are on the rise in the United States against owners or operators of premises or companies that made or sold products allegedly with asbestos. Historically, the Company has not paid any material amounts related to asbestos claims. Headquartered in Murray Hill, N.J., Lucent Technologies Inc. designs and delivers the systems, software and services that drive next-generation communications networks. The Company is supported by Bell Labs research and development. ASBESTOS LITIGATION: Genesis HealthCare Records $5.3M Liability --------------------------------------------------------------- Genesis HealthCare Corp., at Sept. 30, 2006, recognized an asbestos-related liability for the fair value of the related asset retirement obligation totaling about US$5.3 million. The Company is subject to federal, state and local statutes and ordinances regulating the discharge of materials into the environment. Certain of the Company's real estate assets contain asbestos. The Company said the asbestos is contained in accordance with environmental regulations. If these properties were demolished or subject to renovation activities that disturb the asbestos, certain environmental regulations are in place that specify the manner in which the asbestos must be handled and disposed. COMPANY PROFILE Genesis HealthCare Corp. 101 E. State St. Kennett Square, Pa. 19348 Phone: 610-444-6350 Fax: 610-925-4000 http://www.genesishcc.com Fiscal Year-End: September 2005 Sales (mil.): US$1,711.4 1-Year Sales Growth: 11.9 percent 2005 Net Income (mil.): US$46.1 1-Year Net Income Growth: 58.5 percent 2005 Employees: 35,000 1-Year Employee Growth: 0.0 percent Description: The Company provides health care services to the elderly. It operates about 200 assisted living and skilled nursing facilities, as well as 13 transitional care units in 12 states, mostly in the eastern United States. The Company also offers respiratory therapy, Alzheimer's care, dialysis, and home and hospice care. ASBESTOS LITIGATION: Cabot Faces 63T Claims in Respirator Suits --------------------------------------------------------------- Cabot Corp.'s subsidiary, as of Sept. 30, 2006, recorded about 63,000 claimants in pending respirator cases asserting asbestos and silica exposure, according to the Company's annual report, on Form 10-K, for the year ended Sept. 30, 2006 filed with the U.S. Securities and Exchange Commission. As of June 30, 2006, the Company's subsidiary recorded about 76,000 claimants in pending respirator cases asserting asbestos and silica exposure. (Class Action Reporter, Sept. 8, 2006) The Company has exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corp. in an April 1990 asset purchase transaction. These respirator liabilities involved claims for personal injury, including asbestosis and silicosis, from the use of respirators that allegedly have been negligently designed or labeled. The Company has recorded on a net present value basis an US$18 million reserve, US$28 million on an undiscounted basis, to cover its estimated share of liability for pending and future respirator claims. Headquartered in Boston, Mass., Cabot Corp. produces carbon black, a reinforcing and pigmenting agent used in tires, inks, cables, and coatings. ASBESTOS LITIGATION: Scotts Miracle-Gro Still Faces Injury Suits ---------------------------------------------------------------- The Scotts Miracle-Gro Co. continues to be a defendant in cases alleging injuries that the lawsuits claimed resulted from exposure to asbestos-containing products, based on the Company's historic use of vermiculite in certain of its products. The complaints in these cases are not specific about the plaintiffs' contacts with the Company or its products. The Company in each case is one of numerous defendants and none of the claims seek damages from the Company alone. The Company is reviewing agreements and policies that may provide insurance coverage or indemnity as to these claims and is pursuing coverage under some of these agreements. Headquartered in Marysville, Ohio, The Scotts Miracle-Gro Co., formerly The Scotts Co., makes and markets horticultural and turf products. Its garden and indoor plant care items include grass seeds, fertilizers, herbicides, potting soils, and related tools. ASBESTOS LITIGATION: Grace's Product Poses No Risks, Court Says --------------------------------------------------------------- The U.S. Bankruptcy Court for the District of Delaware, on Dec. 14, 2006, issued an order from the "ZAI Science Trial," stating that W.R. Grace & Co.'s former attic insulation product, Zonolite Attic Insulation is contaminated with asbestos and can release asbestos fibers when disturbed, but that there is no unreasonable risk of harm. In a memorandum opinion accompanying the order, the Bankruptcy Court scheduled a status conference for January 2007 to consider whether any of the claimants' theories of liability still need to be addressed and what claims may still remain. Headquartered in Columbia, Md., W.R. Grace & Co. has restructured from six product groups into two major units. Grace's Davison Chemicals unit makes silica-based products, chemical catalysts, and refining catalysts that help produce refined products from crude oil. Its Performance Chemicals unit makes concrete and cement additives, packaging sealants, and fireproofing chemicals. ASBESTOS LITIGATION: Hardie's NSW Plant to Reopen, Expert Says -------------------------------------------------------------- An independent expert, hired by James Hardie Industries N.V. to check the presence of asbestos materials at its Rosehill manufacturing plant, concluded that the plant's main production building could be reopened, according to a Company press release dated Dec. 12, 2006. The investigation examined airborne fiber concentrations and possible contamination of settled dust and residues within the site. The Company closed the site, located in New South Wales, while these investigations were conducted. Some contamination of settled dust by asbestos fibers was identified in the raw materials store. "We erred on the side of caution by closing the plant to seek professional advice on the concerns raised by union representatives," said Shane Dias, General Manager of James Hardie Australia. "The temporary closure has had minimal impact on our customers and all employees have been paid whilst the investigation was carried out," Mr. Dias said. Headquartered in Sydney, Australia, James Hardie Industries N.V. uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding, external cladding, walls, fencing, and roofing. The Company makes fiber-reinforced concrete pipe through its Hardie Pipe business and roofing through Artisan Roofing. ASBESTOS LITIGATION: Miss. Court Grants Grace's Motion to Compel ---------------------------------------------------------------- The U.S. District Court, S.D. Mississippi, Southern Division granted W.R. Grace & Co.'s motion to compel, and ordering N & M Inc. to produce a representative for deposition in an asbestos- related civil action. On Dec. 13, 2006, District Judge Walter J. Gex III handed down the decision of Civil Action No. 1:06mc602WJG. Grace contended that N & M screened claimants for alleged asbestos-related disease and may have generated unreliable and unsupported litigation claims as a result. Grace sought discovery from N & M related to matters that the U.S. Bankruptcy Court for the District of Delaware found relevant to the estimation of Grace's asbestos personal injury liability. Grace asserted that N & M refused to produce a corporate representative for deposition claiming a Fifth Amendment privilege. Grace was instructed by the Bankruptcy Court to seek discovery of screening and diagnostic practices from doctors who possessed the relevant information regarding screening and diagnostic practices. Grace attempted to schedule a deposition and was unable to procure a representative from N & M. According to N & M, it is a Mississippi corporation, which engaged in screening or testing for industrial diseases, including pulmonary injuries and diseases. Grace contended that N & M is still a corporation under Mississippi law, and is currently, as of Oct. 17, 2006, in good standing with the Mississippi Secretary of State's office. The Court concluded that Grace's motion to compel should be granted, in which N & M will produce a representative for deposition at a time and place designated by Grace within the jurisdiction of the Court. The Court also ordered that it retain limited jurisdiction over this matter for purposes of ensuring the deposition goes forward and that each party shall bear its respective costs associated with this motion. Mary Margaret Ratliff and Walter G. Watkins, Jr. of Forman, Perry, Watkins, Krutz & Tardy in Jackson, Miss. represented W.R. Grace & Co. Luke Dove of Dove & Chill in Jackson, Miss. represented N & M Inc. ASBESTOS LITIGATION: Injury Cases v. Corning Inc. Drop to 10,900 ---------------------------------------------------------------- Corning Inc. is named in about 10,900 cases, with about 42,700 claims, alleging injuries from asbestos, which have been covered by insurance. The Company faced about 11,300 cases, with about 43,600 claims, alleging asbestos-related injuries, which have been covered by insurance. (Class Action Reporter, June 9, 2006) The Company and PPG Industries Inc. each own 50 percent of the capital stock of Pittsburgh Corning Corp. Over a period of more than two decades, PCC and several other defendants have been named in lawsuits involving claims alleging personal injury from exposure to asbestos. On April 16, 2000, PCC filed for Chapter 11 reorganization in the U.S. Bankruptcy Court for the Western District of Pennsylvania. As of the filing, PCC had in excess of 140,000 open claims and had insufficient remaining insurance and assets to deal with its alleged current and future liabilities. More than 100,000 additional claims have been filed with PCC after its filing. As a result of PCC's bankruptcy filing, the Company recorded an after-tax charge of US$36 million in 2001 to fully impair its investment in PCC and discontinued recognition of equity earnings. At the time PCC filed for bankruptcy protection, there were about 12,400 claims pending against the Company in state court suits alleging various theories of liability based on exposure to PCC's asbestos products and requesting monetary damages in excess of US$1 million per claim. The Company has defended those claims on the basis of the separate corporate status of PCC and the absence of any facts supporting claims of direct liability arising from PCC's asbestos products. Headquartered in Corning, N.Y., Corning Inc. makes fiber-optic cable, which it invented more than 30 years ago. Once known mainly for its kitchenware and lab products, the Company now provides optical fiber and cable products and communications network equipment. Other business segments include environmental technologies and life sciences. ASBESTOS LITIGATION: Corning Reports $13M Expense for Settlement ---------------------------------------------------------------- Corning Inc., in the 2006-3rd quarter, recorded asbestos settlement expense of US$13 million, including US$6 million reflecting the increase in the value of the Company's common stock from June 30, 2006 to Sept. 30, 2006. The Company also recorded US$7 million to adjust the estimated fair value of the other components of the proposed asbestos settlement. In the 2005-3rd quarter, the Company recorded asbestos settlement expense of US$73 million, including US$68 million for the increase in the value of Corning's common stock from June 30, 2005 to Sept. 30, 2005, and a US$5 million charge to adjust the estimated fair value of the other components of the proposed asbestos settlement. For the nine months ended Sept. 30, 2006, the Company recorded asbestos settlement expense of US$137 million, including US$119 million reflecting the increase in the value of the Company's common stock since Dec. 31, 2005, and US$18 million to reflect changes in the estimated fair value of other components of the settlement offer. For the nine months ended Sept. 30, 2005, the Company recorded asbestos settlement expense of US$204 million, including US$189 million reflecting the increase in the value of the Company's common stock from Dec. 31, 2004 to Sept. 30, 2005, and US$15 million to reflect changes in the estimated fair value of the other components of the proposed asbestos settlement. Headquartered in Corning, N.Y., Corning Inc. makes fiber-optic cable, which it invented more than 30 years ago. Once known mainly for its kitchenware and lab products, the Company now provides optical fiber and cable products and communications network equipment. Other business segments include environmental technologies and life sciences. ASBESTOS LITIGATION: Owens Corning Reserves $7B for Claims in 3Q ---------------------------------------------------------------- Owens Corning, as of Sept. 30, 2006, reserved a total of US$7 billion for asbestos litigation claims, according to the Company's quarterly report, on Form 10-Q, for the period ended Sept. 30, 2006 filed with the U.S. Securities and Exchange Commission. The Company, as of Sept. 30, 2006, recorded US$3.237 billion for Fibreboard Corp. asbestos litigation claims. In the 2005-1st quarter, the U.S. District Court for the District of Delaware provided an estimate of US$7 billion for the Company's contingent personal injury asbestos liability. The Company determined that an additional US$907 million liability should be recorded for Fibreboard, bringing the total reserve recorded for Fibreboard to US$3.216 billion. The total provision recorded for asbestos litigation claims during the 2005-1st quarter was US$4.342 billion. In the quarter ended Sept. 30, 2006, the Company resolved a matter related to Fibreboard asbestos personal injury claims and insurance assets and recorded a US$13 million net credit for asbestos litigation recoveries. Moreover, the Company adjusted its insurance receivable to reflect settlements with insurance carriers and adjusted its insurance receivable to reflect fair value and increased its reserve for asbestos-related property damage claims, which resulted in no impact to the provision for asbestos litigation claims for the nine months ended Sept. 30, 2006. Headquartered in Toledo, Ohio, Owens Corning makes fiberglass and composite materials. Its building materials unit makes thermal, acoustic and foam insulation, and exterior products like roofing shingles, vinyl windows and siding, stone veneer building products, housewrap, patio doors, and rain gutters. The Company's composite materials unit makes glass fiber materials that industrial customers combine with plastic resins to make composite products. ASBESTOS LITIGATION: Mahoney Sues 143 Companies in Ill. Court ------------------------------------------------------------- Richard Mahoney of Florida, on Dec. 15, 2006, sued 143 defendant corporations in Madison County Circuit Court in Illinois, claiming that those corporations were responsible for his mesothelioma, The Madison St. Clair Record reports. Mr. Mahoney claimed he was employed from the late 1940s to 2006 as a gas station attendant, boilermaker, maintenance worker, crane operator, assembler, steelworker, and machinery installer at various locations. Mr. Mahoney claimed he was diagnosed with mesothelioma on July 6, 2006, and asserted his exposure to asbestos was foreseeable and could or should have been anticipated by the defendants. Defendants include AutoZone Inc., Bondex Inc., DaimlerChrysler Corp., The Dow Chemical Co., Ford Motor Co., General Electric Co., The Goodyear Tire & Rubber Co., John Crane Inc., The Pep Boys - Manny, Moe & Jack, Sears, and Western Auto Supply Co. Mr. Mahoney claimed that while working and during home and automotive repairs he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers from certain products he was working with and around. Mr. Mahoney alleged that the defendants included asbestos in their products even when adequate substitutes were available and failed to provide any or adequate instructions concerning the safe methods of working with and around asbestos. Mr. Mahoney claimed that the defendants failed to require and advise employees of hygiene practices designed to reduce or prevent carrying asbestos fibers home. The complaint stated that Mr. Mahoney also suffers "great physical pain and mental anguish, and also will be hindered and prevented from pursuing his normal course of employment, thereby losing large sums of money." Mr. Mahoney seeks at least US$250,000 in damages for negligence, willful and wanton acts, conspiracy, and negligent spoliation of evidence among other allegations. Nathaniel Mudd and Perry Browder of SimmonsCooper in East Alton, Ill. represent Mr. Mahoney. The case has been assigned to Circuit Court Judge Daniel Stack. ASBESTOS LITIGATION: Green Files FELA Suit v. CSX Transportation ---------------------------------------------------------------- Arnold Green of Charleston, W.Va., on Dec. 1, 2006, filed an asbestos-related lawsuit against CSX Transportation Inc. in Kanawha Circuit Court in West Virginia, The West Virginia Record reports. In the suit filed on Dec. 1, 2006, Mr. Green alleged that his throat cancer resulted from working with CSX from 1969 to 1993. The complaint stated, "Upon beginning employment and while engaged in the course of his employment with CSX, Plaintiff was required and caused to work with and in the vicinity of toxic and/or pathogenic liquids, solids, dusts, fumes, vapors, mists or gases, including but not limited to asbestos and asbestos- containing products and materials, sand, rock dust, coal dust, welding fumes and diesel smoke and fumes which caused him to suffer sever, permanent and life-threatening injury to his person." Mr. Green charges CSX with a violation of the Federal Employer's Liability Act for not providing a "reasonably safe place to work." Mr. Green said CSX should have tested to see any harm that could occur as the result of asbestos fibers mixing with diesel smoke and fumes. Mr. Green seeks compensatory damages for medical expenses, great pain, extreme nervousness and mental anguish and adds that CSX violated the Locomotive Boiler Inspection Act by failing to provide a locomotive in a safe condition. Mark Wade of Wade Law Office in Oakmont, Pa., represents Mr. Green. A visiting judge will be assigned Kanawha Circuit Court case number 06-C-2574. ASBESTOS LITIGATION: Ace Ltd.'s Loss Reserves Increase by $200M --------------------------------------------------------------- ACE Ltd. said its gross loss reserve for potential asbestos claim at its Brandywine Holdings Corp. unit has increased by about US$200 million and said the reserve was adequately funded, Reuters reports. The Company did not disclose the total amount in the reserve. The Company also said an external review of its asbestos liabilities at Brandywine showed they were lower than two years ago. In 1999, the Company bought Brandywine as part of its acquisition of Cigna Corp.'s property and casualty operations. Brandywine holds run-offs -- policies that are no longer being sold but have claims that require payment. Chief Executive Evan Greenberg said judicial rulings were limiting the number of class action lawsuits being brought on behalf of people who claim to have been exposed to asbestos. The Company reduced its exposure to asbestos claims in 2006 by selling three subsidiaries to Randall & Quilter Investment Holdings Ltd., a firm specializing in handling the obligations of insurance companies in run-off. Headquartered in Hamilton, Bermuda, ACE Ltd., through its subsidiaries, sells property and casualty insurance and reinsurance in the U.S. and about 50 other countries. ASBESTOS LITIGATION: Hyogo Pipeworker's Family to Get Benefits ---------------------------------------------------------------- The family of an unnamed man from Hyogo Prefecture who died of lung cancer, allegedly caused by asbestos exposure, will receive survivor's benefits, even though he had not inhaled enough asbestos to qualify for compensation, The Daily Yomiuri reports. The Itami Labor Standard Inspection Office in Itami, Hyogo Prefecture, decided after questioning the man's ex-colleagues about his working conditions and concluding it was highly likely the man was exposed to asbestos on the job. The relatives are to receive the benefits despite the fact that the deceased did not meet the requirements of a new law designed to help bereaved families who failed to apply for workers compensation within the five-year statute of limitations. The man, who worked with water pipes, was diagnosed with lung cancer in 1995 and died of the disease in 1997 at the age of 56. Since the statute of limitations had already expired on the worker's compensation benefits, the man's widow applied to the labor office in April 2006 to receive the survivor's benefits based on the new law. The labor office then contacted the hospital where the man had received treatment and learned that it had preserved a portion of his lung tissue there. Through an inspection, about 1,500 asbestos fibers per gram of tissue were detected, which did not meet the benefit's criteria of more than 5,000 fibers per gram. However, the labor office applied a special exception that makes eligible those who engaged in asbestos-related work for more than 10 years. The labor office confirmed from the man's former colleagues that he worked with water pipes with asbestos for about 10 years. The office notified the man's wife that the benefits would be provided after concluding the man's work environment suggested a link between his lung cancer and asbestos. Under the new law, immediate family members of those victims can receive annual benefits of up to JPY3.3 million, or a lump-sum payment up to JPY12 million. ASBESTOS LITIGATION: Discovery of Hazard Closes Ore. DEQ Office --------------------------------------------------------------- The Oregon Department of Environmental Quality said that asbestos found in flooring material removed during the current renovation of its Bend, Ore. Office has forced the closure of the facility at 2146 NE Fourth St. until further notice, Bend Weekly reports. During the flooring's removal, part of a renovation project begun after a Dec. 1, 2006 fire in the building, asbestos fibers may have been released to the air. An Oregon licensed asbestos abatement contractor has been hired to perform air monitoring and, if necessary, the next steps required for safe removal of any asbestos-containing material. The DEQ office would remain closed until further notice pending evaluation by the asbestos abatement contractor. Asbestos is a respiratory hazard proven to cause lung cancer, mesothelioma, asbestosis and other respiratory diseases and is a hazardous air contaminant for which there is no known safe level of exposure. Removing asbestos-containing flooring can render it friable, or capable of releasing fibers into the air. ASBESTOS LITIGATION: Hanson PLC Expects 6,000 New Claims in 2006 ---------------------------------------------------------------- Hanson PLC expects that, for 2006, the number of new asbestos claimants would be around 6,000 compared with 10,350 in 2005, according to a Company report, on Form 6-K, for December 2006 filed with the U.S. Securities and Exchange Commission. The Company expects more than 11,000 claims to be resolved in the period, over 90 percent by dismissal, resulting in a net reduction in outstanding claimants of over 5,000 to about 126,000. For the second half of 2006, the Company expects the gross cost of settlement and legal fees to the first half of 2006, giving a full year gross cost of about US$55 million, which is above 2005 (US43.2 million) but below 2004 (US$59.3 million). The Company continues to provide for the next eight years at a gross cost of US$60 million p.a., equivalent to about GBP15 million p.a. after insurance secured to date and tax. Further insurance exists, but recognition remains subject to litigation and negotiation. The charge for the cost of asbestos of about GBP15 million will be offset by the one-off impact of additional insurance secured in the 2006-first half of GBP15 million. Headquartered in London, United Kingdom, Hanson PLC produces aggregates, ready-mixed concrete, bricks, and concrete pipe and building products. Other operations include quarries, marine dredging, and recycling. ASBESTOS LITIGATION: Nova Scotia Firm Says Not to Touch Asbestos ---------------------------------------------------------------- Pinchin LeBlanc Environmental Ltd., a Nova Scotia, Canada-based environmental firm, said asbestos found in Sydney, N.S. public housing units should remain undisturbed, unless the buildings undergo major renovations, CanadaEast Online reports. Pinchin LeBlanc said the asbestos, which has been sealed off in the attics of units in Whitney Pier and Ashby Terraces, should be checked. The Province of Nova Scotia hired Dartmouth, N.S.-based Pinchin LeBlanc in 2006 after the Cape Breton Island Housing Authority discovered the asbestos in insulation in the housing units. Air-monitoring tests conducted on the units found one asbestos fiber, while further tests found no traces. Dr. Ann Roberts, the regional medical officer of health, said it takes long-term exposure to high levels of asbestos to cause any illness. Ron LeBlanc, Company president, said, "The residents are as safe today with a good asbestos management plan as they would be if the insulation was removed." Pinchin LeBlanc said it is a standard industry approach to leave vermiculite insulation with asbestos untouched. ASBESTOS LITIGATION: New Yorker Indicted in Illegal Removal Act --------------------------------------------------------------- John Chick, a 64-year old New York man, has been indicted by a grand jury in the investigation in the alleged illegal asbestos removal at the Cayuga County Board of Elections Building in Auburn, N.Y., 9WSYR.com reports. The U.S. Attorney's Office said Mr. Chick has been indicted on charges of conspiring to violate the Clean Air Act and making false statements related to the alleged illegal removal. The U.S. Attorney's Office said he was involved in the alleged illegal removal in February 2006. Aside from the alleged removal, the U.S. Attorney's Office said Mr. Chick lied about using inmates at the Cayuga County prison to do some of the work. The U.S. Attorney's Office says he also lied about not denying their requests to wear dust masks during the work. If found guilty, Mr. Chick faces a maximum of five years in prison and a US$250,000 fine for each count. The Cayuga County Board of Elections Building was closed in August 2006 for asbestos testing. ASBESTOS LITIGATION: NICE Committee to Review Ban on Alimta Drug ---------------------------------------------------------------- The National Institute for Health and Clinical Excellence (NICE) said its appraisal committee would review the decision to block Alimta, a drug used for the treatment of mesothelioma, BBC News reports. NICE had said Alimta (pemetrexed disodium) should not be used in England and Wales. Alimta manufacturers Eli Lilly and Co. appealed the original ruling. NICE official Dr. Gillian Leng said, "The appeal mechanism is one of a series of checks and balances built into our appraisal process." Joanne Rule, chief executive of the charity Cancerbackup, said, "We are very pleased that NICE will be looking at this important treatment again, following the recent appeal." ASBESTOS LITIGATION: PPG Ind. Mulls Court Ruling Effect on Plan --------------------------------------------------------------- PPG Industries Inc.'s plan to resolve 116,000 asbestos-related lawsuits for under US$1 billion may be jeopardized by a U.S. Appeals Court ruling in 2004, Pittsburgh Tribune-Review reports. The Company's liabilities stem mostly from insulation made by its Pittsburgh Corning Corp. venture. The Company wants to put US$998 million in cash and stock into the trust proposed by Pittsburgh Corning as the exclusive fund to compensate victims. Pittsburgh Corning, a joint venture between the Company and Corning Inc., filed for bankruptcy protection in 2000. U.S. Bankruptcy Judge Judith K. Fitzgerald in Pittsburgh, Pa. has delayed a decision for more than two years, partly because the Appeals Court junked a similar move by Combustion Engineering Inc. Judge Fitzgerald said she will rule by Dec. 31, 2006. The Company may face higher costs to end the litigation if the Court says the company cannot confine its liability to the trust. Gene Pisasale, a senior analyst at Mercantile Bankshares in Baltimore, Md., said a ruling against the Company might hurt the shares of other companies facing asbestos suits. Other companies facing asbestos claims include chemicals maker W.R. Grace & Co. of Columbia, Md., and Federal-Mogul Corp., a bankrupt auto-parts maker in Southfield, Mich. Judge Fitzgerald said at a Nov. 17, 2006 hearing that she is writing her opinion. She said, "I think I have come to a resolution that I am now comfortable with." The Company's CEO, Charles Bunch, told investors in November 2006 that a ruling by Judge Fitzgerald would allow his company to settle its asbestos suits in 2007. Headquartered in Pittsburgh, Pa., PPG Industries Inc. makes coatings and sealants. The Company also makes glass and chemicals. PPG operates nearly 110 manufacturing facilities in more than 20 countries worldwide. It also operates more than 350 paint retail centers in the United States. ASBESTOS LITIGATION: Widow of Palmers Ltd. Worker Wins Payout ------------------------------------------------------------- Claire Welch, the widow of Barry Welch, who died from mesothelioma has won compensation from the former employer of her husband's stepfather, injurywatch.co.uk reports. The level of damages will be decided at a court hearing in 2007. Mr. Welch, from Leicester, U.K., was thought to have contracted mesothelioma after childhood exposure to asbestos. It was linked to dust and fibers brought home on overalls by his stepfather, Roger Bugby, from his workplace in Kent. Mr. Welch began legal action after being diagnosed with mesothelioma in May 2004. He died 11 months later, at the age of 32, but Mrs. Welch continued the fight for compensation. The action ended in November 2006 when insurance firm Zurich, on behalf of Mr. Bugby's former employer Palmers Ltd., admitted negligence. From 1977 to 1979, Mr. Bugby worked as a scaffolder at Kingsnorth Power Station. The young Mr. Welch would sit on Mr. Bugby's lap when he returned home. Law firm Irwin Mitchell, which represented Mr. and Mrs. Welch, said, "This exposure as a child led to Barry contracting mesothelioma in later life." In the inquest, Dr. Clive Muatero, consultant oncologist at Leicester Royal Infirmary, said it "would be reasonable" to assume that Mr. Welch's mesothelioma was caused by the childhood asbestos exposure. In 2005, a coroner ruled that Mr. Welch's death was accidental. ASBESTOS LITIGATION: Grace Moves to Ban N.Y. Time-Barred Claims ---------------------------------------------------------------- W.R. Grace & Co. and the other Debtors assert that because their cases are filed in Delaware, the Court should apply Delaware's choice of principles to determine the limitations period that governs 10 claims asserting damages caused by alleged asbestos- containing products installed in buildings located in New York. According to Laura Davis Jones, Esq., at Pachulski Stang Ziehl Young Jones & Weintraub, LLP, in Wilmington, Del., New York law applies to the 10 Claims since: (i) The subject properties are located in New York, and (ii) Delaware has no direct interest in the Claims. Under New York law, applicable limitations period is three years and the prescriptive period began to run when the W.R. Grace & Co. asbestos-containing products were allegedly installed in the subject properties. The alleged asbestos-containing products have been installed in 1973, thus the Claimants should have been filed claims in 1979 or before that. However, the Claimants waited 27 years to file the Claims. Under New York statute of limitations, the 10 Claims are time- barred, Ms. Jones asserts. Thus, the Debtors ask the Court to disallow and expunge the 10 Claims. (W.R. Grace Bankruptcy News, Issue No. 121; Bankruptcy Creditors' Service, Inc., 215/945-7000) ASBESTOS ALERT: Court Junks Buffalo Dismissal in Lindquist Suit --------------------------------------------------------------- The Rhode Island Superior Court, Providence County, denied Buffalo Pumps Inc.'s dismissal motion in an asbestos-related lawsuit filed by George and Najala Lindquist. Justice Alice Bridget Gibney handed down the decision of C.A. No. PC 06-2416 on Nov. 28, 2006. On May 2, 2006, Mr. and Mrs. Lindquist filed a lawsuit in Rhode Island Superior Court to recover damages they alleged to have suffered as a result of Mr. Lindquist's exposure to asbestos at work. Mr. Lindquist died after the filing of the suit. In the complaint, the Lindquists alleged that Mr. Lindquist was exposed to asbestos while he worked at Norton Co. in the 1960s and 1970s. While at Norton, Mr. Lindquist changed the packing and the gaskets located in and connected to the pumps made by Buffalo. Mrs. Lindquist alleged that Buffalo had a duty to warn of the reasonably foreseeable dangers related to the use and maintenance of these pumps and that it failed to do so. In its Motion for Summary Judgment, Buffalo argued that Mrs. Lindquist has not offered any evidence that Mr. Lindquist was exposed to an asbestos-containing product made by Buffalo, and that it cannot be held responsible for injury caused by products made by another company. The Court found that this case had triable issues of fact in relation to Buffalo's duty to warn of the dangers posed by the asbestos gaskets and packing used in its pumps. Accordingly, the Court denied Buffalo's Motion to Dismiss. COMPANY PROFILE Buffalo Pumps, Inc. 874 Oliver St. North Tonawanda, N.Y. 14120-3298 Phone: 716-693-1850 Fax: 716-693-6303 http://www.buffalopumps.com Fiscal Year-End: December Sales (mil.): US$127.9 (est.) Employees: 1,152 Description: The Company makes centrifugal pumps used in refrigeration and power generation and by the marine defense industries. The Company is a subsidiary of Ampco-Pittsburgh Corp. New Securities Fraud Cases ATRICURE INC: Brower Piven Announces N.Y. Securities Suit Filing ---------------------------------------------------------------- The law firm of Brower Piven announces that a securities class action was commenced on behalf of shareholders who purchased or otherwise acquired the common stock of AtriCure, Inc. pursuant and/or traceable to the company's initial public offering on Aug. 4, 2005 through Feb. 16, 2006. The action concerns the initial public offering of AtriCure common stock, which took place on or about Aug. 4, 2005. The case is pending in the U.S. District Court for the Southern District of New York against defendant AtriCure, Inc. and one or more of its officers and/or directors. The action charges that defendants violated federal securities laws by issuing a series of materially false and misleading statements to the market throughout the class period, which statements had the effect of artificially inflating the market price of the company's securities. No class has yet been certified in the above action. Interested parties may move the court no later than Feb. 9, 2007, for appointment as lead plaintiff for the proposed class. For more details, contact Brower Piven, The World Trade Center- Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-mail: hoffman@browerpiven.com. HANSEN NATURAL: Scott + Scott Files Calif. Securities Fraud Suit ---------------------------------------------------------------- Scott + Scott, LLP, filed a class action against Hansen Natural Corp. and certain officers and directors in the U.S. District Court for the Central District of California. The action is on behalf of Hansen securities purchasers during the period Nov. 12, 2001 through Nov. 9, 2006, for violations of the U.S. Securities Exchange Act of 1934. The complaint alleges that defendants made false and misleading statements and material omissions regarding the company's financial statements. As a result, the price of the company's securities was inflated during the class period, thereby harming investors. According to the complaint, during the class period, the price of Hansen stock was artificially inflated as a result of defendants' dissemination of false and misleading statements concerning the company's financial statements, which failed to disclose that stock options granted to defendants were fraudulently backdated, resulting in the improper recording of executive compensation and expenses. As revealed on Oct. 31, 2006, Hansen shocked the market when it disclosed that the company had received a letter from the U.S. Securities and Exchange Commission requesting that the company voluntarily produce certain documents and information relating to the company's stock option grant practices from Jan. 1, 1996 to the present. Then on Nov. 6, 2006, in response to the SEC's investigation of the company's wayward option grant award practices, the company announced that outside counsel and a special committee of Hansen's Board of Directors would commence an investigation. Following this, on Nov. 9, 2006, Hansen finally announced that it would fail to timely file SEC Form 10-Q for the quarter ended Sept. 30, 2006. As of result of this announcement, the price of Hansen stock tumbled 14.2%, losing $4.14 per share, to close at $24.88, on heavy trading volume of over 19.3 million shares. The plaintiff is represented by Scott+Scott, a firm with significant experience in prosecuting investor class actions. The firm dedicates itself to client communication and satisfaction and currently is litigating major securities, antitrust and employee retirement plan actions throughout the United States. The firm represents pension funds, charities, foundations, individuals and other entities worldwide. More information on this and other class actions can be found on the Class Action Newsline at www.primenewswire.com/ca Interested parties may move the court no later than Jan. 9, 2007, for appointment as lead plaintiff for the proposed class. For more details, contact Scott + Scott, LLP, Phone: (800) 404- 7770 and (860) 537-5537, E-mail: scottlaw@scott-scott.com, Web site: http://www.scott-scott.com. TOP TANKERS: Faruqi & Faruqi Announces Securities Suit Filing ------------------------------------------------------------- Faruqi & Faruqi, LLP, announces that a class action was filed in the U.S. District Court for the Southern District of New York on behalf of all purchasers of TOP Tankers, Inc. (TOPT) securities between June 28, 2005 and Nov. 28, 2006. A copy of the complaint filed in this action can be viewed on the firm's website at www.faruqilaw.com TOP Tankers and certain of its officers and directors are charged with issuing a series of materially false and misleading statements in violation of Section 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. On Nov. 29, 2006, TOP Tankers shocked investors when it announced that Ernst & Young, LLP, the company's independent auditors, had resigned over a disagreement related to its accounting for certain sale and lease back transactions, and that it would be forced to restate its financial results for the entire half of 2006. The news caused shares of TOP Tankers to fall almost 15% in the single trading day, to close just above $5.00 per share. The complaint alleges that TOP Tankers materially misrepresented and failed to disclose conditions that adversely affected the Company throughout the class period in order to: -- artificially inflate the price of Company shares by deceiving shareholders concerning TOP Tankers' financial results and business prospects; -- register for sale with the SEC, millions of shares of TOP Tankers stock, and to provide shareholders with a massive $7.50 dividend per share -- almost $40 million of which was paid to defendants and their families; and -- permit Kingdom Holdings, an entity owned by the family of defendant Evangelos Pistiolis, to liquidate almost 900,000 company shares during the class period. Plaintiff seeks to recover damages on behalf of himself and all other individual and institutional investors who purchased or otherwise acquired TOP Tankers securities between June 28, 2005 through Nov. 28, 2006, excluding defendants and their affiliates. Interested parties may move the court no later than Feb. 9, 2007, for appointment as lead plaintiff for the proposed class. For more details, contact Anthony Vozzolo, Esq. of Faruqi & Faruqi, LLP, Phone: (877) 247-4292 and (212) 983-9330, Web site: http://www.faruqilaw.com. ********* 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 researches, 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 Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *