/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/071026.mbx C L A S S A C T I O N R E P O R T E R Friday, October 26, 2007, Vol. 9, No. 213 Headlines AUSTRALIA: Woman Files Suit Over Metropolitan Growth Strategy BIOGEN IDEC: Plaintiffs Appeal Nixing of Mass. Securities Suit BRIDGECORP LTD: Investors Urged to Sue Financial Advisors BURLINGTON NORTHERN: Faces Antitrust Suits Over Fuel Surcharges CALIFORNIA SULLIVAN'S: Faces Workers Suit Over Rest, Meal Breaks CSX CORP: Faces Multiple Antitrust Lawsuits Over Fuel Surcharges LONE STAR: Faces Suits in Kans. Over Lone Star Fund Acquisition NEW CENTURY: Lowell, Ind. Clients Sue Over “Undisclosed” Terms OPTICAL COMMUNICATION: Settles Suit Over Oplink Merger Plan PERIGEUM DEVELOPMENT: Recalls Defective Bike Disc Brakes PRICEWATERHOUSECOOPERS: Accountants Sue to Recoup Overtime Pay REILLY PLATING: Faces New Suit Over Chemical Leak in Michigan SEAGATE TECHNOLOGY: Feb. 7 Hearing Set for “Cho” Suit Settlement SYSTEMAX INC: Tex. Consumer Files Fraud Suit Over Rebates TELSTRA: CEO to Testify in Suit Over Financial Disclosure T-MOBILE: Faces Wash. Suit Over Alleged Mandatory Text Messages VENTANA MEDICAL: Faces Suit Over Roche Holding's Tender Offer VENTANA MEDICAL: Nov. 19 Hearing Set for “Blazek” Suit in Ariz. WINN-DIXIE STORES: Recalls Mislabeled Chocolate Ice Cream YOUTUBE INC: “Tur” Case Dismissed, Plaintiff to Join N.Y. Suit New Securities Fraud Cases W HOLDING: Faces Securities Fraud Lawsuit in Puerto Rico ASBESTOS LITIGATION: Containment Completed at Nashua, N.H. Site ASBESTOS LITIGATION: Trigen Energy to Check Boston’s Steam Pipes ASBESTOS LITIGATION: Ex-Navy Sailor Gets $35.1M in Compensation ASBESTOS LITIGATION: U.K. Contractor Fined GBP10T for Exposure ASBESTOS LITIGATION: Factory Worker’s Death Linked to Asbestos ASBESTOS LITIGATION: Factory Worker’s Son to Keep GBP60T Payout ASBESTOS LITIGATION: Cytec Ind. Records $2.2M Charge at Sept. 30 ASBESTOS LITIGATION: Federal-Mogul Corp. Has $879.5M Recoverable ASBESTOS LITIGATION: PPG's Settlement Remains at $601M in Sept. ASBESTOS LITIGATION: Hogges’ Motion for Costs/Expenses Approved ASBESTOS LITIGATION: Honeywell Has $1.146B Liability at Sept. 30 ASBESTOS LITIGATION: Honeywell Int'l. Has $945M NARCO Receivable ASBESTOS LITIGATION: Honeywell Prevails in N.Y. Action on NARCO ASBESTOS LITIGATION: Honeywell Has 51,854 Bendix Claims at Sept. ASBESTOS LITIGATION: NARCO, Bendix Have $1.71B Sept. Liability ASBESTOS LITIGATION: Court Denies Union Carbide's Motion to Stay ASBESTOS LITIGATION: Worker Sues 44 Companies in Illinois Court ASBESTOS LITIGATION: Ill. Court Judge Closes More Than 200 Suits ASBESTOS LITIGATION: HSE Warns Employers on Asbestos Management ASBESTOS LITIGATION: Hardie Exec May Suffer “Injustice” on Case ASBESTOS LITIGATION: Court Upholds Ruling in Foster Wheeler Case ASBESTOS LITIGATION: Aussie SEC Ex-workers Called in for Study ASBESTOS LITIGATION: Insurance Industry Welcomes Ruling by Lords ASBESTOS LITIGATION: Ill. Worker Sues 49 Companies for Exposure ASBESTOS LITIGATION: West Japan Railway Workers Get Compensation ASBESTOS LITIGATION: Crane Records $250M Provision at Sept. 30 ASBESTOS LITIGATION: Crane’s Long-Term Liability Rises to $975M ASBESTOS LITIGATION: Everest Accrues $38.3M Reserve at Sept. 30 ASBESTOS LITIGATION: Court OKs Consolidation of Longview Actions ASBESTOS LITIGATION: Crane Has 81,251 Pending Claims at Sept. 30 ASBESTOS LITIGATION: Crane’s Appeal on Norris Case Still Pending ASBESTOS LITIGATION: Crane Incurs $64.7M for Settlement, Defense ASBESTOS LITIGATION: Crane Co. Records $351M Asset at Sept. 30 ASBESTOS LITIGATION: CertainTeed Has 75T Pending Claims at Sept. ASBESTOS LITIGATION: Grace to Pay $17.9M to 8 Asbestos Claimants ASBESTOS LITIGATION: Cleanup at Elementary School to Cost $95T ASBESTOS LITIGATION: Victims Lose Battle v. Hardie in High Court ASBESTOS LITIGATION: Claims v. Burlington Northern Drop to 1,903 ASBESTOS LITIGATION: CSX Corp. Has Claims Due to Hazard Exposure ASBESTOS LITIGATION: Owens-Illinois’ Liabilities Drop to $211.4M ASBESTOS LITIGATION: Hercules Records $46.8M Assets, Liabilities ASBESTOS LITIGATION: Grace Liability Still at $1.7B at Sept. 30 ASBESTOS LITIGATION: Sealed Air Corp. Liability Stays at $512.5M ASBESTOS LITIGATION: Widow Files Suit v. Chevron U.S.A. in Texas ASBESTOS LITIGATION: Court Overturns Dismissal of Brumley Case ********* AUSTRALIA: Woman Files Suit Over Metropolitan Growth Strategy ------------------------------------------------------------- Patricia Thirup of Leppington, NSW, Australia filed a class action in Federal Court against the State Government over its plan for the development of south-west Sydney that she claims robs landowners, Ilona Marchetta of The Camden Advertiser reports. Mrs. Thirup is calling for other small landowners who believe they have been financially discriminated against under the State Government's Metropolitan Growth Strategy to join. The strategy, which identifies parts of north-west and south- west Sydney as areas for development, makes several changes to area zonings to cater for new town centers and transport corridors. It also requires land to be acquired by the State Government. Mrs. Thirup calls for the case to be heard by a jury. She told The Camden Advertiser, “We think this of national interest, to the first-home buyer and to those who use their land for superannuation.” The Leppington resident, who has so far largely paid for the campaign for the plan to be changed, also told The Camden Advertiser that she had run out of money for the cause. BIOGEN IDEC: Plaintiffs Appeal Nixing of Mass. Securities Suit -------------------------------------------------------------- Plaintiffs in a purported securities fraud class action against Biogen Idec, Inc. are appealing the dismissal of the case to the U.S. Court of Appeals for the First Circuit. On March 2, 2005, the company, along with William H. Rastetter, former executive chairman, and James C. Mullen, chief executive officer, were named as defendants in a purported class action, captioned, "Brown v. Biogen Idec Inc., et al.," filed in the U.S. District Court for the District of Massachusetts. The complaint alleges violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The action is purportedly brought on behalf of all purchasers of the company's publicly-traded securities between Feb. 18, 2004 and Feb. 25, 2005. The plaintiff alleges that the defendants made materially false and misleading statements regarding potentially serious side effects of TYSABRI in order to gain accelerated approval from the U.S. Food and Drug Administration for the product's distribution and sale. The plaintiff alleges that these materially false and misleading statements harmed the purported class by artificially inflating the company's stock price during the purported class period and that company insiders benefited personally from the inflated price by selling the company's stock. The plaintiff seeks unspecified damages, as well as interest, costs and attorneys' fees. Substantially similar actions were also filed: -- "Grill v. Biogen Idec Inc., et al." and -- "Lobel v. Biogen Idec Inc., et al.," Other purported class representatives brought the suits on March 10, 2005 and April 21, 2005, respectively, in the same court. Those actions have been consolidated with the Brown case. On Oct. 13, 2006, the plaintiffs filed an amended consolidated complaint, which, among other amendments to the allegations, adds as defendants: -- Peter N. Kellogg, chief financial officer; -- William R. Rohn, former chief operating officer; -- Burt A. Adelman, executive vice president of Portfolio Strategy; and -- Thomas J. Bucknum, former general counsel. On Sept. 14, 2007, the District Court Judge entered an Order allowing the Motions to Dismiss of all defendants. On Sept. 28, 2007, the plaintiffs filed a Motion for Clarification of the Court’s Order Allowing Defendants’ Motion to Dismiss, in which they seek leave to amend their complaint. On Oct. 15, 2007, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the First Circuit, according to the company's Oct. 23, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is "Brown v. Biogen Idec Inc., et al., Case No. 1:05- cv-10400-RCL," filed in the U.S. District Court for the District of Massachusetts under Judge Reginald C. Lindsay. Representing the plaintiffs are: Shannon L. Hopkins, Esq. Mario Alba Jr., Esq. Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza, 49th Floor New York, NY 10119 Phone: 646-733-5768 Fax: 212-273-4445 E-mail: shopkins@milbergweiss.com - and - David Pastor, Esq. Gilman and Pastor, LLP 60 State Street, 37th Floor Boston, MA 02109 Phone: 617-742-9700 Fax: 617-742-9701 E-mail: dpastor@gilmanpastor.com Representing the company is: James R. Carroll, Esq. Skadden, Arps, Slate, Meagher & Flom One Beacon Street, 31st Floor Boston, MA 02108 Phone: 617-573-4800 Fax: 617-573-4822 E-mail: jcarroll@skadden.com BRIDGECORP LTD: Investors Urged to Sue Financial Advisors --------------------------------------------------------- Investors in the failed property development and finance company, Bridgecorp Ltd., were advised to instigate a class action against advisors who encouraged them to put money into it, Newstalk ZB reports. New Zealand-based Bridgecorp was placed in receivership on July 2, 2007, after failing to pay principal due to debenture holders. In that regard, John Waller and Colin McCloy, partners at PricewaterhouseCoopers, were appointed as receivers. The company owes around 1,800 debenture holders, which liquidators estimate to approximate NZ$500 million (Troubled Company Reporter – Asia, Oct. 16, 2007). As it was placed into receivership, Bridgecorp's nine Australian companies were placed into voluntary administration, owing about 100 investors an estimated aggregate of AU$24 million (NZ$27 million). In a recent meeting in Auckland, Stockbroker Chris Lee spoke to investors caught up in the Bridgecorp collapse. He told them their advisers should be taken to task, because in many cases they were either completely incompetent or even giving false guidance based on false information about Bridgecorp's situation. Mr. Lee pointed out that the Receiver will initiate action against all other parties including the directors of the company. Reports indicated that some advisors incorrectly told clients their investments were underwritten or insured by Lloyds of London. Some investors even claim that their money was put into Bridgecorp without their knowledge, and others say they were not warned it was a high-risk investment. BURLINGTON NORTHERN: Faces Antitrust Suits Over Fuel Surcharges --------------------------------------------------------------- Burlington Northern Santa Fe Corp. (BNSF) has been included along with other major U.S. railroads in a number of putative class actions alleging that the individual railroads violated the U.S. antitrust laws. Since May 14, 2007, 26 similar class action complaints have been filed in six federal district courts around the country against BNSF and four other Class I railroads (and, in some cases, the Association of American Railroads) alleging that they have conspired to fix fuel surcharges with respect to unregulated freight transportation services in violation of the antitrust laws. The suit is seeking injunctive relief and unspecified treble damages, according to the company's Oct. 23, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Burlington Northern Santa Fe Corp. -- http://www.bnsf.com/-- through its subsidiaries, is engaged primarily in the freight rail transportation business. BNSF transports a range of products and commodities derived from manufacturing, agricultural and natural resource industries. CALIFORNIA SULLIVAN'S: Faces Workers Suit Over Rest, Meal Breaks ---------------------------------------------------------------- California Sullivan's, Inc., a wholly-owned subsidiary of Lone Star Steakhouse & Saloon, Inc., which owned the Del Frisco's and Sullivan's concepts, faces a purported employees' class action in California, according to Del Frisco's Restaurant Group, LLC's Oct. 23, 2007 Form S-1 Filing with the U.S. Securities and Exchange Commission. On July 23, 2007, a lawsuit was filed in the Superior Court of the State of California as a class action against California Sullivan's, Inc., alleging certain violations of California Code of Regulations, in that employees did not receive required periodic rest and meal breaks. Wichita, Kansas-based Lone Star Steakhouse & Saloon, Inc. -- http://www.lonestarsteakhouse.com/-- owns and operates two mid- priced full service, casual dining restaurant concepts under the names, Lone Star Steakhouse & Saloon (Lone Star) and Texas Land & Cattle Steak House, in the U.S. In addition, the Company operates restaurants in the upscale steakhouse market under the Del Frisco's Double Eagle Steak House and Sullivan's Steakhouse names. CSX CORP: Faces Multiple Antitrust Lawsuits Over Fuel Surcharges ---------------------------------------------------------------- CSX Corp. has been included along with other major U.S. railroads in a number of putative class actions alleging that the individual railroads violated the U.S. antitrust laws, according to the company's Oct. 23, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 28, 2007. Since May 2007, at least 26 putative class action suits have been brought in various federal district courts against CSXT and the four other U.S.-based Class I railroads. The lawsuits contain substantially similar allegations to the effect that the defendants’ fuel surcharge practices relating to contract and unregulated traffic resulted from an illegal conspiracy in violation of antitrust laws. The suits seek unquantified treble damages allegedly sustained by purported class members, attorneys’ fees and other relief. All but three of the lawsuits purport to be filed on behalf of a class of shippers that allegedly purchased rail freight transportation services from the defendants through the use of contracts or through other means exempt from rate regulation during defined periods commencing as early as June 2003 and were assessed fuel surcharges. Three of the lawsuits purport to be on behalf of indirect purchasers of rail services. CSX Corp. -- http://www.csx.com-- is a transportation company. The Company owns companies providing rail, intermodal and rail- to-truck transload services, connecting more than 70 ocean, river and lake ports. CSX operates in two segments: rail and intermodal. LONE STAR: Faces Suits in Kans. Over Lone Star Fund Acquisition --------------------------------------------------------------- Lone Star Steakhouse & Saloon, Inc., which owned the Del Frisco's and Sullivan's concepts, faces purported class actions in Kansas with regards to the transaction where Lone Star was acquired by Lone Star Fund V (U.S.), L.P. On Sept. 8, 2006, a lawsuit was filed in the district court of Sedgwick County, Kansas as a class action against Lone Star Steakhouse & Saloon and the former directors of Lone Star Steakhouse & Saloon. An additional suit was also filed in the district court of Sedgwick County, Kansas on Nov. 17, 2006 that alleged substantially the same claims as the prior suit, and has been consolidated with the prior suit. The suit alleges that Lone Star Steakhouse & Saloon and its former directors breached their duty of disclosure with respect to the proxy statement delivered to former stockholders in connection with the transaction. The suit also alleges that the former directors of Lone Star Steakhouse & Saloon breached their fiduciary duties to the then stockholders of Lone Star Steakhouse & Saloon in connection with the acquisition of Lone Star Steakhouse & Saloon by Lone Star Fund. NEW CENTURY: Lowell, Ind. Clients Sue Over “Undisclosed” Terms -------------------------------------------------------------- New Century Mortgage Co. is facing a class-action complaint filed by a Lowell, Ind. couple wanting to rescind their $126,000 home-equity loan from the company, Joe Carlson of the Nwitimes.com reports. Kerry and Susan Burke claims the company did not disclose the terms of the deal. They filed the suit in the U.S. District Court for the District of Hammond. They are represented by Chicago class action lawyer Daniel Edelman. According to Mr. Carlson., the Burkes' case is based on a legal technicality. Although their mortgage paperwork states at least 11 times that the payments are monthly, a separate form called the Federal Truth-In-Lending Disclosure Statement does not explicitly make that statement. Rather, the Truth-In-Lending Act form only indicates 360 payments must be made during a 30-year period, the report said. The ability to rescind a mortgage for violating the Truth-in- Lending Act in this way only applies to home-equity loans, not mortgages used to buy new or existing homes. According to Mr. Edelman, the Burkes and other people in the same situations could have their home-equity mortgages Founded in 1995 and headquartered in Irvine, Calif., New Century Financial Corporation (NYSE: NEW) -- http://www.ncen.com/-- is a real estate investment trust, providing mortgage products to borrowers nationwide through its operating subsidiaries, New Century Mortgage Corporation and Home123 Corporation. The company offers a broad range of mortgage products designed to meet the needs of all borrowers. OPTICAL COMMUNICATION: Settles Suit Over Oplink Merger Plan ----------------------------------------------------------- Optical Communication Products, Inc. entered into a memorandum of understanding to settle a suit filed over its plan to merge with Oplink Communications, Inc. Optical Communication began mailing on October 2, 2007 the definitive proxy statement relating to the special meeting of stockholders of the Company, which is scheduled for October 31, 2007, to vote on the proposed merger by which Oplink Communications would acquire those shares of the Company not owned by Oplink. On October 3, 2007, a complaint, “Merlin Partners, LP v. Optical Communication Products, Inc., Oplink Communications, Inc., et al.,” was filed in the Court of Chancery of the State of Delaware by an entity identifying itself as a stockholder of the Company purporting to represent a class of all stockholders other than defendants. The lawsuit names the Company, all of the members of the Company’s board of directors, a former director, and Oplink as defendants. The complaint alleges, among other things, that Oplink and the Company’s directors breached their fiduciary duties to the stockholders of the Company by failing to disclose all material facts in the proxy statement in connection with the merger and by failing to negotiate a higher merger price. The complaint seeks, among other things, to enjoin the merger or order defendants to pay monetary damages in an amount to be determined at trial. On October 23, 2007, the parties to the lawsuit, including the Company, executed a Memorandum of Understanding to settle the lawsuit. As part of the settlement, the defendants deny all allegations of wrongdoing. The settlement will be subject to customary conditions, including court approval following notice to members of the proposed settlement class and consummation of the merger. If finally approved by the court, the settlement will resolve all of the claims that were or could have been brought on behalf of the proposed settlement class in the action being settled, including all claims relating to the merger, the merger agreement and any disclosure made in connection therewith. In addition, in connection with the settlement, the parties have agreed that plaintiffs’ counsel will petition the court for an award of attorneys’ fees and expenses to be paid by the company. The merger may be consummated prior to final court approval of the settlement. The settlement will not affect the timing of the merger or the amount of merger consideration to be paid in the merger. Pursuant to the proposed settlement, the company has agreed to make supplemental disclosures; however, the Company does not make any admission that such supplemental disclosures are material. PERIGEUM DEVELOPMENT: Recalls Defective Bike Disc Brakes -------------------------------------------------------- Perigeum Development Inc., d.b.a. Formula Brake USA, of Petaluma, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 5,700 Oro Disc Brakes used on bicycles. The company said the brake’s hand lever can separate, resulting in loss of braking. This can cause the rider to lose control of the bicycle, posing a risk of injury to riders. Formula Brake USA has received six reports of hand levers detaching. No injuries have been reported. This recall involves Oro disk brakes typically installed on mountain bikes. The brake is operated by a hand lever, which is mounted to the handlebar. Included in the recall are the Oro K18, Oro K24, Oro Puro and Oro Bianco models with serial numbers less than 295237. The serial number can be located on the brake’s body above the “Made in Italy” label. These recalled disc brakes were manufactured by Formula SRL, of Italy and are being sold by bicycle specialty stores nationwide from May 2005 through July 2007 for between $180 and $320. Picture of recalled disc brakes: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08027.jpg Consumers should stop using bicycles equipped with the recalled brakes and contact any Formula Brake dealer to receive a free repair. For additional information, contact Formula Brake toll-free at (866) 458-3130 between 8 a.m. and 5 p.m. PT Monday through Friday, or visit the firm’s Web site: http://www.formulabrakeusa.com PRICEWATERHOUSECOOPERS: Accountants Sue to Recoup Overtime Pay -------------------------------------------------------------- Plaintiffs in the case “Campbell v. PricewaterhouseCoopers” filed a motion that seeks to certify a class of all associates and senior associates employed by PwC in the state of California. The lawsuit alleges that PwC's associates and senior associates were improperly denied overtime pay and other benefits during their employment with PwC. Specifically, the plaintiffs contend that under California law, only certified public accountants can properly be classified as exempt from receiving overtime. The lawsuit, which has now been pending for more than a year, is the first to reach the class certification stage against one of the Big 4 Accounting firms. Plaintiffs' attorney, Bill Kershaw, of the firm Kershaw, Cutter & Ratinoff noted that "For years, the Big 4 Accounting Firms have ignored Federal and State laws mandating the payment of overtime to unlicensed accountants. This is in stark contrast to smaller accounting firms, many of whom, comply with California's overtime law and pay overtime to their unlicensed associates as non-exempt employees. The business practice of not paying overtime is simply not fair to the associates or to smaller accounting firms who are forced to incur higher labor costs and are thus at a competitive disadvantage. “The Big 4 include Pricewaterhouse Coopers, KPMG, Ernst & Young and Deloitte Touche. If the court certifies the class in this case, it could have a significant impact on the way accounting firms do business throughout the country." The suit is “Campbell v. PricewaterhouseCoopers, Case No. 06-CV- 02376,” filed in the United States District Court for the Eastern District of California. Representing plaintiffs is: William A. Kershaw Kershaw, Cutter & Ratinoff, LLP 980 9th Street 19th Floor Sacramento, CA 95814 Telephone: 866-798-2940 Fax: 916-669-4499 REILLY PLATING: Faces New Suit Over Chemical Leak in Michigan ------------------------------------------------------------- Reilly Plating is facing a fourth class action filed by people who were forced to evacuate after an estimated 500 to 3,000 gallons of hydrochloric acid leaked from the plant on Oct. 16 and forced the evacuation of about 3,000 residents in Melvindale, Mich. Plaintiffs accuse the company of negligence, causing nuisance and trespassing. They said the plant produced unreasonable odor and noise, damaged their property by releasing the chemical and interfered with their peace, comfort and right to use and enjoy their property. They are seeking more than $25,000 each in monetary damages. SEAGATE TECHNOLOGY: Feb. 7 Hearing Set for “Cho” Suit Settlement ---------------------------------------------------------------- The Superior Court of California, County of San Francisco will hold a fairness hearing on Feb. 7, 2008, at 1:30 p.m. for a proposed settlement of the matter, “Sara Cho, et v. Seagate Technology (US) Holdings, Inc. and DOES 1-10, et al., Case No. CGC-06-453195.” The hearing will be held in Department 504, San Francisco Superior Court, 400 McAllister Street, San Francisco, CA 94102. Any objections to the settlement must be made on or before Dec. 21, 2007. Deadline for the submission of a claim form is on Feb. 10, 2008. Case Background On April 28, 2005, plaintiff Sara Cho commenced an Federal Action against Seagate entitled “Cho v. Seagate Technology (US) Holdings, Inc.” filed in the Central District of California, Case No. CV-05-3180-JFW. The case was brought as a putative nationwide class action, asserting claims for violation of the Unfair Competition Law, California Business and Professions Code sections 17200, et seq., violation of the False Advertising Law, California Business and Professions Code sections 17500, et seq., and violation of the California Consumers Legal Remedies Act, California Civil Code sections 1750, et seq. Plaintiff dismissed the Federal Action and on Aug. 5, 2005. She refiled her claims in Los Angeles Superior Court (Case No. BC337875). The Action was transferred to San Francisco Superior Court, Case No. 453195, as of June 16, 2006. In the Action, plaintiff claims that Seagate's use of the decimal definition of the storage capacity term “gigabyte” (or GB), whereby 1 GB = 109 (1 billion) bytes, misleads consumers because computer operating systems report hard drive capacity using a binary definition of GB, whereby 1 GB = 230 (1,073,741,824) bytes, a difference of approximately seven percent. Settlement Terms The settlement covers all persons and entities who between March 22, 2001 and Sept. 26, 2007, purchased in the U.S. a new Seagate Brand hard disc drive from an authorized Seagate retailer or distributor, separately as a Seagate product that was not pre- installed into and bundled with a personal computer or other electronic device. As part of the settlement, Seagate will include language substantially similar to the following on Seagate's Website and, after its current packaging supply is depleted, but no later than six months following the Effective Date, on its new product packaging and marketing materials for Retail Hard Drives: "1 gigabyte (GB) = 1 billion bytes when referring to hard drive capacity. Your computer's operating system may use a different standard of measurement and report a lower capacity. In addition, some of the listed capacity is used for formatting and other functions, and thus will not be available for data storage." In addition, Seagate has agreed to make the following benefits available to Settlement Class Members who submit a valid Claim Form, with adequate documentation, establishing the requirements for membership in the Settlement Class and the requirements for Settlement Class Members to obtain one or more of the following types of relief: -- Eligible claimants who purchased a Retail Hard Drive before Jan. 1, 2006 will receive, at their election, either: (a) a cash payment equal to five percent (5%) of the actual amount paid for each Retail Hard Drive, net of taxes, rebates and other price reductions (Cash Payment Benefit); or (b) one transferable license and download of the Seagate Software Suite (Software Benefit) for each Retail Hard Drive purchased. -- Eligible claimants who purchased a Retail Hard Drive Jan. 1, 2006 or later will receive one Software Benefit for each Retail Hard Drive purchased. For more details, contact: Brian R. Strange, Esq. Gretchen Carpenter, Esq. Strange & Carpenter 12100 Wilshire Boulevard, Suite 1900 Los Angeles, CA 90025 Phone: (310) 207-5055 E-mail: lacounsel@earthlink.net gcarpenter@strangeandcarpenter.com - and - Claim Administrator P.O. Box 1240 Minneapolis, MN 55440-1240 Phone: (612) 216-1749 Web site: http://www.harddrive-settlement.com SYSTEMAX INC: Tex. Consumer Files Fraud Suit Over Rebates --------------------------------------------------------- Systemax Inc. and two subsidiaries -- TigerDirect and OnRebate -- are facing a class-action complaint filed Oct. 18 in the U.S. District Court for the Eastern District of New York alleging the defendants schemed to dupe customers out of advertised rebates, the Newsday reports. Named plaintiff Kevin Vukson accuses the companies of conspiring to delay or deny rebates after customers applied for them, allegedly allowing them to reap profits in the form of interest and un-cashed rebate checks. The suit takes issue with the company's promotional claims touting services that "streamline the rebate process, increasing customer satisfaction." Mr. Vukson says he promptly mailed in all the rebate materials and, after two months, had not heard from OnRebate. He sent an e-mail Jan. 24 inquiring about the rebate. In a Feb. 28 response, OnRebate said it had not received all the necessary materials to process his form. In March, the company refused to send the rebate, saying Mr. Vukson had missed the cutoff date. The suit lists several other alleged instances of consumers being denied rebates. Systemax called the suit "completely frivolous and without merit." The suit is “Vukson v. TigerDirect, Inc. et al., Case Number: 2:2007cv04353,” filed in the U.S. District Court for the Eastern District of New York, under Judge Arthur D. Spatt, with referral to Judge A. Kathleen Tomlinson. TELSTRA: CEO to Testify in Suit Over Financial Disclosure --------------------------------------------------------- Telstra’s chief executive and chief financial officer will testify next month in a purported class action filed against the company by shareholders, Susannah Moran of Australian IT reports. Lawyers for the company have presented to federal judge Peter Jacobsen the witnesses they plan to present to the court in November. They include chief executive Sol Trujillo, chief financial officer John Stanhope, two other Telstra executives and five expert witnesses. The suit was filed by law firm Slater & Gordon on behalf of a group of shareholders. At the heart of the case is a controversial briefing document given to the government about Telstra’s infrastructure. Mr. Trujillo is accused of disclosing to the government -– ahead of the market -– information about the company’s financial standing that subsequently caused its share price to decline. Telstra denied that Mr. Trujillo's opinion needed to be disclosed to the Australian stock exchange and said he only held "preliminary views" at the August 11, 2005, meeting. Lawyer Peter Brereton said the other witnesses would be called to help the judge understand the context at which Mr. Trujillo revealed the information. Mr. Brereton told the judge Mr. Trujillo's opinion may not have been his, but that of the people who put the document together. T-MOBILE: Faces Wash. Suit Over Alleged Mandatory Text Messages --------------------------------------------------------------- T-Mobile USA is facing a class-action complaint filed Oct. 19 in the U.S. District Court for the Western District of Washington, alleging it fails to tell wireless customers that text messaging is a mandatory extra feature because they are automatically charged for messages sent to their phones, the CourtHouse News Service reports. Plaintiff claims T-Mobile's unfair and deceptive practices violate Washington's Consumer Protection Act, are a breach of T- Mobile's contract with its subscribers, and has unjustly enriched the defendant. Named plaintiff Marco Zaldivar brings this action on behalf of all current and former non-business T-Mobile wireless service subscribers within the United States who did not contract for text messaging value bundles and who have been improperly charged and paid text-messaging fees that they did not owe and did not solicit or initiate. He wants the court to rule on: (a) the nature of defendant's practices and policies concerning text messaging; (b) whether defendant's practices concerning text messaging violate Washington's consumer protection laws; (c) whether defendant's practices concerning text messaging are a breach of contract with plaintiff and class members; (d) whether defendant has been unjustly enriched through its practices and policies concerning text messages; (e) whether plaintiff and class members are entitled to restitution of all amounts acquired by defendant resulting from its unlawful practices; (f) whether plaintiff and class members are entitled to recover actual and/or compensatory damages as a result of defendant's unlawful practices; and (g) whether plaintiff and class members are entitled to an award of reasonable attorneys' fees, prejudgment interest, and costs of the suit. Plaintiff prays for the following relief: -- for an order certifying the class, and appointing plaintiff and their undersigned counsel of record to represent the class; -- for a permanent injunction enjoining defendant, their partners, joint ventures, subsidiaries, agents, servants, and employees, and all persons acting under, in concert with them directly or indirectly, or in any manner, from in any way engaging in the unfair practices set forth; -- for actual, compensatory damages and/or full restitution of all funds acquired from defendant's unfair business practices; -- for treble, exemplary and/or punitive damages up to the maximum amount permitted by law; -- for the costs of suit; -- for punitive damages, to be awarded to plaintiff and each class member; -- for pre- and post-judgment interest on any amounts awarded; -- for payment of reasonable attorneys' fees, expert fees; and -- for such other and further equitable or legal relief, which the court may deem proper. The suit is "Marco Zaldivar et al. v. T-Mobile USA, Inc., Case No. C07-1695," filed in the U.S. District Court for the Western District of Washington. Representing plaintiffs are: Steve W. Berman 1301 Fifth Avenue, sujite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 E-mail: steve@hbsslaw.com - and - Reed R. Kathrein Jeff D. Friedman Shana E. Scarlett Hagens Berman Sobol Shapiro LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Phone: (510) 725-3000 Fax: (510) 725-3001 E-mail: reed@hbsslaw.com or jefff@hbsslaw.com or shanas@hbsslaw.com VENTANA MEDICAL: Faces Suit Over Roche Holding's Tender Offer ------------------------------------------------------------- Ventana Medical Systems, Inc. faces a purported class action in Delaware in connection with their response to Roche Holding Ltd.’s June 25, 2007 tender offer. On Aug. 22, 2007, State-Boston Retirement System, purporting to represent a putative class consisting of Ventana’s public stockholders, filed suit in the Delaware Chancery Court against the Company and its directors. The suit is “The State-Boston Retirement System v. Thomas D. Brown, et al., No. 3178-VCL (Del. Ch.).” Specifically, State-Boston contends that Ventana’s directors breached their fiduciary duties to the company’s shareholders by taking defensive measures in response to Roche’s tender offer, by failing to negotiate with Roche, and by not giving adequate consideration to its offer. Plaintiff seeks, inter alia, an order requiring the Individual Defendants to evaluate value maximizing alternatives, injunctive relief preventing the Individual Defendants from taking actions designed to frustrate the Roche offer or any potential transaction that would maximize shareholder value, an accounting for damages, and an award of plaintiff’s attorneys’ fees and interest. The parties have stipulated that plaintiff will amend its complaint by Oct. 26, 2007, and Defendants will answer or otherwise plead by Nov. 16, 2007. Ventana Medical Systems, Inc. -- http://www.ventanamed.com/-- develops, manufactures and markets instrument-reagent systems that automate slide staining in anatomical pathology and drug discovery laboratories worldwide. VENTANA MEDICAL: Nov. 19 Hearing Set for “Blazek” Suit in Ariz. --------------------------------------------------------------- A Nov. 19, 2007 hearing is scheduled for oral arguments in the purported class action, “Geneva Blazek v. Ventana Medical Systems, Inc., et al., Case No. 20074849,” which was filed in Arizona and concerns Ventana Medical's response to Roche Holding Ltd.’s June 25, 2007 tender offer. On Aug. 24, 2007, Geneva Blazek, purporting to represent a putative class consisting of Ventana’s public stockholders, filed suit in the Pima County Arizona Superior Court against Ventana and its directors. Ms. Blazek’s allegations are virtually identical to those made by The State-Boston Retirement System in the Delaware Chancery Court. Specifically, Ms. Blazek alleges that Ventana’s directors have breached, and continue to breach, their fiduciary duties to the Company’s stockholders by not giving adequate consideration to Roche’s tender offer and refusing to negotiate with Roche. Plaintiff seeks, inter alia, an order that Defendants must undertake a comprehensive review of alternatives to maximize value for shareholders, injunctive relief barring Defendants from employing any unreasonable defensive mechanisms, an accounting for damages, and an award of plaintiff’s attorneys’ fees and costs. On Oct. 5, 2007, Defendants filed a motion to stay the action in light of the similar Roche Holdings and State-Boston Retirement System cases described above, or, in the alternative, to dismiss the complaint for failure to state a claim. Plaintiff’s response is due Oct. 29, 2007, and oral argument is scheduled for Nov. 19, 2007, according to the company's Oct. 23, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Ventana Medical Systems, Inc. -- http://www.ventanamed.com/-- develops, manufactures and markets instrument-reagent systems that automate slide staining in anatomical pathology and drug discovery laboratories worldwide. WINN-DIXIE STORES: Recalls Mislabeled Chocolate Ice Cream --------------------------------------------------------- Winn-Dixie Stores, Inc. is recalling one code of its 1.75 quart (1.65 liter) cartons of "Prestige Chocolate Ice Cream" because of a potential error in packaging. Some of the products may have the correct lid identifying the product as chocolate almond, but the "tub" is identified as only chocolate. People who have an allergy or severe sensitivity to almonds run the risk of serious or life-threatening allergic reaction if they consume these products. Given this serious issue, the company decided to pull the product from all its stores and encourages customers with any concerns to return the product. The product comes in an oval 1.75 quart paper carton marked with plant code of 12-356 and an expiration date of JUN 25 08 on a white strip on the side of the carton. The cartons indicate that the product inside is chocolate ice cream while the lid may state that the product is chocolate almond. The recalled "Prestige Chocolate Ice Cream" was only distributed to Winn-Dixie and Save-Rite stores in Florida, Georgia, Alabama, Louisiana, and Mississippi. The company has not received any reports from customers in connection with this problem. The recall was initiated after it was discovered that the almond-containing product was distributed in packaging that did not reveal the presence of almonds. Subsequent investigation indicates the problem was caused by chocolate ice cream cartons getting on the line while chocolate almond was being produced. The Food and Drug Administration has been informed and there is complete cooperation with them in conducting this recall. Consumers who have purchased 1.75 quart (1.65 liters) cartons of Prestige Chocolate Ice Cream with JUN 25 08 code date are urged to return them to the place of purchase for a full refund. The cartons indicate that the product inside is chocolate ice cream while the lid may state that the product is chocolate almond. Consumers with questions or any doubt at all about product in their possession are encouraged to contact the company at 1-866- WINN-DIXIE or return the product to their store for a refund or exchange. YOUTUBE INC: “Tur” Case Dismissed, Plaintiff to Join N.Y. Suit -------------------------------------------------------------- The U.S. District Court for the Central District of California dismissed a copyright infringement lawsuit against YouTube, Inc. in order to allow the plaintiff -- a Los Angeles video news service -- to join a proposed class-action pending in New York against the the company. The dismissal, requested by Robert Tur and his Los Angeles News Service, was granted by Judge Florence-Marie Cooper, according to a report by Leslie Simmons of The Hollywood Reporter. YouTube was opposed to the dismissal arguing that the New York class action will proceed at a slower pace than the now dismissed case by Mr. Tur. It also feared that the New York case with Mr. Tur joining, could result in increased liability if an adverse judgment is entered against the site. Mr. Tur was the first to file a lawsuit against the online video-sharing community in 2006. He had alleged that YouTube allowed its users to upload his copyrighted news footage without permission. Football Association Premier League Litigation The dismissal allows Mr. Tur to join the purported class action, "The Football Association Premier League Limited, et al. v. YouTube, Inc., et al.," which was filed this year in the U.S. District Court for the Southern District of New York. That suit was filed by the U.K.-based Football Association Premier League, and independent music publisher Bourne Co. to stop the alleged unauthorized and uncompensated use of their creative and other copyrighted works and those of all other similarly situated copyright holders on the YouTube.com website (Class Action Reporter, May 7, 2007). The lawsuit names as defendants: -- YouTube, Inc.; -- YouTube LLC; as well as -- YouTube's corporate parent, Google, Inc. According to the complaint, "Defendants are pursuing a deliberate strategy of engaging in, permitting, encouraging, and facilitating massive copyright infringement on the YouTube website" in order to build traffic to the site. The complaint alleges that the YouTube defendants have long been aware of this pattern of massive infringement yet purposefully refrain from employing readily available measures to curb it because the defendants understand that the popularity of YouTube.com (and its value as a platform for other uses) derive primarily from the ability of website visitors to access, view, and otherwise exploit copyrighted materials without having to pay the owners of those materials. The complaint further alleges that it was this very business model that persuaded defendant Google to pay $1.65 billion to purchase YouTube in November 2006, and that Google has endorsed and directed YouTube's infringing conduct since becoming its corporate parent. According to the complaint, "The $1.65 billion paid by Google to purchase YouTube in 2006, and the concomitant $4 billion increase in Google's market capitalization, vastly understates both the value of the intellectual property rights of the Class that YouTube has misappropriated and the harm to the Class caused by Defendants' unlawful conduct". The Premier League and Bourne plan to prosecute this case as a class action on behalf of themselves and thousands of others whose copyrighted works have appeared on YouTube.com without permission. Questions of law and fact that the purported class raises, include: (a) whether defendants' conduct as alleged in the complaint constitutes direct infringement of the Protected Works held by lead plaintiffs and the class; (b) whether defendants' conduct as alleged in the complaint constitutes contributory infringement of the Protected Works held by lead plaintiffs and the class; (c) whether defendants' conduct as alleged in the complaint constitutes vicarious infringement of the Protected Works held by lead plaintiffs and the class; (d) whether defendants' conduct as alleged in the complaint constitutes "inducing" infringement by others of the Protected Works held by lead plaintiffs and the class; (e) whether defendants acted willfully with respect to the acts complained of; (f) whether defendants have deliberately avoided taking reasonable precautions to deter infringement on YouTube; (g) whether defendant have the right and ability to control the infringing activities taking place on YouTube; (h) whether defendants derive direct financial and related benefits from the infringing activities taking place on YouTube; (i) whether YouTube's procedures for copyright holders to request removal of their copyrighted works through "takedown notices" are futile because, among other things, YouTube does not take effective steps to prevent users who post infringing material from continuing to post material to the YouTube website and the methods provided by YouTube to search for infringing material are inadequate; (j) whether defendants place an undue burden on copyright holders constantly to monitor YouTube in order to identify and locate their copyrighted works posted on YouTube's website; (k) whether there exists technology to identify and remove copyrighted material; (l) if, as the class alleges, such technology exists, whether defendants selectively employ that technology solely for the benefit of copyright holders who agree to enter into a licensing agreement that is satisfactory to YouTube; (m) whether defendants have installed or can install any filtering technology to identify and remove copyrighted material owned by copyright holders who have not agreed to enter into licensing agreements that is satisfactory to YouTube; (n) whether defendants' conduct as alleged constitutes "storage at the direction of a user" of copyrighted material as that phrase is used in 17 U.S.C. Section 512(c)(1); (o) whether YouTube does more than simply store user directed content without modification and/or provides a number of features and facilities to propagate that content in modified form; (p) whether copyrighted materials displayed by YouTube "reside" on a system or network controlled by defendants as that term is used in U.S.C. Section 512(c)(1); (q) whether defendants have or had actual knowledge that the material or an activity using the material on their systems or networks is infringing; (r) whether defendants have or had actual knowledge that the material or an activity using the material on their systems or networks is infringing; (s) whether, upon notification of claimed infringement as set forth in 17 U.S.C. Section 512(c)(3), defendants respond expeditiously to remove or disable access to the material that is claimed to be infringing; (t) whether the defenses set forth in 17 U.S.C. Section 512 or elsewhere in the Copyright Act are available to defendants; (u) whether defendants provide means and facilities to enable the infringing activities at issue; (v) whether defendants promote, encourage, invite and/or induce the infringing activities at issue; (w) whether, when a user uploads a video to Youtube, Youtube converts the video into YouTube's own software format and makes it available for viewing on YouTube's website; (x) whether defendants offer users a facility to "embed" into another website videos available on Youtube, which allows videos hosted on YouTube to play on separate websites; (y) whether defendants enable users to upload videos onto YouTube and restrict access and viewership of, or render "private," those videos to individuals that the user designates as "friends"; (z) whether defendants permit users to share video files with other individuals; (aa) whether defendants have entered into partnerships with certain copyright holders whereby YouTube has agreed to pay these copyright holders royalties for the uses of their copyrighted material on YouTube; (bb) whether injunctive relief is appropriate; and (cc) whether lead plaintiffs and the class are entitled to damages for defendants' wrongful conduct as alleged in the complaint, including: -- statutory damages; -- monetary damages; -- disgorgement of profits; -- prejudgment interest; and -- attorneys' fess and court costs. The lawsuit seeks a court-ordered injunction to prohibit the defendants from continuing to violate various copyright protection laws. It also asks for unspecified damages for YouTube's past copyright violations. Additional Plaintiffs In June 2007, the Federation Francaise de Tennis and Ligue de Football Professionnel, both of France, were the latest to join the case (Class Action Reporter, June 14, 2007). The Federation Francaise de Tennis is the group that puts on the French Open, one of the grand-slam events in tennis, while the Ligue de Football Professionnel manages two of France's top professional divisions, which produced French soccer great Zinedine Zidane. In August 2007, The Football Association Premier League and Bourne Co. announced that several additional parties will be joining the the case (Class Action Reporter, Aug. 7, 2007). The parties include: -- the National Music Publishers' Association (NMPA), the largest music publishing association in the U.S. with over 600 members; -- renowned investigative journalist Robert Tur; -- the U.K.'s Rugby Football League; -- the Finnish Football League Association; -- X-Ray Dog Music, composers and producers of high- end music for popular movie and TV trailers; -- Knockout Entertainment Limited (Secondsout.com) and Seminole Warriors Boxing, which have separately promoted some of the most anticipated boxing matches over the past several years; and -- the author Daniel Quinn. Premier League and Bourne also announced that the two law firms representing them in the proposed class action -- Proskauer Rose LLP and Bernstein Litowitz Berger & Grossmann LLP -- have been appointed Class counsel on an interim basis by the Judge presiding over the case. The YouTube Class Action: http://www.youtubeclassaction.com/ Asbestos Alerts ASBESTOS LITIGATION: Containment Completed at Nashua, N.H. Site ---------------------------------------------------------------- A cleanup effort by the U.S. Environmental Protection Agency, the City of Nashua and the N.H. Dept. of Environmental Services has been completed adjacent to the Nashua public library, according to an EPA press release dated Oct. 18, 2007. The work was done to prevent public exposure to asbestos contamination. The cleanup was a successful effort between federal, state, and local government. Elevated levels of asbestos had been identified in the half-acre grassy area between the parking lot and the Nashua River adjacent to the library. EPA site investigators determined that if the asbestos in the soil should become airborne by activities such as natural erosion, or mowing, it could potentially threaten public health. Work began about three weeks ago to cap the half-acre of contaminated soil. To facilitate the cap installation, about 95 tons of contaminated soil was removed and disposed of in space provided by the city at the Nashua City Landfill. The City of Nashua will seed the capped area shortly. Town officials and library personnel are asking the public to be cautious and stay off the area during this critical period of re-vegetation. ASBESTOS LITIGATION: Trigen Energy to Check Boston’s Steam Pipes ---------------------------------------------------------------- Boston Mayor Tom Menino has agreed with Trigen Energy Corp. on a comprehensive inspection of the steam pipes that run under Boston, TheBostonChannel.com reports. The inspection follows two explosions in recent weeks that sent asbestos dust into the air and shut down busy streets. Jim Hunt, Boston Chief of Environment and Energy, said, “What Trigen's engineers are telling us is that this was a water hammer event, which occurs when water gets into the pipe. It can create a tremendous amount of pressure buildup. That appears to be what happened in these cases, and having no relationship to age or infrastructure.” Mayor Menino has demanded a full inspection of 22 miles of steam pipes. Trigen Energy, the steam provider, agreed to use the most sophisticated technology to help out. ASBESTOS LITIGATION: Ex-Navy Sailor Gets $35.1M in Compensation ---------------------------------------------------------------- John R. “Jack” Davis, a former U.S. Navy sailor, who was exposed to asbestos more than 50 years ago has been awarded US$35.1 million in compensation after he was diagnosed with cancer, The Mercury News reports. Mr. Davis was diagnosed in January with pleural mesothelioma in January 2007. In his lawsuit, Mr. Davis claimed his illness was triggered by exposure to asbestos-containing pipes and valves during his Navy and private-sector career. He had been a boiler tender with the Navy. The Superior Court jury deliberated for less than a day before returning their verdict on Oct. 12, 2007 after a five-week trial. The verdict includes US$100,000 for economic damages, US$25 million for Mr. Davis' pain and suffering, and US$10 million for Mr. Davis’ wife. The defendants were Florida-based Leslie Controls Inc. and Massachusetts-based Warren Pumps Llc. The companies, who supplied asbestos-containing material to the Navy, must each pay 7.1 percent of the damages. The rest of the money will come from several entities including the Navy. Attorneys for Warren Pumps argued that their firm did not make the asbestos-containing insulation Mr. Davis was exposed to. ASBESTOS LITIGATION: U.K. Contractor Fined GBP10T for Exposure ---------------------------------------------------------------- Preston Magistrates Court in Preston, Lancashire, England, has issued a GBP10,000 penalty to contractor Mustaq Bargit for exposing two workers from another company to asbestos, Contract Journal reports. Mr. Bargit was also ordered to pay costs of GBP5,137.73. The Court found Mr. Bargit, trading as M and M Builders, guilty of a charge under Section 3(1) of the Health and Safety at Work Act 1974 after he allowed work to proceed on site before an asbestos survey was completed. During a visit, Health and Safety Executive inspectors became concerned that asbestos was present on the site, which was later confirmed. The HSE warned companies that they should ensure the safety not just of their own workers but also of non-employees during their work activity. HSE inspector Joanne Eccles said, “Mr. Bargit had been made aware of the possible presence of asbestos but failed to take the proper precautions necessary to deal with this danger.” ASBESTOS LITIGATION: Factory Worker’s Death Linked to Asbestos ---------------------------------------------------------------- An inquest heard that the death of David Price, a former factory worker from Hereford, England, was linked to asbestos, Hereford Times reports. The inquest heard that Mr. Price was exposed to asbestos for more than 20 years. The 54-year-old Mr. Price died on May 10, 2007 at Hereford County Hospital after suffering from mesothelioma. Herefordshire deputy coroner Mark Bricknell said Mr. Price worked at Hereford Galvanizers for around 28 years, where he often came into contact with asbestos. Mr. Bricknell told the inquest that, according to a statement from Mr. Price before his death, large pieces of asbestos sheeting would fall from the ceiling of the factory, and that there was often lots of dust and debris around. Mr. Price retired from the company in 1999 because of ill health, Mr. Bricknell added. Mr. Bricknell recorded a verdict of accidental death and said Mr. Price died of pulmonary decomposition, caused by mesothemioma and probably affected by his general poor health. ASBESTOS LITIGATION: Factory Worker’s Son to Keep GBP60T Payout ---------------------------------------------------------------- Keith Jones, the son of a woman who died from exposure to asbestos while working at a factory in Neath, South Wales, U.K., will be allowed to keep the GBP60,000 damages he was awarded after judges dismissed the company's appeal, Evening Post reports. Mr. Jones, who represented his mother Beryl's estate in the action, was granted the damages at Cardiff Civil Justice Centre in January 2007. However, Metal Box, where Mrs. Jones worked as a packer and cleaner in the 1950s and 1960s, challenged the decision at the Court of Appeal. It was accepted that Mrs. Jones was exposed to relatively small amounts of asbestos dust while working at the Neath factory. In August 2001, Mrs. Jones was diagnosed with malignant mesothelioma. She died four months later. At the Appeal Court on Oct. 17, 2007, Charles Feeny, representing the company, argued the original judge Gary Hickinbottom had imposed too high a duty on Metal Box. On dismissing the case, Justice Smith said, “Mr. Feeny submitted that there was no evidence on which the judge could justify his conclusion that the evidence of her exposure was more than trivial, or was, as the judge described, "of some significance." “In my judgment, there was evidence, not expert evidence, but from lay witnesses. Accordingly, I consider there are no reasonable prospects of success for an appeal based upon the submission that the judge's analysis of the evidence and his conclusion was wrong.” ASBESTOS LITIGATION: Cytec Ind. Records $2.2M Charge at Sept. 30 ---------------------------------------------------------------- Cytec Industries Inc., for the 2007-3rd quarter, recorded a charge of US$2.2 million in manufacturing cost of sales related to a detailed update of its asbestos contingent liabilities, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on Oct. 18, 2007. West Paterson, N.J.-based Cytec Industries Inc. is a global specialty chemicals and materials company. Its products serve a diverse range of end markets including aerospace, adhesives, automotive and industrial coatings, chemical intermediates, inks, mining and plastics. ASBESTOS LITIGATION: Federal-Mogul Corp. Has $879.5M Recoverable ---------------------------------------------------------------- Federal-Mogul Corp.'s asbestos-related insurance recoverable amounted to US$879.5 million as of Sept. 30, 2007, compared with US$859 million as of Dec. 31, 2006, according to a Company press release dated Oct. 18, 2007. The Company's asbestos-related insurance recoverable amounted to US$873.7 million as of June 30, 2007. (Class Action Reporter, July 20, 2007) Southfield, Mich.-based Federal-Mogul Corp. is a global supplier, serving original equipment manufacturers of automotive, light commercial, heavy-duty, agricultural, marine, rail, aerospace, off-road and industrial vehicles, as well as the worldwide after-market. The Company employs 45,000 people in 35 countries. ASBESTOS LITIGATION: PPG's Settlement Remains at $601M in Sept. ---------------------------------------------------------------- PPG Industries Inc.'s current settlement for asbestos settlement amounted to US$601 million as of Sept. 30, 2007, compared with US$561 million as of Sept. 30, 2006, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on Oct. 18, 2007. The Company's current settlement for asbestos liabilities amounted to US$601 million as of June 30, 2007, compared with US$560 million as of June 30, 2006. (Class Action Reporter, July 27, 2007) The Company's net asbestos settlement amounted to US$5 million for the three months ended Sept. 30, 2007, compared with US$6 million for the three months ended Sept. 30, 2006. The Company's net asbestos settlement amounted to US$22 million for the nine months ended Sept. 30, 2007, compared with US$23 million for the nine months ended Sept. 30, 2006. Pittsburgh-based PPG Industries Inc. supplies paints, coatings, chemicals, optical products, specialty materials, glass and fiber glass. The Company employs more than 34,000 people and has 125 manufacturing facilities and equity affiliates in more than 25 countries. ASBESTOS LITIGATION: Hogges’ Motion for Costs/Expenses Approved ---------------------------------------------------------------- The U.S. District Court, N.D. California, recommended the granting of Everett Hogge and Priscilla Hogge's Motion for Costs and Expenses incurred as a result of removal, in an asbestos- related action filed against several defendants including John Crane Inc. U.S. District Judges Martin J. Jenkins entered judgment of Case No. C07-02873 MJJ on Sept. 27, 2007. This motion stemmed from a personal injury action filed in the San Francisco Superior Court for damages from mesothelioma. The Hogge couple, on June 2, 2006, sued several defendants. Trial began in Superior Court on May 7, 2007, and proceeded through jury selection and motions in limine. At the same time, settlement discussions were ongoing, and before opening statements, 22 defendants reached tentative agreements for settlement. Before trial resumed, John Crane Inc. removed the action to the District Court on June 1, 2007. John Crane argued that it did so in reliance on the May 16, 2007 docket entry entered about two weeks earlier stating that one defendant remained. However, as of May 16, 2007, although all defendants but John Crane had agreed to settle in principle, several defendants, including Hopeman Brothers, had not yet filed a Request for Dismissal or been otherwise actually dismissed from the case, while other defendants had done so. On June 1, 2007, an Order granting defendant Borg-Warner Corp.'s Motion for Summary Judgment was filed. On June 7, 2007, Mr. and Mrs. Hogge filed a motion to remand on an expedited schedule. They argued that John Crane had removed the matter in bad faith, in order to delay a trial on the merits and to deny them the opportunity to reach a verdict on the matter before Mr. Hogge died of mesothelioma. The Hogges also argued that the matter was improperly removed. Judge Jenkins reviewed the record and the papers and held that John Crane had failed to establish that final and binding settlement agreements had eliminated all non-diverse defendants from the state action, and thus failed to meet its burden to demonstrate that complete diversity existed at the time of removal. Judge Jenkins therefore granted the Motion to Remand on June 8, 2007. On June 19, 2007, Mr. and Mrs. Hogge filed a Motion for Costs and Expenses Incurred as a Result of Removal. Because this matter is appropriate for a decision without a hearing, the Court vacated the July 31, 2007 hearing initially set for this motion. On Aug. 13, 2007, Magistrate Judge Elizabeth D. Laporte issued a Report and Recommendation (R & R) to grant the Hogges' request for attorneys' fees and expenses. The District Court has considered the R & R, as well as A.W. Chesterton Co.'s objections and the Hogges' response, and agreed with the Magistrate Judge's reasoning. After full consideration of the papers, the District Court granted the Hogges' motion. Accordingly, the District Court adopted the R & R and granted the motion for attorneys' fees and expenses in the amount of US$25,969.46. ASBESTOS LITIGATION: Honeywell Has $1.146B Liability at Sept. 30 ---------------------------------------------------------------- Honeywell International Inc.'s long-term asbestos-related liabilities amounted to US$1.146 billion as of Sept. 30, 2007, compared with US$1.262 billion as of Dec. 31, 2006, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 19, 2007. The Company's long-term asbestos-related liabilities amounted to US$1.216 billion as of June 30, 2007. (Class Action Reporter, July 27, 2007) The Company's long-term insurance recoveries for asbestos- related liabilities amounted to US$1.111 billion as of Sept. 30, 2007, compared with US$1.100 billion as of Dec. 31, 2006. The Company's insurance recoveries for asbestos-related liabilities amounted to US$1.107 billion as of June 30, 2007. (Class Action Reporter, July 27, 2007) In the 2007-3rd quarter, the Company recognized a charge of US$28 million, net of probable insurance recoveries, representing an update to the Company's estimated liability for Bendix (the Company's friction materials business) related asbestos claims as of Sept. 30, 2007. In the 2006-3rd quarter, the Company recognized a charge of US$33 million for Bendix related asbestos claims filed and defense costs incurred during the 2006-3rd quarter, net of probable insurance recoveries. In the first nine months of 2007, the Company recognized a charge of US$73 million, net of probable insurance recoveries, representing an update to the Company's estimated liability for Bendix related asbestos claims as of Sept. 30, 2007. In the first nine months of 2006, the Company recognized a charge of US$110 million primarily for Bendix related asbestos claims filed and defense costs incurred during the first nine months of 2006, including an update of expected resolution values with respect to claims pending as of June 30, 2006, net of probable insurance recoveries. Morristown, N.J.-based Honeywell International Inc.'s largest business segment, Honeywell Aerospace, makes products like turbofan and turboprop engines and flight safety and landing systems. The Company's Automation and Control segment includes home and industrial heating, ventilation, and manufacturing process products. Through its Specialty Materials segment, the Company makes performance materials used in semiconductors, polymers for electronics and fibers, and specialty friction materials. The Company also turns out consumer car care products through its Transportation Systems segment. ASBESTOS LITIGATION: Honeywell Int'l. Has $945M NARCO Receivable ---------------------------------------------------------------- Honeywell International Inc.'s consolidated financial statements reflect an insurance receivable on the liability for settlement of pending and future North American Refractories Co.-related asbestos claims of US$945 million as of Sept. 30, 2007, compared with US$955 million as of Dec. 31, 2006. This coverage reimburses the Company for portions of the costs incurred to settle NARCO related claims and court judgments as well as defense costs and is provided by a large number of insurance policies written by dozens of insurance companies in both the domestic insurance market and the London excess market. The Company, as of June 30, 2007, recorded US$946 million as insurance receivable corresponding to the liability for settlement of pending and future NARCO asbestos claims. (Class Action Reporter, July 27, 2007) The Company owned NARCO from 1979 to 1986. NARCO produced refractory products (high temperature bricks and cement) that were sold largely to the steel industry in the East and Midwest. Less than two percent of NARCO’s products contained asbestos. When it sold the NARCO business in 1986, the Company agreed to indemnify NARCO with respect to personal injury claims for products that had been discontinued prior to the sale. NARCO retained all liability for all other claims. On Jan. 4, 2002, NARCO filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code. As a result of the NARCO bankruptcy filing, all of the claims pending against NARCO are automatically stayed pending the reorganization of NARCO. In addition, the bankruptcy court enjoined both the filing and prosecution of NARCO-related asbestos claims against Honeywell. The stay has remained in effect continuously since Jan. 4, 2002. In connection with NARCO’s bankruptcy filing, the Company paid NARCO’s parent company US$40 million and agreed to provide NARCO with up to US$20 million in financing. The Company also agreed to pay US$20 million to NARCO’s parent company upon the filing of a plan of reorganization for NARCO acceptable to Honeywell (which amount was paid in December 2005 following the filing of NARCO’s Third Amended Plan of Reorganization), and to pay NARCO’s parent company US$40 million, and to forgive any outstanding NARCO indebtedness to Honeywell, upon the effective date of the plan of reorganization. In September 2007, the Bankruptcy Court confirmed the NARCO Plan without modification and approved the 524(g) trust and channeling injunction in favor of NARCO and Honeywell. The Company's consolidated financial statements reflect an estimated liability for settlement of pending and future NARCO- related asbestos claims as of Sept. 30, 2007 of US$1.2 billion and Dec. 31, 2006 of US$1.3 billion. About US$90 million of payments due under these settlements is due upon establishment of the NARCO trust. Morristown, N.J.-based Honeywell International Inc.'s largest business segment, Honeywell Aerospace, makes products like turbofan and turboprop engines and flight safety and landing systems. The Company's Automation and Control segment includes home and industrial heating, ventilation, and manufacturing process products. Through its Specialty Materials segment, the Company makes performance materials used in semiconductors, polymers for electronics and fibers, and specialty friction materials. The Company also turns out consumer car care products through its Transportation Systems segment. ASBESTOS LITIGATION: Honeywell Prevails in N.Y. Action on NARCO ---------------------------------------------------------------- Honeywell International Inc., in the 2007-3rd quarter, prevailed in a New York action on a critical choice of law issue concerning the appropriate method of allocating North American Refractories Co.-related asbestos liabilities to triggered policies. The Court’s ruling is subject to appeal. The Company owned NARCO from 1979 to 1986. NARCO produced refractory products (high temperature bricks and cement) that were sold largely to the steel industry in the East and Midwest. Less than two percent of NARCO’s products contained asbestos. In the 2006-2nd quarter, Travelers Casualty and Insurance Co. filed a lawsuit against the Company and other insurance carriers in the Supreme Court of New York, County of New York, disputing obligations for NARCO-related asbestos claims under high excess insurance coverage issued by Travelers and other insurance carriers. About US$340 million of coverage under these policies is included in the Company's NARCO-related insurance receivable at Sept. 30, 2007. The Company said it believes it is entitled to the coverage at issue and has filed counterclaims in the Superior Court of New Jersey seeking declaratory relief with respect to this coverage. Morristown, N.J.-based Honeywell International Inc.'s largest business segment, Honeywell Aerospace, makes products like turbofan and turboprop engines and flight safety and landing systems. The Company's Automation and Control segment includes home and industrial heating, ventilation, and manufacturing process products. Through its Specialty Materials segment, the Company makes performance materials used in semiconductors, polymers for electronics and fibers, and specialty friction materials. The Company also turns out consumer car care products through its Transportation Systems segment. ASBESTOS LITIGATION: Honeywell Has 51,854 Bendix Claims at Sept. ---------------------------------------------------------------- Honeywell International Inc. recorded 51,854 asbestos-related claims of its Bendix friction materials business in the nine months ended Sept. 30, 2007, compared with 57,108 claims in the year ended Dec. 31, 2006, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 19, 2007. The Company, for the six months ended June 30, 2007, recorded 52,066 unresolved asbestos claims for Bendix. (Class Action Reporter, July 27, 2007) Bendix manufactured automotive brake pads that contained chrysotile asbestos in an encapsulated form. From 1981 through Sept. 30, 2007, the Company has resolved about 112,000 Bendix related asbestos claims. Trials covering 126 plaintiffs resulted in 125 favorable verdicts and one mistrial. Trials covering nine individuals resulted in adverse verdicts, However, two of these verdicts were reversed on appeal, four are or shortly will be on appeal, and the remaining three claims were settled. In the nine months ended Sept. 30, 2007, the Company recorded 2,151 Bendix claims filed and 7,405 Bendix claims resolved. In the year ended Dec. 31, 2006, the Company recorded 4,391 Bendix claims filed and 26,785 claims resolved. About 45 percent of about 52,000 pending claims at Sept. 30, 2007 are on the inactive, deferred, or similar dockets established in some jurisdictions for claimants who allege minimal or no impairment. About 52,000 pending claims also include claims filed in jurisdictions like Texas, Virginia, and Mississippi that historically allowed for consolidated filings. During 2006, about 16,000 cases were dismissed. More than 85 percent of these dismissals occurred in Mississippi as a result of judicial rulings relating to non-resident filings and venue. The Company's consolidated financial statements reflect an estimated liability for resolution of pending and future Bendix related asbestos claims at September 30, 2007 of US$541 million and Dec. 31, 2006 of US$528 million. The Company currently has about US$1.9 billion of insurance coverage remaining with respect to pending and potential future Bendix related asbestos claims, of which US$216 million at Sept. 30, 2007 and US$302 million at Dec. 31, 2006 are reflected as receivables in the Company's consolidated balance sheet. Morristown, N.J.-based Honeywell International Inc.'s largest business segment, Honeywell Aerospace, makes products like turbofan and turboprop engines and flight safety and landing systems. The Company's Automation and Control segment includes home and industrial heating, ventilation, and manufacturing process products. Through its Specialty Materials segment, the Company makes performance materials used in semiconductors, polymers for electronics and fibers, and specialty friction materials. The Company also turns out consumer car care products through its Transportation Systems segment. ASBESTOS LITIGATION: NARCO, Bendix Have $1.71B Sept. Liability ---------------------------------------------------------------- Honeywell International Inc., for the nine months ended Sept. 30, 2007, recorded a total of US$1.710 billion in asbestos- related liabilities, in which US$541 million was related to its Bendix friction products business and US$1.169 billion was related to North American Refractories Co. The Company owned NARCO from 1979 to 1986. NARCO produced refractory products (high temperature bricks and cement) that were sold largely to the steel industry in the East and Midwest. Less than two percent of NARCO’s products contained asbestos. For the nine months ended Sept. 30, 2007, the Company's insurance recoveries amounted to US$1.161 billion, in which US$216 million was related to Bendix and US$945 million was related to NARCO. Morristown, N.J.-based Honeywell International Inc.'s largest business segment, Honeywell Aerospace, makes products like turbofan and turboprop engines and flight safety and landing systems. The Company's Automation and Control segment includes home and industrial heating, ventilation, and manufacturing process products. Through its Specialty Materials segment, the Company makes performance materials used in semiconductors, polymers for electronics and fibers, and specialty friction materials. The Company also turns out consumer car care products through its Transportation Systems segment. ASBESTOS LITIGATION: Court Denies Union Carbide's Motion to Stay ---------------------------------------------------------------- The U.S. District Court, S.D. Illinois, denied Union Carbide Corp.'s request for a motion to stay proceedings, in an asbestos-related lawsuit filed by James Weese. However, the Court granted Mr. Weese's motion to remand case to state court. District Judge Murphy entered judgment of Civil No. 07-581-GPM on Oct. 3, 2007. Mr. Weese worked as a professional pipe-fitter, laborer, and welder from the early 1940s to the early 1990s. During his career, he worked at U.S. government facilities in Oak Ridge, Tenn., that were managed, operated, and maintained by Union Carbide under contracts with the Atomic Energy Commission and the Department of Energy. Mr. Weese maintains that during his employment at the Oak Ridge facilities, he was exposed to asbestos particles emitted into the air. He alleges that he inhaled these particles and that, as a consequence, he contracted mesothelioma. Union Carbide did not challenge Mr. Weese's assertion that he was exposed to asbestos while working at the Oak Ridge facilities. However, Union Carbide contended that it acted under the direction of federal officers, and that the actions that it took were in accordance with precise specifications and detailed regulations promulgated by those agencies. Mr. Weese originally filed his claims in Illinois state court. However, after an amended complaint joining as a party Union Carbide Corp. was filed in state court, within 30 days after service of the complaint Union Carbide removed the entire action to this forum and requested a stay of these proceedings pending transfer of this action to a multi-district litigation ("MDL") proceeding in the U.S. District Court for the Eastern District of Pennsylvania. Mr. Weese in turn filed a motion for remand of this case to state court for lack of subject matter jurisdiction. Union Carbide's request for a stay of these proceedings was denied and Mr. Weese's request for remand of this case to state court for lack of subject matter jurisdiction was granted. Timothy F. Thompson, SimmonsCooper LLC, East Alton, Ill., represented James Weese. Jeffrey T. Bash, Kent L. Plotner, Jeffrey T. Bash, Heyl Royster Voelker & Allen, Sean P. Sheehan, HeplerBroom, Edwardsville, IL, Roger K. Rea, Foley & Mansfield, PLLP, Thomas L. Orris, Williams Venker & Sanders LLC, Kurtis B. Reeg, Reeg & Nowogrocki, L.L.C., Michael R. Noakes, Rabbitt, Pitzer & Snodgrass, P.C., St. Louis, Dayna L. Johnson, David W. Ybarra, Greensfelder, Hemker & Gale, P.C., Beth Kamp Veath, Brown & James, Charles L. Joley, Kenneth M. Nussbaumer, Donovan, Rose, Nester, & Joley, P.C., Belleville, Ill., H. Patrick Morris, Johnson & Bell, Chicago, represented Union Carbide Corp. and other Defendants. ASBESTOS LITIGATION: Worker Sues 44 Companies in Illinois Court ---------------------------------------------------------------- James Jackson Sluss of West Virginia, on Oct. 10, 2007, has filed an asbestos-related lawsuit against 44 local and national companies in Kanawha Circuit Court, W.Va., The West Virginia Record reports. Sharon Ann Sluss, Mr. Sluss’ wife, is also named as a plaintiff in the case. Huntington Alloys Corp. (n/k/a Special Metals Corp.), the successor for Inco Alloys International Inc., the company where Mr. Sluss worked for, is named in the suit. According to the suit, filed by Charleston attorney Cindy J. Kiblinger, Mr. Sluss worked for Huntington Alloys in several work sites in West Virginia and Kentucky. During his working years, he was around asbestos and asbestos-containing materials. As a result, he breathed in asbestos and developed an asbestos- related disease. According to the suit, the defendants knew of the dangers of asbestos, yet did not warn their employees, or provide proper safety equipment. Mr. Sluss claims the failure to warn employees constitutes malicious, willful and wanton misconduct. In the 12-count suit, Mr. Sluss claims he suffered serious bodily injury, endured great pain and suffering and mental anguish and lost earnings and earning capacity. Mrs. Sluss claims she has suffered a loss of consortium from her husband. Together, the Sluss couple seeks compensatory and punitive damages to fully compensate them for their damages. A visiting judge will be assigned to Kanawha Circuit Court Case No. 07-C-2144. ASBESTOS LITIGATION: Ill. Court Judge Closes More Than 200 Suits ---------------------------------------------------------------- Madison County Circuit Judge Daniel Stack, on Oct. 12, 2007, closed more than 200 asbestos lawsuits as attorneys dumped cases they did not care to pursue any further, The Madison St. Clair Record reports. Mr. Stack, running a "cleanup docket," shut down at least 98 suits of the SimmonsCooper firm in East Alton, Ill. He did not exactly dismiss the suits. He packed them off to a "special closed" file. Judge Stack sent away 41 cases of the Edwardsville, Ill., firm of Goldenberg Heller Antognoli Rowland Short and Gori. He completely closed 20 other Goldenberg cases. Judge Stack sent away 37 cases of Edwardsville, Ill., attorney Michael Bilbrey and 22 cases of St. Louis attorney Andrew O'Brien. The attorneys did not drop dull cases that languished for years. Most of the suits had stirred up heavy action until recently. In some cases the dockets alone filled more than 100 pages. Dropping the suits does not mean plaintiffs wish they had not filed them, for they produced countless settlements. Some plaintiffs dismissed dozens of defendants. Mr. Bilbrey mostly dropped suits he filed in 2003. He dropped six from 2004 and one from 2005. The Goldenberg firm mostly dropped suits it filed in 2003 and 2004. The firm dropped four from 2005. SimmonsCooper dropped a fresher batch than Mr. Bilbrey or Goldenberg, giving up 46 suits it filed in 2005. Mr. O'Brien dropped a fresh batch too, giving up 16 suits he filed in 2005. Mr. Bilbrey and Mr. O'Brien each gave up a case from 2000. A plaintiff can reopen a suit against a defendant that bounces back from bankruptcy. However, the court docked brands each case as terminated. ASBESTOS LITIGATION: HSE Warns Employers on Asbestos Management ---------------------------------------------------------------- The Health and Safety Executive is warning employers to ensure they take proper precautions over the management of asbestos in their buildings, according to an HSE press release dated Oct. 19, 2007. This follows HSE’s prosecution of a South London NHS Trust. St George’s Healthcare NHS Trust, Tooting, Wandsworth was fined GBP5,000 and ordered to pay costs of GBP6,432 at the City of London Magistrates’ Court, after it pleaded guilty of breaching Regulation 4 of the Control of Asbestos at Work Regulations 2002. An HSE investigation found that the Trust did not have an effective system to manage asbestos materials at The Groves residential block nor did it control the risk of exposure to asbestos fiber in the building, despite being repeatedly made aware of its presence over a number of years. Asbestos containing materials were present in the building and were regularly damaged by workmen and cleaned up or repaired by Trust employees. HSE Inspector Hazel McCallum said, “It is disappointing when large organizations such as the Trust put people at risk by not taking a responsible approach. The risks associated with exposure to airborne asbestos fibers are well known and the measures required to control it are easily achievable.” The magistrate commented, “That this was a serious offence. There was a lack of communication and a lack of action by the defendant. However, credit was given for the early guilty plea and this was the reason for not committing the case to the Crown Court.” Further information on managing asbestos can be found at hse.gov.uk/asbestos/index.htm. ASBESTOS LITIGATION: Hardie Exec May Suffer “Injustice” on Case ---------------------------------------------------------------- The New South Wales Court of Appeal, on Oct. 19, 2007, heard that Peter Macdonald, the former managing director of James Hardie Industries N.V., could suffer "significant injustice" if he had to meet an Oct. 30, 2007 deadline to disclose his defense to a lawsuit over asbestos compensation, The Sydney Morning Herald reports. Mr. Macdonald was prepared to file a statement indicating whether each paragraph of a statement of claim by the Australian Securities and Investments Commission was admitted, not admitted or denied, said his barrister, Des Fagan, SC. Mr. Fagan said that Mr. Macdonald did not want to disclose any "positive or affirmative" evidence he would rely on to defend himself until after the commission had presented its case in full. Mr. Macdonald was entitled to a privilege against exposing himself to the penalties the commission is seeking, a fine and a ban from company directorship. Mr. Fagan said a current criminal investigation by the commission into Mr. Macdonald's conduct “heightens the importance to him of invoking his privilege and having it work to his protection in this case.” The appeal could hold up the corporate regulator's landmark lawsuit against the entire 2001 board of James Hardie, which was launched in February 2007 and is expected to come to trial late in 2008. However, instead of freezing the proceedings, the Chief Justice, Jim Spigelman, said the court would re-list the matter if the appeal decision had not been handed down by Oct. 30, 2007. This was to avoid "encouraging" the other 11 defendants to slow down the preparation of their defense documents, Judge Spigelman said. The commission's barrister, Robert Beech-Jones, SC, said the court's rules on defense pleadings did not require Mr. Macdonald to disclose everything about the way he intended to run his case. ASBESTOS LITIGATION: Court Upholds Ruling in Foster Wheeler Case ---------------------------------------------------------------- The New York Court of Appeals, on Oct. 11, 2007, upheld a decision by an intermediate appellate panel that New Jersey rather than New York law applies to allocation of coverage for Foster Wheeler Corp.’s asbestos liabilities among non-settling excess insurers, LexisNexis reports. The suit is styled Certain Underwriters at Lloyd’s, London, et al. v. Foster Wheeler Corp., et al., No. 119, N.Y. App. In a one-page order, the high court panel affirmed a decision by the 1st Department Supreme Court Appellate Division reversing a trial court’s determination that New York law controlled. At issue are excess liability policies under which Foster Wheeler seeks coverage for part of the costs spent defending and paying hundreds of thousands of asbestos-related personal injury claims that have been asserted since the 1970s. In 2001, London insurers sued Foster Wheeler and other primary and excess insurers, seeking a declaration that the losses should be allocated on a pro rata basis, that Foster Wheeler is liable for losses allocated to years when it was self-insured, that insurance has been exhausted and that each claim is a separate occurrence. New York and New Jersey employ different allocation methods, with New York using a time-on-the-risk method that spreads the loss evenly over the entire period of loss and New Jersey using a proration method based on policy limits multiplied by years of coverage. At the trial court level, New York County Supreme Court Justice Barbara R. Kapnick ruled that New York law applies because New York has the most significant contacts with the case. Foster Wheeler’s principal place of business was New York City from 1900 to 1962, when it moved to New Jersey. Its operations relating to the design and building of asbestos-containing products were conducted throughout the country. All of the policies at issue were obtained from insurers that have not settled in this action and while Foster Wheeler’s principal place of business was in New Jersey. The Appellate Division reversed, using broader choice-of-law principles given that the risks covered by the policies are nationwide. It concluded that New Jersey law applies because where the insured risk is scattered throughout multiple states, the insured’s state of domicile “should be regarded as a proxy for the principal location of the insured risk” and “is the source of applicable law.” ASBESTOS LITIGATION: Aussie SEC Ex-workers Called in for Study ---------------------------------------------------------------- Researchers from Victoria, Australia, are recruiting former Latrobe Valley State Electricity Commission workers for a study of asbestos-related disease, ABC News reports. The Commonwealth has provided more than AUD500,000 for the study by the Peter Macallum Cancer Centre. Vicki Hamilton, from the Gippsland Asbestos Disease Support Group, says participants who may have been exposed to asbestos will be asked to give blood. Ms. Hamilton says the research was explained at a meeting in Moe, in south-east Victoria, and former power station workers are signing up in their droves. ASBESTOS LITIGATION: Insurance Industry Welcomes Ruling by Lords ---------------------------------------------------------------- According to a story in BestWeek Europe, the decision by the U.K. House of Lords, that the existence of asbestos-related pleural plaques is not grounds for compensation, has been applauded by the insurance industry, Zurich Financial News reports. Law lords also ruled that a psychiatric ailment caused by worry about pleural plaques is not enough to justify a demand for compensation. The decision upheld a judgment in 2006 by the Court of Appeal in a test case that had been brought in 2004 by Zurich Financial Services and Norwich Union. The U.K. insurance industry had put aside an estimated GBP1.5 billion (EUR2.14 billion) to pay pleural plaques claims over the next 25 years, Norwich Union spokesman David Ross said. ASBESTOS LITIGATION: Ill. Worker Sues 49 Companies for Exposure ---------------------------------------------------------------- Walter Kot of Illinois, on Oct. 17, 2007, filed an asbestos- related lawsuit against 49 corporations in Madison County Circuit Court, The Madison St. Clair Record reports. Mr. Kot alleges he was exposed to asbestos while working from 1940 to 1980 as a laborer, firefighter, forester, sheetmetal worker and shipper at various locations throughout the state. Mr. Kot claims that during the course of his employment and during home and automotive repairs he was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers emanating from certain products he was working with and around. According to the complaint, Mr. Kot was diagnosed with mesothelioma on July 14, 2007. Mr. Kot claims the defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous and highly deleterious effect upon the health of people. Mr. Kot also alleges 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. Kot also claims that the defendants failed to require and advise employees of hygiene practices designed to reduce or prevent carrying asbestos fibers home. Mr. Kot also claims that he has sought, but has been unable to obtain, full disclosure of relevant documents and information from the defendants leading him to believe the defendants destroyed documents related to asbestos. Mr. Kot claims that as a result of each defendant breaching its duty to preserve material evidence by destroying documents and information he has been prejudiced and impaired in proving claims against all potential parties. Mr. Kot seeks damages to help pay for the cost of his treatment. The complaint also states that he 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. Kot seeks at least US$550,000 in damages for negligence, willful and wanton acts, conspiracy, and negligent spoliation of evidence among other allegations. John Barnerd and Myles Epperson of SimmonsCooper in East Alton, Ill., represent Mr. Kot. Case No. 07 L 898 has been assigned to Circuit Court Judge Daniel Stack. ASBESTOS LITIGATION: West Japan Railway Workers Get Compensation ---------------------------------------------------------------- Three subcontract workers of West Japan Railway Co., who were tasked to remove asbestos from JR West trains, have been awarded workers compensation for asbestos-related diseases on Oct. 22, 2007, The Yomiuri Shimbun reports. More than 100 former Japanese National Railways employees have been given workers compensation related to asbestos, but the three are the first subcontract workers found to have suffered asbestos-related diseases. The workers are two males, aged 59 and 64, under treatment for asbestosis and other diseases, and a man who died at the age of 68. The two men under treatment worked sporadically between 1987 and 2004 for a subcontractor of Meisei Industrial Co., which undertook the asbestos removal work from JR West. The men removed asbestos sprayed on ceilings and other places by hand or machine. ASBESTOS LITIGATION: Crane Records $250M Provision at Sept. 30 ---------------------------------------------------------------- Crane Co., for the three and nine months ended Sept. 30, 2007, records US$250 million after tax-provision, or US$4.18 per share, to extend the time horizon of the Company’s estimate of its asbestos liability from 2011 to 2017, according to a Company press release dated Oct. 22, 2007. The Company reports a 2007-3rd quarter net loss of US$196.9 million, or US$3.29 per share. These results included the US$250 million asbestos provision. In the 2007-3rd quarter, the Company reported an operating loss of US$312.6 million which includes a pretax provision of US$390.2 million for asbestos. Excluding the asbestos provision, operating profit was US$77.5 million. Third quarter 2006 operating profit of US$71.2 million benefited from a US$4.9 million reimbursement from the U.S. Government for environmental clean-up costs the Company had incurred on the Government’s behalf. Excluding the asbestos provision in 2007 and the Government reimbursement in 2006, 2007-3rd quarter operating profit rose 17 percent compared with US$66.3 million in the prior year quarter, net income increased 24 percent to US$53.1 million compared with US$42.9 million in 2006, and earnings per diluted share increased 26 percent to US$0.87 compared with US$0.69 in 2006. The tax rate in the 2007-3rd quarter was 38 percent compared with 32 percent in the prior year quarter. Excluding the impact of the asbestos provision, the 2007-3rd quarter tax rate was 27 percent compared with 32 percent in the prior year quarter. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: Crane’s Long-Term Liability Rises to $975M ---------------------------------------------------------------- Crane Co.’s long-term asbestos liability amounted to US$975 million as of Sept. 30, 2007, compared with US$459,567,000 as of Dec. 31, 2006, according to a Company press release dated Oct. 22, 2007. The Company’s long-term asbestos liability, as of June 30, 2007, amounted to US$418,483,000. (Class Action Reporter, July 27, 2007) The Company’s current asbestos liability amounted to US$80 million as of Sept. 30, 2007, compared with US$70 million as of Dec. 31, 2006. As of June 30, 2007, the Company's current asbestos liability amounted to US$70 million. (Class Action Reporter, July 27, 2007) The Company’s long-term asbestos insurance receivable amounted to US$319,249,000 as of Sept. 30, 2007, compared with US$170,400,000 as of Dec. 31, 2006. The Company's long-term asbestos insurance receivable, as of June 30, 2007, amounted to US$145,608,000. (Class Action Reporter, July 27, 2007) The Company’s current asbestos insurance receivable amounted to US$32 million as of Sept. 30, 2007, compared with US$52.5 million as of Dec. 31, 2006. As of June 30, 2007, the Company's current asbestos insurance receivable amounted to US$21 million. (Class Action Reporter, July 27, 2007) Asbestos-related payments, net of insurance recoveries, amounted to US$7,897,000 for the three months ended Sept. 30, 2007, compared with US$20,877,000 for the three months ended Sept. 30, 2006. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: Everest Accrues $38.3M Reserve at Sept. 30 ---------------------------------------------------------------- Everest Re Group Ltd., during the quarter ended Sept. 30, 2007, recorded asbestos reserves of US$38.3 million, according to a Company press release dated Oct. 22, 2007. The Company’s net loss development was US$400,000, reflecting unfavorable development on asbestos reserves of US$38.3 million offset by favorable development on non-asbestos reserves of US$37.9 million in the quarter. Hamilton, Bermuda-based Everest Re Group Ltd. is the holding company for Everest Reinsurance Co. (Everest Re), an underwriter of property & casualty reinsurance and insurance. Everest Re markets to U.S. and international insurance companies directly and through independent brokers. The Company offers specialized underwriting in several areas, including property & casualty, marine, aviation, and surety, as well as medical malpractice, directors and officers liability, and professional errors and omissions liability. ASBESTOS LITIGATION: Court OKs Consolidation of Longview Actions ---------------------------------------------------------------- The U.S. District Court, W.D. Washington, at Tacoma, granted Longview Fibre Paper & Packaging Inc.’s motions to consolidate actions, which include asbestos-related matters. U.S. District Judge Benjamin H. Settle entered judgment of Case No. C07-1009BHS on Oct. 5, 2007. Longview contracted with Aetna Casualty & Surety Co. in the 1960s and 1970s for insurance. Longview purchased comprehensive general liability, automobile, workers' compensation, and excess coverage. According to Longview, Travelers Indemnity Co., Travelers Casualty and Surety Co., and St. Paul Travelers Companies Inc. have assumed liability for all insurance policies issued by Aetna. According to Longview, Travelers Indemnity, Travelers Casualty, and St. Paul Travelers (certain Travelers entities) have declined to recognize the existence of certain policies and to satisfy their obligations under such policies. Travelers Indemnity, Travelers Casualty, and Travelers Property Casualty Company of America allege that Longview has failed to pay retrospective premiums due and owing on certain policies and that their obligations under such policies have been satisfied. During the policy periods of the Aetna policies, Longview housed and manufactured asbestos-containing products. As a result, Longview has been a defendant in more than 650 lawsuits. On Oct. 24, 2006, Travelers Indemnity, Travelers Casualty, and Travelers Property filed suit in U.S. District Court for the District of Connecticut for (1) breach of contract and (2) anticipatory breach of contract and seeking a declaratory judgment as to Longview's liability to pay the Retrospective Premium for (3) asbestos comprehensive general liability claims and (4) for the Shellenbarger claim and as to (5) the plaintiffs' obligation to pay certain attorneys fees. On Nov. 15, 2006, while the Travelers case was pending, Longview filed suit in U.S. District Court for the Western District of Washington seeking (1) declaratory relief as to certain Travelers entities' duty to defend, (2) declaratory relief as to such entities' duty to pay, (3) declaratory relief as to missing policies for October 1963 through October 1976, and (4) attorneys' fees associated with the action. Longview alleges (1) breach of contract, (2) breach of fiduciary duties, and (3) violation of the Washington Consumer Protection Act. On Jan. 19, 2007, Travelers Indemnity and Travelers Casualty moved for an order staying the Longview case. On the same day, St. Paul Travelers moved to dismiss for lack of jurisdiction over St. Paul Travelers. On Feb. 22, 2007, the Court granted the Motion for Stay. On May 24, 2007, the Court terminated the Motion to Dismiss in anticipation of settlement papers. On May 24, 2007, Judge Stefan R. Underhill, U.S. District Judge for the District of Connecticut, granted the motion to transfer the Travelers case to this district. The Court then lifted the stay in the Longview case. On July 7, 2007, this matter was reassigned to the undersigned. Longview now moves to consolidate Travelers Indemnity Co. v. Longview Fibre Co., C07-1009BHS, with Longview Fibre & Paper Packaging, Inc. v. The Travelers Indemnity Co., C06-5666. The District Court granted Longview’s Motions to Consolidate Actions. All future pleadings and orders regarding these cases will be filed in Longview Fibre Paper & Packaging, Inc. v. The Travelers Indemnity Co., C06-5666BHS, and will bear the caption of that case. It is further ordered that on or before Nov. 2, 2007, Longview shall amend its complaint to reflect the consolidation of the cases. It is further ordered that on or before No. 30, 2007, Defendants in the consolidated action shall amend their answer to reflect the consolidation of the cases. It is further ordered that the Motion to Dismiss St. Paul Travelers Companies Inc. is renoted for consideration on Dec. 7, 2007. Thomas S. James Jr., Donald S. Kunze, Opus Law Group PLLC, Seattle, represented The Travelers Indemnity Co., Travelers Casualty and Surety Co., and Travelers Property Casualty Company of America. Ronald L. Berenstain, Perkins Coie, Seattle, represented Longview Fibre Paper & Packaging Inc. ASBESTOS LITIGATION: Crane Has 81,251 Pending Claims at Sept. 30 ---------------------------------------------------------------- Crane Co. recorded 81,251 asbestos-related claims filed against it as of Sept. 30, 2007, compared with 85,941 claims as of Dec. 31, 2006, and 89,314 claims as of Sept. 30, 2006, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on Oct. 22, 2007. As of Sept. 30, 2007, the Company was a defendant in cases filed in various state and federal courts alleging injury or death as a result of exposure to asbestos. For the three months ended Sept. 30, 2007, the Company noted 694 new claims, 109 settlements, and 3,986 dismissals. For the three months ended Sept. 30, 2006, the Company noted 1,555 new claims, 351 settlements, and 723 dismissals. For the nine months ended Sept. 30, 2007, the Company noted 2,691 new claims, 909 settlements, and 6,472 dismissals. For the nine months ended Sept. 30, 2006, the Company noted 2,837 new claims, 923 settlements, and 2,617 dismissals. For the year ended Dec. 31, 2006, the Company noted 4,853 new claims, 1,043 settlements, and 6,886 dismissals. Of the 81,251 pending claims as of Sept. 30, 2007, about 25,000 claims were pending in New York, about 24,000 claims were pending in Mississippi, about 9,000 claims were pending in Texas and about 3,600 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. Since the termination of the comprehensive master settlement agreement on Jan. 24, 2005, the Company has been resolving claims filed against it in the tort system. The Company has not re-engaged in discussions with representatives of current or future asbestos claimants with respect to such a comprehensive settlement. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: Crane’s Appeal on Norris Case Still Pending ---------------------------------------------------------------- An appeal filed by Crane Co., on Jan. 3, 2007, over a trial court’s adverse ruling in an asbestos-related case filed by Joseph Norris is still pending, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on Oct. 22, 2007. The Company tried the Norris claim to verdict in California, however, and received an adverse jury verdict on Sep. 15, 2006. On Oct. 10, 2006, the court entered judgment on this verdict against the Company in the amount of US$2.15 million, together with interest thereon at the rate of 10 percent per annum until paid. The Company said it believes that the verdict was not supported by the evidence. In addition, the Company said it believes that procedural irregularities prevented an appropriate determination of the Company’s alleged responsibility for plaintiffs’ injuries. The Company’s post-trial motions were denied by order dated Dec. 15, 2006. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: Crane Incurs $64.7M for Settlement, Defense ---------------------------------------------------------------- Asbestos settlement and defense costs incurred (before insurance and tax effects) for Crane Co. totaled US$64.7 million in the nine-month period ended Sept. 30, 2007, compared with US$49.5 million in the nine-month period ended Sept. 30, 2006. The Company, in the six-month period ended June 30, 2007, incurred a total of US$41.3 million (before insurance and tax effects) as gross settlement and defense costs, compared with US$31.2 million in the six-month period ended June 30, 2006. (Class Action Reporter, July 27, 2007) The Company’s pre-tax cash receipts/payments for settlement and defense costs, including payments from insurers, in the nine- month period ended Sept. 30, 2007 totaled a US$7.3 million net receipt in 2007 (reflecting the receipt of US$31.5 million in previously escrowed funds from Equitas Ltd. in January 2007 and the receipt of US$10 million for a full policy buyout from Employers Reinsurance Co. in April 2007). The Company’s pre-tax cash receipts/payments for settlement and defense costs, including payments from insurers, in the nine- month period ended Sept. 30, 2006 totaled a US$30 million net payment in 2006. A liability of US$1.055 billion has been recorded as of Sept. 30, 2007 to cover the estimated cost of asbestos claims now pending or subsequently asserted through 2017, of which about 68 percent is attributable to settlement and defense costs for future claims projected to be filed through 2017. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: Crane Co. Records $351M Asset at Sept. 30 ---------------------------------------------------------------- Crane Co., as of Sept. 30, 2007, recorded an asset of US$351 million, representing the probable insurance reimbursement for asbestos-related claims, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on Oct. 22, 2007. Prior to 2005, a significant portion of the Company’s settlement and defense costs were paid by its primary insurers. With the exhaustion of that primary coverage, the Company began negotiations with its excess insurers to reimburse the Company for a portion of its settlement and defense costs as incurred. To date, the Company has entered into agreements providing for such reimbursements, known as “coverage-in-place”, with eight of its excess insurers groups. With three of its excess insurer groups, the Company entered into policy buyout agreements settling all asbestos and other coverage obligations for an agreed sum, totaling US$46.8 million in aggregate. The Company is in discussions with or expects to enter into additional coverage-in-place agreements with other of its excess insurers whose policies are expected to respond to the aggregate costs included in the updated liability estimate. Under such coverage-in-place agreements, an insurer’s policies remain in force and the insurer undertakes to provide coverage for the Company’s present and future asbestos claims on specified terms and conditions that address the share of asbestos claims costs to be paid by the insurer, payment terms, claims handling procedures and the expiration of the insurer’s obligations. Reimbursements from such insurers for past and ongoing settlement and defense costs allocable to their policies have been made as coverage-in-place and other agreements are reached with such insurers. All of these agreements include provisions for mutual releases, indemnification of the insurer and, for coverage-in-place, claims handling procedures. Stamford, Conn.-based Crane Co. is a diversified manufacturer of highly engineered industrial products. The Company provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has about 12,000 employees in North America, South America, Europe, Asia and Australia. ASBESTOS LITIGATION: CertainTeed Has 75T Pending Claims at Sept. ---------------------------------------------------------------- CertainTeed Corp., a Compagnie de Saint-Gobain subsidiary, recorded 75,000 outstanding asbestos-related claims at Sept. 30, 2007 and June 30, 2007, according to a Company press release dated Oct. 23, 2007. Some 5,000 claims were filed against CertainTeed in the first nine months of 2007, against 6,000 in the first nine months of 2006. Courbevoie, France-based Compagnie de Saint-Gobain is a glass producer that controls more than 1,000 companies in five sectors: Building Distribution, Construction, Flat Glass, Packaging, and High-Performance Materials. The Company makes 30 billion glass containers a year and provides insulation for 20 percent of all U.S. homes. ASBESTOS LITIGATION: Grace to Pay $17.9M to 8 Asbestos Claimants ---------------------------------------------------------------- W.R. Grace & Co. has agreed to pay US$17.9 million to eight asbestos claimants in settlement of property-damage claims as part of its Chapter 11 case, Associated Press reports. The Company, under Chapter 11 protection since 2001, reached agreements with eight creditors including the Port of Seattle, the state of Washington and the Catholic Diocese of Little Rock, Ark. The U.S. Bankruptcy Court in Wilmington, Del., will consider the settlements at a Nov. 26, 2007 hearing. According to court documents filed on Oct. 22, 2007, the Company denied any wrongdoing in the asbestos cases but said it agreed to settle “because it is in the best interest of its Chapter 11 estates to avoid further expense, inconvenience and the distraction of expensive, burdensome and protracted litigation over the claims’ merit and value.” The settlements come nearly three months after the bankruptcy court ruled in favor of asbestos claimants, who had sought to speed up the claims resolution process. In July 2007, the court ended the Company’s exclusive right to file a Chapter 11 reorganization plan, which outlines how creditors, including the asbestos claimants, will be repaid. Under the settlements, the Port of Seattle would receive the largest claim at US$14.5 million, followed by the state of Washington's at just over US$2 million, and the Fargo Housing and Redevelopment Authority's would get about US$810,000. Other claimants include CHP Associates of Cherry Hill, N.J., the Church of the Most Holy Redeemer in Montgomery, Minn., the Church of St. Helena in Minneapolis, and the American Legion of Fargo, N.D. The agreement requires that the claims be paid within 30 days after the bankruptcy court approves Grace's reorganization plan. Grace will either pay the claims from its bankruptcy estate or through an asbestos trust fund. W.R Grace, based in Columbia, Md., filed for bankruptcy after racking up millions of dollars in asbestos liabilities and more than 135,000 asbestos-related lawsuits. The Company has estimated its asbestos liabilities at US$1.3 billion, while claimants say the figure is as high as US$5 billion. ASBESTOS LITIGATION: Cleanup at Elementary School to Cost $95T ---------------------------------------------------------------- The cost to remove asbestos from the Martin Luther King Jr. Elementary school in Youngstown, Ohio, amounts to US$95,000, Vindy.com reports. That is the latest estimate given the city school board as it prepares to raze the 67-year-old building on Covington Street. The school district will have to foot 20 percent of the asbestos removal cost. The building is part of Youngstown's US$182 million school rebuilding program, and the state is picking up 80 percent of the package expense. Tony DeNiro, assistant superintendent of school business affairs, said demolition would not occur until after the first of the year, probably in February 2007. ASBESTOS LITIGATION: Victims Lose Battle v. Hardie in High Court ---------------------------------------------------------------- Asbestos victims David Hannell and Danny Moss have lost a battle against James Hardie Industries N.V. in the High Court but their lawyers say their fight was not in vain, The Sydney Morning Herald reports. The late Mr. Hannell and Mr. Moss were exposed to asbestos in the course of performing home handyman work in or around their backyards in Hamersley and Woodvale in the 1980s and early 1990s. Mr. Hannell and Mr. Moss won West Australian Supreme Court cases against James Hardie subsidiary Amaca, but these were overturned in the Court of Appeal. Their lawyers sought special leave to appeal that ruling in the High Court, arguing that where a product manufacturer was aware of a real risk of death from the use of their product, they owed a duty of care to users. They further argued that it was not reasonable to do nothing, when warnings were available that could have reduced the risk to individual product users. The High Court rejected the bid. Slater & Gordon asbestos lawyer Tim Hammond said it was disappointing for the men's families. The court held for the first time that James Hardie owed home handymen a duty of care and knew, or ought to have known, of the lethal dangers of exposing home handymen to asbestos products, he said. ASBESTOS LITIGATION: Claims v. Burlington Northern Drop to 1,903 ---------------------------------------------------------------- Burlington Northern Santa Fe Corp. recorded 1,903 asbestos claims filed against it and its majority owned subsidiaries for the three and nine months ended Sept. 30, 2007, compared with 2,138 links for the three and nine months ended Sept. 30, 2006, according to the Company’s quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 23, 2007. The Company recorded 1,930 asbestos claims filed against it and its majority-owned subsidiaries for the three and six months ended June 30, 2007, compared with 2,153 claims for the three and six months ended June 30, 2006. (Class Action Reporter, July 27, 2007) The Company is party to a number of personal injury claims by employees and non-employees who may have been exposed to asbestos. The heaviest exposure for BNSF employees was due to work conducted in and around the use of steam locomotive engines that were phased out between the years of 1950 and 1967. However, other types of exposures, including exposure from locomotive component parts and building materials, continued after 1967 until they were substantially eliminated at BNSF by 1985. The Company recorded US$275 million as accrued obligations for both asserted and unasserted asbestos matters in the three and nine months ended Sept. 30, 2007, compared with US$314 million in the three and nine months ended Sept. 30, 2006. Of the Sept. 30, 2007 obligation, US$227 million was related to unasserted claims while US$48 million was related to asserted claims. At Sept. 30, 2007, US$17 million was included in current liabilities. In the three months ended Sept. 30, 2007, the Company recorded 107 claims filed and 134 claims settled, dismissed, or otherwise resolved. In the three months ended Sept. 30, 2006, the Company recorded 88 claims filed and 103 claims settled, dismissed, or otherwise resolved. In the nine months ended Sept. 30, 2007, the Company recorded 339 claims filed and 411 claims settled, dismissed, or otherwise resolved. In the nine months ended Sept. 30, 2006, the Company recorded 449 claims filed and 432 claims settled, dismissed, or otherwise resolved. It is reasonably possible that future costs to settle asbestos claims may range from about US$250 million to US$300 million. However, the Company said it believes that the US$275 million recorded is the best estimate of the Company’s future obligation for the settlement of asbestos claims. Fort Worth, Tex.-based Burlington Northern Santa Fe Corp., through its primary subsidiary BNSF Railway Co., is the second- largest railroad operator in the U.S., behind Union Pacific Corp. BNSF makes tracks through 28 states in the West, Midwest, and Sunbelt regions of the U.S. and in two Canadian provinces. ASBESTOS LITIGATION: CSX Corp. Has Claims Due to Hazard Exposure ---------------------------------------------------------------- CSX Corp. states that occupational claims arise from allegations of exposures to certain materials in the workplace, like asbestos, solvents (which include soaps and chemicals) and diesel fuels or allegations of chronic physical injuries resulting from work conditions, like repetitive stress injuries, carpal tunnel syndrome and hearing loss. The Company retains a third party specialist with extensive experience in performing asbestos and other occupational studies to assist management in assessing the value of the Company’s claims and cases, according to the Company’s quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 23, 2007. The analysis is performed by the specialist semi-annually and is reviewed by management. The methodology used by the specialist includes an estimate of future anticipated claims based on the Company’s trends in average historical claim filing rates, future anticipated dismissal rates and settlement rates. Jacksonville, Fla.-based CSX Corp. operates as a transportation company. Other holdings include CSX Hotels Inc., a resort doing business as The Greenbrier, and CSX Real Property Inc., an organization responsible for real estate sales, leasing, acquisition and management and development activities. ASBESTOS LITIGATION: Owens-Illinois’ Liabilities Drop to $211.4M ---------------------------------------------------------------- Owens-Illinois Inc.’s long-term asbestos-related liabilities dropped to US$211.4 million as of Sept. 30, 2007, from US$538.6 million as of Dec. 31, 2006, according to a Company press release dated Oct. 24, 2007. The Company’s long-term asbestos-related liabilities dropped to US$444.9 million as of June 30, 2007. (Class Action Reporter, July 27, 2007) The Company’s current portion of asbestos-related liabilities amounted to US$250 million as of Sept. 30, 2007, compared with US$149 million as of Dec. 31, 2006. As of June 30, 2007 and Dec. 31, 2006, the Company's current portion of asbestos-related liabilities amounted to US$149 million, compared with US$152 million as of June 30, 2006. (Class Action Reporter, July 27, 2007) Asbestos-related cash payments during the 2007-3rd quarter totaled US$132.5 million (US$46.9 million during the 2006-3rd quarter) and US$226.2 million during the first nine months of 2007 (US$127.6 million during the first nine months of 2006). Cash payments increased in part to fund, on an accelerated basis, settlements of certain claims, all of which had been accounted for previously in establishing the accrual for future estimated asbestos-related costs. The increased cash was also used, in part, to reduce the deferred amounts payable for previously settled claims to US$55.2 million as of Sept. 30, 2007 from US$82.6 million as of Dec. 31, 2006. The balance of the accrual for future asbestos-related costs as of Sept. 30, 2007, was US$461.4 million, compared with US$687.6 million as of Dec. 31, 2006. As a consequence of the Company's accelerated settlements, new asbestos- related lawsuits and claims reported through the first nine months of 2007 were 33 percent higher than the same period in 2006. However, the number of pending asbestos-related lawsuits and claims was down 22 percent to about 14,000 as of Sept. 30, 2007, compared with about 18,000 pending as of Dec. 31, 2006. Perrysburg, Ohio-based Owens-Illinois Inc. manufactures consumer-preferred, 100 percent recyclable glass containers. Established in 1903, the Company employs more than 25,000 people with 83 manufacturing facilities in 22 countries. In 2006, net sales from continuing glass operations were US$6.65 billion. ASBESTOS LITIGATION: Hercules Records $46.8M Assets, Liabilities ---------------------------------------------------------------- Hercules Inc.’s net asbestos-related assets and liabilities amounted to US$46.8 million for the nine months ended Sept. 30, 2007, compared with US$9.5 million for the nine months ended Sept. 30, 2006, according to a Company press release dated Oct. 24, 2007. The Company’s net asbestos-related assets and liabilities, for the six months ended June 30, 2007, amounted to US$43.8 million, compared with US$6.5 million for the six months ended June 30, 2006. (Class Action Reporter, July 27, 2007) Wilmington, Del.-based Hercules Inc. manufactures and markets chemical specialties globally for making a variety of products for home, office and industrial markets. ASBESTOS LITIGATION: Grace Liability Still at $1.7B at Sept. 30 ---------------------------------------------------------------- W.R. Grace & Co.’s asbestos-related liability remained at US$1.7 billion for the period ended Sept. 30, 2007, the same as for the period ended Dec. 31, 2006, according to a Company press release dated Oct. 24, 2007. The Company’s asbestos-related insurance also remained at US$500 million for the period ended Sept. 30, 2007, the same as for the period ended Dec. 31, 2006. On April 2, 2001, the Company and 61 of its U.S. subsidiaries and affiliates, including its primary U.S. operating subsidiary W. R. Grace & Co.–Conn., filed voluntary petitions for reorganization under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the District of Delaware in order to resolve the Company’s asbestos-related liabilities. In January 2005, the Company filed an amended plan of reorganization and related documents with the Bankruptcy Court. As part of determining the confirmability of the Plan, the Bankruptcy Court has approved a process and timeline for determining the cost to resolve asbestos-related property damage and personal injury claims. Expenses (net of interest income) related to the Company’s Chapter 11 proceedings were US$21.3 million in the third quarter compared with US$12 million in 2006, and US$62.7 million year- to-date in 2007 compared with US$32.2 million in 2006, reflecting a higher level of activity in the bankruptcy proceeding related to claims adjudication and estimation. Most of Grace’s noncore liabilities and contingencies (including asbestos-related litigation, environmental claims and other obligations) are subject to compromise under the Chapter 11 process. The Chapter 11 proceedings, including related litigation and the claims valuation process, could result in allowable claims that differ materially from recorded amounts. Grace will adjust its estimates of allowable claims as facts come to light during the Chapter 11 process that justify a change, and as Chapter 11 proceedings establish court-accepted measures of Grace’s noncore liabilities. Columbia, Md.-based W.R. Grace & Co. supplies catalysts and other products to petroleum refiners; catalysts for the manufacture of plastics; silica-based engineered and specialty materials for a wide-range of industrial applications; specialty chemicals, additives and building materials for commercial and residential construction; and sealants and coatings for food and beverage packaging. With annual sales of more than US$2.8 billion, the Company has about 6,500 employees and operations in over 40 countries. ASBESTOS LITIGATION: Sealed Air Corp. Liability Stays at $512.5M ---------------------------------------------------------------- Sealed Air Corp.’s asbestos settlement liability amounted to US$512.5 million as of Sept. 30, 2007, the same as for the period ended Dec. 31, 2006, according to a Company press release dated Oct. 24, 2007. The Company recorded US$18 million as effect of assumed issuance of asbestos settlement shares, in the quarters and nine months ended Sept. 30, 2007 and Sept. 30, 2006. Elmwood Park, N.J.-based Sealed Air Corp. is a manufacturer of packaging and performance-based materials and equipment systems that serve an array of food, industrial, medical, and consumer applications. Operating in 51 countries, the Company’s international reach generated revenue of US$4.3 billion in 2006. ASBESTOS LITIGATION: Widow Files Suit v. Chevron U.S.A. in Texas ---------------------------------------------------------------- Earnestine Alexander, the widow of Herman Alexander, filed an asbestos-related lawsuit against Chevron U.S.A. for “maliciously” exposing Mr. Alexander to asbestos, which caused his “painful and terrible death,” The Southeast Texas Record reports. Mrs. Alexander, of Port Arthur, Tex., filed her suit with the Jefferson County District Court on Oct. 22, 2007. According to the plaintiff's original petition, during Mr. Alexander's employment as a laborer with the Gulf Oil Corp. at its Port Arthur refinery, he used and was exposed to toxic materials including asbestos dust and fibers. The suit said, “As a result of such exposure, Herman Alexander, developed an asbestos-related disease for which he died a painful and terrible death on June 24, 2007.” The Port Arthur facility was Gulf Oil's first refinery, started in 1907 after the Spindletop Gusher discovery. Gulf merged with Chevron in 1984. The local refinery is now operated by Chevron Phillips Chemical Co. Mrs. Alexander and her Provost Umphrey lawyer Keith Hyde accuse Chevron of failing to warn workers of the dangers of asbestos or protect them, the suit said. Mrs. Alexander is suing for punitive and exemplary damages. Judge Milton Shuffield, 136th Judicial District, will preside over Case No. D180-571. ASBESTOS LITIGATION: Court Overturns Dismissal of Brumley Case ---------------------------------------------------------------- The First District Court of Appeal, on Oct. 22, 2007, overturned the dismissal of an asbestos-related lawsuit styled Brumley v. FDCC California Inc., 07 S.O.S. 6325, Metropolitan News- Enterprise reports. The Appeals Court has ruled that a widow who successfully moved to amend her husband’s asbestos-related tort action in order to assert wrongful death claims on behalf of herself and her children should not have had those claims dismissed for failure to bring the case to trial within five years of her husband’s original filing. The Appeals Court held that Carol Brumley’s wrongful death and loss of consortium claims should not have been dismissed under Code of Civil Procedure Secs. 583.310 and 583.360. Mrs. Brumley conceded on appeal that her survivorship claims should have been brought to trial within five years of the original filing and were properly dismissed. William Brumley’s complaint, filed in August 2000 and naming various defendants, alleged that he suffered from lung disease as a result of exposure to asbestos and asbestos-containing products. The case was scheduled for trial in June 2004 but was delayed for settlement negotiations; before a new trial date was set, Brumley was diagnosed with lung cancer and died in October 2004. In March 2005, Mrs. Brumley moved to file an amended complaint, including claims for wrongful death on behalf of herself and three children as well as the loss of consortium and survivorship claims. The case was set for trial in April 2006. In January 2006, plaintiff’s counsel moved to advance the trial date in order to avoid the bar of the five-year statute. The defendants, opposing the motion and bringing their own motion to dismiss, argued that the time in which to bring the case to trial had already expired in August 2005, five years after Mr. Brumley’s complaint was filed. The plaintiffs responded that the five-year period was tolled between the date of Mr. Brumley’s death and the date that his wife was permitted to file her amended complaint. San Francisco Superior Court Judge Robert Dondero sided with the defendants, saying that the five-year period expired as to all claims in August 2005 and that “plaintiffs failed to establish that it was impractical, impossible or futile to bring this case to trial within that five-year period of time.” Justice Sandra Margulies, writing for the Court of Appeal, said the trial judge was partially incorrect, based on Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, which interpreted a predecessor to a related statute. New Securities Fraud Cases W HOLDING: Faces Securities Fraud Lawsuit in Puerto Rico -------------------------------------------------------- The law firm of Whatley Drake & Kallas, LLC announced that a class action was filed in the United States District Court for the District of Puerto Rico on behalf of purchasers of securities of W Holding Company, Inc. (NYSE: WHIbetween April 24, 2006 and June 26, 2007, inclusive. The Complaint charges W Holding and certain of its officers and directors with violations of the Securities Exchange Act of 1934. W Holding is a financial holding company whose business is conducted primarily through its wholly-owned subsidiary, Westernbank Puerto Rico, which offers a full range of business and consumer financial services, including banking, trust and brokerage services. The Complaint alleges that defendants issued materially false and misleading financial statements that violated the federal securities laws and Generally Accepted Accounting Principles ("GAAP") in order to maintain artificially inflated financial results rather than timely write-down certain loans to Inyx, Inc. ("Inyx") that were impaired, despite: (a) the Company's knowledge at the start of the Class Period of inconsistencies in Inyx's accounts receivables invoices which were used as collateral, (b) the Company's knowledge by November 2006 that at least $37 million in Inyx collateral did not exist, and (c) Inyx's repeated failure to obtain refinancing from other sources since September 2006 that never materialized. On June 26, 2007, the Company disclosed that at least one of the Company's larger asset-based loans was impaired, and that the Company was preliminarily estimating a collateral deficiency with respect to the impaired loan of at least $80 million. Upon disclosure of this information, the price of W Holding stock plummeted over 37 percent in value, from $5.01 per share to a closing price of $3.14 per share, on unusually heavy trading volume. As a result of the foregoing omissions, Defendants' statements during the Class Period were false and misleading because: (a) the Company's financial statements, including its regulatory capital and book value per share, were artificially inflated due to its failure to write-down the impaired Inyx loans, (b) the Company's financial statements were not prepared in accordance with GAAP, and (c) the Company lacked adequate internal and financial controls. Interested parties may move the court no later than November 20, 2007 for lead plaintiff appointment. For more information, contact: Lili R. Sabo Whatley Drake & Kallas, LLC Phone: 1-888-295-1923 or 1-212-447-7070 E-mail: lsabo@wdklaw.com ********* 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, Ma. Cristina Canson, and Janice Mendoza, Editors. Copyright 2007. 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 * * *