C L A S S A C T I O N R E P O R T E R Friday, November 2, 2007, Vol. 9, No. 218 Headlines AGRIPROCESSORS INC: Motion to Dismiss Part of Labor Suit Denied APOLLO GROUP: Summary Judgment Motions Junked; Trial to Go Ahead APOLLO GROUP: Lead Plaintiff Appointed in Ariz. Securities Suit BLASTRAC NA: Recalls Grinders with Coupler that can Break COMCAST CORP: Court Denies Motion to Dismiss Antitrust Lawsuits COSTCO WHOLESALE: Dec. 18 Hearing Set for “Alvarado” Labor Suit COSTCO WHOLESALE: Jan. 2008 Hearing Set for “Hot Fuel” Suit COSTCO WHOLESALE: “Serna” Certification Bid Briefing Under Way C.R. BARD: Continues to Face Composix Kugel Mesh Patch Suits CYBEX INTERNATIONAL: Recalls Treadmills Due to Fire Hazard DE BEERS: Notice of $137M Settlement to be Mailed December ELI LILLY: Ind. Court Mulls Motion to Certify Racial Bias Case GOODYEAR TIRE: $1B Fund Set up to Settle Ohio Retirees' Lawsuit HOME AUTOMATION: Recalls Receivers that Could Fail in Use IMERGENT INC: Utah Court Approves Derivative Suit Settlement GLENCREST RESOURCES: Faces Lawsuit in Tex. Over Oil, Gas Leases LINE SKIS: Recalls Ski Boards on Report of Screws Coming Loose LITHIA MOTORS: Spokane Residents Commence Lawsuit Over B&O Tax MERRILL LYNCH: Coughlin Stoia Files Investor Suit in N.Y. MERRILL LYNCH: Tyco Research Suit Settled; Hearing Set Jan. 9 NATIONAL HOME: Settles Del. Litigation Over AG Health Merger RENT-A-CENTER INC: Settles Tex. Securities Fraud Suit for $3.6M WEGLOW INT'L: Recalls Metal Jewelry Due to High Lead Content XEROX CORP: Discovery Ongoing in Conn. ERISA Litigation XEROX CORP: Second Circuit Affirms Dismissal of Apartheid Suit Asbestos Alerts ASBESTOS LITIGATION: Badger Meter Still Faces 3rd-Party Lawsuits ASBESTOS LITIGATION: Corning Inc. Records US$16M Credit at Sept. ASBESTOS LITIGATION: Celanese Units Record 672 Cases at Sept. 30 ASBESTOS LITIGATION: Union Pacific Has $272M Liability at Sept. ASBESTOS LITIGATION: Cleanup of Hazard in Mont. Nearly Finished ASBESTOS LITIGATION: Mont. Senators Set Aside $250T for Clinic ASBESTOS LITIGATION: New Zealand Power Plant Closed for Cleanup ASBESTOS LITIGATION: Removal in Maine Building to Cost $50,000 ASBESTOS LITIGATION: Quigley Co.'s Plan to Proceed, Judge Says ASBESTOS LITIGATION: Cleanup of Albert Potato Farm Ongoing ASBESTOS LITIGATION: Supreme Court Set to Rule on Blue Lady Ship ASBESTOS LITIGATION: Inquest Links Kiln Wirer's Death to Hazard ASBESTOS LITIGATION: Dow Chemical Has $1.061B Liability at Sept. ASBESTOS LITIGATION: Clarke Case Junked in Prison Staff's Favor ASBESTOS LITIGATION: Behringer Ruling Reversed by Appeals Court ASBESTOS LITIGATION: Illinois Court to Review Bunnell FELA Suit ASBESTOS LITIGATION: Monsanto Co. to Assume Solutia Inc. Claims ASBESTOS LITIGATION: Court Enters Split Ruling in Donoughe Case ASBESTOS LITIGATION: Universal Forest Reserves to Clean Up Site ASBESTOS LITIGATION: TPC Suits Involving AcandS Inc. Ongoing ASBESTOS LITIGATION: Travelers Has $3.785B Reserves at Sept. 30 ASBESTOS LITIGATION: Morton Continues to Face Exposure Lawsuits ASBESTOS LITIGATION: Norfolk Southern Faces Occupational Claims ASBESTOS LITIGATION: Hartford Fin'l. Reserves $2.085B for Claims ASBESTOS LITIGATION: Platinum's Appeal in Frankfort Case Pending ASBESTOS LITIGATION: ENSCO Still Has Multi-Party Suits in Miss. ASBESTOS LITIGATION: 42,000 Claims Remain Pending v. BorgWarner ASBESTOS LITIGATION: BorgWarner Still Faces CNA Coverage Action ASBESTOS LITIGATION: USG Payment for Property Claims Totals $40M ASBESTOS LITIGATION: ITT, Unit Continue to Face Liability Suits ASBESTOS LITIGATION: Halliburton Gets $24M for Claims at Sept. ASBESTOS LITIGATION: Goodrich Continues to Face Exposure Claims ASBESTOS LITIGATION: Federal-Mogul Still Faced w/ Fel-Pro Claims ASBESTOS LITIGATION: Dana Corp. to Settle 7,500 Claims for $2M ASBESTOS LITIGATION: Labor Dept. Revokes Empire Asbestos License ASBESTOS LITIGATION: Sandblaster Sues 50 Companies in Tex. Court ASBESTOS LITIGATION: Supervisor Pleads Guilty to Removal Breach ASBESTOS LITIGATION: Federal-Mogul to Resolve Ch. 11 Objections ASBESTOS LITIGATION: Ex-Engineer Sues BAE Unit for Compensation ASBESTOS LITIGATION: Fla. Local Sues 13 Companies in W.Va. Court ASBESTOS LITIGATION: Groups Sue Over Old Warships in California ASBESTOS LITIGATION: Judges to Review Ruling in W.R. Grace Suit ASBESTOS LITIGATION: Generation Has $52M Claims Reserve at Sept. ASBESTOS LITIGATION: Injury Cases v. Corning Inc. Drop to 10,400 ASBESTOS LITIGATION: Court Dismisses Appeal in Favor of Maremont ASBESTOS LITIGATION: Union Carbide Implements No Accrual Changes ASBESTOS LITIGATION: Union Carbide Seeks $476Mil from Insurers ASBESTOS LITIGATION: Union Carbide Has 103,902 Unresolved Claims ASBESTOS LITIGATION: PPG Industries Braces for Hearings in 4Q07 ASBESTOS LITIGATION: Lincoln Electric Has 31,059 Claims at Sept. ASBESTOS LITIGATION: Cooper Ind. Records 143,118 Abex Claims ASBESTOS LITIGATION: 3M Co. Estimates $130M in Liabilities at 3Q ASBESTOS LITIGATION: Ashland Has $458M in Insurance Receivables ASBESTOS LITIGATION: Minister is Sorry for Insulting Campaigner ASBESTOS LITIGATION: Ariz. Agency, Contractor Face $36,000 Fine ASBESTOS LITIGATION: Cook Islands' Dumping Plan Raises Concerns ASBESTOS LITIGATION: Second Suit Filed for Machinist's Disease ASBESTOS LITIGATION: Cayuga County Workers Sue Election Officers ASBESTOS LITIGATION: Carpenter Sues Bovis Lend Lease, AXA UK New Securities Fraud Cases BRAVO! BRANDS: Faces Securities Fraud Lawsuit in Fla. Court E-TRADE FINANCIAL: Glancy Binkow Files Securities Suit in N.Y. FORMFACTOR INC: Coughlin Stoia Geller Files Securities Suit JONES SODA: Kaplan Fox Files Securities Fraud Suit in Wash. WSB FINANCIAL: Hagens Berman Files Securities Suit in Wash. ********* AGRIPROCESSORS INC: Motion to Dismiss Part of Labor Suit Denied --------------------------------------------------------------- U.S. District Judge Linda R. Reade denied a motion filed by attorneys for U.S. kosher meatpacking company Agriprocessors Inc. to have part of a labor class action filed against it dismissed, Waterloo Cedar Falls Courier reports. Filed in March, Agriprocessors is facing a federal lawsuit wherein its former and current employees claim the company has not paid them for preparation time for the last two years (Class Action Reporter, May 14, 2007). The lawsuit now seeks a class-action status that could most likely include 1,500 Agriprocessors employees. The suit alleges: -- Agriprocessors did not pay for the time spent in changing into safety gears or the time spent in cleaning and sanitizing packing equipments, which is vital to the plant's operations; -- employees were required to continue working, even after compensation stopped to finish daily production and clean work areas; and -- the company refused to compensate the workers at the Postville, Iowa plant despite its knowledge that time spent during the said activities were compensable under state and federal law. The lawsuit further says workers' preparation for work could take up to 35 minutes everyday and that the company adheres to a common policy where the workers are only paid for hours spent in production. Attorneys for Agriprocessors filed a motion in July asking Judge Reade to dismiss the second count of the class action, filed under a state law, requires defendants to opt out of the suit. The first portion filed under federal law requires defendants to opt into the suit. Attorneys said the second count is "inherently incompatible" with the first count. The attorneys appeared in court mid-October. Days after, Judge Reade issued a ruling denying the motion. She said the two counts were compatible with each other. Reade said all affected workers could be represented in the suit unless they sign a paper asking to be omitted. The state law also allows them to obtain compensation for unpaid non-overtime hours, which isn't available under federal law. The case is "Salazar v. Agriprocessors Inc., Case No. 2:07-cv- 01006-LRR," filed in Iowa Northern District Court under Judge Linda R. Reade. The employees listed in the suit are: Eduardo Salazar, Walter Ortiz, Gregorio Lux, Gustavo Cujluj, Santos Sis Lopez, Rubelino Hernandez, William Sir, Jeronimo Toj Granados, Marvin Yovany Lopez, Imelda Lozano, Cesar Toj Micolax, Claudio Ruiz, Carlos Ixen Choc, Cesar Morroquin, Berulo Morillo Jimenez, Bernardo Hernandez Lemus, Antiono Chavez Figueroa, Hugo Jovani Lopez, Samuel Lopez Garcia, Luis Lopez, Jose Dany Lopez, Sergio Gergara, Jose Damasio Lopez Representing the plaintiffs is: Brian McCafferty The Law Firm of Kenney, Egan, McCafferty & Young 3031 C Walton Road, Suite 202 Plymouth Meeting, Pennsylvania, 19462 USA Representing the defendants are: Thomas M. Cunningham, Esq. Nyemaster, Goode, Voigts, West, Hansell and O'Brien, PC 700 Walnut Street Suite 1600 Des Moines, IA 50309-3899 Phone: 515 283 3100 Fax: 515 283 8045 E-mail: tmcunningham@nyemaster.com - and - Jeffery A. Meyer, Esq. Kaufman Dolowich & Voluck, LLP 135 Crossways Park Drive Suite 201 Woodbury, NY 11797 Phone: 516 681 1100 Fax: 516 681 1101 E-mail: jmeyer@kdsbvlaw.com APOLLO GROUP: Summary Judgment Motions Junked; Trial to Go Ahead ---------------------------------------------------------------- The U.S. District Court for the District of Arizona set a Nov. 14, 2007 trial for summary judgment motions in a consolidated securities class action filed against Apollo Group, Inc. and certain of its officers on behalf of purchasers of the company's stock between Mar. 12, 2004 and Sept. 14, 2004. On Oct. 12, 2004, a complaint captioned, "Sekuk Global Enterprises et al. v. Apollo Group, Inc., et al., Case No. CV 04-2147 PHX NVW," was filed in the U.S. District Court for the District of Arizona. Another class action complaint, "Christopher Carmona, et al. v. Apollo Group, Inc., et al., Case No. CV 04-2204 PHX EHC," making similar allegations was filed on or about Oct. 18, 2004 in the U.S. District Court for the District of Arizona. A third class action complaint, "Jack B. McBride, et al. v. Apollo Group, Inc., et al., Case No. CV 04-2334 PHX LOA," which made similar allegations was filed on or about Oct. 28, 2004 in the U.S. District Court for the District of Arizona. The court consolidated the three pending complaints and the newly named lead plaintiff filed a consolidated complaint on May 16, 2005. Lead plaintiff purports to represent a class of the company's shareholders who acquired their shares between Feb. 27, 2004 and Sept. 14, 2004, and seeks monetary damages in unspecified amounts. The suit alleges violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, and Rule 10b-5 promulgated under the Exchange Act, by the company for their issuance of allegedly materially false and misleading statements in connection with their failure to publicly disclose the contents of the U.S. Department of Education's program review report. A motion to dismiss the consolidated class action complaint was filed on June 15, 2005, on behalf of Apollo Group, Inc. and the individual named defendants. The court denied the motion to dismiss on Oct. 18, 2005 and discovery commenced. The parties conducted discovery from October 2005 until discovery closed on Feb. 16, 2007. On March 9, 2007, both parties filed motions for summary judgment. Opposition briefs were filed on May 11, 2007 and reply briefs were filed on June 8, 2007. The court denied both summary judgment motions on Sept. 12, 2007. The case remains set for trial on Nov. 14, 2007, according to the company’s Oct. 29, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 31, 2007. The consolidated action is "In Re: Apollo Group, Inc. Securities Litigation, Case No. 04-CV-02147," filed in the U.S. District Court for the District of Arizona under Judge James A. Teilborg. Representing the plaintiff is: Robert D. Mitchell, Esq. Mitchell & Forest 2355 E Camelback Rd., Ste. 618 Phoenix, AZ 85016 Phone: 602-468-1411 Fax: 602-468-1311 E-mail: robertmitchell@mitchelllaw.com - and – Ramzi Abadou, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 655 W. Broadway, Ste. 1900 San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 E-mail: ramzia@lerachlaw.com Representing the defendants is: Joseph G. Adams, Esq. Snell & Wilmer LLP 1Arizona Ctr., 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: 602-382-6207 Fax: 602-382-6070 E-mail: jgadams@swlaw.com - and - Maureen Beyers, Esq. Osborn Maledon P.A. 2929 North Central Avenue Phoenix, AZ 85012-2794 Phone: 602-640-9305 Fax: 602-664-2053 E-mail: mbeyers@omlaw.com APOLLO GROUP: Lead Plaintiff Appointed in Ariz. Securities Suit --------------------------------------------------------------- The U.S. District Court for the District of Arizona appointed The Pension Trust Fund for Operating Engineers as lead plaintiff in the purported shareholder class action, “Teamsters Local 617 Pension & Welfare Funds v. Apollo Group, Inc et al., Case No. 2:06-cv-02674-RCB.” On Nov. 2, 2006, a plaintiff filed a class action complaint purporting to represent a class of shareholders who purchased the Company’s stock between Nov. 28, 2001 and Oct. 28, 2006. The complaint alleges that the Company and certain of its current and former directors and officers violated Sections 10(b) and 20(a) and Rule 10b-5 promulgated thereunder of the U.S. Securities Exchange Act of 1934 by purportedly failing to disclose alleged deficiencies in the Company’s stock option granting policies and practices. Plaintiff seeks compensatory damages and other relief. On Jan. 3, 2007, other shareholders, through their separate attorneys, filed motions seeking appointment as lead plaintiff and approval of their designated counsel as lead counsel to pursue this action. On Sept. 11, 2007, the court appointed The Pension Trust Fund for Operating Engineers as lead plaintiff and approved lead plaintiff’s selection of lead counsel and liaison counsel, according to the company’s Oct. 29, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 31, 2007. The suit is “Teamsters Local 617 Pension & Welfare Funds v. Apollo Group, Inc. et al., Case No. 2:06-cv-02674-RCB,” which was filed in the U.S. District Court for the District of Arizona under Judge Robert C. Broomfield. Representing the plaintiff is: Ramzi Abadou, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 655 W. Broadway, Ste. 1900 San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 E-mail: ramzia@lerachlaw.com - and – Patrick V. Dahlstrom, Esq, Pomerantz Haudek Block Grossman & Gross LLP 1 N La Salle St., Ste. 2225 Chicago, IL 60602 Phone: 312-377-1181 Fax: 312-377-1184 E-mail: pdahlstrom@pomlaw.com Representing the defendants is: Michael J. Farrell, Esq. Jennings Strouss & Salmon PLC Collier Ctr., 201 E. Washington, Ste. 1100 Phoenix, AZ 85004-2385 Phone: 602-262-5900 Fax: 602-495-2618 E-mail: mfarrell@jsslaw.com - and - Joseph E. Floren, Esq. Morgan Lewis & Bockius LLP 101 Park Ave. New York, NY 10178-0060 Phone: (212) 309-6000 BLASTRAC NA: Recalls Grinders with Coupler that can Break --------------------------------------------------------- Blastrac N.A., of Oklahoma City, Okla., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 185 concrete grinders and 45 replacement couplers. The couplers are Blastrac BG 250 Series Concrete Grinders with round flexible couplers. The company said the flexible coupler on the concrete grinder can break during use allowing the internal parts, including the tooling plate and grinding disc, to be forcefully ejected from the grinder. This can pose a risk of injury from projectiles to the user and those nearby. Blastrac has received five reports of the concrete grinders breaking. No injuries or property damage have been reported. The recalled gas or electric grinders are used to grind concrete surfaces for repair or removal. The grinders have two wheels, a handle and are blue or green in color. They are designed for operation by a single operator. The following concrete grinders are included in this recall. The serial number is located on a plate on the machine’s handle. To see picture of recalled grinder: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08514a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml08/08514b.jpg To see BG-250 Machines Serial Numbers visit http://www.cpsc.gov/cpscpub/prerel/prhtml08/08514.html. The grinders are made in the U.S. and sold by independent distributors nationwide who sell to professional users, and to equipment rental firms that rent to professional contractors and consumers, from November 2006 through July 2007 for between $2,700 and $5,000. The couplers sold separately for about $95. Renters are advised to stop using the product immediately and return it to the rental company. Blastrac has directly contacted owners of these products. Product owners who have not received notice from Blastrac should contact the firm for a free repair kit. For additional information, please contact Blastrac at (800) 256-3440 between 8 a.m. and 5 p.m. CT Monday through Friday, or visit http://www.blastrac.com. COMCAST CORP: Court Denies Motion to Dismiss Antitrust Lawsuits --------------------------------------------------------------- Motions seeking for the dismissal of two purported antitrust class actions filed by Comcast Corp. subscribers have been denied, according to the company’s Oct. 26, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The company was named as defendants in two suits originally filed in the U.S. District Courts for the District of Massachusetts and the Eastern District of Pennsylvania, respectively. The potential class in the Massachusetts case is the company's subscriber base in the “Boston Cluster” area, and the potential class in the Pennsylvania case is the company's subscriber base in the “Philadelphia and Chicago Clusters,” as those terms are defined in the complaints. In each case, the plaintiffs allege that certain subscriber exchange transactions with other cable providers resulted in unlawful “horizontal market restraints” in those areas and seek damages pursuant to antitrust statutes, including treble damages. The company's motion to dismiss the Pennsylvania case on the pleadings was denied and classes of “Philadelphia Cluster” and “Chicago Cluster” subscribers were certified. The company's motion to dismiss the Massachusetts case, which was recently transferred to the Eastern District of Pennsylvania, was also denied. Pennsylvania-based Comcast Corp. -- http://www.comcast.com-- is a cable operator in the U.S. and offers a variety of consumer entertainment and communication products and services. COSTCO WHOLESALE: Dec. 18 Hearing Set for “Alvarado” Labor Suit --------------------------------------------------------------- A Dec. 18, 2007 certification hearing is set for the purported class action, “Elizabeth Alvarado v. Costco Wholesale Corp., Case No. C-06-04015-MJJ.” The case was purportedly brought as a class action on behalf of present and former hourly employees in California, in which the plaintiff principally alleges that Costco did not properly compensate and record time worked by employees during routine closing procedures, including security searches. Discovery is ongoing in this case. A class certification hearing is set for Dec. 18, 2007. Costco Wholesale Corp. -- http://www.costco.com-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. COSTCO WHOLESALE: Jan. 2008 Hearing Set for “Hot Fuel” Suit ----------------------------------------------------------- A Jan. 11, 2008 hearing is set for the purported class action, “In re Motor Fuel Temperature Sales Practices Litigation, MDL Docket No 1840,” which is pending in the U.S. District Court for the District of Kansas. Initially, numerous putative class actions were brought around the U.S. against motor fuel retailers, including Costco Wholesale Corp., alleging that they have been overcharging drivers by selling gasoline or diesel that is warmer than 60 degrees without adjusting the volume sold to compensate for heat-related expansion or disclosing the effect of such expansion on the energy equivalent received by the consumer. The suits are: -- “Raphael Sagalyn, et al. v. Chevron USA, Inc., et al., Case No. 07-430 (D. Md.);” -- “Phyllis Lerner, et al. v. Costco Wholesale Corporation, et al., Case No. 07-1216 (C.D. Cal.);” -- “Linda A. Williams, et al. v. BP Corporation North America, Inc., et al., Case No. 07-179 (M.D. Ala.);” -- “James Graham, et al. v. Chevron USA, Inc., et al., Civil Action No. 07-193 (E.D. Va.);” -- “Betty A. Delgado, et al. v. Allsups, Convenience Stores, Inc., et al., Case No. 07-202 (D.N.M.);” -- “Gary Kohut, et al. v. Chevron USA, Inc., et al., Case No. 07-285 (D. Nev.);” -- “Mark Rushing, et al. v. Alon USA, Inc., et al., Case No. 06-7621 (N.D. Cal.);” -- “James Vanderbilt, et al. v. BP Corporation North America, Inc., et al., Case No. 06-1052 (W.D. Mo.);” -- “Zachary Wilson, et al. v. Ampride, Inc., et al., Case No. 06-2582 (D. Kan.);” and -- “Diane Foster, et al. v. BP North America Petroleum, Inc., et al., Case No. 07-02059 (W.D. Tenn.).” -- “Mara Redstone, et al. v. Chevron USA, Inc., et al., Case No. 07-20751 (S.D. Fla.);” -- “Fred Aguirre, et al. v. BP West Coast Products LLC, et al., Case No. 07-1534 (N.D. Cal.);” -- “J.C. Wash, et al. v. Chevron USA, Inc., et al.; Case No. 4:07cv37 (E.D. Mo.);” -- “Jonathan Charles Conlin, et al. v. Chevron USA, Inc., et al.; Case No. 07 0317 (M.D. Tenn.);” -- “William Barker, et al. v. Chevron USA, Inc., et al.; Case No. 07-cv-00293 (D.N.M.);” -- “Melissa J. Couch, et al. v. BP Products North America, Inc., et al., Case No. 07cv291 (E.D. Tx.);” -- “S. Garrett Cook, Jr., et al. v. Hess Corporation, et al., Case No. 07cv750 (M.D. Ala.);” -- “Jeff Jenkins, et al. v. Amoco Oil Company, et al., Case No. 07-cv-00661 (D. Utah);” and -- “Mark Wyatt, et al. v. B. P. America Corp. dba Atlantic Richfield Company, et al., Case No. 07-1754 (S.D. Cal.).” On June 18, 2007, the Judicial Panel on Multidistrict Litigation assigned the action, entitled, “In re Motor Fuel Temperature Sales Practices Litigation, MDL Docket No 1840,” to Judge Kathryn Vratil in the U.S. District Court for the District of Kansas. On Aug. 28, 2007, Judge Vratil held an initial scheduling conference in this proceeding. At that time, she ordered plaintiffs to file a consolidated complaint in these actions on Oct. 19, 2007, and set a briefing schedule on challenges to this consolidated complaint that calls for a hearing Jan. 11, 2008. Costco Wholesale Corp. -- http://www.costco.com-- operates membership warehouses that offer a selection of nationally branded and private-label products in a range of merchandise categories in self-service warehouse facilities. COSTCO WHOLESALE: “Serna” Certification Bid Briefing Under Way -------------------------------------------------------------- Briefing is under way concerning plaintiffs’ motion for class certification of the lawsuit, “Mimi Serna, Timothy Herrock, et al. v. Costco Wholesale Corp., Case No. 2:07-CV-1491-AHM (JWJx),“ according to the company's Oct. 25, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Sept. 2, 2007. The consumer class action was filed on March 2007 in the U.S. District Court for the Central District of California alleging willful violations of the 15 U.S.C. Section 1681c(g) of the Fair Credit Reporting Act (FCRA). Section 1681c(g), enacted Dec. 4, 2003, provides that “no person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.” Plaintiffs allege that, on or after Jan. 1, 2005, Costco printed the expiration date and/or more than the last five digits of their credit card or debit card number on electronically printed receipts provided at the point of sale involving transactions at Costco’s gasoline dispensers throughout the U.S. The lawsuit seeks statutory damages, punitive damages, and attorneys’ fees. Briefing is under way concerning plaintiffs’ motion for class certification. The suit is “Mimi Serna v. Costco Wholesale Corporation Inc et al., Case No. 2:07-cv-01491-AHM-JWJ,” filed in the U.S. District Court for Central District of California under Judge A. Howard Matz with referral to Judge Jeffrey W. Johnson. Representing the plaintiffs is: Robert S. Ackley, Esq. Herbert Hafif Law Offices 269 West Bonita Avenue Claremont, CA 91711-4784 Phone: 909-624-1671 Representing the defendant is: Barbara L. Croutch, Esq. Pillsbury Winthrop Shaw Pittman 725 S Figueroa St., Ste. 2800 Los Angeles, CA 90017-5406 Phone: 213-488-7100 Fax: 213-629-1033 C.R. BARD: Continues to Face Composix Kugel Mesh Patch Suits ------------------------------------------------------------ C. R. Bard, Inc. continues to face several lawsuits that were filed or asserted against the company with respect to its Bard Composix Kugel product intended for ventral hernia repair. Approximately 180 federal and 60 state lawsuits involving individual claims, as well as nine putative class actions, have been filed or asserted against the company with respect to its Bard Composix Kugel product intended for ventral hernia repair (Composix Claims). The company voluntarily recalled certain sizes and lots of the product beginning in December 2005. The actions generally seek damages for personal injury resulting from use of the product. The putative class actions, none of which has been certified, also seek: -- medical monitoring, -- compensatory damages, -- punitive damages, -- a judicial finding of defect and causation and/or -- attorneys’ fees. On June 22, 2007, the Judicial Panel on Multidistrict Litigation transferred Composix lawsuits pending in federal courts nationwide into one Multidistrict Litigation (MDL) for coordinated pre-trial proceedings in the U.S. District Court for the District of Rhode Island. Approximately 50 of the state lawsuits are pending in the Superior Court of the State of Rhode Island with the remainder in various other jurisdictions, according to the company’s Oct. 29, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. C. R. Bard, Inc. -- http://www.crbard.com/-- is engaged in the designing, manufacturing, packaging, distribution and sale of medical, surgical, diagnostic and patient care devices. The Company sells a range of products worldwide to hospitals, individual healthcare professionals, extended care facilities and alternate site facilities. CYBEX INTERNATIONAL: Recalls Treadmills Due to Fire Hazard ----------------------------------------------------------- Cybex International, Inc., of Medway, Mass., in cooperation with the U.S. Consumer Product Safety Commission, is recalling 4,700 (33,719 units were recalled on October 8, 2003) of Cybex or Trotter Treadmills that were previously recalled for repair. The company said, during repairs associated with the October 8, 2003 recall, wire nuts were installed improperly, causing the treadmills to overheat and posing a fire hazard to consumers. Cybex International has received five reports of treadmills overheating or catching fire resulting in damage to the treadmill. No injuries have been reported. This recall involves the treadmills "Cybex 400T," "Cybex 410T," "Trotter 510," "Trotter 525", "Trotter 535", and "CXT+" that were recalled (link) on October 8, 2003 and later repaired. The treadmills are black with gray coloring, have rectangular uprights, and measure 69 inches long and 30 inches wide. The brands and models are written on the display panel. The “CXT+” model does not bear the brand Cybex or Trotter. Picture of the recalled treadmilll: http://www.cpsc.gov/cpscpub/prerel/prhtml04/04502.jpg The treadmills were made in the U.S. and sold at Cybex International and Cybex dealers nationwide from September 1993 through October 2001 for between $3,300 and $4,000. Consumers whose treadmills were included in the 2003 recall and were repaired should immediately unplug and stop using the treadmills. Consumers with recalled units will be notified directly by Cybex. Consumers should call Cybex directly to schedule a free repair. Consumer Contact: Call Cybex toll-free at (888) 678-3846 between 8 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.cybexintl.com/retro. DE BEERS: Notice of $137M Settlement to be Mailed December ---------------------------------------------------------- U.S. District Court Judge Stanley R. Chesler has approved the notice and claims process for the De Beers settlement, which means the process will finally get underway at the end of the year. Jewelers of America will provide more instructions and details to its members in the coming weeks, to ensure that they are fully prepared for the steps they need to take to obtain the claims form and begin the filing process in late December. “Jewelers of America welcomes the news that the De Beers settlement process will soon get underway,” says JA President and CEO Matthew A. Runci. JA and its counsel have had significant involvement and input into the settlement process and timing. In mid-April 2008, the Court will hold a hearing to determine whether the settlement should receive final approval. If it is approved, U.S. consumers and “reseller” members of the trade, who share the majority of the settlement, will have until May 19, 2008 to file their claims. The administrators of the De Beers settlement claims process will send mailed notices to the trade just before Christmas, and will conduct a trade magazine ad campaign starting in January. Publication notice to consumers about the De Beers settlement will also start to appear in newspapers, magazines and on the Internet just before Christmas, and continue through winter and early spring. In addition, a public relations campaign would start in January to reach the maximum number of consumers who might wish to file a claim. Because the claims process will require consumers to itemize the amount of their purchases of diamond jewelry, it is likely that consumers could ask retailers to research the purchase price of any diamond or diamond jewelry they obtained at their stores between January 1, 1994 and March 31, 2006. JA will be prepared to offer guidance to members after the claims forms have actually been distributed. While the claims period for jewelers is also January 1, 1994 to March 31, 2006, the trade’s claims form will ask jewelers to pick any two-year period during those years, and to submit the total costs of the diamonds and diamond jewelry they purchased for resale during that time. The claims administrator will use that figure to compute each jeweler’s share of the settlement. Retailers will share proportionately with other “resellers” a settlement portion amounting to $137 million. But the total amount will be reduced by plaintiffs’ attorneys’ fees, for work they performed on the case itself and its settlement. They can claim up to 25% of the total settlement. Also taken from the $137 million will be a portion of the attorneys’ out-of-pocket expenses, settlement administration fees and other expenses. The Court will determine the actual amount of attorneys’ fees and expenses to which they will be entitled at the final approval hearing. The remaining amount will be divided among the total number of “reseller” trade members who file. The payouts themselves will probably not occur until late 2008 or 2009, to allow time for the claims administrators to assess all claims and apportion the funds among the claimants, according to court papers. Any trade claim that amounts to under $25 will not be paid. For more information about the De Beers Settlement or Jewelers of America, visit http://www.jewelers.org. ELI LILLY: Ind. Court Mulls Motion to Certify Racial Bias Case -------------------------------------------------------------- The U.S. District Court for the Southern District of Indiana has yet to rule on a motion seeking to certify a class in a lawsuit filed against Eli Lilly and Co. for alleged racial discrimination. In April 2006, several workers of drug Company Eli Lilly & Co. filed a lawsuit in the U.S. District Court for the Southern District of Indiana for alleged racial discrimination (Class Action Reporter, April 26, 2006). Three former and one current Eli Lilly employee alleged the company paid black employees less than their white counterparts, passed them over for promotions and verbally abused them. The alleged discrimination dates back to 2003. One of the plaintiffs is Cassandra Welch, who was fired in mid-2004 for an unrelated reason. The suit is seeking class action on behalf of more than 1,000 black employees. It is asking unspecified damages, lost compensation and an order enjoining Lilly against future discrimination. The other plaintiffs are current sales representative, Sheryl A. Davis of Memphis, Tennessee, and two former sales reps, Jarmaine Bromell of Philadelphia and Raynard Tyson of North Carolina. In November 2006, Joshua Rose, attorney with the Rose and Rose law firm, was at the Hyte Community Center, in Terre Haute to take statements as part of a race discrimination lawsuit against Eli Lilly and Co. (Class Action Reporter, Nov. 6, 2006). Mr. Rose took statements from "African Americans who believe they suffered discrimination at Lilly. We're collecting information." Statements though will not be used during trial without prior permission. Company spokeswoman Carla Cox would later respond to the suit by way of a a written statement. Ms. Cox said, "Lilly takes any allegations of unfair treatment very seriously. We are committed to conducting a full investigation of any allegations and responding with appropriate actions based upon the results of those efforts. Respect and fair treatment of people are the cornerstones of the Lilly corporate culture. We do not tolerate racial discrimination nor do we condone any behavior contrary to our code of ethics" (Class Action Reporter, Nov. 7, 2006). The federal judge in the matter has yet to rule on whether the plaintiffs will be designated as a class, according to an Oct. 31 report by The Indianapolis Star. The suit is "Welch et al. v. Eli Lilly & Company, Case No. 1:06- cv-00641-RLY-VSS," filed in the U.S. District Court for the Southern District of Indiana under Judge Richard L. Young, with referral to Judge V. Sue Shields. Representing the plaintiffs are: Joshua Rose, Esq. Terri N. Marcus, Esq. David L. Rose, Esq. Rose & Rose, P.C. 1320 19TH ST., N.W., Suite 601 Washington, DC 20036 Phone: (202) 331-8555 Fax: (202) 331-0996 E-mail: daver@roselawyers.com GOODYEAR TIRE: $1B Fund Set up to Settle Ohio Retirees' Lawsuit --------------------------------------------------------------- Goodyear Tire & Rubber Co. and the United Steelworkers have agreed on a proposed settlement in the purported class action, “Redington, et al. v. Goodyear Tire & Rubber Co., Case No. 5:07- cv-01999-JRA,” Jim Mackinnon of The Akron Beach Journal reports. The United Steelworkers, and several retirees filed the suit on July 3, 2007 in the U.S. District Court for the Northern District of Ohio (Class Action Reporter, July 31, 2007). The settlement, which requires court approval, will lead to the creation of an independent health care trust for union retirees to be known as the Voluntary Employees' Beneficiary Association (VEBA). According to the company it expects the process to create VEBA to be completed sometime in the first half of 2008. It will be run by a nine-member committee made up of three union representatives, two retiree “class representatives,” and four public members who have expertise in benefits. The company will have no one on the committee. The process includes getting preliminary court approval for the deal, followed by a 90-day notice period, another court hearing, final judgment, and then a 30-day appeal period. Under the deal, the company is required to pay $1 billion into the VEBA, which then will be responsible for paying all future Steelworker retiree health care benefits. Additionally, Union members will pay part of their cost-of- living increases and profit sharing into the fund. The suit, “Redington, et al. v. Goodyear Tire & Rubber Co., Case No. 5:07-cv-01999-JRA,” was filed in the U.S. District Court for the Northern District of Ohio under Judge John R. Adams. Representing the plaintiffs is: Jori B. Naegele, Esq. Gary, Naegele & Theado 446 Broadway Lorain, OH 44052-1797 Phone: 440-244-4809 Fax: 440-244-3462 E-mail: envirolit@aol.com - and - Jeremiah A. Collins, Esq. Bredhoff & Kaiser Ste. 1000, 805 Fifteenth Street, NW Washington, DC 20005 Phone: 202-842-2600 Fax: 202-842-1888 E-mail: jcollins@bredhoff.com Representing the defendant is: Andrew M. Kramer, Esq. Jones Day 51 Louisiana Avenue NW Washington, DC 20001-2113 Phone: 202-879-3939 Fax: 202-626-1700 HOME AUTOMATION: Recalls Receivers that Could Fail in Use --------------------------------------------------------- Home Automation Inc., New Orleans, La., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 200 64 Zone Wireless Receivers. The company said if the receiver loses power, it could fail to receive the signal from transmitters monitoring for intrusion detection in a property and place the security of residents at risk. No incidents/injuries have been reported. This recall involves the 64 Zone Wireless Receivers with model 45A00-1 and revision number B1. The receiver is an accessory to the Home Automation Inc. Home Control System and is professionally installed. The model and revision numbers can be found on a label on the back of the unit. Picture of wireless receivers: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08512.jpg The receivers are made in Taiwan and sold to distributors nationwide from July 2007 through September 2007 for between $120 and $150. Consumers are advised not rely on the recalled receivers to obtain security information. Consumers should contact Home Automation Inc. for a free replacement receiver. Consumers with recalled receivers will be notified by the company. For additional information, contact Home Automation Inc. at (800) 229-7256 between 9 a.m. and 5 p.m. IMERGENT INC: Utah Court Approves Derivative Suit Settlement ------------------------------------------------------------ The Third Judicial District Court in and for Salt Lake County of Utah provided preliminary approval of a settlement agreement between eCommerce software provider iMergent, Inc., (IIG) and all derivative litigation filed in various courts in Utah. Under the terms of the settlement, iMergent is to receive a payment of $3.3 million in insurance proceeds. The funds will be used to pay $2.8 million for the settlement of the class action settlement, discussed in Form 8-K filed by the company on September 21, 2007, and $500,000 for attorney fees to derivative counsel. The settlement also calls for the company to adopt certain corporate governance measures as well as present certain items to a vote of the company's shareholders. After final approval of the settlement and court approval of the class action settlement, the items that require a vote of the shareholders will be included in the next scheduled annual proxy statement. Additionally, after final approval of the settlement and court approval of the class action settlement, all corporate governance items not requiring approval of the company's shareholders, which have not already been adopted, will be adopted by the company. The settlement benefits all holders of iMergent Inc. common stock as of Oct. 30, 2007 who plan to continue to hold such stock through Dec. 10, 2007. Case Background The actions were brought on behalf of iMergent and against the Individual Defendants for allegedly breaching their fiduciary duties by engaging in improper business and revenue recognition practices that substantially and falsely inflated the revenue and net income of the Company, and for allegedly engaging in sales of iMergent stock based upon their knowledge of material non-public information regarding the Company, thereby unjustly enriching the Individual Defendants. The Individual Defendants deny these allegations. The Actions are two substantially similar derivative actions filed on behalf of iMergent against the Individual Defendants. On March 29, 2007, Berlinberg filed a Verified Derivative Complaint on behalf of iMergent in the Court, styled “Berlinberg v. Danks, et al., Civil No. 050905862,” and Horn filed a Verified Derivative Complaint on behalf of iMergent in the Court, styled “Horn v. Danks, et al., Civil No. 050905863.” These actions were subsequently consolidated as the Consolidated State Action on June 10, 2005. On June 15, 2005, Chamkoriyski filed a Verified Shareholder Derivative Complaint on behalf of iMergent in the Court styled “Chamkoriyski v. Danks, et al., Civil No. 050401785,” which was consolidated with and into the Consolidated State Action on July 7, 2006. On April 4, 2005, Giordano filed a Verified Derivative Complaint on behalf of iMergent in the Federal Court styled “Giordano v. Danks, et al., Case No. 2:05-cv-00296,” which was subsequently styled as the Consolidated Federal Action, Case No. 2:05-cv- 00279. On June 24, 2005, plaintiffs Berlinberg and Horn filed a Consolidated Derivative Complaint in the Consolidated State Action and, on November 17, 2005, filed an Amended Consolidated Derivative Complaint in the Consolidated State Action. In addition, on June 12, 2006, Federal Plaintiff filed a Second Consolidated Verified Complaint in the Consolidated Federal Action. Defendants have filed motions to dismiss the operative complaints in the Actions, to which Plaintiffs have filed their respective oppositions. All motions to dismiss are currently pending as of the Stipulation Date. Plaintiffs in the Actions have coordinated their litigation efforts since the fall of 2006. Counsel in the Actions have undertaken substantial efforts to negotiate a mutually agreeable resolution of the Actions. Beginning on November, 2006, the Settling parties had numerous discussions regarding a potential resolution of the Actions. On January 31, 2007, Plaintiffs' Settlement Counsel sent to Defendants' Counsel the Settlement Demand Letter which demanded, inter alia, that the Individual Defendants make certain payments to the Company and adopt certain corporate governance measures. The Settling Parties engaged in numerous discussions regarding the Settlement Demand Letter and a potential settlement of the Actions. Although the Settling Parties made substantial progress during these discussions, they continued to disagree regarding several material settlement terms. Accordingly, on June 27, 2007, counsel for the parties met in New York City in order to participate in a mediation with the Hon. Nicholas Politan (Ret.), a highly experienced mediator, in an attempt to finally resolve the Actions. As a result of Judge Politan's efforts, the Settling Parties were able to eventually reach an agreement to settle the Actions. On Sept. 21, Imergent announced a settlement. A fairness hearing will be held for the Action on December 10, 2007 at 9:30 a.m. Before Judge Vernice Trece at the Third Judicial District Court in and for Salt Lake County, 450 South State, Salt Lake City, Utah 84114, The suit is "Hyman v. Imergent, et al., Case No. 2:05-cv-00861- DAK," filed in the U.S. District Court for the District of Utah under Judge Dale A. Kimball. Representing the plaintiffs are: C. Richard Henriksen, Jr., Esq. Henriksen & Henriksen 320 S. 500 E. Salt Lake City, UT 84102 Phone: (801) 521-4145 E-mail: hhlaw@sisna.com - and - Ira M. Press, Esq. Kirby Mcinerney & Squire 830 Third Ave. New York, NY 10022 Phone: (212) 317-6600 E-mail: ipress@kmslaw.com Representing the defendants is: Jacqueline Benson, Esq. Gary F. Bendinger, Esq. Howrey, LLP Phone: (713) 654-7693 and (801) 533-8383 E-mail: bendingerg@howrey.com GLENCREST RESOURCES: Faces Lawsuit in Tex. Over Oil, Gas Leases --------------------------------------------------------------- A Tarrant County resident has filed a lawsuit against Glencrest Resources, LLC and Leonard Briscoe, Sr., seeking termination of an oil and gas lease for failure to pay bonus payments. The suit seeks class-action status for all landowners who leased their property to Glencrest Resources, LLC. In early December 2006, Pamela Ellis, attended a meeting held by Mr. Briscoe and Glencrest Resources, LLC, in which she was provided information regarding an oil, gas and mineral lease. During the meeting, Ms. Ellis and others were told if they signed the lease agreement that they would receive their bonus payments within 30 to 45 days and that a well would be drilled and completed by April 1, 2007. As of Wednesday, there is no indication that any of the residents who signed a lease with Glencrest Resources, LLC, have received their bonus payments. The drilling of a well has not begun. "I believe that every homeowner and landowner is entitled to be treated fairly and paid as promised when signing an oil and gas lease," says attorney John David Hart of the Law Offices of John David Hart in Fort Worth, who represents Ms. Ellis. "We will resolve this dispute so that Ms. Ellis and others can lease their property to an oil and gas company that will meet its responsibilities." For more details, contact Jennifer Green The Law Offices of John David Hart Phone: 817-870-2102 E-mail: jgreen@hartlaw.com Web site: http://www.hartlaw.com/ LINE SKIS: Recalls Ski Boards on Report of Screws Coming Loose -------------------------------------------------------------- Line Skis, of Seattle, Wash., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 1,250 2006 Line X-Fly and Line Pro Ski Boards. The company said screws installed improperly can cause the bindings to come loose or pull off the ski board during use, causing the skier to lose control or fall and suffer injuries. The firm has received one report of the screws that hold the binding to the ski board pulling out during use. No injuries have been reported. The 2006 Line X-Fly and Line Pro model ski boards were sold in 90 and 99 centimeter lengths. The Pro model is a twin-tip ski which is turned up at both ends. “Pro 90” or “Pro 98” is printed on the tail. The X-Fly is a unidirectional ski which is turned up on one end. “Fly 90” or “Fly 99” is printed on the tail. Picture of the recalled board: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08042.jpg The boards were made in Taiwan and sold at Ski, snowboard and sporting goods stores from September 2006 through January 2007 for about $180. Consumers are advised to immediately stop using the recalled ski boards and return them to the place of purchase for a full refund. If consumers are unable to return the ski boards to the place of purchase, contact the firm for instructions. For additional information, contact Line Skis at (800) 987-2576 between 9 a.m. and 5 p.m. PT, or visit http://www.lineskis.com. LITHIA MOTORS: Spokane Residents Commence Lawsuit Over B&O Tax -------------------------------------------------------------- Spokane (Wash.) residents Theron and Marcia Johnson will now attempt to ask a local judge to certify as suit filed against autodealer Camp Automotive after the judge ruled that a business and occupation tax charged to customers is illegal, The Spokesman-Review reports. The Johnsons sued Camp Automotive in 2005 after buying a car from Camp Chevrolet. They said the dealership added about $137 to the sales price through the B&O tax surcharge. Also included in the suit are Camp's parent company Lithia Motors Inc. of Medford, Ore. Brian Sheldon, one attorney representing the Johnsons, said Spokane County Superior Court Judge Kathleen O'Connor ruled earlier this month that Camp had acted illegally by adding the B&O surcharge paid by the Johnsons. She also ruled that Camp's former practice -- now no longer practiced by auto dealers since the Johnson verdict was decided -- violated Washington's Consumer Protection Act. Mr. Sheldon noted that the suit is nearly identical to the one filed in 2004 against Appleway Volkswagen over the same practice. The suit is expected to result to a total of $7 million in settlement. According to the report, Mr. Sheldon said the main difference between the two lawsuits is that the first lawsuit established the illegality of the B&O surcharge. This second suit could open the door to triple damages ordered by a court against any other dealerships that followed the same practice, including nine Lithia Motors dealerships in Washington, Mercedes-Benz of Spokane, and other dealerships not yet named, Mr. Sheldon said, according to the report. MERRILL LYNCH: Coughlin Stoia Files Investor Suit in N.Y. --------------------------------------------------------- The law firm of Coughlin Stoia Geller Rudman & Robbins LLP has filed an investor lawsuit against Merrill Lynch & Co. Inc. (NYSE: MER) and has said that the company issued false and misleading statements about its exposure to risky mortgage investments. The lawsuit, which was filed in U.S. District Court for the Southern District of New York, seeks class-action status. The suit was brought on behalf of an institutional investor, Life Enrichment Foundation. The complaint accused Merrill of issuing materially false and misleading statements about its financial exposure to collateralized debt obligations containing subprime mortgage securities. The suit has also named Stanley O'Neal, who was ousted as Merrill chairman and chief executive, co-presidents Ahmass Fakahany and Gregory Fleming and chief financial officer Jeffrey Edwards as defendants. The suit is “Life Enrichment Foundation et al. v. Merrill Lynch & Co., Inc. et al., Case No. 1:2007-cv-09633,” filed in the New York Southern District Court under Judge Leonard B. Sand. Representing the plaintiff is: Coughlin Stoia Geller Rudman & Robbins LLP Web site: http://www.csgrr.com/ MERRILL LYNCH: Tyco Research Suit Settled; Hearing Set Jan. 9 ------------------------------------------------------------- The Law Offices Bernard M. Gross, P.C. informs that the the suit “In re Merrill Lynch Tyco Research Securities Litigation, 03-CV- 4080 (JFK),” has been preliminarily certified as a class action and that a settlement for $4,900,000 in cash has been proposed. The class consists of all persons who purchased the common stock of Tyco International Ltd. Between Jan. 22, 2002 through June 6, 2002, inclusive. A hearing will be held before the Honorable John F. Keenan, United States District Court, Southern District of New York, 500 Pearl Street, New York, New York 10007 at 10:00 a.m. on January 9, 2008, to determine whether the proposed settlement of this class action should be approved by the Court as fair, reasonable, and adequate, and to consider the application of Plaintiffs' Counsel for attorneys' fees and reimbursement of expenses. Claims filing deadline is Dec. 31, 2007. Claim form is available at: http://www.merrilllynchtycosettlement.com. Claims administrator: In re Merrill Lynch Tyco Research Securities Litigation c/o Valley Forge Admin. Svcs. One Aldwyn Center, 3rd Floor, P.O. Box 220 Villanova, PA 19085, 1-877-965-3300 E-mail: requests@merrilllynchtycosettlement.com Deadline for exclusion is Dec. 3, 2007. Requests must be submitted to: Deborah R. Gross, Esq. LAW OFFICES BERNARD M. GROSS, P.C., Suite 450, the Wanamaker Building 100 Penn Square East, Philadelphia Pennsylvania 19107 with a copy to Defense Counsel: Jay B. Kasner, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square, New York, New York 10036 Kevin Clines, Esq., HUGHES HUBBARD & REED LLP One Battery Park Plaza, New York, New York 10004. For further information, contact: Michael Miller Valley Forge Administrative Services Phone: 1-877-965-3300 NATIONAL HOME: Settles Del. Litigation Over AG Health Merger ------------------------------------------------------------ National Home Health Care Corp. settled a purported class action in Delaware over a merger agreement between the company, AG Home Health Acquisition Corp., and AG Home Health LLC. On Jan. 19, 2007, Helaba Invest Kapitalanlagegesellschaft mbH filed a verified class action complaint in the Delaware Court of Chancery. The suit purportedly was filed on behalf of the “public shareholders of the Company.” The Class Action Complaint names as defendants the Company and the individual members of its board of directors. In the Class Action Complaint, the plaintiff challenges the Merger Agreement and seeks a declaration that the defendants, and each of them, have committed or participated in a breach of their fiduciary duties of loyalty, good faith and care to the Company’s minority, public stockholders by approving the merger, and causing the Company to enter into the Merger Agreement. The plaintiff in the Class Action Complaint seeks preliminary and permanent injunctive relief preventing the consummation of the transaction, or in the alternative, if the transaction is consummated, rescission of the transaction. In the Class Action Complaint, the plaintiff alleged, among other things, that the initial Merger Consideration of $11.35- $11.50 per Common Share was inadequate; that the break up fee in the Merger Agreement is excessive and discourages other potentially superior offers for the Company; that two of the directors, the largest individual stockholders of the Company, have executed voting agreements requiring them to vote in favor of the transaction; and that certain terms of the transaction provide financial benefits to management and inside directors that create conflicts of interest. The defendants filed answers on or about Feb. 13, 2007, denying the material allegations of the Class Action Complaint. Plaintiff’s motion for a preliminary injunction enjoining the transaction was denied by the Court. The parties have agreed in principle to a settlement of the lawsuit in exchange for an additional payment of $0.10 per share in cash to all shareholders of the Company other than the directors and officers of the Company and their families. The additional payment of $0.10 per share in connection with the merger will be paid by AG Home Health Acquisition Corp., a Delaware corporation. If the merger is not completed, no payment will be made. On Oct. 18, 2007 counsel for the parties executed a memorandum of understanding with respect to the settlement, according to the company’s Oct. 29, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2007. National Home Health Care Corp. -- http://www.nhhc.net-- is a provider of home health care and staffing services in the Northeast region. Home health care services include four categories: home health nursing services, infusion therapy, respiratory therapy and home medical equipment. RENT-A-CENTER INC: Settles Tex. Securities Fraud Suit for $3.6M --------------------------------------------------------------- A settlement was reached in a purported securities fraud class action filed against Rent-A-Center, Inc. and certain of its current and former officers and directors in the U.S. District Court for the Eastern District of Texas. Case Background Filed on Jan. 4, 2002, the putative class action, "Terry Walker, et al. v. Rent-A-Center, Inc., et al.," alleged that the defendants violated Sections 10(b) and/or Section 20(a) of the U.S. Securities Exchange Act and Rule 10b-5 promulgated thereunder by issuing false and misleading statements and omitting material facts regarding the company's financial performance and prospects for the third and fourth quarters of 2001 (Class Action Reporter, May 23, 2007). The complaint purported to be brought on behalf of all purchasers of the company's common stock from April 25, 2001 through Oct. 8, 2001 and sought damages in unspecified amounts. The court later consolidated similar complaints with the "Walker" suit in October 2002. On Nov. 25, 2002, the lead plaintiffs in the "Walker" suit filed an amended consolidated complaint, which added certain of the company's outside directors as defendants to the Exchange Act claims. The amended complaint also added additional claims that the company, and certain of its current and former officers and directors, violated various provisions of the Securities Act as a result of alleged misrepresentations and omissions in connection with an offering in May 2001 and also added the managing underwriters in that offering as defendants. On Feb. 7, 2003, the company, along with certain officer and director defendants, filed a motion to dismiss the matter as well as a motion to transfer venue. In addition, the company's outside directors named in the matter separately filed a motion to dismiss the Securities Act claims on statute of limitations grounds. On Feb. 19, 2003, the underwriter defendants also filed a motion to dismiss the matter. The plaintiffs filed response briefs to these motions, to which the company replied on May 21, 2003. A hearing was held by the court on June 26, 2003 to hear each of these motions. On Sept. 30, 2003, the court granted the company's motion to dismiss without prejudice, dismissed without prejudice the outside directors' and underwriters' separate motions to dismiss and denied the company's motion to transfer venue. In its order on the motions to dismiss, the Court granted the lead plaintiffs leave to replead the case within certain parameters. On July 7, 2004, the plaintiffs again repled their claims by filing a third amended consolidated complaint, raising allegations of similar violations against the same parties generally based upon alleged facts not previously asserted. The company, along with certain officer and director defendants and the underwriter defendants, filed motions to dismiss the third amended consolidated complaint on Aug. 23, 2004. A hearing on the motions was held on April 14, 2005. On July 25, 2005, the court ruled on these motions, dismissing with prejudice the claims against the outside directors as well as the underwriter defendants, but denying the company's motion to dismiss. In evaluating this motion to dismiss, the court was required to view the pleadings in the light most favorable to the plaintiffs and to take the plaintiffs' allegations as true. On Aug. 18, 2005, the company filed a motion to certify the dismissal order for an interlocutory appeal, which was denied on Nov. 14, 2005. A hearing on class certification was held on June 22, 2006. The court has made no ruling on the motion for class certification. Discovery is ongoing. Settlement Terms The company recently reported that it has reached a prospective $3.6 million settlement to resolve the matter, according to a report by Maria Halkias of The Dallas Morning News. During a conference call with analysts, chairman and chief executive Mark Speese said that the settlement is the last of multiple lawsuits that had been pending. He pointed out, "Any material litigation has been disclosed and I feel pretty comfortable with how we are doing on that front. Obviously it is something we are very mindful of and hope to be able to frankly improve even further as we go forward." Payments to purchasers of its common stock from April 25, 2001, through Oct. 8, 2001, and administrative fees are expected to be covered by its insurance provider, the company said. In connection with the settlement, neither Rent-A-Center nor any officer and director defendants are admitting liability for any securities laws violations. The suit is "Walker, et al. v. Rent-A-Center, et al., Case No. 5:02-cv-00003-DF," filed in the U.S. District Court for the Eastern District of Texas under Judge David Folsom. Representing the plaintiffs are: Bradley Earl Beckworth, Esq. Nix Patterson & Roach 205 Linda Drive Daingerfield, TX 75638, Phone: 903-645-7333 Fax: 19036454415 E-mail: bbeckworth@nixlawfirm.com - and - Thomas Emerson Bilek, Esq. Hoeffner & Bilek, LLP 1000 Louisiana, Suite 1302 Houston, TX 77002 Phone: 713-227-7720 Fax: 17132279404 E-mail: tbilek@hb-legal.com Representing the defendants are: Anne Marie Rodgers, Esq. Darryl Wade Anderson, Esq. Fulbright & Jaworski, 1301 McKinney, Suite 5100, Houston, TX 77010-3095 Phone: 713/651-5473 Fax: 713-651-6652 and 17136515246 E-mail: arodgers@fulbright.com danderson@fulbright.com WEGLOW INT'L: Recalls Metal Jewelry Due to High Lead Content ----------------------------------------------------------- WeGlow International, of Virginia Beach, Va., in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 110,000 WeGlow children’s metal jewelry. The company said the recalled jewelry contains high levels of lead. Lead is toxic if ingested by young children and can cause adverse health effects. No incidents/injuries have been reported. This recall involves WeGlow children’s flashing rings. The character-themed rings were sold in Shrek the Third and Spiderman 3 designs. The rings have item number 920422 printed on back of the packaging. To see picture of recalled jewelry: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08044.jpg The jewelry were made in China and sold exclusively at Dollar Tree, Dollar Bill$, Dollar Express, Greenbacks and Only $1 stores nationwide from December 2005 through August 2007 for $1. Consumers should immediately take this jewelry away from children and return it to the store where purchased for a refund. For additional information, contact WeGlow toll-free at (866) 934-5692 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.weglow.com. XEROX CORP: Discovery Ongoing in Conn. ERISA Litigation ------------------------------------------------------- Discovery is ongoing in a consolidated lawsuit filed in the U.S. District Court for the District of Connecticut, which is alleging that Xerox Corp. violated the Employee Retirement Income Security Act. On Jul. 1, 2002, a class action complaint “Patti v. Xerox Corp. et al.,” was filed, alleging violations of ERISA. Three additional class actions -- Hopkins, Uebele and Saba – were subsequently filed in the same court making substantially similar claims. On Oct. 16, 2002, the four actions were consolidated as “In Re Xerox Corp. ERISA Litigation.” On Nov. 15, 2002, a consolidated amended complaint was filed. A fifth class action (Wright) was filed in the District of Columbia. It has been transferred to Connecticut and consolidated with the other actions. The purported class includes all persons who invested or maintained investments in the Xerox Stock Fund in the Xerox 401(k) Plans (either salaried or union) during the proposed class period, May 12, 1997 through Nov. 15, 2002, and allegedly exceeds 50,000 persons. The defendants include the company and these individuals or groups of individuals during the proposed class period: -- Plan Administrator; -- Board of Directors; -- Fiduciary Investment Review Committee; -- Joint Administrative Board; -- Finance Committee of the Board of Directors; and -- Treasurer. The complaint claims that all the foregoing defendants were fiduciaries of the Plan under ERISA and, as such, were obligated to protect the Plan's assets and act in the interest of Plan participants. The complaint alleges that the defendants failed to do so and thereby breached their fiduciary duties. Specifically, plaintiffs claim that the defendants failed to provide accurate and complete material information to participants concerning company stock, including accounting practices which allegedly artificially inflated the value of the stock, and misled participants regarding the soundness of the stock and the prudence of investing their retirement assets in company stock. Plaintiffs also claim that defendants failed to invest Plan assets prudently, to monitor the other fiduciaries and to disregard Plan directives they knew or should have known were imprudent, and failed to avoid conflicts of interest. The complaint does not specify the amount of damages sought. However, it asks that the losses to the Plan be restored, which it describes as "millions of dollars." It also seeks other legal and equitable relief, as appropriate, to remedy the alleged breaches of fiduciary duty, as well as interest, costs and attorneys' fees. The company filed a motion to dismiss the complaint. The plaintiffs subsequently filed a motion for class certification and a motion to commence discovery. Defendants have opposed both motions, contending that both are premature before there is a decision on their motion to dismiss. In the fall of 2004, the court requested an updated briefing on the company's motion to dismiss and update briefs were filed in December of that year. On March 31, 2006, the court granted the company's motion to postpone consideration of class certification pending disposition of the company's motion to dismiss, and granted plaintiffs motion to commence formal discovery. On April 17, 2007, the Court ruled on the motion to dismiss, granting it in part and denying it in part, and giving the plaintiffs an opportunity to replead. In essence, the Court stated that the class period does not extend past the date on which the complaint was filed, Nov. 15, 2002. The Court also required the plaintiffs to plead with greater specificity with regard to which defendants are alleged to have breached which duties, and granted the motion with respect to the duty of loyalty count, agreeing with defendants that ERISA does not require fiduciaries to avoid conflicts of interest but rather sets a loyalty standard to which fiduciaries must adhere when faced with a conflict of interest. However, the Court did give the plaintiffs leave to replead the duty of loyalty count. Further, the Court granted the motion as to plaintiffs’ prayer for relief seeking to enjoin the defendants from violating ERISA, holding that an injunction must be more specific than a simple command that the defendants obey the law. The Court denied the motion as to the prudence count and the monitoring count, ruling that further fact development is needed as to those counts, and, on the disclosure count, determined that plaintiffs have set forth a claim, rejecting defendants’ assertion that SEC filings made by the Company in its corporate capacity and required by the federal securities laws cannot be the basis of a fiduciary breach under ERISA even if subsequently included in disclosures made directly to plan participants. Finally, the Court held that the plaintiffs are not precluded from pursuing their claims under section 502(a)(2) merely because any recovery will not be shared by all participants in the plan but rather by a sub-class of participants who had invested in Xerox stock during the class period. Also on April 17, 2007, the Court denied plaintiffs’ motion to certify a class and said that subject needs to be addressed in a scheduling conference that the Court will convene in the future. The plaintiffs subsequently filed a Second Consolidated Amended Complaint, alleging that some or all defendants breached their ERISA fiduciary duties during 1997-2002 by: -- maintaining the Xerox Stock Fund as an investment option under the Plan; -- failing to monitor the conduct of Plan fiduciaries; and -- misleading Plan participants about Xerox stock as an investment option under the Plans. On July 18, 2007, Defendants answered the new complaint and also filed a partial motion to dismiss. On Aug. 9, 2007, the plaintiffs filed their motion for class certification and on Aug. 31, 2007 filed their opposition to defendants’ partial motion to dismiss. Discovery is ongoing, according to the company’s Oct. 26, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is "In Re Xerox Corp. ERISA Litigation, Case No. 3:02- cv-01138-AWT," filed in the U.S. District Court in Connecticut under Judge Alvin W. Thompson. Representing the plaintiffs are: Gary A. Gotto, Esq. Keller Rohrback 3101 North Central Avenue, Suite 900 Phoenix, Arizona 85012-2600 Phone: 602-230-6322 Fax: 602-248-2822 E-mail: ggotto@kellerrohrback.com - and - Charles R. Watkins, Esq. Susman & Watkins Two First National Plaza, Suite 600, Chicago, IL 60603 Phone: 312-346-3466 Fax: 312-346-2829 E-mail: chuckwatkins@ameritech.net. Representing the defendants are: William H. Boice, Esq. Kilpatrick Stockton 1100 Peachtree St., Ste. 2800 Atlanta, GA 30309-4530 Phone: 404-815-6464 Fax: 404-541-3134 E-mail: bboice@kilpatrickstockton.com - and - William J. Egan, Esq. Brown Raysman Millstein Felder & Steiner City Place II, 185 Asylum Street, 10th Floor Hartford, CT 06103 Phone: 860-275-6400 Fax: 860-275-6410 E-mail: wegan@brownraysman.com. XEROX CORP: Second Circuit Affirms Dismissal of Apartheid Suit -------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit affirmed the dismissal by the U.S. District Court for the Southern District of New York of the class action, “Digwamaje et al. v. IBM et al.” The suit, filed against Xerox Corp. and several other corporations, alleges that defendants provided material assistance to the apartheid government in South Africa from 1948 to 1994, by engaging in commerce in South Africa and with the South African government and by employing forced labor, thereby violating both international and common law. Filed on Sept. 27, 2002, the First Amended Complaint on the company was deemed effective as of Dec. 6, 2002. On March 19, 2003, plaintiffs filed a Second Amended Complaint that eliminated a number of corporate defendants but was otherwise identical in all material respects to the First Amended Complaint. Plaintiffs claim violations of the Alien Tort Claims Act, the Torture Victims Protection Act and Racketeer Influenced and Corrupt Organizations Act. They also assert human rights violations and crimes against humanity. Plaintiffs seek compensatory damages in excess of $200 billion and punitive damages in excess of $200 billion. The foregoing damages are being sought from all defendants, jointly and severally. The company filed a motion to dismiss the Second Amended Complaint. Oral argument of the motion was heard on Nov. 6, 2003. By Memorandum Opinion and Order filed Nov. 29, 2004, the court granted the motion to dismiss. A clerk's judgment of dismissal was filed on Nov. 30, 2004. On Dec. 27, 2004, the company received a notice of appeal dated Dec. 24, 2004. On Feb. 16, 2005, the parties filed a stipulation withdrawing the Dec. 24, 2004 appeal on the ground that the Nov. 30, 2004 judgment of dismissal was not appealable. On March 28, 2005, plaintiffs submitted a letter requesting permission to file a motion for leave to file an amended and consolidated complaint. By Summary Order filed April 6, 2005, the court denied the request. In a second Summary Order filed the same day, the court amended its Nov. 29, 2004, Opinion and Order, which dismissed the action, so as to render the Opinion and Order appealable and plaintiffs filed a new appeal on May 3, 2005. On Aug. 19, 2005, plaintiffs-appellants filed their brief in the U.S. Court of Appeals for the Second Circuit. On Oct. 4, 2005, defendants-appellates filed their brief in the Second Circuit Court of Appeals. Oral argument in the Second Circuit Court of Appeals was held on Jan. 24, 2006. On Oct. 12, 2007, the U.S. Court of Appeals affirmed the dismissal of the claims asserted under the Torture Victim Protection Act, vacated the dismissal of the claims asserted under the Alien Tort Claims Act and remanded those claims to the district court for further proceedings. The suit is "Digwamaje, et al. v. IBM Corporation, et al., Case No. 1:02-cv-06218-JES," filed in the U.S. District Court for the Southern District of New York under Judge John E. Sprizzo. Representing the plaintiffs are: Kweku J. Hanson, Esq. 487 Main Street Harford, CT 06106 Phone: (860) 728-5454 Fax: (860) 548-9660 Medi Moira Mokuena 268 Jubilee Avenue, Halfway House 1685, Extension 12 Republic of South Africa - and - Paul M. Ngobeni, Esq. 914 Main Street, Suite 206 East Hartford, CT 06108 Phone: (860) 289-3155 and (508) 620-4798. Representing the defendants are: Kristin M. Heine, Esq. Drinker, Biddle & Reath, LLP 500 Campus Drive, Florham Park NJ 07932-1047 Phone: (973) 549-7338 Fax: (973) 360-9831 Web site: http://www.drinkerbiddle.com/ - and - Kristin Michele Heine, Esq. Drinker, Biddle & Reath, LLP 140 Broadway, 39th Flr. New York, NY 10005 Phone: (973) 549-7338 Fax: (973) 360-9831 E-mail: kristin.heine@dbr.com. Asbestos Alerts ASBESTOS LITIGATION: Badger Meter Still Faces 3rd-Party Lawsuits ---------------------------------------------------------------- Badger Meter Inc. continues to be named as defendant in numerous multi-claimant/multi-defendant lawsuits alleging personal injury as a result of exposure to asbestos, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 24, 2007. The asbestos was manufactured by third parties, and integrated into a very limited number of the Company’s industrial products. The Company is vigorously defending itself against these claims. The Company says that no claimant has demonstrated exposure to products manufactured or sold by the Company and that a number of cases have been voluntarily dismissed. Milwaukee-based Badger Meter Inc. provides water utilities and industrial customers with instruments that measure and control the flow of liquids. The Company makes meters, valves, flow tubes, and other measurement devices for original equipment manufacturers, water and wastewater utilities, and companies in the pharmaceutical, chemical, concrete, and food and beverage industries. ASBESTOS LITIGATION: Corning Inc. Records US$16M Credit at Sept. ---------------------------------------------------------------- Corning Inc., in the 2007-3rd quarter, recorded a credit of US$16 million (pretax and after-tax) including a mark-to-market credit of US$23 million reflecting the decrease in Corning’s common stock from June 30, 2007 to Sept. 30, 2007 and a US$7 million charge to adjust the estimated settlement value of certain other components of a proposed asbestos settlement. In the three months ended Sept. 30, 2007, the Company recorded an asbestos settlement credit of US$13 million. The Company recorded an asbestos settlement credit of US$170 million in the nine months ended Sept. 30, 2007, compared with US$137 million in the nine months ended Sept. 30, 2006. On March 28, 2003, the Company announced that it had reached agreement with the representatives of asbestos claimants for the settlement of all current and future asbestos claims against Corning and Pittsburgh Corning Corp. that might arise from PCC products or operations. The proposed settlement, if approved, will require the Company to relinquish its equity interest in PCC, contribute its equity interest in Pittsburgh Corning Europe N.V., a Belgian corporation, and contribute 25 million shares of Corning common stock. The Company also agreed to make cash payments with a value of US$131 million, in March 2003, over six years from the effective date of the settlement and to assign insurance policy proceeds from its primary insurance and a portion of its excess insurance at the time of the settlement. As a result of the proposed asbestos settlement, any changes in the estimated settlement value of the components of the proposed settlement agreement will be recognized in the Company’s quarterly results until the date of the contribution to the settlement trust. Beginning with the 2003-1st quarter, the Company has recorded total net charges of US$987 million to reflect the estimated settlement value of the Company's asbestos liability. Based in Corning, N.Y., Corning Inc. makes specialty glass and ceramics. Products include glass substrates for LCD televisions, computer monitors and laptops; ceramic substrates and filters for mobile emission control systems; optical fiber, cable, hardware & equipment for telecommunications networks; optical biosensors for drug discovery; and other advanced optics and specialty glass solutions for a number of industries including semiconductor, aerospace, defense, astronomy and metrology. ASBESTOS LITIGATION: Celanese Units Record 672 Cases at Sept. 30 ---------------------------------------------------------------- Celanese Corp.'s U.S. subsidiaries, Celanese Ltd. and CNA Holdings Inc., as of Sept. 30, 2007, are defendants in about 672 asbestos cases, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 24, 2007. Celanese Ltd. and CNA Holdings Inc., as of June 30, 2007, faced about 674 asbestos cases. (Class Action Reporter, Aug. 3, 2007) During the three months ended Sept. 30, 2007, 26 new cases were filed against the Company and 28 cases were resolved. Since many of these cases involve numerous plaintiffs, the Company is subject to claims significantly in excess of the number of actual cases. The Company has reserves for defense costs related to claims arising from these matters. Dallas-based Celanese Corp., with its subsidiaries, is an integrated global hybrid chemical company. The Company’s business involves processing chemical raw materials, like carbon monoxide and ethylene, and natural products, including wood pulp, into value-added chemicals, thermoplastic polymers and other chemical-based products. ASBESTOS LITIGATION: Union Pacific Has $272M Liability at Sept. ---------------------------------------------------------------- Union Pacific Corp.'s long-term asbestos-related liability totaled US$272 million in the nine months ended Sept. 30, 2007, compared with US$304 million in the nine months ended Sept. 30, 2006, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Oct. 24, 2007. The Company recorded an asbestos-related liability of US$296 million for the six months ended June 30, 2007, compared with US$306 million for the six months ended June 30, 2006. (Class Action Reporter, Aug. 3, 2007) The Company made asbestos-related payments of US$10 million in the nine months ended Sept. 30, 2007, compared with US$7 million in the nine months ended Sept. 30, 2006. The Company made asbestos-related payments of US$6 million for the six months ended June 30, 2007, compared with US$5 million for the six months ended June 30, 2006. (Class Action Reporter, Aug. 3, 2007) The current portion of the Company's asbestos liability amounted to US$13 million in the nine months ended Sept. 30, 2007, compared with US$16 million in the nine months ended Sept. 30, 2006. The Company is a defendant in a number of lawsuits in which current and former employees allege exposure to asbestos. Additionally, the Company has received claims for asbestos exposure that have not been litigated. The claims and lawsuits allege occupational illness resulting from exposure to asbestos- containing products. In most cases, the claimants do not have credible medical evidence of physical impairment resulting from the alleged exposures. Additionally, most claims filed against the Company do not specify an amount of alleged damages. In July 2007, the Company requested a third-party specialist to review its historical asbestos claim and resolution activity and determine the appropriateness of updating the Company's November 2004 asbestos study. Based on the updated study, which was completed in the 2007-3rd quarter, and its own review of the asbestos claim and resolution activity, the Company decreased its asbestos-related liability for pending and future claims by US$20 million at Sept. 30, 2007. The Company has insurance coverage for a portion of the costs incurred to resolve asbestos-related claims, and, it has recognized an asset for estimated insurance recoveries at Sept. 30, 2007 and Dec. 31, 2006. In conjunction with the asbestos study completed in the 2007-3rd quarter, the Company also analyzed its estimated insurance recoveries and recorded a reduction in the asset for estimated insurance recoveries. Omaha, Nebr.-based Union Pacific Railroad Co., a subsidiary of Union Pacific Corp., is the leading rail freight carrier in the U.S. Union Pacific Railroad transports coal, chemicals, industrial products, and other freight over a system of more than 32,300 route miles in 23 states in the western two-thirds of the U.S. ASBESTOS LITIGATION: Cleanup of Hazard in Mont. Nearly Finished ---------------------------------------------------------------- The asbestos cleanup season in Libby, Mont., is nearing completion, Montana's News Station reports. Soon, the U.S. Environmental Protection Agency will be making decisions about what to do in 2008. The EPA is requesting citizens to help set budget priorities. EPA contractors will have removed asbestos from 160 homes and properties in 2007 alone, and cleanup officials expect to reach that same number in 2008. In 2008, the cleanup effort will also include the nearby town of Troy, Mont. This year, the EPA began inspecting properties in that community. Those inspections will continue in 2008, but actual asbestos removal projects will begin in at least half a dozen places. ASBESTOS LITIGATION: Mont. Senators Set Aside $250T for Clinic ---------------------------------------------------------------- Sen. Max Baucus (D-Montana) and Sen. Jon Tester (D-Montana) said that they have reserved US$250,000 in emergency funding for the Center for Asbestos-Related Disease Clinic in Libby, Mont., Montana's News Station reports. Sen. Baucus and Sen. Tester have asked members of the U.S. to include the funding for the clinic in the Labor, Health and Human Services and Education Appropriations Bill. Officials with the CARD Clinic had asked for the money to continue serving victims of asbestos poisoning in the Libby area. ASBESTOS LITIGATION: New Zealand Power Plant Closed for Cleanup ---------------------------------------------------------------- Contact Energy Ltd.'s power plant in New Plymouth, New Zealand, will be closed for at least six months as efforts get underway to remove asbestos, NewstalkZB reports. The mineral fiber was discovered under insulation pipe lagging in the plant's turbine hall and boiler room and the plant was closed. The area was previously thought to be asbestos free. Company Chief Executive David Baldwin says the Company now has more information on the options for remedial work, which would see two of the generating units returned to service by May 2008. Mr. Baldwin said, “The presence of asbestos in itself does not represent a problem, provided it is contained. For the vast majority of people who work or have worked at New Plymouth, any exposure to asbestos would be very low and unlikely to cause health problems.” Mr. Baldwin says some staff would remain on site while the work took place, while others would be reassigned to other projects. The remainder would be on special paid leave. Former employees who have questions about possible historic exposure to asbestos are being advised to call the New Plymouth power station. Contact Energy is not ruling out the possibility of shutting the plant permanently and is investigating costs and time frames. ASBESTOS LITIGATION: Removal in Maine Building to Cost $50,000 ---------------------------------------------------------------- The board of directors of the Shiretown Development Corp., on Oct. 22, 2007, learned that it will likely take an estimated US$50,000 to remove asbestos from the former Houlton International Corp. building in Houlton, Maine, Bangor Daily News reports. The SDC entered into a US$161,000 purchase-and-sale agreement with officials from the former Houlton International facility more than three years ago. At the time, the SDC planned to use the massive complex garnered through the agreement to attract a larger business to the area. Early in October 2000, Town Manager Douglas Hazlett told the directors that asbestos was found in 610 linear feet of wrapped heating pipe in the building, in some bathroom floor tiles and in the facility’s exterior siding. During the meeting on Oct. 22, 2007, the town reviewed estimates from County Abatement, who estimated it would cost the town an estimated US$50,000 to have the asbestos taken out if they wanted to demolish the structure. However, the SDC does not have US$50,000. In fact, SDC Chairman Paul Romanelli said, the money in the board’s account has dwindled to US$33,500, down from US$51,000 at the start of the year. ASBESTOS LITIGATION: Quigley Co.'s Plan to Proceed, Judge Says ---------------------------------------------------------------- Judge Stuart M. Bernstein of the U.S. Bankruptcy Court in Manhattan said the now-defunct Quigley Co.'s plan to repay creditors and asbestos claimants can move forward, dealing a blow to a group of asbestos personal-injury claimants who called the bankruptcy plan an attempt to avoid responding to "countless dying cancer victims," Associated Press reports. Judge Bernstein said that, while the plan raises questions about the treatment of asbestos creditors, its disclosure statement provides creditors with enough information to make an informed decision on the plan. Judge Bernstein's Oct. 23, 2007 ruling approving the bankruptcy plan's disclosure statement means Quigley, which filed for bankruptcy protection three years ago to resolve hundreds of thousands of asbestos related personal-injury claims, can send the plan to creditors for a vote. Judge Bernstein said the asbestos group's complaints "require an evidentiary hearing" when the court decides whether it should approve the plan itself. Quigley, a defunct company that once made heat-resistant products containing asbestos, is trying to wrap up its Chapter 11 case with a plan that would compensate victims sickened by its products through a trust funded by US$650 million in contributions from drug maker Pfizer Inc. Pfizer bought Quigley in 1968, but Quigley sold its assets in 1992 and has since focused on managing its asbestos liabilities. The committee argued that the proposed plan treats creditors who settled with Quigley and Pfizer before the bankruptcy filing more favorably. Before Quigley sought Chapter 11 protection in September 2004, Pfizer agreed to pay the settling creditors, more than 80 percent of the personal-injury claimants, a total of US$430 million. Pfizer paid half of the settlement in 2005 and will pay the rest when Quigley's plan is confirmed. The committee said Quigley's plan lumps both settling and non- settling asbestos creditors into the same class for repayment purposes, even though the settling creditors will get money from both Pfizer and the trust set up to compensate the personal- injury victims. An earlier version of Quigley's plan failed to make it through the plan-voting process in 2006 when a judge ruled that Pfizer's pre-bankruptcy arrangements with asbestos claimants unfairly tainted the balloting. Under the new plan, Pfizer agreed to kick in an extra US$100 million, in addition to the US$550 million it had already set aside, to fund the payments to asbestos victims. ASBESTOS LITIGATION: Cleanup of Albert Potato Farm Ongoing ---------------------------------------------------------------- U.S. Environmental Protection Agency workers and contractors are currently removing containers of hazardous substances and asbestos-containing materials from the abandoned Albert Farm in Worthington, Mass, according to an EPA press release dated Oct. 25, 2007. EPA is taking this action to remove pesticides, asbestos and oils containing hazardous substances from the property. The former potato farm is currently inactive. An EPA investigation of the farm found several abandoned buildings, one of which is structurally unsound and from which asbestos is being released into the environment. EPA has also identified about 25 drums and containers which have significant traces of hazardous chemicals. There are also several above- and below- ground storage tanks located throughout the property. The ground under several drums is not sealed with asphalt, and oil and hazardous materials may have been released to the soil. There is no fence or other access restrictions to prevent people from entering the Site. In August 2007, EPA began removal activities at the farm. The work has included constructing a drum/container staging area inside the former garage, collecting drums and containers and consolidating them in the staging area. EPA is sampling the drums and containers to identify appropriate disposal methods. Workers on site are also cleaning up broken and disintegrating asbestos-containing transite building board within the disintegrating buildings. These materials will also be disposed of at a licensed facility. While EPA has removed asbestos items, crews have also performed air monitoring to ensure that traces of asbestos are not being released into the air which could pose a health concern for people. The clean-up work is expected to cost about US$120,000, and is likely to be completed by the end of October 2007. ASBESTOS LITIGATION: Supreme Court Set to Rule on Blue Lady Ship ---------------------------------------------------------------- Environmental campaigners, on Oct. 25, 2007, said that India's Supreme Court will decide in November 2007 the fate of Blue Lady, a French-made cruise liner waiting to be dismantled that activists say is lined with asbestos, Agence-France Presse reports. In September 2007, the court had given permission to the owners of the Blue Lady to break up the vessel for scrap off India's west coast based on a report by an expert panel it had appointed. However, activists said that decision contradicted a ruling given a few days earlier by the top court, which said all ships must be decontaminated before being taken apart. Gopal Krishna, spokesman for the Indian Platform on Shipbreaking, an umbrella group that includes Greenpeace and the Ban Asbestos Network, said, “We are puzzled by the court's (later) order.” The group has asked for a review of the ruling. Originally launched in 1960 as the SS France, the ship has been known as the SS Norway and finally the Blue Lady. Environmentalists say the vessel contains some 1,200 tons of cancer-causing materials like asbestos, and radioactive elements, which endanger the health of ship-breakers who work with little protection. The ship was turned away by Bangladesh in February 2006 because its contents were deemed too toxic for it to be dismantled there, but the boat was allowed into Indian waters several months later. The current owner of the ship, a private Indian company called Priya Blue Industries, wants to dismantle the Blue Lady off India's western Alang coast, but company staff said the work has been delayed. A shipbreaking industry body agreed there was confusion over the conflicting court rulings. Praveen Nagarseth, President of Shipbreakers Association, said, “The court also wants us to declare the quantity of toxins, but no one has the expertise to do it.” ASBESTOS LITIGATION: Inquest Links Kiln Wirer's Death to Hazard ---------------------------------------------------------------- An inquest heard that the death of 77-year-old Gerald Day, a kiln wirer from Grange Park in Northampton, England, U.K., was linked to asbestos, Northampton Chronicle & Echo reports. The inquest heard that Mr. Day died from cancer after his work exposed him to white asbestos. Mr. Day began suffering flu symptoms, which eventually led to his diagnosis with mesothelioma. Rodney Haig, deputy coroner for Northamptonshire, recorded the cause of Mr. Day's death as an industrial disease. ASBESTOS LITIGATION: Dow Chemical Has $1.061B Liability at Sept. ---------------------------------------------------------------- The Dow Chemical Co.'s non-current asbestos-related liabilities amounted to US$1.061 billion as of Sept. 30, 2007, compared with US$1.079 billion as of Dec. 31, 2006, according to a Company press release dated Oct. 25, 2007. The Company's non-current asbestos-related insurance receivable amounted to US$687 million as of Sept. 30, 2007, compared with US$725 million as of Dec. 31, 2006. The Dow Chemical Co., based in Midland, Mich., is a diversified chemical company that offers products and services to customers in more than 175 countries, helping them to provide everything from fresh water, food and pharmaceuticals to paints, packaging and personal care products. The Company has annual sales of US$49 billion and employs 43,000 people worldwide. ASBESTOS LITIGATION: Clarke Case Junked in Prison Staff's Favor ---------------------------------------------------------------- The U.S. District Court, S.D. New York, granted Delores Thornton and the other defendants' motion to dismiss an action, which involves asbestos, in which Chandrica Clarke is the named plaintiff. U.S. District Judge Marrero entered judgment of Case No. 07 Civ 3012 on Oct. 9, 2007. Ms. Clarke filed this action, alleging violations of her constitutional and statutory rights during November 2006 and December 2006 while she was incarcerated at Taconic Correctional Facility in New York State, where Delores Thornton served as Superintendent and the other individual defendants were officers. Ms. Clarke asserted four specific claims: 1) that she was deprived of outdoor activity; 2) that she was denied timely medical treatment and subjected to "sick call" in an open corridor in violation of federal Health Insurance Portability and Accountability Act (HIPAA) privacy standards; 3) that she was made to feel unsafe by the intermingling of general inmates with the protective custody inmates, of which she was one; and 4) that she was exposed to asbestos and other health and safety hazards in her cell. Ms. Clarke alleged that this treatment as a whole violated her Eighth Amendment right to be free from cruel and unusual punishment. Defendants moved to dismiss the complaint on the grounds that Ms. Clarke failed (1) to exhaust all available administrative remedies, (2) to allege sufficient personal involvement by Defendants in causing the alleged injuries, and (3) to state appropriate grounds for relief. On Aug. 24, 2007, the Court dismissed Ms. Clarke's complaint and indicated that it would set forth its ruling in a subsequent decision and order. The District Court ruled that Ms. Clarke failed to exhaust administrative remedies prior to bringing her action in federal court. ASBESTOS LITIGATION: Behringer Ruling Reversed by Appeals Court ---------------------------------------------------------------- The Court of Appeals of Texas, Dallas, reversed a trial court's ruling in favor of Alcoa Inc., in an asbestos-related lawsuit filed by Barbara and Leroy Behringer. Justices Whittington, Bridges, and Lagarde entered judgment of Case No. 05-06-00136-CV on Oct. 11, 2007. This case was on appeal from the 116th Judicial District Court, Dallas County, Tex., Trial Court Cause No. 04-00176-F. Mrs. Behringer was married to John Alford from 1951 until 1959. During their marriage, from 1953 until 1955, and from 1957 until 1959, Mr. Alford worked for Alcoa. At the end of the day, Mr. Alford removed his work clothes at Alcoa, showered in the changing room, and took his work clothes home in a bag. Every other day during the four years at issue, Mrs. Behringer (then Mrs. Alford) would take Mr. Alford's dusty work clothes outside, shake them off, and then bring them back inside to wash them in the family's washing machine. Although Mr. Alford continued to work for Alcoa after 1959, as a result of their divorce, Mrs. Behringer no longer came in contact with his clothing after that time. She was diagnosed with pleural mesothelioma in November 2003. In 2004, the Behringers sued Alcoa and other defendants alleging Mrs. Behringer's mesothelioma resulted from asbestos exposure caused by their wrongful acts. The Behringers' petition against Alcoa alleged Alcoa failed to provide adequate safety measures and protective gear and failed to adequately warn Mr. Alford and Mrs. Behringer of the dangers of asbestos exposure. By the time of trial, Alcoa was the only remaining defendant. The jury returned a verdict against Alcoa on counts of negligence and gross negligence. The jury awarded Mrs. Behringer US$12 million in actual damages and US$2 million in exemplary damages. The jury awarded Mr. Behringer US$1.5 million in actual damages for loss of household services and loss of consortium, and US$2 million in exemplary damages. After applying settlement credits and the punitive damages cap, the trial court entered judgment on the jury verdict, including prejudgment interest, in the amount of US$15,593,340.05. The trial court denied Alcoa's post-trial motions for judgment notwithstanding the verdict, to disregard jury findings, for new trial, for remittitur, and/or to modify, correct, or reform the judgment. Alcoa timely perfected appeal. Mrs. Behringer died on Jan. 25, 2006. The Appeals Court concluded that Alcoa did not owe a legal duty to Mrs. Behringer. Accordingly, the Appeals Court reversed the judgment of the trial court and rendered judgment that the Behringers take nothing on their claims