C L A S S A C T I O N R E P O R T E R Friday, November 30, 2007, Vol. 9, No. 238 Headlines AMCOR LTD: Sydney Federal Court Adds Visy in Price-Fixing Suit BC FERRIES: Suit Over 2006 Sinking Granted Partial Certification BERKSHIRE HATHAWAY: Settles Insurance Brokerage Antitrust Suit BODEE LLC: Recalls Aminotadalafil-Containing Dietary Tabs CANADA: Accused of Illegally Withholding Part of Fishing Quotas CENTERPOINT ENERGY: Reliant Settles Market Manipulation Cases CENTERPOINT ENERGY: 5th Circuit Hears Appeal in Tex. ERISA Suit CENTERPOINT ENERGY: Still Faces Natural Gas Measurement Lawsuits DICK'S SPORTING: Recalls Recliners with Brackets than can Break ENTROPIN INC: Cal. Securities Suit Settlement Hearing Set March EV3 INC: Still Faces Suit in Del. Over Plan to Buy MTI Shares IKANOS COMMS: Court Considers Motion to Dismiss Securities Suit INDIANA: Housing Partnership Settles Fraud Lawsuit for $2.4M MICROSOFT CORP: Class Status Requested in "Windows Vista” Suit MISSOURI: Suit Aiming to Block MOHELA Asset Sale Dismissed NOVASTAR MORTGAGE: Discount Fees Fraudulent, Mass. Suit Claims NUTRISYSTEM INC: Faces Several Securities Fraud Suits in Pa. PARMALAT SPA: No Ruling Yet in Motion to Block U.S. Lawsuit PRESIDENT GLOBAL: Recalls Ice Cream Bars with Undeclared Milk SOUTHERN STAR: Kans. Court Considers Pending Motions in Price I SOUTHERN STAR: Kans. Court Considers Pending Motions in Price II TELLABS INC: 7th Circuit Hears Appeal in Ill. Securities Suit TENET HEALTHCARE: Still Faces Medical Malpractice Suits in La. THANE INTERNATIONAL: Securities Suit Remanded to Calif. Court WELLS FARGO: Sued in Calif. Over Unnecessary Overdraft Charges YRC WORLDWIDE: Faces Suits Over Fuel Surcharges in LTL Shipments ZIEMAN MANUFACTURING: Settles Suit Over Toy Hauler Trailers * Lawyer R. Michael Underwood Joins Fowler White in Florida Asbestos Alerts ASBESTOS LITIGATION: Court Issues Split Ruling in Mayle Action ASBESTOS LITIGATION: Active Claims v. Dana Drop to 55T at Sept. ASBESTOS LITIGATION: CenterPoint Energy Unit Has Exposure Suits ASBESTOS LITIGATION: American Int'l. Reserves $3.87B at Sept. 30 ASBESTOS LITIGATION: Claims v. Ampco Drop to 8,274 at Sept. 30 ASBESTOS LITIGATION: Allegheny Records 826 W.Va. Claims at Sept. ASBESTOS LITIGATION: ACE Reserves $3.061B for Claims at June 30 ASBESTOS LITIGATION: Ohio Trial Court Ruling Upheld in CIC Suit ASBESTOS LITIGATION: Kans. Court Issues Split Ruling in ACE Case ASBESTOS LITIGATION: Grace Records 460 Damage Claims at Sept. 30 ASBESTOS LITIGATION: Injury Lawsuits Still Pending v. W.R. Grace ASBESTOS LITIGATION: Grace Has $917M Excess Coverage at Sept. 30 ASBESTOS LITIGATION: Grace Has $267.1M Mont. Liability at Sept. ASBESTOS LITIGATION: W.R. Grace Spends $11.2M for Libby Lawsuit ASBESTOS LITIGATION: DEP Action v. Grace, 2 Ex-Employees Ongoing ASBESTOS LITIGATION: Two Third-Party Actions Pending v. Liggett ASBESTOS LITIGATION: Todd Shipyards Faces 507 Claims at Sept. 30 ASBESTOS LITIGATION: Dalmine Faces 54 Pending Claims at Sept. 30 ASBESTOS LITIGATION: Standard Motor Has 3,430 Cases at Sept. ASBESTOS LITIGATION: Cases v. Park-Ohio Rise to 385 in Sept. 30 ASBESTOS LITIGATION: Odyssey Has $269.9M Losses, LAE at Sept. 30 ASBESTOS LITIGATION: Suits in 29 States Pending v. IDEX, 5 Units ASBESTOS LITIGATION: Magnetek Faces Lawsuits From Old Operations ASBESTOS LITIGATION: Harsco Has 26,376 Injury Claims at Sept. 30 ASBESTOS LITIGATION: Exposure Claims Pending v. General Motors ASBESTOS LITIGATION: CEAC to Pay French Agency $300T for Claims ASBESTOS LITIGATION: Chubb Corp. Incurs $63M Losses at Sept. 30 ASBESTOS LITIGATION: Constellation Still Has 535 Claims at Sept. ASBESTOS LITIGATION: Chemtura Corp. Subject to Liability Claims ASBESTOS LITIGATION: Briggs & Stratton Faces Liability Actions ASBESTOS LITIGATION: Columbus McKinnon Records $8.4M Liability ASBESTOS LITIGATION: AON Corp. Has $71M Liabilities at Sept. 30 ASBESTOS LITIGATION: XL Gains From $13M Strengthening of Claims ASBESTOS LITIGATION: Supreme Court Holds Sinnott Case Appealable ASBESTOS LITIGATION: Claimants Set to Appeal $2M Dana Settlement ASBESTOS LITIGATION: Judge Magner Assigned to ASARCO Estimation ASBESTOS LITIGATION: Exposure Lawsuits Still Pending v. Wabtec ASBESTOS LITIGATION: Injury Actions Pending v. United Industrial ASBESTOS LITIGATION: United America Unit Has 4,500 Injury Claims ASBESTOS LITIGATION: Exposure Lawsuits Still Pending v. Tenneco ASBESTOS LITIGATION: Starwood Hotels Accrues $1M for Abatement ASBESTOS LITIGATION: Norcross Safety Products Unit Has 97 Suits ASBESTOS LITIGATION: Ameren Records 76 Pending Suits at Sept. 30 ASBESTOS LITIGATION: Liability Lawsuits Pending v. Essex Int'l. ASBESTOS LITIGATION: Supreme Court Affirms Ruling in Limle Case ASBESTOS LITIGATION: Roper Industries Inc. Faces Exposure Claims ASBESTOS LITIGATION: Actions v. Parker Drilling Ongoing in Miss. ASBESTOS LITIGATION: Owens-Illinois Records 14T Claims at Sept. ASBESTOS LITIGATION: M & F Worldwide Incurs $1M Costs for Claims ASBESTOS LITIGATION: Noble Corp. Faces 31 Lawsuits at Oct. 31 ASBESTOS LITIGATION: U.K. Victim Gets Payout Days Before Death ASBESTOS LITIGATION: Lawyer Calls for an SA Specialist Tribunal ASBESTOS LITIGATION: Hardie Settles Case with Aussie Campaigner ASBESTOS LITIGATION: A.M. Best Sees $65B Total Incurred Losses ASBESTOS LITIGATION: James Hardie Still Has Compensation Issues ASBESTOS LITIGATION: Dukeminster Accused of Negligence in Devon ASBESTOS LITIGATION: Cleanup at Gov't. Bldg. in Cyprus Continues New Securities Fraud Cases ERICSSON LM: Labaton Sucharow Files Securities Fraud Lawsuit LDK SOLAR: Murray Frank Files Securities Fraud Lawsuit in N.Y. LEAP WIRELESS: Coughlin Stoia Files Cal. Securities Fraud Suit ********* AMCOR LTD: Sydney Federal Court Adds Visy in Price-Fixing Suit -------------------------------------------------------------- Justice Brian Tamberlin in Sydney granted an application by law firm Maurice Blackburn to add Visys Industries to a $300 million class action against rival Amcor Ltd. Maurice Blackburn is representing the victims of a cartel involving packaging company Amcor Ltd. In April 2006, Maurice Blackburn filed the suit in Federal Court of Australia on behalf of the now defunct Jarra Creek Central Packaging Shed Pty Ltd., alleging cartel behavior and seeking declarations, injunctions and unspecified damages against: -- Amcor Ltd., -- Amcor Packaging (Australia) Ltd., and -- Fibre Containers (Queensland) Pty Ltd. The suit claimed the plaintiff has been damaged by price fixing and market sharing in the cardboard box industry between 2000 and 2005. Amcor escaped prosecution after being granted immunity by the Australian Competition and Consumer Commission in return for information about the practice. The class action alleges customers of Amcor and Visy were overcharged between 8 per cent and 15 per cent for their cardboard packaging for a span of more than five years after the companies allegedly entered into a deal to artificially inflate prices. The addition of Visys in the suit follows a $36 million settlement between Visy and the ACCC. It is understood that an admission to the conspiracy by Visy owner Richard Pratt was part of the settlement (Class Action Reporter, Oct. 12, 2007). The suit will go before the federal court on March 14. BC FERRIES: Suit Over 2006 Sinking Granted Partial Certification ---------------------------------------------------------------- B.C. Supreme Court Chief Justice Donald Brenner certified as class action a lawsuit filed by survivors of Canada's BC Ferry ship Queen of the North, which sank in northern British Columbia in March 2006. Nanaimo Alexander and Maria Kotai filed the case, early in 2006 (Class Action Reporter, March 30, 2006). The Kotais accuse BC Ferries of failing to train crew adequately, supervise the crew on the bridge, keep a proper lookout, operate at safe speed, and conduct an evacuation of the ferry in a way that prevented or minimized injuries. In September 2006, B.C. Supreme Court Justice David Tysoe approved the addition of the ship's captain Colin Henthorne, Fourth Officer Carl Lilgert and deckhand Karen Bricker as defendants (Class Action Reporter, Sept. 8, 2006). In July, Justice Tysoe granted partial certification to the suit (Class Action Reporter, July 19, 2007). After hearing arguments to certify the suit on June 12, Judge Tysoe ruled the suit must be changed to include several classes of claimants before it can proceed. Those classes would include out-of-province passengers and some 23 dependents of passengers. B.C. Ferries has paid out $16,700 to passengers who lost cabin luggage but has refused to pay more. A lawyer for the plaintiffs said that with the most recent ruling, they can now begin out-of-court negotiations with B.C. Ferries on damages, CanWest News Service reports. According to the Canadian Press, lawyer David Varty said the certification of the class action paves the way for three subclasses of passengers who now can proceed to an assessment of damages: -- a group that will challenge the limitations on lost- baggage claims; -- a group that will represent people whose baggage claims were fully paid; and -- a group of passengers whose dependents have suffered losses such as contributions to domestic activities, household income and the ripple effect on the dependants' emotional health The Kotais will head the first group. Passenger Barney Dudowald will represent the second group. A representative has not yet been selected for the latter group, Mr. Varty said. BERKSHIRE HATHAWAY: Settles Insurance Brokerage Antitrust Suit -------------------------------------------------------------- Berkshire Hathaway, Inc. reached a settlement in a lawsuit in which plaintiffs alleged an industry-wide scheme on the part of commercial insurance brokers and insurance companies to defraud a purported class of insurance purchasers through bid-rigging and contingent commission arrangements. Initially, Berkshire Hathaway, General Re Corp., and General Reinsurance Corp., were named as defendants in this multidistrict litigation, entitled, “In Re: Insurance Brokerage Antitrust Litigation, MDL No. 1663 (D.N.J.).” On April 5, 2007, the Court dismissed all federal antitrust and RICO claims against Berkshire, General Re and General Reinsurance. On May 21, 2007, the plaintiffs concluded a settlement agreement with Berkshire, General Re and General Reinsurance that fully and finally resolved this litigation, as between these settling parties, without payment or admission of any liability on the part of these settling defendants, according to its Nov. 2, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Berkshire Hathaway Inc. -- http://www.berkshirehathaway.com/-- is a holding company owning subsidiaries engaged in a number of diverse business activities, the most important of these are insurance businesses conducted on both a primary basis and a reinsurance basis. Berkshire also owns and operates a number of other businesses engaged in a variety of activities. BODEE LLC: Recalls Aminotadalafil-Containing Dietary Tabs --------------------------------------------------------- Bodee LLC, 2222 Avenue of the Stars, 702E, Century City, CA 90067, is conducting a voluntary nationwide recall of all the company's supplement product sold under the name Encore Tabs. Bodee LLC is conducting this recall after being informed by representatives of the U.S. Food and Drug Administration that lab analysis by FDA of Encore Tabs samples found the product contains potentially harmful, undeclared ingredients. FDA asserts that its chemical analysis revealed that one lot of Encore Tabs contains aminotadalafil, an analog of tadalafil, the active ingredient of a FDA-approved drug used for Erectile Dysfunction (ED). FDA maintains Aminotadalafil is close in structure to tadalafil and is expected to possess a similar pharmacological and adverse event profile. This undeclared chemical poses a threat to consumers because it may interact with nitrates found in some prescription drugs (such as nitroglycerin) and may lower blood pressure to dangerous levels. Consumers with diabetes, high blood pressure, high cholesterol, or heart disease often take nitrates. ED is a common problem in men with these conditions, and consumers may seek these types of products to enhance sexual performance. Encore Tabs is sold in health food stores, via the internet and by mail order nationwide and in Canada. The Encore Tabs product is sold as a 2-capsule blister pack packaged in a retail booklet with five booklets in a box. Customers who have this product in their possession should stop using it immediately and contact their physician if they have experienced any problems that may be related to taking this product. Any adverse events that may be related to the use of this product should be reported to the FDA's MedWatch Program by phone at 1-800-FDA-1088 or by fax at 1-800-FDA-0178 or by mail at MedWatch, HF-2, FDA, 5600 Fishers Lane, Rockville, MD 20852- 9787. The company advises that any unused portion be returned to Bodee LLC for a full purchase price refund by calling (800) 935-0296 for instructions on the return and refund process. The Company is taking this voluntary action because it is committed and is always concerned with the health of persons who have consumed this product. The Company is reviewing the procedures and policies of all firms involved with the manufacture of the product to ensure that there will be no future issues with regard to Encore Tabs’ composition. The Company is working closely with the FDA in the recall process and is committed to the quality and integrity of its products. It sincerely regrets any inconvenience to consumers and its other customers. CANADA: Accused of Illegally Withholding Part of Fishing Quotas --------------------------------------------------------------- The Queen of England, the Canadian Minister of Fisheries and Oceans and the Pacific Halibut Management Association of British Columbia (PHMA) are facing a class-action complaint filed Nov. 20 in the Supreme Court of British Columbia, accusing them of unconstitutionally withholding 10 percent of fishing quotas from halibut fishermen and selling the rights to pay for fisheries management. Named plaintiff Lorne Nels David Iverson bring this action on behalf of halibut fishermen in British Columbia who held halibut fishing licenses in the years between 2001 and 2006 inclusive. Plaintiff seeks for the following relief: -- a declaration that the Minister's practice of withholding 10% of the entire quota to be granted to the holders of halibut licenses in British Columbia and assigning it to the PHMA and in turn receiving funds or payments in kind from PHMA's Sale of that quota is unlawful; -- a declaration that all funds and payments-in-kind received by the Minister from the PHMA from sale of quota constitute either: (i) an unlawful conversion of property not owned by the Minister; (ii) unjust enrichment by the Minister; or (iii) funds collected without legislative or constitutional authority by the Minister. -- an accounting and restitution to plaintiff of all monies collected from the plaintiff by the Minister and the PHMA on behalf of the Minister from the plaintiff for the period Jan. 1, 2001 to date; -- return of funds unlawfully converted by the defendants; -- restitution of monies collected from the plaintiff by the defendants without legislative or constitutional authority and retained by the defendants without a juristic reason; -- for damages for misfeasance in public office; -- damages for unlawful administrative action; -- interest pursuant to the Court Order Interest Act; -- such further and other relief that this court deems appropriate. The suit is "Lorne Nels David Iverson et al. v. Her Majesty the Queen in Right of Canada, et al., Court File No. S077807," filed in the Supreme Court of British Columbia. Representing plaintiffs is: Meldon Ellis Ellis Business Lawyers Suite 440-319, West Pender Street Vancouver, B.C. V6B 1T5 Phone: (604) 688-7374 Fax: (604) 688-0201 CENTERPOINT ENERGY: Reliant Settles Market Manipulation Cases ------------------------------------------------------------- A court approved a settlement of 11 natural gas class actions pending in state court in California against Reliant Energy, Inc. (RRI). A large number of lawsuits have been filed against numerous market participants and remain pending in federal court in Wisconsin, Missouri and Nevada and in state court in California and Nevada in connection with the operation of the electricity and natural gas markets in California and certain other states in 2000-2001, a time of power shortages and significant increases in prices. These lawsuits, many of which have been filed as class actions, are based on a number of legal theories, including violation of state and federal antitrust laws, laws against unfair and unlawful business practices, the federal Racketeer Influenced Corrupt Organization Act, false claims statutes and similar theories and breaches of contracts to supply power to governmental entities. Plaintiffs in these lawsuits, which include state officials and governmental entities as well as private litigants, are seeking a variety of forms of relief, including recovery of compensatory damages (in some cases in excess of $1 billion), a trebling of compensatory damages and punitive damages, injunctive relief, restitution, interest due, disgorgement, civil penalties and fines, costs of suit and attorneys’ fees. Centerpoint Energy Inc.'s former subsidiary, RRI, was a participant in the California markets, owning generating plants in the state and participating in both electricity and natural gas trading in that state and in western power markets generally. Centerpoint and/or Reliant Energy have been named in approximately 35 of these lawsuits, which were instituted between 2001 and 2007 and are pending in California state court in San Diego County, in Nevada state court in Clark County, in federal district court in Nevada and before the Ninth Circuit Court of Appeals. However, the Company, CenterPoint Houston and Reliant Energy were not participants in the electricity or natural gas markets in California. The Company and Reliant Energy have been dismissed from certain of the lawsuits, either voluntarily by the plaintiffs or by order of the court, and the Company believes it is not a proper defendant in the remaining cases and will continue to seek dismissal from such remaining cases. Several of the electricity complaints have been dismissed, and several of the dismissals have been affirmed by appellate courts. Others have been resolved by the settlement described in the following paragraph. Three of the gas complaints were dismissed based on defendants’ claims of the filed rate doctrine, but the Ninth Circuit Court of Appeals recently reversed two of those dismissals and remanded the cases back to the district court for further proceedings. In June 2005, a San Diego state court refused to dismiss other gas complaints on the same basis. In October 2006, RRI reached a tentative settlement of 11 class action natural gas cases pending in state court in California. The court approved this settlement in June 2007. The other gas cases remain in the early procedural stages. FERC Settlement In August 2005, RRI reached a settlement with the Federal Energy Regulatory Commission enforcement staff, the states of California, Washington and Oregon, California’s three largest investor-owned utilities, classes of consumers from California and other western states, and a number of California city and county government entities that resolves their claims against RRI related to the operation of the electricity markets in California and certain other western states in 2000-2001. The settlement also resolves the claims of the three states and the investor-owned utilities related to the 2000-2001 natural gas markets. The settlement has been approved by the FERC, by the California Public Utilities Commission and by the courts in which the electricity class actions are pending. Two parties have appealed the courts’ approval of the settlement to the California Court of Appeals. A party in the FERC proceedings filed a motion for rehearing of the FERC’s order approving the settlement, which the FERC denied on May 30, 2006. That party has filed for review of the FERC’s orders in the Ninth Circuit Court of Appeals. The Company is not a party to the settlement, but may rely on the settlement as a defense to any claims brought against it related to the time when the Company was an affiliate of RRI. The terms of the settlement do not require payment by the Company. CENTERPOINT ENERGY: 5th Circuit Hears Appeal in Tex. ERISA Suit --------------------------------------------------------------- The U.S. Court of Appeals for the 5th Circuit heard argument on an appeal against a summary judgment granted to CenterPoint Energy, Inc. in a purported class action alleging violations of the Employee Retirement Income Security Act of 1974. In May 2002, three class actions were filed in the U.S. District Court for the Southern District of Texas Houston on behalf of participants in various company-sponsored employee benefits plans. Two of the lawsuits were dismissed without prejudice. In the remaining lawsuit, the company and certain current and former members of its benefits committee are defendants. That suit alleged that the defendants breached their fiduciary duties to various employee benefits plans, directly or indirectly sponsored by the company, in violation of ERISA by permitting the plans to purchase or hold securities issued by the company when it was imprudent to do so, including after the prices for such securities became artificially inflated because of alleged securities fraud engaged in by the defendants. The complaint sought monetary damages for losses suffered on behalf of the plans and a putative class of plan participants whose accounts held CenterPoint Energy or Reliant Resources, Inc. securities, as well as restitution. In January 2006, the federal district judge granted a motion for summary judgment filed by the Company and the individual defendants. The plaintiffs appealed the ruling to the Fifth Circuit Court of Appeals, which heard oral arguments from the parties in October 2007. The suit is "Boca Raton Police &, et al. v. Reliant Resources, et al., Case No. 4:02-cv-01810," filed in the U.S. District Court for the Southern District of Texas, Houston Division under Judge Ewing Werlein, Jr. Representing the plaintiffs are: Jacks C. Nickens, Esq. Nickens Keeton et al 600 Travis, Ste. 7500 Houston, TX 77002 Phone: 713-571-9191 Fax: 713-571-9652 Niki L. O'Neel, Esq. Alan Schulman, Esq. David R. Stickney, Esq. Bernstein Litowitz et al 12544 High Bluff Dr., Ste. 150 San Diego, CA 92130 Phone: 858-793-0070 - and - Peter A. Pease, Esq. Michael J. Pucillo, Esq. Wendy Hope, Esq. Zoberman, Berman DeValerio & Pease One Liberty Square, Boston, MA 09109 Phone: 617-542-8300 Fax: 617-542-1194. Representing the company is: James Edward Maloney, Esq. Baker & Botts 910 Louisiana, Ste 3000 Houston, TX 77002 Phone: 713-229-1255 Fax: 713-229-7755 CENTERPOINT ENERGY: Still Faces Natural Gas Measurement Lawsuits ---------------------------------------------------------------- CenterPoint Energy Resources Corp. (CERC Corp.) and certain of its subsidiaries are defendants in two mismeasurement lawsuits brought against approximately 245 pipeline companies and their affiliates pending in state court in Stevens County, Kansas. In one case originally filed in May 1999 and amended four times, the plaintiffs purport to represent a class of royalty owners who allege that the defendants have engaged in systematic mismeasurement of the volume of natural gas for more than 25 years. The plaintiffs amended their petition in this suit in July 2003 in response to an order from the judge denying certification of the plaintiffs’ alleged class. In the amendment, the plaintiffs dismissed their claims against certain defendants (including two CERC Corp. subsidiaries), limited the scope of the class of plaintiffs they purport to represent and eliminated previously asserted claims based on mismeasurement of the British thermal unit (Btu) content of the gas. The same plaintiffs then filed a second lawsuit, again as representatives of a putative class of royalty owners, in which they assert their claims that the defendants have engaged in systematic mismeasurement of the Btu content of natural gas for more than 25 years. In both lawsuits, the plaintiffs seek compensatory damages, along with statutory penalties, treble damages, interest, costs and fees. The company reported no development in the case at its form 10-Q filing for the quarter ended Sept. 30, 2007. DICK'S SPORTING: Recalls Recliners with Brackets than can Break --------------------------------------------------------------- Dick's Sporting Goods, of Pittsburgh, Pennsylvania, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 125,000 lounge chairs and recliners. The company said the plastic support brackets can break and cause the chairs to collapse, posing a hazard to consumers. Dick's Sporting Goods has received 19 reports of the chairs and recliners collapsing, including 17 injuries involving lacerations and back pains. This recall involves the Lazy Lounger chair (Style # CEH00415), recliner (Style # CEH00320) and oversize recliner (Style # CEH00414, CEH00345, and CEH00443). Style numbers are printed on the packaging. The chairs have a mesh covering that attaches to a black or tan metal frame by a woven cord. The mesh covering is sold in: blue, orange, black, natural, burgundy, pink, white, green, red, khaki, and camouflage. A padded headrest pillow is sewn on to the mesh. Beneath the padded headrest are two tags. The first reads: “! WARNING !”, followed by 9 numbered statements, and “Made in China”. The second is the ?Do Not Remove Under Penalty of Law? tag and includes the manufacturer?s Registration No: OHIO36462HK. These recalled recliners were manufactured by Rankam Group Ltd., of China and are being sold at Dick's Sporting Goods stores nationwide and http://www.dickssportinggoods.comfrom February 2006 to August 2007 for between $40 and $80. Pictures of recalled recliners: http://www.cpsc.gov/cpscpub/prerel/prhtml08/08106a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml08/08106b.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml08/08106c.jpg Consumers are advised to stop using the chairs and recliners immediately and contact Dick?s Sporting Goods for a free repair kit. For additional information, contact Dick's Sporting Goods toll- free at (866) 500-4982 between 9 a.m. and 5 p.m. ET Monday through Friday, or send an email: DicksLazyLounger@rankam.com - consumers can also visit the firm's Web site: http://www.dickssportinggoods.com ENTROPIN INC: Cal. Securities Suit Settlement Hearing Set March --------------------------------------------------------------- A March 26, 2008 fairness hearing is set for a $4,500,000 settlement of a securities class action filed against Entropin Inc. The hearing will be at 9:30 a.m. in Courtroom 23, Third Floor, United States District Court for the Central District of California, 312 N. Spring Street, Los Angeles, CA 90012. The class consists of all persons who acquired: (a) common stock or Entropin Inc. in its July 1999 through September 1999 private placements; or (b) common stock and warrants as a unit at $7.00/share and $0.25/warrant) in Entropin Inc.'s March 15, 2000 Public Offering; or (c) warrants of Entropin Inc. on the NASDAQ after Entropin's March 15, 2000 public offering through May 15, 2001 (inclusive). The suit was filed in the U.S. District Court for the Central District of California, Wester Division, Case No. CV 04-6180-RC. For more information, contact: Claims Administrator Entropin Securities Litigation c/o Strategic Claims Services P.O. Box 230 Media, PA 19063 Phone: (866) 274 4004 Web site: http://www.strategicclaims.net The Rosen Law Firm PA Laurence Rosen, Esq. 350 Fifth Avenue Suite 5508 New York, NY 10118 (212) 686-1060 EV3 INC: Still Faces Suit in Del. Over Plan to Buy MTI Shares ------------------------------------------------------------- ev3, Inc. continues to face a purported stockholder class action in the Court of Chancery for the State of Delaware in relation to its proposal to acquire all of the outstanding shares of common stock of its majority owned subsidiary, Micro Therapeutics, Inc., that it does not already own. On Oct. 11, 2005, a purported stockholder class action was filed on behalf of Micro Therapeutics' minority shareholders against Micro Therapeutics, Micro Therapeutics' directors and ev3 challenging the previously announced exchange offer. The complaint alleged the then-proposed transaction constituted a breach of defendants' fiduciary duties. It sought an injunction preventing the completion of the transaction with Micro Therapeutics or, if the transaction were to be completed, rescission of the transaction or rescissory damages, unspecified damages, costs and attorneys' fees and expenses. On Jan. 6, 2006, the company completed the transaction with Micro Therapeutics. The company reported no development in the matter in its Nov. 7, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. ev3 Inc. -- Net: http://www.ev3.net/-- is a global medical device company focused on catheter-based, or endovascular, technologies for the minimally invasive treatment of vascular diseases and disorders. IKANOS COMMS: Court Considers Motion to Dismiss Securities Suit --------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to rule on a motion seeking for a dismissal of an amended complaint in a consolidated securities fraud class action filed against Ikanos Communications, Inc. In November 2006, three putative class actions were filed against the company, its directors, an executive officer and a former executive officer. These lawsuits allege certain misrepresentations by the company in connection with its initial public offering in September 2005, the follow-on offering in March 2006, and thereafter concerning its business and prospects. The lawsuits seek unspecified damages. The lawsuits were consolidated and an amended complaint was filed on April 24, 2007. The amended complaint alleges certain material misrepresentations and omissions by the Company in connection with its initial public offering in September 2005 and the follow-on offering in March 2006 concerning its business and prospects, and seeks unspecified damages. On June 25, 2007, the defendants filed motions to dismiss the amended complaint. Plaintiffs opposed the motions and the matter is pending a decision by the court, according to the company's Nov. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Panther Partners Inc., et al. v. Ikanos Communications, Inc., et al., Case No. 1:06-cv-12967-PAC,” filed in the U.S. District Court for the Southern District of New York under Judge Paul A. Crotty. Representing the plaintiffs is: David Avi Rosenfeld, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: (631) 367-7100 Fax: (631) 367-1173 E-mail: drosenfeld@lerachlaw.com Representing the defendant is: James N. Kramer, Esq. Orrick, Herrington & Sutcliffe LLP The Orrick Building, 405 Howard Street San Francisco, CA 94105 Phone: (415)-773-5700 Fax: (415)-773-5759 E-mail: jkramer@orrick.com INDIANA: Housing Partnership Settles Fraud Lawsuit for $2.4M ------------------------------------------------------------ The Fort Wayne Neighborhood Housing Partnership and buyers of home from the non-profit agreed to a $2.4 million settlement of a suit over alleged overpricing, Rebecca S. Green of The Journal Gazette reports. The Allen Superior Court in Indiana has granted class-action status to the complaint filed in April by eight clients of the agency. They alleged that the defendant sold them homes "at grossly inflated prices" and set them up for failure. Plaintiffs also accused two appraisers of conniving with the partnership. The suit alleges fraud, negligence, civil conspiracy, breach of contract and breach of warranties by the housing partnership. In his ruling on Oct. 3, 2006, Judge David Avery specifically certified the complaint against the partnership as class action, while the one against the two appraisers was conditionally certified as class action. A settlement of the suit was finalized on Nov. 15. Under it, the partnership’s insurance company will pay the first $400,000 portion of the partnership’s judgment. Whether another insurance company will have to pay all or a portion of the remaining $2 million is a matter under litigation in a federal lawsuit, said Matthew Elliott, an attorney with Beckman Lawson LLP, who represented the homebuyers. A hearing on that case is set for December. The $274,000 part of the the $400,000 settlement will be divided up among the class members – with $4,000 going to the original eight plaintiffs and $1,000 to the remaining members, Elliott said. The rest will go as attorneys’ fees. The settlement does not constitute an “admission” of anything by the housing partnership or the appraisers, according to court documents. The Indiana attorney general's office is representing the partnership because it has gone into receivership. The non- profit agency went into receivership in May. For more details, contact Matthew J. Elliott of Beckman Lawson, LLP, Phone: (260) 422-0800, or e-mail mje@beckmanlawson.com, Web site: http://www.beckmanlawson.com. MICROSOFT CORP: Class Status Requested in "Windows Vista” Suit -------------------------------------------------------------- Plaintiffs alleging that Microsoft Corp. deceptively marketed its "Windows Vista" have requested class-action status for the case, reports say. Judge Marsha Pechman of the U.S. District Court for the Western District of Washington had denied Microsoft Corp.’s attempts to dismiss the lawsuit (Class Action Reporter, Aug. 10, 2007). Judge Pechman ruled from the bench in favor of the plaintiff, Dianne Kelley, on two out of four issues raised by Microsoft. She withheld judgment on the other two. Dianne L. Kelley filed the suit on March 29 in the U.S. District Court for the Western District of Washington. Her legal representative in the case is the law firm of Gordon Murray Tilden LLP (Class Action Reporter, July 11, 2007). Prior to the availability of Vista, Microsoft launched a marketing campaign that allowed PC makers to place a sticker on computers alerting potential buyers that they could upgrade to Vista when it became available. Generally, Microsoft defines a PC as "Windows Vista Capable" when it uses "at least" an 800MHz processor, 512 megabytes of RAM, and DirectX 9 compatible graphics card. However, according to the suit, "a large number" of those PCs were only capable of running the Home Basic version of Vista, which lacks many of the features, such as media center, and enhanced graphics, which Microsoft advertises as included in Vista. It was reported that when Microsoft later offered buyers of "Windows Vista Capable" computers free or reduced-price upgrades to Vista, the company offered Home Basic to many customers. Additionally, the suit claims that Bill Gates contributed to the deception by saying on NBC's Today Show, PC users could upgrade to Windows Vista for just $100. Microsoft had sought to have Ms. Kelley's case dismissed on the grounds that she did not have proper standing to bring the case, the report said. But Judge Pechman said that issue will be determined when the parties argue over certification of the case as a class action, meaning it could expand to include anyone who bought a Vista Capable PC under similar circumstances. According to the report, Microsoft argued that Ms. Kelley did not show that the sticker constituted a written warranty under the Magnuson-Moss Warranty Act. But the judge said she would consider arguments on this point and issue a written ruling in the next two weeks. Microsoft also argued that Ms. Kelley did not show a "causal link" between the allegedly deceptive Vista Capable campaign and any damage she suffered -- a requirement for a claim under the Consumer Protection Act, the report stated. The judge ruled that the plaintiffs "have pled enough" on this point in case filings so far to allow the case to go forward. She also sided with the plaintiff in allowing the claim of unjust enrichment to go forward. A jury trial was scheduled to begin Oct. 27, 2008. Recently, reports say the plaintiffs asked for class certification. Judge Pechman has not set a date for her ruling on the class-action request. The suit is "Kelley v. Microsoft Corp., Case No. 2:07-cv-00475- MJP," filed in the U.S. District Court for the Western District of Washington under Judge Marsha J. Pechman. Representing the plaintiff is: Gordon Murray Tilden, LLP 1001 4th Ave., Ste. 4000, Seattle, WA 98154 Phone: 206-467-6477 Fax: 206-467-6292 E-mail: office@gmtlaw.com Web site: http://www.gmtlaw.com MISSOURI: Suit Aiming to Block MOHELA Asset Sale Dismissed ---------------------------------------------------------- A Cole County judge dismissed, at the request of plaintiffs, a purported class action seeking to block the state legislature's decision to sell the Missouri Higher Education Loan Authority's assets, David A. Lieb of Associated Press reports. No reason was given for the plaintiffs' request, the report said. The suit was filed by two former students who used money from MOHELA to help pay for a college education (Class Action Reporter, Aug. 23, 2007). Plaintiffs claim the plan by Gov. Matt Blunt to sell the assets to construct $335 million worth of new buildings around the state is allegedly a breach of the MOHELA philosophical and fiduciary mission to provide loans to low-interest loans to Missouri students going to college. John Lichtenegger, one of the attorneys representing the plaintiffs, had said the fiduciary duty of the MOHELA board members is to provide loans, not build buildings. The lawsuit claimed a new capital appropriations program called the Lewis and Clark Discovery Fund should be funded, if at all, by Missouri taxpayers, not just college students, according to the report. Michael McGennis and Aaron Izadi-Moghadam filed the lawsuit in Cole County Circuit Court against MOHELA and its board. They sought to declare that MOHELA's conduct was unlawful. They also wanted an injunction against the plan, and appropriate compensatory and punitive damages. The dismissal of the case cleared the way for the loan agency to make its first contribution to Gov. Blunt's construction plan. Previously, the court denied a request to temporarily bar MOHELA from paying the first installment of Gov. Blunt's plan. During a Sept. 11 hearing, Cole County Circuit Judge Richard Callahan refused to issue a temporary restraining order, deciding that the plaintiffs hadn't shown there was a reasonable likelihood they could later win on the merits of their case. Now, with the recent ruling, the loan agency will be able to make its first payment to state of $230 million, according to the report. NOVASTAR MORTGAGE: Discount Fees Fraudulent, Mass. Suit Claims -------------------------------------------------------------- NovaStar Mortgage, Inc. is facing a class-action complaint filed in the U.S. District Court for the District of Massachusetts alleging it defrauds homebuyers through its “loan discount fees.” Named plaintiff Thomas S. Denman brings this action pursuant to Fed.R.Civ.P. 23, on behalf of all: (1) who entered into mortgage loan agreements with Novastar, on or after the date four years prior to the date of the filing of this matter; and (2) who paid fees itemized by NovaStar as "loan discount fees" or whose initial interest rate was fixed for three years or less and variable for four years or more. Plaintiff wants the court to rule on: (a) whether NovaStar structured disadvantageous transactions designed to hide the true costs and expenses of those loans to consumers by including a low fixed rate in those loans for a limited period of time; (b) whether NovaStar deliberately designed loans to be beyond a borrower's ability to pay according to their terms in order to generate settlement fees by sale to investors; (c) whether NovaStar charged borrowers "loan discount fees" without providing discounts for such payment in violation of 940 CMR Sections 3.04,3.05, 3.13, 6.05, 8.04, 8.06 and c. 93A; (d) Whether NovaStar failed to offer borrowers an alternative loan without the “loan discount fees” for the purposes of allowing borrowers to make an informed decision about whether the payment of discount points would be cost effective in violation of 940 C.M.R. §§ 3.04, 3.05, 3.13, 6.05, 8.04, 8.06 and c. 93A; (e) Whether NovaStar properly supervised its employees; (f) Whether Novstar provided inaccurate information about loan terms to customers in the form of bogus “good faith estimates” in order to mislead customers about the available terms of loans in violation of 940 C.M.R. Sections 3.04, 3.05, 3.13, 8.04, 8.06 and c. 93A; (g) Whether NovaStar’s closing fees are duplicative and excessive; and (h) Whether NovaStar was unjustly enriched by its conduct. Plaintiff respectfully requests that this Court: -- Certify this case as a class action and certify the named Plaintiff herein to be adequate class representatives and his counsel to be class counsel; -- Award damages, including actual damages, statutory damages, and multiple damages, and equitable relief, for Defendant’s violations of c. 93A; -- Award damages and equitable remedies arising from Defendant's unconscionable and/or illegal contract terms including but not limited to cancellation and/or refund of unjustified points; -- Award damages and equitable remedies arising from Defendant's unjust enrichment including, without limitation, restitution and reformation of contract; -- Enter a declaration that the Defendant’s lending practices, including, without limitation, its imposition of undisclosed/unjustified “loan discount fees,” are improper; -- Enter preliminary and permanent injunctive relief to prevent the Defendant from continuing to violate the law and injuring other persons who enter into home mortgage loans in the future; -- Award reasonable attorney's fee and costs; and -- Enter such other relief at law or equity as this Court may deem just and proper. The suit is "Thomas Denman et al. v. NovaStar Mortgage, Inc., Case No. 07-12190," filed in U.S. District Court for the District of Massachusetts. Representing plaintiffs are: Gary Klein Elizabeth Ryan Shennan Kavanagh Roddy Klein & Ryan 727 Atlantic Ave., 2nd Floor Boston, MA 02111 Tel. 617-357-5500 x 15 Fax. 617-357-5030 E-mail: klein@roddykleinryan.com NUTRISYSTEM INC: Faces Several Securities Fraud Suits in Pa. ------------------------------------------------------------ NutriSystem, Inc. and certain of its officers and directors face several purported class actions in the U.S. District Court for the Eastern District of Pennsylvania, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The suits were first commenced on Oct. 9, 2007. The complaints purport to bring claims on behalf of a class of persons who purchased the Company’s common stock between Feb. 14, 2007 and Oct. 3, 2007 or Oct. 4, 2007. The complaints allege that the defendants issued various materially false and misleading statements relating to the Company’s projected performance that had the effect of artificially inflating the market price of its securities, according to the company's Nov. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. NutriSystem Inc. -- http://www.nutrisystem.com-- is a marketer and provider of weight management system based on a portion- controlled, prepared-meal program. PARMALAT SPA: No Ruling Yet in Motion to Block U.S. Lawsuit ----------------------------------------------------------- Parmalat S.p.A. said that a hearing was held on Nov. 29 in the U.S. Second Circuit Court of Appeal of New York with regards to Parmalat's appeal against the decision of a U.S. District Court which had denied Parmalat's request for an injunction pursuant to section 304 of the U.S. Bankruptcy Code. Parmalat’s request had sought to preclude a purported class of investors from proceeding with a class action against Parmalat in the United States. The Court of Appeal has not decided and has taken the case under advisement. Previously, Class Action Reporter reported that Parmalat asked Judge Lewis A. Kaplan of the United States District for the Southern District of New York to dismiss, with prejudice, the claims asserted by the Foreign Plaintiffs in the Third Amended Consolidated Class Action Complaint, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Class Action Reporter, Oct. 18, 2007). Peter E. Calamari, Esq., at Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP, in New York, told Judge Kaplan that the Foreign Plaintiffs' claims against Reorganized Parmalat pursuant to the Securities Exchange Act can only be maintained if they can overcome the general presumption that federal statutes do not apply "extra-territorially." To overcome that presumption, Mr. Calamari said, the Foreign Plaintiffs must show that the wrongful conduct either occurred in the United States, or had a substantial effect in the United States or upon its citizens. Mr. Calamari noted that the District Court had already dismissed the claims asserted by the Foreign Plaintiff purchasers against Grant Thornton, Deloitte & Touche, Bank of America, Citigroup, Credit Suisse, and BNL. In doing so, the District Court ruled that the transactions forming the basis of the Foreign Plaintiffs' allegations were overwhelmingly foreign. Mr. Calamari said the District Court's ruling applies to the claims asserted by the Foreign Plaintiffs against Reorganized Parmalat. Unlike the U.S.-based banks and auditors, the Old Parmalat was an Italian company, and by definition, could not have committed acts essential to the alleged fraud against foreign purchasers outside of Italy. Mr. Calamari contended that the Complaint asserts no domestic conduct of Old Parmalat that relates to foreign purchasers. Any alleged conduct in the Unites States was incidental, and therefore did not directly cause the losses of the Foreign Plaintiffs, he maintained. PRESIDENT GLOBAL: Recalls Ice Cream Bars with Undeclared Milk ------------------------------------------------------------- President Global Corp. of Buena Park, CA 90620 is recalling Uni- President Red Bean Flavored Ice Bars (Tung-I Red Bean Flavor Ice Bars) 6/3 fl oz. and Red Bean Tapioca Ice Bars (Tung-I Red Bean Tapioca Ice Bars) 6/2.83 fl oz because they may contain undeclared skim milk. People who have allergies to milk run the risk of serious allergic reaction if they consume these products. The recalled Uni-President Red Bean Flavored Ice Bars and Red Bean Tapioca Ice Bars were distributed in Asian Retail Food Markets in the Southern California area. Each product comes in a box containing 6 bars. UPC code on boxes of Red Bean Flavor Ice Bars is 4 710608 813600. UPC on boxes of Red Bean Tapioca Ice Bars is 4 710088 070968. There are no expiration dates on the products. One illness in Canada has been reported to date in connection with this problem. The recall was initiated after it was discovered that skim milk containing products were distributed in packaging that did not indicate presence of skim milk or milk protein. Distribution of the products has been suspended until FDA and President Global Corp. are certain the problem has been corrected. Consumers who have purchased Uni-President Red Bean Flavor Ice Bars and Uni-President Red Bean Tapioca Ice Bars are urged to return them to the place of purchase for a full refund or exchange. Consumers with questions may contact the company at ( 714)-994-2990. SOUTHERN STAR: Kans. Court Considers Pending Motions in Price I --------------------------------------------------------------- The District Court in Stevens County, Kansas, has yet to rule on: -- motions for class certification, and -- motion to intervene in the purported class action, “Will Price, et al. v. El Paso Natural Gas Co., et al., Case No. 99 C 30, or Price Litigation I,” which names Southern Star Central Corp as a defendant. In this putative class action filed May 28, 1999, the named plaintiffs, or Plaintiffs, have sued over 50 defendants, including Southern Star Central Corp. Asserting theories of civil conspiracy, aiding and abetting, accounting and unjust enrichment, their Fourth Amended Class Action Petition alleges that the defendants have undermeasured the volume of, and therefore have underpaid for, the natural gas they have obtained from or measured for Plaintiffs. Plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On Aug. 22, 2003, an answer to that pleading was filed on behalf of Central. Despite a denial by the court on April 10, 2003 of their original motion for class certification, the Plaintiffs continue to seek the certification of a class. The Plaintiffs motion seeking class certification for a second time was fully briefed and the court heard oral argument on this motion on April 1, 2005. In January 2006, the court heard oral argument on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by Plaintiffs. It is unknown when the court will rule on the pending motions. The company reported no development in the matter in its Nov. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Owensboro, Kentucky-based Southern Star Central Corp. -- http://www.southernstarcentralcorp.com/-- operates as a holding company for its regulated pipeline operations and development opportunities. SOUTHERN STAR: Kans. Court Considers Pending Motions in Price II ---------------------------------------------------------------- The District Court in Stevens County, Kansas, has yet to rule on: -- motions for class certification, and -- motion to intervene in the purported class action, “Will Price, et al. v. El Paso Natural Gas Co., et al., Case No. 03 C 23,” or “Price Litigation II,” which names Southern Star Central Corp. as a defendant. In this putative class action filed May 12, 2003, the named Plaintiffs from Price Litigation I have sued the same defendants, including Souther Star. Asserting substantially identical legal and/or equitable theories, as in Price Litigation I, this petition alleges that the defendants have undermeasured the British thermal units, or Btu, content of, and therefore have underpaid for, the natural gas they have obtained from or measured for Plaintiffs. Plaintiffs seek unspecified actual damages, attorney fees, pre- and post-judgment interest, and reserved the right to plead for punitive damages. On Nov. 10, 2003, an answer to that pleading was filed on behalf of Central. The Plaintiffs' motion seeking class certification, along with Plaintiffs second class certification motion in Price Litigation I, was fully briefed and the court heard oral argument on this motion on April 1, 2005. In January 2006, the court heard oral argument on a motion to intervene filed by a third party who is claiming entitlement to a portion of any recovery obtained by Plaintiffs. It is unknown when the court will rule on the pending motions. The company reported no development in the matter in its Nov. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. Owensboro, Kentucky-based Southern Star Central Corp. -- http://www.southernstarcentralcorp.com/-- operates as a holding company for its regulated pipeline operations and development opportunities. TELLABS INC: 7th Circuit Hears Appeal in Ill. Securities Suit ------------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit recently heard oral arguments for the remanded case, “Johnson, et al. v. Tellabs Inc., et al., Case No. 1:02-cv-04356” On June 18, 2002, a class action complaint was filed in the United States District Court of the Northern District of Illinois against Tellabs, Michael Birck (Chairman of the Board of Tellabs) and Richard Notebaert (former CEO, President and Director of Tellabs). Thereafter, eight similar complaints were also filed in the U.S. District Court of the Northern District of Illinois. All nine of these actions were subsequently consolidated, and on Dec. 3, 2002, a consolidated amended class action complaint was filed against Tellabs, Mr. Birck, Mr. Notebaert, and certain other of our current or former officers and/or directors. The consolidated amended complaint alleged that during the class period (December 11, 2000-June 19, 2001) the defendants violated the federal securities laws by making materially false and misleading statements, including, among other things, allegedly providing revenue forecasts that were false and misleading, misrepresenting demand for the company's products, and reporting overstated revenue for the fourth quarter 2000 in the company's financial statements. Further, certain of the individual defendants were alleged to have violated the federal securities laws by trading the company's securities while allegedly in possession of material, non-public information about us pertaining to these matters. The consolidated amended complaint seeks unspecified restitution, damages and other relief. On Jan. 17, 2003, Tellabs and the other named defendants filed a motion to dismiss the consolidated amended class action complaint in its entirety. On May 19, 2003, the Court granted the company's motion and dismissed all counts of the consolidated amended complaint, while affording plaintiffs an opportunity to replead. On July 11, 2003, plaintiffs filed a second consolidated amended class action complaint against Tellabs, Messrs. Birck and Notebaert, and many (although not all) of the other previously named individual defendants, realleging claims similar to those contained in the previously dismissed consolidated amended class action complaint. The company filed a second motion to dismiss on Aug. 22, 2003, seeking the dismissal with prejudice of all claims alleged in the second consolidated amended class action complaint. On Feb. 19, 2004, the Court issued an order granting that motion and dismissed the action with prejudice. On March 18, 2004, the plaintiffs filed a Notice of Appeal to the U.S. Court of Appeals for the Seventh Circuit, appealing the dismissal. The appeal was fully briefed and oral argument was heard on Jan. 21, 2005. On Jan. 25, 2006, the Seventh Circuit issued an opinion affirming in part and reversing in part the judgment of the district court, and remanding for further proceedings. On Feb. 8, 2006, defendants filed with the Seventh Circuit a petition for rehearing with suggestion for rehearing en banc. On April 19, 2006, the Seventh Circuit ordered plaintiffs to file an answer to the petition for rehearing, which was filed by the plaintiffs on May 3, 2006. On July 10, 2006, the Seventh Circuit denied the petition for rehearing with a minor modification to its opinion. On Sept. 22, 2006, defendants filed a motion in the district court to dismiss some (but not all) of the remaining claims. On Oct. 3, 2006, the defendants filed with the U.S. Supreme Court a petition for a writ of certiorari seeking to appeal the Seventh Circuit’s decision. On Jan. 5, 2007, the defendants’ petition was granted. The U.S. Supreme Court heard oral arguments on March 28, 2007. On June 21, 2007, the U.S. Supreme Court vacated the Seventh Circuit’s judgment and remanded the case for further proceedings. On Nov. 1, 2007, the Seventh Circuit heard oral arguments for the remanded case, according to the company's Nov. 5, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 28, 2007. The suit is “Johnson, et al. v. Tellabs Inc., et al., Case No. 1:02-cv-04356,” filed in the U.S. District Court for the Northern District of Illinois under Judge Amy J. St. Eve. Representing the plaintiff is: Steven G. Schulman, Esq. Milberg Weiss Bershad & Schulman LLP One Pennsylvania Plaza, 49th Floor New York, NY 10119-0165 Phone: (212) 594-5300 Representing the defendant is: David F. Graham, Esq. Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 Phone: (312) 853-7000 E-mail: dgraham@sidley.com TENET HEALTHCARE: Still Faces Medical Malpractice Suits in La. -------------------------------------------------------------- Tenet Healthcare Corp. hospitals remain defendants in three medical malpractice cases filed as purported class actions by former patients of Memorial Medical Center and Lindy Boggs Medical Center in New Orleans. In each case, family members allege, on behalf of themselves and a purported class of other patients and their family members, damages as a result of injuries sustained during Hurricane Katrina. Tenet reported no development on this matter in its Nov. 5, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2006. Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is engaged in the provision of healthcare services, primarily through the operation of general hospitals. THANE INTERNATIONAL: Securities Suit Remanded to Calif. Court ------------------------------------------------------------- The 9th U.S. Circuit Court of Appeals reversed a defense verdict by the U.S. District Court for the Central District of California in a securities suit against Thane International Inc. The court remanded the action to the district court with instructions to enter judgment in favor of the plaintiffs, to address loss causation, and to conduct further proceedings. Thane International is a Canadian direct marketing company. The company and certain of its officers and directors are accused of violating the Securities Act of 1933 in connection with a merger in which the shareholders of Reliant Interactive Media Corp. received shares of Thane International. The plaintiffs contend that the prospectus distributed to Reliant shareholders contained a material misstatement of fact because Thane did not list its stock on the NASDAQ National Market System following the merger. The case was originally filed in Superior Court and removed to the U.S. District Court for the Central District of California by the Notice of Removal dated October 23, 2002. On June 19, 2003, the case was intra-district transferred to the Southern Division of the U.S. Court for the Central District of California and reassigned to Judge James V. Selna by the Order dated June 6, 2003. On June 8, 2005, Thane won a favorable verdict. On July 11, 2005, the plaintiffs filed a notice of appeal of the verdict. On November 26, 2007, the U.S. Court of Appeals of the Ninth Circuit issued an Opinion reversing and remanding the action back to District Court. According to Matthew Hirsch of The Recorder, Judge Kim McLane Wardlaw wrote in the opinion stating that the company made material misrepresentations to shareholders. The ruling said that the reported share price in the weeks following the merger ranged between $7 and $8.50. The price dropped a few months later below $2 on a poor earnings report, and then the company repurchased stock at 35 cents a share before the plaintiffs sued. The case is "Howard Miller, et al. v. Thane International Inc., et al., Case No. 03-CV-01031," filed in the U.S. District Court for the Central District of California under Judge James V. Selna. Representing Thane is: Michael Tu, Esq. Orrick, Herrington & Sutcliffe LLP Phone: (213) 612-2433 E-mail: mtu@orrick.com Representing plaintiffs is: Lionel Glancy, Esq. Glancy and Binkow 1801 Avenue of the Stars, suite 311 Los Angeles, CA, 90067 Phone: 310-201-9150 Fax: info@glancylaw.com WELLS FARGO: Sued in Calif. Over Unnecessary Overdraft Charges -------------------------------------------------------------- Wells Fargo Bank, N.A. is facing a class-action complaint in the U.S. District Court for the Northern District of California, alleging it illegally charges accountholders who use ATM machines for overdrafts though they have sufficient funds in their accounts to cover the transactions, the CourtHouse News Service reports. This is a civil action primarily seeking from defendants restitution and disgorgement of all profits gained on their practice of improperly assessing customers overdraft charges for insufficient funds on debit/check card purchases and ATM withdrawals, when there was sufficient funds in the account when the purchases and withdrawals were made and approved by defendants. Named plaintiffs, Claudia Sanchez, Erin Walker and William Smith, claim the bank facilitates this cheating by providing them with inaccurate "available balance" statements. Plaintiffs bring this action on behalf of all residents who were/are checking account customers of Wells Fargo, and from May 25, 2003 to the present were assessed an insufficient overdraft fee for at ATM, Check Card Purchase, Debit Card Purchase, or ATM transaction for which there was sufficient funds in the checking account at the time of the transaction. They want the court to rule on: (a) whether defendant assessed insufficient overdraft fees for transactions it approved and for which there were sufficient funds in the account at the time of the transaction to cover the cost of the transaction; (b) whether defendant promotes, markets, encourages and advertises the available balance through ATM machines, Online, bank Statements, In-Store and Telephone as something for the customer to rely on, which is inaccurate and can result in insufficient overdraft charges for transaction that are within the amount of the stated available balance provided by Wells Fargo. (c) whether defendants failed to notify customers that it assessed insufficient overdraft fees for transactions it approved, and for which there were sufficient funds in the account at the time of the transaction to cover the cost of the transaction; (d) whether defendant failed to notify customers that available balance information through ATM machines, Online, Bank Statements, In-Store and Telephone is inaccurate and can result in insufficient overdraft charges for transaction that are within the amount go the stated available balance provided by Wells Fargo; (e) whether defendant's conduct constitute unalwful, unfair, or fraudulent business acts or practices in violation of California Consumer Legal Remedies act and/or the Business and Professions Code Section 17200 et seq. Plaintiffs pray for relief as follows: -- for an order certifying the California class and appointing plaintiffs and his counsel to represent the California class; -- for an order certifying the National class and appointing plaintiffs and their counsel to represent the National class; -- for an order awarding plaintiffs and the California and National classes restitution and/or disgorgement and other equitable relief as the court deems proper; -- for an order awarding plaintiffs and the California and National classes punitive damages as the appropriate cause of action; -- for an order enjoining defendants: (1) under Civil Code sections 1780(a)(2) and 1781(a) from continuing to use, employ, or undertake unfair methods of competition, acts and practices, or any of them, which are violative of that statute as alleged; (2) under Business and Professions Code Section 17203 from continuing to engage in business acts and practices, or any of them, which are unalwful, unfair, or fraudulent, as alleged; (3) under Business and Professions Code section 17535 from continuing to engage in the dissemination of advertisements which are untrue or misleading, alleged; -- for an order mandating that defendants engage in a corrective advertising campaign to correct the misperceptions defendants' conduct created; -- for an order awarding plaintiff and the California and National classes pre-judgment and post-judgment interest, as well as their reasonable attorneys' and expert-witness fees and other costs pursuant to the Consumers Legal Remedies Act, Civil Code Section 1750 et seq., Code of Civil Procedure section 1021.5, and other statutes as may be applicable; and -- for an order awarding such other and further relief as the court may deem just and proper. The suit is "Claudia Sanchez et al. v. Wells Fargo Bank, NA, et al., Case No. CV 07 5923," filed in the U.S. District Court for the Northern District of California. Representing plaintiffs are: Richard D. Mccune, Esq. Jae (Eddie) K. Kim, Esq. McCune & Wright, LLP 2068 Orange Tree Lane, Suite 216 Phone: (909) 557-1250 Fax: (909) 557-1275 YRC WORLDWIDE: Faces Suits Over Fuel Surcharges in LTL Shipments ---------------------------------------------------------------- YRC Worldwide, Inc. along with other less-than-truckload (LTL) carriers face several purported class actions that accuse them of conspiring throughout four years or more to fix fuel surcharges on LTL shipments. On July 30, 2007, Farm Water Technological Services, Inc. d/b/a Water Tech, and C.B.J.T. d/b/a Agricultural Supply, on behalf of themselves and other plaintiffs, filed a putative class action against the Company and 10 other companies engaged in the LTL trucking business in the United States District Court for the Southern District of California. Named defendants in that complaint are: -- Arkansas Best Corp., -- Averitt Express, -- Con-Way, Inc., -- Fedex Corp., -- Jevic Transportation, Inc., -- Sun Capital Partners IV, LLC, -- New England Motor Freight, Inc., -- R+L Carriers, Inc., -- Saia, Inc., -- United Parcel Service, Inc., -- YRC Worldwide Inc., -- Old Dominion Motor Freight, Inc. Farm Water, doing business as Water Tech, and its subsidiary CBJT, doing business as Agricultural Supply contend that the practice dates back to 2003 (Class Action Reporter, Aug. 29, 2007). They charge that the carriers agreed to impose identical or nearly identical surcharges by linking them to diesel fuel prices published by the U.S. Department of Energy and by listing surcharges on their websites to communicate pricing. Plaintiff brings this action on behalf of all persons or entities who purchase LTL service directly to defendants or their unnamed co-conspirators from July 30, 2003 through the conclusion of the trial in this matter (Class Action Reporter, Aug. 2, 2007). The plaintiff wants the court to rule on: (a) whether defendants and their co-conspirators engaged in a combination and conspiracy among themselves to fix, raise, maintain or stabilize fuel surcharges imposed for LTL services sold in the United States; (b) the identity of participants in the conspiracy; (c) the duration of the conspiracy alleged in this complaint and the nature and character of the acts performed by defendants and their co-conspirators in furtherance of the conspiracy; (d) whether the alleged conspiracy violated Section of the Sherman Act; (e) whether the conduct of defendants and their co- conspirators, as alleged in the complaint, caused injury to the business and property plaintiffs and other members of the classes; (f) the effect of defendants' conspiracy on the prices of LTL services sold in the United States during the class period; and (g) the appropriate measure of damages sustained by plaintiffs and other members of the damages class. Plaintiffs pray that: -- the court determines that this action may be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure; -- the contract, combination or conspiracy, and the acts done in furtherance thereof by defendants and their co- conspirators, b adjudged to have been in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1; -- judgment be entered for plaintiffs and members of the damages class against defendants for three times the amount of damages sustained by plaintiffs and the damages class as allowed by law, together with the costs of this action, including reasonable attorneys' fees; -- defendants and their affiliates, successors, transferees, assignees, and the officers, directors, partners, agents and employees thereof, and all other persons acting or claiming to ac on their behalf, be permanently enjoined and restrained from, in any manner: (i) continuing, maintaining or renewing the contract, combination or conspiracy alleged, or from engaging in any other contract, combination or conspiracy having a similar purpose or effect, and from adopting or following any practice, plan, program or device having a similar purpose or effect; and (ii) communicating or causing to be communicated to any other person engaged in the manufacture, distribution or sale of any product except to the extent necessary in connection with a bona fide sales transaction between the parties to such communications; and -- plaintiffs and members of the class have such other, further and different relief as the case may require and the court may deem just and proper under the circumstances. Since the filing of the above suit, other plaintiffs have filed similar cases in various courts across the nation. Under federal court rules, the courts will likely consolidate these cases into a single proceeding. The company reported no development in the case at its Nov. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended Sept. 30, 2007. The suit is “Farm Water Technological Services, Inc. et al. v. Arkansas Best Corp. et al., Case No. 3:07-cv-01389-BEN-RBB,” filed in the U.S. District Court for the Southern District of California, under Judge Roger T. Benitez, with referral to Judge Ruben B. Brooks. Representing plaintiffs are: Christopher M. Burke Lerach Coughlin Stoia Geller Rudman & Robbins LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Patrick J. Coughlin Lerach Coughlin Stoia Geller Rudman and Robbins 100 Pine Street, Suite 2600 San Francisco, CA 94111 Phone: (415)288-4545 Fax: (415)288-4534 E-mail: patc@lerachlaw.com - and - Jeffrey Todd Thomas Gibson Dunn and Crutcher LLP 4 Park Plaza, Suite 1400 Irvine, CA 92614-8557 Phone: (949)451-3967 Fax: (949)475-4670 E-mail: jtthomas@gibsondunn.com ZIEMAN MANUFACTURING: Settles Suit Over Toy Hauler Trailers ----------------------------------------------------------- Zieman Manufacturing has settled a consolidated lawsuit filed against it and Weekend Warrior Trailers, Inc. over defective toy hauler trailers. On or about October 11, 2005 and October 12, 2005, two actions were commenced in the Superior Court of the State of California, County of Sacramento, entitled: -- “Arlen Williams, Jr. v. Weekend Warrior Trailers, Inc., Zieman Manufacturing Company, et. al. (Case No. CV027691),” and -- “Joseph Giordano and Dennis Gish, v. Weekend Warrior Trailers, Inc, and Zieman Manufacturing Company, et. al. (Case No. 05AS04523).” Each case purports to be a class action on behalf of the named plaintiffs and all others similarly situated. The complaints in both cases are substantially identical and the cases were consolidated. Defendant Zieman Manufacturing Company is a subsidiary of Lippert Components Inc. Mandatory mediation was conducted. The parties reached a settlement, and entered into a final settlement agreement which was preliminarily approved by the Court. It is currently anticipated that the Court will conduct a final approval hearing in three to four months. The settlement would not result in material liability to Zieman. However, unless and until the settlement is implemented and receives final approval by the Court, the outcome cannot be predicted. Plaintiffs alleged that defendant Weekend Warrior sold certain toy hauler trailers during the model years 1999 - 2005 equipped with frames manufactured by Zieman that are defective in design and manufacture. Plaintiffs alleged that the defects cause the trailer to place excessive weight on the trailer coach tongue and the towing vehicle’s trailer hitch, causing damage to the trailers and the towing vehicles, and that the tires on the trailers do not support the advertised maximum towing capacity of the trailers. Plaintiffs sought to certify a class of residents of California who purchased such new or used models. Plaintiffs sought monetary damages in an unspecified amount (including compensatory, incidental and consequential damages), punitive damages, restitution, declaratory and injunctive relief, attorney’s fees and costs. Zieman vigorously defended against the allegations made by plaintiffs, as well as plaintiffs’ ability to pursue the claims as a class action. Zieman and Lippert’s liability insurers agreed to defend Zieman, subject to reservation of the insurers’ rights. * Lawyer R. Michael Underwood Joins Fowler White in Florida ----------------------------------------------------------- Former senior Florida Office of Financial Regulation lawyer, R. Michael Underwood, has joined the law firm of Fowler White Boggs Banker in its Tallahassee office. According to Burt Wiand, Practice Group Leader of Fowler White's Securities and Financial Services Litigation practice, "The addition of Mike is another significant step in the firm's implementation of our strategic growth plan. We are truly excited about Mike joining our firm, giving us one of the largest securities and financial services litigation practices in Florida and adding to our firm a tremendous talent. Mike is well known in dealing with state financial services regulatory matters. To have a former attorney with the Florida OFR join our experienced group of lawyers raises the bar for our practice and our firm." Since leaving government, Michael Underwood has represented securities broker-dealers, investment advisers, financial institutions and affiliated individuals in civil litigation, arbitration, regulatory matters and enforcement actions. His experience includes defense of class actions, multi- district litigation and regular appearances before self-regulatory organizations like FINRA and the New York Stock Exchange as well as state and federal financial regulators. He will assist the firm's clients with state securities, banking and insurance regulatory matters. Mr. Underwood is an officer of the American Bar Association Committee on State Regulation of Securities and Chair of its Subcommittee on Enforcement. He has written many publications on financial services regulation and lectures frequently on these topics. Mr. Underwood remarked that, "joining Fowler White is truly exhilarating. The firm's securities and financial services litigation group is not only widely known in Florida, but throughout the U.S. The quality of the lawyers is exceptional, and I feel privileged to join their ranks." Fowler White Boggs Banker is one of Florida's oldest and largest law firms with more than 210 attorneys in eight offices throughout Florida in Tampa, St. Petersburg, Ft. Myers, Tallahassee, Orlando, Naples, Jacksonville and Fort Lauderdale. For more information, visit http://www.fowlerwhite.com. Asbestos Alerts ASBESTOS LITIGATION: Court Issues Split Ruling in Mayle Action ---------------------------------------------------------------- The U.S. Court of Appeals for Veterans Claims issued a split ruling in an asbestos-related action filed by Chester D. Mayle, Sr. against Gordon H. Mansfield, Acting Secretary of Veterans Affairs. Judge Davis entered judgment of Case No. 06-3533 on Oct. 9, 2007. Mr. Mayle served on active duty in the U.S. Army from July 1950 to April 1956. In August 1982, a VA regional office (RO) granted him service connection for pulmonary tuberculosis with pleural thickening and fibrosis, at a 10 percent disability rating. In December 1989, a private physician diagnosed Mr. Mayle with "simple asbestosis." In July 1992, an RO denied Mr. Mayle's service-connection claim for asbestosis. In a 1994 Board of Veterans' Appeals decision, the Board upheld that denial, despite its determination that Mr. Mayle was exposed to asbestos in service. Mr. Mayle underwent a VA pulmonary examination in January 1999. The examiner stated that Mr. Mayle had no history of asbestos exposure until 1953, and that, after discharge in 1956, he was exposed to very high level of asbestos. Mr. Mayle also argued for reversal of the Board's decision denying his service-connection claim for asbestosis. Because the Board failed to consider the prior diagnosis, as Mr. Mansfield conceded, remand was required. Mr. Mayle appealed through counsel from a Nov. 22, 2005 Board decision that denied: -- service connection for asbestosis and a lung disorder other than inactive pulmonary tuberculosis (PTB); -- an increased rating for pleural thickening and fibrosis; and -- a total disability based on unemployability (TDIU). The appeal was timely, and the Court had jurisdiction to review the Board's decision. The Appeals Court affirmed in part and set aside in part the Board's November 2005 decision and remanded the matters for further proceedings. After consideration of the parties' briefs and a review of the record, the Board's Nov. 22, 2005, decision was affirmed in part and set aside and remanded in part for further development and further adjudication. ASBESTOS LITIGATION: Active Claims v. Dana Drop to 55T at Sept. ---------------------------------------------------------------- Dana Corp. had about 55,000 active pending asbestos-related product liability claims at Sept. 30, 2007, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Nov. 7, 2007. These 55,000 claims include about 6,000 claims that were settled but awaiting final documentation and payment. The Company had about 72,000 active pending asbestos-related product liability claims at June 30, 2007, including about 6,000 claims that were settled but awaiting final documentation and payment. (Class Action Reporter, Aug. 31, 2007) The number of active pending claims was reduced as tort reform and other initiatives in the State of Mississippi resulted in the dismissal of 17,000 claims. On Oct. 26, 2007, the Company filed a motion with the Bankruptcy Court seeking approval to resolve an additional 7,500 pending cases. The estimated total payments for these settlements, if all claimants are able to submit the required proof to support their claims, would be about US$2 million. The Company had accrued US$138 million for indemnity and defense costs for pending and future claims at Sept. 30, 2007. Before 2006, the Company reached agreements with some of its insurers to commute policies covering asbestos-related product liability claims. There were no commutations of insurance in the first three quarters of 2007. At Sept. 30, 2007, the Company's liability for future demands under prior commutations was US$11 million, bringing its total recorded liability for asbestos-related product liability claims to US$149 million. At Sept. 30, 2007, the Company had recorded US$71 million as an asset for probable recovery from its insurers for pending and projected asbestos-related product liability claims. In addition, the Company had a net amount recoverable from its insurers and others of US$17 million at Sept. 30, 2007. Under the Plan of Reorganization, the Debtors propose that their asbestos-related personal injury claims be reinstated upon emergence and that the reorganized Debtors will defend, settle and resolve such pending claims and future demands in the ordinary course of business. After the Center for Claims Resolution discontinued negotiating shared settlements for asbestos claims for its member companies in 2001, some former CCR members defaulted on the payment of their shares of some settlements and some settling claimants sought payment of the unpaid shares from other members of the CCR at the time of the settlements, including the Company. Through Sept. 30, 2007, the Company had paid US$47 million to such claimants and collected US$29 million from its insurance carriers with respect to these claims. At Sept. 30, 2007, the Company had a net receivable of US$13 million for the amount that it expects to recover from available insurance and surety bonds relating to these claims. Toledo, Ohio-based Dana Corp. supplies axle, driveshaft, structures, sealing and thermal products and also designs and manufactures products for vehicle producers. The Company employs about 36,000 people in 26 countries. ASBESTOS LITIGATION: CenterPoint Energy Unit Has Exposure Suits ---------------------------------------------------------------- CenterPoint Energy Resources Corp. or its predecessor companies are defendants, along with numerous others, in lawsuits filed by individuals due to exposure to asbestos during work at formerly owned facilities. The Company is an indirect wholly owned subsidiary of CenterPoint Energy Inc. The Company anticipates that additional claims like those received may be asserted in the future. Houston-based CenterPoint Energy Resources Corp. owns and operates natural gas distribution systems in six states. Company subsidiaries own interstate natural gas pipelines and gas gathering systems and provide various ancillary services. ASBESTOS LITIGATION: American Int'l. Reserves $3.87B at Sept. 30 ---------------------------------------------------------------- American International Group Inc.'s asbestos-related reserves amounted to a gross of US$3.869 billion (net of US$1.533 billion) in the nine months ended Sept. 30, 2007, compared with a gross of US$4.039 billion (net of US$1.696 billion) in the nine months ended Sept. 30, 2006. The Company's asbestos-related reserves amounted to a gross of US$4.020 billion (net of US$1.596 billion) in the six months ended June 30, 2007, compared with a gross of US$4.136 billion (net of US$1.748 billion) in the six months ended June 30, 2006. (Class Action Reporter, Aug. 31, 2007) The Company's asbestos-related incurred but not reported reserve for losses and loss expenses amounted to a gross of US$2.743 billion (a net of US$1.261 billion) in the nine months ended Sept. 30, 2007, compared with a gross of US$2.863 billion (a net of US$1.554 billion) in the nine months ended Sept. 30, 2006. The Company had 6,341 asbestos claims in the nine months ended Sept. 30, 2007, compared with 7,027 claims in the nine months ended Sept. 30, 2006. During the nine months ended Sept. 30, 2007, the Company opened 321 claims, settled 113 claims, and dismissed or resolved 745 claims. During the nine months ended Sept. 30, 2006, the Company opened 538 claims, settled 126 claims, and dismissed or resolved 678 claims. The Company's asbestos survival ratio was a gross of 7.6 years (a net of 11.9 years) during 2007, compared with a gross of 6.4 years (a net of 13.6 years) during 2006. New York-based American International Group Inc.'s subsidiaries serve commercial, institutional and individual customers through a property-casualty and life insurance and retirement services network. ASBESTOS LITIGATION: Claims v. Ampco Drop to 8,274 at Sept. 30 ---------------------------------------------------------------- Asbestos-related claims against Ampco-Pittsburgh Corp. dropped to 8,274 during the nine months ended Sept. 30, 2007, from 9,887 claims during the six months ended June 30, 2007. Gross settlement and defense costs during the nine months ended Sept. 30, 2007 amounted to US$12,124,000 and claims settled or dismissed were about 2,354. Claims have been asserted alleging personal injury from exposure to asbestos-containing components historically used in some products of certain of the Company's operating subsidiaries and of an inactive Company subsidiary. Those subsidiaries, and in some cases the Company, are defendants in cases filed in various state and federal courts. The Company's current asbestos liability amounted to US$12 million at Sept. 30, 2007 and Dec. 31, 2006. The Company's long- term asbestos liability amounted to US$127,799,276 at Sept. 30, 2007 and US$128,014,944 at Dec. 31, 2006. The Company's current asbestos insurance receivable amounted to US$11.7 million at Sept. 30, 2007 and Dec. 31, 2006. The Company's long-term asbestos insurance receivable amounted to US$102,847,965 at Sept. 30, 2007 and Dec. 31, 2006. Certain Company subsidiaries and the Company have an arrangement with insurers responsible for historical primary and some umbrella insurance coverage for Asbestos Liability. Under the Coverage Arrangement, the Paying Insurers accept financial responsibility. The Coverage Arrangement includes an acknowledgment that Howden Buffalo Inc. is entitled to coverage under policies covering Asbestos Liability for claims arising out of the historical products manufactured or distributed by Buffalo Forge, a former Company subsidiary. The Company has recorded reserves for the total costs, including defense costs, for Asbestos Liability claims pending or projected to be asserted through 2013 of US$140 million, of which about 60 percent is attributable to settlement and defense costs for unasserted claims projected to be filed through 2013. The Company has also recorded a receivable of US$114.5 million for insurance recoveries attributable to the claims for which the Company's Asbestos Liability reserve has been established. Ampco-Pittsburgh Corp. makes metal products. It operates in two business segments: the Forged and Cast Rolls segment and the Air and Liquid Processing segment. Company headquarters are in Pittsburgh. ASBESTOS LITIGATION: Allegheny Records 826 W.Va. Claims at Sept. ---------------------------------------------------------------- Allegheny Energy Inc., as of Sept. 30, 2007, recorded a total of 826 asbestos exposure claims pending in West Virginia, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Nov. 7, 2007. As of Sept. 30, 2007, the Company also recorded two claims in Pennsylvania and one in Illinois. The Company's Distribution Companies (Monongahela Power Co., The Potomac Edison Co., and West Penn Power Co.) have been named as defendants in pending asbestos cases alleging bodily injury involving multiple plaintiffs and multiple sites. These suits have been brought mostly by seasonal contractors’ employees and do not involve allegations of the manufacture, sale or distribution of asbestos-containing products by the Company. These asbestos suits arise out of historical operations and are related to the installation and removal of asbestos-containing materials at the Company's generation facilities. The Company's historical operations were insured by various foreign and domestic insurers, including Lloyd’s of London. Asbestos-related litigation expenses have to date been reimbursed in full by recoveries from these historical insurers. Certain insurers, however, have contested their obligations to pay for the future defense and settlement costs relating to the asbestos suits. The Company is involved in two asbestos and environmental insurance-related actions. These actions are: -- Certain Underwriters at Lloyd’s, London et al. v. Allegheny Energy Inc. et al., Case No. 21-C-03-16733 (Washington County, Md.), and -- Monongahela Power Co. et al. v. Certain Underwriters at Lloyd’s London and London Market Companies, et al., Civil Action No. 03-C-281 (Monongalia County, W.Va.). The parties in these actions seek a declaration of coverage under the policies for asbestos-related and environmental claims. Greensburg, Pa.-based Allegheny Energy Inc. operates primarily through directly and indirectly owned subsidiaries. The Company's two business segments are the Delivery and Services segment and the Generation and Marketing segment. ASBESTOS LITIGATION: ACE Reserves $3.061B for Claims at June 30 ---------------------------------------------------------------- ACE Ltd.'s asbestos-related loss reserves amounted to a gross of US$3.061 billion (a net of US$1.560 billion) at June 30, 2007, compared with a gross of US$3.221 billion (a net of US$1.611 billion) at Dec. 31, 2006. The Company's asbestos-related loss reserves totaled a gross of US$3.158 billion (a net of US$1.592 billion) at March 31, 2007. (Class Action Reporter, Aug. 24, 2007) The Company faces claims relating to policies issued to manufacturers, distributors, installers, and other parties in the chain of commerce for asbestos and products containing asbestos. Claims can be filed by individual claimants or group of claimants with the potential for hundreds of individual claimants at one time. Claimants will generally allege damages across an extended time period which may coincide with multiple policies for a single insured. Hamilton, Bermuda-based ACE Ltd. is a holding company that, through its subsidiaries, provides a broad range of insurance and reinsurance products to insureds worldwide. ACE operates through the following business segments: Insurance – North American, Insurance – Overseas General, Global Reinsurance, and Life Insurance and Reinsurance. ASBESTOS LITIGATION: Ohio Trial Court Ruling Upheld in CIC Suit ---------------------------------------------------------------- The Court of Appeals of Ohio, 1st District, Hamilton County, upheld the ruling of the Hamilton County Common Pleas Court in an asbestos-related declaratory action involving The Cincinnati Insurance Co, ACE INA Holdings Inc., Westfield Insurance Co. and Flexo Products Inc. Judges Mark P. Painter, Hildebrandt, and Sunderman, entered judgment of Case Nos. C-060384 and C-060385 on Oct. 19, 2007. An excess insurer, Cincinnati Insurance sued the primary insurer ACE INA (f/k/a CIGNA Property & Casualty Insurance Co., f/k/a Aetna Property & Casualty Insurance Co.)in a declaratory- judgment action seeking an additional US$1.8 million to cover asbestos claims against their insured Flexo. For clarity, “ACE” is used interchangeably with its predecessors, “CIGNA” and “AETNA.” Flexo manufactured and sold protective masks that purportedly filtered and protected against harmful particles like silica. ACE insured Flexo under three different and consecutive primary insurance policies. The three consecutive policies ran from 1963 to 1966 (Policy 1), from 1966 to 1969 (Policy 2), and from 1969 to 1972 (Policy 3). Cincinnati Insurance issued excess policies to Flexo from 1967 to 1986. Westfield also provided primary insurance to Flexo but has been dismissed from this case. Cincinnati Insurance and ACE provided separate layers of insurance coverage to Flexo. ACE was the primary insurer, and Cincinnati Insurance provided an excess layer of coverage. When ACE notified Cincinnati Insurance that its primary coverage had been exhausted, this declaratory- judgment action followed. Cincinnati Insurance alleged that ACE owed an additional US$1.8 million in primary coverage based on three multi-year policies. The three successive multi-year policies each spanned three years, for nine years of total coverage. The policies in the record are incomplete, but the available documents reveal that ACE's potential liability was US$300,000 "aggregate." The US$1.8 million question was whether the word "aggregate" meant that the US$300,000 limit applied per year or per term. The trial court granted in part and denied in part both parties' summary-judgment motions, concluding that because the complete contents of the multi-year policies were not available, (1) the term "aggregate" was ambiguous as it related to whether the limit applied per year or per policy; (2) extrinsic evidence was admissible; (3) the extrinsic evidence showed that the contracting parties contemplated that the US$300,000 limit would apply per year, for nine years, for a total of US$2.7 million in coverage; (4) the underlying asbestos claims constituted multiple accidents and occurrences; and (5) ACE did not lack good faith in denying coverage. Both parties now appealed. The Appeals Court addressed a lost-policy insurance-coverage quarrel. The Court affirmed. The aggregate policy limits applied annually; and the "deemer" clause was ineffective to limit liability on these facts. Because the policies were incomplete, the partial multi-year policies were ambiguous and required extrinsic evidence; the evidence revealed that the contracting parties intended the aggregates to apply annually; and the limit of Policy 2 and Policy 3 is $1,800,000. The judgment of the trial court is, accordingly, affirmed. K. Roger Schoeni, Kimberly A. Zamary, and Louis C. Schneider, represented The Cincinnati Insurance Co. Jason C. Gruber, and McCaslin, Imbus & McCaslin, and Patrick Shine and Cohn, Baughman & Martin, represented ACE INA Holdings Inc. ASBESTOS LITIGATION: Kans. Court Issues Split Ruling in ACE Case ---------------------------------------------------------------- The U.S. District Court, D. Kansas, issued a split ruling in an asbestos-related insurance action involving ACE Property & Casualty Insurance Co. and Superior Boiler Works Inc. The suit is styled ACE Property & Casualty Insurance Co., as successor to Cigna Property & Casualty Insurance Co., as successor to Aetna Insurance Co.; and Century Indemnity Co., as successor to CCI Insurance Co., as successor to Insurance Company of North America v. Superior Boiler Works Inc. District Judge Marten entered judgment of Case No. 05-1301-JTM on Aug. 27, 2007. Superior Boiler, which makes industrial boilers, was named as a defendant in lawsuits by individuals for alleged bodily injury due to asbestos exposure while repairing or working on or near boilers made by Superior Boiler. Plaintiffs sought a declaratory judgment, in which they requested the determination of whether: (1) They are obligated to pay their pro rata share of Superior Boiler's defense and indemnity costs for the underlying asbestos claims based on a pro rata, time-on-the-risk allocation method (Count I), and whether (2) Superior Boiler is responsible for its pro rata share of defense and indemnity costs for the underlying asbestos claims based on a pro rata, time-on-the-risk allocation method for periods during which it was uninsured and periods during which it placed insurance with a company that later became insolvent (Count II). Plaintiffs also sought an order directing Superior Boiler to reimburse plaintiffs for defense and indemnity costs for the underlying asbestos claims that they have paid in excess of their properly allocated pro rata share. Superior Boiler argued that despite the fact that the underlying claims were asserted since 1987, plaintiffs made defense and indemnity payments since 1987 under their insurance contracts, and that plaintiffs made demands on Superior Boiler to pay a share of those costs, which Superior Boiler refused in 1996. Plaintiffs sought a declaration of coverage and equitable contribution for reimbursement of paid amounts. Furthermore, in its motion for summary judgment, Superior Boiler argued that the claims for paid amounts are barred by the applicable Kansas statute of limitations for written contracts of five years and for equitable contribution of three years. Therefore, Superior Boiler argued, plaintiffs' claims should be dismissed. The matter arose from the plaintiffs' and Superior Boiler's motions for summary judgment. The District Court ruled that plaintiffs' motion for summary judgment is denied and that Superior Boiler's motion for summary judgment is granted with respect to Count I and denied with respect to Count II. Erin O'Brien, James F. Martin, Kathleen A. McQueeny, Cohn Baughman & Martin, Chicago, IL, Geron J. Bird, Scott R. Schillings, Hinkle Elkouri Law Firm, LLC, Wichita, Kans., represented the Plaintiffs. Douglas Y. Curran, Richard L. Green, Stinson Morrison Hecker LLP, Kansas City, Mo., represented Superior Boiler Works Inc. ASBESTOS LITIGATION: Grace Records 460 Damage Claims at Sept. 30 ---------------------------------------------------------------- W.R. Grace & Co., as of Sept. 30, 2007, recorded about 460 outstanding asbestos-related property damage claims, following the reclassification, withdrawal or expungement of claims, according to the Company's quarterly report filed with the U.S. Securities and Exchange Commission on Nov. 8, 2007. The Company, as of June 30, 2007, recorded about 470 outstanding asbestos-related property damage claims, following the reclassification, withdrawal or expungement of claims. (Class Action Reporter, Aug. 24, 2007) The plaintiffs in asbestos property damage lawsuits generally seek to have the defendants pay for the cost of removing, containing or repairing the asbestos-containing materials in the affected buildings. Out of 380 asbestos property damage cases filed before the April 2, 2001 Filing Date, 140 were dismissed without payment of any damages or settlement amounts. Judgments after trial were entered in favor of the Company in nine cases (excluding cases settled following appeals of judgments in favor of the Company. Judgments after trial were entered in favor of the plaintiffs in eight cases (one of which is on appeal) for a total of US$86.1 million, 207 property damage cases were settled for a total of US$696.8 million, and 16 cases remain outstanding (including the one on appeal). Of the 16 remaining cases, eight relate to Zonolite Attic Insulation, a former Grace attic insulation product, and eight relate to a number of former asbestos-containing products (two of which also are alleged to involve ZAI). About 4,035 additional property damage claims were filed before the March 31, 2003 claims bar date established by the Bankruptcy Court.<