/raid1/www/Hosts/bankrupt/CAR_Public/080208.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 8, 2008, Vol. 10, No. 28
Headlines
AMERICAN CORRECTIVE: Ninth Circuit Allows Calif. Suit to Proceed
AWP LITIGATION: Court Rejects First DataBank Suit Settlements
COUNTRYWIDE FINANCIAL: CA Couples Sue Over Inflated Home Prices
COUNTRYWIDE HOME: Calif. Suit Protests Sale to Bank of America
FIRST MAGNUS: Judge Mulls Firm's Liability in Employee Lawsuit
GLOBETEL COMMS: Fla. Court Gives Final OK to $2.3M Settlement
GOLDMAN SACHS: Reaches $11.5M Settlement in UC Enron Litigation
MCKESSON CORP: Seeks Dismissal of RICO Claims in Mass. Lawsuit
MCKESSON CORP: Wants "Related" Antitrust Suit in Mass. Dismissed
MEAT PACKERS: Appeals Court Reverses $9.3M Ruling in Cattle Case
MICHIGAN: Court-Appointed Experts Cite Problems in Foster Care
OWN MY TRAVEL: Suit on Behalf of Pyramid Scheme Investors Looms
PACIFIC CYCLE: Recalls Trailer Bikes Posing Injuries to Children
PILGRIM'S PRIDE: Fifth Circuit Denies Appeal in "Wheeler" Case
POTTERY BARN: Recalls Decorative Candles Due to Fire Hazard
RADIATION THERAPY: Settles Suits Over RTS Merger Agreement
SEVENTY TWO INC: Recalls Hoodies Due to Strangulation Hazard
SOMA FINANCIAL: Faces Calif. Suit Over PayOption Sale Omissions
TRUCKEE CARSON: Two Flood-Related Suits Moved to Federal Court
UNITED STATES: Says Vets Not Entitled to Specific Medical Care
VALUECLICK: Ohio Resident Sues Over "Free" Merchandise Promises
VISA INC: Added as Defendant in Calif. "Attridge" Litigation
VISA INC: N.Y. Court Dismisses Claims for Damages in MDL-1720
VISA USA: Ninth Circuit Mulls Appeal Over "Kendall" Suit Nixing
VISA USA: Mounts Successful Defense V. Multiple Consumer Suits
VISA USA: Parties in Calif. Lawsuit Engage in Settlement Talks
VISA USA: Faces Litigation in Maryland Over Credit Card Fees
WACHOVIA CORP: Faces Penna. Lawsuit Alleging Telemarketing Fraud
WEST PUBLISHING: New Antitrust Lawsuit Filed in California
YAHOO INC: Faces Calif. Suit Over Microsoft's $45BB Buyout Offer
Asbestos Alerts
ASBESTOS LITIGATION: H.B. Fuller Settles Six Lawsuits for $405T
ASBESTOS LITIGATION: Appeal to FELA Suit v. Ill. Railroad Upheld
ASBESTOS LITIGATION: Owens-Illinois Liabilities Rise to $245.5M
ASBESTOS LITIGATION: Appeals Court Favors Warden in Purser Case
ASBESTOS LITIGATION: Supreme Court Refuses Appeal in McCord Suit
ASBESTOS LITIGATION: Cascino Vaughan Represents USG's Creditors
ASBESTOS LITIGATION: SimmonsCooper Files 4 Out-of-State Lawsuits
ASBESTOS LITIGATION: Oregon DEQ Imposes $6,358 Penalty to Local
ASBESTOS LITIGATION: Studio Worker's Widow Gets GBP210T Payout
ASBESTOS LITIGATION: Md. Court Orders John Crane to Pay $15.3M
ASBESTOS LITIGATION: Inquest Links Painter's Death to Asbestos
ASBESTOS LITIGATION: Inquest Links U.K. Worker's Death to Hazard
ASBESTOS LITIGATION: Inquest Links Hazard to Yard Worker's Death
ASBESTOS LITIGATION: Sacramento Survey Finds Asbestos in Schools
ASBESTOS LITIGATION: Contractors Indicted in Gordon-Smith Action
ASBESTOS LITIGATION: W.Va. Contractor Faces Disposal Breach Suit
ASBESTOS LITIGATION: New Ontario Laws May Affect Asbestos Claims
ASBESTOS LITIGATION: Wear Valley Council Faces Asbestos Breaches
ASBESTOS LITIGATION: HSE to Hold 11th Asbestos Summit on Feb. 13
ASBESTOS LITIGATION: Cleanup of Metro-North Hudson Line Ongoing
ASBESTOS LITIGATION: P&G Co. Says Fla. Plant Workers Not Exposed
ASBESTOS LITIGATION: General Motors Starts Cleanup of Wyo. Plant
ASBESTOS LITIGATION: No Safe Asbestos Levels, Aussie Group Says
ASBESTOS LITIGATION: Appeals Court Upholds Rulings in Brown Suit
ASBESTOS LITIGATION: Folksamerica Records $63M for A&E Reserves
ASBESTOS LITIGATION: Unitrin Has A&E Reserves of $18M at Dec. 31
ASBESTOS LITIGATION: Sensus Metering Still Faces Exposure Suits
ASBESTOS LITIGATION: RBS Records $136M Claims Reserve at Dec. 29
ASBESTOS LITIGATION: Grace Parties File Briefs on Admissibility
ASBESTOS LITIGATION: Labor Unions, NGOs Demanding Ban in India
ASBESTOS LITIGATION: Scapa Dryers, Wallace & Gale Liable in Suit
ASBESTOS LITIGATION: Lacone's Family Gives AUD200T for Research
ASBESTOS LITIGATION: Asymptomatic Claimants Laud Scottish Bill
ASBESTOS LITIGATION: Court Junks Pending Motions in Grace Action
ASBESTOS LITIGATION: Tyco Int'l Has 5,600 Cases Recorded at Dec.
ASBESTOS LITIGATION: RBS Global Inc. Records 675 Stearns Actions
ASBESTOS LITIGATION: RBS Global Records 2 Prager Injury Lawsuits
ASBESTOS LITIGATION: RBS Global Inc. Records 130 Falk Lawsuits
ASBESTOS LITIGATION: RBS Faces About 7,800 Zurn Cases at Dec. 29
ASBESTOS LITIGATION: Court Junks Dismissal of Anderson's Action
ASBESTOS LITIGATION: Magnetek Receives $1.4M Payment from Trust
ASBESTOS LITIGATION: Del. Court Junks Claims Against Contractors
ASBESTOS LITIGATION: Canadian Study Says 300 Workers Die Yearly
ASBESTOS LITIGATION: UCATT OKs U.K. Gov't. Admission on Asbestos
ASBESTOS LITIGATION: Wis. Officials Urging to Hasten Demolitions
ASBESTOS LITIGATION: Cleanup at ABB's Site in Australia Ongoing
ASBESTOS ALERT: Equitable Developer Could Face Asbestos Penalty
New Securities Fraud Cases
CELLCYTE GENETICS: Hagens Berman Files WA Securities Fraud Suit
HUNTINGTON BANCSHARES: Strauss & Troy Files OH Securities Suit
MAXIM INTEGRATED: Rosen Law Firm Files Ca. Securities Fraud Suit
*********
AMERICAN CORRECTIVE: Ninth Circuit Allows Calif. Suit to Proceed
----------------------------------------------------------------
The U.S. Court of Appeals for Ninth Circuit has ruled that
American Corrective Counseling Services, Inc., a private debt
collection company used by several counties to collect on
bouncing checks, can be sued for its allegedly overaggressive
tactics, Howard Mintz of Mercury News reports.
A unanimous three-judge panel found that ACCS is not entitled to
government immunity against lawsuits, even if it was hired by
local district attorneys to track down thousands of bad check
writers each year.
Mercury News reports that the company had been attempting to
extricate itself from a class action filed with the U.S.
District Court for the Northern District of California back in
Dec. 11, 2001.
That lawsuit, entitled, "Elena Del Campo v. American Corrective
Counseling, Case No. 5:01-cv-21151-JW," generally accuses
company officials of intimidating people with the phony threat
of jail, and charging them exorbitant fees to clear their debts.
According to court records, plaintiffs in the case, who are
being backed by the Washington, D.C.-based consumer watchdog
group Public Citizen, include:
-- Elena M. Del Campo;
-- Miriam Campos;
-- Lisa Johnston;
-- Ashorina Medina; and
-- Lois Artz.
Additionally, court records revealed that besides ACCS, there
are also other defendants named in the case. These defendants
are:
-- Don R. Mealing;
-- Bruce D. Raye;
-- Fulfillment Unlimited, Inc.;
-- Fundamental Performance Strategies;
-- Inc. Fundamentals;
-- ACCS Administration, Inc.;
-- R.D Davis;
-- Defendant Green;
-- Defendant Kramer; and
-- Defendant Lopez.
With the Ninth Circuit's rejection of the company's immunity
defense, the case can now proceed to a trial, according to the
Mercury News report.
However, Mercury News has learned that attorneys for ACCS, who
expressed disappointment at the decision, may ask an 11-judge
panel of the U.S. Court of Appeals for the Ninth Circuit to to
reconsider the ruling.
The suit is "Elena Del Campo v. American Corrective Counseling,
Case No. 5:01-cv-21151-JW," filed with the U.S. District Court
for the Northern District of California, Judge James Ware
presiding.
Representing the plaintiffs are:
Paul Arons, Esq.
Law Office of Paul Arons
685 Spring Street # 104
Friday Harbor, WA 98250
Phone: 360-378-6496
e-mail: lopa@rockisland.com
- and -
Deepak Gupta, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Phone: 202-588-1000
Web site: http://www.citizen.org/
Representing the defendants are:
Shawn Marie Harpen, Esq.
Jones Day
3 Park Plaza, Suite 1100
Irvine, CA 92614
Phone: 949-553-7518
Fax: 949-553-7539
e-mail: sharpen@jonesday.com
- and -
Timothy P. Irving, Esq.
Ross, Dixon & Bell
550 West B Street, Suite 400
San Diego, CA 92101
Phone: 619-235-4040
Fax: 619-231-8796
e-mail: tirving@rdblaw.com
AWP LITIGATION: Court Rejects First DataBank Suit Settlements
-------------------------------------------------------------
The U.S. District Court for the District of Massachusetts
entered a minute order denying final approval of the proposed
settlements by First DataBank, Inc., and Medi-Span, Inc. in the
class actions, "New England Carpenters Health Benefits Fund, et
al. v. First Databank, Inc., et al., Case No. 1:05-cv-11148-
PBS," and "D. C. 37 Health & Security Plan v. Medi-Span, No. 07-
cv-10988-PBS."
Case Background
The two lawsuits were filed by the New England Carpenters Health
Benefits Fund and the AFSCME District Council 27 Health and
Security Plan, respectively.
Both suits concern how the published price of drugs are
determined, what consumers pay for the drugs and what third-
party payors reimburse for them (Class Action Reporter,
Sept. 26, 2007).
In general, the suits allege that defendants conspired with drug
wholesaler McKesson Corp. to manipulate the price of medicines
to benefit that company's customers.
McKesson Corp., which is not part of the settlement, previously
issued a press statement, maintaining that it did not conspire
with the defendants to raise the published average wholesale
prices of drugs (Class Action Reporter, Oct. 11, 2006).
First DataBank, Inc., and Medi-Span, Inc., publish data related
to the prices of prescription drugs in their printed and
electronic databases. The data includes the Average Wholesale
Price of each drug. Pharmaceutical manufacturers report certain
prices to FDB and Medi-Span. FDB then marked-up these prices to
get the AWP reported in their publications and databases.
From December 2001 into April 2004, Medi-Span published AWP that
it obtained from FDB. Subsequently, Medi-Span independently
published certain AWP information in its publications and
databases. Third-party payors and pharmacies may use the AWP as
a benchmark in determining the amount of reimbursement for drugs
or the cost of drugs to certain consumers.
One of the lawsuits alleges that FDB and McKesson wrongfully
inflated the mark-up used to determine the AWP. The other
lawsuit claims that Medi-Span negligently published inflated
prescription drug prices. As a result, the two lawsuits claim
that insurers, third-party Payors, and some consumers paid more
for certain drugs than they should have.
FDB/Medi-Span Settlement
Both FDB and Medi-Span reached tentative settlements in their
respective cases. The proposed settlement aimed to provide
"injunctive relief," which technically means that instead of
paying money damages, defendants agree to change what they are
doing to benefit the class.
In essence, FDB and Medi-Span will:
-- reduce the mark-up factor for thousands of drugs in
their respective data publications.
-- cease to publish an AWP within two (FDB) or three (Medi-
Span) years of the settlement's final approval.
-- Provide information on drug price publishing in
connection with this and other lawsuits.
The class covered by the settlements consists of all individual
persons or entities that made purchases and paid, whether
directly, indirectly, or by reimbursement, for all or part of
the purchase price of certain prescription pharmaceuticals based
on the AWP data reported by FDB or Medi-Span.
The court had set a final approval hearing on Jan. 22, 2008,
wherein it would consider whether the proposed deals are fair,
reasonable, and adequate.
On Jan. 23, 2008, the trial court conducted a "fairness" hearing
on the proposed settlement between the plaintiff classes and
defendants FDB and Medi-Span, according to McKesson Corp.'s
Feb. 1, 2008 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Dec. 31, 2007.
A number of objections were filed against the proposed
settlement by various retail chain and independent pharmacy
groups.
Thus, on Jan. 24, 2008, Judge Patti B. Saris entered a minute
order denying approval of the settlement "without prejudice for
reasons stated in court." The court has not yet issued an
opinion reflecting in more detail the bases for Judge Saris'
denial of the settlement.
More information on the matter is available free of charge at:
http://www.FDBMediSpanSettlement.com
COUNTRYWIDE FINANCIAL: CA Couples Sue Over Inflated Home Prices
---------------------------------------------------------------
Countrywide Financial Corp. and KB Home face a purported class
action in California, which is claiming that the two schemed
with real estate appraisers to inflate prices paid for homes as
the housing market began to collapse in 2005, the Associated
Press reports.
The suit was filed with the Los Angeles Superior Court by two
California couples on Feb. 6, 2008. It also names as defendants
KB Home Mortgage Co., Countrywide Home Loans Inc., Countrywide
KB Home Loans -- a joint venture of Countrywide and the builder
-- and two real estate appraisers.
The couples, all residents of Live Oak in Northern California,
are:
-- Deborah and Lonnie Bolden, and
-- David and Dolores Contreras
The suit alleges that prospective homebuyers were presented with
false or misleading data on previously sold homes in order to
justify higher asking prices on new purchases, according to AP.
KB customers were presented with comparable sales data from
homes that were dissimilar, nowhere near the KB property being
sold, or from sales that had not yet closed, the lawsuit states.
Furthermore, the suit alleges that when independent appraisers
evaluated comparable home sales, the values were between 10
percent and 15 percent lower than the price the plaintiffs paid
for their KB homes.
The plaintiffs are seeking unspecified restitution as well as
compensatory and punitive damages.
In addition, they want class-action status to cover KB Home
customers in California who obtained financing through
Countrywide and closed on their purchases between Aug. 1, 2005
and July 31, 2006.
The complaint, which was obtained by AP, suggests the alleged
scheme likely affected other KB customers. Specifically, the
complaint pointed out, "Inflated closed-sale prices resulting
from the fraudulent appraisals, in turn, infected subsequent
appraisals and valuations, allowing KB Home to continue to
obfuscate falling values and obtain prices inflated well beyond
where they would have been in the absence of this unlawful price
manipulation."
For more details, contact:
Peter B. Fredman, Esq.
Brayton Purcell LLP
222 Rush Landing Road
P.O. Box 6169
Novato, CA 94948-6169
Phone: (415) 898-1555
Fax: (415) 898-1247
Web site: http://www.braytonlaw.com
COUNTRYWIDE HOME: Calif. Suit Protests Sale to Bank of America
--------------------------------------------------------------
Countrywide Home Loans shareholders have brought a class-action
complaint with the Los Angeles Superior Court against
Countrywide Home Loans CEO Angelo Mozilo and Bank of America,
CourtHouse News Service reports.
The suit claims that Mr. Mozilo is selling his beleaguered
company too cheaply to BofA, on grossly unfair terms. The
plaintiffs claim that BofA snapped up Countrywide at the
"bargain basement price" of 0.1822 shares of BofA stock for each
Countrywide share. They also assert that Countrywide directors
harmed the company by their risky lending practices, while
pumping up the stock through false and misleading statements and
unjustly enriching themselves by dumping their own shares at
inflated prices.
According to the suit, Mr. Mozilo and "his cohorts" face
"hundreds of millions, if not billions, of dollars of personal
liability" from class-action and derivative lawsuits.
They assert that these defendant-directors each profited certain
amounts in millions of dollars by dumping shares before the
misconduct became known:
-- Mr. Mozilo, $450.5 million;
-- Henry G. Cisneros, $5.6 million;
-- Jeffrey M. Cunningham, $3 million;
-- Robert J. Donato, $5.5 million;
-- Oscar P. Robertson, $10.2 million;
-- David Sambol, $57.8 million; and
-- Harley W. Snyder, $9 million.
In other words, the complaint states, the defendant-directors
reaped more than $500 million in illicit gains, and when
Countrywide's misconduct was revealed on July 24, 2007, and the
share price fell by $3.56 that day, shareholders lost more than
$2.1 billion.
The plaintiffs want the terms of the sale rescinded, including
any accompanying termination fees, and they want the defendants
enjoined from consummating an acquisition tied to extracting
indemnity agreements, unless and until the Company adopts and
implements a fair procedure or process that does not unfairly
advantage defendants at the expense of Countrywide shareholders.
The plaintiffs also object to BofA's providing legal defense for
Mr. Mozilo and the other individual defendants.
The plaintiffs' counsel is:
Coughlin Stoia Geller Rudman & Robbins LLP
Web site: http://www.csgrr.com
FIRST MAGNUS: Judge Mulls Firm's Liability in Employee Lawsuit
--------------------------------------------------------------
U.S. Bankruptcy Judge James Marlar is determining whether First
Magnus Financial Corp. is liable for not providing notice of a
mass layoff, Christie Smythe writes for the Arizona Daily Star.
According to Ms. Smythe, Judge Marlar seemed to be leaning
toward dismissing the case and against awarding damages to the
eight employees included in the lawsuit against the lender.
As reported in the Class Action Reporter on Jan. 17, 2008, Judge
Marlar denied the request of First Magnus employees to
certify a lawsuit for unpaid wages and benefits.
The lawsuit was initially filed as a potential class-action suit
on behalf of all of First Magnus' roughly 5,500 employees
nationwide, who were laid off on Aug. 16, 2007, when the company
shut down its operations. The employees also have not received
their final pay checks because First Magnus failed to pay them
before filing for bankruptcy on Aug. 21.
The suit -- which was also filed against First Magnus Capital
Inc., a holding company formed by First Magnus executives and
shareholders and has 100% ownership in the lender -- alleged
that the employees are entitled to damages for First Magnus'
failure to provide 60 days notice of a mass layoff, as required
by the federal Worker Adjustment and Retraining Notification
Act.
In his order issued on Jan. 11, 2008, Judge Marlar denied
certification of the suit as a class action, saying that
"such an event would unnecessarily increase the costs and reduce
the distribution to the proposed class members." The judge
further wrote that the employees should simply file claims,
"each of which will be addressed on its merits."
The attorneys representing the employees, however, have filed an
appeal of Judge Marlar's decision in federal court.
Judge Marlar, according to Arizona Daily, admitted to having
"real difficulty associating the facts of this case with the
bankruptcy code."
Rene Roupinian, Esq., cited numerous precedents in her arguments
that First Magnus should be held liable for not notifying its
workers, Arizona Daily notes. Judge Marlar said he would
consider Ms. Roupinian's arguments, but is not interested in
cases that might hold up First Magnus' bankruptcy proceedings
and further delay employees getting their final checks.
Arizona Daily cites Judge Marlar as saying that the employees
were thrown out without pay and that he is trying to get them
paid through the company's bankruptcy case.
First Magnus Capital, the report recalls, earlier asked to be
dismissed from the lawsuit on the grounds that it is not
directly involved in the lender's bankruptcy case. Jan Saffer,
Esq., who is representing First Magnus Capital, also said that
the employees should simply be treated as creditors.
The plaintiffs are represented by:
Rene S. Roupinian, Esq.
Outten & Golden, LLP
e-mail: rroupinian@outtengolden.com
Web site: http://www.masslayoff.com
About First Magnus
Based in Tucson, Arizona, First Magnus Financial Corporation --
http://www.firstmagnus.com/-- purchases and sells prime and
Alt-A mortgage loans secured by one-to-four unit residences.
The company filed for chapter 11 protection on Aug. 21, 2007
(Bankr. D. Ariz. Case No.: 07-01578). John R. Clemency, Esq.,
at Greenberg Traurig LLP, serves as the counsel for the Debtor.
The Official Committee of Unsecured Creditors has selected the
firm Warner Stevens LLP as its counsel. When the Debtor filed
for bankruptcy, it listed total assets of $942,109,860 and total
debts of $812,533,046.
The Debtor's exclusive period to file a plan expired on Dec. 19,
2007. The confirmation hearing on the Debtor's liquidation plan
is on Feb. 7, 2008. (First Magnus Bankruptcy News, Issue No.
16; Bankruptcy Creditors' Service Inc.
http://bankrupt.com/newsstand/or 215/945-7000).
GLOBETEL COMMS: Fla. Court Gives Final OK to $2.3M Settlement
-------------------------------------------------------------
The U.S. District Court for the Southern District of Florida
gave final approval to settlements reached in pending securities
class action and a shareholder derivative action filed against
GlobeTel Communications Corp., and certain of its current and
former officers and directors.
On April 28, 2006, the law firm of Sarraf Gentile, LLP,
commenced a securities fraud class action on behalf of those
investors who acquired the securities of GlobeTel Communications
Corp. from Dec. 30, 2005 to April 11, 2006 (Class Action
Reporter, Nov. 21, 2007).
On Oct. 29, 2007, GlobeTel reached settlements in principle in
pending securities class action as well as shareholder
derivative litigation (Case Nos. 06-21071 and 06-60923,
respectively) filed against certain of current and former
officers and directors. The settlements were and preliminary
approval announced on Nov. 20, 2007
Under the terms of the proposed settlement agreement in the
class action, the Company's D&O insurance carrier will make a
cash payment to the class of $2,300,000, less up to $100,000 for
potential counsel fees and expenses. All claims in the class
action will be dismissed with prejudice.
Pursuant to the proposed settlement in the derivative action,
the Company's D&O insurance carrier will pay $60,000 in
attorneys' fees to plaintiff's counsel, the Company will
implement or maintain certain corporate governance changes, and
all claims will be dismissed with prejudice.
As a result of these approvals, all claims in these two lawsuits
have been fully settled and dismissed with prejudice by the
court.
The securities fraud suit is "Richard Stevens, et al. v.
GlobeTel Communications Corp., et al., Case No. 06-CV-21071,"
filed with the U.S. District Court for the Southern District of
Florida, Judge Cecilia M. Altonaga presiding.
Representing the plaintiffs are:
Glancy Binkow & Goldberg, LLP, (LA)
1801 Ave. of the Stars, Suite 311
Los Angeles, CA, 90067
Phone: (310) 201-915
Fax: (310) 201-916
e-mail: info@glancylaw.com
Howard G. Smith
Attorney at Law
3070 Bristol Pike, Suite 112
Bensalem, PA, 19020
Phone: (215) 638-4847
Fax: (215) 638-4867
Milberg Weiss Bershad & Schulman, LLP, (Boca Raton)
The Plaza - 5355 Town Center Road, Suite 900
Boca Raton, FL, 33486
Phone: 561.361.5000
Fax: 561.367.8400
e-mail: info@milbergweiss.com
- and -
Sarraf Gentile, LLP
485 Seventh Avenue, Suite 1005
New York, NY, 10018
Phone: 212.868.3610
Fax: 212.918.7967
GOLDMAN SACHS: Reaches $11.5M Settlement in UC Enron Litigation
---------------------------------------------------------------
The University of California and Goldman Sachs Group, Inc., have
reached a $11.5-million settlement over investment losses from
Enron Corp., Angelica Dongallo of The Daily Californian reports.
The settlement with Goldman Sachs is the latest resolved case in
the university's class action against Enron, which folded in
2001 after being found to have committed investor fraud. To
date, approximately 500,000 plaintiffs in the lawsuit, led by
UC, have received about $7.3 billion in settlements.
The university alleged that prior to Enron's 2001 collapse,
Goldman Sachs used a false registration statement to sell the 7%
exchangeable notes issued to investors by Enron. The notes were
exchangeable for stocks at Enron Oil & Gas Co., according to
The Daily Californian report.
As the lead plaintiff in the case, UC is seeking repayment for
investments made with the company from banks, law firms, and
individuals who were involved with the investments.
The Daily Californian reports that the UC Board of Regents
approved the Goldman Sachs settlement at their business meeting
last month, but the decision must still be approved by the
district court.
Case Background
The university's original suit was filed in October 2001. The
case against Goldman Sachs began in 2004 when the investment
firm was added as a defendant in the university's case against
Enron.
The suit was filed by Enron investors seeking to recover
$40 billion in losses from the bankruptcy of the energy company.
Enron filed for Chapter 11 bankruptcy on Dec. 2, 2001 (Class
Action Reporter, March 22, 2007).
In June 2006, Judge Melinda Harmon of the U.S. District Court
for the Southern District of Texas, certified the lawsuit as a
class action.
On March 19, 2007, the U.S. Court of Appeals for the 5th Circuit
ruled that the suit was improperly certified as a class action,
and was thus sent back to the lower court for reconsideration.
The shareholders then sought U.S. Supreme Court review of the
ruling. In their Petition, the Plaintiffs asked the Supreme
Court: does liability exist under Section 10(b) of the
Securities Exchange Act of 1934 and the Securities and Exchange
Commission Rule 10b 5, where an actor knowingly employs
deceptive devices and contrivances as part of a scheme to
defraud investors in another public company, but makes no
affirmative misrepresentations to the market?
The Plaintiffs contended that Section 10(b) and Rule 10b-5,
which both prohibit any person from directly or indirectly using
or employing a deceptive device or contrivance, clearly
encompasses the banks' conduct in the Enron fraud case.
Plaintiffs-Appellees are:
-- Regents of the University of California;
-- Washington State Investment Board;
-- San Francisco City and County Employees' Retirement
System;
-- Employer-Teamsters Local Numbers 175 and 505 Pension
Trust Fund;
-- Hawaii Laborers Pension Plan;
-- Staro Asset Management LLC;
-- Amalgamated Bank, as Trustee for the Longview Collective
Investment Fund;
-- Robert V. Flint;
-- John Zegarski; Mervin Schwartz, Jr.;
-- Steven Smith;
-- Archdiocese of Milwaukee;
-- Greenville Plumbers Pension Plan;
-- Nathaniel Pulsifer, as Trustee of the Shooters Hill
-- Revocable Trust.
Defendants-Appellants are:
-- Credit Suisse First Boston (USA), Inc.;
-- Credit Suisse First Boston LLC;
-- Pershing LLC;
-- Merrill Lynch & Co., Inc.;
-- Merrill Lynch Pierce Fenner & Smith, Inc.;
Barclays PLC, Barclays Bank PLC, Barclays Capital Inc. are also
Appellants.
However, just recently, the U.S. Supreme Court denied without
comment the petition filed by Enron Corp. shareholders to review
the appeals court ruling that blocked a class action against
investment banks and firms that did business with the Enron
prior to its collapse (Class Action Reporter, Jan. 22, 2008).
To date as lead plaintiff, the University of California has so
far reached these settlements:
Arthur Andersen LLP, September 2006 $72.5 million
Kirkland & Ellis LLP, September 2006 $13.5 million
Canadian Imperial Bank of Commerce, August 2005 $2.4 billion
JPMorganChase, June 2005, $2.2 billion
Citigroup, June 2005, $2 billion
Outside Directors, January 2005 $168 million
Lehman Brothers, October 2004 $222.5 million
Bank of America, July 2004 $69 million
Andersen Worldwide SC, 2002 $32 million
LJM2 bankruptcy recovery, 2004-05 $37 million
For more details, contact:
Patrick J. Coughlin, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: (415) 288-4545
Fax: (415) 288-4534
e-mail: patc@lerachlaw.com
Web site: http://www.lerachlaw.com
MCKESSON CORP: Seeks Dismissal of RICO Claims in Mass. Lawsuit
--------------------------------------------------------------
McKesson Corp. is seeking for the dismissal of the Racketeer
Influenced and Corrupt Organizations claims that were made in
the class action, "New England Carpenters Health Benefits Fund
et al., v. First DataBank, Inc. and McKesson Corporation, Case
No. 05-11148," according to McKesson Corp.'s Feb. 1, 2008 form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Dec. 31, 2007.
Case Background
The suit was originally filed with the U.S. District Court for
the District of Massachusetts on October 2006 by Seattle-based
Hagens Berman Sobol Shapiro (Class Action Reporter, Nov. 13,
2007).
It was brought on behalf of consumers and third-party payers
alleges that McKesson entered into a secret agreement to
artificially inflate the reported average wholesale price of
thousands of drugs, a benchmark used by Medicaid and insurance
plans to determine payment to pharmacies.
Class Certification Issues
On Aug. 27, 2007, the court issued its ruling on the plaintiffs'
petition for class certification.
The court certified a class of third party payors for purposes
of liability and equitable relief, but declined to certify such
a class for purposes of a damages award.
The court did certify a class of percentage co-pay consumers on
issues of both liability and damages.
Subsequently, at a Nov. 13, 2007 hearing, the court requested
supplemental briefing on class certification issues.
Supplemental briefing has been completed, but the court has not
yet issued any order modifying its Aug. 27, 2007 class
certification order.
New Class Sought
On Oct. 9, 2007, the plaintiffs filed a motion to amend the
complaint to add a new class made up of uninsured purchasers of
branded drugs who paid what is known as the Usual and Customary
price, and plaintiffs also sought to add federal and state
antitrust claims on behalf of the existing classes and the
proposed new U&C class.
On Nov. 6, 2007, the court denied the plaintiffs' motion to add
antitrust claims, allowed the amendment to add a class of U&C
consumers and indicated that the U&C class claims would be put
on a different schedule from that of the two classes addressed
in the August 2007 class certification order.
On the same day, the plaintiffs filed a Third Amended Complaint
which included the U&C class, and the court has subsequently set
a trial date of Jan. 26, 2009, for claims by that class. No
other trial date has been set in these matters.
Dismissal of RICO Claims Sought
On Dec. 13, 2007, the company filed a motion to dismiss the
Racketeer Influenced and Corrupt Organizations claims on which
the U&C class claims were based, and the company also moved for
judgment on the pleadings with respect to the RICO claims
supporting the two original classes. No hearing date has been
set for argument of those motions.
The suit is "New England Carpenters Health Benefits Fund, et al.
v. First Databank, Inc., et al., Case No. 1:05-cv-11148-PBS,"
filed in the U.S. District Court for the District of
Massachusetts under Judge Patti B. Saris.
Representing the plaintiffs are:
George E. Barrett, Esq.
Barret Johnston & Parsley
217 Second Avenue N.
Nashville, TN 37201-1601
Phone: 615-244-2202
e-mail: gbarrett@barrettjohnston.com
Jennifer Fountain Connolly, Esq.
The Wexler Firm, LLC,
2000 One LaSalle Street
Chicago, IL 60602
Phone: 312-346-2222
Fax: 312-346-0022
e-mail: jfc@wtwlaw.us
Barbara Mahoney, Esq.
Hagens Berman Sobol Shapiro, LLP
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Phone: 206-623-7292
Fax: 206-623-0594
e-mail: barbaram@hbsslaw.com
- and -
Spector, Roseman & Kodroff, P.C.
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: 215-496-0300
Fax: 215-496-6611
E-mail: classaction@srk-law.com
Web site: http://www.srk-law.com
MCKESSON CORP: Wants "Related" Antitrust Suit in Mass. Dismissed
----------------------------------------------------------------
McKesson Corp. is seeking for the dismissal of the antitrust
class action, entitled, "New England Carpenters Health Benefits
Fund et al., v. McKesson Corporation."
The suit, which was filed with the U.S. District Court for the
District of Massachusetts on Dec. 10, 2007, was brought as a
"related" matter to "New England Carpenters Health Benefits
Fund, et al. v. First Databank, Inc., et al., Case No. 1:05-cv-
11148-PBS."
Listed as plaintiffs in the new case are:
-- New England Carpenters Health Benefits Fund,
-- Pirelli Armstrong Retiree Medical Benefits Trust,
-- Teamsters Health & Welfare Fund of Philadelphia and
Vicinity,
-- Philadelphia Federation of Teachers Health and Welfare
Fund,
-- District Council 37,
-- AFSCME-Health & Security Plan,
-- June Swan,
-- Bernard Gorter,
-- Shelly Campbell, and
-- Constance Jordan.
In general, the new complaint incorporates the federal and state
antitrust claims that could not be brought by way of amendment
to the existing class complaint.
On Jan. 31, 2008, the company filed a motion to dismiss the new
antitrust class action, according to McKesson Corp.'s Feb. 1,
2008 form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2007.
The new suit is "New England Carpenters Health Benefits Fund et
al., v. McKesson Corporation, Case No. 1:07-12277," filed with
the U.S. District Court for the District of Massachusetts, Judge
Patti B. Saris, presiding.
Representing the plaintiffs is:
Steve W. Berman, Esq.
Hagens Berman Sobol Shapiro LLP
1301 5th Avenue, Suite 2900
Seattle, WA 98101-1090
Phone: 206-623-7292
Fax: 206-623-0594
e-mail: steve@hbsslaw.com
Representing the defendant is:
James P. Bennett, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94107-2406
Phone: 415-268-7000
Fax: 415-268-7522
e-mail: jbennett@mofo.com
MEAT PACKERS: Appeals Court Reverses $9.3M Ruling in Cattle Case
----------------------------------------------------------------
A three-judge panel of the 8th U.S. Circuit Court of Appeals
reversed the district court's 2006 ruling in favor of cattle
ranchers who claimed that four large meat packing companies
underpaid producers for live cattle by taking advantage of a
pricing error made by the U.S. Department of Agriculture in
2001, press reports say.
The class action lawsuit, filed with the U.S. District Court for
the District of South Dakota in 2002, by Herman Schumacher of
Herreid, Michael Callicrate of Kansas, and Roger Koch of
Nebraska, sought almost $43 million from:
1. Tyson Fresh Meats Inc.,
2. Cargill Meat Solutions Corp.,
3. Swift Beef Co., and
4. National Beef Packing Co.
According to the Associated Press, the federal appeals court
found that the cattle ranchers, who won a $9.25-million federal
jury verdict against the meat packers, failed to show that the
companies were guilty of price manipulation.
AP explains that from April 2, 2001, to May 11, 2001, the USDA
misreported the boxed beef cutout prices for choice and select
cuts of meat. The erroneous reports were the result of a flawed
computer program that took into account a lesser quality of beef
when calculating cutouts for choice and select cuts. As a
result, the choice and select cutouts were too low.
The lawsuit alleged that the meatpackers knowingly used this
information to pay less to cattle producers than they would have
if the cutouts were correct. The packers, however, denied
knowing about the faulty reports before the USDA acknowledged
them.
The recent ruling stated that the ranchers produced no evidence
that the packers intentionally violated the Packers and
Stockyards Act by manipulating or controlling cattle, or
attempting to manipulate or control, prices. To prove a
violation, the ruling noted, a plaintiff must show that a packer
intentionally committed unlawful conduct.
"Therefore, the district court erred when it instructed the jury
that a showing of intent was not required and reversal of the
district court is necessary," the judges ruled.
"The appeals court ruling confirms our long-standing position
that our company acted appropriately and should not be penalized
for the government's mistake," The Morning News cites a
statement by Tyson Foods.
Mr. Schumacher, AP notes, vowed to press on with the legal
battle.
The case it captioned "Schumacher v. Tyson Fresh Meats, Inc.,"
Case No: 2006 DSD 12, filed with the U.S. District Court for the
District of South Dakota, Northern Division.
Representing the plaintiffs are:
Elizabeth J. Anderson, Esq.
David F. Herr, Esq.
Maslon, Edelman, Borman & Brand
3300 Wells Fargo Center
90 S. 7th St.
Minneapolis, MN 55402-4140
Phone: (612) 672-8200
Fax: 672-8397
email: david.herr@maslon.com
Representing the defendants are:
William H. Baumgartner, Jr., Esq.
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Phone: (312) 853-7000
Fax: (312) 853-7036
e-mail: wbaumgartner@sidley.com
- and -
Patrick E. Brookhouser, Jr., Esq.
McGrath North Mullin & Kratz, PC LLO
1601 Dodge St., Suite 3700
First Natl. Tower
Omaha, NE 68102-1627
Phone: (402) 341-3070
Fax: (402) 341-0216
e-mail: pbrookhouser@mnmk.com
MICHIGAN: Court-Appointed Experts Cite Problems in Foster Care
--------------------------------------------------------------
The Michigan Department of Human Service is facing a class-
action lawsuit filed in August 2006 by New York-based Children's
Rights, a national child advocacy group that alleges 19,000
Michigan children are being harmed in foster care.
U.S. District Judge Nancy Edmunds, who is overseeing the class-
action lawsuit, earlier appointed The Children's Research
Center, a non-profit group based in Madison, Wis., to conduct
the case record review.
According to Free Press, the study found that the Michigan
Department of Human Services failed to follow its own policies
and to meet basic standards for care of foster children. The
report, which was released on Feb. 5, 2008, said that the state:
* failed to run required checks on the homes of relatives
where children were placed;
* missed required visits to children;
* bounced children from one foster home to another; and
* failed to keep adequate medical records for children.
Specifically, the Associated Press says that the study found
that state caseworkers did not make required face-to-face visits
with children in foster care and failed to conduct background
checks before placing children with relatives. The analysis of
the cases of 460 children in the custody of the Michigan
Department of Human Service also found that caseworkers did not
adequately plan for the children's needs early in their foster
care placements.
AP explains that policy states that caseworkers make two face-
to-face contacts with children during their first month in
foster care. However, caseworkers did not make any contacts in
31% of the 460 cases analyzed by the Children's Research Center.
Experts also said that about 41% of children were moved at least
three times during foster care.
Michigan officials, according to Free Press, questioned the
methodology of the report.
Initially, Michigan officials said that they wanted to try to
settle the suit, AP recounts. However, settlement talks broke
off in 2007 when the state said it had no money to enact
reforms.
A trial date for the lawsuit has been set for June.
Sara Bartosz, Esq., the lead lawyer in the case, told Free Press
that she expects the report to figure prominently in the group's
lawsuit against the state. The group hopes to convince Judge
Edmunds to order the state to make changes to the system.
OWN MY TRAVEL: Suit on Behalf of Pyramid Scheme Investors Looms
---------------------------------------------------------------
Some Orlando residents claim that they lost thousands of dollars
after investing in an apparent discount travel venture that may
have been a pyramid scheme, Local6.com reports, citing a Problem
Solvers investigation.
The report relates that the Own My Travel business sold discount
travel memberships to all takers from Orlando to Los Angeles out
of an office near Lake Eola. The venture promises a steady
stream of lifetime cash.
According to Local6, sales hit $10 million at one point.
However, in December 2007, the staff stopped showing up and OMT
was gone, including the money.
Local6 cites attorneys as saying that more than 2,000 Orlando
residents lost anywhere from $2,500 to $100,000 in connection
with the business.
OMT's chief executive officer, Darrell West, said that rumors
ruined the company, the report notes. He said that it was not a
pyramid scheme and the money went to commissions.
Winter Park attorney Eric Lanigan's firm is teaming up with
Robert Sirianni, Esq., to file a class-action lawsuit on behalf
of dozens of investors.
"Everything we've seen points to a classic type of scheme or
artifice to defraud," Mr. Lanigan told Local6.
"Ultimately, what happened was the money went into the pockets
of the three principal members [] and went back to Nevada,"
Mr. Sirianni said.
Local6 says that it is not known if any of the investors will
get any of their money back.
Eric A. Lanigan, Esq., can be reached at:
Eric A. Lanigan
Suite 105, 174 W. Comstock Ave.
Winter Park, FL 32789-4347
Phone: (800) 785-9090
(407) 740-7379
Fax: (407) 740-6812
PACIFIC CYCLE: Recalls Trailer Bikes Posing Injuries to Children
----------------------------------------------------------------
Pacific Cycle Inc., of Madison, Wis., in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
7,000 InStep "Pathfinder," Schwinn "Run About," and Mongoose
"Alley Cat" Trailer Bicycles.
The company said the coupler connecting the children's trailer
bike to the adult's bicycle has welds that can fail, posing a
fall hazard to children.
Pacific Cycle has received one report of the coupler failing,
resulting in a fall and abrasions to the rider.
The "Pathfinder," "Run About," and "Alley Cat" are single-
wheeled, children's bicycles that connect to an adult's bicycle
by a coupler. The recall includes model numbers: 12-PF250, 13-
SC250, 13-SC350 and M5101. The model number is located on the
lower seat tube of the frame. The affected couplers have welded
plates; bicycles that have couplers with cast parts are not
included in this recall.
The recalled trailer bikes were manufactured in China and were
being sold at bicycle stores and retailers nationwide from
January 2007 through August 2007 for between $80 and $120.
Pictures of the recalled trailer bikes are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08156a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08156b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08156c.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08156d.jpg
Consumers are advised to stop using the trailer bicycle
immediately and contact the firm for a free repair kit.
For additional information, contact Pacific Cycle toll-free at
(877) 564-2261, 8:00 a.m.-5:00 p.m., CT, Monday-Friday, or visit
these Web sites:
http://www.instep.net
http://www.schwinnbikes.comor
http://www.mongoose.com
PILGRIM'S PRIDE: Fifth Circuit Denies Appeal in "Wheeler" Case
--------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit denied the
plaintiffs' appeal of an order that quashed their request for
class certification of one of two similarly titled lawsuits,
"Cody Wheeler, et al. v. Pilgrim's Pride Corp., et al.,"
according to the company's Feb. 4, 2008 form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended Dec. 29, 2007.
Original Wheeler Litigation
On July 1, 2002, three individuals, on behalf of themselves and
a putative class of chicken growers, filed their original class
action complaint against the company in the U.S. District Court
for the Eastern District of Texas, styled "Cody Wheeler, et al.
v. Pilgrim's Pride Corp."
In their lawsuit, plaintiffs initially alleged that the Company
violated the Packers and Stockyards Act (7 U.S.C. Section 192)
and breached fiduciary duties allegedly owed to the plaintiff
growers.
The plaintiffs also brought individual actions under the Packers
and Stockyards Act alleging, among other things, breach of
fiduciary duties and breach of contract.
On Sept. 30, 2005, the plaintiffs amended their lawsuit to join
Tyson Foods, Inc. as a co-defendant. Two additional former
chicken growers were also added as plaintiffs to the lawsuit.
This amendment, which occurred 38 months after the lawsuit's
initial filing, virtually re-wrote most of the allegations. Now
the plaintiffs contend that the Company and Tyson are involved
in a conspiracy to violate federal antitrust laws.
The plaintiffs' initial allegations, although still contained in
the amended lawsuit, are no longer the sole focus of the case.
On Jan. 3, 2006, the Court entered an order severing the
plaintiffs' Packers and Stockyards Act and antitrust claims.
After severance, the plaintiffs voluntarily withdrew their
request for class certification of the Packers and Stockyards
Act and antitrust claims, and the Court subsequently entered an
order prohibiting the plaintiffs from filing any additional
class-action claims against Pilgrim's Pride in this lawsuit.
New Wheeler Litigation
On Jan. 3, 2006, an action styled, "Cody Wheeler, et al. v.
Pilgrim's Pride Corp., et al.," arising out of the original
Wheeler litigation described above, was filed with the U.S.
District Court for the Eastern District of Texas.
The lawsuit was filed by the three original plaintiffs and a
former grower, both in their individual capacities and on behalf
of a putative class of chicken growers.
In the lawsuit, the four plaintiffs allege that the Company and
Tyson are involved in a conspiracy to violate federal antitrust
laws.
On Sept. 28, 2007, the court issued an order denying the
plaintiffs' request to certify a class action. The plaintiffs
filed the Petition for Permission to Appeal the District Court's
Order on Oct. 15, 2007, with the U.S. Court of Appeals for the
Fifth Circuit, which was denied on Dec. 7, 2007.
Both of the Wheeler cases now involve only individual claims,
and the Company intends to defend vigorously against these
individual claims. The Company does not believe these matters
will have a material impact on its financial condition, results
of operations and cash flows, and the Company does not intend to
provide updates regarding these cases in its future periodic
reports.
Pilgrim's Pride Corp. -- http://www.pilgrimspride.com/-- is a
producer of poultry in the U.S., Mexico and Puerto Rico. In the
U.S., the Company produces prepared and fresh chicken, and
turkey while in Mexico and Puerto Rico, it produces only fresh
chicken. Through vertical integration, it controls the
breeding, hatching and growing of chickens, and the processing
and preparation, packaging and sale of its product lines.
POTTERY BARN: Recalls Decorative Candles Due to Fire Hazard
-----------------------------------------------------------
Pottery Barn of San Francisco, Calif., in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
185,000 round and egg-shaped decorative candles.
The company said the candle's exterior coating can ignite,
posing a fire hazard.
Pottery Barn has received two reports of the gold paint on the
candle exterior igniting. No injuries or property damage have
been reported.
This recall involves egg-shaped and large and small round
candles sold in three sizes. The candles were sold in green,
red and white with gold glitter and leaf designs. The recall
includes all styles of this candle, including style numbers
9444811, 9444928, 9444936, 9444944, 9444944, 9445214, 9445222,
9445222, and 9445313. The style number for the candles can be
found on the price ticket under the candle.
These recalled candles were manufactured in Hong Kong and were
being sold at Pottery Barn stores nationwide from September 2007
through December 2007 for between $10 and $20.
Picture of recalled candles is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08168.jpg
Consumers are advised to immediately stop using the recalled
candles and return them to any Pottery Barn store for a full
refund.
For additional information, contact Pottery Barn toll-free at
(888) 922-9245, between 7:00 a.m. And 12:00 a.m. ET, Monday
through Sunday, or visit the company's Web site at
http://www.potterybarn.com
RADIATION THERAPY: Settles Suits Over RTS Merger Agreement
-----------------------------------------------------------
Radiation Therapy Services, Inc. (Nasdaq: RTSX) previously
disclosed that two lawsuits were filed in connection with a
proposed Plan of Merger -- dated as of Oct. 19, 2007, among the
Company, Radiation Therapy Services Holdings, Inc., and RTS
MergerCo, Inc. -- on Oct. 24, 2007, and Nov. 16, 2007,
respectively.
The suits were filed against the Company, each of the Company's
directors and Vestar Capital Partners as purported class actions
on behalf of the public shareholders of the Company in the
Circuit Court of Lee County, Florida.
On Jan. 3, 2008, the plaintiff in the first case voluntarily
dismissed his claims. The second case was settled in principle
on Feb. 1, 2008, by the parties with no admission of any
liability.
The settlement is subject to court approval and consummation of
the transactions contemplated by the Merger Agreement.
At this time, there are no other pending actions challenging the
proposed merger.
Headquartered in Fort Myers, Florida, Radiation Therapy Services
Inc. (Nasdaq: RTSX) -- http://www.rtsx.com/-- operates
radiation treatment centers under the name 21st Century
Oncology. The company is a provider of radiation therapy
services to cancer patients. The company's 80 treatment centers
are clustered into 25 local markets in 16 states, including
Alabama, Arizona, California, Delaware, Florida, Kentucky,
Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York,
North Carolina, Pennsylvania, Rhode Island and West Virginia.
SEVENTY TWO INC: Recalls Hoodies Due to Strangulation Hazard
------------------------------------------------------------
Seventy Two Inc., of La Puente, Calif., in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
1,800 Bonafide Love Hooded Children's Sweatshirts.
The company said the garments have a drawstring through the
hood, which can pose a strangulation hazard to children. No
injuries have been reported.
This recall involves the Bonafide Love children's hooded
sweatshirts. The sweatshirts are reversible and come in two
styles. The hearts and stars style is green and in the front
has a heart surrounded by pink stars. On the reverse, it is hot
pink with light pink dots. The Robots style is gray with
drawings of robots and pink hearts. On the reverse, it has a
zebra-like pattern with gray and black stripes. "Bonafide Love"
is printed on a label sewn into the collar.
These recalled children's hoodies were manufactured in China and
were being sold exclusively at Nordstrom retail stores
nationwide from November 2007 through December 2007 for about
$40.
Pictures of recalled hoodies are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08185a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08185b.jpg
Consumers should immediately remove the drawstrings to eliminate
the hazard or return the sweatshirts to Nordstrom or to Seventy
Two for a full refund.
For additional information, contact Seventy Two Inc. collect at
(626) 330-8027 ext. 170 between 9:00 a.m. and 6:00 p.m. ET,
Monday through Friday.
SOMA FINANCIAL: Faces Calif. Suit Over PayOption Sale Omissions
---------------------------------------------------------------
Soma Financial, Inc., is facing a class-action complaint filed
with the U.S. District Court for the Eastern District of
California accusing it of using deception and omissions to sell
PayOption adjustable-rate mortgages that produce negative
amortization, CourtHouse News Service reports.
The complaint alleges that defendants marketed and sold a
PayOption Adjustable Rate Mortgage as loan that would allow the
borrower to choose a very low payment schedule in the PayOption
ARM loan documents and the Truth in Lending Disclosure
Statement. However, the payment schedule set forth in the TILDS
bore no relation to the interest rate stated in the note and the
TILDS. In fact, following the payment schedule in the TILDS
would result in payments that are insufficient to pay the
interest due on the PayOption ARM and the deficit would be added
on to the principal, a process known as negative amortization.
This results to borrowers owing more than the loan amount and a
decrease in the equity of their homes.
The action arises from the fact that defendants failed to
disclose to borrowers that the interest rate used to calculate
the payment schedule was not the interest rate stated in the
note and the TILDS and that negative amortization was guaranteed
if they followed the payment schedule set forth in the TILDS.
Named plaintiff Catherine Anne Campbell brings this action to
recover damages and other relief available at law and in equity
on behalf of all individuals who within the four year period
preceding the filing of plaintiff's complaint through the date
notice is mailed to the class, received a PayOption ARM loan
through defendants on their primary residence located in the
State of California for which the initial payment amount was
insufficient t cover the interest charged on the loan.
Ms. Campbell wants the court to rule on:
(a) whether defendants' acts and practices violate the
Truth in Lending Act, 15 USC Section 1601, et seq.;
(b) whether defendants' conduct violated 12 CFR Section
226.17;
(c) whether defendants' conduct violated 12 CFR Section
226.19;
(d) whether defendants had a duty to disclose to plaintiffs
important material information concerning their loans,
including, but not limited to:
(i) that the payment amounts listed in the TILDS were
insufficient to pay both principal and interest;
(ii) that the payment schedule was not based on the
listed interest rate; and
(iii) that negative amortization would occur if
plaintiff made payments according to the schedule
of payments defendants listed in the TILDS;
(e) whether defendants, by and through their officers,
employees and agents concealed, omitted and otherwise
failed to disclose information they were mandated to
disclose under TILA;
(f) whether defendants failed to disclose, and by omission,
failed to inform plaintiff that the payment schedule
was not based on the interest rate disclosed in the
note and TILDS;
(g) whether defendants failed to disclose, and by omission,
failed to inform plaintiff that the payment amounts
listed in the note and TILDS are insufficient to cover
both principal and interest;
(h) whether defendants failed to disclose, and by omission,
failed to inform plaintiff that negative amortization
was absolutely certain to occur if plaintiff made the
payments according to the payment schedule provided by
defendants;
(i) whether defendants engaged in unfair business practices
aimed at deceiving plaintiff and the class members
before and during the loan application process;
(j) whether defendants' failure to apply plaintiff and the
class members payments to principal as promised in the
notes constitutes a breach of the contract, including
of the covenant of good faith and fair dealing;
(k) whether defendants breached the covenant of good faith
and fair dealing;
(l) whether the terms and conditions of defendants'
PayOption ARM home loan are unconscionable, including
but not limited to:
(i) listing a payment amount and interest rate which
bear no relation to each other;
(ii) stating that the payment "could be less" than the
interest due when, in fact, negative amortization
was guaranteed to occur if consumers followed the
payment schedule provided by defendants in the
TILDS; and
(iii) under the terms and conditions of these loans,
the pre-payment penalty provision;
(m) whether plaintiffs are entitled to declaratory relief,
including, but not limited, to whether defendants'
PayOption ARM loan violates TILA;
(n) whether plaintiff and the class are entitled to
rescission under TILA;
(o) whether plaintiff and the class are entitled to
punitive damages; and
(p) whether plaintiff and the class are entitled to
equitable relief, including but not limited to,
restitution and injunctive relief.
The Plaintiff requests entry of an order:
-- certifying the case as a class action and appointing
plaintiff and their counsel to represent the class;
-- providing actual damages according to proof;
-- providing compensatory damages as permitted by law;
-- providing consequential damages as permitted by law;
-- providing rescission;
-- providing equitable relief, including restitution;
-- providing restitutionary disgorgement of all profits
defendants obtained as a result of their unfair
competition;
-- providing declaratory relief;
-- providing reasonable attorneys' fees and costs; and
-- providing such other relief as is just and proper.
The suit is "Catherine Anne Campbell et al. v. Soma Financial,
Inc.," filed with the U.S. District Court for the Eastern
District of California.
Representing the plaintiffs are:
Brian S. Kabateck, Esq.
Richard L. Kellner, Esq.
Kabateck Brown Kellner LLP
644 South Figueroa Street
Los Angeles, CA 90017
Phone: (213) 217-5000
Fax: (213) 217-5010
TRUCKEE CARSON: Two Flood-Related Suits Moved to Federal Court
--------------------------------------------------------------
Attorneys for the Truckee Carson Irrigation District have had a
pair of class action lawsuits against it moved from district
court to U.S. Federal Court, the Reno Gazette Journal reports.
The lawsuits were brought against the irrigation district by
over 100 Fernley flood victims. The flood was caused by the
rupture of an irrigation canal during a storm on Jan. 5.
There are three similar lawsuits filed against TCID, but only
two were moved:
1. "Shows v. Truckee-Carson Irrigation District, Case. No.
3:08-cv-00044" filed on Jan. 24, 2008, transferred to the
U.S. District Court for the District of Nevada. The case
is represented by Robert C. Maddox, Esq.
The case was initiated with the Third Judicial District
Court of the State of Nevada County of Churchill.
2. "Reynolds, et al. v. Board of Directors of Truckee-Carson
Irrigation, et al., Case No. 3:2008cv00045," filed on
Jan. 24, 2008, U.S. District Court for the District of
Nevada. The suit is represented by Charles A. Jones, Esq.
The case was originally with the Third Judicial District
of Nevada, County of Lyon.
Although Reno attorney Robert Hager, Esq., indicated that his 70
clients have also sued TCID, he said he will not move his
lawsuit to federal court because the suit also names other
defendants, including the City of Fernley, Lyon County,
developers, and real estate agencies, and that the district
court is the appropriate jurisdiction.
In each of three lawsuits, the Reno Gazette says, the complaints
indicate that TCID failed to maintain and monitor the Truckee
Canal, and respond to a January 5 breach in the canal once it
occurred.
According to the Reno Gazette, TCID attorney Gary Cardinal,
Esq., filed a "Notice of Removal to Federal Court," indicating
that TCID is a government contractor that performs operation and
maintenance of the Newlands Project under the supervision and
control of the U.S. government.
Mr. Maddox indicated that he recently sent a letter to the TCID
asking the irrigation district to "desist from filling the canal
(with water). We have yet to receive a response from them," he
said, adding that his firm has retained an engineer specializing
in levees and dams to assist with an analysis of the canal.
Mr. Maddox also indicated that his firm has obtained subdivision
maps and gathered other data to determine "responsibility for
blocking drainage channels which exacerbated the impact of the
flood."
The plaintiffs in the first class action lawsuit are represented
by:
Robert C. Maddox, Esq.
10587 Double R Blvd, Ste 100
Reno, NV 89521
Phone: (775) 322-3666
Fax: (775) 322-6338
e-mail: efiling@maddoxandassociates.com
- and -
Calvin R.X. Dunlap, Esq.
Law Office of Calvin R.X. Dunlap
P.O. Box 3689
Reno, NV 89505
Phone: (775) 323-7790
Fax: (775) 323-5454
e-mail: worldlyx@worldnet.att.net
The plaintiffs in the second class action lawsuit are
represented by:
Charles A. Jones, Esq.
McInerney & Jones
9460 Double R Blvd
Suite 503
Reno, NV 89521
Phone: (775) 853-6440
Fax: (775) 853-6445
e-mail: caj@mcinerneylaw.net
The defendant is represented by:
Gary A Cardinal, Esq.
Erickson, Thorpe & Swainston, Ltd.
99 West Arroyo Street
P.O. Box 3559
Reno, NV 89509
Phone: (775)786-3930
Fax: (775)786-4160
e-mail: gcardinal@etsreno.com
UNITED STATES: Says Vets Not Entitled to Specific Medical Care
--------------------------------------------------------------
The Bush administration filed its arguments in a lawsuit with
the U.S. District Court for the Northern District of California
in San Francisco stating that veterans have no legal right to
specific types of medical care, the San Francisco Chronicle
reports.
According to Kaiser Network, the government's arguments were
filed in response to a class-action lawsuit initiated by the
Veterans for Common Sense and Veterans United for Truth, which
claims that vets were illegally denied mental health treatment
by the Department of Veterans Affairs.
As reported in the Class Action Reporter on Jan. 15, 2008, U.S.
District Court Judge Samuel Conti allowed the class action to go
ahead against the Department of Veterans Affairs. The lawsuit
sought to be a nationwide class action on behalf of an estimated
320,000 to 800,000 post-9/11 veterans of the wars in Iraq and
Afghanistan suffering from Post Traumatic Stress Disorder.
VCSVUT alleges that Veterans Affairs is responsible for a
"systemwide pattern of abusive and illegal administrative
practices." The lawsuit claims that VA:
-- failed to deliver the mandatory two years of disability
benefits for veterans;
-- failed to address staff problems that led to long wait
times for care and provided insufficient care for post-
traumatic stress disorder; and
-- deliberately reclassified PTSD claims as pre-existing
disorders as a way to avoid paying out benefits.
Judge Conti, Kaiser Network recounts, ruled that federal law
entitles veterans to health care for a period of two years after
leaving the service. A bill recently signed by President Bush
extends the period from two to five years.
However, according to government lawyers, federal law
establishes "veterans' eligibility for health care, but it does
not create an entitlement to any particular medical service."
The lawyers said the law entitles veterans only to "medical care
which the secretary [of Veterans Affairs] determines is needed,
and only to the extent funds . . . are available."
Kaiser Network notes that the government attorneys also said VA
"is making great progress in addressing the mental health care
needs of combat veterans," citing a law passed in November 2007
that established a suicide-prevention program that makes mental
health care available around the clock.
A hearing on the case is set before March 7, 2008.
The case is captioned "Veterans for Common Sense, et al. v.
Nicholson, et al., Case No. 3:2007cv03758," filed with the
U.S. District Court for the Northern District of California,
Judge Samuel Conti, presiding.
The plaintiffs are represented by:
Jennifer Weiser Bezoza, Esq.
Katrina Kasey Corbit, Esq.
Disability Rights Advocates
2001 Center Street
Fourth Floor
Berkeley, CA 94704
Phone: (510) 665-8644
Fax: (510) 665-8511
e-mail: jbezoza@dralegal.org
KCorbit@dralegal.org
- and -
Gordon P. Erspamer, Esq.
Morrison & Foerster
101 Ygnacio Valley Road, Suite 450
Walnut Creek, CA 94596
Phone: 925/295-3341
e-mail: GErspamer@mofo.com
The defendants are represented by:
Daniel Bensing, Esq.
U.S. Dept. of Justice
20 Massachusetts Ave., N.W.
Rm 6114
Washington, DC 20530
Phone: (202) 305-0693
Fax: (202) 616-8460
e-mail: Daniel.Bensing@USDOJ.gov
- and -
Steven Yale Bressler, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Phone: (202) 514-4781
e-mail: steven.bressler@usdoj.gov
VALUECLICK: Ohio Resident Sues Over "Free" Merchandise Promises
---------------------------------------------------------------
Cleveland Heights, Ohio resident Dan Cheyfitz sued ValueClick,
Inc., last month, over the use of the word "free" in its Web
ads, Wendy Davis of Mediapost.com reports.
Mr. Cheyfitz accuses ValueClick and its subsidiaries of
violating a provision of Ohio's consumer protection law by
promising "free" goods without also prominently stating that
consumers first had to make a purchase or otherwise participate
in an offer before they were eligible for the free merchandise.
Mr. Cheyfitz alleges that he received "voluminous" e-mails from
ValueClick falsely promising "free" items "which were, in fact,
not free."
The complaint asserts, "None of the email received by plaintiff
and from defendants clearly and conspicuously set out the 'terms
and conditions' of receiving the 'free' items at the outset of
the offer."
According to the report, Ohio's consumer protection law requires
that disclaimers about free merchandise must be printed in a
font at least half as big as the word free and in "close
conjunction" to the term.
Mr. Cheyfitz is seeking damages of up to $1,500 per e-mail, on
the theory that the "free" merchandise promoted was worth around
$500 and that Ohio provides for consumers to recover up to three
times their damages, the report says. Using this formula,
Mr. Cheyfitz is seeking a total of up to $75,000 for himself and
$4.9 million for the class, assuming the court certifies one.
Alternatively, he's seeking up to $200 per violation -- an
amount set by Ohio's consumer protection statute.
Mr. Cheyfitz's lawyer, Joseph Compoli, Jr., Esq., said that
Mr. Cheyfitz isn't alleging that he made any purchases, but
charges that the ads caused him to waste time clicking through
to other Web pages to learn the details of the offer.
Mr. Compoli, who has previously sued marketers for sending junk
faxes, is seeking class-action status for this case against
ValueClick.
ValueClick filed an answer in which it denied most of the
allegations or said it did not have enough information to
address them, Mediapost adds.
Westlake Village, Calif.-based ValueClick, Inc., offers a suite
of products and services that enable marketers to advertise and
sell their products through all major online marketing channels—
display advertising, lead generation marketing, email marketing,
search marketing, comparison shopping, and affiliate marketing.
VISA INC: Added as Defendant in Calif. "Attridge" Litigation
------------------------------------------------------------
Visa, Inc. was added as a defendant in the purported class
action, "Attridge v. Visa U.S.A. Inc., et al.," which is
asserting claims under California's Cartwright Act and Unfair
Competition Law, according to the company's Feb. 4, 2008 form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Dec. 31, 2007.
The complaint was filed with a California state court on Dec. 8,
2004. It was brought on behalf of a putative class of consumers
against Visa U.S.A., Visa International and MasterCard.
The claims in the action seek to piggyback on the portion of a
DOJ litigation in which the U.S. District Court for the Southern
District of New York found that Visa's bylaw 2.10(e) and
MasterCard's Competitive Programs Policy constitute unlawful
restraints of trade under the federal antitrust laws.
After the plaintiff twice amended his complaint, Visa U.S.A.,
Visa International and MasterCard demurred to (moved to dismiss)
the complaint and, at a hearing on Nov. 2, 2005, the court
dismissed plaintiffs claims with leave to amend.
On Dec. 2, 2005, the plaintiff filed a third amended complaint.
The defendants again demurred that complaint.
On May 19, 2006, the court entered an order dismissing
plaintiffs Cartwright Act claims with prejudice but allowing the
plaintiff to proceed with his Unfair Competition Law claims.
On June 19, 2006, Visa U.S.A., and Visa International answered
the third amended complaint. The parties are now moving forward
with discovery. No trial date has been set.
On Dec. 14, 2007, the plaintiff amended his complaint to add
Visa, Inc., as a defendant. No new claims were added to the
complaint.
For more details, contact:
Lingel H. Winters, Esq.
1 Maritime Plaza, Suite 400
San Francisco, California 94111-3492
Phone: 415-398-2941
Fax: 415-393-9887
Web site: http://www.lawyers.com/winterslaw/
VISA INC: N.Y. Court Dismisses Claims for Damages in MDL-1720
-------------------------------------------------------------
The U.S. District Court for the Eastern District of New York
dismissed the class plaintiffs' claims for damages in the
matter, "In re Payment Card Interchange Fee and Merchant
Discount Antitrust Litigation, MDL-1720, 1:05-md-01720-JG-CLP,"
which names subsidiaries of Visa, Inc., as defendants, according
to the company's Feb. 4, 2008 form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Dec. 31, 2007.
Georgia Litigation
On May 6, 2005, a purported class action was filed by a
merchant, Animal Land, Inc., against Visa U.S.A. with the U.S.
District Court for the Northern District of Georgia, alleging
that Visa U.S.A.'s no-surcharge rule violates Sections 1 and 2
of the Sherman Act.
The plaintiff alleges that under the no-surcharge rule,
merchants are not permitted to pass along to cardholders a
discrete surcharge to account for the fees that the merchant
pays in connection with Visa-branded payment card transactions.
The plaintiff alleges that this rule causes the fees paid by
merchants to be supracompetitive.
The suit seeks treble damages in an unspecified amount,
attorneys fees and injunctive relief.
The Animal Land case has been transferred to the multidistrict
litigation proceedings and is included in the First Amended
Class Action Complaint discussed below.
Connecticut Litigation
On June 22, 2005, a purported class action was filed by a group
of merchants with the U.S. District Court of Connecticut against
MasterCard, Visa U.S.A., Visa International, and a number of
Visa U.S.A., and Visa International member financial
institutions alleging, among other things, that Visas and
MasterCards purported setting of interchange fees violates
Section 1 of the Sherman Act.
In addition, the complaint alleges Visas and MasterCards
purported tying and bundling of transaction fees also
constitutes a violation of Section 1 of the Sherman Act.
Other Litigation
Since the filing of this complaint, there have been
approximately 48 similar complaints, all but 10 of which were
styled as class actions, filed on behalf of merchants against
Visa U.S.A. and MasterCard, and in some cases, certain Visa
U.S.A. and Visa International member financial institutions, in
U.S. federal courts.
Visa International was named as a defendant in more than 30 of
these complaints.
Multidistrict Litigation
On Oct. 19, 2005, the Judicial Panel on Multidistrict Litigation
issued an order transferring these cases to the U.S. District
Court for the Eastern District of New York for coordination of
pre-trial proceedings (Multidistrict Litigation 1720).
On April 24, 2006, the group of purported class plaintiffs filed
a First Amended Class Action Complaint. Taken together, the
claims in the First Amended Class Action Complaint and in the 10
complaints brought on behalf of individual merchants are
generally brought under Sections 1 and 2 of the Sherman Act.
In addition, some of these complaints contain certain state
unfair competition law claims.
These interchange-related litigations also seek treble damages
in an unspecified amount (although several of the complaints
allege that the plaintiffs expect that damages will range in the
tens of billions of dollars), as well as attorneys fees and
injunctive relief.
Visa U.S.A., and Visa International answered the First
Consolidated Amended Class Action Complaint and the individual
merchant complaints on June 9, 2006.
On July 10, 2007, pursuant to a joint request by the parties,
the court entered a scheduling order setting deadlines for
completion of fact discovery to June 30, 2008 and expert
discovery to Feb. 20, 2009, and for filing all summary judgment
and other pretrial motions by March 27, 2009.
On Sept. 7, 2007, the Magistrate Judge issued a Report and
Recommendation to the District Court recommending that the
District Court grant the defendants motion to dismiss the class
plaintiffs claims for damages incurred prior to Jan. 1, 2004.
On Oct. 12, 2007, the Magistrate Judge granted putative class
plaintiffs request to brief the issue of whether the Report and
Recommendation would affect the claims of non-party members of
the putative class that opted out of the "In re Visa Check/
MasterMoney Antitrust Litigation."
Following the submissions, the Magistrate Judge declined
plaintiffs request to advise on that issue.
Putative class plaintiffs filed objections to the Report and
Recommendation on Nov. 14, 2007, and defendants filed their
responses to those objections on Dec. 13, 2007.
On Jan. 8, 2008, the court adopted the Magistrate Judges Report
and Recommendation without modification, dismissing the class
plaintiffs claims for damages incurred prior to Jan. 1, 2004.
Visa, Inc. -- http://www.corporate.visa.com-- is a retail
electronic payments network. The Company facilitates global
commerce through the transfer of value and information among
financial institutions, merchants, consumers, businesses and
government entities. Its primary customers are financial
institutions, for which it provides processing services and
payment product platforms, including platforms for consumer
credit, debit, prepaid and commercial payments. The Company has
three business operations: transaction processing services,
product platforms and payments network management.
VISA USA: Ninth Circuit Mulls Appeal Over "Kendall" Suit Nixing
---------------------------------------------------------------
The U.S. Court of Appeals for Ninth Circuit has yet to rule on
an appeal regarding the dismissal of the purported class action,
"Kendall v. Visa U.S.A. Inc., et al."
On Oct. 8, 2004, a purported class action was filed by a group
of merchants in the U.S. District Court for the Northern
District of California against Visa U.S.A., MasterCard and
several Visa U.S.A. member financial institutions alleging,
among other things, that Visa U.S.A.'s and MasterCard's
interchange fees contravene the Sherman Act and the Clayton Act
(Kendall v. Visa U.S.A. Inc., et al.).
The plaintiffs seek treble damages in an unspecified amount,
attorneys fees and an injunction against Visa U.S.A., and
MasterCard from setting interchange and engaging in joint
marketing activities, which plaintiffs allege include the
purported negotiation of merchant discount rates with certain
merchants.
On Nov. 19, 2004, Visa U.S.A. filed an answer to the complaint.
The plaintiffs filed an amended complaint on April 25, 2005.
Visa U.S.A. moved to dismiss the complaint for failure to state
a claim and, in the alternative, also moved for summary judgment
with respect to certain of the claims.
On July 25, 2005, the court issued an order granting Visa
U.S.A.'s motion to dismiss, and dismissed the complaint with
prejudice.
On Aug. 10, 2005, the plaintiffs filed a notice of appeal.
Appellate briefing is complete and the U.S. Court of Appeals for
Ninth Circuit heard oral argument on June 11, 2007.
No ruling has been issued, according to the company's Feb. 4,
2008 form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2007.
The suit is "Kendall et al v. Visa U.S.A. Inc. et al., Case No.
3:04-cv-04276-JSW," filed with th U.S. District Court for the
Northern District of California, Judge Jeffrey S. White
presiding.
Representing the plaintiffs is:
Richard Joseph Archer, Esq.
Archer & Hansen
3110 Bohemian Highway
Occidental, CA 95465
Phone: 707-874-3438
Fax: 707-874-3438
e-mail: archerdic@aol.com
Representing the defendants are:
Marie L. Fiala, Esq.
Heller, Ehrman, White & McAuliffe LLP
333 Bush Street
San Francisco, CA 94104
Phone: (415) 772-6527
e-mail: mfiala@hewm.com
- and -
Jay Neil Fastow, Esq.
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Phone: 212-310-8644
Fax: 212-310-8007
e-mail: jay.fastow@weil.com
VISA USA: Mounts Successful Defense V. Multiple Consumer Suits
--------------------------------------------------------------
Visa U.S.A. successfully defended itself against several
lawsuits in different jurisdictions that were generally alleging
state antitrust, consumer protection, and common law claims,
according to the company's Feb. 4, 2008 form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended Dec. 31, 2007.
Despite the dismissals, the company still continues to face one
such case in New Mexico.
Initially, complaints were filed in 19 different states and the
District of Columbia, alleging state antitrust, consumer
protection and common law claims against Visa U.S.A. and
MasterCard on behalf of putative classes of consumers.
The claims in these actions largely mirror the allegations made
in the U.S. merchant lawsuit and assert that merchants, faced
with excessive merchant discount fees, have passed on some
portion those fees to consumers in the form of higher prices on
goods and services sold.
Visa U.S.A. has been successful in the majority of these cases,
as courts 17 jurisdictions have granted Visa U.S.A.'s motions to
dismiss for failure to state a claim or plaintiffs have
voluntarily dismissed their complaints.
The parties are awaiting a decision on Visa U.S.A.'s motion to
dismiss in New Mexico.
Visa, Inc. -- http://www.corporate.visa.com-- is a retail
electronic payments network. The Company facilitates global
commerce through the transfer of value and information among
financial institutions, merchants, consumers, businesses and
government entities. Its primary customers are financial
institutions, for which it provides processing services and
payment product platforms, including platforms for consumer
credit, debit, prepaid and commercial payments. The Company has
three business operations: transaction processing services,
product platforms and payments network management.
VISA USA: Parties in Calif. Lawsuit Engage in Settlement Talks
--------------------------------------------------------------
Parties in a purported consumer and merchant class action, which
was filed with the California state court against Visa U.S.A.,
Visa International, MasterCard, Merrick Bank, and CardSystems
Solutions, Inc., are engaged in settlement negotiations.
The complaint, filed on June 27, 2005, stems from a data-
security breach at CardSystems, a payment card processor that
handled Visa and other payment brand transactions.
It alleges that Visa U.S.A. and Visa Internationals failure to
inform cardholders of the CardSystems breach in a timely manner
constitutes an unlawful and unfair business practice under
California's Unfair Competition Law and violates Californias
statutory privacy-notice law.
In August 2005, the court denied the plaintiffs application for
a temporary restraining order, except with respect to the
defendants retention of affected account-identifying
information, and in September 2005 denied plaintiffs motion for
a preliminary injunction.
Also in September 2005, the court dismissed the claims brought
by the merchant class. On Nov. 18, 2005, the defendants
answered the remaining claims. Limited discovery occurred.
CardSystems filed for bankruptcy in U.S. District Court for the
District of Arizona in May 2006, staying the litigation as to
it.
The plaintiffs removed the case to U.S. District Court for the
Northern District of California on Aug. 10, 2006, and then
sought to transfer the case to federal court in Arizona. Visa
U.S.A., Visa International and MasterCard moved for remand to
state court.
On Oct. 11, 2006, the court granted the defendants motion for
remand and denied the plaintiffs motion to transfer the case.
Proceedings involving CardSystems continue in the bankruptcy
court in Arizona, and the California state court plaintiffs
appear to be pursuing claims against CardSystems in that forum.
The state court in California has not set discovery deadlines or
a trial date.
The parties are currently engaged in settlement negotiations,
according to the company's Feb. 4, 2008 form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended Dec. 31, 2007.
Visa, Inc. -- http://www.corporate.visa.com-- is a retail
electronic payments network. The Company facilitates global
commerce through the transfer of value and information among
financial institutions, merchants, consumers, businesses and
government entities. Its primary customers are financial
institutions, for which it provides processing services and
payment product platforms, including platforms for consumer
credit, debit, prepaid and commercial payments. The Company has
three business operations: transaction processing services,
product platforms and payments network management.
VISA USA: Faces Litigation in Maryland Over Credit Card Fees
------------------------------------------------------------
Visa U.S.A., Inc. faces a putative class action that is pending
with the U.S. District Court for the District of Maryland in
connection to credit card fees, according to the company's
Feb. 4, 2008 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Dec. 31, 2007.
On Nov. 13, 2007, a putative class action was filed with the
Maryland state court against Visa U.S.A., MasterCard Worldwide,
and Discover Financial Services.
Plaintiff AAA Antiques Mall, Inc. alleges that credit card fees
assessed by defendants as to the state tax portion of a sales
transaction constitute unjust enrichment and intentional
misrepresentation.
On Jan. 2, 2008, Visa U.S.A. removed the case to U.S. District
Court for the District of Maryland. At this time, it is too
early to make any reasonable evaluation of the claims alleged.
The suit is "AAA Antiques Mall, Inc. v. Visa USA, Inc. et al.,
Case No. 1:08-cv-00006-JFM," filed with the U.S. District Court
for the District of Maryland, Judge J. Frederick Motz presiding.
Representing the defendants are:
Michael Louis Bernstein, Esq.
Arnold and Porter LLP
555 12th St NW
Washington, DC 20004
Phone: 12029425000
Fax: 12029425999
e-mail: michael.bernstein@aporter.com
- and -
Joseph William Hovermill, Esq.
Miles and Stockbridge PC
10 Light St.
Baltimore, MD 21202-1487
Phone: 14107276464
Fax: 14103853700
e-mail: jhovermill@milesstockbridge.com
WACHOVIA CORP: Faces Penna. Lawsuit Alleging Telemarketing Fraud
----------------------------------------------------------------
Wachovia Corp. is facing a class-action complaint filed last
month with the U.S. District Court for the Eastern District of
Pennsylvania accusing it of letting fraudulent telemarketers use
its accounts to milk millions of dollars from consumers,
Reuters' Jonathan Stempel reports.
In court papers filed Jan. 17, the plaintiffs accused Wachovia
and its in-house lawyers of knowing "for several years" that the
bank could be legally liable for dealing with fraudulent
telemarketers.
According to the report, the plaintiffs accused Wachovia of
allowing some "payment processors" to create unsigned checks on
behalf of telemarketers to withdraw funds from victims between
2003 and 2006.
The United Press International asserts that despite warnings,
Wachovia bank kept working with telemarketers who were using
unauthorized checks to steal millions.
Court documents showed that plaintiffs also accused Wachovia of
trying to win or retain business from companies that it knew
were accused of telemarketing fraud, despite being alerted by
other banks about the deceptive activity.
Plaintiffs are seeking class-action status on behalf of at least
346,000 victims they say lost millions of dollars.
Internal Wachovia e-mail messages allegedly show that executives
knew some accounts had crossed banking standard thresholds and,
yet, frequently didn't close the accounts, The New York Times
reported.
According to the Reuters report, bank spokeswoman Christy
Phillips-Brown declined to comment on the lawsuit, but said, "We
took this issue very seriously, and senior management, led by
CEO Ken Thompson, was actively involved in directing aggressive
steps to correct the processes related to the situation." She
also said that the Charlotte, North Carolina-based bank has
taken steps to implement new risk management for third-party
payment processors and telemarketers.
Ms. Phillips-Brown said Wachovia "does not have customers who
are strictly telemarketers, or who are third-party payment
processors to telemarketers."
Based in Charlotte, N.C., Wachovia Corp. provides commercial and
retail banking and trust services through full-service banking
offices. It also provides mortgage banking, investment banking,
investment advisory, home equity lending, asset-based lending,
leasing, insurance, international and securities brokerage
services through its subsidiaries.
WEST PUBLISHING: New Antitrust Lawsuit Filed in California
----------------------------------------------------------
A new antitrust class action lawsuit against West Publishing
Corporation -- dba BAR/BRI -- and Kaplan, Inc., was filed with
the U.S. District Court for the Central District of California
in Los Angeles.
The lawsuit accuses the two companies of illegally dividing
their highly lucrative LSAT and bar exam test preparation
businesses. According to the complaint, executives of BAR/BRI
and Kaplan secretly agreed to a per se illegal market division,
which, in part, involved BAR/BRI annually paying to Kaplan
substantial sums to keep it out of its bar review course market.
The Complaint further alleges that BAR/BRI has engaged for
decades in an overall scheme to monopolize the relevant market,
by committing a litany of antitrust violations. According to
the Complaint, BAR/BRI interfered with and prevented
competitors’ entry or expansion in the relevant market by buying
them out, threatening them, spreading false rumors about them,
and even breaking into their offices to steal competitively
significant records. The Complaint also states that BAR/BRI has
engaged in the continuing practice of tearing down, otherwise
removing, or preventing the posting of, the signs, placards and
related promotional materials of local bar review course
competitors at various law schools. Without substantial
competition, BAR/BRI's net price per student increased steadily
over the years throughout the U.S.
Class Representatives:
-- Stephen Stetson,
-- Shane LaVigne,
-- Christina Brown-Roberts,
-- Valentin Karpenko, and
-- Jake Fathy
are suing on behalf of about 80,000 law students and 40,000
recent BAR/BRI customers to recover injunctive relief and
damages.
The lawsuit proposes two classes:
-- Class A consists of individuals who have paid for a
BAR/BRI course since July 1, 2006, or will do so prior
to the time any injunctive relief is fully implemented
by the Court.
-- Class B consists of law students who have not yet paid
in full for a BAR/BRI course, but will have little
choice but to purchase such a course when they graduate
from law school, as soon as in 2008.
Mr Stetson and Mr. LaVigne are designated as representatives of
Class A, and Ms. Brown-Roberts, Mr. Karpenko, and Mr. Fathy are
designated the representatives of Class B.
Representing the plaintiffs are The Disner Law Corporation and
Harris & Ruble, both of Los Angeles, California. The lead
attorney is antitrust trial lawyer Eliot G. Disner, who was also
lead attorney in the federal case titled "Rodriguez v. West
Publishing Corp CDCAL, Case No. 05-3222R." In that case, West's
BAR/BRI and co-defendant Kaplan jointly agreed to pay
$49 million to a class of some 300,000 BAR/BRI course students
who overpaid between 1997 and 2006 due to the anticompetitive
practices of the two companies.
Representing plaintiffs is:
Eliot Disner, Esq.
Disner Law Corporation
2029 Century Park East 19th Floor
Los Angeles, CA 90067
Phone : 310-286-0600
Fax : 310-282-2585
e-mail: edisner@disnerlaw.com
YAHOO INC: Faces Calif. Suit Over Microsoft's $45BB Buyout Offer
----------------------------------------------------------------
A federal class-action derivative lawsuit -- with clashing
intentions -- has been filed against Yahoo! and its directors
with the Superior Court of the State of California for the
County of Santa Clara, stemming from Microsoft's $45-billion
buyout offer, CourtHouse News Service reports.
This is a stockholder class action to enjoin the proposed
acquisition of the publicly owned shares of Yahoo! common stock
by Microsoft. This action is brought to solely seek injunctive
relief for defendants' breaches of their fiduciary duties under
Delaware law.
According to CourtHouse News, the offer made by Microsoft is $31
per share, a 62% premium over the pre-offer market price of
Yahoo! shares, or 0.9509 of a share of Microsoft common stock.
Named plaintiff Thomas Stone Trust calls the offer "unfair and
grossly inadequate, because . . . the intrinsic value of Yahoo's
common stock is materially in excess of the amount offered,
given the company's growth and anticipated operating results,
net asset value and future profitability."
The plaintiff brings the action pursuant to Section 382 of the
California Code of Civil Procedure on behalf of all holders of
Yahoo! stock who are being and will be harmed by the defendants'
actions.
Mr. Trust wants the court to rule on:
(a) whether defendants have breached their fiduciary duties
of undivided loyalty, independence or due care with
respect to plaintiff and the other members of the class
in connection with the proposed transaction;
(b) whether the individual defendants have breached their
fiduciary duty to secure and obtain the best price
reasonable under the circumstances for the benefit of
plaintiff and the other members of the class in
connection with the proposed transaction;
(c) whether the individual defendants are unjustly
enriching themselves and other insiders or affiliates
of Yahoo;
(d) whether defendants have breached any of their other
fiduciary duties to plaintiff and the other members of
the class in connection with the proposed transaction,
including the duties of good faith, diligence, honesty
and fair dealing;
(e) whether the defendants, in bad faith and for improper
motives, have impeded or erected barriers to discourage
other offers for the company or its assets; and
(f) whether plaintiff and the other members of the class
would suffer irreparable injury were the transactions
complained of consummated.
Mr. Trust demands judgment:
-- declaring this action to be a proper class action and
certifying plaintiff as class representative and
plaintiff's counsel as class counsel;
-- preliminarily and permanently enjoining defendants from
disenfranchising the class and effectuating the proposed
transaction;
-- declaring that the individual defendants have breached
their fiduciary duties to plaintiff and the class;
-- awarding fees, expenses and costs to plaintiff and
plaintiff's counsel; and
-- granting such other and further relief as the court
deems just and proper.
The suit is "Thomas Stone Trust et al. v. Yahoo! Inc., et al.,
Case No. 1:08CV104693," filed with the Superior Court of the
State of California for the County of Santa Clara.
Representing the plaintiffs are:
Vahn Alexander, Esq.
Faruqi & Faruqi LLP
1901 Avenue of the Stars, Second Floor
Los Angeles, CA 90067
Phone: (310) 461-1426
Fax: (310) 461-1427
email: valexander@faruqilaw.com
- and -
Mark C. Gardy, Esq.
Gardy & Notis, LLP
40 Sylvan Avenue, Suite 440
Englewood Cliffs, NJ 07632
Phone: (201) 567-7377
Fax: (201) 567-7337
Asbestos Alerts
ASBESTOS LITIGATION: H.B. Fuller Settles Six Lawsuits for $405T
----------------------------------------------------------------
H.B. Fuller Company, during the year ended Dec. 1, 2007, settled
six asbestos-related lawsuits for US$405,000, in which the
Company's insurers have paid or are expected to pay US$292,000
of that amount, according to the Company's annual report filed
with the U.S. Securities and Exchange Commission on Jan. 30,
2008.
The Company and/or its subsidiaries have been named as
defendants in lawsuits in various courts in which plaintiffs
have alleged injury due to products with asbestos manufactured
more than 25 years ago.
The plaintiffs bring these lawsuits against multiple defendants
and seek damages (both actual and punitive) in very large
amounts. In many of these cases, the plaintiffs are unable to
demonstrate that they have suffered any compensable injuries or
that the injuries suffered were the result of exposure to
products manufactured by the Company or its subsidiaries. The
Company is dismissed as a defendant in such cases without
payment.
A significant portion of the defense costs and settlements
relating to asbestos-related litigation involving the Company
continues to be paid by third parties, including indemnification
under the provisions of a 1976 agreement under which the Company
acquired a business from a third party. Historically, this third
party routinely defended all cases tendered to it and paid
settlement amounts resulting from those cases.
In the 1990s, the third party sporadically reserved its rights,
but continued to defend and settle all asbestos-related claims
tendered to it by the Company. In 2002, the third party rejected
the tender of certain cases by the Company and indicated it
would seek contributions from the Company for past defense
costs, settlements and judgments. However, this third party has
continued to defend and pay settlement amounts, under a
reservation of rights, in most of the asbestos cases tendered to
the third party by the Company.
During the 2007-4th quarter, the Company and a group of other
defendants entered into negotiations with certain law firms to
settle a number of asbestos-related lawsuits and claims. Subject
to finalization of the terms and conditions of the settlement,
the Company expects to contribute up to US$4.6 million towards
the settlement amount to be paid to the claimants in exchange
for a full release of claims.
Of this amount, the Company's insurers have committed to pay
US$1.5 million based on a probable liability of US$4.6 million.
Given that the payouts will occur on certain dates over a four-
year period, the Company applied a present value approach and
has accrued US$4,329,000 and recorded a receivable of
US$1,411,000.
St. Paul, Minn.-based H.B. Fuller Company and its subsidiaries
manufacture and market adhesives and specialty chemical products
globally, with sales operations in 32 countries in North
America, Europe, Latin America and the Asia Pacific region. The
business is reported in four regional operating segments: North
America, Europe, Latin America and Asia Pacific.
ASBESTOS LITIGATION: Appeal to FELA Suit v. Ill. Railroad Upheld
----------------------------------------------------------------
The Appellate Court of Illinois, 5th District, upheld the
Circuit Court of Marion County's ruling, which favored Delbert
Copple, Carl Heinrichsmeyer, and Donald Hyatt, in an asbestos-
related Federal Employers' Liability Act (FELA) case against
Illinois Central Railroad Company.
The case is styled Xon Blackburn et al., Plaintiffs, and Delbert
Copple, Carl Heinrichsmeyer, and Donald Hyatt, Plaintiffs-
Appellees, v. Illinois Central Railroad Company, Defendant-
Appellant.
Justices Spomer, Welch, and Wexstten entered judgment of Case
No. 5-06-0618 on Jan. 22, 2008.
The plaintiffs are among a group of 24 plaintiffs who sued
Illinois Central Railroad Company for claims arising under FELA,
whereby they alleged they were injured when they were exposed to
asbestos, diesel exhaust, and other dangerous products during
the course of their employment.
The plaintiffs claimed that the Railroad negligently failed to
provide them with a reasonably safe place to work. The Railroad
filed a motion to sever the cases for trial, and the circuit
court granted the motion in part by consolidating the
plaintiffs' cases into groups of four for trial.
The plaintiffs' cases were the second group to be tried together
before a jury. The other plaintiff in their group did not
participate in the trial. The verdicts in the first group's
trial were previously affirmed on appeal.
Mr. Copple was 79 years old at the time of the trial. He worked
for the Railroad continuously from 1950 to 1986 as a stockman
and laborer in various facilities in and around Centralia, Ill.
Mr. Heinrichsmeyer was 62 years old at the time of the trial. He
worked for the Railroad from 1963 until 1982, also in and around
Centralia. He worked at various times as a stockman, chauffeur,
and store clerk, and he testified that he also handled asbestos
sleeves and gaskets.
Mr. Hyatt was 70 years old at the time of the trial. He worked
for the Railroad from 1969 to 1999, beginning at the facility in
Champaign, Ill. During his employment, he was exposed to
asbestos piping and boiler insulation.
In 2003, the plaintiffs attended a screening set up by the
attorneys working for their union. After the screening, Dr.
Alvin Schonfeld diagnosed the plaintiffs with asbestosis. At the
trial, Dr. Schonfeld testified that the plaintiffs' asbestos
exposure during their employment with the Railroad caused, in
whole or in part, their injuries.
The jury returned verdicts in favor of the plaintiffs, awarding
US$220,000 in damages to Mr. Copple, US$167,000 to Mr.
Heinrichsmeyer, and US$220,000 to Mr. Hyatt.
The circuit court denied the Railroad's motions for a directed
verdict, made at the close of the plaintiffs' evidence and again
at the end of the trial. The circuit court denied the Railroad's
post-trial motions and entered a finding under Illinois Supreme
Court Rule 304(a) (210 Ill.2d R. 304(a)).
The Railroad appealed from the circuit court's order.
The Appellate Court affirmed the judgment of the circuit court.
Thomas R. Peters, Mark R. Kurz, Gundlach, Lee, Eggmann, Boyle &
Roessler, Belleville, Ill., represented Illinois Central
Railroad Company.
William P. Gavin, Gavin Law Firm, Belleville, Ill., represented
Delbert Copple, Carl Heinrichsmeyer, and Donal Hyatt.
ASBESTOS LITIGATION: Owens-Illinois Liabilities Rise to $245.5M
----------------------------------------------------------------
Owens-Illinois Inc.'s long-term asbestos-related liabilities
rose to US$245.5 million as of Dec. 31, 2007, up from US$211.4
million as of Sept. 30, 2007, according to a Company press
release dated Jan. 30, 2008.
The Company's long-term asbestos-related liabilities were at
US$538.6 million as of Dec. 31, 2006. (Class Action Reporter,
Oct. 26, 2007)
The Company's current asbestos-related liabilities were at
US$210 million as of Dec. 31, 2007, compared with US$149 million
as of Dec. 31, 2006.
The Company's current portion of asbestos-related liabilities
amounted to US$250 million as of Sept. 30, 2007. (Class Action
Reporter, Oct. 26, 2007)
Asbestos-related payments were at US$120.9 million during the
three months ended Dec. 31, 2007, compared with US$34.9 million
during the three months ended Dec. 31, 2006.
Asbestos-related payments were at US$347.1 million during the 12
months ended Dec. 31, 2007, compared with US$162.5 million
during the 12 months ended Dec. 31, 2006.
Future asbestos-related costs amounted to US$115 million during
the three and 12 months ended Dec. 31, 2007, compared with
US$120 million during the three and 12 months ended Dec. 31,
2006.
Perrysburg, Ohio-based Owens-Illinois, Inc. manufactures
consumer-preferred, 100 percent recyclable glass containers.
Established in 1903, the Company employs more than 25,000 people
with 83 manufacturing facilities in 22 countries. In 2007, net
sales were US$7.6 billion.
ASBESTOS LITIGATION: Appeals Court Favors Warden in Purser Case
---------------------------------------------------------------
The U.S. Court of Appeals, 11th Circuit, upheld the U.S.
District Court for the Southern District of Georgia's ruling,
which granted summary judgment in favor of the defendants, who
work for the Georgia State Prison, in an asbestos-related action
filed by John L. Purser.
The case is styled David Harris, Plaintiff, John L. Purser,
Plaintiff-Appellant, v. James E. Donald, Warden Hugh Smith,
Victor Guy, Defendants-Appellees.
Judges Tjoflat, Black, and Wilson entered judgment of Case No.
07-12774 on Jan. 23, 2008.
Mr. Purser, a prisoner at GSP, filed a complaint in federal
district court, seeking monetary and injunctive relief against
James Donald, Commissioner of the Georgia State Department of
Corrections; Hugh Smith, Warden at GSP; and Victor Guy, engineer
at GSP.
Mr. Purser filed an amended complaint alleging that the
defendants were deliberately indifferent to his health and
medical needs by knowingly and willfully exposing him to friable
asbestos in violation of the Eighth Amendment.
The defendants filed a motion for summary judgment.
Mr. Purser responded to the defendants' motion with his own
affidavit.
The district court adopted the initial report and recommendation
denying the defendants' motion for summary judgment, but
referred the case back to the magistrate judge so that, upon the
defendants' renewed motion, the magistrate could explore the
potentially dispositive argument that Mr. Purser suffered no
medical harm and was unlikely to suffer any harm in the future.
The defendants renewed their motion.
The district court adopted the magistrate's report and
recommendation and granted defendants' motion for summary
judgment, concluding that the evidence submitted by Mr. Purser
failed to create any genuine issue of material fact with respect
to a present asbestos-related injury.
Mr. Purser appealed. He raised five arguments on appeal:
(1) The court applied an improper legal standard by requiring
Mr. Purser to prove that he had been exposed to dangerous
quantities of friable asbestos for a prolonged period of
time;
(2) The court erred by considering the report and affidavit of
Dr. Amy Blanchard;
(3) The court erred by considering Mr. Purser's institutional
medical records;
(4) The court erred by resolving factual disputes in the
defendants' favor at the summary judgment stage; and
(5) The court erred by not discussing Mr. Purser's assertion
that the prison was evacuated due to asbestos-related
contamination.
Upon review of the record and the parties' briefs, the Appeals
Court discerned no reversible error and affirmed the district
court's judgment.
ASBESTOS LITIGATION: Supreme Court Refuses Appeal in McCord Suit
----------------------------------------------------------------
The Supreme Court of Delaware ordered that the within
interlocutory appeal filed by McCord Corporation in an asbestos-
related case was refused.
The case is styled McCord Corporation, Defendant Below-
Appellant, v. Carl Wilkerson and Connie Wilkerson, Plaintiffs
Below-Appellees.
Judges Holland, Berger, and Jacobs entered judgment of Case No.
44,2008 on Jan. 25, 2008.
McCord has petitioned the Supreme Court, under Supreme Court
Rule 42, to appeal from the Superior Court of the State of
Delaware's interlocutory ruling on Jan. 17, 2008 denying its
motion for summary judgment.
This is an asbestos negligence case, which was scheduled for
trial on Jan. 28, 2008.
In its Jan. 17, 2008 order, the Superior Court ruled that there
were genuine issues of material fact regarding whether McCord
had a duty to warn Carl Wilkerson of the danger of contracting
asbestos-related disease as a result of his employment removing
and installing gaskets on military vehicles and that, therefore,
the motion for summary judgment must be denied.
On Jan. 24, 2008, the Superior Court refused to certify an
interlocutory appeal to the Supreme Court under Rule 42.
The Supreme Court examined the Superior Court's Jan. 17, 2008
decision according to the criteria set forth in Rule 42.
The Supreme Court concluded that exceptional circumstances do
not exist in this case to merit interlocutory review of the
decision of the Superior Court.
ASBESTOS LITIGATION: Cascino Vaughan Represents USG's Creditors
---------------------------------------------------------------
Under Rule 2019 of the Federal Rules of Bankruptcy Procedure,
Allen D. Vaughan, at Cascino Vaughan Law Offices, Ltd., in
Chicago, informs the U.S. Bankruptcy Court that his firm
represents asbestos creditors in USG Corp.'s Chapter 11 cases.
Mr. Vaughan relates that the list of creditors and exhibits for
the Rule 2019 Statement have been filed on compact disk and is
available for release to any party that obtains a leave of the
Court.
The exhibits on the compact disk consist of an excel spreadsheet
listing all the Asbestos Creditors represented by Cascino
Vaughan that have claims against the Debtors. The information
required by the Rule 2019 Order is supplied for each Asbestos
Creditor in the list, according to Mr. Vaughan.
Mr. Vaughan says that each of the Asbestos Creditors has
employed Cascino Vaughan under an employment contract. The
exhibits also include a blank but unredacted exemplar of
Cascino's standard form of agreement or instrument authorizing
the representation of creditors.
The address of each of the Asbestos Creditors for service and
notice purposes is c/o Cascino Vaughan Law Offices, Ltd., at 220
S. Ashland Avenue, in Chicago 60607.
Mr. Vaughan assures the Court that Cascino Vaughan has no
interest in or hold any claims against the Debtors.
(USG Bankruptcy News, Issue No. 140; Bankruptcy Creditors'
Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: SimmonsCooper Files 4 Out-of-State Lawsuits
----------------------------------------------------------------
SimmonsCooper, an East Alton, Ill.-based law firm, on Jan. 29,
2007, filed four separate asbestos suits on behalf of families
whose relatives died from mesothelioma, in Madison County
Circuit Court, Ill., The Madison St. Clair Record reports.
The four cases name 10 defendant corporations, Atlas Asbestos
Company, Bell Asbestos Mines Ltd., Bondex International, Foseco,
Inc., Georgia-Pacific Corp., John Crane Inc., Pneumo Abex
Corporation, RPM International Inc., RPM Inc., and TH
Agriculture and Nutrition LLC.
The first case filed was by Patsy Mace on behalf of her late
mother, Texas resident Jonnie Crelia, who died on Oct. 27, 2006.
According to Mrs. Mace, her mom was employed from 1961 to 1971
as a cashier at various locations. Mace claims her mother's
spouse worked as a welder from 1953 to 1979, and would bring
asbestos dust home with him on his clothing where it would again
become airborne.
The second case was filed Danielle Kaczensky, on behalf of her
late mother Virginia Fiddler of Ohio.
Mrs. Fiddler was a telephone operator at various locations from
the 1940s to 1990. Her husband was a steelworker and would also
bring home asbestos on his clothing. She died on Dec. 8, 2007.
Vincent Lott filed the third case on behalf of his late mother
Bettie Lott of Georgia, who died on June 15, 2006. Mr. Lott
claims his mother was exposed to asbestos in 1964, when she
worked as a laborer in various locations.
Widow Carrie Wade of Georgia filed the fourth case alleging her
late husband Walter Wade was exposed to asbestos during his 28-
year career as a painter and sealer at various locations.
According to Mrs. Wade, her husband died of mesothelioma on
Oct. 29, 2007.
The plaintiffs all claim their loved ones were also exposed to
asbestos during non-occupational work projects including home
and automotive repairs, maintenance and remodeling.
They also allege that the defendants included asbestos in their
products even when adequate substitutes were available and
failed to provide any or adequate instructions concerning the
safe methods of working with and around asbestos.
Each plaintiff seeks compensatory damages in excess of
US$100,000, plus punitive damages in order to punish the
defendants for willful, wanton, intentional and reckless
misconduct and to deter them and others from engaging in like
misconduct in the future.
Madison County Circuit Judge Daniel Stack has been assigned Case
No. 08 L 66, Case No. 08 L 67, Case No. 08 L 68, and Case No. 08
L 69.
ASBESTOS LITIGATION: Oregon DEQ Imposes $6,358 Penalty to Local
---------------------------------------------------------------
The Oregon Department of Environmental Quality issued a US$6,358
penalty to William Koskela for the unlawful handling of
asbestos-containing material at his Athena, Ore., residence, The
East Oregonian reports.
DEQ air quality specialist Tom Hack said a neighbor complained
to the DEQ when they spotted Mr. Koskela tearing down siding
from an area of the house.
When Mr. Hack inspected the site, he reportedly found shattered
siding and informed Mr. Koskela the siding likely contained
asbestos.
However, Mr. Koskela said the product only was a look-alike
asbestos product, according to Mr. Hack, who took samples to be
tested.
Laboratory analysis reportedly revealed the material contained
10 percent chrysotile asbestos. DEQ regulates the handling and
disposal of all material containing more than 1 percent
asbestos.
In a letter dated Jan. 2, 2008, a department official told Mr.
Koskela he was seen digging the material with a shovel and
dropping it from a ladder. After attempted DEQ contact, Mr.
Koskela allegedly removed and transported the material to the
landfill.
Under Oregon law, trained and certified contractors are allowed
to perform friable asbestos removal. Failure to properly package
and label the shattered material constitutes a further
violation.
Because Mr. Koskela did not respond to the letter within 20
days, Mr. Hack said the case was transferred to a collections
agency.
ASBESTOS LITIGATION: Studio Worker's Widow Gets GBP210T Payout
--------------------------------------------------------------
Marilyn Scoble, the widow of carpenter Michael Scoble, was
awared GBP210,000 in asbetos-related compensation, Borehamwood &
Elstree Times reports.
For 30 years, Mr. Scoble worked at film studios in Borehamwood,
England, U.K. He worked as a wood machinist for Cannon Film
Productions, making scenery and props for films shot in the
town.
However, when he moved to Dorset in 1993, Mr. Scoble found that
he was suffering from mesothelioma. He died in 2006 at the age
of 66.
Mrs. Scoble's lawyer, Pauline Chandler, from Manchester law firm
Pannone, specializes in industrial disease cases and had a
chilling warning for other former studio workers. She said,
"Unfortunately, there will be other mesothelioma cases out
there. We don't expect the number to peak until 2020. It can
take up to 50 years to develop."
Mr. Scoble worked for a number of film companies at studios in
Borehamwood during his career, including MGM British Studio, in
Elstree Way.
Mrs. Scoble said he worked without protective clothing and was
not told of the dangers of asbestos. She believes other former
film set workers should undergo health checks for what she
called the "silent killer."
Although Cannon Film Productions no longer exists, Mrs. Scoble
took the firm's insurers to the High Court.
Although a mound of asbestos is still buried at Elstree Film
Studios, in Shenley Road, Hertsmere Borough Council, which owns
the site, has reassured residents and workers that the area is
safe.
Council leader Morris Bright, who is also chairman of Elstree
Film Studios Ltd., said, "There is a piece of land at the
Studios that contains a low level of asbestos - it is all
buried, so it is not air borne and does not pose any health risk
to people working there or visiting."
ASBESTOS LITIGATION: Md. Court Orders John Crane to Pay $15.3M
--------------------------------------------------------------
A Baltimore jury, on Jan. 30, 2008, ordered John Crane Inc. to
pay George J. Linkus US$15.3 million for asbestos damages, The
Baltimore Sun reports.
David L. Palmer, Mr. Linkus' lawyer said that his client
developed mesothelioma from exposure to asbestos-containing
products made by the company.
Mr. Palmer added that the 73-year-old Mr. Linkus worked at Key
Highway Shipyard from 1952 to 1959.
In 1954, Mr. Linkus moved to the machine shop and worked on
lining valves using rope made by John Crane.
The jury found that the rope used by Mr. Linkus contained
asbestos, Mr. Palmer said.
The Jan. 30, 2008 verdict concluded a three-week trial.
ASBESTOS LITIGATION: Inquest Links Painter's Death to Asbestos
--------------------------------------------------------------
An inquest in Carlisle, Cumbria, England, heard that the death
of painter and decorated Thomas Minns was related to asbestos,
News & Star reports.
Mr. Minns died last April 2007 of mesothelioma at the age of 83.
The inquest on Jan. 29, 2008 was told Mr. Minns was diagnosed
with mesothelioma on October 2005.
Mr. Minns, who had worked in the trade since leaving the army in
1947, worked from the former Carlisle depot of North West
Electricity Board in James Street between 1970 and 1974.
Colleague David Mossop told the inquest that the pair would work
in "the bowels" of the building where crumbling asbestos lagged
pipes. He said the painters at the depot drank their tea in the
basement and stored materials there.
The depot site is now home to the Carlisle Enterprise Centre.
The inquest heard that tissue samples taken from Mr. Minns'
lungs after his death showed traces of asbestos.
Mr. Minns' widow, Freda Minns, a retired care worker, and
daughter Julie were in the inquest to hear North and West
Cumbria Coroner John Taylor record a verdict of death by
industrial disease.
The family were represented by solicitor Lucy Proctor and are
pursuing a legal claim against Mr. Minns' former employers, the
North West Electricity Board, which is now United Utilities PLC.
ASBESTOS LITIGATION: Inquest Links U.K. Worker's Death to Hazard
----------------------------------------------------------------
An inquest heard that 74-year-old William Williams, a former
construction worker from Droitwich Spa, Worcestershire, England,
died from asbestos-related mesothelioma, Worcester News reports.
Mr. Williams died on Sept. 4, 2007 at the Worcestershire Royal
Hospital. He died three years after being diagnosed with
mesothelioma three years ago.
Deputy coroner Margaret Barnard read out a statement from Mr.
Williams' wife, Daphne Williams. She recorded a verdict of death
as a result of industrial disease.
In the statement, Mrs. Williams said her husband had worked all
his life in the construction industry as a scaffolder and later
as a supervisor.
Mrs. Williams said that Mr. Williams had worked for various
firms and, while he did not handle asbestos in the course of his
job, it was on site and she believed he had probably helped
carry sheets of it.
A post-mortem examination showed Mr. Williams died from
malignant pleural mesothelioma as a result of asbestos exposure.
ASBESTOS LITIGATION: Inquest Links Hazard to Yard Worker's Death
----------------------------------------------------------------
An inquest in Blackburn, Lancashire, U.K., heard that the death
of retired shipyard worker Thomas Keith Armer was linked to
asbestos exposure, The Citizen reports.
The inquest heard that Mr. Armer, in the 1950s, had been
employed in the town's ship building yards cutting asbestos
sheets. He took voluntary redundancy in 1992 but four years
later a chest X-ray revealed the possibility of problems.
Ten years later, Mr. Armer became breathless and chesty and it
was subsequently confirmed that he had a malignant mesothelioma.
The 73-year-old Mr. Armer was provided with palliative care and
was living at Birchall Nursing Home, Darwen, at the time of his
death.
The medical cause of death was given as malignant mesothelioma
due to exposure to asbestos and coroner Michael Singleton
recorded a verdict of industrial disease.
ASBESTOS LITIGATION: Sacramento Survey Finds Asbestos in Schools
----------------------------------------------------------------
The Sacramento State office of Environmental Health and Safety
(EHS), on Jan. 9, 2008, released its annual survey of asbestos-
containing building materials in campus buildings, The State
Hornet reports.
Under California law building owners are required to conduct an
annual survey of asbestos-containing building materials (ACBMs)
in any building constructed before 1979.
According to State of California Health and Safety Code, section
25915, building owners are then required to notify employees of
the survey results and procedures and restrictions to prevent
and minimize asbestos exposure.
Steve Leland, Occupational Safety Specialist for EHS, inhaling
airborne asbestos fibers can cause lung cancer. He added that
there is no risk to faculty, staff and students if ACBMs are
kept intact and not disturbed.
To keep ACBMs from being disturbed, employees are required to
contact Facilities Services or EHS to make any repairs or
modifications to affected buildings.
Facilities Services have eight employees that are certified to
make repairs and modifications to buildings containing ACBMs,
Mr. Leland said. These facilities workers have completed a 40-
hour asbestos safety course and are required to take a yearly
refresher course, he added.
Mr. Leland said that all facilities and maintenance workers,
including custodians, are trained in asbestos awareness and
report any deterioration of ACBMs to Facility Services and EHS.
Math lecturers Abe Mirza and Caroline Ramirez, who share an
office in Brighton Hall, said they did not know about the annual
asbestos survey and requirements. Professor of School Psychology
Steve Brock also said that he was unaware of the requirements.
Criminal Justice professor Dimitri Bogazianos said he was not
aware of the annual survey or memo put out by EHS, but he did
know through word-of-mouth from other faculty that he is
required to get in touch with facilities services to make any
modifications to his office.
ASBESTOS LITIGATION: Contractors Indicted in Gordon-Smith Action
----------------------------------------------------------------
Keith Gordon-Smith and David Vega Jr., both of whom are
associated with Gordon-Smith Contracting Inc., have been
indicted on charges of illegal asbestos removal, Rochester
Democrat & Chronicle reports.
Mr. Gordon-Smith is the Company's president and Mr. Vega is a
project manager. Both men have also been indicted on lying to
the Occupational Safety and Health Administration, two months
after the Company was ordered to pay almost US$100,000 in
federal fines.
Mr. Gordon-Smith and Mr. Vega are accused of causing employees
to expose themselves to asbestos during demolition of a portion
of the former Genesee Hospital in Rochester, N.Y.
According to the indictment, the 50-year-old Mr. Gordon-Smith
ant the 28-year-old Mr. Vega, both of Rochester, directed
employees to remove copper piping and other materials from
ceilings last winter and spring even though they knew asbestos
was present. Both men also are accused of lying to an OSHA
inspector.
The charges against Mr. Gordon-Smith and Mr. Vega carry a
maximum penalty of five years' imprisonment, a fine of
US$250,000, or both, said U.S. Attorney Terrance P. Flynn of the
Western District of New York. The charge against the Company
carries a fine up to US$500,000.
Genesee Hospital, located on Alexander Street near Monroe
Avenue, closed in 2001. Buckingham Properties is redeveloping
the property as a mixed-use urban center.
In December, Keith Gordon-Smith said he planned to contest the
original federal violations and associated fines.
The Company, Gordon-Smith Contracting, was indicted on a charge
of violating the Clean Air Act.
ASBESTOS LITIGATION: W.Va. Contractor Faces Disposal Breach Suit
----------------------------------------------------------------
Rodney D. Loftis, Sr., a Charleston, W.Va., contractor, who
specializes in tearing down structures, faces criminal
prosecution for allegedly turning two of his properties into
illegal dump sites, The Charleston Gazette reports.
Mr. Loftis is scheduled to go to trial in March 2008 on charges
that he violated two cease and desist orders from the West
Virginia Department of Environmental Protection and created open
dumps on Woodward Drive and Northfield Road without DEP
permission.
Court documents indicate that investigators found chrysotile, a
kind of asbestos, at both sites.
Mr. Loftis, president of Rodney Loftis & Son Contracting Inc.,
was indicted by a Kanawha County grand jury in August 2007. He
has demolished buildings for numerous clients, including the
city of Charleston and Kanawha County.
According to a criminal complaint filed in Kanawha County
Magistrate Court in 2007 by DEP environmental inspector
supervisor Cynthia Musser, Mr. Loftis violated a 2004 order that
he stop accepting solid waste at his Woodward Drive property.
The complaint states, "Inspections on Jan. 16, 2006, Feb. 14,
2006, and March 7, 2006 revealed the continued operation of an
unpermitted solid waste disposal area."
According to the indictment, a cease and desist order issued
Feb. 17, 2006, demanded that Mr. Loftis provide the DEP with
proof that he had properly disposed of materials containing
asbestos from a number of locations in Charleston, including 910
Carte St., 1107 Virginia St., and Seventh Avenue and Patrick
Street.
Other sites listed include 7037 Sissonville Drive, Sissonville;
5320 Elaine Drive, Rand; 427 McDonald St. and 5512 Kentucky St.,
South Charleston; and five buildings in Sharples in Boone
County.
In 2000, Mr. Loftis paid a US$25,000 fine to settle a lawsuit
filed against him by the DEP. The lawsuit alleged that Mr.
Loftis repeatedly violated asbestos-handling rules when he
demolished buildings.
According to DEP literature, only personnel licensed by the
Bureau for Public Health can remove any asbestos containing
materials.
ASBESTOS LITIGATION: New Ontario Laws May Affect Asbestos Claims
----------------------------------------------------------------
New Ontario, Canada, regulations on the handling of asbestos
could affect insurers' costs if asbestos becomes the subject of
a claim, Canadian Underwriter reports.
Regulation 278/05, which came into effect on Nov. 1, 2005 (the
final two sections kicked in on Nov. 1, 2007), governs all work
that disturbs or is likely to disturb asbestos-containing
material (ACM) in provincially-regulated buildings.
Andreas Wagner, principal of Golder Associates Ltd., told
delegates about the changes at the Ontario Independent
Adjusters' Association's (OIAA) Professional Development &
Claims Conference in Toronto on Jan. 30, 2008.
According to Mr. Wagner, the regulations apply to all Ontario
contractors dealing with commercial and residential properties.
They cover situations in which asbestos is present and workers
may be involved. All areas must be tested for the presence of
asbestos if a contractor is involved.
If asbestos is present, the cost of an insurance claim could
increase if certain risks are not managed properly.
Measures mandated to mitigate risk include:
-- Increased protection required for workers,
-- Signage indicating the presence of asbestos, and
-- The potential establishment of a separate enclosure to seal
the area and disposal of the asbestos.
When dealing with an asbestos claim involving a residence, the
hired contractor — and not the homeowner — should be determining
whether or not asbestos is present and where.
Mr. Wagner said that, in a commercial setting, the building
owner must notify the contractor of all asbestos present.
ASBESTOS LITIGATION: Wear Valley Council Faces Asbestos Breaches
----------------------------------------------------------------
A former worker of the Wear Valley District Council, which was
involved in breaches of asbestos regulations, criticized the
Council for holding a meeting on what happened, in private, The
Northern Echo reports.
Councilors began investigations last December 2007 to find out
why staff at a swimming pool in Bishop Auckland, County Durham,
England, were allowed to work with asbestos for five years,
despite official warnings about the risk.
The Health and Safety Executive fined the Council GBP18,000 in
2007 after a maintenance worker at the center raised concerns at
the situation.
The Council agreed to hold an open inquiry to find out why
inspection reports commissioned in 2001 were ignored. However,
the press and members of the public have been banned from the
latest meeting.
Robert Batie, who worked in the boiler room at Woodhouse Close
Leisure Centre until 2003, said, "This is typical of the
council. The people in charge have a high opinion of themselves,
they always have.
"I do not have words to describe what I think of the council. If
you work for a local authority, you are supposed to be looked
after. You should not have to worry about your health, but I do
now."
HSE inspector Richard Bishop, who brought charges against the
Council following a complaint from a member of staff at the pool
in 2006, described the risk to the health of the affected
workers as significant, and said the breach was the worst he had
seen.
At court in August 2007, the Council's solicitor said all senior
members of staff from 2001 have now left.
ASBESTOS LITIGATION: HSE to Hold 11th Asbestos Summit on Feb. 13
----------------------------------------------------------------
The Health and Safety Executive called its eleventh special
leadership summit to ask the asbestos removal industry to make
further improvements in reducing ill-health caused by working
with asbestos, according to an HSE media release dated Feb. 5,
2008.
The Licensed Asbestos Contractors' Leadership Summit will be
held at Newmarket Racecourse, Newmarket, Suffolk, England, on
Feb. 13, 2008.
The invitation-only summit to many license holders in Essex,
Bedfordshire, Buckinghamshire, Cambridgeshire and Hertfordshire
follows an assessment of the industry's performance, which
considered whether adequate precautions were being taken to
prevent ill health from work with asbestos.
Although standards have improved and the evidence available
suggests that the number of deaths will begin to reduce from a
predicted peak in 2011, the rate of reduction of incidence is
not known. The summit aims to encourage individual organizations
to determine the further steps that they can take to reduce
exposure to asbestos and so lessen the incidence of disease.
Welcoming the event, Mike Williams, Asbestos Licensing Principal
Inspector in HSE's Field Operations Directorate, said, "We are
determined to work with the industry, and our objective is to
convince them that higher standards to protect health are
achievable and needed. We will explore how individual licence
holders can make those necessary improvements and hence reduce
the number of deaths from asbestos related diseases."
Asbestos-related disease accounts for over 3,500 deaths each
year, creating what is the United Kingdom's biggest single cause
of work related deaths. Nationally about 600 of these deaths
each year arise from work with asbestos in the construction
industry and allied trades.
ASBESTOS LITIGATION: Cleanup of Metro-North Hudson Line Ongoing
---------------------------------------------------------------
Remediation work, involving asbestos and lead paint, is ongoing
at MTA Metro-North Railroad's New York train stations at
Ossining, Scarborough, and Philipse Manor, The Journal News
reports.
The remediation work is part of a US$67 million project that
will refurbish the rail hubs. The overall renovation includes
rebuilding staircases, installing elevators and creating new
overpasses, as well as tearing down and rebuilding platforms.
"That's the very first thing that is done before anything else
is done," Metro-North spokeswoman Marjorie Anders said last week
about the remediation work. She said the lead paint and asbestos
removal is all being carried out in a "100 percent safe way."
At Ossining, workers have been out in recent weeks removing lead
paint from staircases and canopies, said Geoff Dopsch, the
project manager of the renovations.
There's also asbestos in the old glue or "mastic" that held tar
paper onto platform canopy roofs and staircase covers, Ms.
Anders said in an e-mail.
Railroad officials said the remediation work will be done
occasionally at the three stations during the course of the
project, which is expected to be completed in the fall of 2010.
ASBESTOS LITIGATION: P&G Co. Says Fla. Plant Workers Not Exposed
----------------------------------------------------------------
A spokesman for The Procter & Gamble Company, on Feb. 1, 2008,
said no employees were exposed to asbestos at the Company's
north plant in Jackson County, Fla., The Jackson Sun reports.
On Jan. 26, 2008, construction workers inside the Pringles plant
uncovered asbestos when removing an old potato chip cooker.
Randy Kennedy, external relations manager at the Jackson plant,
said the asbestos was found beneath a metal floor covering. He
said, "It was not in an unsafe dangerous condition. Air samples
were taken by EnviroRem there was no asbestos in the air."
The material was found after the removal of a metal floor that
once supported an industrial sized fryer used to cook Pringles
chips that was installed in the late 1960s or early 1970s.
The asbestos layer was used as a fireproof liner beneath the
fryer.
The Company had already removed two to three other fryers,
Mr. Kennedy said. He did not know of any other older fryers that
might still be in the building.
ASBESTOS LITIGATION: General Motors Starts Cleanup of Wyo. Plant
----------------------------------------------------------------
General Motors Corporation will start running tests at the
Stamping Plant in Wyoming after finding asbestos in window
caulking, WZZM13 News reports.
The flakes of caulk fell during the recent windy and cold
weather in a part of the plant built in 1936.
Company spokesperson Gary Evey says two out of six tests they
conducted show unacceptable rates of asbestos.
On Feb. 1, 2008, 14 second shift workers were sent home early to
allow clean-up crews to contain the asbestos. The Company has
also canceled overtime this weekend for 50 to 100 people so work
crews can put up plastic in the area.
Mr. Evey says the Company will test the window caulking in the
rest of the building to make sure it is safe.
ASBESTOS LITIGATION: No Safe Asbestos Levels, Aussie Group Says
---------------------------------------------------------------
Asbestos Victims Association, an advocate for asbestos disease
sufferers, said that there are no levels of safe exposure to
asbestos, ABC News reports.
Asbestos particles have been found in landfill carted in to the
construction site for the ABB Grain terminal at Outer Harbor in
South Australia.
Tests by Government agencies show the level of asbestos in the
fill is one percent or less, which is within safety thresholds
set by the Environment Protection Authority.
Asbestos Victims Association spokesman Terry Miller has backed
union claims that there are no safe levels and the contaminated
soil should be removed from the Harbor.
ASBESTOS LITIGATION: Appeals Court Upholds Rulings in Brown Suit
----------------------------------------------------------------
The Court of Appeal, 1st District, Division 2, California,
affirmed two lower court rulings in an age discrimination
lawsuit involving asbestos handler Dennis W. Brown and his
former employer Performance Contracting Inc.
The cases are styled Dennis W. Brown, Plaintiff and Appellant,
v. Performance Contracting, Inc., Defendant and Respondent; and
Dennis W. Brown, Plaintiff and Respondent, v. Performance
Contracting, Inc., Defendant and Appellant.
Judges Lambden, Haerle, and Richman entered judgment of Case
Nos. A115372, A117176 on Jan. 24, 2008.
Mr. Brown, who was born on June 14, 1947, joined the
International Association of Heat and Frost Insulators and
Asbestos Workers Local 16 (union) in 1986. He was a hazardous
material handler mechanic, removing asbestos-containing
insulation. In 2001, he trained to become a credentialed
insulation installer.
Between 1999 and 2004, the master agreement between the union
and the Northern California Chapter, Inc., Western Insulation
Contractors Association (master agreement) governed the terms
and conditions of Mr. Brown's employment.
Under this agreement, once an employer requested workers, the
union dispatched workers in an order determined by the length of
time the workers had been out of work. Workers who had been out
of work the longest were dispatched first.
Performance Contracting is an insulation contractor that hires
union members to work on projects in Northern California under
the master agreement. Mr. Brown worked for the Company six or
seven times before being turned around twice by the Company in
2003.
Mr. Brown filed an administrative complaint of discrimination on
June 17, 2004 and an amended complaint on July 25, 2004 with the
Department of Fair Employment and Housing (DFEH). He asserted
that on Jan. 20, 2003, "and again in October 2003[,]" he was
denied reinstatement to the position of insulator.
Mr. Brown filed a first amended complaint in the superior court
against Performance Contracting and others in March 2005 for age
discrimination under the FEHA and under the common law. With
regard to the Company, Mr. Brown alleged that Performance
Contracting had rejected him for work on Jan. 20, 2003, and on
Aug. 26, 2003, and in October 2003.
Both Performance Contracting and Mr. Brown filed motions for
summary judgment. The court denied both motions on April 10,
2006. The lawsuit proceeded to a bench trial in May 2006.
After the court heard all of the evidence, Mr. Brown moved for
judgment under Code of Civil Procedure section 631.8 on his
claim of discrimination based on Performance Contracting's
turning him around in September 2003. The court denied the
motion. Brown requested a statement of decision.
On Sept. 1, 2006, the trial court issued its statement of
decision. It found that Mr. Brown failed to offer sufficient
evidence that either of his turnarounds was motivated by his
age.
Thus, the court found in favor of Performance Contracting and
ruled that Mr. Brown did not establish age discrimination for
his turnarounds in January and September 2003. Mr. Brown filed a
timely notice of appeal from the judgment. The Appeals Court
affirmed the trial court's judgment.
On Nov. 30, 2006, Performance Contracting moved for attorney
fees. The Company argued that Mr. Brown's employment
discrimination lawsuit was meritless and/or unreasonable. The
trial court denied the motion on Feb. 2, 2007. The Company filed
a timely notice of appeal from the order denying its request for
attorney fees. The Appeals court affirmed the trial court's
judgment.
On the parties' motion, the Appeals Court consolidated Mr.
Brown's appeal from the judgment and Performance Contracting's
appeal from the denial of its request for attorney fees.
Richard M. Rogers, Law Office of Richard M. Rogers, San
Francisco, represented Dennis W. Brown.
Jason John Curliano, Buty & Curliano LLP, Oakland, Calif.,
represented Performance Contracting, Inc.
ASBESTOS LITIGATION: Folksamerica Records $63M for A&E Reserves
---------------------------------------------------------------
White Mountains Reinsurance Group, Ltd. says that the increase
in the 2007-4th quarter combined ratio was due primarily to a
US$63 million strengthening of asbestos and environmental
reserves at Folksamerica Reinsurance Company.
No other asbestos-related matters were disclosed in a Company
report, on Form 8-K, filed with the U.S. Securities and Exchange
Commission on Feb. 4, 2008.
Hanover, N.H.-based White Mountains Insurance Group, Ltd.
provides insurance products and services through its three main
operating divisions: OneBeacon Insurance, White Mountains Re,
and Esurance. Other operations include an investment management
subsidiary and holdings in smaller financial and insurance
companies.
ASBESTOS LITIGATION: Unitrin Has A&E Reserves of $18M at Dec. 31
----------------------------------------------------------------
Unitrin, Inc.'s Business Insurance's total asbestos and
environmental reserves were about US$18 million at both Dec. 31,
2007 and Dec. 31, 2006, according to the Company's annual report
filed with the U.S. Securities and Exchange Commission on Feb.
4, 2008.
The Company's commercial lines business is focused on the small
commercial market. The Company has typically not written
policies insuring large manufacturers. Accordingly, the
Company's exposure to asbestos and environmental losses is
limited.
Chicago-based Unitrin, Inc.'s subsidiaries serve the basic
financial needs of individuals, families and small businesses by
providing property and casualty insurance, life and health
insurance, and automobile finance services.
ASBESTOS LITIGATION: Sensus Metering Still Faces Exposure Suits
---------------------------------------------------------------
Sensus Metering Systems Inc. says that along many other third
parties, it has been named as a defendant in several lawsuits
filed related to illnesses from exposure to asbestos or
asbestos-containing products.
The complaints fail to specify which plaintiffs allegedly were
involved with the Company's products, and because the cases are
in initial stages, it is uncertain whether any plaintiffs have
asbestos-related illnesses or dealt with the Company's products,
much less whether any plaintiffs were exposed to an asbestos-
containing component part of the Company's product or whether
such part could have been a substantial contributing factor to
the alleged illness.
Although the Company is entitled to indemnification for legal
and indemnity costs for asbestos claims related to these
products from certain subsidiaries of Invensys plc, under the
stock purchase agreement under which the Company acquired
Invensys Metering Systems, such indemnities, when aggregated
with all other indemnity claims, are limited to the purchase
price paid by the Company in connection with the acquisition of
Invensys Metering Systems.
The Company is unable to estimate the amount of its exposure, if
any, related to these claims at this time.
Raleigh, N.C.-based Sensus Metering Systems Inc. provides
advanced metering and related communications solutions to the
worldwide utility industry. The Company is a global manufacturer
of water, gas, heat and electric meters including comprehensive
metering communications system solutions that include both
automatic meter reading (AMR) and advanced metering
infrastructure (AMI) systems.
ASBESTOS LITIGATION: RBS Records $136M Claims Reserve at Dec. 29
----------------------------------------------------------------
Rexnord LLC states that RBS Global Inc.'s long-term reserve for
asbestos claims was at US$136 million as of Dec. 29, 2007, the
same as for the period ended March 31, 2007, according to a
Rexnord LLC press release dated Feb. 5, 2008.
RBS Global's long-term insurance for asbestos claims was at
US$136 million as of Dec. 29, 2007, the same as for the period
ended March 31, 2007.
Milwaukee-based Rexnord LLC is a multi-platform industrial
company comprised of two key platforms: Power Transmission and
Water Management with about 7,400 employees worldwide. Power
Transmission products include gears, couplings, industrial
bearings, flattop, aerospace bearings and seal, industrial
chain, and special components. Water Management products are
sold primarily under the Zurn and Wilkins brand names and
products include specification drainage, water control, PEX and
commercial brass.
ASBESTOS LITIGATION: Grace Parties File Briefs on Admissibility
---------------------------------------------------------------
W.R. Grace & Co. maintained, during the January 2008 estimation
trial hearings, that personal injury questionnaires and proofs
of claim submitted by asbestos personal injury claimants can be
admitted as evidence to the estimation trial.
The Debtors' counsel, Barbara Harding, at Kirkland & Ellis, LLP,
in Chicago, asserted that the Questionnaires are admissions and
medical records of claimants in the Debtors' cases.
The Official Committee of Asbestos Personal Injury Claimants,
however, objected to the admissibility as evidence of the PIQs
and the POCs. Nathan Finch, at Caplin & Drysdale, Chartered, in
Washington, D.C., on behalf of the PI Committee, asserted that
the Questionnaire is irrelevant to the question of what was the
Debtors' asbestos liabilities.
Judge Judith Fitzgerald has said during the estimation hearings
that she does not believe that the asbestos claimants are
"parties" to the estimation proceedings and that information
contained in the Questionnaires are hearsay. She added that some
information found in the Questionnaires may be relevant to the
estimation trial but does not qualify as a "substantive
evidence."
Nevertheless, Judge Fitzgerald has instructed parties-in-
interest to file briefs regarding the admissibility of the
Questionnaires as evidence in the estimation proceedings.
In response to Judge Fitzgerald's directive, David T. Austern,
the Court-appointed Future Claims Representative, filed a brief
opposing the admission of any individual asbestos personal
injury claimants' response to the Debtors' PI Questionnaire or
proof of claim forms as evidence in the asbestos estimation
trial.
On behalf of the FCR, John C. Phillips, at Phillips, Goldman &
Spence, P.A., in Wilmington, Del., contends that the out-of-
court statements of individual claimants in the PIQs and the
POCs cannot be admitted in the estimation proceedings because
they are "the hearsay statements of non-parties."
Even if the Court were to rule that the individual claimants are
parties to the estimation proceeding because they are parties to
the Debtors' Chapter 11 cases, Mr. Phillips asserts that the
statements would still only be admissible against the respective
individual claimants and would not be admissible against the FCR
and the Official Committee of Asbestos Personal Injury
Claimants.
Mr. Phillips argues that the fact that the claimants who filled
out the PIQs and POCs in question are parties to the bankruptcy
case does not make them parties to the estimation proceedings
within the meaning of Rule 801 of the Federal Rules of Evidence.
(W.R. Grace Bankruptcy News, Issue No. 150; Bankruptcy
Creditors' Service, Inc. 215-945-7000 FAX 215-945-7001)
ASBESTOS LITIGATION: Labor Unions, NGOs Demanding Ban in India
--------------------------------------------------------------
Labor unions and non-governmental organizations demanded a ban
on the use of asbestos in India, Thaindian News reports.
As many as 13 labor unions and NGOs released a report titled "A
Fox in the Hen House: Made-to-order Science and India’s asbestos
policy," alleging nexus between the government and the industry.
Addressing a news conference on Feb. 5, 2008, Centre of Indian
Trade Unions (CITU) General Secretary P.K. Ganguly, said, "When
there are alternatives to asbestos, it should be banned."
Mr. Ganguly added, "The World Health Organization has got the
reports. The reports say that all sorts of asbestos, including
the white type called Chrysotile asbestos is one of the most
toxic and widely used in India and some other developing
countries."
Environmentalists have been up in arms against the use of
asbestos in the country, considering that all forms of asbestos,
including chrysotile, have been classified as carcinogens by the
International Agency for Research on Cancer.
Alarmed that an estimated 100,000 workers die every year due to
the diseases caused because of exposure to asbestos,
environmental groups demanded that a complete ban be imposed on
the use of asbestos in India.
More than 40 countries have banned the use of chrysotile
asbestos in any form, owing to the occupational health hazards.
India and six other countries alone are opposing the inclusion
of chrysotile asbestos, which accounts for 95 percent of
asbestos usage worldwide, in the list of hazardous chemicals.
India's ship breaking industry is the most vulnerable when it
comes to asbestos exposure. The laborers, a majority working on
daily wages, are often exposed to toxic wastes in the process of
dismantling of ships.
As of the latest data released by the United Nations Statistics
Division, India imported about 306,000 metric tons of asbestos
in 2006, of which 152,820 metric tones was imported from Russia
and 63,980 metric tones from Canada.
ASBESTOS LITIGATION: Scapa Dryers, Wallace & Gale Liable in Suit
----------------------------------------------------------------
Plaintiffs' litigation firm Motley Rice LLC announces that a
jury in Baltimore Circuit Court has found Scapa Dryers, Inc.,
and Wallace & Gale liable in the asbestos-related mesothelioma
and lung cancer of former paper worker Carl Saville, according
to a Motley Rice press release dated Feb. 1, 2008.
The plaintiffs argued that in the 1960s and 1970s, Mr. Saville
was exposed to asbestos-containing dryer felts produced by Scapa
as well as pipe, cement and block insulation installed by
Wallace & Gale, resulting in the development of harmful disease.
The jury awarded US$1.718 million to Mr. Saville, who has waited
for this retrial since the 2003 trial and verdict for the
plaintiff was overturned on appeal.
The 64-year-old Mr. Saville was a paper machine operator at
Westvaco in Luke, Md. During the mid-1960s and 1970s, he worked
on drying machines in a paper plant which utilized Scapa-
manufactured dryer felts containing chrysotile asbestos.
Wallace & Gale, an insulation contractor to the paper mill where
Mr. Saville worked, was added as a new defendant in the retrial
after its emergence from bankruptcy.
In 2002, Mr. Saville was diagnosed with lung cancer and a
mesothelioma tumor was discovered during the lobectomy. He has
since gone without cancer recurrence for the past six years.
Motley Rice trial counsel Fritz J. Jekel said, "In serving as
co-counsel for Mr. Saville and his family, we are pleased to
provide answers and closure on the cause of his illness. We
commend the jury’s decision to hold both Wallace & Gale and
Scapa Dryers responsible for knowingly exposing him to dangerous
materials."
Motley Rice, including attorneys Fritz J. Jekel and V. Brian
Bevon, co-counseled with Michael T. Edmonds of The Law Offices
of Peter Nicholl of Maryland on this case.
Scapa Dryers, Inc. manufactured the 200-foot long dryer felts
used in Mr. Saville paper plant. In 1999, Scapa's technical
paper making operations were acquired by J.M. Vioth AG,
headquartered in Germany.
Wallace & Gale is a Baltimore-based manufacturer of sheet
metals, fiber sheets and alloy sheets. The company served as an
insulation contractor for the installation and repair of several
types of asbestos containing insulation at the paper mill where
Mr. Saville worked.
ASBESTOS LITIGATION: Lacone's Family Gives AUD200T for Research
---------------------------------------------------------------
The family of asbestos victim Tim Lacone has donated AUD200,000
to an asbestos research fund established by his lawyer, Slater &
Gordon, The Sydney Morning Herald reports.
The family of Mr. Lacone, who died four months after winning a
record AUD$2.75 million payout from asbestos manufacturer James
Hardie Industries N.V., has commemorated his death with a gift.
Mr. Lacone died in June 2007 at the age of 58 after a battle
with mesothelioma. He had reached a multi-million-dollar
settlement with James Hardie on Feb. 5, 2007.
Mr. Lacone's sister-in-law and carer, Meg Bentley, wept on
Feb. 5, 2008 as she recalled the pain he suffered before
succumbing to the cancer.
But before he died, Mr. Lacone invented a revolutionary water
saving filter for swimming pools, which his family has continued
to develop.
The AUD200,000 was donated to Slater & Gordon's Asbestos
Research Fund, as Mr. Lacone had wished. The firm donated an
additional AUD300,000, bringing the fund's total contributions
to AUD1 million since 2004.
The first AUD500,000 of the fund has already been spent on a
range of research projects.
Lawyer Peter Gordon said advances in treatments and a possible
cure for mesothelioma would be assisted if large companies
linked to asbestos also donated to research.
Mr. Gordon said while some provisions for research funding were
made by James Hardie and CSR, more was needed.
ASBESTOS LITIGATION: Asymptomatic Claimants Laud Scottish Bill
--------------------------------------------------------------
Justice Secretary Kenny MacAskill, on Feb. 5, 2008, said that
victims of several asbestos-related conditions will benefit from
Scottish legislation allowing them to claim damages, even if
they do not suffer ill health as a result, The Herald reports.
People with pleural plaques, asymptomatic asbestosis or pleural
thickening will be able to seek compensation if they have been
negligently exposed to asbestos, under a proposed bill published
by the Scottish Government. None of the three conditions
directly cause ill health.
In October 2007, the House of Lords ruled that asymptomatic
pleural plaques would not be actionable under the law of
damages, overturning 20 years of case law and sparking outrage
from asbestos campaigners and politicians.
Mr. MacAskill said the Scottish legislation, which was announced
in November 2007, would overturn the previous House of Lords
ruling. He said, "It is right and proper that we should not turn
our backs on those who contributed to our nation's wealth in the
past."
Although the original ruling related to pleural plaques, the
proposed Scottish legislation includes asymptomatic asbestosis
and pleural thickening, which, unlike pleural plaques, are
usually progressive and lead to impairment, to avoid a "narrow
interpretation of the case."
Harry McCluskey, secretary of Clydeside Action on Asbestos,
said, "We are delighted with the news that the Justice Secretary
Kenny MacAskill will incorporate pleural thickening and
asbestosis within the pleural plaque bill."
ASBESTOS LITIGATION: Court Junks Pending Motions in Grace Action
----------------------------------------------------------------
The U.S. District Court, D. Delaware, dismissed all pending
motions in the case styled Libby Claimants, et al., Appellants,
v. W.R. Grace & Co., et al., Appellees.
Senior Judge Buckwalter entered judgment of Civil Action No. 07-
609 (under Bankruptcy Case No. 01-01139) on Jan. 22, 2008.
This appeal followed an Aug. 29, 2007, Bankruptcy Court order
temporarily staying all actions commenced against the State of
Montana and/or Burlington Northern Santa Fe Railway Company
(BNSF) arising out of alleged exposure to asbestos indirectly or
directly caused by Grace.
The Appellants in this matter, referred to as the "Libby
Claimants," constitute individuals allegedly injured by exposure
to asbestos from Debtors' operations in Lincoln County, Mont.,
who seek to prosecute tort claims against the State of Montana
and BNSF.
In June 2005, the State of Montana filed a motion in the
Bankruptcy Court seeking relief from an automatic stay to enable
it to join the Debtors as third-party defendants in the Montana
lawsuits. After initially opposing the State of Montana's lift
stay motion, the Debtors filed a motion to expand the
preliminary injunction to include actions against the State of
Montana.
After hearing arguments from the parties, the Bankruptcy Court
entered an order on Jan. 17, 2006, temporarily staying the
lawsuits against the State of Montana pending the Bankruptcy
Court's decision on expanding the injunction. The Libby
Claimants appealed the Stay Order to this Court, arguing that
the order was reviewable as a preliminary injunction. Following
briefing and oral arguments, this Court entered an Order on May
10, 2006.
On April 16, 2007, the Bankruptcy Court issued an order denying
Debtors' motion to expand the preliminary injunction to include
actions against the State of Montana. Both Debtors and the State
of Montana filed motions for reconsideration in response to the
Bankruptcy Court's order.
On March 26, 2007, Grace moved to extend the preliminary
injunction to include the BNSF litigation. On May 21, 2007, the
Bankruptcy Court heard oral argument on the motions for
reconsideration of the injunction denial decision as well as
Debtors' motion to expand the injunction to include actions
against BNSF (BNSF Injunction Motion).
The Bankruptcy Court thereafter entered an order on Aug. 29,
2007, temporarily staying all actions commenced against the
State of Montana and/or BNSF arising out of the alleged asbestos
exposure caused by Debtors, pending the Bankruptcy Court's
ruling on the injunction motions.
The Libby Claimants now appealed entry of that Stay Order,
submitting that it should be vacated.
Upon consideration of Appellants' Brief, Answering Brief of the
State of Montana, Appellees' Brief, and Appellants' Reply;
Debtors' Motion to Dismiss Appeal, Joinder of the State of
Montana to Debtors' Motion to Dismiss Appeal, Appellants'
Opposition to Debtors' Motion to Dismiss Appeal, BNSF Railway
Company's Opposition to Debtors' Motion to Dismiss Appeal, and
Debtors' Reply in Support of Motion to Dismiss Appeal, the
District Court hereby ordered that all motions are dismissed
without prejudice.
James E. O'Neill, Iii, Pachulski, Stang, Ziehl, Young & Jones,
P.C., Pachulski, Stang, Ziehl & Jones, LLP, Wilmington, Del.,
represented W.R. Grace & Co.
ASBESTOS LITIGATION: Tyco Int'l Has 5,600 Cases Recorded at Dec.
----------------------------------------------------------------
Tyco International Inc., as of Dec. 28, 2007, recorded about
5,600 asbestos liability cases pending against it and its
subsidiaries, according to the Company's quarterly report filed
with the U.S. Securities and Exchange Commission on Feb. 5,
2008.
As of Sept. 28, 2007, the Company had about 5,600 asbestos
liability cases pending against it and its subsidiaries. (Class
Action Reporter, Dec. 7, 2007)
The Company and some of its subsidiaries and certain Covidien
Ltd. subsidiaries are named as defendants in personal injury
lawsuits based on alleged exposure to asbestos-containing
materials.
Under the Separation and Distribution Agreement, Covidien has
assumed all liabilities for pending cases filed against
Covidien's subsidiaries.
A limited number of the cases allege premises liability, based
on claims that individuals were exposed to asbestos while on a
subsidiary's property. Most cases involve product liability
claims, based on allegations of past distribution of heat-
resistant industrial products incorporating asbestos or the past
distribution of industrial valves that incorporated asbestos-
containing gaskets or packing.
Each case typically names between dozens to hundreds of
corporate defendants.
The Company's involvement in asbestos cases has been limited
because its subsidiaries did not mine or produce asbestos.
Furthermore, in the Company's experience, a large percentage of
these claims were never substantiated and have been dismissed by
the courts. To date, the Company has not suffered an adverse
verdict in a trial court proceeding related to asbestos claims.
Princeton, N.J.-based Tyco International Ltd., in mid-2007, was
split into three publicly held companies: Covidien (formerly
Tyco Healthcare Group), Tyco Electronics, and Tyco
International, which retained the manufacturing conglomerate's
Fire and Security and its Engineered Products and Services
businesses.
ASBESTOS LITIGATION: RBS Global Inc. Records 675 Stearns Actions
----------------------------------------------------------------
RBS Global Inc. faces about 675 lawsuits (with about 6,800
claimants) pending in state or federal court in numerous
jurisdictions on alleged personal injuries due to the presence
of asbestos in certain brakes and clutches previously made by
its Stearns division.
Invensys plc and FMC Corporation, the prior owner of the Stearns
business, have paid 100 percent of the costs to date related to
the Stearns lawsuits, according to the Company's quarterly
report filed with the U.S. Securities and Exchange Commission on
Feb. 5, 2008.
Milwaukee-based RBS Global Inc. is a diversified, multi-platform
industrial company comprised of two key segments, Power
Transmission and Water Management. PT makes gears, couplings,
industrial bearings, flattop chain and modular conveyer belts,
special components, industrial chain and aerospace bearings and
seals. WM supplies professional grade specification drainage,
water control, PEX piping and commercial brass products.
ASBESTOS LITIGATION: RBS Global Records 2 Prager Injury Lawsuits
----------------------------------------------------------------
RBS Global Inc.'s Prager subsidiary has been named as a
defendant in two pending multi-defendant lawsuits on alleged
personal injuries due to the alleged presence of asbestos in a
product allegedly made by Prager.
There are about 3,600 claimants in the Prager lawsuits,
according to the Company's quarterly report filed with the U.S.
Securities and Exchange Commission on Feb. 5, 2008.
The ultimate outcome of these lawsuits cannot presently be
determined. To date, Invensys plc has paid 100 percent of the
costs related to the Prager lawsuits.
The Company said it believes that it also has insurance coverage
for its legal defense costs related to such suits.
Milwaukee-based RBS Global Inc. is a diversified, multi-platform
industrial company comprised of two key segments, Power
Transmission and Water Management. PT makes gears, couplings,
industrial bearings, flattop chain and modular conveyer belts,
special components, industrial chain and aerospace bearings and
seals. WM supplies professional grade specification drainage,
water control, PEX piping and commercial brass products.
ASBESTOS LITIGATION: RBS Global Inc. Records 130 Falk Lawsuits
--------------------------------------------------------------
RBS Global Inc.'s Falk subsidiary faces about 130 lawsuits
pending in state or federal court in numerous jurisdictions
relating to alleged personal injuries due to the presence of
asbestos in certain clutches and drives previously made by Falk.
There are about 3,000 claimants in these suits, according to the
Company's quarterly report filed with the U.S. Securities and
Exchange Commission on Feb. 5, 2008.
Hamilton Sundstrand is defending Falk in these lawsuits under
its indemnity obligations and has paid 100 percent of the costs
to date.
Milwaukee-based RBS Global Inc. is a diversified, multi-platform
industrial company comprised of two key segments, Power
Transmission and Water Management. PT makes gears, couplings,
industrial bearings, flattop chain and modular conveyer belts,
special components, industrial chain and aerospace bearings and
seals. WM supplies professional grade specification drainage,
water control, PEX piping and commercial brass products.
ASBESTOS LITIGATION: RBS Faces About 7,800 Zurn Cases at Dec. 29
----------------------------------------------------------------
RBS Global Inc. and 83 other unrelated companies, as of Dec. 29,
2007, were defendants in about 7,800 asbestos-related lawsuits
representing about 45,000 claims, according to the Company's
quarterly report filed with the U.S. Securities and Exchange
Commission on Feb. 5, 2008.
The suits allege damages in an aggregate amount of about US$13.6
billion against all defendants. Plaintiffs’ claims against the
water management business of Jacuzzi Brands, Inc. (Zurn) allege
personal injuries caused by exposure to asbestos used primarily
in industrial boilers formerly manufactured by a segment of
Zurn.
Zurn did not manufacture asbestos or asbestos components. Zurn
purchased them from suppliers. These claims are being handled
under a defense strategy funded by Zurn's insurers.
The Company currently expects that Zurn's potential liability
for asbestos claims pending against it and for claims estimated
to be filed in the next 10 years is about US$136 million, of
which the Company expects to pay approximately US$102 million in
the next 10 years, with the balance of the estimated liability
being paid in subsequent years.
Management estimates that its available insurance to cover its
potential asbestos liability as of Dec. 29, 2007, is about
US$283.5 million, and said it believes that all current claims
are covered by this insurance.
However, principally as a result of the past insolvency of
certain insurance carriers of the Company, certain coverage gaps
will exist if and after the Company's other carriers have paid
the first US$207.5 million of aggregate liabilities.
In order for the next US$51 million of insurance coverage from
solvent carriers to apply, management estimates that it would
need to satisfy US$14 million of asbestos claims. Layered within
the final US$25 million of the total US$283.5 million of
coverage, management estimates that it would need to satisfy an
additional US$80 million of asbestos claims.
As of Dec. 29, 2007, the Company had recorded a receivable from
its insurance carriers of US$136 million, which corresponds to
the amount of its potential asbestos liability that is covered
by available insurance and is currently determined to be
probable of recovery. However, there is no assurance that
US$283.5 million of insurance coverage will ultimately be
available or that Zurn's asbestos liabilities will not
ultimately exceed US$283.5 million.
Milwaukee-based RBS Global Inc. is a diversified, multi-platform
industrial company comprised of two key segments, Power
Transmission and Water Management. PT makes gears, couplings,
industrial bearings, flattop chain and modular conveyer belts,
special components, industrial chain and aerospace bearings and
seals. WM supplies professional grade specification drainage,
water control, PEX piping and commercial brass products.
ASBESTOS LITIGATION: Court Junks Dismissal of Anderson's Action
---------------------------------------------------------------
The U.S. Bankruptcy Court, M.D. Florida, Tampa Division, denied
Anderson Memorial Hospital's Motion to Dismiss Adversary
Proceeding, under the bankruptcy case styled In re The Celotex
Corporation and Carey Canada, Inc., Debtor.
The case is styled Asbestos Settlement Trust, Plaintiff, v.
Anderson Memorial Hospital, Defendant.
Chief Bankruptcy Judge Paul M. Glenn entered judgment of the
case (Bankruptcy No. 8:90-bk-10016-PMG, Adversary No. 8:02-ap-
521-PMG) on Jan. 11, 2008.
The Trust was created under the Order Confirming the Modified
Joint Plan of Reorganization for Celotex and Carey Canada that
was entered by the Bankruptcy Court on Dec. 6, 1996.
The Plan Documents also provide that the allowance of Asbestos
Property Damage Claims "shall be administered" by a Property
Damage Claims Administrator (PDCA) in accordance with the Third
Amended and Restated Asbestos Property Damage Claims Resolution
Procedures (APDCRP).
Anderson submitted multiple Property Damage Claims to the PDCA
for processing. Certain of the Property Damage Claims were
allowed by the PDCA and submitted to the Trust for payment.
However, the Trust, asserted that the Claims did not satisfy the
legal prerequisites for payment as provided in the Plan
Documents, and declined to pay them.
The issue before the Court involved 52 Claims that were
submitted by Anderson and allowed by the PDCA, but remain
unpaid. According to the Trust, the aggregate amount of the
allowed, unpaid Claims equals the sum of US$268,204,287.74.
In 2002, the Trust commenced this adversary proceeding by filing
a Complaint for Declaratory Relief as to Asbestos Property
Damage Claims Submitted by Anderson Memorial Hospital.
In the Motion to Dismiss before the Court, Anderson did not rely
on any of the grounds for dismissal generally set forth in Rule
12(b) of the Federal Rules of Civil Procedure. Instead, Anderson
contended that the adversary proceeding should be dismissed
because it is unnecessary, and because it is inconsistent with a
recent Opinion issued by the 11th Circuit Court of Appeals with
respect to the dispute involving the Trust's nonpayment of
allowed Property Damage Claims.
The Bankruptcy Court has considered the grounds for dismissal
asserted by Anderson, however, and found that the Motion should
be denied because (1) the Opinion of the 11th Circuit Court of
Appeals does not mandate dismissal; (2) the Trust properly filed
and has properly pursued the adversary proceeding; and (3)
dismissal may adversely affect the rights of the Legal
Representative and the TAC as parties in interest in the
proceeding.
The Bankruptcy Court ordered that the Motion to Dismiss
Adversary Proceeding filed by Anderson Memorial Hospital was
denied.
Adam L. Alpert, Andrew T. Jenkins, Shane G. Ramsey, Jeffrey W.
Warren, Bush Ross, P.A., Tampa, Fla., represented Asbestos
Settlement Trust.
Harley E. Riedel, Stichter, Riedel, Blain & Prosser, Tampa,
Fla., Amanda G. Steinmeyer, Hampton, S.C., represented Anderson
Memorial Hospital.
ASBESTOS LITIGATION: Magnetek Receives $1.4M Payment from Trust
---------------------------------------------------------------
Magnetek, Inc., in January 2008, received an asbestos payment of
about US$1.4 million from a trust established under Federal-
Mogul Corp.'s reorganization plan, according to a Company press
release dated Feb. 6, 2008.
The Company has been named in asbestos-related lawsuits
associated with businesses previously acquired by the Company
but which are no longer owned. During the Company's ownership,
none of these businesses produced or sold products containing
asbestos and as a result, the Company aggressively seeks
dismissal from these proceedings.
The Company also filed claims in the Federal-Mogul Corp.
bankruptcy proceedings to recover costs associated with the
defense of these claims.
In May 2007, the Company and Federal-Mogul entered into a
settlement agreement under which the Company is entitled to
receive amounts from an insurance settlement trust established
under Federal-Mogul's reorganization plan, which plan was
approved by the bankruptcy court on Dec. 27, 2007.
Under the terms of the settlement agreement, the Company is to
receive 15 percent of the first US$20 million and 10 percent of
the next US$25 million of deposits to the trust, up to a maximum
of US$5.5 million.
The US$1.4 million represents primarily the recovery of
previously incurred legal fees for the defense of these
asbestos-related lawsuits and is included in income from
discontinued operations in the fiscal 2008-2nd quarter.
Menomonee Falls, Wis.-based Magnetek, Inc. makes digital power
and motion control systems used in material handling, people
moving, wireless communications and energy delivery. The Company
operates plants in Pittsburgh, Canonsburg, Pa., and Mississauga,
Ontario, Canada as well as Menomonee Falls.
ASBESTOS LITIGATION: Del. Court Junks Claims Against Contractors
----------------------------------------------------------------
WILMINGTON, Del. -- The Delaware Supreme Court, on Jan. 17,
2008, affirmed the dismissal of premises liability claims
brought by independent contractors' employees alleging that the
landowner was responsible for exposing them to asbestos, Mealey
Publications reports.
The case is styled Pauline Wenke and Scott Arterbridge, et al.
v. E.I. Du Pont De Nemours and Co.
The court said that the issue is controlled by its ruling in In
re Asbestos Litig. (2006 WL 1214890 [Del. Apr. 12, 2006]) and
that Judge Joseph R. Slights III did not err in his "well-
reasoned decision."
Pauline Wenke filed suit in New Castle County, Del., Superior
Court, alleging that Henry Wenke was exposed to asbestos pipe
insulation while working for various independent contractors at
E.I. du Pont de Nemours and Co. facilities in the 1940s and
1950s.
Mrs. Wenke sued a number of companies, including DuPont on
premises liability theory, for Mr. Wenke's subsequent asbestos-
related disease.
William Arterbridge filed suit in New Castle County, alleging
that he was exposed to asbestos while working for various
independent contractors through Local 42 Asbestos Workers Union
from 1946 to 1976.
Mr. Arterbridge also alleged that he worked at DuPont
facilities. He sued DuPont as a premises owner.
DuPont moved for summary judgment in both cases. Judge Slights
consolidated the cases and granted both motions.
Mr. Arterbridge and Mrs. Wenke appealed, and their appeals were
consolidated.
Judge Slights said in his May 31, 2007 ruling that Delaware
courts regularly hold that land owners and general contractors
do not have a duty to protect an independent contractors'
employees from hazards created by the work they are doing unless
the owner or general contractor retains active control over the
site.
Judge Slights said the state Supreme Court's ruling in In re
Asbestos Litig. (2006 WL 1214890 [Del. Apr. 12, 2006]) was
consistent with premises liability law as stated in the
Restatement (Second) of Torts at Section 409.
In that case, the Supreme Court recognized a distinction between
those who worked with asbestos directly and those who were
exposed by the work of others, Judge Slights said.
ASBESTOS LITIGATION: Canadian Study Says 300 Workers Die Yearly
---------------------------------------------------------------
A Canadian physician specializing in mesothelioma research and
University of British Columbia professor support an analysis by
British Columbia construction unions will die of asbestos
disease every year over the next five years, The Vancouver Sun
reports.
That means more than 1,500 workers will die of mesothelioma and
other asbestos exposure illnesses in the next five years, said
Wayne Peppard, executive director of the BC and Yukon - Building
and Construction Trades Council.
Mr. Peppard said that their prediction is based on a Building
Trades' analysis of preliminary WorkSafeBC [formerly the
Workers' Compensation Board] statistics and the latest research
at the UBC School of Environmental Health.
Dr. Michael R. Johnston, a professor of surgery at Halifax's
Dalhousie University, and Professor Paul Demers at UBC's School
of Environmental Health, agree with the assessment.
Mr. Demers said, "The conservative estimate is 65-70
mesothelioma cancers and 130-140 asbestos related lung cancers
per year. There are also cases of asbestosis, as well as
mesothelioma that is misdiagnosed and other asbestos-related
cancers (larynx, colorectal, stomach, etc.) pushing the number
of new cases up to 250 - 300 per year and most will eventually
die from these diseases."
Workers in British Columbia's insulation industry have had heavy
exposure to asbestos, said Wayne Laxton, business manager for
the BC Heat and Frost Insulators and Allied Workers, Local 118.
Mr. Peppard says the review takes into account that many
mesothelioma fatalities are missing as WorkSafeBC statistics
only register and track their own accepted cases.
ASBESTOS LITIGATION: UCATT OKs U.K. Gov't. Admission on Asbestos
----------------------------------------------------------------
Union of Construction, Allied Trades and Technicians (UCATT) has
welcomed the U.K. Government's admission that they may yet
legislate to provide justice for workers who developed pleural
plaques, through exposure to asbestos, according to a UCATT
press release dated Feb. 5, 2008.
In October 2007, the Law Lords overturned 30 years of case law,
which said that pleural plaques victims should receive
compensation.
Since then a campaign led by Labor MPs and unions has begun to
attempt to get the Law Lords decision overturned. The campaign
has gained impetus by the decision of the Scottish Executive
that the ban on compensation for pleural plaques will be
overturned north of the border.
Replying to a Westminster Hall debate called by Labor MP Jim
Sheridan, Bridget Prentice the Parliamentary Under Secretary at
the Department of Justice, admitted that if the Scottish
Executive passed legislation, it could force the Government's
hand. She said:
Alan Ritchie, general secretary of UCATT, said, "The Government
should not be led by the nose by the Scottish Executive on this
matter. The Law Lords decision was wrong and is a major
injustice for thousands of workers. Urgent legislation is
essential to compensate workers who through no fault of their
own have had their health damaged."
In a debate, MPs expressed their anger at the Law Lords decision
and described how asbestos diseases were blighting their
communities.
ASBESTOS LITIGATION: Wis. Officials Urging to Hasten Demolitions
----------------------------------------------------------------
State and county officials warn that delayed demolition at the
Badger Army Ammunition Plant in Sumpter, Wis., will stop
asbestos inspections of old buildings, The Sauk Prairie Eagle
reports.
Officials say that the delay in inspecting and demolishing
buildings has the potential to make transferring ownership of
the property more expensive in the long run.
The Army funding would have paid a contractor, SpecPro, to
continue demolishing some of the plant's 1,400 structures. It
also funded the Sauk County Public Health Department's
inspection of buildings before they are demolished or
transferred to another entity, such as the Department of Natural
Resources and the Ho-Chunk Nation.
Nick Oasen, environmental health technician with the Sauk County
Public Health Department, said, "There is a public health
concern. What it is we don't know. I can't tell you what
buildings are going to fail in the future. I don't know that.
But everybody knows that in time, however long they put this
off, buildings will fall."
Plant officials requested about US$19 million for demolition
projects at the 7,000-acre plant. However, the nine members of
the Defense Base Closure and Realignment Commission, who are
appointed by President George W. Bush, allocated less than US$1
million, which will only pay for basic operations at the plant.
The layoff affected almost half the 138 SpecPro employees
working at the base at the start of 2008, many of whom were
hired locally from area communities.
ASBESTOS LITIGATION: Cleanup at ABB's Site in Australia Ongoing
---------------------------------------------------------------
Colin Fenney of the Australian Manufacturing Workers Union says
the cleanup at the ABB Grain silo at Outer Harbor, Adelaide,
Australia, should be finished by Feb. 11, 2008, ABC News
reports.
The union says work can resume at the site where landfill is
contaminated with asbestos.
Construction work stopped at the ABB Grain silo site when traces
of asbestos were found in more than 17,000 tons of soil that had
been brought in as landfill.
Tests by SafeWork SA showed the contamination was within levels
considered safe but a union refused to let work continue until
the soil was dealt with.
Mr. Fenney says the process also includes contacting everyone
who has been involved with the site. He said, "We're making sure
through the process here that everybody thats worked on this
site, been in contact with this site, will be recommended to
fill the forms out and make sure they get put on this asbestos
register."
ASBESTOS ALERT: Equitable Developer Could Face Asbestos Penalty
---------------------------------------------------------------
Bob Knapp and his firms, Equitable LP and Equitable Condo, face
a state fine after remodeling at the historic Equitable Building
in Des Moines, Iowa, exposed an unknown number of condominium
shoppers and construction workers to asbestos, The Des Moines
Register reports.
Mr. Knapp and his firms have spent about the last year and a
half converting the upper floors of the 19-story building, built
in 1923, into dozens of luxury condos.
The Iowa Department of Natural Resources (DNR), following an
anonymous tip, found dry asbestos on many floors. The insulation
debris was scattered around the building, including public
areas, said DNR lawyer Kelli Book.
Mr. Knapp downplayed the concerns, saying the asbestos levels
were small. He referred questions to his lawyer, Robert Douglas.
The construction began 14 months before the state was alerted to
the asbestos trouble. Mr. Book said Mr. Knapp's firm hired an
asbestos-removal company, but has not submitted a required
report showing the work was completed properly.
Mr. Book said that Equitable violated a handful of federal
asbestos regulations enforced by the state.
The Iowa DNR in March 2008 will ask the Iowa Environmental
Protection Commission to refer the case to the state attorney
general's office in hopes of getting a fine larger than the
US$10,000 maximum the DNR can assess, Mr. Book said.
Marilyn Welch, who works at the Book Store on the first floor,
learned of her possible asbestos exposure from a reporter on
Feb. 1, 2008.
Mr. Knapp, who met with DNR inspectors, according to state
records, said he was not up on the specifics of the case.
The DNR's samples of ceiling, floor and pipe insulation debris
turned up asbestos concentrations ranging from two percent to 35
percent.
This is not the first time Mr. Knapp has been in trouble over
asbestos regulations. The state cited him in 2000 for failing to
inspect another old building before he converted it into the
Suites of 800 Locust hotel. He was not fined in that case.
New Securities Fraud Cases
CELLCYTE GENETICS: Hagens Berman Files WA Securities Fraud Suit
---------------------------------------------------------------
Hagens Berman Sobol Shapiro LLP filed a proposed class-action
lawsuit in the United States District Court for the Western
District of Washington at Seattle on behalf of purchasers of the
common stock of CellCyte Genetics Corporation (OTCBB:CCYG)
during the period between April 6, 2007, through and including
Jan. 9, 2008.
The complaint alleges that during the Class Period CellCyte
executives and business partners misled investors by publishing
false information about the history and experience of the
company's chief executive officer Gary A. Reys. Mr. Reys'
background was called into question after published news reports
called out alleged discrepancies relating to Mr. Reys' finance
degree from the University of Washington, a CPA designation,
ties to the Washington Society of Certified Public Accountants
and a strong track record within the pharmaceutical industry.
According to the complaint, CellCyte made misleading and false
statements about Mr. Reys to potential investors and the SEC.
These published statements had the cause and effect of creating
an unrealistically positive assessment of CellCyte's prospects
for investors. As a result, stock prices for the company were
artificially inflated during the Class Period. Soon after
Mr. Reys' credibility came into question, the suit claims
CellCyte took some of Mr. Reys' biography information off its
Web site. Within days of the removal company stock fell 55% to
$2.20 a share. CellCyte traded at a high of $7.02 per share
just days before.
The Complaint alleges that the Defendants violated Section 10(b)
of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder against all defendants and that
Defendants Gary A. Reys, Ronald W. Berninger, Robert H. Harris,
G. Brent Pierce and James L. Rapholz violated Section 20(a) of
the Exchange Act.
Interested parties may move the court no later than March 14,
2008 for lead plaintiff appointment.
For more information, contact:
Steve Berman, Esq.
Hagens Berman Sobol Shapiro LLP
Phone: 206-623-7292
e-mail: info@hbsslaw.com
Web site: http://www.hbsslaw.com
HUNTINGTON BANCSHARES: Strauss & Troy Files OH Securities Suit
--------------------------------------------------------------
The law firm of Strauss & Troy filed a class action with the
United States District Court for the Southern District of Ohio
on behalf of all persons who purchased the common stock of
Huntington Bancshares Inc. between July 20, 2007, and Jan. 10,
2008, inclusive, and who suffered damages thereby.
The Complaint alleges that during the Class Period, Huntington
and Thomas Hoaglin violated the Securities Exchange Act of 1934
by issuing materially false and misleading statements and
failing to disclose adverse facts known to them regarding the
Company's business and financial results.
On July 1, 2007, Huntington acquired Sky Financial for
$3.3 billion. As a result of the Sky Financial acquisition, the
Company began a relationship with Franklin Credit Management
Corporation. The Acquisition exposed the Company to losses of
more than $1.5 billion because of Sky Financial's investments in
sub-prime mortgages.
On Nov. 15, 2007, Huntington announced it would delay the
release of its 2007 third quarter results to provide Franklin
time to conduct a thorough review of the adequacy of its loan
loss reserve. On this news, Huntington's stock price dropped
from $16.08 to $14.75 and more than 10 million shares were
traded on this news. On Jan. 10, 2008, Huntington issued a
press release stating that the Company expects to report a 2007
fourth quarter net loss of $0.65 per common share, a net
negative impact of $1.00 per common share dropping its shares
from $13.23 to $12.65 with almost 12.5 million shares traded.
The Plaintiff seeks to recover damages on behalf of all
individuals and entities that purchased Huntington common stock
during the Class Period.
Interested parties may move the court no later than Feb. 18,
2008, for lead plaintiff appointment.
For more information, contact:
Strauss & Troy
The Federal Reserve Building
150 East Fourth Street
Cincinnati, Ohio 45202-4018
Phone: (513) 621-2120
Fax: (513) 241-8259
Web site: http://www.strausstroy.com/
MAXIM INTEGRATED: Rosen Law Firm Files Ca. Securities Fraud Suit
----------------------------------------------------------------
The Rosen Law Firm filed a class action lawsuit with the United
States District Court for the Northern District of California on
behalf of purchasers of the common stock and options of Maxim
Integrated Products, Inc. (PINKSHEETS: MXIM) (formerly NASDAQ:
MXIM), during the period from April 29, 2003, through Jan. 17,
2008.
The complaint charges that Maxim and certain of its former
officers violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 by engaging in improper stock option
backdating that caused the issuance of materially false and
misleading financial statements during the Class Period.
The complaint asserts that on Jan. 17, 2008, the Company
announced that it would be restating its financial statements to
record between $550 million and $650 million of additional
stock-based compensation expense and that its previously issued
financial statements could no longer be relied on. As a result
of these adverse disclosures, the Company's stock price has
declined 22%.
Interested parties may move the court no later than April 7,
2008, for lead plaintiff appointment.
For more information, contact:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm P.A.
350 fifth Avenue, Suite 5508
New York, NY 10118
Tel: (212) 686-1060
Toll Free: 1-866-767-3653
Fax: (212) 202-3827
Web site: http://www.rosenlegal.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Janice Mendoza, Freya Natasha Dy, and
Peter Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
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