/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090109.mbx C L A S S A C T I O N R E P O R T E R Friday, January 9, 2009, Vol. 11, No. 6 Headlines AT&T INC: Still Faces Lawsuits Over Alleged Assistance to NSA AVX CORP: Property Damage Suit Still Pending in South Carolina BANKATLANTIC BANCORP: Fla. Court Dismisses Securities Fraud Suit BANK OF AMERICA: Mass. Court Issues Discovery Order in "Turnley" BECKMAN COULTER: Calif. Ex-Worker's Labor Suit Remains Pending CAMBREX CORP: Parties to Appeal Awards in Generic APIs Lawsuit CENTURYTEL INC: Faces La. Overtime Pay Suit by Former Employee CEPHALON INC: Lawsuits Over "Actiq" Cancer Drug Remain Pending CEPHALON INC: Pursuing Dismissal of PROVIGIL Patent Deal Suits COUNTRYWIDE HOME: Faces Suit Over Servicemember's Interest Rates ICAHN ENTERPRISES: Still Faces Lawsuit Over Sale of NEGI in Del. KINDER MORGAN: Natural Gas Purchasers' Suit Dismissed Last Feb. KINDER MORGAN: Ruling on Royalty Interests Suit Entered in Oct. KINETIC CONCEPTS: Merger Suit Deal Still Pending Final Approval LEAR CORP: In Talks Over Final Settlement of ERISA Suit in Mich. LEAR CORP: No Appeal Filed on Junked Del. Stockholders' Lawsuit MBIA INC: Faces Consolidated Amended Securities Fraud Lawsuit MBIA INC: Ruling on Securities Suit Dismissal Appeal Pending RHYTHMS NETCONNECTIONS: April 3 Hearing Set for $17.5M Agreement VERTEX PHARMACEUTICALS: Seeks Dismissal of Mass. Securities Suit WAL-MART STORES: Faces Consumer Suit in Calif. Over DVD Rentals New Securities Fraud Cases EMCORE CORP: Holzer Holzer Announces N.M. Securities Suit Filing EMCORE CORP: Izard Nobel Announces N.M. Securities Suit Filing HORIZON LINES: Roy Jacobs Announces Del. Securities Suit Filing INTEGRAL SYSTEMS: Dyer & Berens Announces Securities Suit Filing SATYAM COMPUTER: Izard Nobel Announces Securities Suit Filing SATYAM COMPUTER: Vianale & Vianale Files Securities Fraud Suit Asbestos Alerts ASBESTOS LITIGATION: 13 New Cases Filed in Madison on Dec. 22-26 ASBESTOS LITIGATION: Wash. University Dorm Repairs Cost $650,000 ASBESTOS LITIGATION: Hazard Concerns Close St. Louis Post Office ASBESTOS LITIGATION: MACK Group Completes Cleanup in N.J. Boiler ASBESTOS LITIGATION: Homebase & HSE Advise Tradesmen on Asbestos ASBESTOS LITIGATION: Bergeron Action v. Chevron Filed on Dec. 22 ASBESTOS LITIGATION: Remodeling at Gonzales County Jail Ongoing ASBESTOS LITIGATION: Hazard Detected in 15 Tweed Public Schools ASBESTOS LITIGATION: Hazard Found in 2 of A.B. Davis Classrooms ASBESTOS LITIGATION: Israel Ministry Drafts New Regulations Bill ASBESTOS LITIGATION: Runcorn Resident Seeks Payout for Exposure ASBESTOS LITIGATION: Legal Malpractice Case v. Simmons Pending ASBESTOS LITIGATION: Appeals Court Upholds Ruling in SCS Action ASBESTOS LITIGATION: Split Rulings Issued in Dunesland's Lawsuit ASBESTOS LITIGATION: Stay in Reaser Case in Fla. Still in Effect ASBESTOS LITIGATION: Safeguard's Motion Denied in Perkins Action ASBESTOS LITIGATION: Safeguard's Motion in Oliver Action Denied ASBESTOS LITIGATION: SC Reverses Ruling in Westinghouse's Favor ASBESTOS LITIGATION: Tex. SC Affirms GlobalSantaFe Mandamus Bid ASBESTOS LITIGATION: Cleanup at Waycross School to Cost $111,000 ASBESTOS LITIGATION: Thomas' Suit v. 58 Companies Filed in Texas ASBESTOS LITIGATION: All Clear Warns Public on Bldg. Materials ASBESTOS LITIGATION: Huyton Local Files Suit v. Knowsley Council ASBESTOS LITIGATION: Kempthorne's Room Renovation Costs $236,000 ASBESTOS LITIGATION: Australian Sailors Still Exposed to Hazards ASBESTOS LITIGATION: Mass. Parent Demands Safe Cleanup at School ASBESTOS LITIGATION: 639 Actions Filed in Madison County in 2008 ASBESTOS LITIGATION: Hazard at Adams Elementary Found on Jan. 5 ASBESTOS LITIGATION: Chesapeake School Fail at Air Quality Tests ASBESTOS LITIGATION: Montana Officials Call for Asbestos Funding ASBESTOS LITIGATION: South Korea Governor Urges for Special Act ASBESTOS LITIGATION: Meetings on Vt. Mine Slated for Jan. 12, 13 ASBESTOS LITIGATION: Survey Identifies Risks at Scotland School ASBESTOS LITIGATION: Tests Show No Risks at Edlington's Vicinity ASBESTOS LITIGATION: Hazard Found at London Leisure Center Pool ASBESTOS LITIGATION: Kostrzewa Favored in Claim Against Suffolk ASBESTOS LITIGATION: Spilmon's Bid to Remand Granted in Calif. ASBESTOS LITIGATION: Defendants' Motion Denied in MDL 875 Action ASBESTOS LITIGATION: Pa. Court Reverses Ruling to Favor Wrights ASBESTOS LITIGATION: Court Issues Split Rulings in Weible Action ********* AT&T INC: Still Faces Lawsuits Over Alleged Assistance to NSA ------------------------------------------------------------- AT&T Inc. continues to face suits over alleged assistance to the National Security Agency, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008 Initially, 24 pending lawsuits were filed alleging that the company and other telecommunications carriers unlawfully provided assistance to the NSA in connection with intelligence activities that were initiated following the events of Sept. 11, 2001. In the first filed case, "Hepting et al. v. AT&T Corp., AT&T Inc. and Does 1-20," a purported class action filed before the U.S. District Court in the Northern District of California, the plaintiffs allege that the defendants have disclosed and are currently disclosing to the U.S. Government content and call records concerning communications to which the plaintiffs were a party. The plaintiffs seek damages, a declaratory judgment, and injunctive relief for violations of the First and Fourth Amendments to the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Electronic Communications Privacy Act, and other federal and California statutes. The company filed a motion to dismiss the complaint. The U.S. Government asserted the "state secrets privilege" and related statutory privileges and also filed a motion asking the court to dismiss the complaint. The Court denied the Motions to Dismiss. Both the company and the U.S. government filed interlocutory appeals. The case was argued before a panel of the U.S. Court of Appeals for the Ninth Circuit in August 2007. On Aug. 21, 2008, the court remanded the case to the district court without deciding the issue in light of the passage of the FISA Amendments Act. In July 2008, the President signed into law, the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (the Act), a provision of which addresses the allegations in these pending lawsuits (immunity provision). The immunity provision requires the pending lawsuits to be dismissed if the Attorney General certifies to the court either that the alleged assistance was undertaken by court order, certification, directive, or written request or that the telecom entity did not provide the alleged assistance. On Sept. 19, 2008, the Attorney General filed his certification and asked the court to dismiss all of the lawsuits pending against the telecommunications companies. On Oct. 16, 2008, the plaintiffs filed an opposition to the certification and motion to dismiss arguing that the Act is unconstitutional and, alternatively, that the government failed to meet its burden of justifying dismissal. San Antonio, Texas-based AT&T, Inc. -- http://www.att.com/-- is a provider of telecommunications services in the U.S. It offers its services and products to consumers in the U.S., and services and products to businesses and other providers of telecommunications services worldwide. The services and products that it offers vary by market, and include wireless communications, local exchange services, long-distance services, data/broadband and Internet services, video services, telecommunications equipment, managed networking, wholesale services and directory advertising and publishing. Its traditional wireline local exchange subsidiaries operate in 22 states: Alabama, Arkansas, California, Connecticut, Illinois, Indiana, Florida, Georgia, Kentucky, Louisiana, Kansas, Michigan, Mississippi, Missouri, Nevada, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas and Wisconsin (22- state area). AVX CORP: Property Damage Suit Still Pending in South Carolina -------------------------------------------------------------- A purported class-action lawsuit over the alleged migration of certain pollutants from AVX Corp.'s South Carolina factory to neighboring properties remains pending, according to the company's Nov. 5 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit was filed in the South Carolina State Court on Nov. 27, 2007, by certain individuals seeking certification as a class- action suit, which has not yet been determined. In essence, the suit claims that property value had been negatively impacted by alleged migration of certain pollutants from the company's property (Class Action Reporter, June 16, 2008) AVX Corp. -- http://www.avx.com/-- is a worldwide manufacturer and supplier of a line of passive electronic components and related products. Virtually all types of electronic devices use the Company's passive component products to store, filter or regulate electric energy. AVX's passive electronic component products include ceramic and tantalum capacitors, film capacitors, varistors and non-linear resistors manufactured in its facilities throughout the world and passive components manufactured by Kyocera Corp. of Japan (Kyocera), its majority stockholder, which owns approximately 71% of AVX's outstanding common stock. The Company also manufactures and sells electronic connectors and inter-connect systems, and distributes and sells certain electronic connectors manufactured by Kyocera. The Company has three segments: Passive Components, Kyocera Electronic Devices Resale and Connectors. BANKATLANTIC BANCORP: Fla. Court Dismisses Securities Fraud Suit ---------------------------------------------------------------- The U.S. District Court for the Southern District of Florida has dismissed a purported securities fraud class-action suit against BankAtlantic Bancorp, Inc. and four of its current and former officers, which alleges the bank and its executives intentionally misled investors about problems with commercial real estate and land development loans, Brian Bandell of the South Florida Business Journal reports. The attorneys for lead plaintiff State Boston Retirement System, a government pension fund, filed an emergency motion on Jan. 2 for a phone hearing, in the hopes that the judge would spell out how to protect the identities of confidential witnesses so it can file an amended complaint, reports the South Florida Business Journal. However, the South Florida Business Journal reported that on Jan. 5, 2009, Judge Ursula Ungaro denied the motion, saying that the confidential witnesses -- allegedly seven former BankAtlantic employees -- must disclose how they knew of the bank's internal loan documents and meetings. The judge has not been told who the witnesses are. Judge Ungaro had already dismissed the complaint on Dec. 11, 2008, saying it relied too heavily on nonspecific information from confidential witnesses, according to the South Florida Business Journal. In her Jan. 5, 2009 opinion, the judge wrote, "As one court stated, a court 'must be able to tell whether a confidential witness is speaking from personal knowledge or merely regurgitating gossip and innuendo.'" She added, "The plaintiff's amended complaint must allow the court to make this determination." Case Background The suit was filed by Joseph C. Hubbard, individually and on behalf of all others similarly situated, against BankAtlantic Bancorp, Inc., James A. White, Valerie C. Toalson, Jarrett S. Levan and Alan B. Levan on Oct. 29, 2007 (Class Action Reporter Dec. 7, 2007). It alleges that during the purported class period of Nov. 9, 2005 through Oct. 25, 2007, BankAtlantic Bancorp, Inc. and the named officers knowingly and/or recklessly made misrepresentations of material fact regarding BankAtlantic and specifically BankAtlantic's loan portfolio and allowance for loan losses. The complaint asserts claims for violations of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks unspecified damages. The suit is "Joseph C. Hubbard, et al. v. BankAtlantic Bancorp, Inc., et al., Case No. 07-CV-61542," filed in the U.S. District Court for the Southern District of Florida Judge Ursula Ungaro, presiding. Representing the plaintiffs are: Glancy Binkow & Goldberg LLP 1801 Ave. of the Stars, Suite 311 Los Angeles, CA 90067 Phone: (310) 201-915 Fax: (310) 201-916 E-mail: info@glancylaw.com Kirby McInerney & Squire LLP 830 Third Avenue 10th Floor New York Ave, NY 10022 Phone: 212.317.2300 Law Offices of Howard G. Smith 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Phone: 215.638.4847 Fax: 215.638.4867 Stull, Stull & Brody 6 East 45th Street New York, NY 10017 Phone: 310.209.2468 Fax: 310.209.2087 E-mail: SSBNY@aol.com - and - Vianale & Vianale LLP The Plaza - Suite 801, 5355 Town Center Road Boca Raton, FL 33486 Phone: 561.391.4900 Fax: 561.368.9274 E-mail: info@vianalelaw.com BANK OF AMERICA: Mass. Court Issues Discovery Order in "Turnley" ---------------------------------------------------------------- The U.S. District Court for the District of Massachusetts issued on Dec. 8, 2008 a discovery order in a purported racial discrimination class-action lawsuit against Bank of America, N.A. (BOA) and its subsidiary, Banc of America Investment Services, Inc. (BAI). The Nashua Telegraph reported that the federal court issued a discovery order addressing the issue of job histories in a litigation entitled, "Turnley et al. v. Banc of America Investment Services, Inc., et al., Case No. 1:07-cv-10949-NG," The order clarifies that employees who are considering taking legal action for discrimination -- and putting their prior compensation and work history at issue -- will be allowing their former employer to find out detailed information of how well they actually did in prior and current jobs, according to the Nashua Telegraph report. As part of that litigation, Bank of America served 10 third- party subpoenas on plaintiffs' former employers, current employers, and three other business entities seeking a variety of documents about their work performance. The plaintiffs argued to the court that the information sought should be prohibited because it would not reasonably lead to admissible evidence, was calculated to invade the plaintiffs' privacy, and would subject the plaintiffs to unwarranted intrusion, annoyance, harassment and embarrassment. The court ultimately prohibited discovery of evidence relating to positions held by the plaintiffs with former employers, where job positions were not comparable to the job positions at issue, reports the Nashua Telegraph. However, it allowed the discovery to happen with regards to all other documents. The permitted discovery included documents involving the plaintiffs' independent contractor relationship with employers, their compensation, and performance in working in the financial services field in comparable positions. The discovery order though does not permit the employer to use that information for anything other than litigation, accoridng to the Nashua Telegraph. Case Background The suit, "Turnley et al. v. Banc of America Investment Services, Inc., et al., Case No. 1:07-cv-10949-NG," was filed in the U.S. District Court for the District of Massachusetts on May 18, 2007 (Class Action Reporter, Dec. 5, 2007). Listed as plaintiffs in the suit are: -- Richard Turnley, III, -- Baron H.C. Finlayson, -- Coleen Alecia Hinds, -- Mark Anthony Brown, and -- Timothy Johnson, II. In general, the complaint is alleging that defendants discriminated against African-American brokers and bankers in promotion, compensation, mentoring and other employment opportunities. It specifically alleges that defendants regularly discriminated against black bankers and financial advisers, teaming them with other black bankers or advisers and steering more lucrative clients to white employees. As a result of this practice, allegedly, "African Americans face greater difficulty in developing their business, career and income," according to the complaint. The complaint seeks cover people who worked as bankers or brokers for the defendants from April 2003 to present. It also seeks a halt to the alleged improper practices, back pay, and compensatory and punitive damages. The suit was filed on behalf of all African-Americans who were or are employed at BOA or BAI as premier bankers and/or financial advisors at any time from April 1, 2003 to the present, and alleges that, among other things, BOA and BAI discriminate against African-American premier bankers and financial advisors on the basis of race with respect to, among other things, compensation, work and territorial assignments, promotion, training and mentoring, resources, and business opportunities. In response to the complaint, defendants BOA and BAI brought motions to transfer the action to Georgia, to dismiss plaintiffs' claims under the Massachusetts anti-discrimination statute and to stay discovery in the action. The Court denied each of defendants' motions in an Order dated Nov. 29, 2007. Accordingly, plaintiffs may now begin prosecuting this action in Massachusetts. In addition, the Court granted plaintiffs' motion for leave to file a First Amended Class Action Complaint, which, among other things, adds as a named plaintiff a Massachusetts resident who worked for BAI in Boston and also adds claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq. on behalf of class members. The Amended Complaint includes previously filed allegations that BOA and BAI regularly discriminate against African-American bankers and financial advisors by, among other things, engaging in "racial steering" with respect to work assignments, including the allegations that BAI and BOA management told employees who complained about the allegedly racist practices that clients are more "comfortable" dealing with members of their own race. The Amended Complaint also adds new allegations, including that BAI and BOA management said that African-American client pools were not a "lucrative market," and not "sophisticated," "competent," or "savvy." The suit is "Turnley et al. v. Banc of America Investment Services, Inc., et al., Case No. 1:07-cv-10949-NG," filed in the U.S. District Court for the District of Massachusetts under Judge Nancy Gertner. Representing the plaintiffs are: Ellen J. Messing, Esq. Messing, Rudavsky & Weliky PC 50 Congress Street, Suite 1000 Boston, MA 02109 Phone: 617-742-0004 Fax: 617-742-1887 E-mail: mail@mrwemploymentlaw.com BECKMAN COULTER: Calif. Ex-Worker's Labor Suit Remains Pending -------------------------------------------------------------- A purported class-action lawsuit alleging that Beckman Coulter, Inc. violated certain provisions of the California Labor Code and applicable California Industrial Welfare Commission Wage Orders remains pending, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. On Aug. 16, 2007, a former employee of the company filed a lawsuit in Orange County California Superior Court, entitled "Davila v. Beckman Coulter." The lawsuit asserts claims on the plaintiff's own behalf and also on behalf of a purported class of former and current Beckman Coulter employees. The complaint alleges, among other things, that the company violated certain provisions of the California Labor Code and applicable California Industrial Welfare Commission Wage Orders with respect to meal breaks and rest periods, the payment of compensation for meal breaks and rest periods not taken, the information shown on pay stubs, and certain overtime payments. It also alleges that the company engaged in unfair business practices. The plaintiff is seeking back pay, statutory penalties, and attorneys' fees, and seeks to certify the suit on behalf of the company's non-exempt California employees. Recently, six additional former employees have sought permission from the court to be added as class representatives (Class Action Reporter, Aug. 28, 2008). Beckman Coulter, Inc. -- http://www.beckman.com/-- is a manufacturer of biomedical testing instrument systems, tests and supplies that simplify and automate laboratory processes. It designs, manufactures and sells systems, services, reagents and supplies to clinical and life science laboratories worldwide. CAMBREX CORP: Parties to Appeal Awards in Generic APIs Lawsuit -------------------------------------------------------------- The parties will appeal the awards in the matter, "In Re Lorazepam & Clorazepate Antitrust Litigation," a purported class-action complaint that names Cambrex Corp., as a defendant. Mylan Laboratories, Inc. and Gyma Laboratories of America, Inc., including the company and its subsidiary Profarmaco S.r.l. currently known as Cambrex Profarmaco Milano S.r.l. have been named in purported class action complaints brought by private plaintiffs in various state courts on behalf of purchasers of the active pharmaceutical ingredients ("APIs") in generic form. The complaint make allegations similar to those raised in the Federal Trade Commission complaint and seeking various forms of relief including treble damages. All of these cases have been resolved except for one brought by three health care insurers known as "In Re Lorazepam & Clorazepate Antitrust Litigation." In April 2003, Cambrex reached an agreement with Mylan under which Cambrex would contribute $12,415,000 to the settlement of litigation brought by a class of direct purchasers which has been fully paid as of Sept. 30, 2008. In exchange, Cambrex and Profarmaco received from Mylan a release and full indemnity against future costs or liabilities in related litigation brought by purchasers, as well as potential future claims related to this matter. In February 2008 the District Court, in the In Re Lorazepam & Clorazepate Antitrust Litigation, entered judgment after trial against Mylan, Gyma and Cambrex in the amount of $8,355,000, payable jointly and severally, and also a punitive damage award against each of Mylan, Gyma and Cambrex in the amount of $16,709,000. In October 2008, the District Court ruled that Mylan, Gyma and Cambrex were also subject to a total of approximately $7,000,000 in prejudgment interest. Cambrex expects any payment of the judgment against it to be made by Mylan under the indemnity, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. Cambrex Corp. -- http://www.cambrex.com/-- is a life sciences company engaged primarily in the custom development and manufacture of pharmaceutical ingredients derived from organic chemistry. Products and services are supplied globally to generic drug companies. Cambrex primarily supplies its products and services to pharmaceutical and generic drug companies. The Company's products consist of active pharmaceutical ingredients (APIs) and pharmaceutical intermediates for use in the production of prescription and over-the-counter drug products and other fine custom chemicals derived from organic chemistry. CENTURYTEL INC: Faces La. Overtime Pay Suit by Former Employee -------------------------------------------------------------- Centurytel, Inc., and Centurytel of Missouri LLC are facing a purported class-action lawsuit in Louisiana based on claims by a former CenturyTel worker who alleges that the company has underpaid employees at its call centers, T.J. Greaney of The Columbia Daily Tribune reports. The suit was originally filed on March 20, 2008 in the U.S. District Court for the Western District of Missouri. However, on June 17, 2008, the case was transferred to the U.S. District Court for the Western District of Louisiana in Monroe, La., near CenturyTel's national headquarters in Baton Rouge, La. In general, the suit alleges CenturyTel systematically violated the federal Fair Labor Standards Act by making employees come in before their shifts to prepare to take phone calls and perform unpaid tasks such as booting up computers, logging on to the company network, opening computer programs and reading company memoranda, The Columbia Daily Tribune reported. The suit brought by Arin McLean, a former call center worker, also alleges employees were regularly required to handle phone calls that lasted past the time they were supposed to clock out and were asked to work through lunch hours without compensation. According to the suit, despite these extra time burdens, employees at the call centers were required to fill out time sheets reflecting they only worked 40 hours in a given week. The Columbia Daily Tribune reported that in an answer to the complaint filed on April 2008, CenturyTel attorneys dispute nearly all of the plaintiff's claims, saying, "The company never willfully disregarded the Fair Labor Standards Act; the statute of limitations ran out on some or all of McLean's claims; and any 'omission' of pay occurred in 'good faith' and in conformity with federal guidelines." They also claims that the plaintiff, Ms. McLean, was exempt from overtime pay provisions. However, Ms. McLean's attorneys believe the omissions were not in good faith and say the money amounts to more than just a drop in the bucket, reports The Columbia Daily Tribune. The case names CenturyTel call centers in San Marcos, Texas; Shreveport, La.; Kaprell, Mont.; La Crosse, Wis.; and Monroe, La., as possible locations where these wage practices occurred. It is an "opt-in" lawsuit, meaning employees who believe they were wronged must sign a letter asking to be part of the class, according to The Columbia Daily Tribune. The suit is "McLean v. Centurytel of Missouri, L L C et al., Case No. 3:08-cv-00865-RGJ-MLH ," filed in the U.S. District Court for the Western District of Missouri, Judge Robert G. James, presiding. Representing the plaintiffs are: Matthew Lee Dameron, Esq. (dameron@sshwlaw.com) Stueve Siegel Hanson 460 Nichols Rd Ste 200 Kansas City, MO 64112 Phone: 816-714-7137 Fax: 816-714-7101 - and - Todd C. Werts, Esq. (werts@learandwerts.com) Lear & Werts 910 E. Broadway Ste B Columbia, MO 65201 Phone: 573-875-1991 Fax: 573-875-1985 Representing the defendants are: Donald J. Anzelmo, Esq. (danzelmo@snellingslawfirm.com) Snellings Breard et al P.O. Box 2055 Monroe, LA 71207 Phone: 318-387-8000 Fax: 318-387-8200 - and - Gustavo Edelberto Cuadra, Esq. (gcuadra@littler.com) Littler Mendelson 2001 Ross Ave Ste 1500 Dallas, TX 75201 Phone: 214-880-8100 Fax: 214-880-0181 CEPHALON INC: Lawsuits Over "Actiq" Cancer Drug Remain Pending -------------------------------------------------------------- Cephalon, Inc., continues to face several class-action complaints over its ACTIQ cancer drug, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The company markets and sells ACTIQ, the only appropriate medical use of which is the management of breakthrough cancer in patients with malignancies who are already receiving and who are tolerant to opoid therapy for their underlying persistent cancer pain (Class Action Reporter, Oct. 31, 2007). In other words, the FDA approved ACTIQ for a narrow class of patients: cancer patients whose pain could not be managed with other narcotic based drugs. In late 2007, the company was served with a series of putative class-action complaints filed on behalf of entities that claim to have purchased ACTIQ for uses outside of the product's approved label in non-cancer patients. The complaints allege violations of various state consumer protection laws, as well as the violation of the common law of unjust enrichment, and seek an unspecified amount of money in actual, punitive and treble damages, with interest, and disgorgement of profits. In May 2007, the plaintiffs filed a consolidated and amended complaint that also allege violations of RICO and conspiracy to violate RICO (Class Action Reporter, Aug. 20, 2008). Cephalon, Inc. -- http://www.cephalon.com/-- is an international biopharmaceutical company engaged in the discovery, development and marketing of products to treat human diseases. The company's focuses its efforts in four core therapeutic areas: central nervous system disorders, pain, cancer and addiction. In addition to conducting an active research and development program, it markets six products in the U.S. and number of products in countries throughout Europe. CEPHALON INC: Pursuing Dismissal of PROVIGIL Patent Deal Suits -------------------------------------------------------------- Cephalon, Inc.; Barr Laboratories Inc.; Mylan Pharmaceuticals, Inc.; Teva Pharmaceuticals Inc. USA; and Ranbaxy Laboratories Ltd. continue to pursue the dismissal of lawsuits filed over their PROVIGIL patent case settlements. Initially, certain private parties brought a number of civil antitrust complaints, purportedly filed as class-action suits against the defendants. The suits claim, among other things, that the patent litigation settlements concerning PROVIGIL violate the antitrust laws of the U.S. and certain state laws. The suits have been recently consolidated into one complaint on behalf of a class of direct purchasers of PROVIGIL and a separate complaint on behalf of a class of consumers and other indirect purchasers of PROVIGIL. A separate complaint filed by an indirect purchaser of PROVIGIL was filed in September 2007. The plaintiffs in all of the actions are seeking monetary damages and equitable relief. The company moved to dismiss the class action complaints in November 2006 and those motions are still pending (Class Action Reporter, Aug. 20, 2008). The company reported no further development in the matter in its Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. Cephalon, Inc. -- http://www.cephalon.com/-- is an international biopharmaceutical company engaged in the discovery, development and marketing of products to treat human diseases. The company's focuses its efforts in four core therapeutic areas: central nervous system disorders, pain, cancer and addiction. In addition to conducting an active research and development program, it markets six products in the U.S. and number of products in countries throughout Europe. COUNTRYWIDE HOME: Faces Suit Over Servicemember's Interest Rates ---------------------------------------------------------------- Countrywide Home Loans, Inc. faces a purported class-action suit in New Jersey charging it of failing to grant members of the armed forces the discounted interest rates that they are entitled to by law, Truman Lewis of ConsumerAffairs.com reports. The suit, which seeks class action status, was filed in the U.S. District Court for the District of New Jersey on behalf of U.S. Navy reservist Michael Fourte, who had a $680,000 mortgage with Countrywide when he was called to active duty in September 2006. ConsumerAffairs.com reported that the Soldiers and Sailors Credit Relief Act (SCRA) provides that when a servicemember is called to active duty, his or her lenders are required by law to immediately reduce the interest rate on mortgages, car loans, credit card and other debts to 6 percent when the servicemember provides written notification and a copy of the mobilization orders. However, Mr. Fourte claims that Countrywide ignored his pleas for a reduction in the interest rate on his mortgage and on a home-equity line of credit when he notified them that he had received orders calling him to active duty, as required by the SCRA. Instead, Countrywide allegedly said its policy was to wait until the servicemember had actually entered active duty, reports ConsumerAffairs.com. Mr. Fourte, a recent law school graduate, said he advised Countrywide that its policies were in violation of the law but was ignored. The suit charges that in December 2006, while Mr. Fourte was deployed overseas, Countrywide sent him a letter contesting his claim that he was on active duty. Mr. Fourte said he provided the documentation but in February 2007, Countrywide increased the interest rate on his mortgage to 8.25 percent, according to ConsumerAffairs.com. The suit is "Fourte v. Country Wide Home Loans, Inc., Case No. 2:07-cv-01363-pgs-es," filed in the U.S. District Court for the District of New Jersey, Judge Peter G. Sheridan, presiding. Representing the plaintiffs is: Barry J. Gainey, Esq. (bgainey@gaineyandmckenna.com) Gainey & McKenna, Esqs. 666 Godwin Avenue Suite 230 Midland Park, NJ 07432 Phone: (201) 689-9000 Representing the defendant is: William T. Marshall, Jr., Esq. (wmarshall@zeklaw.com) Zeichner Ellman & Krause LLP 103 Eisenhower Parkway Roseland, NJ 07068 Phone: (973) 618-9100 ICAHN ENTERPRISES: Still Faces Lawsuit Over Sale of NEGI in Del. ---------------------------------------------------------------- Icahn Enterprises, L.P., continues defending a purported stockholder derivative and class-action lawsuit, styled "Andrew T. Berger v. Icahn Enterprises LP, et al., Case No. 3522-VCS," according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit was filed in the Delaware Court of Chancery against National Energy Group, Inc., as a nominal defendant, as well as against Icahn Enterprises L.P., and various individuals, including one of Icahn Enterprises' current directors. Icahn Enterprises indirectly beneficially own 50.1% of NEGI's outstanding common stock. The suit alleges, among other things, that certain of NEGI's current and former officers and directors breached their fiduciary duties to NEGI and its stockholders in connection with NEGI's previously announced Nov. 21, 2006 sale to NEG Oil & Gas, LLC, or NEG Oil & Gas, of NEGI's former unconsolidated non- controlling 50% limited liability company interest in NEG Holding, LLC, as a result of the exercise by NEG Oil & Gas of its contractual redemption option under the operating agreement governing NEG Holding (Class Action Reporter, Sept. 26, 2008). Since the redemption of NEGI's former interest in NEG Holding, NEGI has had no business operations and its principal assets consist of its cash and short-term investment balances, which currently aggregate approximately $47.8 million. On March 14, 2008, the stockholders voted to approve the liquidation and dissolution of NEGI. NEGI filed a Form 15 with the SEC on March 26, 2008 deregistering its securities under the Exchange Act. As a result, NEGI's status as a public company has been suspended. No cash distributions will be made to NEGI's stockholders until the NEGI board determines that NEGI has paid, or made adequate provision for the payment of, its liabilities and obligations, including any liabilities relating to the lawsuit. Icahn Enterprises L.P. -- http://www.icahnenterprises.com/-- formerly American Real Estate Partners, L.P. is a holding company owning subsidiaries engaged in the operating businesses, which includes Investment Management, Metals, Real Estate and Home Fashion. KINDER MORGAN: Natural Gas Purchasers' Suit Dismissed Last Feb. --------------------------------------------------------------- The lawsuit styled, "Weldon Johnson and Guy Sparks, individually and as Representative of Others Similarly Situated v. Centerpoint Energy, Inc. et. al., No. 04-327-2," was dismissed in its entirety last Feb. 29, 2008, according to Kinder Morgan Energy Partners, L.P.'s Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. On Oct. 8, 2004, plaintiffs filed the lawsuit in the Circuit Court, Miller County Arkansas, against numerous defendants including Kinder Morgan Texas Pipeline L.P.; Kinder Morgan Energy Partners, L.P.; Kinder Morgan G.P., Inc.; KM Texas Pipeline, L.P.; Kinder Morgan Texas Pipeline G.P., Inc.; Kinder Morgan Tejas Pipeline G.P., Inc.; Kinder Morgan Tejas Pipeline, L.P.; Gulf Energy Marketing, LLC; Tejas Gas, LLC; and MidCon Corp. (the "Kinder Morgan defendants"). The complaint purports to bring a class action on behalf of those who purchased natural gas from the CenterPoint defendants from Oct. 1, 1994 to the date of class certification. The complaint alleges that CenterPoint Energy, Inc., by and through its affiliates, has artificially inflated the price charged to residential consumers for natural gas that it allegedly purchased from the non-CenterPoint defendants, including the Kinder Morgan defendants. The complaint further alleges that in exchange for CenterPoint's purchase of such natural gas at above market prices, the non- CenterPoint defendants, including the Kinder Morgan defendants, sell natural gas to CenterPoint's non-regulated affiliates at prices substantially below market, which in turn sells such natural gas to commercial and industrial consumers and gas marketers at market price. The complaint purports to assert claims for fraud, unlawful enrichment and civil conspiracy against all of the defendants, and seeks relief in the form of actual, exemplary and punitive damages, interest, and attorneys' fees. On June 8, 2007, the Arkansas Supreme Court held that the Arkansas Public Service Commission has exclusive jurisdiction over any Arkansas plaintiffs' claims that consumers were overcharged for gas in Arkansas and mandated that any such claims be dismissed from this lawsuit. On Feb. 14, 2008, the Arkansas Supreme Court clarified its previously issued order and mandated that the trial court dismiss the lawsuit in its entirety. On Feb. 29, 2008, the trial court dismissed the case in its entirety. The APSC has initiated an investigation into the allegations set forth in the plaintiffs' complaint. Houston-based Kinder Morgan Energy Partners, L.P. owns or operates approximately 26,000 miles of pipelines and 150 terminals. The company's pipelines transport more than two million barrels per day of gasoline and other petroleum products, and up to seven billion cubic feet per day of natural gas. The company operates through four segments: Products Pipelines, Natural Gas Pipelines, CO2 and Terminals. KINDER MORGAN: Ruling on Royalty Interests Suit Entered in Oct. --------------------------------------------------------------- The Eighth Judicial District Court, Union County New Mexico, on Oct. 16, 2008, entered judgment on the jury verdict in the case captioned J. Casper Heimann, Pecos Slope Royalty Trust and Rio Petro LTD, individually and on behalf of all other private royalty and overriding royalty owners in the Bravo Dome Carbon Dioxide Unit, New Mexico similarly situated v. Kinder Morgan CO2 Company, L.P., No. 04-26-CL. Kinder Morgan CO2 is a subsidiary of Kinder Morgan Energy Partners LP. The case involves a purported class action against Kinder Morgan CO2 alleging that it has failed to pay the full royalty and overriding royalty on the true and proper settlement value of compressed carbon dioxide produced from the Bravo Dome Unit during the period beginning Jan. 1, 2000. The complaint purports to assert claims for violation of the New Mexico Unfair Practices Act, constructive fraud, breach of contract and of the covenant of good faith and fair dealing, breach of the implied covenant to market, and claims for an accounting, unjust enrichment, and injunctive relief. The purported class is comprised of current and former owners, during the period January 2000 to the present, who have private property royalty interests burdening the oil and gas leases held by the defendant, excluding the Commissioner of Public Lands, the United States of America, and those private royalty interests that are not unitized as part of the Bravo Dome Unit. The plaintiffs allege that they were members of a class previously certified as a class action by the United States District Court for the District of New Mexico in the matter, "Doris Feerer, et al. v. Amoco Production Company, et al., USDC N.M. Civ. No. 95-0012 (Feerer Class Action)." The plaintiffs allege that Kinder Morgan CO2's method of paying royalty interests is contrary to the settlement of the Feerer Class Action. Kinder Morgan CO2 filed a motion to compel arbitration of this matter pursuant to the arbitration provisions contained in the Feerer Class Action settlement agreement, which motion was denied. Kinder Morgan CO2 appealed this decision to the New Mexico Court of Appeals, which affirmed the decision of the trial court. The New Mexico Supreme Court granted further review in October 2006, and after hearing oral argument, the New Mexico Supreme Court quashed its prior order granting review. In August 2007, Kinder Morgan CO2 filed a petition for writ of certiorari with the United States Supreme Court seeking further review. The Petition was denied in December 2007. The case was tried in the trial court in September 2008. The plaintiffs sought $6.8 million in actual damages as well as punitive damages. The jury returned a verdict finding that Kinder Morgan did not breach the settlement agreement and did not breach the claimed duty to market carbon dioxide. The jury also found that Kinder Morgan breached a duty of good faith and fair dealing and found compensatory damages of $0.3 million and punitive damages of $1.2 million. On Oct. 16, 2008, the trial court entered judgment on the verdict, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. Houston-based Kinder Morgan Energy Partners, L.P. owns or operates approximately 26,000 miles of pipelines and 150 terminals. The company's pipelines transport more than two million barrels per day of gasoline and other petroleum products, and up to seven billion cubic feet per day of natural gas. The company operates through four segments: Products Pipelines, Natural Gas Pipelines, CO2 and Terminals. KINETIC CONCEPTS: Merger Suit Deal Still Pending Final Approval --------------------------------------------------------------- The settlement in a purported class-action lawsuit over a merger agreement between Kinetic Concepts, Inc. and LifeCell Corp. remain pending final court approval. On April 14, 2008, a purported stockholders' class-action complaint was filed by a stockholder of LifeCell in the Chancery Division of the Superior Court of New Jersey in Somerset County, naming LifeCell, its directors and KCI as defendants. The complaint alleged causes of action against the defendants for breach of fiduciary duties in connection with the proposed acquisition of LifeCell by KCI. The complaint sought an injunction prohibiting the consummation of this transaction. On May 9, 2008, the parties executed a memorandum of understanding, pursuant to which the case will be resolved. The MOU resolves the allegations by the plaintiffs against the defendants in connection with the proposed acquisition, and includes no admission of wrongdoing. Under the terms of the MOU, LifeCell filed amended disclosures with the U.S. Securities and Exchange Commission on May 9, 2008, regarding the Offer and the Merger. The settlement outlined in the MOU is subject to, among other things, final court approval and a final judgment by the court dismissing the action with prejudice on the merits (Class Action Reporter, Sept. 12, 2008). The company reported no further development in the matter in its Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. Kinetic Concepts, Inc. -- http://www.kci1.com/-- is a global medical technology company that manages advanced wound care and therapeutic surfaces. The company designs, manufactures, markets and services a range of products, which include advanced wound healing and tissue repair; pulmonary care and post cardiac arrest complications in the intensive care unit (ICU); bariatric care, and wound treatment and prevention. The advanced wound care systems incorporate the V.A.C. Therapy technology. Its therapeutic surfaces, including specialty hospital beds, mattress replacement systems and overlays, are designed to address pulmonary complications associated with immobility. KCI has an infrastructure designed to meet the specific needs of medical professionals and patients across all healthcare settings, including acute care hospitals, extended care organizations and patients' homes, both in the U.S. and abroad. LEAR CORP: In Talks Over Final Settlement of ERISA Suit in Mich. ---------------------------------------------------------------- The parties in a consolidated securities fraud class-action suit against Lear Corp. are negotiationg the terms of the full settlement agreement, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 27, 2008 A former Lear employee filed the purported class-action suit in April 2006 before the U.S. District Court for the Eastern District of Michigan against the company, certain members of its board of directors, members of its Employee Benefits Committee, and certain members of its human resources personnel. The suit alleges violations of the Employment Retirement Income Security Act with respect to the company's retirement savings plans for salaried and hourly employees. In the second quarter of 2006, the company was served with three additional purported class action ERISA lawsuits, each of which contained similar allegations against it, the members of its Board, members of its EBC and certain members of its senior management and its human resources personnel. The court subsequently consolidated the four lawsuits as "In re: Lear Corp. ERISA Litigation." The plaintiffs filed a consolidated complaint, which alleges breaches of fiduciary duties substantially similar to those alleged in the four individually filed lawsuits. The consolidated complaint continued to name the same defendants, but added certain other current and former members of the EBC. The consolidated complaint generally alleges that the defendants breached their fiduciary duties to plan participants in connection with the administration of Lear's retirement savings plans for salaried and hourly employees. The fiduciary duty claims are largely based on allegations of breaches of the fiduciary duties of prudence and loyalty and of over-concentration of plan assets in the company's common stock. The plaintiffs purport to bring these claims on behalf of the plans and all persons who were participants in or beneficiaries of the plans from Oct. 21, 2004, to the present and seek to recover losses allegedly suffered by the plans. The complaints do not specify the amount of damages sought. During the fourth quarter of 2006, the defendants asked to have all defendants and all counts in the consolidated complaint dismissed. The court denied this dismissal motion during the second quarter of 2007. On Aug. 8, 2007, the court ordered that discovery be completed by April 30, 2008. During the first quarter of 2008, the parties exchanged written discovery requests, the defendants filed with the court a motion to compel the plaintiffs to provide more complete discovery responses, which was granted in part and denied in part, and the plaintiffs filed their motion for class certification. In mid-April 2008, the parties entered into an agreement to stay all matters pending mediation. The mediation took place on May 12, 2008, but has not resulted in a settlement to date. The defendants took the named plaintiffs' depositions in June 2008. Discovery closed on June 23, 2008, and the defendants filed their opposition to the plaintiffs' motion for class certification on July 7, 2008. The plaintiffs have requested additional time for discovery, and the court has not yet ruled on that request (Class Action Reporter, Aug. 15, 2008). On Sept. 25, 2008, the parties informed the court that they had reached a settlement in principle. The parties currently are negotiating the terms of the full settlement agreement and class notification, court approval and other related filings. The suit is "Malloy v. Lear Corp., et al., Case No. 5:06-cv- 11735-JCO-VMM," filed in the U.S. District Court for the Eastern District of Michigan, Judge John Corbett O'Meara presiding. Representing the plaintiffs is: Stephen F. Wasinger, Esq. (sfw@sfwlaw.com) Stephen F. Wasinger, PLC 32121 Woodward Avenue 300 Balmoral Centre Royal Oak, MI 48073-0999 Phone: 248-554-6306 Representing the defendant is: Thomas G. McNeill, Esq. (TMcNeill@dickinsonwright.com) Dickinson Wright 500 Woodward Avenue, Suite 4000 Detroit, MI 48226-3425 Phone: 313-223-3500 LEAR CORP: No Appeal Filed on Junked Del. Stockholders' Lawsuit --------------------------------------------------------------- The plaintiffs in a consolidated class-action lawsuit, which sought to block billionaire investor Carl Icahn's acquisition of Lear Corp., did not appeal the Delaware Court of Chancery's dismissal of the fourth amended complaint, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 27, 2008. Previously, the company agreed to a $2.31-billion buyout offer from the Icahn-controlled American Real Estate Partners LP. The transaction involves Mr. Icahn paying $36 per share for the Lear shares he does not already own. Between Feb. 9 and Feb. 21, 2007, certain stockholders filed three purported class-action lawsuits before the Delaware Court of Chancery against the company, certain members of its board of directors, and American Real Estate Partners and certain of its affiliates. These lawsuits were then consolidated into a single action. The amended complaint in the consolidated suit generally alleged that the Agreement and Plan of Merger among lear and AREP Car Holdings Corp. and AREP Car Acquisition Corp. unfairly limited the process of selling the company and that certain members of the company's Board of Directors breached their fiduciary duties in connection with the Merger Agreement and acted with conflicts of interest in approving the Merger Agreement. The amended complaint in the consolidated action further alleged that Lear's preliminary and definitive proxy statements for the Merger Agreement were misleading and incomplete, and that Lear's payments to AREP as a result of the termination of the Merger Agreement constituted unjust enrichment and waste. On Feb. 23, 2007, the plaintiffs filed a motion for expedited proceedings and a motion to preliminarily enjoin the transactions contemplated by the Merger Agreement. On March 27, 2007, the plaintiffs filed yet another amended complaint. In June 2007, the Delaware court issued an order entering a limited injunction of Lear's planned shareholder vote on the Merger Agreement until the company made supplemental proxy disclosure. That supplemental proxy disclosure was made and approved by the Delaware court on June 18, 2007. Accordingly, the Delaware court granted the plaintiffs' motion for leave to file a second amended complaint. On Sept. 11, 2007, the plaintiffs filed a third amended complaint. On Jan. 30, 2008, the Delaware court granted the plaintiffs' motion for leave to file a fourth amended complaint, leaving only derivative claims against the Lear directors and AREP based on the payment by Lear to AREP of a termination fee pursuant to the Merger Agreement. The plaintiffs were also granted leave to file an interim petition for an award of fees and expenses related to the supplemental proxy disclosure. On April 14, 2008, the defendants filed a motion to dismiss the remaining claims in the fourth amended complaint. A hearing on both the defendants' dismissal motion and the plaintiffs' interim fee petition was held on June 3, 2008. The Delaware court granted the plaintiffs' interim fee petition, awarding the plaintiffs $800,000 in attorneys' fees and expenses (Class Action Reporter, Aug. 15, 2008). On Sept. 2, 2008, the Delaware court issued a written ruling granting the defendants' motion to dismiss. The plaintiffs had until Oct. 2, 2008, to appeal that ruling and did not file a notice of appeal. Lear Corp. -- http://www.lear.com/-- is a worldwide supplier of automotive interior systems based on net sales. It supplies automotive manufacturers with complete automotive seat systems, electrical distribution systems and various electronic products. Lear also supplies automotive interior components and systems, including instrument panels and cockpit systems, headliners and overhead systems, door panels and flooring and acoustic systems. MBIA INC: Faces Consolidated Amended Securities Fraud Lawsuit ------------------------------------------------------------- MBIA, Inc., defends a consolidated amended class-action lawsuit filed in the U.S. District Court for the Southern District of New York, alleging violations of the federal securities laws. On Jan. 11, 2008, a putative shareholder class action suit, captioned "Schmalz v. MBIA, Inc. et al., No. 08-C V-264," was filed against the company and certain of its officers. The plaintiff seeks to represent a class of shareholders who purchased MBIA stock between Jan. 30, 2007, and Jan. 9, 2008. The complaint alleges that the defendants violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934. It also alleges that the defendants issued false and misleading statements with respect to the Company's exposure to losses stemming from the Company's insurance of CDOs and RMBS, including its exposure to so-called "CDO-squared" securities, which allegedly caused the company's stock to trade at inflated prices. The defendants' deadline to respond to the complaint has been extended pending the resolution of lead counsel status, motions for consolidation, and the possible filing of an amended or consolidated complaint. On Feb. 25 and March 6, 2008, two more putative shareholder class action suits were filed against MBIA and certain of its current and former officers. These suits are entitled, "Teamsters Local 807 Labor Management Pension Fund v. MBIA Inc. et al., No. 08-CV-1845," and "Kosseff v. MBIA, Inc. et al., No. 08-CV-2362." Both were filed before the U.S. District Court for the Southern District of New York, alleging violations of the federal securities laws. The allegations of the Teamsters and the Kosseff complaints are substantially similar to the allegations in the Schmalz complaint, except that the class period in the Teamsters complaint runs from Oct. 26, 2006, to Jan. 9, 2008. The Schmalz, Teamsters and Kosseff complaints were consolidated in the U.S. District Court for the Southern District of New York as "In re MBIA, Inc., Securities Litigation, Case No. 7:08-cv- 00264-KMK." (Class Action Reporter, Sept. 15, 2008). On Oct. 17, 2008, a consolidated amended class action complaint was filed in "In re MBIA, Inc. Securities Litigation" alleging violations of the federal securities laws. The Teachers' Retirement System of Oklahoma, as lead plaintiff, seeks to represent a class of shareholders who purchased MBIA stock between July 2, 2007 and Jan. 9, 2008. The amended complaint alleges that defendants MBIA Inc., Gary C. Dunton and C. Edward Chaplin violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Among other things, the complaint alleges that defendants issued false and misleading statements with respect to the Company's exposure to losses stemming from the Company's insurance of CDOs containing RMBS, specifically its exposure to so-called "CDO-squared" securities, which allegedly caused the Company's stock to trade at inflated prices. Defendants' answers or motions to dismiss were due on Dec. 15, 2008, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit is "In re MBIA, Inc., Securities Litigation, Case No. 7:08-cv-00264-KMK," filed in the U.S. District Court for the Southern District of New York, Judge Kenneth M. Karas, presiding. Representing the plaintiffs are: Kurt Michael Hunciker, Esq. (kurt@blbglaw.com) Bernstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas New York, NY 10019 Phone: 212-554-1400 Fax: 212-554-1444 Marvin Lawrence Frank, Esq. (mfrank@murrayfrank.com) Murray, Frank & Sailer, LLP 275 Madison Avenue, Ste. 801 New York, NY 10016 Phone: 212-682-1818 Fax: 212-682-1892 - and - David Avi Rosenfeld, Esq. (drosenfeld@csgrr.com) Coughlin, Stoia, Geller, Rudman & Robbins, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 MBIA INC: Ruling on Securities Suit Dismissal Appeal Pending ------------------------------------------------------------ A ruling remains pending on the motion appealing the dismissal of a purported class-action lawsuit entitled "In re MBIA Inc. Securities Litigation, Case No. 05-3514," which was filed in the U.S. District Court for the Southern District of New York. Case Background Initially, several class action complaints were filed in the U.S. District Court for the Southern District of New York against MBIA Inc. and certain of its officers and directors (Class Action Reporter, Sept. 20, 2005). The suits were: -- "Anthony Capone v. MBIA Inc., et al." (Case No. 05 CV 3514) (filed April 4, 2005); -- "Thomas Cassady v. MBIA Inc., et al." (Case No. 05 CV 3730; S.D.N.Y.) (filed April 7, 2005); -- "Todd Simon v. MBIA Inc., et al." (Case No. 05 CV 3636; S.D.N.Y.) (filed April 8, 2005); -- "Mariss Partners, LLP v. MBIA Inc., et al." (Case No. 05 CV 3709; S.D.N.Y) (filed April 11, 2005); and -- "Alan D. Sadowsky and Barbara S. Katvin v. MBIA Inc., et al." (Case No. 05 CV 4150; S.D.N.Y.) (filed April 26, 2005). The suits also named as defendants Joseph W. Brown, the company's chairman and former chief executive officer; Gary C. Dunton, the company's chief executive officer; Nicholas Ferreri, the company's chief financial officer; Neil G. Budnick, a vice president of the company and the company's former chief financial officer; and Douglas C. Hamilton, the company's controller. The plaintiffs in these cases assert claims under Section 10(b)of the U.S. Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act. The plaintiffs in these lawsuits seek to act as representatives for a putative class consisting of purchasers of the company's stock during the period from Aug. 5, 2003, to March 30, 2005. Although the individual lawsuits vary, the allegations include, among other things, violations of the federal securities laws arising out of the company's allegedly false and misleading statements about its financial condition and the defendant's failure "to disclose or indicate" these alleged facts: -- that the company, during the class period, over-leveraged itself, deeply under-reserved against possible credit defaults, and overly exposed to guaranteeing risky structured financings; -- that MBIA accelerated its recognition of current income by classifying many of its upfront guarantee fees as advisory fees taken at closing, rather than accounted for over the life of the bonds insured; -- that MBIA improperly booked a $70 million payment received from Converium Re (then called Zurich Reinsurance North America) in 1998, which at the time was depicted as a loss-reducing reinsurance recovery for MBIA, but was, in substance, a loan; -- that as result, MBIA financial statements were materially overstated by $60 million; -- that MBIA artificially inflated premium income and portfolio credit quality by insuring bonds in the secondary market that were attracting prices lower than their stale credit ratings would dictate; -- that MBIA's low loss ratios resulted from the company's practice to defer recognizing problems rather than providing layers of excess collateral, other underwriting protection, and its self-proclaimed prowess at restructuring; -- that MBIA set forth an illegal scheme of covering the loss, from the failed Allegheny Health, Education and Research Foundation bond issuance, with a retroactive reinsurance policy, giving it a reinsurance recovery of $170 million to cover the present value of the future AHERF interest and principal payments, which resulted in MBIA showing a better than 40% jump in pretax income that year -- $565 million over what the income figure would have been without resort to the reinsurance; -- that MBIA was dumping on Channel Reinsurance Ltd., a Bermuda reinsurer where MBIA owns a 17.4% interest, performing but troubled policies from its existing portfolio, with the provision that it could make up any quality problems later so that MBIA could buy time by getting potential workout loans off its balance sheet in order to make its financial results appear better; and -- that the company lacked adequate internal controls and was therefore unable to ascertain the true financial condition of the company. The plaintiffs allege that, as a result of these misleading statements or omissions, the company's stock traded at artificially inflated prices. These lawsuits seek unspecified compensatory damages in connection with purchases by members of the putative class of the company's stock at such allegedly inflated prices during the class period. On July 25, 2005, the presiding judge issued an order consolidating these five cases into one action under the caption, "In re MBIA Securities Litigation, Case No. 05-cv- 3514," and named as lead plaintiffs in the case: -- the Southwest Carpenters Pension Trust, and -- the City of Pontiac General Employees' Retirement System. The defendants, including the company, filed motions to dismiss the consolidated case on various grounds. On Feb. 13, 2007, the Court granted those motions, and dismissed the lawsuit in its entirety, on the grounds that the claims are barred by the applicable statute of limitations. The Court did not reach the other grounds for dismissal argued by the company and the other defendants. The plaintiffs filed a notice of appeal on March 14, 2007. They have appealed that decision to the U.S. Court of Appeals for the Second Circuit. The plaintiffs argued that the dismissal should be reversed on several grounds (Class Action Reporter, Sept. 15, 2008). The appeal has been fully briefed and is scheduled to be argued on Oct. 31, 2008. The company reported no further development in the matter in its Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit is "In re MBIA Inc. Securities Litigation, Case No. 1:05-cv-03514-LLS," filed in the U.S. District Court for the Southern District of New York, Judge Louis L. Stanton, presiding. Representing the plaintiffs is: Mario Alba, Jr., Esq. (malba@csgrr.com) Coughlin, Stoia, Geller, Rudman & Robbins, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 Representing the defendants are: Steven Klugman, Esq. (sklugman@debevoise.com) Debevoise & Plimpton, LLP 919 Third Avenue New York, NY 10022 Phone: 212-909-6000 Fax: 212-909-6836 - and - Steven Robert Peikin, Esq. (peikins@sullcrom.com) Sullivan & Cromwell, LLP 125 Broad Street New York, NY 10004 Phone: 212-558-7228 Fax: 212-558-3588 RHYTHMS NETCONNECTIONS: April 3 Hearing Set for $17.5M Agreement ---------------------------------------------------------------- The U.S. District Court for the District of Colorado will hold a fairness hearing on April 3, 2009 at 10:00 a.m. for the proposed $17.5 million settlement in the matter, "In re Rhythms Securities Litigation, Civil Action No. 02-cv-35-JLK-CBS." The hearing will be held before the Honorable John L. Kane in Courtroom A802, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294-3589. Case Background The suit involves all persons who purchased the common stock of Rhythms NetConnections, Inc. between January 6, 2000 and April 2, 2001, inclusive. In this lawsuit, Lead Plaintiff asserts that certain former officers and directors of Rhythms NetConnections Inc. (former NASDAQ symbol "RTHM"), during the period between January 6, 2000 and April 2, 2001, made false and/or misleading statements regarding, among others, Rhythms' reported subscriber line count, growth, and financial condition. The company itself is not a named defendant in the action because it filed for bankruptcy protection in August of 2001 (Class Action Reporter, Feb. 27, 2006). For more details, contact: In re Rhythms Securities Litigation c/o The Garden City Group, Inc. Claims Administrator P.O. Box 9327 Dublin, OH 43017-4227 Phone: (800) 495-6949 Web site: http://www.gardencitygroup.com Timothy J. Burke, Esq. (tburke@ssbla.com) Stull, Stull & Brody 10940 Wilshire Boulevard #2300 Los Angeles, CA 90024 Phone: 310-209-2468 Fax: 310-209-2087 - and - Lori G. Feldman, Esq. Milberg LLP One Penn Plaza New York, NY 10119-0165 Phone: (212) 594-5300 Web site: http://www.milberg.com/ VERTEX PHARMACEUTICALS: Seeks Dismissal of Mass. Securities Suit ---------------------------------------------------------------- Vertex Pharmaceuticals, Inc., seeks to dismiss the consolidated and amended securities fraud class-action lawsuit in the U.S. District Court for the District of Massachusetts. Initially, on March 13, 2008, a purported shareholder class- action lawsuit, captioned "Waterford Township Police Fire Retirement System v. Vertex Pharmaceuticals Incorporated, et al.," was filed, naming the company and certain of its officers as defendants. The litigation alleges that the company made material misrepresentations and omissions of material fact in its disclosures leading up to its Nov. 2, 2007 press release immediately preceding the American Association for the Study of Liver Diseases meeting, all in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act and Rule 10(b)(5). On April 18, 2008, a further class action complaint based on the same factual allegations and naming the same defendants, but including further allegations of insider trading violations during the class period by three of the company's officers, was filed before the U.S. District Court for the District of Massachusetts. These complaints were consolidated into a single lawsuit on May 29, 2008. A consolidated and amended complaint was filed on July 21, 2008, and seeks certification as a class action, compensatory damages in an unspecified amount and unspecified equitable or injunctive relief (Class Action Reporter, Sept. 26, 2008). The company filed a motion to dismiss the amended complaint on Sept. 25, 2008. In its Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008, the company says the claims, including the insider trading claims (all of which are based on trades that were made pursuant to plans entered into before the beginning of the class period under Rule 10b5-1), are without merit and intends to contest them vigorously. The suit is "Waterford Township Police & Fire Retirement System v. Vertex Pharmaceuticals Incorporated et al., Case No. 1:08-cv- 10414-RGS," filed in the U.S. District Court for the District of Massachusetts, Judge Richard G. Stearns, presiding. Representing the plaintiffs are: David A. Rosenfeld, Esq. (drosenfeld@csgrr.com) Coughlin Stoia Geller Rudman & Robbins LLP Suite 200, 58 South Service Road Melville, NY 11747 Phone: 631-367-7100 Fax: 631-367-1173 - and - Thomas G. Shapiro, Esq. (tshapiro@shulaw.com) Shapiro Haber & Urmy LLP 53 State Street Boston, MA 02108 Phone: 617-439-3939 Fax: 617-439-0134 Representing the defendants is: John C. Blessington, Esq. (john.blessington@klgates.com) K & L Gates LLP One Lincoln Street State Street Financial Center Boston, MA 02111 Phone: 617-261-3108 Fax: 617 261-3175 WAL-MART STORES: Faces Consumer Suit in Calif. Over DVD Rentals --------------------------------------------------------------- Wal-Mart Stores, Inc., and Netflix, Inc. have been named in a purported consumer class-action lawsuit accusing the two companies of trying to build a monopoly for online DVD rentals, Reuters reports. In a complaint filed on Jan 2, 2008 in the U.S. District Court for the Northern District of California, the plaintiffs, led by San Francisco-based Andrea Resnick. The suit, which seeks class-action status, was filed in the U.S. District Court for the Northern District of California on Jan. 2, 2009, under the caption, "Resnick et al v. Walmart.com USA LLC et al., Case No. 3:09-cv-00002-MEJ." It alleges that the companies unreasonably restrained trade, sending up prices, according to the Reuters report. Named as plaintiffs in the suit are: Andrea Resnick, Gary Bunker, John Haley, Amy Latham, Eric Roslansky and Kevin Simpson. The defendants were Walmart.com USA LLC, Wal-Mart Stores Inc., and Netflix, Inc. The plaintiffs allege that the two companies agreed in 2005 that Wal-Mart would close its online rental business and refer customers to Netflix, which in turn would promote Wal-Mart's DVD movie sales, Reuters reported. The agreement enabled Netflix to maintain monopoly power and led rival Blockbuster, Inc. to raise subscription rental prices, according to the suit. The suit is "Resnick et al v. Walmart.com USA LLC et al., Case No. 3:09-cv-00002-MEJ," filed in the U.S. District Court for the Northern District of California, Judge Maria-Elena James, presiding. Representing the plaintiffs is: Paul Alexander, Esq. (alexanderp@howrey.com) Howrey LLP 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 Phone: (650) 798-3555 New Securities Fraud Cases EMCORE CORP: Holzer Holzer Announces N.M. Securities Suit Filing ---------------------------------------------------------------- ATLANTA, GA, Jan 07, 2009 (MARKET WIRE via COMTEX) -- Holzer Holzer & Fistel, LLC announces that a shareholder class action lawsuit has been filed in the United States District Court for the District of New Mexico against Emcore Corporation ("Emcore" or the "Company") and certain of its officers and directors on behalf of purchasers of Emcore common stock who purchased or sold between June 12, 2007 and March 17, 2008, inclusive (the "Class Period"). The lawsuit alleges the Company violated the Securities Exchange Act of 1934 by making false and misleading statements to the public in its press releases and in its Securities Exchange Commission filings. Specifically, the lawsuit alleges Emcore misrepresented or failed to disclose certain problems with production capacity and its SunCube prototype. The lawsuit further alleges the Company violated GAAP provisions when accounting for the value of the Company's claimed order backlog. For more details, contact: Michael I. Fistel, Jr., Esq., (mfistel@holzerlaw.com) Marshall P. Dees, Esq. (ormdees@holzerlaw.com) Holzer Holzer & Fistel, LLC Phone: (888) 508-6832 Web site: http://www.holzerlaw.com EMCORE CORP: Izard Nobel Announces N.M. Securities Suit Filing -------------------------------------------------------------- HARTFORD, CT, Jan 07, 2009 (MARKET WIRE via COMTEX) -- The law firm of Izard Nobel LLP, which has significant experience representing investors in prosecuting claims of securities fraud, announces that a lawsuit seeking class action status has been filed in the United States District Court for the District of New Mexico on behalf of those who purchased or otherwise acquired the common stock of Emcore Corporation ("Emcore" or the "Company") between June 12, 2007 and March 17, 2008, inclusive (the "Class Period"). The Complaint charges that Emcore and certain of its officers and directors violated federal securities laws by issuing materially false and misleading statements concerning the Company's business and financial condition. Specifically, the Complaint alleges that Emcore's public statements regarding its order backlog were false and misleading because they overstated the value of the order backlog in Emcore's terrestrial solar energy division. Those misstatements and omissions, resulted in an artificially inflated price for Emcore's common stock during the Class Period. On March 18, 2008, the price of Emcore's common stock dropped over 23% on news that Emcore's largest customer, Green and Gold Energy ("GGE"), which accounted for $78 million of Emcore's $86 million backlog in terrestrial solar technology, would not be able to afford those transactions. For more details, contact: Nancy A. Kulesa, Esq. Wayne T. Boulton, Esq. Izard Nobel LLP Phone: (800) 797-5499 e-mail: firm@izardnobel.com Web site: http://www.izardnobel.com HORIZON LINES: Roy Jacobs Announces Del. Securities Suit Filing --------------------------------------------------------------- NEW YORK - (Business Wire) Roy Jacobs & Associates announces that a class action has been commenced in the United States District Court for the District of Delaware on behalf of shareholders who acquired Horizon Lines Inc. ("Horizon" or the "Company" NYSE:HRZ) securities during the period commencing March 2, 2007 and continuing through April 25, 2008 (the "Class Period"). The Complaint charges Horizon and certain of its executive officers with violations of federal securities laws. Horizon is a container shipping and logistics company. The Complaint alleges that defendants misled investors as to Horizon's profitability and artificially inflated its stock price, by entering into improper price-fixing agreements with competitors, in violation of federal antitrust laws. On April 17, 2008, Horizon shocked investors when the Company revealed it was the subject of an antitrust investigation being conducted by the United States Department of Justice (the "DOJ") Antitrust Division. On this news, the Company's shares declined $3.53 per share, or 19.36 percent, to close on April 17, 2008, at $14.70 per share, on unusually heavy trading volume. Then, on April 25, 2008, the Company reported Horizon's financial results for the 2008 fiscal first quarter ended March 23, 2008, and revised downward the Company's earnings guidance for the 2008 fiscal year. This news caused the Company's shares to decline $3.83 per share, or 23.10 percent, to close on April 25, 2008, at $11.25 per share, on unusually heavy trading volume. Subsequently, on October 1, 2008, the DOJ issued a press release announcing that four shipping executives -- including three Horizon employees -- had agreed to plead guilty for their roles in a conspiracy to eliminate competition and fix shipping charges for shipment to Puerto Rico. For more details, contact: Roy L. Jacobs, Esq. Roy Jacobs & Associates Phone: 1-888-884-4490 e-mail: rjacobs@jacobsclasslaw.com INTEGRAL SYSTEMS: Dyer & Berens Announces Securities Suit Filing ---------------------------------------------------------------- DENVER, Jan. 7, 2009 (GLOBE NEWSWIRE) -- Dyer & Berens LLP today announced that a class action lawsuit has been filed in the United States District Court for the District of Maryland, on behalf of purchasers of Integral Systems, Inc. ("Integral Systems" or the "Company") (Nasdaq:ISYS) securities between April 28, 2008 and December 10, 2008, inclusive (the "Class Period"). The complaint charges Integral Systems and four of its senior officers with violations of the Securities Exchange Act of 1934 for making and/or allowing false and misleading statements concerning the Company's business, operations and prospects. Specifically, defendants failed to disclose that: -- Integral Systems improperly recognized revenue; -- as a result, the Company misstated its financial results during the Class Period; -- the Company's financial results were not prepared in accordance with GAAP; -- the Company lacked adequate internal and financial controls; and -- as a result of the above, the Company's financial statements were materially false and misleading at all relevant times. On December 11, 2008, Integral Systems shocked investors when it revealed that its unaudited financial statements for the interim periods ended December 31, 2007, March 30, 2008 and June 30, 2008 should no longer be relied upon due to an error in the accounting treatment for certain transactions with respect to the timing of the recognition of revenue between periods. Integral Systems further disclosed that, as a result, the Company would restate its previously filed financial statements for those interim quarterly periods in fiscal year 2008. The Company estimated that the net impact of the adjustments for the first three quarters of 2008 would result in a decrease of approximately $10 million in revenues, a decrease of approximately $3 million in gross profit, a decrease of approximately $4 million in operating income, and a decrease of approximately $0.13 in earnings per share. In reaction to this news, shares of Integral Systems declined $6.38 per share, or more than 28%, to close on December 11, 2008 at $15.92 per share, on unusually heavy trading volume. For more details, contact: Jeffrey A. Berens, Esq. (jeff@dyerberens.com) 682 Grant Street Denver, CO 80203 Dyer & Berens LLP (888) 300-3362 (303) 861-1764 Web site: http://www.DyerBerens.com SATYAM COMPUTER: Izard Nobel Announces Securities Suit Filing ------------------------------------------------------------- The law firm of Izard Nobel LLP, which has significant experience representing investors in prosecuting claims of securities fraud, announces that a lawsuit seeking class action status has been filed in the United States District Court for the Southern District of New York on behalf of those who purchased the American Depository Receipts ("ADRs") of Satyam Computer Services Ltd. (NYSE: SAY) ("Satyam" or the "Company") between January 6, 2004 and January 6, 2009, inclusive (the "Class Period"). The Complaint charges that Satyam and certain of its executives violated federal securities laws by issuing materially false and misleading statements. On January 7, 2009, the Company's CEO B. Ramalinga Raju sent a letter to the Satyam Board of Directors and the Securities & Exchange Board of India acknowledging a "multi- year" fraud in which Satyam's financial accounts and disclosures were systematically falsified. According to the letter, Raju admitted to having inflated the amount of cash on the Company's balance sheet by nearly $1 billion, incurring liability of $253 million on funds arranged by him personally, and overstating Satyam's September 2008 quarterly revenues by 76% and profits by 97%. As a result of this disclosure, the Company's ADRs fell $8.42, or 90%, prior to the opening of the New York Stock Exchange, which has suspended trading in Satyam's ADRs. For more details, contact: Nancy A. Kulesa, Esq. Wayne T. Boulton, Esq. Izard Nobel LLP Phone: (800) 797-5499 e-mail: firm@izardnobel.com Web site: http://www.izardnobel.com SATYAM COMPUTER: Vianale & Vianale Files Securities Fraud Suit -------------------------------------------------------------- BOCA RATON, Fla., Jan 7, 2009 (GlobeNewswire via COMTEX) -- The law firm of Vianale & Vianale LLP announces that it filed a class action lawsuit on January 7, 2009 on behalf of purchasers of the American Depository Shares of Satyam Computer Services Ltd. ("Satyam" or the "Company") during the period January 6, 2004 through January 6, 2009 (the "Class Period"). The action is pending in Manhattan federal court, Case No. 09-CV-00093. The complaint alleges that the Company and its top executives violated the Section 10(b) and 20(a) of the Securities Exchange Act of 1934 by issuing false and misleading financial statements. On January 7, 2009, the Company's CEO B. Ramalinga Raju sent a letter to the Satyam Board of Directors and the Securities & Exchange Board of India acknowledging a "multi- year" fraud in which Satyam's financial accounts and disclosures were systematically falsified. According to the letter, Raju admitted to having inflated the amount of cash on the Company's balance sheet by nearly $1 billion, incurring liability of $253 million on funds arranged by him personally, and overstating Satyam's September 2008 quarterly revenues by 76% and profits by 97%. As a result of this disclosure pre-market activity in the stock indicates a loss of roughly 90% of its value. For more information, contact: Kenneth J. Vianale, Esq. (kvianale@vianalelaw.com) Julie Prag Vianale. Esq. Vianale & Vianale LLP 2499 Glades Road, Suite 112 Boca Raton, FL 33431 Phone: 888-657-9960 (Toll Free) 561-392-4750 Asbestos Alerts ASBESTOS LITIGATION: 13 New Cases Filed in Madison on Dec. 22-26 ---------------------------------------------------------------- During the week of Dec. 22, 2008 through Dec. 26, 2008, a total of 13 new asbestos-related lawsuits were filed in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. These claims are: -- In Case No. 08-L-1209, Cordelia Ann Brooks of Georgia claims mesothelioma on behalf of her recently deceased husband, James Brooks. The suit says Mr. Brooks worked from 1963 until 2005 as a draftsman, machinist, contract mechanical worker, heating installer, ventilation installer, air conditioning installer, repairman, and maintenance technician at various locations. Robert Phillips, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Brooks. -- In Case No. 08-L-1207, Waintheus L. Brown of Texas claims mesothelioma on behalf of his recently deceased mother, Betty Jean Brown. According to the suit, Mrs. Brown worked from 1971 until 1999 as a practical nurse, certified nurse's aid, and janitor at various locations. Robert Phillips, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. Brown. -- In Case No. 08-L-1215, Gary and Debra Crosby of Ohio claim Mr. Crosby developed mesothelioma from his work as a salesman, engineer, supervisor, specialist, training coordinator and machinist from 1974 until now. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Crosbys. -- In Case No. 08-L-1208, Jerri Fitzwater of Indiana claims lung cancer on behalf of her recently deceased father, Billie A. Berlin. According to the suit, Mr. Berlin worked from 1956 until 1996 as a material handler and fork truck driver at various locations. Robert Phillips, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Fitzwater. -- In Case No. 08-L-1211, Karen Jeppesen of Wisconsin claims mesothelioma on behalf of her recently deceased husband, Gerald Jeppesen. According to the suit, Mr. Jeppesen worked from 1967 until 1996 as a maintenance worker and systems operations technician at various locations. Robert Phillips, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mrs. Jeppesen. -- In Case No. 08-L-1210, Jacqueline Jones of Missouri, who worked in clerical positions from 1973 through this year, claims mesothelioma. Ms. Jones was also exposed to asbestos fibers through her first ex-husband who worked as a laborer at Anheuser-Busch and would carry the fibers home with him on his clothing, according to the complaint. Brian J. Cooke, Esq., and Drew Sealey, Esq., of SimmonsCooper in East Alton, Ill., represent Ms. Jones. -- In Case No. 08-L-1212, Larry and Louise McDaniels claim Mr. McDaniels developed mesothelioma from his work as a machinist mate, equipment attendant, power plant helper and operator, powerhouse operator and a shade tree mechanic from the 1950s until now. Randy L. Gori, Esq., of Gori, Julian and Associates in Alton, Ill., represents the McDanielses. W. Mark Lanier, Esq., Patrick N. Haines, Esq., C. Taylor Campbell, Esq., W. Casey Harris, Esq., and J.D. McMullen, Esq., of The Lanier Law Firm in Houston served of counsel. -- In Case No. 08-L-1203, Donald McDonald, a worker from 1960 until 2007, claims lung cancer. Richard L. Saville Jr., Esq., Robert J. Evola, Esq., Ethan A. Flint, Esq., and David J. Page, Esq., of Saville, Evola and Flint in Alton, Ill., represent Mr. McDonald. -- In Case No. 08-L-1206, Raymond Penrod III of Nevada claims mesothelioma on behalf of his recently deceased father, Raymond Penrod II. According to the suit, Mr. Penrod II worked as a laborer from 1962 until 1964 at various locations. Robert Phillips, Esq., and Perry J. Browder, Esq., of SimmonsCooper in East Alton, Ill., represent Mr. Penrod III. -- In Case No. 08-L-1216, Joseph and Patsy Stahl of Wisconsin claim Mr. Stahl developed mesothelioma from his work as a military police officer and sheet metal worker from 1951 until 1997. Randy L. Gori, Esq., and Barry Julian, Esq., of Gori, Julian and Associates in Alton, Ill., represent the Stahls. -- In Case No. 08-L-1219, Doit Walsh of Illinois, a construction carpenter from 1955 to 1985 at various locations throughout Illinois, claims mesothelioma. T. Barton French Jr., Esq., of French and Mudd in St. Louis represent Mr. Walsh. -- In Case No. 08-L-1201, Lillian H. Yeomans of Florida claims mesothelioma on behalf of her deceased husband, William E. Yeomans. According to the suit, Mr. Yeomans served in the U.S. Navy from 1932 until 1936 and worked as a blower, scheduler, courier, carpenter, remodeler, builder, finishing worker and finishing carpenter from 1936 until at least 1954. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., represent Mrs. Yeomans. ASBESTOS LITIGATION: Wash. University Dorm Repairs Cost $650,000 ---------------------------------------------------------------- The presence of asbestos at a dorm in Western Washington University in Bellingham, Wash., has driven repairs at the dorm to cost US$650,000, The Bellingham Herald reports. A few students returning to the University after the holiday break are facing the prospect of having to salvage and then move their water-damaged belongings. Thirty-two students have been displaced because of a flood at the Gamma Hall dormitory caused by a radiator pipe that broke and flooded 16 rooms on four floors. The US$650,000 price tag is large because the 1962 building had asbestos in the walls and sheetrock, meaning the entire building had to be gutted. Asbestos is considered safe until it is cut into. Crews usually would cut away and replace the water-damaged wall sections, but because of the asbestos, all the walls and floors have to be replaced. Crews hope to have the damage repaired by the end of January 2009. ASBESTOS LITIGATION: Hazard Concerns Close St. Louis Post Office ---------------------------------------------------------------- On Jan. 2, 2009, a U.S. Post Office near West Port Plaza in Maryland Heights, Mo., closed after a St. Louis County health officer suspected that asbestos was released during an adjoining office's renovation, STLtoday.com reports. Craig LeFebvre, a spokesman for the county Health Department, said workers renovating an address next door to the post office on Congressional had discovered asbestos. Mr. LeFebvre said a temporary partition could not seal the area, so the inspector asked that the post office be closed. He said postal officials and the building owner were cooperating. Loretta Tolliver, a regional manager of customer relations, said the Postal Service had hired a specialist to examine the air quality. Ms. Tolliver said the Postal Service will reopen the post office when safety can be verified. In the meantime, she urged customers to use the post office at 331 North New Ballas Road in Creve Coeur. ASBESTOS LITIGATION: MACK Group Completes Cleanup in N.J. Boiler ---------------------------------------------------------------- The MACK Group, LLC completed the remediation and cleanup of an asbestos contaminated boiler room in New Jersey, according to a MACK Group press release dated Jan. 3, 2009. MACK was selected to perform the project based on their expert level of asbestos contractor services, their professional reputation, their attention to safety and schedule as well as their economical approach to asbestos removal services. Prior to asbestos abatement activities, a 10-day notification was submitted. In addition, the area was properly secured to prevent unauthorized entry and all necessary containment measures were installed. The boiler room was located at a parking garage in Northern New Jersey and had various amounts of asbestos containing materials (ACM) including insulation and gaskets. Due to poor maintenance, the ACM had become friable and contaminated debris throughout the room. MACK's task was to carefully remove and abate all ACM in an expeditious manner. Proper wetting, removal and handling techniques were employed to safely remove the asbestos containing materials. Wetting of all friable ACM and bagging the ACM using poly-wrapping was conducted under negative air conditions. The transportation of asbestos and ACM was in accordance with N.J.A.C. 7:26-3.5(d) and by registered New Jersey solid waste vehicles. ACM was then properly disposed at a licensed landfill. The project was a complete success as it was accomplished on schedule, without injury or incident and within the client's budget. The Mack Group, LLC operates nationwide providing various contracting and consulting services. These services include asbestos abatement, asbestos consulting, asbestos removal, concrete surface preparation and floor covering removal services. COMPANY PROFILE: The MACK Group, LLC 1500 Kings Hwy. N., Ste 209 Cherry Hill, N.J. 08034 Tel: 973-759-5000 Fax: 973-759-5554 Web: http://www.mackgrp.com ASBESTOS LITIGATION: Homebase & HSE Advise Tradesmen on Asbestos ---------------------------------------------------------------- The Health and Safety Executive (HSE) and Homebase, a home improvement retailer, joined forces to warn tradesmen of asbestos' dangers, abeceder reports. The Homebase team, which installs bathrooms and kitchens in the Wakefield area, supports the HSE's Asbestos: The Hidden Killer campaign. The campaign was launched in October 2008 and aims to reduce the rising death rate from asbestos-related disease by educating those in the trade about the danger that asbestos presents to them. Figures issued by the HSE on Jan. 3, 2009 revealed that across the country as a whole 20 tradesmen die from asbestos-related diseases every week, and this number is set to increase. Recently released HSE figures for all occupations show that more than 2,564 people died of mesothelioma in Yorkshire and the Humber between 1981 and 2005. About 1,275 of these deaths were in West Yorkshire and 155 of them in Wakefield alone. HSE's Head of Operations for Yorkshire and Humber Gill Spurrier said, "We need to educate tradesmen about how asbestos and its dangers are relevant to them. We want them to change the way they work so that they don't put their lives at risk." Mr. Spurrier added, "Exposure to asbestos is the biggest single cause of work-related deaths, with around 4,000 people a year dying from asbestos-related disease. The overall number of deaths is rising because a large number of workers who have already been exposed to asbestos dust around 40 years ago will go on to develop mesothelioma, a terminal cancer or other asbestos related diseases." Annually, 1,000 of the 4,000 now dying are tradesmen. ASBESTOS LITIGATION: Bergeron Action v. Chevron Filed on Dec. 22 ---------------------------------------------------------------- An asbestos lawsuit against Chevron and Gulf Oil by Gliese Bergeron's four sons was filed, on Dec. 22, 2008, in Jefferson County District Court, The Southeast Texas Record reports. Kyle, Dan, Ted, and Mark Bergeron claim that the mesothelioma with which their father was diagnosed was wrongfully caused. They claim their father died on Oct. 31, 2008. In the suit, the plaintiffs say their father worked in 1942 and from 1946 until 1983 as a pipefitter, operator, truck driver, insulator and maintenance planner at Chevron and Gulf Oil. Mr. Bergeron's sons seek unspecified exemplary and punitive damages, plus interest at the legal rate, costs and other relief to which they may be entitled. Aaryn K. Giblin, Esq. of Provost and Umphrey in Beaumont, Tex., represent the Bergerons. Case No. B182-900 has been assigned to Judge Gary Sanderson, 60th District Court. ASBESTOS LITIGATION: Remodeling at Gonzales County Jail Ongoing ---------------------------------------------------------------- Work, including asbestos-related, on the remodeling of the jail (built in 1976) in Gonzales County, Tex., is ongoing, The Gonzales Inquirer reports. Gonzales County Judge David Bird said that workers continue to make progress on the building. One of the setbacks came early in the process when it was discovered there was asbestos in the building, in which an asbestos management company had to be hired as well as a cleanup company. Total cost for the asbestos abatement was around US$25,000 and it set the project back a full week. The asbestos abatement was focused on the drywall and the glue used to hold down the old tiles. Judge Bird said it was "just around that time" in the 1970s when asbestos came to the forefront. Once the asbestos was removed, work then began to do a complete remodel of the inside of the building. Two new bathrooms will be added in the building. Everything in the bathrooms had to be removed because of the asbestos. The work on the jail, which closed in 2004 when the new jail was constructed on Sarah DeWitt Drive, is being supervised by T.R. Stulting, a county employee and an independent contractor. Commissioners Dell Whiddon and Donnie Brzozowski are supervising the project. All four county commissioners are providing workers to help with the project. The commission set aside US$75,000 for the remodeling project. However, Judge Bird said because of the asbestos, it is likely that number will be higher when it is complete. ASBESTOS LITIGATION: Hazard Detected in 15 Tweed Public Schools ---------------------------------------------------------------- According to a New South Wales Department of Education and Training (DET) report, asbestos is present in 15 public schools and Technical and Further Education (TAFE) institutions in Tweed, Australia, the Tweed Daily News reports. These schools are: -- Tweed River High School, -- Tweed Heads Public School, -- Tyalgum Public School, -- Murwillumbah Public School, -- Murwillumbah East Public School, -- Murwillumbah High School, -- Murwillumbah Campus (TAFE), -- Kingscliff High School, -- Kingscliff Public School, -- Uki Public School, -- Burringbar Public School, -- Crystal Creek Public School, -- Murwillumbah South Infants School, -- Cudgen Public School, and -- Banora Point Public School. In the DET report, more than 2,200 schools in NSW were found with some form of asbestos. Murwillumbah South Infants and Crystal Creek schools have been given specific site management plans to deal with their asbestos. The plan for Crystal Creek Public School details a toilet block with potential buried asbestos cement fragments. For Murwillumbah South Infants School, the sub-floor of the office has disused fibrous cement with a low-risk and control priority. The registers for individual schools reveal the location of any known asbestos-containing materials on school grounds. NSW DET deputy director-general Alastair Hunter said the vast majority of materials containing asbestos are safe. He said no school students or staff members are in danger because the low- level asbestos poses no health risk if left undisturbed and in a sound condition. The asbestos was found mostly in ceilings, walls and floors. The asbestos registers are available at all Tweed public schools or online at www.det.nsw.edu.au. ASBESTOS LITIGATION: Hazard Found in 2 of A.B. Davis Classrooms ---------------------------------------------------------------- Asbestos has been discovered in two classrooms for special education at the A.B. Davis Middle School in Mount Vernon, N.Y., LoHud.com reports. The classrooms were scheduled to be closed on Jan. 5, 2009 due to damage caused by a leaking heating vent coil on Dec. 24, 2008, a spokeswoman for the Mount Vernon School District said on Jan. 4, 2009. The water leak, discovered on Dec. 25, 2008, began in the guidance suite on the second floor and dripped through the floor into the classrooms, passing through fireproofing material containing asbestos. Niche Analysis conducted air quality. The district hired Infinity Environmental Services to secure the areas, which will remain sealed until the firm completes the abatement and more testing. ASBESTOS LITIGATION: Israel Ministry Drafts New Regulations Bill ---------------------------------------------------------------- Israel's Environmental Protection Ministry advocates a new bill that will formalize regulations to prevent exposure to asbestos, HAARETZ.com reports. The new bill was drafted after Environmental Protection Ministry officials realized that they had partial authority to deal with asbestos, which was widely used in the past for insulation. The bill provides that the use of asbestos will no longer be permitted in Israel and that within up to 10 years; the use of all crushable asbestos will be halted. Moreover, the import of asbestos and its byproducts will be prohibited. A memorandum on the proposed bill provides a gradual reduction in the still permitted uses of asbestos and its immediate removal from any public structures and industrial enterprises. The bill also proposes to establish a fund to deal with asbestos stockpiles. Eitanit, the company that up until a decade ago manufactured asbestos at its Nahariya plant, will finance half of the fund. Once it becomes law, the bill will allow for stiff fines of hundreds of thousands of shekels to be imposed on those responsible for asbestos damage, and even assigning criminal responsibility and issuing punishments of up to two years in jail to those who continue to import, manufacture or use the substance. According to the Environmental Protection Ministry's assessment, hundreds of millions of square meters of built-up areas contain asbestos compounds. ASBESTOS LITIGATION: Runcorn Resident Seeks Payout for Exposure ---------------------------------------------------------------- Lester Lipke, of Runcorn, England, seeks compensation for his workplace exposure to asbestos from Workcover Queensland, as two of his employees have since ceased operations, the Southern Star reports. The 72-year-old Mr. Lipke has gone public about his asbestos- related cancer in a one-man campaign to force action over the lethal substance. Mr. Lipke began work with the Williams Motor Company at Nambour and later moved to Mt. Isa to work for Holden distributor Barkly Motors, with whom he remained until the late 1970s. He regularly changed brake and clutch parts lined with asbestos. Mr. Lipke said, "We'd remove the brake drums and blow the (asbestos) dust out of them. I can't blame anyone because Barkly Motors didn't know it was a problem. No one knew. If it was a safety issue, there's no doubt they would have taken steps to prevent it (employees inhaling asbestos fibres)." Williams Motor and Barkly Motors have since closed down. Mr. Lipke's lawyer Roger Singh, of Shine Lawyers, said he had overseen up to 25 asbestos-related compensation claims over the past six years, and they were becoming more frequent. They mainly involved people who worked in the plumbing, building, power, and ship-building industries, but would soon include those who had incorrectly handled asbestos-laced fibro sheeting while completing do-it-yourself home renovations. Mr. Singh said, "The estimate is that asbestos illnesses and cancers are going to start to peak around 2020." ASBESTOS LITIGATION: Legal Malpractice Case v. Simmons Pending ---------------------------------------------------------------- A legal malpractice case against John Simmons, Esq., in which the case involves asbestos, is ongoing in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. Mr. Simmons, who faces trial on a widow's malpractice claim, boasts that he obtained US$100,000 from W.R. Grace & Co. after the statute of limitations ran out, plus US$214,000 from other businesses despite "sketchy product identification." Mr. Simmons offered these examples in hopes of winning summary judgment and escaping a trial that Madison County Circuit Judge Barbara Crowder has set for Feb. 9, 2009. She held a hearing on summary judgment Dec. 16, 2008 and continued it to Jan. 30, 2009. The Lakin Law Firm represents plaintiff Judy Buckles, who in 2006 sued SimmonsCooper and the firm where he used to work, Hopkins Goldenberg. Mrs. Buckles hired Mr. Simmons in 1999, when he worked at Hopkins Goldenberg, to represent the estate of her late husband Charles Buckles, she claims. When Mr. Simmons left Hopkins Goldenberg, he retained her case and others. Roy Dripps of the Lakin firm alleges in Mrs. Buckles' complaint that Hopkins Goldenberg entered into secret agreements with asbestos defendants to classify claims of clients and settle them "in accordance with predetermined figures of money for each such classification." The complaint stated that Hopkins Goldenberg settled claims "for amounts of money which were manifestly inadequate and which bore no reasonable relationship to the actual loss sustained by the clients." The complaint added that Hopkins Goldenberg "fabricated, exaggerated, or otherwise manipulated the bookkeeping" and wrongly ascribed advanced costs to Mrs. Buckles, and that Hopkins Goldenberg settled groups of claims without obtaining consent of each client. Mr. Simmons failed to provide timely, aggressive and zealous representation to Mrs. Buckles, according to Mr. Dripps. For Mr. Simmons, A.J. Bronsky of St. Louis moved in 2007 for summary judgment. Mr. Bronsky attached an affidavit. Mr. Simmons wrote that he negotiated settlements with A. W. Chesterton, Durabla, GAF and Georgia Pacific, amounting to US$214,000, with "sketchy product identification." Mr. Bronsky noted that Mr. Simmons continues seeking bankruptcy payouts for Mrs. Buckles. ASBESTOS LITIGATION: Appeals Court Upholds Ruling in SCS Action ---------------------------------------------------------------- The Court of Appeals of Wisconsin upheld the Circuit Court of Milwaukee County's ruling, which entered an adverse judgment against SCS of Wisconsin, Inc., in a suit over asbestos removal filed by the State of Wisconsin. The case is styled State of Wisconsin, Plaintiff-Respondent v. T.J. McQuay, Inc., Defendant, SCS of Wisconsin, Inc., Defendant- Appellant. Judges Patricia S. Curley, Ralph Adam Fine, and Joan F. Kessler entered judgment in Case No. 2007AP2449 on Nov. 25, 2008. SCS contracted with Patrick Cudahy, Inc. to perform demolition work on Buildings L and LX at the Cudahy facility. It began its demolition work in April 2004. SCS's contract with Cudahy specifically excluded all asbestos abatement work. To perform the asbestos abatement work, Cudahy entered into a separate contract with T.J. McQuay, Inc. Saji Villoth, an asbestos specialist with the Department of Natural Resources at the time of the events that led to this lawsuit, testified that he conducted an inspection at the Cudahy site around 2:30 p.m. on May 17, 2004. Mr. Villoth saw that walls and sections of the roof on Building L of the Cudahy complex had been demolished. He observed what he believed was asbestos-containing material. No McQuay crew members were present at the time of Mr. Villoth's inspection on May 17, 2004. However, SCS employees were working at the site. Mr. Villoth said that SCS's crane operator, Roy Kaisler, told him that the transite came from the fourth floor of Building L. McQuay's crew had concluded its work for the day. Craig Deutekowski, McQuay's supervisor for portions of the Cudahy job, was later called to the site to meet with Mr. Villoth on May 17, 2004. Mr. Villoth testified that contrary to the applicable regulations, regulated asbestos-containing material was not removed prior to the demolition work at the Cudahy site. The State filed suit, alleging that SCS and McQuay did not comply with the administrative regulations. The State sought forfeitures for McQuay's and SCS's violations. McQuay did not file an answer, and the State obtained a default judgment against it in the amount of US$33,912.50. SCS denied the State's allegations against it, argued that it was not responsible for the asbestos abatement work, and demanded a jury trial. The trial court granted the State's motion to strike SCS's demand for a jury trial based on its conclusion that SCS failed to show the action met either of the two prongs required by Village Food. Following a court trial, judgment was entered against SCS in the amount of US$58,867.50, roughly US$25,000 in excess of the amount of the default judgment against McQuay. SCS appealed. ASBESTOS LITIGATION: Split Rulings Issued in Dunesland's Lawsuit ---------------------------------------------------------------- The U.S. District Court, Northern District of Illinois, Eastern Division, issued split rulings in a case involving asbestos filed by the Illinois Dunesland Preservation Society against the Illinois Department of Natural Resources and other individuals. The case is styled Illinois Dunesland Preservation Society, an Illinois Corporation, Plaintiff v. The Illinois Department of Natural Resources, et al., Defendants. District Judge Elaine E. Bucklo entered judgment in Case No. 06 C 2880 on Nov. 25, 2008. In May 2006, Dunesland sued the IDNR and other individuals, claiming that they violated Dunesland's First and Fourteenth Amendment rights by refusing to display, in display racks located in certain areas of Illinois Beach State Park, an informational pamphlet Dunesland prepared on how to avoid asbestos exposure at the Park. Dunesland's four-count complaint sought a declaratory judgment (Count I); injunctive relief (Counts II and III); and monetary damages (Count IV). In August 2006, Defendants moved to dismiss Dunesland's complaint. The District Court granted defendants' motion in part, dismissing IDNR from the case and dismissing Dunesland's claims for damages and declaratory relief against the individual defendants in their official capacities. The District Court denied the remainder of defendants' motion. In the cross-motions for summary judgment, Dunesland sought partial summary judgment on counts II-IV of its complaint, while defendants sought summary judgment on all counts. ASBESTOS LITIGATION: Stay in Reaser Case in Fla. Still in Effect ---------------------------------------------------------------- The U.S. District Court, Middle District of Florida, Tampa Division ruled that the stay in the asbestos case styled Robert Reaser and Christine Reaser, Plaintiffs v. A.W. Chesterton, Co., et al., Defendants, was in effect. District Judge Virginia M. Hernandez Covington entered judgment in Case No. 8:08-cv-1323-T-33TGW on Nov. 25, 2008. This case involved asbestos. On Sept. 19, 2008, the U.S. Judicial Panel on Multidistrict Litigation issued a conditional transfer order ("CTO") covering this case. The CTO indicated, "It appears that the actions on this conditional transfer order involve questions of fact that are common to the actions previously transferred to the Eastern District of Pennsylvania and assigned to Judge [James T.] Giles." At least one of the parties to this action had opposed transfer of this case for consolidated proceedings, and the Panel was in the process of determining whether it was appropriate to transfer this case. The District Court stayed the matter until such time as the Panel has dispositively ruled as to whether this case will be transferred to the consolidated multidistrict litigation in the U.S. District Court for the Eastern District of Pennsylvania. ASBESTOS LITIGATION: Safeguard's Motion Denied in Perkins Action ---------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of Fairfield, denied Safeguard Scientifics, Inc.'s motion for summary judgment in an asbestos-related lawsuit filed by Tyler Perkins. The case is styled Janet Longo et al. (Tyler Perkins) v. General Electric Co. et al. (Safeguard Scientifics, Inc.). Judge David W. Skolnick entered judgment in Case No. CV044002257 on Nov. 13, 2008. Mr. Perkins was a pipefitter from on or about 1961 to 1962, a pipefitter inspector from 1964 to 1970 at Electric Boat Corporation in Groton, Conn., and a radiographer from on or about 1964 to 1970 at the Electric Boat facility in Quincy, Mass. He returned to Electric Boat, Groton in 1977 and again in 1980 as an inspector where he has remained to the present, a total of 40 years at Electric Boat. As a pipefitter, Mr. Perkins would cut and carry pipe to where it would be in place for welders to "tack in hangers." He recalled working around asbestos-containing products, specifically "gaskets" while working on the Lafayette. It was apparent that Calvin Hopkins was working aboard the Lafayette, Alexander Hamilton and the Nathan Hale with Mr. Perkins and places the defendant's asbestos-containing product Baco stuffing on board these submarines while Mr. Perkins was working on them. As "Baco asbestos packing" is a product of the defendant and was being used to "insulate and pack and seal wiring and cable into Baco stuffing tubes," while Mr. Perkins was aboard these subs, a material issue of fact existed as to whether this defendant contributed to creating an atmosphere containing asbestos which proved deleterious to Mr. Perkins' health while he worked. The court found that material issues of fact existed for the trier of fact to determine in this case. Accordingly, Safeguard Scientifics' motion for summary judgment as against Mr. Perkins was denied. ASBESTOS LITIGATION: Safeguard's Motion in Oliver Action Denied ---------------------------------------------------------------- The Superior Court of Connecticut, Judicial District of Fairfield, denied Safeguard Scientifics, Inc.'s motion for summary judgment in an asbestos-related lawsuit filed by Roosevelt Oliver. The case is styled Janet Longo et al. (Roosevelt Oliver) v. General Electric Co. et al. (Safeguard Scientifics, Inc.) State Trial Referee David W. Skolnick entered judgment in Case No. CV044002257S on Nov. 18, 2008. Mr. Oliver worked as a welder at Electric Boat Corporation from on or about 1961 to 1987, and as a shipboard escort from 1987 to 1995, in all about 34 years. He worked on the new construction and overhaul of submarines in all their compartments, and in the vicinity of many other tradesmen, including electricians, cleaners, shipfitters, pipefitters, grinders and machinists. Mr. Oliver worked next to cleaners as they used air hoses to clean the boats and flush out asbestos debris produced by other trades in the course of their work. Although Mr. Oliver was unable to identify any boats that he worked on by name or number, he stated that he worked on many of the boats that were undergoing construction or repair at Electric Boat during his years of working there. Affidavits made it clear that Mr. Oliver worked on submarines that contained the defendant's asbestos products. "Baco asbestos packing" is an asbestos-containing product sold and marketed by the defendant to Electric Boat. The presence of asbestos and the fact that other trades were working with this product while Mr. Oliver was present aboard these submarines, a material issue of fact existed as to whether this defendant contributed to creating an atmosphere containing asbestos particles which proved deleterious to Mr. Oliver's health while he worked. The Court found that material issues of fact existed for the trier of fact to determine in this case. Accordingly, Safeguard Scientifics, Inc.'s motion for summary judgment as against Mr. Oliver was denied. Embry & Neusner in Groton, Conn., represented Janet Longo and the other plaintiffs. ASBESTOS LITIGATION: SC Reverses Ruling in Westinghouse's Favor ---------------------------------------------------------------- The Supreme Court of South Carolina reversed the Hampton County Circuit Court's ruling, which ruled in favor of Thomas E. Skinner, in an asbestos-related lawsuit filed against Westinghouse Electric Corporation. The matter was remanded. The case is styled Thomas E. Skinner, Respondent v. Westinghouse Electric Corporation, Appellant. Judges John Kittredge, Jean Hoefer Toal, John H. Waller Jr., Costa M. Pleicones, and Donald W. Beatty entered judgment in Case No. 26560 on Nov. 3, 2008. Mr. Skinner filed this workers' compensation claim on June 7, 2004, for pulmonary problems and related injuries allegedly caused by inhalation of asbestos dust and toxic fumes while employed with Westinghouse. A single commissioner awarded Mr. Skinner a lump sum of US$119,159.66 and the full amount of causally-related medical bills, past and future. Westinghouse appealed to the commission. The commission affirmed the order and award of the single commissioner on July 18, 2006. Westinghouse filed a notice of appeal with the circuit court on Aug. 2, 2006. Westinghouse did not serve the commission until Oct. 16, 2006, more than 30 days after the filing of the appeal in circuit court. The circuit court held the service on the commission was untimely and stripped the circuit court of subject matter jurisdiction to hear the appeal. The circuit court dismissed the appeal. The Supreme Court held that circuit court erred in holding that it lacked subject matter jurisdiction as a result of Westinghouse's failure to serve the Workers' Compensation Commission within 30 days of the filing of the appeal. Donald L. Van Riper, Esq., of Collins & Lacy in Greenville, S.C., represented Westinghouse Electric Corporation. Jeffrey T. Eddy, Esq., of Charleston, S.C., represented Thomas E. Skinner. ASBESTOS LITIGATION: Tex. SC Affirms GlobalSantaFe Mandamus Bid ---------------------------------------------------------------- The Supreme Court of Texas granted GlobalSantaFe Corporation's motion for mandamus relief in an asbestos-related lawsuit filed by John B. Lopez. The case is styled In re GlobalSantaFe Corporation, Relator. Justice Don Willett entered judgment in Case No. 07-0040 on Dec. 5, 2008. In May 2003, Mr. Lopez sued GSF under the Jones Act, alleging injuries from exposure to asbestos and silica while employed by GSF aboard a vessel. He filed his Jones Act suit in state court in the 55th district court of Harris County. Two years later, Chapter 90 of the Civil Practice and Remedies Code became effective, adopting unique procedures for personal- injury actions alleging injuries from silica and asbestos. Although Mr. Lopez alleged injuries from both asbestos and silica, GSF filed a notice of transfer to the silica MDL pretrial court, and this mandamus action concerned that court's decision to remand the case to the trial court where it was originally filed. Contending that Mr. Lopez did not file a report complying with Chapter 90, GSF filed on Dec. 2, 2005, a notice of transfer to the silica MDL pretrial court. Mr. Lopez responded, arguing Chapter 90 was preempted by the Jones Act and urging the MDL pretrial court to remand the case to the trial court. The MDL pretrial court agreed. GSF sought mandamus relief in the court of appeals, which also sided with Mr. Lopez by holding that "chapter 90 is preempted by federal law." GSF now sought mandamus relief in the Supreme Court directing the MDL pretrial court to vacate its remand order. The Supreme Court conditionally granted the writ of mandamus and directed the MDL pretrial court to vacate its remand order, and to conduct further proceedings in a manner consistent with this opinion. John B. Hall, Esq., Christopher Benjamin Dove, Esq., and David R. Walker, Esq., represented Global Sante Fe Corporation. John Milton Black, Esq., Ian P. Cloud, Esq., and Justin Ryan Goodman, Esq., represented John B. Lopez. ASBESTOS LITIGATION: Cleanup at Waycross School to Cost $111,000 ---------------------------------------------------------------- Asbestos cleanup at the old Bailey Street School in Waycross, Ga., is estimated at US$111,000, The Florida Times-Union reports. The City plans to demolish the old Bailey Street School for a renewal project that could cost it about US$200,000. At a Jan. 5, 2009 work session, City Manager Pete Pyrzenski presented an assessment by Spectrum Enterprises Inc. of Woodstock, Ga., that laid out the costs: US$111,000 for asbestos removal alone or US$200,000 with demolition included. Mr. Pyrzenski said, "We hope to get that building demolished and open up the area to a pubic-private partnership that would build new low-income residential homes." City commissioners want to declare an urban redevelopment area on five acres surrounding the school. The designation would allow the city to apply for state housing grants. Mr. Pyrzenski said the city could obtain a loan to finance the school demolition and apply for a state grant to recoup the cost. The city would know by September 2009 if it qualified for the grant, said Waycross Community Improvement Director Jonathan Lynn. Waycross has a court order to tear down the school because it is dilapidated. City Attorney Scott Crowley said that Trustees of the Bailey Street School own the property. Mr. Pyrzenski said the city hopes to negotiate for ownership, but at the very least, property owners could be responsible for the asbestos removal and demolition costs. Commissioner Norman Davis said if the school poses a health hazard, he wants to see it brought down as quickly as possible. ASBESTOS LITIGATION: Thomas' Suit v. 58 Companies Filed in Texas ---------------------------------------------------------------- Denise Clements, on Dec. 29, 2008, filed an asbestos-related lawsuit on behalf of Lola Thomas against 58 defendant corporations in Jefferson County District Court, Tex., The Southeast Texas Record reports. The 58 defendants in Ms. Clements' suit include A.O. Smith Corp., A.W. Chesterton Co., American Optical Corp., Bechtel Corp., Westinghouse, Chevron, Exxon Mobil Corporation, Fluor Maintenance, Foster Wheeler Ltd., General Electric Company, Georgia-Pacific LLC, Ingersoll-Rand Company Limited, Kelly-Moore Paint Company Inc., Lockheed Martin Corporation, 3M Company, Uniroyal, Goodrich Tire Co., Union Carbide Corporation, and Zurn Industries. The suit alleges Mrs. Thomas was exposed through her husband's employment as a mechanic and laborer where he was required to work with and around asbestos containing materials. The suit alleges Mr. Thomas' exposure "caused him to indirectly expose his wife, Lola Thomas, in which she suffered from asbestos-related diseases and other industrial dust diseases caused by breathing the asbestos-containing products." Ms. Clements now seeks damages under Pustejovsky v. Rapid- American Corp., the 2000 Texas Supreme Court ruling that a victim may file an additional suit for asbestos-related cancer if he develops a second illness from the same cause at a later date. The complaint states that Mrs. Thomas already sued or settled claims for non-malignant asbestos-related disease with one or more defendants. Ms. Clements seeks unspecified exemplary and actual damages, plus pre- and post-judgment interest, costs and other relief to which she may be entitled. Bryan O. Blevins Jr., Esq., and Aaryn K. Giblin, Esq., of Provost and Umphrey in Beaumont, Tex., represent Ms. Clements. Case No. B182-947 has been assigned to Judge Gary Sanderson of the 60th District Court. ASBESTOS LITIGATION: All Clear Warns Public on Bldg. Materials ---------------------------------------------------------------- All Clear Environmental, a hazardous materials removal and demolition company, seeks to warn the public about hidden asbestos in construction that occurred after the U.S. Environmental Protection Agency ban in 1989, according to an All Clear press release dated Jan. 5, 2009. Shaheen Ahmed said, "Despite the Asbestos Ban and Phase Out Rule, many properties built after that year still incorporate dangerous levels of asbestos. This is primarily due to the use of building materials that were fabricated abroad. Every property, regardless of age, needs to be inspected when renovation or demolition occurs." The South Coast Air Quality Management District (SCAQMD), the governing board for pollution control in Southern California, has also recently recognized this hazard. Mr. Ahmed and business partner Larry Enos have seen the dangers firsthand. All Clear's staff has over 100 years of combined experience in handling hazardous materials, abatement, and remediation. As a licensed, bonded and insured Environmental Specialty Contractor, the staff has worked diligently to make Southern California's schools, workplaces and homes safer. ASBESTOS LITIGATION: Huyton Local Files Suit v. Knowsley Council ---------------------------------------------------------------- An unnamed 48-year-old terminally-ill mother from Huyton, England, filed an asbestos-related lawsuit against Knowsley Council, claiming that exposure to asbestos at the Bowring Comprehensive school gave her mesothelioma, the Liverpool Echo reports. The woman was a pupil at the Western Avenue school between 1972 and 1978. The school had an open plan layout. However, when noise from other classes affected the quality of teaching and learning, the classrooms were enclosed using materials which allegedly produced asbestos dust. The woman's Liverpool-based solicitors, John Pickering and Partners LLP, will tell a judge asbestos dust allegedly released during classroom renovation in the 1970s was to blame for the cancer she was diagnosed with in spring 2007. The case against the Council has been lodged with Liverpool District Registry in Vernon Street and is expected to be heard early in 2009. Ruth Davies, of John Pickering, said, "I can confirm we will be representing our client and seeking damages against Knowsley council for personal injury." The case comes after the Echo published details of a council report confirming the GBP150 million renovations of Knowsley's secondary schools by 2010. ASBESTOS LITIGATION: Kempthorne's Room Renovation Costs $236,000 ---------------------------------------------------------------- The renovation of outgoing U.S. Interior Secretary Dirk Kempthorne's office bathroom in Washington, D.C., including asbestos and lead paint removal, handicapped access, a refrigerator and shower, and wood paneling to match the rest of the office, cost US$236,000, The Olympian reports. A Department of Interior spokeswoman says the work, which came in US$26,000 under the approved estimate, was overseen by the General Services Administration to make sure it was "appropriate and costs were reasonable." The project is part of a US$243 million remodel of the 72-year- old Main Interior Building, to be completed in 2013. Senator Ken Salazar, D-Colo., is President-elect Barack Obama choice as the new Interior secretary. ASBESTOS LITIGATION: Australian Sailors Still Exposed to Hazards ---------------------------------------------------------------- Years after asbestos was banned, Australian sailors continue to be exposed to asbestos, as the Royal Australian Navy still uses asbestos-contaminated parts, The Age reports. A report seen by Australian Defence Force chiefs imply that thousands of sailors and civilian contractors are likely to have come into contact with asbestos. The ADF could face fines of more than AUD100 million for breaches of work safety laws and the cost could soar by millions more dollars if sailors, as predicted, contract lung cancer or other diseases as a result of their exposure. Reports seen by The Age show nearly 250,000 parts held in naval stores are suspected of containing asbestos. Hundreds of those parts, including gaskets, hoses and even compressed asbestos sheeting, are still being issued to ships and bases across the country in breach of state and federal laws. The report said, "It can be assumed there have been over 350 issues of 775 asbestos items to operational units and ship repair organizations since Dec. 31, 2003 (when asbestos use was prohibited)." Thousands of parts still sit on shelves at the ADF's main warehouse at Moorebank, in Sydney, many of them unmarked as containing asbestos, and still being sent to ships and bases. A Defence spokesman told The Age the ADF did not accept the finding that "thousands" had been exposed and said the potential fines figure of AUD100 million was "purely speculative." However, he conceded that asbestos parts had been issued in breach of bans. Defence Minister Joel Fitzgibbon has condemned as "unacceptable" the ADF's handling of the problem. The Defence Materiel Organisation warned, "To date 45 items have been confirmed as containing asbestos. All units, ships and establishments are to check if stockholdings are held for the items listed...the asbestos eradication program is ongoing and there is likely to be additional candidates identified." A ban on the use of and import of asbestos-containing materials in Australia came into force on Jan. 1, 2004. However, the ADF requested and won an exemption to continue using chrysotile asbestos parts until 2007 on two strict provisos: that the parts were "mission-critical" - meaning their absence would ground equipment and jeopardize a mission - and that no non-asbestos replacement parts could be found. On December 2008, the exemption was controversially extended until 2010 by the Government's Safety and Compensation Council, despite fierce expert opposition, and even grave reservations from within the ADF. The Australian Council of Trade Unions said every other industry in Australia had rid itself of asbestos in the required time and that the ADF should not be afforded special treatment. The Asbestos Diseases Society of Victoria said the exemption could result in the deaths of between 10 and 30 defense employees. ASBESTOS LITIGATION: Mass. Parent Demands Safe Cleanup at School ---------------------------------------------------------------- Michelle L. Cormier, a mother of seven-year-old twins who are pupils of the South Street Elementary School in Fitchburg, Mass., said that she will push school officials to ensure that future maintenance projects are done safely at the school, The Worcester Telegram reports. On Jan. 5, 2009, Mrs. Cormier told the School Committee she thought more attention should be given to an incident, in which 300 students and 30 staff members were inside the school when asbestos tiles were improperly removed before Thanksgiving. Principal William Terrill said he was unaware the maintenance project was going on that day. When the district's maintenance supervisor learned of the potential of an asbestos release at the school, he notified the Board of Health right away, Mr. Terrill added. The tiles were found to contain less than two percent asbestos, and air quality and swipe tests done several days later showed there was no asbestos release from the tiles in the school, Mr. Terrill said. After the incident, environmental specialist Brian R. McGrath from Woodard and Curran in Dedham walked through areas of the school known to contain asbestos. He was accompanied by state officials and Joanne L. Soczek, the environmental health and safety officer at Fitchburg State College. Ms. Soczek also provided custodial staff with training regarding removal and containment of hazardous materials. The Department of Environmental Protection and Division of Occupational Safety was also notified. ASBESTOS LITIGATION: 639 Actions Filed in Madison County in 2008 ---------------------------------------------------------------- The Madison County Circuit Clerk's Office said that 639 asbestos-related lawsuits were filed in 2008, compared with 455 in 2007, The Telegraph reports. The number compares to the peak of 953 in 2003, when tort reform groups started an effort to reduce the number of suits filed in Madison County, which business groups call a "plaintiffs' paradise." Circuit Judge Dan Stack, who oversees the docket for asbestos cases, said informal discussions with lawyers on both sides of asbestos suits reveal that the increase nationwide, and in Madison County, may be the result of greater awareness of the health problems associated with the substance. Lawyers have said that the medical profession also has linked asbestos to new types of cancer - namely, esophageal and lung cancers. Previously, asbestos was linked to mesothelioma. Many suits are also filed by people with asbestosis. Others merely exposed to the substance but not yet showing symptoms also have filed suits to ensure that they receive medical monitoring of any potential asbestos-related health problems. The increase in asbestos-related suits caught the eye of the American Tort Reform Foundation, a business-backed lobbying and public awareness group. ASBESTOS LITIGATION: Hazard at Adams Elementary Found on Jan. 5 ---------------------------------------------------------------- Work crews, on Jan. 5, 2009, found asbestos discovered asbestos at the Adams Elementary School in Oklahoma City, Okla., The Oklahoman reports. Administrators made arrangements for students to go to class at Roosevelt Middle School after state Labor Department officials determined the building was unsafe, said Kathleen Kennedy, school district spokeswoman. Parents can drop off students at Adams and the district will bus them to Roosevelt. ASBESTOS LITIGATION: Chesapeake School Fail at Air Quality Tests ---------------------------------------------------------------- Air quality tests found elevated levels of asbestos on Jan. 8, 2009 at the Crestwood Middle School in Chesapeake, Va., The Virginian-Pilot reports. Students were evacuated from the school on Jan. 6, 2009 after one of six air quality tests performed at the school came back too high, said school spokesman Tom Cupitt. The school's 620 students were taken to Oscar Smith High School where they spent the rest of the day in the auditorium. Built in 1954, Crestwood was undergoing the first major renovations to its air-conditioning and heating system when workers discovered pipes covered with asbestos underneath some of the ceiling tiles, Mr. Cupitt said. Many older buildings have pipes covered with asbestos, but the pipes usually lie undisturbed, and the asbestos fibers do not get into the air. Once the pipes were uncovered, the division was required to call in a company to perform air-quality tests, Mr. Cupitt added. ASBESTOS LITIGATION: Montana Officials Call for Asbestos Funding ---------------------------------------------------------------- Certain Montana asbestos-related agencies are appealing to Governor Brian Schweitzer to provide state funding to help keep their agencies afloat through 2009, The Western News reports. Gov. Brian Schweitzer's office is hearing about the issue's importance to Lincoln County through a recent letter and a pending community petition. Tanis Hernandez, outreach coordinator with the Center for Asbestos Related Disease (CARD), said, "If the state doesn't step up to the plate, these agencies will end. The more people the governor knows are impacted by this funding, the better off the community will be in getting the money allocated to asbestos-related health care." At a Dec. 11, 2008 Community Advisory Group (CAG) meeting, Lincoln County representatives Chas Vincent and Jerry Bennett said it is of vital importance that the governor hear residents' concerns. Brad Black, Lincoln County health officer said, "What it is about is our public health. We are asking the governor to incorporate this money into the budget, emphasizing the critical need of the health of Libby residents." On Dec. 23, 2008, CAG sent a letter to Gov. Schweitzer requesting that US$3.25 million be included into the biennium budget to continue asbestos-related health funding. The Libby Asbestos Medical Plan (LAMP) was originally funded by a US$2.75 million settlement between the Environmental Protection Agency and W. R. Grace & Co. over access issues to the mine site. In 2007, Mr. Vincent pushed a US$2 million asbestos funding measure through the house, which was eventually signed by the governor to the tune of US$1.5 million. Gov. Schweitzer came to Libby and presented the check to the County Board of Health to aid county agencies. During the visit, Gov. Schweitzer said he will work to maximize health reimbursements. Benefiting from the boost were the LAMP and Asbestos-Related Diseases Network (ARD-Net) agencies, which supplement health- care costs not covered by the W.R. Grace-Libby Medical Plan. Ms. Hernandez said LAMP picks up the bill for these costs and works in conjunction with ARD-Net to provide in-home assistance. She added ARD-Net will run out of funds in June 2009 and LAMP sometime this year. Mr. Vincent is urging Lincoln County residents to contact the governor. He said his counterpart Mr. Bennett would introduce a bill into the 61st legislative session requesting line item funding specifically for asbestos-related care in the county. Mr. Bennett has until Jan. 17, 2009 to submit the bill, and he has expressed a commitment to work with the governor to make the funding measure a success. ASBESTOS LITIGATION: South Korea Governor Urges for Special Act ---------------------------------------------------------------- Lee Wan-koo, the governor of South Chungcheong Province in South Korea, on Jan. 7, 2009, announced the province will seek legislation of a "Special Act on Asbestos Hazards" to resolve an asbestos issue, The Chosun Ilbo reports. Many residents of five villages near asbestos mines in the province are confirmed to have developed lung diseases. Gov. Lee said, "Asbestos hazards should be approached from various aspects, including water quality, soil, air, and ecosystem restoration, not to mention the residents' health. The Province will come up with a draft bill at the earliest time and urge the government and political circles to enact a special law." The province will cooperate with three other local authorities (Gyeonggi, Gangwon, and North Gyeongsang Provinces) where asbestos mines are located, while establishing a committee and task force in the province itself to deal with asbestos hazards. Of 21 asbestos mines in South Korea, 15 are located in South Chungcheong Province (seven in Hongseong, four in Boryeong, three in Taean, and one in Cheongyang), three in Gyeonggi Province, two in North Gyeongsang Province, and one in Gangwon Province. ASBESTOS LITIGATION: Meetings on Vt. Mine Slated for Jan. 12, 13 ---------------------------------------------------------------- The Vermont State Health Department has set Jan. 12, 2009 and Jan. 13, 2009 as the dates of two public meetings, which aim to cover health threats posed by a closed asbestos mine in northern Vermont, the Times Argus reports. The first meeting is scheduled for Jan. 12, 2009 at 6:30 p.m. at the Eden Central School. On Jan. 13, 2009, a meeting will be held at the Lowell Graded School. The meetings in Lowell and Eden were postponed in December 2008 due to bad weather. The Department now plans to hold the meetings in the two towns to discuss a new study that shows a connection between people living near the mine and asbestos-related illnesses. The study found that people living within 10 miles of it had a higher rate of some ailments than those in the rest of the state. ASBESTOS LITIGATION: Survey Identifies Risks at Scotland School ---------------------------------------------------------------- A survey identified potential asbestos risks underneath the stage of the Crawforddyke Primary School in South Lanarkshire, Scotland, the Lanark Gazette reports. A further blow to teachers and pupils was that equipment stored there could not be recovered. Writing in the December 2008 school newsletter, headteacher Marjorie Maule stated, "Air tests have been conducted and have confirmed that the school is safe for both pupils and staff. This is part of the asbestos management process which is implemented across the authority. This was a setback to us initially because we felt we had lost so many resources. "The area under the stage was a wonderful storage space and we accessed it constantly as a storage facility for sports goods, nursery furniture and a host of other items." Concerns about potential asbestos discovery are huge, as breathing in air containing asbestos fibers can lead to diseases, mainly cancers of the lungs and chest lining. A spokesperson for South Lanarkshire Council said that, in common with councils across the United Kingdom, a number of South Lanarkshire Council primary schools were known to have asbestos-containing materials present. ASBESTOS LITIGATION: Tests Show No Risks at Edlington's Vicinity ---------------------------------------------------------------- Tests show that a new school in the grounds of the fire-ravaged Edlington School in Doncaster, England, and the nearby leisure center were free of asbestos particles, the Doncaster Free Press reports. However, nearby houses in Tait Avenue are still being tested, council chiefs have revealed. Contamination has also been discovered in the pedestrian access to the new school and a temporary road is being laid. Sir Thomas Wharton Community College, which replaces the 40- year-old comprehensive, is due to open. ASBESTOS LITIGATION: Hazard Found at London Leisure Center Pool ---------------------------------------------------------------- Asbestos has been found at the pool of the Seven Islands Leisure Center in the Southwark borough of London, southlondon- today.co.uk reports. The pool, which is used by up to 1,500 swimmers a week, will not reopen until at least February 2009. The pool was shut down in November 2008 after its boiler packed up. However, the South London Press has learned that repair work has been delayed after asbestos was discovered in the boiler room. It means experts have had to be called in to remove the potentially fatal material before repairs can continue. Liberal Democrat and Conservative-controlled Southwark has stressed there is no heath risk to members of the public as a result of the asbestos find. Southwark's executive member for leisure, Councilor Lewis Robinson, said, "We restricted access to the area as soon as we were alerted to the asbestos, and prior to that only a small number of authorized staff would have been allowed to enter the boiler area. "The inspection also confirmed that there is no risk from asbestos in any other part of the building, which means there is no risk in any part of the building accessible to the public. It is extremely unlikely that they would have been affected, but of course we are offering support and medical referrals to any staff who have concerns." The pool is operated by leisure contractor Fusion. ASBESTOS LITIGATION: Kostrzewa Favored in Claim Against Suffolk ---------------------------------------------------------------- The Appeals Court of Massachusetts reversed the Superior Court Department's ruling, which granted summary judgment in favor of Suffolk Construction Company, Inc., in a suit involving asbestos abatement filed by Jaroslaw and Ryszard Kostrzewa. The case is styled Ryszard Kostrzewa, administrator v. Suffolk Construction Company, Inc. Judges James McHugh, David A. Mills, and Gabrielle R. Wolohojian entered judgment in Case No. 07-P-1450 on Dec. 18, 2008. Suffolk was the general contractor for a project to renovate the Saltonstall Building at 100 Cambridge Street in Boston. Suffolk, in turn, subcontracted with North American Site Developers, Inc. to perform demolition and abatement work on the project, including asbestos abatement. NASDI further subcontracted with Superior Abatement Inc. to perform the asbestos abatement work on the project. Mr. Kostrzewa was employed by Superior as an asbestos worker. Asbestos abatement took place in contained areas to which access was restricted to licensed asbestos removal or air quality monitoring workers. On May 31, 2002, Mr. Kostrzewa and a coworker, Zdzislaw Zylinski (who was also employed by Superior), were removing asbestos within a containment area. The men were working on scaffolding that was about 20 feet high and mounted on wheels. Mr. Kostrzewa was injured when the scaffolding on which he was working fell. Suffolk did not own and had not erected the scaffolding. When the men wanted to move the scaffolding to work on a new spot, they would either have someone on the ground push it or, using the wall or ceiling, they would themselves pull or push the scaffolding to the new location. In either case, so as to save time, they did not dismount from the scaffolding. At the time of the accident, Mr. Kostrweza was trying to move the scaffolding on which he and Mr. Zylinski were standing. On Feb. 2, 2005, Mr. Kostrzew brought this suit against Suffolk, alleging negligent supervision. Summary judgment was granted in favor of Suffolk on the ground that Suffolk had not exercised sufficient control over Superior's work to owe a duty to Mr. Kostrzewa. The Appeals Court reversed the judgment. John B. Flemming, Esq., represented Ryszard Kostrzewa. Emily L. Dwyer, Esq., represented Suffolk Construction Company, Inc. ASBESTOS LITIGATION: Spilmon's Bid to Remand Granted in Calif. ---------------------------------------------------------------- The U.S. District Court, Northern District of California, granted plaintiffs' Motion to Remand, in an asbestos lawsuit, styled Marion Spilmon, et al. Plaintiffs v. Allis-Chalmers Corporation Product Liability Trust, et al., Defendants. District Judge Maxine M. Chesney entered judgment in Case No. C- 08-4873 MMC on Dec. 17, 2008. Before the Court was plaintiffs' motion to remand, filed Nov. 24, 2008. No opposition had been filed. On Sept. 11, 2008, the Spilmons filed the complaint in the instant action in state court, alleging state law claims arising out of exposure to asbestos. On Oct. 24, 2008, Foster Wheeler LLC removed the action to district court on the ground that said it was "acting under an officer or agency of the United States within the meaning of 28 U.S.C. s 1442(a)(1)." No other defendant had joined in Foster Wheeler's notice of removal or asserted any other ground for removal jurisdiction. On Nov. 24, 2008, the Spilmons dismissed their complaint against Foster Wheeler. Accordingly, the Spilmons' motion to remand was granted and the action was remanded to the Superior Court of the State of California in and for the County of San Francisco. ASBESTOS LITIGATION: Defendants' Motion Denied in MDL 875 Action ---------------------------------------------------------------- The U.S. District Court, Eastern District of Pennsylvania denied certain defendants' motion in an asbestos-related case styled In re Asbestos Products Liability Litigation (No. VI). District Judge Eduardo C. Robreno entered judgment in MDL Docket No. 875 on Dec. 18, 2008. MDL no. 875 involves issues relating to personal injuries allegedly caused by asbestos products. It currently consists of about 59,000 cases and 3.5 million claims consolidated for pretrial proceedings by the Judicial Panel on Multidistrict Litigation and transferred to the Eastern District of Pennsylvania. On May 31, 2007, in order to facilitate the resolution of this case, the court entered Administrative Order No. 12, requiring submission of certain information as to each pending plaintiff in MDL 875 to a database established by the court. The deadline for complying with Administrative Order No. 12 was Dec. 1, 2007. Administrative Order No. 12 initially applied to all cases filed before Dec. 1, 2007, but the sweep of the order was later extended to cover all cases filed before Oct. 3, 2008. Certain defendants in the individual cases had filed this motion seeking the entry of a show cause order requiring each plaintiff in MDL 875, who had failed to comply with the requirements of Administrative Order No. 12, to show cause why their claim should not be dismissed. Defendants also proposed that any plaintiff who fails to respond to the requested order to show cause have their cases dismissed. These defendants were: -- A.R. Wifley & Sons, Inc.; -- Accurate Felt & Gasket Co., Inc.; -- Allied Glove Corporation (sometimes sued as Nationwide Glove Corporation); -- Amsted Industries, Inc.; -- Bondex International, Inc.; -- CertainTeed Corporation; -- Cooper Alloy Corp.; -- Crossfield Products Corp.; -- Eastern Safety Equipment Company, Inc. (sometimes sued as Aearo Company); -- Flexo Products, Inc.; -- Gardner Denver, Inc.; -- General Electric Co.; -- Georgia-Pacific Corporation; -- The Gorman-Rupp Company; -- Gulf Coast Marine Supply Company; -- Pulsafeeder, Inc.; -- Viking Pump Company; -- Warren Rupp, Inc.; -- Illinois Tool Works Inc.; -- Ingersoll-Rand Company; -- Lawrence Pumps, Inc.; -- Magnetrol International Incorporated; -- Marine Specialty Company, Inc.; -- Mueller Steam Specialty; -- National Service Industries, Inc. f/d/b/a North Bros. Company; -- Owens-Illinois, Inc. d/b/a O-I; -- Pecora Corporation; -- Pneumo Abex, LLC; -- Rogers Corporation; -- Sager Glove Corp.; -- Aurora Pump Company; -- BIF; -- DeZurik, Inc.; -- Layne & Bowler Pump Group; -- Marsh Instruments; -- Standard Equipment Company, Inc.; -- Terex Corporation; -- Terex Cranes, Inc.; -- The American Crane Corporation; -- Turner Supply Company; -- Union Carbide Corporation; -- Amchem Products, Inc.; -- Warren Pumps, LLC; -- "Yeoman's Chicago Corporation" (also erroneously served for "Chicago Pump Company" and/or "Morris Machine Works/Morris Pumps"); and -- Yuba Heat Transfer. It was ordered that these defendants' motion for entry of a show cause order was denied without prejudice. ASBESTOS LITIGATION: Pa. Court Reverses Ruling to Favor Wrights ---------------------------------------------------------------- The Superior Court of Pennsylvania reversed the Court of Common Pleas of Philadelphia County's ruling, which granted summary judgment in favor of Asten Johnson, Inc. (successor to Asten Group, Inc.), in an asbestos lawsuit filed by Raymond and Theresa Wright. The matter was remanded. Judges John T. Bender, Christine L. Donohue, and Robert A. Freedberg entered judgment in Case No. No. 2805 EDA 2007 on Dec. 19, 2008. Mr. Wright was employed as an electronic engineer with Scott Paper and on occasion worked in the paper manufacturing plant in Chester, Pa. Asten manufactured asbestos-containing dryer felts used in the paper manufacturing process. In January 2005, Mr. Wright was diagnosed with mesothelioma. The Wrights sued a number of parties, including Asten, alleging that Mr. Wright's workplace exposure to asbestos caused his mesothelioma. During the pendency of the action, Mr. Wright died from the disease. Asten ultimately moved for summary judgment contending that Mrs. Wright failed to cite sufficient evidence to establish that Mr. Wright inhaled asbestos fibers shed from Asten dryer felts. The trial court granted summary judgment for Asten by order dated July 9, 2007, and docketed July 10, 2007. Mrs. Wright filed notice of appeal on July 19, 2007, and she thereafter filed a statement of errors in compliance with Pennsylvania Rule of Appellate Procedure 1925. In turn, the trial court issued an opinion pursuant to Rule 1925. The Superior Court concluded that there was sufficient record evidence to withstand summary judgment. Accordingly, the Superior Court reversed the trial court's ruling and remanded the case. ASBESTOS LITIGATION: Court Issues Split Rulings in Weible Action ---------------------------------------------------------------- The Superior Court of Pennsylvania issued split rulings in an asbestos-related lawsuit filed against various defendants by Sara Jane Weible on behalf of her late husband, William Weible. Judges John T. Bender, Christine L. Donohue, and Robert A. Freedberg entered judgment in Case No. 2802 EDA 2007 on Dec. 19, 2008. Mrs. Weible appealed from the Court of Common Pleas of Philadelphia County's orders granting summary judgment in favor of Borg-Warner Corporation, Brake & Clutch Company of Philadelphia, Carlisle Companies Incorporated, and McCord Corporation. In June 2005, Mr. Weible was diagnosed with mesothelioma. The Weibles sued various companies, including Borg-Warner, B & C, Carlisle, and McCord, alleging that Mr. Weible's exposure to asbestos caused his mesothelioma. During the pendency of the action, Mr. Weible died from the disease. Borg-Warner, B & C, Carlisle, and McCord ultimately moved for summary judgment contending that Mrs. Weible failed to adduce sufficient evidence to establish that Mr. Weible inhaled asbestos fibers shed from their respective products. The trial court granted summary judgment for each of the four companies by orders dated July 9, 2007, and docketed July 10, 2007. Mrs. Weible filed notice of appeal on July 19, 2007, and she thereafter filed a statement of errors in compliance with Pennsylvania Rule of Appellate Procedure 1925. In turn, the trial court issued an opinion under Rule 1925. The Superior Court concluded that there was sufficient record evidence against Borg-Warner, B & C, and Carlisle to withstand summary judgment. The order granting summary judgment to Borg-Warner was reversed. The order granting summary judgment to B & C was reversed. The order granting summary judgment to Carlisle was reversed. The matters of Borg-Warner, B & C, and Carlisle were remanded. The order granting summary judgment to McCord was affirmed. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. 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