/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/100312.mbx C L A S S A C T I O N R E P O R T E R Friday, March 12, 2010, Vol. 12, No. 50 Headlines ALCOA INC: Seeks Dismissal of Appeal to Nixed Injunction Claim ALCOA INC: No Hearing for Motions in Lavoie's Baie Comeau Suit ALCOA INC: Continues to Defend Curtis' ERISA Suit in Tennessee CARDINAL HEALTH: Pharmacists Sue Over Franchise Agreement Changes CLASSMATES ONLINE: Wash. Suit Complains About New Privacy Policy ENERGY TRANSFER: Appeal in Junked Price-Fixing Suit Pending ENERGY TRANSFER: Appeal in Monopolization Suit Remains Pending GERBER LEGENDARY: Recalls 155,000 Gator-Brand Machetes GRISTEDE'S OPERATING: S.D.N.Y. Certified Female Employee Class HEWLETT-PACKARD: Chinese Notebook Owners Lodge AQSIQ Complaint HUNTINGTON BANCSHARES: Consolidated ERISA Suit Settlement Pending HUNTINGTON BANCSHARES: Dismissed Ohio Securities Suit Appealed HUNTINGTON BANCSHARES: Bid to Nix Suits Over Transactions Pending KELLY SERVICES: Suits Over Wage and Hour Law Violations Pending KEVIN HOUSER: Accused of Unfair Trade Practices in La. Suit LUMBER LIQUIDATORS: Defends Suit by Ex-Store Managers in Calif. MILLIPORE CORP: Being Sold to Merck for Too Little, Suit Claims MEDIVATION INC: Securities Fraud Complaint Filed in N.D. Calif. MINNESOTA: Suit Complains About Termination of GAMC Program MODERN WOODMEN: Not Licensed to Sell Insurance, Nev. Suit Claims OKLAHOMA GAS: Plaintiffs' Appeal of Nixed Certification Pending OKLAHOMA GAS: Continues to Defend Suit by Customers in Oklahoma PPG INDUSTRIES: Defending Consolidated Antitrust Suit in Pa. TOYOTA MOTOR: Associated Press Says Lawsuits May Cost Billions TOYOTA MOTOR: Sudden Acceleration Suit Filed in S.D. Ind. TRAVELERS COMPANIES: Awaits Ruling on Brokerage Antitrust Suit TRINITY INDUSTRIES: Received Unclaimed Settlement Refunds in Dec. WELLCARE HEALTH: Discovery Ongoing in Eastwood Ent. & Hutton Suit WELLS FARGO: 9th Cir. Agrees Bank Didn't Overcharge Mortgagors * Canadian Bar Association Launches Class Action Task Force Asbestos Litigation ASBESTOS UPDATE: Fresenius Still Involved in Sealed Air Lawsuits ASBESTOS UPDATE: Federal-Mogul Records $40MM Payments from Trust ASBESTOS UPDATE: Hartford Still Involved in Insurance Litigation ASBESTOS UPDATE: Grace Has 430 Property Damage Claims at Dec. 31 ASBESTOS UPDATE: W.R. Grace Still Party to Personal Injury Cases ASBESTOS UPDATE: Grace Excess Coverage Still at $923M in Dec. 31 ASBESTOS UPDATE: Grace Records $51.6Mil Libby Cleanup Liability ASBESTOS UPDATE: Settlement in NJDEP v. Grace Entered on Oct. 19 ASBESTOS UPDATE: Foster Wheeler Has $352.5M Liability at Dec. 31 ASBESTOS UPDATE: Claims v. Foster Wheeler Drop to 125.1T in U.S. ASBESTOS UPDATE: Foster Wheeler Records $43.5Mil Insurance Asset ASBESTOS UPDATE: 373 Claims Ongoing v. Foster Wheeler U.K. Units ASBESTOS UPDATE: PSEG Cites $8MM Assets for Abatement at Dec. 31 ASBESTOS UPDATE: Dynegy Has $120M Retirement Obligation in 2009 ASBESTOS UPDATE: Ten Lorillard, Inc. Actions Scheduled for Trial ASBESTOS UPDATE: Cleco Cites $300T Cleanup Liability at Dec. 31 ASBESTOS UPDATE: 1,239 Actions Pending v. GATX, Units at Jan. 26 ASBESTOS UPDATE: Ensco Int'l. Still Has Exposure Cases in Miss. ASBESTOS UPDATE: Constellation & BGE Facing 494 Exposure Claims ASBESTOS UPDATE: Ingersoll-Rand Facing 63,887 Claims at Dec. 31 ASBESTOS UPDATE: Trane Still Involved in Coverage Action in N.J. ASBESTOS UPDATE: 92,298 Open Claims Pending v. Trane at Dec. 31 ASBESTOS UPDATE: Alliant Unit Records $1.2Mil Settled Liability ASBESTOS UPDATE: NiSource Unit Settles $1M for Abatement in 2009 ASBESTOS UPDATE: CNH Global, Units Still Party to Exposure Suits ASBESTOS UPDATE: Ford Motor Co. Still Subject to Exposure Suits ASBESTOS UPDATE: Lockheed Martin Still Party to Injury Lawsuits ASBESTOS UPDATE: Colfax Has 25,295 Unresolved Claims at Dec. 31 ASBESTOS UPDATE: Roper Industries Still Party to Exposure Claims ASBESTOS UPDATE: Domtar Corp. May Be Subject to Injury Lawsuits ASBESTOS UPDATE: Chiquita Facing 5 Pending Cases in State Courts ASBESTOS UPDATE: NL Ind. Cites $4.6M Insurance Recoveries in '09 ASBESTOS UPDATE: 2,550 Cases Ongoing Against Graybar at Dec. 31 ASBESTOS UPDATE: Standard Motor Cites $24.87MM Dec. 31 Liability ASBESTOS UPDATE: Dalmine Still Faces 45 Injury Claims at Dec. 31 ASBESTOS UPDATE: IDEX Corp., 6 Units Still Facing Injury Actions ASBESTOS UPDATE: Bucyrus Int'l. Still Involved in Exposure Cases ASBESTOS UPDATE: Abatement at Mainland's School to Cost $294,450 ASBESTOS UPDATE: Poulton Local's Death Linked to Hazard Exposure ASBESTOS UPDATE: Torres Awarded $3Mil Compensation in Tex. Court ASBESTOS UPDATE: Chapman Widow Turns Down GBP1MM in Compensation ASBESTOS UPDATE: Robinson v. Alton and Southern Filed on Feb. 26 ASBESTOS UPDATE: Cates Joins Cooney Firm in 4 St. Clair Lawsuits ASBESTOS UPDATE: 14 Cases Filed During Feb. 15-19 in Madison Co. ASBESTOS UPDATE: Gump Lawsuit Filed in Kanawha County on Feb. 23 ASBESTOS UPDATE: Wilson Lawsuit Filed on Feb. 24 in Kanawha Co. ASBESTOS UPDATE: Estep Lawsuit Filed v. 78 Firms in Kanawha Co. ASBESTOS UPDATE: Jarrell Action Filed v. 97 Firms in Kanawha Co. ASBESTOS UPDATE: Ruling Flipped in McCann Case v. Foster Wheeler ASBESTOS UPDATE: Calif. Court OKs Summary Judgment in Hall Case ********* ALCOA INC: Seeks Dismissal of Appeal to Nixed Injunction Claim -------------------------------------------------------------- Alcoa Inc. continues to pursue dismissal of appealed to junked injunctive relief claim in the Hurricane Georges-related class action, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. In September 1998, Hurricane Georges struck the U.S. Virgin Islands, including the St. Croix Alumina, L.L.C. (SCA) facility on the island of St. Croix. The wind and rain associated with the hurricane caused material at the location to be blown into neighboring residential areas. Various cleanup and remediation efforts were undertaken by or on behalf of SCA. A Notice of Violation was issued by the Division of Environmental Protection (DEP), of the Department of Planning and Natural Resources (DPNR) of the Virgin Islands Government, and has been contested by the company. A civil suit was commenced in the Territorial Court of the Virgin Islands by certain residents of St. Croix in February 1999, seeking compensatory and punitive damages and injunctive relief for alleged personal injuries and property damages associated with "bauxite or red dust" from the SCA facility. The suit, which has been removed to the District Court of the Virgin Islands, names SCA, Alcoa Inc., and Glencore Ltd. as defendants, and, in August 2000, was accorded class action treatment. The class is defined to include persons in various defined neighborhoods who "suffered damages and/or injuries as a result of exposure during and after Hurricane Georges to red dust and red mud blown during Hurricane Georges." All of the defendants have denied liability, and discovery and other pretrial proceedings have been underway since 1999. In October 2003, the defendants received plaintiffs' expert reports. These reports also claim that the material blown during Hurricane Georges consisted of bauxite and red mud, and contained crystalline silica, chromium, and other substances. The reports further claim, among other things, that the population of the six subject neighborhoods as of the 2000 census (a total of 3,730 people) has been exposed to toxic substances through the fault of the defendants, and hence will be able to show entitlement to lifetime medical monitoring as well as other compensatory and punitive relief. These opinions have been contested by the defendants' expert reports, that state, among other things, that plaintiffs were not exposed to the substances alleged and that in any event the level of alleged exposure does not justify lifetime medical monitoring. In August 2005, Alcoa and SCA moved to decertify the plaintiff class, and in March 2006, the assigned magistrate judge issued a recommendation that class certification be maintained for liability issues only, and that the class be decertified after liability issues have been resolved. This recommendation has been adopted by the assigned district judge. Alcoa and SCA have turned over this matter to their insurance carriers who are providing a defense. Glencore Ltd. is jointly defending the case with Alcoa and SCA and has a pending motion to dismiss. On June 3, 2008, the Court granted defendants' joint motion to decertify the class of plaintiffs, and simultaneously granted in part and denied in part plaintiffs' motion for certification of a new class. Under the new certification order, there is no class as to the personal injury, property damage, or punitive damages claims. (The named plaintiffs had previously dropped their claims for medical monitoring during the course of the briefing of the certification motions.) The Court did certify a new class as to the claim of on-going nuisance, insofar as plaintiffs seek cleanup, abatement, or removal of the red mud currently present at the facility. The Court expressly denied certification of a class as to any claims for remediation or clean up of any area outside the facility (including plaintiffs' property). The new class may seek only injunctive relief rather than monetary damages. Named plaintiffs, however, may continue to prosecute their claims for personal injury, property damage, and punitive damages. On May 15, 2009, defendants filed a motion for summary judgment on the class plaintiffs' sole remaining claim, which sought injunctive relief. On May 22, 2009, defendants filed a motion for summary judgment on the named plaintiffs' claims for personal injury, property damage, and punitive damages. On Aug. 28, 2009, the Court dismissed the named plaintiffs' claims for personal injury and punitive damages, and denied the motion with respect to their property damage claims. On Sept. 25, 2009, the Court granted defendants' motion for summary judgment on the class plaintiffs' claim for injunctive relief. As of Oct. 29, 2009, plaintiffs appealed the Court's summary judgment order dismissing the claim for injunctive relief. On Nov. 24, 2009, Alcoa and SCA filed a motion to dismiss that appeal at the U.S. Court of Appeals for the Third Circuit. Alcoa Inc. produces alumina (aluminum's principal ingredient, processed from bauxite) and aluminum. Its operations include bauxite mining, alumina refining, and aluminum smelting; primary products include alumina and its chemicals, automotive components, and sheet aluminum for beverage cans. The Company is based in New York. ALCOA INC: No Hearing for Motions in Lavoie's Baie Comeau Suit -------------------------------------------------------------- The Superior Court of Quebec in the District of Baie Comeau has not yet scheduled a hearing date for Alcoa Inc.'s two motions in Dany Lavoie's purported class action, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. In August 2005, Dany Lavoie, a resident of Baie Comeau in the Canadian Province of Quebec, filed a Motion for Authorization to Institute a Class Action and for Designation of a Class Representative against Alcoa Canada Inc., Alcoa Limitee, Societe Canadienne de Metaux Reynolds Limitee and Canadian British Aluminum in the Superior Court of Quebec in the District of Baie Comeau. Plaintiff seeks to institute the class action on behalf of a putative class consisting of all past, present and future owners, tenants and residents of Baie Comeau's St. Georges neighborhood. He alleges that defendants, as the present and past owners and operators of an aluminum smelter in Baie Comeau, have negligently allowed the emission of certain contaminants from the smelter, specifically Polycyclic Aromatic Hydrocarbons or "PAHs", that have been deposited on the lands and houses of the St. Georges neighborhood and its environs causing damage to the property of the putative class and causing health concerns for those who inhabit that neighborhood. If allowed to proceed as a class action, plaintiff seeks to compel additional remediation to be conducted by the defendants beyond that already undertaken by them voluntarily, seeks an injunction against further emissions in excess of a limit to be determined by the court in consultation with an independent expert, and seeks money damages on behalf of all class members. A hearing on plaintiff's motion for class certification was held on April 24 to April 26, 2007. On May 23, 2007, the court issued its ruling which granted the motion in part and authorized a class action suit to include only people who suffered property damage or personal injury damages caused by the emission of PAHs from the smelter. On Sept. 13, 2007, the plaintiff filed his claim against the original defendants, which the court had authorized in May. On June 16, 2008, Alcoa filed its Statement of Defense. On July 15, 2009, plaintiff filed an Answer to Alcoa's Statement of Defense. On Oct. 9, 2009, Alcoa filed a Motion for Particulars with respect to certain paragraphs of plaintiff's Answer. On Oct. 16, 2009, Alcoa filed a Motion to Strike with respect to certain paragraphs of plaintiff's Answer. Alcoa Inc. produces alumina (aluminum's principal ingredient, processed from bauxite) and aluminum. Its operations include bauxite mining, alumina refining, and aluminum smelting; primary products include alumina and its chemicals, automotive components, and sheet aluminum for beverage cans. The Company is based in New York. ALCOA INC: Continues to Defend Curtis' ERISA Suit in Tennessee -------------------------------------------------------------- Alcoa Inc., continues to defend a class-action suit styled Curtis v. Alcoa Inc., in the U.S. District Court for the Eastern District of Tennessee, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. In November 2006, a class action was filed by plaintiffs representing approximately 13,000 retired former employees of Alcoa or Reynolds Metals Company and spouses and dependents of such retirees alleging violation of the Employee Retirement Income Security Act (ERISA) and the Labor-Management Relations Act by requiring plaintiffs, beginning Jan. 1, 2007, to pay health insurance premiums and increased co-payments and co- insurance for certain medical procedures and prescription drugs. Plaintiffs allege these changes to their retiree health care plans violate their rights to vested health care benefits. Plaintiffs additionally allege that Alcoa has breached its fiduciary duty to plaintiffs under ERISA by misrepresenting to them that their health benefits would never change. Plaintiffs seek injunctive and declaratory relief, back payment of benefits, and attorneys' fees. Alcoa has consented to treatment of plaintiffs' claims as a class action. During the fourth quarter of 2007, following briefing and argument, the court ordered consolidation of the plaintiffs' motion for preliminary injunction with trial, certified a plaintiff class, bifurcated and stayed the plaintiffs' breach of fiduciary duty claims, struck the plaintiffs' jury demand, but indicated it would use an advisory jury, and set a trial date of Sept. 17, 2008. In August 2008, the court set a new trial date of March 24, 2009 and, subsequently, the trial date was moved to Sept. 22, 2009. In June 2009, the court indicated that it would not use an advisory jury at trial. Trial in the matter was held over eight days commencing Sept. 22, 2009 and ending on Oct. 1, 2009 in federal court in Knoxville, Tennessee before the Honorable Thomas Phillips, U.S. District Court Judge. At the conclusion of evidence, the court set a post-hearing briefing schedule for submission of proposed findings of fact and conclusions of law by the parties and for replies to the same. Post trial briefing was submitted on Dec. 4, 2009. No schedule was set for handing down a decision. Alcoa believes that it presented substantial evidence in support of its defenses at trial. However, at this stage of the proceeding, the company is unable to reasonably predict the outcome. Alcoa estimates that, in the event of an unfavorable outcome, the maximum exposure would be an additional postretirement benefit liability of approximately $300 million and approximately $40 million of expense (includes an interest cost component) annually, on average, for the next 11 years. Representing the plaintiffs is: Robert S. Catapano-Friedman, Esq. 744 Broadway Albany, NY 12207 Phone: 518-463-7501 Fax: 518-463-7502 E-mail: katapano@gmail.com Representing the defendant is: John W. Woods, Jr., Esq. Hunton & Williams 951 East Byrd Street Riverfront Plaza East Tower Richmond, VA 23219-4074 Phone: 804-788-8629 Fax: 804-343-4794 E-mail: jwoods@hunton.com CARDINAL HEALTH: Pharmacists Sue Over Franchise Agreement Changes ----------------------------------------------------------------- Medicine Shoppe and Medicap independent pharmacy franchise owners from across the nation have joined together in support of a class action suit in U.S. District Court in the Southern District of Ohio against Cardinal Health (NYSE: CAH), Medicine Shoppe Inc. (MSI), and Medicap Pharmacies Incorporated (MC). The suit alleges several specific points of wrongdoing on the part of CAH/MSI/MC during 2009 when the companies made attempts to re- negotiate existing franchise agreements and convert to an alternate form of distribution. "We are independent pharmacists, taking care of hundreds of thousands of patients across the country, who feel that our franchisor has taken every opportunity to hurt our business and the brand we share," says Stan Winters, who owns the Medicine Shoppe in Artesia, Calif. "We intend for this legal action to clear the slate with Cardinal Health, put an end to their heavy- handed ways and roll back the predatory pricing on pharmaceuticals that many stores are forced to accept," he says. Mr. Winters is one of several plaintiffs who ultimately represent more than 600 stores that represent more than $1 billion in pharmaceutical revenue, primarily from Cardinal Health. In 2009, Cardinal Health presented franchisees an offer to reform the franchise system that Cardinal admitted was greatly challenged by unprecedented changes in the pharmacy industry, resulting in more than a 50 percent decline in store count over the past seven to eight years. The legal action describes attempts to renegotiate franchise agreements; in particular, those known as "Option 1 Stores" were offered a new contract for which they had to pay an "early termination fee," which in some cases amounted to $1,000,000 or more, and agree to purchase only from Cardinal Health for sometimes more than 12 years without a competitive bid. The store owners were promised that this new system would only be instituted if at least 95 percent of the owners adopted it. CAH/MSI defrauded the "Option 1" stores by accepting tens of millions of dollars in prepaid franchise fees, never reaching the 95 percent as promised, and proceeding to reduce services across the board. Others, described as "Option 3" stores, elected to not convert to the new offering, yet have suffered damages through the arbitrary reduction of services. CAH/MSI further damaged the overall franchise by introducing a new offer for a flat $499 per month, in stark contrast to the existing agreements which continue to require payments up to $25,000 per month or more to carry the Medicine Shoppe or Medicap brand. The end result of the 2009 offer was anything but "the common and consistent franchise agreements" that Cardinal sought. Independent franchisees continue to support the legal action and are encouraged to do so by the Pharmacy Franchise Owners Association-MS and MC, the trade associations for owners of both Medicine Shoppe and Medicap pharmacies. Franchisees for Fair Value is the designation specifically for those owners who are supporting the class action. CLASSMATES ONLINE: Wash. Suit Complains About New Privacy Policy ---------------------------------------------------------------- June Williams at Courthouse News Service reports that to compete with Facebook, Classmates.com is abandoning the privacy protections it promised its clients, according to a class action in Federal Court. The class claims the new policy "will expose the personal information of Classmates users to millions of persons who are unknown to both the users and to Classmates," exposing Classmates customers to "unwarranted intrusions, harassment and other harms." On Jan. 30, Classmates sent this notice to its customers: "To make it easier for old friends-including you!-to reunite, we're coming up with ways to let more people use Classmates from around the Internet without having to visit Classmates.com. "To do that, we're about to start making your public Classmates content available to people using a variety of sites and devices, including Facebook and the iPhone. This content can include your name, photos, community affiliations, and more. "Of course, we care about your privacy as much as we do your ability to catch up with your past. We're updating our privacy policy to make these new features possible, and you're able to opt out." The class claims that this new policy "will have severe, adverse privacy implications for Classmates Users," that the "opt out" policy is confusing and insufficient, but that the notice "is presented in such an innocuous and favorable manner that users would not even be tempted to 'opt out' of the new policy." Previously, Classmates users had to sign up for an account before seeing profiles, and Classmates had the ability to track which users viewed other users' profiles, according to the complaint. The policy switch was due to "increasing business pressure from 'social network' Web sites such as Facebook, which also provide a venue for old friends to reconnect and communicate," according to the complaint. "In or about 2009, Classmates began to work on a strategy to tap into Facebook's more than 100 million users, and direct their attention to the store of information accumulated over the years on the Classmates Web site. It has done this despite the fact that (unlike Classmates) Facebook has been repeatedly sued for violating its users' privacy rights and mishandling information contained on its Web site," the complaint states. The class seeks damages for violations of the Electronic Data Privacy Act and the Washington Consumer Protection Act, breach of contract and unjust enrichment. It also wants Classmates enjoined to send users a detailed explanation of the new privacy policy before it institutes it. A copy of the Complaint in Ferguson, et al. v. Classmates Online, Inc., et al., Case No. 10-cv-00365 (W.D. Wash.) (Jones, J.), is available at: http://www.courthousenews.com/2010/03/09/Classmates.pdf The Plaintiffs are represented by: Roger M. Townsend, Esq. BRESKIN JOHNSON & TOWNSEND PLLC 1111 Third Ave., Suite 2230 Seattle, WA 98101 Telephone: 206-652 8660 - and - Roy Jacobs, Esq. ROY JACOBS & ASSOCIATES One Grand Central Place 60 East 42nd St., 46th Floor New York, NY 10165 Telephone: 212-867-1156 - and - Laurence Paskowitz, Esq. PASKOWITZ & ASSOCIATES 60 East 42nd St., 46th Floor New York, NY 10165 Telephone: 212-685-0969 - and - Brian M. Felgoise, Esq. LAW OFFICES OF BRIAN M. FELGOISE, P.C. 261 Old York Rd., Suite 423 Jenkintown, PA 19001-2616 Telephone: 215-985-0500 ENERGY TRANSFER: Appeal in Junked Price-Fixing Suit Pending ----------------------------------------------------------- The plaintiffs' appeal to a decision dismissing a second consolidated class action complaint Energy Transfer Partners, L.P., remains pending in the U.S. Court of Appeals for the 5th Circuit, according to the Energy Transfer Equity, L.P.'s Feb. 24, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. ETP is a subsidiary of Energy Transfer Equity. In October 2007, a consolidated class action complaint was filed against ETP in the U.S. District Court for the Southern District of Texas. The action alleges that ETP engaged in intentional and unlawful manipulation of the price of natural gas futures and options contracts on the New York Mercantile Exchange, in violation of the Commodity Exchange Act. It is further alleged that during the class period from Dec. 29, 2003 to Dec. 31, 2005, ETP had the market power to manipulate index prices, and that ETP used this market power to artificially depress the index prices at major natural gas trading hubs, including the Houston Ship Channel, in order to benefit its natural gas physical and financial trading positions, and that ETP intentionally submitted price and volume trade information to trade publications. The complaint also alleges that ETP violated the CEA by knowingly aiding and abetting violations of the CEA. The plaintiffs state that this allegedly unlawful depression of index prices by ETP manipulated the NYMEX prices for natural gas futures and options contracts to artificial levels during the class period, causing unspecified damages to the plaintiffs and all other members of the putative class who sold natural gas futures or who purchased and/or sold natural gas options contracts on NYMEX during the class period. The plaintiffs have requested certification of their suit as a class action and seek unspecified damages, court costs and other appropriate relief. On Jan. 14, 2008, ETP filed a motion to dismiss this suit on the grounds of failure to allege facts sufficient to state a claim. On March 20, 2008, the plaintiffs filed a second consolidated class action complaint. In response to this new pleading, on May 5, 2008, ETP filed a motion to dismiss the complaint. On March 26, 2009, the court issued an order dismissing the complaint, with prejudice, for failure to state a claim. On April 9, 2009, the plaintiffs moved for reconsideration of the order dismissing the complaint, and on Aug. 26, 2009, the court denied the plaintiffs' motion for reconsideration. On Sept. 28, 2009, these decisions were appealed by the plaintiffs to the U.S. Court of Appeals for the 5th Circuit, and the appeal is in briefing stage before the court. Dallas-based Energy Transfer Equity, L.P. -- http://www.energytransfer.com/-- through its general partnership interest in Energy Transfer Partners, L.P., transports natural gas midstream, stores and retails propane in the United States. The company, formerly known as La Grange Energy, L.P., was founded in 2002. ENERGY TRANSFER: Appeal in Monopolization Suit Remains Pending -------------------------------------------------------------- An appeal to the dismissal of a class action complaint against Energy Transfer Partners, L.P., alleging monopolization is in briefing stage before the U.S. Court of Appeals for the 5th Circuit, according to the Energy Transfer Equity, L.P.'s Feb. 24, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. ETP is a subsidiary of Energy Transfer Equity. In March 2008, a class action complaint was filed against ETP in the U.S. District Court for the Southern District of Texas. The action alleges that ETP engaged in unlawful restraint of trade and intentional monopolization and attempted monopolization of the market for fixed-price natural gas baseload transactions at the Houston Ship Channel from December 2003 through December 2005 in violation of federal antitrust law. The complaint further alleges that during this period ETP exerted monopoly power to suppress the price for these transactions to non-competitive levels in order to benefit its own physical natural gas positions. The plaintiff has, individually and on behalf of all other similarly situated sellers of physical natural gas, requested certification of its suit as a class action and seeks unspecified treble damages, court costs and other appropriate relief. On May 19, 2008, ETP filed a motion to dismiss this complaint. On March 26, 2009, the court issued an order dismissing the complaint. The court found that the plaintiffs failed to state a claim on all causes of action and for antitrust injury, but granted leave to amend. On April 23, 2009, the plaintiffs filed a motion for leave to amend to assert a claim for common law fraud and attached a proposed amended complaint as an exhibit. ETP opposed the motion and cross-moved to dismiss. On Aug. 7, 2009, the court denied the plaintiff's motion and granted ETP's motion to dismiss the complaint. On Sept. 10, 2009, this decision was appealed by the plaintiff to the U.S. Court of Appeals for the 5th Circuit. Dallas-based Energy Transfer Equity, L.P. -- http://www.energytransfer.com/-- through its general partnership interest in Energy Transfer Partners, L.P., transports natural gas midstream, stores and retails propane in the United States. The company, formerly known as La Grange Energy, L.P., was founded in 2002. GERBER LEGENDARY: Recalls 155,000 Gator-Brand Machetes ------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Gerber Legendary Blades, of Portland, Ore., a division of Fiskars Brands Inc., of Madison, Wis., announced a voluntary recall of about 149,000 Gerber(r) Gator(r) Machete and 6,000 Gator(r) Machete Jr. Consumers should stop using recalled products immediately unless otherwise instructed. The saw side of the machete can stick in wood during use, and if the user's hand slips off the handle and slides forward across the machete blade, this poses a laceration hazard. Gerber has received five reports of individuals cutting themselves while using the Gator Machete, all of whom required stitches. Gerber has received no reports of injuries associated with use of the Gator Machete Jr. This recall involves the Gerber Gator Machete and Gator Machete Jr. with the original handle. The Gator Machete is approximately 25 1/2" long and the Machete Jr. is approximately 18 3/4" long. The blade is marked with the "Gerber" trademark. The Gator Machete and Machete Jr. with a modified handle (an extended hand guard) are not included in this recall (see picture in recall announcement). Consumers should visually inspect their machete to determine if it is included in this recall. Pictures of the recalled product are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10157.html The recalled machetes were manufactured in China and sold at retail stores nationwide, including The Sportsman's Guide, Dick's Sporting Goods and Bass Pro Shops/American Rod & Gun, and through on-line stores from March 2007 through February 2010 for between $16 and $25. Consumers should stop using the recalled machetes immediately and contact Gerber to receive instructions on how to return the machete for a free replacement machete. For more information, contact Gerber Legendary Blades toll-free at (877) 314-9130 between 9:00 a.m. and 5:00 p.m., Pacific Time, Monday through Friday, or visit the firm's Web site at http://www.gerbergear.com/ GRISTEDE'S OPERATING: S.D.N.Y. Certified Female Employee Class -------------------------------------------------------------- A group of current and former Gristede's female employees has won its bid to represent a class of female grocery store workers in a case alleging that the grocery chain and its owner, John Catsimatidis, violated civil rights laws by segregating women into lower-paying jobs and failing to promote them to management positions. Federal Judge Laura T. Swain of the Southern District of New York granted the plaintiffs' class certification motion on Monday, finding that there are common issues as to whether Gristede's hiring, job placement, and promotion practices are based on subjective decision-making that is biased against women. The Court held that the plaintiffs offered sufficient evidence that Gristede's steers women into cashier positions, regardless of their qualifications or interests, and that Gristede's promotes clerks, a position it primarily staffs with men, to managers. The Court also held that Plaintiffs' statistical evidence, suggesting that there is virtually zero probability that the significant disparities in assignment and promotion of men and women occur by chance, supported their class action bid. The plaintiffs are Susan Duling, of Manhattan, Margaret Anderson, of the Bronx, and Lakeya Sewer, also of the Bronx. The Court cited the plaintiffs' evidence that hiring and promotion decisions are made by a handful of men who have unchecked discretion and are subject to little or no oversight, and that Gristede's fails to provide managers and human resources employees with anti-discrimination training, post available positions, or formulate job requirements. The Court also noted the company's lack of anti-discrimination policies. Attorneys Adam T. Klein, Justin M. Swartz, Lewis Steel, Cara E. Greene, and Rachel Bien of Outten & Golden LLP represent the plaintiffs. Adam T. Klein said, "Women at Gristede's are disadvantaged from the moment they hand in their employment applications. And because promotions are based on a tap-on-the-shoulder system that favors men, women are unlikely ever to be promoted. Allowing the case to proceed as a class action is an important step in righting these wrongs." As reported in the Class Action Reporter on Oct. 26, 2006, Duling v. Gristede's Operating Corp., Case No. 06-cv-10197 (S.D.N.Y.), began in 2006 when two former cashiers sued Gristede's on behalf of themselves and all other women who worked for the company from November 2, 2004 through the present. In January 2010, the Court allowed the plaintiffs to add John Catsimatidis as an individual defendant, to add an additional plaintiff, and to request additional relief. The Plaintiffs are represented by: Adam T. Klein, Esq. Lewis Steel, Esq. Cara E. Greene, Esq. OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, NY 10016 Telephone: (212) 245-1000 HEWLETT-PACKARD: Chinese Notebook Owners Lodge AQSIQ Complaint -------------------------------------------------------------- Kathrin Hille at the Financial Times reports from Beijing that Chinese lawyers have filed a complaint on behalf of more than 170 consumers against Hewlett-Packard, requesting that the Chinese government order a recall of allegedly faulty notebook computers. The move is the first time the world's largest PC brand has faced organised action from overseas consumers. Ms. Hille says, and it is a sign that shoppers in the world's most populous market are increasingly aware of their consumer rights and more willing to fight for them. The complaint, seen by the Financial Times, was delivered to the General Administration for Quality Supervision, Inspection and Quarantine of the People's Republic of China (AQSIQ) on Monday. It requests that the quality watchdog investigate the quality of HP notebooks and order the company to buy back or exchange allegedly faulty machines bought by the plaintiffs and to compensate them for losses. It also calls for AQSIQ to request a recall of the notebooks. Laweach, a not-for-profit Web site that helped organise laptop users for the case, said Chinese buyers of certain HP laptop computers sold since 2007 had faced malfunctioning screens and overheating problems on a massive scale. The complaint said the problems were due to faulty graphics cards produced by Nvidia, a chipmaker which supplies several PC makers with this component. In July 2008, Nvidia publicly acknowledged quality problems with some graphics cards and announced it was paying PC makers to deal with resulting problems. The complaint said that although HP had offered an extension of warranty periods for some notebook models, that was not a thorough solution to the problem. "We have also noticed that HP in the US offered consumers extended warranty periods for even more models and compensated them for transport costs, but in China, it has not made a statement or offered services, and openly discriminated against Chinese consumers," the complaint said. The lawyer representing the consumers: Jiang Suhua, Esq. YINGKE LAW FIRM 2-103/105, Shiqiao World Trade Massion No. 16B Dongsanhuan Zhong Rd. Chaoyang District, Beijing 100022 CHINA Telephone: 86 10 8776 1162 E-mail: jiangsuhua@yingkelawyer.com said the group was not taking HP to court because the absence of class action in China meant the prospects for such action were dim. He said he hoped AQSIQ would order a recall, and consumers could then negotiate compensation with HP. AQSIQ has increasingly muscled in on consumer rights. So far this year, in the car market alone, the quality watchdog ordered recalls of two Mitsubishi models, two Peugeot models, one Citro�n model and one Chrysler model. A decision in the HP case would set a new precedent, however, as Chinese law so far has clear rules only for recalls of cars, food products, drugs and toys. "We hope we can set a precedent and help strengthen the protection of consumer rights in China," said Mr. Jiang. HP said it was not able to comment by the time of going to press. AQSIQ declined to comment. The issue has come to light just as HP announced it would sue MicroJet Technology, a Taiwanese maker of printer ink cartridges, and three other companies, alleging their products infringed its patents. HUNTINGTON BANCSHARES: Consolidated ERISA Suit Settlement Pending ----------------------------------------------------------------- The settlement of the consolidated Employee Retirement Income Security Act complaint has not been finalized or approved by the U.S. District Court for the Southern District of Ohio, according to Huntington Bancshares Incorporated 's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. Between Feb. 20 and 29, 2008, three putative class-action lawsuits were filed before the U.S. District Court for the Southern District of Ohio against the company, the Huntington Bancshares Incorporated Pension Review Committee, the Huntington Investment and Tax Savings Plan Administrative Committee, and certain of the company's officers and directors purportedly on behalf of participants in or beneficiaries of the Plan between July 1, 2007, or July 20, 2007, and the present. The complaints allege breaches of fiduciary duties in violation of the Employee Retirement Income Security Act relating to the company's stock being offered as an investment alternative for participants in the Plan. They seek money damages and equitable relief. On May 13, 2008, the three cases were consolidated into a single action. On Aug. 4, 2008, a consolidated complaint was filed asserting a class period of July 1, 2007 through the present, alleging breaches of fiduciary duties in violation of the ERISA relating to Huntington stock being offered as an investment alternative for participants in the Plan and seeking money damages and equitable relief. On Feb. 9, 2009, the court entered an order dismissing with prejudice the consolidated lawsuit in its entirety, and the plaintiffs thereafter filed a Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit. During the pendency of the appeal, the parties to the appeal commenced settlement discussions and have reached an agreement in principle to settle this litigation on a classwide basis for $1,450,000, subject to the drafting of definitive settlement documentation and court approval. The suit is "Riccio v. Huntington Bancshares Incorporated et al., Case No. 2:08-cv-00165-GLF-TPK," filed in the U.S. District Court for the Southern District of Ohio, Judge Gregory L. Frost, presiding. Representing the plaintiff is: Mark D. Lewis, Esq. Kitrick & Lewis Co LPA 515 E. Main Street, Suite 515 Columbus, OH 43215 Phone: 614-224-7711 - and - Jeffrey Phillip Harris, Esq. Statman Harris & Eyrich 441 Vine Street Suite 3700 Cincinnati, OH 45202-4704 Phone: 513-621-2666 - and - Edward W. Ciolko, Esq. Schiffrin Barroway Topaz & Kessler, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056 Representing the defendants is: Walter C. Carlson, Esq. Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 Phone: 312-853-7000 Fax: 312-853-7036 HUNTINGTON BANCSHARES: Dismissed Ohio Securities Suit Appealed -------------------------------------------------------------- The U.S. District Court for the Southern District of Ohio's dismissal of the consolidated securities fraud class-action lawsuit against Huntington Bancshares, Inc., is being appealed, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. Between Dec. 19, 2007, and Feb. 1, 2008, two putative class- action suits were filed against the company and certain of its current or former officers and directors purportedly on behalf of purchasers of securities during the periods from July 20, 2007, to Nov. 16, 2007, or from July 20, 2007, to Jan. 10, 2008. These complaints allege that the defendants violated Section 10(b) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act by issuing a series of allegedly false and misleading statements concerning our financial results, prospects, and condition, relating, in particular, to its transactions with Franklin Credit Management. On June 5, 2008, the two cases were consolidated into a single action. On Aug. 22, 2008, a consolidated complaint was filed asserting a class period of July 19, 2007 through Nov. 16, 2007, alleging that the defendants violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act by issuing a series of allegedly false and/or misleading statements concerning Huntington's financial results, prospects, and condition, relating, in particular, to its transactions with Franklin. The action was dismissed with prejudice on Dec. 4, 2009, and the plaintiffs thereafter filed a Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit. The suit is "Stephen Ellman, et al. v. Huntington Bancshares, Incorporated, et al., Case No. 07-CV- 01276," filed with the U.S. District Court for the Southern District of Ohio, Judge Michael H. Watson, presiding. Representing the plaintiffs is: David P. Meyer, Esq. David P. Meyer & Associates Co LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Phone: 614-224-6000 Fax: 614-224-6066 Representing the defendants is: Robert Ward Trafford, Esq. Porter Wright Morris & Arthur 41 S. High Street, Suite 2800 Columbus, OH 43215-6194 Phone: 614-227-2000 Fax: 614-227-2149 HUNTINGTON BANCSHARES: Bid to Nix Suits Over Transactions Pending ----------------------------------------------------------------- Motions to dismiss lawsuits filed in connection with Huntington Bancshares, Inc.'s acquisition of Sky Financial Group, Inc., certain transactions between Huntington and Franklin Credit Management Corp., and the financial disclosures relating to such transactions are pending. The three putative derivative class-action lawsuits were filed between Jan. 16, 2008, and April 17, 2008, before: 1. the Court of Common Pleas of Delaware County, Ohio; 2. the U.S. District Court for the Southern District of Ohio; and 3. the Court of Common Pleas of Franklin County, Ohio. The suits named as defendants certain of Huntington's current or former officers and directors, and variously allege breaches of fiduciary duty, waste of corporate assets, abuse of control, gross mismanagement, and unjust enrichment. Huntington is named as a nominal defendant in each of these actions. The derivative action filed in the District of Ohio was dismissed with prejudice on Sept. 23, 2009. The plaintiff in that action thereafter filed a Notice of Appeal to the U.S. Court of Appeals for the Sixth Circuit, but the appeal was dismissed at the plaintiff's request on Jan. 12, 2010. That plaintiff subsequently sent a letter to Huntington's Board of Directors demanding that it initiate certain litigation, which letter has been taken under advisement. Motions to dismiss the other two actions were filed on March 10, 2008, and Jan. 26, 2009, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. Huntington Bancshares, Inc. -- https://www.huntington.com/ -- is a multi-state diversified financial holding company. Through its subsidiaries, the company provides full-service commercial and consumer banking services, mortgage banking services, automobile financing, equipment leasing, investment management, trust services, brokerage services, reinsurance of private mortgage insurance, reinsurance of credit life and disability insurance, retail and commercial insurance agency services, and other financial products and services. The company has three lines of business: Regional Banking, Dealer Sales, and the Private Financial and Capital Markets Group (PFCMG). A fourth segment, Treasury/Other, includes the company's treasury function. The company's only banking subsidiary is The Huntington National Bank. KELLY SERVICES: Suits Over Wage and Hour Law Violations Pending --------------------------------------------------------------- Putative class action litigation against Kelly Services, Inc., involving alleged violations of state wage and hour laws, remain pending. Certain legal proceedings seek class action status; these matters individually and in the aggregate seek compensatory, statutory and/or punitive damages. During 2008 and 2009, several matters reached the stage in the litigation process that caused the Company to reassess its litigation risk and establish reserves which, in the aggregate accumulated to $27.8 million. The Company negotiated settlements in the two most significant of these cases, which received final court approval and were paid by the 2009 year end. No additional reserve was taken as a result of the final court orders, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. Kelly Services, Inc. -- http://www.kellyservices.com/-- is a global temporary staffing provider operating in 30 countries and territories throughout the world. KEVIN HOUSER: Accused of Unfair Trade Practices in La. Suit ----------------------------------------------------------- Sabrina Canfield at Courthouse News Service reports that in a federal class action, New Orleans Saints players Charles Grant and Jeremy Shockey say their former teammate Kevin Houser took them to the cleaners in a scheme involving putative film tax credits. The men say Mr. Houser was working as an agent in association with Securities America when he approached them about buying film tax credits that purportedly were available through Louisiana Film Studios LLC, a film producer. They say Mr. Houser claimed he was working with Wayne Read, a promoter who allegedly owned Louisiana Film Studios (LFS). The men say that in December 2008 Mr. Houser told them that Read, through LFS, had qualified for Louisiana Infrastructure Tax Credits, which are credits marketable to third parties to raise capital for LFS, with tax benefits for the purchasers. The plaintiffs say they understood they were purchasing tax credits, not investing in LFS or in any studio, motion picture, production or production company. In January 2009, the men say, Mr. Grant paid $425,000 to Houser and Securities America, for which he was to receive $565,000 in state tax credits. Mr. Shockey says he paid $85,000 and was to receive $113,000 in tax credits. Mr. Grant and Mr. Shockey say they believed their money was to be placed in escrow and held in trust until the tax credits were certified by the state and delivered to them by the end of March 2009. But the men says that Mr. Houser and his wife were creditors of LFS and had an interest in the cash derived from the sale of tax credits, but didn't tell Mr. Grant and Mr. Shockey. At the times, the plaintiffs say, Mr. Houser and his wife owned 47 Construction LLC, which had a multimillion-dollar contract to improve the film studio operated by LFS, but Houser failed to tell Grant and Shockey of his relationship to 47 Construction or of the construction company's relationship to LFS. Rather than create an escrow account or other device to protect Mr. Grant and Mr. Shockey's money while they awaited the tax credits, they say their money was instead "wasted, converted and dissipated by LFS" and others. They say they never got the tax credits and Mr. Houser kept some of their money as a commission or finders fee. Mr. Houser was the longest-tenured Saints player until he was cut by the team before the start of the 2009 season, when news of the tax credit debacle began to surface, according to the Times Picayune. In addition to Kevin Houser and Securities America Inc., the class, estimated at more than 100 people, sued American International Specialties Lines Insurance Co., Houser's insurance carrier. It seeks damages for unfair trade practices and unjust enrichment. A copy of the Complaint in Grant, et al. v. Kevin Houser, Securities America, Inc., et al., Case No. 10-cv-00805 (E.D. La.), is available at: http://www.courthousenews.com/2010/03/09/SaintsTax.pdf The Plaintiffs are represented by: Fred L. Herman, Esq. Thomas J. Barbera, Esq. LAW OFFICES OF FRED HERMAN 1010 Common St., Suite 3000 New Orleans, LA 70112 Telephone: 504-581-7070 - and - Stephen J. Herman, Esq. HERMAN HERMAN KAT & COTLAR LLP 820 O'Keefe Ave. New Orleans, LA 70113 Telephone: 504-581-4892 LUMBER LIQUIDATORS: Defends Suit by Ex-Store Managers in Calif. --------------------------------------------------------------- Lumber Liquidators, Inc., intends to defend a putative class action suit filed by a former store manager and a current assistant store manager, according to Lumber Liquidators Holdings, Inc.'s Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. On Sept. 3, 2009, the Plaintiffs filed a putative class action suit against LLI in the Superior Court of California in and for the County of Alameda. The Plaintiffs allege that with regard to certain groups of current and former employees in LLI's California stores, LLI violated California law by failing to calculate and pay overtime wages properly, provide meal breaks, compensate for unused vacation time, reimburse for certain expenses and maintain required employment records. The Plaintiffs also claim that LLI did not calculate and pay overtime wages properly for certain of LLI's non-exempt employees, both in and out of California, in violation of federal law. In their suit, the Plaintiffs seek compensatory damages, certain statutory penalties, costs, attorney's fees and injunctive relief. LLI removed the case to the U.S. District Court for the Northern District of California. Toano, Va.-based Lumber Liquidators Inc is a specialty retailer of hardwood flooring in the United States. It offers hardwood flooring products from more than 25 domestic and exotic wood species in both prefinished and unfinished brands of various widths and lengths. MILLIPORE CORP: Being Sold to Merck for Too Little, Suit Claims --------------------------------------------------------------- Courthouse News Service reports that Millipore Corp. is selling itself too cheaply to Merck, for $7.2 billion, or $107 a share, shareholders say in Middlesex County Court, Boston. A copy of the Complaint in United Union of Roofers, Waterproofers and Allied Workers Local Union No. 8 v. Millipore Corporation, et al., Case No. 10-0855 (Mass. Super. Ct., Middlesex Cty.), is available at: http://www.courthousenews.com/2010/03/09/SCAMarch9.pdf The Plaintiff is represented by: Peter Lagorio, Esq. SAXENA WHITE P.A. 63 Atlantic Ave. Boston, MA 02110 Telephone: 800-361-5096 - and - Joseph E. White, III, Esq. SAXENA WHITE P.A. 2424 North Federal Highway, Suite 257 Boca Raton, FL 33431 Telephone: 561-394-3399 MEDIVATION INC: Securities Fraud Complaint Filed in N.D. Calif. --------------------------------------------------------------- Coughlin Stoia Geller Rudman & Robbins LLP and other lawyers filed Applestein v. Medication, Inc., et al., Case No. 10-cv-_____ (N.D. Calif.), on behalf of purchasers of Medivation, Inc. common stock during the period between July 17, 2008, and March 2, 2010, inclusive. A copy of the complaint as available at: http://www.csgrr.com/cases/medivation/ The complaint charges Medivation and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Medivation is a biopharmaceutical company that focuses on the development of small molecule drugs for the treatment of Alzheimer's disease, Huntington's disease, and castration- resistant prostate cancer. The complaint alleges that during the Class Period, defendants made false and misleading statements regarding the Company's drug Dimebon. Specifically, throughout the Class Period, defendants violated the federal securities laws by disseminating false and misleading statements to the investing public about the effectiveness of Dimebon as a treatment for Alzheimer's disease, making it impossible for shareholders to gain a meaningful or realistic understanding of the drug's progress toward FDA approval and market success. Then, on March 3, 2010, before the market opened, defendants were forced to publicly disclose that Dimebon did not meet primary and secondary goals in a Phase 3 trial for patients with mild to moderate Alzheimer's disease. As a result of this news, Medivation's stock plummeted $27.15 per share to close at $13.10 per share on March 3, 2010 -- a one-day decline of 67% on volume of 45 million shares. Plaintiff seeks to recover damages on behalf of all purchasers of Medivation common stock during the Class Period. The plaintiff is represented by Coughlin Stoia, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Coughlin Stoia -- http://www.csgrr.com/-- a 180-lawyer firm with offices in San Diego, San Francisco, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta, is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. MINNESOTA: Suit Complains About Termination of GAMC Program ----------------------------------------------------------- Bridget Freeland at Courthouse News Service reports that the "poorest of the poor" Minnesotans will be cut off from state- funded health care because Gov. Tim Pawlenty cut $16 million from the state medical assistance program, a class action claims in Ramsey County Court. Recipients of the General Assistance Medical Care Program (GAMC) -- 60 percent of whom suffer from a "diagnosed mental illness" and 30 percent of whom have some form of "chronic physical illness" -- will lose their medical care on April 1, the class claims. Ninety percent of GAMC recipients live on $226 a month or less, according to the complaint. The co-defendant Department of Human Services plans to "transition GAMC recipients to another state-operated medical program," but "the proposed transition leaves so many gaps in coverage," the class claims. Named plaintiff James Beede, a Vietnam Veteran, lives on $203 per month. He says that if he loses GAMC on April 1, "his ability to pay for dental and other medical needs would be at risk." Gov. Pawlenty cut more than $381 million from GAMC from the 2001 budget, allowing $345 million to remain for the 2010 program. He then "announced that he would unallot a portion of the appropriation that he had just signed into law," rather than veto the items, to try to make an end run around the Legislature's power to override his vetoes, the class claims. Facing a budget deficit in June 2009, Department of Management and Budget Commissioner Thomas Hanson "proposed a series of spending reductions, including a $236 million reduction in human services spending," according to the complaint. Gov. Pawlenty then "unalloted" $15.9 million from the GAMC program. Although more than $26 million explicitly appropriated by the Legislature for GAMC in 2010 will remain at the end of March, Commissioner Mr. Hanson's February 2010 financial report states that this money will be used for a different purpose," the complaint states. The class says the "unallotment" is illegal, and that the $42 million in total funding -- should the $16 million be restored -- is "more than enough to continue the program through the month of April." The class seeks declaratory judgment and an injunction. It claims Gov. Pawlenty violated the separation of powers doctrine of the Minnesota Constitution, and state budget law. Copies of the Summons and the Complaint in Fischer, et al. v. Pawlenty, et al., Case No. 62cv-10-1830 (Minn. Dist. Ct., Ramsey Cty.), are available at: http://www.courthousenews.com/2010/03/09/MinnMed.pdf The Plaintiffs are represented by: Michael Fargione, Esq. Anne Quincy, Esq. MID-MINNESOTA LEGAL ASSISTANCE 430 First Ave. North, Suite 300 Minneapolis, MN 55401-1780 Telephone: 612-746-3763 MODERN WOODMEN: Not Licensed to Sell Insurance, Nev. Suit Claims ---------------------------------------------------------------- Courthouse News Service reports that the Modern Woodmen of America and its agent Narcisa Dolly Flores sold thousands of life insurance policies in Nevada without a license to do so, a class action claims in Clark County Court, Las Vegas. A copy of the Complaint in Yabut, et al. v. Modern Woodmen of America, et al., Case No. A-10-611258-C (Nev. Dist. Ct., Clark Cty.), is available at: http://www.courthousenews.com/2010/03/09/Insure.pdf The Plaintiffs are represented by: Jesse M. Sbaih, Esq. JESSE SBAIH & ASSOCIATES, LTD. The District at Green Valley Ranch 170 South Green Valley Parkway, Suite 280 Henderson, NV 89012 Telephone: 702-896-2529 OKLAHOMA GAS: Plaintiffs' Appeal of Nixed Certification Pending --------------------------------------------------------------- A ruling is pending on the plaintiffs' motion for reconsideration on the District Court of Stevens County, Kansas' denial of the class certification in class action petition involving OGE Energy, according to the Oklahoma Gas and Electric Co.'s Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. On Sept. 24, 1999, various subsidiaries of OGE Energy were served with a class action petition filed in the District Court of Stevens County, Kansas by Quinque Operating Company and other named plaintiffs alleging the mismeasurement of natural gas on non-Federal lands. On April 10, 2003, the court entered an order denying class certification. On May 12, 2003, the plaintiffs (now Will Price, Stixon Petroleum, Inc., Thomas F. Boles and the Cooper Clark Foundation, on behalf of themselves and other royalty interest owners) filed a motion seeking to file an amended class action petition, and the court granted the motion on July 28, 2003. In its amended petition (the "Fourth Amended Petition"), the company and Enogex Inc. were omitted from the case but two of OGE Energy's subsidiary entities remained as defendants. The plaintiffs' Fourth Amended Petition seeks class certification and alleges that approximately 60 defendants, including two of OGE Energy's subsidiary entities, have improperly measured the volume of natural gas. The Fourth Amended Petition asserts theories of civil conspiracy, aiding and abetting, accounting and unjust enrichment. In their briefing on class certification, the plaintiffs seek to also allege a claim for conversion. The plaintiffs seek unspecified actual damages, attorneys' fees, costs and pre-judgment and post-judgment interest. The plaintiffs also reserved the right to seek punitive damages. Discovery was conducted on the class certification issues, and the parties fully briefed these same issues. A hearing on class certification issues was held April 1, 2005. In May 2006, the court heard oral argument on a motion to intervene filed by Colorado Consumers Legal Foundation, which is claiming entitlement to participate in the putative class action. The court has not yet ruled on the motion to intervene. The class certification issues were briefed and argued by the parties in 2005 and proposed findings of facts and conclusions of law on class certification were filed in 2007. On Sept. 18, 2009, the court entered its order denying class certification. On Oct. 2, 2009, the plaintiffs filed for reconsideration of the court's denial of class certification. On Feb. 10, 2010, the court heard arguments on the rehearing. No ruling on this motion has been made. OGE Energy is the parent company of Oklahoma Gas and Electric Company, which serves approximately 776,000 customers in a service territory spanning 30,000 square miles in Oklahoma and western Arkansas, and of Enogex LLC, a natural gas pipeline business with principal operations in Oklahoma. OKLAHOMA GAS: Continues to Defend Suit by Customers in Oklahoma --------------------------------------------------------------- Oklahoma Gas and Electric Co. continues to defend a putative class action alleging that the company improperly charged sales tax based on franchise fee charges paid by its customers. On June 19, 2006, two company customers brought a putative class action, on behalf of all similarly situated customers, in the District Court of Creek County, Oklahoma, challenging certain charges on the Company's electric bills. The plaintiffs claim that the company improperly charged sales tax based on franchise fee charges paid by its customers. The plaintiffs also challenge certain franchise fee charges, contending that such fees are more than is allowed under Oklahoma law. The company's motion for summary judgment was denied by the trial judge. The company filed a writ of prohibition at the Oklahoma Supreme Court asking the court to direct the trial court to dismiss the class action suit. In January 2007, the Oklahoma Supreme Court "arrested" the District Court action until, and if, the propriety of the complaint of billing practices is determined by the Oklahoma Corporation Commission. In September 2008, the plaintiffs filed an application with the OCC asking the OCC to modify its order which authorized the company to collect the challenged franchise fee charges. A procedural schedule and notice requirements for the matter were established by the OCC on Dec. 4, 2008. On March 10, 2009, the Oklahoma Attorney General, the company, OG&E Shareholders Association and the Staff of the Public Utility Division of the OCC all filed briefs arguing that the application should be dismissed. A hearing on the motions to dismiss was held before an administrative law judge on March 26, 2009. On June 30, 2009, the ALJ issued a report recommending that the application be dismissed. On July 9, 2009, the applicants filed a Notice of Appeal and a hearing on this matter was scheduled for Nov. 5, 2009. On Dec. 9, 2009, the OCC issued an order dismissing the plaintiffs' request for a modification of the OCC order which authorizes the Company to collect and remit sales tax on franchise fee charges. In its Dec. 9, 2009 order, the OCC advised the plaintiffs that the ruling does not address the question of whether the company's collection and remittance of such sales tax should be discontinued prospectively. On Dec. 21, 2009, the plaintiffs filed a motion at the Oklahoma Supreme Court asking the court to deny the company's writ of prohibition and to remand the cause to the District Court. On Dec. 29, 2009, the Oklahoma Supreme Court declared the plaintiffs' motion moot. On Jan. 27, 2010, the OCC Staff filed a motion asking the OCC to dismiss the cause and close the cause at the OCC. If the OCC Staff's motion is granted, the plaintiffs would be required to file a new cause in order to ask for prospective relief. In its motion, the OCC Staff stated that the plaintiff's counsel advised the OCC Staff counsel that the plaintiffs have no desire to seek a determination regarding prospective relief from the OCC. It is unknown whether the plaintiffs will attempt to continue the District Court action, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. OGE Energy is the parent company of Oklahoma Gas and Electric Company, which serves approximately 776,000 customers in a service territory spanning 30,000 square miles in Oklahoma and western Arkansas, and of Enogex LLC, a natural gas pipeline business with principal operations in Oklahoma. PPG INDUSTRIES: Defending Consolidated Antitrust Suit in Pa. ------------------------------------------------------------ PPG Industries, Inc. continues to defend a consolidated purported class-action lawsuit alleging antitrust violations in Pittsburgh, Pa. Several complaints were filed in late 2007 and early 2008 in different federal courts naming PPG and other flat glass producers as defendants in purported antitrust class actions. The complaints allege that the defendants conspired to fix, raise, maintain and stabilize the price and the terms and conditions of sale of flat glass in the United States in violation of federal antitrust laws. In June 2008, these cases were consolidated into one federal court class action in Pittsburgh, Pa. Many allegations in the complaints are similar to those raised in ongoing proceedings by the European Commission in which fines were levied against other flat glass producers arising out of alleged antitrust violations. PPG is not involved in any of the proceedings in Europe. PPG divested its European flat glass business in 1998. A complaint containing allegations substantially similar to the U.S. litigation was filed in the Superior Court in Windsor, Ontario, Canada in August 2008 regarding the sale of flat glass in Canada. PPG is aware of no wrongdoing or conduct on its part in the operation of its flat glass businesses that violated any antitrust laws, according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. PPG Industries, Inc. -- http://www.ppg.com/-- is a global supplier of protective and decorative coatings. The company operates in six segments: Performance Coatings, Industrial Coatings, Architectural Coatings, Optical and Specialty Materials, Commodity Chemicals and Glass. The Performance Coatings, Industrial Coatings and Architectural Coatings segments supply protective and decorative finishes for customers in a range of end use markets, including industrial equipment, appliances and packaging; factory-finished aluminum extrusions and steel and aluminum coils; marine and aircraft equipment; automotive original equipment, and other industrial and consumer products. TOYOTA MOTOR: Associated Press Says Lawsuits May Cost Billions -------------------------------------------------------------- Curt Anderson and Greg Bluestein at The Associated Press report that Toyota owners claiming that massive safety recalls are causing the value of their vehicles to plummet have filed at least 89 class-action lawsuits that could cost the Japanese auto giant billions, according to a review of cases, legal precedent and interviews with experts. Those estimates do not include potential payouts for wrongful death and injury lawsuits, which could reach in the tens of millions each. Still, the sheer volume of cases involving U.S. Toyota owners claiming lost value -- six million or more -- could prove far more costly, adding up to losses in excess of $3 billion for the automaker. Such class-action lawsuits "are more scary for Toyota than the cases where people actually got injured," said Tom Baker, a University of Pennsylvania law professor. "A super-big injury case would be $20 million. But you could have millions of individual car owners who could (each) be owed $1,000. If I were Toyota, I'd be more worried about those cases." As Toyota continues to deal with the recalls and wavering public confidence in its vehicle safety, its biggest financial fight may be in the courtroom. A key decision could come at a March 25 hearing in San Diego, where a panel of federal judges will consider whether to consolidate the mushrooming cases into a single jurisdiction. After that, a judge will decide whether all claims filed by Toyota owners nationwide can be combined in a single legal action -- known as "certifying a class" -- and whether the claims have enough merit to move toward either trial or settlement. Toyota owners suing the company contend their vehicles have dropped in value because of the recalls and that Toyota knew all along about safety problems but concealed them from buyers. They point to evidence such as Kelley Blue Book's decision this month to lower the resale value of recalled Toyotas an average of 3.5 percent, ranging from $300 less for a Corolla to $750 less for a Sequoia. The lawsuits started appearing on state and federal dockets last fall, when Toyota began recalling some 8 million vehicles worldwide because of persistent complaints about sudden unintended acceleration. The National Highway Traffic Safety Administration reports that 52 people have died in accelerator- related crashes. The AP conducted an extensive review of federal court filings and uncovered a total of 89 class-action lawsuits filed nationwide as of Monday. Toyota attorneys said last week in a court filing that the company is aware of 82 such cases. One leading attorney in the class-action effort, Northeastern University law professor Tim Howard, said the number of owners claiming economic damages because of the recalls could reach 6 million. If each were awarded $500 -- likely a conservative estimate -- Toyota would have to fork over $3 billion in economic loss damages alone. This does not include possible payouts in wrongful death or injury cases as well as lawsuits filed by shareholders claiming losses from share prices that have tumbled more than 16 percent since January as concerns linger over if the company has recalled all the vehicles it needs to and if it found the right fix. One Prius driver said on Monday his car sped out of control on a San Diego County freeway, and came to a safe stop after a 30 mile ride. The incident occurred two weeks after he had taken his vehicle in for repairs at a dealership and was turned away. Jackpot for lawyers? Corporations often settle big cases rather than risk an even bigger damage award at a trial. Automakers in the past have been forced to pay vehicle owners for lost value because of safety problems. Ford, for example, agreed in 2008 to compensate 800,000 Explorer owners who sued because of rollover dangers. That settlement provided owners only with vouchers of between $300 and $500 to buy new Ford products. In that case, the lawyers received about $25 million in fees and costs, and the Toyota case could result in a similar windfall for attorneys. A study by the Federal Judicial Center concluded attorneys in class-action lawsuits typically get fees between 27 percent and 30 percent of what they recover in damages - which could reach $1 billion in a $3 billion settlement. Toyota could end up facing an even bigger payoff if a judge decides attorneys' fees should be added to any plaintiffs' award. The San Diego hearing will be conducted before the seven-member Judicial Panel on Multidistrict Litigation, which decides whether similar lawsuits filed in multiple federal districts should be centralized in one location for pretrial motions, hearings and the like. A federal judge would be chosen to determine whether the Toyota cases should be certified as a class action and make other key rulings, such as deciding on a likely Toyota motion to dismiss. Under federal law, a class action must have 100 or more plaintiffs, damages sought must exceed $5 million and the judge must be persuaded the claims are identical or very similar. If a class is not certified, each lawsuit would have to be pursued on its own. Toyota has so far recalled 5.6 million vehicles in the U.S. because of problems caused by what it says are accelerator pedals that become sticky or get trapped under floor mats. Another 437,000 Prius models have been recalled worldwide for what Toyota says is an antilock-braking glitch. The vast majority of lawsuits claiming economic loss stem from the accelerator problems, and many contend the company's effort to fix floor mats or accelerator pedals are insufficient. Dozens of lawsuits claim Toyota has ignored problems with its electronic throttle system. Separately, NHTSA is looking into claims from more than 60 Toyota owners that their vehicles continue to surge forward unexpectedly despite having their vehicles repaired. Toyota has denied that its electronic throttle is to blame and has been focused on dealing with the recalls - a strategy that could affect the outcome of the lawsuits. "Toyota's strategy (should be) to fix them, fix them immediately and at no cost, and do it as quickly and effectively as you can so after the dust settles, your car's value won't have depreciated much," said Edward C. Martin, a law professor at Cumberland School of Law at Samford University in Birmingham, Alabama. "We do not believe that electronics are at the root of this issue," Toyota spokesman Mike Michels said Monday. In some of the lawsuits, Toyota owners seek additional damages because they're afraid to drive what they call "defective and dangerous" cars, while still others claim insurance premiums will likely go up. "My wife has been worried about it for a while. She's eight months pregnant and she's terrified to drive the car now," said Jerry Borbon, a Miami lawyer who is still driving his 2008 Toyota Prius and is a plaintiff in a potential class-action lawsuit. "We thought about trying to get rid of it, but we're stuck with it," he said, adding Toyota's damaged reputation has made it hard to sell the vehicle. "I don't feel secure in the car and I don't want my wife driving it." "There are a lot of unknowns and the big questions are what did Toyota know when," said Catherine Sharkey, a professor at the New York University School of Law. "If it turns out that Toyota had knowledge of these defects and did not act soon enough, then the best strategy is settlement." TOYOTA MOTOR: Sudden Acceleration Suit Filed in S.D. Ind. --------------------------------------------------------- WIBC 93.1 FM reports that a Carmel, Inc., woman is one of dozens of people across the nation who have filed class action lawsuits against Toyota. The suits come as the automaker struggles to recover from a massive recall involving sticky accelerator pedals. Indianapolis attorney: Eric S. Pavlack, Esq. Cohen & Malad, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 represents Judy Enderle. He says her lawsuit maybe combined with the dozens of others that have been filed so far. A hearing is set for March 25 before the Judicial Panel on Multidistrict Litigation in San Diego in MDL No. 2151 to decide how to proceed with lawsuits filed against Toyota in federal court or successfully removed from state to federal court. Mr. Pavlack says Toyota has not been honest about the problems with the cars and have not done enough to address those issues. The cases could cost the Japanese automaker more than $3 billion, The Associated Press reports. Mr. Pavlack filed Enderle V. Toyota Motor North America, Inc., et al., Case No. 10-cv-00142 (S.D. Ind.) (Barker, J.), on Feb. 3, 2010. TRAVELERS COMPANIES: Awaits Ruling on Brokerage Antitrust Suit -------------------------------------------------------------- The parties in In re Insurance Brokerage Antitrust Litigation continue to await a ruling from the Third Circuit, , according to The Travelers Companies, Inc.'s Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. In 2005, four putative class action lawsuits were brought against a number of insurance brokers and insurers, including the company and/or certain of its affiliates, by plaintiffs who allegedly purchased insurance products through one or more of the defendant brokers. The plaintiffs alleged that various insurance brokers conspired with each other and with various insurers, including the Company and/or certain of its affiliates, to artificially inflate premiums, allocate brokerage customers and rig bids for insurance products offered to those customers. To the extent they were not originally filed there, the federal class actions were transferred to the U.S. District Court for the District of New Jersey and were consolidated for pre-trial proceedings with other class actions under the caption In re Insurance Brokerage Antitrust Litigation. On Aug. 1, 2005, various plaintiffs, including the four named plaintiffs in the above-referenced class actions, filed an amended consolidated class action complaint naming various brokers and insurers, including the Company and certain of its affiliates, on behalf of a putative nationwide class of policyholders. The complaint included causes of action under the Sherman Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), state common law and the laws of the various states prohibiting antitrust violations. The complaint sought monetary damages, including punitive damages and trebled damages, permanent injunctive relief, restitution, including disgorgement of profits, interest and costs, including attorneys' fees. All defendants moved to dismiss the complaint for failure to state a claim. After giving plaintiffs multiple opportunities to replead, the court dismissed the Sherman Act claims on Aug. 31, 2007 and the RICO claims on Sept. 28, 2007, both with prejudice, and declined to exercise supplemental jurisdiction over the state law claims. The plaintiffs appealed the district court's decisions to the U.S. Court of Appeals for the Third Circuit. Oral argument before the Third Circuit took place on April 21, 2009. Additional individual actions have been brought in state and federal courts against the Company involving allegations similar to those in In re Insurance Brokerage Antitrust Litigation, and further actions may be brought. The Travelers Companies, Inc. provides commercial auto, property, workers' compensation, marine, and general and financial liability coverage to companies in North America and the United Kingdom. The Company also offers surety and fidelity bonds as well as professional and management liability coverage for commercial operations. The Company is based in New York. TRINITY INDUSTRIES: Received Unclaimed Settlement Refunds in Dec. ----------------------------------------------------------------- Trinity Industries, Inc., as of Dec. 31, 2009, had received $3.6 million in refunds of unclaimed settlement funds based on instructions from the Court Appointed Disbursing Agent to the settlement funds escrow agent. The Company and its wholly owned subsidiary, Trinity Marine Products, Inc., were co-defendants in a class-action lawsuit filed in April 2003 entitled Waxler Transportation Company, Inc. v. Trinity Marine Products, Inc., et al. A settlement of this case was approved by the court and became final Feb. 13, 2008. The CADA prepared an Allocation Plan and Distribution Plan for the disbursement of settlement compensation that was approved by the court on Nov. 14, 2008. Trinity Industries, Inc. -- http://www.trin.net/-- is a holding company of diversified industrial companies. Trinity manufactures and sells railcars and railcar parts, inland barges, concrete and aggregates, highway products, beams and girders used in highway construction, tank containers and structural wind towers. WELLCARE HEALTH: Discovery Ongoing in Eastwood Ent. & Hutton Suit ----------------------------------------------------------------- Discovery is ongoing in a consolidated putative class action complaint filed against WellCare Health Plans, Inc., according to the company's Feb. 18, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2009. Putative class action complaints were filed in October 2007 and in November 2007. These putative class actions, entitled Eastwood Enterprises, L.L.C. v. Farha, et al. and Hutton v. WellCare Health Plans, Inc. et al., respectively, were filed in the U.S. District Court for the Middle District of Florida against the company, Todd Farha, its former chairman and chief executive officer, and Paul Behrens, its former senior vice president and chief financial officer. Messrs. Farha and Behrens were also officers of various subsidiaries of the company. The Eastwood Enterprises complaint alleges that the defendants materially misstated our reported financial condition by, among other things, purportedly overstating revenue and understating expenses in amounts unspecified in the pleading in violation of the Securities Exchange Act of 1934, as amended. The Hutton complaint alleges that various public statements supposedly issued by defendants were materially misleading because they failed to disclose that we were purportedly operating our business in a potentially illegal and improper manner in violation of applicable federal guidelines and regulations. The complaint asserts claims under the Exchange Act. Both complaints seek, among other things, certification as a class action and damages. The two actions were consolidated, and various parties and law firms filed motions seeking to be designated as Lead Plaintiff and Lead Counsel. In an Order issued in March 2008, the Court appointed a group of five public pension funds from New Mexico, Louisiana and Chicago (the "Public Pension Fund Group") as Lead Plaintiffs. In October 2008, an amended consolidated complaint was filed in this class action against the company, Messrs. Farha and Behrens, and adding Thaddeus Bereday, a former senior vice president and general counsel, as a defendant. In January 2009, the company and certain other defendants filed a joint motion to dismiss the amended consolidated complaint, arguing, among other things, that the complaint failed to allege a material misstatement by defendants with respect to our compliance with marketing and other health care regulations and failed to plead facts raising a strong inference of scienter with respect to all aspects of the purported fraud claim. The court denied the motion in September 2009, and the company and the other defendants filed answers to the amended consolidated complaint in November 2009. Separately, in October 2009, an action was filed against us in the Court of Chancery of the State of Delaware entitled Behrens, et al. v. WellCare Health Plans, Inc. in which the plaintiffs, Messrs. Behrens, Bereday, and Farha, seek an order requiring the company to pay their respective expenses, including attorney fees, in connection with litigation and investigations in which the plaintiffs are involved by reason of their service as our directors and officers. Plaintiffs further challenge the company's right, prior to advancing such expenses, to first submit their expense invoices to its directors' and officers' insurance carrier for their preliminary review and evaluation of the adequacy of the description of services in the invoices and of the reasonableness of those expenses. WellCare Health Plans, Inc. -- http://www.wellcare.com/-- provides managed care services exclusively for government- sponsored healthcare programs, focusing on Medicaid and Medicare. Headquartered in Tampa, Florida, WellCare offers a variety of health plans for families, children, and the aged, blind, and disabled, as well as prescription drug plans. WELLS FARGO: 9th Cir. Agrees Bank Didn't Overcharge Mortgagors -------------------------------------------------------------- Elizabeth Banicki at Courthouse News Service reports that the United States Court of Appeals for the Ninth Circuit dismissed a class action accusing Wells Fargo of charging excessive underwriting fees. The three-judge panel said the law "does not reach the practice of 'overcharging.'" Lead plaintiffs Alinda and Armando Martinez said they were charged an $800 underwriting fee when they refinanced their mortgage through Wells Fargo. They said the fee was "unfair," "fraudulent" and "illegal," because it wasn't related to the bank's actual underwriting costs. They filed a class action on behalf of California mortgage borrowers who were similarly "overcharged" by Wells Fargo, according to the ruling. U.S. District Judge Ronald Whyte granted the bank's motion for dismissal, ruling that "even if Wells Fargo had overcharged the Martinezes for its services, it did not violate RESPA (Real Estate Settlement Procedures Act) in doing so because Wells Fargo provided a service in exchange for a fee." Judge Whyte also dismissed the Martinezes claims of unlawful conduct and fraud, because they failed to show "an underlying illegal predicate act." The appellate panel in San Francisco upheld Judge Whyte's ruling, saying the law only bars lenders from accepting money "where no service whatsoever is performed in exchange for that money." Writing for the 9th Circuit panel, U.S. District Judge Barbara Lynn said the law "cannot be read to prohibit charging fees, excessive or otherwise, when those fees are for services that were actually performed." The Martinezes also argued that Wells Fargo's overcharges and failure to disclose its actual costs constituted unlawful practices. Federal law requires the bank to "conspicuously and clearly itemize all charges imposed upon the borrower." The bank insisted that it must disclose only what it charges the customer, not its own costs. The Martinezes argued, unsuccessfully, that the distinction between a "charge" and a "cost" is hypertechnical. "It is beyond dispute that there is a difference between what a business 'charges' its customers for a service or product, and what the service or product 'costs' the business," Judge Lynn wrote. "That difference is called 'profit.'" A copy of the opinion in Martinez, et al. v. Wells Fargo Home Mortgage, Inc., et al., No. 07-17277 (9th Cir.), is available at: http://ResearchArchives.com/t/s?5814 The Plaintiffs-Appellants are represented by: Timothy G. Blood, Esq. Joseph D. Daley, Esq. Leslie E. Hurst, Esq. Thomas J. O'Reardon II, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619-231-1058 The Defendants-Appellees are represented by: Robert B. Bader, Esq. Thomas M. Hefferon, Esq. William F. Sheehan, Esq. GOODWIN PROCTER LLP 101 California St., Suite 1850 San Francisco, CA 94111 Telephone: 415-733-6000 * Canadian Bar Association Launches Class Action Task Force ----------------------------------------------------------- Jim Middlemiss at the Financial Post's Legal Post reports that the Canadian Bar Association, it has struck a blue-chip task force to address issues around national class actions. Currently, there is no system in place for establishing a national class action. It's a legal free for all. Lawyers simply file in a single or multiple provinces and compete to see who runs the case. Sometimes judges will name a case a national class suit or simply carve out different provinces, leaving it to judges in those locations to rule on the case as it pertains to the local residents. It's led to some nasty jurisdictional dust ups both between judges in different courts and among lawyers. There are often multiple class suits underway in various provinces all centred on the same issues and defendant lawyers and their corporate clients are often left stuck in the middle fighting it out across the country. The CBA said the current system impedes justice and creates confusion for the public. "The public, plaintiffs and defendants, the judiciary and the litigation bar are becoming increasingly frustrated by jurisdictional overlap caused by provincial class actions claiming to represent national classes," said CBA President Kevin Carroll. "Rules for the proper management of such cases are necessary." The task force will be chaired by: Sylvie Rodrigue, Esq. OGILVY RENAULT LLP Royal Bank Plaza, South Tower 200 Bay Street, Suite 3800 P.O. Box 84 Toronto, Ontario M5J 2Z4 CANADA Telephone: (416) 216-4000 It will focus on two possible solutions. The short-term solution is establishing a judicial protocol to ensure better co- ordination between the courts in different provinces, and to avoid duplication as well as inefficiencies in the trying of a case. The long-term plan is to develop rules for establishing a national class system, which could withstand a constitutional challenge. Provincial Superior Courts are constitutionally limited in how wide they can cast their rulings to impact non- residents. So there would have to be uniform legislation and amendments adopted to class action legislation in each province to make it fly. The task force will operate in two phases. The first involves broad consultations with stakeholders that will lead to the judicial protocol. The second will urge legislative reform. The task force comprises some heavy hitters on the bench, including: -- Chief Justice of Ontario Warren K. Winkler, -- British Columbia Chief Justice Robert J. Bauman, -- Saskatchewan Chief Justice Robert D. Laing, -- Quebec Superior Court Justice Louis Lacoursiere, and -- New Brunswick Supreme Court Justice Jean-Paul Albert Ouellette. There are also legal heavyweights from both the plaintiff and defence side of the class action bar from across the country, including: Marie Audren, Esq. BORDEN LADNER GERVAIS LLP 1000 de La Gauchetiere Street West, Suite 900 Montreal, Quebec H3B 5H4 CANADA Telephone: (514) 879-1212 - and - Kirk M. Baert, Esq. KOSKIE MINSKY LLP 20 Queen Street West Suite 900, Box 52 Toronto, Ontario M5H 3R3 CANADA Telephone: (416) 977-8353 - and - Daniel Belleau, Esq. BELLEAU LAPOINTE 306, Place d'Youville, Suite B-10 Montreal, Quebec H2Y 2B6 CANADA Telephone: (514) 987-6700 - and - Andrew D. Borrell, Esq. FASKEN MARTINEAU DUMOULIN LLP 2900-550 Burrard Street Vancouver, BC V6C 0A3 CANADA Telephone: (604) 631-3131 - and - Ward K. Branch, Esq. BRANCH MACMASTER 1410 - 777 Hornby Street Vancouver, B.C. V6Z 1S4 CANADA Telephone: (604) 654-2999 - and - D. Brian Foster, Esq. FRASER MILNER CASGRAIN LLP 15th Floor, Bankers Court 850 - 2nd Street SW Calgary, Alberta T2P 0R8 CANADA Telephone: (403) 268-7000 - and - Rodney L. Hayley, Esq. LAWSON LUNDELL LLP Suite 1600 Cathedral Place 925 West Georgia Street Vancouver, BC V6C 3L2 CANADA Telephone: (604) 685-3456 - and - Andre Lesperance, Esq. LAUZON BELANGER INC. 286 Saint-Paul West, Suite 100 Montreal, Quebec H2Y 2A3 CANADA Telephone: (514) 844-4646 - and - S. Gordon McKee, Esq. BLAKE, CASSELS & GRAYDON LLP 199 Bay Street Suite 2800, Commerce Court West Toronto ON M5L 1A9 CANADA Telephone: (416) 863-2400 - and - Simon V. Potter, Esq. MCCARTHY TETRAULT 1000 De La Gauchetiere Street West, Suite 2500 Montreal, Quebec H3B 0A2 CANADA Telephone: 514-397-4100 - and - Harvey T. Strosberg, Esq. SUTTS, STROSBERG LLP 600 - 251 Goyeau Street Windsor, Ontario N9A 6V4 CANADA Telephone: (519) 258-9333 - and - Raymond F. Wagner, Esq. WAGNER & ASSOCIATES PO Box 756, Central RPO Halifax NS B3J 2V2 CANADA Telephone: (902) 425-7330 The task force will begin its work this spring with an eye on completing the judicial protocol by August 2011. Asbestos Litigation ASBESTOS UPDATE: Fresenius Still Involved in Sealed Air Lawsuits ---------------------------------------------------------------- Fresenius Medical Care AG & Co. KGaA is still party to litigation with Sealed Air Corporation to confirm its entitlement to indemnification from Sealed Air for all losses and expenses incurred by the Company on pre-Merger tax liabilities and Merger- related claims. The Company was originally formed as a result of a series of transactions it completed under the Agreement and Plan of Reorganization dated as of Feb. 4, 1996, by and between W. R. Grace & Co. and Fresenius SE (Merger). At the time of the Merger, a Grace subsidiary known as W. R. Grace & Co.-Conn. had, and continues to have, significant liabilities arising out of product-liability related litigation (including asbestos-related actions), pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (NMC), which was Grace's dialysis business prior to the Merger. In connection with the Merger, W. R. Grace & Co.-Conn. agreed to indemnify the Company, FMCH, and NMC against all liabilities of Grace, whether relating to events occurring before or after the Merger, other than liabilities arising from or relating to NMC's operations. Grace and certain of its subsidiaries filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code on April 2, 2001. Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action complaints were filed against Grace and FMCH by plaintiffs claiming to be creditors of W. R. Grace & Co.- Conn., and by the asbestos creditors' committees on behalf of the W. R. Grace & Co. bankruptcy estate in the Grace Chapter 11 Proceedings, alleging that the Merger was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a conspiracy. All those cases have been stayed and transferred to or are pending before the U.S. District Court as part of the Grace Chapter 11 Proceedings. In 2003, the Company reached agreement with the asbestos creditors' committees on behalf of the W.R. Grace & Co. bankruptcy estate and Grace in the matters pending in the Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against it and other claims related to the Company that arise out of the bankruptcy of Grace. Under the terms of the settlement agreement as amended (Settlement Agreement), fraudulent conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice and the Company will receive protection against existing and potential future Grace-related claims, including fraudulent conveyance and asbestos claims, and indemnification against income tax claims related to the non-NMC members of the Grace consolidated tax group upon confirmation of a Grace bankruptcy reorganization plan that contains those provisions. Under the Settlement Agreement, the Company will pay a total of US$115 million without interest to the Grace bankruptcy estate, or as otherwise directed by the Court, upon plan confirmation. No admission of liability has been or will be made. The Settlement Agreement has been approved by the U.S. District Court. Subsequent to the Merger, Grace was involved in a multi- step transaction involving Sealed Air Corporation. The Company is engaged in litigation with Sealed Air to confirm its entitlement to indemnification from Sealed Air for all losses and expenses incurred by the Company relating to pre-Merger tax liabilities and Merger-related claims. Under the Settlement Agreement, upon confirmation of a plan that satisfies the conditions of the Company's payment obligation, this litigation will be dismissed with prejudice. Headquartered in Bad Homburg, Germany, Fresenius Medical Care AG & Co. KGaA is a dialysis provider. Its staff treats about 190,000 patients a year at some 2,500 dialysis clinics worldwide, 1,700 of which are based in the United States. ASBESTOS UPDATE: Federal-Mogul Records $40MM Payments from Trust ---------------------------------------------------------------- Federal-Mogul Corporation recorded payments from U.S. Asbestos Trust of US$40 million during the year ended Dec. 31, 2009, compared with US$225 million during the year ended Dec. 31, 2008. All asbestos-related personal injury claims against the Debtors will be addressed by the U.S. Asbestos Trust or the U.K. Asbestos Trust in accordance with the terms of the Plan and the Company Voluntary Arrangements (CVAs), and those claims will be treated and paid in accordance with the terms of the Plan, the CVAs, and their related documents. All asbestos property damage claims against the Debtors have been compromised and resolved through the Plan and the CVAs. Accordingly, the Debtors have not recorded an asbestos liability as of Dec. 31, 2009 or Dec. 31, 2008. Headquartered in Southfield, Mich., Federal-Mogul Corporation supplies powertrain and safety technologies, serving the world's foremost original equipment manufacturers of automotive, light commercial, heavy-duty, agricultural, marine, rail, off-road and industrial vehicles, as well as the worldwide aftermarket. ASBESTOS UPDATE: Hartford Still Involved in Insurance Litigation ---------------------------------------------------------------- The Hartford Financial Services Group, Inc. continues to be involved in claims litigation (including asbestos-related), both as a liability insurer defending or providing indemnity for third-party claims brought against insureds and as an insurer defending coverage claims brought against it. The Company accounts for such activity through the establishment of unpaid loss and loss adjustment expense reserves. The Company has been joined in actions by asbestos plaintiffs asserting that insurers had a duty to protect the public from the dangers of asbestos and that insurers committed unfair trade practices by asserting defenses on behalf of their policyholders in the underlying asbestos cases. Headquartered in Hartford, Conn., The Hartford Financial Services Group, Inc. offers personal and commercial insurance products, including homeowners, auto, and workers' compensation. Through its Hartford Life subsidiary, the Company offers individual and group life insurance, annuities, asset management, retirement plans, and mutual funds (managed both in-house and by other groups including Wellington Management). ASBESTOS UPDATE: Grace Has 430 Property Damage Claims at Dec. 31 ---------------------------------------------------------------- W. R. Grace & Co. says that, as of Dec. 31, 2009, following the reclassification, withdrawal or expungement of claims, about 430 asbestos-related Property Damage Claims subject to the March 31, 2003 bar date remain outstanding. The Company said that, as of Oct. 30, 2009, following the reclassification, withdrawal or expungement of claims, about 430 PD Claims subject to the March 31, 2003 bar date remain outstanding. (Class Action Reporter, Nov. 27, 2009) The Bankruptcy Court has approved settlement agreements covering about 375 of such claims for an aggregate allowed amount of US$144 million. The plaintiffs in asbestos property damage lawsuits generally seek to have the defendants pay for the cost of removing, containing or repairing the asbestos-containing materials in the affected buildings. Out of 380 asbestos property damage cases filed prior to the April 2, 2001 Bankruptcy Filing Date, 140 were dismissed without payment of any damages or settlement amounts; judgments after trial were entered in favor of the Company in nine cases; judgments after trial were entered in favor of the plaintiffs in eight cases for a total of US$86.1 million; 207 property damage cases were settled for a total of US$696.8 million; and 16 cases remain outstanding (including the one on appeal). Of the 16 remaining cases, eight relate to ZAI (Zonolite Attic Insulation) and eight relate to a number of former asbestos- containing products (two of which also are alleged to involve ZAI). About 4,300 additional PD claims were filed prior to the March 31, 2003 claims bar date established by the Bankruptcy Court. Eight of the ZAI cases were filed as purported class actions in 2000 and 2001. In addition, 10 lawsuits were filed as purported class actions in 2004 and 2005 with respect to persons and homes in Canada. As a result of the Filing, the eight U.S. cases have been stayed. In October 2004, the Bankruptcy Court held a hearing on motions filed by the parties to address a number of important legal and factual issues regarding the ZAI claims. In December 2006, the Bankruptcy Court issued an opinion and order holding that, although ZAI is contaminated with asbestos and can release asbestos fibers when disturbed, there is no unreasonable risk of harm from ZAI. The ZAI claimants sought an interlocutory appeal of the opinion and order with the District Court, but that request was denied. In the event the Joint Plan is not confirmed, the ZAI claimants have reserved their right to appeal such opinion and order if and when it becomes a final order. At the Debtors' request, in July 2008, the Bankruptcy Court established a bar date for U.S. ZAI PD Claims and approved a related notice program that required any person with a U.S. ZAI PD Claim to submit an individual proof of claim no later than Oct. 31, 2008. About 17,960 U.S. ZAI PD Claims were filed prior to the Oct. 31, 2008 claims bar date and, as of Dec. 31, 2009 an additional 1,300 U.S. ZAI PD Claims were filed. On Dec. 13, 2009, the Ontario Superior Court of Justice, in the Grace Canada, Inc. proceeding pending under the Companies' Creditors Arrangement Act, approved the Amended Settlement that would settle all Canadian ZAI PD Claims on the terms of the Joint Plan. On Oct. 20, 2008, the Bankruptcy Court established Aug. 31, 2009 as the bar date for Canadian ZAI PD Claims. About 13,100 Canadian ZAI PD Claims were filed prior to the bar date and, as of Dec. 31, 2009, an additional 1,000 Canadian ZAI PD Claims were filed. Under the Amended Settlement, all Canadian ZAI PD Claims filed before Dec. 31, 2009 would be eligible to seek compensation from the Canadian ZAI property damage claims fund. Headquartered in Columbia, Md., W. R. Grace & Co. produces and sells specialty chemicals and specialty materials on a global basis through its two operating segments, Grace Davison and Grace Construction Products. ASBESTOS UPDATE: W.R. Grace Still Party to Personal Injury Cases ---------------------------------------------------------------- W. R. Grace & Co. is still involved in asbestos personal injury claims, in which the claimants allege adverse health effects from exposure to asbestos-containing products formerly manufactured by the Company. Asbestos personal injury claimants allege adverse health effects from exposure to asbestos-containing products formerly manufactured by the Company. Cumulatively through the April 2, 2001 Bankruptcy Filing Date, 16,354 asbestos personal injury lawsuits involving about 35,720 PI Claims were dismissed without payment of any damages or settlement amounts (primarily on the basis that Grace products were not involved) and about 55,489 lawsuits involving about 163,698 PI Claims were disposed of (through settlements and judgments) for a total of US$645.6 million. As of the Filing Date, 129,191 PI Claims were pending against the Company. The Company said it believes that a substantial number of additional PI Claims would have been received between the Filing Date and Dec. 31, 2009 had such PI Claims not been stayed by the Bankruptcy Court. The Bankruptcy Court has entered a case management order for estimating liability for pending and future PI Claims. A trial for estimating liability for PI Claims began in January 2008 but was suspended in April 2008 as a result of the PI Settlement. Headquartered in Columbia, Md., W. R. Grace & Co. produces and sells specialty chemicals and specialty materials on a global basis through its two operating segments, Grace Davison and Grace Construction Products. ASBESTOS UPDATE: Grace Excess Coverage Still at $923M in Dec. 31 ---------------------------------------------------------------- W. R. Grace & Co. says that, as of Dec. 31, 2009, there remains about US$923 million of excess asbestos-related coverage from 53 presently solvent insurers. As of Sept. 30, 2009, there remained about US$923 million of excess coverage from 53 presently solvent insurers. (Class Action Reporter, Nov. 27, 2009) The Company holds insurance policies that provide coverage for 1962 to 1985 with respect to asbestos-related lawsuits and claims. For the most part, coverage for years 1962 through 1972 has been exhausted, leaving coverage for years 1973 through 1985 available for pending and future asbestos claims. Since 1985, insurance coverage for asbestos-related liabilities has not been commercially available to the Company. The Company has entered into settlement agreements with various excess insurance carriers. These settlements involve amounts paid and to be paid to the Company. The unpaid maximum aggregate amount available under these settlement agreements is about US$440 million. Presently, the Company has no agreements in place with insurers with respect to about US$483 million of excess coverage. Those policies are at layers of coverage that have not yet been triggered, but certain layers would be triggered if the Prior Plan were approved at the recorded asbestos-related liability of US$1.70 billion. In addition, the Company has about US$253 million of excess coverage with insolvent or non-paying insurance carriers. The Company has filed and continues to file claims in the insolvency proceedings of these carriers. In November 2006, the Company entered into a settlement agreement with an underwriter of a portion of its excess insurance coverage. The insurer paid a settlement amount of US$90 million directly to an escrow account in respect of claims for which the Company was provided coverage under the affected policies. In October 2009, in compliance with the settlement agreement, the Company transferred about US$3.7 million of the accrued interest to an agent of the underwriter. Due to the open contingencies for the release of the amount in the escrow account, the Company has not recorded this amount or reduced its asbestos insurance receivable balance. Under the Joint Plan, the amount in the escrow account would be assigned to the PI Trust. The escrow account balance at December 31, 2009 was about US$93.5 million, including interest earned on the account. Headquartered in Columbia, Md., W. R. Grace & Co. produces and sells specialty chemicals and specialty materials on a global basis through its two operating segments, Grace Davison and Grace Construction Products. ASBESTOS UPDATE: Grace Records $51.6Mil Libby Cleanup Liability --------------------------------------------------------------- W. R. Grace & Co.'s total estimated liability for asbestos remediation related to its former vermiculite operations in Libby, Mont., including the cost of remediation at vermiculite processing sites outside of Libby, was US$51.6 million at Dec. 31, 2009 and US$48.4 million at Dec. 31, 2008. The Company's total estimated liability for asbestos remediation related to its former vermiculite operations in Libby was US$52.2 million at Sept. 30, 2009. (Class Action Reporter, Nov. 27, 2009) During 2008, the Company paid US$250 million plus accrued interest of about US$2 million pursuant to an agreement (EPA Cost Recovery Agreement), between the Company and the U.S. Department of Justice to settle the U.S. Environmental Protection Agency's cost recovery claims for all past and future remediation costs with respect to the Company's former Libby operations, except for those relating to the Grace-owned Libby vermiculite mine. During 2009, the Company learned that EPA may reinvestigate about 100 former or currently operating plants at which vermiculite concentrate from the Grace-owned Libby vermiculite mine was expanded. Of these expansion plants, seven are currently owned by the Company. Headquartered in Columbia, Md., W. R. Grace & Co. produces and sells specialty chemicals and specialty materials on a global basis through its two operating segments, Grace Davison and Grace Construction Products. ASBESTOS UPDATE: Settlement in NJDEP v. Grace Entered on Oct. 19 ---------------------------------------------------------------- W. R. Grace & Co., two of its former employees and the New Jersey of Department of Environmental Protection (NJDEP), on Oct. 19, 2009, entered into a stipulation in the amount of US$1 million that would resolve the NJDEP's claims and all related litigation, including the appeals pending in the Third Circuit. In 2005, the NJDEP filed a lawsuit against the Company and two former employees (N.J. Dept. of Environmental Protection v. W. R. Grace & Co. et al.). The suit seeks civil penalties for alleged misrepresentations and false statements made in a Preliminary Assessment/Site Investigation Report and Negative Declarations submitted by Grace to the NJDEP in 1995 pursuant to the New Jersey Industrial Site Recovery Act. The Company submitted the report, which was prepared by an independent environmental consultant, in connection with the closing of the Company's former vermiculite expansion plant in Hamilton Township, N.J. In 2005, the Bankruptcy Court stayed this lawsuit. In April 2008, the Bankruptcy Court issued a ruling stating that the lawsuit filed by the NJDEP was in violation of the automatic stay and enjoining further pursuit of all claims in the lawsuit. In March 2009, the Delaware District Court upheld the Bankruptcy Court's ruling. In April 2009, the NJDEP appealed this ruling to the U.S. Court of Appeals for the Third Circuit. In April 2007, New Jersey filed a motion for leave to file a late proof of claim in the amount of US$31 million with respect to substantially the same claims set forth in the lawsuit described in the preceding paragraph. In August 2007, the Bankruptcy Court denied this motion and the District Court affirmed this ruling on appeal in March 2008. In April 2008, New Jersey appealed this ruling to the U.S. Court of Appeals for the Third Circuit. The settlement amount is payable to NJDEP upon the Company's emergence from bankruptcy. Headquartered in Columbia, Md., W. R. Grace & Co. produces and sells specialty chemicals and specialty materials on a global basis through its two operating segments, Grace Davison and Grace Construction Products. ASBESTOS UPDATE: Foster Wheeler Has $352.5M Liability at Dec. 31 ---------------------------------------------------------------- Foster Wheeler AG's long-term asbestos-related liability amounted to US$352,537,000 as of Dec. 31, 2009, compared with US$355,779,000 as of Dec. 26, 2008, according to the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. The Company's long-term asbestos-related liability was US$325,401,000 as of Sept. 30, 2009. (Class Action Reporter, Nov. 6, 2009) The Company's long-term asbestos-related insurance recovery receivable amounted to US$244,265,000 as of Dec. 31, 2009, compared with US$281,540,000 as of Dec. 31, 2008. Some of the Company's U.S. and U.K. subsidiaries are defendants in numerous asbestos-related lawsuits and out-of-court informal claims pending in the United States and the United Kingdom. Plaintiffs claim damages for personal injury alleged to have arisen from exposure to or use of asbestos in connection with work allegedly performed by the subsidiaries during the 1970s and earlier. Net asbestos-related provision amounted to US$26,265,000 during the fiscal year ended Dec. 31, 2009, compared with US$6,607,000 during the fiscal year ended Dec. 31, 2008. Headquartered in Geneva, Switzerland, Foster Wheeler AG is an international engineering and construction contractor that designs, builds, and upgrades industrial processing facilities and manufactures power equipment through its two business units: Global Engineering & Construction and Global Power. ASBESTOS UPDATE: Claims v. Foster Wheeler Drop to 125.1T in U.S. ---------------------------------------------------------------- Foster Wheeler AG's subsidiaries in the United States faced 125,100 open asbestos claims during the fiscal year ended Dec. 31, 2009, compared with 130,760 open claims during the fiscal years ended Dec. 26, 2008. During the fiscal year ended Dec. 31, 2009, the Company noted 4,410 new claims filed and 10,070 claims resolved. During the fiscal year ended Dec. 26, 2008, the Company noted 4,950 new claims and 5,530 claims resolved. The Company's U.S. subsidiaries faced 129,300 open asbestos claims during the fiscal quarter and nine months ended Sept. 30, 2009, compared with 130,370 claims during the fiscal quarter and nine months ended Sept. 26, 2008. (Class Action Reporter, Nov. 20, 2009) Of the open claims, the Company's subsidiaries are respondents in about 30,400 open claims wherein the Company has administrative agreements and are named defendants in lawsuits involving about 94,700 plaintiffs. Total asbestos-related assets amounted to US$274 million during the fiscal year ended Dec. 31, 2009, compared with US$284.8 million during the fiscal year ended Dec. 31, 2008. Total asbestos-related liabilities amounted to US$376.5 million during the fiscal year ended Dec. 31, 2009, compared with US$385.3 million during the fiscal year ended Dec. 26, 2008. Open U.S. asbestos claims not valued in the liability numbered to 94,740 during the fiscal year ended Dec. 31, 2009, compared with 84,830 claims during the fiscal year ended Dec. 26, 2008. Open U.S. asbestos claims valued in the liability numbered to 30,360 during the fiscal year ended Dec. 31, 2009, compared with 45,930 during the fiscal year ended Dec. 26, 2008. The Company recorded a charge of US$26.4 million in fiscal year 2009 primarily for increased asbestos defense costs projected through fiscal year 2024 and the Company's rolling 15-year asbestos liability estimate. The amount paid for asbestos litigation, defense and case resolution was US$63.5 million in fiscal year 2009, US$70.6 million in fiscal year 2008, and US$86.7 million in fiscal year 2007. In fiscal year 2009, payments made exceeded proceeds from settlements with the Company's insurers by US$24.4 million. Through Dec. 31, 2009, total cumulative indemnity costs paid were about US$692.3 million and total cumulative defense costs paid were about US$315.6 million. As of Dec. 31, 2009, total asbestos-related liabilities were comprised of an estimated liability of US$141.6 million relating to open (outstanding) claims being valued and an estimated liability of US$234.9 million relating to future unasserted claims through fiscal year-2024. The overall historic average combined indemnity and defense cost per resolved claim through Dec. 31, 2009 has been about US$2,800. Headquartered in Geneva, Switzerland, Foster Wheeler AG is an international engineering and construction contractor that designs, builds, and upgrades industrial processing facilities and manufactures power equipment through its two business units: Global Engineering & Construction and Global Power. ASBESTOS UPDATE: Foster Wheeler Records $43.5Mil Insurance Asset ---------------------------------------------------------------- Foster Wheeler AG, as of Dec. 31, 2009, estimated the value of its unsettled asbestos insurance asset related to ongoing litigation in New York state court with its subsidiaries' insurers at US$43.5 million. As of Sept. 30, 2009, the Company estimated the value of its unsettled asbestos insurance asset related to ongoing litigation in New York state court with its subsidiaries' insurers at US$25.9 million. (Class Action Reporter, Nov. 20, 2009) The litigation relates to the amounts of insurance coverage available for asbestos-related claims and the proper allocation of the coverage among the subsidiaries' various insurers and the subsidiaries as self-insurers. Over the last several years, certain of the Company's subsidiaries have entered into settlement agreements calling for insurers to make lump-sum payments, as well as payments over time, for use by the subsidiaries to fund asbestos-related indemnity and defense costs and, in certain cases, for reimbursement for portions of out-of-pocket costs previously incurred. In fiscal year 2006, the Company was successful in its appeal of a New York state trial court decision that previously had held that New York, rather than New Jersey, law applies in the coverage litigation with the subsidiaries' insurers, and as a result, the Company increased its insurance asset and recorded a gain of US$19.5 million. On Feb. 13, 2007, the subsidiaries' insurers were granted permission by the appellate court to appeal the decision to the New York Court of Appeals, the state's highest court. On Oct. 11, 2007, the New York Court of Appeals upheld the appellate court decision in the Company's favor. Headquartered in Geneva, Switzerland, Foster Wheeler AG is an international engineering and construction contractor that designs, builds, and upgrades industrial processing facilities and manufactures power equipment through its two business units: Global Engineering & Construction and Global Power. ASBESTOS UPDATE: 373 Claims Ongoing v. Foster Wheeler U.K. Units ---------------------------------------------------------------- Certain of Foster Wheeler AG's subsidiaries in the United Kingdom faced 373 open asbestos-related claims as of Dec. 31, 2009, according to the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. To date, 932 claims have been brought against the U.K. subsidiaries. The Company's subsidiaries in the U.K. faced 371 open asbestos claims as of Sept. 30, 2009. (Class Action Reporter, Nov. 20, 2009) As of Dec. 31, 2009, the Company recorded total liabilities of US$39.3 million comprised of an estimated liability relating to open (outstanding) claims of US$10.3 million and an estimated liability relating to future unasserted claims through fiscal year 2024 of US$29 million. Of the total, US$3.5 million was recorded in accrued expenses and US$35.8 million was recorded in asbestos-related liability on the consolidated balance sheet. An asset in an equal amount was recorded for the expected U.K. asbestos-related insurance recoveries, of which US$3.5 million was recorded in accounts and notes receivable-other and US$35.8 million was recorded as asbestos-related insurance recovery receivable on the consolidated balance sheet. The liability estimates are based on a U.K. House of Lords judgment that pleural plaque claims do not amount to a compensable injury and accordingly, the Company has reduced its liability assessment. If this ruling is reversed by legislation, the total asbestos liability and related asset recorded in the U.K. would be about US$57.9 milion. Headquartered in Geneva, Switzerland, Foster Wheeler AG is an international engineering and construction contractor that designs, builds, and upgrades industrial processing facilities and manufactures power equipment through its two business units: Global Engineering & Construction and Global Power. ASBESTOS UPDATE: PSEG Cites $8MM Assets for Abatement at Dec. 31 ---------------------------------------------------------------- Public Service Enterprise Group Incorporated's regulatory assets for asbestos abatement amounted to US$8 million as of both Dec. 31, 2009 and Dec. 31, 2008, according to the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. Headquartered in Newark, N.J., Public Service Enterprise Group Incorporated's regulated subsidiary Public Service Electric and Gas (PSE&G) transmits and distributes electricity to 2.1 million customers and natural gas to 1.7 million customers in New Jersey. Non-regulated subsidiary PSEG Power operates the Company's generating plants. ASBESTOS UPDATE: Dynegy Has $120M Retirement Obligation in 2009 --------------------------------------------------------------- Dynegy Inc.'s asset retirement obligations (including asbestos- related) amounted to US$120 million during the year ended Dec. 31, 2009, compared with US$127 million during the year ended Dec. 31, 2008. The Company's AROs relate to activities like ash pond and landfill capping, dismantlement of power generation facilities, future removal of asbestos containing material from certain power generation facilities, closure and post-closure costs, environmental testing, remediation, monitoring and land and equipment lease obligations. Headquartered in Houston, Dynegy Inc. is a holding company and conducts substantially all of its business operations through its subsidiaries. The Company's primary business is the production and sale of electric energy, capacity and ancillary services from its fleet of 18 power plants in six states totaling about 12,300 MW of generating capacity. ASBESTOS UPDATE: Ten Lorillard, Inc. Actions Scheduled for Trial ---------------------------------------------------------------- Lorillard, Inc. says that, as of Feb. 22, 2010, ten asbestos- related Filter Cases were scheduled for trial, according to the Company's quarterly report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission on Oct. 29, 2009. As of Oct. 26, 2009, eight asbestos-related Filter Cases were scheduled for trial. (Class Action Reporter, Nov. 6, 2009) Claims have been brought against Lorillard Tobacco Company and the Company by individuals who seek damages resulting from their alleged exposure to asbestos fibers that were incorporated into filter material used in one brand of cigarettes manufactured by Lorillard Tobacco for a limited period of time ending more than 50 years ago. Lorillard Tobacco is a defendant in 31 such cases. The Company is a defendant in three Filter Cases, including two that also name Lorillard Tobacco. Since Jan. 1, 2008, Lorillard Tobacco has paid, or has reached agreement to pay, a total of about US$12.9 million in settlements to finally resolve about 60 claims. Since Jan. 1, 2008, verdicts have been returned in two Filter Cases. During September 2008, a jury in the District Court of Bexar County, Tex., returned a verdict for Lorillard Tobacco in the case of Young v. Lorillard Tobacco Company. Plaintiffs in the Young case did not pursue an appeal and that matter is concluded. During January 2010, a jury in the Superior Court of California, Los Angeles County, returned a verdict for Lorillard Tobacco in the case of Cox v. Asbestos Corporation, Ltd., et al. In the case of Cox, the deadline for plaintiffs to pursue an appeal had not expired as of Feb. 22, 2010. Headquartered in Greensboro, N.C., Lorillard, Inc. manufactures cigarettes. Newport, its flagship menthol flavored premium cigarette brand, sells menthol and is the second largest selling cigarette brand overall in the United States based on gross units sold in 2009. ASBESTOS UPDATE: Cleco Cites $300T Cleanup Liability at Dec. 31 --------------------------------------------------------------- Cleco Corporation's subsidiary Cleco Power LLC's liability for removal of asbestos is estimated at US$300,000 at both Dec. 31, 2009 and Dec. 31, 2008, according to the Company's 2009 annual report filed with the U.S. Securities and Exchange Commission. Under the authoritative guidance for asset retirement and environmental obligations, Cleco Power determined that a liability exists for cleanup and closing costs of solid waste facilities associated with its generating stations that use lignite and coal for fuel. Applying these guidelines, Cleco Power determined that a liability exists for costs which may be incurred in the future for removal of asbestos from its general service buildings, the removal of transmission towers on leased rights-of-way and for the abatement of PCBs in transformers. Headquartered in Pineville, Cleco Corporation is a public utility holding company that holds investments in several subsidiaries, including Cleco Power LLC and Cleco Midstream Resources LLC, which are its operating business segments. ASBESTOS UPDATE: 1,239 Actions Pending v. GATX, Units at Jan. 26 ---------------------------------------------------------------- There were 1,239 asbestos-related cases pending against GATX Corporation and its subsidiaries as of Jan. 26, 2010, according to the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. The Company and its subsidiaries, as of Feb. 6, 2009, faced 1,240 pending asbestos-related cases. (Class Action Reporter, Feb. 27, 2009) Several of the Company's subsidiaries have been named as defendants or co-defendants in cases alleging injury relating to asbestos. In these cases, the plaintiffs seek an unspecified amount of damages based on common law, statutory or premises liability or, in the case of American Steamship Company (ASC), the Jones Act, which provides limited remedies to certain maritime employees. Out of the total number of pending cases, 1,215 are Jones Act claims, most of which were filed against ASC prior to the year 2000. During 2009, eleven new cases were filed, and 13 cases were dismissed or settled. During 2008, ten new cases were filed, and four cases were dismissed or settled. During 2007, 18 new asbestos-related cases were filed and eight cases were dismissed or settled. For this three-year period, the aggregate amount paid to settle asbestos-related cases filed against the Company and its subsidiaries was less than US$90,000. In addition, demand has been made against the Company for asbestos-related claims under limited indemnities given in connection with the sale of certain former subsidiaries of the Company. Headquartered in Chicago, GATX Corporation leases, operates and manages long-lived, widely used assets in the rail, marine and industrial equipment markets. The Company has three financial reporting segments: Rail, Specialty and American Steamship Company. ASBESTOS UPDATE: Ensco Int'l. Still Has Exposure Cases in Miss. --------------------------------------------------------------- Ensco International plc and certain current and former subsidiaries continue to be defendants in three multi-party asbestos suits filed in the Circuit Courts of Jones County (Second Judicial District) and Jasper County (First Judicial District), Miss. Filed during 2004, the lawsuits sought an unspecified amount of monetary damages on behalf of individuals alleging personal injury or death, primarily under the Jones Act, purportedly resulting from exposure to asbestos on drilling rigs and associated facilities during the period 1965 through 1986. In compliance with the Mississippi Rules of Civil Procedure, the individual claimants in the original multi-party lawsuits whose claims were not dismissed were ordered to file either new or amended single plaintiff complaints naming the specific defendant(s) against whom they intended to pursue claims. As a result, out of more than 600 initial multi-party claims, the Company has been named as a defendant by 65 individual plaintiffs. Of these claims, 62 claims or lawsuits are pending in Mississippi state courts and three are pending in the U.S. District Court as a result of their removal from state court. To date, written discovery and plaintiff depositions have taken place in eight cases involving the Company. While several cases have been selected for trial during 2010 and 2011, none of the cases pending against the Company in Mississippi state court are included within those selected cases. The three cases removed from state court have been assigned to the Multi-District Litigation 875, which is currently before the U.S. District Court for the Eastern District of Pennsylvania. Although the Houston law firm representing these three plaintiffs filed a Motion to Remand, seeking to bring the cases back to Mississippi state court, the U.S. District Court denied the plaintiffs' motion by order dated Dec. 10, 2009. Headquartered in London, Ensco International plc is an offshore contract drilling company. As of Feb. 15, 2010, the Company's offshore rig fleet included 42 jackup rigs, four ultra-deepwater semisubmersible rigs and one barge rig. Additionally, the Company has four ultra-deepwater semisubmersible rigs under construction. ASBESTOS UPDATE: Constellation & BGE Facing 494 Exposure Claims --------------------------------------------------------------- About 494 individuals who were never employees of Constellation Energy Group, Inc. or subsidiary Baltimore Gas Electric Company (BGE) have pending asbestos claims each seeking several million dollars in compensatory and punitive damages. Cross-claims and third party claims brought by other defendants may also be filed against BGE and the Company in these actions. Since 1993, BGE and certain Company subsidiaries have been involved in several actions concerning asbestos. The actions are based upon the theory of "premises liability," alleging that BGE and the Company knew of and exposed individuals to an asbestos hazard. In addition to BGE and the Company, numerous other parties are defendants in these cases. To date, most asbestos claims which have been resolved have been dismissed or resolved without any payment and a small minority has been resolved. Headquartered in Baltimore, Constellation Energy Group, Inc. is an energy company that conducts its business through various subsidiaries including a merchant energy business and Baltimore Gas and Electric Company (BGE). ASBESTOS UPDATE: Ingersoll-Rand Facing 63,887 Claims at Dec. 31 --------------------------------------------------------------- Ingersoll-Rand plc faced 63,887 open asbestos claims at Dec. 31, 2009, compared with 63,309 open claims at Dec. 31, 2008, according to the Company's annual report filed on Feb. 26, 2010 with the U.S. Securities and Exchange Commission. At Dec. 31, 2009, the Company recorded 4,821 new claims filed; 2,514 claims settled; and 1,729 claims dismissed. At Dec. 31, 2008, the Company recorded 4,567 new claims filed; 3,693 claims settled; and 41,861 claims dismissed. Certain wholly owned subsidiaries of the Company are named as defendants in asbestos-related lawsuits in state and federal courts. In virtually all of the suits, a large number of other companies have also been named as defendants. The vast majority of those claims has been filed against either Ingersoll-Rand Company (IR-New Jersey) or Trane Inc. and generally allege injury caused by exposure to asbestos contained in certain historical products sold by IR-New Jersey or Trane, primarily pumps, boilers and railroad brake shoes. Neither IR-New Jersey nor Trane was a producer or manufacturer of asbestos, however, some formerly manufactured products utilized asbestos-containing components such as gaskets and packings purchased from third-party suppliers. From receipt of its first asbestos claims more than 25 years ago to Dec. 31, 2009, the Company has resolved (by settlement or dismissal) about 256,000 claims arising from the legacy Ingersoll Rand businesses. The total amount of all settlements paid by the Company (excluding insurance recoveries) and by its insurance carriers is about US$410 million, for an average payment per resolved claim of US$1,595. The average payment per claim resolved during the year ended Dec. 31, 2009 was US$12,136. At Dec. 31, 2009, the Company's liability for asbestos related matters and the asset for probable asbestos-related insurance recoveries totaled US$1.113 billion and US$424.2 million, respectively, compared with US$1.195 billion and US$423.8 million at Dec. 31, 2008. The income associated with the settlement and defense of asbestos related claims after insurance recoveries totaled US$12.5 million at Dec. 31, 2009. The costs associated with the settlement and defense of asbestos related claims after insurance recoveries total US$7.4 million at Dec. 31, 2008. At Dec. 31, 2009, over 91 percent of the open claims against the Company are non-malignancy claims, many of which have been placed on inactive or deferral dockets and the majority of which have little or no settlement value against the Company, particularly in light of recent changes in the legal and judicial treatment of those claims. Headquartered in Dublin, Ireland, Ingersoll-Rand plc's business segments consist of Climate Solutions, Residential Solutions, Industrial Technologies and Security Technologies. The Company designs, manufactures, sells and serves a portfolio of industrial and commercial products that include brand names like Club Car, Hussmann, Ingersoll-Rand, Schlage, Thermo King and Trane. ASBESTOS UPDATE: Trane Still Involved in Coverage Action in N.J. ---------------------------------------------------------------- Ingersoll-Rand plc's subsidiary, Trane Inc., continues to be in litigation against certain carriers whose policies it believes provide coverage for asbestos claims. The insurance carriers named in this suit have challenged Trane's right to recovery. Trane filed the action in April 1999 in the Superior Court of New Jersey, Middlesex County, against various primary and lower layer excess insurance carriers, seeking coverage for environmental claims (NJ Litigation). The NJ Litigation was later expanded to also seek coverage for asbestos-related liabilities from 21 primary and lower layer excess carriers and underwriting syndicates. The environmental claims against the insurers in the NJ Litigation have been resolved or dismissed without prejudice for later resolution. On Sept. 19, 2005, the court granted Trane's motion to add claims for insurance coverage for asbestos-related liabilities against 16 additional insurers and 117 new insurance policies to the NJ Litigation. The court also required the parties to submit all contested matters to mediation. Trane engaged in its first mediation session with the NJ Litigation defendants on Jan. 18, 2006 and has engaged in active discussions since that time. Trane has now settled with most of the insurers in the NJ Litigation, collectively accounting for about 95 percent of its recorded asbestos-related liability insurance receivable as of Jan. 31, 2010. Most, although not all, of Trane's settlement agreements constitute "coverage-in-place" arrangements, in which the insurer signatories agree to reimburse Trane for specified portions of its costs for asbestos bodily injury claims and Trane agrees to certain claims-handling protocols and grants to the insurer signatories certain releases and indemnifications. More specifically, effective Aug. 26, 2008, Trane entered into a coverage-in-place agreement (August 26 Agreement) with the following five insurance companies or groups: 1) Hartford; 2) Travelers; 3) Allstate (solely in its capacity as successor-in- interest to Northbrook Excess & Surplus Insurance Company); 4) Dairyland Insurance Company; and 5) AIG. In addition, on Sept. 12, 2008, Trane entered into a settlement agreement with Mt. McKinley Insurance Company and Everest Reinsurance Company, both members of the Everest Re group, resolving all claims in the NJ Litigation involving policies issued by those companies (Everest Re Agreement). On Jan. 26, 2009, Trane entered into a coverage-in-place agreement with Columbia Casualty Company, Continental Casualty Company, and Continental Insurance Company (CNA Agreement), and agreed to a dismissal without prejudice of its environmental claims against CNA. Trane also has reached a coverage-in-place agreement, effective Dec. 15, 2009, with Century Indemnity Company and International Insurance Company (Century- International Agreement). The Century-Indemnity Agreement has an initial term of three years, which renews automatically for successive three year terms unless either Trane or the insurer signatories elect to forward to the other party a notice of non-renewal. Most recently, effective Feb. 4, 2010, Trane reached an agreement with certain London market insurance companies (LMC Agreement) that resolved all claims against the policies at issue. The LMC Agreement provides for the periodic reimbursement by the insurer signatories of a portion of Trane's costs for asbestos bodily injury claims based on the attainment of certain aggregate indemnity and defense payment thresholds, and in exchange for certain releases and indemnifications from Trane. Trane also reached agreement on Dec. 31, 2009 with Harper Insurance Company, a party to the LMC Agreement, for the buy-out of Harper's obligations to Trane under the LMC Agreement and for certain releases and indemnifications from Trane in exchange for a one-time cash payment by Harper. Trane remains in settlement negotiations with the few insurer defendants in the NJ Litigation not encompassed within the August 26 Agreement, the Everest Re Agreement, the CNA Agreement, the Century-International Agreement and the LMC Agreement. Trane also is pursuing claims against the estates of insolvent insurers in connection with its costs for asbestos bodily injury claims. Headquartered in Dublin, Ireland, Ingersoll-Rand plc's business segments consist of Climate Solutions, Residential Solutions, Industrial Technologies and Security Technologies. The Company designs, manufactures, sells and serves a portfolio of industrial and commercial products that include brand names like Club Car, Hussmann, Ingersoll-Rand, Schlage, Thermo King and Trane. ASBESTOS UPDATE: 92,298 Open Claims Pending v. Trane at Dec. 31 --------------------------------------------------------------- About 92,298 open asbestos claims were pending against Ingersoll- Rand plc's subsidiary, Trane Inc., at Dec. 31, 2009, compared with 100,309 open claims at Dec. 31, 2008. From receipt of the first asbestos claim more than 20 years ago through Dec. 31, 2009, the Company has resolved about 86,646 (by settlement or dismissal) claims arising from the legacy Trane business. The Company and its insurance carriers have paid settlements of about US$148 million on these claims that represent an average payment per resolved claim of US$1,710. At Dec. 31, 2009, Trane had 2,343 new claims filed; 1,042 claims settled; and 9,312 claims dismissed. At Dec. 31, 2008, Trane had 3,705 claims filed; 677 claims settled; and 13,930 claims dismissed. Headquartered in Dublin, Ireland, Ingersoll-Rand plc's business segments consist of Climate Solutions, Residential Solutions, Industrial Technologies and Security Technologies. The Company designs, manufactures, sells and serves a portfolio of industrial and commercial products that include brand names like Club Car, Hussmann, Ingersoll-Rand, Schlage, Thermo King and Trane. ASBESTOS UPDATE: Alliant Unit Records $1.2Mil Settled Liability --------------------------------------------------------------- Alliant Energy Corporation's subsidiary, Interstate Power and Light Company, in 2009, recorded liabilities settled of US$1.2 million due to expenditures for asbestos and lead remediation at its Sixth Street and Prairie Creek Generating Stations. The remediation was required as a result of the impacts of the severe Midwest flooding at these generating stations in June 2008. In 2008, IPL recorded changes to liabilities incurred of US$3.2 million, revisions in estimated cash flows of US$6.7 million and liabilities settled of US$10.6 million due to asbestos and lead remediation as a result of the impacts of the severe Midwest flooding at these generating stations in June 2008. Headquartered in Madison, Wis., Alliant Energy Corporation's primary focus is to provide regulated electricity and natural gas service to about one million electric and about 412,000 natural gas customers in the Midwest through its two public utility subsidiaries. ASBESTOS UPDATE: NiSource Unit Settles $1M for Abatement in 2009 ---------------------------------------------------------------- NiSource Inc.'s subsidiary, Northern Indiana Public Service Company, performed retirement activities associated with a landfill and asbestos removal resulting in settlements of US$1 million for 2009. No other asbestos-related matters were disclosed in the Company's annual report filed on Feb. 26, 2010 with the U.S. Securities and Exchange Commission. Headquartered in Merrillville, Ind., NiSource Inc. is an energy holding company whose subsidiaries provide natural gas, electricity and other products and services to about 3.8 million customers located within a corridor that runs from the Gulf Coast through the Midwest to New England. ASBESTOS UPDATE: CNH Global, Units Still Party to Exposure Suits ---------------------------------------------------------------- CNH Global N.V. and its subsidiaries are party to various legal proceedings in the ordinary course of business, including: asbestos; product warranty; environmental; dealer disputes; disputes with suppliers and service providers; workers compensation; patent infringement; and customer and employment matters. No other asbestos-related matters were disclosed in the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. Headquartered in Amsterdam, The Netherlands, CNH Global N.V. is a global, full-line company in both the agricultural and construction equipment industries. Its global scope and scale includes integrated engineering, manufacturing, marketing and distribution of equipment on five continents. The Company organizes its operations into three business segments: agricultural equipment, construction equipment and financial services. ASBESTOS UPDATE: Ford Motor Co. Still Subject to Exposure Suits --------------------------------------------------------------- Ford Motor Company has been the target of asbestos litigation and, as a result, is a defendant in various actions for injuries claimed to have resulted from alleged exposure to Ford parts and other products containing asbestos. Asbestos was used in brakes, clutches, and other automotive components from the early 1900s. Plaintiffs in these personal injury cases allege various health problems as a result of asbestos exposure, either from component parts found in older vehicles, insulation or other asbestos products in the Company's facilities, or asbestos aboard its former maritime fleet. Most of the asbestos litigation the Company faces involves individuals who claim to have worked on the brakes of its vehicles over the years. Headquartered in Dearborn, Mich., Ford Motor Company produces cars and trucks. The Company and its subsidiaries also engage in other businesses, including financing vehicles. ASBESTOS UPDATE: Lockheed Martin Still Party to Injury Lawsuits --------------------------------------------------------------- Like many other industrial companies in recent years, Lockheed Martin Corporation is still a defendant in lawsuits alleging personal injury as a result of exposure to asbestos integrated into its premises and certain historical products. The Company has never mined or produced asbestos and no longer incorporates it in any currently manufactured products. The Company has been successful in having a substantial number of these claims dismissed without payment. The remaining resolved claims have settled for amounts that are not material individually or in the aggregate. A substantial majority of the asbestos-related claims have been covered by insurance or other forms of indemnity. Headquartered in Bethesda, Md., Lockheed Martin Corporation is a global security company that is engaged in the research, design, development, manufacture, integration, and sustainment of advanced technology systems and products. The Company also provides management, engineering, technical, scientific, logistic, and information services. ASBESTOS UPDATE: Colfax Has 25,295 Unresolved Claims at Dec. 31 --------------------------------------------------------------- Colfax Corporation faced 25,295 unresolved asbestos during the year ended Dec. 31, 2009, compared with 35,357 claims during the year ended Dec. 31, 2008, according to the Company's annual report filed on Feb. 25, 2010 with the U.S. Securities and Exchange Commission. During the year ended Dec. 31, 2009, the Company recorded 3,323 claims filed and 13,385 claims resolved. The average cost of resolved claims amounted to US$11,106. During the year ended Dec. 31, 2008, the Company recorded 4,729 claims filed and 6,926 claims resolved. The average cost of resolved claims amounted to US$5,378. Two of the Company's subsidiaries are each one of many defendants in a large number of lawsuits that claim personal injury as a result of exposure to asbestos from products manufactured with components that are alleged to have contained asbestos. For one of the subsidiaries, the Delaware Court of Chancery ruled on Oct. 14, 2009, that asbestos-related costs should be allocated among excess insurers using an "all sums" allocation and that the subsidiary has rights to excess insurance policies purchased by a former owner of the business. Based upon this ruling mandating an "all sums" allocation, as well as the language of the underlying insurance policies and the determination that defense costs are outside policy limits, the Company, as of Oct. 2, 2009, increased its future expected recovery percentage from 67 percent to 90 percent of asbestos- related costs following the exhaustion in the future of its primary and umbrella layers of insurance and recorded a pretax gain of US$17.3 million. The subsidiary expects to be responsible for about 10 percent of all future asbestos costs. In November 2008, the subsidiary entered into a settlement agreement with the primary and umbrella carrier governing all aspects of the carrier's past and future handling of the asbestos related bodily injury claims against the subsidiary. As a result of this agreement, during the third quarter of 2008, the Company increased its insurance asset by US$7 million attributable to resolution of a dispute concerning certain pre-1966 insurance policies and recorded a corresponding pretax gain. The additional insurance will be allocated by the carrier to cover any gaps in coverage up to US$7 million resulting from exhaustion of umbrella policies and/or the failure of any excess carrier to pay amounts incurred in connection with asbestos claims. The Company reimbursed the primary insurer for US$7.6 million in deductibles and retrospective premiums in the fourth quarter of 2008 and has no further liability to the insurer under these provisions of the primary policies. This subsidiary's primary and umbrella insurance coverage was exhausted in the first quarter of 2010. No cost sharing or allocation agreement is currently in place with the Company's excess insurers. However, certain excess insurers have stated that they will abide by the Delaware Chancery Court's recent coverage rulings, including its ruling that the subsidiary may seek insurance coverage from the Company's excess insurers on and "all sums" basis and that they will defend and/or indemnify the subsidiary against asbestos claims, subject to their reservation of rights. In 2003, the other subsidiary brought legal action against a large number of its insurers and its former parent to resolve a variety of disputes concerning insurance for asbestos-related bodily injury claims asserted against it. For this subsidiary it was determined by court ruling in the fourth quarter of 2007, that the allocation methodology mandated by the New Jersey courts will apply. Further court rulings in December 2009 clarified the allocation calculation related to amounts currently due from insurers as well as amounts the Company expects to be reimbursed for asbestos-related costs incurred in future periods. As a result, in the fourth quarter of 2009, the Company increased its receivable for past costs by US$11.9 million and decreased its insurance asset for future costs by US$9.8 million and recorded a pretax gain of US$2.1 million. The subsidiary expects to responsible for about 14 percent of all future asbestos- related costs. Headquartered in Richmond, Va., Colfax Corporation makes critical fluid-handling products and technologies. Through its global operating subsidiaries, the Company manufactures positive displacement industrial pumps and valves used in oil & gas, power generation, commercial marine, global naval and general industrial markets. ASBESTOS UPDATE: Roper Industries Still Party to Exposure Claims ---------------------------------------------------------------- Roper Industries, Inc. or its subsidiaries has been named defendants in some asbestos-related cases, according to the Company's annual report filed on Feb. 26, 2010 with the U.S. Securities and Exchange Commission. Over recent years there has been a significant increase in certain U.S. states in asbestos-related litigation claims against numerous industrial companies. No significant resources have been required by the Company to respond to these cases and Roper said it believes it has valid defenses to such claims. Headquartered in Sarasota, Fla., Roper Industries, Inc. is a diversified growth company that designs, manufactures and distributes energy systems and controls, scientific and industrial imaging products and software, industrial technology products and radio frequency (RF) products and services. ASBESTOS UPDATE: Domtar Corp. May Be Subject to Injury Lawsuits --------------------------------------------------------------- Domtar Corporation may be subject to asbestos-related personal injury litigation arising out of exposure to asbestos on or from its properties or operations, and may incur substantial costs as a result of any defense, settlement, or adverse judgment in such litigation. The Company has incurred, and expects that it will continue to incur, significant capital, operating and other expenditures complying with applicable environmental laws and regulations as a result of remedial obligations. The Company incurred about US$71 million of operating expenses and US$2 million of capital expenditures in connection with environmental compliance and remediation for 2009. As of Dec. 31, 2009, the Company had a provision of US$111 million for environmental expenditures, including certain asset retirement obligations (such as for land fill capping and asbestos removal) (US$99 million as of Dec. 31, 2008). Headquartered in Montreal, Quebec, Domtar Corporation manufactures and markets uncoated freesheet paper in North America. The Company also manufactures papergrade, fluff and specialty pulp. ASBESTOS UPDATE: Chiquita Facing 5 Pending Cases in State Courts ---------------------------------------------------------------- Chiquita Brands International, Inc. faced five asbestos-related cases that are pending in state courts in various stages of activity, according to the Company's annual report filed on Feb. 26, 2010 with the U.S. Securities and Exchange Commission. The Company faced six asbestos-related cases in various stages of activity in state court. (Class Action Reporter, March 13, 2009) For more than 20 years, a number of claims have been filed against the Company on behalf of merchant seamen or their personal representatives alleging injury or illness from exposure to asbestos while employed as seamen on Company-owned ships at various times from the mid-1940s until the mid-1970s. The claims are based on allegations of negligence and unseaworthiness. In these cases, the Company is typically one of many defendants, including manufacturers and suppliers of products containing asbestos, as well as other ship owners. Over the past 12 years, about 26 state court cases have been settled and 41 state court cases have been resolved without any payment. In addition to the state court cases, there are about 5,330 federal court cases, most of which are currently inactive (known as the MARDOC cases). The MARDOC cases are managed under the supervision of the U.S. District Court for the Eastern District of Pennsylvania (Federal Court). In 1996, the Federal Court administratively dismissed all then-pending MARDOC cases without prejudice for failure to provide evidence of asbestos-related disease or exposure to asbestos. Under this order, all MARDOC cases subsequently filed against the Company have also been administratively dismissed. Recently the Court has begun to reinstate the MARDOC cases, and 24 MARDOC cases have been reinstated against the Company. Upon reinstatement, cases will not proceed without showing some evidence of asbestos-related disease, exposure to asbestos and service on the Company's ships. Five of the reinstated cases have been dismissed without any settlement payment. It is contemplated that the Court will continue to activate more cases during 2010. Headquartered in Cincinnati, Ohio, Chiquita Brands International, Inc. markets and distributes bananas and other fresh produce sold under the Chiquita and other brand names in nearly 80 countries and of packaged salads sold under the Fresh Express and other brand names primarily in the United States. ASBESTOS UPDATE: NL Ind. Cites $4.6M Insurance Recoveries in '09 ---------------------------------------------------------------- NL Industries, Inc. recorded recoveries of US$4.6 million in 2009 (US$3 million, or US$0.06 per share, net of income taxes) and US$9.6 million in 2008 (US$6.2 million, or US$0.13 per share, net of income taxes). Insurance recoveries relate to amounts the Company received from certain of its former insurance carriers, and relate principally to the recovery of prior lead pigment and asbestos litigation defense costs incurred by the Company. Headquartered in Dallas, NL Industries, Inc. is engaged in the component products (security products, furniture components and performance marine components), chemicals (TiO2) and other businesses. ASBESTOS UPDATE: 2,550 Cases Ongoing Against Graybar at Dec. 31 --------------------------------------------------------------- Graybar Electric Company, Inc., as of Dec. 31, 2009, faced 2,550 asbestos-related cases, of which about 2,400 are individual cases and 150 are class actions, according to the Company's annual report filed on March 9, 2010 with the U.S. Securities and Exchange Commission. As of Dec. 31, 2008, the Company faced 2,339 asbestos-related actions, of which 2,194 were individual cases and 145 were class actions. (Class Action Reporter, April 3, 2009) These cases allege actual or potential asbestos-related injuries resulting from the use of or exposure to products allegedly sold by the Company. More claims will likely be filed against the Company in the future. The Company's insurance carriers have historically borne virtually all costs and liability with respect to this litigation and are continuing to do so. Headquartered in St. Louis, Graybar Electric Company, Inc. distributes electrical, communications and data networking products, and provides related supply chain management and logistics services, primarily to electrical and comm/data contractors, industrial plants, telephone companies, federal, state and local governments, commercial users, and power utilities in North America. ASBESTOS UPDATE: Standard Motor Cites $24.87MM Dec. 31 Liability ---------------------------------------------------------------- Standard Motor Products, Inc.'s accrued asbestos liability amounted to US$24,874,000 as of Dec. 31, 2009, compared with US$23,758,000 as of Dec. 31, 2008, according to a Company report, on Form 8-K, filed with the U.S. Securities and Exchange Commission on March 5, 2010. The Company's accrued asbestos liability was US$24,860,000 as of Sept. 30, 2009. (Class Action Reporter, Oct. 30, 2009) Headquartered in Long Island City, N.Y., Standard Motor Products, Inc. manufactures engine management and air conditioning replacement parts for the automotive aftermarket. Customers are auto parts warehouse distributors (CARQUEST and NAPA) and auto parts retailers (Advance Auto Parts and AutoZone). ASBESTOS UPDATE: Dalmine Still Faces 45 Injury Claims at Dec. 31 ---------------------------------------------------------------- Tenaris S.A.'s subsidiary organized in Italy, Dalmine S.p.A., as of Dec. 31, 2009, faced 45 pending asbestos claims, of which none are covered by insurance, according to a Company report, on Form 6-K, filed on March 4, 2010 with the U.S. Securities and Exchange Commission. As of Sept. 30, 2009, Dalmine faced 45 asbestos-related claims, none of which were covered by insurance. (Class Action Reporter, Nov. 20, 2009) Dalmine is currently subject to 13 civil proceedings for work- related injuries arising from the use of asbestos in its manufacturing processes during the period from 1960 to 1980. In addition, another 32 asbestos related out-of-court claims have been forwarded to Dalmine. During 2009, 12 new claims were filed, no claims were adjudicated, six claims were settled all of which were paid, three claims were rejected and 13 claims were dismissed. Aggregate settlement costs to date for the Company are EUR8.5 million (US$12.3 million). Dalmine estimates that its potential liability in connection with the claims not yet settled is about EUR12.8 million (US$18.4 million). Headquartered in Luxembourg, Tenaris S.A. manufactures and distributes seamless steel pipe products. Most of its products are oil country tubular goods company (OCTG) meant for the energy industry. ASBESTOS UPDATE: IDEX Corp., 6 Units Still Facing Injury Actions ---------------------------------------------------------------- IDEX Corporation and six of its subsidiaries are still named as defendants in lawsuits claiming various asbestos-related personal injuries, allegedly as a result of exposure to products manufactured with components that contained asbestos. Those components were acquired from third party suppliers, and were not manufactured by any of the subsidiaries. To date, the majority of the Company's settlements and legal costs, except for costs of coordination, administration, insurance investigation and a portion of defense costs, have been covered in full by insurance subject to applicable deductibles. Claims have been filed in jurisdictions throughout the United States. Most of the claims resolved to date have been dismissed without payment. The balance has been settled for various insignificant amounts. One case has been tried, resulting in a verdict for the Company's business unit. Headquartered in Northbrook, Ill., IDEX Corporation is an applied solutions business that sells pumps, flow meters and other fluidics systems and components and engineered products to customers in a variety of markets around the world. ASBESTOS UPDATE: Bucyrus Int'l. Still Involved in Exposure Cases ---------------------------------------------------------------- Bucyrus International Inc. continues to be a co-defendant in numerous personal injury liability cases alleging damages due to exposure to asbestos and other substances. These cases are pending in courts in various states. In all of these cases, insurance carriers have accepted or are expected to accept defense. These cases are in various pre-trial stages, according to the Company's annual report filed on March 1, 2010 with the U.S. Securities and Exchange Commission. Headquartered in South Milwaukee, Wis., Bucyrus International Inc. designs and manufactures mining equipment for the extraction of coal, copper, oil sands, iron ore and other minerals in major mining centers throughout the world. The Company also provides the aftermarket replacement parts and service for this equipment. ASBESTOS UPDATE: Abatement at Mainland's School to Cost $294,450 ---------------------------------------------------------------- The Mainland Board of Education in Linwood, N.J., voted to award a US$292,450 asbestos abatement bid to Abate Tech Inc. of Lumberton at its meeting last March 8, 2010, ShoreNewsToday.com reports. The next lowest bidder offered to do the project for US$329,000. Board president John Medica said, "The asbestos is mainly in floor tiles in some of the classrooms built in the 1980s. They cannot remove it when the kids are in school and so that is going to get done over Easter break." Mr. Medica said Controlled Environmental Systems had actually placed a lower bid, but had mistyped the bid resulting in a mistakenly low price. The Board voted to reject the bid due to the error. ASBESTOS UPDATE: Poulton Local's Death Linked to Hazard Exposure ---------------------------------------------------------------- An inquest at Blackpool Coroner's Court heard that the death of 77-year-old Alexander Lawson Ross, an electrical engineer from Poulton, England, was linked to workplace exposure to asbestos, The Gazette reports. Mr. Ross died on Jan. 16, 2010 at Trinity Hospice, Bispham, after being diagnosed with mesothelioma. He had worked as an electrical engineer until he retired in 1994. Mr. Ross worked for companies including British Nuclear Fuels at Springfields, often with asbestos lagging, and three power stations while they were being constructed - including Heysham. He became ill in May 2009 and was diagnosed with mesothelioma in November 2009. Consultant pathologist Dr. Mark Sissons said he found a large tumor on Mr. Ross' right lung and fibrous plaques on the lungs indicating asbestos. There was evidence of infection on the lung surface by mesothelioma. Blackpool Coroner Anne Hind, recording a verdict of death by industrial disease, said mesothelioma was a "terrible illness." ASBESTOS UPDATE: Torres Awarded $3Mil Compensation in Tex. Court ---------------------------------------------------------------- A Brownsville, Tex., jury, on March 6, 2010, awarded US$3 million in past and future damages to Oscar Torres who suffers from asbestos-related cancer, according to a Williams Kherkher Hart Boundas, LLP press release dated March 6, 2010. In finding for Mr. Torres and his wife Dora, the jury assigned 45 percent fault to Union Carbide Corporation, 45 percent fault to Garlock Sealing Technologies, and 10 percent fault to Brown & Root. The jury awarded the Torreses US$1 million in past damages and US$2 million for future damages. In the 1970s, as an employee of Brown & Root, Mr. Torres worked at the Union Carbide plant in Brownsville, Tex. There, he came in contact with defective Garlock products containing asbestos and was exposed to asbestos fibers. Steve Kherkher, Esq., Troy Chandler, Esq., and Devin McNulty, Esq., from the Williams Kherkher Hart Boundas, LLP law firm represented Mr. Torres. The case, styled Oscar Torres and spouse Dora v. Union Carbide Corporation, et al (case no. 2009-06-3742-A), was tried in front of Judge Ben Euresti of the 107th District Court. ASBESTOS UPDATE: Chapman Widow Turns Down GBP1MM in Compensation ---------------------------------------------------------------- Gillian Chapman turned down a potential GBP1 million compensation payout over her husband John Chapman's asbestos death because she refuses to fuel the United Kingdom's "compensation culture," Times Online reports. The 82-year-old Dr. Chapman died in June 2009 of mesothelioma. He worked as a doctor. He developed the condition more than 50 years ago while training in a London hospital that was built using asbestos. An inquest into Dr. Chapman's death at Dorset County Hall in Dorchester, England, was told how he trained at Middlesex Hospital in Camden, London, in the early 1950s. While there, he came into repeated contact with asbestos, which led to mesothelioma in his later years. Dr. Chapman complained of tightness of the chest shortly before his diagnosis but died at the Joseph Weld Hospice in Dorchester on June 6, 2009. Michael Johnston, the West Dorset Coroner, told the hearing, "I will record the cause of death as malignant mesothelioma due to exposure to asbestos while at work, which means that my verdict is that he died from an industrial disease." ASBESTOS UPDATE: Robinson v. Alton and Southern Filed on Feb. 26 ---------------------------------------------------------------- Melvin J. Robinson and his wife, Jo Ann Robinson, on Feb. 26, 2010, filed an asbestos-related lawsuit against The Alton and Southern Railway Company in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. The Robinsons allege that Mr. Robinson developed asbestosis after he was exposed to asbestos fibers throughout the course of his work for the Company. The Robinsons claim Mr. Robinson began working as a switchman for the Company in 1955 and continued to work in that capacity until 1992. During the course of his employment, he worked around asbestos-containing products, including pipe and block insulation, gaskets, packing, cements, brake shoes and brake linings. During his employment, Mr. Robinson remained unaware of the dangers of asbestos and later developed body and respiratory system problems, including asbestosis, which he was diagnosed with on Aug. 28, 2009, the complaint says. In the three-count suit, the Robinsons seek a judgment of more than US$150,000. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent the Robinsons in Case No. 10-L-206. ASBESTOS UPDATE: Cates Joins Cooney Firm in 4 St. Clair Lawsuits ---------------------------------------------------------------- Judy L. Cates of the Cates Law Firm in Swansea, Ill., joined the Chicago asbestos firm of Cooney and Conway in filing four asbestos suits in St. Clair County Circuit Court against corporations including Union Carbide Corporation, John Crane Inc., Georgia-Pacific LLC, A.W. Chesterton Co. and Bondex, Inc., The Madison St. Clair Record reports. In all of cases, the plaintiffs assert the mesothelioma with which they or their deceased loved ones developed was wrongfully caused. In the first lawsuit, Mary K. Van Slyke claims her deceased husband, George Van Slyke, was diagnosed with the disease on May 13, 2009 and died on July 14, 2009. She says her husband worked from 1944 until 1979 in various capacities including as a steelworker, railroad worker and Navy machinist mate at various locations. In the second complaint, Donald Renken claims he was diagnosed with the disease on Nov. 12, 2009. He says he worked from 1934 until 1979 in various capacities, including as a farmer and minister. In the third suit, Walter Barutha claims he was diagnosed with the disease on Sept. 17, 2009. He says he worked in various capacities, including as an electrician, from 1931 until 1979. He was also secondarily exposed to asbestos fibers through his father, Walter Barutha Sr., who worked as a powerhouse worker at various locations from 1931 until 1972. In the fourth complaint, Alice Phillips claims she was diagnosed with the disease on Aug. 29, 2009. She says she worked as a home remodeler at various locations from 1947 until 1978. She was also secondarily exposed to asbestos fibers through her husband, John Phillips, who worked as a plumber, fitter, boiler man and HVAC man at various locations from 1947 until 1980, the suit states. In their lawsuits, the plaintiffs seek a judgment in excess of the jurisdictional limits of St. Clair County Circuit Court, plus costs. Ms. Cates, who has litigated several large settlement class action cases locally, has not filed any asbestos cases in recent times. ASBESTOS UPDATE: 14 Cases Filed During Feb. 15-19 in Madison Co. ---------------------------------------------------------------- During the week of Feb. 15, 2010 through Feb. 19, 2010, a total of 14 new asbestos lawsuits were filed in Madison County Circuit Court, Ill., The Madison St. Clair Record reports. These cases are: -- (Case No. 10-L-191) Edward C. and Carol Bagley of Wisconsin allege Mr. Bagley developed mesothelioma after his work as a mechanic at Bob Weimer/Prim Farms, as a laborer at Chapman Foundry, as a laborer at Badger Ordinance Works, as a laborer at Speed Queen Factory, as a truck driver and mechanic at Brake Bush Bros., as a farmer in Wisconsin, as a drywaller, carpenter and roofer and as a shade tree mechanic. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Bagleys. -- (Case No. 10-L-176) John J. Carpenter of Illinois, a worker at Walworth's Foundry, a member of the U.S. Navy and a self- employed farmer, claims lung cancer. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mr. Carpenter. -- (Case No. 10-L-177) Robert Hamilton of Florida, a lab technician, field wireman and engineer, claims mesothelioma. Brian J. Cooke, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Hamilton. -- (Case No. 10-L-175) Joseph E. Harlan of Texas alleges his deceased father, William T. Harlan Sr., developed lung cancer after his work as a member of the U.S. Air Force, as a paper bundler for Southern Advanced Bag and Paper Company, as a material handler for W. Horace Williams and as a ship carpenter for Pennsylvania Shipyard. Elizabeth V. Heller, Esq., and Robert Rowland, Esq., of Goldenberg, Heller, Antognoli and Rowland in Edwardsville, Ill., will represent Mr. Harlan. -- (Case No. 10-L-192) Donald Lamb of Rhode Island, a construction worker and laborer, claims mesothelioma. Myles L. Epperson, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Lamb. -- (Case No. 10-L-189) James O. and Marcia K. Patton of Illinois claim Mr. Patton developed lung cancer after his work in the U.S. Navy, as a fireman and electrician striker and as an automotive mechanic at Penney's Auto Center. T. Barton French Jr., Esq., and Nate Mudd, Esq., of French and Mudd in St. Louis, will represent the Pattons. -- (Case No. 10-L-180) James A. Robinette of Missouri, a carpenter and residential and industrial worker, claims mesothelioma. Andrew O'Brien, Esq., Christopher Thoron, Esq., Christina J. Nielson, Esq., Bartholomew J. Baumstark, Esq., and Gerald J. FitzGerald, Esq., of the O'Brien Law Firm in St. Louis, will represent Mr. Robinette. -- (Case No. 10-L-187) Darla Salazar claims her deceased husband, Carmelo Salazar-Garcia, developed mesothelioma after his work as a construction laborer at KD Construction, as a maintenance worker at Ft. Clark Springs Association, as a painter for various construction companies, as a door manufacturer at Coco Corporation, as a construction laborer for Friendship Builders, as a cutter and welder, as a steel worker at Modern Drop Forge and as a shadetree mechanic. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent Ms. Salazar. -- (Case No. 10-L-182) Rebecca Sparks of Pennsylvania alleges her deceased father, Raymond Sparks, developed mesothelioma after his work as a laborer and maintenance man. Brian J. Cooke, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd will represent Ms. Sparks. -- (Case No. 10-L-171) Robert Sparks of California, a pipe burner trainee, truck driver and furnace installer, claims mesothelioma. Christopher R. Guinn, Esq., and Christopher J. Levy, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mr. Sparks. -- (Case No. 10-L-183) Ural and Beverly Williams of Ohio allege Mr. Williams developed mesothelioma after his work as a mechanic, welder and machinist. Shane F. Hampton, Esq., and Paul M. Dix, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent the Williamses. -- (Case No. 10-L-179) Loraine Zamber of Wisconsin alleges her deceased husband, Gerald Zamber, developed mesothelioma after his work as an aviation technician, fire control officer, economist and pipeline worker. Randy S. Cohn, Esq., and Sean M. Keane, Esq., of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton, Ill., will represent Mrs. Zamber. -- (Case No. 10-L-190) Edwin and Gloria Zavadil of Missouri allege Mr. Zavadill developed mesothelioma after his work as a seaman in the U.S. Navy, as a fireman for the St. Louis Fire Department, as a maintenance worker for various apartment complexes, as a drywaller and home remodeler and as a shadetree mechanic. Randy L. Gori, Esq., of Gori, Julian and Associates in Edwardsville, Ill., will represent the Zavadils. -- (Case No. 10-L-186) Thomas and Alice Zimmer of Wisconsin allege Mr. Zimmer developed mesothelioma after his work as a delivery man at a grocery store and service man at Leisgang's/Ken's Standard Service Station, as a punch press and power shear operator at Trane Company, as a machinist mate, as a tool and die maker at Wilson-Hurd Manufacuring, as a tool and die maker at Zell Machine Industries, as a researcher and developer at Fleckenstein and as a worker at Outboard Marine Corporation. ASBESTOS UPDATE: Gump Lawsuit Filed in Kanawha County on Feb. 23 ---------------------------------------------------------------- An asbestos lawsuit styled Tina M. Gump and Steven Gump vs. 20th Century Glove Corporation, A.O. Smith Corporation, Ajax Magnethermic Corporation, et al. was filed on Feb. 23, 2010 in Kanawha County Circuit Court, W.Va., The West Virginia Record reports. Mrs. Gump's father worked at various places as a laborer, pot man and crane operator. Her asbestos exposure occurred while she was residing in her father's home by being exposed to asbestos- containing dust on her father's clothing, which he carried home on himself after work, according to the suit. Mrs. Gump now has asbestosis and mesothelioma. The Gumps seek a trial by jury to resolve all issues regarding the asbestos- related case. David P. Chervenick, Esq., Bruce E. Mattock, Esq., Lee W. Davis, Esq., and Scott S. Segal, Esq., represent the Gumps. Case No. 10-C-339 is assigned to a visiting judge. ASBESTOS UPDATE: Wilson Lawsuit Filed on Feb. 24 in Kanawha Co. --------------------------------------------------------------- An asbestos lawsuit filed by Darren R. Wilson was filed on Feb. 24, 2010 in Kanawha County Circuit Court, W.Va., The West Virginia Record reports. The suit was filed by Darren R. Wilson, Executor of the Estate of Richard R. Wilson, deceased, and Darren R. Wilson and Derek R. Wilson, as Co-Executors of the Estate of Karen J. Wilson, deceased, his wife. The suit was filed against Borg-Warner Morse Tec Inc.; Bridgestone/Firestone North American Tire; Crane Co.; Eaton Corporation; Ford Motor Company; Goodyear Tire and Rubber Company; Honeywell International, Inc.; Ingersoll-Rand Company; McCord Corporation; McCord Gasket Corporation; Nitro Industrial Coverings, Inc.; Ohio Valley Insulating Company; Textron, Inc.; UB West Virginia, Inc.; and Vimasco Corporation. Richard R. Wilson was diagnosed with malignant mesothelioma on Nov. 20, 2007, and died Feb. 28, 2008. The plaintiffs claim the defendants were negligent in failing to advise Richard R. Wilson of the dangerous characteristics of their asbestos and asbestos- related products. The plaintiffs seek compensatory and punitive damages. Aaron J. DeLuca, Esq., represents the plaintiffs. Case No. 10-C-350 is assigned to a visiting judge. ASBESTOS UPDATE: Estep Lawsuit Filed v. 78 Firms in Kanawha Co. --------------------------------------------------------------- An asbestos lawsuit styled Marvin Estep, Executor of the Estate of Wilford Estep vs. A.W. Chesterton Company, Aurora Pump Company, Brand Insulations, et al. was filed on Feb. 24, 2010 in Kanawha County Circuit Court, W.Va., The West Virginia Record reports. Marvin Estep claims the 78 defendant corporations are responsible for Wilford Estep's lung cancer and death. Wilford Estep smoked one pack of cigarettes per day from 1945 until 1963, but quit, according to the suit. Marvin Estep seeks a trial by jury to resolve all issues involved in the asbestos case. Thomas P. Maroney, Esq., and Victoria Antion, Esq., represent Marvin Estep. Case No. 10-C-359 is assigned to a visiting judge. ASBESTOS UPDATE: Jarrell Action Filed v. 97 Firms in Kanawha Co. ---------------------------------------------------------------- An asbestos lawsuit styled Dovenor E. Jarrell and Mary J. Jarrell vs. A.W. Chesterton Company, Ajax Magnethermic Corporation, AmChem Products, et al. was filed on Feb. 25, 2010 in Kanawha County Circuit Court, W.Va., The West Virginia Record reports. The Jarrells claim the 97 defendant corporations caused Mr. Jarrell's lung cancer. He claims he smoked cigarettes for 10 years, but quit in 1975. The Jarrells see a trial by jury to resolve all issues involved in their asbestos case. Thomas P. Maroney, Esq., and Victoria Antion, Esq., represent the Jarrells. Case No. 10-C-367 is assigned to a visiting judge. ASBESTOS UPDATE: Ruling Flipped in McCann Case v. Foster Wheeler ---------------------------------------------------------------- The Supreme Court of California reversed the ruling of the Court of Appeal in an asbestos case styled Terry McCann et al., Plaintiffs and Appellants v. Foster Wheeler LLC, Defendant and Respondent. Judges Ronald M. George, Joyce L. Kennard, Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin, Carlos R. Moreno, and Carol A. Corrigan entered judgment in Case No. S162435 on Feb. 18, 2010. This case presented a choice-of-law issue arising in a lawsuit filed by Terry McCann to recover damages for an illness, mesothelioma. Although the complaint sought recovery from numerous defendants, the issue before the Supreme Court related solely to the potential liability of a single defendant, Foster Wheeler LLC, a company that specially designed, manufactured, and provided advice regarding the installation of a very large boiler at an oil refinery in Oklahoma in 1957. At the time the boiler was being installed at the Oklahoma refinery, Mr. McCann, then an Oklahoma resident and a newly hired engineering sales trainee employed by the construction company that was installing the boiler, allegedly was exposed to asbestos at various times over a two-week period while he observed the application of asbestos insulation to the boiler by an independent insulation contractor. Eighteen years later, in 1975, after working at various jobs in Minnesota and Illinois, Mr. McCann moved to Dana Point, Calif., to take a position as executive director of Toastmasters International. In 2005, after having retired from his Toastmasters position in 2001 and continuing to reside in California, he was diagnosed with mesothelioma. A few months later, Mr. McCann filed this action in Los Angeles County Superior Court, naming numerous defendants, including Foster Wheeler. Prior to trial, Foster Wheeler moved for summary judgment on various grounds, including that Mr. McCann's action against it was governed by, and barred under, an Oklahoma statute of repose that required any cause of action against a designer or constructor of an improvement to real property to be filed within 10 years of the substantial completion of the improvement. The trial court found that Foster Wheeler was a designer of an improvement to real property within the meaning of the Oklahoma statute of repose and entered judgment dismissing Foster Wheeler as a defendant in Mr. McCann's underlying action. On appeal, the Court of Appeal concluded that the trial court erred in determining that Oklahoma law rather than California law should apply in these circumstances. On petition by Foster Wheeler, the Supreme Court granted review primarily to consider whether the Court of Appeal was correct in determining (1) that Oklahoma's interest in the application of its statute of repose is substantially limited to application of the statute to companies headquartered in Oklahoma and does not equally encompass out-of-state companies who design or construct improvements to real property located in Oklahoma, and (2) that California's interests, rather than Oklahoma's interests, would be more impaired by the failure to apply the respective state's law on the facts presented here. On Sept. 22, 2008, Mr. McCann filed a motion in this court, requesting that the Supreme Court take judicial notice of both the motion to substitute filed in the Court of Appeal and the Court of Appeal's order granting the motion. The judgment of the Court of Appeal was reversed and the matter was remanded to that court with directions to address Mr. McCann's additional contention that the trial court erred in finding that the boiler in question constituted an improvement to real property within the meaning of the relevant Oklahoma statute of repose. ASBESTOS UPDATE: Calif. Court OKs Summary Judgment in Hall Case ---------------------------------------------------------------- The Court of Appeal, Second District, Division 2, California, affirmed the ruling of the Superior Court of Los Angeles County, which granted summary judgment in Defendants' favor in asbestos case filed by Bertie Hall on behalf of her late husband, Alfred Hall. The case is styled Bertie G. Hall, Plaintiff and Appellant v. Warren Pumps LLC, et al., Defendants and Respondents. Judges Roger W. Boren, Kathryn Doi Todd, and Victoria M. Chavez entered judgment in Case No. B208275 on Feb. 16, 2010. Mr. Hall died of mesothelioma caused by workplace exposure to asbestos. Mrs. Hall sued four manufacturers of pumps and valves for Mr. Hall's injuries. None of the defendants manufactured asbestos products. The trial court gave judgment to defendants. The court rejected Mrs. Hall's theory that defendants could be liable for harmful asbestos products they neither made nor sold if they could foresee the use of such products with their equipment. Mr. Hall joined the U.S. Navy in 1944. Starting in 1945, he served as a fireman and machinist mate on numerous Navy ships, working in boiler rooms and engine rooms. He retired from military service in 1964. He worked as a stationary engineer at a B.F. Goodrich tire manufacturing facility from 1969 until 1988. He was diagnosed with malignant pleural mesothelioma in January 2007 and died on Aug. 31, 2008. ********* 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. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2010. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. 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