/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/101217.mbx C L A S S A C T I O N R E P O R T E R Friday, December 17, 2010, Vol. 12, No. 249 Headlines BISSELL APARTMENTS: Supreme Court Rejects Class Action COUNTRYWIDE FIN'L: Homeowners Appeal Ruling in Foreclosure Suit CVS PHARMACY: Sued Over Toxic Levels of Lead in Valerian Brand DEPUY ORTHOPAEDICS: Stevensons Commences Hip Implant Class Suit DOLLAR TREE: Calif. Suit May Proceed in March 2011 DOLLAR TREE: Plaintiffs' Appeal Gender Bias Suit Dismissal Pending EARL BRADLEY: Civil Suits May Be Consolidated Into Class Action EXTECH INSTRUMENTS: Recalls 5,100 Clamp Meters & Multimeters FRANKLIN RESOURCES: Final Settlement Hearings of Two Suits Today FRANKLIN TEMPLETON: Wins Market-Timing Class Action GOODYEAR DUNLOP: May Face Class Action Over Asbestos Exposure HEADWATERS INC: Expects Verdict in Early 2011 on "Archstone" Suit J CREW: D&Os Face Third Suit Over Sale of Company to TPG KEITHLEY INSTRUMENTS: Settles Merger-Related Class Suit LENDER PROCESSING: Refutes Docx Mortgage Assignment Allegations MEDIACOM COMMUNICATIONS: Levi & Korsinsky Files Class Action MELA SCIENCES: Accused in N.Y. Suit of Misleading Shareholders METROPOLITAN WATER: Sued for Breach of Employment Agreement NESTLE USA: Sued in California for False Advertising NOVELOS THERAPEUTICS: Faces Amended Complaint in Securities Suit ONE WORLD: Recalls 21,500 Ryobi RTS20 Portable Table-Saws OTIX GLOBAL: Settlement in "Goltz" Suit Pending Court Approval PROSPECT MEDICAL: Continues to Defend Merger-Related Suit in Del. REACHLOCAL INC: Awaits Court Approval of Labor Suit Settlement ROCK OF AGES: Faces Two Merger-Related Lawsuits in Vermont SEARS HOLDINGS: Continues to Face Merger-Related Suit in Illinois TAKE-TWO INTERACTIVE: Amends Bylaws Due to Class Suit Settlement TD AMERITRADE: Final Approval of "Spam" Litigation Pact Pending TD AMERITRADE: Motion to Dismiss "Ross" Lawsuit Still Pending TENNESSEE VALLEY: Trial on Seven Cases to Start Sept. 13, 2011 TENNESSEE VALLEY: Plaintiffs in "Katrina" Suit Seek Rehearing VISA INC: Remains a Defendant in Antitrust Suits Pending in NY VISA INC: Appeal From Dismissal of New Mexico Case Still Pending VISA INC: Appeals in MDL 1409 Settlement Approval Still Pending VISA INC: Final Hearing on "CyberSource" Pact Set for Jan. 14 VISA INC: Motion to Dismiss Data Pass Lawsuit Remains Pending VISA INC: To Be Removed as Defendant in "Matalas" Suit in Calif. WMG ACQUISITION: Awaits Ruling on Certiorari Petition in NY Suit * Experts Discuss How Judicial Panels of MDLs Select Venue * Franchise Class Actions Likely to Rise in Canada * FTC Meets with Browser Firms to Tackle History Sniffing Issue Asbestos Litigation ASBESTOS UPDATE: Injury Actions Still Ongoing v. Scotts Miracle ASBESTOS UPDATE: Target Corp. Subject to Asbestos NESHAP Inquiry ASBESTOS UPDATE: J.C. Penney Has $54MM A&E Liability at Oct. 30 ASBESTOS UPDATE: James Hardie Has $1.548BB Sept. 30 L-T Liability ASBESTOS UPDATE: James Hardie Faces 590 Open Claims at Sept. 30 ASBESTOS UPDATE: Hardie Records $107.8MM Adjustments at Sept. 30 ASBESTOS UPDATE: Washburn Petition Filed Dec. 9 in Jefferson Co. ASBESTOS UPDATE: Chillicothe School to Get $200T Cleanup Grant ASBESTOS UPDATE: Barker Awarded $250T Settlement in Genesee Case ASBESTOS UPDATE: Discovery of Hazard Forces Closure of IKEA Site ASBESTOS UPDATE: Hazard to be Cleared From Aspen in January 2011 ASBESTOS UPDATE: Former BT Employee Awarded GBP115,000 in Payout ASBESTOS UPDATE: Pottsville Man Awarded AU$326,640 Compensation ASBESTOS UPDATE: Hazard Found in Residential Flats in Millbrook ASBESTOS UPDATE: Hazard Illegally Dumped in Toledo Neighborhood ASBESTOS UPDATE: Colfax Posts $351.4M Long-Term Asset at Oct. 1 ASBESTOS UPDATE: 24,799 Claims Pending v. Colfax Corp. at Oct. 1 ASBESTOS UPDATE: Colfax Reserves $443.8MM for Claims at Oct. 1 ASBESTOS UPDATE: Rentech Records $268MM Obligations at Sept. 30 ASBESTOS UPDATE: Applica Consumer Still Facing 3 Exposure Cases ASBESTOS UPDATE: Report Shows QBuild Failed at Cleanup in School ASBESTOS UPDATE: Asbestos to be Abated from Kemmerer High School ASBESTOS UPDATE: CSR to Use Sucrogen Proceeds to Pay Liabilities ASBESTOS UPDATE: Calif. Court Favors McAllister in Lockheed Case ASBESTOS UPDATE: Probe on Hazard at South Cambridgeshire Ongoing ASBESTOS UPDATE: Madison, St. Clair on ATRA Hellhole Watch List ASBESTOS UPDATE: ATRA Puts W.Va. Third on Judicial Hellhole List ASBESTOS UPDATE: Aussie Govt. Unveils AU$1.5MM Asbestos Funding ASBESTOS UPDATE: Cleanup, Upgrades Add C$6MM to Court Renovation ASBESTOS UPDATE: Transfer of Trailers Breached Iowa Regulations ********* BISSELL APARTMENTS: Supreme Court Rejects Class Action ------------------------------------------------------ Steve Korris, writing for The Madison St. Clair Record, reports owners and managers of Bissell Apartments in Venice put to rest a tenant's class action claiming damage from mold on personal property. On Nov. 24, the Illinois Supreme Court denied Kesha Manning's petition to appeal the rejection of her claim by Fifth District appeals judges in Mount Vernon. Ms. Manning set out to prove that mold damaged personal property in all 92 apartments at Bissell, but she never proved damage to her own property. Her suit nevertheless persisted for more than five years. Lanny Darr of Godfrey filed it against BA 2003 Limited Partnership and Independent Management Services in 2005, in Madison County circuit court. Owners and managers called for a list of moldy property. Ms. Manning listed everything in her apartment, without describing any damage. That didn't advance her case, so Mr. Darr filed an affidavit from a hygienist. It didn't impress Circuit Judge Andy Matoesian, who granted summary judgment to owners and managers in 2007. "There is no question of fact, and she does not have any damages," he wrote. Mr. Darr moved to vacate judgment, filing another expert's affidavit as new evidence. The affidavit estimated Ms. Manning's damage at $13,465.25. That didn't impress Judge Matoesian either, and he stuck with his order. So did Fifth District judges Thomas Welch, Melissa Chapman and Stephen Spomer. They affirmed Judge Matoesian in July, finding Ms. Manning couldn't prove she suffered mold related damage or that defendants caused damage. "A plaintiff alleging negligence must come forward with evidence sufficient for a trier of fact to reasonably conclude that he or she suffered an injury to her person or property sufficient to withstand a properly supported summary judgment motion," Judge Welch wrote. "A plaintiff alleging negligence must demonstrate that the responsible defendant's alleged acts or omissions proximately caused her injuries," he wrote. "Further, the law has long been settled in Illinois that damagers cannot be awarded on the basis of conjecture or speculation," he wrote. He ignored the final damage estimate, writing that Manning failed to explain why she hadn't produced it earlier. It didn't justify vacating judgment because it didn't count as new evidence, he wrote. COUNTRYWIDE FIN'L: Homeowners Appeal Ruling in Foreclosure Suit --------------------------------------------------------------- On December 6, 2010, lawyers for a proposed class of distressed homeowners filed a brief requesting reversal of an order by U.S. District Judge C. Darnell Jones II of Philadelphia, who denied the homeowners' motion for leave to file an Amended Complaint in a foreclosure fraud class action. The action is entitled Rhodes v. Diamond, Case No. 10-3431 (3d. Cir.). The proposed Amended Complaint alleges that Countrywide, Wells Fargo and one of their high-volume foreclosure law firms engaged in fraudulent schemes to collect inflated and manufactured foreclosure fees from financially troubled families in danger of losing their homes. The Amended Complaint, first proposed on January 15, 2010, also alleges that defendants systematically used fraudulent affidavits and bogus mortgage assignments to hastily prosecute mortgage foreclosure actions in the absence of any party with legal standing to sue. The proposed Amended Complaint seeks relief against defendants under the Racketeer Influenced and Corruption Act, the Fair Debt Collection Practices Act and state law. "In recent months, public officials, commentators and citizens have been appalled to learn about institutionalized fraudulent practices by mortgage servicers and law firms that have created a frightening 'foreclosure crisis' in this country," John G. Narkin, a lawyer for the homeowners said. "This appeal demonstrates that our judicial system, whose function is to enforce the law and provide justice to those who need it, has at times abdicated its responsibilities and ignored fundamental rights of foreclosure fraud victims." The appeal also seeks reversal of the lower court's disposition of an earlier, narrowly circumscribed complaint, which was dismissed on technical grounds involving the U.S. bankruptcy laws, which are unrelated to the more pervasive fraudulent schemes alleged in the proposed Amended Complaint. Details about this case and its background are available at http://www.bhn-law.com/consumer_rights Contact: John G. Narkin, Esq. BHN Law Firm Telephone: (717) 756-0835 CVS PHARMACY: Sued Over Toxic Levels of Lead in Valerian Brand -------------------------------------------------------------- Courthouse News Service reports that CVS Pharmacy sells a house brand of valerian (450 mg) with "potentially toxic levels of lead," according to a federal class action. A copy of the Complaint in Cheramie v. CVS Pharmacy, Inc., et al., Case No. 10-cv-09527 (C.D. Calif.), is available at: http://www.courthousenews.com/2010/12/14/DietSupplement.pdf The Plaintiff is represented by: Patrick J. Sheehan, Esq. WHATLEY DRAKE & KALLAS, LLC 1540 Broadway, 37th Floor New York, NY 10036 Telephone: (212) 447-7011 E-mail: psheehan@wdklaw.com - and - Howard W. Rubinstein, Esq. LAW OFFICES OF HOWARD W. RUBINSTEIN P.O. Box 4839 Aspen, CO 81612 Telephone: (832) 715-2788 E-mail: howardr@pdq.net - and - Harold M. Hewell, Esq. HEWELL LAW FIRM 105 West F Street, Second Floor Telephone: (619) 235-6854 E-mail: hmhewell@hewell-lawfirm.com DEPUY ORTHOPAEDICS: Stevensons Commences Hip Implant Class Suit --------------------------------------------------------------- Stevensons LLP Monday disclosed that it has commenced a class action against DePuy Orthopaedics Inc., its parent company, Johnson & Johnson, and related companies, on behalf of the class who have been implanted with DePuy hip implants, including the: * DePuy ASRXL Acetabular Hip System, or the * DePuy ASR Hip Resurfacing System These products were distributed in Canada between at least January 1, 2006 (and possibly earlier) and August 2010 when they were recalled by DePuy after reports of injury to recipients of the implants. Stevensons LLP is working to get compensation from the manufacturers of these hip implants, for those who have been and will be affected by these faulty products. Stevensons LLP also wants to ensure that the manufacturers recognize the seriousness of their actions and behave responsibly in the future. For further information: If you, or someone you know, has been implanted with one of these hip implants, please contact: J. Daniel McConville, Esq. STEVENSONS LLP 144 Front Street West, Suite 400 Toronto, ON M5J 2L7 Telephone: 416-599-7900 Fax: 416-599-7910 E-mail: dmcconville@stevensonlaw.net DOLLAR TREE: Calif. Suit May Proceed in March 2011 -------------------------------------------------- A class action lawsuit filed against Dollar Tree, Inc., in California will proceed to trial in March 2011, if the court denies the Company's motion for summary judgment to dismiss the entire remaining class, or in the alternative, to decertify the case, according to the company's November 18, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 30, 2010. In 2007, two store managers filed a class action against the Company in California federal court, claiming they and other California store managers should have been classified as non- exempt employees under California and federal law. The Court has allowed notice to be sent to all California store managers employed since Dec. 12, 2004, and a class of approximately 273 individuals remains. The Company filed a motion to decertify the class which was both granted and denied in part. The current class was redefined by the Court in its ruling which resulted in a significant reduction in the number of class members. The Company has filed a motion for summary judgment to dismiss the entire remaining class or in the alternative, to decertify it. If that motion is denied, the case is scheduled to proceed to trial in March of 2011. The Company is vigorously defending itself in this matter. DOLLAR TREE: Plaintiffs' Appeal Gender Bias Suit Dismissal Pending ------------------------------------------------------------------ An appeal from an order dismissing a complaint filed by plaintiffs in a Virginia lawsuit alleging gender pay and promotion discrimination against Dollar Tree, Inc., remains pending, according to the company's November 18, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 30, 2010. In 2008, the Company was sued under the Equal Pay Act in Alabama federal court by two female store managers alleging that they and other female store managers were paid less than male store managers. Among other things, they seek monetary damages and back pay. The Court ordered that notice be sent to potential plaintiffs and there are now approximately 363 opt-in plaintiffs. The Company expects that the Court will rule upon a motion by the Company to decertify the collective action later in 2010, or early next year. In Oct. 2009, 34 plaintiffs, most of whom are opt-in plaintiffs in the Alabama action, filed a new class action Complaint in a federal court in Virginia, alleging gender pay and promotion discrimination under Title VII. On March 11, 2010, the case was dismissed with prejudice. Plaintiffs then filed a motion requesting the Court to alter, amend and vacate its dismissal Order, which the trial Court denied. Plaintiffs have filed an appeal to the U.S. Court of Appeals for the Fourth Circuit. It is anticipated the appellate process may take approximately a year. EARL BRADLEY: Civil Suits May Be Consolidated Into Class Action --------------------------------------------------------------- Ryan Mavity, writing for CapeGazette.com, reports more than 30 civil lawsuits against Lewes pediatrician and alleged sex offender Earl Bradley are likely to be merged into a single class-action lawsuit. Attorney Bruce Hudson and colleagues Craig Karsnitz and Ben Castle represent 60 families in suits against Mr. Bradley, Beebe Medical Center and other doctors. Mr. Hudson said there is a motion before New Castle County Superior Court Judge Joseph Slights III to certify all the lawsuits into a class suit. He said there has been no opposition to the motion from any of the defense teams. Mr. Hudson said the motion to have all the suits consolidated and treated as one was a matter of efficiency. Instead of the cases being heard by multiple judges, one judge can now hear the cases. He said attorneys for the plaintiffs have asked for an extension of the discovery phase into January. "It looks like it will be done," Mr. Hudson said regarding the class certification. According to Judge Slights' office, the class certification is pending; both sides are expected to meet again Monday, Jan. 31. Court documents relating to the motion are under seal. Mr. Hudson said suits against Mr. Bradley filed by other attorneys would also be included in the class-action suit. Rehoboth Beach attorney Michael Carr and Lewes attorney Chase Brockstedt have also filed suits against Mr. Bradley and Beebe Medical Center. If the class is certified, the next step would be for notice to be sent to those who have filed suit asking whether they want to opt in or out of the class, Mr. Hudson said. "Once we know who the class is, we can move forward to obtain a resolution," he said. Resolution in this case would be either a settlement or the case would go to trial. EXTECH INSTRUMENTS: Recalls 5,100 Clamp Meters & Multimeters ------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Extech Instruments, of Waltham, Mass., announced a voluntary recall of about 5,100 Digital clamp meters and multimeters. Consumers should stop using recalled products immediately unless otherwise instructed. When the battery runs low, the meters can fail to give an accurate voltage reading, resulting in the operator falsely believing the electrical power is off or low. This poses an electrocution hazard. Extech received one report of a meter displaying an incorrect voltage reading. No injuries have been reported. This recall involves Extech digital clamp meters with model numbers EX612, EX613, EX622 and EX623 and multimeters with model numbers EX540, EX542 and EX570. "Extech" and the model number can be found on the front of the product and the serial number on the rear. Serial numbers that begin with "A" are not included in the recall. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11067.html The recalled products were manufactured in China and sold through industrial and electrical distributors and wholesalers nationwide and at online tool and test equipment retailers from January 2008 to November 2010 for between $150 and $300. Consumers should immediately stop using the recalled digital clamp meters and multimeters and contact Extech for a free replacement meter. For additional information, contact Extech toll-free at (855) 239-8324 between 8:30 a.m. and 5:00 p.m., Eastern Time, Monday through Friday or visit the company's Web site at http://www.extech.com/recall/ FRANKLIN RESOURCES: Final Settlement Hearings of Two Suits Today ---------------------------------------------------------------- Courts in the United States and Canada will hold a final approval hearing today on settlements reached by Franklin Resources, Inc., with plaintiffs in two class action lawsuits, according to the company's November 16, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2010. Between 2003 and 2006, following industry-wide market timing and late trading investigations by U.S. and Canadian regulators, and U.S. state government offices, Franklin and certain related parties were named in civil lawsuits in the U.S. and one of Franklin's adviser subsidiaries was named in civil lawsuits in Canada. In the U.S., the lawsuits were filed against Franklin and certain of its adviser and distributor affiliates, individual Franklin officers and directors, a former Franklin employee, and trustees of certain Franklin Templeton Investments mutual funds. In 2004, the lawsuits were consolidated for coordinated proceedings with similar lawsuits against numerous other mutual fund complexes in a multi-district litigation titled "In re Mutual Funds Investment Litigation," pending in the U.S. District Court for the District of Maryland, Case No. 04-md-15862. Plaintiffs filed consolidated amended complaints in the MDL on September 29, 2004. The three consolidated lawsuits involving the Company include a class action (Sharkey IRO/IRA v. Franklin Resources, Inc., et al., Case No. 04- cv-01310), a derivative action on behalf of the Funds (McAlvey v. Franklin Resources, Inc., et al., Case No. 04-cv-01274), and a derivative action on behalf of Franklin (Hertz v. Burns, et al., Case No. 04-cv-01624) and seek, among other forms of relief, one or more of the following: unspecified monetary damages; punitive damages; removal of Fund trustees, directors, advisers, administrators, and distributors; rescission of management contracts and distribution plans under Rule 12b-1 promulgated under the Investment Company Act of 1940; and attorneys' fees and costs. On February 25, 2005, the Company-related defendants filed motions to dismiss the consolidated amended class action and Fund derivative action complaints. On June 26, 2008, the court issued its order granting in part and denying in part the Company's motion to dismiss the consolidated amended class action complaint. In its order, the court dismissed certain claims, while allowing others under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and under Sections 36(b) and 48(a) of the Investment Company Act of 1940 to remain, and dismissed all class action claims against the named Funds. Pursuant to stipulation, the court also dismissed all claims against certain individual defendants, including the independent trustees to the named Funds, and a former Franklin executive. On September 4, 2009, the court entered as its order the parties' stipulation to dismiss without prejudice the remaining Fund trustee defendants named in the consolidated amended class action complaint. On January 12, 2010, lead plaintiff in the consolidated class action filed a second consolidated amended class action complaint. The Company-related defendants filed a motion for partial summary judgment in the consolidated class action on March 24, 2010, and lead plaintiff filed its opposition and cross-motion for partial summary judgment on June 4, 2010. All briefing on the motions was completed in late August 2010. The Company-related defendants' motion to dismiss the consolidated fund derivative action remains under submission with the court, and, pursuant to stipulation, that action is stayed pending resolution of the cross-motions for partial summary judgment in the consolidated class action. In addition, pursuant to stipulation, the derivative action brought on behalf of Franklin has been stayed since 2004. In Canada, Franklin Templeton Investments Corp., a Franklin subsidiary and the manager of Franklin Templeton Investments' Canadian mutual funds, is named (along with several other non- Franklin affiliated manager defendants) in two market timing lawsuits that are styled as class actions (Huneault v. AGF Funds, Inc., et al., Case No. 500-06-000256-046, filed in the Superior Court for the Province of Quebec, District of Montreal on October 25, 2004, and Fischer v. IG Investment Management Ltd., et al., Case No. 06-CV-307599CP, filed in the Ontario Superior Court of Justice on March 9, 2006). The lawsuits seek, among other forms of relief, one or more of the following: unspecified monetary damages, punitive damages, an order barring any increase in management fees for a period of two years following judgment, and attorneys' fees and costs. Oral argument on petitioners' motion for authorization to institute a class action in the Huneault lawsuit concluded on May 5, 2009, and the court then took the matter under submission. Separately, on January 12, 2010, the court in the Fischer lawsuit denied plaintiffs' motion for class certification, and plaintiffs filed a notice of appeal of that ruling on February 22, 2010. On July 20, 2010, Franklin Templeton Investments Corp. and the plaintiffs reached an agreement-in-principle to resolve both the Huneault and Fischer actions for a total proposed payment of approximately $5.0 million, subject to certain conditions including certification of a class in each lawsuit on consent for settlement purposes and court approval of the settlement. In September 2010, plaintiffs in both actions moved to certify a class for purposes of effecting the proposed settlement and both courts granted the motions. Notice to class members of the class certification and proposed settlement was published on October 22, 2010, and the courts in both actions have scheduled December 17, 2010 for hearing on final settlement approval. FRANKLIN TEMPLETON: Wins Market-Timing Class Action --------------------------------------------------- Jessica Toonkel, writing for Investment News, reports Franklin Templeton Investments, the one mutual fund company to refuse to settle class actions related to the 2003 market-timing scandal, proved victorious in court. After a six-year legal battle, Judge Frederick Motz of the U.S. District Court for the District of Maryland on Dec. 9 granted summary judgment in favor of Franklin. "This was a win built painstakingly, block by block, issue by issue, year by year, and the result reached by Judge Motz is extremely gratifying to Franklin," said Daniel Pollack, an attorney with McCarter & English LLP, who represented Franklin in the case. Franklin was one of 17 mutual fund companies that were defendants in class actions stemming from the 2003 market-timing scandals that rocked the fund industry. In 2004, the 17 lawsuits were transferred to the U.S. District Court for the District of Maryland to coordinate proceedings. But unlike its peers, Franklin refused to settle. "Franklin was the last man standing," Mr. Pollack said. "Franklin decided it had a good defense and was going to pursue this." In 2004, Franklin did agree to pay $50 million to settle allegations with the Securities and Exchange Commission over the market-timing issue. In his opinion, Judge Motz noted that the plaintiffs failed to prove that Franklin hadn't put in place processes to prevent market timing. "Plaintiff's arguments, which can be summed up by accusing FT of doing 'too little, too late' are unpersuasive," the judge wrote in his statement. "The record provides ample evidence that FT acted in good faith in attempting to prevent non-arranged market timing in its funds." GOODYEAR DUNLOP: May Face Class Action Over Asbestos Exposure ------------------------------------------------------------- A reservoir man dying from asbestosis is reaching out to his former Thomastown Goodyear tyre factory colleagues to help expose the toll of unsafe work practices. John Melissinos, 72, through lawyers Slater and Gordon, is pursuing compensation from Goodyear Dunlop Tyres 25 years after he left the business. While working at the Thomastown tyre factory from 1975 to 1985, Mr. Melissinos said he was unknowingly exposed to and inhaled high quantities of asbestos. He said he believed the worst exposure occurred while he was removing and applying asbestos lagging to steam pipes and oil tanks and during the tyre-manufacturing process. Daughter Poppy Marino said his health had deteriorated significantly since being diagnosed with asbestosis in 2000. Slater and Gordon lawyer Claire Setches said that by 1978, the dangers of asbestos were well known and so far there was no indication Goodyear Dunlop did anything to change its use of asbestos products in its tyre-manufacturing process. "Many people are not aware asbestos was used in the tyre- manufacturing process," she said. "Goodyear Dunlop knew or ought to have known its employees were at danger of inhaling asbestos and developing serious lung diseases as a consequence, but it failed to take any precautions." Ms. Setches said Slater and Gordon Lawyers had set up a Thomastown Goodyear Dunlop asbestos register for former employees to contact them. In a prepared statement, Goodyear Dunlop said it had recently received an initial statement of claim for proceedings started by Mr. Melissinos. "Goodyear is taking this matter seriously and is conducting a thorough investigation to determine if there is any substance to the allegations," the statement said. HEADWATERS INC: Expects Verdict in Early 2011 on "Archstone" Suit ----------------------------------------------------------------- Headwaters Incorporated expects a decision in early 2011 in the lawsuit filed by Archstone against certain parties, including the company's subsidiary, Eldorado Stone LLC, according to the company's November 18, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. Archstone owns an apartment complex in Westbury, New York. Archstone alleges that moisture penetrated the building envelope and damaged moisture sensitive parts of the buildings, which began to rot and grow mold. In 2008, Archstone evicted its tenants and began repairing the twenty-one apartment buildings. Also in 2008, Archstone filed a complaint in the Nassau County Supreme Court of the State of New York against the prime contractor and its performance bond surety, the designer, and the company's subsidiary, Eldorado Stone, LLC, which supplied architectural stone that was installed by others during construction. The prime contractor then sued over a dozen subcontractors who in turn sued others. Archstone claims as damages approximately $36 million in repair costs, $15 million in lost lease payments, $7 million to tenants, who have sued Archstone, and $7 million for class action defense fees, plus prejudgment interest and attorney's fees. Eldorado Stone answered denying liability and tendered the matter to its insurers, who are paying for the defense of the case. Eldorado has moved for partial summary judgment on Archstone's claims. A decision is expected in early 2011. Because the resolution of the action is uncertain, legal counsel and management cannot express an opinion concerning the likely outcome of this matter, the liability of Eldorado Stone, if any, or the insurers' obligation to indemnify Eldorado Stone against loss, if any. J CREW: D&Os Face Third Suit Over Sale of Company to TPG -------------------------------------------------------- Peoria Police Pension Fund, on behalf of itself and others similarly situated v. Millard S. Drexler, et al., Case No. 652239/2010 (N.Y. Sup. Ct., N.Y. Cty. December 10, 2010), accuses the Chief Executive Officer and Chairman of the Board of J. Crew Group, Inc., and certain members of the Board of the Company of breaching their fiduciary duties to J. Crew shareholders by failing to engage in an honest and fair sale process in connection with the proposed acquisition of all remaining outstanding shares of the Company by funds affiliated with TPG Capital, L.P., and Leonard Green & Partners, L.P., for $43.50 per share in cash. The Plaintiff also accuses Chino Holdings, Inc., Chinos Acquisition Corporation, TPG, Leonard Green, and J. Crew for aiding and abetting the individual defendants' breaches of fiduciary duty. Chino Holdings and Chinos Acquisition are affiliates of TPG and Leonard Green. As a result of these breaches, Plaintiff says it will suffer irreparable injury because it will not receive fair value for their equity interests, The Plaintiff says that the offer price of $43.50 is grossly inadequate given the Company's intrinsic value, growth and profitability, and the underlying strength of its business. In addition the Plaintiff says the offer represents a mere 15.5% premium to the closing price of J. Crew stock on November 22, 2010, of $37.65, and a substantial discount to the Company's 52-week trading high of $50.96 on April 26, 2010. Further, the Plaintiff says that defendant Drexler will continue as Chairman and CEO of the Company and maintain a significant equity investment in the Company, and the other individual defendants stand to reap substantial profits for their own benefit at the expense and to the detriment of the public shareholders of J. Crew. In addition, the Plaintiff states that although the Merger Agreement includes a "go shop" period for alternative proposals through January 15, 2011, said period is inadequate given that it falls "flush in the middle of the three biggest holidays of the year", when strategic buyers are busy attending to their businesses. Plaintiff says the Agreement also includes a matching rights provision that grants the initial bidder the right to match any offer proferred by a second bidder. This and defendant Drexler's expressed reluctant to work for any bidder other than TPG and its affiliates, according to the Plaintiff, deter subsequent bidders from making any offer. J. Crew is a nationally recognized multi-channel retailer of women's, men's, and children's apparel, shoes, and accessories. Defendant TPG (formerly Texas Pacific Group) is one of the largest private equity investment firms globally, and was the previous owner of J. Crew, buying an 88% stake for about $189 million in a $500 million buy-out in 1997, and taking it public again in 2006 for a substantial gain, after installing defendant Drexler as CEO of the Company in 2003. Defendant Leonard Green is a private equity firm with over $9 billion in assets under management as of 2010. The Plaintiff is represented by: Robert M. Kornreigh, Esq. Chet B. Waldman, Esq. Andrew E. Lencyk, Esq. Matthew T. Insley-Pruitt, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 KEITHLEY INSTRUMENTS: Settles Merger-Related Class Suit ------------------------------------------------------- Keithley Instruments, Inc., and counsel for plaintiffs in a class action lawsuit over the company's proposed merger reached a settlement, according to the company's November 16, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On October 25, 2010, a purported class action and derivative lawsuit was filed in connection with the Agreement and Plan of Merger, dated as of September 29, 2010, among Danaher Corporation, a Delaware corporation, Aegean Acquisition Corp., an indirect wholly-owned subsidiary of Parent and an Ohio corporation, and Keithley Instruments, Inc., an Ohio corporation, providing for the merger of Merger Sub with and into the Company. The suit was filed in the Court of Common Pleas of Cuyahoga County, Ohio against the Company, its directors and Parent. The complaint alleges, among other things, that the Company's directors breached their fiduciary duties in connection with the Merger and that Parent has aided and abetted the Company's directors in their alleged breaches of fiduciary duties. On November 15, 2010, counsel for all parties reached an agreement in principle regarding the settlement of the Action. LENDER PROCESSING: Refutes Docx Mortgage Assignment Allegations --------------------------------------------------------------- MortgageOrb.com reports that in a pair of statements posted on its Web site, bundled-service provider Lender Processing Services has refuted numerous allegations made in articles published by Reuters and the Florida Times Union. In a letter to Reuters' editors, LPS' senior vice president of corporate communications, Michelle Kersch, called the Dec. 6 Reuters report titled "Legal Woes Mount for Foreclosure Kingpin" "inaccurate and sensational." The Reuters piece, which served as the basis for a Florida Times Union report released on the same date, stated that LPS lingered in the document-execution space, even after shutting down DocX, a former subsidiary that has been tied to incidents of robo-signing and is under investigation by Florida's attorney general. The Federal Reserve and the Office of the Comptroller of the Currency are among the federal entities investigating LPS. According to Reuters, LPS began transferring its signing units to clients' offices in December 2009. LPS says it discontinued signing new mortgage assignments at DocX in November 2009 and began the transition away from document signing at the Default Solutions division in 2008. "Based on its own internal investigation and evaluation of customer requirements, LPS made the business decision to halt the line of business in which LPS employees were authorized to, and did, sign mortgage foreclosure documents filed with the courts," Kersch says in the LPS statement published Dec. 10. "Our customers let us know that they needed time to implement this transition, and they asked us to help in that process. As a result, LPS provided temporary notary support while clients resumed full responsibility for document execution." LPS is the target of several class-action lawsuits, including one that accuses the company of illegally splitting fees with attorney firms. Another class action, which popped up last week, has been been brought on behalf of LPS shareholders. The San Francisco office of Lieff Cabraser Heimann & Bernstein LLP has brought a class-action lawsuit on behalf of all persons who purchased or acquired the common stock of LPS between July 2009 and Oct. 4, 2010. The action, pending in the U.S. District Court for the Middle District of Florida, lobs several allegations, including that LPS failed to disclose that it had engaged in deceptive business practices. MEDIACOM COMMUNICATIONS: Levi & Korsinsky Files Class Action ------------------------------------------------------------ Levi & Korsinsky, LLP has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of current stockholders of Mediacom Communications Corp. (NASDAQ: MCCC) in connection with the planned acquisition of the company by Rocco Commisso, Mediacom's Chairman, Chief Executive Officer, and controlling shareholder. The lawsuit, entitled Pease v. Commisso, Index No. 10-cv-9263, alleges, among other things, that the defendants violated Section 14(a) of the Securities Exchange Act of 1934 and corresponding Rule 14a-9. In particular, the plaintiff alleges that the defendants have issued materially false or misleading statements regarding the proposed acquisition. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from Dec. 13. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Eduard Korsinsky, at Levi & Korsinsky, LLP, (212) 363-7500 or, or via e-mail at ek@zlk.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.zlk.com/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice or may choose to do nothing and remain an absent class member. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. AT THIS TIME YOU MAY DO NOTHING AND REMAIN AN ABSENT CLASS MEMBER. YOU MAY ALSO RETAIN COUNSEL OF YOUR CHOICE. Levi & Korsinsky, LLP is a national law firm that represents the rights of shareholders and victims of corporate abuse. It is headquartered in New York City and has offices in Los Angeles, California and New Jersey. With over 50 years of combined litigation experience, the members of L|K have been involved in hundreds of class action lawsuits and have obtained multi-million dollar recoveries. MELA SCIENCES: Accused in N.Y. Suit of Misleading Shareholders -------------------------------------------------------------- Courthouse News Service reports that directors of Mela Sciences dumped $79 million of their shares at inflated prices by misrepresenting prospects for the company's MelaFind device, which supposedly could detect melanomas, shareholders claim in Westchester County Court. A copy of the Complaint in Jaffess v. Gulfo, et al., Index No. 50026/2010 (N.Y. Sup. Ct., N.Y Cty.), is available at: http://www.courthousenews.com/2010/12/14/SCA.pdf The Plaintiff is represented by: William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Ave. Oklahoma City, OK 73120 Telephone: (405) 235-1560 E-mail: wbf@federmanlaw.com METROPOLITAN WATER: Sued for Breach of Employment Agreement ----------------------------------------------------------- Frank Gaweda, et al., individually and on behalf of others similarly situated v. Metropolitan Water Reclamation District of Greater Chicago, Case No. 2010-CH-52264 (Ill. Cir. Ct., Cook Cty. December 9, 2010), bring claims for breach of employment agreement and promissory estoppel against the Defendant. Specifically, the Plaintiffs accuse the District of retroactively eliminating the termination pay of non-represented employees (who continue service beyond December 31, 2010), regardless of start date or length of service, and limiting sick leave incentive pay from a maximum of 60 days (120 days accrued) to a maximum of 15 days (30 days accrued). Mr. Gaweda explains that in order to receive any of their accrued termination pay and to receive their full 60 day accrued sick leave pay, Plaintiffs would have to voluntarily resign or retire on or before December 31, 2010. The Metropolitan Water Reclamation District of Greater Chicago is an Illinois municipal corporation located in Cook County that is authorized by the Metropolitan Water Reclamation District Act. Plaintiff Gaweda, a licensed professional engineer who was hired by the District in November 1983, is currently employed by the District and is a non-represented employee, meaning he is not subject to any collective bargaining agreement between any labor organization and the District. Further, Mr. Gaweda relates that as a result of this forced retirement, his pension will be reduced to 60% of his salary, instead of 80% of his last salary that he would have received were he to remain in state employment for 3 more years, when his length of service reaches 30 years. The Plaintiffs are represented by: Edward M. Hogan, Esq. Patrick E. Deady, Esq. Limo T. Cherian, Esq. HOGAN MARREN, LTD. 180 N. Wacker Drive, Suite 600 Chicago, IL 60606 Telephone: (312) 946-1800 NESTLE USA: Sued in California for False Advertising ---------------------------------------------------- Courthouse News Service reports that Nestle advertises its Nestle Carnation Instant Breakfast with false claims that it contains "antioxidants to help support the immune system," according to a federal class action. A copy of the Complaint in Francis v. Nestle USA, Inc., et al., Case No. 10-cv-09544 (C.D. Calif.), is available at: http://www.courthousenews.com/2010/12/14/Nestles.pdf The Plaintiff is represented by: Robert Chaffin, Esq. THE CHAFFIN LAW FIRM 4265 San Felipe, Suite 1020 Houston, TX 77027 Telephone: (713) 528-1000 E-mail: robert@chaffinlawfirm.com - and - Howard W. Rubinstein, Esq. LAW OFFICES OF HOWARD W. RUBINSTEIN P.O. Box 4839 Aspen, CO 81612 Telephone: (832) 715-2788 E-mail: howardr@pdq.net - and - Harold M. Hewell, Esq. HEWELL LAW FIRM 105 West F Street, Second Floor Telephone: (619) 235-6854 E-mail: hmhewell@hewell-lawfirm.com NOVELOS THERAPEUTICS: Faces Amended Complaint in Securities Suit ---------------------------------------------------------------- Novelos Therapeutics, Inc., is facing an amended complaint in a securities class action lawsuit following the appointment of lead plaintiffs, according to the company's November 19, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2010. A purported class action complaint was filed on March 5, 2010 in the United States District Court for the District of Massachusetts by an alleged shareholder on behalf of himself and all others who purchased or otherwise acquired the Company's common stock in the period between December 14, 2009 and February 24, 2010, against Novelos and the Company's President and Chief Executive Officer, Harry S. Palmin. On October 1, 2010, the court appointed lead plaintiffs (Boris Urman and Ramona Mc Donald) and appointed lead plaintiffs' counsel. On October 22, 2010, an amended complaint was filed. The amended complaint claims that the Company violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder in connection with alleged disclosures related to the Phase 3 clinical trial for NOV-002 in non-small cell lung cancer. The Company believes the allegations are without merit and intends to defend vigorously against the allegations. The Company said it would file its initial responsive pleading by December 6, 2010. ONE WORLD: Recalls 21,500 Ryobi RTS20 Portable Table-Saws --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with One World Technologies, of Anderson, S.C., announced a voluntary recall of about 21,500 Ryobi RTS20 portable table-saws. Consumers should stop using recalled products immediately unless otherwise instructed. The saw blade on the motor carriage could be misaligned, posing a laceration hazard. The company received one report of a consumer being hit by a piece of metal during the cutting operation. There was no report of a physical injury or property damage. This recall involves the RTS20 Ryobi ten-inch, portable table-saw. The table saw has a blue base and warning label with the model RTS20 and the Ryobi name printed on it and attached to the rear of the saw. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11066.html The recalled products were manufactured in China and sold through home Depot retail outlets nationwide and Canada from July 2010 through October 2010 for about $200. Consumers should contact Ryobi immediately to receive a free inspection of their product and, if necessary, a free repair or replacement of their RTS20 Ryobi table-saw. For additional information, contact Ryobi at (800) 597-9624 between 8:00 a.m. and 5:00 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.ryobitools.com/ OTIX GLOBAL: Settlement in "Goltz" Suit Pending Court Approval -------------------------------------------------------------- A proposed settlement between Otix Global, Inc., and other parties to a putative class action filed by Albert Goltz is pending court approval, according to the company's November 17, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On September 16, 2010, Mr. Goltz filed the putative class action suit challenging an Agreement and Plan of Merger by and between Otix Global, Inc., William Demant Holding A/S, and OI Merger Sub, Inc. On November 17, 2010, the parties to the Action entered into a Memorandum of Understanding that sets forth the principal terms of a settlement of the Action, which would include the dismissal with prejudice of all claims against all of the defendants, including the company and its Board of Directors. The proposed settlement is conditional upon, among other things, the execution of an appropriate stipulation of settlement, consummation of the acquisition of the company by William Demant Holding A/S and OI Merger Sub, Inc., and final approval of the proposed settlement by the Court. PROSPECT MEDICAL: Continues to Defend Merger-Related Suit in Del. ----------------------------------------------------------------- Prospect Medical Holdings, Inc., disclosed in a November 18, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission that on September 28, 2010, two putative stockholder class actions in the Delaware Chancery Court in connection with the merger agreement among Prospect Medical and entities affiliated with Leonard Green Partners, L.P., a private equity firm, were consolidated for all purposes in In re Prospect Medical Holdings, Inc. Shareholders Litigation, Consolidated C.A. No. 5760-VCN. The proposed merger was first announced by Prospect Medical on August 16, 2010. On October 13, 2010, the plaintiffs in the consolidated action filed and served a Verified Consolidated Amended Class Action Complaint. The Verified Consolidated Amended Class Action Complaint names as defendants, among others, Prospect Medical and each of the directors of Prospect Medical and challenges the proposed merger as, among other things, an unlawful scheme to acquire Prospect Medical for grossly inadequate consideration in breach of the individual defendants' fiduciary duties. The Verified Consolidated Amended Class Action Complaint seeks, among other relief, an injunction against the proposed merger, an order compelling the directors to comply with their fiduciary duties, and damages and costs, including attorneys' fees and experts' fees. On October 15, 2010, the plaintiffs filed motions for expedited proceedings and a preliminary injunction barring any action by the defendants to consummate the merger. The parties agreed to an expedited schedule, and a hearing on the preliminary injunction motion was scheduled to take place on November 30, 2010. On November 17, 2010, however, the plaintiffs withdrew their motion for a preliminary injunction, and the hearing on the preliminary injunction motion scheduled for November 30, 2100, has been canceled and removed from the Court's calendar. The withdrawal of the motion for a preliminary injunction does not constitute a dismissal, settlement or withdrawal of the plaintiffs' claims, Prospect Medical clarifies. Prospect Medical believes the plaintiffs' claims are without merit, and intends to vigorously defend the action. REACHLOCAL INC: Awaits Court Approval of Labor Suit Settlement -------------------------------------------------------------- ReachLocal, Inc., has executed a memorandum of understanding to settle a labor lawsuit for $800,000 and is awaiting court approval, according to the company's November 19, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. On March 1, 2010, a class action lawsuit was filed against ReachLocal, Inc. in California Superior Court in Los Angeles, California by two of the Company's former employees. The complaint alleges wage and hour violations in a Fair Labor Standards Act collective action and a California class action. On November 17, 2010, the Company executed a memorandum of understanding to settle the class action for $800,000. The Company has signed the memorandum of understanding to resolve the litigation in its entirety, thereby avoiding any further expense and distraction associated with the litigation. The settlement is subject to court approval. ROCK OF AGES: Faces Two Merger-Related Lawsuits in Vermont ---------------------------------------------------------- Rock of Ages Corporation is facing two purported shareholder class action lawsuits relating to the company's merger with Swenson Granite Company LLC, according to the company's November 16, 2010 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 2, 2010. A purported shareholder of Rock of Ages commenced a purported class action lawsuit against Rock of Ages, all of the members of its Board of Directors, certain of its officers, and Swenson, shortly after Swenson's initial proposal, submitted to the Company's board of directors on May 6, 2010, to acquire the Company at $4.38 per share of common stock. The complaint was filed in Vermont Superior Court, Washington County and subsequently removed to the United States District Court for the District of Vermont. The plaintiff alleges, among other things, that the Rock of Ages directors and officers named in the complaint breached their fiduciary duties in connection with the Swenson proposal, that Swenson's proposed offer is inadequate, and that the defendants would benefit from the proposed transaction to the detriment of Rock of Ages' other shareholders. Plaintiff seeks an order certifying the proposed class, granting preliminary and permanent injunctive relief against the consummation of the merger, or if the merger is consummated, rescinding the merger and/or awarding rescissory damages and ordering an accounting, and an award of costs and attorneys fees. Rock of Ages believes the complaint is without merit and is engaged in a vigorous defense. The plaintiff has asserted to the court that he intends to amend his complaint, but has not indicated when he will do so. A second purported class action was commenced by a purported shareholder against Rock of Ages, each of its current directors, Swenson and Merger Sub on October 27, 2010 in the United States District Court for the District of Vermont. The plaintiff alleges, among other things, that the individual defendants breached their fiduciary duties in approving the previously announced merger agreement among the Company, Swenson and Merger Sub, providing for the acquisition of the Company through a merger of Merger Sub with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Swenson. Plaintiff further alleges that Swenson and Merger Sub aided and abetted such breaches of duty. Plaintiff seeks an order certifying the proposed class, granting preliminary and permanent injunctive relief against the consummation of the merger, or, if the merger is consummated, rescinding the merger and/or awarding rescissory damages and ordering an accounting, and an award of costs and attorneys fees. Rock of Ages believes the complaint is without merit and plans a vigorous defense. Plaintiff's counsel has notified defendants' counsel that they intend to amend their complaint, but have not yet done so. SEARS HOLDINGS: Continues to Face Merger-Related Suit in Illinois ----------------------------------------------------------------- Sears Holdings Corporation remains a defendant in a merger-related lawsuit in Illinois to which the administration of a settlement of an appeal is ongoing, according to the company's November 18, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 30, 2010. Following the announcement of the merger between Kmart and Sears on November 17, 2004, a lawsuit was filed in the United States District Court for the Northern District of Illinois relating to the transaction. This suit -- Maurice Levie, individually and on behalf of all others similarly situated v. Sears, Roebuck & Co., et al. -- asserts claims under the federal securities laws on behalf of a class of former Sears' stockholders against Sears, Alan J. Lacy, Edward S. Lampert and ESL Partners, L.P. for allegedly failing to make timely disclosure of merger discussions during the period September 9 through November 16, 2004, and seeks damages. On July 17, 2007, the Court granted in part and denied in part plaintiffs' motion for class certification, certifying a class of Sears' stockholders who sold shares of Sears' stock between September 9, 2004 and November 16, 2004, excluding short sellers who covered their positions during the class period. On December 18, 2009, the Court entered an order granting defendants' motions for summary judgment. Plaintiffs filed a Notice of Appeal on January 15, 2010. In their opening appellate brief, plaintiffs withdrew their appeal from the portion of the Court's Order granting summary judgment to Sears and Mr. Lacy and the Appellate Court subsequently dismissed the appeal as to Sears and Mr. Lacy. Plaintiffs then entered into an agreement with ESL Partners and Mr. Lampert to settle their remaining appeal. Subsequently, the Appellate Court remanded the case back to the District Court and the District Court entered an Order preliminarily approving the settlement. Administration of the settlement is ongoing. The settlement does not have a material adverse effect on the company's results of operations, financial position, liquidity or capital resources. TAKE-TWO INTERACTIVE: Amends Bylaws Due to Class Suit Settlement ---------------------------------------------------------------- Take-Two Interactive Software, Inc., has amended its Amended and Restated Bylaws to add certain provisions in connection with its settlement with the plaintiffs of a securities class action, according to the company's November 18, 2010, Form 8-K filing with the U.S. Securities and Exchange Commission. In connection with the settlement by Take-Two Interactive Software, Inc., of a historic securities class action matter related to Grand Theft Auto: San Andreas and option backdating, which settlement was approved by the Southern District of New York court in October 2010, the Company agreed to, among other things, adopt certain changes to its corporate governance policies and practices. As part of those measures, on Nov. 12, 2010, the Board of Directors of the Company approved an amendment to Article II, Section 12(A) of the Company's Amended and Restated Bylaws to add a new subsection (5) to provide that no business may be properly brought before an annual meeting of stockholders by a person other than a stockholder unless such matter has been included in the proxy solicitation materials issued by the Company, excepting procedural matters concerning the conduct of such annual meeting. The amendment to the Bylaws became effective immediately upon its approval by the Board of Directors. TD AMERITRADE: Final Approval of "Spam" Litigation Pact Pending --------------------------------------------------------------- Final approval of a settlement in a consolidated complaint filed by account holders of TD Ameritrade Holding Corporation remains pending, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. A purported class action, captioned Elvey v. TD Ameritrade, Inc., was filed on May 31, 2007 in the United States District Court for the Northern District of California. The complaint alleges that there was a breach in TD Ameritrade, Inc.'s systems, which allowed access to e-mail addresses and other personal information of account holders, and that as a result account holders received unsolicited e-mail from spammers promoting certain stocks and have been subjected to an increased risk of identity theft. The complaint requests unspecified damages and injunctive and other equitable relief. A second lawsuit, captioned Zigler v. TD Ameritrade, Inc., was filed on September 26, 2007, in the same jurisdiction on behalf of a purported nationwide class of account holders. The factual allegations of the complaint and the relief sought are substantially the same as those in the first lawsuit. The cases were consolidated under the caption In re TD Ameritrade Accountholders Litigation. The Company hired an independent consultant to investigate whether identity theft occurred as a result of the breach. The consultant conducted four investigations from August 2007 to June 2008 and reported that it found no evidence of identity theft. On November 15, 2010, TD Ameritrade, Inc. and plaintiffs Richard Holober and Brad Zigler entered into a proposed class settlement agreement and the plaintiffs filed a motion with the Court for preliminary approval. Under the proposed settlement, the Company will pay no less than $2.5 million in settlement benefits to eligible members of the settlement class. Total compensation to be paid to all claimants will not exceed $6.5 million, inclusive of any award of attorneys' fees and costs. In addition, the proposed settlement agreement provides that the Company will retain an independent information technology security consultant to assess whether the Company has met certain information technology security standards. The proposed settlement is subject to final approval by the Court. TD AMERITRADE: Motion to Dismiss "Ross" Lawsuit Still Pending ------------------------------------------------------------- Motions filed by TD Ameritrade Corporation, et al., seeking to dismiss an amended lawsuit captioned Ross v. Reserve Management Company, Inc., et al., remains pending, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for fiscal year ended September 30, 2010. In November 2008, a purported class action lawsuit was filed with respect to the Yield Plus Fund. The lawsuit is captioned Ross v. Reserve Management Company, Inc. et al. and is pending in the U.S. District Court for the Southern District of New York. The Ross lawsuit is on behalf of persons who purchased shares of Reserve Yield Plus Fund. On November 20, 2009, the plaintiffs filed a first amended complaint naming as defendants the fund's advisor, certain of its affiliates and the Company and certain of its directors, officers and shareholders as alleged control persons. The complaint alleges claims of violations of the federal securities laws and other claims based on allegations that false and misleading statements and omissions were made in the Reserve Yield Plus Fund prospectuses and in other statements regarding the fund. The complaint seeks an unspecified amount of compensatory damages including interest, attorneys' fees, rescission, exemplary damages and equitable relief. On January 19, 2010, the defendants submitted motions to dismiss the complaint. The motions are pending. The Company is unable to predict the outcome or the timing of the ultimate resolution of these matters, or the potential loss, if any, that may result from these matters. TENNESSEE VALLEY: Trial on Seven Cases to Start Sept. 13, 2011 -------------------------------------------------------------- A Tennessee court has scheduled the first seven filed cases against Tennessee Valley Authority for trial beginning on September 13, 2011, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. Sixty lawsuits based on the Kingston ash spill have been filed in the United States District Court for the Eastern District of Tennessee. Five of those actions have been voluntarily dismissed. The lawsuits, filed by residents, businesses, and property owners in the Kingston area, allege various causes of action in tort -- including nuisance, strict liability, personal injury, and property damage -- as well as inverse condemnation, and generally seek unspecified compensatory and punitive damages, court orders to clean up the plaintiffs' properties and surrounding properties, and other relief. Five of the lawsuits are proposed class actions, and three of these have been consolidated. TVA is the sole defendant in all actions except in the unconsolidated class actions, in which Geosyntec Consultants, Inc., and Worley Parsons Corporation are also defendants. On March 26, 2010, the court issued its decision on TVA's motions to dismiss the first seven cases that had been filed -- the proposed class actions and three other cases filed on behalf of named individuals. In those cases, the court dismissed (1) the tort claims related to TVA's decisions to build and operate the ash pond and TVA's recovery and remediation activities, (2) the plaintiffs' demands for punitive damages, and (3) the plaintiffs' demands for a jury trial. The court denied TVA's motions with regard to plaintiffs' tort claims concerning TVA's maintenance and upkeep of the ash pond, along with the inverse condemnation claims raised by certain plaintiffs. The court has scheduled the first seven filed cases for trial beginning on September 13, 2011. TVA has received several notices of intent to sue under various environmental statutes from both individuals and environmental groups. In addition, TVA has received substantial other claims from individuals and companies allegedly affected by the ash spill, and may receive additional claims. TENNESSEE VALLEY: Plaintiffs in "Katrina" Suit Seek Rehearing ------------------------------------------------------------- Plaintiffs in a class action lawsuit arising out of Hurricane Katrina are asking the U.S. Supreme Court to require the Fifth Circuit to rehear the dismissal of their case, according to Tennessee Valley Authority's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. In April 2006, TVA was added as a defendant to a class action lawsuit brought in the United States District Court for the Southern District of Mississippi by 14 Mississippi residents allegedly injured by Hurricane Katrina. The plaintiffs sued seven large oil companies and an oil company trade association, three large chemical companies and a chemical trade association, and 31 large companies involved in the mining and/or burning of coal, alleging that the defendants' greenhouse gas emissions contributed to global warming and were a proximate and direct cause of Hurricane Katrina's increased destructive force. The plaintiffs seek monetary damages among other relief. The district court dismissed the case for lack of standing. The plaintiffs appealed the dismissal to the United States Court of Appeals for the Fifth Circuit which, in October 2009, reversed the dismissal of the public and private nuisance, trespass, and negligence claims, affirmed the dismissal of the unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims, and remanded the case to the district court for further proceedings. TVA and the other defendants filed a petition seeking a rehearing by the entire Fifth Circuit, which the Fifth Circuit granted. However, on April 30, 2010, the Fifth Circuit issued an order stating that it lost the necessary quorum to rehear the appeal and, on May 28, 2010, the court determined that it had no viable way to rehear the case and vacated its original decision. As a result, the district court's dismissal was reinstated. On August 26, 2010, the plaintiffs served a petition to the U.S. Supreme Court for an order requiring the Fifth Circuit to rehear the case. VISA INC: Remains a Defendant in Antitrust Suits Pending in NY -------------------------------------------------------------- Visa Inc. remains a defendant in lawsuits alleging violations federal antitrust laws, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. Beginning in May 2005, approximately 55 complaints, all but 10 of which were styled as class actions, have been filed in U.S. federal district courts on behalf of merchants against Visa U.S.A. and MasterCard, and in some cases, certain Visa member financial institutions. Visa International was also named as a defendant in more than 30 of these complaints. The cases allege, among other things, that Visa's and MasterCard's purported setting of interchange reimbursement fees, their "no surcharge" rules, and alleged tying and bundling of transaction fees violate federal antitrust laws. On October 19, 2005, the Judicial Panel on Multidistrict Litigation issued an order transferring these cases to the U.S. District Court for the Eastern District of New York for coordination of pre-trial proceedings (MDL 1720). On April 24, 2006, the group of purported class plaintiffs filed a First Amended Class Action Complaint. Taken together, the claims in the First Amended Class Action Complaint and in the 10 complaints brought on behalf of individual merchants are generally brought under Sections 1 and 2 of the Sherman Act. In addition, some of these complaints contain certain state unfair competition law claims. These interchange-related cases seek money damages (alleged in the consolidated class action complaint to range in the tens of billions of dollars), subject to trebling, as well as attorneys' fees and injunctive relief. As part of the retrospective responsibility plan, Visa U.S.A. and Visa International entered into a judgment sharing agreement with certain member financial institutions of Visa U.S.A. on July 1, 2007. On January 8, 2008, the district court adopted the recommendation of the Magistrate Judge and granted defendants' motion to dismiss the class plaintiffs' claims for damages incurred prior to January 1, 2004. On January 29, 2009, class plaintiffs filed a Second Consolidated Amended Class Action Complaint. Among other things, this complaint: (i) added new claims for damages and injunctive relief against Visa and the bank defendants regarding interchange reimbursement fees for Visa PIN-debit cards; (ii) added new claims for damages and injunctive relief against Visa and the bank defendants since the time of Visa's IPO regarding interchange reimbursement fees for Visa's credit, offline debit, and PIN-debit cards; (iii) eliminated claims for damages relating to the so-called "no-surcharge" rule and "anti-steering" rules; (iv) eliminated claims for damages based on the alleged tie of network processing services and payment guarantee services to the payment card system services; and (v) added Visa Inc. as a defendant. In addition, class plaintiffs filed a Second Supplemental Class Action Complaint against Visa Inc. and several financial institutions challenging Visa's reorganization and IPO under Section 1 of the Sherman Act and Section 7 of the Clayton Act. In the Supplemental Complaint, class plaintiffs seek unspecified monetary damages and declaratory and injunctive relief, including an order that the IPO be unwound. On May 8, 2008, class plaintiffs served on defendants a motion seeking to certify a class of merchants. On March 31, 2009, Visa, jointly with other defendants, moved to dismiss the Supplemental Complaint and the Second Consolidated Amended Class Action Complaint. The parties have exchanged expert reports and taken expert discovery. No trial date has been set. VISA INC: Appeal From Dismissal of New Mexico Case Still Pending ---------------------------------------------------------------- An appeal from an order dismissing consumer protection claims is pending in New Mexico, according to Visa Inc.'s November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. Complaints were also filed in 19 different states and the District of Columbia alleging state antitrust, consumer protection and common law claims against Visa U.S.A. and MasterCard (and, in California, Visa International) on behalf of consumers. The claims in these class actions included allegations mirroring those made in the U.S. merchant lawsuit and asserting that merchants, faced with excessive merchant discount fees, passed on some portion of those fees to consumers in the form of higher prices on goods and services sold. Plaintiffs seek money damages and injunctive relief. Visa U.S.A. has been successful in the majority of these cases, as courts in 17 jurisdictions have granted Visa U.S.A.'s motions to dismiss for failure to state a claim or plaintiffs have voluntarily dismissed their complaints. The court approved the voluntary dismissal of one of the consolidated cases in New Mexico on September 16, 2009. In the remaining New Mexico case, the court granted Visa U.S.A.'s motion to dismiss at a hearing on May 14, 2010, and entered an order and judgment dismissing the case on June 9, 2010. The plaintiff filed a notice of appeal from that order and judgment on June 14, 2010. VISA INC: Appeals in MDL 1409 Settlement Approval Still Pending --------------------------------------------------------------- Various appeals challenging a district court's approval of the MDL 1409 Settlement remains pending in U.S. Court of Appeals for the Second Circuit, according to Visa Inc.'s November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. In 2000, a "representative" action was filed in California state court against Visa U.S.A. and Visa International in connection with an asserted 1% currency conversion "fee" assessed on member financial institutions by the payment card networks on transactions involving the purchase of goods or services in a foreign currency and the disclosure of that fee (Schwartz). Plaintiffs claimed Visa's currency conversion practices violated California Business & Professions Code Section 17200. Additional California state class actions were filed against Visa U.S.A. and Visa International challenging currency conversion practices (Shrieve, Mattingly, and Baker). Visa U.S.A., Visa International, MasterCard, Citicorp Diners Club, Inc. (Diners Club) and several Visa member financial institutions are also defendants in a number of federal class actions that allege, among other things, violations of federal antitrust laws based on the 1% currency conversion fee. The federal complaints were consolidated or coordinated in MDL 1409 (In re Currency Conversion Fee Antitrust Litigation) in the U.S. District Court for the Southern District of New York. On July 20, 2006, Visa U.S.A. and Visa International entered into a settlement agreement in MDL 1409. Under the terms of that settlement, Visa U.S.A. and Visa International paid $100.1 million into a settlement fund and agreed that for five years they would separately identify or itemize any fees added to transactions because they occurred in a foreign country or involved a foreign currency and would require U.S. issuing members to disclose certain changes, if any, to exchange rate practices. Visa U.S.A. and Visa International also paid into the settlement fund $18.6 million in attorneys' fees to resolve Schwartz. The Shrieve, Mattingly, and Baker plaintiffs agreed that they would ask the court to dismiss their actions with prejudice as to Visa U.S.A. and Visa International once the MDL 1409 settlement receives court approval. If Baker is dismissed, Visa U.S.A. and Visa International shall pay $1.0 million plus interest as attorneys' fees. If Baker is not dismissed within 60 days of final approval of the MDL settlement, Visa U.S.A. and Visa International shall pay $500,000 plus interest as attorneys' fees. The court granted final approval of the MDL 1409 settlement on October 22, 2009. Various appeals have been filed with the U.S. Court of Appeals for the Second Circuit challenging the district court's approval of the settlement. The issuance of refund checks for valid, timely claims will not commence until after the appeals are resolved (in favor of the court-approved settlement) and the settlement administrator has validated the claims. VISA INC: Final Hearing on "CyberSource" Pact Set for Jan. 14 ------------------------------------------------------------- A hearing is scheduled for January 14, 2011, to consider final approval of a CyberSource securities litigation settlement, according to Visa Inc.'s November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. On April 29, 2010, an individual named Carol Ann Peters filed a class action lawsuit against CyberSource Corporation, certain of its directors, and Visa Inc. in California Superior Court in connection with the proposed merger of CyberSource and Visa. The complaint asserts claims of breach of fiduciary duty against the CyberSource directors and aiding and abetting breaches of fiduciary duty against CyberSource and Visa. Plaintiff later added Market Street Corp., a wholly-owned subsidiary of Visa Inc., as a defendant and seeks declaratory and injunctive relief and attorneys' fees. A similar lawsuit was filed on May 4, 2010, by the Inter-Local Pension Fund of the Graphic Communications Conference of the International Brotherhood of Teamsters in the Chancery Court of the State of Delaware. The Delaware complaint was voluntarily dismissed and re-filed in California Superior Court on June 1, 2010, adding allegations of inadequate disclosure in CyberSource's preliminary proxy statement concerning the merger. On June 9, 2010, the California court consolidated the two suits, now captioned In re CyberSource Shareholder Litigation. On June 29, 2010, the parties reached an agreement in principle to settle the litigation. The agreement requires CyberSource to make certain additional disclosures related to the proposed merger, which were made in CyberSource's definitive proxy statement filed with the SEC on June 11, 2010, but does not require any defendant to pay money damages. A notice of the settlement, which was subject to confirmatory discovery and court approval, was filed on July 13, 2010. On September 16, 2010, following completion of confirmatory discovery, the parties filed formal settlement documents with the court. On November 10, 2010, the court entered an order preliminarily approving the settlement and directing that notice of the settlement be provided to potential class members. A final approval hearing is scheduled for January 14, 2011. The settlement is not considered material to the Company's consolidated financial statements. VISA INC: Motion to Dismiss Data Pass Lawsuit Remains Pending ------------------------------------------------------------- Visa Inc.'s motion to dismiss a class action complaint alleging unauthorized passing of cardholder account information is pending, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. On August 27, 2010, a consumer filed a class action complaint against Webloyalty.com, Inc., Amazon.com, Inc., and Visa Inc. in federal district court in Connecticut. The plaintiff claims, among other things, that consumers who made online purchases at Amazon.com were deceived into also incurring charges for services from Webloyalty.com through the alleged unauthorized passing of cardholder account information during the sales transaction ("data pass"), in violation of federal and state consumer protection statutes and common law. Visa allegedly aided and abetted the conduct of the other defendants. Plaintiff seeks damages, restitution, and injunctive relief. The plaintiff voluntarily dismissed Amazon.com as a defendant without prejudice on October 29, 2010. Webloyalty.com and Visa each filed motions to dismiss the case on November 1, 2010. Webloyalty.com also has asked the Judicial Panel on Multi-district Litigation to consolidate with this case, for pretrial proceedings, a case pending in federal district court in California in which Webloyalty.com and Movietickets.com (but not Visa) are named as defendants. VISA INC: To Be Removed as Defendant in "Matalas" Suit in Calif. ---------------------------------------------------------------- Parties in a class action filed by Diane Matalas stipulated to dismiss Visa Inc. from the case without prejudice, according to the company's November 19, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. On May 27, 2010, Diane Matalas filed a class action lawsuit against Wells Fargo Bank and Visa Inc. in California Superior Court asserting claims under California's gift card act and other consumer laws. Among other things, Matalas alleges that certain authorization practices for gift cards are unlawful. On July 14, 2010, Wells Fargo Bank removed the case to U.S. District Court for the Central District of California. Both Visa and Metabank moved to dismiss the complaint. On September 27, 2010, all of the parties stipulated that Visa be dismissed from the case without prejudice. The plaintiff has moved to amend her complaint, dropping Visa as a defendant. WMG ACQUISITION: Awaits Ruling on Certiorari Petition in NY Suit ---------------------------------------------------------------- WMG Acquisition Corp. is awaiting the Supreme Court's ruling on a petition for certiorari filed with co-defendants to a consolidated class action lawsuit concerning the pricing of digital music downloads, according to the company's November 17, 2010, Form 10-K filing with the Securities and Exchange Commission for the quarter ended September 30, 2010. On December 20, 2005, and February 3, 2006, the Attorney General of the State of New York served the company with requests for information in connection with an industry-wide investigation as to whether the practices of industry participants concerning the pricing of digital music downloads violate Section 1 of the Sherman Act, New York State General Business Law Section 340 et seq., New York Executive Law Section 63(12), and related statutes. On February 28, 2006, the Antitrust Division of the U.S. Department of Justice served the company with a request for information in the form of a Civil Investigative Demand as to whether its activities relating to the pricing of digitally downloaded music violate Section 1 of the Sherman Act. Both investigations have now been closed. Subsequent to the announcements of the governmental investigations, more than thirty putative class action lawsuits concerning the pricing of digital music downloads were filed and were later consolidated for pre- trial proceedings in the Southern District of New York. The consolidated amended complaint, filed on April 13, 2007, alleges conspiracy among record companies to delay the release of their content for digital distribution, inflate their pricing of CDs and fix prices for digital downloads. The complaint seeks unspecified compensatory, statutory and treble damages. All defendants, including the company, filed a motion to dismiss the consolidated amended complaint on July 30, 2007. On October 9, 2008, the District Court issued an order dismissing the case as to all defendants, including the company. On November 20, 2008, plaintiffs filed a Notice of Appeal from the order of the District Court to the Circuit Court for the Second Circuit. Oral argument took place before the Second Circuit Court of Appeals on September 21, 2009. On January 12, 2010, the Second Circuit vacated the judgment of the District Court and remanded the case for further proceedings. On January 27, 2010, all defendants, including the company, filed a petition for rehearing en banc with the Second Circuit. On March 26, 2010, the Second Circuit denied the petition for rehearing en banc. On August 20, 2010, all defendants including the company, filed a petition for Certiorari before the Supreme Court. Opposition to the petition was due November 22, 2010. The company intends to defend against these lawsuits vigorously, but is unable to predict the outcome of these suits. Any litigation the company may become involved in as a result of the inquiries of the Attorney General of the State of New York and the Department of Justice, regardless of the merits of the claim, could be costly and divert the time and resources of management. * Experts Discuss How Judicial Panels of MDLs Select Venue ---------------------------------------------------------- Alejandro de los Rios, writing for The Louisiana Record, reports speaking at an annual class action/mass tort symposium held in New Orleans on Friday, a panel featuring a sitting federal judge and Duke Law School professor shed light on how judicial panels on Multi-District Litigation go about deciding venues. U.S. District Judge Eldon Fallon of the Eastern District of Louisiana, Professor Francis McGovern of Duke University and attorney Elizabeth Cabraser of San Francisco spoke at "Multi- District Litigation: A Practitioner's Global Positioning Guide." Judge Fallon, who presided over Chinese drywall and Vioxx MDLs, said that once a venue is named, it is imperative that lawyers on both sides learn to cooperate, especially ones seeking appointment to steering committees. "That's very, very difficult for the plaintiff bar," Judge Fallon, a former plaintiff lawyer, said. Judge Fallon said that problems between plaintiffs and defendants should be worked on proactively, with possible solutions taken to judges before asking for a ruling. "It can be done efficiently with the help of the lawyers," he said. "It's about lawyers . . . judges keep them focused but lawyers do the work." Mr. McGovern, who is the Special Master overseeing the BP oil spill MDL, said the thought process in the MDL Panel's decision making involves trying to apply "a neutral standard" in a "non- neutral environment." He said the seven judges that make up the panel are wary of deals made by groups of plaintiff or defense attorneys or both that wish to land MDLs in particular districts. In the end, though, McGovern warned that all the coordination can fall apart when cases are settled and it comes time to split up the money between plaintiffs and their counsel. "The greatest weakness about MDLs is that there are no rules about compensation," he said. Ms. Cabraser, a plaintiff lawyer in the Vioxx MDL, said her experiences in making arguments before the MDL Panel are vastly different from any other courtroom, starting with how fast she's talking. "You only get two minutes to make an argument, so those who speak more quickly are at an advantage," she said. She also said that the content of the arguments is different in that venue selection for MDLs depend largely on the selection of judges who are experienced, patient and, most importantly, have the time to take the cases. * Franchise Class Actions Likely to Rise in Canada -------------------------------------------------- Chad Finkelstein, writing for Financial Post, reports Quizno's, Tim Hortons, Midas, General Motors and Shoppers Drug Mart are all large corporations that have discovered in the past several years that they have one big thing in common -- they are or have been the subject of large franchisee class-action lawsuits. Essentially, a class-action is a lawsuit initiated by a large group of people with similar issues against the individual or corporation they feel is responsible for their collective problems. In the realm of franchise law, class-action suits have become the legal action du jour because franchisees can group together to try to prevent a franchisor from acting in a particular way that they perceive to be damaging to their businesses. Franchisee class actions have taken a number of forms. Typically, the allegation of a franchisor's breach of its statutory duty of good faith is raised. As discussed in a previous blog entry, the duty of good faith basically means the parties have to act fairly and reasonably in their dealings with one another. Amid other particular allegations of offences committed by a franchisor, the more general and subjective duty of good faith is likely to be raised. In recent history, franchisee class actions have been seen to address some of the following allegations against franchisors: undue elimination of a preferential purchasing system; wrongly changing the terms of a franchise agreement; overpricing for food and supplies; or the franchisor's retention of too much profit from its sale of supplies. Legal actions of this size and nature are more familiar to parties litigating in the United States, but for an arguably less litigious population like it is in Canada, this particular development is still somewhat novel and its impact on the future of franchise relationships still remains to be seen. Given the results witnessed so far, and the media attention that franchisee class action receives, it is likely this legal trend will continue to rise. * FTC Meets with Browser Firms to Tackle History Sniffing Issue --------------------------------------------------------------- Kashmir Hill, writing for Forbes.com's The Not-So Private Parts, reports that after researchers discovered that a number of popular sites were exploiting a Javascript security flaw to see what other Web sites their visitors had been to, class action lawyers and the government took notice. In California, two men filed a lawsuit against YouPorn, the most popular site doing the "history sniffing." Meanwhile, in Washington, D.C. the nation's primary consumer privacy regulator says it's snuffing out the sniffing. At an IAPP privacy seminar on Dec. 9, David Vladeck, director of the Federal Trade Commission's Bureau of Consumer Protection, said that the FTC has been meeting with browser companies to make sure this security bug is squashed. Chrome and Safari had previously fixed the history sniffing flaw. Mozilla has a fix coming in the next version of Firefox. Microsoft's Internet Explorer is the last major browser in which history sniffing can still occur if you don't change your browser's default settings. Microsoft has not yet made a public announcement about fixing the flaw. But Mr. Vladeck and the FTC say the company has promised to make protection against "history sniffing" a default feature -- thus preventing sites from using Javascript to check on the links a Web surfer has previously clicked on. "We're on the look-out for other techniques companies are using to surreptitiously collect information about users," said Mr. Vladeck at the seminar (during remarks in which he defended the FTC's decision not to investigate Google's Wi-Fi data sniffing). Asbestos Litigation ASBESTOS UPDATE: Injury Actions Still Ongoing v. Scotts Miracle --------------------------------------------------------------- The Scotts Miracle-Gro Company still faces lawsuits alleging injuries that resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. The complaints in these cases are not specific about the plaintiffs' contacts with the Company or its products, according to the Company's annual report filed on Nov. 24, 2010 with the Securities and Exchange Commission. The Company in each case is one of numerous defendants and none of the claims seek damages from the Company alone. Headquartered in Marysville, Ohio, The Scotts Miracle-Gro Company manufactures and markets branded consumer lawn and garden products, with products for professional horticulture as well. ASBESTOS UPDATE: Target Corp. Subject to Asbestos NESHAP Inquiry ---------------------------------------------------------------- Target Corporation continues to be the subject of an ongoing U.S. Environmental Protection Agency investigation for alleged violations of the Clean Air Act. In March 2009, the EPA issued a Finding of Violation related to alleged violations of the CAA, specifically the National Emission Standards for Hazardous Air Pollutants promulgated by the EPA for asbestos. The FOV pertains to the remodeling of 36 Target stores that occurred between Jan. 1, 2003 and Oct. 28, 2007. The EPA FOV process is ongoing and no specific relief has been sought to date by the EPA. Headquartered in Minneapolis, Target Corporation is a discount chain that operates about 1,745 Target and SuperTarget stores in 49 states, as well as an online business called Target.com. ASBESTOS UPDATE: J.C. Penney Has $54MM A&E Liability at Oct. 30 --------------------------------------------------------------- J. C. Penney Company, Inc., as of Oct. 30, 2010, estimated its total potential asbestos and environmental liabilities to range from US$51 million to US$62 million and recorded its best estimate of US$54 million in other liabilities in the Consolidated Balance Sheet as of that date. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving the Company's former Eckerd drugstore locations and asbestos removal in connection with approved plans to renovate or dispose of the Company's facilities. The Company continues to assess required remediation and the adequacy of environmental reserves as new information becomes available and known conditions are further delineated. Headquartered in Plano, Tex., J. C. Penney Company, Inc. is a holding company for department store operator J. C. Penney Corporation, one of the largest department store, catalog, and e-commerce retailers in the United States with more than 1,100 JCPenney department stores in 49 states and Puerto Rico. ASBESTOS UPDATE: James Hardie Has $1.548BB Sept. 30 L-T Liability ----------------------------------------------------------------- James Hardie Industries SE's long-term asbestos liability was US$1.548 billion as of Sept. 30, 2010, compared with US$1.512 billion as of Dec. 31, 2009, according to a Company report, on Form 6-K, filed with the Securities and Exchange Commission on Nov. 16, 2010. Under long-term liabilities, the Company recorded asbestos workers' compensation of US$104.3 million as of Sept. 30, 2010, compared with US$98.8 million as of Dec. 31, 2009. The Company's current asbestos liability was US$112.6 million as of Sept. 30, 2010, compared with US$106.7 million as of Dec. 31, 2009. The Company recorded US$100,000 for workers' compensation as of both Sept. 30, 2010 and Dec. 31, 2009. The Company's long-term asbestos insurance receivable was US$176.7 million as of Sept. 30, 2010, compared with US$185.1 million as of Dec. 31, 2009. The Company recorded US$104.3 million for workers' compensation as of Sept. 30, 2010, compared with US$98.8 million as of Dec. 31, 2009. Long-term deferred income taxes were US$433.7 million as of Sept. 30, 2010, compared with US$420 million as of Dec. 31, 2009. Current asbestos restricted cash and cash equivalents were US$98.1 million as of Sept. 30, 2010, compared with US$44.5 million as of Dec. 31, 2009. Current restricted asbestos short-term investments were US$5.4 million as of Sept. 30, 2010, compared with US$13.3 million as of Dec. 31, 2009. Current asbestos insurance receivable was US$17.6 million as of Sept. 30, 2010, compared with US$16.7 million as of Dec. 31, 2009. The Company recorded US$100,000 for current workers' compensation was US$100,000 as of both Sept. 30, 2010 and Dec. 31, 2009. Current deferred income taxes were US$15.6 million as of Sept. 30, 2010, compared with US$16.4 million as of Dec. 31, 2009. Headquartered in Dublin, Ireland, James Hardie Industries SE uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS UPDATE: James Hardie Faces 590 Open Claims at Sept. 30 --------------------------------------------------------------- James Hardie Industries SE recorded 590 open asbestos claims during the six months ended Sept. 30, 2010, compared with 529 claims during the six months ended Sept. 30, 2010, according to a Company report on Form 6-K filed with the Securities and Exchange on Nov. 16, 2010. During the six months ended Sept. 30, 2010, the Company recorded 256 new claims and 195 closed claims. The average settlement amount per settled claim was US$173,270 and the average settlement amount per case closed was US$153,721. During the six months ended Sept. 30, 2010, the Company recorded 535 new claims and 540 closed claims. The average settlement amount per settled claim was US$162,250 and the average settlement amount per case closed was US$146,325. Headquartered in Dublin, Ireland, James Hardie Industries SE uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS UPDATE: Hardie Records $107.8MM Adjustments at Sept. 30 ---------------------------------------------------------------- James Hardie Industries SE's asbestos adjustments resulting from the effect of foreign exchange movements were unfavorable adjustments of US$107.8 million for the quarter ended Sept. 30, 2010 and US$44.7 million for the half year ended Sept. 30, 2010. This compared with unfavorable adjustments of US$62.7 million for the quarter ended Sept. 30, 2009 and US$182.5 million for the half year ended Sept. 30, 2009. The Company's asbestos adjustments are derived from an estimate of future Australian asbestos-related liabilities in accordance with the Amended and Restated Final Funding Agreement that was signed with the New South Wales Government in November 2006 and approved by the Company's security holders in February 2007. Headquartered in Dublin, Ireland, James Hardie Industries SE uses cellulose-reinforced fiber cement to create products for residential and commercial construction, including siding (Hardiplank), external cladding, walls, fencing, and roofing. The Company also makes fiber-reinforced concrete (FRC) pipe through its Hardie Pipe business. ASBESTOS UPDATE: Washburn Petition Filed Dec. 9 in Jefferson Co. ---------------------------------------------------------------- Rebecca Washburn, on Dec. 9, 2010, filed a petition to perpetuate the testimony of Ronald Washburn in Jefferson County District Court, Tex., The Southeast Texas Record reports. Mr. Washburn is a former Chevron USA employee who suffers from lung cancer. Chevron is the anticipated defendant in the pending suit. The petition was filed through Keith Hyde, Esq., of Provost Umphrey. Court papers show that Mr. Washburn's lung cancer "is expected to progress" and will "ultimately prove fatal." The petition alleges he developed lung cancer because he was exposed to asbestos products during his employment with Chevron. Judge Gary Sanderson, 58th District Court, has been assigned to Case No. A188-943. ASBESTOS UPDATE: Chillicothe School to Get $200T Cleanup Grant -------------------------------------------------------------- Lisa Patt-McDaniel, Director of the Ohio Department of Development, approved US$200,000 in Brownfield Revolving Loan Funds for a Chillicothe School Project, according to an Ohio Department of Development press release dated Dec. 9, 2010. A school building in Chillicothe, Ohio that has been vacant for nearly five years will soon make way for future economic development in the community. The US$200,000 grant from the Brownfield Revolving Loan Fund will be used for remediation activities at the Smith School Building. The Chillicothe City School District (Ross County) will use the funds to conduct asbestos removal at the school, which is located at 345 Arch Street. The estimated cost of the proposed project is more than US$300,000. The Smith School Building was built in 1931 and served the community until 2007 when the school district was consolidated and the building was no longer needed. The redevelopment of the site will allow for future commercial use and community events. Ms. Patt-McDaniel said, "By removing the hazardous materials from this school, the project will encourage development and strengthen the health of the surrounding neighborhood. We are looking forward to seeing the site be put back into productive use for the community." The Brownfield Revolving Loan Fund, administered by the Ohio Department of Development's Urban Development Division, offers below-market-rate loans and sub-grants to assist with the remediation of a brownfield property to return it to a productive economic use. Properties receiving assistance from the Brownfield Revolving Loan Fund must have been contaminated by hazardous substances. Since 2007, roughly 63 acres of brownfield sites have been remediated using almost US$6 million in grants and loans from the Ohio Department of Development. At least 370 full-time jobs have been supported through the Brownfield Revolving Loan Fund. ASBESTOS UPDATE: Barker Awarded $250T Settlement in Genesee Case ---------------------------------------------------------------- Ray Barker won a US$250,000 settlement in an asbestos case involving the Genesee County Community Action Resource Department, ConnectMidMichigan.com reports. Mr. Barker claimed the Genesee County Community Action Resource Department was putting people in danger. He was then fired from his job. Mr. Barker stated that a free program installing insulation for needy home owners could disturb old asbestos contaminated insulation contaminated. He says he learned about a mine in Libby, Mont., that, until 1990, produced 80% of the world's supply of vermiculite -- a material used in insulation still. Mr. Barker says while working for the Genesee County Community Action Resource Department, he was asked to insulate several homes with the vermiculite. He brought the dangers to his employer, and was later fired from his job. Shortly after Mr. Barker was let go, the department changed the procedure and no longer used the potentially harmful insulation. ASBESTOS UPDATE: Discovery of Hazard Forces Closure of IKEA Site ---------------------------------------------------------------- The discovery of asbestos halted the construction of the IKEA store in Tempe, New South Wales Australia, with the possibility of hundreds of people exposed to the substance, The Sydney Morning Herald reports. Workers say that proper safety procedures were not followed, and said it was possible loose asbestos had been carried off the site, which used to be a rubbish tip. Some workers have walked off the site, on Union Street. Other staff members in protective suits were spraying water over the affected area on Dec. 8, 2010 in an attempt to stop dust contaminated with asbestos fibers from spreading. IKEA confirmed asbestos has been found in the soil but said there was no evidence it had become airborne. The asbestos was found when pits were dug on the site as part of the 39,000-square-metre main building. The contaminated areas have been surrounded by wire fences strung with shade cloth. Residents also told the Herald that run-off from the site into a nearby canal had a bad smell and a milky consistency. The NSW Department of Environment and Climate Change checked the claims but a spokeswoman said the department had found no supporting evidence. ASBESTOS UPDATE: Hazard to be Cleared From Aspen in January 2011 ---------------------------------------------------------------- Asbestos at the City Market in Aspen, Colo., will be abated this January 2011, the Aspen Daily News reports. Since renovation began on City Market, asbestos has been found in three places, said Colorado Air Pollution Control spokesman Christopher Dan. He added, "What we know right now is that apparently there is some additional asbestos abatement work planned for early January." He has spoken with the grocery store's abatement contractor, Denver-based American Abatement. The permit application for asbestos abatement has not officially been received by local and state officials. However, two permits were filed over the past nine months with the state for asbestos abatement for the City Market site. The first was filed in April for contaminated floor tiles that covered about 10,500 square feet of the grocery store. The second was filed in November 2010 for asbestos found in the mastic and popcorn ceiling material of the north stairwell leading to the basement. It was contained during the two-week period that City Market was closed for renovation. In both instances, a licensed abatement contractor was hired to contain and abate the asbestos. During the two-week period in November 2010 when the stairwell abatement work occurred, a third asbestos location was discovered. According to Mr. Dan, the additional asbestos was found after an electrician pointed out to the project's general contractor what he suspected was asbestos overspray in a section of the concrete decking above the ceiling. The general contractor at the time was installing supports in the area. As a safety precaution, when the suspected asbestos was identified all contractors and store associates were removed from the building until the site was cleared, said Kelli McGannon, spokesperson for the grocery store, which is owned by the Kroger Co. Mr. Dan said the abatement company estimates there is asbestos in about 8,000 square feet of ceiling that is above a dropped ceiling. ASBESTOS UPDATE: Former BT Employee Awarded GBP115,000 in Payout ---------------------------------------------------------------- BT has agreed to make a payment of GBP115,000 in compensation to 82-year-old Bernard Mottramwho is dying from mesothelioma after exposure to asbestos, BBC News Wiltshire reports. BT agreed to make the payment to Mr. Mottram, but does not admit there was any exposure to asbestos during his time in Corsham, Wiltshire, England. Mr. Mottram installed telephone lines at the nuclear bunker in Corsham during the 1990s. The bunker was built in case of a nuclear attack. The underground bunker below the town of Corsham and the surrounding villages was formerly a secret base, equipped during the Cold War. There were formerly organized trips down into the bunker for Ministry of Defence staff. They were abruptly stopped a few years ago when the company Interserve took it over. ASBESTOS UPDATE: Pottsville Man Awarded AU$326,640 Compensation --------------------------------------------------------------- After an appeal from James Hardie was rejected unanimously by the New South Wales Court of Appeal, John Booth, of Pottsville, New South Wales, Australia, received AU$326,640, confirming for the first time exposure to white asbestos can cause incurable cancer, the Tweed Daily News reports. Mr. Booth's lawyer Gerard Mc Mahon, of Turner Freeman Lawyers, said he expected more successful claims due to 73-year-old Mr. Booth's win. Mr. Booth, a widower, says that while his health was suffering he was glad that he had been able to set a precedent for others in his position. Mr. McMahon said that that James Hardie needed to admit fault at not warning workers of the risks associated with white asbestos. ASBESTOS UPDATE: Hazard Found in Residential Flats in Millbrook --------------------------------------------------------------- Asbestos found in flats in Millbrook, Southampton, England, destroyed in a blaze has delayed an investigation to check whether the fire was started deliberately, the Southern Daily Echo reports. Crime scene examiners and fire experts were due to find out if an arsonist was responsible for the fire that caused residents to flee in the middle of the night and destroyed the home's roof. However, the discovery of asbestos in the structure has made it too dangerous to access the property to determine the cause of the fire. Detectives issued a fresh appeal for anyone with information to come forward. ASBESTOS UPDATE: Hazard Illegally Dumped in Toledo Neighborhood --------------------------------------------------------------- Sixty bags of regulated asbestos waste were dumped in two Toledo, Ohio, neighborhoods in late October 2010 or early November 2010, according to an Ohio Environmental Protection Agency press release dated Dec. 14, 2010. Ohio EPA is investigating the case and is asking the public for tips that can lead to the arrest of the person or people responsible. Thirty seven bags were dumped at a vacant house on LaGrange Street in north Toledo and 23 bags were left in an alley near a garage on St. Louis Street in east Toledo. Combined, there was about 100 cubic feet of asbestos. Ohio EPA's investigation indicates the same person or people are responsible for both incidents. Evidence suggests the dumping occurred between Oct. 30, 2010 and Nov. 5, 2010. The dumping was discovered and reported to Toledo authorities and then to Ohio EPA on Nov. 3, 2010 and Nov. 5, 2010. Ohio EPA believes someone may have seen workers renovating a building in the area and wants this information. Anyone who worked on a project that generated bags of asbestos waste in this time period is encouraged to contact Ohio EPA. ASBESTOS UPDATE: Colfax Posts $351.4M Long-Term Asset at Oct. 1 --------------------------------------------------------------- Colfax Corporation's long-term asbestos insurance asset was US$351,403,000 as of Oct. 1, 2010, compared with US$357,947,000 as of Dec. 31, 2009, according to the Company's quarterly report filed on Dec. 13, 2010 with the Securities and Exchange Commission. The current asbestos insurance asset was US$33,617,000 as of Oct. 1, 2010, compared with US$31,502,000 as of Dec. 31, 2009. The Company's long-term asbestos insurance receivable was US$6,195,000 as of Oct. 1, 2010, compared with US$16,876,000 as of Dec. 31, 2009. The Company's current asbestos insurance receivable was US$35,227,000 as of Oct. 1, 2010, compared with US$28,991,000 as of Dec. 31, 2009. The Company's long-term asbestos liability was US$37,123,000 as of Oct. 1, 2010, compared with US$34,866,000 as of Dec. 31, 2009. The Company's long-term asbestos liability was US$401,244,000 as of Oct. 1, 2010, compared with US$408,903,000 as of Dec. 31, 2009. Headquartered in Richmond, Va., Colfax Corporation produces 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, defense and general industrial markets. ASBESTOS UPDATE: 24,799 Claims Pending v. Colfax Corp. at Oct. 1 ---------------------------------------------------------------- Colfax Corporation faced 24,799 unresolved asbestos claims during the nine months ended Oct. 1, 2010, compared with 26,391 unresolved claims during the nine months ended Oct. 2, 2009. During the nine months ended Oct. 1, 2010, the Company recorded 2,952 claims filed and 3,448 claims resolved. During the nine months ended Oct. 2, 2009, the Company recorded 2,512 claims filed and 11,478 claims resolved. 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. Such components were acquired from third-party suppliers, and were not manufactured by any of the subsidiaries nor were the subsidiaries producers or direct suppliers of asbestos. The manufactured products that are alleged to have contained asbestos generally were provided to meet the specifications of the subsidiaries' customers, including the U.S. Navy. Of the 24,799 pending claims, about 3,600 of such claims have been brought in various federal and state courts in Mississippi; about 3,200 of such claims have been brought in the Supreme Court of New York County, N.Y.; about 200 of such claims have been brought in the Superior Court, Middlesex County, N.J.; and about 1,000 claims have been filed in state courts in Michigan and the U.S. District Court, Eastern and Western Districts of Michigan. In Alabama, California, Connecticut, Delaware, Florida, Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Maryland, Maine, Minnesota, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin and West Virginia and in the U.S. Virgin Islands there are pending claims in both state and federal courts. In Arizona, Arkansas, Hawaii, Illinois, Missouri, Nebraska, Nevada, New Mexico and Oregon there are pending claims in the state courts. For one of the subsidiaries, on Oct. 14, 2009, the Delaware Court of Chancery ruled that asbestos-related costs should be allocated among excess insurers using an "all sums" allocation (which allows an insured to collect all sums paid in connection with a claim from any insurer whose policy is triggered, up to the policy's applicable limits) 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 assertion and belief that defense costs are outside policy limits, the Company expects to be responsible for about 10 percent of all future asbestos-related costs. For this subsidiary, during the third quarter of 2010, an insolvent carrier that had written about US$1.4 million in limits for which the subsidiary had assumed no recovery made a cash settlement offer of about US$700,000. As such, the subsidiary recorded a gain for this amount and a receivable from the insurer. The subsidiary was notified during the third quarter of 2010 by the primary and umbrella carrier who had been fully defending and indemnifying the subsidiary for twenty years that the limits of liability of its primary and umbrella layer policies had been exhausted. Since then, the subsidiary has sought coverage from certain excess layer insurers whose terms and conditions follow form to the umbrella carrier. Certain first-layer excess insurers have defended and/or indemnified the subsidiary and/or agreed to defend and/or indemnify the subsidiary, subject to their reservations of rights and their applicable policy limits. In 2003, the other subsidiary filed a lawsuit 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. The subsidiary expects to be responsible for about 14 percent of all future asbestos-related costs. For this subsidiary, on Oct. 14, 2010, the Superior Court of New Jersey ruled that certain primary policies were exhausted and ordered the court appointed Special Allocation Master to complete a loss allocation model of historical payments of asbestos-related costs and submit the model to the court no later than Nov. 17, 2010. The ruling resulted in a reduction to the current asbestos receivable of about US$2.3 million and an increase to the long- term asbestos asset of about US$400,000 million and a net charge to the asbestos liability and defense costs of US$1.9 million. Headquartered in Richmond, Va., Colfax Corporation produces 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, defense and general industrial markets. ASBESTOS UPDATE: Colfax Reserves $443.8MM for Claims at Oct. 1 -------------------------------------------------------------- Colfax Corporation has established reserves of US$438.4 million as of Oct. 1, 2010 and US$443.8 million as of Dec. 31, 2009 for the probable and reasonably estimable asbestos-related liability cost it said it believes its subsidiaries will pay through the next 15 years. The Company has also established recoverables of US$385 million as of Oct. 1, 2010 and US$389.4 million as of Dec. 31, 2009, for the insurance recoveries that are deemed probable during the same time period. Net of these recoverables, the expected cash outlay on a non- discounted basis for asbestos-related bodily injury claims over the next 15 years was US$53.3 million as of Oct. 1, 2010 and US$54.3 million as of Dec. 31, 2009. In addition, the Company has recorded a receivable for liability and defense costs previously paid in the amount of US$41.4 million as of Oct. 1, 2010 and US$45.9 million as of Dec. 31, 2009 for which insurance recovery is deemed probable. Headquartered in Richmond, Va., Colfax Corporation produces 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, defense and general industrial markets. ASBESTOS UPDATE: Rentech Records $268MM Obligations at Sept. 30 --------------------------------------------------------------- Rentech Inc. recorded an asbestos retirement obligation liability of US$268 million at Sept. 30, 2010, compared with US$237 million at Sept. 30, 2009, according to the Company's annual report filed on Dec. 14, 2010 with the Securities and Exchange Commission. The accretion expense for the year ended Sept. 30, 2010 was US$31 million. The Company has a legal obligation to handle and dispose of asbestos at its East Dubuque Plant and Natchez Project in a special manner when undergoing major or minor renovations or when buildings at these locations are demolished, even though the timing and method of settlement are conditional on future events that may or may not be in its control. As a result, the Company has developed an estimate for a conditional obligation for this disposal. In addition, the Company, through its normal repair and maintenance program, may encounter situations in which it is required to remove asbestos in order to complete other work. The Company applied the expected present value technique to calculate the fair value of the asset retirement obligation for each property and, accordingly, the asset and related obligation for each property have been recorded. In accordance with the applicable guidance, the liability is increased over time and such increase is recorded as accretion expense. COMPANY PROFILE: Rentech Inc. 10877 Wilshire Boulevard Suite 600 Los Angeles 90024 Phone No.: (310) 571-9800 Description: The Company provides clean energy solutions. The Company also owns and operates a nitrogen fertilizer plant in East Dubuque, Ill., which manufacturers and sells natural gas-based nitrogen fertilizer products within the corn-belt region in the United States. ASBESTOS UPDATE: Applica Consumer Still Facing 3 Exposure Cases --------------------------------------------------------------- Spectrum Brands Holdings, Inc.'s subsidiary, Applica Consumer Products, Inc., is a defendant in three asbestos lawsuits in which the plaintiffs have alleged injury as the result of exposure to asbestos in hair dryers distributed by that subsidiary over 20 years ago. Although Applica never manufactured such products, asbestos was used in certain hair dryers distributed by it prior to 1979. At this time, the Company said it does not believe it has coverage under its insurance policies for the asbestos lawsuits. Headquartered in Madison, Wis., Spectrum Brands Holdings, Inc. is a global branded consumer products company and was created in connection with the combination of Spectrum Brands, Inc. and Russell Hobbs, Inc. to form a new combined company. The Merger was consummated on June 16, 2010. ASBESTOS UPDATE: Report Shows QBuild Failed at Cleanup in School ---------------------------------------------------------------- An independent report shows that QBuild, he Queensland government's builder failed to properly oversee asbestos removal at the Mackay West School in Queensland, Australia, exposing contractors to asbestos, The Sydney Morning Herald reports. The report reveals contractors working for QBuild did not wear protective clothing, and dust that may have contained deadly asbestos fibers was sucked up with an ordinary vacuum cleaner. The report is another blow for the Bligh government, which has faced a string of recent allegations that it is failing to properly deal with asbestos in Queensland schools. The report found QBuild Officers "failed to follow appropriate processes for the decontamination of asbestos at the Mackay West State School in December 2009, in accordance with legislation and procedures." On Dec. 16, 2010, Public Works Minister Robert Schwarten released an overview of the report, saying there was no risk to students or staff as the work occurred during school holidays. Mr. Schwarten said QBuild had already acted on the recommendations of the report, finalized in June 2010, to ensure any future asbestos removals were properly handled. Concerns about QBuild's management of the job were first raised in February by Jayson Maskell-Drew, whose company Asbestos Removal Technologies was doing asbestos removal work at the school at the time. He claimed that after he raised the concerns, a QBuild officer at the school threatened him, saying that if he ever wanted to work for QBuild again, he would keep his mouth shut. However, the report, by Ashdale Integrity Solutions, found that allegation was unsubstantiated. The government has been feeling the heat over its handling of asbestos in schools in recent weeks. In November 2010, three unions threatened industrial action over the way asbestos was handled at Atherton state High School, southwest of Cairns. ASBESTOS UPDATE: Asbestos to be Abated from Kemmerer High School ---------------------------------------------------------------- The Kemmerer High School in Kemmerer, Wyo., is set to be renovated, but must first undergo asbestos abatement in the older part of the building, the Kemmerer Gazette reports. The staff at the school had an informational meeting last Dec. 13, 2010 to discuss the asbestos abatement that needs to occur before demolition can begin. Eldon Ramsey, president of R&R Environmental, says, "Asbestos is in almost everything we use. We should not be afraid of it." His company will make sure the cleanup and removal of the asbestos is done properly and safely. The Dec. 13, 2010 informational meeting was to let the staff and public know what will be happening to the school in January 2011. Phase one of the construction process will start with the removal of the asbestos and demolition of the north wing. The north wing has about 14 classrooms, the staff lounge and some storage areas. The demolition will close off the north parking lot by the pool, and also the outside door leading to the auditorium. There will be one access door to the auditorium for use throughout the rest of the year, but there will be three sealed walls built in the halls separating the north end from the rest of the school. ASBESTOS UPDATE: CSR to Use Sucrogen Proceeds to Pay Liabilities ---------------------------------------------------------------- CSR Limited, a Chatswood, New South Wales, Australia-based company, will use some of the proceeds from the sale of its Sucrogen business to meet its asbestos compensation liabilities, Trading Markets reports. The rest of the AU$1.75 billion sale price will be returned to shareholders in the form of a capital return and special dividend. The sugar business was sold to Singaporean company Wilmar International. The sale will be finalized on Dec. 22, 2010. ASBESTOS UPDATE: Calif. Court Favors McAllister in Lockheed Case ---------------------------------------------------------------- The Ninth Circuit Court of California ruled that James McAllister's last employer, Lockheed Shipbuilding, is liable for his asbestos exposure, Insurance Journal reports. The case is styled Albina Engine & Machine v. Office of Workers' Compensation Programs. In the case, Mr. McAllister died of mesothelioma as a result of exposure to asbestos during his work as a carpenter for three shipyard employers -- Willamette Iron & Steel Co., Albina Engine & Machine, and Lockheed Shipbuilding. Mr. McAllister's wife, Karen McAllister, sought restitution for her husband's death. An administrative law judge decided that Lockheed was liable, based on the presumption applicable to occupational disease clams under section 20(a) of the Longshore and Harbor Workers' Compensation Act. The Benefits Review Board reversed the decision, and on second remand, ALJ Steven Berlin found Albina liable for the payment of benefits. The Board said, when a claim is made against multiple employers, the law stipulates that the ALJ must weigh the evidence for all potentially responsible employers to determine which is liable. Willamette Iron & Steel Co. admitted that Mr. McAllister was exposed to asbestos while he was employed with the Company, but noted the asbestos exposure at Lockheed was weaker. Thus, the first and second ALJs determined that Lockheed had "met its burden of showing the absence of exposure." And because Mr. McAllister had worked for Albina after he had worked for WISCO, the first two ALJs determined that Albina was liable. However, Albina argued that the ALJs had misapplied the "last employer rule," and said evidence against each employer should have been analyzed separately and sequentially, with the most recent employer analyzed first, and with liability assigned to the first-analyzed employer to be found responsible. The Court found Lockheed was the last responsible employer and is liable for the payment of benefits because it was Mr. McAllister's last employer and court not rebut the evidence that he had been exposed to asbestos while working for the Company. ASBESTOS UPDATE: Probe on Hazard at South Cambridgeshire Ongoing ---------------------------------------------------------------- Staff of Cambridgeshire County Council initiated an investigation after a load of asbestos was dumped on a South Cambridgeshire, England, bridleway, Cambridge First reports. Environmental officers cleaned up after receiving a tip-off from police who spotted the mess, blocking Low Fen Drove Way, Fen Ditton. They now seek help to find the culprits who dumped it. Councilor Sue Ellington of South Cambridgeshire District Council said, "This is a really disgraceful incident which spoils our countryside and costs the council to remove. "If you have any information about who may have dumped this waste -- which is on a bridleway running from High Ditch Road, Fen Ditton and forms the flyover at the A14 -- please let us know so we can take action." Anyone convicted for fly tipping at the Crown Court could receive an unlimited fine and/or a five year prison sentence. ASBESTOS UPDATE: Madison, St. Clair on ATRA Hellhole Watch List --------------------------------------------------------------- The asbestos dockets of Madison County, Ill., and St. Clair County, Ill., have earned places on the American Tort Reform Association's "Judicial Hellhole" Watch List, The Madison/St. Clair Record reports. The annual report released on Dec. 14, 2010 warns that Madison County Court's increasing number of asbestos cases and "questionable rulings" could sink it back into Hellhole status after recent reforms involving abuses of the system, such as forum shopping. Madison County had for several years occupied the Number 1 spot on the ATRA's Hellhole list because of its nationwide class action suits, a high number of out of state asbestos claims, high verdicts and what was described as "prejudicial" court rulings. Madison County's asbestos docket reached an all-time high of 953 cases in 2003. After now-retired Circuit Judge Daniel Stack took over the docket in 2004 and declared he would dismiss asbestos cases that did not belong in Madison County, the number of new cases declined. However, that trend was reversed in 2007. In 2010, the number of new asbestos claims is expected to exceed 800. An overwhelming number of Madison County's asbestos claims are filed by out of state plaintiffs through local counsel. According to a study by the Illinois Civil Justice League (ICJL), about 11 percent of claims are filed by people who live or work in the county or have some other connection to Madison County. St. Clair County's new distinction as hosting an asbestos docket earned it a spot on the ATRA's Watch List. The report states, "St. Clair County also continues to raise anxiety among civil defendants. Like its Neighbor (Madison County), St. Clair County is viewed by personal injury lawyers around the country as a choice jurisdiction in which to file their lawsuits." In 2009, there were four asbestos cases filed in St. Clair County. As of Dec. 1, 2010, there were 53 new asbestos suits filed in St. Clair. ASBESTOS UPDATE: ATRA Puts W.Va. Third on Judicial Hellhole List ---------------------------------------------------------------- The American Tort Reform Association put West Virginia at No. 3 on its annual list of judicial hellholes, which was released on Dec. 14, 2010, The West Virginia Record reports. West Virginia follows Philadelphia and California -- particularly Los Angeles and Humboldt counties -- on the list. West Virginia was second on the list in 2009, and it topped the 2008 list. The three other locations on the Hellhole report following West Virginia are South Florida; Cook County, Ill.; and Clark County, Nev. ATRA also found a Point of Light in 2010 in West Virginia. It commends Ohio Circuit Judge Arthur Recht, who "after reflecting on recent instances of documented fraud in asbestos litigation, put in place various safeguards for cases filed in his court." Judge Recht, a former state Supreme Court justice, dismissed most of 1,400 asbestos claims filed by a Pittsburgh law firm after the firm opted not to attempt to meet a court order requiring them to submit additional evidence of their clients' alleged exposure to asbestos and medical history. The defendant, CSX Transportation, has filed a fraud claim in federal court alleging that the law firm worked with Bridgeport radiologist Ray Harron, whose diagnoses have come under increasing scrutiny, to fabricate the claims. ATRA writes in its report, "Recht reflected on the 'bizarre' events he has seen in the litigation, from the forged signature of a doctor who did not exist to 'a doctor who has an imagination beyond description in reading certain X-rays. Recht has required individuals who file asbestos claims to see a pulmonologist, rather than radiologists with a history of supplying questionable evidence in such cases." ASBESTOS UPDATE: Aussie Govt. Unveils AU$1.5MM Asbestos Funding --------------------------------------------------------------- The Australian Government's funding of AU$1.5 million, the Asbestos Innovation Fund, will support programs to manage asbestos and improve treatment for asbestosis victims, ABC News reports. Workplace Relations Minister Chris Evans says more than 600 Australians died from asbestosis in 2009 and the problem is still on the rise. President of the Asbestos Victims Association in South Australia, Terry Miller, will apply for some of the money. He said, "Until there's a breakthrough to actually treat the disease, there's never enough money to do what we need to do." Research funding will be coordinated by the government agency Comcare. The Asbestos Innovation Fund will back research programs over three years. ASBESTOS UPDATE: Cleanup, Upgrades Add C$6MM to Court Renovation ---------------------------------------------------------------- The London Free Press says that the cost of asbestos removal and upgrades to a renovation of a courthouse in London, Ontario, have added about C$6 million to the project's cost, the Mesothelioma Resource Center reports. The London Free Press reported that the C$17 million originally estimated for the job when it was planned in 2004 has risen to C$23 million. The increase is partly blamed on tighter regulations regarding asbestos removal that went into effect in 2005. Ontario Attorney General Chris Bentley said, "The completion of the work that costs C$23 million will be done by March 31. Now we'e in the process of asking 'Is there anything else that needs to be done?'" Previous news reports have indicated the cost could go as high as C$44 million, which Mr. Bentley denied. He said the government is meeting with those who use London West courthouse, including security staff, lawyers and police authorities, to determine what additional upgrades may be needed at the facility, which was built in 1974. ASBESTOS UPDATE: Transfer of Trailers Breached Iowa Regulations --------------------------------------------------------------- The Des Moines Register says that more than 40 condemned trailers with asbestos were moved from Huxley, Iowa, to a salvage yard in Humeston, Iowa, without required state inspections, the Mesothelioma Resource Center reports. The Iowa Department of Natural Resources said the Churchill Group, the firm that arranged for the transfer of the trailers, was issued a Notice of Violation recently that stated the trailers had not been inspected by a certified asbestos specialist as required by state law. The Company had an agreement with Huxley to move the trailers as part of its sale of the trailer park to the City. Some of the trailers have since been moved to a salvage yard in Humeston. However, the transfer was halted before all the trailers could be moved to Humeston when the state stepped in and cited the asbestos violation. The DNR is continuing to investigate the situation, the newspaper reported. ********* 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. Leah Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan 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. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *