Deals & Suits
Cisco Systems Inc. is back to making big acquisitions. The Internet networking company announced on March 15 that it had agreed to acquire NDS Group Holdings Limited from News Corporation and Permira Advisers LLP for $5 billion in cash and assumed debt. NDS develops software that allows for the secure delivery of video content. The deal would be Cisco's largest since it paid $3.4 billion for Tandberg ASA two years ago. Cisco has long been one of Silicon Valley's most active acquirors but has been relatively quiet since the Tandberg deal.
Permira acquired a 51 percent stake in NDS in 2009 in a deal that valued NDS at $3.7 billion and reduced News Corporation's share in the company from 74 percent to 49 percent. In December, NDS filed for an initial public offering, which helped push Cisco to acquire NDS. The parties hope to close the transaction in the second half of the year pending approvals from regulators.
For acquiror Cisco Systems Inc. (San Jose)
General counsel Mark Chandler, deputy general counsel Graham Allen and Mark Gorman, and senior counsel Alan Stern.
Fenwick & West:
Corporate: Douglas Cogen, Kris Withrow, and associates Adam Andrews, Thomas Kang, Brian Savage, Matthew Stewart, and Jay Wedge. Intellectual property: Stephen Gillespie, Lawrence Granatelli, senior counsel Michael Egger, and associates Morgan Fong, Christopher Joslyn, Diana Lock, Ranjit Narayanan, Claire O'Callaghan, Stefano Quintini, Michael Riskin, and Lance Stern. Executive compensation and benefits: Scott Spector and associates Gerald Audant, Elizabeth Gartland, and Adriana Sherwood. Antitrust: Mark Ostrau. Tax: Ronald Schrotenboer and associate Matthew Noerper. Litigation: Jennifer Lloyd Kelly and Laurence Pulgram. (All are in Mountain View, California, except for Cogen, Gillespie, Egger, Fong, O'Callaghan, Riskin, Stern, Audant, Gartland, Sherwood, Kelly, and Pulgram, who are in San Francisco; and Andrews and Kang, who are in Seattle.) Fenwick has been Cisco's primary corporate counsel since January 2003, and Cogen has been its primary M&A lawyer. The firm represented the company in 2009 on its $2.9 billion purchase of Starent Networks Corp. and its purchase of Tandberg [Deals & Suits, February 2010] and in 2006 on its $6.9 billion acquisition of Scientific-Atlanta Inc. [Deals & Suits, March 2006]. Cisco also used Eversheds in the United Kingdom, Meitar Liquornik Geva & Lesham Brandwein in Israel, and Appleby in Bermuda.
For target NDS Group Holdings Limited (Staines, Surrey, United Kingdom)
At NDS: general counsel Ismat Levin. At News Corporation: deputy general counsel Janet Nova. At Permira: Ian Sellars.
Skadden, Arps, Slate, Meagher & Flom:
M&A: Howard Ellin, Michael Hatchard, Lou Kling, and Allison Schneirov. Tax: Katherine Bristor, Steven Matays, and Tim Sanders. Executive compensation and benefits: Regina Olshan. Corporate finance: Stacy Kanter. Banking: Stephanie Teicher. Antitrust: Clifford Aronson. Intellectual property: Bruce Goldner. (All are in New York except for Hatchard and Sanders, who are in London.) Skadden advised regular clients News Corporation and Permira Advisers LLP when they bought NDS for $3.7 billion in 2008. NDS used Herzog Fox & Neeman in Israel and Conyers Dill & Pearman in Bermuda. NDS used Herzog Fox & Neeman in Israel and Conyers Dill & Pearman in Bermuda.
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TYCO FLOW CONTROL
Tyco International Ltd. announced in September that it would split into three publicly traded companies. On March 28 Pentair Inc. agreed to combine with one of those units, Tyco Flow Control, in a deal that values the target at $4.9 billion. Both Tyco Flow and Pentair produce industrial pumps and valves.
The two entities will combine in a so-called reverse Morris Trust structure. Tyco International will spin out the flow control unit to shareholders, and Tyco Flow will then merge with Pentair in a deal that will leave Tyco shareholders with 52.5 percent of the combined company and Pentair shareholders with 47.5 percent. Pentair CEO Randall Hogan will hold the same position at the combined company, which will retain Pentair's name and headquarters but be incorporated in Switzerland, as Tyco is. At the same time Tyco International shareholders will also receive stock in ADT North America, a home security company, and Tyco's fire and security products business.
Tyco hopes to complete the spin-offs and the Pentair deal in September, pending approvals from regulators and Tyco and Pentair shareholders.
For acquiror Pentair Inc. (Minneapolis)
General counsel Angela Lageson.
Cravath, Swaine & Moore:
M&A: Thomas Dunn and Faiza Saeed. Tax: Stephen Gordon. Executive compensation and benefits: Eric Hilfers. (All are in New York.) Pentair tapped Saeed for the transaction.
Foley & Lardner:
Corporate: Benjamin Garmer III, John Wilson, and associate Jason Hille. Antitrust: Howard Fogt and Alan Rutenberg. (The corporate lawyers are in Milwaukee; the antitrust lawyers are in Washington, D.C.) Foley has represented Pentair for many years. The firm also worked on Pentair's $775 million sale of its tools business to Stanley Black & Decker Inc. in 2004 and its $875 million purchase of Wisconsin Energy Corporation the same year. The firm also worked on Pentair's $775 million sale of its tools business to Stanley Black & Decker Inc. in 2004 and Pentair's $875 million purchase of Wisconsin Energy Corporation the same year.
For seller Tyco International Ltd. (Schaffhausen, Switzerland)
General counsel Judith Reinsdorf, international general counsel John Jenkins Jr., associate general counsel Andrea Goodrich, senior corporate counselM&A Joseph Braun, and senior securities counsel Kevin Coen.
Simpson Thacher & Bartlett:
Corporate: Alan Klein and associates Michael Ceulen, Ashwin Cheriyan, Austen Heim, Anthony King, Daniel Layfield, and Eric Risi. Executive compensation and employee benefits: Gregory Grogan and associate Jennifer Wolff. Environmental: senior counsel Adeeb Fadil and associate Noreen Lavan. Intellectual property: associate Marcela Robledo. Real estate: counsel Krista McManus. Antitrust: Aimee Goldstein, senior counsel Michael Naughton, and associate Ellen Frye. (All are in New York except for Wolff, who is in Palo Alto.) Klein advised Tyco on its plan to split into three companies as well as on its $2 billion purchase of Brink's Home Security Holdings Inc. and the $1 billion sale of Atkore International Group Inc. to Clayton, Dubilier & Rice Inc. in 2010.
McDermott Will & Emery:
Tax: Kristen Hazel, Barry Quirke, Timothy Shuman, Matthew White, and associate Patrick McCurry. (Hazel, Quirke, and McCurry are in Chicago. Shuman and White are in Washington, D.C.) McDermott is Tyco's regular tax counsel.
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Zayo Group LLC agreed to pay $2.2 billion for rival network fiber operator AboveNet Inc. on March 19. The deal would be the largest ever for Zayo, which was founded in 2007 and has already closed 18 acquisitions. AboveNet was reputedly a competing bidder for many of those properties. At $84 per AboveNet share, the deal came at a modest 12 percent premium to the target's closing price on the day before the deal was announced, though AboveNet stock began the year at $65 a share.
A number of private equity firms have invested in Zayo, and GTCR Golden Rauner LLC will join their ranks as part of the AboveNet deal. Current investor Charlesbank Capital Partners LLC, a Boston private equity firm, is also putting more money into Zayo. The size of GTCR's investment was not disclosed. Zayo and AboveNet hope to close their deal in the middle of the year pending approvals from regulators and AboveNet shareholders.
For acquiror Zayo Group LLC (Louisville, Colorado)
General counsel Scott Beer and associate general counsel Peter Chevalier. At Zayo Bandwidth LLC: general counsel Christopher Yost. At Zayo Fiber Solutions LLC: general counsel Gregg Strumberger.
Gibson, Dunn & Crutcher:
Corporate: Eduardo Gallardo, Beau Stark, Steven Talley, and associates Saee Muzumdar and Dylan Ramsey. Finance: Aaron Adams. (Stark, Talley, and Ramsey are in Denver. Gallardo, Muzumdar, and Adams are in New York.) Gibson has represented Zayo for several years and advised the company last year on its purchase of 360networks USA Inc. for a reported $319 million.
Telecommunications: Jean Kiddoo and counsel Brett Ferenchak. (They are in Washington, D.C.)
For new investor GTCR Golden Rauner LLC (Chicago)
General counsel Christian McGrath.
Latham & Watkins:
Corporate: Bradley Faris, Edward "Ted" Sonnenschein, and associates Hans Grong, Shaun Hartley, and Ian Helmuth. Tax: David Raab and associate Matthew Dewitz. Antitrust: Bruce Prager. Benefits and compensation: Bradd Williamson and associate Lori Goodman. Finance: Brad Kotler and Jennifer Van Driesen. Intellectual property: Jeffrey Tochner. Telecommunications: James Barker and counsel Elizabeth Park. (All are in New York except for Faris, Grong, Hartley, Helmuth, and Kotler, who are in Chicago, and Van Driesen, Barker, and Park, who are in Washington, D.C.) McGrath once practiced at Latham, which also represented GTCR on its $828 million purchase of Protection One Inc. in 2010 and its $267 million purchase of Global Traffic Network Inc. last year .
For existing investors
Edwards Wildman Palmer:
Corporate: Sarah Camougis. Tax: Scott Pinarchik. (Both are in Boston.) The firm has advised the group of investors that formed Zayo in 2007, which in addition to Charlesbank includes Battery Ventures, Centennial Ventures, Columbia Capital L.L.C., M/C Venture Partners, Morgan Stanley Alternative Investment Partners, and Oak Investment Partners.
For target AboveNet, Inc. (White Plains, New York)
General counsel Robert Sokota and associate general counsel Jill Sandford.
Wiggin & Dana:
M&A: Mark Kaduboski, Scott Kaufman, counsel William Kilgallen, and associates Toby Bannon III, Evan Kipperman, and Ann Matthews. Finance: Paul Hughes. Real estate: Andrew Pal. Tax: Peter Gruen and Bruce Hood. Antitrust: Erika Amarante. Executive compensation: Sherry Dominick and counsel Rachel Arnedt. (All are in New Haven except for Kaduboski, Bannon, Kipperman, and Matthews, who are in Stamford, Connecticut; and Kaufman, Pal, and Hood, who are in New York.) Kaufman was previously a partner with Kronish Lieb and was Chapter 11 counsel to AboveNet, then known as Metromedia Fiber Network Inc. AboveNet emerged from bankruptcy in 2003, and Kaufman began working with AboveNet around the end of 2005. Kronish Lieb merged with Cooley Godward in 2006, and Kaufman moved to Wiggin & Dana in 2009.
Kelley Drye & Warren:
Telecommunications: Brad Mutschelknaus and of counsel Joan Griffin. (Both are in Washington, D.C.)
For AboveNet's board of directors
Willkie Farr & Gallagher:
Corporate: Steven Gartner, William Hiller, Jeffrey Hochman, and associate Jennifer Wade. Executive compensation and employee benefits: Ian Levin. Litigation: Tariq Mundiya. (All are in New York.)
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A federal jury in Dallas ruled on March 8 that Mitsubishi Heavy Industries Ltd. had infringed one of General Electric Company's wind turbine patents and awarded $170 million in lost profits and royalties. The GE win comes in the latest bout in a long-running patent and antitrust dispute.
GE filed suit in Dallas federal district court in February 2010 alleging that two patents were infringed. One claim was thrown out by U.S. District Judge W. Royal Furgeson Jr., leaving one to be decided at trial.
The current case, however, is just one of several related claims and cross-claims. In related litigation before the International Trade Commission, GE also won a partial court victory on February 29 when the U.S. Court of Appeals for the Federal Circuit ordered the ITC to reconsider its findings that Mitsubishi had not infringed a separate GE patent at issue in another federal patent claim filed by GE in federal district court in Corpus Christi, Texas. (The Corpus Christi case was ongoing at press time.)
Mitsubishi is the plaintiff in two other suits. It is pursuing an antitrust claim against GE in Fayetteville, Arkansas, federal district court that alleges that GE deceived the patent office and filed sham litigation in a scheme to dominate the wind turbine market. It also filed an infringement case against GE in federal district court in Orlando, alleging that another patent was infringed by GE. GE has filed for summary judgment in that claim; it is aggressively defending the antitrust claim.
For plaintiff General Electric Company (Fairfield, Connecticut)
Paul, Weiss, Rifkind, Wharton & Garrison:
David Ball Jr., Nicholas Groombridge, and associate Andrew Brown. (Groombridge and Brown are in New York; Ball is in Washington, D.C.) The firm was colead counsel in the Dallas patent claim.
Weil, Gotshal & Manges:
Ray Guy, David Lender, and associates Carmen Bremer, Anish Desai, and Nick Sethi. (Guy and Bremer are in Dallas; Lender and Sethi are in New York; and Desai is in Washington, D.C.) The firm was colead counsel in the Dallas patent claim.
For defendant Mitsubishi Heavy Industries Ltd. (Tokyo) et al.
Finnegan, Henderson, Farabow, Garrett & Dunner:
Gerald Ivey and Roger Taylor. (Ivey is in Washington, D.C.; Taylor is in Atlanta.) The firm is lead counsel in the infringement phase of the Dallas litigation.
Steptoe & Johnson:
Filiberto Agusti. (He is in Washington, D.C.) The firm led in the inequitable conduct phase of the Dallas litigation.
For appellee International Trade Commission
At the Office of the General Counsel: general counsel James Lyons, assistant general counsel Wayne Herrington, and attorney James Worth.
For appellant General Electric Company
Wilmer Cutler Pickering Hale and Dorr:
William Lee, Richard O'Neill, Louis Tompros, counsel T. Spence Chubb, and associate Sarah Petty. (Chubb is in Washington, D.C.; the rest are in Boston.) The firm, led by Lee, represented GE, a longtime client, in the Federal Circuit appeal.
For intervenors Mitsubishi Heavy Industries Ltd. et al.
Finnegan, Henderson, Farabow, Garrett & Dunner:
Donald Dunner, Roger Taylor, and Thomas Winland. (Taylor is in Atlanta; the rest are in Washington, D.C.) The firm, led by Dunner, also represented Mitsubishi before the ITC and in the appeal before the Federal Circuit.
Victor Li, with Tom Coster
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AU OPTRONICS CORPORATION ET AL.
AU Optronics Corp. and two top executives were found guilty on March 13 of conspiring with rivals to fix prices of its core products. The company, Taiwan's second-largest maker of display panels for computers and televisions, faces up to $1 billion in penalties, potentially among the largest fines ever imposed in a U.S. criminal antitrust case. At press time the fine had not been set, pending an appeal.
In 2006 the U.S. Department of Justice, the E.U. Antitrust Commission, and Japan's Fair Trade Commission announced a probe into possible price-fixing within the liquid crystal display industry. More than a dozen firms in Taiwan, South Korea, and Japan were investigated for involvement in unfair pricing practices. The first penalties against LCD makers were levied in 2008. Since then, seven companies, including LG Electronics Inc. and others, have pleaded guilty and paid criminal fines totaling $890 million; 10 executives have been sentenced to jail time.
AU Optronics was the only LCD firm charged in the United States to seek a trial. Federal prosecutors accused company executives of secretly meeting with other panel makers in karaoke bars, hotel rooms, and tea houses in Taiwan from 2001 through 2006 for so-called crystal meetings. According to prosecutors, executives arranged to raise prices for LCD purchasers such as Dell Inc. and Apple Inc.
In April 2011 U.S. District Judge Susan Illston in San Francisco rejected a motion to dismiss on jurisdictional grounds; the case went to trial in January.
Two convicted executives, Hsuan Bin Chen and Hui Hsiung, face up to 10 years in prison; their sentencing hearings have not yet been scheduled. Two other executives were acquitted, including former chief executiveLai-Juh Chen, who remains an AU Optronics executive. A mistrial was declared for a fifth.
An appeal, which defense lawyers involved said would come within the next few months, will focus on whether a U.S. statute outlawing conduct that curbs fair competition can be used against companies for actions outside the country, defense lawyers say.
For plaintiff the United States of America
At the U.S. Department of Justice's antitrust division: Assistant chief of the antitrust division's San Francisco office Peter Huston and trial attorneys Jonathan Jacobs, Kristen Limarzi, Lidia Maher, Kate Patchen, Christopher Ries, Michael Scott, Brent Snyder, Heather Tewksbury, and Micah Wyatt.
For defendant AU Optronics Corp. (Hsinchu, Taiwan)
Carl Blumenstein, Paul Knight, Christopher Nedeau, and associate Chi Soo Kim. (Knight is in Washington, D.C.; the rest are in San Francisco.) The firm was lead trial counsel in this and in a separate class action where consumer electronics retailers are suing the LCD maker over antitrust claims related to the price-fixing case.
Michael Healy and Kirk Jenkins. (Healy is in San Francisco; Jenkins is in Chicago.)
For defendant AU Optronics Corporation America (Houston)
Law Office of John D. Cline:
John Cline. (He is in San Francisco.)
Law Office of K.C. Maxwell:
K.C. Maxwell. (She is in San Francisco.)
For the individual defendants
Riordan & Horgan:
Donald Horgan and Dennis Riordan. (They are in San Francisco.) The appellate firm is cocounsel for all the defendants and is seeking new trials for the two convicted executives.
For defendant Lai-Juh Chen
Law Offices of Brian H. Getz:
Brian Getz. (He is in San Francisco.) Getz is representing the former AU Optronics president and CEO. He was lead counsel at trial.
Shearman & Sterling:
Patrick Robbins and associate Mikael Abye. (They are in San Francisco.) The firm was brought into the case by Getz, who has argued many cases opposite Robbins.
For defendant Hsuan Bin Chen
Michael Attanasio and associate Jennifer French. (They are in San Diego.)
For defendant Hui Hsiung
Law Office of Brian P. Berson:
Brian Berson. (He is in San Francisco.) Berson was lead defense counsel for AU Optronics's former executive vice president at trial.
Law Offices of William L. Osterhoudt:
William Osterhoudt. (He is in San Francisco.)
For defendant Tsannrong Lee
Law Offices of Brendan Conroy:
Brendan Conroy. (He is in San Francisco.) Conroy represented the former senior manager of AU Optronics's notebooks division at the trial.
For defendant Hsiu Lung Leung
Cashman Law Offices:
Dara Cashman and Dennis Cashman. (They are in San Francisco.) The firm represented the former senior manager of AU Optronics's desktop display division at trial.
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IN RE PROPOXYPHENE
PRODUCT LIABILITY LITIGATION
With help from a key U.S. Supreme Court ruling last term on federal preemption, generic drug makers scored a ruling in March that could wipe out hundreds of claims that the companies wrongfully marketed generic versions of the pain reliever Darvon.
On March 5 U.S. District Judge Danny Reeves in Covington, Kentucky, dismissed nearly three dozen suits in federal multidistrict litigation over the painkillers, citing the Supreme Court's June 2011 ruling that federal generic drug regulations preempt state law failure-to-warn claims.
The decision will directly affect 33 consolidated suits in the case, and could ultimately apply to more than 700 claims pending against generic defendants in the MDL, defense lawyers said.
The MDL itself includes 167 suits, including many with multiple plaintiffs. Plaintiffs lawyers could still file another 3,0008,000 claims.
Plaintiffs lawyers tried to skirt the preemption issue by arguing that they no longer claimed that the defendants failed to warn consumers about the potential harm of taking generic Darvon. Instead, they contended, the companies "wrongfully marketed an unreasonably dangerous product" that they should have withdrawn based on evidence that it harmed patients. But Judge Reeves rejected those arguments, writing that the plaintiffs did not sufficiently demonstrate that their so-called wrongful marketing claims escape preemption.
Defense lawyers for the generic companies have previously been successful in relying on the Supreme Court's ruling in Pliva Inc. v. Mensing to knock out litigation over generic versions of the drugs Aredia and Fosamax.
For the plaintiffs
Behnke Martin Schulte:
Stephen Behnke and Richard Schulte. (They are in Dayton.)
Dianne Nast and associate Michele Burkholder. (They are in Philadelphia.)
The Center for Constitutional Litigation:
Louis Bograd. (He is in Washington, D.C.)
Sutton Rankin Law:
Harry Rankin. (He is in Edgewood, Kentucky.)
For defendant Vintage Pharmaceuticals LLC (Huntsville, Alabama) et al.
Skadden, Arps, Slate, Meagher & Flom:
Mark Cheffo, J. Russell Jackson, counsel Katherine Armstrong, and associates Elliott Davis, Rachel Passaretti-Wu, and Lincoln Wilson. (They are in New York.)
For defendant Teva Pharmaceuticals USA (North Wales, Pennsylvania) et al.
Lori Cohen, José Isasi II, Victoria Lockard, counsel Sara Thompson, and associates Jessica Cabral, Laura Gleen, and Cliff Merrell. (Isasi is in Chicago; Gleen is in Washington, D.C.; the rest are in Atlanta.)
For defendant Xanodyne Pharmaceuticals Inc. (Newport, Kentucky)
Ulmer & Berne:
Linda Maichl, Gina Saelinger, Joseph Thomas, and associate Joshua Klarfeld. (Klarfeld is in Cleveland; the rest are in Cincinnati.)
For defendant Eli Lilly and Company (Indianapolis)
Mary Larimore, Kimberly Metzger, and associates Audra Ferguson-Allen and Dominique Price. (They are in Indianapolis.)
For defendant Covidien Inc. (Mansfield, Massachusetts) et al.
Shook, Hardy & Bacon:
Deborah Moeller, counsel Bryan Pratt, and associate Kelly Bieri. (They are in Kansas City, Missouri.) The firm did not comment.
Nate Raymond, with T.C.
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IN RE JOHNS-MANVILLE CORPORATION ET AL.
On March 1 a federal district court judge in Manhattan thwarted a settlement that was designed to bring to a close three decades of litigation and to compensate claimants exposed to asbestos. The decision found that a $500 million settlement with The Travelers Indemnity Companythe insurer of the onetime asbestos manufacturer Johns-Manville Corporationwas unenforceable. U.S. District Judge John Koeltl found that a key condition of the settlementTravelers's immunity from future suitswas undermined by an appellate court ruling.
Plaintiffs filed complaints against Johns-Manville beginning in 1982 claiming that they were harmed by asbestos made by the company, once the nation's largest producer of the carcinogenic insulation material. Travelers, the company's insurer, consented in three agreements in 2003 and 2004 to pay three classes of plaintiffs $445 million in exchange for a final court order releasing it from future claims. Five more years of appeals followed when Chubb Insurance Company, concerned about its own indemnity claims against Travelers, challenged the deal. In December 2010 the bankruptcy judge handling Johns-Manville's bankruptcy, Judge Burton Lifland, ordered Travelers to pay plaintiffs $445 million plus interest.
Travelers appealed to the district court, arguing that the deal no longer provided the contractual immunity from claims it was intended to receive. Judge Koeltl agreed, finding that a 2010 decision by the U.S. Court of Appeals for the Second Circuit invalidated the 200304 agreements, because the decision opened the door to indemnity claims against Travelers by Chubb. "While Travelers was willing to pay the additional $500 million to obtain complete peace through a clarification that any and all claims against it . . . were enjoined," he wrote, "this is not the relief Travelers obtained" following the Second Circuit decision.
Plaintiffs attorneys filed a notice of appeal in late March.
For Common Law plaintiffs
Ronald Barliant and associate Danielle Juhle. (They are in Chicago.)
For Statutory and Hawaii Direct Action Settlement plaintiffs
Kent Bronson and Matthew Gluck. (They are in New York.) Gluck had come to the attention of the plaintiffs on previous work while at Fried, Frank, Harris, Shriver & Jacobson.
For Asbestos Personal Injury plaintiffs
Stutzman, Bromberg, Esserman & Plifka:
Sander Esserman and Cliff Taylor. (They are in Dallas.)
For defendants The Travelers Indemnity Company (Hartford) et al.
Simpson Thacher & Bartlett:
Andrew Frankel, Barry Ostrager, and associates David Edwards and Bryce Pashler. (They are in New York.) The firm has represented Travelers on this matter since 1982. Ostrager negotiated Travelers's original exit from liability via the Manville Trust in 1986, the 2004 settlement with asbestos claimants, and subsequent appeals.
V.L., with T.C.