/raid1/www/Hosts/bankrupt/CAR_Public/011213.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 13, 2001, Vol. 3, No. 243
Headlines
APW LTD.: Milberg Weiss Initiates Securities Suit in E.D. Wisconsin
ARKANSAS: Hospital Official Says Inmate Mental Care System Is Flawed
CALIFORNIA: Constitutionality Of Flouride "Mass Medication" Questioned
CALIFORNIA: State Officials Should Not Be Deposed in Education Suit
CARRIER1 INTERNATIONAL: Stull Stull Files Securities Suit in S.D. NY
CENTRA SOFTWARE: Schiffrin Barroway Lodges Securities Suit in S.D. NY
CHILDREN'S COMPREHENSIVE: Sued For Breach of Fiduciary Duty in TN
CITIGROUP INC.: CA Court Grants Certification To Unfair Practices Suit
CORNING INC.: Wolf Haldenstein Files Securities Suit in W.D. of NY
CRACKER BARREL: Sued By African-Americans For Racial Discrimination
DJ ORTHOPEDICS: Wolf Haldenstein Commences Securities Suit in S.D. NY
ENRON CORPORATION: Scott Scott Joins Motion Freezing Directors' Assets
EXTENSITY INC.: Schiffrin Barroway Lodges Securities Suit in S.D. NY
HAWAII: State Jail Faces Suit For Unfairly Treating Acquitted Inmates
MCDONALD'S CORPORATION: Customers Sue For "Rigged" In-Store Promotions
MICROSOFT CORPORATION: Judge Urges Parties To Meet Outside Mediator
SLAVE LABOR: Nazi-Era Slave Laborers To Get Compensation Next Year
SRI SURGICAL: Schatz Nobel Commences Securities Suit in M.D. Florida
SWISS BANKS: Lawyer Looking For Plaintiffs To Join Apartheid Suit
SYCAMORE NETWORKS: Underwriters' Alleged Acts Spawn Suits in S.D. NY
TD WATERHOUSE: Jeffrey Spencer Files CA Unfair Business Practices Suit
TEAM COMMUNICATIONS: Enters Settlement Agreement in CA Securities Suits
UTAH: Suit Alleges Poor Funding Undercuts Public Defenders' Efficacy
VAN WAGONER: Ademi O'Reilly Ponder Possible Growth Fund Pricing Suit
*SC To Set Conditions For Plaintiffs To Challenge Settlement Agreements
*********
APW LTD.: Milberg Weiss Initiates Securities Suit in E.D. Wisconsin
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Milberg Weiss Bershad Hynes & Lerach LLP commenced a securities class
action on behalf of purchasers of the securities of APW, Ltd.
(NYSE:APW) between September 26, 2000 and March 20, 2001, inclusive in
the United States District Court, Eastern District of Wisconsin,
against the Company and directors Richard G. Sim and William P.
Albrecht.
The suit alleges that defendants violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, by issuing materially false and misleading statements to
the market. Specifically, throughout the class period, defendants
repeatedly issued statements indicating that the Company was growing at
a rapid pace, due, in significant part, to strong demand for its
product offerings by its customers.
The complaint alleges that these statements were materially false and
misleading because, among other things, they failed to disclose or
misrepresented that:
(1) in fact, the Company was experiencing decreased demand for its
products as its primary customers were substantially
decreasing their orders;
(2) due to the declining demand, the Company's customers were
overstocked with products and, accordingly, would be
decreasing their orders in the future while they worked down
their bloated inventories; and
(3) in response to these negative factors, the Company was
attempting to slash costs and, in this regard, had started to
reduce its workforce.
On March 20, 2001, defendants finally disclosed this information and
reported that the Company's sales growth had slowed dramatically and
reported a loss of $0.15 per share, compared to analysts' expectations
of a $0.27 per share profit. Defendants also disclosed that the
Company's reduced performance, combined with other factors, caused it
to be in breach of certain covenants in its credit agreement.
In response to this announcement, the price of Company common stock
dropped from $20.65 per share on March 20, 2001, to close at $7.39 per
share on March 21, 2001. Prior to this disclosure, defendant Albrecht
was able to sell shares of his personally-held stock for gross proceeds
of more than $1.7 million and the Company was able to complete its
acquisition of Mayville Metal Products, which was partially paid for
using the Company's stock as currency.
For further details, contact Steven G. Schulman or Samuel H. Rudman by
Mail: One Pennsylvania Plaza, 49th fl. New York, NY, 10119-0165 by
Phone: 800.320.5081 by E-mail: APWcase@milbergNY.com or visit the
firm's Website: http://www.milberg.com
ARKANSAS: Hospital Official Says Inmate Mental Care System Is Flawed
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The State of Arkansas faces a class action being heard by US District
Judge Stephen Reasoner accusing the state of neglecting mentally ill
people housed in local jails by taking months to arrange evaluations
and treatment for them, the Associated Press recently reported.
Dr. Larry Miller, the State Hospital's medical director, testified
recently at the opening of a trial on whether the state treats mentally
ill criminal suspects unlawfully. Dr. Miller said that the State
Hospital was doing all it could with the resources it has. To properly
take care of the mentally ill, he suggested, "There needs to be a re-
engineering of the system to address the problem.space, staffing,
money. "There are folks in jails not getting treatment, and getting
sicker. I hear horror stories every day," Dr. Miller said. "I'm
worried that someone may kill himself or someone else. People are
suffering."
The State, however contends that jails and judges also are responsible
for the treatment of people who are being held locally. Jay Wills, an
attorney for the state, said a judge's order to commit a suspect to the
State Hospital does not relieve local jails from their obligation to
provide reasonable medical care for the suspect. "It's in their
custody that allegations of mistreatment occur," said Mr. Wills.
"We're not sure the State Hospital is the one creating the problem."
Dr. Miller, called to the stand by lawyers for the plaintiffs, said
that local jails are not equipped to treat mentally ill inmates.
The recent hearing arose out of the lawsuit filed by the American Civil
Liberties Union on behalf of James M. Terry, 28, who was held in the
Sebastian County jail at Fort Smith for more than ten months without
treatment for a psychotic disorder. The suit named as defendants
Sebastian County Sheriff Frank Atkinson and Richard Hill, Deputy
Director of the State Division of Mental Health Services in the
Department of Human Services (DHS). DHS oversees the State Hospital.
Judge Reasoner granted the plaintiffs class-action status, making the
trial applicable to inmates in similar positions.
Dr. Miller further testified that the State Hospital is licensed for
315 beds but operates only 186 because of space limitations.
Sixty-four beds are reserved for evaluation of mentally ill patients
accused of crimes. The number should be at least double, said Dr.
Miller.
CALIFORNIA: Constitutionality Of Flouride "Mass Medication" Questioned
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The debate over adding fluoride to Escondido, San Diego's drinking
water has moved to the courts as city officials were served with a
class action filed by 10 people, who live or work in Escondido, on
behalf of others who drink Escondido city water, The San Diego Union-
Tribune reported recently. The lawsuit contends that fluoride does not
prevent cavities but causes cancer and other ailments and therefore
asks the judge to stop the city from adding fluoride to its water.
The suit was initially filed in September, but city officials were
not notified of it until they were recently served with a newer version
of it. The court file encompasses hundreds of pages, including 174
exhibits, which include photographs of stained teeth, as well as City
Council minutes and dozens of reports on the effects of fluoride.
When Escondido's City Council voted in June to overturn a two-year-old
city ban on fluoridation, the Council stated that the benefits of
fluoride are clear and outweigh any risks. Under a 1996 law,
California requires cities with at least 10,000 water connections to
fluoridate their drinking water to help prevent tooth decay. Fluoride
has been used for decades in most of the country's drinking water, but
has been met with suspicion in California and other western states.
A recent news release from the group Citizens for Safe Drinking Water,
which was not named in the original version of the lawsuit, took
credit for the litigation. The release says the lawsuit challenges the
constitutionality of "mass medication" of the city's water supply.
A judge last year rejected the group's challenge of San Diego's plans
to fluoridate its water, ruling that the 1966 state law mandating
fluoridation trumped a city ban enacted in 1954.,A spokesman listed on
the news release and the attorneys who filed the, San Diego suit could
not be reached for comment. A city attorney likewise declined to
comment on the suit.
CALIFORNIA: State Officials Should Not Be Deposed in Education Suit
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The suit against the state of California seeking equal education is
bogging down in a series of procedural flights, after state lawyers
asserted that depositions of "high-ranking state officials" should not
be taken, according to a San Francisco Chronicle report. This moved
was a bizarre twist in the suit, after state lawyers spent long hours
taking the depositions of children as young as nine-years-old in the
suit.
Students sued the state last year, demanding that the state create a
system to hold officials accountable when schools consistently offer
out-of-date books, unprepared teachers, vermin-infested classrooms and
other debilitating conditions.
Instead of moving toward swift resolution, the case is mired in a
series of procedural fights. In the latest such fight, Governor Gray
Davis does not want eight top officials to be deposed. These include:
(1) Kerry Mazzoni, Education Secretary,
(2) Tim Gage, Finance Director, and
(3) Delaine Eastin, the elected schools chief
"These high-ranking state officials.cannot be expected to have personal
knowledge of the detailed facts" about school conditions described in
the suit, the state's lawyers said in papers to the San Francisco
Superior Court. However, lawyers for the students who sued in May
2000 say Delaine Eastin, Kerry Mazzoni and the others are experts on
the subject.
"The state has deposed scores of children, teachers and principals, yet
they are obstructing our ability to get vital information from those
with the most insight into the inner workings of the education system,"
said Leecia Welch, a lawyer with Morrison & Foerster, a private firm
representing the students pro bono.
The question of whether "high-ranking officials" will be subjected to
the same kinds of grueling questions that the governor's lawyers have
been asking children is one that is certain to drag into the new year.
So far, 10 students have been deposed, with another 15 or so left to
go. Recently, a judge ordered the state to produce their high-ranking
officials for deposition within 30 days or file court papers explaining
why not. The lawyers have not yet said which they will do.
Earlier this fall, the California PTA and two groups representing 19
superintendents and 19 school boards in Alameda County wrote to the
Governor and the students' main attorney, the American Civil Liberties
Union, urging settlement and offering to help remedy "the egregious
Inequities" cited in the case. The thick records of the lawsuit
describe scores of inadequate conditions, including classes without
textbooks, science programs without laboratories, broken heating
systems, sweltering classrooms and more.
The Governor's lawyers, said the Chronicle, summed up the issue
best, declaring that if any dispute needs resolution, "it is about what
measures are necessary or appropriate to achieve the goal that everyone
shares" of providing a first-rate education for all. Fremont
Superintendent Sharon Jones, who signed the letter urging settlement,
offered a suggestion, "We need an equitable, long-range funding system
in California that pays for both facilities and programs."
The current system for repairing the state's decaying schools is
unpredictable, she said, because it relies on the willingness of voters
to approve bond sales.
As if to illustrate Ms. Jones' concern, the $30 billion in school bonds
that Governor Davis favors already is running into trouble because
influential lawmakers prefer a bond about a third its size. Governor
Davis takes the view that his legislative and budget approach,
including teacher incentives, literacy programs and financial rewards
for improved test scores, is the right one.
Attorney Mark Rosenbaum of the ACLU argues that if the Governor's
approach were enough, then poor school conditions would not be so
common. "A lot of this case doesn't have anything to do with money.
We're talking about an increase in local accountability. The system
now permits school districts to hide their shortcomings, and the
ultimate losers are the students," said Mr. Rosenbaum.
Records show the state has spent $5 million to fight the students so
far, with most going to $325-an-hour attorneys from the private firm
O'Melveny & Myers. If the students win the case, taxpayers could also
be liable for fees accrued by the ACLU and the nonprofit law firm
Public Advocates, Inc. The private firm Morrison & Foerster will not
seek payment, their lawyers said.
With the trial date still nearly a year away, millions more in legal
costs are inevitable but how many more and the details of how they are
spent, is something the governor is not keen on making public. A
September 14 memo from Governor Davis' office to state Controller
Kathleen Cornell's office calls such information private under the
attorney-client privilege. Citing a Chronicle request for public
records of expenditures in the case, the memo says that no billings
"will be released without first conferring with our office (the
Governor's office) and seeking our consent."
CARRIER1 INTERNATIONAL: Stull Stull Files Securities Suit in S.D. NY
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Stull Stull and Brody commenced a securities class action on behalf of
purchasers of the common stock of Carrier1 International S.A.
(NASDAQ:CONE) between February 24, 2000 and December 6, 2000,
inclusive. The suit is pending in the United States District Court,
Southern District of New York against the Company, certain of its
officers and its underwriters.
The suit alleges that defendants violated Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 and Section 10(b) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. In February
2000, the Company commenced an initial public offering of 9.375 million
of its shares of common stock at an offering price of EURO 87
($87.4176) or $17.4835 per ADS. In connection therewith, the Company
filed a registration statement, which incorporated a prospectus with
the SEC.
The complaint further alleges that the prospectus was materially false
and misleading because it failed to disclose, among other things, that:
(i) the underwriters had solicited and received excessive and
undisclosed commissions from certain investors in exchange for
which the underwriters allocated to those investors material
portions of the restricted number of shares issued in
connection with the IPO; and
(ii) the underwriters had entered into agreements with customers
whereby the underwriters agreed to allocate Carrier1 shares to
those customers in the IPO in exchange for which the customers
agreed to purchase additional shares in the aftermarket at
pre-determined prices.
For more information, contact Tzivia Brody by Mail: 6 East 45th Street,
New York, NY 10017 by Phone: 1.800.337.4983 (toll-free) or 212.687.7230
by Fax: 212.490.2022 or by e-mail at SSBNY@aol.com
CENTRA SOFTWARE: Schiffrin Barroway Lodges Securities Suit in S.D. NY
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Schiffrin and Barroway LLP initiated a securities class action on
behalf of purchasers of the common stock of Centra Software, Inc.
(NASDAQ:CTRA) between February 3, 2000 and December 6, 2000, inclusive.
The suit is pending in the United States District Court, Southern
District of New York against the Company, certain of its officers and
its underwriters.
The suit alleges violations of Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 and Section 10(b) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder. In February 2000, the
Company commenced an initial public offering of 5,000,000 of its shares
of common stock, at an offering price of $14 per share. In connection
therewith, the Company filed a registration statement, which
incorporated a prospectus with the SEC.
The suit further alleges that the prospectus was materially false and
misleading because it failed to disclose, among other things, that:
(i) the underwriters had solicited and received excessive and
undisclosed commissions from certain investors in exchange for
which the underwriters allocated to those investors material
portions of the restricted number of Company shares issued in
connection with the IPO; and
(ii) the underwriters had entered into agreements with customers
whereby the underwriters agreed to allocate shares to those
customers in the IPO in exchange for which the customers
agreed to purchase additional shares in the aftermarket at
pre-determined prices.
For more information, contact Marc A. Topaz or Stuart L. Berman by
Mail: Three Bala Plaza East, Suite 400, Bala Cynwyd, PA 19004 by Phone:
1.888.299.7706 (toll free) or 1.610.667.7706 or by E-mail:
info@sbclasslaw.com
CHILDREN'S COMPREHENSIVE: Sued For Breach of Fiduciary Duty in TN
-----------------------------------------------------------------
Children's Comprehensive Services faces a purported class action
pending since June 2001 in the Circuit Court of Davidson County,
Tennessee challenging the Company's merger with Ameris Acquisition,
Inc., a wholly owned subsidiary of KIDS Holdings, Inc.
Under the terms of the proposed merger, the Company would merge with
Ameris and it would continue to exist after the merger as a wholly
owned subsidiary of KIDS Holdings. As compensation for the merger,
Company shareholders would receive $6.00 per share in cash.
The suit alleges that the Company and the members of the CCS board of
directors breached their fiduciary duties to shareholders by approving
an exclusivity agreement pursuant to which the Company agreed to
negotiate exclusively with Ameris for the period from June 14, 2001
through July 13, 2001. The Company believes that the lawsuit is based
upon erroneous assumptions by the plaintiff and is without merit.
CITIGROUP INC.: CA Court Grants Certification To Unfair Practices Suit
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The Superior Court of the State of California certified a class of
plaintiffs in the class action pending alleging violations of
California labor and business laws against Citigroup, Inc., and
defendants:
(1) Salomon Smith Barney, Inc.,
(2) CitiFinancial Services, Inc., and
(3) Travelers Property Casualty Corporation
The suit alleges that the forfeiture provisions of the Company's
Capital Accumulation Plan are illegal under California law and that the
Company's enforcement of those forfeiture provisions violates
provisions of California's Labor and Business and Professions Codes and
constitutes wrongful conversion of class members' property. The
defendants have denied these claims.
The certified class consists of former stockbrokers/financial
consultants employed by the defendants in California who participated
in the capital accumulation plan and suffered financial damages as a
result of the forfeiture provisions of the plan.
The Law Offices of Ashley D. Posner and Milberg Weiss Bershard Hynes
and Lerach LLP filed the suit. For more information, contact the
class action Administrator Gilardi & Co. LLC by Mail: P.O. Box 5100,
Larkspur, CA 94977-5100 by Phone: 415.461.0410 by Fax: 415.461.0412 or
visit the firm's Website: http://www.gilardi.com.
CORNING INC.: Wolf Haldenstein Files Securities Suit in W.D. of NY
------------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class
action in the United States District Court for the Western District of
New York on behalf of all shareholders that acquired common stock or
zero coupon convertible debentures of Corning, Inc. (NYSE: GLW)
pursuant to a prospectus dated November 3, 2000.
The suit alleges that defendants violated Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 by issuing a materially false and
misleading registration statement and prospectus in connection with the
Company's offering of common stock and debentures in November 2000.
Specifically, the suit alleges that the prospectus was materially false
and misleading, among other reasons, because it:
(1) stated that demand for the Company's products was robust;
(2) omitted to disclose that the Company was amassing hundreds of
millions of dollars of obsolete inventory that would have to
be written-off;
(3) given the foregoing, the projection of 25% earnings growth in
2001, contained in the prospectus, was lacking in a reasonable
basis at all times.
In July 2001, the Company announced it was taking a $5.1 billion charge
primarily related to two recent acquisitions, that it would also write-
off $300 million in excess and obsolete inventory, and that it would
cut 1,000 jobs and close three plants. On July 25, 2001, the Company
reported a massive second-quarter loss of $4.76 billion, or $5.13 per
share. The Company's shares closed that day at $13.77, down 80% from
the offering price.
For more details, contact George Peters, Derek Behnke, Gregory M.
Nespole or Fred Taylor Isquith by Mail: 270 Madison Avenue, New York,
New York 10016 by Phone: 800.575.0735 by E-mail: classmember@whafh.com
or visit the firm's Website: http://www.whafh.com.All e-mail
correspondence should make reference to Corning.
CRACKER BARREL: Sued By African-Americans For Racial Discrimination
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The Cracker Barrel Old Country Store restaurant chain faces a racial
discrimination suit brought by black customers who claim they were
treated unfairly at the restaurant, the latest in a series of
discrimination suits against the Company, a Reuters report said.
The suit was filed on behalf of 21 plaintiffs in 10 states: Maryland,
Georgia, Arkansas, Indiana, Louisiana, Michigan, North Carolina,
Oklahoma, Tennessee and Texas. 310 witness from 175 cities around the
United States are also part of the suit. The suit alleges that African-
American customers were denied service and seating. Gordon Silberman
Wiggins and Childs, the attorneys for the plaintiffs said in a
statement, "The lawsuit alleges egregious discrimination against
African American customers on the basis of race."
The suit is the latest litigation to hit the Lebanon, Tennessee-based
company. In 1999, the National Association for the Advancement of
Coloured People (NAACP) filed a suit charging that the Company
discriminated against black employees by paying them less than their
white counterparts and passing them over for management and higher-
exposure positions such as hostesses and cashiers.
Company spokeswoman Julie Davies responded to the Complaint "We haven't
seen the complaint so we can't respond directly.I can tell you that
Cracker Barrel has a well-established reputation for the highest
quality service for our customers. We have no reason to believer that
these allegations are correct."
DJ ORTHOPEDICS: Wolf Haldenstein Commences Securities Suit in S.D. NY
---------------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class
action lawsuit in the United States District Court for the Southern
District of New York on behalf of all shareholders that acquired the
common stock of DJ Orthopedics, Inc. (NYSE: DJO) pursuant or traceable
to an initial public offering in November 15, 2001, against the
Company, certain of its officers and directors and its underwriters.
The complaint alleges that defendants violated Sections 11, 12(a)(2),
and 15 of the Securities Act of 1933, by issuing a registration
statement and prospectus in connection with an initial public offering
of common stock, which contained materially false and misleading
statements and omissions. Specifically, the complaint alleges that
shortly after the commencement of trading on November 15, 2001, the IPO
share price dropped precipitously from $17 per share upon news that
analysts adjusted downward the Company's fourth quarter earnings
forecast. Fourth quarter earnings estimates were touted by defendants
in "road shows" to investors prior to the IPO. Defendants did not halt
the IPO or trading in the stock, even though the registration statement
and prospectus failed to disclose that the fourth quarter estimates
were adjusted downward.
The news drove the price of the Company's shares down by at least 10%,
to close at $15.25 per share, on heavy trading volume of 7.3 million
shares. By its third full day of trading, the Company's shares were
down to $13.16 per share, or over 22% off the IPO price.
For more information, contact Geortpe Peters, Derek Behnke, Gregory M.
Nespole, or Fred Taylor Isquith by Mail: 270 Madison Avenue, New York,
New York 10016 by Phone: 800.575.0735 by E-mail: classmember@whafh.com
or visit the firm's Website: http://www.whafh.com.All e-mail
correspondence should make reference to DJ Orthopedics.
ENRON CORPORATION: Scott Scott Joins Motion Freezing Directors' Assets
----------------------------------------------------------------------
Scott & Scott, LLC joined in Amalgamated Bank's motion to freeze the
assets of Enron Corporation's (NYSE:ENE) officers and directors who
allegedly participated in insider trading before the collapse of
Company stock. The firm joined the motion on behalf of its client, The
Archdiocese Of Milwaukee Supporting Fund, Inc., a charitable fund that
helps to provide education to children, teach young adults job skills,
assist the mentally impaired/challenged and provides funds for social
services.
The fund had earlier filed a class action against the Company in
November 21, 2001 and then filed an amended complaint on December 6,
2001 for violations of federal securities laws in the United States
District Court for the Southern District of New York. The suit charges
Arthur Andersen, LLP, the Company's auditor, and twenty-nine (29)
Company officers and directors with violations of Sections 11,12(a)(2)
and 15 of the Securities Exchange Act of 1933. Insiders are alleged to
have reaped over 1 billion dollars in inside trading.
As reported, the Company has announced that it will restate its
earnings for 1997, 1998, 1999 and 2000, and the first two quarters of
2001. The Company is not named as defendant in this action, which is
filed solely on behalf of debt holders, as it has filed for protection
pursuant to Chapter 11 of the U.S. Bankruptcy Code.
On December 7,2001, Neil Rothstein of Scott & Scott, LLC argued on for
the AMS Fund's independent purported class action that it and other
charities, endowments and foundations could ill afford to lose any
money due to fraud in prospectuses and registration statements. Mr.
Rothstein argued that such funds are generally conservative and that
they depend upon investment grade bonds in order to support their
charitable causes and activities. The Enron bonds have now been termed
as "junk."
Amalgamated Bank's attorneys, in its case, requested at that hearing
that US District Judge Lee Rosenthal approve a temporary restraining
order freezing the insider gains until issues could be resolved through
discovery. The AMS FUND joined this motion in totality and concurred in
all arguments by Amalgamated Bank's attorney, William S. Lerach. The
motion seeks to freeze only assets gained through insider sales
totaling over 1 billion dollars.
For more information, contact Neil Rothstein or David R. Scott by
Phone: 800.404.7770 or visit the firm's Website: http://www.scott-
scott.com
EXTENSITY INC.: Schiffrin Barroway Lodges Securities Suit in S.D. NY
--------------------------------------------------------------------
Schiffrin and Barroway LLP initiated a securities class action on
behalf of purchasers of the common stock of Extensity, Inc.
(NASDAQ:EXTN) between January 26, 2000 and December 6, 2000, inclusive.
The suit is pending in the United States District Court, Southern
District of New York against the Company, certain of its officers and
its underwriters.
The suit alleges violations of Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 and Section 10(b) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder. In January 2000, the
Company commenced an initial public offering of 4,000,000 of its shares
of common stock at an offering price of $20 per share. In connection
therewith, the Company filed a registration statement, which
incorporated a prospectus with the SEC.
The suit further alleges that the prospectus was materially false and
misleading because it failed to disclose, among other things, that:
(i) the underwriters had solicited and received excessive and
undisclosed commissions from certain investors in exchange for
which the underwriters allocated to those investors material
portions of the restricted number of shares issued in
connection with the IPO; and
(ii) the underwriters had entered into agreements with customers
whereby the underwriters agreed to allocate Company shares to
those customers in the IPO in exchange for which the customers
agreed to purchase additional shares in the aftermarket at
pre-determined prices.
For more information, contact Marc A. Topaz or Stuart L. Berman by
Mail: Three Bala Plaza East, Suite 400, Bala Cynwyd, PA 19004 by Phone:
1.888.299.7706 (toll free) or 1.610.667.7706 or by E-mail:
info@sbclasslaw.com
HAWAII: State Jail Faces Suit For Unfairly Treating Acquitted Inmates
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The American Civil Liberties Union filed a class action in Hawaii
District Court alleging the O'ahu Community Correctional Center (OCCC)
unfairly treated hundreds of acquitted persons who returned to the jail
to clear routine background checks and collect belongings prior to
final court approval for their release. The suit states these people
were subjected to unfair treatment through the state's practice of
confining and strip-searching them. Brent White, legal director of
ACLU Hawaii, said the practice has gone on for more than 10 years.
The suit names as defendants:
(1) Hawaii Department of Public Safety,
(2) Ted Sakai, the department's Director,
(3) Clayton Frank, O'ahu Community Correctional Center Warden and
(4) Cappy Caminos, acting Chief of the Sheriff's Division of the
Department of Public Safety, who is also First Deputy Sheriff
of the court branch of the sheriff's division
The suit makes mention of the experiences of plaintiffs Gregory
Tapaoan, Michael Mars, Pedro Paula Ribeiro. According to the Honolulu
Advertiser, the suit revealed that the plaintiffs and hundreds of other
individuals were handcuffed, shackled and placed in court holding cells
for hours. They were then chained with other prisoners, transported
back to OCCC, forced to submit to strip searches, and confined to
prison cells for hours and sometimes days. While being so detained,
they were denied permission to make phone calls, forced to wear jail
clothing, and harassed and threatened by prison guards, among other
things, according to the complaint.
Mr. White asserts, "It is bad enough that innocent individuals would be
forced to stay in custody awaiting the opportunity to prove their
innocence, but it is astounding that, even after being exonerated, they
would be subject to such indignities."
In a written response, Mr. Sakai said acquitted inmates are returned to
O'ahu Community Correctional Center to clear routine background checks
and collect belongings prior to final court approval for their release,
according to the Honolulu Advertiser. He added the Department of Public
Safety has not been served with the complaint, has never been
approached by the ACLU about any practice involving the processing of
inmates after acquittals, and was unaware of the specific allegations.
MCDONALD'S CORPORATION: Customers Sue For "Rigged" In-Store Promotions
----------------------------------------------------------------------
A Chicago lawyer filed a class action in Cook County, Illinois, against
McDonald's Corporation (MCD) and Simon Marketing Inc., the promotional
game unit of Simon Worldwide Inc., over the alleged criminal ring that
fixed winners of the Company's popular "Monopoly" and "Who Wants to be
a Millionaire" games, according to a recent report by Dow Jones
Business News.
The Federal Bureau of Investigation announced that federal officials
working with the Company had broken up a criminal ring that they say
rigged the two games, played by millions of customers over the past six
years. The FBI alleges that the ring fixed winners of $1 million and
other big-money prizes, who then shared the cash with members of the
group. In all, the ring "won" more than $13 million in prizes.
Eight people have been arrested. At the center of the scheme
was Jerome Jacobson, 58, a security employee of defendant Simon
Marketing, which was responsible for game promotions and security for
the fast-food chain.
If they had known their chances of winning had been reduced by the
alleged conspiracy, customers "would not have gone to McDonald's as
often as they did," Aron Robinson said in explaining his lawsuit.
"They would have ordered a regular-size fries instead of a super-size
fries." MCD recently fired Simon Worldwide and also plans a $10
million sweepstakes from August 30 to September 3 that will make
instant $1 million and $100,000 winners of customers at randomly
selected restaurants.
MICROSOFT CORPORATION: Judge Urges Parties To Meet Outside Mediator
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US Federal Judge J. Frederick Motz urged Microsoft Corporation and
parties accusing it of abusing its monopoly power in hundreds of
private antitrust class actions to meet with an outside mediator in
order to reach a settlement in the suits. Judge Motz recommended
mediator Kenneth Feinberg, a Washington lawyer who was recently named
to oversee a government compensation fund for victims of the September
11 attacks and their families.
Earlier, the Company had proposed a $1 billion settlement that would
provide the nation's poorest schools with Microsoft software, computers
and training. The settlement raised numerous objections from different
sectors that said the settlement would allow the Company to extend its
monopoly to the education sector. Company lawyers have argued the
settlement will help close the "digital divide" between rich and poor
students nationwide. They also said that the National Education
Association and the United Negro College Fund support the proposed
agreement. The meeting with Feinberg is scheduled to take place
Tuesday in Washington, according to an Associated Press report.
Judge Motz has said that he is unsure how he will rule. He said that
he wants to give parties in the case one last chance to settle their
differences out of court. "Nobody knows what I'm going to do, including
me.Serious issues have been raised on both sides," he said
SLAVE LABOR: Nazi-Era Slave Laborers To Get Compensation Next Year
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Germany will have paid compensation to some 600,000 slave laborers
forced to work by the Nazi regime, by the start of next year, the
German official in charge of the financial settlement, said, according
to a recent Agence France-Presse report. The funds will be paid out to
the former slave laborers, most of them from eastern Europe, by the
"Remembrance, Responsibility and the Future" foundation, which oversees
the compensation payments.
Compensation of forced laborers employed by Hitler's Third Reich began
in Germany on June 23, more than 55 years after the fall of the Nazi
regime, when class-action suits in the United States were dropped. The
German foundation is to pay a total of $4.5 billion to up to 1.5
million surviving former slave laborers in Belarus, the Czech Republic,
Poland, Russia and Ukraine. Half the money was pledged by the Berlin
government and half by German industry. The Foundation has received
compensation claims from seven international organizations, including
the Jewish Claims Conference, which in turn distributes allocated funds
to victims. Compensation claims still may be filed until December 11.
Otto Lambsdorff, the German government's chief negotiator for the slave
labor fund, said he was confident that a controversy with Poland over
the payment of compensation could be settled soon. Jerzy Sulek,
president of the Polish foundation distributing the compensation, said
last month that the use of a historically low exchange rate of the
German mark against the zloty by the German foundation had cost Polish
victims millions in zlotys. Poland is the only country to have
compensation payments paid to victims in local currency instead of
German marks.
SRI SURGICAL: Schatz Nobel Commences Securities Suit in M.D. Florida
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Schatz and Nobel PC initiated a securities class action in the United
States District Court for the Middle District of Florida on behalf of
all persons who purchased common stock of SRI Surgical Express
Incorporated (Nasdaq: STRC) between July 23, 2001 and November 27,
2001, inclusive against the Company of two of its senior officers.
The suit alleges that, during the class period, the defendants issued a
series of press releases regarding new customer contracts and financial
results. On the strength of these positive pronouncements, the price of
Company stock traded as high as $41.00 per share.
In reality, the new contracts were causing an adverse impact of the
Company's financial condition, and revenue was being improperly
recognized. Ultimately, on November 27, 2001, the Company revealed that
it was restating the financial results for the third quarter of fiscal
year 2001 and that its outlook for the fourth quarter would be far
worse than investors had been led to believe previously. On this news,
the price per share for Company stock fell over 40%, closing at $14.63
per share on November 28, 2001.
For more information, contact Andrew M. Schatz, Patrick A. Klingman or
Wayne T. Boulton by Phone: 800.797.5499 by E-mail: sn06106@aol.com or
visit the firm's Website: http://www.snlaw.net.
SWISS BANKS: Lawyer Looking For Plaintiffs To Join Apartheid Suit
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A United States attorney who played a key role in compensation claims
by Holocaust survivors against Swiss banks is seeking plaintiffs to sue
Swiss banks that financed South Africa's former regime, according to a
recent Agence France-Presse report.
Attorney Ed Fagan recently placed advertisements in South African
newspapers, asking for possible victims of such financing to come
forward, said Le Matin. The advertisements read, "Wanted! Victims of
apartheid wishing to join class action for restitution and damages from
Swiss and European banks contact: Gloria International
Multiconsulting, Herisau, Switzerland." Norbert Gschwend, head of
Gloria International Multiconsulting, who is Mr. Fagan's partner,
confirmed the advertisements.
Mr. Gschwend said he expects hundreds of responses and hopes to file a
class action in New York within the next three months. Mr. Gschwend
said that Ed Fagan and another executive from Gloria had travelled to
South Africa to enlist the aid of non-governmental organizations. A
successful action could yield damages of between $50 million and $100
million, he predicted. Mr. Fagan has a history of endeavor in the
field of reparations. He was at the center of a successful $1.2 billion
settlement in the United States by Jewish groups, Holocaust victims and
their heirs who tried to recover bank accounts hoarded by Swiss banks
after World War II.
Le Matin reported last month that South African debt-relief campaigners
were considering lawsuits because of Swiss financial ties with
apartheid. The newspaper said that members of the South African branch
of the debt-relief group, Jubilee 2000, were considering seeking
damages from the Swiss authorities or Swiss banks because of their role
in providing loans to the apartheid regime. Jubilee 2000 has accused
Swiss banks of continuing to provide loans and servicing debts from
1986 into the early 1990s, which Jubilee believes helped the apartheid
regime to maintain its grip on power in South Africa despite
international sanctions.
Switzerland, which is not a member of the United Nations, did not take
part in the UN sanctions program against apartheid, except for the
embargo on arms sales. Swiss companies and banks openly pursued
business ties in South Africa at the time the government of that
country invoked apartheid policies.
SYCAMORE NETWORKS: Underwriters' Alleged Acts Spawn Suits in S.D. NY
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Sycamore Networks labeled "without merit" several securities class
actions commenced since July 2001 in the United States District Court
for the Southern District of New York against the Company, several of
its officers and directors and the underwriters for its initial public
offering on October 21, 1999. Some of the complaints also include the
underwriters for the Company's follow-on offering on March 14, 2000.
The suits were filed on behalf of persons who purchased the Company's
common stock during specified periods, all beginning on October 21 or
October 22, 1999 and ending on various dates, the latest of which
is August 10, 2001. The complaints are similar and allege violations of
the Securities Act of 1933, as amended, and the Securities Exchange Act
of 1934, as amended, primarily based on the assertion that the
defendants made material false and misleading statements in the
Company's prospectus. The prospectus, incorporated in its registration
statements on Form S-1 filed with the SEC in October 1999 and March
2000 fails to disclose:
(1) the alleged solicitation and receipt of excessive and
undisclosed commissions by the underwriters in connection with
the allocation of shares of common stock to certain investors
in the Company's public offerings and
(2) that certain of the underwriters allegedly had entered into
agreements with investors whereby underwriters agreed to
allocate the public offering shares in exchange for which the
investors agreed to make additional purchases of stock in the
aftermarket at pre-determined prices.
The suits allege claims against Sycamore, several of the Company's
officers and directors and the underwriters under Sections 11 and 15 of
the Securities Act. The suits further alleges claims solely against the
underwriter defendants under Section 12(a)(2) of the Securities Act and
some of the complaints allege claims against the Company and the
individual defendants under Section 10(b) of the Exchange Act.
The complaints against the Company have been consolidated into a single
action. Because the action against the Company is being coordinated
with over two hundred other nearly identical actions filed against
other companies, it is not yet clear when or whether a consolidated
complaint will be filed against Sycamore. The Company stated that it
intends to defend against the complaints vigorously. However, it is
not currently able to estimate the possibility of loss or range of
loss, if any, relating to these claims.
TD WATERHOUSE: Jeffrey Spencer Files CA Unfair Business Practices Suit
----------------------------------------------------------------------
The Law Offices of Jefrrey P. Spencer commenced a class action against
TD Waterhouse in Orange County Superior Court for the State of
California, asserting causes of action against the online brokerage
firm for breach of contract, violation of the consumer legal remedies
act, and unfair competition.
The suit alleges that Company customers were:
(1) subjected to an allegedly unfair and illegal webBroker
agreement that authorizes TD Waterhouse to terminate its
customers "for any reason;" or
(2) webBroker users that suffered damages by being wrongfully
terminated from or denied access to their webBroker accounts
for any period of time.
For more information, contact Jeffrey P. Spencer by Mail: 234322 Mill
Creek Drive, Suite 125, Laguna Hills, CA 92653 by Phone: 949.581.1751
or by Fax: 949.581.2699
TEAM COMMUNICATIONS: Enters Settlement Agreement in CA Securities Suits
-----------------------------------------------------------------------
TEAM Communications Group, Inc. (NASDAQ:TMTV) entered into a memorandum
of understanding (MOU) that settles all claims against the Company in
connection with the consolidated shareholder class action suits pending
in the United States District Court for the Central District of
California on behalf of purchasers of the Company's publicly traded
securities during the period between November 23, 1999 and February 12,
2001.
The suits name as defendants the Company, its former Chief Executive
Officer and a former Chief Financial Officer and in the United States
District Court for the Central District of California. The suits allege
violations of Section 10(b) and Rule 10b-5 thereunder, and Section
20(a) of the Securities Act of 1934. The memorandum, which is subject
to final documentation, initial court approval, notice to class
members, and final court approval, provides that all claims against the
Company will be dismissed with prejudice and that all settlement costs
will funded by insurance carriers.
Company President Jay J. Shapiro welcomed the settlement in a press
release, saying "The settlement of the shareholder class action suits
against the Company removes a major source of uncertainty surrounding
TEAM and its future.We are particularly pleased that the amount was
covered in its entirety by insurance and that the settlement was
accomplished with no significant out-of-pocket costs to the Company."
UTAH: Suit Alleges Poor Funding Undercuts Public Defenders' Efficacy
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Two indigent defendants facing murder charges in unrelated slayings
have filed a class action in Federal Court, in Weber County, Utah,
alleging the County has failed to adequately fund the Public Defenders'
Association of Weber County, reported the Associated Press recently.
The two plaintiffs, Richard Quentin Gunn, 54, and Norman Cochran, 50,
further allege that the lack of funding has deprived them of their
right to effective counsel.
The suit, filed by Michael J. Boyle, who once was Mr. Gunn's public
defender, and Daniel S. Drage, also claims that excessive caseloads
prevent defenders from conducting necessary legal research, factual
investigations and witness preparation. The lawsuit further says that
each of the nine public defenders handles thousands of cases each year,
and one part-time investigator has up to 4,000 cases each year.
The defenders' caseloads, claims the lawsuit, far exceed standards set
by the National Advisory Commission. Mr. Gunn, who is charged with
capital murder, says the lawsuit, is particularly harmed by the
inadequacies alleged, because "the workload demands of capital cases
are unique." The plaintiffs and any future plaintiffs in the suit seek
$500 for each felony client and $250 for each misdemeanor client that
the public defenders' office has represented over the past six years.
The suit names as defendants, in addition to Weber County, the county
commissioners, the commissioners' attorney, the public defenders'
office and its chairman, Michael Sterrett.
Mr. Gunn is accused in the stabbing death of former roommate Charles W.
Leff. Trial began Monday, December 10 for Mr. Cochran, who is charged
with first-degree felony murder in the shooting death of fellow
transient Edward Taplin. His public defender, Tony Miles, contends the
shooting was in self-defense.
The public defenders' office fired Michael Boyle after he filed a
motion alleging the public defender funding was so low as to be
unconstitutional. A judge removed Mr. Boyle from Mr. Gunn's defense
team after Mr. Boyle said the case load of the public defenders' office
did not allow him or any other public defender to provide Mr. Gunn with
an adequate defense.
VAN WAGONER: Ademi O'Reilly Ponder Possible Growth Fund Pricing Suit
--------------------------------------------------------------------
Ademi & O'Reilly LLP are considering the filing of a class action
against Van Wagoner Funds, Inc. due to its possible failure to value
the holdings of its Emerging Growth Fund (Nasdaq:VWEGX) in accordance
with fair pricing regulations required under the Investment Company Act
of 1940.
Despite the widespread decline of the technology sector during the
calendar year 2000, the Company did not adjust the Net Asset Values
(NAVs) of its Emerging Growth fund to discount the value of 23
investments it made through private placements. However, since the end
of calendar year, the Company has marked down the value of these
holdings by 25-100 percent, causing the fund to lose more than 60
percent of its NAV over the past year. As a consequence, the Company,
for much of 2000 and 2001, overstated its NAVs and investment returns,
causing investors purchasing shares of the Emerging Growth fund to pay
artificially inflated prices for shares.
For further details, contact Ademi & O'Reilly LLP by Phone:
866.264.3995 (toll-free) or 414.671.1000 by Fax: 414.671.1001 or by E-
mail: roreilly@ticon.net.
*SC To Set Conditions For Plaintiffs To Challenge Settlement Agreements
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The Supreme Court said it would decide the circumstances under which
some plaintiffs in a class action lawsuit can challenge a court-
approved settlement, The Wall Street Journal recently reported. The
Justices recently accepted an appeal from a retired union employee who
objected to a settlement ending a lawsuit over pension benefits. A
Federal Appeals panel in Richmond, Virginia, ruled earlier this year
that Robert J. Devlin lacked legal standing to pursue his challenge.
A high-court ruling, expected by early summer, could resolve an issue
that has left federal appellate courts at odds. Mr. Devlin's attorneys
say some circuit courts would have allowed him to press his appeal but
the Richmond Court said class members who didn't intervene in the
settlement-negotiating process should not be allowed to become "last-
minute spoilers" and unduly delay an accord. The class action arose
from efforts to cut cost-of-living increases for about 700 retired
staffers of the Transportation Communications International Union,
which represents 85,000 railroad and service industry employees.
A Federal Judge in Baltimore signed off on the agreement in November
1999, after ruling that Mr. Devlin's bid to intervene in the case came
too late. Mr. Devlin's attorneys argued that he should be allowed to
challenge the settlement regardless. They said the prospect of such
appeals by a member of the class provide "an important check on
collusive settlements by the class representative and their counsel."
(Devlin vs. Scardellett)
On the other hand, in still another class action appeal, the Supreme
Court declined to rule on whether a lower court erred by allowing a
securities fraud suit against Scholastic Corporation to proceed.
Acting without comment, however, the Supreme Court refused to revisit a
June decision by a federal appeals court in New York allowing the
class action to go forward against the New York publisher. A trial
date has not been set in this case.
Scholastic and some US accounting firms had asked the Supreme Court to
take the appeal from the appeals court in New York in order to bring
clarity and uniformity to pleading standards for class-action stock
fraud claims. Congress issued strict standards in the 1995 Securities
Litigation Reform Act, but Scholastic said courts are taking different
approaches, ranging from a strict standard in California to a lenient
stance in New York.
In Scholastic's case, shareholders in their class-action lawsuit allege
they were misled by the company's silence on slumping demand for its
once popular "Goosebumps" series. Scholastic's stock fell 40 percent
in a single day in February 1997, when it announced lower revenue and a
charge for returned merchandise, including "Goosebumps" books.
Scholastic argued that the case shouldn't proceed because plaintiffs
failed to meet pleading standards, basing their claims on "fraud by
hindsight."
Plaintiffs' attorneys said the lower court ruling wasn't out of line
with national standards and suggested it would be premature for the
high court to step in. (Scholastic Corp. vs. Truncellito)
*********
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., Trenton, New Jersey, and
Beard Group, Inc., Washington, D.C. Enid Sterling, Aurora Fatima
Antonio and Lyndsey Resnick, Editors.
Copyright 2001. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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