/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/011218.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 18, 2001, Vol. 3, No. 246 Headlines AMERICAN SEAFOOD: Judge Awards Factory Trawler Workers $1.86 Million COOPER TIRE: Lack Of "Anticipated Protections" May Quash Settlement COUNTRY INSURANCE: 20 Year-Old Agents' Suit Settlement Finally Reached DIGITAL INSIGHT: Schiffrin Barroway Lodges Securities Suit in S.D. NY DJ ORTHOPEDICS: Stull Stull Initiates Securities Suit in S.D. New York HEARST CORPORATION: Settles Private Antitrust Suits For $26 Million INDIAN FUNDS: Computer Shutdown Affects 43T Indians' Royalty Payments LEGAL NOTICE: Charles Piven Reveals Class Periods For Securities Suits LEGAL NOTICE: Brian Felgoise Posts Class Periods For Securities Suits LOGON AMERICA: Marc Henzel Commences Securities Suit in Rhode Island MANUFACTURER'S LIFE: Policyholders Allege Denied Payout in Fraud Suit NEXTCARD INC.: Kirby McInerney Initiates Securities Suit in C.D. CA PEDIATRIX MEDICAL: Settles Securities Suit For $12Mil In S.D. Florida RENT-A-CENTER INC.: EEOC Opposes $12.2M Settlement Of Gender Bias Suit SECURITIES LITIGATION: Arbitration Re Broker's Theft Yields $429M Award SOUTH AFRICA: Nevirapine Order Re Pregnant, HIV-Positive Women Issued SYMYX TECHNOLOGIES: Harvey Greenfield Files Securities Suit in S.D. NY TELECORP PCS: Schiffrin Barroway Files Securities Suit in S.D. New York TERRORIST ATTACK: Flood Of 9/11 Notices Filed, Officials Expect More TOBACCO LITIGATION: Philip Morris Sued Over Marlboro "Light" Cigarettes UTAH: Tax Commission Sued By Retirees For "Unconstitutional" Benefits XO COMMUNICATIONS: Wechsler Harwood Lodges Securities Suit in E.D VA XOMA LTD.: Faruqi Faruqi Commences Securities Suit in N.D. California XPEDIOR INC.: Schiffrin Barroway Commences Securities Suit in S.D. NY *Labor Law Interpretations, Recession Fuel Suits Seeking Overtime Pay ********* AMERICAN SEAFOOD: Judge Awards Factory Trawler Workers $1.86 Million -------------------------------------------------------------------- Federal Judge Thomas Zilly, in Seattle, recently ordered American Seafood Inc. to pay $1.86 million to 650 workers who had filed a class action against the Seattle-based company, according to an Associated Press report. The workers, who crewed aboard the company's factory trawlers during the Alaska pollock harvest in the winter of 2000, will each receive an average $2,500 under Judge Zilly's ruling. The workers' contracts tied their pay to the value and size of the catch. Judge Zilly ruled that workers did not receive their full shares and ordered the Company to pay the plaintiffs' court costs. Judge Zilly rejected other alleged contract violations, including the under-valuation of the catch and a failure to put all the contract terms in writing. Based on these claims, the workers had hoped to receive more than $20 million. COOPER TIRE: Lack Of "Anticipated Protections" May Quash Settlement ------------------------------------------------------------------- The $24 million settlement forged by Cooper Tire and Rubber Company with plaintiffs in 32 consumer class actions is in danger of collapsing, as attorneys for the plaintiffs consider pulling out of the settlement announced last month. Attorney Bruce Kaster said the settlement was "a lot of fluff - and more than $30 million is being paid to the attorneys who represented consumers." He added that there was no protection for the public in the settlement. The deal, announced in October, settled 32 class-action suits brought in state courts, accusing the Company of using certain materials and procedures in its process of manufacturing steel-belted radial tires, rendering a portion of the tires unsafe. The settlement covered all brands and models of tires the company has made since 1985, and did not involve any personal-injury or wrongful-death suits. At the time, a Cooper spokeswoman said the company considered the deal fair. Mr. Kaster initially supported the settlement, but said he was surprised when he read the final version of the agreement and realized how many anticipated protections were omitted, the Chicago Sun-Times reported. He expressed surprise that the deal does not require Findlay, Ohio-based Cooper to hire additional inspectors, to spend more time looking for defects in tires or to X-ray them for problems before they leave the plant. Mr. Kaster also revealed that he will ask a New Jersey judge to let plaintiffs pull out of the settlement next week. COUNTRY INSURANCE: 20 Year-Old Agents' Suit Settlement Finally Reached ---------------------------------------------------------------------- A group of former and current insurance agents could receive as much as $7 million from settlement of a class-action lawsuit brought against Bloomington-based Country Insurance & Financial Services, according to a recent report by The Pantagraph, Bloomington, Illinois. The suit was filed 20 years ago by 11 former insurance agents and affected agents employed between October 1971 and June 1981. Settlement became a lengthy process because of appeals regarding the class action status of the suit. The agents claimed that the company had violated their contracts by reassigning policies to other agents, thereby causing the plaintiffs to lose income. The Company settled the suit with no admittance of wrongdoing. Although confidentiality terms barred both the Company and the agents from disclosing the number of claimants, officials previously had estimated that the lawsuit involved 950 to 1,000 agents. Melinda Zehr, Company spokeswoman, said that the company decided to settle based on the uncertainty, risk and expense associated with continuing litigation. Ms. Zehr also said that payments will be issued to former and current agents who filed claims by October 4 of this year. A payment schedule was made for each type of affected policy. For instance, the formula for paying affected agents on a reassigned auto policy was based on a $10 commission fee. The lawsuit did not include life insurance policies. Robert Wells, Jr., a Belleville attorney representing the agents, said the minimum amount to be distributed will be $4.2 million. He added that some of the money has been distributed already, but declined to say how much. DIGITAL INSIGHT: 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 Digital Insight Corporation (Nasdaq: DGIN) between September 30, 1999 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 September 1999, the Company commenced an initial public offering of 3,500,000 of its shares of common stock at an offering price of $15 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 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 further details, 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 DJ ORTHOPEDICS: Stull Stull Initiates Securities Suit in S.D. New York ---------------------------------------------------------------------- Stull Stull and Brody commenced a securities class action 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 by DJ Orthopedics on or about November 15, 2001. The suit asserts claims against the Company, certain of its officers and directors and DJ Orthopedics' underwriters for violations of 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 suit 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, inter alia, 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 Tzivia Brody by Mail: 6 East 45th Street, New York, NY 10017 by Phone: 1.800.337.4983 (toll-free) by Fax: 212.490.2022 or by E-mail: SSBNY@aol.com HEARST CORPORATION: Settles Private Antitrust Suits For $26 Million ------------------------------------------------------------------- The Hearst Corporation agreed to pay $26 million to settle several private antitrust class actions accusing the Company of federal antitrust violations in its purchase of computer-database company Medi- span in 1998. The Company also entered an agreement with the Federal Trade Commission to settle federal antitrust charges by selling Multi- span and returning $19 million to customers. Medi-Span, based in Indianapolis was the only major competitor for the Company's original database company, First DataBank, according to an Associated Press report. According to the FTC, the drug databases hold comprehensive clinical and pricing information on prescription drugs. After the Company acquired Medi-Span, prices for database access were raised, sometimes doubled. To settle the charges, the Company agreed to sell Medi-Span to Facts and Comparisons, a St. Louis-based publisher of health and drug information owned by the Dutch company Wolters Kluwer, the FTC said. The settlement also required the Company to return $19 million to customers who were forced to pay the increased prices for database access. Company spokesman Paul Luthringer said the company does not admit any liability by agreeing to settle. He said that the agreement and the settlement of a related private lawsuit against the company "resolve all matters concerning the Medi-Span acquisition." The agreement, approved with a 5-0 vote, has been given to a federal judge, who must sign it before it becomes final, the agency said. In October, Hearst agreed to pay $4 million in civil penalties to settle related charges that it failed to submit certain corporate documents before it bought Medi-Span, hindering the government's ability to study the competitive effects of the sale. INDIAN FUNDS: Computer Shutdown Affects 43T Indians' Royalty Payments --------------------------------------------------------------------- US District Judge Royce C. Lamberth's recent order, which was intended to protect land royalties for the American Indians, has resulted in 43,000 Indians failing to receive payments upon which many rely, according to a recent Associated Press report. Judge Lamberth recently ordered the Interior Department to shut down Internet access to nearly the entire agency after a court-appointed investigator found that lack of computer security put the Indian trust funds at risk. The shutdown, however, has prevented the Interior Department from assessing the data needed to make payments to the Indians whose land proceeds feed into the accounts maintained on the computers. The department collects royalties from mining, grazing and timber harvesting on Indian land and makes payments to the Indian beneficiaries. About $500 million passes through the accounting system each year. Interior's spokesman John Wright said that last year payments for December totaled about $15 million. Judge Lamberth had shut down the system at the request of Dennis Gingold, who represents 300,000 Indian beneficiaries in a class action lawsuit over government mismanagement of the trust fund. Mr. Gingold now says the government is playing games with Indian money and that to not make payments to the Indian landholders two weeks before Christmas is unconscionable. "No trustee in the world acting in good faith would do what the defendants are doing to these beneficiaries and deny them the money they need to subsist," he said. The attorneys for the Interior Department and Mr. Gingold nearly struck a deal that would allow some computer systems back online. However, Assistant US Attorney Mark Nagle presented a condition, asking that Judge Lamberth drop computer security matters from the contempt proceedings against Interior Secretary Gale Norton. Mr. Gingold refused to accept the condition, arguing that such an agreement would only deal with future security, but did nothing to punish the department for past security failures. The subject of computer security had been included as an item for the contempt proceedings when Judge Lamberth discovered that many personal computers at Interior had not been shut down when he first issued the shut-down order, although these personal computers would permit access from the Internet to the Indian accounts. They were subsequently shut down when he issued a second order to include such personal computers, but not before a heated colloquy took place between Judge Lamberth and Interior's lawyers as to why he had not been told about the personal computers. Judge Lamberth has ordered the Interior Department to overhaul its system of accounting for the Indian trust funds and piece together how much of the non-accounted-for funds have been either lost, squandered, stolen, or even not collected over the years. The plaintiffs in the class action charge that more than $10 billion has been somehow lost.) However, a series of reports by court-appointed monitors have shown that the department has failed to overhaul the system or piece together what happened to the money and has misled the court about trust reform progress. Such reports were the initial basis for the contempt hearing against Secretary Norton. LEGAL NOTICE: Charles Piven Reveals Class Periods For Securities Suits ---------------------------------------------------------------------- The Law Offices Of Charles J. Piven PA initiated private securities actions on behalf of purchasers of the following securities during the following periods: Class Period CORNING, INC. Purchasers of the common stock or zero (NYSE:GLW) coupon convertible debentures pursuant to a prospectus dated November, 2000 XO COMMUNICATIONS, INC. (Nasdaq:XOXO) April 4, 2001 - November 29, 2001 TERADYNE, INC. (NYSE:TER) July 14, 2000 - October 17, 2000 AETNA, INC. (NYSE:AET) December 13, 2000 - June 7, 2001 For further details, contact Charles J. Piven PA by Mail: The World Trade Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202 by E-mail: hoffman@pivenlaw.com or by Phone: 410/986- 0036. LEGAL NOTICE: Brian Felgoise Posts Class Periods For Securities Suits --------------------------------------------------------------------- The Law Offices of Brian M. Felgoise PC filed class actions in federal courts across the country alleging violations of the federal and/or state securities laws, and that investigations of these securities law violations by the firm are underway for these corporations: Corporation Class Period StarMedia Network, Inc. (Nasdaq:STRME) 4/11/00 - 11/19/01 APW Ltd. (NYSE:APW) 9/26/00 - 3/20/00 Log On America, Inc. (OTCBB:LOAX) 4/22/99 - 11/20/00 Comverse Technology (Nasdaq:CMVT) 4/3/01 - 7/10/01 For more information, contact Brian M. Felgoise by Mail: 230 South Broad Street Suite 404 Philadelphia, PA 19102 or by E-mail: BrianFLaw@yahoo.com LOGON AMERICA: Marc Henzel Commences Securities Suit in Rhode Island -------------------------------------------------------------------- The Law Office of Marc S. Henzel initiated a securities class action in the United States District Court for the District of Rhode Island, on behalf of purchasers of Log On America, Inc. (OTC Bulletin Board: LOAX) securities between April 22, 1999 and November 20, 2000, inclusive. The suit lists claims against the Company and: (1) David R. Paolo, Chairman, Chief Executive Officer and founder, and (2) Kenneth M. Cornell, Chief Financial Officer 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, among other things, the Company was on track to achieve the goals of its business plan and that it was successfully growing its service offerings and customer base through its numerous acquisitions. The suit alleges that these statements were materially false and misleading because, among other things, they failed to disclose or misrepresented: (i) that the revenues the Company was generating from its customer base, which was predominantly consumer-focused, were not sufficient to offset the extensive capital costs that the Company was incurring in order to build out its network and provision its products; (ii) that the Company's "growth-by-acquisition" strategy was not meeting with success as the Company had acquired a collection of disparate businesses which it was unable to effectively integrate into its existing business; (iii) that the Company was experiencing weakening demand for its products and services and was attempting to transition into different markets in order to reinvigorate its sales growth; and (iv) that as a result of the foregoing adverse factors, the Company would not be profitable in the near-term, if at all, and would have to completely restructure its operations and slash costs. For more information, contact Marc S. Henzel by Mail: 273 Montgomery Ave, Suite 202 Bala Cynwyd, PA 19004-2808 by Phone: 888.643.6735 or 610.660.8000 by Fax: 610.660.8080 by E-mail: Mhenzel182@aol.com or visit the firm's Website: http://members.aol.com/mhenzel182. MANUFACTURER'S LIFE: Policyholders Allege Denied Payout in Fraud Suit --------------------------------------------------------------------- A group of former policyholders of Manufacturers Life Insurance Company has filed a class action lawsuit, in Ontario's Superior Court, against the company, seeking $150 million in damages. The policyholders allege breach of fiduciary duty and negligence by the defendant insurer and that they were wrongfully excluded when the insurer de-mutualized in 1999. The shareholders, most of whom are based in the Barbados, include the country's former Supervisor of Insurance. According to the statement of claim, the Company was contemplating de-mutualization when it hired Dominic D'Alessandro away from Laurentian Bank in 1994 to be its president and chief executive. Under de-mutualization, the insurer would place a value on the company and distribute that value to the policyholders, who were the owners under the old structure. The shares would then be publicly traded. Subsequently, the Company reached a deal to sell its Barbadian business to Life of Barbados Ltd., which had been administering the policies. The Canadian insurer had been gearing down its business in the Barbados for several years. The lawsuit alleges that the Company told Barbadian regulatory officials at the time that it had no plans to de-mutualize, even though it had been actively lobbying Ottawa to permit it to de-mutualize since 1992. Large insurers in other countries had already begun the process. "At a hearing before the Supervisor of Insurance of Barbados, on November 14, 1996, Mr. Geoffrey Guy, Chief Actuary of Manulife, attended and advised that Manulife had no plan or intention to de- mutualize," the suit alleges. The sale received the requisite regulatory approval. Policyholders, according to the lawsuit, were not consulted. In December 1996, the Company's 13,621 Barbadian policies were sold and those policyholders became ineligible to benefit from any eventual de-mutualization. However , the suit alleges, on the same day, the Company transferred policies of US policyholders to Manulife USA, thereby preserving their rights. A year earlier, it had transferred Hong Kong policyholders to Manulife International, which put them in a position to profit. When Manulife de-mutualized in 1999, policyholders received an average of $15,000 in shares of the newly listed company. The former policyholders in Barbados, at least one of whom had held his policy since 1961 received nothing. Through its actions, the company "disenfranchised and expropriated" the interests of people who were "among the poorest and most vulnerable of all Manulife's policyholders," states the lawsuit. "We are confident there will be no liability," Peter Fuchs, a Company spokesman, said recently. "It is expected to be several months before we see any developments in the case. There has been no court ruling on whether the claim can be pursued as a class action." NEXTCARD INC.: Kirby McInerney Initiates Securities Suit in C.D. CA ------------------------------------------------------------------- Kirby McInerney & Squire has extended the class period in the securities class action pending in the United States District Court for the Central District of California charging NextCard, Inc. (NASDAQ: NXCD), as well as its Chief Executive Officer, with violations of federal securities laws. The action asserts claims on behalf of all purchasers of the Company's stock between March 30, 2000 and October 30, 2001. The suit charges the defendants with violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, arising from the dissemination of materially false and misleading financial statements throughout the class period. The complaint alleges that the Company and several top officers disseminated false and misleading information about its capitalization in its filings with the Securities and Exchange Commission for its fiscal year of 2000 and for part of 2001. Throughout the class period, the Company repeatedly described NextBank (its wholly-owned operating subsidiary) in SEC filings as "well capitalized", although in fact it was in fact "significantly undercapitalized." The Company maintained this false "well capitalized" status by improperly classifying credit losses as fraud losses. In the third quarter of 2001, federal regulators put an abrupt halt to these misleading practices, forcing the company to reclassify its fraud losses as credit losses and to increase its allowances for loan losses. Once the credit losses were properly categorized, NextBank became "significantly undercapitalized" - a full $140 million below the level required for "well capitalized" status. On October 31, 2001, when the company abruptly revealed that it was unable to provide the needed capital to Nextbank and could no longer operate on its own, Company stock plummeted from a closing price of $5.35 per share on October 30 to a closing price of $0.87 the next day. For further details, contact Orie Braun by Phone: 888.529.4787 (toll- free) or by E-mail: obraun@kmslaw.com. PEDIATRIX MEDICAL: Settles Securities Suit For $12Mil In S.D. Florida --------------------------------------------------------------------- Pediatrix Medical Group Inc. (NYSE:PDX) settled for $12 million a securities class action pending against the Company and three of its principal officers in the United States District Court for the Southern District of Florida on behalf of all open market purchasers of the Company's common stock between March 31, 1997, and various dates through and including April 2, 1999. The suit alleges that during the class period, the Company violated the antifraud provisions of the federal securities laws by issuing false and misleading statements concerning its billing practices and results of operations. The Company continued to deny wrongdoing in the suit, and said it will take a fourth-quarter charge of about $750,000 for expenses from the litigation, while insurance policies will cover all other amounts relating to it. RENT-A-CENTER INC.: EEOC Opposes $12.2M Settlement Of Gender Bias Suit ---------------------------------------------------------------------- The Equal Opportunity Commission has filed a court brief against Rent- A-Center Inc.'s proposed $12.2 settlement of a gender-discrimination class action, saying in a prepared statement, that "there are serious unresolved questions" about whether the women who agreed, in October, to accept the settlement can fairly and adequately look out for the interests of thousands of other women." The suit alleges that after Renters Choice acquired 1,400 Rent-A-Center stores and assumed the name of Rent-A-Center, the new company systematically eliminated women from its work force. The Plano, Texas- based rent-to-own home furnishings retailer responded in a statement that it "vigorously disagrees" with the Commission's characterization of the settlement, saying notices have been mailed to 4,600 eligible class members regarding the settlement. The Company took a third-quarter pretax charge of $16 million to cover the proposed settlement, which included $3.75 million for attorney's fees. The Commission filed two related lawsuits against the Company in Illinois and Tennessee. SECURITIES LITIGATION: Arbitration Re Broker's Theft Yields $429M Award ----------------------------------------------------------------------- After holding hearings in Houston, an arbitration panel of the New York Stock Exchange awarded $429 million to investors who claim they were bilked by a stockbroker who plundered their accounts, according to the Houston Chronicle. The suit was filed on behalf of investors by Houston attorneys Ralph Midkiff and John O'Neill against broker Enrigue Perusquia, who was a broker for Paine Webber and Lehman Brothers in New York and San Francisco. According to the arbitration panel, Mr. Perusquia "committed acts of fraud, forgery, breach of fiduciary duty, embezzlement, self-dealing and other heinous acts." Paine Webber and Lehman Brothers were not part of the arbitration case that resulted in the $429 million award. Disputes between the clients and brokerage houses have been settled confidentially. None of the clients involved in the case lived in Houston. Messrs. Midkiff and O'Neill represented about a dozen investors, some who live in Mexico, and came to Houston to hire lawyers to pursue the case under the US legal system. Mr. Midkiff and Mr. O'Neill said the award was the largest securities arbitration award ever given to a group of individual investors who were not part of a class action. Mr. Midkiff said the investors were robbed over a four-year period during the 1990s. SOUTH AFRICA: Nevirapine Order Re Pregnant, HIV-Positive Women Issued --------------------------------------------------------------------- South Africa High Court Judge Chris Botha ordered South African health officials to provide HIV-positive pregnant women with nevirapine, a key anti-AIDS drug that reduces the chance the HIV virus will be transmitted to unborn children, in a class action brought by pediatricians and AIDS activists, the Washington Post reported. Advocacy group Treatment Action Campaign filed the suit challenging government policy providing nevirapine only to 18 pilot sites. The suit contends that the policy was discriminating to mothers who gave birth elsewhere. One in nine South Africans, 4.2 million people, are estimated to be infected with the virus that causes AIDS, a higher ratio than any other country, and 70,000 babies are born with HIV every month. South African President Thabo Meki and his ruling party, the African National Congress (ANC), have regarded anti-AIDS medicine with suspicion, even after defeating a legal challenge by the world's 39 largest pharmaceutical companies to this country's efforts to import cheap, generic versions of costly, patented medicines eight months ago. Government officials also failed to reach an agreement with either international drug companies or generic suppliers to provide the antiretroviral medicines that slow the spread of the disease and reduce its transmission from infected mothers to their unborn babies by as much as half. The government has contended that nevirapine, is unproven and that it would be impractical to administer it to women without drastically improving the quality of care available at state hospitals. Earlier this month, Nono Simelela, head of the national HIV/AIDS program, testified that it would be irresponsible to expand the pilot project before it had been established that nevirapine's side effects are less toxic than the disease. Officials also asserted that such a comprehensive effort is impractical in a country where many poor rural women lack money for milk, baby formula, refrigeration or even electricity and resort to breast- feeding, which can infect infants with HIV even after the nevirapine course has been administered. Judge Botha rejected these assertions in his 72-page ruling, saying that the ANC had not complied with its constitutional obligation to provide health care for all South Africans. He noted that treatment requires only two doses of nevirapine at a cost of less than $1 per dose. Moreover, he said, studies show that nevirapine's toxic side effects are associated only with long-term usage, not with the one-time course prescribed to prevent mother-to-child transmission. He ordered health officials to return to court by March 31 to present plans for a nationwide treatment program to include counseling, HIV testing and the distribution of baby formula, for women who give birth in public hospitals. In his ruling, Judge Botha declared "About one thing there must be no misunderstanding: A countrywide (mother- to-child transmission) prevention (program) is an ineluctable obligation of the state.It is clear that with nevirapine it is affordable." Mark Heywood, National Secretary of the Treatment Action Campaign, hailed the decision, saying "This is a very important victory, a great step forward.The judge granted everything that the TAC sought. He ordered that nevirapine be made available at health facilities across the country." It is unknown whether the South African government will appeal Judge Botha's decision to the Supreme Court. SYMYX TECHNOLOGIES: Harvey Greenfield Files Securities Suit in S.D. NY ---------------------------------------------------------------------- The Law Firm of Harvey Greenfield commenced a securities class action on behalf of purchasers of the securities of Symyx Technologies, Inc. (NASDAQ:SMMX) between November 18, 1999 and December 6, 2000, inclusive in the United States District Court, Southern District of New York against defendants: (1) Credit Suisse First Boston Corporation, (2) Steven D. Golby, Chairman and CEO, and (3) Jeryl L. Hilleman, Senior Vice President and CFO. 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 November 1999, the Company commenced an initial public offering of 5,538,000 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) CSFB had solicited and received excessive and undisclosed commissions from certain investors in exchange for which CSFB allocated to those investors material portions of the restricted number of Company shares issued in connection with the IPO; and (ii) CSFB had entered into agreements with customers whereby CSFB 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 Harvey Greenfield by Mail: 60 East 42nd Street, Suite 2001, New York, NY, 10165 by Phone: 212.949.5500 by Fax: 212.949.0049 or by E-mail: harvey.greenfield@verizon.net. TELECORP PCS: Schiffrin Barroway Files Securities Suit in S.D. New York ----------------------------------------------------------------------- Schiffrin Barroway initiated a securities class action on behalf of purchasers of the common stock of TeleCorp PCS, Inc. (Nasdaq: TLCP) between November 22, 1999 and December 6, 2000, inclusive 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 November 1999, the Company commenced an initial public offering of 9,200,000 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 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 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 further details, 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 TERRORIST ATTACK: Flood Of 9/11 Notices Filed, Officials Expect More --------------------------------------------------------------------- More than 135 notices of potential lawsuits against New York City have been filed, stemming from the destruction wrought by the September 11 terrorist attack. City officials told the New York Post that they expect hundreds more will arise in the coming weeks. Of the claims filed, one half are for wrongful-death cases, David Neustadt, spokesman for City Comptroller Alan Hevesi, said. The rest are mostly from service personnel who were at ground zero when the Twin Towers collapsed or who helped with the clean up and rescue efforts. Mr. Neustadt mentioned claims such as "negligence" due to the dangerous levels of toxins at the site and class action type claims on behalf of people who lost loved ones. It was unclear how many more claims have been filed, but not yet processed, according to the New York Post. However, officials said there is a pile of about 500 claims waiting to be sifted through, about 400 more than the office usually has at one time, meaning all of those could be WTC-related. Notices of claim don't always translate into lawsuits, however they preserve someone's right to sue the city, and they must be filed within three months of an incident. City officials have said they won't strictly impose the three-month limit on claims, but will let judges decide whether to toss them out. However the suits may face numerous legal tangles in court because the government has taken steps to minimize legal action stemming from the tragedy. President Bush created a "superfund" to provide for the victims of the tragedy, as an alternative to filing suits against airlines and other entities. Lawyer Kenneth Feinberg has been chosen to administer the fund. Additionally, Congress approved sweeping federal airport-security legislation last month that limits liability for damages. This legislation included provisions that cap liability for recovery work at ground zero, which protects the city and the Port Authority. The legislation also protects Larry Silverstein, a real estate developer who leased the WTC center just two months before the tragedy, by providing Mr. Silverstein a cap for damages. He sought the provision because of fears that wrongful-death suits could slow the pace of redevelopment at the site. TOBACCO LITIGATION: Philip Morris Sued Over Marlboro "Light" Cigarettes ----------------------------------------------------------------------- Palm Beach Circuit Judge Lucy C. Brown heard arguments recently as to whether the lawsuit filed by the smokers in Florida who smoked Marlboro Lights or Marlboro Ultra-Lights meets the qualifications of a class action. If the Judge rules that it does not, the plaintiffs will not be permitted to proceed with the class action against the cigarette maker, and the lawsuit dies, the South Florida Sun-Sentinel recently reported. This case, filed in February by lawyers around the country, is one of 12 potential class actions against Philip Morris in connection with its "light" products. Similar lawsuits against Philip Morris have been certified as class actions in Massachusetts and Illinois. A decision is pending in New Jersey, and a Pennsylvania judge has denied a related class action. The smokers contend Philip Morris deceived them by allegedly persuading people to switch to so-called light cigarettes rather than quit. The lawsuit claims the switch did not alter the health risks of smoking. It points to studies that show people who smoke light cigarettes compensate for lower nicotine levels by smoking more, inhaling harder and more frequently, or covering up vent holes in the filters. A new study released last month by the University of California at San Diego, showed "light" cigarettes have not measurably improved public health in the past 30 years or lowered older smokers' risk of lung cancer. Plaintiffs' attorney Gary Farmer argued that the light cigarettes were designed to deliver as much tar and nicotine as regular cigarettes and that Philip Morris engaged in deceptive trade practices in marketing the brands. Philip Morris attorneys argued that because each smoker inhales differently, the amount of tar and nicotine taken into each smoker's lungs is different. Therefore, all the smokers' claims should be tried separately, rather than lumped together in a class action, the attorneys said. Philip Morris attorney Robert Heim told the judge that the cigarettes delivered what was advertised. "They get lower tar and nicotine. They got what they paid for," he said. The tobacco companies have argued that they are exempt from being sued in light cigarette cases because health warnings mandated by Congress are printed on every pack. The companies contend that the warning should allow them to promote their product. The US Supreme Court has ruled that tobacco companies cannot be held liable for not doing more to warn about the risks of smoking than what Congress ordered under the Federal Cigarette Labeling Act. UTAH: Tax Commission Sued By Retirees For "Unconstitutional" Benefits --------------------------------------------------------------------- Two federal retirees recently filed a class-action lawsuit, in the 3rd District Court, against the Utah State Tax Commission, on behalf of themselves and as many as 30,000 other Utah residents, claiming some state retirees' benefits are unconstitutional, the Associated Press recently reported. The complaint of Richard C. Thompson and Paul C. Jensen, the two lead plaintiffs, stems from a 10-year-old Utah case brought by federal retirees after the U.S. Supreme Court, in a case originally filed in Virginia, ruled that states could tax federal retirement benefits only if state workers were treated the same. In 1990, based on that ruling by the high court, as many as 34,000 retired federal workers in Utah joined a different class-action lawsuit seeking state tax refunds for taxes they had paid on their federal pensions. The Utah State Supreme Court remanded that case back to District court, and both sides settled for $64 million. The state legislature then moved to impose taxes on the pensions of retired state workers. However, the legislature offset that action to some degree by increasing the retirement benefits paid, reasoning that many state employees had retired before 1989 with the understanding that their pensions would not be taxed. The suit filed by Messrs. Thompson and Jensen calls the increased benefits a "rebate" that federal retirees did not receive. They assert therefore, that the three percent increase in state retiree benefits amounts to an "impermissible discriminatory tax" imposed on federal retirees. The current lawsuit seeks a refund of the "illegal tax" that Messrs. Thompson and Jensen paid in the years 1999 and 2000 in the amount of the "rebate" given to state government retirees, along with pre- and post judgment interest. The lawsuit asks that other federal retirees in similar situations receive the same sort of refund and interest payments. The Tax Commission has rejected the refunds sought by the lead plaintiffs. Tax Commission officials declined to discuss the case. "We don't comment on pending litigation," said Janice Gully, spokeswoman for the Utah Tax Commission. XO COMMUNICATIONS: Wechsler Harwood Lodges Securities Suit in E.D VA -------------------------------------------------------------------- Wechsler Harwood Halebian & Feffer LLP initiated a securities class action in the United States District Court for the Eastern District of Virginia, on behalf of purchasers of XO Communications, Inc. (Nasdaq: XOXO) common stock between April 4, 2001 and November 29, 2001, inclusive against: (1) Daniel F. Akerson, Chief Executive Officer and Chairman of the Board of Directors, (2) Nathaniel A. Davis, President, Chief Operating Officer and Director, (3) Craig O. McCaw, the Company's founder, controlling shareholder, and Director The suit charges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by, among other things, issuing false and misleading statements regarding the Company's financial condition as well as its present and future business operations. In particular, the suit alleges that defendants misled the investing public concerning the Company's ability to finance its business operations until it becomes cash- flow positive. Throughout the class period, defendants stated that the Company had sufficient cash to survive at least into mid 2003 without the need for further financing. These statements were false, and on November 29, 2001, defendants announced a transaction where the shareholders' equity was destroyed in exchange for a cash infusion of $800 million. Trading in the Company's stock was immediately halted. For more information, contact Craig Lowther by Mail: 488 Madison Avenue 8th Floor New York, New York 10022 by Phone: 877.935.7400 (toll free) by E-mail: clowther@whhf.com or visit the firm's Website: http://www.whhf.com XOMA LTD.: Faruqi Faruqi Commences Securities Suit in N.D. California --------------------------------------------------------------------- Faruqi and Faruqi LLP initiated a securities class action in the United States District Court for the Northern District of California on behalf of all purchasers of Xoma, Ltd. (Nasdaq:XOMA) stock between May 24, 2001 and October 4, 2001, including those persons who purchased shares in or traceable to the Company's June 26, 2001 offering of three million shares. The suit charges defendants with violations of federal securities laws by, among other things, issuing a series of materially false and misleading press releases concerning its plans to file a Food and Drug Administration application for Xanelim, an experimental psoriasis drug the Company was co-developing with Genentech Inc. Specifically, the complaint alleges that defendants caused the two Companies, as co-developers of the psoriasis drug Xanelim, to repeatedly tell investors that the Company intended to file its Biologics Licensing Application (BLA) with the Food and Drug Administration (FDA) by the end of 2001 or first quarter of 2002. The timing of the BLA filing was material to investors because the prompt filing would allow Xanelim to reach the market faster than its competitors and thereby gain greater market share. As a result, the price of the Company's common stock was artificially inflated throughout the class period. On October 4, 2001, after the market closed, the Company issued a press release disclosing for the first time that it would not file the BLA until the summer of 2002 at the earliest. The next day the price of Company stock fell as low as $6.40 from a closing price of $9.76 per share a day earlier. For more information, contact Anthony Vozzolo by Mail: 320 East 39th Street, New York, NY 10016 by Phone: 877.247.4292 or 212.983.9330 by E- mail: Avozz@faruqilaw.com or visit the firm's Website: http://www.faruqilaw.com XPEDIOR INC.: Schiffrin Barroway Commences Securities Suit in S.D. NY --------------------------------------------------------------------- Schiffrin Barroway LLP initiated a securities class action on behalf of purchasers of the common stock of Xpedior, Inc. (formerly Nasdaq: XPDR) between December 15, 1999 and December 6, 2000, inclusive. The lawsuit was filed 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 December 1999, the Company commenced an initial public offering of 8,535,000 of its shares of common stock at an offering price of $19 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 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 further details, 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 *Labor Law Interpretations, Recession Fuel Suits Seeking Overtime Pay --------------------------------------------------------------------- Questions about who is legally entitled to overtime pay has come to the public's attention recently because of the wave of class actions seeking overtime pay filed against big companies like Starbucks, Wal- mart, Pizza Hut and U-Haul. Miami labor lawyer Mark Cheskin has told the New York Times that class-action lawsuits at his practice have gone up close to 10 percent over the last year. According to Jerry M. Newman, Professor of Organization and Human Resources at the University of Buffalo, says one factor behind the trend is the team-building craze of recent years that blurred the lines between workers and managers. "In a team, there's a lot more sharing of responsibilities and less care is paid to who's the manager and who isn't," He said. Recent labor shortages in some industries have also fueled the suits, forcing more managers to take on rank-and-file tasks. With the economy now in recession, companies are further fueling worker discontent with layoffs and reduced paid overtime. According to Bill Coleman, Senior Vice President for Compensation at Salary.com, a salary comparison Website, more and more people are wondering whether they were really exempt from overtime pay. "The average employee doesn't know the ins and outs of overtime," he told the New York Times. Mr. Cheskin cites as example a suit filed by a former store manager of one of the companies he represents. The ex-manager claimed that he was not a manager, even though he supervised about 100 people and 4 departments, because he mostly helped customers, cleaned the work site and stocked inventory, according to a Times report. Mr. Coleman said that misinterpretations of the 1938 Federal Fair Labor Standards Act that governs overtime pay has also led to the increase of overtime class actions. The act outlines four types of employees who can be exempted from overtime-pay requirements: (1) executives who manage some part of a company's business and have the authority to hire and fire workers; (2) administrators who perform non-manual work and exercise some independent judgment; (3) professionals, like lawyers and accountants; and (4) traveling sales representatives Mr. Coleman asserts the act "is universally misunderstood." While the act offers detailed descriptions, the actual decisions on who is really exempt are open to interpretation by the courts or by Labor Department investigators. State labor laws can also come into play. California, for example, is thought to have the most employee-friendly overtime laws, which state that employees are exempt from the overtime rule only if they spend more than half their time on exempt duties that require them to use their own discretion and judgment, according to experts. A prominent case is the one filed by claims adjusters at Farmers Insurance Exchange, a unit of the Los Angeles- based Farmers Insurance Group, whom the company classified as exempt from overtime. In July, a jury ruled for the workers, awarding the workers $90 million after ruling that the Company did not pay them overtime. In their decision, the jury noted that the adjusters had "no formal advisory role" in managing business functions or making corporate policy. The company has said it would appeal the case. Another case is pending in Tennessee against the Tennessee Valley Authority, the largest public power utility, alleging the company eliminated overtime wages. In October, the Sixth Circuit Appellate court found that the shift supervisors at Tennessee Valley who were part of the suit "did spend some of their time supervising employees," but "this supervision was not managerial in nature because they had no control over the people they supervised." The appeals court upheld a lower court's decision in 1999 to award the workers more than $500,000 in back overtime pay. ********* 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 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 * * *