/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/011227.mbx C L A S S A C T I O N R E P O R T E R Thursday, December 27, 2001, Vol. 3, No. 252 Headlines APROPOS TECHNOLOGY: Mark McNair Initiates Securities Suit in N.D. IL CELLSTAR CORPORATION: Asks Florida Court To Dismiss Securities Suit CHECK CASHING: GA Woman Sues Loan Firms For Charging Usurious Interest COPPER MOUNTAIN: Milberg Weiss Initiates Securities Suit in S.D. NY CORNING INC.: Milberg Weiss Initiates Securities Suit in W.D. New York CORNING INC.: Wechsler Harwood Commences Securities Suit in W.D. NY DALEEN TECHNOLOGIES: Milberg Weiss Commences Securities Suit in S.D. NY DJ ORTHOPEDICS: Sued For Securities Violations in NY, CA Federal Court ENRON CORPORATION: Former CFO Pleads 5th Amendment In SEC Investigation INSURANCE CLAIMS: Armenians Prevail as CA Court Refuses To Dismiss Suit JOBE CONCRETE: Court Says Plaintiffs Must Pursue Claims Individually NEW ORLEANS: Women Sue Football Team For Gender Bias, Sexual Harassment NEXTEL PARTNERS: Milberg Weiss Initiates Securities Suit in S.D. NY OK TEDI: Campaign Asking Plaintiffs To Opt-Out of Settlement Stopped PETCO ANIMAL: Former Employees File Suit Seeking Overtime Wages in CA SYMYX TECHNOLOGIES: Milberg Weiss Commences Securities Suit in S.D. NY TAKE-TWO INTERACTIVE: Wolf Popper Commences Securities Suit in S.D. NY TERADYNE INC.: Acquisition Allegations Foster Securities Suits in MA TYSON FOODS: Denies Charges In Grand Lake Homeowners' Pollution Suit UNITED STATES: Census Workers Sue Dept of Commerce For Overtime Pay WESTAR COMMUNICATIONS: Court Refuses To Certify Former Mayor's Suit XOMA LTD.: Mark McNair Commences Securities Suit in N.D. California *Lawyers Mull Challenge To California's Unfair Business Practice Law *NY Judge Orders Parties in Massive IPO Suits To Set Up Common Website ********* APROPOS TECHNOLOGY: Mark McNair Initiates Securities Suit in N.D. IL -------------------------------------------------------------------- The Law Office of Mark McNair commenced a securities class action against Apropos Technology, Inc. (Nasdaq: APRS) in the United States District Court for the Northern District of Illinois on behalf of shareholders who purchased Company shares in its February 17, 2000 public offering or on the open market through April 10, 2001. The suit alleges that the prospectus for the February 17, 2000 offering falsely stated that co-founders Patrick K. Brady and William W. Bach were active members of its executive management team. In fact, these individuals had stopped playing important roles in the Company months before the prospectus was issued. Unaware of these developments, investors thought that Mr. Brady and Mr. Bach, who developed and patented the Company's technology, still had an active role in this business. As a result of these misrepresentations, investors who purchased during the class period lost tens of millions of dollars. For further details, contact Mark McNair by Mail: 1101 30th Street N.W. Suite 500, Washington, D.C, 20007 by Phone: 877.511.4717 or 202.872.4717 by E-mail: mcnair@justice4investors.com or visit the firm's Website: http://www.justice4investors.com. CELLSTAR CORPORATION: Asks Florida Court To Dismiss Securities Suit ------------------------------------------------------------------- Cellstar Corporation has asked the United States District Court for the Southern District of Florida to dismiss a second amended and consolidated securities suit filed on behalf of purchasers of the Company's publicly traded securities during the period from March 19, 1998 to September 21, 1998. The amended suit, arose from seven purported class actions commenced in May 1999, styled as: (1) Elfie Echavarri v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, (2) Mark Krug v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, (3) Jewell Wright v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, (4) Theodore Weiss v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, (5) Tony LaBella v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, (6) Thomas E. Petrone v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins, and (7) Adele Brody v. CellStar Corporation, Alan H. Goldfield, Richard M. Gozia and Mark Q. Huggins The suits allege that the Company issued a series of materially false and misleading statements concerning its results of operations and the Company's investment in Topp Telecoms, Inc., resulting in violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 as amended, and Rule 10b-5 promulgated thereunder. The suits were later consolidated. The Company filed a motion to dismiss the consolidated complaint, and the Court granted that motion on August 3, 2000. The plaintiffs filed a second amended and consolidated complaint on September 1, 2000, essentially re-alleging the violations of Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder. The Company promptly filed a motion to dismiss the suit. In a disclosure to the Securities and Exchange Commission, the Company said it has fully complied with all applicable securities laws and regulations and that it has meritorious defenses to the allegations made in the suit. The Company intends to vigorously defend the consolidated action if its motion to dismiss is denied. CHECK CASHING: GA Woman Sues Loan Firms For Charging Usurious Interest ---------------------------------------------------------------------- Six firms doing business under the name The Check Cashing Stores faces a class action in Sebastian County Circuit Court, alleging the firms misled customers and charged illegal interest upon the unsuspecting. Fort Smith resident Ladonna Payte filed the suit against the stores and Larry A. Cotton, agent for firms, after paying more than $1,500 in interest on several loans she took out from the stores. She alleged that the firms charged customers with usurious, or illegal, interest rates while holding personal checks as collateral. She further charged the firms sought to skirt the law through misleading terminology. "Service charges" and "finance charges" are reportedly replacement names for interest charged for regular loans made through conventional lending institutions. Her lawsuit further says "The customer is instructed to return to (the) business at the end of the loan term to redeem the loan for the full face amount of the check. In the alternative, the customer is given the option of renewing the loan by paying only the interest, or service charge, on the original loan and presenting a new check for the original amount of cash received by the customer, plus an additional service charge for the extended term. The.service charge is as high as $15 for each $100 that is loaned to the customer." These interest rates allegedly exceeded the maximum lawful rate set forth in the Arkansas Constitution, ranging from 300% to 720%. Payte stated in the lawsuit that she "reached a point where she could not continue to pay the defendants' fees." Representatives of The Check Cashing Store refused to comment on the case, saying they have not seen the lawsuit. COPPER MOUNTAIN: Milberg Weiss Initiates Securities Suit in S.D. NY ------------------------------------------------------------------- Milberg Weiss Bershad Hynes and Lerach LLP initiated a securities class action on behalf of purchasers of the securities of Copper Mountain Networks, Inc. (NASDAQ: CMTN) between May 12, 1999 and December 6, 2000, inclusive. The suit is pending in the United States District Court, Southern District of New York against the Company and: (1) Morgan Stanley & Co. Incorporated, (2) BancBoston Robertson Stephens, Inc., (3) Hambrecht & Quist LLC, (4) Richard S. Gilbert, (5) John A. Creelman and (6) Joseph D. Markee 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 May 1999, the Company commenced an initial public offering of 4,000,000 of its shares of common stock at an offering price of $21 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 underwriter defendants had solicited and received excessive and undisclosed commissions from certain investors in exchange for which they allocated to those investors material portions of the restricted number of shares issued in connection with the IPO; and (ii) the underwriter defendants had entered into agreements with customers whereby the underwriter defendants 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 Steven G. Schulman or Samuel H. Rudman by Phone: 800.320.5081 or visit the firm's Website: http://www.milberg.com CORNING INC.: Milberg Weiss Initiates Securities Suit in W.D. New York ---------------------------------------------------------------------- Milberg Weiss Bershad Hynes & Lerach LLP commenced a securities class action on behalf of purchasers of the common stock or zero coupon convertible debentures of Corning, Inc. (NYSE: GLW) pursuant to a prospectus dated November 3, 2000. The suit is pending in the United States District Court, Western District of New York against the Company and: (1) Roger A. Ackerman, (2) Katherine A. Asbeck and (3) James B. Flaws 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 complaint alleges that the prospectus was materially false and misleading, among other reasons, because: (i) it stated that demand for the Company's products was robust; (ii) it omitted to disclose that the Company was amassing hundreds of millions of dollars of obsolete inventory that would have to be written-off; and (iii) 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. Company shares closed that day at $13.77, down 80% from the offering price. For further details, contact Steven G. Schulman or Samuel H. Rudman by Phone: 800.320.5081 by E-mail: corningcase@milbergNY.com or visit the firm's Website: http://www.milberg.com CORNING INC.: Wechsler Harwood Commences Securities Suit in W.D. NY ------------------------------------------------------------------- Wechsler Harwood Halebian & Feffer LLP initiated a securities class action on behalf of all purchasers of the common stock of Corning, Inc. (NYSE: GLW) pursuant to the November 2, 2000 prospectus in the United States District Court for the Western District of New York. 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 complaint alleges that the prospectus was materially false and misleading, among other reasons, because: (1) it stated that demand for the Company's products was robust; (2) it omitted to disclose that the Company was amassing hundreds of millions of dollars of obsolete inventory that would have to be written-off; and (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. The Company later reported a massive second-quarter loss of $4.76 billion, or $5.13 per share. Company shares closed that day at $13.77, down 80% from the offering price. For more information, contact David Leifer by Mail: 488 Madison Avenue 8th Floor New York, New York 10022 by Phone: 877.935.7400 (Toll Free) or by E-mail: dleifer@whhf.com DALEEN TECHNOLOGIES: Milberg Weiss Commences Securities Suit in S.D. NY ----------------------------------------------------------------------- Milberg Weiss Bershad Hynes and Lerach LLP initiated a securities class action on behalf of purchasers of the securities of Daleen Technologies, Inc. (NASDAQ: DALN) 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 and: (1) James Daleen, (2) David B. Corey, (3) Richard A. Schell, (4) BancBoston Robertson Stephens Inc., (5) Hambrecht & Quist LLC and (6) Salomon Smith Barney Inc. 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 4,100,000 of its shares of common stock at an offering price of $12 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 underwriter defendants had solicited and received excessive and undisclosed commissions from certain investors in exchange for which they allocated to those investors material portions of the restricted number of shares issued in connection with the IPO; and (ii) the underwriter defendants had entered into agreements with customers whereby they 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 information, 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 or visit the firm's Website: http://www.milberg.com DJ ORTHOPEDICS: Sued For Securities Violations in NY, CA Federal Court ---------------------------------------------------------------------- DJ Orthopedics, Inc. faces several securities class actions filed in New York and California federal courts accusing the company, several of its officers and directors and its underwriters of violations of federal securities laws. The suits were commenced in November 2001, on behalf of purchasers of the Company's stock pursuant to or traceable to its initial public offering. The suit alleges causes of action for violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, based on, among other things, supposed materially false and misleading statements and omissions in the registration statement and prospectus for the initial public offering. The suits were commenced in the United States District Courts for the Southern District of California and the Southern District of New York, as: (1) Kaysen V. Cross, et al., in the Southern District of New York, (2) Steinberg V. Cross, et al., in the Southern District of New York, (3) East Side Holdings Eleven Ltd. V. Cross, et al., in the Southern District of New York, (4) Beverly V. Cross, et al., in the Southern District of New York, (5) Wessel V. Cross, et al., in the Southern District of New York, (6) Larky V. DJ Orthopedics, Inc., et al., filed in the Southern District of California, and (7) Green V. DJ Orthopedics, Inc., et al., filed in the Southern District of California The Company has also been aware of reports in the news media of the filing of two other actions purportedly containing similar allegations, but has not yet seen either of the complaints. The Company said it believes that all of the actions' allegations lack merit and intends to defend the actions vigorously. ENRON CORPORATION: Former CFO Pleads 5th Amendment In SEC Investigation ----------------------------------------------------------------------- Andrew Fastow, Enron Corporation's former chief financial officer, recently invoked the Fifth Amendment and refused to answer questions from regulators when he met with the staff of the Securities and Exchange Commission, the National Post recently reported. Legally, the class action plaintiffs' attorneys will be allowed to draw an adverse inference from Mr. Fastow's silence as they pursue their lawsuits, trying to extract billions of dollars of financial compensation for losses allegedly incurred by investors and pension- holders as a result of the Company's collapse. Similarly, the fact that Mr. Fastow sought the privilege of silence under the Fifth Amendment, part of the US Constitution that protects witnesses from incriminating themselves, will also allow the SEC, in a civil case, to draw an adverse inference from such silence. Mr. Fastow's silence contrasts with the actions of Jeff Skilling, the Company's former chief executive, who, when he appeared before the SEC, did not take the Fifth Amendment. The SEC refused to comment on Mr. Fastow or Mr. Skilling, who, according to the National Post, did not return telephone calls. Earlier, the SEC sought a court order compelling Mr. Fastow to appear, but later dropped the order when the former finance officer agreed to come in for questioning. He left his job at the Company on October 24, 2001 after it emerged that the energy trading company had suffered huge losses in dealings with off-balance-sheet partnerships that he once headed. David Boies, Mr. Fastow's attorney, said that transactions in which Mr. Fastow was involved were "reviewed by the Board of Directors of Enron, reviewed by the top management.and the audit committee and outside auditors." The Company announced in October that it was taking a $1.2 billion reduction in shareholders' equity in terminating a transaction with a controversial private equity fund established by Mr. Fastow. Since then, the company's shares have collapsed, its debt has been downgraded and a possible rescue by Dynegy Inc., a rival, collapsed. EVOLVE SOFTWARE: Denies Allegations In Securities Suits in S.D. NY ------------------------------------------------------------------ Evolve Software, Inc. labels "without merit" the securities class action pending against it in the United States District Court for the Southern District of New York on behalf of purchasers of Evolve Software, Inc. (NASDAQ:EVLV) common stock between August 9, 2000 and December 6, 2000, inclusive. 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. The suit was filed in connection with their August 2000 initial public offering of 5,000,000 of its shares of common stock, at an offering price of $9 per share. The suit alleges that the prospectus and registration statement filed with the Securities and Exchange Commission to gain permission for the offering failed to disclose certain agreements that the Company's underwriters formed with parties in the IPO that artificially inflated the Company's stock. The Company intends to defend the litigation vigorously. However, the Company can not provide any assurance as to the outcome of the litigation, and says the litigation could have a material adverse effect on its business operations or financial condition. INSURANCE CLAIMS: Armenians Prevail as CA Court Refuses To Dismiss Suit ----------------------------------------------------------------------- The United States District Court for the Central District of California refused to dismiss a class action suit filed against New York Life Insurance Company by descendants of Armenians killed in 1915 in what was then the Ottoman Empire, seeking benefits for the insured victims' families. Lead plaintiff Martin Marootian filed the suit, alleging that he and his mother, since deceased, have corresponded with New York Life since policyholder Setrak Cheytanian, Mr. Marootian's uncle, was killed in June 1915 but were unable to collect policy benefits as beneficiaries. The plaintiffs claim that the class could reach 8,000 claimants, but the Company believes the number is closer to 3,000. In the year 2000, the Court passed the Armenian Genocide Victims Insurance Act, which allows the plaintiffs to pursue their claims in California. Company attorney John C. Holmes argued that the act "impermissibly invades the federal government's exclusive power over foreign policy and that it violates the due process clause by invalidating the policies' venue provisions." The Company then sought to dismiss the suit, arguing that the insurance policies, purchased between 1875 and 1915, required litigation to be filed in France or England. The Court rejected their motion for dismissal, saying it would be "fundamentally unfair" to enforce the policies' venue provision. Company Vice President William Werfelman said the company planned to appeal, according to a National Law Journal report. He asserted "New York Life believes the law and the facts are firmly on its side in this matter." Earlier, the Company had proposed a multimillion-dollar settlement agreement, agreeing to pay claims and to contribute a minimum of $3 million to Armenian civic organizations. The agreement never materialized, the plaintiffs being unhappy with the settlement offer. Another counsel, Mark J. Geragos said, "It became apparent to us that the settlement was woefully inadequate." The settlement agreement was contingent upon plaintiffs' counsel conducting a "due-diligence discovery," he said. Plaintiffs' attorney William M. Shernoff called the decision important, saying it could have a "significant impact" on plaintiffs seeking to recover benefits from Holocaust-era life insurance policies. JOBE CONCRETE: Court Says Plaintiffs Must Pursue Claims Individually -------------------------------------------------------------------- The 8th Circuit Court of Appeals has dissolved the class action against Jobe Concrete, ruling that the 850 plaintiffs, claiming they were harmed because of alleged environmental problems brought about by the Company's operations, must pursue their claims separately. El Paso resident Joe Pi�on Jr. filed the suit in August 2000, along with his wife Angelina and daughter Yvonne. The suit says residents around the company's rock-crushing and concrete plant at 1 McKelligon Canyon Road in Central El Paso have been exposed to dust and other substances that have harmed their health. The Pi�ons have also organized Quality of Life El Paso, an organization of about 500 residents that keeps tabs on the plant and environmental issues. The Appellate Court's ruling means that there will be 850 pending cases against the Company, each with a different plaintiff, but stating the same claim. Attorney for the plaintiffs John Flood said in an interview with the El Paso Times, "It's very interesting; I've never encountered that before.That means the claim of a child is severed from a parent's claims, and I've never heard of that." He added that if each case goes to trial, at least 5,000 jurors will be needed. "Jobe has clearly stated they plan to go to trial on every one of these.Now we'll go back to the trial judge and start setting them for trial." The Company is not interested in settling the claim, says Company lawyer Martie Jobe, "We believe every claim needs to stand on its own merits, and that's what every defendant is entitled to." The Company is pleased with the court decision, lawyer Carl Green asserts. He said the case was not filed as a class action, and it was successfully argued that the plaintiffs' cases should be argued individually. He said, "As a general rule, people are not permitted to have a multi-party litigation without complying with fairly strict rules of class actions." NEW ORLEANS: Women Sue Football Team For Gender Bias, Sexual Harassment ----------------------------------------------------------------------- Two more women are suing the New Orleans Saints and owner Tom Benson, claiming sexual discrimination, the Associated Press recently reported. Sylvia Alfortish, a 27-year-old former employee, joined a federal lawsuit filed by Melanie Kramer, who said the Saints fired her in March 2000, after she rejected sexual advances from her supervisor. Ms. Kramer, a former administrative assistant, wants the court to recognize the lawsuit as a class action representing the women discriminated against by the Saints. In a separate lawsuit filed last month, Stacey Suhm accused the Saints of forcing her out of her job after she gave birth to her daughter on May 15 and began maternity leave. Both lawsuits claim that the team violated Louisiana's discrimination law and the Federal Family Medical Leave Act and intentionally caused two of the plaintiffs undue stress while they were pregnant. Leslie Lanusse, attorney for the NFL team, says, on the other hand, that the lawsuits are frivolous and filed by disgruntled former employees. She says "It's just people who weren't happy.Sometimes, when you have employees who aren't happy, this happens." She said that she and other team officials expect both suits to be dismissed. "There's just no merit to the claims." After the 1999 season, the Saints went through a reorganization, which included a new head coach and administrative staff that included some cutbacks, Ms. Lanusse said. "Some people didn't like the reorganization," she said. She also noted that a newspaper article in June quoted Ms. Alfortish as dismayed by the new administration's move to charge cheerleaders $25 for tryouts and to charge women $35 for attending a formerly free football clinic. The team said Ms. Kramer "failed to satisfy her duties of loyalty and fidelity to her employer" and was justifiably let go. The team denied any sexual harassment, and noted in court papers that Ms. Kramer never reported any such conduct while she was an employee. Ms. Kramer said that she thought that she had resolved the problem quietly and without embarrassing anyone, until a new supervisor made demeaning comments about her pregnancy and unmarried status, and also made sexually suggestive comments about her body. Ms. Kramer and Ms. Alfortish contend the reorganization was just an excuse to give men higher paying jobs with better opportunities for advancement. Ms. Alfortish, who handled the press for the Saints and trained the cheerleading squad, said she worked long hours without a fair pay raise. She claims the Saints readily gave white male employees travel benefits, cell phones and other perks while ignoring her. Men hired in the spring of 2000 were given salaries at least $20,000 greater than hers, Ms. Alfortish said. The Saints say that the organization's pay scale is based on seniority, a merit system and other factors, but never an employee's gender. NEXTEL PARTNERS: Milberg Weiss Initiates Securities Suit in S.D. NY ------------------------------------------------------------------- Milberg Weiss Bershad Hynes and Lerach LLP commenced a securities class action on behalf of purchasers of the securities of Nextel Partners, Inc. (NASDAQ: NXTP) between February 22, 2000 and December 6, 2000, inclusive. The suit is pending in the United States District Court, Southern District of New York against the Company and: (1) Goldman, Sachs & Co., (2) Credit Suisse First Boston Corporation, (3) Morgan Stanley & Co. Incorporated, (4) John Chapple and (5) John D. Thompson. 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 23,500,000 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 underwriter defendants had solicited and received excessive and undisclosed commissions from certain investors in exchange for which they allocated to those investors material portions of the restricted number of shares issued in connection with the IPO; and (ii) the underwriter defendants had entered into agreements with customers whereby they 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 Steven G. Schulman or Samuel H. Rudman by Mail: One Pennsylvania Plaza, 49th fl. New York, NY, 10119-0165 by Phone: 800.320.5081 or visit the firm's Website: http://www.milberg.com OK TEDI: Campaign Asking Plaintiffs To Opt-Out of Settlement Stopped -------------------------------------------------------------------- The Supreme Court of Victoria, Australia, has stopped BHP Billington- controlled Ok Tedi Mining Ltd (OTML) from asking New Guinea villagers to effectively opt out of a class-action lawsuit against the company. The Court told the mining company that it was party to settlements, which because of its action, would not be approved by the court as "fair and reasonable," the AAP News reported recently. The Court extended injunctions against the Company acquiring any additional signatures from villagers until the complicated case is heard by the Court in early February. The law firm Slater and Gordon, which is prosecuting a class action on behalf of 30,000 villagers in Papua, New Guinea (PNG), alleges in the lawsuit that the Company has not abided by the terms of settlement of an earlier class action which Slater and Gordon had brought on behalf of the villagers seeking damages for environmental damage caused by the the Company's mine. This larger, complex case will be heard once the immediate matter of who has opted out to pursue individual actions has been determined. Meanwhile, Slater and Gordon said it also was preparing a constitutional challenge against Papuan legislation to approve BHP Billiton's exit from the Company's copper and gold mine. PNG opposition leader and founding Prime Minister Sir Michael Somare has instructed the firm to mount the constitutional challenge to the legislation, which is awaiting the signature of the PNG governor- general. The new Mining Bill 2001 aims to authorize the mine's continued operation after BHP's exit, including the end of its management agreement. PETCO ANIMAL: Former Employees File Suit Seeking Overtime Wages in CA --------------------------------------------------------------------- Retail chain Petco Animal Supplies, Inc. faces an overtime wage class action filed by two former employees in the Superior Court of California for the County of Los Angeles, on behalf of all current and former employees who worked as managers or assistant managers in Company stores in the state of California at any time between July 30, 1997, and the present. The suit alleges violations of the California Labor Code and the California Business and Professions Code. Specifically, the suit alleges that: (1) the class members worked hours for which they were entitled to receive, but did not receive, overtime compensation under California law; and (2) that they were classified as "exempt" store management employees but were forced to work more than 50% of their time in non-exempt tasks. The Company has not answered the complaint but discovery has commenced. In a disclosure to the Securities and Exchange Commission, the Company states it intends to vigorously defend the action. SYMYX TECHNOLOGIES: Milberg Weiss Commences Securities Suit in S.D. NY ---------------------------------------------------------------------- Milberg Weiss Bershad Hynes and Lerach LLP initiated 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. The suit is pending in the United States District Court, Southern District of New York against the Company and defendants: (1) Credit Suisse First Boston Corporation, (2) Steven D. Golby and (3) Jeryl L. Hilleman. 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) Credit Suisse had solicited and received excessive and undisclosed commissions from certain investors in exchange for which Credit Suisse allocated to those investors material portions of the restricted number of shares issued in connection with the IPO; and (ii) Credit Suisse had entered into agreements with customers whereby Credit Suisse 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 Steven G. Schulman or Samuel H. Rudman by Mail: One Pennsylvania Plaza, 49th fl. New York, NY, 10119-0165 by Phone: 800.320.5081 or visit the firm's Website: http://www.milberg.com TAKE-TWO INTERACTIVE: Wolf Popper Commences Securities Suit in S.D. NY --------------------------------------------------------------------- Wolf Popper LLP has initiated a securities class action against Take- Two Interactive Inc. (NASDAQ: TTWO) and certain of its senior officers in the United States District Court for the Southern District of New York on behalf of all persons or entities who purchased or otherwise acquired the Company's common stock on the open market during the period beginning on February 25, 2000 through December 13, 2001, inclusive. The plaintiff alleges that during the class period, defendants materially misrepresented the Company's financial results and performance for each of the quarters of and full year of fiscal 2000, ended October 31, 2000, and each of the first three quarters of fiscal 2001, ended January 31, 2001, April 30, 2001 and July 31, 2001, respectively, by improperly recognizing revenue on sales to distributors. In August 2001, the truth about the Company's financial condition began to emerge when the effects of defendants' scheme began to negatively impact its financial results. It was not until December 14, 2001 and December 17, 2001, however, that the market began to learn that defendants had caused the Company to improperly recognize revenue for products by shipping to distributors that did not have a binding commitment to pay for the products, in direct contravention of GAAP. Significantly, defendants' unlawful accounting practices enabled defendants to portray the Company as a financially strong company that was experiencing dramatic revenue growth, and which was poised for future success when, in fact, the Company's purported success was the result of improper accounting practices. On December 14, 2001, following rumors of a possible restatement of the Company's financial results, its common stock fell 31% - $4.72 a share to $10.33 per share. During the class period, Company shares traded as high as $24.50 per share. Defendants were motivated to misrepresent the Company's financial results, by among other things, their desire to sell approximately 900,000 shares of the Company's common stock during the class period at artificially inflated prices for proceeds of over $15 million. For more details, contact Michael A. Schwartz or James A. Harrod by Mail: 845 Third Avenue, New York, NY 10022-6689 or by Phone: 877.370.7703 TERADYNE INC.: Acquisition Allegations Foster Securities Suits in MA -------------------------------------------------------------------- Teradyne, Inc. faces three securities class actions in the United States District Court for the District of Massachusetts filed on behalf of purchasers of the common stock of Teradyne, Inc. (NYSE:TER) between July 14, 2000 and October 17, 2000, inclusive against the Company, George Chamillard and Michael A. Bradley. 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. The defendants allegedly issued a series of material misrepresentations to the market between July 14, 2000 and October 17, 2000, thereby artificially inflating the price of the Company's common stock. The suit alleges that the Company was experiencing declining orders in its semiconductors testing systems division, which would cause its growth rate to slow from historical levels. Defendants concealed this adverse fact from investors, so that the Company could complete the acquisition of Herco Technology Corporation and Perception Laminates, Inc., d/b/a/ Synthane Taylor, using artificially inflated common stock as currency. When the truth about the Company's business was revealed to the public, the price of the Company's common stock dropped precipitously. The Company strongly believes that the purported class action complaints lack merit and it intends to defend against the claims vigorously. TYSON FOODS: Denies Charges In Grand Lake Homeowners' Pollution Suit -------------------------------------------------------------------- Tyson Foods, Inc. says the allegations in a class action filed in the District Court for Mayes County, Oklahoma are "without merit". The action filed against it by Grand Lake waterfront homeowners, alleges the Company conducted operations in such a way as to interfere with the putative class action plaintiffs' use and enjoyment of their property, caused by diminished water quality in the lake. The suit alleges that the Company discharges millions of gallons of wastewater into Elk River, which flows from Missouri into Oklahoma and into Grand Lake. As a result, the plaintiffs face foul odors, pieces of poultry, waste, oil slicks, white foam and scum forming along the shoreline instead of pristine and clear water. The plaintiffs also allege that local landowners contracted by Tyson to grow chickens deposit poultry waste directly on the land. This exposes the waste to rainwater runoff that could transport the waste into Grand Lake, said Charles Shipley, an attorney for the property owners. Property value has also been reduced by 5% to 10% and the quality of life has allegedly deteriorated. On November 1, 2001, the suit was removed to the U.S. District Court for the Northern District of Oklahoma. To date, the court has taken no action. The Company states its intention to vigorously defend the case in a disclosure to the Securities and Exchange Commission. UNITED STATES: Census Workers Sue Dept of Commerce For Overtime Pay ------------------------------------------------------------------- 20 former United States Department of Commerce employees filed a class action against the Department alleging it refused to pay them overtime wages for the hours they spent to complete the 2000 census. While it is not known yet how many of the 500,000 workers who worked to complete the census will join the suit, plaintiffs' attorney Jack W. Lee says that the suit could cost the department at least $100 million. Marana resident Kent Christofferson filed the suit, saying the Department forced employees to work extra hours and promised overtime payments when the job was done. According to an Arizona Republic report, Mr. Christofferson claimed the Department told employees to bank overtime hours and claim them the next time they worked less than 40 hours a week. At the same time, federal bosses allegedly told the temporary workers they'd lose their regular pay if they put in for overtime. Mr. Christofferson, a retired Navy intelligence officer who is currently delivering pizzas until he can find a better job, also alleged his bosses ignored him when he complained about their refusal to pay overtime. He also wrote complaints to former US Labor Secretary Alexis Herman, Rep. Jim Kolbe, R-Ariz., and House Speaker Dennis Hastert, R-Ill., which allegedly led to his dismissal by the Census Bureau. He says he spurned an offer to clear his employment record if he dropped the overtime lawsuit. Mr. Lee asserts, "These people worked very hard. They busted their butts and they were stiffed." Mr. Christofferson said that a local Census Manager told him that "These are temporary people, we can do anything we want to them." The government has filed their response, denying the allegations in the suit. US Department of Justice attorney Steven Gillingham said in court documents that census supervisors never encouraged employees to work overtime for noting. He asserts workers were paid overtime if it was authorized in advance. The response states "At times, overtime hours were required, and were authorized and compensated, for thousands of employees throughout the nation." However, the response also acknowledged that employees were told they could bank overtime until the next pay period, if they didn't work 40 hours during that pay period. This practice was declared "unacceptable and fraudulent" in an order issued in a May 22, 2000, memo by Susan Lavan, Regional Census Director in the Denver office, which barred banking hours. The memo says, "Both employees and supervisors certifying these pay sheets can face administrative and legal repercussions." WESTAR COMMUNICATIONS: Court Refuses To Certify Former Mayor's Suit ------------------------------------------------------------------- The Supreme Court of British Columbia refused to give class certification to a $500 million class action filed by former Victoria mayor Peter Pollen against Vancouver tycoon Jimmy Pattison and the Canadian Imperial Bank of Commerce (CIBC), stemming from Mr. Pattison's multi-step takeover of Westar Communications, Canada Stockwatch recently reported. The Company was formerly known as the British Columbia government's disastrous British Columbia Resources Investment Corp. (BCRIC), which spanned five years and was completed in 1997. Underlining the BCRIC fiasco, the biggest assets of the Company and affiliate Westshore Terminals were tax loss pools in excess of $500 million. In a 90-page decision released late last week, Justice Robert Bauman rejected the high-stakes case, "The plaintiff's application to certify this proceeding as a class proceeding is dismissed." The case is believed to be the most complicated and convoluted class action filed in Canada. Had it been certified, the plaintiff class would have included virtually every citizen in British Columbia. This is because the Provincial Government, which paid top price to controversial financier Edgar Kaiser Jr. for what became BCRIC's flagship coal assets, gave five BCRIC shares to every resident in a boondoggle privatization in 1977. Moving through these facts, among others, Judge Bauman ruled that there was not enough commonality among the potential claims of the millions of proposed class action members for the class action to proceed. The Judge observed that the overall claim was characterized by the "lack of a single misrepresentation to a homogenous group." Judge Bauman further noted that plaintiffs' class action application is "extraordinary.It seeks to certify on behalf of a single, diverse class, a proceeding which alleges a civil conspiracy spanning some five years and which includes a series of complex corporate transactions involving a widely traded public company." The unsuccessful lawsuit for certification was also a significant attack on the reputation of Jimmy Pattison, one of Canada's most respected self-made business moguls. "One cannot imagine a fraud or conspiracy more scandalous than that (the conspiracy to take over Westar) pled here," stated Judge Bauman. XOMA LTD.: Mark McNair Commences Securities Suit in N.D. California ------------------------------------------------------------------- The Law Office of Mark McNair filed a securities class action against XOMA, Ltd. (Nasdaq: XOMA) in the United States District Court for the Northern District of California on behalf of shareholders who purchased XOMA between May 24, 2001 and October 4, 2001, including those persons who purchased shares in or traceable to the Company's June 26 offering of 3 million shares. The suit alleges that the Company issued false and misleading statements about its plans to file with the Food and Drug Administration an application for Xanelim, an experimental psoriasis drug XOMA was co-developing with Genentech Inc. Specifically, the Company repeatedly stated its plans to file a Biologics Licensing Application by the end of 2001. Filing an application at that time would have put the Company and Genentech in a close race with Biogen to be the first manufacturer to market an effective treatment for psoriasis. However, when making these statements the Company knew that a change in its manufacturing process would necessitate a filing delay. When the Company announced that it would not file its application until the summer of 2002 at the earliest, its stock (which closed the prior day at $9.76) fell as low as $6.40. For further details, contact Mark McNair by Mail: 1101 30th Street N.W. Suite 500, Washington, D.C, 20007 by Phone: 877.511.4717 or 202.872.4717 by E-mail: mcnair@justice4investors.com or visit the firm's Website: http://www.justice4investors.com. *Lawyers Mull Challenge To California's Unfair Business Practice Law -------------------------------------------------------------------- Civil defense lawyers, tort reform lobbyists and business interests are rounding up support to make amendments to California's Business and Professions Code 17200, which they say is broad enough to allow plaintiffs to sue companies for anything deemed "unfair." Fed up with what they say is the Legislature's lack of interest in stopping these types of lawsuits, the above entities say they are considering a ballot initiative to amend the code, primarily to remove broad language, which allows just about anyone to file quasi-class actions without any single plaintiff having to demonstrate actual injury. John Sullivan, president of tort reform group Civil Justice Association of California, told The Recorder, "More and more people want to put an end to this legalized extortion." Although the statute is more than 50 years old, critics say it has been amended to the point where it has become the broadest such law in the nation. Under the statute, a lawyer can proceed with a claim against a company without having to show evidence of harm. They cite the lawsuits brought against software companies prior to the new millennium, suing them for selling programs that were not Y2K compliant, although no potential injury or wrongful conduct could be proven. Mr. Sullivan said that their goal was to limit the statute to what is unlawful or negligent. He said their best alternative would be to use a ballot initiative, because they believe the courts and the legislature have done very little to curtail the effects of the statute. Supporters of the initiative expect tough opposition, most especially trial attorneys who have kept the statute free from legislative intervention since 1997. Claude Stern, one of the proponents of the initiative, believes that trial lawyers will heartily fight the campaign, making the initiative costly. He added that, "Whatever it costs will be well worth it for California businesses." *NY Judge Orders Parties in Massive IPO Suits To Set Up Common Website ---------------------------------------------------------------------- Federal Court Judge Shira Scheindlin has ordered lawyers handling the numerous securities suits pending in the United States District Court for the Southern District of New York to set up a Website to post motions and pleadings. The court handles more than 800 separate suits arising after the fall of the "dot-com" market. The suits name approximately 260 technology companies, accusing them of federal securities violations and involving 60 underwriters, 100 law firms and a potential administrative nightmare. Although the idea is hardly new, judges are now starting to see the advantages of using a Website to keep track of suits and bring parties together. Lawyers in the Bridgestone/Firestone Inc. tires multidistrict litigation, for example, tap into a public Web site through the federal court in Indiana handling the case. According to lawyer Andrew Frackman, the site will be kept simple. "It's not rocket science, but all of the parties and the court will be able to access" the site. Mr. Frackman has been working with developers Verilaw Technologies, Inc. to put up the website. Rather than serve each party in the case, a lawyer can upload the document to the site. All parties, including the Judge, will receive e-mail notifications of the posting, which will be in PDF format. To access the site, lawyers must have an ID and password. All of the posted documents stay on the site, creating a record of the case. However, lawyers must still file motions with the court by hand and on paper, since the court does not have electronic filing. According to Verilaw's Vice President Joseph Helfrich, "In a short while lawyers realize they have an online document management system they can search and sort." This site may be the first of many. Some of the lawyer teams are still figuring out how to communicate with each other. With e-mail distribution lists wandering into the hundreds, the teams may be better off with Web sites, too. ********* 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 * * *