/raid1/www/Hosts/bankrupt/CAR_Public/020604.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, June 4, 2002, Vol. 4, No. 109
Headlines
ALASKA: State Court Reinstates Salmon Fishermen's Price-Fixing Suit
ALLERGAN INC.: Plaintiffs File Amended Suit Over Drug AWP in MA Court
BARR LABORATORIES: Faces Several Consumer Suits Over Cipro, Tamoxifen
CANADA: Suit Over Pollution At Port Colborne School Sites Settled
CATHOLIC CHURCH: $50M Sex Suit Filed V. Lexington, Covington Dioceses
CHINA AIRLINES: Relatives of May 2002 Crash Consider Lawsuit
CYBERSOURCE CORPORATION: Plaintiffs File Amended Securities Suit in NY
CYMER INC.: Plaintiffs Withdraw Appeal of CA Securities Suit Dismissal
ELI LILLY: Faces Several Suits Over Average Wholesale Prices of Drugs
ENRON CORPORATION: Electrical Union Opposes Suit To Block Arbitration
ESSO: Agrees To Settle $500 Million Suit Over Longford Gas Explosion
FLEETWOOD ENTERPRISES: Court Approves US$7.35M Overtime Suit Settlement
INDIANA: ICLU Files Suit To Reduce Elkhart County's Jail Population
LIBYA: Lockerbie Bombing Settlement Conditional on Lifting of Sanctions
LUCENT TECHNOLOGIES: Trial in IL Consumer Suit Reset For Fall 2002
McDONALD'S CORPORATION: Will Pay Nothing For Settlement of RICO Suit
MEMBERWORKS INC.: OH Court Refuses Consumer Suit Class Certification
MINNESOTA: State Employees Sue To Challenge "Fair-Share" Union Fees
MOVIE STUDIOS: Lack Of Closed-Caption Movies Violates Disabilities Act
OK INDUSTRIES: OK Poultry Farmers Allege Fraud, Unfair Business Deals
PARTY CITY: Agrees To Settle Consolidated Securities Suit in NJ Court
PENNSYLVANIA: Groups File Suit Seeking Services For Mentally Disabled
STEVEN MADDEN: Agrees To Settle Consolidated Securities Suit in E.D. NY
SULZER MEDICA: Accepts $725M Settlement of Faulty Implants Lawsuit
SYMBOL TECHNOLOGIES: Mounting Strong Defense V. Securities Suits in NY
UNITED STATES: Justice Department Barred From Interfering With OR Law
*Rise In 40(1)K Suits Prompts Examination of Pension Plan Fiduciaries
New Securities Fraud Suits
ALLIED CAPITAL: Bernard Gross Commences Securities Suit in S.D. NY
ALLIED CAPITAL: Schiffrin & Barroway Lodges Securities Suit in S.D. NY
ALLIED CAPITAL: Cauley Geller Lodges Securities Fraud Suit in S.D. NY
COMPUTERIZED THERMAL: Stoll Stoll Commences Securities Suit in OR Court
DOV PHARMACEUTICAL: Wolf Haldenstein Lodges Securities Suit in S.D. NY
DYNEGY INC.: Stull Stull Commences Securities Fraud Suit in S.D. TX
MERRILL LYNCH: Brodsky & Smith Launches Securities Fraud Suit in NY
MIRANT CORPORATION: Holzer & Holzer Commences Securities Suit in GA
MIRANT CORPORATION: Federman & Sherwood Files Securities Suit in GA
PEREGRINE SYSTEMS: Schatz & Nobel Commences Securities Suit in S.D. CA
PEREGRINE SYSTEMS: Shapiro Haber Files New Securities Suit in S.D. CA
RAYOVAC CORPORATION: Milberg Weiss Lodges Securities Suit in W.D. WI
SEITEL INC.: Rabin & Peckel Commences Securities Fraud Suit in S.D. TX
*********
ALASKA: State Court Reinstates Salmon Fishermen's Price-Fixing Suit
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The Alaska Supreme Court revived a class action filed by Bristol Bay
salmon fishermen who accuse processors and buyers of conspiring to fix
prices in the world's largest salmon fishery, the Associated Press
Newswires reports.
The Court recently overturned a summary judgment ruling by Superior
Court Judge Peter A. Michalski in favor of the defendant companies.
The decision does not mean the higher court decided the fishermen are
entitled to win their case, but means only that there are issues that
should be decided by a jury, not simply ruled on by a judge.
"The billion-dollar Japanese corporations and the Seattle-based
processors should now face an Alaska jury on charges of conspiracy to
fix, manipulate and depress salmon prices," said Phillip Weidner, lead
counsel for the 3,500 salmon fishermen.
The 83-page opinion, written by Chief Justice Dana Fable devotes about
25 of those pages to detailing the overall system of fish buying in
Bristol Bay and the plaintiffs' evidence that the companies might have
been colluding to keep prices low in the early 1990s. The Court then
concludes that there is enough evidence of possible anticompetitive
practices that the case should go to trial.
For example, the Court said that the plaintiffs' lawyers had submitted
evidence that "tends to show that defendant processors and importers
collaborated to exert pressure on smaller processors and importers who
offered higher prices and threatened the stability of the lower
prevailing market prices in Bristol Bay."
However, it is still a tough case, with no direct evidence that the
processors and some of the Japanese fish importers met in back rooms to
set prices and market shares.
The Court notes that a plaintiff in an antitrust case may support his
case solely with circumstantial evidence, but the plaintiffs in this
case need to show more than simply a patter of similar conduct by the
defendant companies. However, the Court said, "because much of the
plaintiffs' evidence in this case tends to exclude the possibility of
independent action, we reverse the grant of summary judgment."
The fishermen sought $500 million in actual damages and $1 billion in
punitive damages when the case was filed seven years ago. However, the
Court said that the fishermen could not claim damages beyond the normal
four-year statute of limitations just because the possible the possible
antitrust violations amounted to a continuing pattern of conduct that
extended beyond that period. The plaintiffs' lead lawyer, Mr. Weidner,
said that while that ruling does reduce the exposure (potential
damages) somewhat, "there is still very, very significant exposure."
Since the case was filed, three dozen mostly minor defendants settled
out of court for about $15 million, a sum that will remain in an escrow
account until the case is resolved, Mr. Weidner said. However, most of
the big names; Wards Cove Packing Co., Trident Seafood, Peter Pan
Seafoods and Unisea Inc. have chosen to fight.
Chief Justice Fabe heard the case along with Justices Warren W.
Matthews and Alexander O. Bryner. Justices Robert L. Eastaugh and
Walter L. Carpeneti did not participate.
ALLERGAN INC.: Plaintiffs File Amended Suit Over Drug AWP in MA Court
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Plaintiffs in the class action against pharmaceutical company,
Allergan, Inc. filed an amended suit in the United States District
Court in Massachusetts.
Initially filed in December 2001, the advocacy group, Citizens for
Consumer Justice accused 23 pharmaceutical companies of violating the
Racketeering Influenced and Corrupt Organization Act (RICO), by:
(1) promulgating average wholesale prices that bear no relation to
actual wholesale prices;
(2) abusing Congressional authority to formulate and publish
legitimate and accurate average wholesale prices; and
(3) creating artificial and inflated average wholesale prices for
publication in resources used by carriers and clinicians to
determine Medicare reimbursement allowances and encouraging
clinicians to administer drugs with the highest average
wholesale prices.
The Company believes that the ultimate outcome of the litigation will
not have a material adverse effect on its consolidated financial
position and results of operations. However, in view of the
unpredictable nature of such matters, it cannot give any assurances in
this regard.
BARR LABORATORIES: Faces Several Consumer Suits Over Cipro, Tamoxifen
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Barr Laboratories, Inc. faces dozens of consumer class actions,
alleging violations of antitrust laws relating to the sale of
Ciprofloxacin (Cipror) and Tamoxifen citrate.
As of May 8, 2002, 38 class action complaints have been filed by direct
and/or indirect purchasers of Cipror from 1997 to present against the
Company, Bayer Corporation, The Rugby Group, Inc. and others. The
suits allege that the 1997 Bayer-Barr patent litigation settlement
agreement was in violation of federal antitrust laws and/or state
antitrust and consumer protection laws on the grounds that the
agreement was allegedly anti-competitive.
As of May 8, 2002, 33 consumer or third party payor class action
complaints have been filed against Zeneca, Inc., AstraZeneca
Pharmaceuticals LP and the Company. The complaints allege, among other
things, that the 1993 settlement of patent litigation between Zeneca,
Inc. and the Company violates the antitrust laws, insulates Zeneca,
Inc. and the Company from generic competition and enables Zeneca, Inc.
and the Company to charge artificially inflated prices for Tamoxifen
citrate.
The Company believes that each of its agreements with Bayer Corporation
and Zeneca, Inc., respectively, is a valid settlement to a patent suit
and cannot form the basis of an antitrust claim. Although it is not
possible to forecast the outcome of these matters, the Company intends
to vigorously defend itself. It is anticipated that these matters may
take several years to be resolved but an adverse judgment could have a
material adverse impact on the Company's consolidated financial
statements.
CANADA: Suit Over Pollution At Port Colborne School Sites Settled
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A class action, brought by parents of school children, and related to
the heavy metal contamination emanating from an Inco refinery in Port
Colborne, Canada, has been settled with two of the six defendants, the
District School Board of Niagara and the Niagara Catholic District
School Board, the Canada News Wire reports.
Negotiations involving the contamination found at two local schools
(St. Therese Catholic and Humberstone Public) have been going on for
some time. Earlier testing by the Ontario Ministry of the Environment
at these two school sites had found levels of nickel approximately
three times the current value that triggers a human health risk
assessment. Among other things, the agreement provides for:
(1) the replacement of soil in certain playground areas,
(2) the reduction of outdoor activities on dusty days or when
plowing at neighboring farms is taking place,
(3) the continued use of floor mats and good personal hygiene
practices (which the schools already had initiated), and
(4) the addition of an annual 30 minute information session for
students and teachers on the subject of health and
environmental hazards
As part of the settlement, the parties are also acknowledging that:
(i) the School Boards are taking these steps voluntarily and not
because any actual risk to children has been established;
(ii) that legal counsel together with the experts assisting the
parties, and parents agree these steps were not proven to be
necessary but that the School Boards are to be commended for
responding to general concerns expressed within the community;
and
(iii) that these steps are entirely in keeping with the same
precautionary advice given by the Public Health Department to
parents of these same children
The Court must ultimately approve the settlement.
The balance of the claim for $750 million against all of the other four
defendants continues, with certification hearings beginning in early
June and running for a week. The remaining four defendants are:
(a) Inco Refinery,
(b) the Government of Ontario,
(c) the Region of Niagara, and
(d) the City of Port Colborne
CATHOLIC CHURCH: $50M Sex Suit Filed V. Lexington, Covington Dioceses
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A $50 million class action was filed recently against the Catholic
dioceses of Lexington and Covington, accusing them of covering up sex
abuse by priests and failing to report the abuse to legal authorities,
according to The Lexington Herald-Leader.
Four men and one woman, all unnamed, filed the lawsuit in Fayette
Circuit Court, on behalf of themselves and anyone else who allegedly
was abused by priests in the two dioceses. The lawsuit says
the victims were minors or incapacitated when the alleged abuses
occurred. Robert Treadway, the plaintiffs' attorney, said
"incapacitated" implies that "alcohol and drug use was involved."
The lawsuit seeks $10 million in damages for each plaintiff. The
amount sought will grow if other victims come forward, Mr. Treadway
said. He added that some of the abuse occurred at least 30 years ago.
He also said that the so-called John Doe, Jane Doe lawsuit was devised
to protect the victims' privacy. Specifics about the abuse and alleged
perpetrators will be given confidentially to the two dioceses, said Mr.
Treadway.
John Famularo, the attorney for the Lexington diocese, said he had read
the lawsuit and would be considering appropriate actions. A spokesman
for the Covington diocese said it had not received a copy of the
lawsuit.
Mr. Treadway modified a comment he made last Friday, in which he said
the Rev. Leonard Ninenaber was not one of the priests implicated. "I
am investigating incidents surrounding him" pertaining to the lawsuit,
Mr. Treadway said. Rev. Nienaber, a former pastor of Mary Queen of the
Holy Rosary, was convicted on sex abuse charges in 1994.
Mr. Treadway, earlier this month, won a record $2.4 million settlement
from the Urban County Government in the Ron Berry sex abuse case.
CHINA AIRLINES: Relatives of May 2002 Crash Consider Lawsuit
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Relatives of victims are planning a class action against China Airlines
(CAL) over last week's fatal air disaster, the China Post reported
recently. Services were held in both Taipei and Makung, a city on
offshore Penghu, where one man accosted President Chen Shui-bian as he
prepared to board a plane back to Taipai. The man, a relative of a
deceased passenger, approached the president demanding "punitive
compensation" from CAL, which has had four fatal crashes in the past
eight years, an incident reflective of the anger flaring against the
airline.
President Chen has received a briefing on the rescue and salvage
operations from Presidential Secretary General Chen Shih-meng, Interior
Minister Yu Cheng-tao and Transportation and Communications Minister
Lin Ling-san.
Mr. Lee, the man who approached the President, said that the relatives
are not seeking huge monetary compensation but are pursuing an
effective way to overhaul the largest air carrier in Taiwan in an
effort to protect future passengers.
The proposed class action will likely bring relatives of other victims
join together with people whose family and friends were killed in CAL's
Nagoya crash in Japan and the crash in Taoyuan County. This will be
the first judicial attempt in Taiwan to seek punitive damages, a move
that could bankrupt CAL.
The ROC Consumers Foundation has offered assistance in settlement
negotiations with CAL. Other families of victims are soliciting help
from lawyers, accountants and social movement organizations.
Only 97 bodies have been recovered from the Taiwan Strait after a week
of searching, and 93 were identified by family members with the aid of
DNA testing.
The Boeing 747-200 jet disintegrated at an altitude of over 30,000 feet
for unknown reasons about 20 minutes into its flight to Hong Kong from
Chiang Kai-shek International Airport on May 24. The crash killed 209
people from Taiwan, nine from mainland China, one Swiss, one
Singaporean, and five from Hong Kong.
CYBERSOURCE CORPORATION: Plaintiffs File Amended Securities Suit in NY
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Plaintiffs in the consolidated securities class action against
Cybersource Corporation filed a consolidated amended securities class
action in the United States District Court for the Southern District of
New York. The suit was initially filed on behalf of persons who
purchased the Company's stock issued pursuant to or traceable to the
initial public offering during the period from June 23, 1999 through
December 6, 2000.
The amended suit expands the purported class to persons who purchased
the Company's stock issued pursuant to or traceable to the follow-on
public offering during the period from November 4, 1999 through
December 6, 2000. The amended complaint also added a former member of
the Company's Board of Directors as an individual defendant.
The suit alleges that the Company's underwriters charged secret
excessive commissions to certain of their customers in return for
allocations of the Company's stock in the offering. The two Company
officers who were named as individual defendants are alleged to be
liable because of their involvement in preparing and signing the
prospectus for the offering, which allegedly failed to disclose the
supposedly excessive commissions.
The Company believes that the allegations seem directed primarily at
its underwriters and has been informed that this action is one of
numerous similar actions filed against underwriters relating to other
initial public offerings. While there can be no assurances as to the
outcome of the lawsuit, the Company does not presently believe that an
adverse outcome in the lawsuit would have a material effect on its
financial condition, results of operations or cash flows.
CYMER INC.: Plaintiffs Withdraw Appeal of CA Securities Suit Dismissal
----------------------------------------------------------------------
Plaintiffs in the consolidated securities class action against Cymer,
Inc. voluntarily dismissed their appeal of a California federal court's
decision dismissing the suit without prejudice.
The suit was commenced in September 1998 in the United States District
Court for the Southern District of California, against the Company and
certain of its executive officers and directors. The suit was filed on
behalf of all persons who purchased the Company's common stock between
April 24, 1997 and September 26, 1997.
The suits allege claims under the federal securities laws.
Specifically, the plaintiffs allege that the Company and the other
defendants made various material misrepresentations and omissions
during the class period.
In November 1999, the Company and the other defendants filed a motion
to dismiss the consolidated amended complaint for failure to state a
cause of action. In April 2000, the court granted the motion to
dismiss with leave to amend the complaint by the plaintiffs.
The plaintiffs filed their second amended consolidated complaint in
June 2000, and the Company again moved to dismiss the suit. In October
2001, the court granted the motion and entered judgment in favor of all
defendants and against plaintiffs. The plaintiffs then appealed the
decision in the Ninth Circuit Court of Appeals.
On March 22, 2002, the plaintiffs in the action voluntarily dismissed
their own appeal, thereby resolving the case in the Company's favor and
rendering the judgment in favor of the Company in the district court
final.
ELI LILLY: Faces Several Suits Over Average Wholesale Prices of Drugs
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Pharmaceutical manufacturer, Eli Lilly & Co, was named as a defendant
in several class actions in Massachusetts and Pennsylvania federal
courts and in Nevada state court, along with many other pharmaceutical
manufacturers. The suits purport to be nationwide class action on
behalf of consumers of certain prescription drugs.
The suits uniformly claim in general that as a result of alleged
improprieties in the manufacturers' calculation and reporting of
average wholesale prices for purposes of Medicare reimbursement, the
consumers overpaid their portion of the cost of the drugs.
The Company believes that all of its practices in this regard have been
lawful and proper and that these suits are without merit.
ENRON CORPORATION: Electrical Union Opposes Suit To Block Arbitration
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In most cases, workers sue to block a company's implementation of
compulsory arbitration clauses, placed in small print in their
contracts in an effort by the company to protect itself from
class actions. In a kind of turnaround, union workers recently
protested in front of Enron subsidiary, Portland General Electric's
headquarters because the Company filed a lawsuit to block efforts by
union workers seeking binding arbitration on grievances filed over the
loss of their 401(k) investment.
A spokesman for Portland General Electric (PGE) said the subsidiary's
lawsuit was aimed at forcing the union to direct its grievances and any
arbitration requests toward Enron, rather than PGE, according to
Associated Press Newswires. "It should be Enron because they were the
corporate entity that established and managed the 401(k) plan, not
PGE," said PGE spokesman Kregg Arntson. About 900 of the 2,700 PGE
employees are members of International Brotherhood of Electrical
Workers Local 125.
"These are the people who . kept the lights on for half of Oregon's
residents," said Local 125 Business Manager Bill Miller. "Instead of
getting a pat on the back from management, they get sued."
PGE, the largest utility in Oregon, filed a lawsuit in Multnomah County
Circuit Court that said PGE and the union tried to resolve their
grievances but failed, and now the union has asked for binding
arbitration. The lawsuit said PGE has never agreed to arbitration and
the issues raised in the union grievances have "already been raised in
class action lawsuits against Enron Corp."
Enron employees, whose investments disappeared as Enron stock
plummeted, filed a class action against their Company. Enron stock
made up much of the value of PGE 401(k) plans for the utility's
employees as well, who also saw their investment wiped out with the
financial collapse and bankruptcy of Enron Corp. Enron purchased PGE
in 1997.
Mr. Miller called the lawsuit a "delaying tactic" that will be
dismissed, because arbitration involves federal labor law, not state
law . so, filing a lawsuit in state court is absurd."
PGE utility spokesman Kregg Arntson pointed out that the utility has a
duty to protect its own assets and try to keep them separate from
Enron, a statement referring to the fact that the loss of 401(k) funds,
which the union is asking be arbitrated, should be handled in relation
to the class action lawsuits already filed against Enron. Continuing
this thought, Mr. Arntson said that court is the best place for
everybody, union and nonunion workers alike, to find any compensation
for the loss of their 401(k) investment.
ESSO: Agrees To Settle $500 Million Suit Over Longford Gas Explosion
--------------------------------------------------------------------
Exxon Mobil subsidiary Esso has reached an agreement with lawyers
bringing a $500 million class action over the Longford gas explosion,
reports the AAP News (Australia). Esso still denies any responsibility
for losses suffered by gas customers.
The Victorian Supreme Court was today told that the Company had reached
an agreement about the cause of the accident in September 1998, which
killed two people. Lawyers bringing the action said that under the
agreement, if they could prove the Company had a duty of care to the
gas consumers, the Company was prepared to admit certain facts about
the accident.
These admissions would include that the Company did not undertake a
sufficient hazard analysis and that it had insufficient training and
failed to isolate gas plant 1 from gas plants 2 and 3. However, the
Company said it did not admit negligence in the explosion, and would
defend all claims that it had an obligation to gas consumers to prevent
the interruption to gas supply.
The agreement means no evidence about the accident, its cause or the
cause of the interruption to the gas supply will be heard at the trial
due to begin on September 2.
Law firms Slater and Gordon, Maurice Blackburn Cashman, Phillips Fox
and Lander Rogers recently launched a class action against the Company
on behalf of Victorian business and consumers. Solicitor Lisa Nichols
of Slater and Gordon described the agreement as a breakthrough. "We
are disappointed that it has taken so long for Esso to make these
admissions, and they are qualified admission," she said. Maurice
Blackburn Cashman partner, Bernard Murphy, said the estimated
compensation claim could be as high as $500 million.
Company spokesman Nick Thomas said the Company had made the "admissions
of fact" in order to focus the Court on what it believed was the real
issue of this suit. "And that is whether we had this duty to maintain
continuous supplies of gas to consumers in Victoria with whom we did
not have any contractual agreement," he said.
Former Esso worker Jim Ward, who was operating gas plant 1 on the day
of the explosion, said today's admission was cloaked in denial "I
think the people of Victoria want to see Esso stop loitering in the
shadows of denial and step forward and admit that corporate
responsibility," he said.
FLEETWOOD ENTERPRISES: Court Approves US$7.35M Overtime Suit Settlement
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US District Judge Edward Lodge has approved a $7.35 million settlement
of overtime claims by employees of manufactured home and recreational
vehicle builder Fleetwood Enterprises Inc., says a report by Associated
Press Newswires.
The recently announced settlement arises out of a two-year-old class
action filed against the California company, and covers about 4,300
current and former Fleetwood employees. The workers claimed the
company pressured them to work from early in the morning through breaks
and after their shifts, in order to keep up with production quotas, all
in violation of federal prohibitions against off-the-clock work.
The Company also has agreed, under the terms of the settlement, to
prohibit off-the-clock work and modify its rounding practices under its
time-keeping system.
On the same day that Judge Lodge approved the settlement, however, the
Company was sued again over uncompensated overtime. This time, the
complaint is filed on behalf of hundreds of so-called "production
supervisors," on grounds that they have insufficient supervisory
authority to exempt them from federal overtime provisions.
INDIANA: ICLU Files Suit To Reduce Elkhart County's Jail Population
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The Indiana Civil Liberties Union (ICLU) commenced a class action
against Elkhart County, Indiana to force it to cut the jail population
and improve inmates' living conditions, The Associated Press reports.
Kenneth Falk, executive director of the ICLU, recently filed a lawsuit
in US District Court in Indiana, on behalf of Jay Dean, 59, who is
serving a theft sentence. Mr. Falk and Mr. Dean filed the suit on
behalf of all current and future inmates.
"The overcrowding is severe. Inmates are sleeping in the gym area .
and they are not getting the recreation they are entitled to," Mr. Falk
told The Truth, one of Elkhart's publications. "There are problems
with food delivery. The state jail inspector has been very critical in
past reports."
Sheriff Tom Snider declined to comment, referring all questions to
Michael DeBoni, attorney for the sheriff's department, the Truth
reports. Mr. DeBoni said he has not yet filed a response, but the
lawsuit does not bring any issues he has not heard before, he added.
Inmates have sued the county in the past, but this is the first time a
suit has requested class action certification, Mr. DeBoni said.
"The Elkhart County jail has never been found, to my knowledge, to
violate constitutional standards," said Mr. DeBoni. "Whether it is
class action or not, it's still about basic jail conditions."
LIBYA: Lockerbie Bombing Settlement Conditional on Lifting of Sanctions
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Libya has contacted the New York law firm of Kreindler and Kreindler,
which represents only American families in the class action relating to
the 1988 Lockerbie bombing, with an offer of about $2.7 billion
compensation for all families of the 270 aircraft bomb victims. The
offer is conditional, however, upon all international sanctions against
Libya being lifted, The Guardian has reported recently.
The compensation proposal was supposedly presented to the law firm by a
government-authorized Libyan team of lawyers and intelligence
officials.
Libya is attempting to take a step on the path toward re-entering the
international community next week, when officials from Tripoli, the
United States and British governments meet in London to discuss the
approximately $2.7 billion compensation deal offered the Lockerbie
families.
Before Libya's condition can be met, however, the US and British
governments are demanding that Libya comply with UN resolutions, which
among other things, include Libya admitting its role in bombing Pan Am
Flight 103, something Libyan President, Muammar Gadafy, has refused to
do in the past.
The Foreign Office confirmed yesterday that a meeting between officials
from Libya, the United States and Great Britain has been scheduled for
June. However, there is still a wide divide between the three
countries and an end to United Nations and US sanctions appears a long
way off.
"There are issues other than compensation that must be sorted out,"
said a British Foreign Office spokesman. He said these issues include
Libya responding to the United Nations resolutions by Libya renouncing
terrorism, accepting the actions of its officials and by cooperating
with any future inquiries. The spokesman added, "If this offer is
genuine, it represents a sign that Libya does wish to respond to these
UN resolutions."
Under the terms of the compensation deal revealed by law firm Kreindler
and Kreindler, Libya is prepared to offer the payment of around $7
million to each of the families of everyone killed in the Lockerbie
bombing. The payment would be in three stages:
(1) The first 40 percent comes when the United Nations lifts
its sanctions;
(2) the second 40 percent comes when the US government lifts the
sanctions it has imposed on Libya;
(3) and the remaining 20 percent would be paid when Libya is
removed from the US State Department's list of regimes that
sponsor terrorism
Before any moves to lift sanctions, however, the compensation deal must
be accepted by American and British families. Some of them have given a
mixed response to the offer. Some American relatives said they were
reluctant to take the money if it means that Libya will return to the
international fold.
Last week the United States State Department conceded that Libya had
taken steps towards repairing its international image, and it says
there are no credible reports of the country's involvement in terrorism
since 1994. However, it remains likely that the Bush administration
will press for continuing international sanctions, since a recent CIA
report claims Libya is seeking weapons of mass destruction.
A Libyan agent, Abdel Baset al-Megrahi, is serving a minimum of 20
years in a Glasgow jail for planting the bomb, which brought down
flight 103. Though his appeal was rejected in March, but he maintains
he is innocent.
LUCENT TECHNOLOGIES: Trial in IL Consumer Suit Reset For Fall 2002
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Trial in the consumer class action pending against Lucent Technologies,
Inc. in Illinois state court has been delayed until the fall of 2002,
instead of August 2002.
The suit was filed in 1996 in Illinois, and seeks unspecified damages
for a nationwide class of customers based on a claim that the former
AT&T Consumer Products business (which became part of the Company) had
defrauded and misled customers who leased telephones from Consumer
Products so as to believe their lease payments would lead to ownership
of the telephones. The lawsuit seeks damages based on the difference
between the aggregate lease payments made and the fair market value of
telephones.
The suit is one of a number of consumer class actions which, after
removal to a federal court, were remanded to various state courts in
July 2001. These other actions are stayed pending the outcome of the
suit.
The Company is unable to determine the suits' potential impact on our
consolidated financial statements. The Company is defending these
actions vigorously.
McDONALD'S CORPORATION: Will Pay Nothing For Settlement of RICO Suit
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Fast food giant McDonald's Corporation will not pay to settle the class
actions filed against it for its role in a sweepstakes promotion scam,
according to papers filed with the Securities and Exchange Commission,
the Chicago Sun-Times has reported.
The Oak Brook-based restaurant chain has agreed to a nationwide
settlement of certain consumer class actions, based on damages suffered
from the scam, that were pending in Illinois. Terms of the settlement
were not disclosed.
However, insurers for Simon Marketing, a subsidiary of Simon Worldwide
Promotions Company will pay settlement costs. Simon Marketing ran
the games for McDonald's, and McDonald's was covered under Simon's
insurance policies, according to the SEC filing.
Jerome Jacobson, a former Simon Marketing security director who
masterminded the theft of $24 million in winning McDonald's game
tickets, has pleaded guilty. He was ordered to repay at least $13.4
million.
McDonald's terminated its relationship with Simon after discovery of
Mr. Jacobson's role in the scam. The Company has sued Simon for fraud
and civil conspiracy, while Simon has sued the Company for breach of
contract.
MEMBERWORKS INC.: OH Court Refuses Consumer Suit Class Certification
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The Court of Common Pleas in Cuyahoga County, Ohio refused to grant
class certification to a consumer class action pending against
Memberworks, Inc. in connection with the Company's marketing of certain
membership programs it offered.
The suit, which seeks unspecified monetary damages, alleges that the
Company and the other defendants violated various provisions of Ohio's
consumer protection laws with the marketing of the membership programs,
The plaintiff's motion to have the suit certified as a class action was
denied on February 6, 2002. The decision has been appealed.
The Company believes that the claims asserted against it are unfounded
and intends to vigorously defend its interests against this suit.
MINNESOTA: State Employees Sue To Challenge "Fair-Share" Union Fees
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Six Minnesota state employees, who are represented by a public-employee
union but are not union members, are challenging in court the "fair-
share" fees they pay for contract bargaining services, the St. Paul
Pioneer Press reports. The suit, prepared by attorney Philip Villaume
for the workers challenging the fees, seeks class action status to
allow Mr. Villaume to represent up to 5,000 other nonunion members who
paid the union's "fair-share" fees between 1996 and 2001.
Lawyers for the six employees and the Minnesota Association of
Professional Employees (MAPE) have been trading legal documents in the
case, and the case was scheduled to be filed in Ramsey County District
Court last Friday.
Minnesota public-employee bargaining laws say state workers cannot be
required to join a union. However, if they are a part of a group of
workers who vote to unionize, they may be required to pay a fee up to
85 percent of union dues to cover the union's costs of representing
them in contract negotiations and grievances.
The lawsuit alleges that MAPE regularly failed to give nonunion workers
a required notice of the fees and the justification for them. Instead,
MAPE routinely charged nonunion workers the 85 percent maximum, the
lawsuit charges.
MAPE, which bargains for non-supervisory professional and technical
workers, represents about 11,000 state employees. About 70 percent of
those are union members, and the rest pay the so-called "fair share"
fees, according to the union. Union dues are $12 every two weeks while
fees for nonmembers are $10.20.
Mr. Villaume said the 85 percent fees overcharged nonmembers for the
benefits MAPE provided. "Had they given them written notice, more
people would have taken administrative action to get their money back,"
he said. Gregg Corwin, the union's lawyer said MAPE regularly mailed
fee notices to nonmembers, and said the state Bureau of Mediation
Services has upheld the level of fees the union assessed. "They are
going to lose," said Mr. Corwin. "It is going to get thrown out of
court."
MOVIE STUDIOS: Lack Of Closed-Caption Movies Violates Disabilities Act
----------------------------------------------------------------------
Former Houston Councilman Rob Todd, acting on behalf of his son Robert,
a severely hearing-impaired minor, is charging studios with producing
few closed-captioned movies, in violation of the Americans With
Disabilities (ADA) Act, the Houston Chronicle reported recently. The
suit names as defendants:
(1) AMC Entertainment,
(2) Cinemark USA Inc.,
(3) Twentieth Century Fox Film Corp.,
(4) Paramount Pictures and
(5) several other unnamed movie companies
Most theaters do not show movies with closed captions, making it
impossible for the deaf or hearing-impaired to understand them, the
suit alleges. The lawsuit says further that only six theaters in
Texas, including the one in Houston, have screens dedicated to showing
closed-caption films.
The one Houston theater with closed-captioning shows those movies just
twice a day. During a recent week, alleges the lawsuit, the only
closed-captioned movie was rated "R," limiting the audience of deaf and
hearing-impaired to people over 17 unless accompanied by an adult.
The lawsuit contends that only 15 theaters in 12 states have dedicated
screens to show closed-captioned films up to four times each week,
while another 114 show such films only monthly or bi-monthly.
The lawsuit, citing statistics from the federal Centers for Disease
Control and Prevention, said that more than 22 million people were deaf
or severely hearing-impaired in 1996, and that current estimates stand
at 25 million.
"Although assisted-living systems are installed in a few movie
theaters, persons who are deaf or who have serious hearing impairments
are unable to see motion picture films in movie theaters in a manner to
allow them to appreciate the sound track," the lawsuit states.
Mr. Todd asks that production companies be required to incorporate
closed-captioning in films and distribute the movies to theaters so
deaf and hearing-impaired patrons can watch and understand them.
OK INDUSTRIES: OK Poultry Farmers Allege Fraud, Unfair Business Deals
---------------------------------------------------------------------
About 400 Oklahoma poultry farmers are suing Arkansas chicken company,
OK Industries, Inc. for roughly US$30 million, alleging the Company
made millions of dollars by luring the poultry farmers into a losing
business deal, the Associated Press Newswires reported.
"O.K. Industries promises poultry farmers an honest deal, that they
will be paid well and paid based on how good a job the farmers do
raising chickens," said Charles Goodwin, an Oklahoma City attorney
represeeenting the chicken growers. "The reality is that the farmers
oftentimes make no more than a poverty-level income."
The federal class action raising this issue was filed in Muskogee,
Oklahoma, and demands $75,000 for each farmer who does contract work
for the Fort Smith, Arkansas-based Company. The farmers contend that
they invested about $200,000 or more in building each chicken house.
The lawsuit alleges further that the chicken houses deteriorate quickly
and the farmers are not told how their pay is tied to the condition of
the buildings.
"Unfortunately, the farmers, who have invested hundreds of thousands of
dollars to build their chicken houses, are then forced to choose
between losing everything or staying with the company," Mr. Goodwin
said. Farmers then remain at the Company's mercy for the type of
chickens, feed, medication and other supplies used to raise the
chicks. Mr. Goodwin said the farmers' pay also is affected by when the
birds are picked up.
The suit also alleges that the Company's pay scale penalizes farmers
based on factors they cannot control.
PARTY CITY: Agrees To Settle Consolidated Securities Suit in NJ Court
---------------------------------------------------------------------
Party City Corporation reached an agreement to settle an amended
consolidated securities class action filed in the United States
District Court in New Jersey against the Company, its former Chief
Executive Officer, its former Chief Financial Officer and its Executive
Vice President of Operations.
The amended suit, filed on behalf of persons who purchased or acquired
the Company's common stock between February 26, 1998 and March 18,
1999, alleges among other things, violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-
5 promulgated thereunder, and sought unspecified damages.
The plaintiffs alleged that defendants issued a series of false and
misleading statements and failed to disclose material facts concerning,
among other things, the Company's financial condition, adequacy of
internal controls and compliance with certain loan covenants during the
class period. The plaintiffs further alleged that because of the
issuance of a series of false and misleading statements and/or the
failure to disclose material facts, the price of the Company's common
stock was artificially inflated.
In early 2000, defendants moved to dismiss the second amended complaint
on the ground that it failed to state a cause of action. The court
later issued an opinion and order dismissing the complaint against all
defendants with prejudice. The plaintiffs then filed a notice of
appeal to the United States Court of Appeals for the Third Circuit.
Prior to the argument of the appeal, the parties reached an agreement
in principle to settle the action. The parties have requested that the
Court of Appeals remand the case to federal court to supervise the
implementation of the settlement. The proposed amount to be paid by the
Company under the settlement is not material and is subject to various
conditions. These include the completion of the negotiation of a
definitive settlement agreement and the approval of the terms of the
settlement agreement by the district court after notice to the members
of the class who have the right to object.
PENNSYLVANIA: Groups File Suit Seeking Services For Mentally Disabled
---------------------------------------------------------------------
A coalition of advocacy groups recently filed a federal class action
against the state of Pennsylvania on behalf of mentally disabled
children and adults who are on waiting lists for community services,
the Pittsburgh Post-Gazette reports.
The lawsuit was filed in US District Court and asks the Court to order
the state Department of Public Welfare to provide services. At issue
is a proposed 30 percent reduction in promised state funding that
advocates say is needed to deliver services to the mentally retarded.
About 21,000 people in Pennsylvania are waiting for services, according
to Maureen Devaney, a coordinator of the Pennsylvania Waiting List
Campaign, which filed suit on behalf of three mentally retarded people
in Philadelphia and Montgomery County.
Former Governor Thomas Ridge, in 1999, proposed a five-year, $853
million plan to address the needs of Pennsylvanians waiting for
services through community living programs, job coaches, in-home
support to day programs.
Governor Mark S. Schweiker's proposed budget calls for a 30 percent cut
in funding from the original Ridge plan in the third year of the five-
year initiative, according to the Waiting List Campaign. However, a
spokesman for Public Welfare Secretary Feather O Houstoun, who was
named as defendant in the suit, said that Governor Schweiker's proposed
budget would still increase funding for community services for the
mentally retarded six percent over last year.
"We are disappointed that these advocates feel the need to sue on this
issue," said spokesman Jay Pagni. "Governor Schweiker has in fact
demonstrated his continuing commitment to individuals with mental
retardation."
STEVEN MADDEN: Agrees To Settle Consolidated Securities Suit in E.D. NY
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Steven Madden, Ltd. reached an agreement to settle a consolidated
securities class action pending in the United States District Court for
the Eastern District of New York against the Company, Steven Madden
personally, and, in some of the actions, the Company's then President
and Chief Financial Officer.
The amended complaint generally alleges that the Company and the
individual defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder
by issuing false and misleading statements, and failing to disclose
material adverse information relating, among other things, to certain
matters and allegations concerning Mr. Madden. The suit was filed on
behalf of the plaintiff and all other purchasers of the Company's
common stock during the period June 21, 1997 through June 20, 2000.
In January 2002, motions to dismiss the complaint were fully briefed.
Since that time, a settlement in principle of these actions has been
reached, subject to execution of definitive settlement documentation,
notices to class members, a hearing and approval by the court.
SULZER MEDICA: Accepts $725M Settlement of Faulty Implants Lawsuit
------------------------------------------------------------------
The Swiss medical technology company, Sulzer Medica AG recently said it
will accept a $725 million settlement with patients who received faulty
hip and knee implants, thus concluding the class action, the Associated
Press Newswires reports.
Under the settlement, 3,530 patients will receive an average of
$200,000, said the Company. The amount includes the cost of revision
surgeries and legal fees. The number requiring a second operation
ultimately may rise as high as 4,000. The Company's board of directors
approved the settlement after the number of patients "opting out" of
the deal had been reduced to 87 from 132.
The Company said it had made provisions over the past two years to
cover the cost of settlement. Company shares rose 12 percent after the
annoncement on the Zurich stock exchange. "We have achieved our stated
goal of fairly and quickly compensating patients while protecting and
further developing the business activities of our company," chairman
Max Link said.
In mid-May, there were still 132 patients opting out of the proffered
settlement, which had been approved the week before by Judge Kate
O'Malley of the US District Court in Cleveland. The Company's lead
counsel, Richard Scruggs, had said during negotiations with the opt
outs, that patients who chose to pursue litigation independently could
force the company to seek the protection of bankruptcy. Three women
filing individually in Corpus Christi received million dollar awards,
indicating to the Company that the opt-outs' independent litigation
could bankrupt it. Therefore, the Company asked for and received an
extension of time within which to negotiate to reduce the number of
opt-outs.
The case began when the Company had to recall thousands of artificial
joints in December 2000, after it was disclosed that a manufacturing
change had contaminated some of them with an oily residue that
prevented the new joint from bonding with patients' bones.
The Company will be renamed Centerpulse, a change that will take place
almost immediately.
SYMBOL TECHNOLOGIES: Mounting Strong Defense V. Securities Suits in NY
----------------------------------------------------------------------
Symbol Technologies, Inc. faces several securities class actions
pending in the United States District Court for the Eastern District of
New York on behalf of purchasers of the common stock of Symbol
Technologies, Inc. between October 19, 2000 and February 13, 2002,
inclusive. The suits name as defendants the Company and:
(1) Tomo Razmilovic,
(2) Jerome Swartz and
(3) Kenneth Jaeggi
The suits allege that defendants violated the federal securities laws
by issuing materially false and misleading statements, throughout the
class period that had the effect of artificially inflating the market
price of the Company's securities.
Specifically, the complaints allege that defendants engaged in conduct
which had the effect of increasing the Company's reported revenue and
profits, such as:
(i) the Company booked as profit in the third quarter of 2000 a
one-time royalty payment in excess of $10 million, enabling
the Company to make its third quarter projections;
(ii) the Company used expenses associated with its acquisition of
Telxon to mask the fact that its sales were declining; and
(iii) the Company booked as having shipped in the first quarter of
2001 more than $40 million in inventory that included side
provisions allowing customers to delay payments or return
merchandise, or included products that "never left the
warehouse."
The Company believes that all of these actions will be consolidated
into one lawsuit and that these litigations are without merit. The
Company intends to defend them vigorously.
UNITED STATES: Justice Department Barred From Interfering With OR Law
---------------------------------------------------------------------
The Justice Department said it will appeal an Oregon judge's ruling
that bans the Department from interfering with operation of an Oregon
law allowing doctors to help terminally ill people kill themselves, The
Tallahassee Democrat reported recently. Justice Department lawyers
recently filed paperwork relating to their plans to appeal to the San
Francisco-based Ninth US Circuit Court of Appeals.
Attorney John Ashcroft challenged the Oregon law when he issued a
federal directive authorizing federal drug agents to take action
against any doctor prescribing lethal drugs to be used in the
commission of a suicide.
In response, four Oregon citizens joined in a legal motion with
Attorney General Harody Myers of Oregon, in federal court, seeking the
Court's imposition of a stay on any federal action taken under the
directive. The Attorney General and the four Oregonians also filed a
lawsuit arguing that Mr. Ashcroft exceeded his authority under federal
drug laws and was illegally interfering with Oregon's authority to
regulate medicine.
US District Judge Robert Jones, in Portland, ruled that the Justice
Department lacks the authority to overturn, in effect, by its federal
directive, the Oregon suicide law. Judge Jones said that Mr. Ashcroft
was wrongly trying to "stifle" nationwide debate on assisted suicide,
and he also issued an injunction barring the Justice Department from
trying to prevent Oregon residents from using the law.
*Rise In 40(1)K Suits Prompts Examination of Pension Plan Fiduciaries
---------------------------------------------------------------------
As thousands of Enron workers were losing their retirement savings tied
to company stock last year, Enron's 401(k) trustees sold their own
holdings but did little to protect the plan participants. Lawmakers
have alleged that the trustees, all Enron executives were asleep at the
switch, at best or, at worst, operating under conflicts of interests,
according to a Wall Street Journal report. The workers are bringing
class actions. What they may recover, now that Enron is operating under
bankruptcy protection, is questionable.
Some states have questioned the judgment of their pension plan trustees
who continued to purchase Enron stock as its stock price plummeted -
these states, also, may be heading for the litigation route, hopeful
that some kind of plan for restitution will be carved out.
These instances hold more drama in the context of the Enron debacle,
but they do not stand alone. Industry executives say plan trustees at
many companies are ill-equipped for their jobs as fiduciaries, either
on account of potential conflicts of interest or ignorance about their
responsibilities.
As an example of the latter deficiency, in 1997, when Seagen
Pharmaceuticals of Gadsden, Alabama, ran into financial difficulties,
Oscar Hugh Campbell, the Company's President and a trustee of its
401(k) plan, says he began to withhold workers' contributions and the
Company's matching funds to the plan and, instead, channeled the money
to pay salaries. He reasoned that Seagen could later make up the
differences of $22,000, owed to two dozen workers, until the Labor
Department sued Seagen last year.
"No one ever said to me that this was illegal," said Mr. Campbell, who
has agreed to repay the money. "My thinking was, `I have got to keep
this company afloat.'"
Pension law does not require trustees to monitor the plans every day,
nor does it even require the trustees to possess investment expertise.
Many trustees don't even have financial backgrounds. At large
companies, they are often mid-level human-resources executives, while
at the smaller companies, they can be anything from a president of a
construction company to the head doctor at a family practice.
Their main job as trustee, vaguely defined, is to "oversee" the plans,
which includes monitoring the outside experts they hire, ensuring that
assets are "prudently" invested, and protecting the participants'
interests.
This poorly defined role can be further eroded by the trustee's other
role at the company. At Enron, where plan participants had invested
their nest eggs largely in Enron company stock, one former trustee was
an investor-relations executive who touted Enron stock to investors.
Another was a human-resources executive who learned of the serious
allegations about the company's financial practices. Neither took
action to protect plan participants as Enron's stock plunged last fall,
although one of these executives/trustees sold $6.5 million of her own
Enron shares earlier that year. The Labor Department has recently
replaced all Enron trustees with State Street, a Boston financial-
services company.
Trustees face other kinds of conflicts of interest as well. Last
month, the Labor Department tentatively settled a lawsuit against 27
union pension-plan trustees for imprudently investing $150 million of
plan money. The trustees had invested the workers' money with Capital
Consultants LLC, a Portland, Oregon, investment-management firm that is
under investigation for allegedly bilking investors of hundreds of
millions of dollars by investing their money in high-risk private
placements that allegedly fed a pyramid scheme. Capital Consultants
founder Jeffrey Grayson recently pleaded guilty to mail fraud in a deal
with federal prosecutors.
The union plan trustees are alleged to have ignored warnings from
outside advisers about Capital Consultants and to have violated their
plans' own investment rules as well. Under the settlement, the
trustees would pay $16 million in restitution. In addition, one
trustee pleaded guilty to accepting a payoff of $190,000 from Capital
Consultants, including a loan to a defunct company to buy his late
wife's catering business.
Chrys Martin, a lawyer who represents most of the trustees, says that
none of the professional advisers suggested that the trustees pull the
money out of Capital Consultants. In any case, she adds, "The trustees
are volunteers; they are not professionals."
Problems with the trustee system have been around for years, though the
number of fiduciary-breach cases brought by the Labor Department has
remained relatively steady in recent years, totaling 2,500 cases for
the fiscal year ended September 30, 2001, mostly against small plans.
However, the number of cases involving 401(k) plans has increased,
possibly as employer-sponsors become delinquent in plan payments amid
the recent economic downturn, says Ann Combs, the Labor Department's
assistant secretary for pension-and welfare-benefits administration.
The difference now is that plan participants at larger companies are
more, as the stock-market slump has sent the value of some plans
plunging. As more high-profile accounting scandals come to light, from
Enron to Global Crossing to Rite Aid, lawyers are expanding the focus
of lawsuits from company directors and executives to pension-plan
trustees.
Plan trustees are becoming more vulnerable, according to Eli
Gottesdiener, a Washington, DC lawyer, who has brought class actions
against trustees at several large 401(k) plans. "Employees and
the courts are no longer so quick to assume that . the people
overseeing their pension funds are looking out for the plan
participants' best interests first."
Last year, First Union paid $26 million through its insurance company
to settle two lawsuits over its 401(k) plan investments. In their
class actions, employees complained that the trustees for the First
Union 401(k) retirement plan improperly allowed the bank to charge
participants full price for financial services, while outside investors
received waivers and discounts. The suits also alleged the bank's own
mutual fund was offered as an investment choice, in an attempt to make
the fund more attractive to outside investors, using participants'
money.
The trustees at the bank, now Wachovia, "did not have the training or
the incentive to stand up and say , `Excuse me, this isn't right,'"
said Mr. Gottesdiener, the plaintiffs' lawyer in these cases. One
trustee, a human-resources executive, "didn't know the difference
between the S&P 500 and the Fortune 500," he added.
Sandra Deem, a First Union spokeswoman, says, "We didn't admit to any
wrongdoing, so we felt we were administering the plan in the best way."
With lawsuits such as First Union's in mind, employers are giving more
thought to beefing up trustee education, in hopes of protecting
themselves from lawsuits, and are buying more liability insurance.
John Coonan, a vice president at Chubb & Son, an insurer, says Chubb
received 40 percent more requests from brokers to underwrite fiduciary-
liability insurance for new customers for the first quarter from the
year-earlier period.
Employees, however, cannot expect much help from regulators. Although
the House recently passed a pension-overhaul bill that would require
the Labor Department to set up an education program for plan
fiduciaries, such training would be voluntary, said Ms. Combs, an
assistant secretary for pension administration in the Labor Department.
At present, no governance is forthcoming that will promote trustee
incentive and limit conflicts of interests. At least, a debate has
begun that identifies the ills of the present system. The increase in
class-action lawsuits for breach of fiduciary obligations, may result
in some degree of self-regulation within the larger corporations.
New Securities Fraud Suits
ALLIED CAPITAL: Bernard Gross Commences Securities Suit in S.D. NY
------------------------------------------------------------------
The Law Offices of Bernard M. Gross, PC initiated a securities class
action in the United States District Court for the Southern District of
New York, on behalf of all purchasers of the securities of Allied
Capital Corporation (NYSE:ALD) between November 14, 2001 and May 16,
2002, inclusive. The suit is pending in the United States District
Court, Southern District of New York against the Company, William L.
Walton and Penni F. Roll.
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 a series of material misrepresentations to the
market between November 14, 2001 and May 16, 2002, thereby artificially
inflating the price of Company securities.
Throughout the class period, as alleged in the suit, defendants issued
numerous statements and filed quarterly and annual reports with the SEC
which described the Company's investments and their valuations. The
suit alleges that these statements were materially false and misleading
because they failed to disclose and/or misrepresented these adverse
facts, among others:
(1) that the Company was overstating the value of its investments
in companies such as Velocita, Inc. and the Loewen Group, Inc;
(2) that the Company was improperly delaying the write-down of its
impaired investments; and
(3) that as a result, the value of the Company's private finance
portfolio and total assets was materially overstated at all
relevant times.
On May 16, 2002, the last day of the class period, when concerns were
raised by a money manager about the Company's long-term prospects and
its accounting practices and management, shares of the Company fell
$2.79 per share, or approximately 10%, to close at $23.20 per share,
after reaching an intra-day low of $20 per share, on volume of more
than 14 million shares traded.
For more details, contact Deborah R. Gross or Susan Gross by Mail: 1515
Locust Street, Second Floor, Philadelphia, PA 19102 by Phone:
800-849-3120(toll-free) or 866-561-3600 (toll-free) or 215-561-3600 by
E-mail: susang@bernardmgross.com or Debbie@bernardmgross.com or visit
the firm's Website: http://www.bernardmgross.com
ALLIED CAPITAL: Schiffrin & Barroway Lodges Securities Suit in S.D. NY
----------------------------------------------------------------------
Schiffrin & Barroway, LLP initiated a securities class action in the
United States District Court for the Southern District of New York on
behalf of all purchasers of the common stock of Allied Capital
Corporation (NYSE: ALD) between November 14, 2001 and May 16, 2002,
inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statements concerning its business
and financial condition. Specifically, throughout the class period, as
alleged in the suit, defendants issued numerous statements and filed
quarterly and annual reports with the SEC, which described the
Company's investments and their valuations.
The suit alleges that these statements were materially false and
misleading because they failed to disclose and/or misrepresented the
following adverse facts, among others:
(1) that the Company was overstating the value of its investments
in companies such as Velocita, Inc. and The Loewen Group,
Inc.;
(2) that the Company was improperly delaying the write-down of its
impaired investments; and
(3) that as a result, the value of the Company's private finance
portfolio and total assets was materially overstated at all
relevant times.
On May 16, 2002, the last day of the class period, when concerns were
raised by a money manager about the Company's long-term prospects and
its accounting practices and management, shares of the Company fell
$2.79 per share, or approximately 10%, to close at $23.20 per share,
after reaching an intra-day low of $20 per share, on volume of more
than 14 million shares.
For more details, contact Marc A. Topaz or Stuart L. Berman by Mail:
Three Bala Plaza East, Suite 400, Bala Cynwyd, PA 19004 by Phone:
888-299-7706 (toll free) or 610-667-7706 by E-mail: info@sbclasslaw.com
or visit the firm's Website: http://www.sbclasslaw.com
ALLIED CAPITAL: Cauley Geller Lodges Securities Fraud Suit in S.D. NY
---------------------------------------------------------------------
Cauley Geller Bowman & Coates, LLP initiated a securities class action
in the United States District Court for the Southern District of New
York on behalf of purchasers of Allied Capital Corporation (NYSE: ALD)
common stock during the period between November 14, 2001 and May 16,
2002, inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statements concerning its business
and financial condition. Specifically, throughout the class period, as
alleged in the suit, defendants issued numerous statements and filed
quarterly and annual reports with the SEC, which described the
Company's investments and their valuations.
The suit alleges that these statements were materially false and
misleading because they failed to disclose and/or misrepresented the
following adverse facts, among others:
(1) that the Company was overstating the value of its investments
in companies such as Velocita, Inc. and The Loewen Group,
Inc.;
(2) that the Company was improperly delaying the write-down of its
impaired investments; and
(3) that as a result, the value of the Company's private finance
portfolio and total assets was materially overstated at all
relevant times.
On May 16, 2002, the last day of the class period, when concerns were
raised by a money manager about the Company's long-term prospects and
its accounting practices and management, its shares fell $2.79 per
share, or approximately 10%, to close at $23.20 per share, after
reaching an intra-day low of $20 per share, on volume of more than 14
million shares.
For more details, contact Jackie Addison, Sue Null or Shelly Nicholson
by Mail: P.O. Box 25438, Little Rock, AR 72221-5438 by Phone:
888-551-9944 by E-mail: info@classlawyer.com or visit the firm's
Website: http://www.classlawyer.com
COMPUTERIZED THERMAL: Stoll Stoll Commences Securities Suit in OR Court
-----------------------------------------------------------------------
Stoll Stoll Berne Lokting & Shlachter PC initiated a securities class
action in the United States District Court for the District of Oregon
on behalf of all purchasers of the common stock of Computerized Thermal
Imaging, Inc. (Amex: CIO) between October 11, 1999 and December 21,
2001, inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statements concerning its business
and financial condition. Specifically, the complaint alleges that the
Company has admitted that during the class period, its then-President
and Chief Operating Officer, David Packer, consistently made material
public misrepresentations regarding FDA approval of the Company's
Breast Cancer Detection System.
These statements had the effect of artificially raising the price of
Company stock so that investors who purchased Company shares during the
class period did so at inflated prices and were damaged thereby.
For more details, contact Timothy S. DeJong by Phone: 503-227-1600 by
E-mail: tdejong@ssbls.com or visit the firm's Website:
http://www.ssbls.com
DOV PHARMACEUTICAL: Wolf Haldenstein Lodges Securities Suit in S.D. NY
----------------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class
action in the United States District Court for the Southern District of
New York, on behalf of purchasers of the common stock of DOV
Pharmaceutical, Inc. (Nasdaq: DOVP) pursuant or traceable to the
Company's April 25, 2002 initial public offering against the Company,
certain of its officers and directors, and CIBC World Markets and
Lehman Brothers, the underwriters of the IPO.
The complaint alleges that defendants violated the federal securities
laws by issuing a materially false and misleading prospectus pursuant
to their IPO that had the effect of artificially inflating the market
price of the Company's securities.
The Company sold 5 million shares in its IPO at a price of $13 per
share on April 25, 2002. On that same day, the price of Company shares
fell 33%, from $13 to $8.70 per share on trading of 5.6 million shares
(an amount in excess of the total of number of shares offered in the
IPO).
Unbeknownst to the majority of the investing public, after purchase
commitments were obtained, the Company re-filed its offering documents
with the SEC to reflect a revision of its 1999 financial results for a
joint venture in Bermuda with Elan Corporation, itself the subject of
recent accounting inquiries and related litigation. The SEC suggested
the Company change the way it accounted for the initial funding for the
venture known as DOV Bermuda Ltd. The change caused a onetime
adjustment that widened the loss of the venture in 1999 to $11.9
million (from $10.2 million).
The Company issued a statement on April 26, 2002 that the accounting
change was not "material" to its business. The investing public felt
otherwise, however, as evidenced by the stock price decline immediately
following the IPO. Even following the Company's April 26, 2002
"explanation" of the effect of the change, the price of Company stock
did not materially recover and has continued to trail downward.
For more details, contact Fred Taylor Isquith, Gregory Nespole, Gustavo
Bruckner, Michael Miske, George Peters or Derek Behnke by Mail: 270
Madison Avenue, New York, New York 10016 by Phone: 800-575-0735, by E-
mail: classmember@whafh.com or visit the firm's Website:
http://www.whafh.com. All e-mail correspondence should make reference
to DOV.
DYNEGY INC.: Stull Stull Commences Securities Fraud Suit in S.D. TX
-------------------------------------------------------------------
Stull Stull & Brody initiated a securities class action in the United
States District Court for the Southern District of Texas, Houston
Division, on behalf of purchasers of the securities of Dynegy, Inc.
(NYSE:DYN) between August 14, 2001 and April 24, 2002, inclusive,
against the Company and certain of its officers and directors.
The complaint alleges that defendants violated the federal securities
laws by issuing materially false and misleading statements throughout
the class period that had the effect of artificially inflating the
market price of the Company's securities.
Specifically, the complaint alleges that during the class period
defendants issued to the investing public false and misleading
financial statements concerning the Company's publicly reported
revenues, earnings and cash flow. Moreover, the Company omitted to
state material information necessary to be issued in order to make
prior statements not misleading.
On April 25, 2002, before the market opened, the Company shocked the
investing community by announcing that it would revise 2001 financial
statements as the Securities and Exchange Commission probes its
accounting of certain natural gas contracts. These disclosures
concerning the true nature of the transactions referred to by Company
executives as "Project Alpha," contradicted much of the information
provided by defendants to the market during the class period concerning
its reported revenues and caused the Company's common stock to plummet
nearly 30% by the end of trading on April 25, 2002, on inordinately
heavy volume.
Also on April 25, 2002, the Company reported a net loss of $140 million
dollars for the first quarter of 2002, which the Company attributed
largely to a $300 million write-down of its telecommunications
ventures.
Further, following the close of the class period, the Company disclosed
on April 30, 2002, that it would report a $140 million loss for the
first quarter of 2002 due mainly to costs associated with its under-
performing telecommunications division.
For more details, contact Tzivia Brody by Mail: 6 East 45th Street, New
York NY 10017 by Phone: 800-337-4983 by Fax: 212-490-2022 or by E-mail:
SSBNY@aol.com
MERRILL LYNCH: Brodsky & Smith Launches Securities Fraud Suit in NY
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Brodsky & Smith, LLC initiated a securities class action against
Merrill Lynch & Co. on behalf of shareholders who purchased the common
stock Interliant, Inc. (Nasdaq:INIT) between August 4, 1999 and April
8, 2002, inclusive. The case is pending in the United States District
Court for the Southern District of New York, against the Company and
certain key officers and directors.
The action charges that defendants violated the federal securities laws
and that these practices came to light on April 8, 2002, when after a
10-month investigation, the New York State Attorney General concluded
that since 1999, internet research analysts of Merrill Lynch published
ratings for internet stocks that were misleading
For more details, contact Jason L. Brodsky or Evan J. Smith by Mail: 11
Bala Avenue, Bala Cynwyd, PA 19004 by Phone: 877-LEGAL-90 or by E-mail:
JBrodsky@Brodsky-Smith.com or Esmith@Brodsky-Smith.com
MIRANT CORPORATION: Holzer & Holzer Commences Securities Suit in GA
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Holzer & Holzer initiated a securities class action in the United
States District Court for the Northern District of Georgia on behalf of
purchasers of Mirant Corporation, (NYSE:MIR) between January 19, 2001
and May 6, 2002, inclusive.
The complaint 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 a series of materially false and misleading
statements to the market between January 19, 2001 and May 6, 2002.
As alleged in the complaint, the Company reaped illegal profits in
California by artificially manipulating energy prices through a variety
of improper tactics. The suit alleges that the Company's fraudulent
practices have resulted in investigations by both the Attorney General
of the State of California, and the Federal Energy Regulatory
Commission, as well as a number of lawsuits filed by California, and
consumers.
The complaint further alleges that during the class period, while the
Company announced quarter-after-quarter of outstanding growth, and
assured investors that problems in the California market had been
properly accounted for, the Company, in fact, failed to:
(1) provide for the return of illegally obtained revenue, through
a charge to earnings;
(2) provide for professional fees associated with the
investigations arising from the fraud through a charge to
earnings; and
(3) disclose the fact that the illegally obtained revenue was
subject to forfeiture and that investigations surrounding the
illegally obtained revenue would result in the expenditure of
material amounts for legal and professional fees.
As a result, alleges the complaint, defendants' class period financial
statements were materially overstated, and failed to comply with
generally accepted accounting principles (GAAP).
For more details, contact Michael I. Fistel, Jr. by Phone: 404-847-0085
if in Atlanta, or 888-508-6832 if outside Atlanta or by E-mail:
michaelfisteljr@msn.com
MIRANT CORPORATION: Federman & Sherwood Files Securities Suit in GA
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Federman & Sherwood launched a securities class action on behalf of
purchasers of the securities of Mirant Corporation (NYSE: MIR) between
January l9, 2001 and May 6, 2002, inclusive, in the United States
District Court for the Northern District of Georgia. The suit names as
defendants:
(1) S. Marce Fuller (Chief Executive Officer),
(2) Raymond Hill (Chief Financial Officer),
(3) Richard Pershing (Executive Vice President and CEO of Mirant
North America) and
(4) James A. Ward (Principle Accounting Officer)
The complaint charges that defendants violated Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, by issuing a series of materially false and misleading
statements to the market between January 19, 2001 and May 6, 2002.
According to the complaint, the Company reaped illegal profits in
California by artificially manipulating energy prices through a variety
of improper tactics. The Company's fraudulent practices resulted in
investigations by both the Attorney General of the State of California,
and the Federal Energy Regulatory Commission, as well as a number of
lawsuits filed by California, and consumers.
During the class period, the Company failed to:
(i) provide for the return of illegally obtained revenue, through
a charge to earnings;
(ii) provide for professional fees associated with the
investigations arising from the fraud through a charge to
earnings; and
(iii) disclose the fact that the illegally obtained revenue was
subject to forfeiture and that investigations surrounding the
illegally obtained revenue would result in the expenditure of
material amounts for legal and professional fees.
As a result, defendants' class period financial statements were
materially overstated, and failed to comply with generally accepted
accounting principles (GAAP).
For more information, contact William B. Federman by Mail: 120 N.
Robinson Avenue, Suite 2720, Oklahoma City, OK 73102 by Phone:
405-235-1560 by Fax: 405-239-2112
PEREGRINE SYSTEMS: Schatz & Nobel Commences Securities Suit in S.D. CA
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Schatz & Nobel PC initiated a securities class action in the United
States District Court for the Southern District of California on behalf
of all persons who purchased the common stock or publicly traded
options of Peregrine Systems, Inc. (Nasdaq: PRGN) between April 1, 2000
and May 22, 2002, inclusive. Also included are all those who acquired
Company shares through its acquisition of Harbinger Corporation
(formerly Nasdaq: HRBC), Extricity Inc. (formerly Nasdaq: EXTY), and
Remedy Corporation (formerly Nasdaq: RMDY).
The suit alleges that the Company, a business software manufacturer,
and three members of its senior management misled the investing public
during the class period by allegedly recognizing revenue from non-
existent or improper product shipments in furtherance of a scheme to
artificially inflate the price of the Company's stock.
On May 6, 2002, the Company revealed that previously reported sales may
have been overstated, and that its Chief Executive Officer and Chief
Financial Officer had resigned. On May 22, 2002, the Company announced
that it would restate its financial statements for fiscal 2000 and 2001
and the first three quarters of fiscal 2002 as a result of its internal
investigation into improper revenue recognition. The Company also
revealed a SEC investigation into its accounting was underway.
For more details, contact Nancy A. Kulesa by Phone: 800-797-5499 by E-
mail: sn06106@aol.com or visit the firm's Website: http://www.snlaw.net
PEREGRINE SYSTEMS: Shapiro Haber Files New Securities Suit in S.D. CA
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Shapiro Haber & Urmy LLP, which filed the first class action suit
alleging securities fraud against Peregrine Systems, Inc. (Nasdaq:
PRGN), has filed another complaint that expands the class action
allegations to include all persons who purchased Company securities
during the period from July 21, 1999 through May 22, 2002, inclusive.
The class includes persons or entities who received Company stock in
exchange for their securities in Harbinger Corporation (Nasdaq: HRBC)
in connection with its acquisition by the Company on or around June 19,
2000. The lawsuit was filed in the United States District Court for
the Southern District of California against Peregrine and certain of
its officers and directors.
The amended complaint alleges that the defendants violated section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, and Section 20(a) of the Exchange Act, by making materially
false and misleading statements regarding the Company's revenues and
income.
On Monday, May 6, 2002, the Company shocked the market by announcing
that its board of directors had authorized an internal investigation
into accounting inaccuracies for its fiscal year 2001 and the first
three quarters of 2002, and that its Chairman of the Board and Chief
Executive Officer and its Chief Financial Officer had both resigned.
Before the market opened on May 23, 2002, the Company again shocked the
market by announcing that it was restating its financial results for
its fiscal years 2000 and 2001 as well as the first three fiscal
quarters of 2002, based on information that resulted from its ongoing
internal investigation into accounting "errors and irregularities."
The Company reported that it will, among other possible adjustments,
correct previously reported revenue recognition irregularities
amounting to as much as $100 million. The Company also disclosed that
the SEC has begun an investigation into the Company's accounting
practices.
For more details, contact Ted Hess-Mahan or Liz Hutton by Mail: 75
State Street, Boston, MA 02109 by Phone: 800-287-8119 by Fax:
617-439-0134 by E-mail: cases@shulaw.com or visit the firm's Website:
http://www.shulaw.com.
RAYOVAC CORPORATION: Milberg Weiss Lodges Securities Suit in W.D. WI
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Milberg Weiss Bershad Hynes & Lerach LLP initiated a securities class
action on behalf of purchasers of the securities of Rayovac Corporation
(NYSE: ROV) between April 26, 2001 and September 19, 2001, inclusive,
in the United States District Court, Western District of Wisconsin
against the Company and:
(1) Kenneth V. Biller,
(2) Kent J. Hussey,
(3) David A. Jones,
(4) Scott A. Schoen,
(5) Stephen P. Shanesy,
(6) Thomas R. Shepard,
(7) Randall J. Steward,
(8) Warren C. Smith, Jr. and
(9) Merrell M. Tomlin
The suit alleges that defendants violated Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder,
by issuing a series of material misrepresentations to the market
between April 26, 2001 and September 19, 2001, thereby artificially
inflating the price of Company securities.
Throughout the class period, as alleged in the suit, defendants issued
materially false and misleading statements, including a materially
false and misleading Registration Statement and Prospectus issued in
connection with its Secondary Offering of shares to the public,
regarding the demand for the Company's products and the Company's
future prospects.
Specifically, the suit alleges that these statements were materially
false and misleading because they failed to disclose and/or
misrepresented the following adverse facts, among others:
(i) that the Company was experiencing declining demand for its
products and in order to stimulate demand and create the
impression that the Company was performing according to
analyst expectations, the Company was extending generous
credit terms to customers in order to induce them to purchase
additional products, thereby pulling sales in from the future.
As a result, the Company created the appearance of earnings
growth, when defendants knew, or recklessly disregarded that
future sales would be negatively impacted by the
aforementioned practices;
(ii) that the Company's expansion in Latin America was the result
of aggressive sales practices whereby the Company extended
generous payment terms and induced customers to take
additional unneeded inventory; and
(iii) based on the foregoing, defendants lacked a reasonable basis
for their statements that the Company would grow by 8-9% in
the third and fourth quarter of 2001.
On September 20, 2001, before the market opened for trading, the
Company issued a press release announcing that the Company's fiscal
fourth quarter results would be negatively impacted by a purported
slowdown in battery sales in its US and Latin American markets.
As a result, contrary to defendants' bullish class period statements,
Company earnings for the quarter would be flat to down slightly from
the same period for the previous year.
The market's reaction to this announcement was immediate and punitive,
with shares of the Company's common stock falling more than 23% to a
class period low of $12.74 per share on almost eight times the normal
trading volume.
For more details, contact Steven G. Schulman or Samuel H. Rudman by
Mail: One Pennsylvania Plaza, 49th fl., New York, NY 10119-0165 by
Phone: 800-320-5081 by E-mail: RayovacCase@milbergNY.com or visit the
firm's Website: http://www.milberg.com
SEITEL INC.: Rabin & Peckel Commences Securities Fraud Suit in S.D. TX
----------------------------------------------------------------------
Rabin & Peckel LLP initiated a securities class action in the United
States District Court for the Southern District of Texas, Houston
Division on behalf of all persons or entities who purchased Seitel,
Inc. common stock (NYSE:SEI) between July 13, 2000 and April 1, 2002,
both dates inclusive. The suit names as defendants the Company and"
(1) Paul A. Frame,
(2) Debra D. Valice,
(3) Marcia H. Kendrick, and
(4) Herbert M. Pearlman
The suit alleges that defendants violated Section 10(b) of the
Securities and Exchange Act of 1934 by issuing a series of materially
false and misleading statements concerning the Company's financial
results for fiscal 2000 and 2001.
In particular, it is alleged that during the class period a material
amount of the Company's reported revenue was derived from improper
recognition of revenue on certain data licensing contracts in violation
of generally accepted accounting principles.
The suit alleges that as a result of these false and misleading
statements the price of Company common stock was artificially inflated
throughout the class period causing plaintiff and the other members of
the class to suffer damages and enabling the individual defendants to
sell their shares at artificially inflated prices for proceeds in
excess of $10.3 million.
For more details, contact Eric Belfi or Sharon Lee by Mail: 275 Madison
Avenue, New York, NY 10016 by Phone: 800-497-8076 or 212-682-1818 by
Fax; 212-682-1892 by E-mail: email@rabinlaw.com or visit the firm's
Website: http://www.rabinlaw.com
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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
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Beard Group, Inc., Washington, D.C. Enid Sterling, Aurora Fatima
Antonio and Lyndsey Resnick, Editors.
Copyright 2002. All rights reserved. ISSN 1525-2272.
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