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/raid1/www/Hosts/bankrupt/CAR_Public/030317.mbx C L A S S A C T I O N R E P O R T E R Monday, March 17, 2003, Vol. 5, No. 53 Headlines AGILENT TECHNOLOGIES: NY Court Dismisses in Part Securities Fraud Suit ARIZONA: New Bill Limiting Lawsuits On Home Defects Approved In House AUCTION HOUSES: Sotheby's, Christie's Settle To Avoid Other Lawsuits BAXTER INTERNATIONAL: Asks IL Court To Dismiss Securities Fraud Lawsuit BAXTER INTERNATIONAL: Faces New Suit Over Drug Pricing Policies in TN DUPONT: WV DEP Limits C8 Water, Air Levels In Plant Pollution Permits ELECTRONIC DATA: Asks TX Court To Consolidated Securities Fraud Suits HASTINGS ENTERTAINMENT: Court Grants Final Approval To Securities Suit HEWLETT PACKARD: Faces Several Consumer Lawsuits Over Inkjet Printers HEWLETT PACKARD: Appeal of TX Securities Settlement Approval Withdrawn HEWLETT PACKARD: Named As Defendant in South Africa Apartheid Lawsuit ILLINOIS: Female Inmates Bring Federal Suit Over Cook County Lockdowns MISSOURI: Federal Judge Rules That Sex Offender List Must Remain Public NL INDUSTRIES: Asks IN Court To Dismiss Environmental Damages Lawsuit NL INDUSTRIES: Discovery Commences In Consolidated Suit Over Lead in OK RETEK INC.: NY Court Dismisses in Part Consolidated Securities Lawsuit RETEK INC.: Expects Securities Lawsuits in MN Court To Be Consolidated SEARS ROEBUCK: Securities Fraud Lawsuits Being Consolidated in IL Court SEARS ROEBUCK: Illinois Court Consolidates Employees' 401(K) Plan Suit TOBACCO LITIGATION: Closing Arguments Presented In IL Smokers' Lawsuit TRUDEAU CORPORATION: Recalls 45,200 Fondue Pots For Fire, Burn Hazard New Securities Fraud Cases ASTROPOWER INC.: Spector Roseman Commences Securities Fraud Suit in DE BAYER AG: Brodsky & Smith Commences Securities Fraud Lawsuit in S.D. NY INTERSTATE BAKERIES: Wolf Haldenstein Lodges Securities Suit in W.D. MO KING PHARMACEUTICALS: Glancy & Binkow Lodges Securities Suit in E.D. TN MONTEREY PASTA: Cauley Geller Launches Securities Fraud Suit in N.D. CA PROVIDENT FINANCIAL: Spector Roseman Lodges Securities Suit in S.D. OH SAWTEK INC.: Bernstein Liebhard Lodges Securities Fraud Suit in M.D. FL SOLECTRON CORPORATION: Abbey Gardy Lodges Securities Fraud Suit in CA SPRINT FON: Stull Stull Commences Securities Fraud Lawsuit in KS Court ********* AGILENT TECHNOLOGIES: NY Court Dismisses in Part Securities Fraud Suit ---------------------------------------------------------------------- The United States District Court for the Southern District of New York dismissed in part the consolidated securities class action filed against Agilent Technologies, certain of its officers and directors and certain investment bank underwriters. The suit alleges undisclosed and improper practices by the underwriters concerning the allocation of Company IPO shares, in violation of the federal securities laws, and seeks unspecified damages on behalf of purchasers of the Company's stock from November 17, 1999 through December 6, 2000, an earlier Class Action Reporter states. On February 19, 2003 the court issued a ruling dismissing claims against the Company based upon Section 10 of the Securities Exchange Act of 1934, as amended, but denying the motion to dismiss as to claims against Agilent founded upon Section 11 of the Securities Act of 1933, as amended. This case is similar to numerous other cases filed in the Southern District Court of New York concerning the IPO market of the late 1990's. The Company believes it has meritorious defenses to the claims and will defend itself vigorously. ARIZONA: New Bill Limiting Lawsuits On Home Defects Approved In House --------------------------------------------------------------------- Arizona's House approved a bill backed by homebuilders to require homeowner associations to get approval from a majority of their memberships, excluding votes cast by sellers, before filing lawsuits over shoddy construction, the Associated Press Newswires reports. The bill was approved 36 to 20 and now goes to the Senate. State law already requires that the boards of home associations notify all association members regarding planned lawsuits over construction defects; the new bill takes the obstacles placed in the path of homeowner associations wanting to sue over construction defects one step further: now they would have to get majority approval from the association membership. The bill approved by the House is another chapter in the ongoing fight by homebuilders to lower their insurance costs, which the builders blame on class actions filed by the homebuyers over construction defects. Last year, then-Governor Jane Hull signed into law legislation that created a formal 90-day process for fixing construction defects without buyers having to go to court. Under that legislation, builders' failure to follow the process could be used against them in court. The 2002 law, labeled a compromise, still allowed homeowners safety or life-threatening problems to go straight to court. Supporters of the new bill argue that many homeowners are unaware that their associations have sued over defects or that the existence of the lawsuits filed on behalf of them could affect values of their properties. On the other hand, opponents have said the requirement for a majority membership vote would effectively stifle lawsuits because it would be just about impossible to get approval from that many owners. AUCTION HOUSES: Sotheby's, Christie's Settle To Avoid Other Lawsuits -------------------------------------------------------------------- Auction houses Sotheby's and Christie's, in an effort to clear the legal mess left behind by a price-fixing conspiracy which sent tremors through the segment of the world that deals in high-valued fine art, jewelry, furniture, and fine antiques, decided to pay $40 million to settle an antitrust class action brought by overseas customers, claiming price-fixing by the two houses, Associated Press Newswires reports. The overseas settlement is designed to head off two other class action claims. Therefore, under the terms of the settlement, a lawsuit threatened by Sotheby's and Christie's customers in England and another suit by their customers in Canada will be dismissed, the houses said. However, the settlement will be open to other overseas sellers as well. Each auction house will pay $20 million in the settlement, which the lawyers have said could eventually involve tens of thousands of customers worldwide. A judge still must give final approval to the settlement. "You are talking about dozens and dozens of auctions, with hundreds of items in each auction, occurring in auction houses around the world," said Charles Wright, lead attorney in the Canadian suit. The two houses control nearly the entire highly lucrative worldwide auction market in everything from furniture to antiques to fine art. Mr.Wright said he expected tens of thousands of Christie's and Sotheby's customers eventually to apply for payouts from the instant settlement. In 2001, a federal judge approved a $537 million settlement of a lawsuit by 130,000 US customers of the auction houses. The two houses split the payouts for these customers as well. The United States government charged the two auction houses with colluding in 1993 to end their costly rivalry by eliminating discounts and charging nonnegotiable commissions, thereby depriving the sellers of the opportunity to bargain for a lower price, a loss which has been estimated to have cost sellers as much as $40,000 in commissions from 1993 to 1999. Former Sotheby's chairman A. Alfred Taubman was convicted two years ago of plotting with his Christie's chief, Anthony Tennant, to fix the commissions paid by sellers of fine art from 1993 to 1999. Mr. Tennant lives in England; he has refused to come to the United States for trial and cannot be extradited on antitrust charges. BAXTER INTERNATIONAL: Asks IL Court To Dismiss Securities Fraud Lawsuit ----------------------------------------------------------------------- Baxter International, Inc. asked the United States District Court for the Northern District of Illinois to dismiss the consolidated securities class action pending against it, its Chief Executive Officer and Chief Financial Officer. Several suits were commenced in August 2002, alleging that that the defendants violated the federal securities laws by making misleading statements that allegedly caused the Company's common stock to trade at inflated levels. In December 2002, plaintiffs filed their consolidated amended class action, which named nine additional Baxter officers as defendants. In October 2002, the Company and members of its Board of Directors were named as defendants in a lawsuit filed in the same court by an alleged participant in the Baxter Incentive Investment Plan (Plan), purportedly on behalf of the Plan and a class of Plan participants who purchased shares of Baxter common stock. This lawsuit sets forth claims for unspecified damages under the Employee Retirement Income Security Act of 1974, as amended, and is based on allegations similar to those made in the earlier securities lawsuits. This suit was later consolidated with the other suits mentioned above. The Company believes that all of these lawsuits are without merit. BAXTER INTERNATIONAL: Faces New Suit Over Drug Pricing Policies in TN --------------------------------------------------------------------- Baxter International, Inc. faces a new class action filed in addition to other pending suits on behalf of purchasers of Medicare and Medicaid eligible drugs alleged to have been injured by the Company and others as a result of pricing practices for the drugs. Nine lawsuits were filed against the Company and several of its subsidiaries in various federal courts as a result of pricing practices for such drugs, which are alleged to be artificially inflated. The suits have been transferred to the United States District Court for the District of Massachusetts for consolidated pretrial case management under Multi District Litigation rules. Claimants seek damages and declaratory and injunctive relief under various state and/or federal statutes. In addition, in January 2002, the Attorney General of Nevada filed a civil suit in the Second Judicial District Court of Washoe County, Nevada. In February 2002, the Attorney General of Montana filed a civil suit in the First Judicial District Court of Lewis and Clark County, Montana. These two lawsuits, which each name a subsidiary of the Company as a defendant and seek damages, injunctive relief, civil penalties, disgorgement, forfeiture and restitution, allege that prices for Medicare and Medicaid eligible drugs were artificially inflated in violation of various state laws. In October 2002, the Judicial Panel on Multi District Litigation issued an order denying plaintiffs' motions to vacate orders transferring the actions brought in Nevada and Montana to the United States District Court for the District of Massachusetts for consolidated pretrial case management under the Multi District Litigation rules. The suit names the Company and a subsidiary as defendants, along with others and is pending in the Superior Court of Maricopa County, Arizona, on behalf of a class of individuals and entities alleged to have been injured as the result of artificially inflated prices of prescription drugs. The complaint seeks civil damages, injunctive relief and costs. In January 2003, a subsidiary of Baxter International was named along with others in a new suit filed in the Circuit Court of Tennessee for the 30th Judicial District on behalf of a class of individuals alleged to have been injured as the result of artificially inflated prices of prescription drugs. The complaint seeks treble damages, attorneys' fees, interest and restitution of alleged losses. Various state and federal agencies are conducting civil investigations into the marketing and pricing practices of Baxter and others with respect to Medicare and Medicaid reimbursement. DUPONT: WV DEP Limits C8 Water, Air Levels In Plant Pollution Permits --------------------------------------------------------------------- Limits on both air and water levels for emission of the controversial chemical C8, used by DuPont at its Wood County plant in West Virginia, will be enforced as part of the company's pollution permits, a spokesman for the state Department of Environmental Protection (DEP) announced recently, according to a report by Associated Press Newswires. The DEP notified DuPont of the change in its permits by a letter, said DEP attorney Perry McDaniel. The permit change will give DEP the power to enforce limits on the emissions of ammonium perfluorooctanoate, commonly known as C8, from DuPont's Washington Works. A report issued by DEP's toxicology team last August set a limit of one microgram per cubic meter as a long-term exposure level. That means that the average annual emission of C8 must be no greater than one microgram per cubic meter at any area outside of DuPont's plant. Mr. McDaniel said the agency has made it clear that the standard imposed on DuPont's permits for C8 emissions "is a provisional number, a number to use for compliance between now and the time that the US Environmental Protection Agency comes out with an official standard. "We thought it was important to do something, and this is the way we could do that," said Mr. McDaniel. The imposition of the emission levels at this time stems from a consent order Dupont signed during the course of a class action filed by residents who live near the Washington Works plant. The class action alleges that the Company knowingly discharged C8 into water supplies, and that exposure to such discharges in the water has made the residents sick. DuPont agreed to limit C8 emissions - both air and water emissions - from its plant in a December 2001 consent order that established temporary guidelines while the US EPA develops permanent guidelines for the chemical. C8 is a key chemical in the manufacturing of Teflon, which is what Dupont makes at its Wood County, West Virginia, plant. So far, it has not been regulated by either state or federal agencies. Little is known for certain about the chemical, including its effects on human health, which is why the C8 limits set for the chemical's emissions on Dupont's pollution permits had to be provisional, conditioned upon the guidelines to be developed by EPA research. ELECTRONIC DATA: Asks TX Court To Consolidated Securities Fraud Suits --------------------------------------------------------------------- Electronic Data Systems Corporation asked the United States District Court for the Eastern District of Texas to consolidated several class actions pending against it and certain of its officers. Several suits were filed from September through December 2002 in response to the Company's September 18, 2002 earnings pre-announcement, publicity about certain equity hedging transactions that it had entered into, and the drop in the price of EDS common stock. The cases allege violations of various federal securities laws and common law fraud based upon purported misstatements and/or omissions of material facts regarding our financial condition. In addition, five class actions have been filed on behalf of participants in the Company's 401(k) Plan against the Company, certain of its current and former officers and, in some cases, its directors, alleging the defendants breached their fiduciary duties under the Employee Retirement Income Security Act (ERISA) and made misrepresentations to the class regarding the value of Company shares. The Company intends to defend the action vigorously. As these matters are in the earliest stages, the Company is not able to determine the actual impact on its consolidated financial statements; however, the Company does not expect the impact to be material. HASTINGS ENTERTAINMENT: Court Grants Final Approval To Securities Suit ---------------------------------------------------------------------- The United States District Court for the Northern District of Texas granted final approval to a settlement proposed by Hastings Entertainment, Inc. (Nasdaq: HAST) to settle a consolidated securities class action pending against it and certain of its current and former directors and officers. Several suits was commenced in 2000 after the Company restated its consolidated financial statements for the first three quarters of fiscal 1999 and the prior four fiscal years. The suits assert various claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On May 15, 2000, a lawsuit was filed in the United States District Court for the Northern District of Texas against the Company, its current and former directors and officers at the time of the Company's June 1998 initial public offering and three underwriters, Salomon Smith Barney, A.G. Edwards & Sons, Inc. and Furman Selz, LLC asserting various claims under Sections 11, 12(2) and 15 of the Securities Act of 1933. Motions to dismiss these actions were filed by the Company and, on September 25, 2001, were denied by the court, according to an earlier Class Action Reporter story. On September 12, 2002, the Company announced that an agreement in principle to settle the actions described above had been reached. The settlement requires a payment of $5.75 million ($3.25 million of which the Company estimates will be funded from amounts remaining under the Company's director and officer insurance policy after the payment of litigation expenses) and the assignment to the plaintiff settlement class of any claims the Company may have had against KPMG Peat Marwick, LLP, the Company's outside auditors at the time of the March 7, 2000 announcement. The settlement resolves all claims against the Company, its current and former defendant officers and directors and the defendant underwriters. Based on the foregoing, the Company recorded a loss contingency of $2.5 million, or $0.22 per share, during the second quarter of fiscal 2002. "We are pleased that these lawsuits have been brought to a close," John H. Marmaduke, President and Chief Executive Officer, said in a statement. ". we are now able to devote all of our time to managing our business." For more details, contact Dan Crow, Vice President and Chief Financial Officer of Hastings Entertainment, Inc. by Phone: 1-806-351-2300, ext. 6000 or visit the firm's Website: http://www.gohastings.com HEWLETT PACKARD: Faces Several Consumer Lawsuits Over Inkjet Printers --------------------------------------------------------------------- Hewlett Packard faces several consumer class actions filed in different states across the country. The various plaintiffs throughout the country claim to have purchased different models of HP inkjet printers over the past four years. The basic factual allegation of these actions is that when the affected consumers purchased HP printers, they received half-full or "economy" ink cartridges instead of full cartridges. Plaintiffs claim that HP's advertising, packaging and marketing representations for the printers led the consumers to believe they would receive full cartridges. One suit is an unfair business practices consumer suit filed in state court in Riverside County, California. Similar suits have been filed, in coordination with the original plaintiffs, in 32 additional states. These actions seek injunctive relief, disgorgement of profits, compensatory damages, punitive damages and attorneys' fees under various state unfair business practices statutes and common law claims of fraud and negligent misrepresentation. The Company obtained summary judgment against plaintiffs in the California action, which the plaintiffs are appealing. The Company also obtained summary judgment in Kansas and Arizona. The matter has been certified as a class action in North Carolina state court, and a trial date has been set for June 9, 2003. The Ohio and New York litigation has been dismissed. In Connecticut, the trial court denied the plaintiffs' motion to certify a class action. In Oregon and Washington, the case has been dismissed without prejudice. The litigation is in various stages in other jurisdictions. HEWLETT PACKARD: Appeal of TX Securities Settlement Approval Withdrawn ---------------------------------------------------------------------- Plaintiffs in the consolidated securities class action against Hewlett Packard in the United States District Court in the Southern District of Texas voluntarily withdrew their appeal of the approval of the settlement for the suit. The consolidated suit was brought against Compaq Computers, which the Company acquired, and certain present and former directors and officers of Compaq, on behalf of all persons who purchased Compaq common stock from July 10, 1997 through March 6, 1998. The consolidated amended complaint alleges that defendants violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder by withholding information and making misleading statements about channel inventory, factoring of receivables and Compaq marketing programs in order to inflate the price of Compaq's common stock, and further alleges that a number of individual defendants sold Compaq common stock at those purportedly inflated prices. In July 2000, the case was certified as a class action, but this action was later vacated by the United States Fifth Circuit Court of Appeals. Compaq reached a mediated settlement with lead plaintiffs and their attorneys in the amount of approximately $29 million, of which approximately $28 million is covered by insurance. The parties presented this settlement to the federal court for approval in June 2002. The final hearing on the fairness of the settlement was held on November 1, 2002. On November 25, 2002, the court entered two orders. One order approved the settlement and granted a final judgment and dismissal with prejudice. The second order awarded fees and expenses to plaintiffs' counsel. On December 17, 2002, a notice of appeal of both orders was filed. On February 3, 2003, an agreed motion for voluntary dismissal of the appeal was filed and the appeal was dismissed. HEWLETT PACKARD: Named As Defendant in South Africa Apartheid Lawsuit --------------------------------------------------------------------- Hewlett Packard Company was named as a defendant along with other multinational corporations in the class action filed in United States District Court in the Southern District of New York on behalf of current and former South African citizens and their survivors who suffered violence and oppression under the apartheid regime. The lawsuit alleges that the Company and other companies helped perpetuate, and profited from, the apartheid regime during the period from 1948-1994 by selling products and services to agencies of the South African government. Claims are based on: (1) the Alien Tort Claims Act, (2) the Torture Protection Act, (3) the Racketeer Influenced and Corrupt Organizations Act and (4) a variety of other international laws and treaties relating to violations of human rights, war crimes and crimes against humanity. The complaint seeks, among other things, an accounting, the creation of a historic commission, compensatory damages in excess of $200 billion, punitive damages in excess of $200 billion, costs and attorneys' fees. This matter is in the early stages of litigation. ILLINOIS: Female Inmates Bring Federal Suit Over Cook County Lockdowns ---------------------------------------------------------------------- Seven current and former female inmates have filed a lawsuit seeking class action status in the US District Court in Chicago, Illinois, on behalf of female pretrial detainees at Cook County jail, and alleging that the detainees are denied timely medical attention and are unable to communicate with guards during monthly prolonged lockdowns, which, according to the lawsuit, include practices that are abusive and dehumanizing, the Chicago Tribune reports. The lawsuit was filed by attorneys Thomas Morrissey and Robert Farley Jr., who in 2001, settled with the county for nearly $7 million, plus an additional $3 million in legal fees, a lawsuit that alleged female inmates at the jail were improperly strip-searched. Mr. Morrissey said they would go into US District Court to seek a temporary restraining order to stop the non-emergency lockdowns for plaintiffs named in the lawsuit. The lawsuit does not contest random cell searches or the need for lockdowns during emergencies. However, the lawsuit does challenge as unconstitutional the monthly regular practice of confining inmates to their cells from 1:30 pm Friday until Sunday late afternoon, denying them access to telephones, showers and timely communication with guards. "During lockdowns, the 'Jail' shirks its duty to protect inmates from harm from other inmates by isolating them behind solid steel cell doors with either two or three other detainees," the lawsuit says. "The conditions of the lockdown are 'dungeon'-like in that the plaintiffs can rarely be seen or heard by the correctional officers through the steel cell door." The lawsuit offers some graphic examples of the attack of one inmate upon another during a lockdown, as well as an instance of an inmate slashing herself with a broken light bulb, all during a lockdown. MISSOURI: Federal Judge Rules That Sex Offender List Must Remain Public ----------------------------------------------------------------------- US District Court in Missouri Judge Nanette K. Laughrey ruled that because the public has a right to know where convicted sex offenders live, the state's list of such offenders must remain open. Without the list, wrote Judge Laughrey, the public would not be able to take steps to protect themselves and their children, Associated Press Newswires reports. "While this case poses a difficult question, the court concludes that the harm to the plaintiffs is outweighed by the harm to the public," Judge Laughrey wrote. The judge's decision arose out of a motion seeking to bar state and local authorities from publicly releasing to the public a list of released sex offenders' names, claiming that these lists stigmatized nonviolent sex offenders. The list of convict's names and their addresses in turn is based on a version of Megan's Law, a statute named after a New Jersey girl murdered by a sex offender in 1994. Missouri is among several states that adopted a version of Megan's Law. The Missouri law requires those convicted of sex crimes to register their names and addresses with local authorities. A recent amendment closed a residency loophole that excluded some offenders. Information about sex offenders is available to the public through a local sheriff's office. The judge's ruling came after the US Supreme Court last week overturned a section of a Connecticut law that excluded those convicted of lesser crimes from public lists. Judge Laughrey cited the Supreme Court's findings in her decision. Her ruling struck down a motion filed by six men who claimed that Missouri's law unfairly grouped together those with nonviolent and violent convictions. A felon convicted of underage sex, for example, is subject to the same public scrutiny as a serial rapist. Judge Laughrey had granted the six men class action status last October, in effect, allowing them to represent 17,000 convicted sex offenders required to register in Missouri. However, the recent ruling by Judge Laughrey did not affect an earlier motion filed in September by three Kansas City area men, when Judge Laughrey granted the three a preliminary injunction that barred authorities from making their criminal information public. However, the three men still were required to register. The injunction remains in effect, but is being challenged in the US Court of Appeals for the Eighth Circuit, in St. Louis. NL INDUSTRIES: Asks IN Court To Dismiss Environmental Damages Lawsuit --------------------------------------------------------------------- NL Industries asked the Superior Court in Marion County, Indiana to dismiss the class action filed against it on behalf of an alleged class of all persons and entities who own or have owned property or have resided within a one-mile radius of an industrial facility formerly owned by a subsidiary of the Company in Indianapolis, Indiana. Plaintiffs allege that they and their property have been injured by lead dust and particulates from the facility and seek unspecified actual and punitive damages and a removal of all alleged lead contamination under various theories, including negligence, strict liability, battery, nuisance and trespass. The Company has denied all allegations of wrongdoing and liability. In 2002, the court dismissed plaintiffs' allegations that the case should be certified as a class action. The defendants have moved to dismiss the remainder of the case. The court has not yet ruled on this motion. Discovery is proceeding. NL INDUSTRIES: Discovery Commences In Consolidated Suit Over Lead in OK ----------------------------------------------------------------------- Discovery is proceeding in the consolidated class action filed against NL Industries, Inc. and several other defendants in the United States District Court in and for Ottawa County, Oklahoma. One suit was filed on behalf of a minor against the Company and other defendants and alleges that defendants' former mining operations near Picher, Oklahoma resulted in damage to the plaintiff as a result of the ingestion of lead from mining co-products. The Company has denied the material allegations of the complaint. The case was removed to federal court and the United States was added as a third-party defendant. Discovery is proceeding. Trial is scheduled for August 2003. In 2002, the Company was named as a defendant in four additional cases with substantially similar allegations to the first case. Each of these cases has been removed to federal court and the United States added as a third-party defendant. These cases have been consolidated with the first case for purposes of discovery. RETEK INC.: NY Court Dismisses in Part Consolidated Securities Lawsuit ---------------------------------------------------------------------- The United States District Court for the Southern District of New York dismissed in part the consolidated securities class action pending against the Company, certain of its current and former officers and directors and certain underwriters of the Company's initial public offering. The suit alleges violations of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On February 14, 2002, the parties signed and filed a stipulation dismissing the consolidated action without prejudice against the Company and the individual officers and directors, which the court approved and entered as an order in March 2002. In April 2002, the plaintiffs filed an amended complaint in which they elected to proceed with their claims against the Company and the individual officers and directors only under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The amended complaint alleges that the prospectus filed in connection with the IPO was false or misleading in that it failed to disclose: (1) that the underwriters allegedly were paid excessive commissions by certain of the underwriters' customers in return for receiving shares in the IPO; and (2) that certain of the underwriters' customers allegedly agreed to purchase additional shares of the Company's common stock in the aftermarket in return for an allocation of shares in the IPO. The complaint further alleges that the underwriters offered to provide positive market analyst coverage for the Company after the IPO, which had the effect of manipulating the market for the Company's stock. Plaintiffs contend that, as a result of the omissions from the prospectus and alleged market manipulation through the use of analysts, the price of the Company's common stock was artificially inflated between November 18, 1999 and December 6, 2001, and that the defendants are liable for unspecified damages to those persons who purchased the Company's common stock during that period. On July 15, 2002, the Company and the individual defendants, along with the rest of the issuers and related officer and director defendants, filed a joint motion to dismiss based on common issues. Opposition and reply papers were filed. The Court rendered its decision on February 19, 2003, which granted dismissal in part of a claim against one of the individual defendants and denied dismissal in all other respects. The suits may now proceed to the discovery phase. The Company intends to defend against these claims vigorously. Securities class action litigation can result in substantial costs and divert the Company's management's attention and resources, which may have a material adverse effect on the Company's business and results of operations. RETEK INC.: Expects Securities Lawsuits in MN Court To Be Consolidated ---------------------------------------------------------------------- Retek, Inc. expects that plaintiffs of several securities class actions pending against it and certain of its current officers in the United States District Court in Minnesota will file a consolidated suit. The complaints allege, among other things, violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Specifically, the complaints allege that, among other things, between October 17, 2001 and July 8, 2002, defendants made false and misleading statements and/or concealed material adverse facts from the market in press releases, presentations and SEC disclosures. The complaints claim that Company and the individual defendants misled the market with respect to, among other things the Company's alliance with IBM, its ability to develop certain software, and its expectations regarding certain customer sales. Plaintiffs further allege that defendants manipulated financial statements and failed to disclose problems with existing and potential customer deals, which led to the Company's stock price being artificially inflated during the class period. The plaintiffs seek compensatory damages and other unspecified relief. The court appointed a lead plaintiff and lead plaintiff's counsel on February 14, 2003. After a consolidated suit is filed, defendants will answer or respond to these allegations. The Company disputes plaintiffs' allegations in the federal suits and believe that the allegations are subject to a variety of meritorious defenses. While there can be no assurance, and while the outcome of suit cannot be predicted with certainty, management currently believes that the ultimate outcome of the litigation is unlikely to have a material adverse affect on the Company's financial position, results of operations or cash flows. SEARS ROEBUCK: Securities Fraud Lawsuits Being Consolidated in IL Court ----------------------------------------------------------------------- The securities class actions pending against Sears Roebuck & Co. are being consolidated in the United States District Court for the Northern District of Illinois. The suits name as defendants the Company and certain current and former officers and allege that certain public announcements by the Company concerning its credit card business violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The plaintiffs purport to represent classes of shareholders who purchased the Company's common shares between January 17, 2002, and October 17, 2002. Another similar suit is pending in the United States District Court in the Northern District of California. In the opinion of management of the Company after consulting with legal counsel, and taking into account insurance and reserves, the ultimate liability is not expected to have a material adverse effect on annual results of operations, financial position, liquidity or capital resources of the Company. SEARS ROEBUCK: Illinois Court Consolidates Employees' 401(K) Plan Suit ---------------------------------------------------------------------- The United States District Court for the Northern District of Illinois consolidated three class actions pending against Sears Roebuck & Co., and of its certain officers and directors, alleged fiduciaries of Sears 401(k) Savings Plan. The suit seeks damages and equitable relief under the Employee Retirement Income Security Act (ERISA). The plaintiffs purport to represent participants and beneficiaries of the Plan, and allege breaches of fiduciary duties under ERISA in connection with the Plan's investment in the Company's common shares and alleged communications made to Plan participants regarding the Company's financial condition. In the opinion of management of the Company after consulting with legal counsel, and taking into account insurance and reserves, the ultimate liability is not expected to have a material adverse effect on annual results of operations, financial position, liquidity or capital resources of the Company. TOBACCO LITIGATION: Closing Arguments Presented In IL Smokers' Lawsuit ---------------------------------------------------------------------- An attorney representing Illinois smokers of Marlboro Lights and Cambridge Lights asked Circuit Judge Nicholas Byron, in Madison County, Illinois, for a judgment of $21.3 billion against cigarette maker Philip Morris, saying it's time to end the ruse" about light cigarettes, the Belleville News-Democrat reports. Philip Morris attorney George Lombardi said Mr. Tillery's request for punitive damages is outrageous. He said further that the Company's light brands are sold in 49 other states where more verdicts could be issued. Mr. Lombardi told Judge Byron he is "holding the fate of this company and its employees in your hands." In his closing argument, Mr. Tillery said Philip Morris's introduction of light cigarettes was a "perfectly executed" fraud on smokers who thought they were getting a safer cigarette. "It's time to end the ruse," he said. "The one thing this litigation can do is end the ruse of lights." Plaintiff attorneys claim Philip Morris designed light cigarettes with small vent holes that would enable them to perform well on tar and nicotine tests conducted with government machines. However, the company knew smokers would cover the holes and smoke more or inhale deeper to get their desired nicotine levels, Mr. Tillery said. He continued Philip Morris was faced with a problem in the late 1960s when light cigarettes were just being developed by the tobacco companies because people were starting to learn about the dangers of smoking. "What's the solution: design a cigarette they can present as a psychological crutch," Mr. Tillery said -- an "absolutely brilliant marketing strategy, and it took over the market." Today about 80 percent of all cigarettes sold in America are light brands. Mr. Lombardi also presented his closing arguments. He argued that the Federal Trade Commission had devised the machine tests for the tar and nicotine levels and it was the public health community that encouraged smokers to favor the light cigarettes. Light and regular cigarettes have always carried the same warnings about health hazards. Mr. Lombardi argued that the company never claimed light cigarettes were safer than others, but "the belief inside Philip Morris was that low-tar cigarettes were actually delivering less tar." Mr. Lombardi said the use of the phrase "lower tar and nicotine" on packages of light cigarettes "simply means that those cigarettes had lower tar and nicotine under the FTC test method." Mr. Lombardi said when Philip Morris decided to name the products "lights," the Company was only trying to describe the flavor as compared to full-flavor brands. He said the word "light" at the time did not have the meaning that it does today, because Philip Morris was the first to use the term with a product. Mr. Lombardi said class members are not entitled to any economic damages because light cigarettes cost the same as regular cigarettes. Mr. Tillery asked Judge Byron to award his firm and others who assisted him, legal fees in the amount of 29 percent of the total judgment. Judge Byron said that he would likely award plaintiff attorney fees based only on a percentage of the compensatory damages awarded to the 1.1 million class members, not on punitive damages. Mr. Lombardi said 29 percent of the $7.1 billion sought in compensatory damages would be about $2.1 billion, and a fee that large would not be justified in "any case in American jurisprudence." Judge Byron said he has decided that any punitive damages will go to the state's Department of Human Resources rather than the plaintiff class. He said any leftover money that is not claimed by class members would be awarded to the nine law schools in Illinois and the two law schools in St. Louis, as well as groups that provide legal services for the poor in Illinois, the American Cancer Society and possibly domestic-violence programs. Mr. Tillery asked Judge Byron to award his firm, and others who assisted him, legal fees in the amount of 29 percent of the total judgment. TRUDEAU CORPORATION: Recalls 45,200 Fondue Pots For Fire, Burn Hazard --------------------------------------------------------------------- Trudeau Corporation is cooperating with the United States Consumer Product Safety Commission (CPSC) by voluntarily recalling about 45,200 fondue pots sold as a part of a 17 piece set at Bed, Bath and Beyond stores. The plastic handles that are attached to the fondue pots can melt and crack during heating on a range top, posing burn and fire hazards to consumers. The Company has received 13 reports of the plastic handles breaking or melting, which involve 6 reports of burn injuries to hands, feet, and other body parts. The recalled fondue pots are labeled on the box as model number 82-384. The pots are brushed stainless steel, with a brushed stainless steel fork guide on the rim of the pot. The sets included six black stoneware sauce/condiment bowls and six chrome-plated forks with color- coded tips. There is a black triangular-shaped handle with a center hole on either side of the fondue pot. The fondue pot sits on a black, four-legged stand, which houses the burner. The fondue sets were sold under the brand name "Trudeau." Bed, Bath and Beyond stores nationwide sold the fondue sets from August 2001 through July 2002 for about $20. For more details, contact the Company by Phone: (877) 659-4844 anytime to receive a replacement fondue pot with handles that will not melt or crack, and an incentive gift set of six stoneware fork rests, or visit the firm's Website: http://www.trudeaucorp.com. New Securities Fraud Cases ASTROPOWER INC.: Spector Roseman Commences Securities Fraud Suit in DE ---------------------------------------------------------------------- Spector, Roseman & Kodroff, PC initiated a securities class action in the United States District Court for the District of Delaware against defendants AstroPower, Inc. (Nasdaq:APWR), Allen M. Barnett (CEO and President), and Thomas J. Stiner (CFO), on behalf of purchasers of the common stock of AstroPower between February 22, 2002 and August 1, 2002, inclusive. The complaint alleges that defendants violated the federal securities laws by issuing a series of materially false and misleading statements to the market during the class period. Specifically, the complaint alleges that the Company claimed that it was well positioned to take advantage of the increasing demand for solar power products. Throughout the class period, the Company reported strong revenue and earnings growth and that, as a result of these statements and reports, the Company's per share stock price reached a Class Period high of $27 on March 28, 2002. However, throughout the class period, which was not disclosed to the investing public, the Company was unable to effectively manage its expanding and increasingly complex operations and it was unable to allocate resources among its various manufacturing facilities to effectively meet regional demand or to tailor its production capacity to actual demand. To maintain the illusion that its operations were successful, the Company reported artificially inflated revenue and earnings by, among other things, recording revenue in advance of shipment, contrary to its stated principles of revenue recognition. On August 1, 2002, after the close of trading, the Company announced its results for the second quarter ended June 30, 2002, reporting that revenues and net income had not grown but, on the contrary, second quarter income was $365,000, or $0.02 per diluted share compared to $1.7 million, or $0.07 per diluted share in the year-earlier second quarter and revenue of $20.4 million represented only a one percent increase over reported revenue for the prior quarter and was approximately $4.9 million below analysts' consensus estimate. AstroPower's share price plunged 48%, or $7.12, to $7.77on this announcement. For more details, contact Robert M. Roseman by Phone: (888) 844-5862 or visit the firm's Website: http://www.srk-law.com BAYER AG: Brodsky & Smith Commences Securities Fraud Lawsuit in S.D. NY ----------------------------------------------------------------------- The Law Offices of Brodsky & Smith, LLC initiated a securities class action on behalf of shareholders who purchased the publicly traded securities of Bayer (AG) Aktiengesellschaft (NYSE:BAY), and certain present and former members of its Board of Management, on behalf of purchasers of Bayer AG American Depositary Shares (ADRs) from June 27, 1997 through February 21, 2003, inclusive (Prior to January 23, 2002, Bayer AG ADRs traded on the Nasdaq under the symbol BAYZY), in the US District Court for the Southern District of New York. The complaint alleges, among other things, that throughout the class period defendants misrepresented Bayer AG's success in marketing it's Baycol cholesterol lowering drug. Defendants' statements were materially false and misleading because Bayer AG's own scientists were stating internally that Baycol, when administered with other popular medications or at high dosages, caused unacceptable risk of serious side effects. In fact, throughout the class period Bayer AG was informed that patients taking Baycol were experiencing serious and life threatening side effects. Baycol was belatedly withdrawn from the market in August 2001 after the FDA raised serious concerns about the safety of Baycol in light of reports of Baycol patients dying. The true facts concerning defendants' knowledge of the dangers of Baycol and the Company's potential liability to Baycol patients were not completely disclosed until February 22, 2003, in connection with court filings in various personal injury actions commenced against Bayer AG by persons who had been prescribed Baycol and had suffered severe side effects. These court documents demonstrated defendants' early knowledge of the risk of serious or life threatening side effects to patients taking Baycol, including the knowledge that patients taking Baycol were found to have 5 to 10 times the chance of developing a life threatening illness -- rhabdomyolysis -- as patients taking other similar medicines. The price per share of Bayer AG ADRs fell approximately 17% when Baycol was withdrawn from the market in August 2001. Following the February 22, 2003 disclosure of the true state of defendants' knowledge of the dangers of Baycol, Bayer AG ADRs declined an additional 27%, from $17.15 per share to $12.58 days after the revelation -- more than 68% below the trading price at the beginning of the class period ($39.75). For more details, contact Evan J. Smith by Mail: Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, by Phone: 877-LEGAL-90 or by E-mail: clients@brodsky-smith.com INTERSTATE BAKERIES: Wolf Haldenstein Lodges Securities Suit in W.D. MO ----------------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class action in the United States District Court for the Western District of Missouri, on behalf of all who purchased the common stock of Interstate Bakeries Corporation [NYSE: IBC] between September 17, 2002 and February 10, 2003, inclusive against the Company and certain of its officers and directors. The complaint alleges that IBC and certain of its officers and directors issued false and misleading statements regarding its business and financial condition. Specifically, defendants asserted that the Company was experiencing a rebound in the sales of its sweet cake products, which had slowed down in the previous quarter, and described how the Company would be able to increase prices for certain bread products and maintain its anticipated level of profitability in the face of increasing commodity prices. The suit alleges that statements about the Company's sweet cake product sales and its ability to increase prices for certain bread products were materially false and misleading because they omitted and/or misrepresented several adverse facts, such as: (1) the fact that from the beginning of the class period, IBC was really experiencing a negative variance concerning its cake sales as compared to the prior year and had not seen any indication of a rebound in cake sales; and (2) the Company did not maintain adequate centralized control over price increases to ensure that bread product prices could be raised by IBC while avoiding decreased profitability; defendants knew that increasing prices usually resulted in a loss of market share and the Company actually exposed itself to considerable risk concerning its ability to realize profits based upon commodity prices. Before the Company's true financial condition was revealed, certain of the individual defendants and other IBC insiders sold shares of their common stock for aggregate proceeds of over $16 million. For more details, contact Fred Taylor Isquith, 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 IBC. KING PHARMACEUTICALS: Glancy & Binkow Lodges Securities Suit in E.D. TN ----------------------------------------------------------------------- Glancy & Binkow LLP initiated a securities class action in the United States District Court for the Eastern District of Tennessee on behalf of all persons who purchased securities of King Pharmaceuticals, Inc. (NYSE: KG) between April 26, 1999, through March 11, 2003, inclusive. The suit charges King Pharmaceuticals and certain of its officers with violations of federal securities laws. Among other things, plaintiff claims that defendants' material omissions and the dissemination of materially false and misleading statements concerning King Pharmaceuticals' business operations and earnings caused King Pharmaceuticals' stock price to become artificially inflated, inflicting damages on investors. King Pharmaceuticals manufactures, markets and sells primarily branded prescription pharmaceutical products to general and family practitioners and internal medicine physicians and hospitals across the United States. The suit alleges that during the class period Defendants misrepresented that the prices paid by governmental Medicaid agencies were the "best price" -- i.e., the cheapest price offered to distributors and other purchasers -- for a particular drug, resulting in government overpayment for drugs purchased through the Medicaid program. The complaint further alleges that the Company recognized revenue subject to "pharmaceutical rebate" payments provided by King Pharmaceuticals to distributors to stock up on the Company's blood- pressure drug, Altace(R). On March 11, 2003, defendants disclosed that the Securities and Exchange Commission is investigating King Pharmaceuticals and has subpoenaed, among other things, the Company's "best price" lists and all documents related to the pricing of the Company's pharmaceutical products to any governmental Medicaid agency during 1999 and the accrual and payment of rebates on Altace. News of the SEC investigation caused a 23% drop in the price of King Pharmaceuticals' stock on the day the investigation was disclosed. For more details, contact Michael Goldberg by Mail: 1801 Avenue of the Stars, Suite 311, Los Angeles, California 90067, by Phone: (310) 201-9161 or (888) 773-9224 or by E-mail: info@glancylaw.com. MONTEREY PASTA: Cauley Geller Launches Securities Fraud Suit in N.D. CA ----------------------------------------------------------------------- Cauley Geller Bowman Coates & Rudman, LLP initiated a securities class action in the United States District Court for the Northern District of California on behalf of purchasers of Monterey Pasta Company (Nasdaq: PSTA) common stock during the period between July 11, 2002 and December 16, 2002, inclusive. The suit alleges that defendants violated sections 10(b) and 20(a) of the Securities & Exchange Act of 1934 by issuing materially false and misleading statements throughout the class period concerning the Company's financial performance and future prospects. Specifically, the Complaint alleges that defendants described the Company's dependence on two of its largest customers for continued revenue growth, but failed to disclose that one its major customers had adopted a new pilot purchasing program which would negatively impact the Company's earnings growth in both the short and long- term. When, at the end of the class period, defendants finally disclosed that its revenues were being negatively impacted by this new purchasing program, its shares fell $2.59 per share, or 37.8%, to close at $4.26 per share, on extraordinarily high trading volume. For more details, contact Samuel H. Rudman or David A. Rosenfeld by Mail: P.O. Box 25438, Little Rock, AR 72221-5438 by Phone: 1-888-551-9944 or by E-mail: info@cauleygeller.com PROVIDENT FINANCIAL: Spector Roseman Lodges Securities Suit in S.D. OH ---------------------------------------------------------------------- Spector, Roseman & Kodroff, PC initiated a securities class action in the United States District Court for the Southern District of Ohio, Western Division, against Provident Financial Group, Inc., (Nasdaq:PFGI), Robert L. Hoverson (President), and Christopher J. Carey (CFO), on behalf of purchasers of the common stock of Provident between March 30, 1998 and March 5, 2003, inclusive. The complaint alleges that defendants violated the federal securities laws by issuing a series of materially false and misleading statements to the market between March 30, 1998 and March 5, 2003. Specifically, the suit alleges that Provident filed quarterly and annual financial reports with the SEC which were materially false and misleading because they failed to disclose that the Company had improperly accounted for certain auto lease financing transactions, thereby materially inflating the Company's reported earnings throughout the class period. On March 5, 2003, the Company issued a press release admitting that it had improperly accounted for nine auto lease financing transactions originated between 1997 and 1999 in a manner which inflated its reported earnings from 1997 through 2002, inclusive. The Company further revealed that the transactions were improperly reported as "off-balance sheet" transactions and that it would be restating its operating results downward for the years 1997 through 2002. Provident common stock plummeted, falling 20% in one day, from a March 4, 2003 close of $28.08 per share to $22.46 on March 5 as a result of this disclosure. For more details, contact Robert M. Roseman by Phone: 888-844-5862 by E-mail: classaction@srk-law.com or visit the firm's Website: http://www.srk-law.com. SAWTEK INC.: Bernstein Liebhard Lodges Securities Fraud Suit in M.D. FL ----------------------------------------------------------------------- Bernstein Liebhard & Lifshitz LLP initiated a securities class action in the United States District Court for Middle District of Florida, Orlando Division, on behalf of all persons who purchased or acquired Sawtek, Inc. securities -- currently a subsidiary of TriQuint Semiconductor, Inc. (NASDAQ: TQNT) between January 7, 2000 and May 24, 2001, inclusive. Plaintiff alleges that the Company and certain of its executive officers violated federal securities laws. Sawtek designs, develops, manufactures and markets a broad range of electronic signal processing components, based on "surface acoustic wave" or SAW technology, primarily for use in the wireless communications industry. Plaintiff alleges that during the class period, defendants misrepresented Sawtek's financial performance by improper "channel stuffing" -- inflating revenue by shipping more products than distributors could sell -- and by disseminating false and misleading statements concerning the Company's revenue and business prospects despite a widespread downturn in the wireless and telecommunications markets. Sawtek's actual financial performance was revealed on May 23, 2001, when Defendants acknowledged that the Company's projected results for the quarter ending June 30, 2001 would fall well below the Company's previously issued revenue guidance. By the close of trading on the next day, May 24, 2001, Sawtek's stock price had plunged more than 17% from the previous day's close as a result of this news. For more details, contact Ms. Linda Flood, Director of Shareholder Relations, by Mail: 10 East 40th Street, New York, New York 10016, by Phone: (800) 217-1522 or (212) 779-1414 by E-mail: TQNT@bernlieb.com or visit the firm's Website: http://www.bernlieb.com. SOLECTRON CORPORATION: Abbey Gardy Lodges Securities Fraud Suit in CA --------------------------------------------------------------------- Abbey Gardy, LLP initiated a securities class action in the United States District Court for the Northern District Court of California on behalf of all persons or entities who purchased securities of Solectron Corporation, (NYSE:SLR) between September 17, 2001 and September 26, 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 material misrepresentations to the market during the class period, thereby artificially inflating the price of Solectron securities. Specifically, the complaint alleges that defendants issued a series of materially false and misleading statements regarding the Company's financial results and condition. The complaint alleges that these statements were materially false and misleading because they failed to disclose and/or misrepresented the following adverse facts, among others, that the Company was carrying tens of millions of dollars of obsolete and unsaleable inventory that should have been written down. As a result, Solectron's reported financial results were artificially inflated during the class period; and were not prepared in accordance with Generally Accepted Accounting Principles. On September 26, 2002, after the market closed, Solectron issued a press release announcing its financial results for the fourth quarter of 2002 and fiscal year 2002. The Company also reported that it was booking a pre-tax charge of $97 million to reserve for inventory revaluation and write-off. Solectron attributed the bulk of the charge to "inventory risk assumed by Solectron's product-oriented Technology Solutions business unit." Following this announcement, shares of Solectron common stock dropped to $2.16 from a class period high of $16.25. For more details, contact Nancy Kaboolian by Phone: (800) 889-3701 or by E-mail: NKaboolian@abbeygardy.com SPRINT FON: Stull Stull Commences Securities Fraud Lawsuit in KS Court ---------------------------------------------------------------------- Stull Stull & Brody initiated a securities class action in the United States District Court for the District of Kansas, on behalf of purchasers of Sprint FON Group (NYSE: FON) and PCS Group (NYSE: PCS) common stock between August 11, 2000 and February 13, 2003, inclusive against the Company and: (1) Ernst & Young LLP, (2) William Esrey and (3) Ronald Lemay The complaint charges that Defendants violated Sections 10(b), 14(a) 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. Specifically, the Company's press releases and SEC filings overstated the Company's earnings and net assets by failing to reserve for the likely reversal of over $100 million in tax benefits attributable to highly questionable tax shelters used by Sprint Corporation's executive officers, and Defendants failed to reveal that these tax shelters caused a conflict of interest between the executives and Sprint Corporation and its accountants. For more details, contact Tzivia Brody by Mail: 6 East 45th Street, New York NY 10017 by Phone: 1-800-337-4983 by Fax: 212-490-2002 or by E- mail: SSBNY@aol.com or visit the firm's Website: http://www.ssbny.com. ********* 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 2002. 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 * * *