/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/030916.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 16, 2003, Vol. 5, No. 183 Headlines AMERCO: Shareholders Commence Securities Fraud Lawsuits in NV BIG LOTS: Reaches Settlement For Overtime Wage Suits in CA Court BIG LOTS: Reaches Agreement To Settle KB Toys Advertising Suit CARDIZEM CD: FL Settlement Participants Given Sept. 23 Deadline FINISAR CORPORATION: Reaches Settlement For NY Securities Suit GAMBLING LITIGATION: Operator Settles Gamblers' Addiction Suit HEALTHSOUTH CORPORATION: SEC Charges Ex-CFOs With Stock Fraud HEWLETT-PACKARD: NC Jury Says Ink Purchasers Were Not Deceived HEWLETT PACKARD: TX Court Grants Certification To Consumer Suits HEWLETT PACKARD: Named in South Africa Apartheid Suit in S.D. NY HMO LITIGATION: Firms Ask Appeals Court To Vacate Certification HYUNDAI MOTOR: TX Court Rejects Consumer Fraud Suit Settlement JANUS CAPITAL: Milberg Weiss Launches Securities Fraud Lawsuit KAYEM FOODS: Recalls Meat, Poultry For Listeria Contamination MICHAELS STORES: Faces Suit For Violations of the CA Labor Code MICHAELS STORES: Canadian Employees Launch Overtime Wage Lawsuit NEC CORPORATION: Unit Named In 20 Federal, State Antitrust Suits NVIDIA CORPORATION: Ex-CFO Sued For Financial Reporting Fraud RBF INTERNATIONAL: SEC Files Securities Fraud Lawsuit In C.D. CA STEPHEN PRICE: SEC Files Cease-And-Desist Proceeding V. Ex-VP UNITED TEACHERS: Agrees To Settle Consumer Fraud Lawsuit in TX VECTOR MEDICAL: SEC Launches Securities Fraud Action in S.D. FL VIATICAL CAPITAL: FL Court Issues TRO Over Securities Violations WAL-MART STORES: Faces Suits For Unjust Enrichment in TX, NH, OK WAL-MART STORES: Engaged in Mediation For Consumer Fraud Suits WILSONS LEATHER: Agrees To Settle Overtime Wage Suit in CA Court New Securities Fraud Cases BANK ONE: Wolf Popper Lodges Securities Fraud Lawsuit in S.D. NY CATALINA MARKETING: Bernstein Liebhard Files Securities Suit CHECK POINT: Chitwood & Harley Lodges Securities Suit in S.D. NY DVI INC.: Wolf Haldenstein Lodges Securities Lawsuit in E.D. PA JANUS CAPITAL: Milberg Weiss Launches Securities Suit in S.D. NY MUTUAL FUNDS: Brualdi Law Firm Lodges Securities Suit in S.D. NY STRONG FINANCIAL: Milberg Weiss Files Securities Suit in S.D. NY STRONG CAPITAL: Abbey Gardy Lodges Mutual Fund Fraud Suit in NJ SUREBEAM CORPORATION: Rabin Murray Lodges Securities Suit in NY SUREBEAM INC.: Weiss & Yourman Lodges Securities Suit in N.D. CA ********* AMERCO: Shareholders Commence Securities Fraud Lawsuits in NV ------------------------------------------------------------- AMERCO faces four putative class actions filed in the United States District Court in Nevada on behalf of persons and entities who purchased or acquired AMERCO securities between February 12,1998 and September 26,2002. The suits are: (1) "Article Four Trust v. AMERCO, et al." (alleges one claim for violation of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder); (2) "Mates v. AMERCO, et al.," (asserts claims under section 10(b) and Rule 10b-5, and section 20(a) of the Securities Exchange Act); (3) "Klug v. AMERCO, et al." (asserts claims under section 10(b) and Rule 10b-5 and section 20(a) of the Securities Exchange Act)" (4) "IG Holdings v. AMERCO, et al." (alleges claims under section 11 and section 12 of the Securities Act of 1933 and section 10(b) and Rule10b-5, and section 20(a) of the Securities Exchange Act) Each of these four suits allege that AMERCO engaged in transactions with SAC entities that falsely improved its financial statements, and that AMERCO failed to disclose the transactions properly. The actions are at a very early stage. AMERCO does not currently have a deadline by which it must respond to the complaints. The Company has filed a notice of AMERCO's bankruptcy petition and the automatic stay in each of the Courts where these cases are pending. BIG LOTS: Reaches Settlement For Overtime Wage Suits in CA Court ---------------------------------------------------------------- Big Lots, Inc. reached a preliminary settlement of purported class actions filed in the Superior Court of San Bernardino County, California, relating to the calculation of earned overtime wages for certain of the Company's former and current store managers and assistant store managers in that state. Each of the lawsuits was filed by plaintiffs who are current or former store managers or assistant store managers on behalf of themselves and other similarly situated store managers and assistant store managers. The lawsuits alleged that the Company improperly classified such employees as exempt under California's wage and hour laws. The recent preliminary settlement, which addresses claims dating back to 1996 and is subject to court approval, fully resolves all claims brought by the plaintiffs in these California lawsuits. Under the preliminary settlement, the Company would make a cash settlement payment of $10 million to cover claims by eligible class members, attorneys' fees and costs of the class members, cost to a third-party administrator and applicable employer payroll taxes. The Company does not expect the settlement to have a material impact on its labor costs going forward. While the settlement is still subject to final court approval, the Company believes that the liability is both probable and can be reasonably estimated. BIG LOTS: Reaches Agreement To Settle KB Toys Advertising Suit -------------------------------------------------------------- Big Lots, Inc. reached a preliminary agreement to settle a national class action relating to certain advertising practices of KB Toys. The Company sold the KB Toy Division on December 7, 2000. The lawsuit alleged that KB Toys improperly used comparative pricing in its advertisements before and after such sale. The preliminary settlement, which is still subject to court approval, calls for the payment of certain attorneys' fees and administrative expenses, discounts to be provided to KB customers and a potential toy donation to national charities. The total value of the settlement as preliminarily approved by the court is estimated to be approximately $4 million. If the settlement receives final court approval, it is anticipated that the settlement amount will be paid in fiscal 2003. It remains unclear as to what portion of the costs associated with the settlement, if any, will be the responsibility of the Company. CARDIZEM CD: FL Settlement Participants Given Sept. 23 Deadline --------------------------------------------------------------- Florida patients who purchased Cardizem CD or its generic equivalents between 1998 and early 2003 have until September 23 to file claims for a cash refund, Attorney General Charlie Crist announced in a statement. Hypertension patients and others who took the medication Cardizem CD or its generic equivalents may be entitled to money from a $21-million fund created as part of a proposed antitrust settlement by the Attorneys General of all 50 states, Puerto Rico and the District of Columbia and certain pharmaceutical companies. The lawsuit alleged that the companies (Aventis Pharmaceuticals Inc., Carderm Capital LP, and Andrx Corporation) violated antitrust laws and overcharged consumers purchasing Cardizem CD or its generic equivalents. A nationwide effort to contact consumers who bought these drugs was launched on June 23. "Consumers must benefit from a marketplace that contains adequate price competition wherever possible," Mr. Crist said. "Patients are encouraged to determine their eligibility and file a claim by the deadline." The rights of more than a million consumers could be affected by this case. The settlement provides approximately $21 million to reimburse consumers some portion of what they paid for these drugs. Those who purchased their medicines from January 1, 1998, through January 29, 2003, can file a claim for recovery. The proposed settlement is subject to court review. Affected consumers who do not wish to participate in the proposed settlement must exclude themselves in writing by midnight Pacific time on September 23, or they will be bound by the rulings of the court in this case. For more details, visit the Website: http://www.cardizemsettlement.comor call toll-free 1-800-372-2406. FINISAR CORPORATION: Reaches Settlement For NY Securities Suit -------------------------------------------------------------- Finisar Corporation reached an agreement to settle the consolidated securities class action filed in the United States District Court for the Southern District of New York, purportedly on behalf of all persons who purchased the Company's common stock from November 17, 1999 through December 6, 2000. The complaint named as defendants the Company and: (1) Jerry S. Rawls, President and Chief Executive Officer, (2) Frank H. Levinson, s Chairman of the Board and Chief Technical Officer, (3) Stephen K. Workman, Senior Vice President and Chief Financial Officer, and (4) an investment banking firm that served as an underwriter for the Company's initial public offering in November 1999 and a secondary offering in April 2000. The complaint, as subsequently amended, 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 the grounds that the prospectuses incorporated in the registration statements for the offerings failed to disclose, among other things, that: (i) the underwriter had solicited and received excessive and undisclosed commissions from certain investors in exchange for which the underwriter allocated to those investors material portions of the shares of the Company's stock sold in the offerings and (ii) the underwriter had entered into agreements with customers whereby the underwriter agreed to allocate shares of the Company's stock sold in the offerings to those customers in exchange for which the customers agreed to purchase additional shares of the Company's stock in the aftermarket at pre-determined prices. No specific damages are claimed. Similar allegations have been made in lawsuits relating to more than 300 other initial public offerings conducted in 1999 and 2000, all of which have been consolidated for pretrial purposes. In October 2002, all claims against the individual defendants were dismissed without prejudice. On February 19, 2003, the Court ruled on motions to dismiss the complaints filed by the remaining defendants. The motions were denied as to claims under the Securities Act of 1933 in the case involving the Company and in all but 10 of the other cases. The motions were also denied as to claims under Section 10(a) of the Securities Exchange Act of 1934 against the Company and 184 of the other issuer defendants, on the basis that the amended complaints in these cases alleged that the respective issuers had acquired companies in exchange for their stock or conducted follow-on offerings after their initial public offerings. In June 2003, the plaintiffs in all of the cases presented a settlement proposal to all of the issuer defendants. Under the proposed settlement, the plaintiffs will dismiss and release all claims against participating defendants in exchange for a contingent payment guaranty by the insurance companies collectively responsible for insuring the issuers in all the related cases, and the assignment or surrender to the plaintiffs of certain claims the issuer defendants may have against the underwriters. Under the guaranty, the insurers will be required to pay the amount, if any, by which $1 billion exceeds the aggregate amount ultimately collected by the plaintiffs from the underwriter defendants in all the cases. If the plaintiffs fail to recover $1 billion and payment is required under the guaranty, the Company would be responsible to pay its pro rata portion of the shortfall, up to the amount of the self-insured retention under its insurance policy, which is $2 million. The timing and amount of payments that the Company could be required to make under the proposed settlement will depend on several factors, principally the timing and amount of any payment required by the insurers pursuant to the $1 billion guaranty. In July 2003, the Company determined to accept the proposed settlement. The settlement is subject to acceptance by a substantial majority of the issuer defendants and execution of a definitive settlement agreement. The settlement is also subject to Court approval. GAMBLING LITIGATION: Operator Settles Gamblers' Addiction Suit -------------------------------------------------------------- A video gambling operator has agreed to settle with three former gamblers who sued him to recoup their losses, the Charlotte Observer reports. The settlement for an undisclosed amount of money was reached just moments before the lawyers of video gambling operator Fred Collins were ready to make their closing arguments to the two-man, six-woman jury. Attorneys from neither side would comment on the details of the settlement. The settlement ends a six-year lawsuit that began as a class action filed against 48 video-poker operators by former gamblers who claimed video-gambling operators fed their addictions by offering illegally inflated payouts. All of the operators settled, except Fred Collins and his video- gambling firm. Mr. Collins once owned one of every six of South Carolina's video poker machines. Seven gamblers were named initially in Mr. Collins's lawsuit, but four dropped out after the first trial, which ended in a mistrial when jurors were unable to agree on a verdict. The second trial, which started recently, accused Mr. Collins of enticing gamblers with jackpots far above the then-legal payout limit of $125 a day. The lawsuit claimed Mr. Collins had violated South Carolina's unfair-trade practices law and the federal racketeering law. If the case had gone to trial and the jury had found enough evidence to declare Mr. Collins a racketeer, it could have cost him machine licenses in Montana and North Carolina, said James Bannister, who helped represent Mr. Collins. HEALTHSOUTH CORPORATION: SEC Charges Ex-CFOs With Stock Fraud ------------------------------------------------------------- The United States Securities and Exchange Commission (SEC) filed a complaint against two former Chief Financial Officers (CFOs) of HealthSouth Corporation, Michael Martin and Malcolm McVay. HealthSouth was the nation's largest provider of outpatient surgery, diagnostic and rehabilitative healthcare services, owning approximately 1,800 different facilities throughout the United States and abroad. The complaint alleges that Mr. Martin and Mr. McVay participated in the massive accounting fraud at HealthSouth by signing reports filed with the Commission that they knew contained materially false financial statements. The complaint further alleges that, while CFO, Mr. Martin directed lower level accounting personnel to make false entries to HealthSouth's accounting books and records so that HealthSouth's quarterly and annual earnings would meet or exceed Wall Street expectations. The complaint further alleges that Mr. Martin sold HealthSouth stock while knowing that the share price was inflated artificially due to the materially false financial statements. The complaint alleges that Mr. Martin violated Section 17(a) of the Securities Act of 1933 (Securities Act) and Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 (Exchange Act) and Rules 10b-5 and 13b2-1 thereunder, and aided and abetted HealthSouth's violations of Sections 10(b), 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1 and 13a-13 thereunder. The complaint alleges that Mr. McVay violated Section 10(b) of the Exchange Act and Rules 10b-5 and 13a-14 thereunder and aided and abetted HealthSouth's violations of Sections 10(b) and 13(a) of the Exchange Act and Rules 10b-5, 12b-20 and 13a-13 thereunder. The complaint asks the Court to issue permanent injunctions and to order disgorgement, prejudgment interest thereon and civil penalties against each defendant. The Commission also seeks orders barring Mr. Martin and Mr. McVay from serving as officers and directors of publicly-held companies in the future. HEWLETT-PACKARD: NC Jury Says Ink Purchasers Were Not Deceived -------------------------------------------------------------- A North Carolina jury has determined that Hewlett-Packard did not deceive consumers into believing that the ink cartridges packed with its printers were full, the Associated Press Newswires reports. Juror deliberated for 2 1/2 hours recently before they rejected the lawsuit brought by a Chapel Hill man on behalf of consumers, who claimed the company cheated customers by providing half- filled inkjet cartridges. Similar class-action lawsuits have been filed in 34 states. In the instant case, plaintiffs' attorneys accused Palo Alto, California-based Hewlett-Packard of a scheme that would force consumers to buy replacement cartridges sooner. The lawsuit sought $11.5 million in damages on behalf of 223,706 North Carolinians who bought HP printers between August 1998 and November 2000. The Orange County jury found that Hewlett-Packard disclosed enough information about the cartridges enclosed with the printers, and that consumers did not have expectations that something else would be included. HEWLETT PACKARD: TX Court Grants Certification To Consumer Suits ---------------------------------------------------------------- The Jefferson County, Texas court granted class certification to the suit filed against Hewlett Packard Co., entitled "Alvis v. HP" by a resident of eastern Texas in April 2001. The basic allegation is that HP and Compaq sold computers containing floppy disk controllers that fail to alert the user to certain floppy disk controller errors. That failure is alleged to result in data loss or data corruption. The plaintiffs seek injunctive relief, declaratory relief, damages and attorneys' fees. A class certification hearing was held on July 1, 2003 and the court granted plaintiffs' motion to certify a nationwide class action. In February 2000, a similar suit captioned LaPray v. Compaq was filed in state court in Jefferson County, Texas. In July 2001, a nationwide class was certified in the LaPray case, which the Beaumont Court of Appeals affirmed in June 2002. Compaq has filed a petition for review by the Texas Supreme Court. On June 5, 2003, the Texas Supreme Court agreed to review the trial court's certification of a class and requested oral argument on October 15, 2003. On June 4, 2003, Barrett v. HP and Grider v. Compaq were each filed in state court in Cleveland County, Oklahoma, with factual allegations similar to those in Alvis and LaPray, respectively. The plaintiffs in Barrett and Grider seek, among other things, specific performance, declaratory relief, damages and attorneys' HEWLETT PACKARD: Named in South Africa Apartheid Suit in S.D. NY ---------------------------------------------------------------- Hewlett Packard Co. was named as one of the defendants in the class action filed against numerous multinational corporations in the United States District Court for 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 HP 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 the: (1) Alien Tort Claims Act, (2) the Torture Protection Act, (3) 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. HMO LITIGATION: Firms Ask Appeals Court To Vacate Certification --------------------------------------------------------------- Eight managed care companies asked the 11th United States Circuit Court of Appeals to reverse class certification for several suits filed by doctors, alleging the companies routinely underpaid them, the Associated Press reports. The suit alleges that the defendants use a computer system to "bundle" services for a discounted rate, then reimburse the doctors at less than an agreed price. As a result, doctors lose millions in fees. However, questioning each patient's billing was "ridiculous" because each service may be just a few dollars short. "Every time the burden goes right back on the doctor to challenge a payment," Jim Tilghman, arguing for the doctors, told AP. "There's no way to challenge it on an individual basis without challenging the whole computer system." The defendant companies assert that the doctors should sue individually, not together as a 700,000-member class, as each case is different and laws differ from state to state. Two companies, Aetna (AET) and Cigna (CI), already have settled with doctors for a total of $1.01 billion. The trial for the others is scheduled next June. The remaining defendants are: (1) Anthem (ATH), (2) Coventry (CVH), (3) Foundation, (4) Humana (HUM), (5) PacifiCare (PHS), (6) Prudential, (7) United (UNH) and (8) Wellpoint (WLP) HYUNDAI MOTOR: TX Court Rejects Consumer Fraud Suit Settlement -------------------------------------------------------------- A Texas court has rejected a settlement of claims that Hyundai Motor Co. overstated the horsepower of 1.3 million vehicles. This recent ruling by Judge Gary Sanderson in Beaumont, Texas, came after 29 law firms in 18 other nationwide class actions against Hyundai said the proposed deal was grossly inadequate, according to a report by The Kansas City Star. "We argued that the plaintiffs' lawyers in Texas conducted no discovery and did no due diligence in cutting this deal, which was preliminarily approved by the Beaumont court," said Kansas City lawyer Norman Siegel of Stueve Helder Siegel, which represents plaintiffs in another class action against Hyundai. "We, along with other firms around the country, intervened in the action and were permitted to take discovery into the fairness of the settlement." Mr. Siegel said the proposed preliminary settlement called for Hyundai to offer coupons worth no more than $500 on future purchases or oil changes and would have cost Hyundai just $6 million. Meanwhile, the lawyers for the plaintiffs in Texas stood to make $2 million in fees. Hyundai, in a written statement, said it was disappointed that the court had vacated a settlement "that had been negotiated over many months and stood to offer valuable benefits to owners of the affected Hyundai vehicles." Judge Sanderson originally approved the settlement, but then he reversed himself after citing evidence presented by Mr. Siegel and other lawyers that Hyundai may have deliberately inflated the horsepower of the vehicles. In his ruling, Judge Sanderson said the lawyers had submitted evidence that the horsepower ratings "were approved by high- level decision-makers at Hyundai, and that Hyundai's actions may have been influenced by a desire to enhance its competitive standing in the marketplace." The cases stem from Hyundai Motor America's acknowledgement last September that it had published incorrect horsepower ratings for 1.3 million vehicles in marketing materials dating back more than a decade. The company, based in Fountain Valley, California, is a subsidiary of Hyundai Motor Co. of South Korea. Hyundai claimed the incorrect ratings were the result of sloppy record keeping. The horsepower ratings ranged from a 9.6 percent discrepancy for 1997 and 1998 2-liter Sonatas, to a 2.3 percent discrepancy for the 1992 to 1994 models of the same vehicle. When confronted with the claims by the vehicle owners, Hyundai initially said it would offer warranty extensions to some 400,000 owners of models whose power shortage exceeded four percent. This offer brought a flood of litigation activity throughout the country. In rejecting Hyundai's settlement offers of coupon payments and warranty extensions, Judge Sanderson noted that it had been entered into without the benefit of any investigation by the settling lawyers and before Hyundai was required to produce documents in the other pending class actions. "Hyundai then ran off to Beaumont, Texas, and found lawyers who were willing to settle the case for coupons and a $2 million fee," said Mr. Siegel. When the lawyers from class actions around the country were allowed to intervene in the Texas case, Hyundai was required to turn over documents and submit top executives to questioning under oath. Mr. Siegel and the other lawyers said the documents discovered and the testimony taken of Hyundai executives, show they approved use of uncorroborated horsepower numbers. JANUS CAPITAL: Milberg Weiss Launches Securities Fraud Lawsuit -------------------------------------------------------------- A New York law firm known for its class action litigation became the latest firm to file a lawsuit on behalf of Janus mutual fund shareholders. Milberg Weiss Bershad Hynes & Lerach recently filed suit against Denver-based Janus Capital Group and the New Jersey hedge fund Canary Capital in US District Court in New York, the Rocky Mountain News reports. The suit is seeking class-action status. The lawsuit follows upon New York Attorney General Eliot Spitzer's allegation that Janus allowed Canary to use "market timing" in trading Janus mutual fund shares, and in turn allowing Canary to make a quick profit at the expense of regular Janus shareholders. Although the practice is not illegal, most mutual fund firms discourage it. The shareholders' lawsuit alleges that Janus violated securities regulations by not disclosing to shareholders that it was allowing the practice to continue. Steven G. Shulman, an attorney with Milberg Weiss, said he expects hundreds of Janus fund shareholders to contact the firm. "It sounds like embezzlement to me," Mr. Shulman said. "That is not too difficult to understand." Several other law firms already have filed lawsuits on behalf of Janus fund shareholders. They include Hoffman Reilly Pozner & Williamson in Denver and Bernstein Liebhard & Lifshitz in New York, assisted by Denver firm Dyer & Shuman. Janus has said that it would determine how much damage has been done to shareholders, and the mutual fund vowed to make restitution. "We want to fully investigate and understand what, if any, negative impact this has had on our shareholders and are certainly committed to providing restitution to correct that," said Janus spokeswoman Shelley Peterson. KAYEM FOODS: Recalls Meat, Poultry For Listeria Contamination ------------------------------------------------------------- Kayem Foods, Inc. is voluntarily recalling approximately 9,230 pounds of ready-to-eat meat and poultry products that may be contaminated with Listeria monocytogenes, the US Department of Agriculture's Food Safety and Inspection Service announced. The products subject to recall are: (1) "TRIPLE M, FULLY COOKED BONELESS, BUDABALL HAM, WATER ADDED" Each package is stamped with the following code: "P2463 136" (2) "TRIPLE M, FULLY COOKED, HAM STEAK, WATER ADDED" Each package is stamped with the following: "LOT 136, SELL BY: OCT 23" (3) "DELI HAM, WATER ADDED, PACKED ON 09/3/03" (4) "GENOA SALAMI, BHA AND BHT WITH CITRIC ACID TO HELP PROTECT FLAVOR, PACKED ON 09/3/03, DISTRIBUTED BY KAYEM FOODS, CHELSEA, MA, 02152" (5) "al fresco, SUNDRIED TOMATO, with basil and tomatoes, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (6) "al fresco, ROASTED GARLIC, with fresh onions and herbs, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (7) "al fresco, SWEET ITALIAN STYLE, with fresh red and green peppers, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (8) "al fresco, SWEET APPLE, with pure Vermont maple syrup, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (9) "al fresco, SPICY JALAPENO, with jalapenos and roasted red peppers, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (10) "al fresco, TERIYAKI GINGER, with tamari and chili peppers, CHICKEN SAUSAGE, NET WT. 12OZ." Each package is stamped with the following: "USE/FREEZE BY OCT 03, LOT 246" (11) "GENOA SPECIALTY PRODUCTS, FULLY COOKED, Sweet SAUSAGE, NET WT. 12OZ (340g)" Each package is stamped with the following: "SELL BY OCT 08, LOT 246" (12) "GENOA SPECIALTY PRODUCTS, FULLY COOKED, Bold & Zesty SAUSAGE, NET WT. 12OZ (340g)" Each package is stamped with the following: "SELL BY OCT 08, LOT 246" (13) "GENOA SPECIALTY PRODUCTS, FULLY COOKED, Roasted Garlic SAUSAGE, NET WT. 12OZ (340g)" Each package is stamped with the following: "SELL BY OCT 08, LOT 246" The products were packaged on September 3, 2003. Each package bears the establishment number "7839" or "P-7839" inside the USDA mark of inspection. The products were distributed to retail establishments in Connecticut, Florida, Maine, Massachusetts, New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, and Vermont. FSIS has received no reports of illnesses associated with consumption of the products. The problem was discovered through routine FSIS microbiological testing. Consumption of food contaminated with Listeria monocytogenes can cause listeriosis, an uncommon but potentially fatal disease. Healthy people rarely contract listeriosis. Listeriosis can cause high fever, severe headache, neck stiffness and nausea. Listeriosis can also cause miscarriages and stillbirths, as well as serious and sometimes fatal infections in those with weak immune systems - infants, the frail or elderly and persons with chronic disease, HIV infection or in chemotherapy. For more details, contact Scott Farmelant, Regan Associates representative, by Phone: (617) 742-8180. MICHAELS STORES: Faces Suit For Violations of the CA Labor Code --------------------------------------------------------------- Michaels Stores, Inc.'s wholly-owned subsidiary Aaron Brothers, Inc. faces a class action filed in the Superior Court of California for the County of Los Angeles. The suit names a number of employers, and alleges that the defendants violated California Labor Code provisions that prohibit employers from requesting job applicants to disclose prior criminal convictions for specified marijuana-related infractions or participation in certain criminal diversionary programs. The Company believes these claims are without merit, it stated in a disclosure to the Securities and Exchange Commission. MICHAELS STORES: Canadian Employees Launch Overtime Wage Lawsuit ---------------------------------------------------------------- Michaels Stores, Inc. faces a class action filed against it and its wholly-owned subsidiary Michaels of Canada on behalf of current and former employees in Canada, in the Ontario Superior Court of Justice. James Cotton, a former store manager of Michaels of Canada, ULC, and Suzette Kennedy, a former assistant manager of Michaels of Canada, filed the suit, alleging that the defendants violated employment standards legislation in Ontario and other provinces and territories of Canada by failing to pay overtime compensation as required by that legislation. The suit also alleges that this conduct was in breach of the contracts of employment of those individuals. The suit seeks a declaration that the defendants have acted in breach of applicable legislation, payment to current and former employees for overtime, damages for breach of contract, punitive, aggravated and exemplary damages, interest, and costs. NEC CORPORATION: Unit Named In 20 Federal, State Antitrust Suits ---------------------------------------------------------------- NEC Corporation said two of its US-based units received grand- jury subpoenas in connection with the Justice Department's investigation into possible antitrust violations within the dynamic random access memory (DRAM) industry, The Wall Street Journal reports. Following announcement of the investigation by the Justice Department, one of the units, Elpida Memory (USA) Inc., a joint venture with Hitachi Ltd., has been named in 20 federal and state antitrust class actions, according to NEC's annual report to the Securities and Exchange Commission (SEC). DRAM is the most common type of memory for personal computers and workstations. Other DRAM manufacturers, subject to the same year-long investigation, were also named in the civil antitrust lawsuits, which allege the chip makers colluded to prop up prices, NEC's filing with the SEC said. They include, among others, Micron Technology Inc., Samsung Electronics Co., Hynix Semiconductor Inc. and Infineon Technologies AG. Elpida Memory (USA) was subpoenaed in connection with the Justice Department's investigation by the US District Court for the Northern District of California on June 19, 2002, the filing said. NEC Electronics America Inc, an indirect US subsidiary of NEC, received a similar grand-jury subpoena earlier. NEC also said in its annual SEC filing that NEC Business Network Solutions Inc., another indirect US unit, received a grand jury subpoena from the Justice Department in connection with an investigation into the government's E-rate program, which pays for telecommunications services and related equipment for public schools and libraries. The unit also has been requested to furnish information to the US House Energy and Commerce Committee, which is investigating possible fraud, waste and abuse in the management of the program, the filing said. The committee has requested information from 12 other US companies, including SBC Communications Inc. and International Business Machines Corporation, the filing said. NVIDIA CORPORATION: Ex-CFO Sued For Financial Reporting Fraud ------------------------------------------------------------- The United States Securities and Exchange Commission (SEC) filed financial reporting fraud charges against Christine B. Hoberg, former chief financial officer of Nvidia Corporation, alleging that she purposefully failed to record $3.3 million in expenses relating to a deal with a supplier. As a result of that transaction, the complaint alleges, the Company materially overstated its gross profit and income for the quarter ended April 30, 2000. Ms. Hoberg, 48, of Los Altos, California, was charged in a complaint filed in the US District Court for the Northern District of California. Simultaneous with the filing of the complaint, and without admitting or denying the allegations, Ms. Hoberg consented to a court order directing her to pay $671,694.99 (including $596,694.99 in disgorgement of ill-gotten gains and prejudgment interest and $75,000 in penalties), prohibiting her from serving as an officer or director of any public company for five years, and enjoining her from violations of the antifraud and other provisions of the securities laws. According to the complaint against Ms. Hoberg, in early 2000, Nvidia was lagging behind expectations for its financial performance for the quarter ended April 30, 2000. In order to meet those expectations, the Company entered into an agreement with a supplier in which the supplier granted Nvidia $3.3 million in cost reduction credits for the April 30 quarter. In exchange, though, Nvidia agreed to repay the supplier this same amount by paying artificially higher prices on purchases later in the year. Under generally accepted accounting principles (GAAP), Nvidia's explicit agreement to repay the costs to its supplier created a liability that Nvidia was required to record in its accounting records. Thus, under GAAP, Nvidia should have recorded both the cost reductions and an offsetting liability for its agreement to repay the costs in the future. Instead, Ms. Hoberg directed that Nvidia record only the cost reductions portion of the transaction on its books for the April 30 quarter. By failing to record the offsetting $3.3 million liability for the second portion of the deal, Ms. Hoberg led Nvidia to overstate its gross profit and income for the quarter by 6.4% and 15.3%, respectively. To facilitate the fraud, Ms. Hoberg directed that Nvidia document the deal in two separate agreements, with the cost reductions described in one agreement, and Nvidia's promise to repay described in another. During a subsequent review of Nvidia's quarterly results by its outside auditors, Ms. Hoberg provided the auditors with the agreement relating to Nvidia's cost reductions, but withheld the agreement that described Nvidia's promise to repay the costs in the future. The complaint charges Ms. Hoberg with financial reporting fraud (Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder), withholding material facts from auditors (Rule 13b2-2 under the Exchange Act), and falsifying Nvidia's books and records (Section 13(b)(5) of the Exchange Act and Rule 13b2-1 thereunder). RBF INTERNATIONAL: SEC Files Securities Fraud Lawsuit In C.D. CA ---------------------------------------------------------------- The United States Securities and Exchange Commission filed a complaint in the US District Court for the Central District of California charging Kenneth P. D'Angelo and his company, RBF International, Inc., with participating in an unlawful scheme to manipulate the stock price of GenesisIntermedia, Inc. (GENI), a now defunct public company that was based in Van Nuys, California. The Commission alleges that the scheme, which occurred between September 1999 and September 2001, resulted in the misappropriation of more than $130 million, the collapse of three broker-dealers, and the largest bailout in the history of the Securities Investor Protection Corporation. According to the complaint, the manipulation of GENI's stock price began shortly after the company's June 1999 public offering. To benefit from the manipulation, GENI's Chief Executive Officer developed a stock lending scheme. The Commission alleges that the CEO and an accomplice loaned approximately 15 million shares of GENI stock to Native Nations Securities, Inc., a New Jersey broker-dealer, and more than a dozen other broker-dealers in exchange for approximately $130 million. To facilitate these stock loan transactions, Mr. D'Angelo defrauded those broker-dealers by leading them to believe that reputable brokerage firms were lending the GENI shares to them. The complaint alleges that the GENI shares actually were being loaned by Ultimate Holdings, Ltd., which was an offshore entity controlled by GENI's CEO and his accomplice. The stock loans generated cash proceeds for the full market value of the GENI shares and assured that Ultimate Holdings and the CEO would benefit from future price increases. According to the complaint, Mr. D'Angelo secretly paid others for their assistance in this scheme. The complaint alleges that, in a typical stock loan transaction, Ultimate Holdings loaned stock to a broker-dealer and received the current market value of the stock in cash. As GENI's stock price fluctuated, the loaned stock was marked-to-market by the broker-dealer. In a hypothetical example, if Ultimate Holdings loaned a broker- dealer 1,000 shares of stock valued at $5.00 per share, Ultimate Holdings would get $5,000 from the broker-dealer and the broker- dealer would take possession of the stock. If the price of the stock subsequently rose to $6.00 per share, Ultimate Holdings would get another $1,000 from the broker-dealer. If the stock then dropped to $4.00 per share, Ultimate Holdings would be obligated to return $2,000 to the broker-dealer. Ultimate Holdings received additional cash when GENI's price increased, and was obligated to return cash when the stock price dropped. By lending the shares in this manner, rather than selling them, Ultimate Holdings and GENI's CEO: (1) raised substantial sums of money without giving up control of the stock or depressing the market; (2) generated funds used in part to buy more GENI shares and drive up the market price; and (3) prevented the shares from being used for short sales. According to the complaint, GENI's CEO, his accomplice and Mr. D'Angelo inflated GENI's stock price by systematically engaging in fraudulent and deceptive practices that had the intended effect of generating additional cash proceeds from the broker- dealers participating in the stock loan transactions. Their illegal manipulative activities included: (i) reducing the supply of GENI stock to control the public float; (ii) promoting a short squeeze; (iii) making trades through nominee accounts; and (iv) engaging in a free-riding scheme In addition, the complaint alleges that, while these activities were ongoing, the CEO was secretly compensating a well-known financial commentator to tout GENI on CNBC, Bloomberg TV, CNN and CNNfn, thereby creating demand for the stock, and making false and misleading statements in periodic reports filed with the Commission and in press releases issued by the company (with assistance from GENI's former Chief Financial Officer). The manipulation caused GENI's stock price to increase approximately 1,400%, from a low of $1.67 per share (split adjusted) on September 1, 1999 to a high of $25 per share on June 29, 2001. After the scheme collapsed in September 2001, GENI's stock price plunged to pennies per share. GENI's CEO and his accomplice then defaulted on the obligations of Ultimate Holdings to repay approximately $130 million they had obtained from loaning GENI shares to the various broker-dealers, which caused three of the firms to go bankrupt. According to the complaint, Mr. D'Angelo and RBF International violated Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. As relief, the Commission is seeking permanent injunctions, an accounting of all the money that Mr. D'Angelo and RBF International obtained as a result of their illegal conduct, disgorgement (with prejudgment interest), and civil penalties. STEPHEN PRICE: SEC Files Cease-And-Desist Proceeding V. Ex-VP ------------------------------------------------------------- The United States Securities and Exchange Commission instituted a settled cease-and-desist proceeding against Stephen D. Price, of Bronxville, New York, a former Vice-President for Business Development at CAIS Internet, Inc., now known as Ardent Communications, Inc. The Commission also filed a complaint in federal court seeking a civil penalty against Mr. Price. Without admitting or denying the Commission's findings, or the allegations in the complaint, Mr. Price consented to the issuance of a cease-and-desist order, and a judgment ordering him to pay a $20,000 penalty. The Commission's Order finds that Mr. Price violated the federal securities laws by concealing information about a significant sale from CAIS's management and accountants, which led CAIS to file materially false and misleading financial statements with the Commission. The Order finds that in September 2000, Mr. Price agreed to sell more than $1 million of Internet kiosks to a private company, subject to an oral side agreement requiring CAIS to make a multi-million dollar investment in the private company. According to the Order, Mr. Price knew that the customer would return the kiosks to CAIS if the promised investment was not made. The Order finds that Mr. Price concealed details about the investment from CAIS's management and accountants, and that his conduct led CAIS to file materially false financial statements for the quarter ended September 30, 2000. The Order finds that Mr. Price violated the antifraud provisions of the federal securities laws because he knew that CAIS would record the sale as revenue in the third quarter and overstate its results. The Order also finds that, due to his misconduct, Mr. Price was a cause of CAIS's violations of the reporting and recordkeeping provisions of the federal securities laws. The Commission found that Mr. Price violated Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 and Rules 10b-5, 13b2-1 and 13b2-2 thereunder, and was a cause of CAIS's violations of Sections 13(a) and 13(b)(2)(A) of the Exchange Act and Rules 12b-20 and 13a-13 thereunder. UNITED TEACHERS: Agrees To Settle Consumer Fraud Lawsuit in TX -------------------------------------------------------------- The United Teacher Associates Insurance Company (UTA) agreed to settle the class action filed in the Travis County District Court, Texas, seeking unspecified damages based on the alleged misleading disclosure of UTA's interest crediting practices on its fixed rate annuities. The settlement is subject to the trial court's approval. The resolution of this matter is not expected to have a material impact on UTA. VECTOR MEDICAL: SEC Launches Securities Fraud Action in S.D. FL --------------------------------------------------------------- The United States Securities and Exchange Commission filed an action for injunctive relief in the US District Court for the Southern District of Florida charging Vector Medical Technologies, Inc. (Vector), Michael H. Salit, James P. Farnell, Michael J. Farnell, David A. Zimmerman and Stanley B. Wasser with securities fraud for their participation in a securities boiler room operation that raised just under $16 million from defrauded investors, mostly physicians, in an unregistered public distribution of stock. The Commission's complaint alleges that the defendants sought out physician investors to join Vector's medical advisory board as a ruse to solicit them to purchase stock in Vector, a developmental stage biomedical company. Vector was purporting to have a patch capable of delivering insulin and other high- density molecular weight drugs through the skin. Specifically, the complaint alleges, among other things, that Vector and Mr. Salit violated the anti-fraud provisions of the federal securities laws by making false and misleading statements and omissions of material fact to prospective investors concerning: (1) Vector's acquisition of revolutionary, patented, transdermal technology; (2) Vector's impending initial public offering (IPO); (3) Vector's purported success in clinical trials; and, (4) Vector's payment of sales commissions from the offering proceeds. The complaint also alleges that Vector and Mr. Salit aided and abetted violations of the broker-dealer registration provisions committed by J. Farnell, M. Farnell, Mr. Zimmerman and Mr. Wasser, who acted as unregistered broker-dealers by soliciting investors to purchase Vector stock. The complaint further alleges that defendants J. Farnell, Mr. Zimmerman and Mr. Wasser had direct communications with prospective investors wherein they made numerous false and misleading statements and omissions. Similarly, the complaint alleges, among other things, that M. Farnell wrote the initial sales script used to solicit prospective investors which falsely represented that Vector had a firm commitment for an IPO at $10 per share and that he knew or was reckless in not knowing that Vector was paying undisclosed sales commissions on investor funds raised. Vector also, the complaint alleges, did not own the rights to the transdermal technology as represented to prospective investors in Vector's offering materials and in solicitations by Vector's sales agents. The complaint also alleges that Vector had no firm commitment for an IPO of Vector stock as represented to prospective investors by the Farnells, Zimmerman and Wasser. Finally, the complaint alleges that the business valuation report distributed to prospective investors was also materially false and misleading because it failed to include the assumptions on which the report was based. Accordingly, the complaint alleges that Vector and Mr. Salit violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (Securities Act) and Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5, thereunder, and that Vector and Mr. Salit aided and abetted the sales agents violations of Section 15 (a) of the Exchange Act. Additionally, the complaint alleges that J. Farnell, M. Farnell, Zimmerman and Wasser violated Sections 5(a), 5(c) and 17(a) of the Securities Act and Sections 10(b) and 15(a) of the Exchange Act and Rule 10b-5, thereunder. VIATICAL CAPITAL: FL Court Issues TRO Over Securities Violations ---------------------------------------------------------------- The United States District Court for the Middle District of Florida entered a temporary restraining order, asset freeze and other relief against: (1) Viatical Capital Inc. (VCI), a Florida firm, (2) Life Investment Funding Enterprises, Inc. (Life Investment), a Nevada firm, (3) Charles Douglas York, and (4) Robert Kingston Coyne, The TRO enjoined them from violating the antifraud provisions and (as against VCI, Mr. York and Mr. Coyne) the securities registration provisions of the federal securities laws. The SEC's complaint against VCI, Life Investment, Mr. York and Mr. Coyne, alleges that they have engaged in a systematic fraud in connection with a scheme to solicit investment in various limited liability companies (LLCs) that invested in viatical settlements (i.e., a life insurance policy of a terminally ill person that is sold at a price less than the face value of the policy). According to the SEC's complaint, VCI prepared and disseminated quarterly statements to investors representing that certain LLCs owned viaticated insurance policies even though those policies had been rescinded, terminated or cancelled. The complaint also alleges that many of the viatical settlements in VCI's portfolio were fraudulently obtained, making the policies subject to cancellation, and that they were acquired from an unlicensed viatical settlement provider. In addition, the complaint alleges that VCI, Mr. York and Mr. Coyne misrepresented and omitted to disclose material facts concerning the investment, including risk factors, rates of return, planned public offerings, and the checkered disciplinary histories of VCI, its related entities, and Mr. York and Mr. Coyne. The complaint also alleges that VCI, Mr. York and Mr. Coyne misused investor proceeds by, among other things, using a quarter million dollars of investor funds to fund their own boat-leasing venture. Also, the Complaint alleges that Life Investment recently filed with the SEC materially false and misleading registration statements in its attempt to become a public company. According to offering materials provided to investors, Life Investment would acquire the assets of each LLC, and conduct an initial public offering. As a result, the SEC alleges that VCI, York and Coyne violated Sections 5(a) and 5(c), and of the Securities Act of 1933 (Securities Act); and that all defendants violated Sections 17(a)(1), (2) and (3) of the Securities Act, Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b- 5, thereunder. In addition, the complaint alleges that Mr. York and Mr. Coyne acted as "control persons" for VCI under section 20(a) of the Exchange Act for its violations of Section 10(b) of the Exchange Act and Rule 10b-5, thereunder. WAL-MART STORES: Faces Suits For Unjust Enrichment in TX, NH, OK ---------------------------------------------------------------- Wal-Mart Stores, Inc. is a defendant in five putative class actions, three of which are pending in Texas, one in New Hampshire, and one in Oklahoma. In each lawsuit, the plaintiffs seek a declaratory judgment that Wal-Mart and the other defendants who purchased Corporate Owned Life Insurance (COLI) policies lacked an insurable interest in the lives of the employees who were the insureds under the policies, and seek to recover the proceeds of the policies under theories of unjust enrichment and constructive trust. In some of the suits, the plaintiffs assert other causes of action, and seek punitive damages. In August 2002, the court in the first-filed Texas lawsuit denied the Company's motion for summary judgment and granted partial summary judgment in favor of the plaintiffs on certain issues. The Texas litigation has been stayed while the Fifth Circuit Court of Appeals reviews these rulings. Class certification has not been decided in any of these cases. In the Oklahoma litigation, the plaintiffs are seeking certification of a 12-state class and discovery is ongoing. The proceedings in New Hampshire have been stayed pending the court's ruling on the defendants' motions to dismiss, which were argued in April. WAL-MART STORES: Engaged in Mediation For Consumer Fraud Suits -------------------------------------------------------------- Wal-Mart Stores, Inc. is participating in mediation for several class actions pending in Massachusetts, in which the plaintiffs allege that the Company violated a state regulation requiring individual price stickers to be affixed to certain items offered for retail sale. Plaintiffs seek equitable relief requiring Wal-Mart to affix individual prices to such items when they are placed for sale in Massachusetts, statutory damages of $25 for each violation in Massachusetts since 1998, treble damages, and attorneys' fees. The first suit was filed on November 26, 2002. The Company has filed motions to dismiss the statutory damage claims as to the unnamed class members and a motion to stay discovery pending the outcome of other pending motions. Class certification has not been decided in any of these cases. The court recently entered an Order staying all proceedings in the cases until October 10, 2003, while the parties participate in mediation. WILSONS LEATHER: Agrees To Settle Overtime Wage Suit in CA Court ---------------------------------------------------------------- Wilsons, The Leather Experts, Inc. agreed to settle the class action filed on behalf of current and former store managers of Wilsons Leather in California regarding their classification as exempt from overtime pay. In July 2003, the Company reached a confidential settlement of the class action through mediation, and court approval of the settlement is pending. A charge of $1.9 million related to this settlement was taken during the second quarter. New Securities Fraud Cases BANK ONE: Wolf Popper Lodges Securities Fraud Lawsuit in S.D. NY ---------------------------------------------------------------- Wolf Popper LLP initiated a securities class action in the United States District Court for the Southern District of New York, charging improper trading practices at mutual fund companies including Bank One Corporation (NYSE:ONE). The Complaint is brought on behalf of persons who acquired, redeemed or owned mutual fund shares of Bank One Corporation's ``One Group'' mutual fund family, specifically its ``Equity Funds'', from September 9, 2000 through September 2, 2003 against Bank One, and its subsidiary, Banc One Investment Advisors Corporation (BOIA), pursuant to the prospectus therefor. The complaint charges violations of Section 11 of the Securities Act of 1933 for false and misleading statements and omissions in the prospectuses, and common law breach of fiduciary duty. The complaint alleges that during the Class Period, the above-named mutual fund companies engaged in illegal and/or improper trading practices, in concert with certain institutional traders, which caused financial injury to the shareholders of the subject mutual funds, in return for substantial fees and other income for themselves and their affiliates. The complaint alleges that the schemes at Bank One, Janus, Bank of America, and Strong took two primary forms. First is the ``late trading'' of mutual fund shares by select customers of the fund (including hedge funds). Specifically, the complaint alleges that certain mutual fund investors of the above-named fund companies, including Canary Capital Partners, LLC and Canary Investment Management, LLC (collectively, ``Canary''), improperly arranged with defendants that orders placed after 4 p.m. on a given day would illegally receive that day's price (as opposed to the next day's price, which the order would have received had it been processed lawfully). This allowed Canary and other mutual fund investors who engaged in the same wrongful course of conduct to capitalize on post 4:00 p.m. information, while those who bought their mutual fund shares lawfully could not. The complaint further alleges that defendants engaged in wrongful conduct known as ``timing.'' Timing is an investment technique involving short-term, ``in and out'' trading of mutual fund shares, designed to exploit inefficiencies in the way mutual fund companies price their shares. It is widely acknowledged that ``timing'' inures to the detriment of long- term shareholders. Nonetheless, in return for investments from certain hedge funds and other traders that would increase fund managers' fees, fund managers entered into undisclosed agreements to allow them to ``time'' their funds. For more details, contact Michael A. Schwartz, Andrew E. Lencyk or Mark Marino by Mail: 845 Third Avenue, New York, NY 10022 by Phone: 212-759-4600 or 877-370-7703 (toll free) or by Fax: 212-486-2093 or 877-370-7704 (toll free) by E-mail: mschwartz@wolfpopper.com, alencyk@wolfpopper.com, mmarino@wolfpopper.com or irrep@wolfpopper.com or visit the firm's Website: http://www.wolfpopper.com CATALINA MARKETING: Bernstein Liebhard Files Securities Suit ------------------------------------------------------------ Bernstein Liebhard & Lifshitz LLP initiated a securities class action in the United States District Court for the Middle District of Florida on behalf of all persons who purchased or acquired Catalina Marketing Corporation (NYSE:POS) securities between April 18, 2002 and October 1, 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 numerous positive statements concerning the Company's ability to grow its revenues and earnings at a rapid pace and the strong demand that existed for the Company's products, especially at its Health Resource division. In truth and in fact, however, the Company was experiencing a slowdown in its revenue growth because its pharmaceutical clients had curtailed their spending on promotional items, such as the Company's newsletters, and retail pharmacies had become more cautious about participating in the Company's advertising programs and had reduced their distribution of the Company's health newsletters. When these facts were belatedly disclosed by the Company on October 1, 2002, the price of Catalina common stock fell from $27.97 per share to close at $17.90 per share -- a drop of 36% - - on extremely heavy trading volume. 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 or by E-mail: POS@bernlieb.com. CHECK POINT: Chitwood & Harley Lodges Securities Suit in S.D. NY ---------------------------------------------------------------- Chitwood & Harley filed a securities class action in the United States District Court for the Southern District of New York, on behalf of all purchasers of securities of Check Point Software Technologies, Ltd., between July 10, 2001 and April 4, 2002, inclusive. The suit is brought against the Company and: (1) Gil Shwed, (2) Jerry Ungerman, (3) Eyal Desheh, (4) Irwin Federman, and (5) Alex Vieux 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. Throughout the Class Period, the complaint alleges, defendants issued numerous statements concerning Check Point's revenue growth, product and marketing initiatives, and increasing revenues and profits while failing to disclose that demand for the Company's products was materially declining. When this information was belatedly disclosed to the market on April 4, 2002, shares of Check Point fell as low as $20.09, to close at $22.07, on extremely heavy trading volume. For more details, contact Lauren Antonino or Jennifer Morris by Phone: 1-888-873-3999 (toll-free) by E-mail: jlm@classlaw.com or visit the firm's Website: http://www.classlaw.com DVI INC.: Wolf Haldenstein Lodges Securities Lawsuit in E.D. PA --------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class action in the United States District Court for the Eastern District of Pennsylvania, on behalf of all persons who purchased or otherwise acquired securities of DVI, Inc. (OTC Bulletin Board: DVIXQ.PK) between November 7, 2001 and August 13, 2003, inclusive, against Michael A. O'Hanlon, Chief Executive Officer and President and Steven R. Garfinkel, Executive Vice President and Chief Financial Officer. Throughout the class period, defendants issued statements, press releases, and filed quarterly and annual reports with the SEC describing DVI's business operations and financial condition. The complaint alleges that the Company's statements during the class period regarding its financial condition and performance were materially false and misleading because they failed to disclose and/or misrepresented that: (1) DVI had violated GAAP by failing to write down in a timely fashion the value of certain non-performing or impaired assets; (2) the Company's growth was, in material part, the result of improper accounting; (3) DVI's accounting and financial reporting policies and procedures for non-recurring transactions were inadequate; (4) the collateral pledged to the Company's lenders to secure its credit facilities was materially different than what DVI represented; (5) the values of the Company's assets, net income and earnings were materially artificially inflated; (6) DVI lacked adequate internal accounting controls and personnel expertise and was therefore unable to ascertain the true financial condition of the Company; (7) DVI's reported results were not presented in accordance with GAAP and did not fairly and accurately present the results of the Company's operations or financial condition. On June 27, 2003, DVI stunned the market when it issued a press release announcing that its March 30, 2003, quarterly report had been rejected by the SEC because it had not been reviewed by an independent auditor. In addition, the Company disclosed that if it followed an accounting change recommended by its auditor Deloitte & Touche LLP, the Company would have to restate its net income for the first nine months of fiscal 2003 and its net income for its fiscal year 2002. The restatement would result in a dramatic reduction in the Company's net income. For the first nine months of its fiscal year 2003, earnings would be reduced by $0.10 per share, or 44.45%, and its net income for fiscal year 2002 would be reduced by $1.395 million, or 34.12%. Moreover, later disclosures would reveal that the Company had misled investors as to the nature and amount of the assets used as collateral to secure its credit facilities. The combined improprieties resulted in the Company filing for Chapter 11 Bankruptcy protection. For more details, contact Fred Taylor Isquith, Gregory M. Nespole, Christopher S. Hinton, 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 DVI. JANUS CAPITAL: Milberg Weiss Launches Securities Suit in S.D. NY ---------------------------------------------------------------- Milberg Weiss Bershad Hynes & Lerach LLP initiated a securities class action on behalf of purchasers of the securities of the Janus Funds family of funds owned and operated by Janus Capital Group, Inc. and its subsidiaries and affiliates, between October 1, 1998 and July 3, 2003, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934, the Securities Act of 1933 and the Investment Advisers Act of 1940. The Funds, and the symbols for the respective Funds named below, are as follows: (1) Janus Fund (JANSX) (2) Janus Enterprise Fund (JAENX) (3) Janus Mercury Fund (JAMRX) (4) Janus Olympus Fund (JAOLX) (5) Janus Global Technology Fund (JAGTX) (6) Janus Orion Fund (JORNX) (7) Janus Twenty Fund (JAVLX) (8) Janus Venture Fund (JAVTX) (9) Janus Global Life Sciences Fund (JAGLX) (10) Janus Global Value Fund (JGVAX) (11) Janus Overseas Fund (JAOSX) (12) Janus Worldwide Fund (JAWWX) (13) Janus Balanced Fund (JABAX) (14) Janus Core Equity Fund (JAEIX) (15) Janus Growth and Income Fund (JAGIX) (16) Janus Special Equity Fund (JSVAX) (17) Janus Risk-Managed Stock Fund (JRMSX) (18) Janus Mid Cap Value Fund (JMCVX, JMIVX) (19) Janus Small CapValue Fund (JSCVX, JSIVX) (20) Janus Federal Tax-Exempt Fund (JATEX) (21) Janus Flexible Income Fund (JAFIX) (22) Janus High-Yield Fund (JAHYX) (23) Janus Short-Term Bond Fund (JASBX) (24) Janus Money Market Fund (JAMXX) (25) Janus Government Money Market Fund (JAGXX) (26) Janus Tax-Exempt Money Market Fund (JATXX) The action, is pending in the United States District Court for the Southern District of New York against defendants Janus Capital Group Inc.; Janus Capital Corporation; Janus Capital Management, LLC; Janus Investment Fund; Edward J. Stern; Canary Capital Partners, LLC; Canary Investment Management, LLC; Canary Capital Partners, Ltd.; each of the Funds; and John Does 1-100. The Complaint alleges that defendants violated Sections 11 and 15 of the Securities Act of 1933; Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder; and Section 206 of the Investment Advisers Act of 1940. The Complaint charges that, throughout the Class Period, defendants failed to disclose that they improperly allowed certain hedge funds, such as Canary, to engage in the "timing" of their transactions in the Funds' securities. Timing is excessive, arbitrage trading undertaken to turn a quick profit. Timing injures ordinary mutual fund investors -- who are not allowed to engage in such practices -- and is acknowledged as an improper practice by the Funds. In return for receiving extra fees from Canary and other favored investors, Janus Capital Group Inc. and its subsidiaries allowed and facilitated Canary's timing activities, to the detriment of class members, who paid, dollar for dollar, for Canary's improper profits. These practices were undisclosed in the prospectuses of the Funds, which falsely represented that the Funds actively police against timing. For more details, contact Steven G. Schulman, Peter E. Seidman, Andrei V. Rado by Mail: One Pennsylvania Plaza, 49th fl., New York, NY, 10119-0165 by Phone: (800) 320-5081 by E-mail: janusfundscase@milbergNY.com or visit the firm's Website: http://www.milberg.com MUTUAL FUNDS: Brualdi Law Firm Lodges Securities Suit in S.D. NY ---------------------------------------------------------------- The Brualdi Law Firm filed a securities class action charging improper trading practices at mutual fund companies including Bank One Corporation (NYSE:ONE), Janus Capital Group, Inc. (NYSE:JNS), Bank of America Corporation (NYSE:BAC), and Strong Financial Corporation. The complaint is brought on behalf of a class consisting of all persons other than defendants who purchased or otherwise acquired shares or other ownership units of one or more of the mutual funds in the One Group Mutual Fund family between October 1, 1998 and July 3, 2003, inclusive, and against the trustees of One Group Mutual Funds (the ``One Group''), One Group's manager and investment advisor and the One Group itself. The complaint charges, inter alia, violations of The Investment Companies Act of 1940 and violation of The Common Law. The complaint alleges that during the Class Period, the above- named mutual fund companies engaged in illegal and/or improper trading practices, in concert with certain institutional traders, which caused financial injury to the shareholders of the subject mutual funds, in return for substantial fees and other income for themselves and their affiliates. The complaint alleges that the schemes at Bank One, Janus, Bank of America, and Strong took two primary forms. First is the ``late trading'' of mutual fund shares by select customers of the fund (including hedge funds). Specifically, the complaint alleges that certain mutual fund investors of the above named fund companies, including Canary Capital Partners, LLC and Canary Investment Management, LLC (collectively, ``Canary''), improperly arranged with defendants that orders placed after 4 p.m. on a given day would illegally receive that day's price (as opposed to the next day's price, which the order would have received had it been processed lawfully). This allowed Canary and other mutual fund investors who engaged in the same wrongful course of conduct to capitalize on post 4:00 p.m. information, while those who bought their mutual fund shares lawfully could not. The complaint further alleges that defendants engaged in wrongful conduct known as ``timing.'' Timing is an investment technique involving short-term, ``in and out'' trading of mutual fund shares, designed to exploit inefficiencies in the way mutual fund companies price their shares. It is widely acknowledged that ``timing'' inures to the detriment of long- term shareholders. Nonetheless, in return for investments from certain hedge funds and other traders that would increase fund managers' fees, fund managers entered into undisclosed agreements to allow them to ``time'' their funds. Funds affected include at least the following: (1) Janus Mercury Fund and the Janus High-Yield Fund; (2) Bank of America's ``Nations Funds''; (3) Bank One's ``One Group'' funds (the two international funds, the Small Cap Growth Fund, and two mid cap funds); and (4) the Strong Growth 20 Fund, Strong Growth Fund, Advisor Mid Cap Growth Fund, Strong Large Cap Growth Fund, and Strong Dividend Income Fund. For more details, contact Richard Brualdi, Kevin T. O'Brien or Jeanette Olaya by Mail: 29 Broadway, Suite 1515, New York, NY 10006 by Phone: 212-952-0602 or 877-495-1187 (toll free) by Fax: 212-952-0608 by E-mail: rbrualdi@earthlink.net or visit the firm's Website: http://www.brualdilawfirm.com STRONG FINANCIAL: Milberg Weiss Files Securities Suit in S.D. NY ---------------------------------------------------------------- Milberg Weiss Bershad Hynes & Lerach LLP initiated a securities class action on September 9, 2003, on behalf of purchasers of the securities of the Strong Funds family of funds owned and operated by Strong Financial Corporation, and its subsidiaries and affiliates, between October 1, 1998 and July 3, 2003, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934, the Securities Act of 1933 and the Investment Advisers Act of 1940. The Funds, and the symbols for the respective Funds named below, are as follows: (1) Strong Advisor Bond Fund (SVBDX, SADBX, SABCX, SIBNX, F008W1, SBDIX) (2) Strong Advisor Municipal Bond Fund (SAMAX, SMBBX, F00BH8) (3) Strong Advisor Municipal Select Fund (SMUIX, STAEX, F005LZ, F005M9) (4) Strong Advisor Short Duration Bond A Fund (STSDX, SSDKX, SSHCX, STGBX) (5) Strong Advisor Common Stock Fund (SCSAX, SCSKX, STSAX, STCSX) (6) Strong Advisor Endeavor Large Cap Fund (STALX, F008GO) (7) Strong Advisor Focus Fund (F005MO, F005M7, F005LT) (8) Strong Advisor International Core Fund (F008GQ, F008GR, F008GS) (9) Strong Advisor Large Company Core Fund (SLGAX, F00AO2, F00AO3, SLCKX) (10) Strong Advisor Mid-Cap Growth Fund (F005LQ, F005M1, F005LO, SMDCX) (11) Strong Advisor Small Cap Value Fund (SMVAX, SMVBX, SMVCX, SSMVX) (12) Strong Advisor Strategic Income Fund (SASAX, F005L7, SASCX (13) Strong Advisor Technology Fund (SASCX, F005LM, F005LM) (14) Strong Advisor U.S. Small/Mid Cap Growth Fund (F009D0, F009D1) (15) Strong Advisor U.S. Value (F005M2, F005M5, F005MA, SEQKX, SEQIX) (16) Strong Advisor Utilities and Energy Fund (SUEAX, F00AED, F00AEE, F009D5) (17) Strong All Cap Value Fund (F009D5) (18) Strong Asia Pacific Fund (SASPX) (19) Strong Balanced Fund (STAAX) (20) Strong Blue Chip Fund (SBCHX) (21) Strong Discovery Fund (STDIX) (22) Strong Dividend Income Fund (SDVIX, F008VY) (23) Strong Dow 30 Value Fund (SDOWX) (24) Strong Endeavor Fund (SENDX) (25) Strong Energy Fund (SENGX) (26) Strong Enterprise Fund (SENAX, F04ANX, SENTX, SEPKX) (27) Strong Growth & Income Fund (SGNAX, SGNIX, SGRIX, SGIKX) (28) Strong Growth 20 Fund (SGTWX, SGRTX, SGRAX, F00B67, SGRNX) (29) Strong Growth Fund (SGROX, SGRKX) (30) Strong Index 500 Fund (SINEX) (31) Strong Large Cap Core Fund (SLCRX) (32) Strong Large Cap Growth Fund (STRFX) (33) Strong Large Company Growth Fund (SLGIX, F04ANY) (34) Strong Mid Cap Disciplined Fund (SMCDX) (35) Strong Multi-Cap Value Fund (SMTVX) (36) Strong Opportunity Fund (SOPVX, SOPFX, F00AH2) (37) Strong Overseas Fund (F00B4I, SOVRX) (38) Strong Small Company Value Fund (F009D3) (39) Strong Technology 100 Fund (STEKX) (40) Strong U.S. Emerging Growth Fund (SEMRX) (41) Strong Value Fund (STVAX) (42) Strong Life Stages - Aggressive Portfolio Fund (SAGGX) (43) Strong Life Stages - Conservative Portfolio Fund (SCONX) (44) Strong Life Stages - Moderate Portfolio Fund (SMDPX) (45) Strong Corporate Bond Fund (SCBDX, SCBNX, STCBX) (46) Strong Corporate Income Fund (SCORX) (47) Strong High-Yield Bond Fund (SHBAX, SHYYX, STHYX) (48) Strong Government Securities Fund (SGVDX, F00B66, SGVIX, STVSX) (49) Strong High-Yield Municipal Bond Fund (SHYLX) (50) Strong Intermediate Municipal Bond Fund (SIMBX) (51) Strong Municipal Bond Fund (SXFIX) (52) Strong Minnesota Tax-Free Fund (F00B64, F00B65, F00B63 (53) Strong Wisconsin Tax-Free Fund (F0068K) (54) Strong Short-Term High-Yield Municipal Bond Fund (SSHMX, SSTHX, STHBX) (55) Strong Short-Term Municipal Bond Fund (F00B62, STSMX) (56) Strong Short-Term Income Fund (F00B1K) (57) Strong Short-Term Bond Fund (SSTVX, SSHIX, SSTBX) (58) Strong Ultra Short-Term Income Fund (SADAX, SADIX, STADX) (59) Strong Ultra Short-Term Municipal Income Fund (SMAVX, SMAIX, SMUAX) (60) Strong Florida Municipal Money Market Fund (SLFXX) (61) Strong Heritage Money Fund (SHMXX) (62) Strong Money Market Fund (SMNXX) (63) Strong Municipal Money Market Fund (SXFXX) (64) Strong Tax-Free Money Fund (STMXX) The action is pending in the United States District Court for the Southern District of New York against defendants Strong Financial Corporation, Strong Capital Management, Inc., and each of the Funds' registrants and issuers, Edward J. Stern, Canary Capital Partners, LLC, Canary Investment Management, LLC, Canary Capital Partners, Ltd, each of the Funds, and John Does 1-100. The complaint alleges that defendants violated Sections 11 and 15 of the Securities Act of 1933; Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder; and Section 206 of the Investment Advisers Act of 1940. The Complaint charges that, throughout the Class Period, defendants failed to disclose that they improperly allowed certain hedge funds, such as Canary, to engage in the "timing" of their transactions in the Funds' securities. Timing is excessive, arbitrage trading undertaken to turn a quick profit. Timing injures ordinary mutual fund investors -- who are not allowed to engage in such practices -- and is acknowledged as an improper practice by the Funds. In return for receiving extra fees from Canary and other favored investors, Strong Financial Corporation and its subsidiaries allowed and facilitated Canary's timing activities, to the detriment of class members, who paid, dollar for dollar, for Canary's improper profits. These practices were undisclosed in the prospectuses of the Funds, which falsely represented that the Funds actively police against timing. For more details, contact Steven G. Schulman, Peter E. Seidman, Andrei V. Rado by Mail: One Pennsylvania Plaza, 49th fl., New York, NY, 10119-0165 by Phone: (800) 320-5081 by E-mail: strongfundscase@milbergNY.com or visit the firm's Website: http://www.milberg.com STRONG CAPITAL: Abbey Gardy Lodges Mutual Fund Fraud Suit in NJ --------------------------------------------------------------- Abbey Gardy, LLP initiated a securities class action filed in the United States District Court for the District of New Jersey against Strong Capital Management, Inc., Janus Capital Management LLC and Banc One Investment Advisors Corporation for violations of the federal securities laws. The action is brought on behalf of the following mutual funds: (1) Funds managed by Strong Capital: Strong Growth 20 Fund, Strong Growth Fund, Advisor Mid Cap Growth Fund, Strong Large Cap Growth Fund and Strong Dividend Income Fund (2) Funds managed by Janus Capital: Janus Mercury Fund and Janus High Yield Fund; and (3) Funds managed by Bank One Advisors: One Group Small Cap Growth Fund, One Group International Equity Index Fund, One Group Diversified International Fund and One Group Mid Cap Growth Fund. The lawsuit seeks to recover the amount of fees paid by the funds to their advisors. These advisors are paid fees in exchange for detecting and preventing short-term, in-and-out trading of mutual fund shares because such trading often results in lowering net asset value and increased transaction costs, all to the detriment of mutual fund investors who play by the rules. Instead of providing the promised services to protect the funds (which the advisors were paid to do), the advisors agreed to permit Edward J. Stern and the Canary group of companies under his control to engage in short-term, in-and-out trading of the funds in exchange for Canary's agreement to provide long-term investments in other investment vehicles of the advisors, thereby providing the advisors with a steady stream of fees from Canary. The lawsuit alleges that advisors breached their fiduciary duties to the funds with respect to receipt of compensation for services when they deliberately, in bad faith, in a grossly negligent manner, or with reckless disregard failed to render the required services and obligations as the funds' investment advisors. For more details, contact Nancy Kaboolian or Susan Lee by Phone: (212) 889-3700 or 800-889-3701, by E-mail: nkaboolian@abbeygardy.com or slee@abbeygardy.com. SUREBEAM CORPORATION: Rabin Murray Lodges Securities Suit in NY --------------------------------------------------------------- Rabin Murray & Frank LLP initiated a securities class action in the United States District Court for the Southern District of California, on behalf of all persons or entities who purchased or otherwise acquired SureBeam Corporation securities (NasdaqNM:SUREE) during the period between March 16, 2001 and August 25, 2003, both dates inclusive. The complaint names as defendants the Company, Lawrence A. Oberkfell, and David A. Rane. The complaint alleges the 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 improperly recognizing revenue in violation of GAAP; (2) that the Company's improper revenue recognition was done through its recognition of revenue from non- affiliated parties when the Company knew that such parties could not pay and for which SureBeam would forgive those receivables; (3) that the Company lacked adequate internal controls and was therefore unable to ascertain the true financial condition of the Company; and (4) that as a result, the values of the Company's earnings, net income and earnings per share were materially overstated at all relevant times. SureBeam's accounting difficulties continued, and on August 21, 2003, the Company announced that it was dismissing Deloitte & Touche due to issues that had not been resolved to the auditor's satisfaction. Specifically, Deloitte & Touche was not satisfied with certain aspects of the Company's revenue recognition policies and certain contracts entered into in 2000 and affecting subsequent periods. For more details, contact Eric J. Belfi or Gregory Linkh by Phone: (800) 497-8076, (212) 682-1818 by Fax: (212) 682-1892 or by E-mail: email@rabinlaw.com SUREBEAM INC.: Weiss & Yourman Lodges Securities Suit in N.D. CA ---------------------------------------------------------------- Weiss & Yourman initiated a securities class action in the United States District Court for the Northern District of California on behalf of purchasers of SureBeam, Inc. (Nasdaq:SUREE) stock between March 16, 2001 and August 20, 2003. The complaint charges that the Company and certain of its officers violated federal securities laws by issuing a series of false and misleading statements to the investing public which materially misstated the Company's financials, thereby artificially inflating the price of SureBeam's stock. Specifically, the Complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by issuing press releases and SEC filings which failed to disclose that the Company's reported earnings and profits were materially overstated because they were in violation of Generally Accepted Accounting Procedures (GAAP). The Company launched a successful IPO on March 16, 2001, based on a prospectus containing alleged misrepresentations. Throughout the class period, defendants continued to disseminate false and misleading statements to the public, thereby keeping the stock trading at artificially high levels. However, on June 10, 2003, SureBeam announced that it was terminating KPMG LLP as its auditor and replacing it with Deloitte & Touche LLP. On August 21, 2003, the Company announced that it was then dismissing Deloitte & Touche due to issues Deloitte had with the Company's revenue recognition policy. As a result, SureBeam twice delayed filing its 10-Q and eventually missed the deadline. For more details, contact Jennifer Williams by Phone: 800-437-7918 by E-mail: info@wyca.com or visit the firm's Website: http://www.wyca.com ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. 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