/raid1/www/Hosts/bankrupt/CAR_Public/031128.mbx
C L A S S A C T I O N R E P O R T E R
Friday, November 28, 2003, Vol. 5, No. 236
Headlines
ALAMOSA DELAWARE: Reaches Settlement For NY Securities Lawsuit
AMERICAN EXPRESS: Wants To Transfer Consumer Suit From IL Court
AMERICAN EXPRESS: Moves For Arbitration in NY Consumer Lawsuit
AMERICAN EXPRESS: Plaintiffs Voluntarily Dismiss Consumer Suit
AMERICAN EXPRESS: Plaintiffs Dismiss Antitrust Suit in CA Court
AMERICAN EXPRESS: Wants Transfer of Antitrust Lawsuit To S.D. NY
AMERICAN EXPRESS: To Be Removed As Defendant in Antitrust Suit
AMERICAN GREETINGS: Recalls 17T Bounce Balls For Choking Hazard
AMERICAN GREETINGS: Recalls 122T Zipper Pulls For Choking Hazard
AMERICAN GREETINGS: Recalls Santa D‚cor Due To Aspiration Hazard
AMERICAN PHARMACEUTICAL: Shareholders Launch Stock Suits in IL
APPLIED MICRO: Trial in CA Securities Fraud Lawsuit Set in 2005
APPLIED MICRO: Discovery Proceeds in Shareholder Derivative Suit
BEARINGPOINT INC.: Shareholders File Securities Suits in E.D. VA
CANADA: Saskatchewan Reaches Settlement For Water Pollution Suit
CHUBB CORPORATION: Plaintiffs Appeal Securities Suit Dismissal
CONSTAR INTERNATIONAL: Shareholders File Securities Suits in PA
CORIO INC.: Inks Settlement For Securities Fraud Suit in S.D. NY
CORVAS INTERNATIONAL: DE Court Tosses Suit Over Dendreon Merger
DELTA AIR: Expects Plaintiffs To Appeal Antitrust Suit Dismissal
DELTA AIR: 180 Suits Filed Over September 11 Terrorist Attacks
DIAMOND TRIUMPH: Customers Sue For Unfair Trade Practices in PA
EFUNDS CORPORATION: Driver's Privacy Suits Pending in Miami, FL
EMERSON RADIO: Shareholders Launch Securities Fraud Suits in NJ
FIRST UNION: Asks NY Court For Summary Judgment in Stock Lawsuit
FIRST UNION: To Ask NY Court To Dismiss Securities Fraud Lawsuit
GUIDANT CORPORATION: Faces Back-to-Back Shareholder Suits in IN
HALLWOOD REALTY: DE Court To Hold Status Conference on Dec. 2003
HOME DEPOT: CA Consumers File Lawsuit Over Credit Card Promotion
HOUSEHOLD INTERNATIONAL: Agrees To Settle WA Consumer Lawsuits
HOUSEHOLD INTERNATIONAL: Settles Mortgage-Abuse Suit For $100M
INTERPUBLIC GROUP: NY Court Certifies Securities Fraud Lawsuit
INTERPUBLIC GROUP: Plaintiffs To Appeal Stay of Securities Suits
LIQUOR INDUSTRY: Lawsuit Alleges Alcohol Marketed To Teenagers
MCG CAPITAL: Plaintiffs Appeal Dismissal of VA Securities Suit
MICROSOFT CORPORATION: Deadline to Join In Florida Pact Extended
MICROTUNE INC.: Reaches Settlement For Securities Lawsuit in NY
MICROTUNE INC.: Asks TX Court To Dismiss Securities Fraud Suit
NEWKIRK MASTER: Reaches Settlement For Securities Lawsuit in CT
OPENTV CORPORATION: Reaches Settlement For Securities Fraud Suit
OPENTV CORPORATION: ACTV Shareholders Sue Over Acquisition in DE
PFGI CAPITAL: Asks OH Court To Dismiss Shareholder Fraud Lawsuit
PORTILLO'S: IL Judge Approves Pact for Mislabeled Beer Lawsuit
PUBLIC STORAGE: Consumers Commence Fraud Suit in CA State Court
PUBLIC STORAGE: To Oppose Appeal of Class Certification Denial
RFS PARTNERSHIP: Faces Fiduciary Duty Suit Over CNL Merger in TN
SPS TECHNOLOGIES: Reaches MOA with Plaintiffs in Investor Suit
TERAFORCE TECHNOLOGY: Reaches Settlement For Shareholder Suits
UNITED PAN-EUROPE: U.S. Bankruptcy Court Lifts Litigation's Stay
WINK COMMUNICATIONS: Reaches Settlement For NY Securities Suit
WYETH: Share Prices Rise After Favorable Georgia Court Ruling
Asbestos Alert
ASBESTOS LITIGATION: Ballantyne Reports Asbestos-Related Cases
ASBESTOS LITIGATION: BGE Continues to Battle Asbestos Lawsuits
ASBESTOS LITIGATION: Eastman Discloses 11,000 Asbestos Claims
ASBESTOS LITIGATION: Goodyear Continues to Face Asbestos Suits
ASBESTOS LITIGATION: Grace Asbestos Lawsuit Placed on Hold
ASBESTOS LITIGATION: Jury Awards $6.4M to Victim's Family
ASBESTOS LITIGATION: USG Backs Calls for Judge Wolin's Recusal
ASBESTOS LITIGATION: Senate Shelves Bill Until Next Year
ASBESTOS LITIGATION: Selas Reports Asbestos-Related Lawsuits
ASBESTOS LITIGATION: ABB Appeals Could Reach High Court
ASBESTOS LITIGATION: Harsco Posts Latest Asbestos Stats
ASBESTOS LITIGATION: Travelers Inks Asbestos Deal
ASBESTOS LITIGATION: UIC Lists 18,590 Asbestos-Related Claimants
New Securities Fraud Cases
AEROSONIC CORPORATION: Brodsky & Smith Lodges Stock Suit in FL
FRED ALGER: Charles Piven Launches Securities Suit in S.D. NY
FRED ALGER: Bernstein Liebhard Lodges Securities Suit in S.D. NY
MERCK & CO: Stull Stull Files Amended Securities Suit in E.D. LA
PORTAL SOFTWARE: Brodsky & Smith Launches Securities Suit in CA
*********
ALAMOSA DELAWARE: Reaches Settlement For NY Securities Lawsuit
--------------------------------------------------------------
Alamosa Delaware, Inc. reached a settlement for the consolidated
securities class action filed in the United States District
Court for the Southern District of New York, arising out of its
initial public offering (IPO). Various underwriters of the IPO
also are named as defendants in the action.
The action against the Company is one of more than 300 related
class actions now consolidated and pending in the same court.
The complainants seek to recover damages and allege, among other
things, that the registration statement and prospectus filed
with the U. S. Securities and Exchange Commission for purposes
of the IPO were false and misleading because they failed to
disclose that the underwriters allegedly:
(1) solicited and received commissions from certain
investors in exchange for allocating to them shares of
common stock in connection with the IPO, and
(2) entered into agreements with their customers to
allocate such stock to those customers in exchange for
the customers agreeing to purchase additional Company
shares in the aftermarket at pre-determined prices.
On February 19, 2003, the Court granted motions by the Company
and 115 other issuers to dismiss the claims under Rule 10b-5 of
the Exchange Act, which had been asserted against them. The
Court denied the motions by the Company and virtually all of the
other issuers to dismiss the claims asserted against them under
Section 11 of the Securities Act.
The issuers in the IPO cases, including the Company, have
reached an agreement in principle with the plaintiffs to settle
the claims asserted by the plaintiffs against them. Under the
terms of the proposed settlement, the insurance carriers for the
issuers will pay the plaintiffs the difference between $1
billion and all amounts, which the plaintiffs recover from the
underwriter defendants by way of settlement or judgment. The
claims against the issuers will be dismissed, and the issuers
and their officers and directors will receive releases from the
plaintiffs.
Under the terms of the proposed settlement, the issuers will
also assign to plaintiffs certain claims which they may have
against the underwriters arising out of the IPOs, and the
issuers will also agree not to assert certain other claims which
they may have against the underwriters, without plaintiffs'
consent. The proposed settlement is subject to the approval of
the Court.
AMERICAN EXPRESS: Wants To Transfer Consumer Suit From IL Court
---------------------------------------------------------------
American Express Company is seeking the transfer of a class
action, captioned "Rubin v. American Express Travel Related
Services Co. Inc. et al. (formerly captioned Faulkner v.
American Express Travel Related Services Co. Inc. et al.)," out
of the Circuit Court, Third Judicial Circuit, Madison County,
Illinois.
The plaintiff alleges that the Company wrongfully collected
conversion fees assessed on transactions made in a foreign
currency. The complaint alleges causes of actions for unjust
enrichment, breach of contract and statutory fraud under the
Illinois Consumer Fraud Act. The plaintiff is seeking an
unspecified amount of damages.
AMERICAN EXPRESS: Moves For Arbitration in NY Consumer Lawsuit
--------------------------------------------------------------
American Express Company filed a motion to compel arbitration
and stay the class action, captioned Bernd Bildstein v. American
Express Company, et al., filed in the Queens County Supreme
Court for the State of New York.
In the complaint, plaintiff asserts a cause of action for
violation of New York General Business Law Section 349.
Plaintiff alleges that the defendants failed properly to
disclose a purported transaction fee that is assessed on
purchases of goods and/or services in a foreign currency. Based
on these allegations, plaintiff seeks unspecified damages and
attorneys' fees.
AMERICAN EXPRESS: Plaintiffs Voluntarily Dismiss Consumer Suit
--------------------------------------------------------------
Plaintiffs voluntarily dismissed without prejudice the class
action filed against American Express Company and one of its
subsidiaries, styled "Aydin Inc. v. American Express Company et
al.," filed in the United States District Court for the Eastern
District of Louisiana.
The plaintiffs alleged an unlawful antitrust tying arrangement
between the Company's charge cards, credit cards and "debit
cards." In August 2003 the action was voluntarily dismissed
without prejudice without the Company ever having been served
with the complaint.
AMERICAN EXPRESS: Plaintiffs Dismiss Antitrust Suit in CA Court
---------------------------------------------------------------
Plaintiffs asked the United States District Court for the
Central District of California to dismiss the class action filed
against the American Express Company, styled "Il Forno, Inc., et
al. v. American Express Company et al."
The Company was never served with a complaint in this action.
The Company understands that this action alleged an unlawful
antitrust tying arrangement between the Company's charge cards,
credit cards and "debit cards." In addition, the complaint also
alleged that the Company maintains a monopoly through the
inclusion of an arbitration provision in its merchant
agreements. The plaintiffs sought injunctive relief and an
unspecified amount of damages.
AMERICAN EXPRESS: Wants Transfer of Antitrust Lawsuit To S.D. NY
----------------------------------------------------------------
The American Express Company is seeking for the transfer of the
class action filed against it, styled "Italian Colors Restaurant
v. American Express Company et al.," to the United States
District Court for the Southern District of New York.
The suit, filed in the United States District Court for the
Northern District of California, alleges an unlawful antitrust
tying arrangement between the Company's charge cards, credit
cards and "debit cards," and the plaintiffs seek injunctive
relief and an unspecified amount of damages. The complaint also
alleges that the Company maintains a monopoly through the
inclusion of an arbitration provision in its merchant
agreements.
AMERICAN EXPRESS: To Be Removed As Defendant in Antitrust Suit
--------------------------------------------------------------
Plaintiffs asked the United States District Court for the
Eastern District of North Carolina to dismiss American Express
Company as a defendant in the class action, captioned "eGeneral
Medical, Inc., et al. v. VISA U.S.A., Inc. et al.,"
The suit alleges that the fees charged to Internet merchants
when funds have been advanced by American Express and are later
charged back to those merchants because a consumer transaction
has been determined to be the result of fraud, or when a
transaction has been disputed by the consumer and the dispute is
resolved in the consumer's favor are excessive. The plaintiffs
seek treble damages in an unspecified amount "but which is, at a
minimum, hundreds of millions of dollars," disgorgement of fees
earned, injunctive and other relief.
AMERICAN GREETINGS: Recalls 17T Bounce Balls For Choking Hazard
---------------------------------------------------------------
American Greetings Corporation, of Cleveland, Ohio, in
cooperation with the U.S. Consumer Product Safety Commission
(CPSC), announced the voluntary recall of 17,000 DesignWare(r)
Crazy Bounce Balls since the balls could break apart, posing a
choking hazard to young children. There have been no reports of
injuries or incidents regarding this product.
The recalled product is a 1 1/2-inch multi-colored cluster of
green, light green and brick red rubber balls. There are four
balls in each package. The packaging has a light green
cardboard backer. Model number CBB 1306 and UPC 61526 72866 are
written on the back of the packaging.
The bounce balls, manufactured in China, were sold at discount,
toy, drug, grocery, party and specialty/gift stores nationwide
from November 2002 through August 2003 for about $3.
For more information, contact the Company by Phone:
(800) 777-4891 between 8 a.m. and 5 p.m. ET Monday through
Friday, or go to the firm's Website:
http://corporate.americangreetings.com.
AMERICAN GREETINGS: Recalls 122T Zipper Pulls For Choking Hazard
----------------------------------------------------------------
American Greetings Corporation, of Cleveland, Ohio, in
cooperation with the U.S. Consumer Product Safety Commission
(CPSC), announced the voluntary recall of 122,700 units of
DesignWare(r) Zipper Pulls since the product could separate and
detach from the zipper, posing a choking hazard to young
children. There have been no reports of injuries or incidents
regarding this product.
The recalled item consists of a 2-inch plastic blue or
purple butterfly-shaped photo holder that can be attached to a
zipper. There are four items in a package. The packaging has a
pink/hot pink cardboard backer. Model number ZPL 1820 and UPC
18100 72866 are written on the back of the packaging.
The zipper pulls, manufactured in China, were sold at discount,
toy, drug, grocery, party and specialty/gift stores nationwide
from January 2001 through November 2003 for about $4.
For more information, contact the Company by Phone:
(800) 777-4891 between 8 a.m. and 5 p.m. ET Monday through
Friday, or go to the firm's Website:
http://corporate.americangreetings.com.
AMERICAN GREETINGS: Recalls Santa D‚cor Due To Aspiration Hazard
----------------------------------------------------------------
American Greetings Corporation, of Cleveland, Ohio, in
cooperation with the U.S. Consumer Product Safety Commission
(CPSC), announced the voluntary recall of 500 units of Cloth
Santa decorations since the beaded nose on the cloth Santa
decoration could detach posing an aspiration hazard to young
children. There have been no reports of incidents or injuries
regarding this product.
The recalled product is an 8-inch, stuffed, plush Santa
decoration with a bean bag-type fill material. Santa is
outfitted in a traditional red and white suit with black and
white spotted trim. He is wearing green gloves and black boots.
Model #UX UGF 121J and UPC 61526 09253 are written on the
display tag.
The Santa decorations, manufactured in China, are sold at Wal-
Mart stores nationwide from October 2003 through November 2003
for less than $5.
For more information, contact the Company by Phone:
(800) 777-4891 between 8 a.m. and 5 p.m. ET Monday through
Friday, or go to the firm's Website:
http://corporate.americangreetings.com.
AMERICAN PHARMACEUTICAL: Shareholders Launch Stock Suits in IL
--------------------------------------------------------------
American Pharmaceutical Partners, Inc. faces several securities
class actions filed in the United States District Court for the
Northern District of Illinois on behalf of purchasers of the
securities of American Pharmaceuticals Partners, Inc. between
February 19, 2002 and September 24, 2003, inclusive. The suit
also names as defendants four of its officers, and American
BioScience, Inc.
The complaints allege violations of Section 10(b) and Section
20(a) of the Securities Exchange Act of 1934, and rule 10b-5,
principally relating to purportedly false and misleading
statements made by the Company regarding ABRAXANE.
Management believes that these claims are without merit.
APPLIED MICRO: Trial in CA Securities Fraud Lawsuit Set in 2005
---------------------------------------------------------------
Trial in the securities class action against Applied Micro
Circuits Corporation is set for the year 2005 in the United
States District Court for the Southern District of California.
The suit also named as defendants certain of the Company's
executive officers and directors, and is styled "In re Applied
Micro Circuits Corp. Securities Litigation, lead case number 01-
CV-0649-K(AB)."
The consolidated federal complaint alleges violations of the
Exchange Act and is brought as a purported shareholder class
action under Sections 10(b), 20(a) and 20A of the Exchange Act
and Rule 10b-5 under the Exchange Act. Plaintiff seeks monetary
damages on behalf of the shareholder class. Discovery in this
lawsuit is continuing.
APPLIED MICRO: Discovery Proceeds in Shareholder Derivative Suit
----------------------------------------------------------------
Discovery is continuing in the shareholder derivative suit filed
in the Superior Court of California in San Diego County against
Applied Micro Circuits Corporation's directors and certain
executive officers, styled "Applied Micro Circuits Shareholders
Cases, No. JCCP No. 4193."
The consolidated state complaint alleges overstatement of the
Company's financial prospects, mismanagement, inflation of stock
value and sale of stock at inflated prices for personal gain
during the period from November 2000 through February 2001. The
plaintiffs seek treble damages from the defendants alleged to
have illegally sold stock and damages from all defendants for
the other alleged violations of corporate law set forth in the
complaint.
In February 2002, the board of directors formed a special
litigation committee to evaluate the claims in the consolidated
state complaint. The special litigation committee retained
independent legal counsel and submitted a report to the court in
July 2002. Defendants filed a motion seeking dismissal of the
consolidated action.
In June 2003, the court denied defendants' motion to dismiss.
In July 2003, defendants filed a writ petition to the appellate
court seeking reversal of the denial of the motion to dismiss,
or in the alternative for summary judgment. In October 2003,
the appellate court denied the defendants' writ petition.
The Company believes that the allegations in these lawsuits are
without merit, but stated an adverse result in either lawsuit
could have a material adverse effect on the Company.
BEARINGPOINT INC.: Shareholders File Securities Suits in E.D. VA
----------------------------------------------------------------
BearingPoint, Inc. faces several securities class actions filed
in the United States District Court for the Eastern District of
Virginia alleging that it and certain of its officers violated
Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5
promulgated thereunder, and Section 20(a) of the Exchange Act.
The complaints contain varying allegations, including that the
Company made materially misleading statements with respect to
its financial results for the first three quarters of fiscal
year 2003 in its SEC filings and press releases. The complaints
do not specify the amount of damages sought.
The Company has not filed any answers, motions to dismiss or
other responsive pleadings in this litigation, and, consistent
with the standard rules applicable to purported class actions,
does not intend to do so until some time after a lead plaintiff
is formally named, which should occur as a result of a hearing
currently scheduled for November 21, 2003.
CANADA: Saskatchewan Reaches Settlement For Water Pollution Suit
----------------------------------------------------------------
The Saskatchewan government announced has reached a $425,000
out-of-court settlement has been reached with a group of about
100 people made ill by a parasite in their drinking water in
North Battleford, Saskatchewan, two years ago, Canadian Press
reports. The Settlement comes on the heels of a $3.2-million
settlement reached with another group of about 700 people last
August.
Both settlements include compensation for pain and suffering,
lost income, out-of-pocket expenses and legal fees. The costs
will be shared equally between the province and the City of
North Battleford. Payments will be made to individuals based on
the extent of their suffering.
"The North Battleford water contamination incident was a
difficult event for those who became ill," Saskatchewan
Environment Minister David Forbes said in a news release. "It
also served as a reminder to us all that water is a precious
resource that needs to be protected."
An estimated 7,000 people suffered from vomiting, diarrhea and
high fever in 2001 when the cryptosporidium parasite got into
North Battleford's drinking water after maintenance work was
done on a filter at the treatment plant. Lab tests confirmed
361 cases of the illness. No one died. An inquiry into the
outbreak concluded the city systematically failed to recognize
its responsibilities for the water supply.
The report also slammed the province's Environment Department,
labelling it an "inadequate and ineffective" regulator. The
city's water treatment plant had not been inspected by the
province for 10 years.
Earlier this year, the city announced it will commit $15 million
to build a new sewage treatment plant downstream of its drinking
water intake - one of the recommendations of the inquiry. The
city expects the new plant to be operating by 2006.
North Battleford's outbreak came about a year after one of the
worst drinking-water disasters in Canadian history in Walkerton,
Ontario. Seven people died and 2,300 fell ill when a deadly
strain of E. coli bacteria contaminated the town's water supply
in May 2000. In that case, residents and visitors sickened by
the contaminated water were granted an initial payment of $2,000
each in a class action settlement.
The cryptosporidium parasite causes an intestinal infection that
affects both people and animals. It is commonly found in lakes
and rivers, especially if the water is contaminated with human
or animal waste. Those particularly susceptible are young
children under the age of two, those who handle animals, people
travelling to areas with poor sanitation, health-care workers
and those with weakened immune systems. The parasite is
resistant to disinfectants, including chlorine bleach, and is
difficult to control because it can survive in the environment
for long periods of time.
CHUBB CORPORATION: Plaintiffs Appeal Securities Suit Dismissal
--------------------------------------------------------------
Plaintiffs filed a notice of appeal of the dismissal of the
class action filed against Chubb Corporation in the United
States District Court for the District of New Jersey by the
California Public Employees' Retirement System. The complaint
also names as defendants:
(1) Henry B. Schram,
(2) Dean R. O'Hare,
(3) David B. Kelso,
(4) Executive Risk Inc.,
(5) Stephen J. Sills,
(6) Robert H. Kullas and
(7) Robert V. Deutsch
The suit alleges the defendants are liable for certain
misrepresentations and omissions regarding, among other matters,
disclosures made between April 27, 1999 and October 15, 1999
relating to the improved pricing in the Company's standard
commercial insurance business and relating to the offer of the
Company's securities to, and solicitation of votes from, the
former shareholders of Executive Risk Inc. in connection with
the Corporation's acquisition of Executive Risk Inc.
On August 11, 2003, the trial court dismissed the entire action
with prejudice. On September 10, 2003, the plaintiffs filed a
Notice of Appeal to the United States Court of Appeals for The
Third Circuit. The Company continues to fight the action.
CONSTAR INTERNATIONAL: Shareholders File Securities Suits in PA
---------------------------------------------------------------
Constar International, Inc. and certain of its present directors
face two putative securities class actions filed in the United
States District Court for the Eastern District of Pennsylvania,
styled "Parkside Capital LLC v. Constar International Inc. et
al. (Civil Action No. 03-5020)" and "Walter Frejek v. Constar
International Inc. et al. (Civil Action No. 03-5166)."
The complaints generally allege that the registration statement
and prospectus for the Company's initial public offering (IPO)
of its common stock on November 14, 2002 contained material
misrepresentations and/or omissions regarding the business and
financial results of the Company and included false financial
results due to the Company's failure to timely take an
impairment charge against the goodwill in the Company's
financial statements.
Plaintiffs claim that defendants in these lawsuits violated
Sections 11 and 15 of the Securities Act of 1933. Plaintiffs
seek class action certification and an award of damages and
litigation costs and expenses.
CORIO INC.: Inks Settlement For Securities Fraud Suit in S.D. NY
----------------------------------------------------------------
Corio, Inc. reached a settlement for the consolidated securities
class action filed in the United States District Court for the
Southern District of New York against it, certain of its
officers and certain of the underwriters involved in Corio's
initial public offering.
This is one of approximately 300 similar lawsuits in a
coordinated proceeding sometimes referred to as "IPO allocation
lawsuits" or "laddering lawsuits." The plaintiffs generally
allege that the underwriters engaged in undisclosed improper
practices by giving favorable allocations of IPO shares to
certain investors in exchange for excessive brokerage
commissions and/or agreements for those investors to purchase
additional shares in the aftermarket at predetermined higher
prices. The plaintiffs seek an unspecified amount of damages.
In June 2003, the plaintiffs in these cases presented a
settlement proposal to all of the issuer defendants. Under the
proposed settlement, the plaintiffs proposed to 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 or companies 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 $1 million.
In July 2003, Corio tentatively agreed to accept this settlement
proposal. 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 approval by the Court, which cannot be assured.
CORVAS INTERNATIONAL: DE Court Tosses Suit Over Dendreon Merger
---------------------------------------------------------------
The Delaware State Court dismissed with prejudice the securities
class action filed against Corvas International, Inc. and its
directors by Asset Value Fund Limited Partnership (AVF),
alleging that the board of directors violated its fiduciary
duties when it approved the agreement and plan of merger between
the Company and Dendreon Corporation.
The complaint sought to enjoin the Company from proceeding with
the mergers by which it became a wholly owned subsidiary of
Dendreon, and also sought compensatory damages and attorneys'
fees. The Company and its directors denied the allegations in
the complaint.
By agreement of the parties, AVF's complaint was dismissed with
prejudice as to AVF on October 22, 2003. It is anticipated that
AVF will apply to the court for an award of attorneys' fees.
DELTA AIR: Expects Plaintiffs To Appeal Antitrust Suit Dismissal
----------------------------------------------------------------
Plaintiffs are expected to appeal the United States District
Court for the Eastern District of North Carolina's dismissal of
an antitrust class action filed against Delta Air Lines and
other carriers, on behalf of all travel agents in the United
States which sold tickets from September 1, 1997 to the present
on any of the defendant airlines.
The lawsuit alleges that the Company and the other airline
defendants conspired to fix travel agent commissions in
violation of Section 1 of the Sherman Act. The plaintiff, who
has requested a jury trial, is seeking in its complaint
injunctive relief; costs and attorneys' fees; and unspecified
damages, to be trebled under the antitrust laws.
In September 2002, the court granted the plaintiff's motion for
class action certification, certifying a class consisting of all
travel agents in the United States, Puerto Rico and the U.S.
Virgin Islands which sold tickets on the defendant airlines
between 1997 and 2002. On October 30, 2003, the court granted
summary judgment against the plaintiff class, dismissing all
claims asserted against the Company and most other defendants.
DELTA AIR: 180 Suits Filed Over September 11 Terrorist Attacks
--------------------------------------------------------------
Delta Air Lines faces approximately 180 lawsuits arising out of
the events of September 11, 2001, when terrorists hijacked and
crashed four commercial aircraft operated by other airlines, now
consolidated in the United States District Court for the
Southern District of New York.
Although the theory of liability is not fully clear, it appears
the plaintiffs are alleging that the Company and many other air
carriers are jointly liable for damages resulting from the
September 11 attacks based on a theory of shared responsibility
for passenger security screening at Boston, Dulles and Newark
airports.
Virtually all of the cases against the Company were filed after
September 9, 2003 when the court denied the airlines' motions to
dismiss the claims of the victims on the ground. These
lawsuits, which are in preliminary stages, generally seek
unspecified damages, including punitive damages.
DIAMOND TRIUMPH: Customers Sue For Unfair Trade Practices in PA
---------------------------------------------------------------
Diamond Triumph Auto Glass, Inc. faces a class action filed in
the Court of Common Pleas of Luzerne County, Pennsylvania, by
Delbert Rice and Kenneth E. Springfield, Jr., on behalf of
themselves and all others similarly situated.
Plaintiffs allege, among other things, the Company violated
certain sections of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law and common law. Plaintiffs allege that
this alleged conduct has caused monetary damages to Plaintiffs.
Among other things, Plaintiffs are seeking damages in an amount
to be determined at trial.
EFUNDS CORPORATION: Driver's Privacy Suits Pending in Miami, FL
---------------------------------------------------------------
The class actions filed against EFunds Corporation, alleging
violations of the Federal Driver's Privacy Protection Act are
now pending in the United States District Court for the Southern
District of Florida, Miami Division
On June 17, 2003, the Company was sued in the U.S. District
Court, Middle District of Florida, Fort Meyers Division by
Russell V. Rosen, alleging that the Company purchased motor
vehicle records from the State of Florida and used that data for
marketing and other purposes that are not permitted under the
Federal law. The plaintiff sought actual damages to be
determined or liquidated damages of not less than $2,500 for
each affected member of the purported class, plus costs and
attorney's fees. The plaintiff also asked for injunctive relief
that would prohibit the Company from obtaining, disclosing and
using personal information of the plaintiff and other members of
the purported class in violation of the statute.
On August 11, 2003, the Company, and a number of other
defendants, were sued in the US District Court, Southern
District, Miami Division by Richard Fresco (Fresco) based on
substantially identical allegations to those made in the firs
suit case.
The Company believes that it has meritorious defenses with
regard to the allegations made in these lawsuits.
EMERSON RADIO: Shareholders Launch Securities Fraud Suits in NJ
---------------------------------------------------------------
Emerson Radio Corporation faces several securities class actions
filed in the United States District Court for the District of
New Jersey on behalf of purchasers of the Company's publicly
traded securities who bought shares between January 29, 2003 and
August 12, 2003. The suit also names as defendants against
Geoffrey Jurick, Kenneth Corby and John Raab.
The suits are styled:
(1) Kaplan v. Emerson Radio Corporation, et al. 03-cv-4202,
(2) Pelone v. Emerson Radio Corporation, et al. 03-cv-4201,
(3) Howard v. Jurick, et al. 03-cv-4330,
(4) Glascoff v. Emerson Radio Corporation, et al. 03-cv-
4506,
(5) Stromer v. Emerson Radio Corporation, et al. 03-cv-
4647,
(6) Kaplan v. Emerson Radio Corp., et al. 03-cv-4856, and
(7) Freitag v. Emerson Radio Corp., et al. 03-cv-5140
The complaints allege that the Company and the Individual
Defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5 promulgated there under, by
issuing certain positive statements during the Class Period
regarding the Company's growth and demand for Company products.
The complaints further allege that these statements were each
materially false and misleading when made because the Company
allegedly misrepresented and omitted certain adverse facts which
then existed and disclosure of which was necessary to make the
statements not false and misleading.
It is possible that additional class action complaints will be
filed against the Company, and the Individual Defendants. No
court has yet made any rulings with respect to these complaints,
including whether these lawsuits will be able to proceed as
class actions.
FIRST UNION: Asks NY Court For Summary Judgment in Stock Lawsuit
----------------------------------------------------------------
First Union Realty Trust filed for summary judgment in a class
action filed against it in the Supreme Court of New York, New
York County, styled "Kimeldorf v. First Union, et al.," on
behalf of a purported holder of the Trust's convertible
preferred shares.
Among the allegations made by the plaintiff is that the proposed
transaction with Gotham Golf was approved by the Trust's Board
of Trustees in violation of fiduciary duties owed to the holders
of the Trust's convertible preferred shares. The suit seeks,
among other things, unspecified damages, an injunction of the
proposed transaction and the court's certification of the
lawsuit as a class action. Named as defendants in the lawsuit
were the Trust, its then five trustees and Gotham Partners.
The suit alleges, among others:
(1) breach of contract,
(2) aiding and abetting breach of contract,
(3) tortious interference with the contract,
(4) breach of fiduciary duties,
(5) aiding and abetting of breach of fiduciary duties and
(6) unconscionability
On April 30, 2003, the trial court granted the plaintiff's
motion to certify the litigation as a class action. However,
plaintiff never submitted an order identifying the certified
class, and the court has issued an order nullifying the grant of
class certification.
In July 2003, plaintiffs Kimeldorf and First Carolina each filed
separate motions with the trial court seeking to hold the
defendants in contempt as a result of the execution and
performance of the Termination Agreement. The plaintiffs
contend that these actions violated the trial court's injunction
against the consummation of the merger between the Trust and
Gotham Golf. Defendants filed a brief in opposition to the
motions. The trial court heard oral argument with respect to
these motions in July 2003 and has taken them under advisement.
In September 2003, the Appellate Division, First Department of
the New York Supreme Court vacated the preliminary injunction,
the violation of which was the subject of plaintiff's motions
for contempt. Although not dispositive of the matter, the Trust
believes but cannot assure that there is a reasonable likelihood
that the plaintiff preferred shareholders will not prevail on
motions seeking the trial court to hold the Trust and the other
defendants in contempt of a vacated preliminary injunction.
The Trust is pursuing the goal of obtaining dismissal with
prejudice by order of the court or, in the alternative, to
settle by dismissal with prejudice outside of court and, thus,
terminate the proceedings. To that end, the Trust has filed a
motion for summary judgment in the Kimeldorf case.
FIRST UNION: To Ask NY Court To Dismiss Securities Fraud Lawsuit
----------------------------------------------------------------
First Union Realty Trust intends to file a motion for the
dismissal of the shareholder class action filed in the Supreme
Court of New York, New York County against it, styled "Fink v.
First Union," on behalf of a purported holder of the Trust's
common shares, on behalf of himself and the common shareholders
as a class.
The lawsuit seeks a declaration that the lawsuit is maintainable
as a class action and a certification that the plaintiff, Robert
Fink, is the representative of the class. Named as defendants
in the lawsuit are the Trust, Gotham Partners, the companies
affiliated with Gotham Partners and the Trust that are parties
to the Merger Agreement, William Ackman and the four current
Trustees of the Trust.
Among the allegations asserted are breach of fiduciary duty and
aiding and abetting thereof in connection with the transactions
contemplated by the Merger Agreement. The relief requested by
the plaintiff includes an injunction preventing the defendants
from proceeding with consummation of the merger, rescission of
the merger if it occurs, an accounting for any profits realized
by the defendants as a result of the actions complained of, an
order permitting the creation of a shareholders' committee
composed of the Trust common shareholders and their
representatives to manage the affairs of the Trust, compensatory
damages and the costs and disbursements of plaintiff's counsel.
On February 14, 2003, the parties to this lawsuit stipulated
that the defendants need not answer or otherwise respond to the
complaint for an indefinite period of time. The stipulation is
revocable by the plaintiff at any time. The Trust believes that
the purpose of the stipulation was to delay court proceedings in
this lawsuit until the outcome of the appeal of the injunction
entered in the Kimeldorf case is decided by the Appellate
Division.
On July 3, 2003, the Plaintiff filed an amended complaint which
seeks additional relief based upon the termination agreement,
including a request that the defendants be required to return to
the Trust the termination fee paid to Gotham Partners as well as
the consideration paid for Gotham Partners' shares in the Trust.
As with the original complaint, the parties have stipulated that
the defendants need not answer or otherwise respond to the
amended complaint for an indefinite period of time. The
stipulation is revocable by the plaintiff at any time.
Following the decision of the Appellate Division, First
Department of the New York Supreme Court in the Kimeldorf case,
counsel for the Trust and the other defendants have requested
that the plaintiff voluntarily dismiss its suit with prejudice.
If the plaintiff common shareholder does not voluntarily dismiss
the Fink case with prejudice, the Trust and the other defendants
intend to file a motion with the trial court to dismiss the
case.
GUIDANT CORPORATION: Faces Back-to-Back Shareholder Suits in IN
----------------------------------------------------------------
Two lawsuits filed in US District Court in Indianapolis against
Guidant Corporation are expected to gain legal steam in coming
months, as two prominent New York class-action law firms press
their cases against the Indianapolis-based medical device maker
over its guilty pleas last June to violating federal reporting
rules on product malfunctions, the Knight-Ridder / Tribune
Business News reports.
"That was the magic word -- they pled guilty. They can't deny
that," Jules Brody, senior lawyer at the New York law firm of
Stull, Stull & Brody, which was named lead counsel in the
consumer fraud case against Guidant, told the Business News.
Guidant spokesman Steven Tragash said Tuesday the company
wouldn't comment on the shareholder suits, other than to say the
cases "are manageable from our point of view."
The judge assigned to the Guidant federal cases, Sarah Evans
Barker, also named another New York firm, Milberg Weiss Bershad
Hynes & Lerach, to head the other shareholders' case. That
case, called a derivative action, is an attempt by about a half-
dozen Guidant shareholders to force directors and officers to
personally reimburse the company for the $92 million in fines
leveled by the Food and Drug Administration. The FDA, in its
largest-ever fine against a U.S. company, said Guidant failed to
file 2,628 reports of problems with its abdominal aortic
aneurysm graft in 2000 and 2001.
"The idea is to cause the people who forced this company to
waste $100 million of its money to pay it back and compensate
for the diminished value and lack of respect this company
suffered," Darren J. Robbins, a Milberg Weiss partner in its San
Diego office told the Tribune Business News. With 200
attorneys, Milberg Weiss bills itself as "the world's leading
class-action law firm."
Mr. Robbins said his clients also want something else: fresh
faces in Guidant's executive suite and on its board. "They feel
like sending a message that corporate wrongdoing will not be
tolerated. They (Guidant) are going to have to placate them
(suing shareholders) and to do that, they're going to have to
rejigger things" on the board and management, he said.
The lead plaintiff in the derivative case is the Alaska
Electrical Pension Fund, which owned up to $3 million worth of
Guidant stock during the past three years, Mr. Robbins said.
Plaintiffs seek a jury trial in the case. Mr. Robbins doesn't
expect a trial would occur earlier than late 2005.
In the shareholders' fraud case, which consolidates 10 lawsuits,
damage claims easily could run in the hundreds of millions of
dollars. However, plaintiffs could face a tough time proving
the value of their holdings suffered because of the guilty plea
to criminal wrongdoing. Guidant's stock price has risen almost
steadily since June, hitting a 52-week high of $57.69 in trading
Tuesday before closing at $57.20.
Mr. Brody said his firm will try to prove, using shareholder
damage experts, that investors suffered from the company's
misdeeds. "I think shareholders are going to recover a
substantial amount of money," he said.
Both sides in the fraud suit agreed that the plaintiffs will
file an amended complaint by December 5 and that Guidant will
answer it, perhaps with a motion to dismiss, by January 21.
Several shareholders also have sued Guidant in state court in
Marion County. Guidant has requested that those cases be stayed
and the federal action handled first, said plaintiffs' co-
liaison counsel Irwin Levin.
HALLWOOD REALTY: DE Court To Hold Status Conference on Dec. 2003
----------------------------------------------------------------
The Delaware Court of Chancery will hold a status conference on
December 3, 2003 in the class action filed against Hallwood
Realty LLC, its directors and Hallwood Realty Partners as
nominal defendant by three purported unitholders, styled "I.G.
Holdings, Inc., et al, v. Hallwood Realty LLC, et al, (C.A. No.
20283)."
The action asserts that in allegedly refusing to consider the
High River tender offer, the defendants are not acting in good
faith and are deriving an improper personal benefit in impeding
a potential removal of the General Partner or a sale of control
of HRP, in breach of their fiduciary duties under the
partnership agreement. The action further asserts that HRP's
Schedule 14D-9 issued in response to the High River tender offer
fails to disclose material information relating to the General
Partner's recommendation regarding the offer.
The complaint seeks as relief an order requiring the General
Partner to consider the High River tender offer, an order
preventing the General Partner or its affiliates from acquiring
units or otherwise improperly entrenching the General Partner or
impeding a transaction that would maximize value for the public
unitholders, an order directing the defendants to use the Rights
Plan fairly and disclose all material information in connection
with the tender offer and the General Partner's recommendations
and conclusions with respect thereto, and damages
On October 7 and 8, 2003, a trial in the two coordinated actions
discussed above was held in court. Subsequently, the court
scheduled a status conference for December 3, 2003, at which the
court would determine what further proceedings, if any, were
appropriate in the actions.
HOME DEPOT: CA Consumers File Lawsuit Over Credit Card Promotion
----------------------------------------------------------------
California consumers have filed a class action in San Diego
County Superior Court against home improvement retailer Home
Depot, claiming the store's promotion offering payment and
interest-free periods on purchases made with in-store credit
cards actually forces consumers to pay significantly more
interest on existing or future balances, PBI Media reports.
The suit, filed by attorneys Steve Berman and Sim Osborn on
behalf of Plaintiffs, alleges that Home Depot violates
California's Business and Professions Code by hiding the fact
that consumers would be unable to pay off any existing or future
balances without first paying off the interest-free promotional
purchase.
HOUSEHOLD INTERNATIONAL: Agrees To Settle WA Consumer Lawsuits
--------------------------------------------------------------
Household International, Inc. has agreed to settle a consumer
class action in Whatcom County, Washington Superior Court over
allegations that its Bellingham branch violated company policies
in its sales practices, PBI Media reports. Household had
previously acknowledged in 2002 that its Bellingham branch had
committed the said violation, and had apologized to some
individual Bellingham customers.
The settlement also calls for Luna, et al. v. Household Finance
Corp. III (an indirect subsidiary of Household International), a
putative statewide class action in federal court in Seattle to
be dismissed once the Whatcom County class settlement is
approved.
In June 2003, the federal district court declined to certify a
class of Washington borrowers, denying plaintiffs the right to
pursue predatory lending claims against Household and Beneficial
Mortgage Company (a business unit of Household International) as
a class action. That decision was appealed to the 9th Circuit
Court of Appeals and the 9th Circuit granted the plaintiffs'
request to appeal. The settlement preserves the lower court's
ruling.
Eligible Household customers who obtained a first lien mortgage
from the Bellingham branch from January 1999 through May 31,
2002 will be entitled to a reduction in the interest rate on
their first-lien mortgage to 7.5 percent, and a refund or credit
of any discount points they paid in excess of 4.0 percent. The
class period ends on May 31, 2002, when Household changed
management in its Bellingham branch. Bellingham branch
customers who participated in the Washington attorney general's
settlement and claim process in 2003 will also be entitled to
participate in this settlement as well, however, Household will
receive a credit for the amounts paid to such persons from the
attorney general's settlement fund.
"This settlement preserves the federal court ruling that
plaintiffs cannot pursue a statewide class action, but provides
substantial, and immediate, and much needed financial relief on
interest rates and discount points to most Bellingham class
members who took out first mortgages with Household," said
Robert Parlette, of the Davis, Arneil law firm in Wenatchee,
Wash., the lead attorney representing the plaintiffs. "This
ends a long and arduous two-year battle to vindicate the class
members' rights and will stave off foreclosure proceedings for
some at- risk class members."
HOUSEHOLD INTERNATIONAL: Settles Mortgage-Abuse Suit For $100M
--------------------------------------------------------------
Household International Inc., the nation's largest consumer
lender, has agreed to pay an estimated $100 million to settle
class-action lawsuits that accused the company of abusive
mortgage-lending practices, Knight-Ridder / Tribune Business
News reports.
The proposed deal, which includes a half-dozen class-action
suits filed by individuals across the country, would potentially
help thousands of Household customers in addition to those
already involved in an earlier settlement between Household and
the National Association of Attorneys General, consumer
advocates said.
Illinois-based Household has agreed to pay for a variety of
assistance for customers who may have been saddled with loans
carrying exorbitant interest rates or hidden fees, hurt by
unethical foreclosures or influenced by deceptive marketing.
For some customers, that could mean a lower interest rate on
their loan or a waiver of late-payment charges. Others may
qualify for readjusted loan payments, reductions in their loan
principal or a cash payment.
Household issued a statement Tuesday describing the settlement
as a sign of its commitment to ethical lending practices. "We
look forward to working with ACORN in administering these
important programs," Chief Executive Officer William F. Aldinger
said.
Although court approval of any settlement is not expected until
early next year, Household has already acted on one of the
deal's key provisions: a foreclosure-avoidance program that has
offered help to more than 40,000 customers so far, according to
the ACORN Group, the consumer-advocacy organization that
negotiated the settlement.
The latest deal comes about a year after Household signed a
record, $484 million settlement with the attorneys general group
to end predatory-lending litigation brought by those
authorities. Authorities accused two subsidiaries, Household
Finance and Beneficial Finance, of victimizing more than 300,000
customers, including 42,000 in Florida.
If customers filed a claim as part of that settlement, they
would not be eligible to receive cash from the new settlement,
ACORN said. But they would be eligible for other parts of the
deal, including the foreclosure-avoidance help.
Many customers didn't meet the mid-October deadline to share in
the earlier settlement, consumer advocates said.
"In Florida, only about 55 percent of the eligible customers
filed a claim," said Mike Shea, executive director of ACORN
Housing, the group's housing advisory unit. "Now Florida
consumers will have a second chance to apply for relief under
our program. There should be a cash settlement of about $500
each, and many Florida borrowers who may be delinquent on their
mortgages could also get relief."
Customers who have questions about their eligibility for a
settlement may call ACORN at 312-939-1611 Ext. 162.
The Washington, D.C.-based organization, which opened an Orlando
office this summer, said $6 million of the proposed settlement
would be used to help finance mortgage-counseling services
across the country. It expects such counseling to be available
in Orlando next year.
INTERPUBLIC GROUP: NY Court Certifies Securities Fraud Lawsuit
--------------------------------------------------------------
The United States District Court for the Southern District of
New York granted class certification to the consolidated
securities lawsuit filed against The Interpublic Group of
Companies and certain of its present and former directors and
officers on behalf of purchasers of Interpublic stock shortly
after the Company's August 13, 2002 announcement regarding the
restatement of its previously reported earnings for the periods
January 1, 1997 through March 31, 2002.
The purported class consists of Interpublic shareholders who
purchased Interpublic stock in the period from October 1997 to
October 2002. Specifically, the consolidated amended complaint
alleges that Interpublic and certain of its present and former
directors and officers allegedly made misleading statements to
its shareholders between October 1997 and October 2002,
including the alleged failure to disclose the existence of
additional charges that would need to be expensed and the lack
of adequate internal financial controls, which allegedly
resulted in an overstatement of Interpublic's financial results
during those periods.
The consolidated amended complaint alleges that such false and
misleading statements constitute violations of Sections 10(b)
and 20(a) of the Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder. The consolidated amended complaint also alleges
violations of Sections 11 and 15 of the Securities Act of 1933,
as amended in connection with Interpublic's acquisition of True
North Communications, Inc. on behalf of a purported class of
True North shareholders who acquired Interpublic stock. No
amount of damages is specified in the consolidated amended
complaint.
On February 6, 2003, defendants filed a motion to dismiss the
consolidated amended complaint in its entirety. On February 28,
2003, plaintiffs filed their opposition to defendants' motion
and, on March 14, 2003, defendants filed their reply to
plaintiff's opposition to defendants' motion. On May 29, 2003,
the court denied the motion to dismiss as to the Company and
granted the motion, in part, as to the present and former
directors and officers named in the consolidated amended
complaint. On June 30, 2003, defendants filed an answer to the
consolidated amended complaint.
INTERPUBLIC GROUP: Plaintiffs To Appeal Stay of Securities Suits
----------------------------------------------------------------
Plaintiffs intend to appeal the stay of the two securities class
actions filed against The Interpublic Group of Companies and
certain of its present and former directors and officers on
behalf of purchasers of Company stock shortly after the
Company's November 13, 2002 announcement regarding the
restatement of its previously reported earnings for the periods
January 1, 1997 through March 31, 2002.
The purported classes consist of Interpublic shareholders who
acquired Interpublic stock on or about June 25, 2001 in
connection with Interpublic's acquisition of True North. These
lawsuits allege that Interpublic and certain of its present and
former directors and officers allegedly made misleading
statements in connection with the filing of a registration
statement on May 9, 2001 in which Interpublic issued 67,644,272
shares of its common stock for the purpose of acquiring True
North, including the alleged failure to disclose the existence
of additional charges that would need to be expensed and the
lack of adequate internal financial controls, which allegedly
resulted in an overstatement of Interpublic's financial results
at that time.
The suits allege that such misleading statements constitute
violations of Sections 11 and 15 of the Securities Act of 1933.
No amount of damages is specified in the complaints. These
actions were filed in the Circuit Court of Cook County,
Illinois.
On December 18, 2002, defendants removed these actions from
Illinois state court to the United States District Court for the
Northern District of Illinois. Thereafter, on January 10, 2003,
defendants moved to transfer these two actions to the Southern
District of New York. Plaintiffs moved to remand these actions.
On April 15, 2003, the court granted plaintiffs' motions to
remand these actions to Illinois state court and denied
defendants' motion to transfer. On June 18, 2003, the Company
moved to dismiss and/or stay these actions. On September 10,
2003, the Illinois state court stayed these actions.
LIQUOR INDUSTRY: Lawsuit Alleges Alcohol Marketed To Teenagers
--------------------------------------------------------------
Several members of the alcohol industry are facing a lawsuit
filed last week in the Superior Court of the District of
Columbia that seeks to recover "unlawful profits" these
companies made by allegedly marketing and advertising their
products to underage drinkers, AP news reports.
The suit, which seeks class action status, uses some strategies
similar to those used against the tobacco industry to challenge
its marketing practices. The litigation against the alcohol
industry was brought on behalf of Ayman Hakki, a Washington,
D.C., plastic surgeon, by a law firm associated with David
Boies, who is known for representing Al Gore in his election
petition and as the lead attorney for the U.S. Department of
Justice in the Microsoft Corp. antitrust case.
A spokesman at Boies Schiller & Flexner LLP, where Mr. Boies is
a partner, told AP no one was immediately available to comment
on the litigation.
The defendants in the case include brewers Adolph Coors Co.'s
Coors Brewing Co. and Heineken NV; Mark Anthony Brands, the
Vancouver, B.C., maker of Mike's Hard Lemonade; alcohol
distillers Bacardi, Brown-Forman Corp., Diageo PLC, and Kobrand,
the New York maker of Alize cognac, as well as industry trade
group The Beer Institute, of Washington, D.C.
The plaintiff still could add additional defendants to the suit,
said David Boies III, of the Fairfax, Virginia, law firm Straus
& Boies, which also is representing the plaintiff in the suit.
Mr. Boies III is David Boies' son.
In the complaint, the plaintiff said the case isn't a "broad
brush attack" on the alcohol industry or on the marketing of
beverages in general. Instead, the case's scope is limited to
"defendant's deliberate, reckless, and illegal targeting of
underage consumers."
According to the suit, examples of this can be seen in Diageo's
use of the Captain Morgan character to represent its spiced rum
brand as well as Coors promotions that were tied to "Scary Movie
3," a PG-13 movie. Bacardi was cited for, among other things,
its advertisements in magazines such as Stuff, FHM and Spin,
which are read disproportionately by consumers under the legal
drinking age.
Bacardi officials weren't immediately available for comment, AP
stated. A Coors spokeswoman declined to comment, citing a
policy not to comment on pending litigation. A Diageo
spokesman, who refused to allow his name to be used, told AP the
company plans to "vigorously defend itself" against the
allegations.
MCG CAPITAL: Plaintiffs Appeal Dismissal of VA Securities Suit
--------------------------------------------------------------
Plaintiffs filed a notice of appeal of the dismissal of the
securities class action filed against MCG Capital Corporation in
the United States District Court for the Eastern District of
Virginia.
The suit initially named as defendants certain of its officers
and the underwriters of its initial public offering. The
complaint alleged that the defendants made certain misstatements
in violation of Sections 11, 12(a) (2) and 15 of the Securities
Act of 1933 and Section 10(b), Rule 10b-5 and Section 20(a) of
the Securities Exchange Act of 1934.
Specifically, the complaint asserted that members of the
plaintiff class purchased the Company's common stock at
purportedly inflated prices during the period from November 28,
2001 to November 1, 2002 as a result of certain misstatements
regarding the academic degree of its chief executive officer.
The complaint sought unspecified compensatory and other damages,
along with costs and expenses.
On June 16, 2003, a consolidated amended class action complaint
was filed in the proceedings captioned "In re MCG Capital
Corporation Securities Litigation, 1:03cv0114-A." The
consolidated amended complaint named only the Company and
certain of its officers and directors as defendants, and alleged
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.
The Company filed a motion to dismiss the consolidated amended
class action. On September 12, 2003, the court dismissed the
lawsuit in its entirety. On October 7, 2003, the plaintiffs
filed a notice of appeal to seek review of the district court
decision by the United States Court of Appeals for the Fourth
Circuit. The appeal is pending.
MICROSOFT CORPORATION: Deadline to Join In Florida Pact Extended
----------------------------------------------------------------
Lightfoot, Franklin & White, attorneys representing the
plaintiffs in the Florida Microsoft Products Settlement,
announced that the judge in the proceeding has indicated he will
approve the $202 million settlement agreement entered into
earlier this year, Business Wire reports.
While the written order granting final approval to the agreement
is pending, the plaintiffs' attorneys are urging businesses and
individuals who may be eligible to join the settlement to file
their claims as soon as possible.
The settlement includes both businesses and consumers who
purchased stand-alone Microsoft software or computers loaded
with Microsoft Operating Systems such as Windows or DOS and/or
Microsoft applications such as Office, Word, or Excel, between
November 1995 and December 2002.
However, with claims to be paid on a "per license basis,"
attorneys in the case say businesses with large numbers of
computers stand to benefit greatly by participating in the
settlement. Claims will be paid with vouchers worth $5 for each
software product and $12 for each operating system purchased
during the seven-year class period. The vouchers can be used to
purchase PC hardware (Mac or Windows based) and most software
that runs on pc computers (Mac or MS based).
The proposed $202 million settlement of the proceeding titled In
Re Florida Microsoft Antitrust Litigation (Index number 99-27340
CA 11) is the result of class action lawsuits alleging that
Microsoft violated Florida's antitrust and unfair competition
laws. On April 15, 2003, the parties settled the case, and the
court gave preliminary approval of a Settlement Agreement.
Under the proposed agreement, half of any unclaimed portion of
the settlement will be given to Florida's neediest schools,
allowing them to purchase or upgrade computers and software.
"The originally projected claims deadline of December 24, 2003,
has been extended, but we are suggesting that claims be
submitted before the end of the year," said Robin Graves, of
Birmingham-based Lightfoot, Franklin & White. "As we have said
all along, our goal is to make sure that no eligible claimant
leaves money on the table, particularly Florida businesses that
hold multiple licenses for the products that were at issue in
this case."
Businesses interested in submitting claims are urged to access
claim forms electronically by visiting the settlement Website:
http://www.microsoftproductssettlement.com/floridaor contacting
the settlement administrator for more information.
MICROTUNE INC.: Reaches Settlement For Securities Lawsuit in NY
---------------------------------------------------------------
Microtune, Inc. reached a settlement for the consolidated
securities class action filed in the United States District
Court for the Southern District of New York, on behalf of all
persons who purchased the Company's common stock from August 4,
2000 through December 6, 2000. The suit is related to :In re
Initial Public Offering Securities Litigation, and names as
defendants the Company and:
(1) Douglas J. Bartek, former Chairman and Chief Executive
Officer,
(2) Everett Rogers, former Chief Financial Officer and Vice
President of Finance and Administration, and
(3) several investment banking firms that served as
underwriters of its initial public offering.
The amended complaint alleges liability under Sections 11 and 15
of the Securities Act of 1933 (1933 Act Claims) and Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 (1934 Act
Claims), on the grounds that the registration statement for its
initial public offering did not disclose that:
(i) the underwriters had agreed to allow certain of their
customers to purchase shares in the offering in
exchange for excess commissions paid to the
underwriters, and
(ii) the underwriters had arranged for certain of their
customers to purchase additional shares in the
aftermarket at pre-determined prices.
The amended complaint also alleges that false analyst reports
were issued. No specific amount of damages is claimed. The
Company is aware that similar allegations have been made in
other lawsuits filed in the Southern District of New York
challenging over 300 other initial public offerings and
secondary offerings conducted in 1998, 1999 and 2000. Those
cases have been consolidated for pretrial purposes before the
Honorable Shira A. Scheindlin.
On February 19, 2003, the Court ruled on all defendants' motions
to dismiss. The Court denied the motions to dismiss the 1933
Act claims. The Court did not dismiss the 1934 Act claims
against the Company and other issuers and underwriters.
The Company has decided to accept a settlement proposal
presented to all issuer defendants. In this settlement,
plaintiffs will dismiss and release all claims against the
Microtune defendants, in exchange for a contingent payment by
the insurance companies collectively responsible for insuring
the issuers in all of the IPO cases, and for the assignment or
surrender of certain claims Microtune may have against the
underwriters.
The Microtune defendants will not be required to make any cash
payments in the settlement, unless the pro rata amount paid by
the insurers in the settlement exceeds the amount of the
insurance coverage, a circumstance which we do not believe will
occur. The settlement will require approval by the Court, which
cannot be assured, after class members are given the opportunity
to object to the settlement or opt out of the settlement.
MICROTUNE INC.: Asks TX Court To Dismiss Securities Fraud Suit
--------------------------------------------------------------
Microtune, Inc. asked the United States District Court for the
Eastern District of Texas to dismiss the consolidated securities
class action filed against it and:
(1) Douglas J. Bartek, former Chairman of the Board and
Chief Executive Officer,
(2) Everett Rogers, former Chief Financial Officer and
Vice-President of Finance and Administration,
(4) William L. Housley, former President and Chief
Operating Officer, and
(5) Nancy A. Richardson, former Chief Financial Officer and
current General Counsel
The suit alleges violations of federal securities laws and
regulations. The claims of the plaintiffs in the suit include
that the defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as well as SEC Rule 10b-5,
resulting in damages to persons who purchased, converted,
exchanged, or otherwise acquired the Company's common stock
between July 23, 2001 and February 20, 2003, inclusive.
The plaintiffs' specific allegations include that the defendants
engaged in fraudulent accounting and financial practices and
misrepresented material facts and omitted to state material
facts necessary to make other statements made not misleading,
and that these misrepresentations or omissions had the effect of
artificially inflating the Company's stock price.
At this time, the alleged misrepresentations and omissions
include, among others, allegations that:
(i) Microtune materially overstated revenue by recognizing
certain sales immediately as revenue when deferred
revenue recognition would have been more appropriate;
(ii) Microtune failed to establish reserves when
appropriate;
(iii) Microtune lacked adequate internal controls to assure
its financial statements were fairly presented in
conformity with generally accepted accounting
principles;
(iv) Microtune lacked sufficient controls and procedures for
the timely and accurate issuance of periodic press
releases;
(v) Microtune lacked sufficient means to monitor prior
public statements to detect whether an update was
required; and
(vi) Microtune failed to record impairment charges relating
to the assets acquired with the Transilica acquisition
at the appropriate time.
The relief sought by the plaintiffs in the lawsuit, both
individually and on behalf of shareholders, includes damages,
interest, costs, fees, and expenses.
NEWKIRK MASTER: Reaches Settlement For Securities Lawsuit in CT
---------------------------------------------------------------
The Newkirk Master Limited Partnerships reached a settlement for
a class action commenced in the Connecticut Superior Court
against, among others, the Partnership's general partner and
various affiliates of the Partnership's general partner.
Plaintiffs are six limited partners of five of the Newkirk
Partnerships.
The action alleges, among other things, that the price paid to
non-accredited investors in connection with the Exchange was
unfair and did not fairly compensate them for the value of their
partnership interests. The complaint also alleges that:
(1) the exchange values assigned in the Exchange to certain
assets contributed by affiliates of the Partnership's
general partner were too high in comparison to the
exchange values assigned to the Newkirk partnerships;
(2) that the option arrangement relating to the
Partnership's potential acquisition in the future of
the T-2 Certificate, which represents an interest in a
grantor trust, the mortgage assets of which consist of
subordinate mortgage notes secured by the Partnership's
real properties as well as other properties owned by
other partnerships that are controlled by affiliates of
the Partnership's general partner, was unfair to
limited partners; and
(3) that the disclosure document used in connection with
the Exchange contained various misrepresentations
and/or omissions of material facts.
The complaint seeks to have the action classified as a class
action as well as compensatory and punitive damages in an
unspecified amount. In order to avoid the expenses,
distraction, and uncertainties of litigation, and without
conceding their view that the allegations of the complaint are
without merit, the defendants have executed an agreement in
principal to settle the litigation, subject to confirmatory
discovery and finalization of a formal settlement agreement,
based on the following material terms (only unitholders who are
not affiliates of the general partner of the Partnership will
receive the consideration), that the Newkirk Group:
(i) shall convey to unitholders units in the Partnership
equal to 1% of the Partnership;
(ii) shall convey to an escrow agent $1.5 million for the
benefit of unitholders;
(iii) the Partnership shall convey $1.7 million to an escrow
agent for the benefit of the unitholders of the Newkirk
Partnerships who received cash in the Exchange; and
(iv) the MLP and NK-CR Holdings LLC shall enter into an
agreement, subject to certain terms and conditions,
relating to the exercise of the discounted payoff
options under the second mortgage loans which will
enable the Partnership to derive the benefit of the
discount payoff amounts.
As part of the agreement, defendants have also agreed not to
object to payment of reasonable attorneys fees, expenses, and
incentive awards to be paid from the foregoing consideration.
Confirmatory discovery is currently proceeding, and a final
settlement agreement will be subject to review and approval by
the Court after notice to persons other than affiliates of
defendants who were limited partners at the time of the Exchange
in the Newkirk Partnerships.
OPENTV CORPORATION: Reaches Settlement For Securities Fraud Suit
----------------------------------------------------------------
OpenTV 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, against
it, certain investment banks which acted as underwriters for its
initial public offering, and various of its officers and
directors.
The suit, styled "In re OpenTV Corp. Initial Public Offering
Securities Litigation, Civil Action No. 01-CV-7032," alleges
undisclosed and improper practices concerning the allocation of
the Company's initial public offering shares, in violation of
the federal securities laws, and seek unspecified damages on
behalf of persons who purchased the Company's Class A ordinary
shares during the period from November 23, 1999 through December
6, 2000. The Court has appointed a lead plaintiff for the
consolidated cases.
Other actions have been filed making similar allegations
regarding the initial public offerings of more than 300 other
companies. All of these lawsuits have been coordinated for
pretrial purposes as "In re Initial Public Offering Securities
Litigation, Civil Action No. 21-MC-92."
Defendants in these cases have filed omnibus motions to dismiss
on common pleading issues. Oral arguments on these omnibus
motions to dismiss were held on November 1, 2002. All claims
against the Company's officers and directors have been dismissed
without prejudice in this litigation.
On February 19, 2003, the Court denied in part and granted in
part the motion to dismiss filed on behalf of defendants,
including us. The Court's order dismissed all claims against us
except for a claim brought under Section 11 of the Securities
Act of 1933. However, the Court has given plaintiffs an
opportunity to amend their claims in order to state a claim.
A proposal has been made for the settlement and release of
claims against the issuer defendants, including the Company, in
exchange for a guaranteed recovery to be paid by the insurance
carriers of the issuer defendants and an assignment of certain
claims. The settlement is subject to a number of conditions,
including approval of the proposed settling parties and the
Court.
OPENTV CORPORATION: ACTV Shareholders Sue Over Acquisition in DE
----------------------------------------------------------------
OpenTV Corporation faces a class action filed in the Court of
Chancery of the State of Delaware in and for the County of New
Castle, over the Company's acquisition of ACTV, Inc. which was
completed on July 1, 2003. The suit also names as defendants
the Company and its directors.
The complaint generally alleges that the directors of ACTV
breached their fiduciary duties to the ACTV shareholders in
approving the ACTV merger agreement pursuant to which the
Company acquired ACTV and that, in approving the ACTV merger
agreement, ACTV's directors failed to take steps to maximize the
value of ACTV to its shareholders.
The complaint further alleges that the Company aided and abetted
the purported breaches of fiduciary duties committed by ACTV's
directors on the theory that the merger could not occur without
the Company's participation. The complaint seeks certain forms
of equitable relief, including enjoining the consummation of the
merger.
The Company believes that the allegations are without merit.
PFGI CAPITAL: Asks OH Court To Dismiss Shareholder Fraud Lawsuit
----------------------------------------------------------------
PFGI Capital Corporation asked the United States District Court
for the Southern District of Ohio to dismiss the class action
filed by shareholder Silverback Master Ltd., against it and:
(1) Provident Financial Corporation,
(2) Provident's President, Robert L. Hoverson and
(3) Provident's Chief Financial Officer, Christopher
J. Carey
The suit is filed on behalf of all purchasers of PRIDES in or
traceable to a June 6, 2002 offering of those securities
registered with the Securities and Exchange Commission and
extending to March 5, 2003.
This action is based upon circumstances involved in a
restatement of earnings announced by Provident on March 5, 2003.
It alleges violations of securities laws by the defendants in
Provident's financial disclosures during the period from March
30, 1998 through March 5, 2003 and in the June 2002 offering.
It seeks an unspecified amount of compensatory damages.
This action and other class actions have been consolidated
before Judge S. Arthur Spiegel of the United States District
Court for the Southern District of Ohio under the caption,
"Merzin v. Provident Financial Group, Inc., consolidated Civil
Action Master File No. C-1-03-165."
PORTILLO'S: IL Judge Approves Pact for Mislabeled Beer Lawsuit
--------------------------------------------------------------
Cook County Chancery Court in Illinois Judge Aaron Jaffe,
approved the settlement of a class action brought by consumers
against Portillo's Hot Dogs for misrepresenting the size of beer
goblets as 12 ounces, which were served in glasses that could
hold no more than 10.6 ounces, PRNewswire reports.
The lawsuit, titled: Ross and Lambert v. Portillo's Restaurant
Group, Inc., 00 Ch 13612 (Circuit Court of Cook County, Chancery
Division), was filed in September 2000, by two customers,
alleging that Portillo's signage advertising "12-ounce
schooners" of beer, were actually delivered in glasses which
measured as holding only 10.6 ounces.
The settlement, intended to repay customers who were overcharged
for an contested $10,000-to-60,000 shortfall in beer sales, will
require Portillo's to give away a total of 50,000 coupons at its
22 Chicago-area restaurants, usable for $1 off on every
subsequent $5 purchase. The coupons can be used in conjunction
with other Portillo's promotions, and will expire seven months
after the issuance date. The coupons are expected to be issued
to Portillo's customers beginning during mid-December 2003.
Class counsel, Clint Krislov, of Krislov & Associates, Ltd.,
Chicago, who filed the case, was quoted as saying, "It's a
pretty simple concept. When you buy a 12- ounce beer, you're
entitled to receive 12 ounces of beer."
Portillo's advertises itself as the largest independent
restaurant chain in Illinois, and is presently celebrating its
25th year of business.
PUBLIC STORAGE: Consumers Commence Fraud Suit in CA State Court
----------------------------------------------------------------
Public Storage, Inc. faces a consumer fraud class action, styled
"Serrao v. Public Storage, Inc.," filed in the California
Superior Court for Orange County.
The plaintiff in this case filed a suit against the Company on
behalf of a putative class of renters who rented self-storage
units from the Company. Plaintiff alleges that the Company
misrepresented the size of its storage units, has brought claims
under California statutory and common law relating to consumer
protection, fraud, unfair competition, and negligent
misrepresentation, and is seeking monetary damages, restitution,
and declaratory and injunctive relief.
PUBLIC STORAGE: To Oppose Appeal of Class Certification Denial
--------------------------------------------------------------
Public Storage, Inc. intends to oppose plaintiff's appeal of
class certification denial for the lawsuit, styled "Salaam, et.
Al V. Public Storage, Inc.," filed in California Superior Court
for Los Angeles County.
The plaintiffs in this case are suing the Company on behalf of a
purported class of California resident property managers who
claim that they were not compensated for all the hours they
worked. The named plaintiffs have indicated that their claims
total less than $20,000 in aggregate. This maximum potential
liability cannot be estimated, but can only be increased if a
class is certified or if claims are permitted to be brought on
behalf of the others under the California Unfair Business
Practices Act.
The plaintiffs' motion for class certification was denied in
August 2002; the plaintiffs have appealed this denial. This
denial does not deal with the claim under the California Unfair
Business Practices Act.
The Company is continuing to vigorously contest the claims in
this case and intends to resist any expansion beyond the named
plaintiffs on the grounds of lack of commonality of claims. The
Company's resistance will include opposing the plaintiffs'
appeal of the court's denial of class certification and opposing
the claim on behalf of others under the California Unfair
Business Practices Act.
RFS PARTNERSHIP: Faces Fiduciary Duty Suit Over CNL Merger in TN
----------------------------------------------------------------
RFS Partnership LP faces a putative class action filed in the
Circuit Court of Shelby County, Tennessee, 30th Judicial
District against it, its directors and CNL Hospitality
Properties, Inc. (CNL), alleging, among other things, that:
(1) the merger consideration to be received by RFS's
shareholders is significantly less than the intrinsic
value of RFS;
(2) the RFS directors breached their fiduciary duties due
to shareholders on a variety of grounds including
failing to ascertain the true value of RFS, failing to
determine whether there were any other bidders for RFS,
and failing to avoid certain alleged conflicts of
interest shared by members of the RFS board of
directors and its financial advisor;
(3) CNL aided and abetted the RFS board of directors in
connection with their breach of fiduciary duties;
(4) the RFS board of directors violated portions of the
Tennessee Investor Protection Act; and
(5) the RFS proxy statement is false and misleading.
Among other relief, the amended complaint seeks certification of
the class action, an injunction enjoining RFS and CNL from
completing the merger, monetary damages in an unspecified
amount, the payment of attorney's fees, and rescissory damages.
On June 23 and on July 1, 2003, respectively, RFS and CNL filed
an answer to the amended complaint setting forth an affirmative
defense and its general denials of the allegations set forth
therein. The plaintiff's motion for a temporary restraining
order for purposes of enjoining the transaction, which was
argued by the plaintiff on July 8, 2003, was denied by the court
on said date.
Since that ruling, the Plaintiff has not aggressively prosecuted
its claims. Based upon the information currently available to
the Partnership and CNL, the Partnership believes the
allegations contained in the amended complaint are without merit
and it is the Partnership's understanding that CNL intends to
vigorously defend the action.
SPS TECHNOLOGIES: Reaches MOA with Plaintiffs in Investor Suit
---------------------------------------------------------------
SPS Technologies, Inc. entered into a memorandum of
understanding with counsel to the plaintiffs in a lawsuit
related to its proposed merger with Precision Castparts Corp,
PRNewswire reports. The lawsuit was originally filed on October
3, 2003, as a class action complaint in the Court of Common
Pleas of Montgomery County Pennsylvania, naming as defendants
SPS, PCC and each member of the SPS Board of Directors. The
lawsuit was subsequently re-filed as a shareholder derivative
action on November 10, 2003.
Under the terms of the memorandum, the parties have agreed,
subject to approval by the court, to enter into a settlement
with respect to all claims raised by the plaintiffs in the
lawsuit. If the court approves the settlement as contemplated
in the memorandum, the lawsuit will be dismissed. The terms of
the settlement require additional disclosure to be made
concerning the proposed merger. This disclosure is contained in
a current report on Form 8-K filed by SPS today with the
Securities and Exchange Commission.
This disclosure should be read in conjunction with the proxy
statement/prospectus filed with the Securities and Exchange
Commission and mailed to SPS shareholders, including the
documents incorporated by reference into the proxy
statement/prospectus.
The parties also agreed that the plaintiffs will be paid
attorneys' fees and costs in the amount of $300,000 to be paid
by SPS, subject to approval by the court. There will be no
other settlement payment by SPS. There can be no assurance,
however, that the court will approve the proposed settlement or
that the final settlement will be under the same terms as those
contemplated in the memorandum.
The proposed merger remains subject to the satisfaction of
closing conditions, including SPS shareholder approval. As
previously announced, a meeting of SPS shareholders to vote upon
the merger agreement is scheduled for December 2, 2003. If
shareholder approval is obtained, and all other conditions are
met, the parties anticipate that the closing of the merger will
occur at the close of business on December 9, 2003.
TERAFORCE TECHNOLOGY: Reaches Settlement For Shareholder Suits
--------------------------------------------------------------
Teraforce Technology Corporation reached a settlement for the
shareholder class action filed in the United States District
Court for the Northern District of Texas, against it and certain
of its former and current officers and directors. The suit
alleged violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.
In December 2002, the court denied the plaintiffs' motion for
class certification and the 5th Circuit Court of Appeals
subsequently refused to hear an appeal of this ruling. After
additional discovery and certain rulings by the court, the
complaint is now pending with 12 individual plaintiffs.
The Company engaged in discussions with these plaintiffs
concerning the settlement of this matter, and reached agreement
in principle with six of the plaintiffs.
UNITED PAN-EUROPE: U.S. Bankruptcy Court Lifts Litigation's Stay
----------------------------------------------------------------
The United States Bankruptcy Court lifted the automatic stay of
litigation against United Pan-Europe Communications NV, in order
for it to work towards the settlement of a class action filed in
the United States District Court for the Southern District of
New York against the Company, its officers and certain other
persons, including certain of the underwriters for its initial
public offering in February 1999.
According to the complaint, violations of Sections 11, 12(a)(2)
and 15 of the Securities Act of 1933 and Section 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder, were based
on the purported failure of the Company, its officers and other
defendants to disclose that some of the underwriters in the
offering, including the lead underwriters, had solicited and
received excessive and undisclosed commissions from certain
investors.
The Bankruptcy Court lifted the automatic stay in the U.S.
Chapter 11 Case to permit the plaintiffs to pursue this
litigation for the purpose of attempting to obtain a judgment or
settlement up to the amount of UPC's insurance in respect to
such liability and to collect any judgment or settlement solely
out of such insurance in full satisfaction of any such claim.
The Company believes that the claims are without merit. Since
more than 200 similar class actions have been filed against
other companies, primarily against the underwriters, there are
discussions going on to release the companies from these
lawsuits.
WINK COMMUNICATIONS: Reaches Settlement For NY Securities Suit
--------------------------------------------------------------
Wink Communications, Inc. reached a settlement for the
consolidated securities class action filed in the United States
District Court for the Southern District of New York against the
Company, certain investment banks which acted as underwriters
for its initial public offering, and two of its officers and
directors.
The suit, styled "In re Wink Communications, Inc. Initial Public
Offering Securities Litigation, Civil Action No. 01-Civ. 10638
(SAS)," allege undisclosed and improper practices concerning the
allocation of the Company's initial public offering shares, in
violation of the federal securities laws, and seek unspecified
damages on behalf of persons who purchased Company common stock
during the period from August 19, 1999 through December 6, 2000.
This action is among the over 300 lawsuits that have been
consolidated for pretrial purposes as "In re Initial Public
Offering Securities Litigation, Civil Action No. 21- MC-92."
Defendants in these cases have filed motions to dismiss on
common pleading issues. Oral arguments on these omnibus motions
to dismiss were held on November 1, 2002.
On February 19, 2003, the court ruled on the motions to dismiss.
The court denied the motions to dismiss claims against the
Company and the individual defendants under Sections 11 and 15
of the Securities Act of 1933. The Court granted the motion to
dismiss the claims under Section 10(b) of the Securities
Exchange Act of 1934 against the Company and one individual
defendant, and denied that motion against the other individual
defendant and 59 individual defendants in the related cases, on
the basis that the respective amended complaints alleged that
the individuals sold stock. The Court granted the motion to
dismiss the claims under Section 20(a) of the Securities
Exchange Act of 1934.
A proposal has been made for the settlement and release of
claims against the issuer defendants, including the Company, in
exchange for a guaranteed recovery to be paid by the insurance
carriers of the issuer defendants and an assignment of certain
claims. The settlement is subject to a number of conditions,
including approval of the proposed settling parties and the
Court.
WYETH: Share Prices Rise After Favorable Georgia Court Ruling
-------------------------------------------------------------
Shares of Wyeth rose Wednesday after an Atlanta jury decided
unanimously that the company's diet drug didn't cause one
woman's heart problems, Dow Jones Business News reports. News
of the jury decision lifted some of the concerns on Wall Street
that Wyeth's damages in massive diet-drug litigation could
skyrocket beyond the billions the company has set aside.
Wyeth's drug Pondimin was part of the notorious diet-drug
cocktail "fen-phen," until the company withdrew it and another
diet drug, Redux, from the market in 1997 after claims emerged
that they caused heart damage. The case, which was heard before
Judge Constance Russell in the Superior Court of Fulton County
in Atlanta, exacerbates some investor concerns that surfaced
after a Texas jury on November 9 awarded a woman $1.36 million.
"We clearly showed that the plaintiff's medical condition was
caused by a number of factors and could not be narrowed to her
use of the diet drug, Pondimin," Peter Bleakley, an attorney
representing Wyeth, said in a statement. "We also showed that
surgery would not be required."
This trial is one of the roughly 78,000 pending against the
Madison, NJ, drug maker that aren't part of the 73,000 person
class action. In late October, Wyeth added an extra $2 billion
to its litigation reserve, bringing the total charges taken by
the company for diet drugs to $16.6 billion.
In 4 p.m. EST trading on the New York Stock Exchange, shares of
Wyeth were up $2.40, or 6.4%, at $40.15.
Asbestos Alert
ASBESTOS LITIGATION: Ballantyne Reports Asbestos-Related Cases
--------------------------------------------------------------
Ballantyne of Omaha Inc. reports that it is currently a
defendant in two asbestos-related cases pending in the Supreme
Court of the State of New York, according to its latest
regulatory filing with the Securities and Exchange Commission.
Both cases, one entitled Prager v. A.W. Chesterton Company, et.
al. including Ballantyne and one entitled Bercu v. BICC Cables
Corporation, et. al., including Ballantyne, relate to alleged
asbestos-caused diseases contracted by the Plaintiffs.
The Company remains a defendant in the Prager case where there
were originally 34 defendants. The plaintiffs originally sought
general damages of $10,000,000 and punitive damages of
$10,000,000. It is unclear, at this time, what damages are
alleged against the Company. In the Bercu matter, there are 20
defendants including Ballantyne where the plaintiff has not
specified any amount of damages in this action.
At this time, neither case has progressed to a stage where the
likely outcome can be determined nor the amount of damages,
if any. An adverse resolution of these matters could have a
material effect on the financial position of the Company.
ASBESTOS LITIGATION: BGE Continues to Battle Asbestos Lawsuits
--------------------------------------------------------------
Baltimore Gas & Electric Company reports in its latest
regulatory filing with the Securities and Exchange Commission
that it continues to face asbestos-related lawsuits.
According to the filing, since 1993, BGE has been involved in
several actions concerning asbestos. The actions are based upon
the premises liability theory alleging that BGE knew of and
exposed individuals to an asbestos hazard. The actions relate to
two types of claims.
The first type is direct claims by individuals exposed to
asbestos. BGE is involved in these claims with around 70 other
defendants. An estimate of around 525 individuals that were
never employees of BGE each claim $6,000,000 in damages
($2,000,000 compensatory and $4,000,000 punitive). These claims
are currently pending in state courts in Maryland and
Pennsylvania. BGE does not know the identity of BGE's facilities
at which the plaintiffs allegedly worked as contractors, the
names of the plaintiff's employers, the date on which the
exposure allegedly occurred, and the facts and circumstances
relating to the alleged exposure, the filing said.
As of this filing, 161 asbestos cases were dismissed or resolved
for amounts that were not significant. There are around 235
cases scheduled for trial by the end of 2004.
The second type is claims by Pittsburgh Corning Corp against BGE
and around eight others, as third-party defendants. On Apr. 17,
2000, PCC declared bankruptcy.
BGE reports that these claims relate to around 1,500 individual
plaintiffs and were filed in the Circuit Court for Baltimore
City, Maryland in the fall of 1993. There have been around 375
cases resolved, all without any payment by BGE. BGE does not
know the identity of BGE facilities containing asbestos
manufactured by the manufacturer, the relationship, if any, of
each of the individual plaintiffs to BGE, the settlement amounts
for any individual plaintiffs who are shown to have had a
relationship to BGE, the dates on which/places at which the
exposure allegedly occurred, and the facts and circumstances
relating to the alleged exposure.
Until the relevant facts for both types of claims are
determined, BGE is unable to estimate what its liability might
be. Although insurance and hold harmless agreements from
contractors who employed the plaintiffs may cover a portion of
any awards in the actions, the potential effect BGE financial
results could be material.
ASBESTOS LITIGATION: Eastman Discloses 11,000 Asbestos Claims
-------------------------------------------------------------
Eastman Chemical Company reports in its latest regulatory filing
with the Securities and Exchange Commission that there are
around 11,000 claims asserted against the Company in 33
asbestos-related cases that also involve hundreds of other
defendants.
Like many other companies, Eastman has also experienced an
increase in the number of asbestos claims against it. Most of
the claims filed against the company are in Mississippi. The
plaintiffs in the newly filed cases in Mississippi allege
exposure to asbestos-containing products allegedly made by
Eastman.
According to the filing, based on Eastman's investigation, the
Company manufactured limited amounts of an asbestos-containing
plastic product between the mid-1960's and the early 1970's. The
investigation did not find any evidence that any of the
Mississippi plaintiffs worked with or around any such product
alleged to have been manufactured by the Company. Eastman
intends to defend vigorously all of these actions or to settle
them on acceptable terms.
Over the years, Eastman was named as a defendant, along with
numerous other defendants, in lawsuits in various state courts
in which plaintiffs alleged injury due to exposure to asbestos
at Eastman's manufacturing sites and sought unspecified monetary
damages and other relief. Historically, these cases were
dismissed or settled without a material effect on Eastman's
financial condition, results of operations, or cash flows, the
filing said.
The Company continues to evaluate the allegations and claims
made in recent asbestos-related lawsuits and its insurance
coverages. Based on such evaluation to date, the Company
continues to believe that the ultimate resolution of asbestos
cases will not have a material impact on the Company's financial
condition, results of operations, or cash flows, although these
matters could result in the Company being subject to monetary
damages, costs or expenses and charges against earnings in
particular periods. To date, costs incurred by the Company
related to the recent asbestos-related lawsuits have not been
material, and in the case of the Mississippi claims have been
limited to legal fees and expenses.
ASBESTOS LITIGATION: Goodyear Continues to Face Asbestos Suits
--------------------------------------------------------------
Goodyear Tire & Rubber Co reports in its latest filing with the
Securities and Exchange Commission that as of Sept. 30, the
number of claimants in asbestos-related cases rose to around
112,500 as compared to last year's 97,000.
The claimants allege various asbestos related personal injuries
purported to result from alleged exposure to asbestos in certain
rubber-encapsulated products manufactured by Goodyear in the
past or to asbestos in certain Goodyear facilities.
Typically, these lawsuits have been brought against multiple
defendants in state and Federal courts. In the past, Goodyear
has disposed of around 28,500 cases by defending and obtaining
the dismissal thereof or by entering into a settlement.
ASBESTOS LITIGATION: Grace Asbestos Lawsuit Placed on Hold
----------------------------------------------------------
The asbestos victims and their families in Libby, Mont., and
Spokane will have to wait longer for a resolution of their
claims against W.R. Grace & Co, according to a report from The
Spokesman-Review.
The article says that a "science trial" on the hazards of W.R.
Grace's asbestos-tainted vermiculite ore mined in Libby and used
widely in attic insulation was supposed to start this week in
Pittsburgh. It has been delayed until February.
The trial to determine whether W.R. Grace's Zonolite attic
insulation is dangerous includes seven test cases from claimants
nationwide.
Two are from Spokane -- landlord Marco Barbanti and homeowner
Ralph Busch.
The delay is the result of a major legal challenge by creditors
fighting to disqualify U.S. District Judge Alfred Wolin, a New
Jersey judge appointed to oversee five massive asbestos-related
bankruptcies, including the 2001 Chapter 11 bankruptcy of W.R.
Grace.
As a result of the controversy, U.S. District Judge Judith
Fitzgerald, the Pittsburgh judge presiding over the Zonolite
trial, has delayed it until the issue of Wolin's recusal has
been resolved.
The delay is "really bad news," said Barbanti, who has found
Zonolite insulation in four of his Spokane rental homes. The
insulation contains tiny fibers of tremolite asbestos, which can
cause asbestosis and lung cancer.
"They are trying to disenfranchise a whole bunch of asbestos
plaintiffs," Barbanti told The Spokesman-Review.
The legal battle in U.S. bankruptcy court is unprecedented, said
a Spokane attorney representing Barbanti and other asbestos
claimants.
"It's a fundamental attack on the bankruptcy court's ability to
resolve the claims of any asbestosis victims," said Darrell
Scott, chairman of the bankruptcy court committee representing
asbestos property damage plaintiffs in W.R. Grace's bankruptcy.
On Nov. 14, a group of creditors in W.R. Grace's bankruptcy
asked Wolin to step down due to alleged conflicts of interest
involving two of his six advisers.
The creditors, D.K. Acquisition Partners, Fernwood Associates
and the Deutsche Bank Trust Company Americas, accuse Wolin in
court documents of choosing "partisan advocates" for asbestos
claimholders as his advisers.
David Gross and C. Judson Hamlin are "anything but impartial
advisers" because they also represent asbestos claimholders in
the bankruptcy of G-I Holdings, the creditors say in court
documents.
Some of the creditors seeking Wolin's recusal are also W.R.
Grace subsidiaries.
A similar motion against Wolin was filed a month earlier by
creditors in the Owens Corning bankruptcy. U.S. Gypsum and
Armstrong have also intervened this month to argue for recusal.
Attorneys for the asbestos claimants say the advisers have been
known for two years, and the creditors' recusal motions are "an
affront to the judicial process."
In a reply to the U.S. Court of Appeals for the Third Circuit,
Judge Wolin said the effort to force him off the case may be a
deliberate ploy by the companies to manipulate and delay the
proceedings.
Scott agrees.
"They are trying to pull the rug out from under Judge Wolin. The
judge is leaving the strong impression this is a tactical
maneuver by trade creditors who are unhappy over any money going
to asbestos victims," he said.
As unsecured creditors, the claims of 124,000 asbestosis victims
come in second to Grace's major secured creditors. All parties
are fighting for a chunk of Grace's $2,400,000,000 in assets.
Two years ago, after W.R. Grace's stock fell 80 percent in a
wave of asbestos lawsuits, the company filed for Chapter 11
protection.
In Chapter 11, a company relinquishes control of its assets to
the court, which appoints a government attorney as trustee. The
company continues to operate while the court and the trustee
sort out the claims.
When it filed for bankruptcy, Grace listed $2,300,000,000 in
debts, including $878,000,000 owed for asbestos liability.
The bankruptcy filing stayed the claims of Libby residents
exposed to vermiculite ore and workers who made Zonolite
insulation at factories from Spokane to Boston.
It also has forced the U.S. Environmental Protection Agency to
go through bankruptcy court to collect a record $54.5 million
judgment it won in August from a federal court in Montana to
reimburse the agency for the costs of cleaning up asbestos-
tainted Libby.
In its third-quarter statement this year, Grace said it would
take a $50,000,000 pre-tax charge for the Libby cleanup verdict,
telling its shareholders that payment "will be subject to
Grace's Chapter 11 proceedings."
The bankruptcy also stopped a class-action lawsuit in Spokane
Superior Court that sought to represent thousands of Washington
state residents living in homes containing Zonolite. It also
halted similar lawsuits in Minnesota, California, Montana and
Massachusetts.
Grace took Zonolite off the market in 1984. But a long lag time
between asbestos exposure and illness means people exposed in
the 1960s and '70s are just now being diagnosed.
The onset of asbestos-related diseases peaked in 1997, says The
Spokesman-Review.
ASBESTOS LITIGATION: Jury Awards $6.4M to Victim's Family
----------------------------------------------------------
A family of a pipe fitter who dies of an asbestos-related
disease gets $6,400,000 in Cuyahoga County Common Pleas Court.
The jury recently approved the award of $6,400,000 to the family
of Clyde Blandford Sr.
According to a report from the Associated Press, Blandford's
family claimed he was harmed by exposure to asbestos while
working at steel mills in the Canton area. His attorneys said
Blandford came into contact with asbestos, which was widely used
for insulation, through gaskets manufactured by Garlock Sealing
Technologies. Garlock Sealing said it will appeal.
In 2000, the 75-year-old Blandford was diagnosed with a rare
form of cancer caused by asbestos exposure. He died less than
two months later.
ASBESTOS LITIGATION: USG Backs Calls for Judge Wolin's Recusal
--------------------------------------------------------------
USG Corp. (USG) and business creditors in its Chapter 11 case
recently joined the clamor for the judge overseeing the
company's bankruptcy proceedings to recuse, repeating claims of
bias leveled at him in two other massive asbestos-related
bankruptcy cases.
Recusal motions have been filed against U.S. District Judge
Alfred Wolin in the Chapter 11 cases of W.R. Grace & Co. (GRA)
and Owens Corning Inc. (OWENQ). The bids to oust the judge have
cited duplicate roles played by two attorneys on a panel that
Wolin named to assist him in overseeing a total of five large
asbestos-drive bankruptcies filed in U.S. Bankruptcy Court in
Wilmington, Del.
While advising the judge in the Wilmington cases, the two, David
Gross and C. Judson Hamlin, have been representing the interests
of people injured by asbestos in a similar Chapter 11 proceeding
in New Jersey, that of G-1 Holdings Inc.
USG Corp.'s business creditors said that is evidence Wolin is
biased and must be removed.
Owens Corning, in papers filed on Nov. 20 with the Third Circuit
Court of Appeals, said the attacks on Wolin are evidence of a
"scorched earth strategy" designed to blockade the Chapter 11
process at a time when it appears to be taking a turn
unfavorable to business creditors.
ASBESTOS LITIGATION: Senate Shelves Bill Until Next Year
--------------------------------------------------------
Senate Majority Leader Bill Frist recently said he would not
force a vote on asbestos litigation reform this year and instead
would continue talks with Democrats and other interested parties
to forge a compromise, according to a Reuters report.
"It is clear we still need a little more time for discussion,"
Frist, a Tennessee Republican told Reuters. "There will,
however, be a limit to these discussions because we must act."
Frist said he would now schedule Senate action on asbestos
legislation by the end of March.
Reuters reports that democrats have said a recent proposal by
Frist for a $114-billion fund to compensate people sickened by
asbestos was inadequate. Asbestos companies and insurers, who
agreed to the amount, would support the fund.
Labor unions have said that at least $153,800,000,000 would be
needed to pay the claims of people with asbestos-related
diseases.
Asbestos was widely used for fireproofing and insulation until
the 1970s. Scientists have concluded that inhaled fibers can be
linked to cancer and other diseases, and thousands of lawsuits
by victims have driven 67 companies into bankruptcy.
Republicans have been trying to jump-start stalled legislation
to end asbestos lawsuits and establish a fund, supported by
asbestos companies and insurers, to pay victims' claims.
Frist said it was important to act quickly on legislation to
prevent further economic disruption, but that he wanted to give
interested parties time to work out a compromise.
ASBESTOS LITIGATION: Selas Reports Asbestos-Related Lawsuits
------------------------------------------------------------
Selas Corp of America reports that it is a defendant along with
a number of other parties in around 143 lawsuits as of Sept. 30
up from around 108 lawsuits as of Dec. 31, 2002, according to
its latest regulatory filing with the Securities and Exchange
Commission.
These lawsuits allege that plaintiffs have or may have
contracted asbestos-related diseases as a result of exposure to
asbestos products or equipment containing asbestos sold by one
or more named defendants.
Due to the non-informative nature of the complaints, the Company
does not know whether any of the complaints state valid claims
against the Company, the filing said.
The lead insurance carrier has informed the Company that the
primary policy for the period July 1, 1972 - July 1, 1975 has
been exhausted and that the lead carrier will no longer provide
a defense under that policy. The Company has requested that the
lead carrier substantiate its position. The Company has
contacted representatives of the Company's excess insurance
carrier for some or all of this period.
According to the filing, the Company does not believe that the
asserted exhaustion of the primary insurance coverage for
this period will have a material adverse effect on the financial
condition, liquidity, or results of operations of the Company.
Management believes that the number of insurance carriers
involved in the defense of the suits and the significant number
of policy years and policy limits to which these insurance
carriers are insuring the Company make the ultimate disposition
of these lawsuits not material to the Company's consolidated
financial position or results of operations.
ASBESTOS LITIGATION: ABB Appeals Could Reach High Court
-------------------------------------------------------
Steve Kazan, a lawyer representing asbestos victims and their
families told a Swiss magazine that appeals against ABB's
$1,200,000,000 asbestos settlement could go all the way to the
U.S. Supreme Court, according to a Reuters report.
"I will go as far as the Supreme Court," Steven Kazan said in an
interview with Cash magazine.
Reuters reports that in July, a U.S. district court approved
ABB's proposed settlement of asbestos claims, but parties
opposed to it like asbestos victims and some insurers appealed
the settlement to a higher court.
Kazan was also quoted as saying he believed he had a "50
percent" chance that he would win the current appeal.
An ABB spokesman said he was not worried about Kazan's threat to
go to the Supreme Court should he lose the appeal.
"The course of the entire case so far has shown that such
appeals...have not been successful," the spokesman told Reuters.
Chairman and Chief Executive Juergen Dormann told recently
Reuters that he did not believe appeals to the settlement would
drag on for years and eventually go to the U.S. Supreme Court.
On the other hand, court-scheduling problems mean that there
will be more delays to a final resolution to the Swiss
engineering firm's asbestos liabilities in the US, according to
the European Chemical News.
ECN reports that an appeals court hearing that was due to hear
objections to the Swiss engineering group's proposed asbestos
settlement plan has postponed a hearing set for Dec. 16 to
Jan.12 next year.
The setback comes a month after the group announced a broad
program to strengthen its capital and financial structure
including a new share issue worth roughly $2,500,000,000 and a
newly agreed $1,000,000,000 bank credit facility. Just recently,
ABB sold EUR650,000,000 of bonds that will mature in November
2011.
The setback, says a spokesperson for the engineering firm, would
not affect the imminent sale of its upstream oil, gas and
petrochemical business, expected to complete before year-end.
ASBESTOS LITIGATION: Harsco Posts Latest Asbestos Stats
-------------------------------------------------------
Harsco Corp. reports in its latest quarterly filing with the
Securities and Exchange Commission that about 1,090 asbestos-
related lawsuits were filed against it, together with around 90
other defendants, in the third quarter making the total of
personal injury claims 39,830 at Sept. 30.
According to the filing, Harsco had obtained dismissal by
stipulation, or summary judgment prior to trial, in all cases
that proceeded to trial with about 663 dismissals.
The company said it intends to continue vigorously defending
itself against these cases as they are listed for trial and
expects the insurance carriers to continue to pay the legal
costs and expenses.
The company is defending around 25,075 of its cases in the New
York State court for New York County. There are about 14,450
cases filed in the state courts of counties in Mississippi and
almost all of these complaints have a standard claim for an
unstated amount of damages against the numerous defendants.
The company said that it reached agreement with one plaintiff's
counsel in Mississippi to dismiss the company from roughly 2,600
cases.
According to the filing, dismissal orders had been received on
about 140 of these cases and the remaining cases are awaiting
the judge's signature.
There have been around 305 cases filed in various counties in a
number of state courts, besides the U.S. Federal District Court
for the Eastern District of Pennsylvania, and the complaints
assert lesser amounts than the New York County cases or don't
state any amount claimed.
The company said the court in New York County last December
issued an order creating a "deferred docket" for all pending and
future asbestos claims of plaintiffs who don't meet minimum
criteria for discernible physical impairment.
Each claim on the deferred docket will remain inactive unless
the plaintiff can show to the court impairment that meets the
minimum criteria for being put on the active docket, the filing
said.
Harsco said that the court made significant progress toward
finalizing the deferred docket for 1997 and 1998 cases in the
third quarter.
Of the about 5,000 cases filed in 1997 and 1998 that were on the
court's docket, 260 cases will be put on the active docket,
while all others will be deferred until the plaintiffs can show
physical impairment that satisfies the standards established by
the court, the filing said.
Of these 260 cases, the company said that around 100 cases are
subject to removal back to the deferred docket if medical
testing of plaintiffs doesn't verify the physical limitations
claimed.
Harsco said it wasn't a party in all of the 5,000 cases and is
waiting for the identification of the cases on the active docket
to be released to determine how many of the 260 "active" cases
it will be party to.
The company said that the court has started work on the 1999-
2000 docket of cases, which totals roughly 12,000.
Harsco said it expects that it will take several months to
finalize which of these cases will be deferred and which will be
put on the active docket and progress to trial.
Almost all of these complaints contain a standard claim for
damages of $20,000,000 or more, regardless of the individual's
alleged condition, and without identifying any of the company's
products, according to the filing.
The company said that the lawsuits filed in the state courts of
counties in Mississippi were filed in the fourth quarter of 2002
in advance of the more restrictive "deferred docket" legislation
taking effect.
ASBESTOS LITIGATION: Travelers Inks Asbestos Deal
-------------------------------------------------
Travelers Property Casualty Corp. recently reached an agreement
that would settle all pending asbestos-related cases against the
company and potentially limit the company's liability to
asbestos-related claims in the future, according to a Reuters
report.
Terms of the deal were not made public but the company doesn't
expect any additional charges to stem from the deal.
The Hartford, Connecticut-based company said it will fund the
settlement from its more than $3,000,000,000 in asbestos
reserves and does not expect the costs to reduce profits.
"I'm pleased with the progress we continue to make in reducing
our asbestos-related exposures," Travelers Chairman Robert I.
Lipp said in an AP report.
The agreement is the result of mediation efforts ordered by the
New York Federal Bankruptcy Court in conjunction with the
reorganization of former Travelers policyholder Johns Manville,
according to a Dow Jones report.
The court issued a temporary injunction on class-action suits
filed in Hawaii, Louisiana, Massachusetts, Ohio, Texas and West
Virginia that allege Travelers, along with a number of other
insurers, supported asbestos manufacturers' claims that they
weren't aware of the health risks posed by the inhalation of
asbestos fibers.
A New York Federal Bankruptcy Court judge didn't include Hawaii
in a temporary injunction that covered suits filed in the other
states. The court mandated the matter be resolved in arbitration
proceedings that ultimately resulted in the announced
settlement.
The proposed settlement is subject to a number of significant
contingencies, including negotiation of a definitive settlement
agreement and final court approval.
Cases affected by the proposed settlement claim Travelers
violated state insurance unfair claim and trade practices
statutes while handling asbestos claims.
The agreement, however, wouldn't protect the company against
non-statutory claims that allege a general duty to the public to
disclose the hazards of asbestos. The bankruptcy court's
temporary injunction on that matter was extended to March, when
Travelers' motion for a permanent injunction will be considered.
Travelers in January more than tripled its asbestos reserves to
$3.4 billion, reacting to a new round of asbestos claims that
sought to extend liability for asbestos-related health problems.
Whereas initial suits focused on asbestos manufacturers, the
most recent round of litigation seeks damages from insurance
companies directly and companies whose employees were exposed to
asbestos, regardless of whether they have yet developed
associated illnesses.
Travelers recently agreed to a merger with The St. Paul Cos.
Inc. in a $16,500,000,000 stock deal that will create America's
second-largest business insurer, AP reports.
ASBESTOS LITIGATION: UIC Lists 18,590 Asbestos-Related Claimants
----------------------------------------------------------------
United Industrial Corp. reports in its quarterly report with the
Securities and Exchange Commission that it is a defendant in 507
asbestos-related lawsuits that involve 18,590 bodily injury
claimants as of Sept. 30.
The defense systems maker said that around 18,000 claimants were
involved in cases filed before Jan. 1. Most of the lawsuits
don't include specific dollar claims for damages, and many
include a number of plaintiffs and multiple defendants.
United Industrial doesn't believe that the claimants in the vast
majority of these cases will be able to demonstrate that they
have been exposed to its asbestos-containing products or
suffered any compensable loss as a result of such exposure,
according to the filing.
The company said that, together with its Detroit Stoker
subsidiary, it has been named as a defendant in asbestos-related
personal injury litigation. The two companies didn't mine,
manufacture or market asbestos and that the usage of asbestos-
containing materials related with its products was stopped in
1981.
Based on the assumptions of asbestos and insurance consultants,
it recorded a reserve of about $31,900,000 as of
Dec. 31, 2002, for bodily injury liabilities through 2012 and
around $20,300,000 of insurance recovery to mitigate its
potential asbestos liability through 2012.
The asbestos liability for the three months ended Sept. 30
decreased by $120,000 due to the payment of claim-related
expenses, the filing said.
New Securities Fraud Cases
AEROSONIC CORPORATION: Brodsky & Smith Lodges Stock Suit in FL
--------------------------------------------------------------
The Law offices of Brodsky & Smith, LLC initiated a securities
class action lawsuit in the United States District Court for the
Middle District of Florida on behalf of shareholders who
purchased the common stock and other securities of Aerosonic
Corporation, between May 3, 1999 and March 17, 2003, inclusive,
against Aerosonic and certain of its officers and/or directors.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period,
thereby artificially inflating the price of Aerosonic
securities.
For more information, contact Marc L. Ackerman or Evan J. Smith,
by Mail: Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, by
Phone: toll free 877-LEGAL-90, or by E-mail:
clients@brodskysmith.com.
FRED ALGER: Charles Piven Launches Securities Suit in S.D. NY
-------------------------------------------------------------
The Law Offices Of Charles J. Piven, P.A. initiated a class
action lawsuit in the United States District Court for the
Southern District of New York on behalf of all purchasers of
shares of the Alger Funds family of funds during the period
between November 1, 1998 and September 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 subject to
the lawsuit are as follows:
(1) Alger SmallCap Portfolio (Sym: ALSAX, ALSCX, AGSCX)
(2) Alger SmallCap and MidCap Portfolio (Sym: ALMAX, ALMBX,
ALMCX)
(3) Alger MidCap Growth Portfolio (Sym: AMGAX, AMCGX,
AMGCX)
(4) Alger LargeCap Growth Portfolio (Sym: ALGAX, AFGPX,
ALGCX)
(5) Alger Capital Appreciation Portfolio (Sym: ACAAX,
ACAPX, ALCCX)
(6) Alger Health Sciences Portfolio (Sym: AHSAX, AHSBX,
AHSCX)
(7) Alger Balanced Portfolio (Sym: ALBAX, ALGBX, ALBCX)
(8) Alger Small Cap Institutional Fund (Sym: ALSRX, ASIRX)
(9) Alger MidCap Institutional Fund (Sym: ALMRX, ALGRX)
(10) Alger LargeCap Growth Institutional Fund (Sym: ALGRX,
ALGIX)
(11) Alger Capital Appreciation Institutional Fund (Sym:
ALARX, ACARX)
(12) Alger Balanced Institutional Fund (Sym: ABLRX, ABIRX)
(13) Alger Socially Responsible Growth Institutional Fund
(Sym: ASRGX, ASRRX)
(14) Spectra Fund (Sym: SPEAX, SPECX)
The wrongful conduct alleged in and which is the subject of the
lawsuit relates to "timing." The lawsuit alleges that timing
injures ordinary mutual fund investors who are not allowed to
engage in such practices and benefits the mutual fund companies.
For more information, contact Charles J. Piven, by Mail: The
World Trade Center-Baltimore, 401 East Pratt Street, Suite 2525,
Baltimore, Maryland 21202, by Phone: 410/986-0036, or by E-mail:
hoffman@pivenlaw.com.
FRED ALGER: Bernstein Liebhard Lodges Securities Suit in S.D. NY
----------------------------------------------------------------
Bernstein Liebhard & Lifshitz, LLP initiated a class action
lawsuit in the United States District Court for the Southern
District of New York, on behalf of all purchasers, redeemers and
holders of mutual fund shares or other ownership interests of
one or more of the Fred Alger family from September 12, 1998
through the present.
The following funds are subject to the above class action
lawsuit:
(1) Alger SmallCap Portfolio (Sym: ALSAX, ALSCX, AGSCX)
(2) Alger SmallCap and MidCap Portfolio (Sym: ALMAX, ALMBX,
ALMCX)
(3) Alger MidCap Growth Portfolio (Sym: AMGAX, AMCGX,
AMGCX)
(4) Alger LargeCap Growth Portfolio (Sym: ALGAX, AFGPX,
ALGCX)
(5) Alger Capital Appreciation Portfolio (Sym: ACAAX,
ACAPX, ALCCX)
(6) Alger Health Sciences Portfolio (Sym: AHSAX, AHSBX,
AHSCX)
(7) Alger Balanced Portfolio (Sym: ALBAX, ALGBX, ALBCX)
(8) Alger Small Cap Institutional Fund (Sym: ALSRX, ASIRX)
(9) Alger MidCap Institutional Fund (Sym: ALMRX, ALGRX)
(10) Alger LargeCap Growth Institutional Fund (Sym: ALGRX,
ALGIX)
(11) Alger Capital Appreciation Institutional Fund (Sym:
ALARX, ACARX)
(12) Alger Balanced Institutional Fund (Sym: ABLRX, ABIRX)
(13) Alger Socially Responsible Growth Institutional Fund
(Sym: ASRGX, ASRRX)
(14) Spectra Fund (Sym: SPEAX, SPECX)
The complaint charges that defendants violated their fiduciary
duties to their customers in return for substantial fees and
other income for themselves and their affiliates. The complaint
further charges that defendants violated Section 34(b) of the
Investment Company Act of 1940 and committed common law fraud.
The complaint alleges, among other things, that part of
defendants' scheme was "late trading" of mutual fund shares by
select customers of the fund.
Specifically, the complaint alleges that certain of defendants'
mutual fund investors, including Veras Investment Partners, LLP,
improperly arranged with defendants that orders Veras 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
Veras 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 called "Timing." In return for investments that
would increase fund managers' fees, fund managers entered into
undisclosed agreements to allow "Timing." In fact, certain
mutual fund companies have employees who are supposed to detect
"timers" and put a stop to their short-term trading activity.
Nonetheless, defendants arranged to give Veras and other market
timers a "pass" with the timing police, who would look the other
way rather than attempt to shut down their short-term trading.
Further, the mutual fund prospectuses for the funds at issue
created the misleading impression that mutual funds were
vigilantly protecting investors against the negative effects of
timing. In fact, the opposite was true: defendants sold the
right to time their funds to Veras and other hedge fund
investors. The prospectuses were silent about these
arrangements.
For more information, 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: Alger@bernlieb.com.
MERCK & CO: Stull Stull Files Amended Securities Suit in E.D. LA
----------------------------------------------------------------
The law firm of Stull Stull & Brody initiated an amended
complaint in the United States District Court for the Eastern
District of Louisiana, on behalf of all investors who bought
Merck & Co., Inc. common stock between May 22, 1999 and October
22, 2003, inclusive, against defendants Merck & Co., Inc. and
certain of its senior officers and directors.
According to the complaint, Merck issued numerous statements and
filed quarterly and annual reports with the SEC which described
the Company's increasing revenues and financial performance.
These statements were materially false and misleading because
they failed to disclose and/or misrepresented the following
adverse facts, among others:
(1) that the Company improperly minimized and downplayed
the effect that safety concerns about VIOXX, the
Company's second largest selling drug, had on sales of
that drug;
(2) failed to disclose concerns scientists and physicians
working for Merck had about the cardiovascular safety
of VIOXX;
(3) failed to disclose the large amount of liability the
Company was facing in personal injury and wrongful
death lawsuits due to the hazardous nature of VIOXX and
that, as a result, Merck's statements concerning the
size of the Company's revenues, financial results, and
future earnings projections were lacking in a
reasonable basis at all relevant times.
On October 22, 2003, Reuters ran a story entitled "Merck to cut
4,000 jobs, Earnings Flat." The following week, on October 30,
2003, The Wall Street Journal published an article entitled
"Vioxx Study Sees Heart-Attack Risk." That same day, The Wall
Street Journal ran a second article concerning Merck entitled,
"Merck's Slide May Dislodge Company's CEO."
For more information, contact Tzivia Brody, by Mail: 6 East 45th
Street, New York, NY 10017, by Phone: toll-free 1-800-337-4983,
by Fax: 212/490-2022, or by E-mail: SSBNY@aol.com.
PORTAL SOFTWARE: Brodsky & Smith Launches Securities Suit in CA
---------------------------------------------------------------
The Law offices of Brodsky & Smith, LLC initiated a securities
class action lawsuit in the United States District Court for the
Northern District of California on behalf of shareholders who
purchased the common stock and other securities of Portal
Software, Inc., between May 20, 2003 and November 13, 2003,
inclusive.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period,
thereby artificially inflating the price of Portal Software
securities and allowing certain defendants to sell their
personally-held Portal Software common stock at proceeds of more
than $4.8 million
For more information, contact Marc L. Ackerman, or Evan J.
Smith, by Mail: Two Bala Plaza, Suite 602, Bala Cynwyd, PA
19004, by Phone: toll free 877-LEGAL-90, or by E-mail:
clients@brodsky-smith.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. The Asbestos Defendant Profiles is backed by an
online database created to respond to custom searches. Go to
http://litigationdatasource.com/asbestos_defendant_profiles.html
*********
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., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Roberto Amor, Aurora Fatima Antonio and Lyndsey Resnick,
Editors.
Copyright 2003. All rights reserved. ISSN 1525-2272.
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