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C L A S S A C T I O N R E P O R T E R
Tuesday, March 29, 2005, Vol. 7, No. 61
Headlines
AQUILA INC.: KS Judge Dismisses Shareholder Suits Over UtiliCorp
BIOGEN IDEC: Securities, Derivative Suits Filed Over Drug Recall
CALIFORNIA: Judge Dismisses Cedar Fire Lawsuit, Allows Re-filing
CALIFORNIA: Judge Finalizes Settlement For ACLU's Williams Case
CATHOLIC CHURCH: KY Diocese, Plaintiffs Move Back To Negotiation
CHECKPOINT SYSTEMS: Consumers Launch Antitrust Suits in PA, NJ
DST SYSTEMS: Faces Lawsuit Over Joint Venture in AL State Court
ENTERGY CORPORATION: Appeal of Council Resolution on Suit Heard
ENTERGY CORPORATION: Plaintiffs Appeal Customer Suit Dismissal
ENTERGY CORPORATION: Plaintiffs Appeal Suit Certification Denial
ENTERGY LOUISIANA: LA Appeals Court Hears Certification Appeal
ENTERGY LOUISIANA: Appeals Trial Court Ruling in LA Injury Suit
ENTERGY LOUISIANA: Abandonment Evaluated For LA Ratepayers Suit
ENTERGY NEW: Bifurcated Ratepayer Suit Proceedings Set June 2005
HEWLETT-PACKARD: Consumers Launch Fraud Suits in TX, OK Courts
HEWLETT-PACKARD: IL Court Refuses To Dismiss Consumer Lawsuits
HEWLETT-PACKARD: Consumers Launch CA Lawsuits V. "Smart Chips"
HEWLETT-PACKARD: Parties Seek Transfer of Stock Suit To CA Court
HEXCEL CORPORATION: CA Court Approves Antitrust Suit Settlement
ILLINOIS: I-LAW Launches Campaign To Revive Tort Reform Bills
ILLINOIS: Judge Rules 1995 Chicago Fire Exam As Discriminatory
JSC SURGUT: Denies Payment To Harvard College, Shareholders
MERCK & CO.: Vioxx Product Liability Lawsuits Coordinated in LA
MERCK & CO.: Shareholder Fraud Lawsuits Coordinated in NJ Court
MERCK & CO.: Newbury Resident Lodges NH's First Suit V. Vioxx
NORTH CAROLINA: AG Cooper Proposes Legislation V. Identity Theft
OM GROUP: Reaches Agreement To Settles 2002 Shareholder Lawsuits
OM GROUP: Settles Detroit P&F's Securities Complaint For $82.5M
PENNSYLVANIA: New Hearing On Document Copying Fees Case Ordered
SECURITY CAPITAL: DE Court Orders Shareholder Suits Consolidated
ST. JUDE: Working To Resolve Litigation Against Silzone Devices
ST. JUDE: Faces Symmetry Device Litigation in TN, MN, AR and PA
SYMBOL TECHNOLOGIES: NY Court Okays Securities Suit Settlement
UNITED STATES: FAA Employees Officially Lodge Age-Bias Complaint
VODAFONE GROUP: Securities Settlement Hearing Set June 22, 2005
New Securities Fraud Cases
BRADLEY PHARMACEUTICALS: Stull Stull Files Securities Suit in NJ
CELL THERAPEUTICS: Keller Rohrback Lodges Securities Suit in WA
CHOICEPOINT INC.: Milberg Weiss Lodges GA Securities Fraud Suit
DELPHI CORPORATION: Berger & Montague Lodges MI Securities Suit
DELPHI CORPORATION: Mager White Lodges Stock Fraud Lawsuit in NY
ELAN CORPORATION: Milberg Weiss Lodges NY Securities Fraud Suit
FOREST LABORATORIES: Stull Stull Lodges Securities Suit in NY
ORANGE 21: Lerach Coughlin Lodges Securities Fraud Suit in CA
TEXTAINER FINANCIAL: Chimicles Tikellis Lodges Stock Suit in CA
VEECO INSTRUMENTS: Alfred G. Yates Lodges Securities Suit in NY
VIISAGE INC.: Berman Devalerio Files Securities Fraud Suit in MA
VIISAGE TECHNOLOGY: Lerach Coughlin Lodges Securities Suit in MA
*********
AQUILA INC.: KS Judge Dismisses Shareholder Suits Over UtiliCorp
----------------------------------------------------------------
U.S. District Judge Fernando Gaitan Jr. threw out a class action
lawsuit alleging that Aquila Inc. cheated shareholders when the
utility, then known as UtiliCorp United Inc., bought back 20
percent of its energy-trading arm in January 2002, The Kansas
City Star reports. The judge granted summary judgment to Aquila
after finding that the plaintiffs were unable to show that
alleged misrepresentations made by the Company caused them
damages.
The ruling was a major legal victory for the Kansas City-based
utility, which currently faces a host of copycat actions seeking
damages of at least $174 million. The suits were consolidated
into one action, and Judge Gaitan's order rids the Company of
all the lawsuits. Court documents revealed that the suits
focused on UtiliCorp's failure to form an independent audit
committee after it spun off 20 percent of its energy trading
subsidiary's stock in April 2001. The companies recombined nine
months later, when UtiliCorp officials decided the subsidiary
needed the help of UtiliCorp's balance sheet and UtiliCorp
reacquired the shares. UtiliCorp then changed its name to
Aquila, which had been the name of the subsidiary.
The lawsuits had alleged that the failure to form an audit
committee allowed UtiliCorp to buy back the stock at a non-
negotiated and less than optimum price per share. Between the
spinoff and Aquila's disclosure more than four months later that
it had not formed the committee, Aquila's stock price fell below
the spinoff price of $24. The stock's decline came amid a drop
in energy prices and energy trader Enron Corp.'s spectacular
tumble into bankruptcy.
In addition, the consolidated lawsuits alleged that UtiliCorp
sought to take advantage of its energy trading arm's depressed
stock price by offering to reacquire the shares for 0.6896
shares of UtiliCorp stock -- or $20.68 per share -- when the
offer was made, and $18 per share when the exchange was
commenced.
However, in ruling in the Company's favor, Judge Gaitan found
that the plaintiffs' damages expert had failed to take into
account other possible reasons for the stock's decline,
including Enron's troubles and overall trends in the energy
industry.
To prevail, the plaintiffs needed to prove that Aquila's alleged
misrepresentation in essence its unfulfilled pledge to appoint
an audit committee led to the stock's decline after the
misrepresentation was revealed. Judge Gaitan noted that there
was no decline in the stock's price after Aquila disclosed on
December 3, 2001, the day after Enron filed for bankruptcy that
it had not appointed the committee.
Aquila's lawyer, Michael J. Thompson of Blackwell Sanders Peper
Martin, told the City Star "Yes, the price declined before
UtiliCorp bought back the stock, but our expert said the decline
was fallout from Enron and had nothing to do with what the
plaintiffs were claiming was fraud."
Commenting on the decision, Aquila's interim general counsel,
Chris Reitz told the City Star "Following months of discovery by
the plaintiffs, Judge Gaitan agreed with us that the claims
asserted by the class-action lawyers should be dismissed."
An attorney for the plaintiffs, Robert Wallner of Milberg Weiss
Bershad & Schulman in New York, said he had not had a chance to
read Judge Gaitan's order and thus declined to comment, the City
Star reports.
Judge Gaitan's ruling came a day after the Kansas Corporation
Commission released part of a report concluding that Aquila
would have to sell most or all of the Company to reduce its debt
to an acceptable level. The Company said it disagreed with the
findings and would file a response on March 31.
BIOGEN IDEC: Securities, Derivative Suits Filed Over Drug Recall
----------------------------------------------------------------
Biogen Idec faces a class action suit in Massachusetts Federal
Court, alleging the Company's senior management misled investors
about the safety of its recalled drug Tysabri, the MarketWatch
reports.
According to its most recent regulatory filing, the suit names
Chairman William Rastetter and Chief Executive James Mullen as
defendants and was brought on behalf of shareholders who
purchased Biogen stock from February 18 to February 25. The
Company also added in its filing that a similar class action
suit had been filed in Massachusetts on March 10. The
Cambridge, Massachusetts-based Company though also stated in the
same filing, "The Company believes that the actions are without
merit and intends to contest them vigorously."
Court documents reveal that Biogen had shocked the biotechnology
world on February 28 when it announced its newly approved drug
Tysabri, hailed by some as a breakthrough in the treatment of
multiple sclerosis, was being pulled from the market. The
Company reasoned that it decided to pull out the drug after a
patient in a Phase III clinical trial testing a combination
therapy of Tysabri and Avonex, Biogen's other MS treatment, had
contracted a potentially deadly brain infection called
multifocal leukoencephalopathy, or PML, with a second case
suspected. The second case was confirmed several days later by
that time the first PML patient has since died. Because PML is
extremely rare, the Company elected to suspend all sales and
clinical trials of Tysabri until it can determine what triggered
the disease.
On February 17, Biogen reported that a Phase III clinical trial
testing Tysabri as a solo therapy yielded promising results in
MS patients, with few serious side effects. The next day
however, top executives say they were told about Tysabri's
troubles. Since Tysabri's withdrawal, the Company has had
several shareholder suits filed against it, whose statuses were
recently updated after the filing. The Company also stated that
on March 4, a shareholder derivative action was filed in a
Delaware state court charging, amongst other things, that the
Company's officers breached their fiduciary duties to
shareholders and improperly awarded bonuses to upper management.
The suit also charges Mr. Rastetter, a Biogen director, and
Biogen former general counsel, Thomas Bucknum, with insider
trading. In addition, a similar case was also filed in the same
court on March 14, according to Biogen. The Company also
stated that it is also facing two other derivative shareholder
suits in California State Court, naming the Company, its board
and its chief financial officer as defendants.
CALIFORNIA: Judge Dismisses Cedar Fire Lawsuit, Allows Re-filing
----------------------------------------------------------------
Superior Court Judge Lillian Lim threw out half of the claims in
a lawsuit alleging the county and California's Department of
Forestry were negligent in their handling of the Cedar Fire, but
the judge did leave door open for re-filing, the 10News.com
reports.
The judge threw out a portion of the suit that alleged the CDF
didn't properly staff the Ramona Airport facility where its
firefighting tanker planes are based. Nathan Northup, chief
deputy county counsel, told 10News.com Judge Lim also dismissed
the part of the suit that claimed firefighters should have
doused the flames more quickly. Under state law, the county and
firefighters have immunity from liability when battling a
disaster. The Cedar Fire, the state's largest-ever wildfire
killed 15 people, burned more than 2,200 homes and resulted in
more than $400 million in damages.
In dismissing the suit, Judge Lim told attorneys for the
plaintiffs that they could re-file their negligence claims
within 14 days, if they could present a legal argument that
would overcome the barring of liability claims against public
agencies.
The suit also alleged that the county's 911 dispatcher promised
but failed to send emergency personnel during the earliest hours
of the fire. An attorney for the plaintiffs, Mark Grotefeld,
told 10News that there was "coordination that didn't take place
with respect to some of the turf wars that were occurring at the
early stages of the fire."
CALIFORNIA: Judge Finalizes Settlement For ACLU's Williams Case
---------------------------------------------------------------
A judge finalized the historic settlement in a class action
education lawsuit brought by the American Civil Liberties Union
and other organizations.
Advocates say that the lawsuit is a critical first step toward
ensuring all California public schools have the means to provide
equitable learning conditions for all students.
Judge Peter J. Busch commended all parties involved in the case
and said it was "valiantly fought." "I hope it ended up, as I
believe it has, to be a benefit for the state and the schools
and I hope this is beginning of better days," Judge Busch adds.
Williams v. California, which was originally filed in May 2000,
charged the state with reneging on its constitutional obligation
to provide students with the bare essentials necessary for
education including sufficient instructional materials, adequate
learning facilities and qualified teachers.
"This is the final judgment in a truly historic case," commented
Catherine Lhamon, an attorney for the ACLU of Southern
California. "The courage of the students involved will lead to
tremendous improvements in our public schools. It is an
invaluable first step to improving the educational system in
California."
Both the lead plaintiff Eli Williams, who is now a senior at
Balboa High School in San Francisco, and his father, Pastor
Sweetie Williams, stood by as the judge finalized the
settlement.
"It's an honor to be part of this," said Pastor Williams. "After
seeing the conditions in my son's school, I decided to get
involved and it's about time we take a real solution to a real
problem."
The settlement also established a statewide accountability
system to ensure that students have access to adequate
materials, safe classrooms and trained teachers. Additional
funding was established to begin to accomplish these goals,
including:
(1) $800 million over four years to make emergency repairs
in the lowest performing schools (those ranked in the
bottom 3 deciles under the statewide Academic
Performance Index [API]);
(2) nearly $139 million for new instructional materials for
students attending schools in the bottom two API
deciles;
(3) $20 million to inventory facilities needs in the
lowest performing schools, and
(4) $30 million to build county superintendents' capacity
to oversee low performing schools and fund emergency
repairs in those schools next year.
More information is available at http://www.decentschools.com.
CATHOLIC CHURCH: KY Diocese, Plaintiffs Move Back To Negotiation
----------------------------------------------------------------
In a recently concluded hearing, Special Judge John Potter, the
overseer of the class action lawsuit that accuses the Diocese of
Covington of covering up a half-century of priestly sexual abuse
has ordered both sides back to the bargaining table, The
Kentucky Post reports. The judge told the diocese to bring
representatives of both its insurance carriers to the next
settlement negotiations. He said that both sides should have a
"representative authorized to settle."
Some legal observers point out that Judge Potter's comments at
the end of a 90-minute hearing were the first indication that
all may not be well with negotiations, which is being mediated
by Kenneth Feinberg, the special master for the September 11th
Victims Compensation Fund. In documents recently filed in the
lawsuit, attorneys on both sides had indicated that they were
close to a settlement, thus they asked Judge Potter to delay the
trial scheduled for April 11.
"While there are issues that remain to be resolved, the parties
believe that those issues ultimately can be resolved, and that a
settlement will be accomplished with some additional work," said
the document, signed by attorneys Carrie Huff for the diocese
and Robert Steinberg for plaintiffs.
In the hearing Judge Potter indicated that the talks might be on
the verge of breaking up. According to him, he has stayed away
from the negotiations, hoping the issues could be settled
without him, and because of Mr. Feinberg's reputation in
mediating hard cases, the Post reports.
One of the problems, the judge pointed out is that neither side
knows exactly how many people may have a claim against the
diocese. Mr. Steinberg even said, "There could be thousands;
there could be hundreds."
Mr. Steinberg has objected to an exact counting now, saying to
do so could violate the rights of those who have a stake but may
not be willing to come forward until a settlement is reached.
Anyway, he insisted, "I don't think that's a factor in what's
holding up a settlement."
At one point in the hearing, Judge Potter asked if Mr. Feinberg
should attend the next negotiating session, or whether a new
mediator should be brought in. He ordered Mr. Steinberg to call
Mr. Feinberg to determine his schedule. After a recess and a
private phone call, Mr. Steinberg told Judge Potter that Mr.
Feinberg was willing to attend the next session, but only if
both sides had confidence in him. Mr. Steinburg added he had
confidence that Mr. Feinberg was a fair an impartial mediator,
the Kentucky Post reported.
The key claim in the lawsuit is that bishops knew that priests
and other employees of the diocese were sexually assaulting
children, teenagers and others, but allowed it to happen and
then helped cover it up. The diocese denies the cover-up claim
and maintains it was simply handling the situation according to
the dictates of the times. More recently though the diocese has
stated that it wanted to reach individual settlements with the
victims.
Before he stepped down from the bench and the case, former Boone
Circuit Judge Jay Bamberger granted the class-action status over
the strenuous objections of the diocese. It is the first of its
kind class-action lawsuit in the country. The "class" in the
class action is defined as anyone, who was sexually abused or
mistreated by priests or other representatives of the Covington
diocese from 1956 until the present. After Judge Bamberger's
retirement, Judge Potter, a retired circuit judge from
Louisville who works as a special judge, was assigned to the
case. The next hearing is set for April 8.
CHECKPOINT SYSTEMS: Consumers Launch Antitrust Suits in PA, NJ
--------------------------------------------------------------
Checkpoint Systems, Inc. faces several class actions filed in
connection with the jury decision in the ID Security Systems
Canada Inc. litigation. The purported class action complaints
generally allege a claim of monopolization and are substantially
based upon the same allegations as contained in the ID Security
Systems Canada Inc. case (Civil Action No. 99-CV-577).
On August 1, 2004, the Company and ID Security Systems Canada
Inc. entered into a settlement agreement effective July 30,
2004, pursuant to which the Company agreed to pay $19.95
million, in full and final settlement of the claims covered by
the litigation. This settlement was accrued in the second
quarter of 2004. Payment in full was made on August 5, 2004.
On August 1, 2002, a civil action was filed in United States
District Court for the Eastern District of Pennsylvania,
designated as Civil Action No. 02-6379(ER) by plaintiff Diane
Furs, Inc. t/a Diane Furs against Checkpoint Systems, Inc. and
served on August 21, 2002. On August 21, 2002, a Notice of
Substitution of Plaintiff and Filing of Amended Complaint was
filed by the plaintiff, and the named plaintiff was changed to
Medi-Care Pharmacy, Inc.
On August 2, 2002, a civil action was filed in the United States
District Court, District of New Jersey (Camden) designated as
Docket No. 02-CV-3730(JEI) by plaintiff Club Sports
International, Inc., d/b/a Soccer CSI against Checkpoint
Systems, Inc. and served on August 26, 2002.
On October 2, 2002, a civil action was filed in the United
States District Court, District of New Jersey (Camden)
designated as Docket No. 02-CV-4777(JBS) by plaintiff Baby Mika,
Inc. against Checkpoint Systems, Inc. and served on October 7,
2002.
On October 23, 2002, a civil action was filed in the United
States District Court, District of New Jersey (Camden)
designated as Docket No. 02-CV-5001(JEI) by plaintiff Washington
Square Pharmacy, Inc. against Checkpoint Systems, Inc. and
served on November 1, 2002. On October 18, 2002, The United
States District, District of New Jersey (Camden) entered an
Order staying the proceedings in the Club Sports International,
Inc. and Baby Mika, Inc. cases referred to above. In accordance
with the Order, the Stay will also apply to the Washington
Square Pharmacy, Inc. case referred to above. In addition, the
Medi-Care Pharmacy, Inc. case, referred to above, will be
voluntarily dismissed, and it has been re-filed in New Jersey
and is included in the Stay Order. As a result of the
settlement of the litigation with ID Security Systems Canada
Inc. described above, an application can be made to the Court to
dissolve the Stay Order at this time.
On November 13, 2002, a civil action was filed in the United
States District Court, District of New Jersey (Camden)
designated as Docket No. 02-CV-5319(JEI) by plaintiff 1700
Pharmacy, Inc. against Checkpoint Systems, Inc. and served on
November 15, 2002.
On December 30, 2002, a civil action was filed in the United
States District Court, District of New Jersey (Camden)
designated as Docket No. 02-CV-6131(JEI) by plaintiff Medi-Care
Pharmacy, Inc. against Checkpoint Systems, Inc. and served on
January 3, 2003.
Both the 1700 Pharmacy, Inc. case and the Medi-Care Pharmacy,
Inc. case were consolidated with the previously mentioned cases
and are included in the October 18, 2002 Stay Order referred to
above.
DST SYSTEMS: Faces Lawsuit Over Joint Venture in AL State Court
---------------------------------------------------------------
DST Systems, Inc., one of its corporate joint venture
affiliates, and the co-owner of the venture face a class action
lawsuit filed in the Circuit Court of Jefferson County, Alabama.
The complaint alleges that amounts due from the joint venture
affiliate to the plaintiff and any other parties that may
eventually join the putative class action were incorrectly
calculated. The complaint does not identify the extent of the
alleged monetary damages for the named plaintiff or the class as
a whole. The Company is not a party to the joint venture
affiliate's customer contracts.
ENTERGY CORPORATION: Appeal of Council Resolution on Suit Heard
---------------------------------------------------------------
The Orleans Parish State Court in Louisiana heard oral arguments
on plaintiffs' appeal of the New Orleans City Council resolution
on the complaint filed against Entergy Corporation, Entergy New
Orleans, Entergy Services and Entergy Power on behalf of all
Entergy New Orleans ratepayers.
In April 1999, a group of ratepayers filed the complaint, which
seeks treble damages for alleged injuries arising from the
defendants' alleged violations of Louisiana's antitrust laws in
connection with certain costs passed on to ratepayers in Entergy
New Orleans' fuel adjustment filings with the City Council. In
particular, plaintiffs allege that Entergy New Orleans
improperly included certain costs in the calculation of fuel
charges and that Entergy New Orleans imprudently purchased high-
cost fuel from other Entergy affiliates. Plaintiffs allege that
Entergy New Orleans and the other defendant Entergy companies
conspired to make these purchases to the detriment of Entergy
New Orleans' ratepayers and to the benefit of Entergy's
shareholders, in violation of Louisiana's antitrust laws.
Plaintiffs also seek to recover interest and attorneys' fees.
Entergy filed exceptions to the plaintiffs' allegations,
asserting, among other things, that jurisdiction over these
issues rests with the City Council and FERC. In March 2004, the
plaintiffs supplemented and amended their petition. If
necessary, at the appropriate time, Entergy will also raise its
defenses to the antitrust claims. The suit in state court has
been stayed by stipulation of the parties pending a decision by
the City Council in the proceeding discussed in the next
paragraph.
Plaintiffs also filed this complaint with the City Council in
order to initiate a review by the City Council of the
plaintiffs' allegations and to force restitution to ratepayers
of all costs they allege were improperly and imprudently
included in the fuel adjustment filings. Testimony was filed on
behalf of the plaintiffs in this proceeding asserting, among
other things, that Entergy New Orleans and other defendants have
engaged in fuel procurement and power purchasing practices and
included costs in Entergy New Orleans' fuel adjustment that
could have resulted in Entergy New Orleans customers being
overcharged by more than $100 million over a period of years.
Hearings were held in February and March 2002.
In February 2004, the City Council approved a resolution that
resulted in a refund to customers of $11.3 million, including
interest, during the months of June through September 2004. The
resolution concludes, among other things, that the record does
not support an allegation that Entergy New Orleans' actions or
inactions, either alone or in concert with Entergy or any of its
affiliates, constituted a misrepresentation or a suppression of
the truth made in order to obtain an unjust advantage of Entergy
New Orleans, or to cause loss, inconvenience or harm to its
ratepayers. The plaintiffs have appealed the City Council
resolution to the state court in Orleans Parish.
ENTERGY CORPORATION: Plaintiffs Appeal Customer Suit Dismissal
--------------------------------------------------------------
Plaintiffs appealed the District Court of Chambers County,
Texas's dismissal of a class action filed against Entergy
Corporation by Texas residents on behalf of a purported class
apparently of the Texas retail customers of Entergy Gulf States
who were billed and paid for electric power from January 1, 1994
to the present. The other named defendants are:
(1) Entergy Services,
(2) Entergy Power,
(3) Entergy Power Marketing Corporation,
(4) Arkansas Electric Cooperative Corporation and
(5) Entergy Arkansas
Entergy Gulf States is not a named defendant, but is alleged to
be a co-conspirator. The court has granted the request of
Entergy Gulf States to intervene in the lawsuit to protect its
interests.
Plaintiffs allege that the defendants implemented a "price
gouging accounting scheme" to sell to plaintiffs and similarly
situated utility customers higher priced power generated by the
defendants while rejecting and/or reselling to off-system
utilities, less expensive power offered and/or purchased from
off-system suppliers and/or generated by the Entergy system. In
particular, plaintiffs allege that the defendants manipulated
and continue to manipulate the dispatch of generation so that
power is purchased from affiliated expensive resources instead
of buying cheaper off-system power.
Plaintiffs estimate that customers in Texas were charged at
least $57 million above prevailing market prices for power.
Plaintiffs seek actual, consequential and exemplary damages,
costs and attorneys' fees, and disgorgement of profits. In
September 2003, the Entergy defendants removed the lawsuit to
the federal court in Galveston, and in October 2003, filed a
pleading seeking dismissal of the plaintiffs' claims. In
October 2003, the plaintiffs filed a motion to remand the case
to state court. In January 2004, the federal court determined
that it did not have jurisdiction over the subject matter of the
lawsuit, and remanded the case to the state district court in
Chambers County. In November 2004, the state district court
dismissed the case based on a lack of jurisdiction. The
plaintiffs have initiated appellate proceedings in the Court of
Appeals.
ENTERGY CORPORATION: Plaintiffs Appeal Suit Certification Denial
----------------------------------------------------------------
Plaintiffs appealed the state court in Beaumont County, Texas'
denial of class certification for a lawsuit filed against
Entergy Corporation, Entergy Gulf States, Entergy Services and
Entergy Technology Holding Company (together "Entergy").
In 1998, a group of property owners initially filed a class
action suit in the state court in Jefferson County state court
in Texas on behalf of all property owners in each of the states
throughout the Entergy service area who have conveyed easements
to the defendants. The lawsuit alleged that Entergy installed
fiber optic cable across their property without obtaining
appropriate easements. The plaintiffs sought actual damages for
the use of the land and a share of the profits made through use
of the fiber optic cables and punitive damages.
The state court petition was voluntarily dismissed, and the
plaintiffs commenced a class action suit with the same claims in
the United States District Court in Beaumont, Texas. Both sides
have filed motions for summary judgment, which were heard by the
court in late 2001. In 2003, the district judge ruled that as a
matter of law, all of the Texas easements permit Entergy to
utilize the fiber for their own communications. Further, the
court ruled that approximately two-thirds of the Texas easements
allow Entergy to use the fiber for external or third party
communications. Entergy believes that any damages suffered by
the remaining one-third plaintiff landowners are negligible and
that there is no basis for the claim seeking a share of profits,
the Company said in a disclosure to the Securities and Exchange
Commission.
In April 2004, the trial court entered an order denying the
plaintiffs' request that this case be certified as a class. The
plaintiffs have appealed this ruling to the United States Court
of Appeals for the Fifth Circuit.
ENTERGY LOUISIANA: LA Appeals Court Hears Certification Appeal
--------------------------------------------------------------
The Louisiana Fifth Circuit Court of Appeals held oral arguments
on Entergy Louisiana's appeal of class certification for the
lawsuit filed against it, Entergy Services, Entergy Technology
Holding Company and Entergy Technology Company, by several
property owners in the state court in St. James Parish,
Louisiana.
The suit, filed on behalf of all property owners in Louisiana
who have conveyed easements to the defendants, alleges that
Entergy installed fiber optic cable across their property
without obtaining appropriate easements. The plaintiffs seek
actual damages for the use of the land and a share of the
profits made through use of the fiber optic cables and punitive
damages. Entergy removed the case to federal court in New
Orleans; however, the District Court remanded the case back to
state court.
Entergy appealed this ruling but the United States Court of
Appeals for the Fifth Circuit recently denied this appeal. In
December 2003, the trial court held a hearing to determine if a
class should be certified. On February 18, 2004, the trial
court entered an order certifying this matter as a class.
ENTERGY LOUISIANA: Appeals Trial Court Ruling in LA Injury Suit
---------------------------------------------------------------
Entergy Louisiana appealed a trial court's judgment finding it
responsible for 40% of the $8.8 million settlement for the
consolidated class action filed against it and Murphy Oil
Corporation.
Residents located near the Murphy Oil Refinery in Meraux,
Louisiana filed several lawsuits in state court in St. Bernard
Parish, Louisiana against Murphy Oil, the Company, and others
for injuries they allegedly suffered as a result of an explosion
at the refinery in June 1995. The lawsuits were consolidated
and a class of plaintiffs was certified.
Plaintiffs alleged, among other things, that an electrical fault
at an Entergy Louisiana substation contributed to causing the
explosion. Murphy Oil filed a cross-claim against Entergy
Louisiana based on the same allegation, in which Murphy Oil
seeks recovery of any damages it has paid to the plaintiffs.
Claiborne P. Deming, who became a director of Entergy
Corporation in 2002, is the President and Chief Executive
Officer of Murphy Oil.
Murphy Oil and other defendants settled with the plaintiffs for
$8.8 million, but the Company did not participate in the
settlement. After trial for the remaining parties in the
proceeding, the judge issued a decision finding the Company 40%
responsible and awarding monetary damages, which total
approximately $11 million with interest against it. The Company
appealed the judgment to the Court of Appeals.
ENTERGY LOUISIANA: Abandonment Evaluated For LA Ratepayers Suit
---------------------------------------------------------------
Abandonment issues are being evaluated in a complaint filed
against Entergy Louisiana in the State Court in East Baton Rouge
Parish by a group of ratepayers.
The complaint was filed in May 1998 on behalf of all Entergy
Louisiana ratepayers. The plaintiffs allege that the formula
ratemaking plan authorized by the LPSC has allowed Entergy
Louisiana to earn amounts in excess of a fair return. The
plaintiffs seek, among other things, a declaratory judgment that
the formula ratemaking plan is an improper ratemaking practice;
and a refund of the amounts allegedly charged in excess of
proper ratemaking practices. This case has not been active.
ENTERGY NEW: Bifurcated Ratepayer Suit Proceedings Set June 2005
----------------------------------------------------------------
Hearing on the first part of the bifurcated proceeding in the
ratepayer complaint against Entergy New Orleans is set for June
2005 in the Orleans Parish State Court in Louisiana.
In April 1998, a group of residential and business ratepayers
filed a complaint against the Company on behalf of all
ratepayers in New Orleans. The plaintiffs allege that Entergy
New Orleans overcharged ratepayers by at least $300 million
since 1975 in violation of limits on Entergy New Orleans' rate
of return that the plaintiffs allege were established by
ordinances passed by the Council in 1922. The plaintiffs seek,
among other things, a declaratory judgment that such franchise
ordinances have been violated; and a remand to the Council for
the establishment of the amount of overcharges plus interest.
The Company denied the charges in a filing with the Securities
and Exchange Commission. The Company asserted that it has
charged only those rates authorized by the City Council in
accordance with applicable law. In May 2000, a court of appeal
granted the Company's exception to jurisdiction in the case and
dismissed the proceeding. The Louisiana Supreme Court denied
the plaintiff's request for a writ of certiorari. The
plaintiffs then commenced a similar proceeding before the
Council.
The plaintiffs and the advisors for the Council each filed their
first round of testimony in January 2002. In their testimony,
the plaintiffs allege that Entergy New Orleans earned in excess
of the legally authorized rate of return during the period 1979
to 2000 and that Entergy New Orleans should be required to
refund between $240 million and $825 million to its ratepayers.
In the testimony submitted by the Council advisors, the advisors
allege that Entergy New Orleans has not earned in excess of its
authorized rate of return for the period at issue and that no
refund is therefore warranted. A hearing scheduled in June 2002
was canceled.
In December 2003, the Council Advisors filed a motion in the
Council proceedings to bifurcate the hearing in this matter,
such that the effect of the provision of the 1922 Ordinance in
setting lawful rates would be considered first. Only if it is
determined that this provision establishes a limitation, would
the remaining issues be reached. The motion to bifurcate was
granted by the City Council in April 2004, and a hearing on the
first part of the bifurcated proceeding is currently scheduled
to begin in June 2005.
HEWLETT-PACKARD: Consumers Launch Fraud Suits in TX, OK Courts
--------------------------------------------------------------
Hewlett-Packard Company continues to face several class actions
filed in various Texas and Oklahoma state courts, alleging that
the Company and Compaq Corporation sold computers containing
floppy disk controllers that fail to alert the user to certain
floppy disk controller errors.
One suit, styled "Alvis v. HP," is a nationwide defective
product consumer class action that was filed in state court in
Jefferson County, Texas by a resident of Eastern Texas in April
2001. In February 2000, a similar suit captioned "LaPray v.
Compaq" was filed in state court in Jefferson County, Texas.
The suits alleged that the Company's failure to alert consumers
to defects in computers with floppy disk controllers caused
their computers to incur data loss or data corruption. Both
suits seek injunctive relief, declaratory relief, unspecified
damages and attorneys' fees.
In July 2001, a nationwide class was certified in the LaPray
case, which the Beaumont Court of Appeals affirmed in
June 2002. In May 2004, the Texas Supreme Court reversed the
certification of the nationwide class in the LaPray case and
remanded the case to the trial court. The trial court has not
set a new class certification hearing. A class certification
hearing was held on July 1, 2003 in the Alvis case, and the
court granted plaintiffs' motion to certify a nationwide class
action. The Company filed an appeal of that certification with
the 9th Court of Appeals in Beaumont, Texas, which heard oral
arguments on the Company's appeal and received a supplemental
briefing based upon the LaPray opinion from the Texas Supreme
Court. On August 31, 2004, the 9th Court of Appeals in Texas
reversed the lower court's decision certifying a nationwide
class and remanded the case to the trial court. A class
certification hearing was held on January 6, 2005. On January
12, 2005 the court notified the parties that it will certify a
Texas-wide class action for injunctive relief only.
On June 4, 2003, two suits, styled "Barrett v. HP" and "Grider
v. Compaq" were each filed in state court in Cleveland County,
Oklahoma, with factual allegations similar to those in Alvis and
LaPray. The newer complaints seek, among other things, specific
performance, declaratory relief, unspecified damages and
attorneys' fees. On November 5, 2003, the court heard HP's
motion to dismiss "Barrett v. HP," and "Grider v. Compaq," which
motion was subsequently denied. On December 22, 2003, the court
entered an order staying Barrett and Grider cases until the
conclusions of the Alvis and LaPray actions. On July 28, 2004,
the court lifted the stay in Grider, but took under advisement
the plaintiff's motion to lift the stay in Barrett. A class
certification hearing in Grider is currently scheduled for April
19, 2005.
On November 5, 2004, "Scott v. HP" > was filed in state court in
San Joaquin County, California, with factual allegations similar
to those in LaPray, and on January 27, 2005, "Jurado v. HP" was
filed in state court in San Joaquin County, California, with
factual allegations similar to those in Alvis. The complaints
in Scott and Jurado seek a California-only class certification,
injunctive relief, unspecified damages (including punitive
damages), restitution, costs and attorneys' fees. In addition,
the Civil Division of the Department of Justice, the General
Services Administration Office of Inspector General and other
Federal agencies are conducting an investigation of allegations
that HP and Compaq made or caused to be made false claims for
payment to the United States for computers known by HP and
Compaq to contain defective parts or otherwise to perform in a
defective manner relating to the same alleged floppy disk
controller errors. HP agreed with the Department of Justice to
extend the statute of limitations on its investigation until
June 6, 2005. HP is cooperating fully with this investigation.
HEWLETT-PACKARD: IL Court Refuses To Dismiss Consumer Lawsuits
--------------------------------------------------------------
The State Court of Madison County, Illinois refused to dismiss
two class actions filed against Hewlett-Packard Company, Compaq
Corporation and Intel Corporation, styled "Neubauer, et al. v.
Intel Corporation, Hewlett-Packard Company, et al., and
"Neubauer, et al. v. Compaq Computer Corporation."
The suits allege that the defendants misled the public by
suppressing and concealing the alleged material fact that
systems that use the Intel Pentium 4 processor are less powerful
and slower than systems using the Intel Pentium III processor
and processors made by a competitor of Intel. The court in the
HP action has certified an Illinois class as to Intel but denied
a nationwide class, and proceedings have been stayed pending
resolution of plaintiffs' appeal of this decision. The
plaintiffs seek unspecified damages, restitution, attorneys'
fees and costs and certification of a nationwide class against
the Company and Compaq. The class action certification against
Compaq has been postponed. In each action, the Company and
Compaq have filed motions to dismiss the cases, which the court
has denied. The Company and Compaq also have filed forum non
conveniens motions, which are pending.
Another suit, styled "Skold, et al. v. Intel Corporation and
Hewlett-Packard Company," was initially filed in state court in
Alameda County, California to which the Company was joined on
June 14, 2004, based upon factual allegations similar to those
in the Neubauer suits. On February 22, 2005, the parties
stipulated to transfer this case to state court in Santa Clara
County, California. The plaintiffs seek unspecified damages,
restitution, attorneys' fees and cost and certification of
nationwide class.
HEWLETT-PACKARD: Consumers Launch CA Lawsuits V. "Smart Chips"
--------------------------------------------------------------
Hewlett-Packard Company faces two lawsuits filed in California
State Courts, over the Company's use of "smart chips" that
allegedly signal to the customer that certain inkjet printer
cartridges need to be replaced before they are really empty, and
include an expiration date that is allegedly not documented in
marketing materials provided to consumers.
The first suit, styled "Tyler v. HP," was filed in state court
in Santa Clara, California on February 17, 2005, alleging that
the Company engaged in wrongful business practices (including
unfair competition, deceptive advertising, fraud and breach of
warranty) relating to its use of "smart chips." On February 22,
2005, a lawsuit captioned "Obi v. HP," was filed in state court
in Los Angeles, California with similar allegations. These
actions seek class certification (nationwide, California or
both), restitution, damages (including enhanced damages),
injunctive relief, interest, costs and attorneys' fees.
HEWLETT-PACKARD: Parties Seek Transfer of Stock Suit To CA Court
----------------------------------------------------------------
Parties sought to transfer the securities class action filed
against Hewlett-Packard Company and its former Chairman and
Chief executive officer Carleton Fiornia to the United States
District Court in California.
The suit, styled "Hanrahan v. Hewlett-Packard Company and
Carleton Fiorina," was filed on November 3, 2003, in the United
States District Court for the District of Connecticut on behalf
of a putative class of persons who sold common stock of the
Company during the period from September 4, 2001 through
November 5, 2001. An amended complaint was filed on March 7,
2005.
The lawsuit seeks unspecified damages and generally alleges that
the Company and Ms. Fiorina violated the federal securities laws
by making statements during this period which were misleading in
failing to disclose that Walter B. Hewlett would oppose the
proposed acquisition of Compaq by the Company prior to Mr.
Hewlett's disclosure of his opposition to the proposed
transaction. A motion to transfer the action to federal court
in California is pending, and no lead plaintiff has yet been
appointed.
HEXCEL CORPORATION: CA Court Approves Antitrust Suit Settlement
---------------------------------------------------------------
The United States District Court for the Central District of
California, Western Division approved the settlement for the
class action filed against Hexcel Corporation and others, styled
"Thomas & Thomas Rodmakers v. Newport Adhesives and Composites,
Case No. CV-99-07796-GHK (CTx)."
Similar purported class action lawsuits were filed on behalf of
purchasers (excluding government purchasers) of carbon fiber and
carbon prepreg in the United States from the named defendants
from January 1, 1993 through January 31, 1999. The lawsuits
were brought following published reports of a Los Angeles
federal grand jury investigation of the carbon fiber and carbon
prepreg industries, an earlier Class Action Reporter story
(April 1,2004) reports.
In these lawsuits, plaintiffs allege violations of Section 1 of
the Sherman Antitrust Act for alleged price-fixing. In
September 1999, these lawsuits were consolidated by the Court
into a case captioned "with all related cases ordered dismissed.
On August 26, 2004, the Company entered into a stipulation of
settlement with the plaintiffs in the suit for $7.0 million.
The settlement was court-approved on January 31, 2005 and the
Company has paid the settlement amount in full.
ILLINOIS: I-LAW Launches Campaign To Revive Tort Reform Bills
-------------------------------------------------------------
In the wake of the state senate's failure to move a package of
tort reform bills out of committee on March 17, the Illinois
Lawsuit Abuse Watch (I-LAW) has launched a statewide campaign to
resuscitate attention on a package of dying tort reform bills,
the Madison County Record reports.
Steve Schoeffel, I-LAW executive director told the County
Record, "We're making it clear today to all legislators that
Illinoisans are sick of lawsuits and we will be watching very
closely in the weeks ahead." He further states that his efforts
would stretch into northern Illinois where reform has met
resistance among Democratic lawmakers and that in addition he
would also encourage concerned citizens to demand passage of
reform bills from their legislators.
He added, "The lawsuit epidemic that is getting worse in
Illinois has created a healthcare crisis that harms patients,
drives away doctors and limits access to healthcare services in
too many parts of our state. We're going to be watching what
goes on (in Springfield) for the rest of the session."
Without a promised committee vote, medical malpractice and class
action reform bills were swept from the Senate Judiciary
Committee into the Executive Committee by Sen. Emil Jones (D-
Chicago) signaling the Democrat Party's unwillingness to pass
reform. Among the casualties was Senate Bill 150, which would
cap non-economic damages in medical malpractice cases at
$250,000 and limit claims against hospitals to $500,000.
Mr. Schoeffel told the County Record that Metro-East
legislators, including Sens. Bill Haine (D-Alton), James
Clayborne (D-Belleville), State Reps. Jay Hoffman (D-
Collinsville) and Dan Beiser (D-Alton), will be "watched
closely" to see if they push for reform. "We also need our
lawmakers to pass class action reform legislation because
personal injury lawyers are abusing class action lawsuits as a
way to make big money for themselves. Personal injury lawyers
recruit unharmed plaintiffs to create massive class action
lawsuits in an attempt to win big money," he said.
Mr. Schoeffel also expressed his desire to send out action
alerts, putting up billboards, organizing rallies and airing
radio ads. He also told the County Record, "These legislators
are in a position to have a significant impact on the passage of
meaningful reform this year."
ILLINOIS: Judge Rules 1995 Chicago Fire Exam As Discriminatory
--------------------------------------------------------------
In a ruling that opens the door for more than 6,000 plaintiffs
to seek damages from the city of Chicago, a federal judge has
ruled that a 1995 firefighter entrance exam discriminated
against black applicants, the Associated Press reports.
Filed by black applicants, the lawsuit had alleged that the
exam's cutoff point for "well-qualified" applicants created a
pool of 1,782 candidates that had five times more whites than
blacks.
In her ruling, U.S. District Judge Joan Gottschall stated that
the city knew the cutoff point was meaningless and would
disproportionately exclude blacks from the pool of candidates
most likely to be hired. She further stated that the test "could
not distinguish between those who were qualified for the
position of (firefighter) and those who were not." Judge
Gottschall has scheduled a status hearing for April 26 for the
next phase of the case, which will determine damages for the
more than 6,000 class-action plaintiffs.
Clyde Murphy, attorney for the plaintiffs, told AP that the
verdict was an important victory for the applicants who scored
between 65 and 88 and fell in the "qualified" category. The city
has been hiring candidates in that category for the Fire Academy
since 2002, when it ran out of "well-qualified" applicants who
scored 89 and above. According to Judge Gottschall, that fact
by itself ultimately invalidated the test, the cutoff score and
the city's defense.
Mr. Murphy also told AP that he would seek damages on behalf of
the qualified black applicants, including millions of dollars in
back pay that would have gone to the 132 firefighting positions
that would have gone to blacks in a fair system.
Jennifer Hoyle of Chicago's law department told AP officials
were disappointed with the judge's decision. She also said, "We
said all along the test was related to job performance, and it
was a valid measure of job performance, which was a conclusion
the judge disagreed with."
The African American Firefighters League originally filed the
lawsuit in 1998, after two rulings from the U.S. Equal
Employment Opportunity Commission said the city was twice as
likely to hire white applicants than black applicants. More
importantly the EEOC also said in those rulings that the 1995
exam was an example of discrimination. Although the creator of
the exam recommended the city set the cutoff at 65 to decrease
the disparity against black applicants, the city argued it
selected the cutoff score to fulfill its staffing needs for the
next three to five years.
Judge Gottschall cited in her ruling that the city knew the
cutoff would disproportionately exclude blacks from the
selection pool but did so anyway for "administrative
convenience." She also pointed out that the city failed to prove
that the test measured skills necessary to train firefighters,
AP reports.
JSC SURGUT: Denies Payment To Harvard College, Shareholders
-----------------------------------------------------------
Sowood Capital Management LP, which oversees an international
class action arbitration against Russian oil and gas Company JSC
Surgutneftegaz ("Surgut") commenced in June 2004 by President
and Fellows of Harvard College, Provided the following comments
on the decision by Surgut's Board of Directors to recommend
payment of only a portion of the 2004 dividend to which holders
of its preferred shares are entitled:
"Although this dividend is larger than that paid in the past,
Surgut continues to avoid its full contractual obligations."
said Jeff Larson, managing director of Sowood Capital Management
LP. "We demand that Surgut pay the full dividend due preferred
shareholders and compensate them immediately for past dividends
owed to them."
"There is no legitimate reason for Surgut's continued and
blatant disregard of its obligations to pay dividends to
preferred shareholders, particularly in light of the Company's
strong performance, its substantial cash position and the
sustained high price of oil. Arbitration against Surgut appears
to be the only way to retrieve the full amount of dividends owed
to Harvard and other preferred shareholder class members," said
Robert Skinner, a partner of Ropes & Gray LLP who represents
Harvard in the arbitration.
On June 29, 2004, President and Fellows of Harvard College filed
a demand with the American Arbitration Association in New York
on behalf of holders of American Depositary Receipts (ADRs)
representing Surgut preferred shares. The demand alleges that,
for at least each of the previous six years, Surgut
intentionally declared dividends far below the amount mandated
by the Company charter, and the prospectus used in offering its
securities. Surgut has done so by manufacturing an artificially
low "net profit" figure unrelated to the Company's actual net
profits that it recognized and reported for tax and accounting
purposes.
Surgut has challenged Harvard's right to pursue arbitration,
despite a contractual term in the ADRs providing this right.
This issue is currently pending before a federal judge in New
York. If the arbitration proceeds, a three-person international
panel will arbitrate Harvard's claims. The panel's ruling will
be enforceable in courts of more than 100 countries through an
international treaty, the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards.
Harvard's investment in Surgut was made through Harvard
Management Company, the principal investment advisor to the
Harvard University Endowment. In July 2004, the team that has
overseen Harvard's investment in Surgut formed Sowood Capital
Management LP. Sowood continues to act on Harvard's behalf in
this matter.
For more details, contact Todd Fogarty of Kekst and Company by
Phone: +1-212-521-4854 or by E-mail: todd-fogarty@kekst.com.
MERCK & CO.: Vioxx Product Liability Lawsuits Coordinated in LA
---------------------------------------------------------------
Merck & Co., Inc. faces litigation coordinated in the United
States District Court for the Eastern District of Louisiana,
involving product liability claims against the Company's Vioxx
product.
On September 30, 2004, the Company announced a voluntary
worldwide withdrawal of Vioxx, its arthritis and acute pain
medication. The Company's decision, which was effective
immediately, was based on new three-year data from a
prospective, randomized, placebo-controlled clinical trial,
APPROVe (Adenomatous Polyp Prevention on Vioxx). The trial,
which was stopped, was designed to evaluate the efficacy of
Vioxx 25 mg in preventing the recurrence of colorectal polyps in
patients with a history of colorectal adenomas and to further
assess the cardiovascular safety of Vioxx. In this study, there
was an increased relative risk for confirmed cardiovascular
events, such as heart attack and stroke, beginning after 18
months of treatment in the patients taking Vioxx compared to
those taking placebo.
As a result, federal and state product liability lawsuits
involving individual claims, as well as several putative class
actions have been filed against the Company with respect to
Vioxx. As of January 31, 2005, the Company has been served or
is aware that it has been named as a defendant in approximately
850 lawsuits, which include approximately 2,425 plaintiff groups
alleging personal injuries resulting from the use of Vioxx.
Certain of these lawsuits include allegations regarding
gastrointestinal bleeding, cardiovascular events, thrombotic
events or kidney damage. The Company has also been named as a
defendant in approximately 90 putative class actions alleging
personal injuries or seeking:
(1) medical monitoring as a result of the putative class
members' use of Vioxx,
(2) disgorgement of certain profits under common law unjust
enrichment theories, and/or
(3) various remedies under state consumer fraud and fair
business practice statutes, including recovering the
cost of Vioxx purchased by individuals and third-party
payors such as union health plans
All of the actions are collectively referred to as the "Vioxx
Product Liability Lawsuits." The actions filed in the state
courts of California and New Jersey, respectively, have been
transferred to a single judge in each state for coordinated
proceedings. In addition, the Company filed a motion with the
Judicial Panel on Multidistrict Litigation (JPMDL) seeking to
transfer to a single federal judge and coordinate for pretrial
purposes all federal cases alleging personal injury and/or
economic loss relating to the purchase or use of Vioxx; several
plaintiffs in certain Vioxx Product Liability Lawsuits pending
in federal court have made similar requests.
On February 16, 2005, the JPMDL granted the motions to transfer
all Vioxx Product Liability Lawsuits pending in federal courts
nationwide into one Multidistrict Litigation (MDL) for
coordinated pre-trial proceedings. The MDL has been transferred
to the United States District Court for the Eastern District of
Louisiana before District Judge Eldon E. Fallon.
The next monthly pretrial status conference shall be held on
Thursday, April 28, 2005, at 9:00 a.m. in the Courtroom of Judge
Eldon E. Fallon in the United States District Court Eastern
District of Louisiana, 500 Poydras Street, Room C-456, New
Orleans, LA 70130, Phone: (504) 589-7545, Fax: (504) 589-6966
The suit is styled "In re Vioxx Product Liability Litigation,
MDL 1657." Representing the plaintiffs is Russ M. Herman,
Herman, Herman, Katz & Cotlar, LLP, 820 O'Keefe Ave., Suite 100
New Orleans, LA 70113, Phone: 504-581-4892, Fax: 504-561-6024,
E-mail: rherman@hhkc.com. Representing the defendants is
Phillip Wittmann, Stone Pigman Walther Wittmann, LLC, 546
Carondelet St., New Orleans, LA 70130, Phone: 504-581-3200, Fax:
504-581-3361 E-mail: pwittmann@stonepigman.com
MERCK & CO.: Shareholder Fraud Lawsuits Coordinated in NJ Court
---------------------------------------------------------------
Merck & Co., Inc. faces various shareholder class actions, now
coordinated in the United States District Court for the District
of New Jersey, styled "In re Vioxx Shareholder Litigation,"
under Judge Stanley R. Chesler.
A number of purported class action lawsuits were filed in late
2003 and early 2004 by several shareholders in the United States
District Court for the Eastern District of Louisiana naming as
defendants the Company and several current or former officers
and directors of the Company. These cases have been
consolidated. After the announcement of the withdrawal of
Vioxx, the Company was named as a defendant in additional
purported securities class action lawsuits filed in federal
courts in New Jersey, Pennsylvania and Louisiana.
These actions allege that the defendants made false and
misleading statements regarding Vioxx in violation of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934,
including with respect to the withdrawal of Vioxx, and seek
unspecified compensatory damages and the costs of suit,
including attorneys' fees. Plaintiffs request certification of
a class of purchasers of Company stock during various periods
between May 21, 1999 and October 29, 2004.
In addition, two shareholders filed an individual securities
action in the United States District Court for the Central
District of Illinois seeking compensatory damages and costs.
Certain complaints include allegations under Sections 11, 12 and
15 of the Securities Act of 1933 that certain officers and
directors made incomplete and misleading statements in a
registration statement and certain prospectuses filed in
connection with the Merck Stock Investment Plan, a dividend
reinvestment plan. All of the actions discussed in this
paragraph are collectively referred to as the "Vioxx Securities
Lawsuits." Several plaintiffs have dismissed their complaints
without prejudice. As of January 31, 2005, a total of 14 Vioxx
Securities Lawsuits were pending in various federal courts.
In addition to these shareholder actions, since the announcement
of the withdrawal of Vioxx, putative class actions have been
filed against the Company in the United States District Court
for the Eastern District of Louisiana and in the United States
District Court for the District of New Jersey (the "Vioxx ERISA
Lawsuits" and, together with the "Vioxx Securities Lawsuits,"
the "Vioxx Shareholder Lawsuits") on behalf of certain of the
Company's current and former employees who are participants in
certain of the Company's retirement plans asserting claims under
the Employee Retirement Income Security Act (ERISA). The
lawsuits make similar allegations to the allegations contained
in the Vioxx Securities Lawsuits. As of January 31, 2005, a
total of 11 Vioxx ERISA Lawsuits were pending.
In October 2004, the plaintiff in one of the Vioxx ERISA
Lawsuits filed a motion with the JPML to transfer to a single
federal judge and coordinate for pretrial purposes all of the
Vioxx ERISA Lawsuits. In November 2004, the Company responded
to that motion and filed its own motion seeking coordination of
all of the Vioxx Shareholder Lawsuits. On February 23, 2005,
the JPML granted the motions to transfer all "Vioxx Shareholder
Lawsuits" pending in federal courts nationwide into one MDL for
coordinated pre-trial proceedings.
The suit is styled "Merck & Co., Inc., Securities Derivative and
ERISA Litigation, case no. 3:05-cv-01151-SRC-TJB," filed in the
United States District Court for the District of New Jersey
under Judge Stanley R. Chesler. Representing the Company is
Edward Cerasia II, PROSKAUER ROSE LLP, One Newark Center, 18th
floor, Newark NJ 07102-5211, Phone: 973 274-3200, E-mail:
ecerasia@proskauer.com; and John N. Poulous HUGHES HUBBARD &
REED LLP, 101 Hudson St. Suite 3601, Jersey City, NJ 07302-3918,
Phone: (201) 536-9220, E-mail: poulos@hugheshubbard.com.
Representing the plaintiffs is Irma Lois Bradley-Klein,
LEMMON LAW FIRM, LLC, 650 Poydras St. Suite 2335, New Orleans,
LA 70130, Phone: (985) 783-6789, Fax: (985) 783-1333.
MERCK & CO.: Newbury Resident Lodges NH's First Suit V. Vioxx
-------------------------------------------------------------
Joyce DiMauro, a Newbury resident has filed what appears to be
New Hampshire's first lawsuit against the withdrawn pain-
relieving drug Vioxx, the Associated Press reports. The suit
was filed against Merck & Co. Inc., in U.S. District Court. Ms.
DiMauro, however has asked that the case be transferred to a
federal court in New Orleans, where a judge has been assigned to
handle hundreds of individual and class-action suits filed over
the once-popular prescription pain relieving drug.
As previously reported in the October 4, 2004 edition of the
Class Action Reporter, Merck & Co. withdrew its Vioxx arthritis
pain medicine because of an increased risk of heart attack and
stroke. In withdrawing the drug, Merck stated that new data from
a three-year clinical trial revealed that patients taking Vioxx
for more than 18 months have double the risk of heart attack and
stroke, compared to those taking a placebo.
Merck also said that the data showing the increased risk of
cardiovascular complications began 18 months after patients
began taking Vioxx at a 25-milligram dose once daily. Peter S.
Kim, president of Merck research labs, even said at a recent
press conference that 7.5 patients out of 1,000 taking the
placebo had a heart attack or stroke after 18 months, while 15
patients out of 1,000 taking Vioxx had a heart attack or stroke
during the same 18 months.
Ms. DiMauro along with other plaintiffs allege that Merck
learned through such studies that Vioxx seemed to raise risks of
heart attack, high blood pressure and stroke, but kept quiet and
later downplayed the findings. According to court documents,
Ms. DiMauro was prescribed Vioxx for back and neck pain, though
it doesn't specify when. She took 50 milligrams daily until
suffering a heart attack on March 21, 2002, the suit adds, AP
reports.
Meanwhile, in New Orleans, U.S. District Judge Eldon Fallon
presided over the first pretrial hearing on the Vioxx lawsuits
and began by urging lawyers for both sides to think about a
settlement. Judge Fallon's first task will be to appoint a
"plaintiffs steering committee" of lawyers, which will take
depositions and gather documents for evidence. Judge Fallon said
he plans to appoint the committee before the next hearing on
April 28. Drug industry experts' estimates of Merck's potential
liability in the Vioxx cases range between $4 billion and $30
billion.
NORTH CAROLINA: AG Cooper Proposes Legislation V. Identity Theft
----------------------------------------------------------------
North Carolinians will have more protection from identity
thieves if a bill proposed today by state legislators becomes
law, Attorney General Roy Cooper said in a statement.
"All an identity thief needs are a few key pieces of information
about you to steal your identity, ruin your credit and even get
you arrested," said Attorney General Cooper. "We must make it
harder for thieves to get their hands on this sensitive personal
information in the first place."
A measure introduced by Senator Dan Clodfelter and backed by the
Attorney General would continue the fight against identity theft
by strengthening safeguards for personal information, requiring
businesses and government to better protect sensitive financial
information about people, and giving consumers more tools to
fight theft of their information. Other sponsors of the bill
include Senators Alberston, Dannelly, Dalton, Garrou, Graham,
Hagan, Hoyle, Purcell, Rand, Soles, Swindell, Thomas and
Weinstein.
"Identity theft happens when a criminal steals some piece of
personal information about you, such as your social security
number or date of birth, and uses it to commit financial fraud
in your name. Some identity thieves even give their victim's
name to police where they're arrested for committing crimes,
causing innocent people to be charged with crimes they didn't
commit," he said in a statement.
Approximately 286,000 North Carolinians have their identity
stolen each year. A typical identity theft victim spends on
average $800 and 175 hours over 23 months to clean up his or her
credit and erase $18,000 in fraudulent charges. The national
cost of identity theft annually is $55 billion, including
billions of dollars in losses to businesses, the statement
continued.
To cut down on identity theft in North Carolina, the proposed
law would:
(1) Minimize the use of Social Security Numbers as
identification numbers and restrict the sale and
display of SSNs;
(2) Give consumers the right to place a security "freeze"
on their credit reports. Placing a security freeze on
your report would prohibit credit reporting agencies
from releasing any information about you to new
creditors without your approval, making it difficult
for an identity thief to open an account or obtain
credit in your name;
(3) Provide protection for credit header information. The
term "credit header" refers to the personal identifying
information in a consumer's credit file, including a
consumer's name, address, telephone number, Social
Security Number, mother's maiden name, and birth date.
The unrestricted use and sharing of this information
can put consumers at serious risk of identity theft;
(4) Make sure that businesses that collect personal
identifying information about their customers dispose
of records properly, so that identity thieves can't
retrieve information from discarded files that have
been carelessly thrown away;
(5) Require businesses to notify their customers if a
security breach may have compromised their personal
information and placed them at risk of identity theft,
such as what occurred recently at ChoicePoint and
LexisNexis;
(6) Make sure that state and local governments collect
personal identifying information, especially Social
Security Numbers, only when essential and that they do
a better job of safeguarding the information that they
collect. The measure would prohibit government
agencies from unnecessarily collecting or sharing
people's Social Security Numbers.
The Identity Theft Protection Act of 2005 marks the latest
effort in a comprehensive attack the Attorney General first
launched against identity theft two years ago, which has
included more help and training for law enforcement, a campaign
to raise public awareness of this growing crime, and working
with business to protect private information and fight fraud.
Attorney General Cooper's three-pronged attack has been lauded
by the Federal Trade Commission as a national model.
At his urging, North Carolina has previously taken steps to beef
up its laws against identity theft, making the crime a higher-
class felony and outlawing trafficking in stolen identities. A
measure that became law last year and will apply to all
retailers by July 1 requires businesses to stop printing the
entire credit card numbers on consumers' receipts, making the
receipts worthless to identity thieves.
"Identity thieves are robbing more people of their good names
and costing businesses and consumers billions of dollars each
year," said Attorney General Cooper. "We've made strides in
fighting this crime, and this bill will give us more ways to
thwart ID thieves."
For more details, contact Noelle Talley, Public Information
Officer, N.C. Department of Justice, Phone: (919) 716-6484 or
(919) 716-6413, Fax: (919) 716-0803, E-mail: ntalley@ncdoj.com.
OM GROUP: Reaches Agreement To Settles 2002 Shareholder Lawsuits
----------------------------------------------------------------
OM Group, Inc. (NYSE: OMG) reached an agreement in principle to
settle the shareholder class-action lawsuits filed in November
2002 relating to the decline in the Company's stock price after
the third-quarter 2002 earnings announcement.
Final settlement is subject to execution of a definitive
agreement between the Company and the lead plaintiff as well as
court approval. The Company recorded a reserve of $84.5 million
at December 31, 2003 with respect to these lawsuits and related
shareholder derivative lawsuits, which is proposed to be payable
$76 million in cash and $8.5 million in common stock of the
Company. The Company expects that up to $30 million of insurance
proceeds will be available for contribution to the resolution of
the cases, but no insurance proceeds will be recorded by the
Company until received. Included in the $84.5 million reserve is
$2 million for legal costs associated with the pending
derivative litigation.
The Company also confirmed that it is on track to file its 2003
Form 10-K with the Securities and Exchange Commission before
March 31, 2005. The Company provided an update on the decrease
in retained earnings resulting from the previously announced
restatement of its financial statements. The overall decrease in
retained earnings as of September 30, 2003 is expected to be
approximately $63 million, which is higher than the previous
estimate due to finalization of income tax adjustments for the
restatement periods. In its last update on February 28, 2005,
the Company indicated that its $35 million estimate was subject
to final tax adjustments. The pre-tax restatement adjustments
have changed by only approximately $1 million since that time.
R. Louis Schneeberger, chief financial officer, stated, "This
change is due primarily to two factors. First, the tax benefits
for the restatement adjustments applicable to the Company's U.S.
subsidiaries cannot be recognized. Second, the tax expense
related to discontinued operations was higher than expected. The
tax changes do not impact the Company's cash position or its
future cash flows."
Commenting on the pending filing of the Company's 2003 Form 10-K
and the agreement to settle the class-action lawsuits, Frank E.
Butler, interim chief executive officer, said, "By resolving
these two critical issues, we can now focus solely on providing
superior products and services to our customers while creating
steadily increasing value for our stockholders. Likewise, we
remove two topics of conversation that have been part of our
discussions with chief executive officer candidates and
prospective new members of our board of directors."
The Company also revealed that it has scheduled a conference
call and live audio broadcast on the Web for 10 a.m. (ET) on
April 5, 2005. At that time, management will discuss the
litigation settlement agreement, its 2003 Form 10-K filing and
provide a review of its 2004 fourth quarter and full year
unaudited financial results, which will be released before the
market opens on April 5th. Investors may access the live audio
broadcast by logging on to
http://www.omgi.com/investorrelations/webcasts.htm.
OM GROUP: Settles Detroit P&F's Securities Complaint For $82.5M
---------------------------------------------------------------
The law firm of Bernstein Litowitz Berger & Grossmann LLP
("BLB&G"), and its client the Policemen and Firemen Retirement
System of the City of Detroit ("Detroit P&F") revealed that the
OM Group, Inc. ("OMG" or "The Company") and certain of its
former officers have agreed to settle all claims against them in
In re OM Group, Inc. Securities Litigation. Under the
settlement, OMG will pay $82.5 million, $74 million of which
will be paid in cash and $8.5 million of which will be paid in
unrestricted stock.
The case continues to be prosecuted against Ernst & Young LLP
("E&Y"), who were OMG's outside auditors during the Class
Period. Trial in this action against E&Y is scheduled to begin
on November 15, 2005.
On March 28, 2003, the Court appointed the Detroit P&F as Lead
Plaintiff in the class action and BLB&G and Climaco, Lefkowitz,
Peca, Wilcox & Garofoli Co., L.P.A. as Co-Lead Counsel for the
Class. Lead Plaintiff filed a Consolidated Amended Class Action
Complaint on behalf of the Class on April 4, 2003.
This securities fraud class action was brought on behalf of
purchasers of the common stock of OM Group, Inc. during the
period January 27, 2000 through and including October 30, 2002
and is currently pending in the United States District Court for
the Northern District of Ohio, before the Honorable Donald C.
Nugent, U.S. District Court Judge and the Honorable Nancy A.
Vecchiarelli, U.S. Magistrate Judge.
In July 2003, the Court denied in full Defendants' Motion to
Dismiss the action. Lead Plaintiff subsequently conducted
extensive fact discovery and, on June 30, 2004, filed a Second
Amended Consolidated Class Action Complaint. The Second Amended
Complaint extended the Class Period by approximately two years,
named E&Y as a defendant, and added substantive new allegations
against Defendants OMG, OMG's former CEO and Chairman James P.
Mooney, OMG's former CFO James M. Materna and OMG's former CFO
Thomas R. Miklich. Defendants OMG, Materna and Mooney answered
the Complaint while Defendants Miklich and E&Y moved to dismiss
the Complaint. On October 25, 2004, the Court denied in part and
granted in part Defendant Miklich's Motion to Dismiss. On
January 14, 2005, the Court denied in full Defendant E&Y's
Motion to Dismiss.
OMG is a self-described "international producer and marketer of
value-added, metal-based specialty chemicals" and has been "the
global cobalt leader for more than 50 years." OMG refines,
manufacturers and sells the metals in the Company's inventory.
As such, its metals inventory is critical to the Company's
business. In particular, cobalt is one of the principal metals
used in OMG's products and is therefore an important component
of the Company's inventory.
"Our client and we are very pleased that we were able to obtain
this very substantial recovery for injured shareholders, after a
long, hard fight. We look forward to recovering additional
monies from OMG's auditors," said BLB&G partner Daniel Berger,
lead trial attorney for the Class.
PENNSYLVANIA: New Hearing On Document Copying Fees Case Ordered
---------------------------------------------------------------
Pennsylvania's Superior Court appellate division recently told a
judge that he must get involved in deciding whether the
Burlington County Clerk's office is charging too much for
citizens to make copies of official documents, the Burlington
County Times reports.
The recently released decision states that Superior Court
Assignment Judge John A. Sweeney must hold a hearing to decide
whether Eastampton builder Joseph Dugan is right when he argues
the county clerk's fee of 50 cents a copy is too high. Mr.
Dugan, who had filed his suit in 2003 as a class action, also
challenged the $1 fee charged at the Camden County Clerk's
Office. He is currently seeking a refund of alleged overcharges.
Mr. Dugan's lawyer, Donald M. Doherty Jr. told the Burlington
County Times, Mr. Dugan regularly makes large numbers of copies
of records kept at clerks' offices. The clerks in Burlington and
Camden counties are the only ones in the state who charge more
than 25 cents at their self-service copiers, he alleges.
Burlington County Assignment Judge John A. Sweeney originally
dismissed the case early last year, but the appellate division
decided to hear arguments in Mr. Dugan's appeal. Also contained
in the decision is an opinion by Judge Joseph Lisa, which said
that the case must be returned to Judge Sweeney to determine a
proper fee when the copy is made by a citizen and not by the
clerk. The opinion further states that the state's Open Public
Records Act and a resident's general common law right to access
may both apply to the records kept at the clerks' offices.
The state's Open Public Records Act establishes a fee schedule
for copying government records that allows a charge of 75 cents
per page for up to 10 copies, 50 cents per page for 11 to 20
copies and 25 cents per page for more than 20 copies. However,
The fee levied at the Burlington County Clerk's Office is 50
cents for every page copied regardless of the number of pages.
Court papers indicated that the common law right to access
government records calls for a copying fee equal to only the
actual cost of providing the copy, which would be well below 25
cents at the clerk's offices.
The defendants argued though that the state law that governs
clerks' offices allows them to set a copying fee as high as $2.
At the end of the hearing of the opinion, Mr. Doherty praised
the appellate division's decision to return the case to Judge
Sweeney.
SECURITY CAPITAL: DE Court Orders Shareholder Suits Consolidated
----------------------------------------------------------------
The Court of Chancery of the State of Delaware, in and for New
Castle County ordered consolidated three class actions filed
against Security Capital Corporation, and the members of its
board of directors, in connection with an offer made by Brian
Fitzgerald, the Company's Chairman of the Board, President and
Chief Executive Officer and the controlling person of the
Company's majority stockholder, CP Acquisition, L.P. No. 1 (CP-
1) to acquire by merger all of the outstanding Class A Common
Stock and Common Stock, other than shares held by Mr.
Fitzgerald, CP-1 and certain other persons, at a price of $10.60
per share.<
Each of the complaints alleges that the defendants breached
their fiduciary duties to the putative class and that the then
proposed CP-1 offer was unfair, inadequate and not the result of
arm's-length negotiations. Each complaint seeks an injunction
against the proposed merger or, if the merger is consummated,
the rescission of the merger, as well as money damages,
attorneys' fees, expenses and other relief. Plaintiffs have
submitted their first request for the production of documents.
ST. JUDE: Working To Resolve Litigation Against Silzone Devices
---------------------------------------------------------------
St. Jude Medical, Inc. is working to resolve all litigation
relating to its January 2000 recall of its Silzone devices,
after receiving information from a clinical study that patients
with a Silzone valve had a small, but statistically significant,
increased incidence of explant due to paravalvular leak compared
to patients in that clinical study with non-Silzone heart
valves.
Subsequent to the Company's voluntary recall, the Company has
been sued in various jurisdictions and now has cases pending in
the United States, Canada, the United Kingdom, Ireland and
France by some patients who received a Silzone device. Some of
these claims allege bodily injuries as a result of an explant or
other complications, which they attribute to the Silzone
devices. Others, who have not had their device explanted, seek
compensation for past and future costs of special monitoring
they allege they need over and above the medical monitoring all
replacement heart valve patients receive. Some of the lawsuits
seeking the cost of monitoring have been initiated by patients
who are asymptomatic and who have no apparent clinical injury to
date. Some of the cases involving Silzone products have been
settled, some have been dismissed and others are on going. Some
of these cases, both in the United States and Canada, are
seeking class-action status.
Eight original class-action complaints have been consolidated
into one case seeking certification of two separate classes.
The litigation is now pending in the United States District
Court for the District of Minnesota. The first complaint
seeking class-action status was served upon the Company on April
27, 2000 and all eight original complaints seeking class-action
status were consolidated into one case on October 22, 2001. One
proposed class in the consolidated complaint seeks injunctive
relief in the form of medical monitoring. A second class in the
consolidated complaint seeks an unspecified amount of monetary
damages. A third class in the consolidated complaint seeks an
unspecified amount of monetary damages under Minnesota's
Consumer Protection Statutes.
Eighteen individual cases are pending as of February
25, 2005 in the multidistrict litigation (MDL). The first
individual complaint that was transferred to the MDL court was
served upon the Company on November 28, 2000, and the most
recent individual complaint that was transferred to the MDL
court was served upon the Company on September 15, 2004. The
complaints in these cases each request damages ranging from $10
thousand to $120.5 million and, in some cases, seek an
unspecified amount.
Twenty-six individual state court suits involving 34 patients
are pending as of February 25, 2005. The cases are venued in the
following states: Florida, Minnesota, Missouri, Texas and
Wyoming. The first individual state court complaint was served
upon the Company on March 1, 2000 and the most recent individual
state court complaint was served upon the Company on January 13,
2005. The complaints in these cases each request damages ranging
from $50 thousand to $100 thousand and, in some cases, seek an
unspecified amount.
A lawsuit seeking a class action for all persons residing in the
European Economic Union member jurisdictions who have had a
heart valve replacement and/or repair procedure using a product
with Silzone coating was filed in Minnesota state court and
served upon the Company on February 11, 2004. The complaint
seeks damages in an unspecified amount for the class, and in
excess of $50 thousand for the representative plaintiff
individually. The complaint also seeks injunctive relief in the
form of medical monitoring. The Company has filed motions in the
state court seeking to have the claims dismissed, and these
motions are presently under consideration by the judge handling
this and other Silzone cases in Ramsey County, Minnesota.
Two cases involving 70 patients were dismissed in Texas by the
trial court on April 25, 2002 and February 14, 2003,
respectively; the plaintiffs in these two cases have appealed.
The first of these cases was served upon the Company on October
29, 2001, and the second case was served upon the Company on
November 8, 2002. The complaints in these cases request damages
in an unspecified amount.
Four class-action cases involving five named plaintiffs and one
individual case involving two named plaintiffs are pending as of
February 25, 2005 (cases are venued in the provinces of British
Columbia, Ontario and Quebec); in Ontario and Quebec the courts
have certified class actions. The first complaint in Canada was
served upon the Company on August 18, 2000, and the most recent
Canadian complaint was served upon the Company on March 14,
2004. The complaints in these cases each request damages ranging
from 1.5 million to 500 million Canadian dollars.
One case involving one plaintiff is pending as of February 25,
2005 and the Particulars of Claim in this case was served on
December 21, 2004. The plaintiff in this case requests damages
of approximately $365 thousand. One case involving one
plaintiff is pending as of February 25, 2005. The complaint in
this case was served on December 30, 2004, and seeks an
unspecified amount in damages. One case involving one plaintiff
is pending as of February 25, 2005. This case was initiated by
way of an Injunctive Summons to Appear that was served on
November 3, 2004. The plaintiff in this case is requesting
damages in excess of 3 million Euros.
In 2001, the U.S. Judicial Panel on Multi-District Litigation
ruled that certain lawsuits filed in U.S. federal district court
involving products with Silzone coating should be part of Multi-
District Litigation proceedings under the supervision of U.S.
District Court Judge John Tunheim in Minnesota. As a result,
actions in federal court involving products with Silzone coating
have been and will likely continue to be transferred to Judge
Tunheim for coordinated or consolidated pretrial proceedings.
Judge Tunheim ruled against the Company on the issue of
preemption and found that the plaintiffs' causes of action were
not preempted by the U.S. Food and Drug Act. The Company sought
to appeal this ruling, but the Appellate Court determined that
it would not review the ruling at this point in the proceedings.
Certain plaintiffs have requested Judge Tunheim to allow some
cases to proceed as class actions. In response these requests,
Judge Tunheim has issued several rulings concerning class action
certification. Although more detail is set forth in the orders
issued by the court, the result of these rulings is that Judge
Tunheim declined to grant class-action status to personal injury
claims, but granted class-action status for claimants from
seventeen states to proceed with medical monitoring claims, so
long as they do not have a clinical injury. The court also
indicated that a class action could proceed under Minnesota's
Consumer Protection statutes.
The Company has sought appeal of Judge Tunheim's s class
certification decisions, and in a September 2, 2004, order, the
appellate court indicated it would accept the appeal of Judge
Tunheim's certification orders. The issues have been briefed and
the parties are awaiting a date for oral argument concerning
this appeal. It is not expected that the appellate court will
complete its review and issue a decision concerning the appeal
of Judge Tunheim's rulings regarding class certification until
sometime in 2006.
In the meantime, the cases involving Silzone products not
seeking class-action status which are consolidated before Judge
Tunheim are proceeding in accordance with the scheduling orders
he has rendered. There are also other actions involving
products with Silzone coating in various state courts in the
United States that may or may not be coordinated with the
matters presently before Judge Tunheim.
On January 16, 2004, the court in Ontario, Canada, issued
further rulings certifying a class of Silzone patients in a
class-action suit against the Company. The Company sought leave
to appeal the Court's decision in this regard, but in a decision
issued on January 28, 2005, the request to appeal was rejected.
As a result, the class action in Ontario will proceed pursuant
to further scheduling orders that will be issued by the Ontario
court. The Court in the Province of Quebec has also certified a
class action in that jurisdiction.
The multidistrict litigation is styled "In re St. Jude Medical
Inc. Silzone Heart Valve Products Liability Litigation, case no.
0:01-md-01396-JRT-FLN," filed in the United States District
Court in Minnesota, under Judge John R Tunheim.
Representing the Company are:
(1) Steven E. Angstreich, Carolyn Lindheim, Levy Angstreich
Finney Baldante, Rubenstein & Coren, 10 Melrose Ave Ste
100, Cherry Hill, NJ 08003, Phone: 856-795-0303, Fax:
18567957447, E-mail: sangstreich@levyangstreich.com,
clindheim@levyangstreich.com
(2) James T. Capretz, Capretz & Associates, 5000 Birch St
Ste 2500, Newport Beach, CA 92660, Phone: 949-724-3000,
Fax: 949-757-2635, E-mail: jcapretz@capretz.com
(3) Joe D. Jacobson, Green Schaaf & Jacobson, PC, 7733
Forsyth Blvd Ste 700, St Louis, MO 63105, Phone: 314-
862-6800, Fax: 314-862-1606, E-mail:
jacobson@stlouislaw.com;
(4) Steven M. Kohn, Reed Smith - Oakland, 1999 Harrison St
Ste 2400, Oakland, CA 94612, Phone: 510-763-2000, Fax:
15102738832, E-mail: skohn@reedsmith.com
(5) Patrick Murphy, Murphy Law Office, 844 E Sahara Ave
Las Vegas, NV 89104, Phone: 702-259-4600, Fax:
17022594748
(6) Michael T. Nilan, Halleland Lewis Nilan Sipkins &
Johnson, 220 6th St S Ste 600 Mpls, MN 55402, Phone:
(612) 338-1838, Fax: 6123387858, E-mail:
mnilan@halleland.com
Representing the plaintiffs are J Gordon Rudd, Jr. of Zimmerman
Reed, 651 Nicollet Mall Ste 501, Mpls, MN 55402-4123, Phone:
(612) 341-0400, E-mail: jgr@zimmreed.com; and David E Stanley
Reed Smith - LA, 355 Grand Ave S Ste 2900, Los Angeles, CA
90071, Phone: 213-457-8000, Fax: 12134578080, E-mail:
dstanley@reedsmith.com.
ST. JUDE: Faces Symmetry Device Litigation in TN, MN, AR and PA
---------------------------------------------------------------
St. Jude Medical, Inc. faces litigation related to its Symmetry
Bypass System Aortic Connector, alleging that the device causes
bodily injury or might cause bodily injury. As of February 25,
2005, sixteen lawsuits are pending against the Company. In
addition, a number of persons have made a claim against the
Company involving the Symmetry device without filing a lawsuit.
The first lawsuit involving the Symmetry device as filed against
the Company on August 5, 2003, in the United States District
Court for the Western District of Tennessee, and the most
recently initiated lawsuit was served upon the Company on
September 24, 2004. The sixteen cases are venued in state court
in Minnesota, federal court for the District of Minnesota,
federal court in the Western District of Tennessee, federal
court in the Eastern District of Arkansas and federal court for
the Eastern District of Pennsylvania. Each of the complaints in
these cases request damages ranging from $50 thousand to $100
thousand and, in some cases, seek an unspecified amount.
Four of the sixteen cases are seeking class-action status. One
of the cases seeking class-action status has been dismissed, but
the dismissal is being appealed by the plaintiff. In a second
case seeking class action status, a Magistrate Judge has
recommended that the matter not proceed as a class action, and
the parties are presently awaiting the court to review the
Magistrate's decision. A third case seeking class action status
has been indefinitely stayed by the court, and is presently
inactive. It appears that the plaintiffs in those cases seeking
class-action status seek or will seek damages for injuries and
monitoring costs.
The Company's Symmetry device was cleared through a 510(K)
submission to the FDA, and therefore, is not eligible for the
defense under the doctrine of federal preemption that such suits
are prohibited. Given the Company's self-insured retention
levels under its product liability insurance policies, the
Company expects that it will be solely responsible for these
lawsuits, including any costs of defense, settlements and
judgments. During the third quarter of 2004, the number of
lawsuits involving the Symmetry device increased, and the number
of persons asserting claims outside of litigation increased as
well.
SYMBOL TECHNOLOGIES: NY Court Okays Securities Suit Settlement
--------------------------------------------------------------
The United States District Court for the Eastern District of New
York granted final approval to the settlement of the three
securities class actions filed against Symbol Technologies, Inc.
and certain of its former and current officers and directors.
One suit, styled "Pinkowitz v. Symbol Technologies, Inc., et
al.," was filed on behalf of purchasers of the Company's common
stock between October 19, 2000 and February 13, 2002, inclusive,
against the Company and certain members of its former management
and its former board of directors. The complaint alleged that
the defendants violated the federal securities laws by issuing
materially false and misleading statements throughout the class
period that had the effect of artificially inflating the market
price of the Company's securities.
Two other suits, styled "Hoyle v. Symbol Technologies, Inc., et
al." and "Salerno v. Symbol Technologies, Inc., et al.," were
filed in the same court against the Company and certain members
of the Company's former management and its former board of
directors. The Hoyle and Salerno complaints were brought on
behalf of a class of former shareholders of Telxon Corporation
("Telxon") who obtained the Company's common stock in exchange
for their Telxon stock in connection with the Company's
acquisition of Telxon in November 2000. The complaint alleges
that the defendants violated the federal securities laws by
issuing a Registration Statement and Joint Proxy Statement/
Prospectus in connection with the Telxon acquisition that
contained materially false and misleading statements that had
the effect of artificially inflating the market price of the
Company's securities.
On June 3, 2004, the Company announced its settlement of the
Pinkowitz, Hoyle and Salerno class action lawsuits. Under the
settlement, the Company agreed to pay to the class members an
aggregate of $1.75 million in cash and an aggregate number of
shares of common stock having a market value of $96.25 million,
subject to a minimum and maximum number of shares based upon the
volume-weighted moving average trading price of the Company's
common stock for the five day period immediately prior to the
Company's payment of the common stock to the class ("Determined
Price"). If the Determined Price is greater than $16.41 per
share, then the Company will issue 5,865.3 shares of its common
stock to the class. If the Determined Price is between $16.41
per share and $11.49 per share, then the Company will issue to
the class the number of shares of common stock equal to a market
value of $96.25 million divided by the Determined Price. If the
Determined Price is less than $11.49 per share, the Company will
issue 8,376.8 shares of its common stock to the class. The
settlement also provides that the Company has the right to pay
up to an additional $6.0 million in cash to reduce the number of
shares of its common stock that it is required to deliver in an
amount equal to the amount of additional cash divided by the
Determined Price. If there occurs any event that would lead to
the de-listing of the Company's common stock or its board of
directors recommends the approval of a tender offer or the
purchase of a majority of our common stock or the Determined
Price is less than $11.90 per share, then the lead counsel for
the plaintiffs can require the Company to place into escrow the
number of shares that would otherwise be payable to the class
and would have the right to sell all or any portion of the
escrowed shares and invest such proceeds until distribution to
the class. If the Company does not deliver its common stock as
required by the settlement agreement within the ten days of such
requirement, the lead counsel for the plaintiffs may terminate
the settlement agreement.
The court held a fairness hearing regarding the settlement on
October 4, 2004 and approved the fairness of the settlement by
an order entered on October 20, 2004. On November 17, 2004, the
Company delivered 586,500 shares, or 10% of the settlement
amount (at $16.41 per share), as satisfaction of the plaintiffs'
attorneys' fees, pursuant to the court's order. The Company
expects to deliver the balance of the shares required issued
under the settlement of 5,278.8 shares in the first half of
2005.
UNITED STATES: FAA Employees Officially Lodge Age-Bias Complaint
----------------------------------------------------------------
Disgruntled Federal Aviation Administration (FAA) employees have
officially filed an administrative complaint against the agency
alleging age discrimination, the Government Executive reports.
According to the employees' lawyer, Sarah Starrett, Tim O'Hara,
an agency employee and leader of the group of employees, is one
of the two "class agents" that are named in the complaint.
As previously reported in the January 4, 2005 edition of the
Class Action Reporter, under FAA's performance pay system, more
than 800 long-term employees are at the top of their pay band
and are not eligible for base salary increases. Those employees,
however, can receive annual awards for good performance.
Thousands of other FAA employees including air traffic
controllers are exempt from this rule because of union
agreements, or they already were above the maximum pay limit
when the rule on pay caps went into effect. Employees with
frozen base salaries called the different compensation
regulations unfair, and said they are losing thousands of
dollars in retirement benefits, locality pay increases and
overtime pay.
In a January 14 agency wide e-mail, however, FAA Administrator
Marion Blakey said she wants "compensation policies to be as
consistent as possible," but the agency will not take action on
the pay bands, because market surveys show that FAA workers are
paid more than their counterparts in the aviation industry, the
Government Executive reports.
For the past year, disgruntled workers have been represented and
organized by Mark Lash, an FAA manager in Oklahoma City. But Mr.
Lash has grown tired of the intense research and communications
work and he is passing his leadership role on to Tim O'Hara, a
FAA manager in Washington. In an earlier interview with the
Government Executive, Mr. Lash stated, "My hope had always been
that through increased awareness and pressure, the agency would
make the adjustments necessary to fix the inequity ... that
wasn't the case. This is a relay race, and I was ready to hand
off the baton."
Upon assuming the role, Mr. O'Hara had told the Government
Executive in an earlier interview that the affected employees
will file a class action suit against FAA, and he is planning to
issue a public call on February 1 for workers who are interested
in taking part in the legal action.
Mr. O'Hara, who has worked for the FAA for two decades, further
told the Government Executive that he "never expected to see my
name in a newspaper," or "bring a complaint against the agency."
He added, however, that the disparity in pay regulations angered
him and he doesn't believe the situation will be resolved unless
employees resort to legal action. Mr. O'Hara has already
received commitments from about 40 FAA employees.
Just recently, the issue has taken on extra importance as the
Defense and the Homeland Security departments adopt performance
pay and pay banding systems. Mr. O'Hara has said that personnel
officials should study the FAA's situation before designing
their own. According to him, he and other employees are seeking
back pay adjustments for this year and the two previous fiscal
years, adjustments to employees' retirement accounts,
compensation for lost interest as well as reimbursement for
money and effort used to start the legal proceedings.
Though expressing their understanding to the decision to file
the complaint, FAA would rather work toward extending the hard
capped pay bands to all employees, instead of unfreezing
salaries for the affected workers. Ms. Starrett said she
attached to the complaint a statement from FAA Administrator
Marion Blakey, which indicated that the agency would not
unfreeze the employees' salaries.
Mr. O'Hara further told the Government Executive that he did not
rule out the possibility of dialogue with the agency, but he
said is not overly hopeful. "We are in the administrative court
process; we can reconcile at any point, but so far, they've
shown no inclination to do so," he adds.
VODAFONE GROUP: Securities Settlement Hearing Set June 22, 2005
---------------------------------------------------------------
The law firms of Milberg Weiss Bershad & Schulman LLP, Weiss &
Lurie, and Schiffrin & Barroway, LLP reports that pursuant to
Rule 23 of the Federal Rules of Civil Procedure and an Order of
the Court, that the case known as In re Vodafone Group, Plc
Securities Litigation, 02 Civ. 7592 (AKH) has been certified as
a class action and that a settlement for $24,500,000 has been
proposed.
The suit was brought on behalf of a class consisting of "all
persons who purchased or otherwise acquired Vodafone Group PLC
ADSs (symbol: VOD US, CUSIP 92857W100) during the period between
March 7, 2001 and May 28, 2002, inclusive (the "Class").
A hearing will be held before the Honorable Alvin K. Hellerstein
in the United States Courthouse for the Southern District of New
York, 500 Pearl Street, New York, New York 10007, at 4:00 p.m.,
on June 22, 2005, to determine whether the proposed settlement
should be approved by the Court as fair, reasonable, and
adequate, and to consider the application of Plaintiffs' Counsel
for attorneys' fees and reimbursement of expenses.
For more details, contact Vodafone Securities Litigation
Settlement c/o Berdon Claims Administration LLC by Mail: P.O.
Box 9014, Jericho, NY 11753-8914 by Phone: (800) 766-3330 by
Fax: (516) 931-0810 or visit their Web site:
http://www.berdonllp.com/claimsOR William P. Fredericks, Esq.
of MILBERG WEISS BERSHAD & SCHULMAN LLP by Mail: One
Pennsylvania Plaza, New York, NY 10119-0165 by Phone:
(212) 594-5300 OR James E. Tullman, Esq. of WEISS & LURIE by
Mail: 551 Fifth Avenue, New York, NY 10176 by Phone:
(212) 682-3025 OR Stuart L. Berman, Esq. of SCHIFFRIN &
BARROWAY, LLP by Mail: Three Bala Plaza East, Suite 400, Bala
Cynwyd, PA 19004 by Phone: (610) 667-7706.
New Securities Fraud Cases
BRADLEY PHARMACEUTICALS: Stull Stull Files Securities Suit in NJ
----------------------------------------------------------------
The law firm of Stull, Stull & Brody initiated a class action
lawsuit in the United States District Court for the District of
New Jersey, against Bradley Pharmaceuticals, Inc. ("Bradley" or
the "Company") (NYSE:BDY), on behalf of purchasers of Bradley
securities between October 8, 2003 and February 25, 2005,
inclusive (the "Class Period"). Also included are all those who
acquired Bradley's shares in its December 10, 2003 equity
offering and/or its October 10, 2003 debt offering.
The complaint alleges that Bradley violated federal securities
laws by issuing false or misleading information. Specifically,
the Complaint alleges that Bradley was materially overstating
its financial results by engaging in improper accounting
practices. On February 28, 2005, Bradley announced that the
staff of the Securities and Exchange Commission ("SEC") is
conducting an informal inquiry to determine whether there have
been violations of the federal securities laws. In connection
with the inquiry, the SEC staff requested that Bradley provide
it with certain information and documents concerning issues
related to revenue recognition and capitalization of certain
payments. In light of the ongoing SEC staff inquiry and separate
counsel's review, Bradley announced that it will be delaying the
release of its 2004 earnings. In response to this disclosure,
Bradley stock fell from a close of $13.25 per share on February
25, 2005, to close at $9.75 per share on February 28, 2005, the
next trading day.
For more details, contact Tzivia Brody, Esq. of Stull, Stull &
Brody by Phone: 1-800-337-4983 by Fax: 212/490-2022 by E-mail
SSBNY@aol.com.
CELL THERAPEUTICS: Keller Rohrback Lodges Securities Suit in WA
---------------------------------------------------------------
The law firm of Keller Rohrback L.L.P. initiated a securities
fraud case in the United States District Court for the Western
District of Washington, on behalf of purchasers of Cell
Therapeutics Inc. ("CTI" or the "Company") (NASDAQ:CTIC)
securities between June 7, 2004 and March 4, 2005 (the "Class
Period") (the "Class Period").
Shareholders allege that CTI and certain of its officers and
directors issued a series of false and misleading statements
concerning two of the Company's cancer treatment products,
STELLAR 3 and XYOTAX, which caused the stock of CTI to trade at
inflated prices throughout the Class Period.
Specifically, Plaintiffs allege that Defendants CTI, Max Link,
the Company's Chairman, and James Bianco, the Company's
President, Chief Executive Officer and Director, with violations
of Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder. The Complaint
charges that the Company failed to disclose and misrepresented
these material adverse facts known to or recklessly disregarded
by the Defendants:
(1) that contrary to the Defendants' express and repeated
representations, the results of the STELLAR 3 trail
were not encouraging;
(2) that XYOTAX failed to boost survival for non-small cell
lung cancer;
(3) that XYOTAX failed to show greater survival benefit
than Taxol, the leading drug on the market; and
(4) that based on the results of the trial, the Company
would not be able to begin pre-launch activities and to
position itself to submit a new drug application for
XYOTAX.
For more details, contact Jen Veitengruber, Desper Leland or
Elizabeth Leland by Phone: 800/776-6044 by E-mail:
investor@kellerrohrback.com or visit their Web site:
http://www.SeattleClassAction.com.
CHOICEPOINT INC.: Milberg Weiss Lodges GA Securities Fraud Suit
---------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman LLP initiated a
securities fraud class action complaint in the United States
District Court for the Northern District of Georgia against
ChoicePoint, Inc. ("ChoicePoint" or the "Company"), Derek Smith,
Doug Curling, and Darryl Lemecha on behalf of purchasers of
ChoicePoint common stock (NYSE: CPS) between November 24, 2003
through March 3, 2005, inclusive (the "Class Period").
The Complaint alleges that defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder. Unbeknownst to the market until February
15, 2005, from approximately October 2003 through October 2004
criminals using "low-tech" methods had been able to access
thousands of records containing personal information maintained
by ChoicePoint. Throughout the Class Period, the Defendants made
material misrepresentations and/or omitted to make material
disclosures by falsely claiming that ChoicePoint had unique
capabilities and systems in place to enable the responsible use
of information while ensuring the protection of personal
privacy. Defendants also falsely claimed during the Class Period
that the theft of consumer data they recently announced was
unprecedented and that the Company welcomes national discussion
on how to ensure that information is used responsibly.
As the market learned in February 2005, ChoicePoint did not have
adequate controls in place to protect the privacy of the
information it compiled and sold. Defendants became aware of the
criminals' access of the Company's records in October of 2004.
Despite knowing of this serious threat to consumer privacy and
despite knowing that their representations about the security of
ChoicePoint's data were inaccurate, Defendants waited until
February 15 of this year to disclose any information about the
breach in Company security. As the market learned on March 2,
2005, a similar incident occurred five years ago resulting in
the disclosure of 7,000 records. Notwithstanding their
nondisclosure and misstatements, Defendants Smith and Curling
sold over eighteen million dollars of stock between the time
they discovered the criminals' access and their initial
disclosure of the breach of their system in February.
When Defendants belatedly acknowledged that the security of
ChoicePoint's database had been breached and when the truth
about Defendants' prior conduct and misrepresentations began to
emerge, the market's reaction to the disclosures was swift and
severe. Following these disclosures, the market price of
ChoicePoint's common stock dropped from a high of $47.95 per
share during the Class Period to as low as $37.65 per share on
March 4, 2005.
For more details, contact Steven G. Schulman by Mail: One
Pennsylvania Plaza, 49th fl., New York, NY, 10119-0165 by Phone:
(800) 320-5081 or by E-mail: sfeerick@milbergweiss.com OR Maya
Saxena or Joseph E. White III by Mail: 5200 Town Center Circle,
Suite 600, Boca Raton, FL 33486 by Phone: (561) 361-5000 by E-
mail: msaxena@milbergweiss.com or jwhite@milbergweiss.com or
visit their Web site: http://www.milbergweiss.com.
DELPHI CORPORATION: Berger & Montague Lodges MI Securities Suit
---------------------------------------------------------------
The law firm of Berger & Montague, P.C. initiated a class action
suit against Delphi Corporation ("Delphi" or the "Company")
(NYSE: DPH) and certain of its officers, in the United States
District Court for the Eastern District of Michigan on behalf of
all persons or entities who purchased Delphi securities from
April 12, 2000 through March 3, 2005 (the "Class Period").
The complaint alleges that defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder by the Securities and Exchange
Commission.
Specifically, the complaint alleges that throughout the Class
Period the Company failed to disclose and misrepresented the
following material adverse facts, among others:
(1) that the Company's improper accounting for off-balance
sheet transactions in the amount of $200 million, and
financing activities of $20 million in 2000, caused the
Company to overstate cash flow by 82%, requiring a $220
million restatement;
(2) pre-tax income for 2000 was overstated by approximately
$100 million as a result of 'round trip' transactions
whereby the Company bought and sold inventory to the
same third party in an effort to "smooth" or manipulate
earnings; and
(3) the Company improperly accounted for Rebate
Transactions in 2001 causing it to overstate income by
$61 million.
Delphi is the target of two SEC investigations. As announced on
March 4, 2005, an internal investigation undertaken by Delphi in
response to these SEC investigations has uncovered serious
accounting failures at Delphi that resulted in the reporting of
materially false financial statements throughout the Class
Period. The Company's Audit Committee has now cautioned
investors that they cannot rely on any of Delphi's financial
statements for the last four years and that financial statements
will have to be restated.
On March 4, 2005, the Company concluded in essence that, based
on its preliminary findings, Delphi executives used 'roundtrip'
transactions or sham sales of assets, improper deferral of
expenses, and other improper accounting maneuvers to inflate
reported pretax earnings by a combined total of $166 million for
the years 1999 to 2001 and increase cash flow from operations by
a total of $446.5 million for 1999 through 2003. In 2000, Delphi
reported cash flow from operations that it now admits was
inflated by $220 million, or nearly 82%. As a result of the
multitude and magnitude of the restatements, the Audit Committee
announced that it had "lost confidence" in Vice Chairman and
Chief Financial Officer Alan Dawes and accepted his immediate
resignation. Immediately following the Company's March 4, 2004
release, Delphi's stock plummeted, on usually high trading
volume of 24.5 million shares, from its closing price of $6.37
on March 3, 2005, to a closing price of $5.46 on March 4, 2005 -
- a one-day drop of over 14 percent.
For more details, contact Berger & Montague, P.C. by Mail: 1622
Locust Street, Philadelphia, PA 19103 by Phone: 800-424-6690by
Fax: 215-875-4604 or by E-mail: info@bm.net.
DELPHI CORPORATION: Mager White Lodges Stock Fraud Lawsuit in NY
----------------------------------------------------------------
The law firm of Mager White & Goldstein, LLP initiated a class
action lawsuit in the United States District Court for the
Southern District of New York on behalf of all persons who
purchased Delphi Corporation securities ("Delphi") (NYSE:DPH)
between April 12, 2000 and March 3, 2005 (the "Class Period").
The complaint alleges that during the Class Period, Delphi and
certain of its officers issued false and misleading statements
in which Delphi's financial results were materially overstated.
According to the lawsuit, these statements were based on
Delphi's improper financial practices involving vendor rebates
and off-balance sheet financing and other practices still being
investigated by Delphi. The statements had the effect of
artificially inflating the market price of Delphi securities,
which rose as high as $17.40 per share during the Class Period.
Delphi benefited from this artificial inflation by selling $400
million in preferred securities and $500 million in 6.5%
unsecured notes.
On March 4, 2005, Delphi announced the resignation of CFO Alan
Dawes. As a result of Delphi and certain officers engaging in
fraudulent accounting practices, the Company's Audit Committee
warned that Delphi's financial statements for the last four
years could not be relied upon, and would have to be restated.
Preliminary findings by the Company revealed that Delphi
executives used roundtrip transactions or sham sales of assets,
improper expense deferrals and other violations of generally
accepted accounting practices to inflate their 1999-2001
reported pretax earnings by $166 million, and to increase their
1999-2003 cash flow from operations by $446.5 million.
Upon this disclosure, Delphi's stock fell to $5.41 per share
before closing at $5.46 on March 4, 2005, 68% below the high of
$17.40 during the Class Period, and representing a one-day drop
of 14%.
Jayne Arnold Goldstein of Mager White & Goldstein by Mail: 2825
University Drive - Suite 350, Coral Springs, Florida 33065 by
Phone: 954-341-0844 or 866-274-8258 by Fax: 954-341-0855 or by
E-mail: jgoldstein@mwg-law.com.
ELAN CORPORATION: Milberg Weiss Lodges NY Securities Fraud Suit
---------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman LLP initiated a
class action lawsuit on behalf of purchasers of the securities
of Elan Corp. plc ("Elan" or the "Company") (NYSE: ELN) between
February 18, 2004 and February 28, 2005, inclusive, (the "Class
Period"), seeking to pursue remedies under the Securities
Exchange Act of 1934 (the "Exchange Act").
The action is pending in the United States District Court for
the Southern District of New York against defendants Elan, G.
Kelly Martin (CEO, President) and Shane Cooke (CFO).
The complaint alleges that Elan is a pharmaceutical Company that
is collaborating with Biogen IDEC Inc. ("Biogen") on the
development and marketing of Tysabri. These claims arise out of
defendants' false and misleading statements and omissions
concerning the safety of Tysabri for use in the treatment of
multiple sclerosis ("MS"). The complaint alleges that defendants
knew or recklessly disregarded and failed to disclose the
following:
(1) animal and human studies of Tysabri showed a
significant risk of negative adverse effects resulting
from its suppression of the immune system;
(2) the clinical trials of Tysabri and Tysabri in
combination with Biogen's existing MS drug, Avonex,
failed to include the full range of medical tests
required to detect the type of adverse side effects
likely to result from extended treatment with Tysabri,
including PML ("Progressive Multifocal
Leukoencephalopathy"), a frequently fatal disease of
the central nervous system; and
(3) the potentially fatal side effects of Tysabri were
cumulative such that there was a significant
possibility that they would not become apparent after
only a year or even two years of clinical trials.
The complaint further alleges that by at least as early as
February 7, 2005 defendants knew or recklessly disregarded that
at least one subject of the clinical trials who had received
Tysabri in combination with Avonex had become seriously ill,
with symptoms of PML, such that the subject required
hospitalization. By at least as early as February 18, 2005,
defendants knew or recklessly disregarded that another clinical
trial subject, also receiving Tysabri in combination with
Avonex, had contracted what appeared to be PML. On February 24,
2005, one of the two clinical trial subjects died from PML.
However, it was not until February 28, 2005, at least 21 days
after the first PML-related hospitalization, that defendants
disclosed to the investing public that anything was amiss ----
much less that two clinical trial subjects had contracted PML
that one of them had already died of the disease, and that
Tysabri was likely the cause. On that date, defendants also
announced that they were suspending sales of Tysabri. On this
news, Elan fell 13.81 euros, or 68 percent, to 6.49 euros at the
close of trading in Dublin. In the United States, Elan ADRS
closed on February 25, 2005 at $26.90 and, following the
announcement on February 28, 2005, lost 70% of their value
falling to a low of $7.90 before closing the day at $8.00.
For more details, contact Steven G. Schulman Peter E. Seidman or
Andrei V. Rado by Mail: One Pennsylvania Plaza, 49th fl., New
York, NY, 10119-0165 by Phone: (800) 320-5081 by E-mail:
sfeerick@milbergweiss.com or visit their Web site:
http://www.milbergweiss.com.
FOREST LABORATORIES: Stull Stull Lodges Securities Suit in NY
-------------------------------------------------------------
The law firm of Stull, Stull & Brody initiated a class action
lawsuit in the United States District Court for the Southern
District of New York, against Forest Laboratories, Inc. ("Forest
Labs" or the "Company") (NYSE:FRX) on behalf of purchasers of
Forest Labs securities between August 15, 2002 and September 1,
2004, inclusive (the "Class Period").
The complaint charges that Forest Labs violated federal
securities laws by issuing false or misleading public
statements. Specifically, the Complaint alleges that Forest Labs
concealed deficiencies with its Celexa/Lexapro drugs in treating
adolescent depression and when Forest Labs ultimately disclosed
an agreement with the New York State Attorney General to make
available summaries of previously undisclosed studies on the
drugs, the price of Forest Labs stock dropped to as low as $36
per share.
For more details, contact Tzivia Brody, Esq. of Stull, Stull &
Brody by Phone: 1-800-337-4983 by Fax: 212/490-2022 by E-mail
SSBNY@aol.com.
ORANGE 21: Lerach Coughlin Lodges Securities Fraud Suit in CA
-------------------------------------------------------------
The law firm of Lerach Coughlin Stoia Geller Rudman & Robbins
LLP ("Lerach Coughlin") initiated a class action in the United
States District Court for the Southern District of California on
behalf of those who acquired Orange 21, Inc. ("Orange 21")
(NASDAQ:ORNG) common stock pursuant to the Company's
Registration Statement and Prospectus (collectively,
"Registration Statement") issued in connection with its initial
public offering ("IPO") on December 14, 2004.
The complaint charges Orange 21 and certain of its officers and
directors with violations of the Securities Act of 1933. Orange
21 designs, develops and markets premium products for the action
sports and youth lifestyle markets. Its principal products,
sunglasses and goggles, are marketed under the brand Spy Optic.
The complaint alleges that on December 14, 2004, Orange 21
accomplished its IPO of 3.48 million shares at $8.75 per share
(including 2.48 million shares sold by Orange 21 and 1 million
shares sold by No Fear, Inc.) for net proceeds of $20.2 million
to Orange 21 and $8.1 million to No Fear, pursuant to the
Registration Statement. The Registration Statement failed to
disclose that Orange 21 was engaging in copyright infringement
and that its European operations were underperforming and would
have to be restructured, which costs would adversely affect 2005
results.
On February 17, 2005, Orange 21 announced reduced earnings
expectations for 2005 due in part to changes in its European
infrastructure. On this news, Orange 21's stock price collapsed
to around $6.00 per share. Subsequently on March 7, 2005, Orange
21 disclosed it had received a cease-and-desist letter from
Oakley, Inc. In response, the Company would be required to make
changes based on the alleged infringements.
According to the complaint, the Registration Statement omitted
the following:
(1) the Company's European operations were underperforming
and lacked the requisite infrastructure necessary to
perform consistent with defendants' representations and
expectations and that as a result the Company would
need to restructure these operations and incur material
costs, thereby materially adversely affecting the
Company's operating performance for 2005;
(2) the Company was violating patents and trademarks
associated with its key product, fashion frames, and
that the Company would halt the production of certain
products, including the New Meteor New Espador and 42
fashion frames; and
(3) the Company was modifying its distribution policies
which necessarily would increase the Company's cost
structure and erode the Company's margins and net
income by $700,000 for FY 2005.
For more details, contact William Lerach or Darren Robbins of
Lerach Coughlin by Phone: 800/449-4900 or 619/231-1058 by E-
mail: wsl@lerachlaw.com or visit their Web site:
http://www.lerachlaw.com/cases/orange21/.
TEXTAINER FINANCIAL: Chimicles Tikellis Lodges Stock Suit in CA
---------------------------------------------------------------
The law firm of Chimicles & Tikellis LLP initiated a securities
class action lawsuit in the United States District Court for the
Northern District of California (Civil Action No. C 05-01146
CRB) against Textainer Financial Services Corporation
("Textainer Financial"), Textainer Equipment Management Limited,
Textainer Limited, Textainer Capital Corporation, Textainer
Group Holdings Limited, John A. Maccarone, and RFH, Ltd. The
action was brought on behalf of all persons (the "Class") who
held limited partnership interests in TCC Equipment Income Fund,
a California Limited Partnership, Textainer Equipment Income
Fund II, L.P., Textainer Equipment Income Fund III, L.P.,
Textainer Equipment Income Fund IV, L.P., Textainer Equipment
Income Fund V, L.P., and Textainer Equipment Income Fund VI,
L.P. (collectively, the "Textainer Partnerships") on January 20,
2005, and their assignees and other successors in interest. The
Textainer Partnerships purchase, own, operate, lease and sell
steel cargo containers used by international shipping lines, and
are currently the subject of a proposal to sell all of their
assets to defendant RFH, Ltd. (the "Sale").
The Complaint charges defendants with violations of the federal
securities laws, specifically Section 14(a) of the Securities
Exchange Act of 1934 and Rule 14a-9 promulgated thereunder. The
Complaint alleges that the defendants have issued materially
misleading proxy statements (the "Proxy Statements") to the
limited partners of the Textainer Partnerships requesting that
the limited partners grant proxies to be voted in favor of the
Sale and related proposals. In the action, the plaintiff alleges
that
(1) the Proxy Statements failed to appropriately disclose
that the prices at which the assets of the Partnerships
were to be sold were materially lower than current
market conditions would dictate;
(2) the Proxy Statements omitted to state that there was a
risk that the Partnership's Assets were being sold at a
value below the market because Textainer Financial and
its affiliates had required any bidder agree Textainer
Equipment Management Limited be retained to manage the
assets of the Partnerships after they were sold, a
condition which effectively eliminated other container
leasing companies from the bidding process or
artificially capped the amount that they would bid,
adjustments made to the pricing of the Sale did not
account for the increasing value of containers; and
(3) the Proxy Statements omitted to state other material
facts that an investor would consider important in
deciding whether to grant their proxies to be voted in
favor of the Sale and the related proposals.
This action seeks injunctive relief and damages on behalf of the
Class including nullifying all approvals given by shareholders
to Textainer Financial and its management in response to the
materially false and misleading Proxy Statements. In addition to
the claims under the federal securities laws, the complaint
alleges claims for breach of fiduciary duty under applicable
state law. The complaint names the Textainer Partnerships as
nominal defendants to assure that the Court may afford complete
relief to the Class.
For more details, contact James R. Malone, Jr. or Kimberly M.
Donaldson of CHIMICLES & TIKELLIS LLP by Mail: One Haverford
Centre, 361 West Lancaster Ave., Haverford, PA 19041 by Phone:
866-399-2487 by E-mail: jamesmalone@chimicles.com or
kimdonaldson@chimicles.com.
VEECO INSTRUMENTS: Alfred G. Yates Lodges Securities Suit in NY
---------------------------------------------------------------
The Law Office of Alfred G. Yates Jr., PC initiated a class
action lawsuit on behalf of persons who purchased or otherwise
acquired publicly traded securities of Veeco Instruments, Inc.
("Veeco" or the "Company") (NASDAQ:VECO) between November 3,
2003 and February 10, 2005, inclusive, (the "Class Period").
The action, numbered 2:05-cv-01552-LDW-ETB, is pending in the
United States District Court for the Eastern District of New
York against defendants Veeco, Edward H. Braun and John F. Rein
Jr. ("Defendants").
The complaint alleges that Defendants violated Section 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. Specifically the complaint alleges that
Defendants materially misled the investing public by issuing
false and misleading statements regarding the business and
financial results of Veeco. More specifically, the complaint
alleges that the Company's statements were false and misleading
because Defendants knowingly or recklessly failed to disclose
that it had improperly valued the inventory and accounts payable
at its TurboDisc division in order to make the acquisition look
more attractive to the market, that it falsely recognized
revenue at TurboDisc during the class period, and that it
improperly overvalued its deferred tax assets.
On February 11, 2005, Veeco announced that it was postponing the
results of its financial results for the fourth quarter and full
year 2004 pending completion of an internal investigation of
improper accounting transactions at its TurboDisc division. The
Company further expects that the investigation will lead to
adjustments of the financial statements previously issued for
the quarterly periods and nine-months ended September 2004.
Shares of Veeco reacted negatively to the news, falling $1.83
per share, or approximately 10%, to $16.96 per share.
For more details, contact Alfred G. Yates, Jr. by Phone:
1-800-391-5164 or by E-mail: yateslaw@aol.com.
VIISAGE INC.: Berman Devalerio Files Securities Fraud Suit in MA
----------------------------------------------------------------
The law firm of Berman DeValerio Pease Tabacco Burt & Pucillo
initiated class action in the U.S. District Court for the
District of Massachusetts. The lawsuit seeks damages for
violations of federal securities laws on behalf of all investors
who bought Viisage publicly traded securities during the period
of July 22, 2004 through and including March 2, 2005 (the "Class
Period").
The lawsuit claims that the defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder, including U.S.
Securities and Exchange Commission ("SEC") Rule 10b-5.
According to the complaint, Viisage portrayed itself during the
Class Period as a turn around Company in the high growth sector
of secure identity solutions. In reality however,
(1) Viisage engaged in improper conduct with respect to a
$20 million contract;
(2) the Company improperly inflated its reported revenues
in the third and fourth quarters of 2004; and
(3) Viisage's internal accounting controls were so flawed
that the Company qualified as a having "material
weakness" under the accounting standards set by the
Public Company Accounting Oversight Board.
As a result of misleading financial statements issued during the
Class Period, the Company's stock soared to $9.64 per share on
December 23, 2004, up from $6.95 per share on July 22, 2004, a
38.7% increase in just six months.
Then, on February 7, 2005, Viisage announced that the Company
would not meet its previously issued earnings guidance for 2004.
In addition, rather than report a $1.5 loss as previously
projected, Viisage anticipated a loss of approximately $7-8
million.
The market's reaction was immediate. On February 8, 2005,
Viisage's shares plunged as much as 24.3% -- from $7.27 to a low
of $5.85.
On March 2, 2005, Viisage again shocked the market by announcing
that the Company's auditor would "issue an adverse opinion with
respect to the effectiveness of the Company's internal controls
over financial reporting." In addition, Viisage announced that
revenues for the first quarter 2005 would be between $15-$17
million -- well below expectations of $19.7-$21 million.
On this news, Viisage's shares plunged as much as 27.2% on March
3, 2005 to a low of $4.30 -- down from the close of $5.47 the
previous day.
For more details, contact Jeffrey C. Block, Esq. or Leslie R.
Stern, Esq. by Mail: One Liberty Square, Boston, MA 02109 by
Phone: (800) 516-9926 by E-mail: law@bermanesq.com or visit
their Web site: http://www.bermanesq.com/pdf/Viisage-Cplt.pdf.
VIISAGE TECHNOLOGY: Lerach Coughlin Lodges Securities Suit in MA
----------------------------------------------------------------
The law firm of Lerach Coughlin Stoia Geller Rudman & Robbins
LLP ("Lerach Coughlin") initiated a class action lawsuit in the
United States District Court for the District of Massachusetts
on behalf of purchasers of Viisage Technology, Inc. ("Viisage"
or the "Company") (NASDAQ: VISG) publicly traded securities
during the period between May 3, 2004 and March 2, 2005 (the
"Class Period").
The complaint charges Viisage and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. Viisage delivers technology identity solutions for
governments, law enforcement agencies and businesses concerned
with enhancing security, reducing identity theft, providing
access control and protecting personal privacy.
The complaint alleges that, during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's increasing financial performance and future prospects.
As alleged in the complaint, these statements were materially
false and misleading because they failed to disclose and/or
misrepresented the following adverse facts, among others, which
were known to defendants, or recklessly disregarded by them, at
all relevant times:
(1) that the Company lacked requisite internal controls,
and, as a result, the Company's projections and
reported results were based upon defective assumptions
and/or manipulated facts;
(2) that contrary to defendants' claims of profitability
for the fourth quarter of 2004, the Company was
actually on track to report losses;
(3) that the Company's information technology systems were
materially compromised, which also materially impacted
the Company's ability to issue accurate financial
statements and projections;
(4) that defendants concealed these deficiencies for
multiple quarters in order to delay the cost of
implementing the proper system controls and thereby
temporarily inflate the Company's net income and to
provide defendants with a pliable system that would
allow them to cause the Company to report financial
results irrespective of their accuracy; and
(5) that as a result of (a)-(d) above, the Company's
projections for fiscal year ("FY") 2004 were grossly
inflated.
As a result of the defendants' false statements, Viisage's stock
traded at artificially inflated levels during the Class Period,
which allowed the Company and its top officers and directors to
sell more than $39 million worth of Company shares in Viisage's
July 2004 Offering. However, after the above revelations seeped
into the market, the Company's shares were hammered by massive
sales of the Company's shares sending them down 60% from their
Class Period high. In all, defendants' scheme caused hundreds of
millions of dollars in lost market capitalization. This dramatic
decline in share price was followed by an immediate outcry from
Wall Street analysts who collectively downgraded the Company's
shares.
For more details, contact William Lerach or Darren Robbins of
Lerach Coughlin by Phone: 800/449-4900 or 619/231-1058 by E-
mail: wsl@lerachlaw.com or visit their Web site:
http://www.lerachlaw.com/cases/viisage/.
*********
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.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Aurora Fatima Antonio and Lyndsey
Resnick, Editors.
Copyright 2005. All rights reserved. ISSN 1525-2272.
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