/raid1/www/Hosts/bankrupt/CAR_Public/050517.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, May 17, 2005, Vol. 7, No. 96
Headlines
ACCREDITED HOME: To Appeal Certification of IL Consumer Lawsuit
ACCREDITED HOME: Working To Settle CA Consolidated Employee Suit
ANGELCITI ENTERTAINMENT: Faces CA Suit V. Online Gambling Ads
CALIFORNIA: Judge Rules on Medical School Examinations Case
CALIFORNIA PIZZA: Working To Settle Overtime Wage Lawsuit in CA
CANADA: AFN Chief Applauds Supreme Court's Ruling on Cloud Case
CASTLE BEACH: Condo Owners Launch Lawsuit Over Unsafe Conditions
CONNS INC.: TX Court Junks Consumer Suit V. Service Agreements
COUNTRY COACH: Recalls 282 Motorhomes For Fire, Injury Hazard
CROSS ROADS: Recalls 131 Trailers For Wheel Defect, Crash Hazard
DARDEN RESTAURANTS: Reaches Settlement For CA Overtime Lawsuits
DELTA ENTERPRISE: Recalls 180T Pacifiers Due To Choking Hazard
DIAMOND TRIUMPH: PA Consumers Launch Unfair Trade Practices Suit
DIGIMARC CORPORATION: Plaintiffs File OR Securities Fraud Suit
DIGIMARC CORPORATION: NY Court Preliminarily OKs Suit Settlement
DOLLAR GENERAL: Recalls 80T Pendants Due To High Lead Content
DRYVIT SYSTEMS: Claims Processing Proceeding in EIFS Settlement
ELECTRONICS BOUTIQUE: CA Court Grants Final Settlement Approval
ELECTRONICS BOUTIQUE: Asks NY Court To Dismiss Overtime Lawsuit
EMBARCADERO TECHNOLOGIES: Plaintiffs Drop CA Securities Lawsuits
FORD MOTOR: Recalls 25 Pick-up Trucks For Defect, Crash Hazard
FORD MOTOR: FL Law Firms File Suit For F-150 Pick-Up Truck Fires
FORD MOTOR: Recalls 132,800 Vehicles For Fire, Accident Hazard
HOME PRODUCTS: Plaintiffs Voluntarily Dismiss Suit V. JRT Merger
HOME PRODUCTS: IL Shareholders Launch Lawsuit Against JRT Merger
INTERLAND INC.: Asks PA Court To Deny TCPA Lawsuit Certification
KEYSTONE RV: Recalls 174 Cambridge Motorhomes For Crash Hazard
LIBERATE TECHNOLOGIES: CA Court Approves Stock Suit Settlement
LIBERATE TECHNOLOGIES: NY Court Preliminarily Approves Suit Pact
MARRIOTT INTERNATIONAL: Law Firm Files Consumer Fraud Suit in DC
MASSACHUSETTS: Families Launch Suit Over Mishandling of Bodies
MICROSOFT CORPORATION: IA High Court Approves Consumer Lawsuit
NATIONAL SEMICONDUCTOR: Discovery Proceeds in CA Workers Lawsuit
QUALITY DINING: Asks IN Court To Deny Motion For Reconsideration
NEIMAN MARCUS: NECA-IBEW Pension Fund Files Suit Over Sale in TX
PAMELA DRAKE: Recalls 7T Wooden Push Toys Due To Choking Hazard
RALLY'S HAMBURGERS: Reaches Settlement For KY Securities Lawsuit
RUBIO'S RESTAURANTS: Plaintiffs File Consolidated Overtime Suit
SCIENCE APPLICATIONS: Employees Launch Overtime Wage Suit in CA
SCO GROUP: NY Court Preliminarily Approves Stock Suit Settlement
SHAW GROUP: Plaintiffs File Consolidated Securities Suit in LA
TIPPINGPOINT TECHNOLOGIES: NY Court Preliminarily OKs Settlement
WAL-MART STORES: Former Employee Launches Wage Lawsuit in SD
New Securities Fraud Cases
BEARINGPOINT INC.: Smith & Smith Lodges Securities Lawsuit in VA
DORAL FINANCIAL: Smith & Smith Files Securities Fraud Suit in NY
FRIEDMAN BILLINGS: Brodksy & Smith Lodges Securities Suit in NY
FRIEDMAN BILLINGS: Schiffrin & Barroway Lodges Stock Suit in NY
MARTEK BIOSCIENCES: Milberg Weiss Files Securities Lawsuit in MD
MBNA CORPORATION: Bernard M. Gross Lodges Securities Suit in DE
MOLSON COORS: Milberg Weiss Files Securities Fraud Lawsuit in DE
R&G FINANCIAL: Smith & Smith Lodges Securities Fraud Suit in NY
TRIBUNE CO.: Stull Stull Lodges Securities Fraud Suit in N.D. IL
*********
ACCREDITED HOME: To Appeal Certification of IL Consumer Lawsuit
---------------------------------------------------------------
Accredited Home Lenders, Inc. intends to appeal the Circuit
Court for Madison County, Illinois's ruling granting class
certification to the lawsuit filed against the Company, styled
"Wratchford et al. v. Accredited Home Lenders, Inc.
The suit was filed in December 2002 under the Illinois Consumer
Fraud and Deceptive Business Practices Act and the consumer
protection statutes of the other states in which the Company
does business. The complaint alleges that the Company has a
practice of misrepresenting and inflating the amount of fees it
pays to third parties in connection with the residential
mortgage loans that it funds. The plaintiffs claim to represent
a nationwide class consisting of others similarly situated, that
is, those who paid the Company to pay, or reimburse its payments
of, third-party fees in connection with residential mortgage
loans and never received a refund for the difference between
what they paid and what was actually paid to the third party.
The plaintiffs are seeking to recover damages on behalf of
themselves and the class, in addition to pre-judgment interest,
post-judgment interest, and any other relief the court may
grant.
On January 28, 2005, the court issued an order conditionally
certifying a class of Illinois residents with respect to the
alleged violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act and a nationwide class with respect to an
unjust enrichment cause of action included in the original
complaint. The court conditioned its order on the outcome of a
case pending before the Illinois Supreme Court in which one of
the issues is the propriety of certifying a nationwide class
based on alleged violations of other state laws similar to the
Illinois Consumer Fraud and Deceptive Business Practices Act.
The Company said in a regulatory filing that it believes the
court erred in certifying any class in the Wratchford matter,
and intends to seek leave to appeal the court's class
certification order. There has not yet been a ruling on the
merits of either plaintiffs' individual claims or the claims of
the class, and the ultimate outcome of this matter and the
amount of liability, if any, that may result is not presently
determinable.
ACCREDITED HOME: Working To Settle CA Consolidated Employee Suit
----------------------------------------------------------------
Accredited Home Lenders, Inc. is working on a settlement for the
class action filed against it in California Superior Court in
Sacramento County, styled "Yturralde v. Accredited Home Lenders,
Inc."
The complaint alleges that the Company violated California and
federal law by misclassifying the plaintiff, formerly a
commissioned loan officer for the Company, as an exempt employee
and failed to pay the plaintiff on an hourly basis and for
overtime worked. The plaintiff seeks to recover, on behalf of
himself and all of our other similarly situated current and
former employees, lost wages and benefits, general damages,
multiple statutory penalties and interest, attorneys' fees and
costs of suit, and also seeks to enjoin further violations of
wage and overtime laws and retaliation against employees who
complain about such violations.
The Company has been served with eleven substantially similar
complaints on behalf of certain other former and current
employees, which have been consolidated with the Yturralde
action.
In addition, prior to the passage of Proposition 64 in
California, a private individual who was not a current or former
employee of an employer could bring an action to enforce certain
provisions of California law against that employer. Such an
action had been filed and served upon the Company; however, in
light of the passage of California Proposition 64, this
complaint was dismissed with prejudice. The Company has
appealed the court's denial of its motion to compel arbitration
of the consolidated cases, and a resolution of that appeal is
not expected before early 2006. In the meantime, discussions
are ongoing between the parties regarding potential settlement
or mediation of the claims, and the Company has pursued and
effected settlements directly with many current and former
employees covered by the allegations of the complaints.
ANGELCITI ENTERTAINMENT: Faces CA Suit V. Online Gambling Ads
-------------------------------------------------------------
Angelciti Entertainment faces a class action filed in the
Superior Court of the State of California, for accepting and
placing advertising for on-line gambling companies. The suit
also names numerous other online content companies like Google,
Yahoo and Overture, as defendants.
The suit seeks relief based upon the fact that these companies
aided and abetted illegal activities under California law by
accepting advertising fees and otherwise promoting such
activities. The action is brought as a Private Attorney General
Action seeking disgorgement of the advertising fees earned by
such companies for the advertising, plus penalties. The listed
plaintiffs included a gambler, who claims to have lost more than
$100,000, Indian Tribes of California, who claimed they lost
gambling revenues they would have otherwise earned, and the
State of California, that lost taxation and other revenues they
would have earned had such gambling activities occurred at the
Indian Gambling locations in the State of California.
The suit is styled "Mario Cisneros et al, v. Yahoo! Inc., et al,
case no. CGC-04-433518," filed in the California Superior Court
in San Francisco County, under Judge Richard A. Kramer.
Representing the plaintiffs are Kathrein R. Reed and Ira P.
Rothken.
CALIFORNIA: Judge Rules on Medical School Examinations Case
-----------------------------------------------------------
California students with learning problems won the first phase
of a court battle to win more time to take the nationwide
entrance exam for medical schools, The Associated Press reports.
A class action lawsuit filed last July against the Association
of American Medical Colleges falls under California's powerful
disability law not the weaker federal law, according to a ruling
by Alameda County Superior Court Judge Ronald Sabraw. The
ruling could in essence give some California students an
advantage over test-takers in other states.
The suit argues that students who have trouble reading are
capable of practicing medicine, but need extra time to complete
the admission exam. However, the college association, which
administers the entrance exam twice a year to a total of 37,500
students, sought to dismiss the suit without a trial, arguing
that one state's law should not affect a national test. Judge
Sabraw's ruling allows the suit to go to trial in the judge's
court.
Attorney Stephen Tollafield of Disability Rights Advocates in
Oakland told the Associated Press, "We'll proceed to trial and
prove that they ignore California law and illegally discriminate
against students with disabilities." He also said that he hopes
the trial will end with a ruling in time to affect next year's
exams.
Forty California applicants a year are currently being denied
disability accommodations on the exam, according to attorneys.
CALIFORNIA PIZZA: Working To Settle Overtime Wage Lawsuit in CA
---------------------------------------------------------------
California Pizza Kitchen, Inc. is working to settle the overtime
wage class action filed against it in the California Superior
Court in Orange County. One of the Company's former servers
filed the suit in October 2003.
The plaintiff alleges that the Company failed to give its food
servers, bussers, runners and bartenders rest and meal breaks as
required by California law. Under the California Labor Code, an
employer must pay each employee one additional hour of pay at
the employee's regular rate of compensation for each workday
that the required meal or rest period is not provided. The
plaintiff also alleges that additional penalties are owed as a
consequence of the Company's resulting failure to pay all wages
due at the time of termination of employment and under theories
characterizing these alleged breaches as unfair business
practices.
If the plaintiff were able to achieve class certification and
prevail on the merits of the case, the Company could potentially
be liable for significant amounts. The Company said in a
regulatory filing that it believes that all of its employees
were provided with the opportunity to take all required meal and
rest breaks. The Company has informally exchanged information
and has engaged in numerous meetings and telephone conferences
with opposing counsel in furtherance of settlement, and
significant and encouraging progress has been made between the
parties.
CANADA: AFN Chief Applauds Supreme Court's Ruling on Cloud Case
---------------------------------------------------------------
Assembly of First Nations National Chief Phil Fontaine applauded
the Supreme Court of Canada's decision to reject the federal
government's appeal of the Cloud class action decision with
costs. On December 3, 2004, Ontario Court of Appeal certified
former students of the Mohawk Institute Residential School as a
"class" for the purposes of litigation, the first time that
residential school survivors were allowed to advance their claim
collectively in Ontario.
"The Supreme Court clearly understands what the federal
government seems unwilling to accept - that First Nations
students who were institutionalized in residential schools were
placed there to systematically remove their 'Indianness', and
faced dire circumstances in most, if not all, cases," stated the
National Chief. "It is heartening that Marlene Cloud and her
fellow Mohawk Institute Residential School survivors will be
allowed to proceed with their case as a "class" of victims
seeking restitution, and sets a clear precedent for other
survivors. I congratulate them, as well as the National
Consortium of Residential School Survivors' Counsel, who have
worked so diligently to achieve justice."
Between 1922 and 1969, students at the Mohawk Institute
Residential School, like First Nations and other Aboriginal
peoples at residential schools across Canada, were allegedly
abused in many ways, including specific incidents of emotional
harm and physical and sexual abuse, as well as the loss of
language and culture that still impacts First Nations.
"It is clear that the appellants in this case pursued this
particular legal action because the government has not only not
accepted the blame for the abuses perpetrated in residential
schools like the Mohawk Institute, but has also put into place
an alternative dispute resolution process for compensation that
does not even begin to address the abuse and the effects of that
abuse on our communities and cultures," said National Chief
Fontaine.
"We have supported the survivors in this class action because
there is currently no acceptable alternative except the courts,"
said the National Chief. "Survivors and their families are
rejecting the government's dispute resolution process because it
is adversarial and often serves to re-victimize survivors. The
Cloud class action certification spoke to the limitations of the
current DR process and limitations of access to justice for
individuals and the Supreme Court was right to re-affirm that."
"In combination with other recent decisions of the Supreme
Court, such as H.L. v. Canada, which established vicarious
liability for residential schools abuses and increased the
amount of damage awarded, the federal government must be aware
that they are exposed to great financial risk and must change
the way they have been doing business with residential schools
survivors."
The National Chief reiterated the AFN's calls for a fairer, more
effective and more holistic approach to residential schools
compensation, as advocated for in the AFN's Report on Canada's
Dispute Resolutions Plan to Compensate for Abuses in Indian
Residential Schools, released in November 2004. The AFN's report
recommended a two-pronged approach to improve the current ADR
process. The first part involves fair and reasonable
compensation, including a lump sum payment that would be awarded
to all survivors or their descendants, along with an additional
amount for each year spent in the school. Survivors can also be
compensated for severe emotional abuse as well as physical and
sexual abuse. The report also calls for on-going healing,
reconciliation and truth-telling work, including ongoing
resources for the Aboriginal Healing Foundation.
"Even though the class action was re-affirmed by the Supreme
Court today, it may still take many years for the case to
proceed through the courts to the point of settlement. With the
average age of residential schools survivors now approaching 60,
it is clear that time is the one thing we - and the federal
government - do not have, if we are to move forward and settle
the claims of our survivors in a fair and just manner."
The Assembly of First Nations is the national organization
representing First Nations citizens in Canada.
For more details, contact Don Kelly, AFN Communications Director
by Phone: (613) 241-6789 ext. 320 or (613) 292-2787 OR Ian
McLeod, AFN Bilingual Communications Officer by Phone:
(613) 241-6789 ext. 336 or (613) 859-4335 OR Nancy Pine,
Communications Advisor, Office of the National Chief by Phone:
(613) 241-6789 ext. 243 or (613) 298-6382.
CASTLE BEACH: Condo Owners Launch Lawsuit Over Unsafe Conditions
----------------------------------------------------------------
Elizabeth Martialay, a lawyer who owns a condo in Castle Beach
Club in Miami Beach, is filing a class action lawsuit seeking
damages from the condo association and three directors over the
failure to fix problems at their condo units, The NBC6.net
reports.
Court document reveal that in April, city officials evacuated
160 hotel rooms after inspectors discovered fire hazards and
other dangerous conditions at the Castle Beach Club, forcing its
600 residents to live elsewhere.
Ms. Martialay alleges, "The directors knew about many of the
problems in this building well over a year ago and ignored the
problems, refused to work with the receiver, refused to work
with the city." Specifically, her lawsuit claims that the three
directors, Leopoldo Gonzales, Emilio Berkowitz and Horatio
Mecozzia, used condo money to fix units they owned in the
building rather than doing the needed repairs.
However, an attorney for the condo board contends that there is
plenty of blame to go around and that there were too many chefs
in the kitchen, with condo directors and a building receiver who
did not coordinate.
City Officials told NBC6.net that owners and renters who were
displaced would not be able to return home soon. Receiver Robert
Stone also said that repairs would take about six months and $25
million to complete, he hopes though to get a loan to start the
work within the next couple of months.
However, until the repairs are completed, residents must make do
elsewhere. Ms. Martialay told NBC6.net that she hopes the suit
she has filed will help some fellow owners hang onto their
condos especially if the repairs cost the projected $25 million,
which averages to $40,000 per unit price that including interest
over the next 15 years would amount to a large sum.
CONNS INC.: TX Court Junks Consumer Suit V. Service Agreements
--------------------------------------------------------------
The 172nd District Court of Jefferson County, Texas dismissed
the class action filed against Conns, Inc., alleging an
inappropriate overlap in the warranty periods provided by the
manufacturers of the products the Company sells and the periods
covered by the service maintenance agreements that it sells,
seeking unspecified damages and an injunction against our
current practices. The lawsuit additionally was seeking to
establish a class action for breach of contract and violations
of state and federal consumer protection laws arising from the
terms of the Company's service maintenance agreements.
The Company challenged the lawsuit believing that the terms of
its service maintenance agreements are consistent with industry
standards and practices. In January 2005, the court dismissed
the suit. The plaintiff's time for appeal of that judgment
expired without action, and that the court's judgment is final.
COUNTRY COACH: Recalls 282 Motorhomes For Fire, Injury Hazard
-------------------------------------------------------------
Country Coach, Inc. is cooperating with the National Highway
Traffic Safety Administration (NHTSA) by voluntarily recalling
282 class A motorhomes, namely:
(1) COUNTRY COACH / AFFINITY, model 2005-2006
(2) COUNTRY COACH / ALLURE, model 2003-2005
(3) COUNTRY COACH / BUS CONVERSION, model 2004-2006
(4) COUNTRY COACH / INTRIGUE, model 2003 2005-2006
(5) COUNTRY COACH / MAGNA, model 2003-2006
On certain Class A motorhomes equipped with Vehicle Systems'
Aqua-hot and Hydro hot water heaters, which use Webasto Burner
tubes, the burner tubes do not meet specifications and could
fail prematurely. The surface temperature of the exhaust tube
exiting from the heater can increase and could potentially
ignite combustible materials in or around the vehicle.
Vehicle Systems is conducting the owner notification and remedy
for this campaign. For more details, contact Vehicle Systems by
Phone: 1-800-685-4298 or contact Country Coach by Phone:
1-800-547-8015, or contact the NHTSA's auto safety hotline:
1-888-327-4236.
CROSS ROADS: Recalls 131 Trailers For Wheel Defect, Crash Hazard
----------------------------------------------------------------
Cross Roads, Inc. is cooperating with the National Highway
Traffic Safety Administration by voluntarily recalling 131
trailers, namely:
(1) CROSSROADS / CRUISER, model 2005
(2) CROSSROADS / ZINGER, model 2005
On certain trailers equipped with RFD wheels, there is a
defective weld of the wheels' center hub to the wheel's rim.
This could result in a wheel separation, increasing the risk of
a crash.
RFD Components is conducting the owner notification and remedy
for this campaign. For more details, contact RFD COMPONENTS by
Phone: 574-295-3939 or CROSSROADS by Phone: 1-260-593-2866 or
contact the NHTSA's auto safety hotline: 1-888-327-4236.
DARDEN RESTAURANTS: Reaches Settlement For CA Overtime Lawsuits
---------------------------------------------------------------
Darden Restaurants reached a settlement for two purported class
actions filed against it in the California Superior Court of
Orange County, on behalf of its current and former hourly
restaurant employees.
The suit alleges violations of California labor laws with
respect to providing meal and rest breaks. The lawsuits sought
penalties under Department of Labor rules providing a one
hundred dollar penalty per violation per employee, plus
attorney's fees on behalf of the plaintiffs and other purported
class members.
During the second quarter of fiscal 2005, the Company attended
mediations with the plaintiffs and agreed to settle both
lawsuits for approximately $9,500; the full terms of the
settlement are subject to judicial review.
In September 2003, three former employees in Washington State
filed a similar purported class action in Washington State
Superior Court in Spokane County, alleging violations of
Washington labor laws with respect to providing rest breaks.
The Court stayed the action, and ordered the plaintiffs into the
Company's mandatory arbitration program; the plaintiffs' motion
for reconsideration was not granted, and their appeal of the
denial of reconsideration was also not granted.
DELTA ENTERPRISE: Recalls 180T Pacifiers Due To Choking Hazard
--------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Delta Enterprise Corporation is voluntarily recalling
about 180,000 Lov's Decorated Orthodontic Pacifiers.
The pacifiers are banned under federal law. They failed federal
safety tests when the nipples separated from the base. This
poses a choking hazard to young children. CPSC has received one
report of a 6-month-old child who was found gagging on the
nipple that had separated from the pacifier. The child was not
injured.
The recalled pacifier measures about 2-1/4 inches in width and
1-1/2 inches in length and has button or hinged handles. The
pacifiers are white with various colored handles. Designs are
imprinted on some pacifier shields. One pacifier shield is
decorated with a pink elephant, a purple giraffe with green
polka dots, a blue lion with yellow fur and a blue cloud and
yellow sun. Another pacifier shield has blue stars with Santa
shapes. The amber-colored nipple, imprinted with the words
"caoui," "chouc" and "pur," is about 1-1/8 inches long. "Lov 2-
Pack," "Decorated Orthodontic Pacifier," and "97705" are printed
on the front packaging of the pacifiers. "Delta Enterprise
Corp., Brooklyn NY 11212 Made in Thailand" is printed on the
package back.
Manufactured in Thailand, the pacifiers were sold at all small
retail stores from November 2001 through December 2004 for about
$1.
Consumers should discard the pacifiers and contact the firm for
instructions on how to obtain a refund or replacement product.
Consumer Contact: Contact Delta Enterprise's Pacifier Hotline at
(800) 377-3777 between 9 a.m. and 5 p.m. ET Monday through
Friday, or visit the firm's Web site:
http://www.deltaenterprise.com/recall.
DIAMOND TRIUMPH: PA Consumers Launch Unfair Trade Practices Suit
----------------------------------------------------------------
Diamond Triumph Auto Glass, Inc. continues to face a class
action filed in the Court of Common Pleas of Luzerne County,
Pennsylvania. Delbert Rice and Kenneth E. Springfield, Jr.,
filed the suit on behalf of themselves and all others similarly
situated (the "Plaintiffs").
Plaintiffs allege, among other things, the Company violated
certain sections of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law and common law. Plaintiffs allege that
this alleged conduct has caused monetary damages to Plaintiffs.
Among other things, Plaintiffs are seeking damages in an amount
to be determined at trial.
DIGIMARC CORPORATION: Plaintiffs File OR Securities Fraud Suit
--------------------------------------------------------------
Plaintiffs filed a consolidated amended securities class action
against Digimarc Corporation and certain of its current and
former officers and directors in the United States District
Court for the District of Oregon.
Beginning in September 2004, three purported class action
lawsuits were commenced on behalf of persons claiming to have
purchased or otherwise acquired Company securities during the
period from April 17, 2002 to July & 28, 2004. These lawsuits
were later consolidated into one action for all purposes on
December 16, 2004.
The complaints assert claims under the federal securities laws,
specifically Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, relating to the Company's announcement that it had
discovered errors in its accounting for software development
costs and project capitalization and other project cost
capitalization accounting practices at the Company's DIDS
business unit, and that the Company likely would be required to
restate its previously reported financial statements for full
fiscal year 2003 and the first two quarters of 2004.
Specifically, these actions allege that the Company issued false
and misleading financial statements in order to inflate the
value of Company stock, which resulted in insider sales of
personal holdings at inflated values, and that the Company
maintained insufficient accounting controls, which created an
environment where improper accounting could be used to
manipulate financial results. The complaints seek unspecified
damages.
DIGIMARC CORPORATION: NY Court Preliminarily OKs Suit Settlement
----------------------------------------------------------------
The United States District Court for the Southern District of
New York granted preliminary approval to the settlement of the
consolidated securities class action filed against Digimarc
Corporation, certain of its officers and directors and certain
underwriters of the Company's initial public offering.
Beginning in May 2001, a number of substantially identical class
action complaints alleging violations of the federal securities
laws were filed naming approximately 300 companies, including
the Company, certain of its officers and directors, and certain
as defendants. The complaints have since been consolidated into
a single action, and a consolidated amended complaint was filed
in April 2002.
The amended complaint alleges, among other things, that the
underwriters of the Company's initial public offering violated
securities laws by failing to disclose certain alleged
compensation arrangements (such as undisclosed commissions or
stock stabilization practices) in the Company's initial public
offering registration statement and by engaging in manipulative
practices to artificially inflate the price of the Company's
stock in the after-market subsequent to the Company's initial
public offering.
The Company and certain of its officers and directors are named
in the amended complaint pursuant to Section 11 of the
Securities Act of 1933, and Section 10(b) and Rule 10b-5 of the
Securities Exchange Act of 1934 on the basis of an alleged
failure to disclose the underwriters' alleged compensation
arrangements and manipulative practices. The complaint seeks
unspecified damages.
The individual officer and director defendants entered into
tolling agreements and, pursuant to a court order dated October
9, 2002, were dismissed from the litigation without prejudice.
Furthermore, in July 2002, the Company and the other defendants
in the consolidated cases filed motions to dismiss the amended
complaint for failure to state a claim. The motion to dismiss
claims under Section 11 was denied as to virtually all the
defendants in the consolidated actions, including the Company.
The claims against the Company under Section 10(b), however,
were dismissed.
In June 2003, a committee of the Company's board of directors
conditionally approved a proposed partial settlement with the
plaintiffs in this matter. In June 2004, an agreement of
settlement was submitted to the court for preliminary approval.
The settlement would provide, among other things, a release of
the Company and of the individual defendants for the conduct
alleged in the amended complaint to be wrongful. The Company
would agree to undertake other responsibilities under the
partial settlement, including agreeing to assign away, not
assert, or release certain potential claims the Company may have
against its underwriters. Any direct financial impact of the
proposed settlement (other than defense costs incurred and
expensed prior to May 31, 2003) is expected to be borne by the
Company's insurers. The court granted the preliminary approval
motion on February 15, 2005, subject to certain modifications.
The parties are directed to report back to the court regarding
the modifications. If the parties are able to agree upon the
required modifications, and such modifications are acceptable to
the court, notice will be given to all class members of the
settlement, a "fairness" hearing will be held and if the court
determines that the settlement is fair to the class members, the
settlement will be approved. There can be no assurance that this
proposed settlement would be approved and implemented in its
current form, or at all.
The suit is styled "IN RE LIBERATE TECHNOLOGIES, INC. INITIAL
PUBLIC OFFERING SECURITIES LITIGATION," filed in relation to "IN
RE INITIAL PUBLIC OFFERING SECURITIES LITIGATION, Master File
No. 21 MC 92 (SAS)," both pending in the United States District
Court for the Southern District of New York, under Judge Shira
N. Scheindlin. The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
DOLLAR GENERAL: Recalls 80T Pendants Due To High Lead Content
-------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Dollar General Corporation, of Goodlettsville, Tennessee
is voluntarily recalling about 80,000 Heart-Shaped Pendants.
The recalled heart-shaped pendant contains high levels of lead,
posing a serious risk of lead poisoning to young children. Lead
poisoning in children is associated with behavioral problems,
learning disabilities, hearing problems and growth retardation.
The heart-shaped pendant is silver-colored, ribbed on the front,
hollow on the back, and hangs on a pink suede cord with a
silver-colored clasp.
Manufactured in China the pendants were sold at all Dollar
General stores nationwide from May 2003 through April 2005 for
about $1.
Consumers should take these necklaces away from children
immediately and return them to Dollar General stores for a
refund.
Consumer Contact: Contact Dollar General at (800) 678-9258
between 9 a.m. and 6 p.m. ET Monday through Friday, or visit
their Web site: http://www.dollargeneral.com.
DRYVIT SYSTEMS: Claims Processing Proceeding in EIFS Settlement
---------------------------------------------------------------
Claims processing is continuing in the settlement of the class
action filed against Dryvit Systems, Inc. in Jefferson County
State Court in Tennessee, over its exterior insulated finish
systems (EIFS) products.
The Company was initially named in numerous EIFS-related
lawsuits. As of February 28, 2005, the Company was a defendant
or co-defendant in approximately 200 single family residential
EIFS cases, the majority of which are pending in the
southeastern region of the country. The Company is also
defending EIFS lawsuits involving commercial structures,
townhouses and condominiums. The vast majority of the Company's
EIFS lawsuits seek monetary relief for water intrusion related
property damages, although some claims in certain lawsuits
allege personal injuries from exposure to mold.
The Company is a defendant in an attempted state class action
filed on November 14, 2000 in Jefferson County, Tennessee styled
"Bobby R. Posey, et al. v. Dryvit Systems, Inc." (formerly
styled "William J. Humphrey, et al. v. Dryvit Systems, Inc.")
(Case No. 17,715-IV). A preliminary approval order was entered
on April 8, 2002 in the "Posey" case for a proposed nationwide
class action settlement covering, "All Persons who, as of June
5, 2002, own a one- or two-family residential dwelling or
townhouse in any State other than North Carolina clad, in whole
or in part, with Dryvit EIFS installed after January 1, 1989,
except persons who prior to June 5, 2002, have settled with the
Company, providing a release of claims relating to Dryvit EIFS;
or have not obtained a judgment against Settling Defendant for a
Dryvit EIFS claim, or had a judgment entered against them on
such a claim in Settling Defendants' favor; and any employees of
Dryvit." Nationwide notice to all eligible class members began
on or about June 13, 2002. Any person who wished to be excluded
from the "Posey" settlement was provided an opportunity to
individually "opt out" and thus not be bound by the final Posey
order.
A fairness hearing was held to determine whether the proposed
settlement is fair, reasonable and adequate and an order and
judgment granting final approval of the settlement was entered
on January 14, 2003. Notices of appeal were filed by persons
seeking to challenge certain provisions of the proposed
settlement including challenging the trial court's denial of
certain builders and one homeowner's right to appear at the
fairness hearing and intervene in the underlying action. On
March 22, 2004, the Tennessee Court of Appeals dismissed the
homeowner's appeal but ruled that the builders should be allowed
to intervene to determine their rights and obligations, if any,
under the proposed national settlement.
During the pendency of the foregoing issues, the court allowed
claims to be processed under the proposed Posey settlement. In
mid-September 2004 the court entered a stay order which
effectively suspended any further processing of claims pending
the outcome of the next court hearing. The stay was lifted on
January 4, 2005 and claims processing has resumed. As of March
25, 2005, approximately 7,178 total claims have been filed as of
the claim filing deadline. Of these 7,178 claims, approximately
4,306 claims have been rejected or closed for various reasons
under the terms of the settlement. An additional 153 claims are
under review for potential filing deficiencies. The
approximately 2,719 remaining claims are at various stages of
review and processing under the terms of the proposed settlement
and it is possible that some of these claims will be rejected or
closed without payment. As of February 28, 2005, approximately
433 homeowner claims have been paid a total of approximately
$4.6 million. Additional payments have and will continue to be
made in connection with the ongoing administration of the
claims, inspection costs, third party warranties and class
counsel attorneys' fees.
ELECTRONICS BOUTIQUE: CA Court Grants Final Settlement Approval
---------------------------------------------------------------
The California Superior Court in Los Angeles County granted
final approval to the settlement of a class action filed against
Electronics Boutique of America, Inc., styled "Chalmers v.
Electronics Boutique of America Inc." The suit alleged that the
Company improperly classified store management employees as
exempt from the overtime provisions of California wage-and-hour
laws and sought recovery of wages for overtime hours worked and
related relief.
In December 2004, the court approved a final settlement in the
amount of $950,000. An accrual for settlement costs was
recorded in fiscal 2004. Consequently, this settlement had no
material impact on the Company's results of operations or
financial condition for fiscal 2005, the Company said in a
regulatory filing.
ELECTRONICS BOUTIQUE: Asks NY Court To Dismiss Overtime Lawsuit
---------------------------------------------------------------
Electronics Boutique Holding Corporation asked the United States
District Court for the Western District of New York to dismiss
the class action filed against it and subsidiary Electronics
Boutique of America, Inc., on behalf of its current and former
employees.
On October 19, 2004, Milton Diaz filed a complaint on behalf of
a group of current and former employees to whom the Company
allegedly failed to pay minimum wages and overtime compensation
in violation of the Fair Labor Standards Act (FLSA) and New York
law. The plaintiff moved to conditionally certify a group of
similarly situated individuals under the FLSA and in March 2005,
there was a hearing on this motion.
In March 2005, the plaintiff filed a motion on behalf of current
and former store managers and assistant store managers in New
York to certify a class under New York wage and hour laws. In
March 2005, the Company also filed a motion to dismiss the New
York state law claims.
The suit is styled "Diaz v. Electronics Boutique of America,
Inc. et al., case no. 1:04-cv-00840-JTE," filed in the United
States District Court for the Western District of New York,
under Judge John T. Elfvin. Representing the plaintiffs is
Judith Ann Biltekoff of Sullivan, Oliverio & Gioia Mail: 600
Main Place Tower, Buffalo, NY 14202-3706 Phone: (716) 854-5300
Fax: 716-854-5299 E-mail: jbiltekoff@soglawny.com. Representing
the Company are John G. Horn and Robert C. Weissflach of
Harter, Secrest and Emery LLP, Twelve Fountain Plaza Suite 400
Buffalo, NY 14202-2293 Phone: 716-845-4228 Fax: 716-853-1617 or
E-mail: jhorn@hselaw.com or rweissflach@hselaw.com; and Samuel
S. Shaulson of Morgan, Lewis & Bockius LLP, 101 Park Avenue 37th
Floor New York, NY 10178-0060 Phone: (212) 309-6718 Fax:
(212) 309-6001 E-mail: sshaulson@morganlewis.com.
EMBARCADERO TECHNOLOGIES: Plaintiffs Drop CA Securities Lawsuits
----------------------------------------------------------------
Plaintiffs voluntarily dismissed the securities class actions
filed against Embarcadero Technologies, Inc. and certain of its
officers in the United States District Court for the Northern
District of California.
Each lawsuit purports to be filed on behalf of all purchasers of
the Company's securities from April 20, 2004 through October 27,
2004, inclusive (the "class period"), and each lawsuit alleges
various violations of securities laws during the class period.
The lawsuits seek unspecified damages.
The complaint charges Embarcadero Technologies, Stephen Wong,
and Raj Sabhlok with violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, an earlier Class Action Reporter story (November
9,2004) states. More specifically, the Complaint alleges that
the Company failed to disclose and misrepresented the following
material adverse facts which were known to defendants or
recklessly disregarded by them:
(1) that the Company had materially overstated its net
income and earnings per share;
(2) that defendants prematurely recognized revenue in its
UK subsidiary, Embarcadero Europe Ltd.;
(3) that the Company's financial statements were not
prepared in accordance with Generally Accepted
Accounting Principles ("GAAP");
(4) that the Company lacked adequate internal controls and
was therefore unable to ascertain the true financial
condition of the Company; and
(5) that as a result, the value of the Company's net income
and financial results were materially overstated at all
relevant times.
The suits are pending in the United States District Court for
the Northern District of California, under Judge Martin J.
Jenkins. The suits are styled:
(1) Sullivan v. Embarcadero Technologies, Inc. et al, case
no. 3:04-cv-04680-MJJ
(2) Garcia v. Embarcadero Technologies, Inc. et al, case
no. 3:04-cv-04729-MJJ
The lawyers for the plaintiffs are:
(i) Robert S. Green, Green Welling LLP, 235 Pine Street
15th Floor, San Francisco, CA 94104, Phone: 415/477-
6700, Fax: 415-477-6710, E-mail:
CAND.USCOURTS@CLASSCOUNSEL.COM
(ii) Richard A. Maniskas and Marc A. Topaz, Schiffrin &
Barroway LLP, Three Bala Plaza East, Suite 400, Bala
Cynwyd, PA 19004, Phone: 610-667-7706, Fax: 610-667-
7056
(iii) Patrick J. Coughlin and William S. Lerach of Lerach
Coughlin Stoia Geller Rudman & Robbins LLP, 100 Pine
Street Suite 2600, San Francisco, CA 94111, Phone:
415/288-4545, Fax: 415-288-4534 or E-mail:
patc@mwbhl.com or billl@lerachlaw.com
FORD MOTOR: Recalls 25 Pick-up Trucks For Defect, Crash Hazard
--------------------------------------------------------------
Ford Motor Company is cooperating with the National Highway
Traffic Safety Administration by voluntarily recalling 25
trucks, namely:
(1) FORD / F650, model 2005
(2) FORD / F750, model 2005
On certain cab chassis vehicles equipped with Accuride aluminum
wheels, the wheels were not properly pre-stressed. This allows
cracks to develop over time. This may eventually lead to wheel
failure and possibly result in a vehicle crash.
Dealers will replace the wheels. The recall is expected to
begin on May 10,2005. For more details, contact the Company by
Phone: 1-800-392-3673 or contact the NHTSA's auto safety
hotline: 1-888-327-4236.
FORD MOTOR: FL Law Firms File Suit For F-150 Pick-Up Truck Fires
----------------------------------------------------------------
The law firms of Dale R. Sisco, P.A. and the Peacock Law Firm,
P.A., both of Tampa, Florida, initiated a class action lawsuit
in Pinellas County, Florida against the Ford Motor Company. The
lawsuit results from a fire that destroyed a Ford F-150 pick-up
truck. The lawsuit alleges that the fire was caused by a defect
in the cruise control switch. This switch was the subject of a
recall by Ford on January 27, 2005.
A fire destroyed the vehicle, which was owned by the plaintiffs
Mike and Marla Iley, on January 22, 2003. The fire began at 4:15
a.m. while their vehicle was parked, with the ignition off, in
front of their residence in Largo, Florida. They were awakened
from sleep by their neighbors who saw the fire in front of the
house. The intensity of the fire was so great that it also
caused damage to their home as well as another vehicle, which
was parked in their driveway.
The plaintiffs made repeated attempts to contact the Ford Motor
Company concerning their loss. Although Ford was aware of the
dangerous problem as indicated by the recall, they failed to
address the Iley's claims. According to attorney Dale R. Sisco,
"This defect is a serious issue because this recall affects
hundreds of thousands of vehicles. The majority of these
vehicles are still in use and are each potential mobile time
bombs."
According to the complaint, Ford is the world's largest truck
manufacturer. However, attorney Mike Peacock said, "This lawsuit
is not about how big the Ford Motor Company is, it is a lawsuit
about how wrong the Ford Motor Company is."
The lawsuit was filed in the Circuit Court of the Sixth Circuit
of Florida, in St. Petersburg, Pinellas County, Florida. The
lawsuit seeks damages in excess of $15,000.00 and equitable
relief. The lawsuit was filed in case number 05-3311-CI-11 on
behalf of the plaintiffs and all other persons and entities who
purchased model year 2000, Ford F-150 pick-up trucks, Ford
Expeditions and Lincoln Navigators.
For more details, contact Dale R. Sisco by Phone:
+1-813-224-0555 or +1-813-508-1342 by E-mail:
dsisco@sisco-law.com or Mike Peacock by Phone: +1-813-769-2409
or +1-813-833-6049 or by E-mail: mpeacock@peacocklawfirm.com.
FORD MOTOR: Recalls 132,800 Vehicles For Fire, Accident Hazard
--------------------------------------------------------------
Ford Motor Company is cooperating with the National Highway
Traffic Safety Administration (NHTSA) by voluntarily recalling
132,800 vehicles, namely:
(1) FORD / CROWN VICTORIA, model 2003-2005
(2) FORD / CVPI, model 2003-2005
On certain police interceptors (CVPI) and commercial heavy duty
(taxi) vehicles, the dash outer sound insulator could sag and
possibly contact the surface of the light-off catalyst at
extremely high operating temperatures. If this occurs, the
insulator might experience charring of the outer layer, burning
odor or smoke, which may ultimately result in a fire.
Dealers will replace a portion of the Dash outer sound
insulator. The recall is expected to begin on June 21,2003.
For more details, contact the Company by Phone: 1-800-392-3673
or contact the NHTSA's auto safety hotline: 1-888-327-4236.
HOME PRODUCTS: Plaintiffs Voluntarily Dismiss Suit V. JRT Merger
----------------------------------------------------------------
Plaintiffs voluntarily dismissed the class action filed against
Home Products International, Inc., its board of directors and
JRT Acquisition, Inc. in the Court of Chancery for the State of
Delaware.
On June 2, 2004, the Company executed an Agreement and Plan of
Merger, by and between the Company and JRT Acquisition, as
amended by that certain First Amendment to the Agreement and
Plan of Merger, dated October 11, 2004. Pursuant to the terms
of the JRT Agreement, JRT, an entity formed by James R. Tennant,
who at the time was the Company's Chairman and Chief Executive
Officer, to merge with and into the Company, and each
outstanding share of the Company's common stock was to be
exchanged for the right to receive $1.50 in cash.
The complaint purports to be filed by a stockholder and alleges
that in entering into a merger agreement with JRT, the Company's
board of directors breached their fiduciary duties of loyalty,
due care and good faith. The complaint, which includes a
request for a declaration that the action be maintained as a
class action, seeks, among other relief, injunctive relief
enjoining the transaction from being consummated.
On January 25, 2005, the Delaware plaintiffs dropped their
lawsuit in its entirety. Pursuant to Delaware rule, the action
was dismissed without prejudice.
HOME PRODUCTS: IL Shareholders Launch Lawsuit Against JRT Merger
----------------------------------------------------------------
Home Products International, Inc. and its directors face a class
action filed in the Chancery Division of the Circuit Court of
Cook County, Illinois.
On June 2, 2004, the Company executed an Agreement and Plan of
Merger, by and between the Company and JRT Acquisition, as
amended by that certain First Amendment to the Agreement and
Plan of Merger, dated October 11, 2004. Pursuant to the terms
of the JRT Agreement, JRT, an entity formed by James R. Tennant,
who at the time was the Company's Chairman and Chief Executive
Officer, to merge with and into the Company, and each
outstanding share of the Company's common stock was to be
exchanged for the right to receive $1.50 in cash.
The complaint purports to be filed by a stockholder and alleges
that in entering into the JRT Agreement, the Company's board of
directors breached their fiduciary duties of loyalty, due care,
independence, good faith and fair dealing. The complaint, which
includes a request for a declaration that the action be
maintained as a class action, seeks, among other relief,
injunctive relief enjoining the transaction from being
consummated.
The suit is styled "Daniel Slattery v. Home Products
International, Inc., case no. 2004-CH-09064," filed in the
Circuit Court of Cook County, Illinois under Judge David R.
Donnersberger. Representing the plaintiffs is LASKY & RIFKIND
P.C., Mail: 351 W. Hubbard #406, Chicago IL 60610, Phone:
(312) 634-0057. Representing the Company is KATTEN MUCHIN ZAVIS
ROSEN, Mail: 525 W. Monroe # 1600, Chicago IL, 60661 Phone:
(312) 902-5200.
INTERLAND INC.: Asks PA Court To Deny TCPA Lawsuit Certification
----------------------------------------------------------------
Interland, Inc. asked the Allegheny County State Court in
Pennsylvania to deny class certification for the lawsuit filed
against it, alleging violations of the Telephone Consumer
Protection Act (TCPA).
A competing web hosting company, PairNetworks, filed this case
in December 2001 as a putative class action, claiming that the
Company's distribution of a facsimile on November 15, 2001 to
market domain name registration services violated the TCPA.
Several years later, two additional plaintiffs joined in the
action.
The plaintiffs have conceded that all of the putative class
members were customers of the Company. Federal Communications
Commission regulations in effect at the time provided that the
distribution of facsimiles to persons with whom the sender had
an "established business relationship" did not amount to a
violation of the TCPA. The Company has asked the court to deny
class certification and a ruling on that motion is pending as
well as a motion for summary judgment on the named plaintiffs'
claims. If the court denies class certification, the Company's
damages, if it were liable, cannot exceed $1,500 for each of the
three named plaintiffs.
KEYSTONE RV: Recalls 174 Cambridge Motorhomes For Crash Hazard
--------------------------------------------------------------
Keystone RV Company is cooperating with the National Highway
Traffic Safety Administration (NHTSA) by voluntarily recalling
174 Cambridge motorhomes, models 2006.
On these motorhomes, which are equipped with Tredit wheels, the
wheels may develop a separation at the weld between the center
portion of the wheel and the outer rim. This could result in a
wheel separation, increasing the risk of a crash.
Dealers will replace the steel wheels with aluminum wheels. The
recall is expected to begin on May 9,2005. For more details,
contact the Company by Phoine: 574-537-3925 or contact the
NHTSA's auto safety hotline: 1-888-327-4236.
LIBERATE TECHNOLOGIES: CA Court Approves Stock Suit Settlement
--------------------------------------------------------------
The United States District Court for the Northern District of
California granted final approval to the Stipulation and
Agreement of Settlement in connection with the class action
filed against Liberate Technologies, Inc., styled "In Re
Liberate Technologies Inc. Securities Litigation (Master File
No. C-02-5017 MJJ)."
The suit is based on the restatement of the Company's financial
statements for certain periods of fiscal 2002 and the revision
of its preliminary financial results announced for the first
quarter of fiscal 2003. The suit generally alleges, among other
things, that members of the purported class were damaged when
they acquired the Company's securities because, as a result of
accounting irregularities, its previously issued financial
statements were materially false and misleading, and caused the
price of our securities to be inflated artificially. The suit
further alleges that, as a result of this conduct, the
defendants violated Section 10(b) and 20(a) of the Securities
Exchange Act of 1934, and SEC Rule 10b-5, promulgated
thereunder. The Class Action seeks unspecified monetary damages
and other relief from all Class Action Defendants, an earlier
Class Action Reporter story (August 26,2004) reports.
The parties to the Settlement are the lead plaintiff in the
Class Action, on behalf of himself and each of the class
members; and defendants Liberate Technologies, Mitchell E.
Kertzman, Nancy J. Hilker and Coleman Sisson.
Under the terms of the Settlement, the Company agreed to pay or
cause to be paid $13.8 million in settlement of the claims
specified in the Class Action, and the lead plaintiff and each
class member agreed to release the Company and the other
defendants from those claims. The Settlement shall in no way be
construed or deemed to be evidence of or an admission or
concession on the part of the Company or the other specified
defendants with respect to any claim or any fault or liability
or wrongdoing or damage whatsoever, or any infirmity in the
defenses that the defendants have asserted. Following a
settlement hearing on February 15, 2005, the Court granted final
approval of the Settlement and, pursuant to the Settlement,
entered judgment dismissing the Class Action with prejudice.
The suit is styled "Horn et al v. Kertzman et al, case no.
3:02-cv-05017," filed in the United States District Court for
the Northern District of California, under Judge Martin J.
Jenkins. Representing the Company is Garrett J. Waltzer of
Skadden Arps Slate Meagher & Flom, LLP, 525 University Avenue
Palo Alto, CA 94301 Phone: 650/470-4540 E-mail:
gwaltzer@skadden.com. Representing the plaintiffs are:
(1) Eric J. Belfi, Murray, Frank & Sailer LLP, 275 Madison
Avenue Suite 801 New York, NY 10016 Phone: 212-682-1818
Fax: 212-682-1892 E-mail: ebelfi@murrayfrank.com;
(2) Andrew L. Barroway, Schiffrin & Barroway, LLP, 280 King
of Prussia Road, Radnor, PA 19087 Phone: 610-667-7706
Fax: 610-667-7056;
(3) Robert S. Green, Green Welling LLP, 235 Pine Street
15th Floor San Francisco, CA 94104 Phone: 415/477-6700
Fax: 415-477-6710 E-mail:
CAND.USCOURTS@CLASSCOUNSEL.COM;
(4) Michael M. Goldberg, Glancy & Binkow LLP 1801 Avenue of
the Stars, Suite 311 Los Angeles, CA 90067 Phone:
310/201-9150 Fax: (310) 201-9160 E-mail:
info@glancylaw.com
LIBERATE TECHNOLOGIES: NY Court Preliminarily Approves Suit Pact
----------------------------------------------------------------
The United States District Court for the Southern District of
New York granted preliminary approval to the settlement of the
consolidated securities class action filed against Liberate
Technologies, Inc., certain of its former officers and current
or former directors and the underwriters of its initial public
offering.
Beginning on May 16, 2001, a number of class-action lawsuits
seeking monetary damages were filed, alleging that the
underwriters received excessive and improper commissions that
were not disclosed in the Company's prospectus and that the
underwriters artificially increased the price of Company stock.
The plaintiffs subsequently added allegations regarding the
Company's secondary offering, and named additional officers and
directors as co-defendants. The suits were consolidated into one
action that was coordinated for pretrial purposes with hundreds
of virtually identical suits under a case captioned "In re
Initial Public Offering Securities Litigation, Civil Action
No. 21-MC-92."
On February 19, 2003, the court denied in part and granted in
part a motion to dismiss filed on behalf of the defendants,
including the Company. The court's order did not dismiss any
claims against the Company. As a result, discovery may proceed.
The individual defendants have been dismissed without prejudice
in this litigation.
While the Company denies allegations of wrongdoing, it has
agreed to enter into a global issuer settlement of plaintiffs'
claims. In June 2004, a stipulation of settlement and release
of claims against the issuer defendants, including the Company,
was submitted to the court for approval. The terms of the
settlement, if approved, would dismiss and release all claims
against the participating defendants (including Liberate). In
exchange for this dismissal, D&O insurance carriers would agree
to guarantee a recovery by the plaintiffs from the underwriter
defendants of at least $1 billion, and the issuer defendants
would agree to an assignment or surrender to the plaintiffs of
certain claims the issuer defendants may have against the
underwriters. The settlement is subject to a number of
conditions, including court approval.
The Company has executed the settlement and has been advised
that almost all (if not all) of the issuers have elected to
proceed under the MOU. The settlement agreement was then
submitted to the court for approval. If the settlement
agreement is approved by the court, and if no cross-claims,
counterclaims or third-party claims are later asserted, this
action will be dismissed with respect to its directors and the
Company.
The suit is styled "IN RE LIBERATE TECHNOLOGIES, INC. INITIAL
PUBLIC OFFERING SECURITIES LITIGATION," filed in relation to "IN
RE INITIAL PUBLIC OFFERING SECURITIES LITIGATION, Master File
No. 21 MC 92 (SAS)," both pending in the United States District
Court for the Southern District of New York, under Judge Shira
N. Scheindlin. The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
MARRIOTT INTERNATIONAL: Law Firm Files Consumer Fraud Suit in DC
----------------------------------------------------------------
The Cullen Law Firm, PLLC initiated a consumer class action
lawsuit the Superior Court of the District of Columbia against
Marriott International, Inc., on behalf of all guests of
Marriott's hotels in Moscow since May 13, 2002.
The complaint, filed under the District of Columbia Consumer
Protection Procedures Act, alleges that Marriott made deceptive
and misleading representations through its worldwide, internet-
based reservation system on the rates that would be charged at
its hotel properties in Russia.
According to the complaint, Marriott quotes rates in U.S.
dollars knowing that the final hotel bill will be paid in
Russian rubles in amounts that are higher than those calculated
at the official exchange rate. Hotel guests find out about the
problem when they get their credit card statement in dollars.
According to the complaint, consumers generally end up paying 18
percent more than the amount quoted by Marriott when their
reservations were made.
Paul D. Cullen, Sr., counsel for the plaintiffs, estimates that
there have been several hundred thousand hotel guests victimized
by the deceptive practices alleged in the complaint during the
period covered by the three year statute of limitations.
Marriott International, Inc. is incorporated in Delaware and is
headquartered in Washington, D.C. The complaint describes a,
"longstanding, widespread and unambiguous" effort by Marriott to
promote the fact that it maintains its headquarters in
Washington, DC. The complaint alleges that Marriott's location
in the nation's capital is an important part of its consumer
franchise and brand identification.
"Marriott has breached the bonds of trust with the traveling
public," according to the complaint, "resulting in thousands of
consumers being bilked millions of dollars a year." According to
Mr. Cullen, "Marriott should be held accountable under the laws
of the District of Columbia to the full universe of patrons it
has set out to attract because of its deep roots in the nation's
capital."
The complaint seeks statutory damages of $1, 500 per violation
of the D.C. Consumer Protection Procedures Act, plus injunctive
relief restraining Marriott from continuing the alleged conduct.
For more details, contact Paul D. Cullen, Sr. of The Cullen Law
Firm, PLLC by Mail: 1101 30th Street, N.W. Suite 300,
Washington, D.C. 20007 by Phone: (202) 944-8600 by Fax:
(202) 944-8611 or visit their Web site:
http://www.cullenlaw.com.
MASSACHUSETTS: Families Launch Suit Over Mishandling of Bodies
--------------------------------------------------------------
A class action lawsuit was initiated against a Seabrook
crematorium and 11 Massachusetts funeral homes that used it,
claiming that they improperly handled bodies, The Associated
Press reports.
According to Rockingham County Attorney Jim Reams, authorities
searched two of the funeral homes and residences in
Massachusetts to find financial records that "would indicate
control and ownership" of the Bayview Crematory in New
Hampshire, as well as the relationship between the crematory and
the funeral homes.
Defendants named in the suit are Linda Stokes, owner of the
Bayview Crematory property, and funeral homes in Boston,
Lawrence, Haverhill, Quincy, Dracut, Brighton and Newburyport,
Massachusetts.
Paul Anzalone of Mansfield, Massachusetts and 35 other
plaintiffs from that state filed the suit in Essex County
Superior Court. He and the other families are seeking damages
for negligent and intentional emotional distress.
David H. Charlip, a lawyer from Hollywood, Florida, filed the
lawsuit told AP that he believes most of the bodies cremated at
Bayview came from Massachusetts. He also adds that once he gains
access to the crematorium's records, he plans to file similar
lawsuits in Maine and New Hampshire.
The Bayview Crematory has been the subject of investigation by
New Hampshire since February 23, when state troopers found the
partially decomposed body of a woman in a non-air-conditioned
room at the Seabrook business. The troopers also found the
remains of two people in the crematorium's oven and a trash bin
located in the rear of the building overflowing with medical
waste.
MICROSOFT CORPORATION: IA High Court Approves Consumer Lawsuit
--------------------------------------------------------------
In an 11-page decision that reinforces an earlier Polk County
ruling, the Iowa Supreme Court gave the green light to a
fiercely fought class action lawsuit that accuses Microsoft
Corporation of inflating the cost of its operating system and
software products sold to Iowa customers, The Des Moines
Register reports.
According to Des Moines attorney Roxanne Conlin, "It basically
says that we can proceed with a class action. Consumers need to
know that they should be keeping receipts. . . . Everybody
should be saving their stuff so when it comes time to make a
claim after we win, it'll be easier."
Filed in 2000, the lawsuit names former vending company owner
Joe Comes and Riley Paint Inc. as stand-ins for any consumer who
purchased software from a retailer after May 18, 1994. It
essentially covers anyone who bought a Microsoft operating
system, Microsoft Word, Microsoft Excel or Microsoft Office
either as stand-alone software or installed on a computer.
Ms. Conlin estimates that indirect purchasers of the software -
people who bought from someone other than Microsoft - might be
entitled to a refund of $40 or $50 because the company
improperly overcharged retailers and computer makers. She also
told The Register that with the recent ruling the case is on
target for a September 2006 trial.
NATIONAL SEMICONDUCTOR: Discovery Proceeds in CA Workers Lawsuit
----------------------------------------------------------------
Discovery is continuing in the class action filed against
National Semiconductor Group, Inc. and its chemical suppliers by
former and present employees claiming damages for personal
injuries. The complaint alleges that cancer and reproductive
harm were caused to employees exposed to chemicals in the
workplace.
The suit, styled "Harris et al., v. National Semiconductor, et
al.," is pending in the Superior Court of Santa Clara County,
California. In November 2003, the court denied the plaintiffs'
motion for certification of a medical monitoring class.
QUALITY DINING: Asks IN Court To Deny Motion For Reconsideration
----------------------------------------------------------------
Quality Dining, Inc. asked the St. Joseph Superior Court in
South Bend, Indiana to deny plaintiffs' motion to amend their
motion for reconsideration of the dismissal of the class action
filed against the Company, its directors and two of its
officers.
On June 22, 2004, Milberg, Weiss, Bershad & Schulman LLP filed a
purported class action lawsuit, alleging that the individual
defendants breached fiduciary duties by acting to cause or
facilitate the acquisition of the Company's publicly-held shares
for unfair and inadequate consideration, and colluding in the
Fitzpatrick group's going private proposal. The action, "Bruce
Alan Crown Grantors Trust v. Daniel B. Fitzpatrick, et al.,
Cause No. 71-D04-0406-PL00299," sought to enjoin the transaction
or if consummated, to rescind the transaction or award
rescisssory damages, and for defendants to account to the
putative class for unspecified damages.
On August 19, 2004, the Company and the individual defendants
filed motions to dismiss the action. The defendants argued that
the claims were not ripe because the transaction proposed by the
Fitzpatrick group required approval by the Company's board of
directors and its shareholders, neither of which had occurred,
and that in any event, as a matter of Indiana corporate law,
shareholders who dissent from such a transaction that receives
the approval of a majority of the shares entitled to vote are
not permitted to enjoin or otherwise challenge the transaction.
On September 24, 2004, the plaintiff filed a response to
defendants' motions to dismiss arguing that the claim was timely
because the proposed transaction allegedly was a fait accompli
and that Indiana law permits minority shareholders to challenge
such a transaction.
On October 12, 2004, three days before the hearing on the
defendants' motions to dismiss, the plaintiff amended its
complaint. The amended complaint continues to challenge the
adequacy of the Fitzpatrick group's proposal and to allege that
the individual defendants have breached fiduciary duties. In
addition, citing the Company's September 15, 2004, announcements
of third quarter earnings and a correction in the calculation of
weighted average shares outstanding which increased earnings per
share in the first two quarters of 2004 by a fraction of a
penny, the plaintiff alleges that from March 31, 2004, until
September 15, 2004, the defendants violated the antifraud
provisions of Indiana Securities Act by disseminating misleading
information to "artificially deflate" the price of Company
shares, and thereby induce investors to hold the shares.
Finally, the plaintiff alleges that the failure of the Company's
directors to pursue a forfeiture action under Section 304 of the
Sarbanes-Oxley Act of 2002, which requires the chief executive
officer and chief financial officer under certain circumstances
to reimburse the Company for certain types of compensation if
the Company is required to issue a restatement, would constitute
a breach of fiduciary duties.
On October 13, 2004, the Company announced that the special
committee of the board of directors had approved in principle,
by a vote of three to one, a transaction by which the
Fitzpatrick group would purchase the outstanding shares held by
Company's public shareholders for $3.20 per share. The agreement
was subject to several contingencies. With respect to
shareholder approval, the Fitzpatrick group agreed to vote its
shares in the same proportion as the Company's public
shareholders vote their shares.
On November 3, 2004, Quality Dining and the individual
defendants filed motions to dismiss the amended complaint.
Defendants argued as before that as a matter of Indiana
corporate law, the plaintiff cannot enjoin or otherwise
challenge the proposed transaction. Defendants contended that
plaintiff's claims challenging the proposed transaction should
be dismissed for the additional reason that the merger is
subject to approval by a majority of the putative class that the
plaintiff seeks to represent. Defendants also argued that there
is no cause of action under the Indiana Securities Act for
persons who "hold" their securities purportedly because of
misleading information, and no basis for a claim that reports
filed by the Company with the SEC violate a section of the
Indiana Act prohibiting the filing of misleading reports with
the Indiana Securities Division. Finally, defendants contended
that the plaintiff has no private right of action under Section
304 of the Sarbanes-Oxley Act and cannot maintain a direct
action as a shareholder of the Company to pursue a forfeiture of
certain executive compensation.
A hearing on the defendants' motion to dismiss was held on
December 17, 2004. On February 3, 2005, the Court granted the
defendants' motion and dismissed the plaintiff's amended
complaint. On February 22, 2005, the plaintiff filed a motion to
correct errors or for reconsideration, and on March 11, 2005,
the defendants filed a response requesting the Court to deny the
plaintiff's motion.
NEIMAN MARCUS: NECA-IBEW Pension Fund Files Suit Over Sale in TX
----------------------------------------------------------------
Shareholders initiated a class action lawsuit against the Neiman
Marcus Group Inc. and its officers and directors, alleging that
they failed to get the best price for the luxury retailer's
sale, The Dallas Business Journal reports.
In its suit, which was filed in Dallas' federal court, NECA-IBEW
Pension Fund of Illinois argues that the $5.1 billion sale price
for Neiman's was too low, and that the company's officers and
directors engaged in self-dealing instead of properly weighing
offers that could have been more lucrative for shareholders.
At the heart of the suit, is Neiman's decision to group the sale
of the retailer's stores with its private-label credit card
division.
According to the suit, analysts had estimated the worth of the
credit card division in excess of $500 million and that after
the sale was announced, some shareholders voiced disappointment
about grouping the credit card business into the acquisition.
The suit alleges that before announcing the acquisition,
Neiman's (NYSE: NMG) had already begun soliciting bids for the
credit card division and had received multiple offers. It states
that on May 2, Neiman's announced a deal in which the Texas
Pacific Group of Fort Worth and Warburg Pincus of New York would
acquire all outstanding Class A and Class B shares for $100 per
share in cash. The deal, contingent on shareholder approval and
regulatory review, is expected to close by November 1. It seeks
to rescind that sale on the basis of a breach in fiduciary
duties, which according to shareholders would clear the path for
other, potentially higher bids and a separate sale of the credit
card business.
NECA-IBEW asserts that the shareholders interests took a
backseat to the interests of the key decision-makers at Neiman
Marcus. It is not clear how many shares the pension fund owns,
but NECA-IBEW is not listed among the company's largest
shareholders in regulatory filings.
The lawsuit thus contends, "The officers and directors are
obligated to maximize shareholder value, not structure a
preferential deal for themselves."
The Smith family of Massachusetts owns about 13% of the company,
including more than 30% of the company's Class B common stock.
The suit names Neiman Marcus Group Inc. and Smith family members
Richard A. Smith, chairman of the board; Smith's son, Robert A.
Smith, vice chairman of the board; and Brian J. Knez (Richard A.
Smith's son-in-law), who was co-chief executive of the company
from 1999 through 2001 and has been a director since 1998.
The suit also named as defendants Burton M. Tansky, Neiman
Marcus' president, CEO and director along with company board of
director members Matina S. Horner, Walter J. Salmon, John R.
Cook, Vincent M. O'Reilly, Paula Stern, Gary L. Countryman and
Carl Sewell.
NECA-IBEW tapped well-known class-action firm Lerach Coughlin
Stoia Geller Rudman and Robbins L.L.P. of San Diego and Provost
and Umphrey Law Firm L.L.P.'s Dallas office to handle the suit.
PAMELA DRAKE: Recalls 7T Wooden Push Toys Due To Choking Hazard
---------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Pamela Drake Inc., of Emeryville, California is
voluntarily recalling about 7,000 Lemon Meringue Wooden Push
Toys due to small parts that can break off, thus posing a
choking hazard to young children.
The recall includes six different multi-colored, solid wooden
push toys, including an airplane, tractor, dump truck, fire
truck, and a two-piece circus train with train cars and a tow
truck with family van. The vehicles are constructed with a
bendable flap that allows the toys to "wiggle" back and forth.
The dump truck, circus train with train cars and tow truck with
family van have white magnets on the front and back to hold the
push toys together. All the toys have rubber rings on the tires.
The recalled push toys are intended for children 12 months and
older. There is no writing on the push toys.
Manufactured in China the toys were sold at all toy and hobby
stores nationwide from February 2005 through March 2005 for
between $15 and $24.
Consumers should immediately take these recalled push toys away
from young children and return the toys to Pamela Drake Inc. or
their local retailer for a full refund.
Consumer Contact: Call Pamela Drake Inc. at (800) 966-3762
between 8 a.m. and 6 p.m. PT Monday through Friday, or visit the
firm's Web site: http://www.woodkins.com.
RALLY'S HAMBURGERS: Reaches Settlement For KY Securities Lawsuit
----------------------------------------------------------------
Rally's Hamburgers, Inc. reached a settlement for the
consolidated securities class action filed against it in the
United States District Court for the Western District of
Kentucky, Louisville Division, styled "Jonathan Mittman et al.
v. Rally's Hamburgers, Inc., et al."
In January and February 1994, two putative class action lawsuits
were filed, purportedly on behalf of the Company's stockholders
against the Company, Burt Sugarman and GIANT GROUP, LTD. and
certain of the Company's former officers and directors and its
auditors. The cases were subsequently consolidated.
The complaints allege that the defendants violated the
Securities Exchange Act of 1934, among other claims, by issuing
inaccurate public statements about the Company's in order to
arbitrarily inflate the price of its common stock. The
plaintiffs seek compensatory and other damages, and costs and
expenses associated with the litigation.
On April 15, 1994, the Company filed a motion to dismiss and a
motion to strike. On April 5, 1995, the Court struck certain
provisions of the complaint but otherwise denied the motion to
dismiss. In addition, the Court denied plaintiffs' motion for
class certification; the plaintiffs renewed this motion, and
despite opposition by the defendants, the Court granted such
motion for class certification on April 16, 1996, certifying a
class from July 20, 1992 to September 29, 1993. On August 22,
2003, the court ruled for the Company on all counts, and
subsequently the plaintiffs filed an appeal. On December 21,
2004, the Company settled this suit and recovered $2.0 million
in legal expenses.
RUBIO'S RESTAURANTS: Plaintiffs File Consolidated Overtime Suit
---------------------------------------------------------------
Plaintiffs filed a consolidated class action against Rubio's
Restaurants, Inc. in the Orange County Superior Court in
California, alleging violations of the state's overtime wage
laws.
On June 28, 2001, a former employee, who worked in the position
of general manager, filed a class action complaint. A second
similar class action complaint was filed in the same court on
December 21, 2001, on behalf of another former employee who
worked in the positions of general manager and assistant
manager. The Company classifies both positions as exempt. The
former employees each purport to represent a class of former and
current employees who are allegedly similarly situated. These
cases currently involve the issue of whether employees and
former employees in the general and assistant manager positions
who worked in California units during specified time periods
were misclassified as exempt and deprived of overtime pay. In
addition to unpaid overtime, these cases seek to recover waiting
time penalties, interest, attorneys' fees and other types of
relief on behalf of the current and former employees that these
former employees purport to represent.
These cases are in the stages of discovery, and the status of
the class action certification is yet to be determined for both
suits. The two cases have been consolidated into one action.
The Company continues to evaluate results in similar proceedings
and to consult with advisors with specialized expertise, it
stated in a disclosure to the Securities and Exchange
Commission.
SCIENCE APPLICATIONS: Employees Launch Overtime Wage Suit in CA
---------------------------------------------------------------
Science Applications International Corporation (SAIC) faces a
class action filed in the California Superior Court for the
County of San Diego, styled "Gracian v. SAIC."
A former employee filed the suit on March 4, 2005 on behalf of
herself and others similarly situated. The suit alleges that
the Company improperly required exempt salaried and professional
employees in the State of California to utilize their paid leave
balances for partial day absences. The plaintiffs contend that
the Company's policy violates California law and seek, among
other things, unpaid vacation balance allegedly owed to
plaintiffs, overtime compensation, punitive damages and attorney
fees.
SCO GROUP: NY Court Preliminarily Approves Stock Suit Settlement
----------------------------------------------------------------
The United States District Court for the Southern District of
New York granted preliminary approval to the settlement of the
consolidated securities class action filed in the United States
District Court for the Southern District of New York against SCO
Group, Inc., certain of its officers and directors, and the
underwriters of the Company's initial public offering.
The consolidated complaint alleges certain improprieties
regarding the circumstances surrounding the underwriters'
conduct during the Company's initial public offering and the
failure to disclose such conduct in the registration statement
in violation of the Securities Act of 1933, as amended.
The consolidated complaint also alleges that, whether or not the
Company's officers or directors were aware of the underwriters'
conduct, the Company and those officers and directors have
statutory liability under the securities laws for issuing a
registration statement in connection with the Company's initial
public offering that failed to disclose that conduct. The
consolidated complaint also alleges claims solely against the
underwriters under the Securities Act of 1933 and the Securities
Exchange Act of 1934, as amended.
Over 300 other issuers, and their underwriters and officers and
directors, have been sued in similar cases pending in the same
court. In September 2002, the plaintiffs agreed to dismiss the
individual defendants, but may elect to bring the individual
defendants back into the case at a later date.
The plaintiffs, issuers and the insurance companies have
negotiated a Memorandum of Understanding (MOU) with the intent
of settling the dispute between the plaintiffs and the issuers.
The Company has executed the MOU and has been advised that
almost all (if not all) of the issuers have elected to proceed
under the MOU. The settlement agreement was then submitted to
the court for approval. If the settlement agreement is approved
by the court, and if no cross-claims, counterclaims or third-
party claims are later asserted, this action will be dismissed
with respect to its directors and the Company.
The suit is styled "IN RE SCO GROUP INC. INITIAL PUBLIC OFFERING
SECURITIES LITIGATION," filed in relation to "IN RE INITIAL
PUBLIC OFFERING SECURITIES LITIGATION, Master File No. 21 MC 92
(SAS)," both pending in the United States District Court for the
Southern District of New York, under Judge Shira N. Scheindlin.
The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
SHAW GROUP: Plaintiffs File Consolidated Securities Suit in LA
--------------------------------------------------------------
Plaintiffs filed a consolidated amended securities class action
against The Shaw Group, Inc. and certain of its current officers
in the United States District Court for the Eastern District of
Louisiana.
Several purported shareholder class action lawsuits were
initially filed alleging violations of federal securities laws.
The first filed lawsuit is styled "Earl Thompson v. The Shaw
Group Inc. et al., Case No. 04-1685." The complaint alleges
claims under Sections 10(b) and Rule 10(b-5) promulgated
thereunder and 20(a) of the Securities Exchange Act of 1934 on
behalf of a class of purchasers of the Company's common stock
during the period from October 19, 2000 to June 10, 2004. The
complaint alleges, among other things, that:
(1) certain of the Company's press releases and SEC filings
contained material misstatements and omissions,
(2) that the manner in which the Company accounted for
certain acquisitions was improper and
(3) that the Company improperly recorded revenue on certain
projects, and as a result, its financial statements
were materially misstated at all relevant times.
Since the filing of the "Thompson" lawsuit, nine additional
purported shareholder class action lawsuits have been filed and
other actions may also be commenced. Each of the additional
lawsuits includes the same defendants, and essentially alleges
the same statutory violations based on the same or similar
alleged misstatements and omissions. All of these actions have
been consolidated under the Thompson caption in the Eastern
District of Louisiana and the Court has appointed a lead
plaintiff to represent the members of the purported class. The
consolidated actions have not been certified as class actions by
the Court.
The suit is styled "Thompson et al v. Shaw Group, Inc., et al,
case no. 04-CV-1685," filed in the United States District Court
for the Eastern District of Louisiana under Judge Helen G.
Berrigan.
Lawyers for the plaintiffs are:
(i) Peter E. Seidman, Milberg Weiss Bershad Hynes & Lerach
LLP, One Pennsylvania Plaza, New York, NY 10119-0165
Phone: (212) 594-5300
(ii) Lewis Stephen Kahn, Kahn Gauthier Law Group, LLC, 650
Poydras St., Suite 2150, New Orleans, LA 70130, Phone:
504-455-1400
(iii) Joel R. Waltzer, Waltzer & Associates, 14349 Chef
Menteur Hwy., P. O. Box 29423, Suite D, New Orleans, LA
70189, Phone: 504-254-4400
(iv) Darren J. Robbins, Lerach Coughlin Stoia Geller Rudman
& Robbins LLP, 401 B Street, Suite 1700, San Diego, CA
92101, Phone: 619-231-1058
(v) John Donellan Fitzmorris, Jr., John D. Fitzmorris, Jr.,
Attorney at Law, 210 Baronne St., Suite 1122, New
Orleans, LA 70112, 504-586-9395
(vi) David A. Rosenfeld, Lerach Coughlin Stoia Geller Rudman
& Robbins, LLP, 200 Broadhollow Rd., Suite 406,
Melville, NY 11747, Phone: 631-367-7100
Lawyers for the defendants are:
(a) Steven W. Copley, Gordon, Arata, McCollam, Duplantis &
Eagan LLP, 201 St. Charles Ave., Suite 4000, New
Orleans, LA 70170-4000, Phone: (504) 582-1111
(b) J. J. (Jerry) McKernan, McKernan Law Firm, 8710
Jefferson Hwy., Baton Rouge, LA 70809, Phone: 225-926-
1234
(c) Clifford Thau, Steven R. Paradise of Vinson & Elkins,
LLP, 666 Fifth Ave., 26th Floor, New York, NY 10103,
Phone: 212-237-0007
TIPPINGPOINT TECHNOLOGIES: NY Court Preliminarily OKs Settlement
----------------------------------------------------------------
The United States District Court for the Southern District of
New York granted preliminary approval to the settlement of the
consolidated securities class action filed against TippingPoint
Technologies, Inc., two of its current and former officers and
directors, as well as the managing underwriters in its initial
public offering. The lawsuit, which is part of a consolidated
action that includes over 300 similar actions, is captioned "In
re Initial Public Offering Securities Litigation, Brian Levey
vs. TippingPoint Technologies, Inc., et al., No. 01 CV 10976."
The principal allegation in the lawsuit is that the defendants
participated in a scheme to manipulate the initial public
offering and subsequent market price of the Company's stock by
knowingly assisting the underwriters' requirement that certain
of their customers had to purchase stock in a specific initial
public offering as a condition to being allocated shares in the
initial public offerings of other companies. The purported
plaintiff class for the lawsuit is comprised of all persons who
purchased Company stock from March 17, 2000 through December 6,
2000. The suit seeks rescission of the purchase prices paid by
purchasers of shares of Company common stock.
On September 10, 2002, the Company's counsel and counsel for
plaintiffs entered into an agreement pursuant to which the
plaintiffs dismissed, without prejudice, the Company's former
and current officers and directors from the lawsuit. In May
2003, a memorandum of understanding was executed by counsel for
plaintiffs, issuer-defendants and their insurers setting forth
terms of a settlement that would result in the termination of
all claims brought by plaintiffs against the issuer-defendants
and individual defendants named in the lawsuit.
In August 2003, the Company's Board of Directors approved the
settlement terms described in the memorandum of understanding.
In May 2004, the Company signed a settlement agreement on behalf
of itself and its current and former directors and officers with
the plaintiffs. This settlement agreement formalizes the
previously approved terms of the memorandum of understanding
and, subject to certain conditions, provides for the complete
dismissal, with prejudice, of all claims against the Company and
its current and former directors and officers.
Any direct financial impact of the settlement is expected to be
borne by the Company's insurers. The settlement is subject to
numerous conditions, including final approval by the court.
There can be no assurance that such conditions will be met or
that the court will approve the terms of the settlement
agreement. If the court rejects the settlement agreement, in
whole or in part, or the settlement does not occur for any other
reason and the litigation against the Company continues, the
Company intends to defend this action vigorously, and to the
extent necessary, to seek indemnification and/or contribution
from the underwriters in its initial public offering pursuant to
its underwriting agreement with the underwriters.
The suit is styled "In re Initial Public Offering Securities
Litigation, Brian Levey vs. TippingPoint Technologies, Inc., et
al., No. 01 CV 10976," filed in relation to "IN RE INITIAL
PUBLIC OFFERING SECURITIES LITIGATION, Master File No. 21 MC 92
(SAS)," both pending in the United States District Court for the
Southern District of New York, under Judge Shira N. Scheindlin.
The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
WAL-MART STORES: Former Employee Launches Wage Lawsuit in SD
------------------------------------------------------------
Aberdeen resident John Luce launched a lawsuit seeking class
action status against Wal-Mart, claiming the retailer cheated
him and other employees out of wages, The Associated Press
reports.
Mr. Luce, 24, who worked for the Aberdeen Wal-Mart for more than
two years before leaving in March filed the suit in Brown County
Circuit Court, naming Wal-Mart Stores Inc. and a subsidiary,
Sam's West Inc., as defendants.
Attorney Matthew Tobin of the law firm of Johnson, Heidepriem,
Miner, Marlow & Janklow in Sioux Falls told AP that the lawsuit,
which also sought unspecified damages in a jury trial,
potentially could include employees from every Wal-Mart and
Sam's Club across South Dakota.
Mr. Tobin explains that Wal-Mart has 30 days to answer the
lawsuit if they fail to respond by that time a judge will then
decide whether to grant class action status.
Christi Davis Gallagher, a spokeswoman for Wal-Mart,
headquartered in Bentonville, Arkansas told AP, "We have not yet
seen the lawsuit. I couldn't comment on the specifics. However,
I can tell you that our policy is to pay associates for every
minute they work."
According to the lawsuit, Wal-Mart failed to pay hourly
employees for all time worked, including overtime hours, and
failed to provide employees with accurate itemized wage
statements.
New Securities Fraud Cases
BEARINGPOINT INC.: Smith & Smith Lodges Securities Lawsuit in VA
----------------------------------------------------------------
The law firm of Smith & Smith LLP initiated a securities class
action lawsuit on behalf of shareholders who purchased
securities of BearingPoint, Inc. ("BearingPoint" or the
"Company") (NYSE:BE), between August 14, 2003 and April 20,
2005, inclusive (the "Class Period"). The class action lawsuit
was filed in the United States District Court for the Eastern
District of Virginia.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period
concerning the Company's financial performance, thereby
artificially inflating the price of BearingPoint securities. No
class has yet been certified in the above action.
For more details, contact Howard Smith, Esq. of Smith & Smith
LLP by Mail: 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020 by Phone: (866)-759-2275 or by E-mail:
howardsmithlaw@hotmail.com.
DORAL FINANCIAL: Smith & Smith Files Securities Fraud Suit in NY
----------------------------------------------------------------
The law firm of Smith & Smith LLP initiated a securities class
action lawsuit on behalf of shareholders who purchased
securities of Doral Financial Corporation ("Doral" or the
"Company") (NYSE:DRL) between October 10, 2002 and April 19,
2005, inclusive (the "Class Period"). The class action lawsuit
was filed in the United States District Court for the Southern
District of New York.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period
concerning the Company's operations and prospects, thereby
artificially inflating the price of Doral securities. No class
has yet been certified in the above action.
For more details, contact Howard Smith, Esq. of Smith & Smith
LLP by Mail: 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020 by Phone: (866)-759-2275 or by E-mail:
howardsmithlaw@hotmail.com.
FRIEDMAN BILLINGS: Brodksy & Smith Lodges Securities Suit in NY
---------------------------------------------------------------
The Law offices of Brodsky & Smith, LLC initiated a securities
class action lawsuit on behalf of shareholders who purchased the
common stock and other securities of Friedman, Billings, Ramsey
Group, Inc. (NYSE:FBR) ("Friedman" or the "Company") between
January 29, 2003 to April 25, 2005 inclusive (the "Class
Period"). The class action lawsuit was filed in the United
States District Court for the Southern District of New York.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period,
thereby artificially inflating the price of FBR securities. No
class has yet been certified in the above action.
For more details, contact Evan J. Smith, Esq. or Marc L.
Ackerman, Esq. of Brodsky & Smith, LLC by Mail: Two Bala Plaza,
Suite 602, Bala Cynwyd, PA 19004 by Phone: 877-LEGAL-90 by E-
mail: clients@brodsky-smith.com or visit their Web site:
http://www.brodsky-smith.com.
FRIEDMAN BILLINGS: Schiffrin & Barroway Lodges Stock Suit in NY
---------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP filed a class action
lawsuit in the United States District Court for the Southern
District of New York on behalf of purchasers of Friedman,
Billings, Ramsey Group, Inc. ("FBR" or the "Company") (NYSE:
FBR) common stock during the period between January 29, 2003 and
April 25, 2005 (the "Class Period").
The complaint charges FBR and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. FBR is an investment bank that provides investment
banking, institutional brokerage and asset management services,
and invests as principal in mortgage-backed securities and
merchant banking investments. More specifically, the Complaint
alleges that the Company failed to disclose and misrepresented
the following material adverse facts, known to defendants or
recklessly disregarded by them:
(1) that the Company was being negatively impacted by its
role as a placement agent for an insurer in a PIPE
("private investment in public equity") transaction in
2001;
(2) that as a result of the 2001 transaction, the Company
was forced to take $7.5 million dollar charge, which
adversely affected FBR's earnings; and
(3) that the Company's earnings were being adversely
impacted by interest rate increases.
On November 9, 2004, FBR filed its third quarter 2004 Form 10-Q
in which it disclosed an SEC and NASD investigation concerning
its role in 2001 as a placement agent for an issuer in a PIPE
(private investment in public equity) transaction. On April 4,
2005, Emanuel J. Friedman, the CEO, resigned. Then, on April 25,
2005, after the market closed, FBR announced disappointing
preliminary results for the first quarter 2005, including a
charge for its liability in the PIPE transaction. News of this
shocked the market. Shares of FBR fell $1.87 per share or 13
percent per share, on April 26, 2005, to close at $12.52 per
share.
For more details, contact Marc A. Topaz, Esq. or Darren J.
Check, Esq. of Schiffrin & Barroway, LLP by Phone:
1-888-299-7706 or 1-610-667-7706 or by E-mail:
info@sbclasslaw.com.
MARTEK BIOSCIENCES: Milberg Weiss Files Securities Lawsuit in MD
----------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman LLP announces
that a class action lawsuit was filed on May 13, 2005 on behalf
of purchasers of the securities of Martek Biosciences Corp.
("Martek" or the "Company") (NASDAQ: MATK) between December 9,
2004 and April 27, 2005, inclusive ("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 District of Maryland against defendants Martek, Henry
Linsert Jr. (CEO) and Peter L. Buzy (CFO).
The complaint alleges that Martek sells oils containing two
fatty acids, DHA, (docosahexaenoic acid) and ARA (arachidonic
acid), both of which, according to the Company, may provide
health benefits. The complaint alleges that the Company at all
relevant times stated in its public filings that the U.S.
Department of Agriculture, and other such organizations in
Europe and Asia, had compiled data showing that the dietary
intake of DHA and ARA is less than half the level recommended by
the World Health Organization and that, "this possible dietary
deficiency will result in an increase in demand for DHA-
supplemented products." Additionally, the Company stated that it
was increasing manufacturing capacity to keep apace with growing
demand and that growing demand would drive 2005 revenue to $290
million to $310 million, a year-over-year increase of 57% to
68%. The complaint further alleges that, unbeknownst to
investors defendants knew or recklessly disregarded that their
statements, with respect to demand for the Company's products,
had no reasonable basis in fact when made and to maintain the
appearance of high consumer demand for its products the Company
stuffed its distribution channels.
The truth was revealed on April 27, 2005. On that date,
defendants announced that full-year 2005 sales would be only
$220 to $240 million, well below guidance. On this news, Martek
shares fell $27.59, or 45.9%, to close at $32.49, making it the
biggest percentage loser on NASDAQ in trading that day, on
extremely heavy trading volume. Defendants were motivated to
engage in the fraudulent practices alleged herein in order to
allow the Company to complete an offering of 1,756,614 shares of
common stock at a public offering price of $49.10 per share for
net proceeds of approximately $81.4 million on January 26, 2005.
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.
MBNA CORPORATION: Bernard M. Gross Lodges Securities Suit in DE
---------------------------------------------------------------
The Law Offices Bernard M. Gross, P.C. initiated a class action
lawsuit, numbered 05-289, in the United States District Court
for the District of Delaware, against defendants MBNA
Corporation, Bruce L. Hammonds, Kenneth A. Vecchione, Richard K.
Struthers, Charles C. Krulak, John R. Cochran, III, Michael G.
Rhodes, Lance L. Weaver, and John W. Scheflen on behalf of all
persons who purchased MBNA securities (NYSE:KRB), between
January 20, 2005 and April 21, 2005.
The complaint charges MBNA, Bruce L. Hammonds, Kenneth A.
Vecchione, Richard K. Struthers, Charles C. Krulak, John R.
Cochran, III, Michael G. Rhodes, Lance L. Weaver and John W.
Scheflen with violations of the Securities Exchange Act of 1934.
More specifically, the Complaint alleges that the Company failed
to disclose and misrepresented the following material adverse
facts, which were known to defendants or recklessly disregarded
by them:
(1) that the Company grossly underestimated the cost of the
restructuring charge associated with the Company's
previously announced plan to reduce overhead by
offering early retirement to its workers;
(2) that the Company was experiencing a high level of
customer delinquencies;
(3) that the Company's customers were paying down their
credit card bills, particularly on high- interest-rate
cards, reducing the dollar value of managed loans in
MBNA's portfolios;
(4) that due to faster customer pay downs MBNA was forced
to reevaluate its interest-only("IO") strips resulting
in a $206 million loss in securitization activity; and
(5) that the Company's projected earnings growth of 10
percent in fiscal 2005 lacked in all reasonable basis
when made.
While defendants were aware of the adverse information and the
market was not, defendants were able to sell over 2.8 million
shares for proceeds of $75.9 million.
On April 21, 2005, MBNA announced net income for the first
quarter of 2005. The Company's results were significantly
impacted by the restructuring charge and unexpectedly high-
payment volumes from U.S. credit card customers. News of this
shocked the market. Shares of MBNA fell $3.83 per share or 16.57
percent, on April 21, 2005, to close at $19.28 per share.
For more details, contact Susan R. Gross, Esq. or Deborah R.
Gross, Esq. of the Law Offices Bernard M. Gross, P.C. 1515
Locust Street, Suite 200, Philadelphia, PA 19102 by Phone:
866-561-3600 or 215-561-3600 by E-mail: susang@bernardmgross.com
or debbie@bernardmgross.com or visit their Web site:
http://www.bernardmgross.com.
MOLSON COORS: Milberg Weiss Files Securities Fraud Lawsuit in DE
----------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman LLP initiated a
class action lawsuit on behalf of former shareholders of Molson
Inc. ("Molson") who received shares of Molson Coors Brewing
Company ("Molson Coors" or the "Company") (NYSE: TAP) as a
result of the February 9, 2005 merger of Molson by and into the
Adolph Coors Company ("Coors"), open market purchasers of the
common stock of Coors from July 22, 2004 to February 9, 2005,
inclusive and open market purchasers of the common stock of the
Company, following completion of the merger between Molson and
Coors on or about February 9, 2005 to April 27, 2005, inclusive,
and who were damaged by the decline in the Company's stock.
Plaintiff is seeking remedies under the Securities Exchange Act
of 1934 (the "Exchange Act").
The action is pending in the United States District Court for
the District of Delaware against the Company, Peter H. Coors, W.
Leo Kiely III, Charles M. Herington, Franklin W. Hobbs, Randall
Oliphant, Pamela Patsley, Wayne Sanders, Albert C. Yates,
Timothy V. Wolf, Peter Swinburn, David G. Barnes and Peter M.R.
Kendall.
The complaint alleges that in order to get the necessary
shareholder approval for the merger between Coors and Molson,
defendants failed to disclose, in press releases and Proxy
Statement(s), that at the time the merger closed on or about
February 9, 2005, which was well into the first fiscal quarter
of 2005, Coors was not operating according to plan and had
experienced material adverse changes in its business and at the
time of the merger, defendants had violated the terms of the
merger agreement and Proxy/Prospectus by failing to disclose
that Coors's business was being, and foreseeably would continue
to be, adversely impacted by conditions that were causing Coors
to perform well below plan and consensus estimates. Defendants
concealed these material facts because it enabled them to
effectuate the merger in a manner that allowed the relatives and
heirs of the Coors and Molson families to dominate the combined
Company, as detailed in the complaint.
On April 28, 2005, only weeks after the merger closed, before
the open of trading, defendants published a release announcing
disappointing results for the Company's first quarter of 2005.
Immediately following publication of this release, shares of the
Company fell precipitously, almost $14.50 per share, to $63.00
per share, a decline of almost 20%, a testament to investors'
surprise and disappointment in the results. The same day,
defendant O'Neill resigned from his post as Chair of Office of
Synergies and Integration, taking with him $4.8 million as a
severance payment.
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.
R&G FINANCIAL: Smith & Smith Lodges Securities Fraud Suit in NY
---------------------------------------------------------------
The law firm of Smith & Smith LLP initiated a securities class
action lawsuit on behalf of shareholders who purchased
securities of R&G Financial Corporation ("R&G" or the "Company")
(NYSE:RGF) between April 21, 2003 and April 25, 2005, inclusive
(the "Class Period"). The class action lawsuit was filed in the
United States District Court for the Southern District of New
York.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period
concerning the Company's financial performance, thereby
artificially inflating the price of R&G securities. No class has
yet been certified in the above action.
For more details, contact Howard Smith, Esq. of Smith & Smith
LLP by Mail: 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020 by Phone: (866)-759-2275 or by E-mail:
howardsmithlaw@hotmail.com.
TRIBUNE CO.: Stull Stull Lodges Securities Fraud Suit in N.D. IL
----------------------------------------------------------------
The law firm of Stull, Stull & Brody initiated a class action
lawsuit in the United States District Court for the Northern
District of Illinois, on behalf of all persons who purchased the
publicly traded securities of Tribune Company ("Tribune")
(NYSE:TRB) between January 24, 2002 and July 15, 2004, inclusive
(the "Class Period") against Tribune and certain of its officers
and/or directors.
On July 15, 2004, Tribune disclosed that the circulation of its
publications Newsday and Hoy had been overstated. Tribune
announced that it was conducting an internal investigation and
that it may refund the amounts that it had previously
overcharged its advertisers. The Complaint alleges that
Tribune's circulation numbers had been improperly inflated since
fiscal year 2001 and that, as a result, its financial results
during the Class Period were inflated and its liabilities were
understated. The Complaint alleges that these financial
misrepresentations were in violation of federal securities laws.
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 or visit their Web site: http://www.ssbny.com.
*********
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*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2005. All rights reserved. ISSN 1525-2272.
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