/raid1/www/Hosts/bankrupt/CAR_Public/050704.mbx
C L A S S A C T I O N R E P O R T E R
Monday, July 4, 2005, Vol. 7, No. 130
Headlines
AUTOCAR LLC: Recalls Heavy Duty Trucks Due To Accident Hazard
CALIFORNIA: Federal Judge Takes Over Prison Healthcare System
CAPSTONE TURBINE: NY Court Preliminarily OKs Lawsuit Settlement
COMFORT WOMEN: Appeals Court Junks Sexual Slavery Suit V. Japan
COMPUTER ASSOCIATES: NY Court Grants Motion To Vacate Settlement
EMERSON RADIO: NJ Court Yet To Rule on Securities Suit Dismissal
FLORIDA: Attorneys' Fees in Hungarian Gold Train Deal Questioned
GEOPHARMA INC.: Asks NY Court To Dismiss Securities Fraud Suit
HARVARD MEDICAL: Program Named As Defendant in Crematorium Suit
HOUSEHOLD INTERNATIONAL: IL Court Approves ERISA Suit Settlement
HPL TECHNOLOGIES: CA Securities Lawsuit Settlement Deemed Final
IDAHO: High Court Rejects Suit V. Sales, Cigarette Tax Increases
INDIANA: Gov't Inquiry Triggers Concrete Price Fixing Litigation
INTEL CORPORATION: AMD Launches Antitrust Violations Suit in DE
INTERMIX MEDIA: Settlement Fairness Hearing Set September 2005
INTERNATIONAL TRUCK: Recalls Heavy Duty Trucks For Fire Hazard
LIBERATE TECHNOLOGIES: Settles SEC Financial Reporting Charges
MATTEL COMPANY: Plaintiffs Withdraw IL Barbie Collectors Lawsuit
MBNA CORPORATION: Keller Rohrback Launches ERISA Investigation
MERCK & CO.: NJ Judge Queries VIOXX Lawyers Over Leaked Document
MISSOURI: Federal Judge Denies Legal Move to Block Medicaid Cuts
NATIONAL AUTO: Finalizes Settlement of All Shareholder Lawsuits
PHOEBE HEALTH: GA Court Dismisses Uninsured Patients' Lawsuit
PRICEWATERHOUSECOOPERS: Settles Lawsuit Over Homestore.com Audit
SELECTICA INC.: NY Court Preliminarily Approves Suit Settlement
SPORT CHALET: Plaintiffs Ask CA Court To Certify Overtime Suit
UNITED STATES: FAA Workers Weigh Legal Action in Pay Cap Dispute
WESTERN GAS: Reaches Settlement For Natural Gas Litigation in NY
WORLDCOM INC.: Ex-CEO Stripped of Assets as Part of Settlement
New Securities Fraud Cases
CONAGRA FOODS: Schiffrin & Barroway Lodges Securities Suit in NE
DRDGOLD LIMITED: Marc S. Henzel Files Securities Suit in S.D. NY
EXIDE TECHNOLOGIES: Schiffrin & Barroway Lodges Stock Suit in NJ
HILB ROGAL: Charles J. Piven Lodges Securities Fraud Suit in TX
LAZARD LTD.: Zwerling Schacter Files Securities Fraud Suit in NY
*********
AUTOCAR LLC: Recalls Heavy Duty Trucks Due To Accident Hazard
-------------------------------------------------------------
Autocar LLC is cooperating with the National Highway Traffic
Safety Administration (NHTSA) by voluntarily recalling 649 heavy
duty class 8 trucks, namely:
(1) AUTOCAR / WX, models 2003-2005
(2) AUTOCAR / WXLL, models 2003-2005
(3) AUTOCAR / WXR, models 2003-2005
On these trucks, the backup alarm motion sensor may not have
been installed correctly and may not sense when the vehicle
moves backwards under any circumstances. The vehicle may roll
backwards without the backup alarm sounding with the risk of
running over or crushing a person standing or working behind the
vehicle.
Dealers will reposition the motion sensor in relation to the
magnets that rotate when the vehicle moves. The manufacturer
has not yet provided an owner notification schedule. For more
details, contact the Company by Phone: 1-877-973-3486 or contact
the NHTSA auto safety hotline: 1-888-327-4236.
CALIFORNIA: Federal Judge Takes Over Prison Healthcare System
-------------------------------------------------------------
An alarmed federal judge seized control of California's woefully
inadequate prison health care system to ensure that inmates
receive the care they're guaranteed under the U.S. Constitution
as the toll of preventable deaths increased every week, The San
Jose Mercury News reports.
The judge's action, which is one of the most sweeping federal
takeover of a prison health care system in the nation's history,
cited "incompetence and outright depravity in the rendering of
medical care." U.S. District Court Judge Thelton Henderson said
he had no choice but to strip the Schwarzenegger administration
of management of the $1.1 billion-a-year prison medical system
and turn it over to an outside administrator. The San Francisco
judge estimated that an inmate dies every six or seven days due
to medical negligence or malpractice and describes a bureaucracy
engulfed in institutional inertia, unable to fix the problem.
Judge Henderson told the San Jose Mercury News he would move
within the next few weeks to name a temporary administrator who
could hire qualified physicians and then launch a search for a
permanent manager to crack down on mistreatment. Additionally,
he noted that his challenge is to find someone who administered
a major medical system like Johns Hopkins, received an MBA from
Stanford in medical management and served as a prison warden.
Attorneys for the nonprofit Prison Law Office, which brought the
action that resulted in Judge Henderson's landmark decision,
indicated they would support one of three court-appointed
experts as the interim administrator.
On the other hand state officials recently conceded inmates
receive shoddy care and indicated as well that they have no
plans to appeal the ruling. Instead, they expect to cooperate
with Mr. Henderson, who now will have the final say in health
care in prisons.
In a press statement, Corrections Secretary Roderick Hickman
said, "I have said all along that if something is broken it
needs to be fixed. The taxpayers of this state can't afford to
keep paying for repeated lawsuits that result from the same
kinds of problems such as inadequate health care, poor mental
health treatment and insufficient staffing."
Meanwhile, attorneys for the state and inmates described the
judge's decision as historic and told the San Jose Mercury News
that they were unaware of such a sweeping action undertaken in
any other prison health care system.
Mr. Henderson, who at 71 and already on part-time status, hailed
it as a "bold and uncharted adventure" that could last several
years. The bearded and bespectacled man told AP that he would
like "to retire and go fishing" but he feels an obligation to
provide humane treatment to the state's 16,000 inmates.
Individuals familiar with the case told the San Jose Mercury
News that the judge's decision is expected to shake up the
sprawling prison system, which effective Friday is changing its
name to the Department of Corrections and Rehabilitation as part
of a massive reorganization. They also pointed out that for one
of the first times, someone with an independent set of eyes and
broad power will be examining prison practices and that could
affect the closed culture of the state's 33 prisons.
The hearing, where the judge stated his intention to intervene,
was originally set to hear final arguments in the latest episode
of a class action lawsuit filed in 2001 by nine plaintiffs,
including inmate Marciano Plata. The state previously had
entered into a broad legal agreement intended to improve health
care.
Sitting in front of a U.S. flag in the quiet courtroom with
about 40 spectators, Mr. Henderson calmly described a trail of
mostly broken promises made by the state prison authorities
dating back 25 years. In the Plata case, Mr. Henderson stated
before the judge that over the past four years he's tried to
encourage the state "to fix what the state admits is a broken
system."
The litany of health care woes shows the rocky road the
administration of Governor Arnold Schwarzenegger faces in trying
to overhaul a dysfunctional prison system where costs defy
containment, inmate care is shoddy and guards wield enormous
political clout. Along the way, people die needlessly on the
inside, while the state spends millions of dollars to guard
comatose patients who cannot move, let alone escape.
CAPSTONE TURBINE: NY Court Preliminarily OKs Lawsuit 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 Capstone
Turbine Corporation, two of its then officers and the
underwriters of its initial public offering (IPO).
The consolidated suit was filed on behalf of purchasers of the
Company's common stock during the period from June 28, 2000 to
December 6, 2000. An amended complaint was filed on April 19,
2002. Plaintiffs allege that the underwriter defendants agreed
to allocate stock in the Company's June 28, 2000 initial public
offering and November 16, 2000 secondary offering to certain
investors in exchange for excessive and undisclosed commissions
and agreements by those investors to make additional purchases
of stock in the aftermarket at pre-determined prices. Plaintiffs
allege that the prospectuses for these two public offerings were
false and misleading in violation of the securities laws because
they did not disclose these arrangements.
A committee of the Company's Board of Directors conditionally
approved a proposed partial settlement with the plaintiffs in
this matter. The settlement would provide, among other things, a
release of the Company and of the individual defendants for the
conduct alleged in the action to be wrongful in the Amended
Complaint. 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 is
expected to be borne by the Company's insurers. The proposed
settlement is pending final approval by parties to the action
and the United States District Court Southern District of New
York.
The suit is styled "In Re Capstone Turbine Corp. Initial Public
Offering Securities Litigation, docket number 01-CV-11220,"
filed 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
COMFORT WOMEN: Appeals Court Junks Sexual Slavery Suit V. Japan
---------------------------------------------------------------
The United States Court of Appeals for the District of Columbia
Circuit dismissed for the second time a damages suit filed
against Japan by 15 Asian women, who were allegedly used as
"comfort women" or sexual slaves by Japanese military during
World War II, Kyodo News reports.
The "comfort women" were used as sex slaves by Japanese soldiers
and come from China, Taiwan, South Korea and the Philippines.
They filed the suit in 2000, alleging claims under the Alien
Claims Tort Act, a law enacted by Congress in the late 18th
century, originally designed to address damages caused by piracy
and provides foreign citizens the right to sue other foreign
citizens and entities for abuses of international law. It is
estimated than more than 200,000 women were forced into sexual
slavery and three-quarters of them did not survive the war.
Similar cases have been filed against the Japanese government,
but none have prevailed, an earlier Class Action Reporter story
(June 14,2003) reports.
Washington, D.C. Federal Judge Henry Kennedy rejected the suit
in 2001, concluding that, unlike ordinary prostitution, the
atrocities were an aspect of Japanese government policy and
thus, not commercial in nature. He scrutinized whether the
sexual torture to which the "comfort women" were subjected was
actually a "commercial activity" that would permit Japan to be
sued, but decided that the case presented a "political question"
not suitable for the courts.
Lawyers for Japan contended that the nation enjoys sovereign
immunity and that the case raises "political questions" amenable
to diplomatic or legislative solutions but not to lawsuits,
law.com reports. The State Department also supported Japan's
position, citing the 1951 peace treaty as applicable to Japan's
sovereign immunity - a position that was hugely criticized by
Asian-American activist groups.
The plaintiffs filed an appeal but the United States appeals
Court rejected the case in 2003. In July 2004, the Supreme
Court overturned the appellate court decision and ordered the
appellate court to reconsider the case.
In its opinion, the appellate court said that U.S. courts are
not authorized to hear the lawsuit case because the Japanese
government had "absolute immunity" from the lawsuit in the
United States under legal and political grounds.
"As we said when this case was previously before us, much as we
may feel for the plight of the appellants, the courts of the
United States simply are not authorized to hear their case,"
said the appellate court, which first heard the case in 2003.
"We hold the appellants' complaint presents a nonjusticiable
political question, namely, whether the governments of the
appellants' countries resolved their claims in negotiating peace
treaties with Japan."
"Our Constitution does not vest the authority to resolve that
dispute in courts," the court said, noting that it is "clear the
Allied powers intended that all war-related claims against Japan
be resolved through government-to-government negotiations rather
than through private tort suits."
While Tuesday's judgment is a major blow for the appellants, a
court official said the "parties may seek further hearings,"
Kyodo News reports.
The suit was initially styled "HWANG Geum Joo, et al.,
Plaintiffs, v. JAPAN, Defendant, Civil Action 00-02233 (HHK),"
filed in the United States District Court in Washington, D.C.,
under Judge Henry H. Kennedy. Representing the plaintiffs are
Michael D. Hausfeld and Agnieszka M. Fryszman, COHEN, MILSTEIN,
HAUSFELD & TOLL, P.L.L.C., 1100 New York Avenue, N.W. West
Tower, Suite 500, Washington, DC 20005-3934, Phone:
(202) 408-4600, Fax: (202) 408-4699, Website:
http://www.cmht.com
COMPUTER ASSOCIATES: NY Court Grants Motion To Vacate Settlement
----------------------------------------------------------------
The United States District Court for the Eastern District of New
York granted motions of the objectors to the settlement of the
stockholder and derivative litigation filed against Computer
Associates International, Inc. and certain of its officers to
take limited discovery prior to the Federal Court's approval of
the settlement.
The Company, its former Chairman and CEO Charles B. Wang, its
former Chairman and CEO Sanjay Kumar, and its Executive Vice
President Russell M. Artzt were defendants in a number of
stockholder class action lawsuits, the first of which was filed
July 23, 1998, alleging that a class consisting of all persons
who purchased the Company's common stock during the period from
January 20, 1998 until July 22, 1998 were harmed by misleading
statements, misrepresentations, and omissions regarding the
Company's future financial performance. These cases, which
sought monetary damages, were consolidated into a single action
in the United States District Court for the Eastern District of
New York, the proposed class was certified, and discovery was
completed.
Additionally, in February and March 2002, a number of
stockholder lawsuits were filed in the Federal Court against the
Company and Mr. Wang, Mr. Kumar, Ira H. Zar, the Company's
former Chief Financial Officer, and in one instance, Mr. Artzt.
The lawsuits generally alleged, among other things, that the
Company made misleading statements of material fact or omitted
to state material facts necessary in order to make the
statements, in light of the circumstances under which they were
made, not misleading in connection with the Company's financial
performance. Each of the named individual plaintiffs in the 2002
lawsuits sought to represent a class consisting of purchasers of
the Company's common stock and call options and sellers of put
options for the period from May 28, 1999, through February 25,
2002. The 2002 cases were consolidated, and the Company's
former independent auditor, Ernst & Young LLP, was named as a
defendant.
In addition, in May 2003, a class action lawsuit captioned "John
A. Ambler v. Computer Associates International, Inc., et al."
was filed in the Federal Court. The complaint in this matter, a
purported class action on behalf of the Computer Associates
Savings Harvest Plan (the CASH Plan) and the participants in,
and beneficiaries of the CASH Plan for a class period running
from March 30, 1998, through May 30, 2003, asserted claims of
breach of fiduciary duty under the federal Employee Retirement
Income Security Act (ERISA). The named defendants were the
Company, the Company's Board of Directors, the CASH Plan, the
Administrative Committee of the CASH Plan, and the following
current or former employees and/or directors of the Company:
(1) Charles B. Wang;
(2) Sanjay Kumar;
(3) Ira Zar;
(4) Russell M. Artzt;
(5) Peter A. Schwartz;
(6) Charles P. McWade; and
(7) various unidentified alleged fiduciaries of the CASH
Plan
The complaint alleged that the defendants breached their
fiduciary duties by causing the CASH Plan to invest in Company
securities and sought damages in an unspecified amount.
A derivative lawsuit was filed against certain current and
former directors of the Company, based on essentially the same
allegations as those contained in the February and March 2002
stockholder lawsuits discussed above. This action was commenced
in April 2002 in Delaware Chancery Court, and an amended
complaint was filed in November 2002. The defendants named in
the amended complaints were the Company as a nominal defendant,
current Company directors Mr. Artzt, Lewis S. Ranieri, and
Alfonse M. D'Amato, and former Company directors Ms. Shirley
Strum Kenny and Mr. Wang, Mr. Kumar, Willem de Vogel, Richard
Grasso, and Roel Pieper.
The derivative suit alleged breach of fiduciary duties on the
part of all the individual defendants and, as against the
current and former management director defendants, insider
trading on the basis of allegedly misappropriated confidential,
material information. The amended complaints sought an
accounting and recovery on behalf of the Company of an
unspecified amount of damages, including recovery of the profits
allegedly realized from the sale of common stock of the Company.
On August 25, 2003, the Company announced the settlement of all
outstanding litigation related to the above-referenced
stockholder and derivative actions as well as the settlement of
an additional derivative action filed in the Federal Court in
connection with the settlement. As part of the class action
settlement, which was approved by the Federal Court in December
2003, the Company agreed to issue a total of up to 5.7 million
shares of common stock to the shareholders represented in the
three class action lawsuits, including payment of attorneys'
fees. In January 2004, approximately 1.6 million settlement
shares were issued along with approximately $3.3 million to the
plaintiffs' attorneys for attorney fees and related expenses. In
March 2004, approximately 0.2 million settlement shares were
issued to participants and beneficiaries of the CASH Plan. On
October 8, 2004, the Federal Court signed an order approving the
distribution of the remaining 3.8 million settlement shares,
less administrative expenses. The order was amended in December
2004.
The Company issued the remaining 3.8 million settlement shares
in December 2004. Of the 3.8 million settlement shares,
approximately 51,000 were used for the payment of administrative
expenses in connection with the settlement, approximately 76,000
were liquidated for cash distributions to class members entitled
to receive a cash distribution and the remaining settlement
shares were distributed to class members entitled to receive a
distribution of shares.
In settling the derivative suit, which settlement was also
approved by the Federal Court in December 2003, the Company
committed to maintain certain corporate governance practices.
Under the settlement, the Company and the individual defendants
were released from any potential claim by shareholders relating
to accounting-related or other public statements made by the
Company or its agents from January 1998 through February 2002
(and from January 1998 through May 2003 in the case of the
employee ERISA action), and the individual defendants were
released from any potential claim by the Company or its
shareholders relating to the same matters. Ernst & Young LLP is
not a party to the settlement.
The settlement was reviewed by the independent directors who
chair the Corporate Governance, Audit, and Compensation and
Human Resource Committees of the Board of Directors as well as
by all non-interested, independent directors who were not named
in any of the suits. It was also approved by the Board's
independent directors as a whole.
On October 5, 2004 and December 9, 2004, four purported Company
shareholders filed motions to vacate the Order of Final Judgment
and Dismissal entered by the Federal Court in December 2003 in
connection with the settlement of the derivative action. These
motions primarily seek to void the releases that were granted to
the individual defendants under the settlement. On December 7,
2004, a motion to vacate the Order of Final Judgment and
Dismissal entered by the Federal Court in December 2003 in
connection with the settlement of the 1998 and 2002 stockholder
lawsuits discussed above was filed by Sam Wyly and certain
related parties. The motion seeks to reopen the settlement to
permit the shareholders to pursue individual claims against
certain present and former officers of the Company. The motion
states that these shareholders do not seek to file claims
against the Company. These motions have been fully briefed. On
June 14, 2005, the Federal Court granted that the motion be
allowed to take limited discovery prior to the Federal Court's
ruling on these motions. A hearing date has yet to be scheduled.
EMERSON RADIO: NJ Court Yet To Rule on Securities Suit Dismissal
----------------------------------------------------------------
The United States District Court for the District of New Jersey
has yet to rule on Emerson Radio Corporation's motion seeking
the dismissal of the consolidated securities class action filed
against it, Geoffrey Jurick, Kenneth Corby and John Raab.
Between September 4, 2003 and October 30, 2003, several putative
class action lawsuits were filed on behalf of purchasers of the
Company's publicly traded securities between January 29, 2003
and August 12, 2003. On December 17, 2003, the Court entered a
Joint Stipulation and Order consolidating these putative class
actions under the caption "In Re Emerson Radio Corp. Securities
Litigation, 03cv4201 (JLL)." Further to that Stipulation and
Order, lead plaintiff was appointed and co-lead counsel and co-
liaison counsel were approved by the Court in the Consolidated
Action. Consistent with the Stipulation and Order, the
plaintiffs filed an Amended Consolidated Complaint (the "Amended
Complaint") that, among other things, added Jerome Farnum, one
of Emerson's directors, as an individual defendant in the
litigation.
Generally, the Amended Complaint alleges that the Company and
the Individual Defendants violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
there under, by issuing certain positive statements during the
Class Period regarding the Company's ability to replace lost
revenues attributable to the Hello Kitty(R) license and omitting
to disclose that the Company suffered allegedly soured
relationships with its largest retail customers. The Amended
Complaint further alleges that these statements were materially
false and misleading when made because the Company allegedly
misrepresented and omitted certain adverse facts which then
existed and disclosure of which was necessary to make the
statements not false and misleading.
The Company and the individual defendants moved to dismiss the
Complaint in its entirety for failure to state a claim. The
motion to dismiss was fully briefed and was submitted to the
Court on October 15, 2004. The Court's decision on the motion
is pending.
The suit is styled "PELONE, et al v. EMERSON RADIO CORP., et al,
case no. 2:03-cv-04201-JLL-RJH," filed in the United States
District Court in New Jersey, under Judge Jose L. Linares.
Representing the Company is Steven M. Hecht of LOWENSTEIN
SANDLER PC, 65 Livingston Avenue, Roseland NJ 07068-1791, Phone:
(973) 597-2500, E-mail: shecht@lowenstein.com. Representing the
plaintiffs are Joseph J. DePalma, LITE, DEPALMA, GREENBERG &
RIVAS, LLC, Two Gateway Center, 12th Floor, Newark NJ 07102-5003
Phone: (973) 623-3000, E-mail: jdepalma@ldgrlaw.com; and Andrew
Robert Jacobs, EPSTEIN FITZSIMMONS BROWN GIOIA JACOBS & SPROULS,
245 Green Village Road, PO Box 901, Chatham Township NJ 07928-
0901, Phone: (973) 593-4900, E-mail: ajacobs@epsteinfitz.com.
FLORIDA: Attorneys' Fees in Hungarian Gold Train Deal Questioned
----------------------------------------------------------------
The law firms involved in an out-of-court settlement of the
Hungarian Gold Train case petitioned the judge for $3.85 million
of the $25.5 million that the American government has agreed to
pay, The Forward reports.
In their petition, which was filed recently, the lawyers cited
the 16,000 hours of work they have put in over the last five
years. Though a number of the plaintiffs in the lawsuit provided
vocal support for their lawyers, the fee request has drawn
criticism from some insiders in the fight for Holocaust
restitution.
As previously reported in the June 30, 2004 edition of the Class
Action Reporter, families claimed in the suit that an estimated
$50 million to $120 million in gold, jewels, art and other
valuables was taken from 800,000 Hungarian Jews during the
closing days of World War II by Nazi Germany and later by the
U.S. Army, from generals on down from the train that wound its
way through Hungary and Austria.
The American government denied the train even existed up until
1999. During that period, the Clinton administration's Advisory
Commission on Holocaust Assets declassified documents from the
National Archives that clearly show American soldiers had helped
themselves to the Gold Train loot to decorate their villas and
officers clubs while overseeing the rebuilding of Europe.
The Commission's findings sparked the filing of the suit in
2001, which was actually the only Holocaust claim to name the
United States as a defendant. About 30,000 Hungarian Jews and
their survivors seek a trial on class action claims of large-
scale looting and official denials about the train.
Eventually, the settlement was reached between the families and
the government. That settlement stipulated that individual
plaintiffs will not receive any money instead the $21 million is
slated for social service agencies serving Hungarian survivors,
$3.85 million for legal fees, and $500,000 to set up historical
archives. It also stipulates that potential members of the class
will be notified and given the opportunity to object. Aside from
the money, the settlement also requires the U.S. government to
admit plundering Jewish valuables from a Nazi Gold Train and
open up historical records.
Since its filing in 2001, the suit against the American
government has been controversial, because of the unexpectedly
spirited defense put up by the United States Department of
Justice and in part because there was little evidence tracing
objects on the train to any specific Holocaust survivor.
The lawyers though argued that given the case's difficulty,
their fee requests were "deeply discounted." Jonathan Cuneo, the
lead counsel from the three law firms working on the case stated
in their petition, "We achieved this as a result of a tremendous
amount of work. There has to be some reasonable reckoning at the
end of the day. Otherwise, no attorney would do this kind of
case again."
Roman Kent, a survivor leader who was not involved in the
matter, has written to the presiding judge in Miami, U.S.
District Judge Patricia Seitz, asking her to reject the lawyers'
request when she finalizes the settlement in September. Mr.
Kent told, the Forward, "I think it's outrageous - scandalous -
taking advantage of the survivors and trying to make millions
for the lawyers."
In his letter to the judge, Mr. Kent argued that the percentage
taken by the lawyers should be closer to what it was in other
Holocaust restitution class action suits, like those against the
Swiss banks and German industry in which the lawyers took
between 1% and 2% of the overall settlement.
The overall settlement was significantly lower than what the
plaintiffs had sought originally. When the case began, survivors
were asking the American government to pay $10,000 to any
qualifying Hungarian survivors - of which there are about
62,000. Because a division of the $25.5 million would have been
minuscule, the preliminary settlement allows for no direct
payments. Any money the lawyers don't receive will go to social
services for needy Hungarian Holocaust survivors.
According to people who took part in the negotiations leading up
to the settlement, the lawyers' fees ranging between $450 and
$500 an hour for the lead counsels, were one of the major bones
of contention during the discussions. Sources told the Forward
that the lawyers asked for $5 million, but they were eventually
worked down to a $3.85 million cap in the final days of the
negotiations. They also stated that other fees have also drawn
the ire of critics. For example, Mark Talisman, the former vice
chairman of the U.S. Holocaust Memorial Museum, charged the law
firm $242,500 for the advice he provided to lawyers in the case.
Irving Rosner, an 82-year-old survivor who was the lead
plaintiff in the case, told the Forward that he thinks it's
mildly unfair that he is not receiving a penny after spending
time and energy attending hearings and meetings. But he was
quick to point out about the lawyers, "I know they put in a lot
of work," and added, "I didn't do it to get money."
GEOPHARMA INC.: Asks NY Court To Dismiss Securities Fraud Suit
--------------------------------------------------------------
GeoPharma, Inc. asked the United States District Court for the
Southern District of New York to dismiss the consolidated
securities class action filed against it and certain of its
officers.
In December 2004 and January 2005, five securities class action
lawsuits were filed, alleging violations of federal securities
laws in connection with certain press releases issued by the
Company relating to Belcher Pharmaceuticals' planned
introduction of Mucotrol. The suits were styled:
(1) Mat eVentures v. Kotha Sekharam and GeoPharma, Inc.
(SDNY 04 Civ. 9463);
(2) Moshayedi v. GeoPharma, Inc., Jugal Taneja, Mihir
Taneja, and Kotha Sekharam (SDNY 04 Civ. 9736);
(3) Sarno v. Mihir Taneja, Kotha Sekharam, and GeoPharma,
Inc. (SDNY 04 Civ. 9975);
(4) Farwell v. Kotha Sekharam and GeoPharma, Inc. (SDNY 05
Civ. 188); and
(5) Taylor v. Kotha Sekharam and GeoPharma, Inc. (SDNY 05
Civ. 258)
Plaintiffs, on behalf of themselves and all others similarly
situated, seek unspecified damages allegedly suffered in
connection with their respective purchases and sales of the
Company's securities during the Class period. On March 9, 2005
the Court consolidated the actions and appointed lead plaintiff
and lead counsel. On April 18, 2005 plaintiffs filed a
Consolidated Amended Class Action Complaint. On June 6, 2005
defendants filed a Motion to Dismiss the action. Plaintiffs'
Opposition papers are due to be filed by July 8, 2005, and
defendants' Reply papers are due to be filed by July 25, 2005.
The suit is styled "In Re: Geopharma, Inc. Securities
Litigation, case no. 1:04-cv-09463-SAS," filed in the United
States District Court for the Southern District of New York,
under Judge Shira A. Scheindlin. Representing the plaintiffs
are Samuel Howard Rudman of Lerach, Coughlin, Stoia, Geller,
Rudman & Robbins, LLP, 200 Broadhollow Road, Ste. 406, Melville,
NY 11747, Phone: 631-367-7100, Fax: 631-367-1173, E-mail:
srudman@lerachlaw.com; and Roy Laurence Jacobs of Roy Jacobs &
Associates, 60 East 42nd Street 46th Floor, New York, NY 10165,
Phone: 212-867-1156, Fax: 212-504-8343, E-mail:
rljacobs@pipeline.com. Representing the Company is Robert Allen
Scher of Foley & Lardner, LLP, 90 Park Avenue, New York, NY
10016, Phone: (212) 682-7474, Fax: (212) 687-2329, E-mail:
rscher@foley.com.
HARVARD MEDICAL: Program Named As Defendant in Crematorium Suit
---------------------------------------------------------------
Harvard Medical School's Anatomical Gifts Program, a donor
program that makes bodies available for medical training was
named as a defendant in the most recent lawsuit filed over
alleged mishandling of remains at an unlicensed New Hampshire
crematorium that was closed in February, The Associated Press
reports.
Filed against Harvard's program and various defendants including
Bayview Crematory, the complaint alleges that Harvard failed to
uphold promises it made to donors on the disposition of remains
after the program was finished with them. The suit, which was
filed in Essex Superior Court, also alleges that school failed
to ensure that remains turned over to the Seabrook, N.H.,
crematorium were properly handled and cremated. According to
the suit, which seeks damages for negligence and intentional
infliction of emotional distress, the defendants' actions "rose
to the level of mutilation and desecration of the body."
The suit was filed on behalf of Gloucester resident Geraldine
Favaloro, who seeks class action status representing other
survivors of Harvard program donors whose bodies were turned
over to Bayview. The suit states that the body of Ms. Favaloro's
mother, Betty Frontiero, was given to Harvard's program after
her February 2004 death and cremated nine months later at
Bayview.
In a recently issued press statement, Harvard Medical School
said that it was "very concerned by the published reports about
the alleged practices at Bayview Crematory." It added, "The
school did not contract directly with Bayview, and Bayview is no
longer used. The school remains committed to the proper handling
of anatomical gifts."
Ms. Favaloro's lawsuit is similar to recent lawsuits in
Massachusetts, New Hampshire and Maine that were filed on behalf
of customers of funeral homes that contracted with the
crematorium. Those complaints alleged that Bayview commingled
bodies while they were cremated, failed to keep accurate records
of bodies and either failed to return remains to families or
returned them in urns mixed with the ashes from other bodies.
As reported in previous edition of the Class Action Reporter,
the Bayview Crematory was shut down after authorities executing
a warrant for financial records found a decomposing body in a
broken refrigeration unit, two bodies in the same oven and ashes
without identification. Bayview had never registered with the
state, as required by law, and was never inspected by the state.
Prosecutors in Rockingham County, N.H. charged three people in
the investigation, including a man who authorities said ran the
business.
HOUSEHOLD INTERNATIONAL: IL Court Approves ERISA Suit Settlement
----------------------------------------------------------------
The United States District Court for the Northern District of
Illinois approved the settlement of the consolidated class
action filed against Household International, Inc., asserting
claims under the Employee Retirement Income Security Act (ERISA)
on behalf of participants in the Household International Tax
Reduction Investment Plan. The suit is styled "In re Household
International, Inc. ERISA Litigation, Master File No. 02 C 7921
(N.D. Ill)."
The consolidated and amended complaint essentially alleged that
the Company and the Administrative and Investment Committee of
the Plan, breached their fiduciary duties to the Plan
participants and beneficiaries by investing in the Company's
common stock and failing to disclose information to Plan
participants.
A motion to dismiss the complaint was filed in June 2003, which
was partially granted in March 2004. The claims that remained
essentially alleged that some or all of the defendants failed to
prudently manage plan assets by continuing to invest in, or
provide matching contributions of, Company stock. On October 8,
2004, the parties entered into a settlement agreement, which was
approved by the Court in November. The settlement provided for
a payment of $46.5 million that was paid into Plan accounts
after deduction of plaintiff's legal fees and expenses. The
settlement was entirely funded by insurance proceeds.
The suit is styled ""In re Household International, Inc. ERISA
Litigation, Master File No. 02 C 7921 (N.D. Ill)," filed in the
United States District Court for the Northern District of
Illinois, under Judge Samuel Der-Yeghiayan. Representing the
plaintiffs is Charles Robert Watkins of Susman & Watkins, Two
First National Plaza, Suite 600, Chicago, IL 60603, Phone:
(312) 346-3466. Representing the Company is Robert Y. Sperling,
Winston & Strawn LLP, 35 West Wacker Drive, 41st Floor, Chicago,
IL 60601, Phone: (312) 558-5600.
HPL TECHNOLOGIES: CA Securities Lawsuit Settlement Deemed Final
---------------------------------------------------------------
The settlement of the consolidated securities class action filed
against HPL Technologies, Inc., certain of its current and
former officers and directors and its independent auditors is
deemed final, after plaintiffs did not appeal the approval given
by the United States District Court for the Northern District of
California.
Between July 31, 2002 and November 15, 2002, several class-
action lawsuits were filed and later consolidated into a single
action. The suit alleges that the defendants violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, Rule
10b-5 promulgated thereunder, and Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 by making a series of material
misrepresentations as to the financial condition of the Company
during the class period of July 31, 2001 to July 19, 2002.
On March 11, 2005, the court granted final approval of the
Securities Class Action settlement. On April 13, 2005, the
period for appeals expired, and the settlement is now final.
The Company issued 5,319,613 new shares of common stock on May
11, 2005, in consideration for the settlement of the Securities
Class Action.
The suit, styled "Marie Casden, et al. v. HPL Technologies Inc.,
et al., case no. C-02-3510," is pending in the United States
District Court for the Northern District of California, under
Judge Vaughn Walker. Lead plaintiff is Fuller & Thaler Asset
Management, Inc. and counsel for the plaintiffs are Steven O.
Sidener, Joseph M. Barton and Gwendolyn R. Giblin of GOLD
BENNETT CERA & SIDENER LLP, 595 Market Street, Suite 2300, San
Francisco, California 94105-2835, Phone: (415) 777-2230 Fax:
(415) 777-5189.
IDAHO: High Court Rejects Suit V. Sales, Cigarette Tax Increases
----------------------------------------------------------------
Idaho Supreme Court rejected a lawsuit filed against the state,
alleging its 2003 sales and cigarette tax increases were
unconstitutional, the Idaho Press-Tribune reports.
Nampa resident Ralph Gallagher filed the suit on behalf of all
Idaho taxpayers, alleging that the state violated its own
constitutional requirement that revenue bills originate in the
House of Representatives when lawmakers passed the record $190
million tax increases. The suit asks the courts to declare the
increases illegal and then give lawmakers a chance to pass new
bills.
The House started the cigarette tax bill in 2003 as a measure to
adjust the "occupancy tax," which determines when property taxes
are assessed on newly occupied property. The Senate changed the
bill to one that nearly doubled the state's cigarette tax to 29
cents per pack. The House sales tax bill would have allowed a
one-year boost in the tax from 5 percent to 5.5 percent. The
Senate made it a full 1-cent increase lasting two years, raising
$253 million more in taxes, the Press-Tribune reports.
The two-year, 1-cent temporary sales tax expires this Friday.
Mr. Gallagher alleged that the tax legislation was amended so
substantially in the Senate that nothing of the original bills
remained but their numbers. A unanimous Supreme Court
sidestepped much of that issue. Instead, it upheld a lower court
ruling that Mr. Gallagher lacked legal standing to challenge the
cigarette tax because he wasn't affected differently from other
smokers in the state. The court also said the tax legally was
on cigarette wholesalers, not individual purchasers, even though
wholesalers passed the increase on to consumers.
"Gallagher argued that such an amendment must not amount to a
wholesale substitution of the bill, leaving only the bill number
intact," Justice Roger Burdick wrote in the ruling, The Press-
Tribune reports. That argument, he wrote, "has not been
addressed."
Former Idaho Supreme Court Justice Robert Huntley, who
represented Gallagher, declined to comment on the case but said
he would not appeal the ruling, the Press-Tribune reports.
INDIANA: Gov't Inquiry Triggers Concrete Price Fixing Litigation
----------------------------------------------------------------
The price-fixing investigation into the Indianapolis-area ready
mix concrete industry triggered a trio of lawsuits by
contractors claiming they were forced to overpay for concrete,
The Indianapolis Star reports.
Boyle Construction Management Co. Inc. of Indianapolis filed a
class action complaint against concrete maker Irving Materials
Inc., a day after the Greenfield firm pleaded guilty and
accepted a $29.2 million fine, the highest fine ever in a
domestic antitrust case.
The U.S. Department of Justice's investigators from their
Chicago office contend Irving and rivals colluded to set ready
mix concrete prices in metropolitan Indianapolis between 2000
and 2004. Irving's rivals were not disclosed by investigators,
but now are thought to be coming under examination as the
Justice Department widens its probe with the help of current and
former Irving executives.
In a separate matter, CWE Concrete Construction Inc., a now
closed company in the Indianapolis suburb of Hamilton County,
filed two lawsuits in a federal court in Indianapolis. CWE
alleges American Concrete Co. Inc. of Indianapolis and Builder's
Concrete & Supply Co. Inc. of Fishers each conspired to fix
prices, American from 1997 through July 2001, and Builder's
Concrete from 2000 through April 2002.
The Boyle and CWE lawsuits though offered no details into how
concrete suppliers may have worked together to set prices. But,
CWE attorney Gene Leeuw, of the Leeuw Oberlies & Campbell law
firm in Indianapolis, told the Indianapolis Star that CWE
principal Christopher Elbrecht decided to file the lawsuit after
the Irving guilty plea came to light.
Federal investigators said Irving's action drove up the price of
ready mix concrete across the Indianapolis area for four years
for virtually every home and commercial customer. However,
federal officials never disclosed just how much prices were
escalated, thus contractors were left trying to figure out if
the concrete market was artificially high. Boyle and CWE did not
say how much they paid over normal for concrete.
In a related matter, officials at the Indiana Department of
Transportation began discussing recently whether to file a
lawsuit against Irving in an effort to recoup for any
overpayment on concrete used in road projects, according to Gary
Abell, a transportation department spokesman. He also told the
Indianapolis Star, "We're discussing that right now. We need to
see what it might entail. It's no easy undertaking."
The state usually had no direct dealing with Irving, Mr. Abell
added. He even pointed out to the Indianapolis Star that the
records of Irving concrete purchases are typically buried in
paperwork of prime contractors who had hired the Greenfield firm
as a supplier to them.
Boyle's case though suggests that the federal inquiry may widen
to include concrete purchases in the Chicago area. According to
Boyle attorney Irwin Levin, of the Cohen & Malad law firm in
Indianapolis, "I don't think it's a coincidence that the Chicago
office of the Department of Justice is handling this."
INTEL CORPORATION: AMD Launches Antitrust Violations Suit in DE
---------------------------------------------------------------
Advanced Micro Devices (AMD) (NYSE:AMD) filed an antitrust
complaint against Intel Corporation in the United States
District court for the District of Delaware under Section 2 of
the Sherman Antitrust Act, Sections 4 and 16 of the Clayton Act,
and the California Business and Professions Code.
The 48-page complaint explains in detail how Intel has
unlawfully maintained its monopoly in the x86 microprocessor
market by engaging in worldwide coercion of customers from
dealing with AMD. It identifies 38 companies that have been
victims of coercion by Intel -- including large scale computer-
makers, small system-builders, wholesale distributors, and
retailers, through seven types of illegality across three
continents.
"Everywhere in the world, customers deserve freedom of choice
and the benefits of innovation -- and these are being stolen
away in the microprocessor market," said Hector Ruiz, AMD
chairman of the board, president and chief executive officer.
"Whether through higher prices from monopoly profits, fewer
choices in the marketplace or barriers to innovation -- people
from Osaka to Frankfurt to Chicago pay the price in cash every
day for Intel's monopoly abuses."
x86 microprocessors run the Microsoft Windows(R), Solaris and
Linux families of operating systems. Even Apple, a pioneer of
the PC and one of the industry's enduring innovators, announced
that it would switch exclusively to x86 processors to run Mac
OS(R) software beginning in 2006.
Intel's share of this critical market currently counts for about
80 percent of worldwide sales by unit volume and 90 percent by
revenue, giving it entrenched monopoly ownership and super-
dominant market power. This litigation follows a recent ruling
from the Fair Trade Commission of Japan (JFTC), which found that
Intel abused its monopoly power to exclude fair and open
competition, violating Section 3 of Japan's Antimonopoly Act.
These findings reveal that Intel deliberately engaged in illegal
business practices to stop AMD's increasing market share by
imposing limitations on Japanese PC manufacturers.
Intel did not contest these charges. The European Commission has
stated that it is pursuing an investigation against Intel for
similar possible antitrust violations and is cooperating with
the Japanese authorities.
"You don't have to take our word for it when it comes to Intel's
abuses; the Japanese government condemned Intel for its
exclusionary and illegal misconduct," said Thomas M. McCoy, AMD
executive vice president, legal affairs and chief administrative
officer. "We encourage regulators around the world to take a
close look at the market failure and consumer harm Intel's
business practices are causing in their nations. Intel maintains
illegal monopoly profits at the expense of consumers and
computer manufacturers, whose margins are razor thin. Now is the
time for consumers and the industry worldwide to break free from
the abusive Intel monopoly."
The 48-page complaint, drafted after an intensive investigation
by AMD's lead outside counsel, Charles P. Diamond of O'Melveny &
Myers LLP, details numerous examples of what Diamond describes
as "a pervasive, global scheme to coerce Intel customers from
freely dealing with AMD to the detriment of customers and
consumers worldwide."
According to the complaint, Intel has unlawfully maintained its
monopoly by, among other things:
(1) Forcing major customers such as Dell, Sony, Toshiba,
Gateway, and Hitachi into Intel-exclusive deals in
return for outright cash payments, discriminatory
pricing or marketing subsidies conditioned on the
exclusion of AMD;
(2) According to industry reports, and as confirmed by the
JFTC in Japan, Intel has paid Dell and Toshiba huge
sums not to do business with AMD.
(3) Intel paid Sony millions for exclusivity. AMD's share
of Sony's business went from 23 percent in '02 to 8% in
'03, to 0%, where it remains today.
(4) Forcing other major customers such as NEC, Acer, and
Fujitsu into partial exclusivity agreements by
conditioning rebates, allowances and market development
funds (MDF) on customers' agreement to severely limit
or forego entirely purchases from AMD;
(5) Intel paid NEC several million dollars for caps on
NEC's purchases from AMD. Those caps assured Intel at
least 90% of NEC's business in Japan and imposed a
worldwide cap on the amount of AMD business NEC could
do.
(6) Establishing a system of discriminatory and retroactive
incentives triggered by purchases at such high levels
as to have the intended effect of denying customers the
freedom to purchase any significant volume of
processors from AMD;
(7) When AMD succeeded in getting on the HP retail roadmap
for mobile computers, and its products sold well, Intel
responded by withholding HP's fourth quarter 2004
rebate check and refusing to waive HP's failure to
achieve its targeted rebate goal; it allowed HP to make
up the shortfall in succeeding quarters by promising
Intel at least 90% of HP's mainstream retail business.
(8) Threatening retaliation against customers for
introducing AMD computer platforms, particularly in
strategic market segments such as commercial desktop;
(9) Then-Compaq CEO Michael Capellas said in 2000 that
because of the volume of business given to AMD, Intel
withheld delivery of critical server chips. Saying "he
had a gun to his head," he told AMD he had to stop
buying.
(10) According to Gateway executives, their company has paid
a high price for even its limited AMD dealings. They
claim that Intel has "beaten them into 'guacamole'" in
retaliation.
(11) Establishing and enforcing quotas among key retailers
such as Best Buy and Circuit City, effectively
requiring them to stock overwhelmingly or exclusively,
Intel computers, artificially limiting consumer choice;
(12) AMD has been entirely shut out from Media Market,
Europe's largest computer retailer, which accounts for
35 percent of Germany's retail sales.
(13) Office Depot declined to stock AMD-powered notebooks
regardless of the amount of financial support AMD
offered, citing the risk of retaliation.
(14) Forcing PC makers and tech partners to boycott AMD
product launches or promotions;
(15) Then-Intel CEO Craig Barrett threatened Acer's Chairman
with "severe consequences" for supporting the AMD
Athlon 64(TM) launch. This coincided with an
unexplained delay by Intel in providing $15-20M in
market development funds owed to Acer. Acer withdrew
from the launch in September 2003.
(16) Abusing its market power by forcing on the industry
technical standards and products that have as their
main purpose the handicapping of AMD in the
marketplace.
(17) Intel denied AMD access to the highest level of
membership for the Advanced DRAM technology consortium
to limit AMD's participation in critical industry
standard decisions that would affect its business.
(18) Intel designed its compilers, which translate software
programs into machine-readable language, to degrade a
program's performance if operated on a computer powered
by an AMD microprocessor.
To view the full text of the complaint, please visit the
Website: http://www.amd.com/breakfree. Leading publications
such as The Wall Street Journal, The Washington Post, The
Economist, San Jose Mercury News and CNET have recognized AMD as
a leader in microprocessor innovation.
AMD has achieved technological leadership in critical aspects of
the x86 market, particularly with its AMD Opteron(TM)
microprocessor, the first microprocessor to take x86 computing
from 32 to 64 bits, and with its dual-core processors. The
company has also stated its commitment to help deliver basic
computing and Internet connectivity to 50 percent of the world's
population by the year 2015.
In a statement, AMD said, "AMD stands for fair and open
competition and the value and variety competition delivers to
the marketplace. Innovative AMD technology allows users to
break free to reach new levels of performance, productivity and
creativity. Businesses and consumers should have the freedom to
choose from a range of competitive products that come from
continuous innovation. When market forces work, consumers have
choice and everyone wins."
For more information, please visit the Company's Website:
http://www.amd.com/breakfree. For more details, also contact
Dave Kroll, AMD Public Relations by Phone: 408-749-3310 (U.S.),
by E-mail: dave.kroll@amd.com; or contact Mike Haase, by Phone:
408-749-3124 (U.S.), by E-mail: mike.haase@amd.com; and Ruth
Cotter, by Phone: 408-749-3887 (U.S.) or by E-mail:
ruth.cotter@amd.com.
INTERMIX MEDIA: Settlement Fairness Hearing Set September 2005
--------------------------------------------------------------
Fairness hearing for the settlement of the consolidated
securities class action filed against Intermix Media, Inc.
(formerly eUniverse, Inc.), several of its current and former
officers and/or employees and its former auditor is set for
September 19,2005 in the United States District Court for the
Central District of California.
The suit arose out of the Company's restatement of quarterly
financial results for fiscal year 2003 and includes allegations
of, among other things, intentionally false and misleading
statements regarding the Company's business prospects, financial
condition and performance.
On June 9, 2004, the Court granted the Company's and other
defendants' motions to dismiss the lawsuit and plaintiffs were
permitted to file an amended complaint. On July 15, 2004, the
Securities Litigation was stayed in order to allow the parties
to pursue a mediated settlement of the claims asserted in the
matter. As a result of the mediation, in November of 2004 lead
plaintiff and the Company reached an agreement in principle to
settle the lawsuit for $5.5 million in cash, which the Company's
insurance carriers have agreed to fund. One of the Company's
insurance carriers, from whom the Company expects that
approximately $1.5 million of the settlement will be paid, has
reserved the right to seek reimbursement from the Company should
the carrier dispute that it was obligated to provide coverage
for the lawsuit. The parties entered into a Stipulation of
Settlement in January 2005 pursuant to which the parties propose
to settle the Securities Litigation for $5.5 million in cash
paid by the Company's insurance carriers. The Court has recently
preliminarily approved the settlement and formal notice of the
settlement has been mailed to class members.
The suit is styled "In Re: eUniverse Inc. Securities Litigation,
case no. 03-CV-3272," filed in the United States District Court
for the Central District of California, under Judge George H.
King. Representing the plaintiffs was Kaplan Fox & Kilsheimer,
LLP (New York, NY), 805 Third Avenue, 22nd Floor, New York, NY,
10022, Phone: 212.687.1980, Fax: 212.687.7714, E-mail:
info@kaplanfox.com. Representing the Company are Joseph H.
Park, Richard R. Mainland, and Robert W. Fischer, Fulbright &
Jaworski, 865 S Figueroa St, 29TH FL, Los Angeles, CA 90017-2576
USA, Phone: 213-892-9200.
INTERNATIONAL TRUCK: Recalls Heavy Duty Trucks For Fire Hazard
--------------------------------------------------------------
International Truck & Engine Corporation is cooperating with the
National Highway Traffic Safety Administration by voluntarily
recalling 51,580 heavy duty trucks, namely:
(1) INTERNATIONAL / 9100I, models 2003-2006
(2) INTERNATIONAL / 9200I, models 2003-2006
(3) INTERNATIONAL / 9400I, models 2003-2006
(4) INTERNATIONAL / 9900I, models 2003-2006
On certain 4x2 and 6x4 heavy duty trucks, the positive battery
cable between the batteries and the starter may rub against an
electrical ground cable between the starter and frame rail.
This chafing could cause an electrical short and/or fire.
Dealers will inspect the vehicles to determine if any chafing
has occurred between the positive and negative cables. If there
is no evidence of chafing, then a saddle clamp will be installed
to ensure cables will not rub. If there is evidence of chafing,
the damaged cables will be replaced and the swivel saddle clamp
installed. The recall is expected to begin on August 26,2005.
For more details, contact the Company by Phone: 1-800-448-7825
or contact the NHTSA auto safety hotline: 1-888-327-4236.
LIBERATE TECHNOLOGIES: Settles SEC Financial Reporting Charges
--------------------------------------------------------------
The Securities and Exchange Commission announced settled
financial reporting fraud charges in a lawsuit it previously
filed against Donald M. Fitzpatrick, the former Chief Operating
Officer and head of sales of Liberate Technologies. The
Commission's complaint charged Fitzpatrick with inflating
Liberate's revenues through fraudulent sales transactions, and
then misleading Liberate's finance department and outside
auditors about the deals, in a scheme that ran from November
2001 to September 2002. Liberate is a San Mateo, California-
based provider of software and services for interactive
television.
In the settlement announced today, Mr. Fitzpatrick consented to
a court order that directs him to pay a total of $222,499,
consisting of $97,499 in disgorgement of commissions and bonuses
plus prejudgment interest, and a monetary penalty of $125,000.
In addition, the order bars Fitzpatrick from serving as an
officer or director of any publicly traded company, and enjoins
him from future violations of Section 17(a) of the Securities
Act of 1933, Sections 10(b) and 13(b)(5) of the Securities
Exchange Act of 1934 and Rules 10b-5 and 13b2-2 thereunder.
Mr. Fitzpatrick consented to the order without admitting or
denying the allegations in the Commission's complaint.
The Commission's complaint, which was filed in September 2004,
alleged that Mr. Fitzpatrick used a variety of methods to
fraudulently inflate Liberate's financial results. These
included arranging a so-called "round-trip" transaction, in
which Liberate provided all of the funds that a customer needed
to purchase Liberate product; entering into a "side deal" that
allowed a customer to return excess Liberate product; and
granting undisclosed concessions to induce a customer to
purchase Liberate products. In each instance, the complaint
alleges, Fitzpatrick misrepresented or withheld key information
about the transactions from Liberate's finance department and
its outside auditors.
In January 2005, the Commission settled charges against former
Liberate sales executive Thomas R. Stitt for his role in the
fraud described above. Without admitting or denying the
allegations in the Commission's complaint, Mr. Stitt consented
to a court order that imposed disgorgement and penalties
totaling $78,000, as well as a ten-year officer and director bar
and an injunction against future securities law violations. The
action is styled, SEC v. Donald M. Fitzpatrick and Thomas R.
Stitt, Civil Action No. C 04 4120, USDC, NDCA.
MATTEL COMPANY: Plaintiffs Withdraw IL Barbie Collectors Lawsuit
----------------------------------------------------------------
Mattel Company and two doll collectors withdrew a massive six-
year lawsuit over Barbie doll pricing that was pending in
Madison County Circuit Court, The Madison County Record reports.
Previously, Judge Phillip Kardis had planned a June 30 hearing
at his Granite City court on all pending motions in the case,
however on June 17 attorneys told him to cancel the hearing. The
attorneys told the judge that the parties had settled and
stipulations would follow.
The protracted legal struggle, which generated a case file four
feet thick, was brought by Madison County resident Pamela
Cunningham and Cook County resident Reet Caldwell against Mattel
in 1999. They were claiming that the toy maker deceptively
advertised certain Barbie dolls as limited editions.
Court documents show that Ms. Cunningham was miffed because she
bought a $40 doll from a Traveling Sisters set through an
"exclusive" offer in a catalog, only to find another retailer
selling the doll without the Traveling Sisters label. On another
occasion she tried to buy Winter, which is the first doll in a
Four Seasons series. Informed that Winter was no longer
available, she ordered Spring for about $75, however she later
claims that Mattel then contacted her and offered Winter to her.
She and Reet Caldwell alleged breach of contract and violation
of the Illinois Consumer Fraud Act and thus sought certification
as representatives of a class of Barbie buyers. Primarily, the
case centered on the meaning of "limited edition."
As the case began, discovery disputes dragged on for three years
with plaintiffs' attorney Martin Perron of St. Louis blaming
Mattel for delays and moving for sanctions.
Defense attorney Phyllis Kupferstein of Los Angeles responded
that the motion was "filled with lies." She wrote that Mattel
produced thousands of pages of discovery.
In the ensuing court battle, St. Louis University marketing
professor James Fisher, an expert for the plaintiffs, said in a
deposition that customers generally understood that limited
edition meant a product was produced in relatively small
numbers.
Mattel attorney Diane Hutnyan of Los Angeles asked Mr. Fisher if
100,000 dolls was a relatively small number. Mr. Fisher said,
"No." Ms. Hutnyan asked if 50,000 was a relatively small number.
Fisher again said, "No." Ms. Hutnyan then asked if 30,000 was a
relatively small number. Finally, Mr. Fisher said, "I think you
are - you are trying - Well, I am not going to offer a precise
number."
At a hearing in 2002, Mr. Perron told Judge Kardis that limited
edition meant a relatively small number. Judge Kardis responded
with, "Relative to what?" He thus dismissed the complaint, but
he granted Mr. Perron leave to amend it.
Mr. Perron's amended complaint no longer relied on Illinois
consumer fraud law, instead it was based on California's Unfair
Competition Law.
In 2003, Judge Kardis certified the suit as a national class
action under California law, ruling that Mattel's headquarters
were in California, and that it sometimes sold directly to
consumers from there. He also ruled that that California law
required minimal proof of causation and injury and that even a
true statement might violate California law. He also pointed out
in his ruling that no defense under statute of limitations would
apply.
By that time, however, California voters had begun to understand
that their law might have caused great harm. A reform group,
Californians to Stop Shakedown Lawsuits, argued that the law
turned lawyers into bounty hunters. They placed an initiative on
the November 2004 ballot to rewrite the law, which was recently
passed.
Judge Kardis thus responded in January by decertifying the
Barbie suit as a class action. His ruling meant that Ms.
Cunningham and Ms. Caldwell could pursue their claims only as
individuals. As individuals, they settled.
MBNA CORPORATION: Keller Rohrback Launches ERISA Investigation
--------------------------------------------------------------
The law firm of Keller Rohrback L.L.P. launched an investigation
against MBNA Corporation ("MBNA" or the "Company") (NYSE:KRB)
for violations of the Employee Retirement Income Security Act of
1974 ("ERISA"). The investigation is regarding the investments
in Company stock by the MBNA Corp. 401(k) Plus Savings Plan (the
"Plan").
Keller Rohrback's investigation focuses on concerns that MBNA
and other Plan administrators may have breached their ERISA-
mandated fiduciary duties of loyalty and prudence to
participants and beneficiaries of the Plan. A breach may have
occurred if the fiduciaries failed to manage the assets of the
Plan prudently and loyally by investing a significant amount of
the assets in Company stock when it was no longer a prudent
investment for participants' retirement savings. A breach also
may have occurred if the fiduciaries withheld or concealed
material information from participants and beneficiaries of the
Plan with respect to the Company's business, financial results,
and operations, thereby encouraging participants and
beneficiaries to continue to make and maintain substantial
investments of Company stock in the Plan.
For more details, contact Jennifer Tuato'o, Paralegal of Keller
Rohrback L.L.P., Phone: (800) 776-6044, E-mail:
investor@kellerrohrback.com, Web site: http://www.erisafraud.com
or http://www.seattleclassaction.com.
MERCK & CO.: NJ Judge Queries VIOXX Lawyers Over Leaked Document
----------------------------------------------------------------
A New Jersey Superior Court judge handling lawsuits over Merck &
Co.'s withdrawn arthritis drug Vioxx questioned 12 attorneys In
an attempt to determine how The Associated Press obtained a
potentially damaging document, The Associated Press reports.
Though none admitted to having provided the document to the news
cooperative the effects of its being published were very
damaging. The document, inadvertently given by Merck to
plaintiff lawyers during evidence gathering in one of the
hundreds of Vioxx lawsuits, indicated Merck scientists were
mulling combining Vioxx with another compound to lower the risk
of heart attacks and strokes. It appeared to undermine Merck's
statements that company officials believed the drug was safe
before they pulled it from the market last September after a
Merck study showed long-term Vioxx use increased heart attack
and stroke risk.
Judge Carol E. Higbee in Atlantic City ruled on May 27 that the
document was privileged and could not be used at trial and thus
ordered attorneys with copies to destroy them or return them to
Merck immediately.
The Associated Press reported details in the document on June
22. A copy of the document, which the Whitehouse Station, New
Jersey-based Merck insisted was an attorney-client communication
between company scientists and in-house patent counsel, was
provided to The Associated Press on the condition that its
source not be identified.
Judge Higbee's clerk, who asked not to be identified by name,
told AP that the judge asked plaintiff attorneys whether they or
any associates had seen the document, had disclosed it to the
press or knew who had. He also adds that further hearings
involving both plaintiff and defense attorneys were scheduled
for Friday and for July 12.
According to experts familiar with the matter, If Judge Higbee
can determine who is responsible the judge would then hold
further proceedings to determine whether to impose sanctions,
find the attorney in contempt of court or pursue some other
option, the unidentified clerk said.
In a related matter, during a second Vioxx-related hearing
before Judge Higbee, attorneys gave oral arguments as to whether
the judge should grant class action status for a consumer fraud
lawsuit filed on behalf of a labor union health care plan, the
International Union of Operating Engineers Local 68 Welfare
Fund.
Attorneys Christopher Seeger and David Buchanan, representing
the fund, are asking Judge Higbee to allow them to sue Merck on
behalf of third-party health payors nationwide, such as HMOs and
other insurers, alleging that Merck committed fraud by not
disclosing important information about Vioxx.
Merck outside counsel Jeffrey Judd told AP afterward that he
argued before the judge that she should not allow a class action
suit, stating that consumer fraud laws vary considerably from
state to state and that third-party payors had different
information and did individual analyses in deciding whether to
cover Vioxx under prescription drug plans. Following the 3 1/2-
hour hearing, Judge Higbee stated that she would consider the
information and issue a ruling later.
Mr. Seeger, of New York City, is co-lead counsel on the
plaintiffs' steering committee guiding the initial phase of
federal Vioxx lawsuits. They have been consolidated under U.S.
District Judge Eldon E. Fallon in New Orleans until evidence
gathering is complete. Those cases will then go back to their
original jurisdictions for trial.
MISSOURI: Federal Judge Denies Legal Move to Block Medicaid Cuts
----------------------------------------------------------------
A federal judge in Missouri denied a legal attempt to block the
first round of cuts in the state's Medicaid program from taking
effect, The Associated Press reports.
As previously reported in the July 1, 2005 edition of the Class
Action Reporter, Medicaid recipients initiated a federal lawsuit
against the state, seeking to halt budget cuts that would begin
eliminating health care coverage for thousands of low-income
parents.
Seeking class action status and an injunction preventing anyone
from losing Medicaid benefits, the suit contends that the
Department of Social Services violated constitutional due
process rights by not providing parents adequate notice of the
cuts, and that department errors in calculating eligibility will
mean the erroneous terminations of thousands of people.
The Welfare Law Center in New York and the National Health Law
Program in Washington, D.C. brought the suit on behalf of three
St. Louis mothers.
The Medicaid cuts were a key component of Republican Gov. Matt
Blunt's effort to balance the budget without tax increases. The
Republican-led Legislature passed them over the objections of
many Democrats and despite repeated protests by Medicaid
recipients and activists.
During the fiscal year, which that started on Friday, more than
90,000 of Missouri's 1 million Medicaid recipients are to be
dropped from the list of recipients. Hundreds of thousands of
adults remaining on Medicaid are to receive fewer benefits while
paying more out-of-pocket through premiums, co-payments and
personal medical expenses.
U.S. District Judge Nanette Laughrey heard arguments for a
temporary restraining order right after the suit was filed,
however, she swiftly denied the request a few hours later.
The suit also contends that 17 percent of parents on Medicaid
will be inadvertently cut off because the department made errors
in determining their eligibility and that the cutoff notices
were too complicated to understand.
NATIONAL AUTO: Finalizes Settlement of All Shareholder Lawsuits
---------------------------------------------------------------
National Auto Credit, Inc. (OTC/BB:NAKD) ("NAC" or "the
Company") consummated its previously disclosed agreement to
settle all outstanding shareholder litigation and repurchase
1,562,500 shares of NAC Common Stock from unaffiliated third
parties, Academy Capital Management, Inc., Diamond A. Partners,
L.P., Diamond A. Investors, L.P., Ridglea Investor Services,
Inc. and William S. Banowsky ("the Selling Stockholders"). The
stock purchase transaction was effected in connection with the
previously disclosed settlement and dismissal of class action
and shareholder derivative litigation that had been pending in
New York and Delaware courts.
In the stock repurchase, NAC purchased the shares of the Selling
Stockholders at a price of $0.6732 per share (or a total
purchase price of $1,051,875). As a consequence of the stock
repurchase, the number of shares of NAC common stock outstanding
decreased 15.6%, from 10,102,614 shares to 8,540,114 shares.
NAC also confirmed today that all of the previously disclosed
shareholder class and derivative litigation brought against the
Company and certain current and former members of its Board of
Directors in New York and Delaware state courts have been
dismissed with prejudice.
As a consequence of the settlement of the class and derivative
action in New York ("the New York Settlement") becoming final
and effective, among other things, NAC will be implementing
certain previously disclosed corporate governance procedures and
policies. NAC will also be issuing to the class of NAC
shareholders who had continuously held NAC common stock from
December 14, 2000 through December 24, 2002, up to one million
warrants (one warrant per 8.23 shares of Common Stock). Each
warrant will have a five-year term and will be exercisable for
shares of NAC Common Stock at a price of $1.55 per share. In
order to qualify for the issuance of said warrants, members of
the shareholder class must have delivered to the Company by
December 12, 2005 a valid Proof of Claim in accordance with the
notice and instructions previously delivered to the shareholder
class.
Further, on June 16, 2005, NAC received the proceeds of the $2.5
million Settlement Fund, which had been held in escrow until the
New York Settlement became fully effective. NAC used $1,666,875
of the proceeds from the Settlement Fund to acquire the
1,562,500 shares of NAC Common Stock from the Selling
Shareholders, to pay the Court-approved legal fees of the
plaintiff's counsel in the New York action, and to reimburse a
portion of the expenses of the Selling Shareholders. The
remaining $833,000 from the Settlement Fund will be used by NAC
for general working capital.
Mr. James McNamara, Chairman and Chief Executive Officer,
stated, "The consummation of this settlement, and the reduction
of the number of shares outstanding gives every shareholder an
increased ownership interest in NAC and allows the management
team to focus its energy and attention on expanding its
corporate communications and entertainment businesses."
PHOEBE HEALTH: GA Court Dismisses Uninsured Patients' Lawsuit
-------------------------------------------------------------
The Georgia Superior Court dismissed the uninsured patients
class action filed against Phoebe Putney Hospital in Albany,
Georgia, WALB.com reports.
The lawsuit charged the hospital of overcharging uninsured
patients and using aggressive means to collect payments. The
suit is similar to dozens of lawsuits filed against various
hospitals across the nation.
Phoebe Health System executives hailed Judge Harvey Bartle's
ruling. "We are ecstatic. We are thrilled," hospital attorney
Rick Langley told WALB. "The dismissal of the Phoebe lawsuits
in the Superior Court today marks the first case heard by a
state court judge that addressed the merits of the case."
"We have always maintained that these cases are baseless and
misdirected," Board Chairman Lem Griffin told WALB.
Hospital critics, like Dr. John Bagnato, however said the fight
was not yet over. "We know they're charging the uninsured
patients the highest amounts of anybody and they say they can't
help it and that's the way it works. Well, you can charge them
and discount them but they don't do that routinely," Mr. Bagnato
told WALB. Mr. Bagnato's investigations into Phoebe prompted
him to contact Mississippi lawyer Richard Scruggs, who has filed
over 50 similar suits nationwide.
"These rulings in favor of Phoebe come despite the fact that Dr.
Bagnato took these cases to one of the richest and most famous
trial lawyers of all times," Mr. Griffin told WALB. Those cases
were thrown out by a federal judge.
Mr. Bagnato says he wasn't surprised then and he isn't with
Monday's decision in Superior Court. "It's really not
surprising again. These cases are very political," Mr. Bagnato
told WALB. What he feels it comes down to is litigation and
legal technicalities and that the only remedy to the whole
problem will be reform. "What I hope happens is that the board
is accountable to the people and that Mr. Wernick decides that
the time for him to go is come. I think he should resign," he
added.
Regardless of whether it's Phoebe itself or it's president, the
hospital is thankful for Monday's announcement. "At this moment
there are no class action lawsuits, federal or state pending
against this hospital. Every single one of them has been
dismissed," Mr. Langley told WALB.
PRICEWATERHOUSECOOPERS: Settles Lawsuit Over Homestore.com Audit
----------------------------------------------------------------
The California State Teachers' Retirement System (CalSTRS)
reached a preliminary settlement of $17.5 million with
PricewaterhouseCoopers in a class action lawsuit accusing the
accounting firm of violating its professional responsibilities
in its audits of Homestore.com Inc. in 2000 and 2001.
The settlement, reached between the accounting firm
PricewaterhouseCoopers and CalSTRS, the lead plaintiff, was
submitted today to U.S. District Court Judge Ronald S. W. Lew of
Los Angeles for review. If Lew grants preliminary approval, a
final settlement hearing date will be set.
In agreeing to the settlement, PricewaterhouseCoopers did not
admit to any wrongdoing.
"This settlement is another step forward in our goal to help
compensate those who lost money they invested in Homestore,"
said Jack Ehnes, chief executive officer of CalSTRS. "We want to
send a clear message to the market place that all parties are
accountable when shareholders suffer due to corporate
misconduct."
CalSTRS filed suit Nov. 15, 2002, against Homestore.com, several
of its officers and PricewaterhouseCoopers accusing the company
and other defendants of falsifying financial statements and
engaging in accounting irregularities to meet Wall Street
expectations.
In August, 2003, Homestore.com agreed to a settlement to reform
its corporate policies, pay $13 million in cash to the class and
turn over 20 million shares of stock. The stock was valued at
about $4 a share at the time of the settlement.
All but two of the company officers named in the suit also
reached settlements, leaving legal action pending against Stuart
H. Wolff, former chief executive officer and chairman of the
board; and Peter B. Tafeen, former executive vice president,
business development and sales.
The suit is being prosecuted on behalf of CalSTRS and the class
by Cotchett, Pitre, Simon & McCarthy of Burlingame, California,
lead counsel, and co-counsel Wasserman, Comden, Casselman &
Pearson of Tarzana, California.
The class covers all persons who purchased or acquired Homestore
common stock from January 1, 2000 through December 21, 2001.
SELECTICA INC.: NY Court Preliminarily Approves 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 Selectica,
Inc., certain of its officers and directors and Credit Suisse
First Boston Corporation (CSFB), as underwriters of the
Company's March 13,2005 initial public offering (IPO).
Between June 5, 2001 and June 22, 2001, four securities class
action complaints were filed. On August 9, 2001, these actions
were consolidated before a single judge along with cases brought
against numerous other issuers, their officers and directors and
their underwriters, that make similar allegations involving the
allocation of shares in the IPOs of those issuers. The
consolidation was for purposes of pretrial motions and discovery
only. On April 19, 2002, plaintiffs filed a consolidated
amended complaint asserting essentially the same claims as the
original complaints.
The amended complaint alleges that the officer and director
defendants, CSFB and thje Company violated federal securities
laws by making material false and misleading statements in the
prospectus incorporated in the Company's registration statement
on Form S-1 filed with the SEC in March 2000 in connection with
the Company's IPO. Specifically, the complaint alleges, among
other things, that CSFB solicited and received excessive and
undisclosed commissions from several investors in exchange for
which CSFB allocated to those investors material portions of the
restricted number of shares of common stock issued in the
Company's IPO. The complaint further alleges that CSFB entered
into agreements with its customers in which it agreed to
allocate the common stock sold in the Company's IPO to certain
customers in exchange for which such customers agreed to
purchase additional shares of the Company's common stock in the
after-market at pre-determined prices. The complaint also
alleges that the underwriters offered to provide positive market
analyst coverage for the Company's after the IPO, which had the
effect of manipulating the market for the Company's stock.
On July 15, 2002, the Company and the officer and director
defendants, along with other issuers and their related officer
and director defendants, filed a joint motion to dismiss based
on common issues. Opposition and reply papers were filed and
the Court heard oral argument. Prior to the ruling on the
motion to dismiss, on October 8, 2002, the individual officers
and directors entered into a stipulation of dismissal and
tolling agreement with plaintiffs. As part of that agreement,
plaintiffs dismissed the case without prejudice against the
individual defendants. The Court ordered the dismissal of the
officers and directors without prejudice on October 9, 2002. The
Court rendered its decision on the motion to dismiss on
February 19, 2003, denying dismissal of the Company.
On June 25, 2003, a Special Committee of the Board of Directors
of the Company approved a Memorandum of Understanding (the
"MOU") reflecting a settlement in which the plaintiffs agreed to
dismiss the case against the Company with prejudice in return
for the assignment by the Company of certain claims that the
Company might have against its underwriters. The same offer of
settlement was made to all the issuer defendants involved in the
litigation. No payment to the plaintiffs by the Company is
required under the MOU. After further negotiations, the
essential terms of the MOU were formalized in a Stipulation and
Agreement of Settlement, which has been executed on behalf of
the Company. The settling parties presented the proposed
Settlement papers to the Court on June 14, 2004 and filed formal
motions seeking preliminary approval on June 25, 2004. The
underwriter defendants, who are not parties to the proposed
Settlement, filed a brief objecting to its terms on July 14,
2004.
On February 15, 2005, the Court granted preliminary approval of
the settlement conditioned on the agreement of the parties to
narrow one of a number of the provisions intended to protect the
issuers against possible future claims by the underwriters. The
Company re-approved the Settlement with the proposed
modifications that were outlined by the Court in its February
15, 2005 Order granting preliminary approval. Approval of any
settlement involves a three-step process in the district court -
a preliminary approval, determination of the appropriate notice
of the settlement to be provided to the settlement class, and
a final fairness hearing. At a hearing on April 13, 2005, the
Court set January 6, 2006 as the date for the final fairness
hearing. There are still discussions regarding the form of the
notice for the final hearing, which will be sent out in
September 2005. There can be no assurance that the Court will
approve the settlement.
In the meantime, the plaintiffs and underwriters have continued
to litigate the consolidated action. The litigation is
proceeding through the class certification phase by focusing on
six cases chosen by the plaintiffs and underwriters ("focus
cases"). The Company is not a focus case. On October 13, 2004,
the Court certified classes in each of the six focus cases. The
underwriter defendants have sought review of that decision.
Along with the other non-focus case issuer defendants, the
Company has not participated in the class certification phase.
The plaintiffs' money damage claims include prejudgment and
post-judgement interest, attorneys' and experts' witness fees
and other costs, as well as other relief to which the plaintiffs
may be entitled should they prevail.
The suit is styled "In Re Selectica, Inc. Initial Public
Offering Securities Litigation," filed 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
SPORT CHALET: Plaintiffs Ask CA Court To Certify Overtime Suit
--------------------------------------------------------------
Plaintiffs asked California State Court to grant class
certification for the lawsuit filed against Sport Chalet, Inc.
by certain of its employees.
Former employee Kenneth Henderson brought this class action on
behalf of himself and other similarly situated employees,
alleging causes of action, for:
(1) failure to provide required meal periods,
(2) failure to authorize or permit rest periods,
(3) failure to provide compensation for split shifts,
(4) failure to reimburse employees for uniforms,
(5) failure to maintain required records,
(6) penalties for terminated employees who were not fully
compensated,
(7) penalties for failure to pay employees all wages at
least twice a month, and
(8) violation of Business and Professions Code Section
l7,200
Plaintiffs basically allege that hourly employees were regularly
denied their required meal periods and rest periods and were not
paid premiums for split shifts. They further allege that the
Company required its employees to wear uniforms but did not pay
for the uniforms. Plaintiffs seek a class action in which they
demand various wages, premiums, interest, and penalties for
these alleged violations. They also seek attorneys' fees and an
injunction.
The Company answered the complaint, denying the material
allegations and asserting numerous affirmative defenses. The
parties have engaged in significant discovery and Plaintiffs
have filed a Motion for Class Certification, which will be heard
on July 13, 2005. The Company opposed the Motion for Class
Certification. No trial date has been set. The Court will
likely order the parties to a settlement conference or
mediation.
UNITED STATES: FAA Workers Weigh Legal Action in Pay Cap Dispute
----------------------------------------------------------------
A group of Federal Aviation Administration employees, who are
unhappy with caps placed on their compensation, might pursue
their grievance in the federal courts, according to people
involved in the complaint, The GovExec.com reports.
Earlier this year that group filed a complaint with the Equal
Employment Opportunity Commission alleging age discrimination,
because most of those affected by the cap are experienced older
workers.
However, "nothing's been happening with the EEOC," said Tim
O'Hara, the leader of the group adding, "We expected at this
point to at least have a hearing scheduled with them. We've
heard nothing from them. Literally nothing."
Under the FAA's pay for performance system, almost 2,000 long-
term employees are at the top of their pay bands and cannot
receive base salary increases. While they are eligible for
annual awards for good performance, they say they are losing
thousands of dollars in retirement benefits, locality pay
increases and overtime pay.
At the same time, thousands of other FAA employees are not
affected by the salary freeze because of union agreements, or
because they already were above the maximum pay limit when the
rule on pay caps went into effect. Employees with frozen base
salaries have alleged that the differing compensation rules are
unfair. Agency officials say that the solution to the disparity
is to bring more employees under the pay cap system, not to
exempt the affected 2,000.
On February 28, the employees filed a class action complaint
with the FAA's equal employment opportunity office.
Subsequently, that complaint was forwarded to the EEOC. Since
then, according to Barbara Kraft, an attorney representing the
employees, "EEOC hasn't done anything, and people are concerned
about that. I am surprised that it is taking this long."
Ms. Kraft told GovExec.com, however, that she is not implying
that there is any intentional delay on the part of the
government adding, "I know that the EEOC is very busy. All of
these enforcement agencies have resources issues."
The FAA employees still will pursue their complaint with the
EEOC, but they are also lining up behind one worker, in the
hopes that a federal district court judge might allow the
employee's complaint to be converted into a class action
lawsuit.
According to Ms. Kraft, the FAA employees will attempt to pursue
their complaints on parallel tracks while not sacrificing their
rights in either forum. She adds, "We feel like we are in
between a procedural rock and a hard place. The concern is not
to waive any rights."
WESTERN GAS: Reaches Settlement For Natural Gas Litigation in NY
----------------------------------------------------------------
Western Gas Resources, Inc. ("Western") (NYSE: WGR) entered into
a Stipulation and Agreement of Settlement in the previously
disclosed action In re: Natural Gas Commodity Litigation, United
States District Court, Southern District of New York, Case No.
03-CV-6186 (vm) (S.D.N.Y.), concerning inaccurate reporting of
natural gas trading information to energy industry trade
publications. Western has not admitted liability in this matter.
In the second quarter of 2005, Western will record an after-tax
charge to earnings of $3.7 million, or $0.05 per common share in
connection with this settlement.
If approved by the court, the settlement of $5.95 million will
conclude the matter as against Western, who was joined to the
action on September 17, 2004, by the plaintiffs, natural gas
futures contract traders on the NYMEX, on behalf of themselves
and a putative class of others similarly situated. In the
complaint, the plaintiffs had alleged that Western had
manipulated the prices of natural gas futures on the NYMEX in
violation of the Commodity Exchange Act, or CEA, by reporting
allegedly "inaccurate, misleading and false trading information"
to trade publications that compile and publish indices of
natural gas spot prices. In addition, the complaint asserted
that Western aided and abetted the alleged CEA violations of
others.
For more details, contact Ron Wirth, Director of Investor
Relations of Western Gas Resources, Inc., Phone: +1-800-933-5603
or +1-303-252-6090, E-mail: rwirth@westerngas.com.
WORLDCOM INC.: Ex-CEO Stripped of Assets as Part of Settlement
--------------------------------------------------------------
Former WorldCom CEO Bernard Ebbers, who is a defendant in a
class action lawsuit brought by angry investors who lost
billions of dollars when WorldCom went under in the largest
bankruptcy in U.S. history in 2002, will give up nearly
everything he owns including his Mississippi home and his stake
in a golf course in a settlement with said investors, The
Associated Press reports.
Court documents revealed that Mr. Ebbers, who faces sentencing
on July 13 for his role in the WorldCom debacle, will pay $5
million up front and place the rest of his assets in a trust to
be sold off for an estimated $25 million to $40 million. The
cash from his assets will then be added to the more than $6
billion paid by former WorldCom, Inc. directors, major
investment banks that underwrote WorldCom securities and
auditing firm Arthur Andersen, who are all defendants in the
suit.
New York Comptroller Alan Hevesi, the lead plaintiff in the suit
on behalf of the state employees pension fund, hailed the
settlement as a win for the millions who lost money. He told AP,
"This is an important step in conveying a message that the
crimes committed by Mr. Ebbers and others in the series of
securities scandals will be responded to very, very forcefully."
As part of the settlement, the government will not seek
restitution when Mr. Ebbers, 63, is sentenced. Instead, federal
prosecutors have asked a judge to send him to prison for the
rest of his life. A federal judge though must still approve the
settlement.
Authorities involved in the settlement told AP that Mr. Ebbers,
who was convicted in March of fraud, conspiracy and false
regulatory filings in the $11 billion accounting fraud at
WorldCom, the largest in history, must sell his multimillion-
dollar home in Clinton, Mississippi, and his family must move
out of it by October 31.
In addition, Mr. Ebbers' property, including thousands of acres
of timberland and his stakes in a golf course, a lumber company,
a trucking company and a rice farm, will go into a liquidation
trust, authorities said.
For most of the property, 75 percent of the proceeds will go to
the investors. MCI, the post bankruptcy version of WorldCom,
Inc. will get 25 percent.
Sean Coffey, a lawyer for Mr. Hevesi, told AP that a "modest"
living allowance would be made for Mr. Ebbers' wife, Kristie,
though he refused give the amount. Money will also be set aside
for Mr. Ebbers' legal bills, he adds.
Five other former WorldCom executives who pleaded guilty in the
fraud and helped the government prosecute Mr. Ebbers will be
sentenced after him later this summer. Three of them are the
remaining defendants in the class action investor suit. Mr.
Coffey also told AP that he expected settlements soon with those
three.
New Securities Fraud Cases
CONAGRA FOODS: Schiffrin & Barroway Lodges Securities Suit in NE
----------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP initiated a class
action lawsuit in the District Court for the District of
Nebraska on behalf of purchasers of ConAgra Foods, Inc.
("ConAgra" or the "Company") (NYSE: CAG) common stock during the
period between September 18, 2003 and June 7, 2005 (the "Class
Period").
The complaint charges ConAgra and Bruce Rohde with violations of
the Securities Exchange Act of 1934. ConAgra operates as a
packaged food company serving grocery retailers, restaurants,
and other food service establishments, as well as food
processors. The complaint alleges that defendants' Class Period
representations regarding ConAgra were materially false and
misleading when made for the following reasons:
(1) that the Company's net income figures were overstated
due to improper accounting for income taxes;
(2) that as a result of this, the Company's financial
results were in violation of generally accepted
accounting principles ("GAAP");
(3) that the Company lacked adequate internal controls;
(4) that the Company's financial results were materially
inflated at all relevant times; and
(5) that as a result of the above, the Company's
projections were lacking in any reasonable basis when
made.
On March 24, 2005, the Company announced it would be restating
its financial statements for fiscal 2002 through the first half
of fiscal 2005 due to improper accounting for income taxes.
ConAgra stock fell to around $26 per share on this news. Then,
on June 7, 2005, the Company announced that its fiscal 2005
fourth quarter would be lower than expected primarily due to
continued weak profitability in the packaged meats operations.
On this news, the stock fell further to $24.32 per share.
For more details, contact Marc A. Topaz, Esq. or Darren J.
Check, Esq. Schiffrin & Barroway, LLP, 280 King of Prussia Road,
Radnor, PA, 19087 Phone: 1-888-299-7706 or 1-610-667-7706, E-
mail: info@sbclasslaw.com, Web site: http://www.sbclasslaw.com.
DRDGOLD LIMITED: Marc S. Henzel Files Securities Suit in S.D. NY
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action
lawsuit in the United States District Court for the Southern
District of New York on behalf of purchasers of DRDGOLD Limited
(NASDAQ: DROOY), formerly known as Durban Roodepoort Deep,
Limited, securities during the period between October 23, 2003
and February 24, 2005 (the "Class Period").
The complaint charges DRDGOLD and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. DRDGOLD is a gold exploration and mining company. The
Company operates gold mines through its South African and
Australasian operations.
The complaint alleges that, throughout the Class Period,
defendants made numerous statements regarding:
(1) the successful restructuring of the Company's North
West Operations in South America;
(2) the Company's ability to reduce the negative impact of
the increasing value of the South African Rand versus
the U.S. Dollar; and
(3) the increasing strength of the Company's balance sheet.
In fact, the Company's problems with its North West Operations
were never fully resolved and resulted in the Company being
forced to record an impairment charge for the full value of its
mining assets there. Moreover, despite representations to the
contrary, the Company continued to be negatively impacted by the
increasing value of the South African Rand. As detailed in the
complaint, these problems resulted in the Company being forced
to announce that it might not be able to operate as a going
concern. When this information was belatedly disclosed to the
public, shares of DRDGOLD fell more than 25%, on extraordinarily
heavy volume.
For more details, contact the Law Offices of Marc S. Henzel, 273
Montgomery Ave., Suite 202, Bala Cynwyd, PA, 19004, Phone:
610-660-8000 or 888-643-6735, Fax: 610-660-8080, E-Mail:
mhenzel182@aol.com.
EXIDE TECHNOLOGIES: Schiffrin & Barroway Lodges Stock Suit in NJ
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The law firm of Schiffrin & Barroway, LLP initiated a class
action lawsuit in the United States District Court for the
District of New Jersey on behalf of all securities purchasers of
Exide Technologies (Nasdaq: XIDE) ("Exide" or the "Company")
between November 16, 2004 and May 17, 2005 inclusive (the "Class
Period").
The complaint charges Exide, Gordon A. Ulsh, Craig Muhlhauser,
J. Timothy Gargaro, and Ian J. Harvie 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 failed to adequately hedge against the
increases in the price of lead and other commodities;
(2) that the Company's restructuring initiatives failed to
reduce costs;
(3) that the Company would not properly forecast its
inventory requirements;
(4) that the Company overstated its income by failing to
write-down the value of obsolescent inventory and
discontinued product lines;
(5) that the Company failed to comply with the provisions
of contract with a large customer; and
(6) that the Company was in violation of the EBITDA and
Leverage Ratio Covenants on its senior credit
facility.
On May 16, 2005, Exide announced that it expected it would be in
violation of its minimum consolidated EBITDA and leverage ratio
financial covenants in its $365 million senior credit facility
as of and for the fiscal year ended March 31, 2005. In response
to this news, the price of Exide stock fell $4.27 per share, or
38.3 percent, on May 16, 2005, to close at $6.88 per share, on
extremely heavy volume. On May 17, 2005, Exide held a conference
call to discuss its perilous financial position. During the
call, they reiterated the fact that they were in violation of
covenants in the Company's senior credit facility and defendants
described in detail various inventory and contractual issues
that contributed to the earnings miss. In reaction to this news,
the price of Exide shares fell another $1.55 per share, or 22.53
percent, on May 17, 2005, to close at $5.33 per share.
For more details, contact Marc A. Topaz, Esq. or Darren J.
Check, Esq. Schiffrin & Barroway, LLP, 280 King of Prussia Road,
Radnor, PA, 19087 Phone: 1-888-299-7706 or 1-610-667-7706, E-
mail: info@sbclasslaw.com, Web site: http://www.sbclasslaw.com.
HILB ROGAL: Charles J. Piven Lodges Securities Fraud Suit in TX
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The Law Offices Of Charles J. Piven, P.A. initiated a securities
class action on behalf of shareholders who purchased, converted,
exchanged or otherwise acquired the common stock of Hilb Rogal &
Hobbs Co. (NYSE: HRH) between February 14, 2002 and May 26,
2005, inclusive (the "Class Period").
The case is pending in the United States District Court for the
Eastern District of Virginia against defendant Hilb Rogal,
Andrew L. Rogal, Martin L. Vaughan, III, Timothy J. Korman,
Carolyn Jones, Robert W. Blanton, Jr. and Robert B. Lockhart.
The action charges that defendants violated federal securities
laws by issuing a series of materially false and misleading
statements to the market throughout the Class Period, which
statements had the effect of artificially inflating the market
price of the Company's securities. No class has yet been
certified in the above action.
For more details, contact the Law Offices Of Charles J. Piven,
P.A., The World Trade Center-Baltimore, 401 East Pratt Street,
Suite 2525, Baltimore, MD, 21202, Phone: 410/986-0036, E-mail:
hoffman@pivenlaw.com.
LAZARD LTD.: Zwerling Schacter Files Securities Fraud Suit in NY
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The law firm of Zwerling, Schachter & Zwerling, LLP, initiated a
class action lawsuit in the United States District Court for the
Southern District of New York on behalf of all persons and
entities who purchased the common stock of Lazard Ltd. ("Lazard"
or the "Company") (NYSE: LAZ) issued in connection with the
initial public offering of Lazard shares (the "IPO") together
with those who purchased shares in the open market between May
4, 2005 and May 12, 2005, inclusive (the "Class Period"). The
deadline to file a motion seeking to be appointed lead plaintiff
is August 15, 2005.
The complaint alleges that defendants violated Sections 11,
12(a) and 15 of the Securities Act of 1933 and Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. Specifically, the complaint alleges that
the Registration Statement/Prospectus was false and misleading
when issued because the Registration Statement/Prospectus failed
to disclose that:
(1) the basis for the $25 a share price for shares sold in
the IPO was to enable Bruce Wasserstein ("Wasserstein")
the Company's Chairman and Chief Executive Officer to
raise sufficient funds to gain control of the Company
from Michel David Weill ("Weill");
(2) prior to the IPO, market demand had indicated that the
appropriate price for the IPO was only around $22 per
share and not the $25 a share level;
(3) to create a market and thereby manufacture an
appearance that Lazard's IPO was fairly and properly
priced, Goldman Sachs & Co. ("Goldman") arranged to
sell millions of shares to hedge funds with side
agreements that those hedge funds could immediately
"flip the shares" and that Goldman would immediately
repurchase them;
(4) defendants had failed to adequately and fully comply
with S-K item 505 which requires a prospectus to
describe "the various factors considered in determining
the offering price" when common shares without an
established public trading market are also being
registered, and
(5) Gerardo Braggiotti, a major contributor of new business
for the Company, whose unit accounted for roughly 20%
of the Company's global advisory revenues, was likely
to resign from the Company as he opposed the IPO and
Wasserstein's purchase of Weill's shares.
On May 12, 2005, several days after the IPO and after Goldman
ceased buying back Lazard shares; the Company's common stock
fell below $21 a share.
For more details, contact Shaye J. Fuchs, Esq., or Jayne Nykolyn
of Zwerling, Schachter & Zwerling, LLP, Phone: 1-800-721-3900,
E-mail: sfuchs@zsz.com or jnykolyn@zsz.com, Web site:
http://www.zsz.com.
*********
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Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Aurora Fatima Antonio and Lyndsey
Resnick, Editors.
Copyright 2004. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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