/raid1/www/Hosts/bankrupt/CAR_Public/050829.mbx
C L A S S A C T I O N R E P O R T E R
Monday, August 29, 2005, Vol. 7, No. 170
Headlines
ALLEGHENY ENERGY: Appeals Court Affirms CA Fraud Suits Dismissal
ALLISON'S GOURMET: Recalls BBQ Beans Due to Listeria Content
AMERADA HESS: NJ Court Refuses To Dismiss Securities Fraud Suit
AT&T: FL Court Rejects Arbitration Arguments, Lawsuit to Proceed
CALIFORNIA: Crews Sue Caltrans, Owners to Regain Overtime Wages
CALIFORNIA: Disability Advocates Pushing For Delay on Exit Exams
FMC CORPORATION: Faces Hydrogen Peroxide Antitrust Litigation
HERCULES INC.: CA Court Preliminarily OKs Fiber Suit Settlement
HERCULES INC.: Reaches Settlement For CA State Antitrust Suits
HERCULES INC.: Reaches Settlement For MA State Antitrust Lawsuit
HERCULES INC.: Plaintiffs Appeal NY Agent Orange Suit Dismissal
HERCULES INC.: Plaintiffs Appeal Dismissal of Agent Orange Suit
HERCULES INC.: Discovery Proceeds in Georgia Gulf Injury Lawsuit
HERCULES INC.: PA Court Refuses Certification For ERISA Lawsuit
HERTZ CORPORATION: CA Court OKs Travel Agency Suit Settlement
HERTZ CORPORATION: FL Fraud Suit Certification Denial Appealed
HERTZ CORPORATION: Asks FL Court To Dismiss Consumer Fraud Suit
HUMANA INC.: Trial in HMO RICO Suit Set For January 2006 in FL
INDIANA: Five Concrete Firms Named in Amended Price Fixing Suit
MASSACHUSETTS: Town to Join Suit V. Gas Firms Over MTBE Levels
MCDONALD'S CORPORATION: Judge Upholds $8.5M CA Trans Fats Ruling
MERCK & CO.: Considers Settling Several Vioxx Injury Lawsuits
OREGON: Court Rejects Legal Fees For "Unaccredited" Professor
UNITED PARCEL: CA Judge Dismisses Supervisors' Overtime Lawsuit
UNITED STATES: Ruling in Residency Cards Case Favors Plaintiffs
VIKING RV: Recalls 3,624 2004-06 Motor Homes For Injury Hazard
WASTE MANAGEMENT: Minority-Owned Firms Launch Fraud Suit in IL
WYETH: Plaintiffs Appeal Fen-Phen Settlement Amendment Approval
WYETH: AR Judge To Refuse Certification To PREMPRO/PREMARIN Suit
WYETH: FL, MA Consumers Launch Dextromethorphan Liability Suits
WYETH: 43 NY Counties Launch Average Wholesale Price Litigation
New Securities Fraud Cases
MERCURY INTERACTIVE: Marc S. Henzel Lodges Securities Suit in CA
PRESTIGE HOLDINGS: Milberg Weiss Lodges Securities Suit in NY
RENAISSANCERE HOLDINGS: Milberg Weiss Lodges Stock Suit in NY
SYMBOL TECHNOLOGIES: Schiffrin & Barroway Files Stock Suit in NY
WORLD HEALTH: Abbey Gardy Files Securities Fraud Suit in W.D. PA
WORLD HEALTH: Brualdi Law Firm Files Securities Fraud Suit in PA
WORLD HEALTH: Charles J. Piven Files Securities Fraud Suit in FL
WORLD HEALTH: Chitwood Harley Lodges Securities Fraud Suit in PA
WORLD HEALTH: Milberg Weiss Lodges Securities Fraud Suit in FL
WORLD HEALTH: Schatz & Nobel Lodges Securities Fraud Suit in PA
*********
ALLEGHENY ENERGY: Appeals Court Affirms CA Fraud Suits Dismissal
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The United States Ninth Circuit Court of Appeals affirmed the
dismissal of seven class actions filed against Allegheny Energy
Supply Co, LLC and more than two dozen other power suppliers,
alleging violations of consumer fraud statutes.
Eight related putative class action lawsuits were initially
filed in various California superior courts during 2002. These
class action suits were removed from state court and transferred
to the U.S. District Court for the Southern District of
California. Seven of the suits were commenced by consumers of
wholesale electricity in California. The eighth, styled "Millar
v. Allegheny Energy Supply Co., et al.," was filed on behalf of
California consumers and taxpayers.
The complaints allege, among other things, that the Company and
the other defendant power suppliers violated California's
antitrust statute and the California unfair business practices
statutes by manipulating the California electricity market. The
suits also challenge the validity of various long-term power
contracts with the State of California, including the California
Department of Water Resources (CDWR) contract.
On August 25, 2003, the U.S. District Court granted the
Company's motion to dismiss the seven consumer class actions
with prejudice. On February 25, 2005, the United States Court
of Appeals for the Ninth Circuit affirmed the District Court's
judgment dismissing the seven class actions with prejudice.
The District Court separately granted plaintiffs' motion to
remand in the eighth action, Millar, on July 9, 2003. On
December 18, 2003, the plaintiffs filed an amended complaint in
California state court, solely on behalf of consumers, naming
certain additional defendants, including The Goldman Sachs
Group, Inc. ("Goldman Sachs"). The case was removed to federal
court based on the amended complaint. On January 11, 2005, the
federal district court remanded the case back to the state court
in San Francisco. On May 6, 2005, the defendants in the Millar
action filed a series of demurrers seeking to have the action
dismissed. The state court has scheduled oral argument on those
demurrers on September 7, 2005.
ALLISON'S GOURMET: Recalls BBQ Beans Due to Listeria Content
------------------------------------------------------------
Allison's Gourmet Kitchens of Moore, Oklahoma is recalling BBQ
Beans, because it has a potential to be contaminated with
Listeria monocytogenes, an organism, which can cause serious and
sometimes fatal infections in young children, frail or elderly
people, and others with weakened immune systems. Although
healthy individuals may suffer only short-term symptoms such as
high fever, severe headache, stiffness, nausea, abdominal pain
and diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
The recalled product was distributed to retail and food service
outlets in Illinois, Oklahoma and Texas. The product was
packaged under the Allison's Deli Fresh label.
The product is packaged in 1 pound and 3 pound plastic deli cups
as well as 5 pound plastic food service buckets with "Use By"
dates of 9/25/05, 9/28/05 and 9/29/05 on the tops of the lids or
sides of the container.
No illnesses have been reported to date in connection with this
problem.
The recall is the result of routine testing of finished product.
Allison's Gourmet Kitchens has ceased the production and
distribution of the product until the source of the possible
contamination can be determined.
Consumers who have purchased the product are urged to return it
to the place of purchase for a full refund. Consumers with
questions may contact Allison's Gourmet Kitchens at
405-735-2017.
AMERADA HESS: NJ Court Refuses To Dismiss Securities Fraud Suit
---------------------------------------------------------------
The United States District Court for the District of New Jersey
refused to dismiss the consolidated securities class action
filed against Amerada Hess Corporation and certain of its
current and former executive officers, styled "In re Amerada
Hess Securities Litigation."
The consolidated suit alleges that these individuals sold shares
of the Company's common stock in advance of the Company's
acquisition of Triton Energy Limited in 2001 in violation of
federal securities laws.
In April 2003, the Company and the other defendants filed a
motion to dismiss for failure to state a claim and failure to
plead fraud with particularity. On March 31, 2004, the court
granted the defendant's motion to dismiss the complaint. The
plaintiffs were granted leave to file an amended complaint.
Plaintiffs filed an amended complaint in June 2004. Defendants
moved to dismiss the amended complaint. In June 2005, this
motion was denied.
The suit is styled "CARPENTERS PENSION, et al v. AMERADA HESS
CORP, et al, case no. 2:02-cv-03359-JAG-GDH," filed in the
United States District Court for the District of New Jersey,
under Judge Joseph A. Greenaway, Jr. Representing the
plaintiffs is Peter S. Pearlman, COHN, LIFLAND, PEARLMAN,
HERRMANN & KNOPF, LLP, Park 80 Plaza West One, Saddle Brook, NJ
07663, Phone: (201) 845-9600, E-mail: PSP@njlawfirm.com.
Representing the Company is Edward T. Kole of WILENTZ, GOLDMAN &
SPITZER, ESQS., 90 Woodbridge Center Drive, Suite 900- Box 10,
Woodbridge, NJ 07095-0958, Phone: (732) 636-8000, E-mail:
ekole@wilentz.com.
AT&T: FL Court Rejects Arbitration Arguments, Lawsuit to Proceed
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A lawsuit emanating from consumer dissatisfaction with service
provided by AT&T Broadband in Florida and Georgia can move
toward class action status now that a Florida state court has
rejected arguments that the disgruntled customers had to submit
to arbitration, The Multichannel News reports. Comcast
Corporation, which purchased the systems originally named in the
suit, will now defend the potential class action.
The plaintiff's attorney, Woody Wilner, clarified that the suit
and any damages involve service from and alleged lapses by AT&T
Broadband and not Comcast. The complaint in the case addresses
wrongs allegedly committed by the operator, known legally as
MediaOne of Greater Florida Inc., between 1998 and 2002.
Ground zero for the lawsuit was Jacksonville, Florida in 2002
with a storm of complaints hitting the city, which at times
toped 1,200 calls per month. Court documents revealed that at
the time, the operator was trying to complete a system upgrade
required by its franchise agreement. Subscribers had myriad
complaints, including a claim that AT&T Broadband was charging
users for channels they could not yet receive. Documents also
revealed that the operator overcharged for equipment, and
demonstrated a pattern of discrimination against low-income
minorities in the way it was constructing its upgrade.
Later that year, documents revealed that Jacksonville officials
also joined the fray, claiming that AT&T Broadband falsified
performance reports to the city. Local cable executives later
conceded that incorrect information was provided, but said that
had been an honest error. Jacksonville threatened revocation
proceedings and asked then-Florida Attorney General Bob
Butterworth to examine AT&T Broadband's billing procedures.
AT&T Broadband executives promptly crafted a tentative agreement
with the city of Jacksonville that was publicly announced to
great fanfare and eventually, a settlement was reached between
the operator and Jacksonville, leading to the on-time completion
of the rebuild and financial contributions to the city and
school district, which contributed to purchases ranging from a
fire boat, to defibrillators for each of the high schools,
according to Bill Ferry, director of government affairs for
Comcast in Jacksonville.
After the lawsuit was filed in 2002, AT&T Broadband officials
filed a petition with the Fourth Circuit Court of Duval County,
Florida to halt it. The company asserted in its petition that
consumers have been notified, via bill stuffers, that their
complaints are subject to binding arbitration and therefore they
have waived the right to sue. However, late last year, Judge L.
Haldane Taylor ruled that AT&T's arbitration policy was
"procedurally and substantively unconscionable." The judge also
noted that the arbitration terms were presented on a "take-it-
or-leave-it basis," after consumers had invested in installation
and other fees.
Mr. Wilner asserts that the legal challenge could have been made
successfully even if the arbitration terms had been agreed to at
the time of installation. He told Multichannel News, "There's a
long history in the law on stuff like that," adding, "The law
still examines whether a demand is clear and appropriate. A
consumer can waive their rights, but they don't deserve to have
them stolen."
Late last month, the Florida First District Court of Appeal
upheld Judge Taylor's ruling, thus affirming that the cable
company can't unilaterally change subscriber agreements. The
ruling in essence opens the way for a trial on the allegations
in Duval County court.
Mr. Wilner told Multichannel News that he would argue that a
class action is the most efficient way to handle the wrongs
alleged by 1 million former AT&T Broadband customers in Florida
and 500,000 ex-subscribers in Georgia. If they are successful in
certifying the class, Mr. Wilner anticipates the class action
will eventually expand nationwide.
For more details, contact Norwood S. "Woody" Wilner of Spohrer
Wilner Maxwell & Matthews, P.A., 701 W Adams St., Jacksonville,
FL 32204, Phone: 904-354-8310, Fax: 904-358-6889, Web site:
http://216.218.189.70/~woody/index.htm.
CALIFORNIA: Crews Sue Caltrans, Owners to Regain Overtime Wages
---------------------------------------------------------------
A group of tugboat crewmembers that worked on the Bay Bridge and
six other public works bridge construction projects are suing
Caltrans and tugboat owners, claiming that they've been stiffed
on overtime pay since 2001, The Oakland Tribune reports.
According to Gary Goyette, the plaintiffs' attorney, who told
The Oakland Tribune, "These guys work hard, it's complex work
and it's dangerous," the suit is claiming normal shifts for
tugboat crewmembers last 12 hours or more "and a common schedule
involves seven consecutive days of work."
More than 200 tug crewmembers are potential plaintiffs in the
class action lawsuit, which was filed in Alameda County Superior
Court, Mr. Goyette said. Tugboat operators, water taxi drivers,
deck hands and others want Caltrans, who awarded the contracts,
to force San Francisco-based Westar Marine Services and
Longview, Washington-based Brusco Tug and Barge Inc. to pay up
for the years of work. At issue is whether the tug and water
taxi crew members should be paid the prevailing wage on a
project paid for by public money. The crewmembers' attorney says
state law requires payment of time-and-a-half for work on a
public project.
Though the tug crews are already covered by their union contract
for overtime, which pays $1 per hour after eight hours, Mr.
Goyette pointed out that the union contract only applies to work
on private jobs, and that state wage standards should apply
during public works projects. Mr. Goyette told The Oakland
tribune that new employees hired by Westar were lured with a
promise of the higher, state overtime wages, but were never
paid. The crewmembers repeatedly complained to the union,
however after three years of waiting, they decided legal action
was needed to claim what is owed to them, according to Mr.
Goyette, a Sacramento attorney, who is not affiliated with the
workers union, the Organization of Masters, Mates & Pilots
(MM&P).
Additionally, the suit also claims that by allowing the
contractors to deny overtime pay and benefits, Caltrans has
given them an unfair advantage in the bidding process.
"Caltrans, as project manager, failed to advertise correctly and
enforce (overtime pay) to the contractors," the suit claims.
The suit cites unpaid work on seven Bay Area bridge projects,
including the west and east spans and center suspension of the
Bay Bridge from August 19, 2001 to present. It also includes
work on the San Mateo and Carquinez bridges and the Richmond-San
Rafael Bridge.
CALIFORNIA: Disability Advocates Pushing For Delay on Exit Exams
----------------------------------------------------------------
Disability rights advocates are pushing to delay the California
High School Exit Exam requirement, which goes into effect for
this year's senior class, The Associated Press reports. The
advocates are fighting the exit exam on two fronts, a class
action lawsuit and legislation.
State Superintendent of Public Instruction Jack O'Connell told
The Associated Press in a recent interview that he remains
opposed to an exemption for special education students or a
delay for those children. As a state senator, Mr. O'Connell
wrote the exit exam legislation. He also stated in the
interview, "We want students to be prepared to succeed in a
global economy. I don't want kids having a meaningless piece of
paper hanging on the wall."
This year's incoming seniors are the first to be required to
pass the California High School Exit Exam to get a diploma. The
exam has no exceptions for students who are not proficient in
English or those with disabilities. Without changing that,
according to Sen. Gloria Romero, D-Los Angeles, "I believe the
state will be successfully sued." Sen. Romero has introduced
legislation that would exempt disabled students from the
graduation requirement until 2008, unless the superintendent
approved alternatives to the test for those students. Her bill
passed the Assembly Appropriations Committee recently and goes
next to the full Assembly.
Additionally, the Senate Appropriations Committee recently
approved a separate bill that would allow high schools to
determine if students who fail the exit exam can qualify for
graduation using other assessments. Such programs would require
approval from the state school superintendent. That bill, by
Assemblywoman Karen Bass, D-Los Angeles, now goes to the Senate.
Mr. O'Connell told The Associated Press that he was open to the
idea of an alternative to the test but pointed out that he
hasn't seen an option that measured up to the same academic
standard as the exit exam.
On the legal front, a pending class action lawsuit, known as the
Chapman case after the lead plaintiff, contends that the exit
exam discriminates against disabled students. According to
Stephen Tollafield, an attorney with Disability Rights
Advocates, which represents the students, "There are a number of
problems with the exit exam that limit special-needs students'
ability to participate." At issue are the accommodations that
some disabled students needed in order to take the exam, he
said.
However, the state says that some accommodations for special-
needs students go too far and actually alter the exam,
invalidating the score, according to Mr. Tollafield. He also
told The Associated Press that parents of special education
students can apply for a waiver, but the process is confusing
and too few parents are aware of it.
Even with those challenges though, Mr. O'Connell maintained that
special education students have made great strides in improving
their passing rates. Mr. O'Connell also said that the test is a
much-needed reform to public education that "has brought more
focus to these students and to all students who need more help."
The test has made schools more accountable, agreed Sylvia
DeRuvo, president of the California Association of Resource
Specialists and Special Education Teachers. She added, "Many
results have been positive. Middle schools and high schools are
working together to make that transition easier. There's an
emphasis on getting instructional materials to special education
students."
However, the test results so far have shown that disabled
students haven't been adequately prepared for the exam,
according to Ms. DeRuvo. She and other special education
teachers worry that many of their students will drop out if they
lose the incentive for a diploma.
Mr. Tollafield contends, "These are really devastating
consequences for students. It's really just not fair when
they've done all the work to graduate but won't be allowed to."
The potential effect is so grave, according to him that he's
heard from families considering moving out of state so their
children can graduate from high school.
The exact number though of seniors at risk of not graduating
won't be known until September, when the state gets a report
estimating the number of students who have passed both sections
of the exit exam.
FMC CORPORATION: Faces Hydrogen Peroxide Antitrust Litigation
-------------------------------------------------------------
FMC Corporation faces several class actions filed in various
federal and state courts, alleging violations of antitrust laws
in relation to its hydrogen peroxide products.
On January 28, 2005, the Company and its wholly owned subsidiary
Foret received a Statement of Objections from the European
Commission concerning alleged violations of competition law in
the hydrogen peroxide business in Europe during the period 1994
to 2001. All of the significant European hydrogen peroxide
producers also received the Statement of Objections. The
Company and Foret responded to the Statement of Objections in
April 2005 and a hearing on the matter was held at the end of
June 2005. The Company also received a subpoena for documents
from a grand jury sitting in the Northern District of
California, which is investigating anticompetitive conduct in
the hydrogen peroxide business in the United States during the
period 1994 through 2003.
In February 2005, putative class action complaints were filed
against all of the U.S. hydrogen peroxide producers in various
federal courts alleging violations of antitrust laws. Related
cases were also filed in various state courts.
HERCULES INC.: CA Court Preliminarily OKs Fiber Suit Settlement
---------------------------------------------------------------
The United States District Court for the Central District of
California granted preliminary approval to the settlement of the
consolidated class action filed against Hercules, Inc., styled
"Thomas & Thomas Rodmakers v. Newport Adhesives and Composites,
Case No. CV-99-07796-GHK (CTx)."
In August 1999, the Company was sued in an action styled as
"Cape Composites, Inc. v. Mitsubishi Rayon Co., Ltd., Case No.
99-08260," one of a series of similar purported class action
lawsuits brought on behalf of purchasers (excluding government
purchasers) of carbon fiber and carbon prepreg in the United
States from the named defendants from January 1, 1993 through
January 31, 1999. The lawsuits were brought following published
reports of a Los Angeles federal grand jury investigation of the
carbon fiber and carbon prepreg industries. In these lawsuits,
plaintiffs allege violations of Section 1 of the Sherman
Antitrust Act for alleged price fixing.
In September 1999, these lawsuits were consolidated into the
Thomas & Thomas Rodmakers suit, with all related cases ordered
dismissed. This lawsuit is proceeding through discovery and
motion practice. On May 2, 2002, the Court granted plaintiffs'
Motion to Certify Class. The Company is named in connection
with its former Composites Products Division, which was sold to
Hexcel Corporation in 1996.
During the third quarter of 2004, the Company learned that four
of its co-defendants had reached settlements with the
plaintiffs. Those settlements were approved by the court on
January 31, 2005. On February 25, 2005, the Company reached a
settlement in principle with the plaintiffs for $11.3 million.
On June 10, 2005, that settlement was granted preliminary
approval by the Court. The Company agreed to the settlement
without any admission of liability.
The suit is styled "Thomas & Thomas, et al v. Newport Adhesives,
et al., case no. 2:99-cv-07796-FMC-RNB," filed in the United
States District Court for the Central District of California,
under Judge Florence-Marie Cooper. Representing the plaintiffs
are:
(1) David Boies and Ian Otto of Straus & Boies, 10513
Braddock Rd, Fairfax, VA 22032, Phone: 703-764-8700
(2) Michael A. Bowse, Joy Ann Bull of Milberg Weiss Bershad
Hynes & Lerach, 355 S Grand Ave, Ste 4170, Los Angeles,
CA 90071-3172, Phone: 213-617-9007, Fax: 213-617-9185
(3) William S. Lerach, David W. Mitchell of Lerach Coughlin
Stoia Geller Rudman and Robbins, 401 B Street, Suite
1600, San Diego, CA 92101-4297, Phone: 619-231-1058
(4) Marisa C. Livesay of Barrack Rodos and Bacine, 402 West
Broadway, Suite 850, San Diego, CA 92101, Phone:
619-230-0800, E-mail: mlivesay@barrack.com
Representing the Company are:
(i) Eliana M. Barnes, Richard D. Gallucci Jr., Eugene J.
Kuzinskie, Louis R. Moffa, Eric W. Sitarchuck, Diana L.
Spagnuolo, Carrie E. Watt of Ballard Spahr Andrews and
Ingersoll, 1735 Market Street, 51st Floor,
Philadelphia, PA 19103-7599, Phone: 215-864-8633, E-
mail: barnese@ballardspahr.com,
galluccir@ballardspahr.com, kuzinskie@ballardspahr.com,
moffal@ballardspahr.com, spagnuolod@ballardspahr.com;
(ii) Robert W. Brownlie, Danielle S. Fitzpatrick, Noah A.
Katsell, of DLA Piper Rudnick Gray Cary US, 701 5th
Avenue, Suite 7000, Seattle, WA 98104-7044, Phone:
206-839-4876, E-mail: dfitzpatrick@graycary.com
(iii) David E. Monahan and David R. Steinman of Gray Cary
Ware & Freidenrich, 4365 Executive Dr, Ste 1100, San
Diego, CA 92121-2133, Phone: 858-677-1400, Fax:
858-677-1477
HERCULES INC.: Reaches Settlement For CA State Antitrust Suits
--------------------------------------------------------------
Hercules, Inc. reached a settlement for nine class actions filed
in California state court on behalf of indirect purchasers of
carbon fiber. In January 2002, these were consolidated into a
case-captioned "Carbon Fiber Cases I, II, and III, Judicial
Council Coordination Proceeding Nos. 4212, 4216 and 4222,
Superior Court of California, County of San Francisco." These
actions all allege violations of the California Business and
Professions Code relating to alleged price fixing of carbon
fiber and unfair competition.
In July 2005, the Company reached an agreement in principle to
settle these consolidated actions. The Company has denied and
continues to deny liability to plaintiffs, but entered into the
settlement to avoid the risks, uncertainties and costs inherent
in litigation, the Company stated in a disclosure to the
Securities and Exchange Commission. Hercules agreed to the
settlement, which is subject to Court approval, without any
admission of liability.
HERCULES INC.: Reaches Settlement For MA State Antitrust Lawsuit
----------------------------------------------------------------
Hercules, Inc. reached a settlement for the class action filed
in the Superior Court of Middlesex County, Massachusetts, styled
"Saul M. Ostroff, et al. v. Newport Adhesives, et al., Civil
Action No. 02-2385." This matter has been brought on behalf of
consumers who purchased merchandise manufactured with carbon
fiber, alleging price fixing of carbon fiber and unfair
competition.
In July 2005, the Company reached an agreement in principle to
settle this action. The Company has denied and continues to
deny liability to plaintiffs, but entered into the settlement to
avoid the risks, uncertainties and costs inherent in litigation,
it stated in a regulatory filing. The Company agreed to the
settlement without any admission of liability.
HERCULES INC.: Plaintiffs Appeal NY Agent Orange Suit Dismissal
---------------------------------------------------------------
Plaintiffs appealed the United States District Court for the
Eastern District of New York's dismissal of the claims in the
class actions filed against Hercules, Inc. and other chemical
companies, alleging personal injury due to exposure to Agent
Orange.
Agent Orange is a defoliant that was manufactured by several
companies, including the Company, at the direction of the U.S.
Government, and used by the U.S. Government in military
operations in both Korea and Vietnam from 1965 to 1970. In
1984, as part of a class action settlement, the Company and
other defendants settled the claims of persons who were in the
U.S., New Zealand and Australian Armed Forces who alleged injury
due to exposure to Agent Orange in the suit styled "In Re
Agent Orange Product Liability Litigation, 597 F. Supp. 740
(E.D.N.Y. 1984)." Following that settlement, all claims for
alleged injuries due to exposure to Agent Orange by persons who
had served in the Armed Forces of those countries were treated
as covered by that class action settlement.
On June 9, 2003, the United States Supreme Court affirmed the
decision of the United States Court of Appeals for the Second
Circuit in a case captioned "Dow Chemical Company, et al. v.
Daniel Raymond Stephenson, et al., 123 S. Ct. 2161 (2003),"
where plaintiffs Stephenson and Isaacson (in a separate but
consolidated case) alleged that they were injured from exposure
to Agent Orange and that such injury did not manifest until
after exhaustion of the settlement fund created through the 1984
class action settlement. As a result of that decision, the
claims of persons who allege injuries due to exposure to Agent
Orange and whose injuries first manifest themselves after
exhaustion of the settlement fund created through the 1984 class
action settlement may no longer be barred by the 1984 class
action settlement and such persons may now be able to pursue
claims against the Company and the other former manufacturers of
Agent Orange.
Since 1998, the Company has been sued in a total of twenty-five
lawsuits (including two purported class actions) where
plaintiffs allege that exposure to Agent Orange caused them to
sustain various personal injuries. On February 9, 2004, the
U.S. District Court for the Eastern District of New York issued
a series of rulings granting several motions filed by defendants
in the two cases that had been remanded to the U.S. District
Court by the U.S. Court of Appeals for the Second Circuit on
remand from the U.S. Supreme Court. The litigation is styled
"In re: `Agent Orange' Product Liability Litigation: Joe
Isaacson, et al v. Dow Chemical Company, et al. and Daniel
Raymond Stephenson, et al. v. Dow Chemical Company, et al. (MDL
381, CV 98-6383 (JBW), CV 99-3056 (JBW))).
In relevant part, those rulings held that plaintiffs' claims
against the defendant manufacturers of Agent Orange are properly
removable to federal court under the "federal officer removal
statute" and that such claims are subject to dismissal by
application of the "government contractor defense." The Court
then dismissed plaintiffs' claims, but stayed its decision to
allow plaintiffs to obtain additional discovery and to move for
reconsideration of the Court's decision. A hearing on the
motion for reconsideration was held on February 28, 2005. By
Orders dated March 2, 2005, the Court denied reconsideration,
lifted the stay of the earlier decision, and dismissed
plaintiffs' claims in all of the lawsuits that were before the
Court at that time. Beginning in late March 2005 and continuing
into April 2005, plaintiffs in many of those lawsuits have filed
Notices of Appeal of the District Court's decision with the
United States Court of Appeals for the Second Circuit.
The suit is styled "Stephenson, et al v. Dow Chemical, et al.,
case no. 1:99-cv-03056-JBW-JMA," filed in the United States
District Court for the Eastern District of New York, under Judge
Jack B. Weinstein. Representing the Company is William Andrew
Krohley of Kelley, Drye & Warren, L.L.P., 101 Park Avenue, 32nd
Floor, New York, NY 10178, Phone: (212) 808-7747, -7800, Fax:
212-808-7897, E-mail: wkrohley@kelleydrye.com. Representing the
plaintiffs is Stephen B. Murray, Jr. of Murray Law Firm, 909
Poydras Street, Suite 2550, New Orleans, LA 70112-4000, Phone:
504-525-8100; and Gerson H. Smoger, Smoger & Associates, P.C.,
3175 Monterey Boulevard, Suite 3, Oakland, CA 94602, Phone:
510-531-4529, Fax: 510-531-4377, E-mail:
gersonsmoger@earthlink.net.
HERCULES INC.: Plaintiffs Appeal Dismissal of Agent Orange Suit
---------------------------------------------------------------
Plaintiffs appealed the United States District Court for the
Eastern District of New York's dismissal of the class action
filed against Hercules, Inc. and other chemical companies,
styled "The Vietnam Association for Victims of Agent
Orange/Dioxin, et al. v. The Dow Chemical Company, et al., Civil
Action No. 04 CV 0400 (JBW)."
The Vietnam Association for Victims of Agent Orange/Dioxin filed
the suit on behalf of two and four million Vietnamese who allege
that Agent Orange used by the United States during the Vietnam
War caused them or their families to sustain personal injuries.
The suit alleges violations of international law and war crimes,
as well as violations of the common law for products liability,
negligence and international torts.
The defendants moved to dismiss this case on several grounds,
including failure to state a claim under the Alien Tort Claims
Statute, lack of jurisdiction and justiciability, the bar of the
statute of limitations, failure to state claims for violations
of international law, and the "government contractor defense."
A hearing on these motions was held on February 28, 2005.
By order dated March 10, 2005, the Court dismissed this lawsuit.
On April 8, 2005, plaintiffs filed a Notice of Appeal of the
District Court's decision with the United States Court of
Appeals for the Second Circuit.
The suit is styled "Vietnam Association for Victims of Agent
Orange/Dioxin et al v. Dow Chemical Company et al., case no.
1:04-cv-00400-JBW-JMA," filed in the United States District
Court for the Eastern District of New York, under Judge Jack B.
Weinstein. Representing the plaintiffs is Constantine Peter
Kokkoris of Abberley & Koolman, 521 Fifth Avenue, New York, NY
10175, Phone: 212-349-9340, Fax: 212-587-8115, E-mail:
cpk@kokkorislaw.com.
HERCULES INC.: Discovery Proceeds in Georgia Gulf Injury Lawsuit
----------------------------------------------------------------
Discovery is proceeding in the consolidated class action filed
against Hercules, Inc. in 18th Judicial District Court, Parish
of Iberville, Louisiana against Hercules, Inc., alleging
personal injury caused by contaminated water.
By Order dated May 6, 2003, the U.S. District Court for the
Middle District of Louisiana remanded to the 18th Judicial
District Court for the Parish of Iberville, Louisiana, a total
of nine consolidated lawsuits, including two lawsuits in which
the Company is a defendant. These two lawsuits, styled "Jerry
Oldham, et al. v. The State of Louisiana, et al., Civil Action
No. 55,160, 18th Judicial District Court, Parish of Iberville,
Louisiana," and "John Capone, et al. v. The State of Louisiana,
et al., Civil Action No. 56,048C, 18th Judicial District Court,
Parish of Iberville, Louisiana," were served on the Company in
September 2002 and October 2002, respectively. The "Oldham"
case is a purported class action comprised of approximately
2,000 plaintiffs who are or were direct employees of Georgia
Gulf, and the "Capone" case is a consolidated action by
approximately 44 plaintiffs who are or were contract employees
at Georgia Gulf.
Both actions assert claims against the State of Louisiana, the
Company, American PetroFina, Inc., Hercofina, Ashland Oil,
International Minerals and Chemicals, Allemania Chemical,
Ashland Chemical and the Parish of Iberville. The purported
class members and plaintiffs, who claim to have worked or lived
at or around the Georgia Gulf plant in Iberville Parish, allege
injury and fear of future illness from the consumption of
contaminated water and, specifically, elevated levels of arsenic
in that water. As to the Company, plaintiffs allege that the
Company itself and as part of a joint venture operated a nearby
plant and, as part of those operations, used a groundwater
injection well to dispose of various wastes, and that those
wastes contaminated the potable water supply at Georgia Gulf.
On October 17, 2002, the Company removed these matters to
federal court. In January & 2003, the U.S. District Court for
the Middle District of Louisiana consolidated the "Oldham" and
"Capone" matters with other lawsuits, in which the Company is
not or was not a party. Plaintiffs sought remand, which, as
noted above, was granted by Order dated May 6, 2003.
In March 2004, Atofina, successor to American PetroFina, Inc.
was dismissed without prejudice. In January 2005, plaintiffs
filed a motion to add the Company and other defendants to a case
captioned "Georgenner Batton, et al. v. The State of Louisiana,
et al., Civil Action No. 55,285, 18th Judicial District Court,
Parish of Iberville, Louisiana; that motion was granted by the
Court in February 2005. The "Batton" lawsuit is a purported
class action comprised of plaintiffs who are or were contract
employees of Georgia Gulf since 1995 and who are asserting
nearly identical allegations as the plaintiffs in the "Oldham"
lawsuit. Discovery is continuing.
HERCULES INC.: PA Court Refuses Certification For ERISA Lawsuit
---------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania refused to grant class certification and dropped
several claims in the class action filed against Hercules, Inc.,
styled "Charles Stepnowski v. Hercules Inc.; The Pension Plan of
Hercules Inc.; The Hercules Inc. Finance Committee; and Edward
V. Carrington, Hercules' Vice President Human Resources, Civil
Action No. 04-cv-2296."
An Amended Complaint was filed on June 16, 2004. Styled as a
class action, the Amended Complaint seeks benefits under the
Pension Plan of Hercules Incorporated (the "Plan"), and alleges
violations of the Employee Retirement Income Security Act, 29
U.S.C. 1001 et seq. (ERISA). Under the Plan, eligible retirees
of the Company may opt to receive a single cash payment of 51%
of the present value of their accrued benefit (with the
remaining 49% payable as a monthly annuity). The Amended
Complaint alleges that the Company's adoption of a new interest
rate assumption used to determine the 51% cash payment
constitutes a breach of fiduciary duty and a violation of the
anti-cutback requirements of ERISA and the Internal Revenue
Code. The Amended Complaint seeks the payment of additional
benefits under ERISA (as well as costs and attorneys fees) and
seeks to compel the Company to use an interest rate assumption
that is more favorable to eligible retirees. The Amended
Complaint seeks to establish a class comprised of all Plan
participants who retired (or who will retire) on or after
December 1, 2001.
By Memorandum and Order dated May 26, 2005, the Court denied
without prejudice plaintiff's motion for class certification and
dismissed plaintiff's anti-cutback claim, but allowed
plaintiff's claim for benefits and breach of fiduciary duty to
proceed.
HERTZ CORPORATION: CA Court OKs Travel Agency Suit Settlement
-------------------------------------------------------------
The Superior Court of the State of California, County of San
Diego granted final approval to the class action filed against
Hertz Corporation and other car rental companies, styled "Wide
World Tours of Mission Valley, Inc., Travel Support Systems,
Inc., Vacation Marketing Group of Hawaii, Cecilia Pedroza, and
International Travel Bureau, Inc. v. Avis Rent A Car System,
Inc., Budget Rent A Car System, Inc., Dollar Rent A Car, Inc.,
Enterprise Rent-A-Car Company, The Hertz Corporation, and
Thrifty Rent-A-Car System, Inc."
The suit was filed on behalf of certain United States travel
agents and agencies that regularly book customers with the major
rental car companies. The complaint alleged that the defendant
rental car companies breached their unwritten contracts with the
plaintiffs by knowingly and deliberately under-reporting and
underpaying the commissions due to the plaintiffs, that in so
doing the defendants engaged in deceit and that the defendants
engaged in unfair competition by deducting processing fees or
other administrative fees from payments they make to travel
agents.
After the defendants filed misjoinder motions, an amended
complaint was filed against the Company with a separate new
lawsuit commenced against Avis. After a hearing in April 2004,
the judge certified a class of "California only" travel
agencies. In November 2004, the Company and the representative
plaintiffs, following mediation, agreed to a nationwide
settlement. Under the terms of the settlement, the plaintiffs
will file an amended complaint on behalf of a nationwide class
of travel agents and the Company, without admitting liability
and in return for a general release, will provide members of the
settlement class with car rental certificates the majority of
which, when utilized by customers of the class members, will
result in the payment of a bonus commission to the sponsoring
members. In addition, the Company agreed to pay the fees of the
plaintiffs' attorneys.
HERTZ CORPORATION: FL Fraud Suit Certification Denial Appealed
--------------------------------------------------------------
Plaintiffs appealed the Circuit Court of the Thirteenth Judicial
Circuit of the State of Florida, in and for Hillsborough
County's ruling refusing class certification for the lawsuit
filed against The Hertz Corporation, styled "Stephen Moore, on
behalf of himself and all others similarly situated, v. The
Hertz Corporation."
The suit was filed on behalf of persons who rented vehicles from
the Company in Florida and were allegedly overcharged for the
recovery of a tire and battery solid waste management fee and
the recovery of registration fees for the issuance of Florida
license plates. Similar lawsuits were separately commenced by
the same plaintiff against Avis Rent A Car System Inc. and
Budget Rent A Car System, Inc.
In February 2004, the plaintiff filed an amended class action
complaint which alleged that, in addition to the initial causes
of action, the Company deceptively collected an improper
"federal excise tax" on frequent flyer mileage awards to class
members. The plaintiff sought unspecified damages for the
alleged improper and wrongful acts, attorneys' fees, costs and
injunctive relief.
Discovery commenced. In January 2005, the Company filed a
motion for summary judgment and the plaintiff filed a revised
motion for class certification. In June 2005, the Company's
motion for summary judgment was granted and the plaintiff's
revised motion for class certification was denied. A final
judgment was thereafter entered. In July 2005, the plaintiff
filed a notice of appeal.
HERTZ CORPORATION: Asks FL Court To Dismiss Consumer Fraud Suit
---------------------------------------------------------------
The Hertz Corporation asked the Circuit Court of the Twentieth
Judicial Circuit in and for Lee County, Florida to dismiss a
class action filed against it, styled "Rene Potkay and Sylvia W.
Thompson on behalf of themselves and all others similarly
situated, v. The Hertz Corporation."
The suit was filed on behalf of all consumers who rented a
vehicle from the Company in Florida and all consumers whose
rental of a vehicle from the company was initiated outside of
Florida but who resided in Florida at the time of the rental who
were allegedly charged a rate which is higher than the rate
quoted at the time of reservation. The complaint alleges that
the Company's invoicing actions constitute a breach of contract
and violate the Florida Deceptive and Unfair Trade Practices
Act. The plaintiffs are seeking unspecified monetary damages,
costs and disbursements, including reasonable attorneys' fees
and an injunction requiring the Company to cease its current
methods of unfair competition and to modify its invoicing
practices so as not to be unfair or fraudulent.
HUMANA INC.: Trial in HMO RICO Suit Set For January 2006 in FL
--------------------------------------------------------------
The United States District Court for the Southern District of
Florida moved the trial of the consolidated managed care
industry class action filed against Humana, Inc. and other
health management organizations (HMOs) to January 23,2006.
The Company initially faced several purported class action
lawsuits that were part of a wave of generally similar actions
that target the health care payer industry and particularly
target managed care companies. These include a lawsuit against
it and originally nine of the Company's competitors that
purports to be brought on behalf of physicians who have treated
our members. As a result of action by the Judicial Panel on
Multidistrict Litigation (JPMDL), the case was consolidated in
the United States District Court for the Southern District of
Florida, and has been styled "In re Managed Care Litigation."
The plaintiffs assert that the Company and other defendants
improperly paid providers' claims and "downcoded" their claims
by paying lesser amounts than they submitted. The complaint
alleges, among other things, multiple violations under the
Racketeer Influenced and Corrupt Organizations Act, or RICO, as
well as various breaches of contract and violations of
regulations governing the timeliness of claim payments. The
complaint was subsequently amended to add as plaintiffs several
medical societies, including the Texas Medical Association, the
Medical Association of Georgia, the California Medical
Association, the Florida Medical Association, and the Louisiana
State Medical Society, each of which purports to bring its
action against specified defendants.
On September 26, 2002, the Court certified a global class
consisting of all medical doctors who provided services to any
person insured by any defendant from August 4, 1990, to
September 26, 2002. The class included two subclasses. A
national subclass consisted of medical doctors who provided
services to any person insured by a defendant when the doctor
had a claim against such defendant and was not required to
arbitrate that claim. A California subclass consisted of medical
doctors who provided services to any person insured in
California by any defendant when the doctor was not bound to
arbitrate the claim.
On September 1, 2004, the Court of Appeals for the Eleventh
Circuit ("Eleventh Circuit") agreed with the District Court's
ruling as to the class for the RICO claims, although it
suggested that the class should be split so that claims
involving capitation and fee-for-service payments would be
handled separately. However, it reversed the lower court as to
state law claims, including breach of contract, unjust
enrichment and violations of prompt pay laws. It found that the
state claims were too individualized to be dealt with in a class
action. The California subclass was not specifically challenged
and therefore was permitted to remain. A Petition for a Writ of
Certiorari to the United States Supreme Court, asking for review
of the Eleventh Circuit's decision, was denied on January 10,
2005.
On September 17, 2004, the plaintiffs filed an amended motion
for class certification, seeking a global fee-for-service class
and five subclasses for the time period from January 1, 1996, to
the date of certification. The global class would consist of
any medical doctor who provided service on a fee-for-service
basis to any person insured by Cigna Corporation or any other
defendant for claims of RICO conspiracy and aiding and abetting.
The motion seeks subclasses for the conspiracy counts for
capitation damages and capitation injunctive relief consisting
of all medical doctors who provided services on a capitated
basis. The motion also requests a subclass for a direct RICO
claim consisting of medical doctors who provided services on a
fee-for-service basis to any person insured by Humana pursuant
to a contract without an arbitration clause or without a
contract. The motion also seeks two California subclasses, one
involving physicians who provided services on a fee-for-service
basis and the other for capitated physicians. The Court has not
ruled on these motions.
On February 10, 2005, the Court ruled that the trial would be
bifurcated so that the issue of liability would be tried first,
followed by proof of damages, if liability is found. On April
22, 2005, the defendants filed an omnibus motion for summary
judgment as to all counts of the complaint. No ruling has been
issued on the motions. On June 15, 2005, the Court rescheduled
the trial for January 23, 2006.
Two defendants, Aetna Inc. and Cigna Corporation, have entered
into settlement agreements which have been approved by the
Court. On May 3, 2005, Health Net, Inc. and The Prudential
Insurance Company of America announced settlement agreements
with the plaintiffs, and Wellpoint, Inc. (formerly WellPoint
Health Networks, Inc. and Anthem, Inc.) announced a settlement
agreement on July 11, 2005.
The suit is styled "In Re Humana Inc. Managed Care Litigation,
MDL 1334," filed in the United States District Court for the
Southern District of Florida, Miami Division, under Judge
Federico Moreno. The suit names as defendants Humana, Inc.,
Aetna, Inc., Aetna-USHC, Inc., Cigna, Health Net, Inc., Human
Health Plan, Inc., Pacificare Health Systems, Inc., Prudential
Insurance Company of America, United Health Group, United Health
Care and Wellpoint Health Networks, Inc. Cigna and Aetna have
entered settlements with the plaintiffs. Lead Plaintiffs'
Attorneys are Barry Meadow of Podhurst, Orseck, et al., Harley
Tropin of Kozyak, Tropin & Throckmorton and Archie Lamb.
INDIANA: Five Concrete Firms Named in Amended Price Fixing Suit
---------------------------------------------------------------
Five more ready-mixed concrete companies are accused of price-
fixing in an amended lawsuit filed by R. Shane Tharp, an
Indianapolis business owner, The Indianapolis Star reports.
Though the suit is separate from Department of Justice charges
brought against Irving Materials Inc. in June, it is the first
public accusation to link any Indianapolis-area ready-mixed
concrete companies to Irving, which pleaded guilty to price-
fixing charges and agreed to pay a $29 million fine.
Even as the Department of Justice and the FBI declined to say,
who else they are investigating or might charge in the antitrust
probe, they have indicated that they intend to charge other
companies. According to Special Agent Wendy Osborne,
spokeswoman for the FBI, "We anticipate additional charges to be
filed against individuals or corporations." She also told The
Indianapolis Star though that she did not know the timetable of
such charges.
Mr. Tharp's amended lawsuit, which was filed recently in U.S.
District Court in Indianapolis, claims that Prairie Material
Sales Inc., Builder's Concrete & Supply Inc., Shelby Materials
Inc., American Concrete Co. and Carmel Concrete Products Co. all
participated in the price-fixing. None of those companies though
has been charged with a crime.
Criminal investigators have said that the price-fixing
conspiracy affected "virtually everyone who purchased ready-
mixed concrete in the Indianapolis market" from July 2000 till
May 2004. Ken Zylstra, a lead attorney for Tharp, declined to
discuss why he accused those other companies in the civil
lawsuit or to name Mr. Tharp's business. Mr. Tharp's formal
complaint accuses the firms of "conspiracy to suppress and
eliminate competition."
Sarah Riordan, an attorney for Fishers-based Builder's Concrete,
told The Indianapolis Star that the firm disputes the
allegations and will vigorously defend itself.
Officials at Indianapolis-based American Concrete did not return
a phone call, but last June, the firm's GM, Clayton Mosley told
The Indianapolis Star, "We do not condone what (Irving
Materials) did. We did not participate in it."
Phil Haehl, an executive at Shelby Materials in Shelbyville,
declined to comment. So did Scott Hughey, president of Carmel
Concrete Products Co. An attorney for Illinois-based Prairie did
not return a phone call either.
Mr. Tharp's suit, which seeks class action status, is the only
one of the 17 pending against Irving that specifically accuses
other firms of price-fixing.
The original suit is styled, THARP v. IRVING MATERIALS, INC. et
al., 1:05-cv-01045-SEB-VSS, which is pending in the United
States District Court for the Southern District of Indian, with
the Honorable Sarah Evans Barker, presiding. The following
represents the Plaintiff/s:
(1) Barry C. Barnett of SUSMAN GODFREY, LLP, 901 Main St.,
Suite 4100, Dallas, TX 75202, Phone: 214-754-1903, Fax:
214-754-1933, E-mail: bbarnett@susmangodfrey.com;
(2) Steve W. Berman of HAGENS BERMAN SOBOL SHAPIRO, LLP,
1301 Fifth Ave., Suite 2900, Seattle, WA 98101, Phone:
(206) 623-7292, Fax: (206) 623-0594, E-mail:
steve@hbsslaw.com;
(3) Jonathan Bridges of SUSMAN GODFREY, LLP, 901 Main St.,
Suite 4100, Dallas, TX 75202, Phone: (214) 754-1925,
Fax: (214) 665-0856, E-mail:
jbridges@susmangodfrey.com;
(4) Stephen E. Connolly of SCHIFFRIN & BARROWAY, LLP, 280
King of Prussia Road, Radnor, PA 19087, Phone: (610)
822-0259, Fax: (610) 667-7056, E-mail:
sconnolly@sbclasslaw.com;
(5) Marshall S. Hanley of FINDLING GARAU GERMANO &
PENNINGTON, 151 North Delaware, Suite 1515,
Indianapolis, IN 46204, Phone: (317) 822-9530, Fax:
(317) 822-9531, E-mail: mhanley@fggplaw.com;
(6) John R. Price of JOHN R PRICE & ASSOCIATES, 9000
Keystone Crossing, Suite 150, Indianapolis, IN 46240,
Phone: (317) 844-8822, Fax: (317) 844-7766, E-mail:
john@johnpricelaw.com;
(7) Anthony D. Shapiro of HAGENS BERMAN SOBOL SHAPIRO, LLP,
1301 Fifth Ave., Suite 2900, Seattle, WA 98101, Phone:
(206) 623-7292, Fax: (206) 623-0594, E-mail:
tony@hbsslaw.com;
(8) Stephen S. Susman of SUSMAN GODREY, LLP, 1000
Louisiana, Suite 5100, Houston, TX 77002-5096, Phone:
(713) 651-9366, Fax: (713) 654-6666; and
(9) Kendall S. Zylstra of SCHIFFRIN & BARROWAY, LLP, of 280
King of Prussia Road, Radnor, PA 19087, Phone: (610)
822-0276, Fax: (610) 667-7056, E-mail:
kzylstra@sbclasslaw.com.
The Following represent the Defendant/s:
(i) Judy L. Woods of BOSE MCKINNEY & EVANS, LLP, 135 North
Pennsylvania St., Suite 2700, Indianapolis, IN 46204,
Phone: (317) 684-5000, Fax: (317) 684-5173, E-mail:
jwoods@boselaw.com;
(ii) Edward Price Steegmann of ICE MILLER, One American
Square, P.O. Box 82001, Indianapolis, IN 46282, Phone:
(317) 236-2294, Fax: (317) 592-4771 (fax), E-mail:
ed.steegmann@icemiller.com;
(iii) G. Daniel Kelley, Jr. of ICE MILLER, One American
Square, P.O. Box 82001, Indianapolis, IN 46282, Phone:
(317) 236-2230, Fax: (317) 592-4681, E-mail:
daniel.kelley@icemiller.com; and
(iv) Thomas Eugene Mixdorf of ICE MILLER, One American
Square, P.O. Box 82001, Indianapolis, IN 46282, Phone:
(317) 236-5832, Fax: (317) 592-4708, E-mail:
thomas.mixdorf@icemiller.com.
MASSACHUSETTS: Town to Join Suit V. Gas Firms Over MTBE Levels
--------------------------------------------------------------
The town of Duxbury, Massachusetts will join a class action suit
against the nation's gasoline companies in response to a recent
test, which showed levels of Methyl Tertiary Butyl Ether (MTBE)
found in the town's water supply, according to Town Manager
Rocco Longo, The Billerica Minuteman reports.
Mr. Longo explained to The Billerica Minuteman that MTBE is a
chemical that limits pollutants in gas and was required by the
federal government some time ago.
According to Mr. Longo, though the amount of MTBE is not toxic
joining into the lawsuit, led by Boston attorney Richard
Sandman, who is representing dozens of municipalities in the
lawsuit, would not cost the town of Billerica.
Mr. Longo also told The Billerica Minuteman, "There's no need
for the public to be concerned about their drinking water. But I
want the people to know that we are aware of this problem and
that we are doing what we can to fix it."
MCDONALD'S CORPORATION: Judge Upholds $8.5M CA Trans Fats Ruling
----------------------------------------------------------------
A Marin Superior Court judge ruled that it's fair for McDonald's
Corporation to pay $8.5 million as part of proposed settlement
in a class action lawsuit regarding the hazards of trans fats,
The Marin Independent-Journal reports.
In addition, Judge John Sutro ruled that Oakbrook, Illinois-
based McDonald's would pay about $2 million in plaintiff
attorney fees and other expenses. The ruling finalizes the
settlement of two lawsuits filed against McDonald's by the
nonprofit BanTransFats.com and Katherine Fettke, an individual
who succeeded in gaining class action certification for the
lawsuit.
Ms. Fettke filed suit in September 2004 to seek class action
certification. Attorney Stephen Joseph of Marin, who is the
founder and president of BanTransFats.com, represents Ms.
Fettke. Court papers revealed that BanTransFats.com sued the
fast food giant in October 2003 to get it to stop using trans
fats. In the suit, BanTransFats claimed that McDonald's led
consumers to believe it had reduced the amount of partially
hydrogenated oil used for its fried foods and had replaced it
with more healthful oils. Partially hydrogenated oils contain
trans fats and have been shown to increase the risk of heart
disease, stroke and other health problems. It is used widely in
the food industry because it gives products long shelf life.
In recent proceedings, several people objected to the
settlement, but Judge Sutro ultimately ruled in favor of it
despite their arguments. One objector, Dr. Vinod Seth, who flew
to Marin from Bismarck, North Dakota, told the court that the
final ruling be delayed because he felt the settlement, is just
a "slap on the wrist" for the multi-national corporation.
Speaking before the court, Dr. Seth, an infectious disease
specialist, who has become an outspoken critic of the fast-food
industry that relies heavily on processed foods high in trans
fats, said he is a member of the class action and believes the
settlement is inadequate since it prevents any further legal
claims against McDonald's regarding trans fatty acids. He also
pointed out that the $10 million that the corporation will have
to pay does not come close to paying for the damage it is doing
to its customers' health.
"Trans fats are a time bomb," Dr. Seth said, arguing that the
health problems the substance causes will add up to a "mega-
million dollar" lawsuit in time. Previously, Dr. Seth, a
professor of medicine at the University of North Dakota, wrote
in a brief, "This settlement allows McDonald's to escape from
under the trans fat cloud with a slap on the wrist. The
settlement is not in the public interest."
However, Judge Sutro said the arrangement was of value to the
class action members. The judge pointed out, "This is a lesson
in education more than anything else. They (McDonald's) got a
lot of publicity in October or September of 2002 and they failed
to follow up and come through." Judge Sutro told Dr. Seth in
making the ruling that he appreciated his comments. "Thank you
for your public mindedness and for stepping forward," Mr. Sutro
said.
The lawsuits were filed after McDonald's issued a press release
in September 2002, and got significant publicity for claiming
that the corporation voluntarily would change the cooking oils
at its restaurants to products that had lower trans fat content.
McDonald's said the switch was to be completed by February 2003.
According to court documents, McDonald's issued a press release
on February 28, 2003 saying the change would be delayed.
BanTransFats and Ms. Fettke claimed McDonald's never changed the
oil and did not take sufficient steps to inform consumers.
The settlement was reached after months of hard-fought
negotiations that included all-day sessions and mediation.
Under the settlement, McDonald's agreed to pay at least $7
million to the American Heart Association with the money being
used to educate the public about partially hydrogenated oil and
to discourage the use of the oil by food companies and
restaurants. McDonald's also agreed to pay $1.5 million to
notify the public about the status of its plan to change its
cooking oil. In addition the, McDonald's also agreed to pay
$7,500 to BanTransFats.com and $7,500 to Ms. Fettke, who will
turn over her payment to charity.
After the hearing, McDonald's issued a statement saying that the
company is pleased the case has been settled. It further stated,
"We have already made significant TFA reductions in our
McNuggets, Crispy Chicken, and McChicken. We also continue to
work diligently on ways to reduce the TFA levels in our fries.
We continue to make progress in our testing because we want to
make sure we get it right for our customers." The statement
added that the company provides trans fatty acid information on
its nutrition Web site, its restaurant tray liners and
brochures.
MERCK & CO.: Considers Settling Several Vioxx Injury Lawsuits
-------------------------------------------------------------
Merck & Co. recently stated that it might consider settling some
of the about 5,000 pending Vioxx-related cases, according to
media reports, MarketWatch reports. The Wall Street Journal and
other media outlets reported in their online editions that
Merck's & Co. slight shift would involve an undetermined number
of cases in which patients took Vioxx for more than 18 months
and had no other risk factors for heart attacks and strokes.
Previously, the company previously said that it would fight
every case and would appeal a $253 million verdict awarded by a
Texas jury to the widow of a man who died after taking Vioxx for
eight months.
The Texas case involves, Texan Carol Ernst, who is seeking
compensation for the death of her husband Robert, allegedly of
arrhythmia, in 2001. Mr. Ernst, a produce manager at a Wal-Mart
near Fort Worth, who ran marathons and worked as a personal
trainer, took Vioxx for eight months to alleviate pain in his
hands until he died in his sleep, an earlier Class Action
Reporter story (July 27, 2005) reports. Mrs. Ernst's lawsuit
alleges that Merck & Co. knew of the dangers of using Vioxx
years before it recalled the drug. But, the Company allegedly
ignored those concerns in favor of aggressive marketing for a
multibillion-dollar seller. The case was the first of 4,200
other suits that have been filed in the United States and
thousands more from other countries that are being prepared to
reach trial after the drug's withdrawal, an earlier Class Action
Reporter story (July 27, 2005) reports.
A company spokeswoman said that Merck would take a close look at
some cases where settlements might be indicated, The Journal
reported, MarketWatch reports.
More than 20 million people took Vioxx in the U.S. before the it
was withdrawn in September after a Merck-sponsored clinical
trial found that Vioxx increased the risk of heart attack and
stroke in people who took the medicine daily for more than 18
months, The Journal said.
According to the most recent tally, 4,951 product-liability
suits and cases seeking to be made class action cases had been
filed in state and federal courts. Attorneys are expecting the
Texas verdict to result in more filings. It wasn't known how
many of those 4,951 suits might be eligible for settlement under
Merck's criteria.
OREGON: Court Rejects Legal Fees For "Unaccredited" Professor
-------------------------------------------------------------
A federal appeals court denied more than $400,000 in legal fees
and costs to an Umpqua Community College teacher who won a
single dollar from the state in a lawsuit over the word
"unaccredited" when referring to her degrees from a Christian
fundamentalist university, The Associated Press reports.
Melinda Benton had sought class action status to represent all
graduates of Bob Jones University, which is located in
Greenville, South Carolina, however a federal judge had limited
the case to her complaint. Court records revealed that Bob
Jones University has steadfastly refused to seek U.S. Department
of Education accreditation, claiming it would violate the First
Amendment protection against any law governing religion.
After she won $1 in the lawsuit against the Oregon Student
Assistance Commission, U.S. District Judge Michael Hogan in
Eugene awarded Ms. Benton about $440,000 in attorney's fees and
court costs. However, the 9th U.S. Circuit Court of Appeals
reversed Judge Hogan's ruling and rejected the legal costs,
saying the $1 victory was not enough to justify the award. Judge
John Rhoades wrote in the ruling by the three-judge panel, "The
lawsuit must have 'achieved other tangible results' besides the
nominal damages judgment."
The state had originally recommended that Ms. Benton be fired
because she did not note her degrees came from an unaccredited
university but later ordered only that she must include the word
"unaccredited" on any reference to her two degrees from Bob
Jones University.
Wendell Bird, a prominent conservative attorney, had asked Judge
Hogan to block enforcement of Oregon law on whether degrees must
be acknowledged as unaccredited but Judge Hogan rejected the
challenge. Mr. Bird had claimed the state acted out of bias
against Bob Jones University, which banned black students until
1970 and did not lift a ban on interracial dating until after
President Bush visited to give a speech in February 2000 when he
was still governor of Texas and a presidential candidate.
UNITED PARCEL: CA Judge Dismisses Supervisors' Overtime Lawsuit
---------------------------------------------------------------
U.S. District Judge Dean Pregerson in Los Angeles granted United
Parcel Service Inc.'s motion for summary judgment in a class-
action lawsuit brought by supervisors in California, The
Bloomberg News reports.
In a ruling filed recently in federal court, the judge stated
that the company had submitted substantial evidence that the
supervisors "spend the majority of their time performing exempt
managerial tasks." In essence, Judge Pregerson dismissed the
case because as managers they don't qualify for overtime pay.
Additionally, the ruling stated UPS showed that the supervisors
fell under an exemption the law makes for executive and
administrative employees because, among other things, they are
required to use independent judgment in "matters of
consequence."
The lawsuit, which represents a class of about 1,200 current and
former supervisors, accused Atlanta-based UPS of violating
California labor law by not providing overtime pay and meal
breaks.
John Furutani, an attorney for the plaintiffs with law firm
Furutani & Peters in Pasadena, didn't return a call for comment,
Bloomberg News reports.
On the other hand, UPS spokeswoman Peggy Gardner commented on
the ruling by explaining to Bloomberg News that the ruling is
"very significant," since according to her, "It underscores our
position that our supervisors are an essential part of the
management team."
The suit is styled, Michael Marlo v. United Parcel Service, et
al., 2:03-cv-04336-DDP-RZ, which is pending in the United States
District Court for the Central District of California, with the
Honorable Dean D. Pregerson, presiding. John A. Furutani and
Mark C. Peters of Furutani and Peters, 911 East Colorado
Boulevard, Suite 310, Pasadena, CA 91106, Phone: 626-844-2437,
E-mail: jafurutani@furutani-peters.com or mcpeters@furutani-
peters.com are representing the Plaintiff/s. Robert F. Walker,
Heather G. Havette, George W. Abele and Jennifer S. Baldocchi of
Paul Hastings Janofsky & Walker, 515 S Flower St., 25th Fl, Los
Angeles, CA 90071-2228, Phone: 213-683-6000, Fax: 213-627-0705
and Kirby Collette Wilcox of Paul Hastings Janofsky & Walker, 55
2nd St, 24th Fl, San Francisco, CA 94105-3441, Phone:
415-856-7000, Fax: 415-856-7100 are representing the Defendant.
UNITED STATES: Ruling in Residency Cards Case Favors Plaintiffs
---------------------------------------------------------------
Acting in the name of national security doesn't give the
government the right to keep immigrants waiting more than a year
for their already-approved residency cards, according to a
recent ruling by federal judge in San Francisco, The San Antonio
Express reports.
The class action suit originated by the San Antonio-based Texas
Lawyers' Committee, an immigrant-advocacy group, claimed that
the government delays made life impossible for thousands of
people who are in the country legally but have no way to prove
it.
The recently issued ruling by U.S. District Court Judge Marilyn
Hall Patel, gave the government two months to come up with a
plan delineating when the affected immigrants will be issued
their "green cards," or permanent residency documents.
According to Javier Maldonado, executive director of the Texas
Lawyers' Committee, the decision brought a huge sigh of relief
to as many as 12,539 eligible immigrants across the country.
Mr. Maldonado told The San Antonio Express that the months-long
wait and in some cases more than a year caused many immigrants
to lose their jobs while others couldn't get hired and none
could leave the country to visit their families.
The delays were attributed by government agencies to new
policies on security background checks, part of the post-9-11
war on terror. The government argued that conducting enhanced
checks, in many cases involving multiple agencies, caused the
justifiable delays.
Government representatives told The San Antonio Express that
they weren't yet sure how to respond to the ruling. According to
Charles Miller, a spokesman for the Justice Department in
Washington, "It is under review and no determination has been
made as to what the government will do next on this matter."
Marˇa Elena Garcˇa, a spokeswoman for U.S. Citizenship and
Immigration Services in Dallas told The San Antonio Express,
"We're reviewing the opinion and considering our response."
The case started in San Antonio last year when the Texas
Lawyers' Committee began receiving numerous complaints from
immigrants over the long wait for their documents. Eventually,
the suit gained class action status and was filed in federal
court in San Francisco.
VIKING RV: Recalls 3,624 2004-06 Motor Homes For Injury Hazard
--------------------------------------------------------------
Viking RV, LLC, in cooperation with the National Highway Traffic
Safety Administration's Office of Defects Investigation (ODI) is
voluntarily recalling about 3,624 units of 2004-06 Clipper
Classic, Clipper Spirit, Clipper Sport, Futura, Epic, Legend and
Saga motor homes due to injury hazard. NHTSA CAMPAIGN ID Number:
05V364000.
According to the ODI, on certain motor homes, the innovative
design technologies roof lift system is defective and may fail
allowing the roof to collapse unexpectedly. Should this occur,
there is a potential for personal injury to any occupants inside
the trailer at the time of the failure.
As a remedy, dealers will inspect and replace the necessary
parts. The recall is expected to begin during August 2005.
For more details, contact Viking, Phone: 1-800-239-6157 and
NHTSA Auto Safety Hotline: 1-888-327-4236 or (TTY)
1-800-424-9153, Web site: http://www.safecar.gov.
WASTE MANAGEMENT: Minority-Owned Firms Launch Fraud Suit in IL
--------------------------------------------------------------
Lawyers for some minority-owned firms initiated a lawsuit
against Waste Management Inc., claiming that the company
conspired with a politically connected white businessman to
cheat the firms out of a piece of a city contract meant for
minority- and woman-owned companies, The Crain's Chicago
Business reports.
The lawsuit, which seeks class action status alleges that Waste
Management officials knew that a $74 million subcontract it
awarded to a Chicago company certified by the city as minority-
owned was actually run by James Duff, a politically connected
white contractor.
Court records show that Mr. Duff was sentenced in May to nearly
10 years in federal prison after he admitted lying to get city
contracts reserved for minority- and women-owned companies. The
records also show that William Stratton, a black businessman who
prosecutors say served as a front for Mr. Duff, was sentenced to
nearly six years in prison. During Stratton's trial in February,
a former Waste Management executive, James Barry, testified he
awarded the contract to Mr. Duff's firm even though he knew the
company falsely claimed to be minority-owned. He also said that
he was a friend of Mr. Duff. Federal prosecutors granted Mr.
Barry immunity in exchange for his testimony against Mr.
Stratton and three other Duff associates. In the end though
federal prosecutors did not accuse Waste Management of any
wrongdoing.
Lawyers, who filed the lawsuit in Cook County Circuit Court,
told Crain's Chicago Business that Waste Management's deal with
Mr. Duff's firm deprived all minority-owned trucking and labor
companies of a shot at the subcontract. It thus asks the court
to order Waste Management to award the plaintiffs $74 million.
Additionally, attorney Cannon Lambert, who represents the
minority businesses, told Crain's Chicago Business,
"Unfortunately you have people who were supposed to be able to
benefit and they have been deprived of that opportunity,"
adding, "You've got major companies like Waste Management
playing games ... and basically robbing people."
Several minority business owners at a news conference Thursday
said deals like the one between Waste Management and Mr. Duff's
firm cheat them out of winning minority set-aside contracts from
the city. According to Maria Hernandez, president of Aztec
Trucking Inc. in Calumet City, "I feel very ripped off. We've
been in compliance and done everything the city has asked us to
do, and it doesn't make a difference because people are going to
hire their family, their friends, whoever they please."
The lawsuit also names Mr. Duff's company, Remedial
Environmental Manpower Inc., as a defendant, a public listing
for the firm though could not be found.
WYETH: Plaintiffs Appeal Fen-Phen Settlement Amendment Approval
---------------------------------------------------------------
Several plaintiffs appealed the United States District Court for
the Eastern District of Pennsylvania's approval of the seventh
amendment to the nationwide settlement of the litigation filed
against Wyeth relating to the diet drugs PONDIMIN (which in
combination with phentermine, a product that was not
manufactured, distributed or sold by the Company, was commonly
referred to as "fen-phen") or REDUX, which the Company estimated
were used in the United States, prior to their 1997 voluntary
market withdrawal, by approximately 5.8 million people.
These actions allege, among other things, that the use of REDUX
and/or PONDIMIN, independently or in combination with
phentermine, caused certain serious conditions, including
valvular heart disease and primary pulmonary hypertension
("PPH").
On October 7, 1999, the Company announced a nationwide class
action settlement (the "settlement") to resolve litigation
brought against the Company regarding the use of the diet drugs
REDUX or PONDIMIN. The settlement covered all claims arising
out of the use of REDUX or PONDIMIN, except for PPH claims, and
was open to all REDUX or PONDIMIN users in the United States.
As originally designed, the settlement was comprised of two
settlement funds. Fund A (with a value at the time of
settlement of $1 billion plus $200.0 million for legal fees) was
created to cover refunds, medical screening costs, additional
medical services and cash payments, education and research
costs, and administration costs. Fund A has been fully funded
by contributions by the Company. Fund B (which was to be funded
by the Company on an as-needed basis up to a total of $2.55
billion) would compensate claimants with significant heart valve
disease. Any funds remaining in Fund A after all Fund A
obligations were met were to be added to Fund B to be available
to pay Fund B injury claims.
In December 2002, following a joint motion by the Company and
plaintiffs' counsel, the Court approved an amendment to the
settlement agreement which provided for the merger of Funds A
and B into a combined Settlement Fund which now will cover all
expenses and injury claims in connection with the settlement.
The merger of the two funds took place in January 2003.
Payments in connection with the nationwide settlement were
$822.7 million in 2002. There were no payments made in 2003.
Payments in connection with the nationwide settlement were $26.4
million in 2004. Payments may continue, if necessary, until
2018.
On August 26, 2004, U.S. District Judge Harvey Bartle III, the
federal judge overseeing the settlement, granted a motion for
preliminary approval of the proposed Seventh Amendment to the
settlement. If approved by the District Court and upheld on any
appeals that might be taken, the proposed Seventh Amendment
would include the following key terms:
(1) The amendment would create a new Supplemental Fund, to
be administered by a Fund Administrator who will be
appointed by the District Court and who will process
most pending Level I and Level II matrix claims (as
defined below);
(2) After District Court approval, the Company would make
initial payments of up to $50.0 million to facilitate
the establishment of the Supplemental Fund and to begin
reviewing claims. Following approval by the District
Court and any Appellate Courts, the Company would make
an initial payment of $400.0 million to enable the
Supplemental Fund to begin paying claims. The timing of
additional payments would be dictated by the rate of
review and payment of claims by the Fund Administrator.
The Company would ultimately deposit a total of $1.275
billion, net of certain credits, into the Supplemental
Fund;
(3) All participating matrix Level I and Level II claimants
who qualify under the Seventh Amendment, who pass the
Settlement Fund's medical review and who otherwise
satisfy the requirements of the settlement ("Category
One" class members) would receive a pro rata share of
the $1.275 billion Supplemental Fund, after deduction
of certain expenses and other amounts from the
Supplemental Fund. The pro rata amount would vary
depending upon the number of claimants who pass medical
review, the nature of their claims, their age and other
factors. A participating Category One class member who
does not qualify for a payment after such medical
review would be paid $2,000 from the Supplemental Fund;
(4) Participating class members who might in the future
have been eligible to file Level I and Level II matrix
claims ("Category Two" class members) would be eligible
to receive a $2,000 payment from the Trust; such
payments would be funded by the Company apart from its
other funding obligations under the nationwide
settlement;
(5) If the participants in the Seventh Amendment have heart
valve surgery or other more serious medical conditions
on Levels III through V of the nationwide settlement
matrix by the earlier of 15 years from the date of
their last diet drug ingestion or by December 31, 2011,
they would remain eligible to submit claims to the
existing Trust and be paid the current matrix amounts
if they qualify for such payments under terms modified
by the Seventh Amendment. In the event the existing
Trust is unable to pay those claims, the Company would
guarantee payment; and
(6) All class members who participate in the Seventh
Amendment would give up any further opt out rights as
well as the right to challenge the terms of and the
binding effect of the nationwide settlement. Approval
of the Seventh Amendment also would preclude any
lawsuits by the Trust or the Company to recover any
amounts previously paid to class members by the Trust,
as well as terminate the Claims Integrity Program
(discussed below) as to all claimants who do not opt
out of the Seventh Amendment.
Pursuant to the terms of the proposed Seventh Amendment, the
Company retained the right to withdraw from the Seventh
Amendment if participation by class members was inadequate or
for any other reason. Less than 5% of the class members who
would be affected by the proposed Seventh Amendment
(approximately 1,900 of the Category One class members and
approximately 5,100 of the Category Two class members) elected
to opt out of the Seventh Amendment and remain bound by the
current settlement terms.
On January 10, 2005, the Company announced that it would not
exercise its right to withdraw from the proposed Seventh
Amendment. The terms of the Seventh Amendment were thereupon
reviewed by the District Court at a fairness hearing, which took
place on January 18-19, 2005. On March 15, 2005, United States
District Judge Harvey Bartle III, the federal judge of the
United States District Court for the Eastern District of
Pennsylvania overseeing the national class action settlement,
approved the proposed Seventh Amendment as "fair, adequate and
reasonable." Three appeals from Judge Bartle's decision were
filed by April 14, 2005, the deadline for such appeals. Two of
those appeals have now been withdrawn by the appellants who
brought them and the Company and counsel for the plaintiff class
have filed a joint motion to remand the claim of the remaining
appellant to the District Court. When and if all appeals are
finally resolved, the proposed Seventh Amendment would include
the following key terms:
(i) The amendment would create a new Supplemental Fund, to
be administered by a Fund Administrator who will be
appointed by the District Court and who will process
most pending Level I and Level II matrix claims;
(ii) After District Court approval, the Company became
obligated to make initial payments of up to $50.0
million (of which $25.0 million has been paid) to
facilitate the establishment of the Supplemental Fund
and to enable the Supplemental Fund to begin reviewing
claims. Following affirmance by the Third Circuit of
the District Court's approval and the exhaustion of any
further appellate review, the Company would make an
initial payment of $400.0 million to enable the
Supplemental Fund to begin paying claims. The timing of
additional payments would be dictated by the rate of
review and payment of claims by the Fund Administrator.
The Company would ultimately deposit a total of
$1,275.0 million, net of certain credits, into the
Supplemental Fund;
(iii) All participating matrix Level I and Level II claimants
who qualify under the Seventh Amendment, who pass the
Settlement Fund's medical review and who otherwise
satisfy the requirements of the settlement (Category
One class members) would receive a pro rata share of
the $1,275.0 million Supplemental Fund, after deduction
of certain expenses and other amounts from the
Supplemental Fund. The pro rata amount would vary
depending upon the number of claimants who pass medical
review, the nature of their claims, their age and other
factors. A participating Category One class member who
does not qualify for a payment after such medical
review would be paid $2,000 from the Supplemental Fund;
(iv) Participating class members who might in the future
have been eligible to file Level I and Level II matrix
claims (Category Two class members) would be eligible
to receive a $2,000 payment from the Trust; such
payments would be funded by the Company apart from its
other funding obligations under the nationwide
settlement;
(v) If the participants in the Seventh Amendment have heart
valve surgery or other more serious medical conditions
on Levels III through V of the nationwide settlement
matrix by the earlier of 15 years from the date of
their last diet drug ingestion or by December 31, 2011,
they would remain eligible to submit claims to the
existing Trust and be paid the current matrix amounts
if they qualify for such payments under terms modified
by the Seventh Amendment. In the event the existing
Trust is unable to pay those claims, the Company would
guarantee payment; and
(vi) All class members who participate in the Seventh `
Amendment would give up any further opt out rights as
well as the right to challenge the terms of and the
binding effect of the nationwide settlement. Final
approval of the Seventh Amendment also would preclude
any lawsuits by the Trust or the Company to recover any
amounts previously paid to class members by the Trust,
as well as terminate the Claims Integrity Program as to
all claimants who do not opt out of the Seventh
Amendment.
There can be no assurance that the proposed Seventh Amendment
will be upheld on appeal. If it is upheld on appeal, only the
claims of those class members who opted out of the Seventh
Amendment will be processed under the terms of the existing
settlement agreement and under the procedures that have been
adopted by the Settlement Trust and the District Court. Less
than 5% of the class members who would be affected by the
proposed Seventh Amendment (approximately 1,900 of the Category
One class members and approximately 5,100 of the Category Two
class members) elected to opt out of the Seventh Amendment and
to remain bound by the current settlement terms. Should the
proposed Seventh Amendment not be upheld on appeal, all of the
pending and future matrix claims would be processed under the
terms of the existing settlement agreement.
Counsel representing approximately 8,600 class members have
filed a motion with the District Court seeking a ruling that the
nationwide settlement agreement is void. The motion asserts
that there was inadequate representation of the class when the
settlement agreement was negotiated, that the parties and their
experts made mutual mistakes in projecting the amount of money
that would be needed to pay all valid claims, that the original
notice to the class was inadequate and that the Court had lacked
subject matter jurisdiction over some of the class members'
claims. The motion seeks an opportunity for all class members to
decide a second time whether or not to be included in the class
and therefore bound by the settlement agreement. The District
Court had stayed briefing and consideration of the motion
pending its decision on approval of the proposed Seventh
Amendment, which as discussed above would preclude such claims
on behalf of class members who participate. Briefing on the
motion is now scheduled to be completed by the third quarter
2005.
Certain class members also have filed a number of other motions
and lawsuits attacking both the binding effect of the settlement
and the administration of the Trust, some of which have been
decided against class members and currently are on appeal. The
Company cannot predict the outcome of any of these motions or
lawsuits.
WYETH: AR Judge To Refuse Certification To PREMPRO/PREMARIN Suit
----------------------------------------------------------------
United States District Court for the Eastern District of
Arkansas Judge William Wilson indicated that he is inclined to
deny class certification for the multi-district product
liability litigation filed against Wyeth, involving PREMARIN and
PREMPRO, its estrogen and estrogen/progestin therapies. Judge
Wilson heard class certification motions on June 1-3, 2005.
In July 2002, the hormone therapy ("HT") subset of the Women's
Health Initiative ("WHI") study, involving women who received a
combination of conjugated estrogens and medroxyprogesterone
acetate (PREMPRO), was stopped early (after the patients were
followed in the study for an average of 5.2 years) because,
according to the predefined stopping rule, certain increased
risks exceeded the specified long-term benefits. Additional
analyses of data from the HT subset of the WHI study were
released during 2003, and further analyses of WHI data may be
released in the future.
In early March 2004, the National Institutes of Health ("NIH")
announced preliminary findings from the estrogen-only arm of the
WHI study and that it had decided to stop the study because they
believed that the results would not likely change during the
period until completion of the study in 2005 and the increased
risk of stroke seen in the treatment arm could not be justified
by what could be learned in an additional year of treatment.
NIH concluded that estrogen alone does not appear to affect
(either increase or decrease) coronary heart disease and did not
increase the risk of breast cancer. In addition, NIH found an
association with a decrease in the risk of hip fracture. This
increased risk of stroke was similar to the increase seen in the
HT subset of the WHI study. NIH also stated that analysis of
preliminary data from the separate Women's Health Initiative
Memory Study ("WHIMS") showed an increased risk of probable
dementia and/or mild cognitive impairment in women age 65 and
older when data from both the PREMARIN and PREMPRO arm were
pooled. The study also reported a trend towards increased risk
of possible dementia in women treated with PREMARIN alone.
WHIMS data published in The Journal of American Medical
Association (JAMA) in June 2004 and in a separate report
published in JAMA at the same time indicated that HT did not
improve cognitive impairment and may adversely affect it in some
women.
The Company is currently defending eight state putative court
medical monitoring class action lawsuits relating to PREMPRO,
styled:
(1) Albertson, et al. v. Wyeth, No. 002944, Ct. Comm.
Pleas, Philadelphia Cty., PA;
(2) Balita, et al v. Wyeth, No. ATL-L-2138-04, Sup. Ct.,
Atlantic Cty., NJ;
(3) Gottlieb, et al. v. Wyeth, No. 02-18165CA 27, Cir. Ct.,
11th Jud. Cir., Dade Cty., FL;
(4) Katzman, et al. v. Wyeth, No. L-1285-03, Sup. Ct.,
Morris Cty., NJ;
(5) Luikart, et al. v. Wyeth, No. 04-C-127, Cir. Ct.,
Putnam Cty., WV;
(6) Phillips, et al. v. Wyeth, No. CV-03-005, Cir. Ct.,
Jefferson Cty., AL;
(7) Tiedemann, et al. v. Wyeth, No. 110063/04, Supreme Ct.,
NY; and
(8) Vitanza, et al. v. Wyeth, No. ATL-L-2093-04, Superior
Ct., Atlantic Cty., NJ
The plaintiffs in these cases seek to represent statewide
classes of women who have ingested the drug and seek purchase
price refunds and medical monitoring expenses on their behalf.
Plaintiffs in the Albertson, Gottlieb, Luikart, Phillips and
Tiedemann cases are seeking this relief on behalf of putative
classes of Pennsylvania, Florida, West Virginia, Alabama and New
York, users of PREMPRO, respectively. The Balita, Katzman and
Vitanza cases all seek this relief on behalf of New Jersey
PREMPRO users.
On February 1, 2005, in the Gottlieb case, the Florida Circuit
Court certified a statewide medical monitoring class of
asymptomatic PREMPRO users who have used the product for longer
than six months. The Company plans to appeal this decision. A
class certification hearing in the Albertson matter took place
on January 10-13, 2005 in the Pennsylvania Court of Common
Pleas, Philadelphia County. That case is now under
consideration. A class action hearing in the New Jersey cases,
Katzman, Balita and Vitanza, will likely not take place until
mid-2005. The remaining cases remain inactive.
Two putative medical monitoring class actions have now been
dismissed. These suits are styled "Gallo, et al. v. Wyeth, No.
02857, Ct. Comm. Pleas, Phil. Cty., PA" and "Lewers, et al. v.
Wyeth, No. 02C 4970, U.S.D.C., N.D. Ill." The Company is also
defending two putative personal injury class actions. The
plaintiff in Michael, et al. v. Wyeth, No. 2:04-0435, U.S.D.C.,
S.D., WV, seeks to represent a nationwide class of PREMPRO users
who have suffered injuries from the product. The plaintiff in
Barker, et al. v. Wyeth, No. 04-C-1932, Cir. Ct., Kanawha Cty.,
WV, seeks to represent a class of West Virginia users who have
suffered personal injuries. Both of these cases have been
transferred to the federal multi-district litigation ("MDL")
proceedings in Little Rock, Arkansas.
Finally, the federal Judicial Panel on MDL has ordered that all
federal PREMPRO cases be transferred for coordinated pretrial
proceedings to the United States District Court for the Eastern
District of Arkansas, before United States District Judge
William R. Wilson, Jr. Plaintiffs have filed a Master Class
Action Complaint in the MDL. That complaint seeks to represent
PREMPRO users seeking to collect damages for purchase price
refunds and medical monitoring costs. The complaint seeks to
certify a consumer fraud subclass of PREMPRO users in 29 states,
an unfair competition subclass of users in 29 states and a
medical monitoring subclass purportedly covering PREMPRO users
in 24 states. The states allegedly involved are not consistent
between each subclass. This MDL Master Class Action Complaint
subsumes all of the other putative class action complaints
except those discussed above.
Following the hearing, Judge Wilson indicated that he intends to
deny class certification of all the proposed classes and will
issue a formal opinion shortly.
In addition to the pending class actions, the Company is
defending approximately 3,600 actions in various courts for
personal injuries including claims for breast cancer, stroke,
ovarian cancer and heart disease. Together, these cases assert
claims on behalf of approximately 5,640 women alleged injured by
PREMPRO or PREMARIN.
WYETH: FL, MA Consumers Launch Dextromethorphan Liability Suits
---------------------------------------------------------------
Wyeth faces two putative economic loss class actions relating to
pediatric use of cough syrups containing the active ingredient
dextromethorphan.
One suit, styled "Thompson v. Wyeth, Inc., et al., No. 5 0247,"
is pending in the Superior Court, Essex County, Massachusetts.
The suit was filed on behalf of Massachusetts consumers who
bought cough syrups containing the active ingredient
dextromethorphan for pediatric use during the period from
February 11, 2002 through the present. Plaintiff claims that
dextromethorphan is ineffective in providing nighttime relief
for children with cough and sleep difficulty as a result of
upper-respiratory infection. On a single count of common law
fraud, plaintiff seeks compensatory damages and attorneys' fees
for the purported class.
Another lawsuit, styled "Yescavage v. Wyeth, Inc., et al., No.
05-CA-000736," is pending in the Lee County Circuit Court in
Florida. The suit seeks to represent a class of all similarly
situated Florida residents who bought cough syrups containing
the active ingredient dextromethorphan for pediatric use during
the period from February 2001 through the present. Plaintiff
seeks compensatory damages and attorneys' fees for the purported
class.
WYETH: 43 NY Counties Launch Average Wholesale Price Litigation
---------------------------------------------------------------
Wyeth faces several lawsuits filed 43 New York Counties,
alleging that the Company and other pharmaceutical companies
artificially inflated the Average Wholesale Price (AWP) of their
drugs.
All of these actions have been removed to federal court and have
been transferred or are pending transfer to the U.S. District
Court for the District of Massachusetts under the caption "In
re: Pharmaceutical Industry AWP Litigation, MDL 1456 (MDL
1456)." The majority of the New York counties are plaintiffs in
a Consolidated Complaint that was filed in June 2005 that
asserts statutory and common law claims for damages suffered as
a result of alleged overcharging for prescription medication
paid for by Medicaid.
The Company intends to move to dismiss some or all of the claims
in the Consolidated Complaint. By prior Order of the Court,
additional proceedings involving the Company are not to occur
pending the determination of the Company's motion to dismiss.
The Consolidated Complaint does not include the separate actions
filed against the Company by the County of Erie and the County
of Nassau, although the claims in these two actions are
substantially similar to those in the Consolidated Complaint.
The action filed by the County of Nassau is pending in MDL 1456.
The action filed by the County of Erie, which was originally
filed in New York state court, was removed to the Western
District of New York and is pending transfer to the MDL
proceeding. By stipulation, no response to the Complaint is due
until motions related to the removal and transfer of the action
to MDL 1456 are decided. Other than described above, the
Consolidated Complaint supplants the complaints previously filed
against the company by various New York counties.
New Securities Fraud Cases
MERCURY INTERACTIVE: Marc S. Henzel Lodges Securities Suit in CA
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action
lawsuit in the United States District Court for the Northern
District of California on behalf of all shareholders who
purchased or acquired Mercury Interactive (NASDAQ: MERQE)
securities from December 1, 2004 until July 5, 2005. This case
is also brought on behalf of those purchasing notes convertible
to shares of Company stock, pursuant to the Company's 0 Coupon
Senior Convertible Notes (due 2008 offering).
MercInteractive, an enterprise software company, provides
software and services to the business technology optimization
(BTO) marketplace. Its BTO offerings, known as Mercury
Optimization Centers, consist of integrated software, services,
and practices that enable companies to use a center of approach
to govern the priorities, processes, and people of information
technology (IT); deliver and manage applications; and integrate
IT strategy and execution. MercInteractive offers products and
services in three product lines: IT governance, application
delivery, and application management. The company's IT
governance offerings are used to prioritize and automate IT
business processes from demand through production. Its
application delivery offerings enable customers to optimize
custom-built and prepackaged software applications before they
go into production. MercInteractive's application management
offerings enable customers to optimize business availability and
problem resolution, as well as to proactively manage and
automate the repair of production problems. In addition, the
company provides a range of professional and educational
services, as well as customer support offerings that enable
partners and customers to implement, customize, manage, and
extend its BTO offerings. MercInteractive offers its products
and services primarily through its direct sales organization, as
well as through inside corporate sales professionals worldwide.
The company has strategic alliances principally with Oracle, SAP
AG, Siebel Systems, and Accentor. Mercury Interactive
Corporation was founded in 1989 and is headquartered in Mountain
View, California.
As late as April 28, 2005, Defendants increased their previous
2005 annual guidance, serving to affirm prior statements that
the company was continuing in a positive direction. Unbeknownst
to investors, it is alleged that Defendants concealed auditing
expenses during the class period.
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, Web site: http://members.aol.com/mhenzel182.
PRESTIGE HOLDINGS: Milberg Weiss Lodges Securities Suit in NY
-------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman, LLP, initiated
a class action lawsuit on behalf of all persons who purchased
the common stock of Prestige Brands Holdings, Inc. ("Prestige
Brands" or the "Company") (NYSE: PBH) pursuant or traceable to
Prestige Brands's initial public offering on or about February
9, 2005 (the "IPO") through July 27, 2005, seeking to pursue
remedies under the Securities Act of 1933 (the "Securities
Act").
The action, case no. 05-cv-7526, is pending in the United States
District Court for the Southern District of New York against
Prestige Brands, GTCR Golder Rauner, LLC, Peter C. Mann, Peter
J. Anderson, David A. Donnini, Vincent J. Hemmer, Merrill Lynch,
Pierce, Fenner & Smith Inc., Goldman, Sachs & Co., and J.P.
Morgan Securities Inc. The complaint alleges that the prospectus
(the "Prospectus") filed with the Securities and Exchange
Commission ("SEC") in connection with the IPO of Prestige common
stock, which took place on or about February 9, 2005, was
materially false and misleading.
The complaint alleges that Prestige Brands owns and markets a
portfolio of brand name products that primarily include
household cleaning products, personal care products and over-
the-counter consumer healthcare products, including Compound
W(R) wart remover, Chloraseptic(R) sore-throat relief products,
Cutex(R) nail polish remover, Comet(R) and Spic & Span(R)
household cleaner. According to the complaint, the Prospectus
filed with the SEC in connection with the IPO was false and
misleading because it failed to disclose that the demand for the
Company's products was declining, contrary to defendants'
representations that the Company was well positioned to compete
in "niche" product categories and that it had a diverse
portfolio of products that would provide multiple sources of
growth. In addition, the Prospectus failed to disclose that the
Company intended to withdraw certain of its Comet brand
housecleaning products from the market, thereby further eroding
the Company's revenues and market share. As a result of the
foregoing, defendants' positive statements and projections
concerning the Company's financial condition and prospects
lacked any reasonable basis in fact.
On July 27, 2005, after the market had closed, the Company
reported its financial results for the quarter ended June 30,
2005. The Company reported that it experienced sales declines in
each of its three business segments. In addition, the Company
lowered its guidance for the remainder of fiscal 2005, stating
that "revenue and earnings growth in the current year will fall
well below our original expectations," with sales and earnings
flat or slightly lower. In reaction to this news, shares of
Prestige Brands fell over 40%, to a close of $11.90 per share on
July 28, 2005, down $8.00 per share compared the close of $20.04
per share the prior day.
For more details, contact Steven G. Schulman, Peter E. Seidman
or Andrei V. Rado, One Pennsylvania Plaza, 49th fl., New York,
NY 10119-0165, Phone: (800) 320-5081, E-mail:
sfeerick@milbergweiss.com, Web site:
http://www.milbergweiss.com.
RENAISSANCERE HOLDINGS: Milberg Weiss Lodges Stock Suit in NY
-------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman, LLP, initiated
a class action lawsuit on behalf of purchasers of the securities
of RenaissanceRe Holdings Ltd. ("RenaissanceRe" or the
"Company") (NYSE: RNR) between October 21, 2003 and July 25,
2005, inclusive (the "Class Period") seeking to pursue remedies
under the Securities Exchange Act of 1934 (the "Exchange Act").
The action, numbered 05-CV-7525, is pending in the United States
District Court for the Southern District of New York against
defendants RenaissanceRe, James N. Stanard (CEO and Chairman),
John M. Lummis (CFO), William Riker (President) and Michael W.
Cash (Sr. V.P. Specialty Reinsurance Div.).
The complaint alleges that defendants' Class Period
representations, made in press releases and SEC filings, were
materially false and misleading because they failed to disclose
that:
(1) the Company entered into bogus insurance contracts that
did not transfer any actual risk between parties, and
which functioned as accounting machinations that
artificially inflated reported earnings;
(2) RenaissanceRe did not maintain adequate systems of
internal operational or financial controls; and
(3) the Company's financial statements were not prepared
and presented in accordance with Generally Accepted
Accounting Principles.
On July 25, 2005, the Company announced that defendants Stanard
and Cash had received a "Wells Notice" from the SEC in
connection with the SEC's ongoing investigation into the prior
restatement of the Company's financial reports. The Wells Notice
indicated that the staff of the SEC intends to recommend that
the SEC bring a civil enforcement action against Messrs. Stanard
and Cash. In response to this announcement, shares of
RenaissanceRe stock dropped, falling to below $43.00 per share,
down over $4.25 per share compared to the prior day's close of
$47.23 per share, a decline of almost 10% in a single trading
day.
For more details, contact Steven G. Schulman, Peter E. Seidman
or Andrei V. Rado, One Pennsylvania Plaza, 49th fl., New York,
NY 10119-0165, Phone: (800) 320-5081, E-mail:
sfeerick@milbergweiss.com, Web site:
http://www.milbergweiss.com.
SYMBOL TECHNOLOGIES: Schiffrin & Barroway Files Stock Suit in NY
----------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP initiated a class
action lawsuit in the United States District Court for the
Eastern District of New York on behalf of all securities
purchasers of Symbol Technologies, Inc. (NYSE: SBL) ("Symbol" or
the "Company") between May 10, 2004 and August 1, 2005 inclusive
(the "Class Period").
The complaint charges Symbol, William R. Nuti and Mark T.
Greenquist 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 demand for the Company's products was weak;
(2) that the Company's operations were inefficient due to
high operating costs exacerbated by excess workforce,
unnecessary capacity and obsolete assets;
(3) that the Company had inadequate internal controls; and
(4) that as a result of the foregoing, the Company's
earnings projections lacked in all reasonable basis
when made.
On August 1, 2005, Symbol released its poor financial results
for the second quarter of 2005. On this news, shares of Symbol
fell $1.79 per share, or 15.38 percent, on August 1, 2005, to
close at $9.85 per share.
For more details, contact Darren J. Check, Esq. or Richard A.
Maniskas, Esq. of 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.
WORLD HEALTH: Abbey Gardy Files Securities Fraud Suit in W.D. PA
----------------------------------------------------------------
The law firm of Abbey Gardy, LLP commenced a Class Action
lawsuit in the United States District Court for the Western
District of Pennsylvania on behalf of a class (the "Class") of
all persons who purchased or acquired securities of World Health
Alternatives, Inc. (OTC Bulletin Board: WHAIE) ("World Health"
or the "Company") between June 26, 2003 and August 19, 2005,
inclusive (the "Class Period").
The Complaint alleges that defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder, by issuing a series of material
misrepresentations to the market during the Class Period thereby
artificially inflating the price of Symbol securities. The
complaint alleges that the Company's publicly filed financial
statements during the Class Period were materially false and
misleading in that, among other things, the Company underpaid
more than $4 million in taxes during the Class period, and net
income was consequently overstated by a comparable amount; that
the Company was in breach of its lending agreements as a result
of having misrepresented its financial condition to its lenders,
resulting in the Company having fraudulently obtained more than
$6.5 million from its lenders; and that the Company misstated
the amount of debenture and warrants associated with the
Company's preferred stock. In addition, the Company misstated
the academic credentials of defendant McDonald in various SEC
filings during the Class Period, misleading investors as to the
training and integrity of the Company's senior management.
On August 19, 2005, the Company announced that it had commenced
an investigation into a series of manipulations of the Company's
published financial statements and operating results. The
Company has terminated its outside auditor, Daszkal Bolton LLP,
Defendant McDonald has resigned as CEO, it has retained outside
counsel and the Board of Directors has retained special counsel
to assist it with its investigation. In addition, the Company
announced that it will be restating its prior financial
statements due to the material misstatements outlined above and
has warned investors not to rely on the information contained
therein.
For more details, contact Susan Lee or Nancy Kaboolian, Esq. of
Abbey Gardy, LLP, Mail: 212 East 39th St., New York, NY, 10016,
Phone: (212) 889-3700 or (800) 889-3701 (Toll Free), E-mail:
slee@abbeygardy.com.
WORLD HEALTH: Brualdi Law Firm Files Securities Fraud Suit in PA
----------------------------------------------------------------
The Brualdi Law Firm initiated a class action in the United
States District Court for the Western District of Pennsylvania
on behalf of purchasers of the publicly traded securities of
World Health Alternatives, Inc. (OTCBB:WHAIE) ("World Health
Alternatives" or the "Company") between October 7, 2003 to
August 18, 2005, inclusive (the "Class Period"). The complaint
charges World Health Alternatives, certain of its officers and
directors and its former auditor with violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder.
The complaint alleges that the Company's publicly filed
financial statements during the Class Period were materially
false and misleading in that, among other things, the Company
underpaid more than $4 million in taxes during the Class period,
and net income was consequently overstated by a comparable
amount; that the Company was in breach of its lending agreements
as a result of having misrepresented its financial condition to
its lenders, resulting in the Company having fraudulently
obtained more than $6.5 million from its lenders; and that the
Company misstated the amount of debenture and warrants
associated with the Company's preferred stock. In addition, the
Company misstated the academic credentials of defendant McDonald
in various SEC filings during the Class Period, misleading
investors as to the training and integrity of the Company's
senior management. As a result of these misstatements, the
prices of the Company's publicly traded securities were
artificially inflated during the Class Period. The disclosure of
these misstatements caused the prices of the Company's
securities to collapse, causing injury to members of the Class.
For more details, contact Richard B. Brualdi, Esq. or Gaitri
Boodhoo, Esq. of The Brualdi Law Firm, 29 Broadway, Suite 2400
New York, NY, 10006, Phone: (212) 952-0602 or (877) 495-1187, E-
mail: rbrualdi@brualdilawfirm.com.
WORLD HEALTH: Charles J. Piven Files Securities Fraud Suit in FL
----------------------------------------------------------------
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 World Health
Alternatives, Inc. (OTC BB: WHAIE) (OTC BB: WHAI) between August
23, 2004 and August 18, 2005, inclusive (the "Class Period").
The case is pending in the United States District Court for the
Southern District of Florida against defendants World Health
Alternatives, Inc., its former Chief Executive Officer, Richard
E. McDonald and its independent auditor, Daszkal Bolton LLP. 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.
WORLD HEALTH: Chitwood Harley Lodges Securities Fraud Suit in PA
----------------------------------------------------------------
The law firm of Chitwood Harley Harnes LLP initiated a lawsuit
seeking class action status in the United States District Court
for the Western District of Pennsylvania on behalf of all
persons (the "Class") who purchased the common stock of World
Health Alternatives, Inc. (OTC BB: WHAI or WHAIE.OB) ("WHAI" or
the "Company") during the period June 26, 2003 and August 18,
2005, inclusive (the "Class Period"). The lawsuit was filed
against WHAI, Daszkal Bolton LLP, WHAI's recently terminated
outside auditor, Richard E. McDonald, Mark D. Roup and John C.
Sercu ("Defendants").
The Complaint alleges that during the Class Period, WHAI
violated Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934, and SEC Rule 10b-5. On August 16, 2005, the Company
announced that its then Chief Executive Officer, Richard E.
McDonald had resigned, allegedly for family and health reasons.
Three days later, on August 19, 2005, the Company announced that
it expected to restate its prior financial statements, that an
independent investigation had been commenced, and that it had
terminated its engagement with Daszkal Bolton LLP, its outside
auditors. The Company also revealed that it had made irregular
reports to its lenders, resulting in excess funding which may
have resulted in breaches of its financing agreements, had
underpaid certain tax liabilities, and had not properly reported
and/or accounted for all of its outstanding shares. In response
to this news, the Company's stock lost over 85% of its value in
a three day period, wiping out millions of dollars of market
capitalization. As now revealed, at least in part, Defendants
issued false and misleading financial statements at all times
during the Class Period and misrepresented the true results of
its operations.
For more details, contact Lauren S. Antonino, Esq. of Chitwood
Harley Harnes, LLP, 1230 Peachtree Rd., Suite 2300, Atlanta, GA,
30309, Phone: 1-888-873-3999 ext. 6888, E-mail:
lantonino@chitwoodlaw.com, Web site: http://www.chitwoodlaw.com.
WORLD HEALTH: Milberg Weiss Lodges Securities Fraud Suit in FL
--------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman, LLP, initiated
a class action lawsuit on behalf of all persons who purchased or
otherwise acquired the securities of World Health Alternatives,
Inc. ("World Health" or the "Company") (OTC BB: WHAI.OB) between
August 23, 2004, through August 18, 2005.
The action is pending in the United States District Court for
the Southern District of Florida against the Company, its former
Chief Executive Officer, Richard E. McDonald and the Company's
independent auditor, Daszkal Bolton LLP. According to the
complaint, defendants violated sections 10(b) and 20(a) of the
Exchange Act, and Rule 10b-5, by issuing a series of material
misrepresentations to the market during the Class Period.
The complaint alleges that throughout the Class Period,
Defendants made false and misleading statements to artificially
inflate the value of World Health stock, statements which the
Company now admits require restatement. On August 19, 2005, the
Company announced that it had commenced an investigation into a
series of manipulations of the Company's published financial
statements and operating results. The Company identified at
least four major discrepancies:
(1) misstatements of the amount of the Company's
outstanding shares;
(2) its failure to properly account for convertible debt
and warrant agreements;
(3) its underpayment of tax liabilities in the amount of $4
million; and
(4) misstatements to Company lenders resulting in $6.5
million in excess funding under the loan agreements.
As a result of this activity, the Company has terminated its
outside auditor, Daszkal Bolton LLP, Defendant McDonald has
resigned as CEO, it has retained outside counsel and the Board
of Directors has retained special counsel to assist it with its
investigation. The Company will be restating its prior financial
statements due to the material misstatements outlined above and
has warned investors not to rely on the information contained
therein.
The Company's restatement announcement shocked the market and
the price of its common stock plummeted an astonishing 86% on
August 19, 2005, trading as low as $0.25 per share after closing
on August 18, 2005 at $1.85 per share. Trading on a volume 15
times greater than its average, on August 19, 2005, 32 million
shares changed hands.
For more details, contact Steven G. Schulman of Milberg Weiss
Bershad & Schulman, LLP, One Pennsylvania Plaza, 49th fl., New
York, NY, 10119-0165, Phone: (800) 320-5081, E-mail:
sfeerick@milbergweiss.com, Web site: http://www.milbergweiss.com
OR Maya Saxena or Joseph White of Milberg Weiss Bershad &
Schulman, LLP, 5200 Town Center Circle, Suite 600, Boca Raton,
FL, 33486, E-mail: msaxena@milbergweiss.com or
jwhite@milbergweiss.com.
WORLD HEALTH: Schatz & Nobel Lodges Securities Fraud Suit in PA
---------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., initiated a lawsuit
seeking class action status in the United States District Court
for the Western District of Pennsylvania on behalf of all
persons who purchased the common stock of World Health
Alternatives, Inc. (OTCBB: WHAIE) ("the Company") between
October 7, 2003 and August 18, 2005 (the "Class Period").
The Complaint alleges that the Company violated federal
securities laws by filing materially false or misleading
financial statements. Specifically, the Complaint alleges that:
(1) the Company underpaid more than $4 million in taxes;
(2) it was in breach of lending agreements with its
lenders;
(3) it misstated the amount of debenture and warrants
associated with its preferred stock; and
(4) it misstated the academic credentials of the Company's
senior management.
When the true facts were disclosed, the Company's stock fell
from a close of $1.85 per share on August 18, 2005, to $0.49 per
share on August 19, 2005, when trading in the stock was
suspended.
For more details, contact Wayne T. Boulton or Nancy A. Kulesa of
Schatz & Nobel, Phone: (800) 797-5499, E-mail: sn06106@aol.com,
Web site: http://www.snlaw.net.
*********
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news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
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*********
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Class Action Reporter is a daily newsletter, co-published by
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Resnick, Editors.
Copyright 2005. All rights reserved. ISSN 1525-2272.
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