/raid1/www/Hosts/bankrupt/CAR_Public/051107.mbx
C L A S S A C T I O N R E P O R T E R
Monday, November 7, 2005, Vol. 7, No. 220
Headlines
ALLENTOWN BUSINESS: PA Students Commence Unfair Trade Lawsuit
BARR PHARMACEUTICALS: Judge Affirms Dismissal of Tamoxifen Case
BARR PHARMACEUTICALS: Working To Resolve Cipro Antitrust Suits
CAREER EDUCATION: FL Court Stays Unfair Trade Practices Lawsuit
CAREER EDUCATION: CA Court Stays 2 Unfair Trade Practices Suits
CAREER EDUCATION: Asks CA Court To Compel Arbitration in Lawsuit
CAREER EDUCATION: NY Court Grants Motion For Suit Arbitration
CAREER EDUCATION: IL Court Mulls Securities Fraud Suit Dismissal
CAREER EDUCATION: Asks IL Court To Certify Overtime Wage Lawsuit
CONSOLIDATED EDISON: NY Court Rules Favorably In Northeast Suit
DOW CHEMICAL: Asks Judge to Stop Tittabawassee River/Dioxin Suit
FIRSTENERGY CORPORATION: Faces August 2003 Power Outage Lawsuits
HALLIBURTON: Workers File Suit Over Unpaid Overtime in Army Deal
HOME MADE BRAND: Recalls Tuna Salads For Listeria Contamination
ILLINOIS: Glen Carbon Trustees Vote to Settle Lawsuit Over IMF
JERSEY CENTRAL: NJ Court Mulls Summary Judgment in Consumer Suit
KPMG LLP: Firms Vow to Appeal the Approval of $225M Settlement
MERCK & CO.: Victory Has no Effect on Other Cases, Attorney Says
MERCK & CO.: NJ Jury Sides With Firm in ID Worker's Vioxx Suit
MERCK & CO.: Australian Action to Proceed Despite U.S. Verdict
MURPHY OIL: Attorneys Ask LA Judge to Stop Firm From Settling
OHIO: Court Grants Temporary Stay in Girard Speed-Camera Lawsuit
OHIO EDISON: OH Residents Commence Medical Monitoring Lawsuit
PACIFICARE HEALTH: Trial in FL Managed Care Suit Set April 2006
PACIFICARE HEALTH: Discovery Stayed Against PBM Unit in CA Suit
SEMPRA ENERGY: Jury Trial Begins in CA Energy Antitrust Lawsuit
SEMPRA ENERGY: Trial in CA Toxic Tort Suit Set For March 2006
SEMPRA ENERGY: Asks NV Court To Dismiss Energy Antitrust Suits
VILLA TERESA: Woman Commences Injury Suit Due To Mother's Death
New Securities Fraud Cases
BARRIER THERAPEUTICS: Murray Frank Lodges Securities Suit in NJ
BOSTON SCIENTIFIC: Pomerantz & Haudek Lodges Fraud Suit in MA
DHB INDUSTRIES: Scott + Scott Will File Lead Plaintiff Motion
FIRST BANCORP: Brian M. Felgoise Lodges Securities Suit in NY
FIRST BANCORP: Brodsky & Smith Files Securities Fraud Suit in NY
FIRST BANCORP: Charles J. Piven Files Securities Suit in S.D. NY
FIRST BANCORP: Schatz & Nobel Lodges Securities Fraud Suit in NY
FIRST BANCORP: Schiffrin & Barroway Lodges Securities Suit in NY
FIRST BANCORP: Zwerling Schachter Lodges Securities Suit in PR
MOTIVE INC.: Dyer & Shuman Sets Lead January Plaintiff Deadline
MOTIVE INC.: Rosen Law Lodges Securities Fraud Suit in W.D. TX
MOTIVE INC.: Schatz & Nobel Lodges Securities Fraud Suit in NY
SMITH BARNEY: Stull Stull Files Amended Securities Suit in NY
*********
ALLENTOWN BUSINESS: PA Students Commence Unfair Trade Lawsuit
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Allentown Business School, Ltd. faces a class action filed in
the Court of Common Pleas of Lehigh County, Pennsylvania, styled
"McCarten et. al. v. Allentown Business School, Ltd. t/a Lehigh
Valley College."
The suit was filed on September 28, 2005, on behalf of all
former students of Allentown, now known as Lehigh Valley
College, who received allegedly "high interest private loans" to
fund their tuition requirements. The complaint alleges that the
Company violated Pennsylvania's Unfair Trade Practices and
Consumer Protection Law and engaged in intentional
misrepresentation, negligent misrepresentation, and negligence
by allegedly rushing students through a loan application
process, through which such students applied for and accepted
"private, non-federal, non-state loans" at times when such
students were allegedly eligible for low interest federal or
state guaranteed education loans. The plaintiffs, on behalf of
the putative class, seek compensatory and punitive damages in an
unspecified amount.
BARR PHARMACEUTICALS: Judge Affirms Dismissal of Tamoxifen Case
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The United States Court of Appeals for the Second Circuit
affirmed the May 2003 dismissal by U.S. District Judge I. Leo
Glasser of all of the plaintiffs' claims against Barr
Pharmaceuticals, Inc. (NYSE: BRL) and AstraZeneca in the
Tamoxifen Citrate antitrust litigation. By a 2-1 vote, a three
member panel of circuit judges affirmed as "beyond doubt" Judge
Glasser's "thorough and thoughtful opinion" that the 1993
settlement agreement between Barr and AstraZeneca did not
violate federal antitrust statutes or the antitrust and/or
consumer protection statutes of various states.
"We are pleased that our patent challenge settlement related to
Tamoxifen has been upheld as being pro-consumer and pro-
competitive," said Bruce L. Downey, Barr's Chairman and Chief
Executive Officer. "Today's decision supplements the growing
body of judicial authority that companies can lawfully settle
Hatch-Waxman patent challenge cases."
In 1993, as a result of a patent challenge, Barr and AstraZeneca
entered into an agreement that resulted in the distribution by
Barr of a more affordable version of AstraZeneca's Nolvadex(R)
treatment for breast cancer. That agreement expired in August
2002. AstraZeneca's pediatric exclusivity, which prevented
generic competition, expired in February 2003. Barr launched its
generic version of Tamoxifen Citrate in February 2003.
Approximately 30 class action complaints were filed by consumers
and/or third party payors in state and federal courts against
Barr and AstraZeneca arguing that the settlement insulated Barr
and AstraZeneca from generic competition, and resulted in
artificially inflated Tamoxifen prices. All complaints were
consolidated in the U.S. District Court for the Eastern District
of New York. In May 2003, Judge Glasser issued an order in the
case dismissing both the state and federal claims. The
Plaintiffs appealed Judge Glasser's order to U.S. Court of
Appeals for the Second Circuit, which now has affirmed his
order.
Barr Pharmaceuticals, Inc. is a holding company, whose principal
subsidiaries, Barr Laboratories, Inc., and Duramed
Pharmaceuticals, Inc., develops, manufacture and market generic
and proprietary pharmaceuticals.
BARR PHARMACEUTICALS: Working To Resolve Cipro Antitrust Suits
--------------------------------------------------------------
Barr Pharmaceuticals, Inc. is working to settle the litigation
pending against it, Bayer Corporation, The Rugby Group, Inc.,
alleging antitrust violations related to its antibiotic
Ciprofloxacin (Cipro).
Approximately 38 class action complaints were filed in state and
federal courts by direct and indirect purchasers of Cipro from
1997 to the present. The complaints allege that the 1997 Bayer-
Barr patent litigation settlement agreement was anti-competitive
and violated federal antitrust laws and/or state antitrust and
consumer protection laws. A prior investigation into the 1997
settlement by the Texas Attorney General's Office on behalf of a
group of state Attorneys General was closed without further
action in December 2001.
The lawsuits included nine consolidated in California state
court, one in Kansas state court, one in Wisconsin state court,
one in Florida state court, and two consolidated in New York
state court, with the remainder of the actions pending in the
U.S. District Court for the Eastern District of New York for
coordinated or consolidated pre-trial proceedings. In May
2003, the District Court ruled that the 1997 settlement did not
constitute a per se violation of the antitrust laws. At that
time, the Court had rejected two of plaintiffs' three legal
theories. In March 2005, the District Court granted summary
judgment in the Company's favor, again rejecting a challenge to
the lawfulness of its 1997 settlement with Bayer. In granting
summary judgment, the District Court concluded that plaintiffs'
remaining legal theory was also insufficient as a matter of law.
Plaintiffs are expected to appeal the District Court's decision.
On March 31, 2005, the Court in the MDL case dismissed all of
the federal actions before it. On June 7, 2005, plaintiffs
filed notices of appeal to the U.S. Court of Appeals for the
Second Circuit. The Court of Appeals has stayed consideration of
the merits pending consideration of the Company's motion to
transfer the appeal to the United States Court of Appeals for
the Federal Circuit.
On September 19, 2003, the Circuit Court for the County of
Milwaukee dismissed the Wisconsin state class action for failure
to state a claim for relief under Wisconsin law. Plaintiffs
appealed, and briefing is currently underway. On October 17,
2003, the Supreme Court of the State of New York for New York
County dismissed the consolidated New York state class action
for failure to state a claim upon which relief could be granted
and denied the plaintiffs' motion for class certification.
Plaintiffs have appealed that decision, briefing is complete,
and oral argument is set for November 22, 2005. On April 13,
2005, the Superior Court of San Diego, California ordered a stay
of the California state class actions until after the resolution
of any appeal in the MDL case. On April 22, 2005, the District
Court of Johnson County, Kansas similarly stayed the action
before it, until after any appeal in the MDL case. The Florida
state class action remains at a very early stage, with no status
hearings, dispositive motions, pre-trial schedules, or a trial
date set as of yet.
The Company believes that its agreement with Bayer Corporation
reflects a valid settlement to a patent suit and cannot form the
basis of an antitrust claim, the Company said in a disclosure to
the Securities and Exchange Commission. Based on this belief,
the Company is vigorously defending itself in the remaining
state court matters, and will vigorously defend any appeal of
the MDL Case. The Company anticipates that these matters may
take several years to resolve.
CAREER EDUCATION: FL Court Stays Unfair Trade Practices Lawsuit
---------------------------------------------------------------
The Hillsborough County Superior Court in Florida stayed the
class action filed against Career Education Corporation styled
"Benoit, et. al., v. Career Education Corporation, et. al.,"
pending arbitration for the suit. The suit also names as
defendants one of the Company's subsidiaries, Ultrasound
Technical Services, Inc. (UDS).
The action is purportedly brought on behalf of all persons who
have been enrolled in the Medical Billing and Coding Program
(MBC program) at the Tampa campus of UDS in the last four years.
The complaint alleges that the defendants breached enrollment
contracts with the plaintiffs and other class members and
violated the Florida Deceptive and Unfair Trade Practices Act
(the "FDUTPA") by, among other things, failing to properly train
students, offer and require sufficient hours of course work,
provide properly trained instructors, provide appropriate
curriculum consistent with the represented degree, award the
represented degree, provide adequate career placement services,
and by misrepresenting that they would provide such services.
The complaint also alleges that the defendants "padded" the MBC
program curriculum to charge greater tuition, purportedly in
violation of the FDUTPA. Plaintiffs seek actual damages,
attorneys' fees and costs, and any other relief the Court deems
appropriate.
On October 11, 2005, the Court ordered that the lawsuit be
stayed pending completion of arbitration pursuant to the
arbitration agreement contained within each of the plaintiffs'
enrollment individual agreements.
CAREER EDUCATION: CA Court Stays 2 Unfair Trade Practices Suits
---------------------------------------------------------------
The Superior Court of Santa Barbara County in California stayed
two amended class actions filed against Career Education
Corporation and one of its subsidiaries Brooks Institute of
Photography for violations of the state's business and
professionals' code.
On March 21,2005, a suit, styled "Thurston, et. al., v. Brooks
College, Ltd., et. al." was filed against Brooks College, one of
the Company's subsidiaries on behalf of all current and former
attendees of Brooks College. The complaint alleges that Brooks
College violated the California Business and Professionals Code
and Consumer Legal Remedies Act by allegedly misleading
potential students regarding Brooks College's admission
criteria, transferability of credits, and retention and
placement statistics and by engaging in false and misleading
advertising. Plaintiffs seek injunctive relief, restitution,
unspecified punitive and exemplary damages, attorneys' fees,
interest, costs, and other relief.
On June 7, 2005, Brooks College filed a motion to compel
arbitration and stay proceedings, which is currently pending. On
June 24, 2005, the Court ruled that this action was related to
the case captioned "Outten, et. al. vs. Career Education
Corporation, et al." and stayed the lawsuit until an initial
status conference.
Earlier, an amended complaint captioned "Outten, et. al., v.
Career Education Corporation, et. al." was filed in the Superior
Court of the State of California, County of Los Angeles, against
the Company and American InterContinental University (AIU), one
of its subsidiaries. The Company has filed an answer to the
amended complaint, denying all material allegations therein, and
have raised various affirmative defenses.
On October 6, 2004, plaintiffs filed a second amended complaint,
which added individuals who are current and former employees of
AIU. The second amended complaint alleges that AIU violated the
California unfair competition law, the California Consumer
Legal Remedies Act, and the California Education Code, and
engaged in common law consumer fraud by allegedly misleading
potential students regarding AIU's placement, retention, and
matriculation rates, and engaging in financial aid and admission
improprieties. The lawsuit appears to have been brought on
behalf of all current and prior attendees of AIU residing in
California. The plaintiffs, on behalf of the putative class,
seek injunctive relief, restitution, unspecified punitive and
exemplary damages, attorneys' fees, interest, costs, and other
relief.
On March 10, 2005, the Company filed an answer to the second
amended complaint as well as a cross-complaint. On June 24,
2005, the court ruled that this action was related to "Thurston
v. Brooks College." The matter is stayed pending an initial
status conference.
CAREER EDUCATION: Asks CA Court To Compel Arbitration in Lawsuit
----------------------------------------------------------------
Career Education Corporation asked the Superior Court of the
State of California, County of Santa Barbara to compel
arbitration for the class action filed against it and its
subsidiary Brooks Institute of Photography (BIP), styled "Nilsen
v. Career Education Corporation, et. al."
Three former students of Brooks Institute of Photography (BIP)
filed the suit on behalf of all students who attended BIP from
February 4, 2001, to the present. The complaint primarily
alleged that BIP violated the California Education Code, the
California Consumer Legal Remedies Act, and California unfair
competition law by allegedly misleading potential students
regarding BIP's placement rates and by engaging in false and
misleading advertising. The plaintiffs sought injunctive relief,
disgorgement profits, punitive damages, interest, and attorneys'
fees and costs.
On April 11, 2005, the Company filed a demurrer, a request to
the Court to dismiss, to all causes of action in the complaint.
The Court granted the demurrer and allowed the plaintiffs to
file an amended complaint. The parties also engaged in limited
discovery related solely to the issue of class certification.
On August 17, 2005, the plaintiffs filed their First Amended
Complaint, alleging violations of the California Education Code,
violations of the California Consumer Legal Remedies Act, false
advertising in violation of California's unfair competition law;
fraud, and unfair competition. Each cause of action in the
plaintiffs' first amended complaint arises primarily from
allegations that the defendants made misrepresentations to the
plaintiffs concerning their career prospects. The plaintiffs
seek monetary damages, injunctive relief, disgorgement of
profits, punitive damages, interest and attorneys' fees and
costs.
On October 17, 2005, defendants filed a motion to stay the case
pending the outcome of the administrative proceeding involving
BIP and the California Bureau for Private Postsecondary and
Vocational Education (BPPVE). Defendants also filed a demurrer
to the plaintiffs' first amended complaint, and a motion to
compel arbitration and stay the action pending the
administrative proceeding, if necessary. These motions'
hearings are scheduled for December 6, 2005.
CAREER EDUCATION: NY Court Grants Motion For Suit Arbitration
-------------------------------------------------------------
The United States District Court for the Southern District of
New York granted Career Education Corporation's motion seeking
arbitration for the class action filed against it, styled "Onate
and Lawrence, et. al. v. The Katharine Gibbs Corp.-New York, the
Katharine Gibbs Corp.- Melville, and Career Education Corp."
The suit was filed on August 12, 2005 on behalf of persons who
enrolled or attended the Katharine Gibbs School (New York) and
the Katharine Gibbs School (Melville) between January 1, 2002
and June 30, 2005. Plaintiffs allege that they have been
injured as a result of what they describe as false and
misleading practices by the defendants. Plaintiffs assert causes
of action for violations of the New York General Obligations
law, the New York Education Law as well as for unjust enrichment
and punitive damages. They allege that defendants misrepresented
placement and graduation rates, as well as requirements for
admissions. They also allege that defendants misrepresented the
reputation of the schools and what defendants would provide in
the way of job placement assistance.
On October 11, 2005, the Court granted defendants' motion to
compel arbitration pursuant to the arbitration agreement
contained within each of the plaintiffs' individual enrollment
agreements.
CAREER EDUCATION: IL Court Mulls Securities Fraud Suit Dismissal
----------------------------------------------------------------
The United States District Court for the Northern District of
Illinois has yet to rule on Career Education Corporation's
motion to dismiss the second amended class action filed against
it and two of its executive officers, John M. Larson and Patrick
K.Pesch.
Between December 9, 2003, and February 5, 2004, six purported
class action lawsuits were filed on behalf of certain purchasers
of the Company's common stock. The complaints allege that in
violation of Section 10(b) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder, the defendants made
certain material misrepresentations and failed to disclose
certain material facts about the condition of the Company's
business and prospects during the putative class periods,
causing the respective plaintiffs to purchase shares of the
Company's common stock at artificially inflated prices. The
plaintiffs further claim that Mr. Larson and Mr. Pesch are
liable as control persons under Section 20(a) of the Act. The
plaintiffs ask for unspecified amounts in damages, interest, and
costs, as well as ancillary relief. Five of these lawsuits were
found to be related to the first filed lawsuit, captioned
"Taubenfeld v. Career Education Corporation et. al. (No. 03 CV
8884)," and were reassigned to the same judge.
On March 19, 2004, the court ordered these six cases to be
consolidated and appointed Thomas Schroeder as lead plaintiff.
On April 6, 2004, the court appointed the firm of Goodkind
Labaton Rudoff & Sucharow LLP, which represents Mr. Schroeder,
as lead counsel. On June 17, 2004, plaintiffs filed a
consolidated amended complaint, which the Company moved to
dismiss on July 30, 2004. On February 11, 2005, the Company`s
motion to dismiss was granted, without prejudice. On April 1,
2005, plaintiffs filed a second amended complaint, which the
Company moved to dismiss on May 20, 2005. Plaintiffs filed their
response brief on July 8, 2005, and the Company's reply brief is
due August 8, 2005. In addition, the court has issued an order
changing the caption of this matter to "In re Career Education
Corporation Securities Litigation."
The suit is styled "In re Career Education Corporation
Securities Litigation, case no. 1:03-cv-08884," filed in the
United States District Court for the Northern District of
Illinois, under Judge Joan Humphrey Lefkow. Representing the
Company are Karl Richard Barnickol, Mary Ellen Hennessy, Joni S.
Jacobsen, David H. Kistenbroker, Katten Muchin Zavis Rosenman,
525 West Monroe Street Suite 1600 Chicago, Il 60661-3693 Phone:
(312) 902-5200. Representing the plaintiffs are:
(1) Anthony F. Fata and Marvin Alan Miller, Miller Faucher
and Cafferty, LLP 30 North LaSalle Street Suite 3200
Chicago, IL 60602 Phone: (312) 782-4880;
(2) Joshua Lifshitz, Bull & Lifshitz, LLP 18 East 41st
Street New York, NY 10017 Phone: (212) 213-6222
(3) Andrei V. Rado, Steven G. Schulman, Peter Seidman,
Milberg Weiss Bershad & Schulman LLP One Pennsylvania
Plaza 49th Floor New York, NY 10119-0165 Phone:
(212)594-5300
CAREER EDUCATION: Asks IL Court To Certify Overtime Wage Lawsuit
----------------------------------------------------------------
Plaintiffs asked the United States District Court for the
Northern District of Illinois to grant class certification to
the lawsuit filed against Career Education Corporation, American
InterContinental University, Inc. (AIU Online) and the president
of the Company's Online Education Group, for violations of
federal labor law.
The suit, styled "Vander Vennet, et. al. v. American
InterContinental University, Inc., et. al.," was filed on August
24, 2005 by former admissions advisors of AIU, alleging that the
defendants violated the Fair Labor Standards Act (FLSA), the
Illinois Minimum Wage Law, and the Illinois Wage Payment and
Collection Act. The defendants allegedly failed to pay the
plaintiffs for all of the overtime hours they allegedly worked.
The plaintiffs are seeking certification as a class under the
FLSA and, on August 24, 2005, filed a motion for FLSA Notice.
CONSOLIDATED EDISON: NY Court Rules Favorably In Northeast Suit
---------------------------------------------------------------
The United States District Court for the Southern District of
New York ruled that Northeast Utilities could not sue
Consolidated Edison, Inc. for lost premium claims in litigation
filed against the Company over its merger with Northeast
Utilities.
In March 2001, the Company commenced an action in the United
States District Court for the Southern District of New York (the
District Court), entitled "Consolidated Edison, Inc. v.
Northeast Utilities" (the First Federal Proceeding), seeking a
declaratory judgment that Northeast Utilities has failed to meet
certain conditions precedent to Con Edison's obligation to
complete its acquisition of Northeast Utilities pursuant to
their agreement and plan of merger, dated as of October 13,
1999, as amended and restated as of January 11, 2000 (the merger
agreement).
In May 2001, the Company amended its complaint. As amended, the
complaint seeks, among other things, recovery of damages
sustained by it as a result of the material breach of the merger
agreement by Northeast Utilities, the District Court's
declaration that under the merger agreement the Company has no
further or continuing obligations to Northeast Utilities and
that Northeast Utilities has no further or continuing rights
against Con Edison.
In June 2001, Northeast Utilities withdrew the separate action
it commenced in March 2001 in the same court and filed as a
counter-claim in the First Federal Proceeding its claim that the
Company materially breached the merger agreement and that, as a
result, Northeast Utilities and its shareholders have suffered
substantial damages, including the difference between the
consideration to be paid to Northeast Utilities' shareholders
pursuant to the merger agreement and the market value of
Northeast Utilities common stock (the so-called "lost premium"
claim), expenditures in connection with regulatory approvals and
lost business opportunities.
Pursuant to the merger agreement, the Company agreed to acquire
Northeast Utilities for $26.00 per share (an estimated aggregate
of not more than $3.9 billion) plus $0.0034 per share for each
day after August 5, 2000 through the day prior to the completion
of the transaction, payable 50 percent in cash and 50 percent in
stock.
In March 2003, the District Court ruled on certain motions filed
by the Company and Northeast Utilities in the First Federal
Proceeding. The District Court ruled that the Company's claim
against Northeast Utilities for hundreds of millions of dollars
for breach of the merger agreement, as well as its claim that
Northeast Utilities underwent a material adverse change, will go
to trial. The District Court also dismissed Con Edison's fraud
and misrepresentation claims.
In addition, the District Court ruled that Northeast Utilities'
shareholders were intended third-party beneficiaries of the
merger agreement and the alleged $1.2 billion lost premium claim
against Con Edison would go to trial.
May 2003, a lawsuit by a purported class of Northeast Utilities'
shareholders, entitled "Rimkoski, et al. v. Consolidated Edison,
Inc.," was filed in New York County Supreme Court (the State
Proceeding) alleging breach of the merger agreement. The
complaint defined the putative class as holders of Northeast
Utilities' common stock on March 5, 2001, and alleged that the
class members were intended third party beneficiaries of the
merger agreement. The complaint sought damages believed to be
substantially duplicative of those sought by Northeast Utilities
on behalf of its shareholders in the First Federal Proceeding.
In December 2003, the District Court granted Rimkoski's motion
to intervene in the First Federal Proceeding and, in February
2004, the State Proceeding was dismissed without prejudice.
In January 2004, Rimkoski filed a motion in the First Federal
Proceeding to certify his action as a class action on behalf of
all holders of Northeast Utilities' common stock on March 5,
2001 and to appoint Rimkoski as class representative. The
motion is pending. In May 2004, the District Court ruled that
the Northeast Utilities' shareholders who may pursue the lost
premium claim against Con Edison are the holders of Northeast
Utilities' common stock on March 5, 2001 and the District Court
therefore dismissed Northeast Utilities' lost premium claim.
The District Court certified its ruling regarding the lost
premium claim for interlocutory appeal to the United States
Court of Appeals for the Second Circuit (the Court of Appeals),
and in June 2004 Northeast Utilities filed its motion for leave
to appeal the issue to the Court of Appeals. The District Court
further certified for interlocutory appeal its March 2003
determination that Northeast Utilities' shareholders are
intended third-party beneficiaries under the merger agreement,
and in June 2004 Con Edison filed its motion for leave to appeal
the issue to the Court of Appeals. In October 2004, the Court
of Appeals granted both Con Edison's motion and Northeast
Utilities' motion. In October 2005, the Court of Appeals
reversed the District Court's March 2003 ruling that Northeast
Utilities' shareholders were intended third-party beneficiaries
of the merger agreement, and held that Northeast Utilities'
shareholders therefore could not sue the Company for the claimed
lost premium. Also, in October 2005, Northeast Utilities and
Rimkowski each filed petitions for rehearing of that Court of
Appeals' decision.
In May 2004, the District Court dismissed the lawsuit that was
commenced in October 2003 by a purported class of Northeast
Utilities' shareholders, entitled "Siegel et al. v. Consolidated
Edison, Inc." (the Second Federal Proceeding). The Second
Federal Proceeding had sought unspecified injunctive relief and
damages believed to be substantially duplicative of the damages
sought from Con Edison in the First Federal Proceeding. A motion
by the plaintiffs in the Second Federal Proceeding to intervene
in the First Federal Proceeding is pending.
The suit is styled "Consolidated Edison v. Northeast Utilities,
et al., case no. 1:01-cv-01893-JGK," filed in the United States
District Court for the Southern District of New York, under
Judge John G. Koeltl. Representing the Company are Stuart Jay
Baskin, John Gueli and Kenneth M. Kramer, Shearman & Sterling
LLP (New York), 599 Lexington Avenue, New York, NY 10022, Phone:
(212) 848-4000, Fax: (646) 848-4974, E-mail:
sbaskin@shearman.com, jgueli@shearman.com.
DOW CHEMICAL: Asks Judge to Stop Tittabawassee River/Dioxin Suit
----------------------------------------------------------------
Dow Chemical Co. is asking a judge in Michigan to put on hold a
class action lawsuit that would hold the company liable for
dioxin contamination downstream of its Midland plant, The
Saginaw News reports.
Dow attorneys specifically called on Saginaw County Chief
Circuit Judge Leopold P. Borrello to stop the lawsuit until
after the Michigan Court of Appeals has a chance to review it.
They argue that the courts cannot possibly treat the case as a
class action lawsuit when differences exist between individual
class members and their dioxin levels along the Tittabawassee
River.
Until that issue is settled, spokesman Scot Wheeler told The
Saginaw News that it makes sense to stop the suit. "A resolution
of the issue will greatly impact the course of these
proceedings," according to him. Though Dow has not yet filed an
appeal Mr. Wheeler told The Saginaw News that attorneys would do
so later this month.
Bruce Trogan, an attorney for residents suing Dow, told The
Saginaw News he anticipated the request and opposes it. He
explains, "They want to delay as long as possible."
FIRSTENERGY CORPORATION: Faces August 2003 Power Outage Lawsuits
----------------------------------------------------------------
FirstEnergy Corporation continues to face litigation related to
the widespread power outages in various states in the United
States and parts of Southern Canada on August 14,2003.
The outages affected approximately 1.4 million customers in the
Company's service area. The U.S. - Canada Power System Outage
Task Force's final report in April 2004 on the outages
concludes, among other things, that the problems leading to the
outages began in the Company's Ohio service area. Specifically,
the final report concluded, among other things, that the
initiation of the August 14, 2003 power outages resulted from:
(1) an alleged failure of both the Company and the East
Central Area Reliability Coordination Agreement (ECAR)
to assess and understand perceived inadequacies within
the FirstEnergy system;
(2) inadequate situational awareness of the developing
conditions; and
(3) a perceived failure to adequately manage tree growth in
certain transmission rights of way
The Task Force also concluded that there was a failure of the
interconnected grid's reliability organizations - Midwest
Independent Transmission System Operator, Inc. (MISO) and PJM
Interconnection, LLC - to provide effective real-time diagnostic
support. The Company said in a regulatory filing that it
believes that the final report does not provide a complete and
comprehensive picture of the conditions that contributed to the
August 14, 2003 power outages and that it does not adequately
address the underlying causes of the outages. The Company
remains convinced that the outages cannot be explained by events
on any one utility's system.
The Company and its affiliates are defending six separate
complaint cases before the Public Utilities Commission of Ohio
(PUCO) relating to the August 14, 2003 power outage. Two such
cases were originally filed in Ohio State courts but
subsequently dismissed for lack of subject matter jurisdiction
and further appeals were unsuccessful. In both such cases, the
individual complainants - three in one case and four in the
other - sought to represent others as part of a class action.
The PUCO dismissed the class allegations, stating that its rules
of practice do not provide for class action complaints. Of the
four other pending PUCO complaint cases, three were filed by
various insurance carriers either in their own name or as
subrogees in the name of their insured. In each such case, the
carriers seek reimbursement against various FirstEnergy
companies (and, in one case, against PJM, MISO and American
Electric Power Co. as well) for claims they paid to their
insureds allegedly due to the loss of power on August 14, 2003.
The listed insureds in these cases, in many instances, are not
customers of any FirstEnergy company. The fourth case involves
the claim of a non-customer seeking reimbursement for losses
incurred when its store was burglarized on August 14, 2003. In
addition to these six cases, the Ohio Companies were named as
respondents in a regulatory proceeding that was initiated at the
PUCO in response to complaints alleging failure to provide
reasonable and adequate service stemming primarily from the
August 14, 2003 power outages.
One complaint was filed on August 25, 2004 against the Company
in the New York State Supreme Court. In this case, several
plaintiffs in the New York City metropolitan area allege that
they suffered damages as a result of the August 14, 2003 power
outages. None of the plaintiffs are customers of any FirstEnergy
affiliate. The Company's motion to dismiss the case was granted
on September 26, 2005.
Additionally, the Company was named in a complaint filed in
Michigan State Court by an individual who is not a customer of
any FirstEnergy company. A responsive pleading to this matter
is not due until on or about December 1, 2005. No estimate of
potential liability has been undertaken in this matter.
HALLIBURTON: Workers File Suit Over Unpaid Overtime in Army Deal
----------------------------------------------------------------
Halliburton and KBR face a lawsuit filed in Texas that accuses
it of violating contracts with the Army when they failed to pay
workers in Iraq and Kuwait overtime, The Houston Chronicle
reports. Filed by five workers in Houston federal court, the
suit is seeking class action status and claims that Halliburton
and its subsidiaries shorted 20,000 to 40,000 truck drivers,
cooks, mechanics and other workers millions of dollars.
Ramon Rossi Lopez, a trial lawyer with Lopez, Hodes, Restaino,
Milman & Skikos in Newport Beach, California told The Houston
Chronicle, "It appears to us from our investigation and talking
to several hundred employees that they were required to work 80
to 100 hours a week simply because it's cheaper to have them
work overtime then have (other employees) start a new week."
According to the suit, Brown & Root Services signed a contract
with the Army in December 2001 to provide non-combat support
services. The suit alleges that despite the fact that federal
law does not require companies to pay their overseas workers
overtime, the agreement between the Army and Halliburton
required the payment of time and one-half for workers who put in
more than 40 hours a week. The suit further alleges that the
Company and its subsidiaries required its workers to sign
contracts stipulating that they would not receive overtime. The
suit also claims that workers routinely worked between 80 to 100
hours a week.
The Company's contract is under the Logistics Civil Augmentation
Program, better known as LOGCAP, which helps plan for the use of
civilian contractors in wartime and emergencies.
HOME MADE BRAND: Recalls Tuna Salads For Listeria Contamination
---------------------------------------------------------------
Home Made Brand Foods Inc., 2 Opportunity Way, Newburyport MA
01950 is voluntarily recalling Home Made Brand Tuna Salad, in 5
lb. units with an expiration date of 10/16/05, because it has
the potential to be contaminated with Listeria monocytogeness,
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.
Approximately 398 5-lb. units were distributed through two
distributors in MA, ME and NY for sale at retail stores/ deli
counters.
The problem was discovered after routine sampling by New York
State Department of Agriculture and Markets Food Inspectors and
subsequent analysis of the product by Food Laboratory personnel
found the product to be positive for Listeria monocytogenes.
As a result of the above findings, Home Made Brand Foods Inc.
voluntarily withdrew all tuna salad products in 5 lb., 10 lb.
and 12 oz. units with expiration dates between 10/16/05 and
11/07/05 distributed under the brand names: Home Made Brand
Foods; P & C Food Markets, Inc.; and Weis Markets labels.
Subsequently, samples submitted to a private lab found the
voluntarily withdrawn products negative for Listeria
monocytogenes.
No illnesses have been reported to date in connection with this
problem.
Consumers who have purchased the Tuna Salad should not consume
it, but should return it to the place of purchase. Consumers
with questions may contact the company at (978) 462-3663 Ext.
327.
ILLINOIS: Glen Carbon Trustees Vote to Settle Lawsuit Over IMF
--------------------------------------------------------------
The Glen Carbon Board of Trustees voted recently to approve an
agreement to settle a class action lawsuit brought by
PrimeCo/U.S. Cellular and other wireless telecommunications
companies in protest of the 1 percent municipal infrastructure
maintenance fee (IMF), The Edwardsville Intelligencer reports.
After an executive session trustees reconvened to approve the
agreement to pay $18,497 to settle the class action suit and
$2,242 to Prime Co/U.S. Cellular.
Court records show that the companies objected to the IMF
applied to customer's service between January 1998, and February
2002. Previously, the Illinois Supreme Court affirmed a circuit
court judgment that the IMF was in violation of the state
constitution. Since that time, the state has agreed to allow
municipalities to collect a telecommunications tax of up to 6
percent. It is this tax that the city Glen Carbon, Illinois uses
for road and park improvements and to replace the fees once
charged for wheel tax and pet licenses.
JERSEY CENTRAL: NJ Court Mulls Summary Judgment in Consumer Suit
----------------------------------------------------------------
The New Jersey Superior Court has yet to rule on Jersey Central
Power & Light Company's motion for summary judgment in the class
action filed against it, its former parent GPU Energy (now
acquired by FirstEnergy Corporation) and other GPU companies, in
relation to the severe July 1999 heat wave in the Mid-Atlantic
States, which resulted in power outages throughout the service
territories of many electric utilities, including the Company's
territory.
In an investigation into the causes of the outages and the
reliability of the transmission and distribution systems of all
four of New Jersey's electric utilities, the New Jersey Board of
Public Utilities (NJBPU) concluded that there was not a prima
facie case demonstrating that, overall, the Company provided
unsafe, inadequate or improper service to its customers. Two
class action lawsuits (subsequently consolidated into a single
proceeding) were filed, seeking compensatory and punitive
damages arising from the July 1999 service interruptions in the
Company's territory.
In August 2002, the trial court granted partial summary judgment
to the Company and dismissed the plaintiffs' claims for consumer
fraud, common law fraud, negligent misrepresentation, and strict
product liability. In November 2003, the trial court granted the
Company's motion to decertify the class and denied plaintiffs'
motion to permit into evidence their class-wide damage model
indicating damages in excess of $50 million. These class
decertification and damage rulings were appealed to the
Appellate Division. The Appellate Division issued a decision on
July 8, 2004, affirming the decertification of the originally
certified class, but remanding for certification of a class
limited to those customers directly impacted by the outages of
Company transformers in Red Bank, New Jersey. On September 8,
2004, the New Jersey Supreme Court denied the motions filed by
plaintiffs and the Company for leave to appeal the decision of
the Appellate Division. The Company has filed a motion for
summary judgment.
KPMG LLP: Firms Vow to Appeal the Approval of $225M Settlement
--------------------------------------------------------------
Three plaintiffs class action firms vowed to appeal the recent
federal court ruling in Newark, New Jersey that preliminarily
approved a $225 million settlement of a class action against
accounting giant KPMG, LLP and its lawyers, Sidley, Austin,
Brown & Wood, The New Jersey Law Journal reports.
The objecting firms Fine, Kaplan & Black of Philadelphia, Cohen,
Milstein, Hausfield & Toll of Washington, D.C. and Bernstein,
Litowitz, Berger & Grossman of New York, seek to disqualify lead
plaintiffs firm Milberg Weiss Bershad & Schulman, whom they
accuse of collusion and conflicts of interest. They claim that
the firm held a "reverse auction" -- negotiating with KPMG and
Sidley Austin on behalf of putative class members before filing
a class action suit -- and did so while keeping an individual
plaintiff in Florida dangling in the dark.
U.S. District Judge Dennis Cavanaugh turned away the objectors
and set a February 24 fairness hearing on final approval of the
pact in Simon v. KPMG, 00-6003. The settlement provides $195
million in compensation to class members and $30 million in
attorney fees and at the same time ends claims that KPMG and
Sidley Austin sold hundreds of tax shelters that the Internal
Revenue Service later eviscerated.
Of the three firms that object to the deal, Fine Kaplan and
Cohen Milstein have class action suits on behalf of the same
plaintiff class pending in New York federal court. All three
firms had moved to be appointed co-lead-counsel in the present
case, assuming Milberg Weiss would be disqualified.
Appearing as interveners before Judge Cavanaugh, the firms aired
their challenges during two days of recent hearings. They argued
that the Florida client, Mark Kottler, was kept in the dark
about Milberg Weiss' class action activities and that when he
learned of them, he withdrew his case. Milberg Weiss denies
those accusations.
Both sides presented expert testimony on the conflict issue. The
interveners' expert, Boston University law professor Nancy
Moore, said that Milberg Weiss' conduct violated Rule of
Professional Conduct 1.7. Ms. Moore, who helped fashion the rule
as chief reporter for the Ethics 2000 Commission, also said that
there was a conflict that "raised serious questions about the
adequacy of Milberg Weiss' representation of the putative
class."
However, Judge Cavanaugh was persuaded by Milberg Weiss' expert,
former 3rd U.S. Circuit Court of Appeals Chief Judge Arlin
Adams, that the controlling case is Lazy Oil Co. v. Witco Corp.,
116 F. 3d 581 (3 Cir., 1999), which set a test that balances the
class's interest in experienced counsel against actual prejudice
to the objectors of continued representation. He found the
interveners were not prejudiced by Milberg Weiss' continued
participation and that class members would suffer additional
costs if approval were put off.
Judge Cavanaugh told both parties, "It may be that eventually,
the Third Circuit will look at this again, and it may be that
they will agree with Professor Moore that the traditional New
Jersey rule on conflicts should take precedent. Whether or not
there was a conflict, I think, is going to be for another day."
The judge also said that Mr. Kottler had credibility problems in
his account of the whole episode. Further, the judge noted that
his high regard for the two former judges made him inclined to
accept their testimony that Milberg Weiss' negotiations with
KPMG and Sidley Austin were free from collusion and conducted
with the best interests of class members in mind.
Mr. Kottler's new attorney, Steven Toll of Cohen, Milstein,
objects to the settlement on its merits, pointing out that while
it compensates former KPMG clients at 35, 65 or 130 percent of
the fees they paid to the accounting and law firms, depending on
an assortment of factors, it takes no account of additional
taxes paid as a result of the IRS rejection of the shelters. The
settlement also includes a provision for a 50 percent penalty
against those who dispute their placement in one of the
categories and lose, says Mr. Toll.
The suit is styled, "SIMON et al v. KPMG LLP et al, Case No.
2:05-cv-03189-DMC-MF," filed in the United States District Court
for the District of New Jersey, under Judge Dennis M. Cavanaugh.
Representing the Plaintiff/s are James E. Cecchi and Melissa E.
Flax of CARELLA BYRNE BAIN GILFILLAN CECCHI STEWART & OLSTEIN,
PC, 5 Becker Farm Road, Roseland, NJ 07068, Phone:
(973) 994-1700, Fax: (973) 994-1744, E-mail:
jcecchi@carellabyrne.com and mflax@carellabyrne.com.
Representing the Defendant/s are, Dennis J. Drasco of LUM,
DANZIS, DRASCO & POSITAN, LLC, 103 Eisenhower Parkway, Roseland,
NJ 07068-1049, Phone: (973) 403-9000, E-mail:
ddrasco@lumlaw.com; and Anthony J. Marchetta of Pitney Hardin,
200 Campus Drive, Florham Park, NJ 07932, Phone: 973-966-8032,
E-mail: amarchetta@pitneyhardin.com.
MERCK & CO.: Victory Has no Effect on Other Cases, Attorney Says
----------------------------------------------------------------
Although Merck & Co. recently won a victory in the second VIOXX
trial in New Jersey the decision does not have any negative
implications for other plaintiffs.
According to Christopher Placitella of Cohen, Placitella & Roth,
P.C., one of the attorneys involved in the Texas trial case,
where there was a $250 million verdict, the loss is not a
setback for the 6,400 other lawsuits that have been filed
against Merck.
"Everyone knew from the beginning that this was a difficult
medical case and that Merck would present a vigorous and well
orchestrated defense focusing on the plaintiff," Mr. Placitella
said following the verdict. "There will be wins and losses
during the course of this litigation for both sides, depending
upon the facts as presented in individual cases."
Citing the early lawsuits for asbestos health issues, Mr.
Placitella pointed out that first six asbestos cases were lost
before the asbestos companies' conduct was fully explained and
revealed. "That is not the case here. One jury has already found
the drug maker's conduct so reprehensible that they awarded $250
million," he emphasized. "The liability evidence introduced was
compelling."
Mr. Placitella, who has been conducting national liability
discovery against Merck, which he says has yet to be used in a
trial against the drug maker, stated, "Discovery of new evidence
in the VIOXX cases continues and new evidence will surface in
every case we try over the next year."
He added, "Our trial team, which comprises not only the lawyers
who won the case in Texas, but also some of the best law firms
in the United States, looks forward to trying the next case
against Merck."
For more details, contact Chris Placitella of Cohen, Placitella
& Roth, Phone: +1-732-423-7559 (Cell) or +1-732-747-9003
(Office), E-mail: cplacitella@cprlaw.com.
MERCK & CO.: NJ Jury Sides With Firm in ID Worker's Vioxx Suit
--------------------------------------------------------------
In the second product liability case concerning former
blockbuster arthritis drug and pain reliever Vioxx, Merck & Co.
won a major victory when an jury in Atlantic City, New Jersey
sided with it, The Street.com reports.
In its verdict, the jury found that Vioxx wasn't the "proximate
cause" of a man's heart attack, and thus rejected the contention
by plaintiff Frederick Humeston that Merck failed to adequately
warn physicians about the product's potential cardiovascular
risks.
In addition, jurors also disagreed with the claim by Mr.
Humeston that Merck had engaged in consumer fraud in marketing
Vioxx to doctors.
In a prepared statement, Jim Fitzpatrick of the law firm Hughes
Hubbard & Reed and a Merck defense attorney, said, "We presented
a case that was solidly based on scientific evidence." He also
said, "Frederick Humeston would have suffered a heart attack
when he did, whether he was taking Vioxx or not. In addition,
Merck presented evidence that it carefully studied Vioxx before
and after [Food and Drug Administration] approval, and
consistently made the results of those studies available to the
FDA and the medical community."
Mr. Humeston, an Idaho postal worker, met with reporters after
the verdict was handed down, saying that while he was
disappointed with the jury's decision, he felt the "system has
worked." He also told reporters that he didn't want other
plaintiffs to be discouraged because he lost his case.
He added that even though he believed Vioxx to be a "bad
product," his lawsuit against the company "wasn't an indictment
against the scientists at Merck in general."
Merck withdrew its Vioxx drug because of an increased risk of
heart attack and stroke on September 2004. In withdrawing the
drug, Merck stated that new data from a three-year clinical
trial revealed that patients taking Vioxx for more than 18
months have double the risk of heart attack and stroke, compared
to those taking a placebo, an earlier Class Action Reporter
story (October 4, 2004) reports.
Merck also said that the data showing the increased risk of
cardiovascular complications began 18 months after patients
began taking Vioxx at a 25-milligram dose once daily. Peter S.
Kim, president of Merck research labs, even said at a recent
press conference that 7.5 patients out of 1,000 taking the
placebo had a heart attack or stroke after 18 months, while 15
patients out of 1,000 taking Vioxx had a heart attack or stroke
during the same 18 months, an earlier Class Action Reporter
story (October 4, 2004) reports.
MERCK & CO.: Australian Action to Proceed Despite U.S. Verdict
--------------------------------------------------------------
An Australian class action against drug maker, Merck and Co.
over its arthritis drug Vioxx will go ahead despite a recent
verdict in the company's favor in the United States, The Age
reports.
Melbourne law firm Slater and Gordon told The Age it would
launch a class action representing more than 300 former users of
Vioxx "within weeks". The firm's suit will allege that Merck and
Co. was negligent for not warning Vioxx takers until April 2002
that the drug increased the risk of heart attacks five-fold in
comparison with another arthritis drug. It will also allege that
the drug maker's own study in early 2000 indicated the risk
level.
Slater and Gordon special counsel Richard Meeran told The Age
that the recent verdict in the United States was "irrelevant" to
the Australian case. He told The Age, "As far as we're concerned
we've conducted our own research in a lot of detail over many
months and we're very clear that the company was negligent." He
goes on to state, "It failed to warn doctors and patients of the
cardiovascular risks at a time when it was well aware of those
risks and this (U.S.) verdict is completely irrelevant, I think,
to Australian claimants."
Mr. Meeran explained to The Age that the U.S. jury verdict
rejected a claim by a man who suffered a mild heart attack in
August 2001 after taking Vioxx intermittently for two months. He
told The Age that Slater and Gordon considered the case "weak"
compared with that of Australian claimants it would bring to
court. According to him, "All of them (Australian claimants)
used the drug for many, many months, most of them in excess of
18 months." He added, "All the people who will be in the class
action suffered either heart attacks or strokes ... either
whilst they were taking Vioxx or very shortly afterwards."
Among the claimants are relatives of between 30 and 50 people
who suffered fatal heart attacks or strokes while using Vioxx,
Mr. Meeran added. While others are heart attack or stroke
survivors with varying levels of ongoing injury and trauma.
The victims are from all over Australia, according to Mr.
Meeran. He adds that the case would be brought to either the
Victorian Supreme Court or Federal Court.
MURPHY OIL: Attorneys Ask LA Judge to Stop Firm From Settling
-------------------------------------------------------------
At a recent hearing in federal court, lawyers stated that Murphy
Oil Corporation is providing false and misleading information
about a massive oil spill at its Louisiana refinery during
Hurricane Katrina as it tries to ward off a class action
lawsuit, The Associated Press reports.
The allegations were made in a hearing in which plaintiffs'
attorneys sought to convince U.S. District Judge Eldon Fallon to
restrict Murphy from entering into settlement talks with victims
of the oil spill in Meraux. Recently, the Company approached
residents and businesses to urge them to accept a money
settlement for the damage to their properties.
George Frilot, a Murphy attorney, told The Associated Press that
the company has talked to about 300 people so far, but he
declined to say how many have signed settlements. People who
sign agreements give up their right to pursue legal action
against the company and its subcontractors.
However, plaintiffs' attorneys pointed out to Judge Fallon that
Murphy has downplayed and misled people about the potential
long-term health and environmental risks of the 1 million gallon
oil spill that washed into about 1,500 homes. They also charged
that the company is making people think that the contaminated
area is smaller than it actually is. In addition, the attorneys
contended that under the enduring chaotic conditions victims are
unable to get adequate legal help and that the court should
safeguard them from predatory practices.
Gerald Meunier, one of several lawyers in the class action suit,
said, "Ultimately, the question, judge, is: 'Are these citizens
safe and protected?'" He added, "People do not have access to
the information they need to decide whether they should settle."
A Murphy attorney though disagreed, saying that the settlement
process is open and honest. Kerry Miller added that many
residents show up at Murphy's claims offices because they want
to get on with their lives. He also said, "There are many people
coming in fully aware of the class action suits. But they come
in and say, 'This is the path I'm choosing.'"
Mr. Miller adds, "You have no hardcore evidence that the process
is abusive. That's what it's all about. Are we twisting
anybody's arms?" Mr. Miller also pointed out that many people
are thankful to get the money so they can start their lives
anew. He contends that people don't want to wait to get an
undetermined amount of money from a lawsuit years down the road.
Murphy's lawyers declined to talk about how much they are
offering people, but Sidney Torres III, another plaintiffs'
attorney, told The Associated Press that he heard that one man
got $30,000 and bought a new pickup truck. After hearing both
sides' arguments Judge Fallon said he would take the case under
advisement and rule soon.
The case stems from a multimillion gallon storage tank at
Murphy's refinery in St. Bernard Parish, about 10 miles
southeast of New Orleans, which floated off its foundation and
broke. Several class action suits were filed after the spill,
alleging that the company was at fault. Until now though, it has
not been determined why the tank, which is one of several in a
tank farm behind the refinery, broke.
OHIO: Court Grants Temporary Stay in Girard Speed-Camera Lawsuit
----------------------------------------------------------------
A court order placed a temporary stay on one woman's order to
pay fines imposed by a speed camera in city of Girard, Ohio, The
Youngstown Vindicator reports. Despite the order, though city
officials said that all others who are ticketed must still hand
over the cash.
Julie Sferra, through her lawyers Brian P. Kish and David J.
Betras of Canfield, filed a motion for an alternate writ of
prohibition in the 11th District Court of Appeals, which asked
that the court prohibit Ms. Sferra's scheduled hearing next week
before a hearing officer in Girard, along with all other similar
hearings involving the speeding program.
Though the court granted the writ, it only applied it to Ms.
Sferra's hearing. Mr. Betras, however, told The Youngstown
Vindicator that having one hearing stayed is not good enough. He
is thus planning to include the hearings of others, who are
disputing the fines imposed by the camera in a class action suit
against the city.
Mr. Betaras told The Youngstown Vindicator that subpoenas for
the names of all those fined will be sent to the city if the use
of the camera for ticketing purposes is not immediately stopped.
He further told The Youngstown Vindicator, "I am going to tell
the mayor of Girard to either dismantle that machine or I am
going to go after them for all the money collected." He adds,
"The ball is in the mayor's court; he can either follow the law
or continue to act like a tyrant." The city, according to Mr.
Betras, should use the camera only to issue warnings to those
found speeding.
The city and representatives of Traffipax, the Columbia,
Maryland firm in charge of operating and maintaining the camera
unit, see the appellate court decision much differently than do
Mr. Betras and Mr. Kish. Mayor James Melfi, who has long
contended that the camera is more for safety than revenue, told
The Youngstown Vindicator that the situation involving Ms.
Sferra, who authorities said was driving 27 mph over the posted
speed limit, is proof of the camera's contribution to safety in
the city. He pointed out, "Someone doing 52 miles per hour in a
25 mile-per-hour zone is making the streets unsafe for other
citizens, and in that respect, the camera is working
wonderfully."
Mark Standohar, city law director, told The Youngstown
Vindicator that Mr. Betras and others are reading more into the
stay issued by the court than is actually there. "We have
finally managed to find a camera Dave Betras doesn't like,"
according to Standohar, who added that many people have
overstated the reach of the writ, signed by Appellate Judge
Donald Ford. He adds, "It [the writ] only puts a temporary stay
on the hearing scheduled for November 9. The safety-service
director and mayor have made it clear - the camera will stay in
place and they will proceed with collections as usual."
OHIO EDISON: OH Residents Commence Medical Monitoring Lawsuit
-------------------------------------------------------------
Ohio Edison Company faces a medical monitoring class action
filed in Jefferson County, Ohio Common Pleas Court, related to
its W.H. Sammis Plant facility.
The suit seeks compensatory and punitive damages to be
determined at trial based on claims of negligence and eight
other tort counts alleging damages from the plant's air
emissions. The two named plaintiffs are also seeking injunctive
relief to eliminate harmful emissions and repair property damage
and the institution of a medical monitoring program for class
members.
PACIFICARE HEALTH: Trial in FL Managed Care Suit Set April 2006
---------------------------------------------------------------
Trial in the litigation filed against Pacificare Health Systems,
Inc. and other managed care companies, styled "In Re Managed
Care Litigation" is set for April 2006 in the United States
District Court for the Southern District of Florida.
In mid-2000, various federal actions against managed care
companies, including the Company, were joined in a multi-
district litigation that was coordinated for pre-trial
proceedings in the United States District Court for the Southern
District of Florida. Thereafter, Dr. Dennis Breen, Dr. Leonard
Klay, Dr. Jeffrey Book and several other physicians, along with
several medical associations, including the California Medical
Association, joined the litigation as plaintiffs. These
physicians sued several managed care companies, including the
Company, alleging, among other things, that the companies have
systematically underpaid providers for medical services to
members, have delayed payments, and that the companies impose
unfair contracting terms on providers and negotiate capitation
payments that are inadequate to cover the costs of health care
services provided.
The Company sought to compel arbitration of all of Dr. Breen's,
Dr. Book's and other physician claims against it. The District
Court granted the motion to compel arbitration against all of
these claims except for claims for violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO), and for their
RICO conspiracy and aiding and abetting claims that stem from
contractual relationships with other managed care companies. On
April 7, 2003, the United States Supreme Court held that the
District Court should have compelled arbitration of the Direct
RICO Claims filed by Dr. Breen and Dr. Book.
On September 15, 2003, the District Court entered another ruling
on several of the Company's motions to compel arbitration,
ordering arbitration of all claims arising out of the Company's
contracts with plaintiffs containing arbitration clauses. The
District Court, however, also ruled that plaintiffs' RICO
conspiracy and aiding and abetting claims against the Company
that stem from contractual relationships with other managed care
companies and plaintiffs' claims based on services they provided
to the Company's members outside of any contractual relationship
with the Company or assignments from its members do not need to
be arbitrated. As a result, the order to compel arbitration
does not cover part of the conspiracy and aiding and abetting
claims of all plaintiffs or any of the direct claims by a subset
of plaintiffs (non-contracted plaintiffs who provide services to
the Company's members but do not accept assignments from them).
On September 26, 2002, the District Court certified a nationwide
RICO class of virtually all physicians in the country as well as
a nationwide state-law subclass of physicians. On September 1,
2004, the Eleventh Circuit Court of Appeals upheld part of the
class certified by the District Court. Specifically, the
Eleventh Circuit upheld the District Court's certification of a
nationwide RICO class of physicians, but reversed the District
Court's certification of plaintiffs' state law claims. On July
25, 2005, the District Court amended the class certification to,
among other things, exclude "any claims that the methods by
which negotiated capitation rates are derived and calculated are
actuarially unsound." The District Court's July 25, 2005 order
amended and certified plaintiffs' class as to both "In re
Managed Care" and also as to the essentially identical lawsuit
filed in the Southern District of Florida, styled "Shane et al.
v. Humana et al. Case No. 04-21589-CIV-MORENO (Shane II)."
On August 25, 2005, the District Court entered a summary
judgment in our favor on all remaining capitation-related claims
against the Company. The District Court has set a trial date
for April 2006.
Several additional lawsuits have been filed against the Company
and the other defendants in the "In re Managed Care Litigation"
by non-physician providers of health care services, such as
chiropractors and podiatrists. Those lawsuits have been assigned
to the District Court for pre-trial proceedings, but are
currently stayed pending the completion of pre-trial matters in
the physician class action.
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.
PACIFICARE HEALTH: Discovery Stayed Against PBM Unit in CA Suit
---------------------------------------------------------------
Discovery remains stayed against Pacificare Health Systems,
Inc.'s prescription benefit management (PBM) company
Prescription Solutions in the class action filed against it and
nine other PBM companies in the Superior Court for Los Angeles
County, California.
The first suit, styled "Irwin v. AdvancePCS, Inc. et al.," was
filed on March 26, 2003 in California Superior Court of Alameda
County. Robert Irwin filed the suit against Prescription
Solutions and nine other PBM companies. On July 17, 2003, the
"Irwin" case was coordinated with "American Federation of State,
County & Municipal Employees v. AdvancedPCS, et al.," and
transferred to Los Angeles Superior Court for coordinated
proceedings.
The case purports to be filed on behalf of members of non-
Employee Retirement Income Security Act (ERISA) health plans and
individuals with no prescription drug coverage who have
purchased drugs at retail rates. The first amended complaint,
filed on November 25, 2003, alleges that each of the defendants
violated California's unfair competition law. The complaint
challenges alleged business practices of PBMs, including
practices relating to pricing, rebates, formulary management,
data utilization and accounting and administrative processes.
The complaint seeks unspecified monetary damages and injunctive
relief.
On May 5, 2004, Prescription Solutions filed a petition to
compel arbitration. On July 9, 2004, the Superior Court granted
the petition, holding that Irwin's request for monetary relief
can only be resolved in arbitration and staying Irwin's request
for injunctive relief against Prescription Solutions until an
appropriate arbitration is completed. Discovery is proceeding
against most other defendants but is stayed as to Prescription
Solutions pending arbitration.
SEMPRA ENERGY: Jury Trial Begins in CA Energy Antitrust Lawsuit
----------------------------------------------------------------
Jury trial has begun in the litigation filed against Sempra
Energy, its subsidiaries, El Paso Natural Gas Company (El Paso)
and several of its affiliates in the San Diego Superior Court in
California.
Several class action and individual antitrust and unfair
competition lawsuits were filed in 2000, alleging that the
defendants unlawfully sought to control natural gas and
electricity markets. Plaintiff class members include virtually
all natural gas and electric consumers served by the California
IOUs.
In December 2003, the Court approved a settlement with the El
Paso entities valued at approximately $1.6 billion to resolve
these claims and other litigation involving claims unrelated to
those asserted against the Company and its subsidiaries. The
proceeding against the Company and its subsidiaries, in which
the remaining plaintiffs claim damages of $23 billion after
applicable trebling, has not been resolved and continues to be
litigated.
An initial jury trial in this litigation began on October 24,
2005, pursuant to a stipulation with respect to its size, scope,
format and binding effect. The stipulation permits the Company
and its subsidiaries to appeal any final judgment in the initial
trial that is unfavorable to them prior to any additional
proceedings in the trial court.
The initial trial is for two plaintiff subclasses, residential
natural gas and electricity customers in Ventura County,
California and all other residential electricity customers of
Southern California Edison Company (Edison). Employing the
plaintiffs' damages methodology, the damage claims of these
plaintiffs are estimated to total approximately $80 million and
$1.2 billion, respectively, after applicable trebling, plus
additional indeterminate amounts (not subject to trebling) for
claims of unfair competition. The remainder of plaintiffs' $23
billion damage claims is allocable to plaintiffs other than the
Ventura residential customer subclass and the Edison residential
customer subclass.
If a judgment favorable to the Ventura residential customer
subclass were to be entered at the conclusion of the initial
trial, Sempra Energy and the California Utilities could appeal
the judgment by posting a bond in an amount not to exceed $75
million. Any initial trial judgment for the Edison residential
customer subclass would not be a final judgment, and would be
stayed pending the exhaustion of appellate review of any
judgment for the Ventura residential customer subclass. If
appeals to overturn a judgment favorable to the Ventura
residential subclass were to be ultimately unsuccessful,
additional trials or other trial court proceedings with respect
to other plaintiffs would then proceed. In these proceedings,
Sempra Energy and the California Utilities would be precluded
from relitigating previously determined issues of liability,
causation and fact of damages that are not unique to the
specific plaintiff groups in the proceedings. Final judgments
with respect to those plaintiffs and with respect to the Edison
residential customer subclass (as determined by the initial
trial) would be entered following the conclusion of the
additional proceedings.
The FERC has not yet acted on a petition filed by Sempra Energy
and the California Utilities on June 22, 2005, seeking a
declaratory order that the FERC has exclusive jurisdiction with
respect to the issues raised in these proceedings that preempts
the California litigation. However, the San Diego Superior Court
has previously rejected assertions of FERC exclusive
jurisdiction and a FERC ruling favorable to Sempra Energy,
SoCalGas and SDG& E would not, in itself, dispose of the
California litigation.
Similar antitrust and unfair competition lawsuits have been
filed by the Attorneys General of Arizona and Nevada, alleging
that El Paso and certain Sempra Energy subsidiaries unlawfully
sought to control the natural gas market in their respective
states. The claims against the Sempra Energy defendants in the
Arizona lawsuit were settled in September 2004 for $150,000. The
Nevada Attorney General's lawsuit remains pending.
SEMPRA ENERGY: Trial in CA Toxic Tort Suit Set For March 2006
-------------------------------------------------------------
Trial in the toxic tort lawsuit filed in the Los Angeles County
Superior Court in California against Sempra Energy is set for
March 2006. The suit also names as defendants several Company
subsidiaries, three oil and natural gas companies, the City of
Beverly Hills and the Beverly Hills Unified School District.
The suit was filed on behalf of approximately 1,000 plaintiffs
claiming that various emissions resulted in cancer or fear of
cancer. Twelve plaintiffs initially have a trial scheduled for
March 2006 in which they seek unspecified compensatory and
punitive damages. The Company has submitted the case to its
insurers, who have reserved their rights with respect to
coverage.
SEMPRA ENERGY: Asks NV Court To Dismiss Energy Antitrust Suits
--------------------------------------------------------------
Sempra Energy asked the United States District Court for the
District of Nevada to dismiss the remaining antitrust lawsuits
filed against it and one or more of its affiliates, alleging
they unlawfully manipulated energy prices in California.
Between May 2003 and December 2004, 20 antitrust actions were
filed against the Company, one or more of its affiliates, and
various, unrelated energy companies, alleging that energy prices
were unlawfully manipulated by defendants' reporting
artificially inflated natural gas prices to trade publications
and by entering into wash trades. Several of those lawsuits
seek class action certification.
On April 8, 2005, one of those lawsuits, filed in the Nevada
U.S. District Court, was dismissed on the merits, on the grounds
that the claims asserted were preempted by federal law and the
Filed Rate Doctrine. In June 2005, the three remaining lawsuits
were amended to name several of the Company's affiliates as
defendants. Motions to dismiss those lawsuits have been filed
and are awaiting resolution by the District Court.
In addition, in June 2005, a class action lawsuit similar to the
pending individual suits in the Nevada federal court was filed
by Ever-bloom, Inc., et al., in the U.S. District Court for the
Eastern District of California and has now been coordinated with
the Nevada federal court proceeding.
VILLA TERESA: Woman Commences Injury Suit Due To Mother's Death
---------------------------------------------------------------
Claiming that her mother was harmed by care received at Villa
Teresa nursing home in Pennsylvania, which is voluntarily
shutting down, Rose Marie Horner, initiated a class action
lawsuit, The Patriot-News reports.
Ms. Horner is handling the estate of her mother, Rose M.
Michalek, who died in May. In her suit, she states that her
mother lived at Villa Teresa between January and late March.
Aside from the Lower Paxton Twp. nursing home, the suit also
names as a defendant, the Roman Catholic Diocese of Harrisburg,
which it says is a part owner of Villa Teresa. However, a
diocese spokesman told The Patriot-News that the diocese has no
connection to Villa Teresa and will ask to be removed from the
suit.
Villa Teresa has been plagued by poor ratings in state quality
inspections and faced possible loss of its state license. Two
recent incidents involved unattended residents who lost control
of their wheelchairs on the sloped driveway outside. Both
toppled from their wheelchairs and sustained injuries that
contributed to their deaths. Last month, Villa Teresa announced
that it would close, attributing the decision to industry-wide
problems with finding adequate staff, not to the license
problems or the wheelchair incidents.
Ms. Horner's lawyer, Barbara Graybill, placed newspaper ads
seeking others who may have been harmed by care received at
Villa Teresa and three other nursing homes owned by the
Carmelite Sisters of the Aged and Infirm, based in Germantown,
New York. The other homes are in Hollidaysburg, Wilkes-Barre and
Philadelphia.
Currently, Ms. Horner is the only plaintiff named in the suit
when it was filed last month in Dauphin County. According to the
lawsuit, Mrs. Michalek lived at Villa Teresa for nearly three
months, beginning on January 5. She had medical problems,
including dementia and impaired ability to walk and care for
herself, when she entered the home.
The suit claims Mrs. Michalek lost about 5 pounds during her
first six days at Villa Teresa, and the staff failed to ensure
that she received adequate nutrition. It also claims that Mrs.
Michalek twice had to be transferred to the hospital for medical
problems, including pressure sores and kidney failure that could
have been prevented through adequate care. After her second
hospital stay, Mrs. Michalek was taken to a different nursing
home, where she died on May 3 at age 78, according to the suit.
The lawsuit claims the owners of the four nursing homes failed
to invest in the level of staffing and supplies needed to
properly care for residents. It doesn't say though how much in
damages will be sought.
Villa Teresa Administrator Janice Dubroski declined to be
interviewed but states in an e-mailed statement, "we
respectfully disagree" with claims that Mrs. Michalek received
poor care. According to Ms. Dubroski, Mrs. Michalek "was in poor
and deteriorating health" when she arrived at Villa Teresa, and
those health problems caused her decline.
New Securities Fraud Cases
BARRIER THERAPEUTICS: Murray Frank Lodges Securities Suit in NJ
---------------------------------------------------------------
The law firm of Murray, Frank & Sailer, LLP, initiated a class
action lawsuit in the United States District Court for the
District of New Jersey on behalf of purchasers of Barrier
Therapeutics, Inc. ("Barrier") (Nasdaq:BTRX) common stock during
the period between April 29, 2004 and June 29, 2005 (the "Class
Period"). Shareholders who purchased Barrier stock in the
Initial Public Offering ("IPO") on April 29, 2004 and/or in its
Secondary Offering on February 9, 2005 are also included in this
class action. Murray, Frank & Sailer LLP is seeking to pursue
remedies under the Securities Exchange Act of 1934 and the
Securities Act of 1933 against defendants Barrier Therapeutics,
Inc., Geert Cauwenbergh, Anne M. Vanlent and Charles T. Nomides.
Barrier is a biopharmaceutical company, engaged in the
discovery, development, and commercialization of pharmaceutical
products in the field of dermatology. The complaint alleges that
Barrier made a series of materially false and misleading
statements concerning the Company's business and products under
development. In particular, the Complaint alleges that these
statements were materially false and misleading because they
failed to disclose and misrepresented the following adverse
facts:
(1) that the Company had failed to perform its clinical
trials in conformity with FDA guidelines as they had
failed to disclose that they had secretly substituted
the petroleum base within Zimycan, the effect of which
was to substantially lessen the likelihood that the
drug could achieve FDA approval;
(2) that Hyphanox did not have a better safety or efficacy
profile than fluconazole/Diflucan and, in fact, as
investors ultimately learned, Hyphanox was
significantly less effective than fluconazole/Diflucan;
and
(3) as a result of the foregoing, defendants lacked any
reasonable basis for their positive statements
concerning the marketability of Zimycan and Hyphanox.
For more details, contact Eric J. Belfi or Christopher S. Hinton
of Murray, Frank & Sailer, LLP, Phone: (800) 497-8076 or
(212) 682-1818, Fax: (212) 682-1892, E-mail:
info@murrayfrank.com.
BOSTON SCIENTIFIC: Pomerantz & Haudek Lodges Fraud Suit in MA
-------------------------------------------------------------
The law firm of Pomerantz Haudek Block Grossman & Gross, LLP,
initiated a class action lawsuit on behalf of purchasers of
securities of Boston Scientific Corporation ("Boston Scientific"
or the "Company") (NYSE:BSX) during the period from March 31,
2003 through August 23, 2005, inclusive (the "Class Period").
Defendants include James R. Robin, chief executive officer and
president and Paul A. Laviolette, chief operating officer. The
case, Civil Action Number 05-12194 JLT, was filed in the United
States District Court, District of Massachusetts.
Boston Scientific, a Delaware-based corporation, is a worldwide
developer, manufacturer and marketer of medical devices that are
used in a broad range of interventional medical specialties. The
Complaint charges that Defendants violated the Securities
Exchange Act of 1934 (Sections 10(b) and 20(a) and Rule 10b-5
promulgated thereunder) by making false and misleading
statements to the investing public as to the Company's ability
to satisfy FDA regulations governing its medical device product
quality, as well as affirmative representations as to the
Company's knowledge and expertise regarding design, development,
marketing approval and sales of its medical devices.
The true facts, which were known to each of the defendants but
concealed from the investing public, were that
(1) the Company's internal controls, corporate compliance
processes and systems as they were directly related to
the medical device product life cycle were deficient
and defective;
(2) the Company suffered from longstanding, basic, chronic
and global deficiencies in its quality practices;
(3) the Company had failed to comply with numerous FDA
medical device regulations and federal statutes
governing its quality practices; and
(4) public safety was at risk, since the Company was unable
to reliably assure safety and efficacy for any of its
products.
On August 23, 2005, based on the cumulative impact of three
separate FDA Warning Letters, investors finally learned of the
true nature of defendants' concealment of its broken quality
program and the risks the Company faced that were completely
unrelated to the Company's ongoing and unpredictable patent
litigation agenda. The truth was that the performance of the
Company was immediately related to the revelations of quality
and regulatory obstacles impacting marketability. As a result of
the news form the FDA, the Company's stock price fell $1.23 per
share. The stock has plummeted $19.89, or over 43 percent, from
its Class Period high of $45.81 on April 5, 2004.
For more details, contact Teresa Webb or Carolyn Moskowitz of
Pomerantz Haudek Block Grossman & Gross, LLP, Phone:
(888) 476-6529 (888), E-mail: tlwebb@pomlaw.com, Web site:
csmoskowitz@pomlaw.com.
DHB INDUSTRIES: Scott + Scott Will File Lead Plaintiff Motion
-------------------------------------------------------------
The law firm of Scott + Scott, LLC, the first to file a
securities class action against DHB Industries, Inc. (Amex: DHB)
on September 9, 2005 on behalf of its clients, will file a lead
plaintiff motion with the Court on November 8, 2005.
Scott + Scott, representing both individual and institutional
investors of DHB in the United States District Court for the
Eastern District of New York (Case No. 2:05-cv-04296-JS-ETB),
drafted a complaint on behalf of clients and other shareholders
after determining that the alleged fraud was substantial and
that the misrepresentations were material. Purchasers of DHB
securities between April 21, 2004 and August 29, 2005, inclusive
(the "Class Period") are members of the purported class.
The complaint, filed on September 9, 2005, alleges that during
the Class Period, DHB and certain individual defendants,
including CEO David Brooks, violated the Securities Exchange Act
of 1934 by making false and misleading statements causing
artificial inflation in the Company's stock price.
For more details, contact Neil Rothstein of Scott + Scott, LLC,
Phone: +1-800-332-2259, ext. 22 or +1-619-251-0887, E-mail:
nrothstein@scott-scott.com.
FIRST BANCORP: Brian M. Felgoise Lodges Securities Suit in NY
-------------------------------------------------------------
The Law Offices of Brian M. Felgoise, P.C., filed a securities
class action on behalf of shareholders who acquired First
BanCorp (NYSE: FBP) securities between October 20, 2003 and
August 25, 2005, inclusive (the Class Period).
The case is pending in the United States District Court for the
Southern District of New York, against the company and certain
key officers and directors.
The action charges that defendants violated the 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 Brian M. Felgoise, Esq., 261 Old York
Road, Suite 423, Jenkintown, PA 19046, Phone: (215) 886-1900, E-
mail: FelgoiseLaw@verizon.net.
FIRST BANCORP: Brodsky & Smith Files Securities Fraud Suit in NY
----------------------------------------------------------------
The Law offices of Brodsky & Smith, LLC, initiated a securities
class action lawsuit on behalf of shareholders who purchased the
common stock and other securities of First BanCorp. (NYSE: FBP)
("First BanCorp" or the "Company") between October 20, 2003 and
October 21, 2005 inclusive (the "Class Period"). The class
action lawsuit was filed in the United States District Court for
the Southern District of New York.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period,
thereby artificially inflating the price of First BanCorp
securities. No class has yet been certified in the above action.
For more details, contact Evan J. Smith, Esq. or Marc L.
Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite
602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail:
clients@brodsky-smith.com.
FIRST BANCORP: Charles J. Piven Files Securities Suit in S.D. NY
----------------------------------------------------------------
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 First
BanCorp (NYSE: FBP) between October 20, 2003 and August 25,
2005, inclusive (the "Class Period").
The case is pending in the United States District Court for the
Southern District of New York against defendant First BanCorp
and one or more of its officers and/or directors. 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 St.,
Suite 2525, Baltimore, MD 21202, Phone: 410/986-0036, E-mail:
hoffman@pivenlaw.com.
FIRST BANCORP: Schatz & Nobel Lodges Securities Fraud Suit in NY
----------------------------------------------------------------
The law firm of Schatz & Nobel, P.C. initiated a lawsuit seeking
class action status in the United States District Court for the
Southern District of New York on behalf of all persons who
purchased the securities of First BanCorp (NYSE:FBP) between
October 20, 2003 and August 25, 2005 (the "Class Period").
The Complaint alleges that First BanCorp violated federal
securities laws by issuing false or misleading public
statements. On August 25, 2005, First BanCorp announced that it
had "received a letter from the Securities and Exchange
Commission (the "SEC") in which the SEC indicated that it was
conducting an informal inquiry into the Company. The inquiry
pertains, among other things, to the accounting for mortgage
loans purchased by the Company from two other financial
institutions during the calendar years 2000 through 2004." On
this news, the price of First BanCorp stock fell from a close of
$19.94 per share on August 25, 2005, to close at $18.16 per
share on August 26, 2005.
For more details, contact Wayne T. Boulton or Nancy A. Kulesa of
Schatz & Nobel, P.C., Phone: (800) 797-5499, E-mail:
sn06106@aol.com, Web site: http://www.snlaw.net.
FIRST BANCORP: Schiffrin & Barroway Lodges Securities Suit in NY
----------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP, initiated a class
action lawsuit in the United States District Court for the
Southern District of New York on behalf of all securities
purchasers of First BanCorp (NYSE: FBP) ("First BanCorp" or the
"Company") from October 20, 2003 through October 21, 2005,
inclusive (the "Class Period").
The complaint charges First BanCorp, Angel Alvarez-Perez
("Alvarez-Perez") and Annie Astor-Carbonell ("Astor-Carbonell")
with violations of the Securities Exchange Act of 1934. First
BanCorp operates as the holding company for FirstBank Puerto
Rico, which provides various financial services in Puerto Rico,
the U.S. Virgin Islands, and British Virgin Islands. The
complaint alleges that defendants' Class Period representations
regarding First BanCorp's financial statements, business, and
prospects were materially false and misleading when made.
Specifically, the defendants failed to disclose:
(1) that First BanCorp improperly classified, for
accounting purposes, mortgage transactions with other
financial institutions (most notably Doral Financial
Corp. and R&G Financial Corp.) as purchases rather than
loans by the Company and its subsidiaries secured by
the mortgages;
(2) that the improper methodology used by the Company on
these loans caused the Company to materially inflate
its financial results;
(3) that as a consequence of this, the Company's financial
statements were presented in violation of Generally
Accepted Accounting Principles ("GAAP");
(4) that the Company lacked the necessary personnel and
controls to issue accurate financial reports and
projections; and
(5) that as a result of the above, the value of the
Company's net income and financial results were
materially overstated at all relevant times.
During the Class Period, defendants embarked on a five-year
scheme to inflate the financial results of First BanCorp by
manipulating its accounting on mortgage transactions with other
financial institutions (most notably Doral Financial Corp. and
R&G Financial Corp.). The scheme began to unravel for defendants
in 2005. On August 11, 2005, First BanCorp announced that it was
delaying the filing of its Form 10-Q for the quarter ended June
30, 2005. According to First BanCorp, it indicated that on
August 1, 2005, the Audit Committee (the "Committee") of First
BanCorp determined that the Committee should review the
background and accounting for certain purchases of mortgage
loans made by the Company between 2000 and 2005.
In reaction to this announcement, the price of First BanCorp
stock fell dramatically, from $22.73 per share on August 10,
2005 to $21.00 per share on August 11, 2005, a one-day drop of
$1.73 per share, or 7.61 percent, on unusually heavy trading
volume.
Following the above disclosure, First BanCorp, on August 25,
2005, after the market closed, announced that the SEC was
conducting an informal inquiry into the Company's accounting.
According to the Company, the inquiry pertained to, among other
things, the accounting for mortgage loans purchased by the
Company from two other financial institutions (Doral Financial
Corp. and R&G Financial Corp.) during the calendar years 2000
through 2004. In reaction to this announcement, the price of
First BanCorp stock fell dramatically, from $20.02 per share on
August 25, 2005 to $18.23 per share on August 26, 2005, a one-
day drop of $1.79 per share, or 8.94 percent, on unusually heavy
trading volume.
About one month later, on September 30, 2005, First BanCorp,
after the market closed, announced a series of management
changes. According to the Company, defendant Alvarez-Perez had
stepped down as President and Chief Executive Officer and
announced that he would retire effective December 31, 2005, as
Chairman of the Board of Directors. In addition, defendant
Astor-Carbonell had resigned from her position as Chief
Financial Officer and as a member of the Board of Directors, and
informed the Company that she would retire on October 31, 2005.
In reaction to this announcement, the price of First BanCorp
stock fell dramatically, from $16.92 per share on September 30,
2005 to $15.56 per share on October 3, 2005, a drop of $1.36 per
share, or 8.04 percent, on unusually heavy trading volume.
Then, on October 21, 2005, after the close of the market, First
BanCorp announced that the SEC had issued a formal order of
investigation in its investigation into the Company. According
to First BanCorp, the investigation, which stemmed out of an
informal inquiry announced by the Company in late August 2005,
appeared to relate to, among other things, transactions in which
First Bank acquired a substantial number of mortgage loans from
other Puerto Rican financial institutions (Doral Financial Corp.
and R&G Financial Corp.). In reaction to this announcement, the
price of First BanCorp stock fell dramatically, from $15.25 per
share on October 21, 2005 to $14.03 per share on October 24,
2005, a one-day drop of $1.22 per share, or 8 percent, on
unusually heavy trading volume.
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.
FIRST BANCORP: Zwerling Schachter Lodges Securities Suit in PR
--------------------------------------------------------------
The law firm of Zwerling, Schachter & Zwerling, LLP, initiated a
class action lawsuit in the United States District Court for the
District of Puerto Rico on behalf of all persons and entities
who purchased or otherwise acquired the publicly traded common
stock of First Bancorp ("First Bancorp" or the "Company") (NYSE:
FBP) during the period from March 31, 2003 through October 24,
2005 (the "Class Period"). The deadline to move the Court
seeking to be appointed lead plaintiff is January 2, 2006.
The complaint alleges that defendants violated Section 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. Specifically, the complaint alleges that
defendants' statements made during Class Period concerning First
Bancorp's earnings and financial condition were materially false
and misleading when made because defendants failed to disclose
that:
(1) the Company's earnings quality had been significantly
reduced by First Bancorp's use of overly aggressive
accounting methodologies, specifically in its
accounting classification of purchases of mortgage
loans originated by other financial institutions;
(2) the Company lacked adequate internal controls and was
therefore unable to ascertain the true financial
condition of First Bancorp;
(3) the Company's financial statements were not prepared in
accordance with generally accepted accounting
principles;
(4) the Company's false and misleading accounting treatment
of certain mortgage loans purchased would ultimately
expose First Bancorp to regulatory scrutiny; and
(5) that, as a result of the aforementioned, First
Bancorp's reported net income and assets were
materially overstated during the Class Period.
On August 25, 2005, the Company announced that it was subject to
a SEC informal inquiry related to mortgage loans purchased by
First Bancorp. On September 30, 2005, the Company's Chief
Executive Officer and Chief Financial Officer resigned from
First Bancorp. On October 21, 2005, the Company announced that
the SEC had issued a formal order of investigation into First
Bancorp relating to, among other things, transactions in which
the Company acquired substantial number of mortgage loans from
other Puerto Rican financial institutions.
For more details, contact Willie Gonzalez or Kevin M. McGee,
Esq. of Zwerling, Schachter & Zwerling, LLP, Phone:
1-800-721-3900, E-mail: wgonzalez@zsz.com or kmcgee@zsz.com, Web
site: http://www.zsz.com.
MOTIVE INC.: Dyer & Shuman Sets Lead January Plaintiff Deadline
---------------------------------------------------------------
The law firm of Dyer & Shuman, LLP, is encouraging persons who
purchased the common stock of Motive, Inc. (NASDAQ: MOTV)
between July 11, 2005 and October 26, 2005 ("Class Members") to
contact Kip B. Shuman of Dyer & Shuman, LLP at 1-800-711-6483 or
via email at KShuman@DyerShuman.com, or their counsel of choice,
concerning their rights and interests as potential class members
in the shareholder class action lawsuit recently filed in the
United States District Court for the Western District of Texas
against Motive, Inc. The lawsuit alleges that Motive, Inc.
violated federal securities laws by issuing material
misrepresentations to the market.
The firm reminds investors that they have until January 2, 2006
to file for lead plaintiff in the case.
For more details, contact Kip B. Shuman of Dyer & Shuman, LLP,
Phone: 1-800-711-6483, E-mail: KShuman@DyerShuman.com, Web site:
http://www.dyershuman.com.
MOTIVE INC.: Rosen Law Lodges Securities Fraud Suit in W.D. TX
--------------------------------------------------------------
The Rosen Law Firm initiated a class action in the United States
District Court for the Western District of Texas on behalf of
purchasers of Motive, Inc. ("Motive") (Nasdaq:MOTV) common stock
during the period between July 11, 2005 and October 26, 2005
(the "Class Period").
The Complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market concerning its
projected revenues, which had the effect of artificially
inflating the shares' market price. The class period is from
July 11, 2005 through October 26, 2005.
For more details, contact Laurence Rosen, Esq. of The Rosen Law
Firm P.A., Phone: (212) 686-1060 or (866) 767-3653, Fax:
(212) 202-3827, E-mail: lrosen@rosenlegal.com, Web site:
http://www.rosenlegal.com.
MOTIVE INC.: Schatz & Nobel Lodges Securities Fraud Suit in NY
--------------------------------------------------------------
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 Texas on behalf of all persons who purchased
the securities of Motive, Inc. (Nasdaq:MOTV) between July 11,
2005, and October 26, 2005 (the "Class Period").
The Complaint alleges that Motive, Inc. violated federal
securities laws by issuing improper financial statements. On
October 27, 2005, Motive announced that it was restating its
financial results for the previous two quarters. On this news,
the price of Motive stock fell from a close of $4.12 per share
on October 26, 2005, to close at $3.66 per share on October 27,
2005.
For more details, contact Wayne T. Boulton or Nancy A. Kulesa of
Schatz & Nobel, P.C., Phone: (800) 797-5499, E-mail:
sn06106@aol.com, Web site: http://www.snlaw.net.
SMITH BARNEY: Stull Stull Files Amended Securities Suit in NY
-------------------------------------------------------------
The law firm of Stull, Stull & Brody initiated an amended class
action lawsuit was filed in the United States District Court for
the Southern District of New York, against Smith Barney Fund
Management LLC ("Smith Barney") and Citigroup Global Markets,
Inc. ("Global Markets") on behalf of purchasers and holders of
Smith Barney mutual funds during the period between August 26,
2000 and August 26, 2005, inclusive (the "Class Period").
The Smith Barney mutual funds and their respective symbols are
as follows:
Smith Barney Aggressive Growth Fund (NASDAQ: SHRAX),(NASDAQ:
SAGBX),
(NASDAQ: SAGCX), (NASDAQ: SAGYX)
Smith Barney All Cap Growth and Value Fund (NASDAQ: SPAAX),
(NASDAQ: SPBBX), (NASDAQ: SPBLX)
Smith Barney Appreciation Fund (NASDAQ: SHAPX), (NASDAQ: SAPBX),
(NASDAQ: SAPCX), (NASDAQ: SAPYX)
Smith Barney Arizona Municipals Fund (NASDAQ: SLAZX), (NASDAQ:
SAZBX),
(NASDAQ: SAZLX)
Smith Barney Balanced Portfolio (NASDAQ: SBBAX0, (NASDAQ:
SCBBX), (NASDAQ: SCBCX)
Smith Barney California Municipals Fund (NASDAQ: SHRCX),
(NASDAQ: SCABX),
(NASDAQ: SCACX)
Smith Barney Classic Values Fund (NASDAQ: SCLAX), (NASDAQ:
SCLBX), (NASDAQ: SCLLX)
Smith Barney Conservative Portfolio (NASDAQ: SBCPX), (NASDAQ:
SBCBX),
(NASDAQ: SBCLX)
Smith Barney Diversified Large Cap Growth Fund (NASDAQ: CFLGX),
(NASDAQ: CLCBX), (NASDAQ: SMDLX)
Smith Barney Diversified Strategic Income Fund (NASDAQ: SDSAX),
(NASDAQ: SLDSX), (NASDAQ: SDSIX)
Smith Barney Dividend and Income Fund (NASDAQ: SUTAX), (NASDAQ:
SLSUX),
(NASDAQ: SBBLX)
Smith Barney Financial Services Fund (NASDAQ: SBFAX), (NASDAQ:
SBFBX),
(NASDAQ: SFSLX)
Smith Barney Florida Portfolio (NASDAQ: SBFLX), (NASDAQ: FLABX),
(NASDAQ: SFLLX)
Smith Barney Fundamental Value Fund (NASDAQ: SHFVX), (NASDAQ:
SFVBX),
(NASDAQ: SFBCX)
Smith Barney Georgia Portfolio (NASDAQ: SBGAX), (NASDAQ: SBRBX),
(NASDAQ: SGALX)
Smith Barney Global All Cap Growth and Value Fund (NASDAQ:
SPGAX), (NASDAQ: SPGGX), (NASDAQ: SPGLX)
Smith Barney Global Government Bond Portfolio (NASDAQ: SBGLCX),
(NASDAQ: SBGBX), (NASDAQ: SGGLX)
Smith Barney Global Portfolio (NASDAQ: CAGAX), (NASDAQ: CAGBX),
(NASDAQ: SGPLX)
Smith Barney Government Securities Fund (NASDAQ: SGVAX),
(NASDAQ: HGVSX),
(NASDAQ: SGSLX)
Smith Barney Group Spectrum Fund (NASDAQ: SGSAX), (NASDAQ:
SGSBX), (NASDAQ: SFTLX)
Smith Barney Growth Portfolio (NASDAQ: SGCRX), (NASDAQ: SGRBX),
(NASDAQ: SCGCX)
Smith Barney Hansberger Global Value Fund (NASDAQ: SGLAX),
(NASDAQ: SGLBX),
(NASDAQ: SGLCX)
Smith Barney Health Sciences Fund (NASDAQ: SBIAX), (NASDAQ:
SBHBX),
(NASDAQ: SBHLX)
Smith Barney High Growth Portfolio (NASDAQ: SCHAX), (NASDAQ:
SCHBX),
(NASDAQ: SCHCX)
Smith Barney High Income Fund (NASDAQ: SHIAX), (NASDAQ: SHIBX),
(NASDAQ: SHICX)
Smith Barney Income Portfolio (NASDAQ: SCAAX), (NASDAQ: SCIAX),
(NASDAQ: SCILX)
Smith Barney Intermediate Maturity CA Municipals Fund (NASDAQ:
ITCAX),
(NASDAQ: STDBX), (NASDAQ: SIMLX)
Smith Barney Intermediate Maturity NY Municipals Fund (NASDAQ:
IMNYX),
(NASDAQ: SNMBX), (NASDAQ: SINLX)
Smith Barney International All Cap Growth Portfolio (NASDAQ:
SBIEX),
(NASDAQ: SBIBX), (NASDAQ: SBICX)
Smith Barney International Large Cap Fund (NASDAQ: CFIPX),
(NASDAQ: SILCX),
(NASDAQ: SILLX)
Smith Barney Investment Grade Bond Fund (NASDAQ: SIGAX),
(NASDAQ: HBDIX),
(NASDAQ: SBILX)
Smith Barney Large Cap Core Fund (NASDAQ: GROAX), (NASDAQ:
GROBX), (NASDAQ: SCPLX)
Smith Barney Large Cap Growth and Value Fund (NASDAQ: SPSAX),
(NASDAQ: SPSBX), (NASDAQ: SPSLX)
Smith Barney Large Cap Value Fund (NASDAQ: SBCIX), (NASDAQ:
SBCCX),
(NASDAQ: SBGCX)
Smith Barney Large Capitalization Growth Fund (NASDAQ: SBLGX),
(NASDAQ: SBLBX), (NASDAQ: SLCCX), (NASDAQ: SBLYX)
Smith Barney Limited term Portfolio (NASDAQ: SBLTX), (NASDAQ:
STMBX),
(NASDAQ: SMLLX)
Smith Barney Managed Governments Fund (NASDAQ: SHMGX), (NASDAQ:
MGVBX),
(NASDAQ: SMGLX)
Smith Barney Managed Municipals Fund (NASDAQ: SHMMX), (NASDAQ:
SMMBX),
(NASDAQ: SMMCX)
Smith Barney Massachusetts Municipals Fund (NASDAQ: SLMMX),
(NASDAQ: SMABX), (NASDAQ: SMALX)
Smith Barney Mid Cap Core Fund (NASDAQ: SBMAX), (NASDAQ: SBMDX),
(NASDAQ: SBMLX), (NASDAQ: SMBYX)
Smith Barney Municipal High Income Fund (NASDAQ: STXAX),
(NASDAQ: SXMT),
(NASDAQ: SMHLX)
Smith Barney National Portfolio (NASDAQ: SBBNX), (NASDAQ:
SBNBX), (NASDAQ: SBNLX)
Smith Barney New Jersey Municipals Fund (NASDAQ: SHNJX),
(NASDAQ: SNJBX),
(NASDAQ: SNJLX)
Smith Barney New York Portfolio (NASDAQ: SBNYX), (NASDAQ:
SMNBX), (NASDAQ: SBYLX)
Smith Barney Oregon Municipals Fund (NASDAQ: SHORX), (NASDAQ:
SORBX),
(NASDAQ: SORLX)
Smith Barney Pennsylvania Portfolio (NASDAQ: SBPAX), (NASDAQ:
SBPBX),
(NASDAQ: SPALX)
Smith Barney S & P 500 Index Fund (NASDAQ: SBSPX)
Smith Barney SB Adjustable Rate Income Fund (NASDAQ: ARMZX),
(NASDAQ: ARMBX), (NASDAQ: ARMGX)
Smith Barney SB Capital and Income Fund (NASDAQ: SOPAX),
(NASDAQ: SOPTX),
(NASDAQ: SBPLX)
Smith Barney SB Convertible Fund (NASDAQ: SCRAX), (NASDAQ:
SCVSX), (NASDAQ: SMCLX), (NASDAQ: SCVYX)
Smith Barney SB Growth & Income Fund (NASDAQ: GRIAX), (NASDAQ:
BRIBX),
(NASDAQ: SGAIX)
Smith Barney Short Duration Municipal Income Fund (NASDAQ:
SHDAX), (NASDAQ: SHDBX), (NASDAQ: SHDLX)
Smith Barney Short-Term Investment Grade Bond Fund (NASDAQ:
SBSTX),
(NASDAQ: SHBBX), (NASDAQ: SSTLX)
Smith Barney Small Cap Core Fund (NASDAQ: SBDSX), (NASDAQ:
SBDBX), (NASDAQ: SBDLX)
Smith Barney Small Cap Growth Fund (NASDAQ: SBSGX), (NASDAQ:
SBYBX),
(NASDAQ: SBSLX)
Smith Barney Small Cap Growth Opportunities Fund (NASDAQ:
CFSGX), (NASDAQ: SMOBX), (NASDAQ: SGOLX)
Smith Barney Small Cap Value Fund (NASDAQ: SBVAX), (NASDAQ:
SBVBX),
(NASDAQ: SBVLX)
Smith Barney Social Awareness Fund (NASDAQ: SSIAX), (NASDAQ:
SESIX),
(NASDAQ: SESLX)
Smith Barney Technology Fund (NASDAQ: SBTAX), (NASDAQ: SBTBX),
(NASDAQ: SBQLX)
Smith Barney Total Return Bond Fund (NASDAQ: TRBAX), (NASDAQ:
TRBBX),
(NASDAQ: SBTLX)
Smith Barney U.S. Government Securities Fund (NASDAQ: SBCGX),
(NASDAQ: SBUBX), (NASDAQ: SBULX)
The action is pending in the United States District Court for
the Southern District of New York against defendants Smith
Barney and Global Markets. The amended complaint alleges that
during the Class Period, Smith Barney served as investment
advisor to the Smith Barney mutual funds and in this capacity
recommended that the Smith Barney mutual funds contract with an
affiliate of Smith Barney to performer limited transfer agent
services while sub-contracting with the Smith Barney mutual
funds' existing transfer agent. The existing transfer agent
would perform almost all the same services it had previously
performed, but at a steep discount, permitting Smith Barney's
affiliate to keep the discount and thus gain a high profit while
performing only limited work. The amended complaint alleges that
this transaction was made in self-interest in order to permit
Smith Barney and its affiliates to profit at the expense of the
Smith Barney mutual funds and their shareholders.
For more details, contact James Lahm of Stull, Stull & Brody, 6
East 45th Street, New York, NY 10017 Phone: 1-800-337-4983, E-
mail: SSBNY@aol.com.
*********
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Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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USA. Glenn Ruel Senorin, Aurora Fatima Antonio and Lyndsey
Resnick, Editors.
Copyright 2005. All rights reserved. ISSN 1525-2272.
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