/raid1/www/Hosts/bankrupt/CAR_Public/051109.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, November 9, 2005, Vol. 7, No. 222
Headlines
AMERICAN FAMILY: CO Judge Grants Certification to Insurance Suit
AMERICAN BAR: Class Action Litigation to be Addressed in DC Meet
APPLE COMPUTER: Britons, Mexicans File Suit V. Faulty iPod Nano
BIOGEN IDEC: CA Case Management Conference Set December 15, 2005
BIOGEN IDEC: Seeks Remand of MA AWP Lawsuit To State Court
BIOGEN IDEC: Plaintiffs Appeal MA Securities Suits Consolidation
BURLINGTON RESOURCES: Trial Commences in OK Royalties Lawsuit
CHOLESTECH CORPORATION: Final Approval Granted To IL Suit Pact
CINERGY CORPORATION: Faces Environmental Suit in Ontario Court
CINERGY MARKETING: Remains As Defendant in NYMEX Securities Suit
CONSUMER PORTFOLIO: Consumers Launch Privacy Lawsuits in N.D. IL
ENOGEX INC.: To Ask OK Court To Dismiss Antitrust Fraud Lawsuit
FLORIDA: Man Faces Price Gouging Suit For Selling Generators
GLENDALE HILTON: Housekeepers, Waiter File Overtime Suit in CA
GUIDANT CORPORATION: Defibrillators Lawsuits Consolidated in MN
HEALTH NET: Plaintiffs Allege Fraud, Misconduct in ERISA Suits
HEALTH NET: FL Court's ERISA Suit Settlement Approval Appealed
IDAHO: Twin Falls School District Faces Teachers Union Lawsuit
ISOTEC INC.: Judge Allows Neighbors to Join Suit Over 2003 Blast
KINDER MORGAN: Trial in TX Royalty Interests Suit Set June 2006
KINDER MORGAN: NM Court Yet To Rule on Suit Arbitration Motion
KINDER MORGAN: AK Court To Rule On Fraud Suit Dismissal in 2006
KINDER MORGAN: Working To Resolve Personal Injury Suits in NV
LANDAMERICA FINANCIAL: Subsidiaries Working on RESPA Suit Pact
METRO WATER: Appeals Court Allows Race Bias Lawsuit to Proceed
MICROMUSE INC.: Deal in Shareholder Derivative Suit Proposed
OHIO: Judge Dismisses Suit Challenging State's Sex Offender Law
OMRON HEALTHCARE: Recalls Instant Thermometers For Injury Risk
OVERTURE SERVICES: Final Fairness Hearing Set April 2006 in NY
PACIFIC ENTERPRISES: Seeks To Resolve CA, NV Antitrust Lawsuits
PERKINELMER INC.: Plaintiffs Dismissed Suits Filed in 2002, 2004
QUALCOMM INC.: Continues To Face WA Cellphone Injury Lawsuits
RENAL CARE: Suit V. Fresenius Merger Remanded To TN State Court
RILEY WINDOWS: IL Attorney General Launches Consumer Fraud Suit
SHAW GROUP: Asks LA Court To Dismiss Securities Fraud Lawsuit
WAL-MART STORES: Execs Knew of Illegal Workers, Affidavit Says
WARNER CHILCOTT: States Launch Antitrust Suit Over Ovcon Drug
WEST CORPORATION: Seeks Summary Judgment in Ohio Fraud Lawsuit
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
New Securities Fraud Cases
FIRST BANCORP: Charles J. Piven Files Securities Suit in S.D. NY
FIRST BANCORP: Marc S. Henzel Lodges Securities Fraud Suit in NY
MOTIVE INC.: Marc S. Henzel Lodges Securities Fraud Suit in TX
PIXAR ANIMATION: Marc Henzel Lodges Securities Fraud Suit in CA
PIXAR STUDIOS: Milberg Weiss Lodges Securities Fraud Suit in CA
*********
AMERICAN FAMILY: CO Judge Grants Certification to Insurance Suit
----------------------------------------------------------------
Boulder Country District Court Judge Morris Sandstead Jr.
granted class action status in a lawsuit against American Family
Insurance Co., The Denver Post reports. The suit alleges that
the Company failed to provide enhanced personal injury
protection coverage to its Colorado customers between 1992 and
2001 as required by state law.
Although the Company claims it notified 17,700 customers of
changes made to bring policies into compliance, the court found
that 6,000 people might not have received notification. The
named plaintiff in the case, Chad Hicks, wants the Company to
provide medical benefits without dollar or time limits and to
offer 85 percent income replacement.
AMERICAN BAR: Class Action Litigation to be Addressed in DC Meet
----------------------------------------------------------------
Leading plaintiff, defense and insurance lawyers will join
corporate counsel to examine the impact of the recently passed
"Class Action Fairness Act of 2005" at an American Bar
Association's Section of Tort Trial & Insurance Practice program
to be held on November 9-11 at Washington, D.C.
The event is entitled, "The Future of Class Action Litigation in
America," and will be held at Ritz-Carlton Hotel, 1150 22nd
Street, N.W., Washington, D.C. The programs are:
(1) An Overview of the "Class Action Reform Act of 2005"
(2) State v. Federal Jurisdiction: Multi-State Class
Actions, State Class Actions, Representative Claims and
Aggregation
(3) Notice Issues, Opt Ins & Outs, Class Management
(4) Post-Bazzle Class-Wide Arbitrations and Use of
Arbitration
(5) Class Actions Without Borders: Foreign Plaintiffs in
U.S. Courts and U.S. Defendants in Foreign Courts
(6) Recent Developments from the Judiciary/Case Law
(7) Settlements, Class Actions, Fees and Ethics
(8) Preclusion, Due Process and Adequacy of Representation
(9) Bankruptcy and Class Actions; Settlement Funds and
Related Class Actions and MDLs - Hot Topics in Class
Actions
A full brochure for the meeting, including a list of speakers,
can be found at http://www.abanet.org/tips.
For more details, contact Deborah Weixl, ABA Division for Media
Relations and Communication Services, Phone: 312/988-6126, E-
mail: weixld@staff.abanet.org, Web site: http://www.abanews.org.
APPLE COMPUTER: Britons, Mexicans File Suit V. Faulty iPod Nano
---------------------------------------------------------------
Consumers from the United Kingdom and Mexico initiated a class
action lawsuit against Apple Computer, Inc. (Nasdaq: AAPL) in
the United States District Court for the Northern District of
California, claiming the new iPod Nano is defectively designed
allowing the screen to quickly become scratched with normal use.
According to the complaint the world's largest manufacturer of
portable music players knew of the iPod Nano's design flaw but
chose to ignore them in an effort to speed the product to
market. The defect is a result of a much thinner layer of resin
used in designing the Nano that does not provide adequate
protection from scratching.
The suit follows a similar class action case filed on October
19, 2005 against Apple Computers on behalf of iPod Nano users in
the United States. Steve Berman, lead attorney on both cases,
attributes the second suit to the large number of international
requests to be included in the class action. "Apple's iPod Nano
has sold in record numbers around the world, just as it did in
the U.S.," said Mr. Berman, "It seems that wherever the Nano is
sold, problems with the defective design soon follow."
According to Mr. Berman, "The far-reaching response also reveals
that this is not just a small problem or a bad batch of Nano's,
but a defect in the overall design that should have been
rectified prior to the release."
Named plaintiff, Ben Jennings of the United Kingdom, purchased a
Nano in September and was extremely cautious with the screen.
Despite his efforts to protect the Nano, within a week the
screen was so marred with scratches it became hard to read. "If
I had known the truth about the problem, I never would have
purchased a Nano," said Mr. Jennings.
Residents outside the U.S. are able to ask the court for help
since Apple is headquartered in the United States, Mr. Berman
said. The suit seeks to represent and recover money lost for
all those who live outside of the United States who purchased an
iPod Nano.
For more details, contact Steve Berman of Hagens Berman Sobol
Shapiro, 700 South Flower St., Suite 2940, Los Angeles, CA
90017, Phone: 213-330-7150, Fax: 213-330-7152, Web site:
http://www.hbsslaw.com;and Mark Firmani of Firmani +
Associates, Phone: 206-443-9357, E-mail: mark@firmani.com.
BIOGEN IDEC: CA Case Management Conference Set December 15, 2005
----------------------------------------------------------------
Case management conference for the class action filed against
Biogen Idec, Inc., styled "Wayne v. Biogen Idec Inc. and Elan
Pharmaceutical Management Corp." is set for December 15,2005 in
the United States District Court for the Northern District of
California.
The suit was initially filed in June 2005. On August 15, 2005,
the plaintiff filed an amended complaint. The amended complaint
purports to assert claims for strict product liability, medical
monitoring and concert of action arising out of the manufacture,
marketing, distribution and sale of TYSABRI. The action is
purportedly brought on behalf of all persons in the U.S. who
have had infusions of TYSABRI and who have not been diagnosed
with any medical conditions resulting from TYSABRI use. The
plaintiff alleges that defendants, acting individually and in
concert, failed to warn the public about purportedly known risks
related to TYSABRI use. The plaintiff seeks to recover the cost
of periodic medical examinations, restitution, interest,
compensatory and punitive damages, and attorneys' fees.
Defendants currently have until November 15, 2005 to respond to
the amended complaint.
The suit is styled "Wayne v. Biogen Idec Inc. et al., case no.
3:05-cv-02497-PJH," filed in the United States District Court
for the Northern District of California, under Judge Phyllis J.
Hamilton. Representing the Company is Barbara Wrubel, 4 Times
Square, New York, NY 10036, Phone: 212-735-3000. Representing
the plaintiffs is Cynthia B. Chapman of Caddell & Chapman, 1331
Lamar, Suite 1070, Houston, TX 77010, Phone: 713.751.0400, E-
mail: cbc@caddellchapman.com.
BIOGEN IDEC: Seeks Remand of MA AWP Lawsuit To State Court
----------------------------------------------------------
The County of Erie, New York asked the United States District
Court for the District of Massachusetts to remand to
Massachusetts state court the consolidated litigation filed
against Biogen Idec MA, Inc. (formerly Biogen, Inc.), several
other major pharmaceutical and biotechnology companies, and in
certain cases, Biogen Idec Inc., related to average wholesale
pricing fraud.
Several suits were initially filed by the City of New York and
the following Counties of the State of New York:
(1) County of Albany,
(2) County of Allegany,
(3) County of Broome,
(4) County of Cattaraugus,
(5) County of Cayuga,
(6) County of Chautauqua,
(7) County of Chenango,
(8) County of Erie,
(9) County of Fulton,
(10) County of Genesee,
(11) County of Greene,
(12) County of Herkimer,
(13) County of Jefferson,
(14) County of Madison,
(15) County of Monroe,
(16) County of Nassau,
(17) County of Niagara,
(18) County of Oneida,
(19) County of Onondaga,
(20) County of Putnam,
(21) County of Rensselaer,
(22) County of Rockland,
(23) County of St. Lawrence,
(24) County of Saratoga,
(25) County of Steuben,
(26) County of Suffolk,
(27) County of Tompkins,
(28) County of Warren,
(29) County of Washington,
(30) County of Wayne,
(31) County of Westchester, and
(32) County of Yates
All of the cases, except for the County of Erie and County of
Nassau cases, are the subject of a Consolidated Complaint, which
was filed on June 15, 2005 in U.S. District Court for the
District of Massachusetts in MultiDistrict Litigation No. 1456.
The County of Nassau, which originally filed its complaint on
November 24, 2004, filed an amended complaint on March 24, 2005
and that case is also pending in the U.S. District Court for the
District of Massachusetts. The County of Erie originally filed
its complaint in Supreme Court of the State of New York on March
8, 2005. On April 15, 2005, the Company and the other named
defendants removed the case to the U.S. District Court for the
Western District of New York. That case has been stayed pending
a decision by the Judicial Panel on MultiDistrict Litigation
(JPMDL) regarding transfer to the U.S. District Court for the
District of Massachusetts. On May 12, 2005, the JPMDL issued a
Conditional Transfer Order, transferring the case to the U.S.
District Court for the District of Massachusetts. The County of
Erie filed a motion to vacate the Conditional Transfer Order on
June 7, 2005. The Company, together with other named defendants,
filed an opposition to the motion to vacate shortly thereafter.
The motion to vacate is currently pending before the JPMDL. On
August 11, 2005, the Joint Panel on Multi-District Litigation
issued a Transfer Order, transferring the case to the U.S.
District Court for the District of Massachusetts. The County of
Erie has filed a motion to remand the case back to the Supreme
Court of the State of New York, which is currently pending
before the District Court in the District of Massachusetts.
All of the complaints allege that the defendants fraudulently
reported the Average Wholesale Price for certain drugs for which
Medicaid provides reimbursement, also referred to as Covered
Drugs; marketed and promoted the sale of Covered Drugs to
providers based on the providers' ability to collect inflated
payments from the government and Medicaid beneficiaries that
exceeded payments possible for competing drugs; provided
financing incentives to providers to over-prescribe Covered
Drugs or to prescribe Covered Drugs in place of competing drugs;
and overcharged Medicaid for illegally inflated Covered Drugs
reimbursements. The complaints allege violations of New York
state law and advance common law claims for unfair trade
practices, fraud, and unjust enrichment. In addition, all of the
complaints, with the exception of the County of Erie complaint,
allege that the defendants failed to accurately report the "best
price" on the Covered Drugs to the Secretary of Health and Human
Services pursuant to rebate agreements entered into with the
Secretary of Health and Human Services, and excluded from their
reporting certain drugs offered at discounts and other rebates
that would have reduced the "best price."
On April 8, 2005, the court dismissed similar claims, which were
brought by Suffolk County against the Company and eighteen other
defendants in a complaint filed on August 1, 2003. The court
held that Suffolk County's documentation was insufficient to
plead allegations of fraud. Neither the Company nor the other
defendants have answered or responded to the complaints that are
currently pending in the U.S. District Court for the District of
Massachusetts, as all of the plaintiffs have agreed to stay the
time to respond until a case management order and briefing
schedule have been approved by the Court.
The consolidated suit is styled "Citizens for Consume, et al v.
Abbott Laboratories,, et al., case no. 1:01-cv-12257-PBS," filed
in the United States District Court for the District of
Massachusetts, under Judge Patti B. Saris. Representing the
plaintiffs are David J. Bershad and J. Douglas Richards of
Milberg Weiss Bershad Hynes & Lerach LLP, One Pennsylvania
Plaza, 49th Floor, New York, NY 10119, Phone: 212-594-5300; and
Nicole Y. Brumsted of Lieff Cabraser Heimann & Bernstein, LLP,
175 Federal Street, 7th Floor, Boston, MA 02110, Phone:
617-720-5000. Representing the Company are James C. Burling and
William F. Lee of Wilmer Cutler Pickering Hale and Dorr LLP, 60
State Street, Boston, MA 02109, Phone: 617-526-6416, Fax:
617-526-5000, Email: james.burling@wilmerhale.com or
william.lee@wilmerhale.com.
BIOGEN IDEC: Plaintiffs Appeal MA Securities Suits Consolidation
----------------------------------------------------------------
Several plaintiffs appealed the United States District Court for
the District of Massachusetts' order to consolidate the
securities class actions filed against Biogen Idec, Inc.,
William H. Rastetter, its Executive Chairman, and James C.
Mullen, its Chief Executive Officer.
A lawsuit styled "Brown v. Biogen Idec Inc., et al." was filed
in March 2005, alleging violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. The action is purportedly brought on
behalf of all purchasers of the Company's publicly-traded
securities between February 18, 2004 and February 25, 2005. The
plaintiff alleges that the defendants made materially false and
misleading statements regarding potentially serious side effects
of TYSABRI in order to gain accelerated approval from the Food
and Drug Administration (FDA) for the product's distribution and
sale. The plaintiff alleges that these materially false and
misleading statements harmed the purported class by artificially
inflating the Company's stock price during the purported class
period and that company insiders benefited personally from the
inflated price by selling Company stock. The plaintiff seeks
unspecified damages, as well as interest, costs and attorneys'
fees.
Substantially similar actions, captioned "Grill v. Biogen Idec
Inc., et al." and "Lobel v. Biogen Idec Inc., et al.," were
filed on March 10, 2005 and April 21, 2005 in the same court by
other purported class representatives. Those actions have been
assigned to District Judge Reginald C. Lindsay and Magistrate
Judge Marianne C. Bowler. On July 26, 2005, the three cases
were consolidated and by Margin Order dated September 23, 2005,
Magistrate Judge Bowler appointed lead plaintiffs and approved
their selection of co-lead counsel. An objection to the
September 23, 2005 order has been filed and briefed by the
affected plaintiffs and their counsel, but remains pending with
the Court. No date has been set for the filing of an amended,
consolidated complaint.
The suit is styled "Brown v. Biogen Idec Inc. et al., case no.
1:05-cv-10400-RCL," filed in the United States District Court
for the District of Massachusetts under Judge Reginald C.
Lindsay. Representing the Company is James R. Carroll of
Skadden, Arps, Slate, Meagher & Flom, One Beacon Street, 31st
Floor, Boston, MA 02108, Phone: 617-573-4800, Fax: 617-573-4822,
E-mail: jcarroll@skadden.com. Representing the plaintiffs are
Shannon L. Hopkins and Mario Alba Jr. of Milberg Weiss Bershad &
Schulman LLP, One Pennsylvania Plaza, 49th Floor, New York, NY
10119, Phone: 646-733-5768, Fax: 212-273-4445, E-mail:
shopkins@milbergweiss.com; and David Pastor of Gilman and
Pastor, LLP, 60 State Street, 37th Floor, Boston, MA 02109,
Phone: 617-742-9700, Fax: 617-742-9701, E-mail:
dpastor@gilmanpastor.com.
BURLINGTON RESOURCES: Trial Commences in OK Royalties Lawsuit
-------------------------------------------------------------
Trial in the consolidated class action filed against Burlington
Resources, Inc. and its former affiliate El Paso Natural Gas
Company began on October 10,2005 in the District Court of
Washita County, State of Oklahoma.
Two class action lawsuits were initially filed, styled "Bank of
America, et al. v. El Paso Natural Gas Company, et al., Case No.
CJ-97-68," and "Deane W. Moore, et al. v. Burlington Northern,
Inc., et. al., Case No. CJ-97-132." The suits were subsequently
consolidated by the court.
The plaintiffs contend that defendants underpaid royalties from
1982 to the present on natural gas produced from specified wells
in Oklahoma through the use of below-market prices, improper
deductions and transactions with affiliated companies and in
other instances failed to pay or delayed in the payment of
royalties on certain gas sold from these wells. The plaintiffs
seek an accounting and damages for alleged royalty
underpayments, plus interest from the time such amounts were
allegedly due. Plaintiffs additionally seek the recovery
of punitive damages.
The plaintiffs have not specified in their pleadings the amount
of damages they seek from the Company. However, through pre-
trial discovery, plaintiffs have provided defendants with
alternative theories of recovery claiming monetary damages of up
to $57 million in principal, plus $417 million in interest, and
unspecified punitive damages and attorney's fees. The court has
certified the plaintiff classes of royalty and overriding
royalty interest owners, and the parties proceeded with pre-
trial discovery.
CHOLESTECH CORPORATION: Final Approval Granted To IL Suit Pact
--------------------------------------------------------------
Final accounting for the settlement of the class action filed
against Cholestech Corporation, styled "Northshore Dermatology
Center, S.C. v. Cholestech Corporation, and Does 1-10, Case No.
04CH05342," is due to start this month at the Circuit Court of
Cook County, Illinois.
The Company was served with the complaint and summons on March
31, 2004. The complaint alleged that the Company violated the
federal Telephone Consumer Protection Act and various Illinois
state laws by sending unsolicited advertisements via facsimile
transmission to residents of Illinois. The complaint sought
class certification and statutory damages of $500 to $1,500 each
on behalf of a class that would include all residents of
Illinois who received an unsolicited facsimile advertisement
from the Company.
On January 18, 2005 the parties entered into an agreement to
settle all claims on behalf of a nationwide class. Under the
terms of the settlement, the Company paid $625,000 in cash to
settle all claims, $600,000 of which was funded by insurance.
The Company also agreed to pay up to $50,000 for providing
notice to the class and for processing claims. The Court gave
final approval to the settlement on July 11, 2005.
The suit is styled "Northshore Dermatology Center, S.C. v.
Cholestech Corporation, and Does 1-10, Case No. 04CH05342,"
filed in the Circuit Court of Cook County, Illinois, under Judge
John K. Madden. Representing the plaintiffs is Edelman & Combs,
120 S. Lasalle 18 fl, Chicago, IL 60603, Phone: (312) 739-4200.
Representing the Company is BURKE WARREN & MACKAY, 330 N Wabash
22nd Fl., Chicago IL 60611, Phone: (312) 840-7000.
CINERGY CORPORATION: Faces Environmental Suit in Ontario Court
--------------------------------------------------------------
Cinergy Corporation and approximately 20 other utility and power
generation companies face a class action filed in Superior Court
in Ontario, Canada, alleging various claims relating to
environmental emissions from coal-fired power generation
facilities in the United States and Canada. The suit seeks
damages of approximately $50 billion, with continuing damages in
the amount of approximately $4 billion annually. The suit also
claims entitlement to punitive and exemplary damages in the
amount of $1 billion.
The Company has not yet been served in this lawsuit, however, if
served, it intends to defend this lawsuit vigorously in court,
it stated in a regulatory filing.
CINERGY MARKETING: Remains As Defendant in NYMEX Securities Suit
----------------------------------------------------------------
Cinergy Marketing & Trading, LP remains as a defendant in the
securities class action filed in the United States District
Court for the Southern District of New York, after the court
granted Cinergy Corporation's motion to be dismissed from the
suit.
The suit, which also names 37 other companies as defendants, was
filed on behalf of all persons who purchased and/or sold New
York Mercantile Exchange natural gas futures and options
contracts between January 1, 2000, and December 31, 2002. The
complaint alleges that improper price reporting caused damages
to the class. The suit alleges that the defendants have engaged
in unlawful manipulation of the prices of natural gas futures
and options contracts traded on the New York Mercantile Exchange
(NYMEX) during the class period.
Two similar lawsuits have subsequently been filed, and these
three lawsuits have been consolidated for pretrial purposes.
The plaintiffs filed a consolidated class action complaint in
January 2004. Cinergy Corporation's motion to dismiss was
granted in September 2004 leaving only Marketing & Trading in
the lawsuit.
The suit is styled "Cornerstone Propane v. Reliant Energy, et
al., case no. 1:03-cv-06186-VM-AJP," filed in the United States
District Court for the Southern District of New York, under
Judge Victor Marrero. Representing the Company is Steven M.
Bierman of Sidley, Austin, Brown & Wood, 787 Seventh Avenue, New
York, NY 10019, Phone: (212) 839-5300. Representing the
plaintiffs are:
(1) Louis F. Burke, Louis F. Burke, P.C., 460 Park Avenue,
21st Floor, New York, NY 10022, Phone: (212) 682-1700,
Fax: (212) 808-4280
(2) Christopher J. Gray, Law Office of Christopher J. Gray,
P.C, 460 Park Avenue 21st Floor, New York, NY 10022,
Phone: (212) 838-3221, Fax: (212) 508-3695, E-mail:
gray@cjgraylaw.com
(3) Gary S. Jacobson and Christopher Lovell of Lovell &
Stewart, L.L.P., 500 Fifth Avenue, New York, NY 10110,
Phone: (212) 608-1900
CONSUMER PORTFOLIO: Consumers Launch Privacy Lawsuits in N.D. IL
----------------------------------------------------------------
Consumer Portfolio Services faces two class actions filed in the
United States District Court for the Northern District of
Illinois, alleging that the Company improperly accessed consumer
credit information.
In a filing with the Securities and Exchange Commission, the
Company stated that it believes that it has one or more defenses
to each of the claims made in these lawsuits, but the cases have
just commenced, and no discovery has yet been conducted.
Accordingly, there can be no assurance as to their outcomes.
The suits are styled "Cavin v. Bill Jacobs Joliet, L.L.C. et
al., case no. 1:05-cv-05025," and "Smith v. Rockenbach Chevrolet
Sales Inc et al, case no. 1:05-cv-05454," filed in the United
States District Court for the Northern District of Illinois,
under Judge Charles R. Norgle, Sr. and Judge Ruben Castillo,
respectively. Representing the Company is Eugene Joseph Kelley,
Jr. of Arnstein & Lehr, 120 South Riverside Plaza, Suite 1200
Chicago, IL 60606-3913, Phone: (312) 876-7100, E-mail:
ejkelley@arnstein.com. Representing the plaintiffs is Daniel A.
Edelman, Edelman, Combs, Latturner & Goodwin, LLC, 120 South
LaSalle Street, 18th Floor, Chicago, IL 60603, Phone:
(312) 739-4200, E-mail: courtecl@aol.com.
ENOGEX INC.: To Ask OK Court To Dismiss Antitrust Fraud Lawsuit
---------------------------------------------------------------
Enogex, Inc. intends to ask the District Court of Comanche
County, Oklahoma, to dismiss a class action filed against it
alleging it exercises a monopoly power with respect to its
gathering facilities within the state of Oklahoma.
G.M. Oil Properties, Inc. filed the suit on March 8, 2005,
alleging that due to the alleged monopoly power, the Company has
caused damage to the plaintiff and other small gas producers and
marketers. The Company intends to vigorously defend this
action, the Company said in a regulatory filing.
FLORIDA: Man Faces Price Gouging Suit For Selling Generators
------------------------------------------------------------
Attorney General Charlie Crist and Miami-Dade State Attorney
Katherine Fernandez Rundle sued a Miami-Dade County man who
allegedly violated Florida's price gouging law by selling
generators for grossly inflated prices while South Floridians
were without power in the wake of Hurricane Wilma.
The lawsuit alleges that David Medina sold generators off the
back of a truck on a south Miami-Dade street corner for prices
unconscionably higher than what the generators usually cost.
Selling essential commodities for unconscionable prices during a
hurricane emergency is a violation of Florida statutes.
"Hurricane Wilma caused death and destruction across South
Florida, the results of which are still all too evident," said
Mr. Crist. "People are trying desperately to return their lives
to normal. They have been victimized once, and we are determined
to ensure they are not victimized a second time by profiteers."
"Price gouging is one of the most callous acts undertaken while
a community is suffering. In the wake of the tragedies that
hurricanes always bring, no one should have the opportunity to
so coldly exploit their neighbors. This court action is meant to
take the profit out of price gouging while restoring civility to
our damaged community," said Ms. Rundle.
As Wilma struck Florida, Mr. Medina, of Miami Beach, traveled to
North Carolina and bought 35 generators at a Costco store - 11
larger models costing $529.99 each and 24 smaller ones costing
$279.99 each. He returned to Florida and started selling the
generators at the corner of Coral Way and S.W. 87th Avenue,
advertising with a homemade sign placed on the truck. Mr. Medina
did not have an occupational license to sell the generators.
Mr. Medina allegedly sold the larger generators for $900 each, a
70 percent markup, and the smaller ones for $600, a 114 percent
markup. Most of the generators had been sold before
investigators with the Attorney General's Office spotted the
operation.
The complaint was filed under Florida's price gouging statute
and the Florida Deceptive and Unfair Trade Practices Act, which
are contained within Chapter 501 of the Florida Statutes.
Violations of the price gouging statute are subject to civil
penalties of $1,000 per violation up to a total of $25,000 for
multiple violations committed in a single 24-hour period.
Florida's Deceptive and Unfair Trade Practices Act provides for
civil penalties of $10,000 per violation or $15,000 for
violations that victimize a senior citizen or handicapped
person. To date, the Attorney General's Office has recovered
more than $939,000 in restitution for Florida consumers from
price gouging settlements and other resolutions. Other
investigations and settlement negotiations are ongoing. For more
details, visit http://myfloridalegal.com/webfiles.nsf/WF/KGRG-
6HTT5X/$file/Medina+Complaint.pdf.
GLENDALE HILTON: Housekeepers, Waiter File Overtime Suit in CA
--------------------------------------------------------------
Alleging that they were expected to come in early or work
through breaks for no pay, three housekeepers and a waiter
launched a proposed class action lawsuit against the Glendale
Hilton, The LA Daily News reports.
Waiter Juan Mendoza, 36, who is one of the plaintiffs, told the
LA Daily News, "We are like really understaffed and we get the
job done, but we're like killing ourselves."
The suit against the four-diamond hotel alleges housekeepers are
required to come in 20 to 60 minutes early and set up their
carts before making their daily rounds. In addition, it also
alleges that during busy times employees are expected to work
through their meal and rest breaks, even though they are not
paid for that time. According to the suit, restaurant servers
and housekeepers at the hotel make $6.75 to $11.75 an hour. Some
workers earn tips on top of that. If a judge certifies the case
as a class action, it could represent a class of more than 100
workers, plus past and future employees in the same position.
Ira Gottlieb, an attorney for the workers, told The LA Daily
News, "This is an industry where people are exploited and where
they are rushed and a lot of work is demanded of them. And so in
order to complete what is needed, they miss breaks and there may
be other shortcuts that cause violations by the employers."
Additionally, Mr. Mendoza told The LA Daily News that the
company started keeping better track of employees' hours and
breaks after November 2004, so instances of employees working
through their breaks has decreased compared to the previous
dozen years he worked at the Hilton. However, according to him,
employees occasionally still must work through their breaks.
The suit was filed in Los Angeles Superior Court in downtown Los
Angeles. Its plaintiffs are seeking unpaid wages and overtime; a
court injunction ordering the Hilton to stop the alleged
practice of expecting employees to work off the clock; and
attorney fees.
GUIDANT CORPORATION: Defibrillators Lawsuits Consolidated in MN
---------------------------------------------------------------
After patients filed numerous lawsuits across the country, the
Judicial Panel on Multidistrict Litigation (JPMDL) decided that
all Guidant lawsuits would be coordinated in Minneapolis,
Minnesota.
The JPMDL issued an order consolidating all lawsuits against
Guidant Corporation (NYSE:GDT) arising from its recalled heart
defibrillators. All federal cases have now been transferred to
the Federal Court in Minnesota and the Honorable Donovan Frank
has been assigned to handle these cases. Minnesota was chosen as
the location for the Guidant MDL since many of the Guidant
facilities involved in the development and manufacturing of the
heart devices are located here. The case raises unique and
important medical and social considerations.
Guidant has faced intense scrutiny in recent months since it
announced the recall of nearly 50,000 heart defibrillators that
could short circuit without warning. As a result of the short
circuit, the device can fail to deliver the necessary shock to
the heart. Guidant is reported to have discovered the design
flaws in early 2002 after receiving two reports of failures.
However, instead of immediately recalling the devices, Guidant
chose not to notify patients -- or their doctors -- of the
potential problem. After the reports surfaced, many lawsuits
were filed against Guidant. Approximately ten cases have been
filed in Minnesota since that time. In the litigation, Guidant
has been ordered to disclose confidential information and to
provide witnesses for depositions. In addition to the patient
lawsuits, the company reported today that the SEC is doing a
formal inquiry into Guidant's product disclosures and the
trading of its shares. Guidant has also filed a lawsuit of their
own, seeking to compel Johnson & Johnson to conclude a merger
agreement previously entered into by both of those two parties.
According to attorney Bucky Zimmerman, senior partner of
Zimmerman Reed, "One of the fundamental purposes of this
litigation is to find out why these devices failed so that
doctors can give their patients good advice on whether to have
them replaced. The litigation needs to move quickly so patients'
needs could be addressed. Despite its promises, Guidant has not
been forthcoming with the information necessary for the best
treatment of the people who matter -- the patients." Zimmerman
Reed is a Minneapolis-based class action law firm and represents
four of the ten patients who filed lawsuits pending in
Minnesota.
The Federal Court in Minnesota has been home to several other
significant pharmaceutical and medical devices lawsuits,
including Bayer's cholesterol drug Baycol, and St. Jude
Medical's Silzone heart valves.
For more details, contact Bucky Zimmerman of Zimmerman Reed,
Phone: (800) 755-0098, ext. 202, Web site:
http://www.zimmreed.com.
HEALTH NET: Plaintiffs Allege Fraud, Misconduct in ERISA Suits
--------------------------------------------------------------
Plaintiffs charged Health Net, Inc. with alleged misconduct,
discovery abuses and fraud in relation to the class actions
filed against the Company in the United States District Court
for the District of New Jersey. The two suits are styled "McCoy
v. Health Net, Inc. et al.," and "Wachtel v. Guardian Life
Insurance Co."
These two lawsuits are styled as class actions and were filed on
behalf of a class of subscribers in a number of the Company's
large and small employer group plans in the Northeast. The
Wachtel complaint was filed on July 30, 2001 and the McCoy
complaint was filed on April 23, 2003. These two cases have
been consolidated for purposes of trial. Plaintiffs allege that
Health Net, Inc., Health Net of the Northeast, Inc. and Health
Net of New Jersey, Inc. violated the Employee Retirement Income
Security Act (ERISA) in connection with various practices
related to the reimbursement of claims for services provided by
out-of-network providers. Plaintiffs seek relief in the form of
payment of benefits, disgorgement, injunctive and other
equitable relief, and attorneys' fees.
During 2001 and 2002, the parties filed and argued various
motions and engaged in limited discovery. On April 23, 2003,
plaintiffs filed a motion for class certification seeking to
certify a nationwide class of Health Net subscribers. The
Company opposed that motion and the Court took it under
submission. On June 12, 2003, the Company filed a motion to
dismiss the case, which was ultimately denied.
On August 8, 2003, plaintiffs filed a First Amended Complaint,
adding the Company as a defendant and expanding the alleged
violations. On December 22, 2003, plaintiffs filed a motion for
summary judgment on the issue of whether the Company utilized an
outdated database for calculating out-of-network reimbursements,
which we opposed. That motion, and various other motions seeking
injunctive relief and to narrow the issues in this case, are
still pending.
On August 5, 2004, the District Court granted plaintiffs' motion
for class certification and issued an Order certifying a
nationwide class of Health Net subscribers who received medical
services or supplies from an out-of-network provider and to whom
Defendants paid less than the providers' actual charge during
the period from 1997 to 2004. On August 23, 2004, the Company
requested permission from the Court of Appeals for the Third
Circuit to appeal the District Court's class certification Order
pursuant to Rule 23(f) of the Federal Rules of Civil Procedure.
On November 14, 2004, the Court of Appeals for the Third Circuit
granted the Company's motion to appeal. On March 4, 2005, the
Third Circuit issued a briefing and scheduling order for the
Company's appeal. Briefing on the appeal was completed on June
15, 2005. Although oral argument has not yet been scheduled, the
Third Circuit recently inquired as to counsels' availability to
present oral argument in October 2005.
On December 13, 2004, Plaintiffs filed a motion to further amend
their complaint to add additional class representatives. On
January 12, 2005, the District Court denied the plaintiffs'
motion because it lacked jurisdiction as a result of the
Company's pending appeal of its class certification order.
Thereafter, the District Court certified to the Third Circuit
that, if it were vested with jurisdiction, it would grant the
motion to amend the complaint to add the additional class
representatives, and would be inclined to amend its prior class
certification order. Plaintiffs and defendants have submitted
letter briefs to the Third Circuit concerning the effect, if
any, of the District Court's certification; the Third Circuit
has not yet ruled on this issue.
On January 13, 2005, counsel for the plaintiffs in the
McCoy/Wachtel actions filed a separate class action against
Health Net, Inc., Health Net of the Northeast, Inc., Health Net
of New York, Inc., Health Net Life Insurance Co., and Health Net
of California, Inc. captioned "Sharman v. Health Net, Inc., 05-
CV-00301 (FSH)(PS)" (United States District Court for the
District of New Jersey) on behalf of the same parties who would
have been added to the McCoy/Wachtel action as additional class
representatives had the District Court granted the plaintiffs'
motion for leave to amend their complaint in that action. This
new action contains similar allegations to those made by the
plaintiffs in the McCoy/Wachtel action.
Discovery has concluded and a final pre-trial order was
submitted to the District Court on June 28, 2005. Both sides
have moved for summary judgment, and briefing on those motions
has been completed. In their summary judgment briefing,
plaintiffs also sought appointment of a monitor to oversee
certain of our claims payment practices which plaintiffs allege
are wrongful. The Company opposed the appointment of a monitor.
Notwithstanding its pending Third Circuit appeal of the District
Court's class certification order, a trial date was set for
September 19, 2005. On July 29, 2005, the Company filed a
motion in the District Court to stay the District Court action
and the trial in light of the pending Third Circuit appeal. On
August 4, 2005, the District Court denied the motion to stay and
instead adjourned the September 19 trial date and ordered that
the parties be prepared to go to trial on seven days' notice as
of September 19, 2005. The Company immediately filed a request
for a stay with the Third Circuit seeking an order directing the
District Court to refrain from holding any trial or entering any
judgment or order that would have the effect of resolving any
claims or issues affecting the disputed class until the Third
Circuit rules on the class certification order. Plaintiffs
cross-moved for dismissal of the class certification appeal.
On September 27, 2005, the Third Circuit granted the Company's
motion for a stay and denied plaintiffs' cross-motion.
Plaintiffs have not specified the amount of damages being sought
in this litigation and, although these proceedings are subject
to many uncertainties, based on the proceedings to date, the
Company believes the amount of damages ultimately asserted by
plaintiffs could be material.
On August 9, 2005, Plaintiffs filed a motion with the District
Court seeking sanctions against the Company for a variety of
alleged misconduct, discovery abuses and fraud on the District
Court. The sanctions sought by plaintiffs and being considered
by the Court include, among others, entry of a default judgment,
monetary sanctions, and either the appointment of a monitor to
oversee the Company's claims payment practices and our dealings
with state regulators or the appointment of an independent
fiduciary to replace the company as a fiduciary with respect to
our claims adjudications for members. On September 12, 2005,
the Company responded to plaintiffs' motion denying that any
sanctionable misconduct, discovery abuses or fraud had occurred.
On October 17 and 18, 2005, the District Court held two days of
hearings on plaintiffs' motion. Three additional days of
hearings are scheduled for November 15-17, 2005.
The suits are styled "WACHTEL, et al v. GUARDIAN LIFE INSURA, et
al., case no. 2:01-cv-04183-FSH-PS," and "MCCOY v. HEALTH NET,
INC., et al., case no. 2:03-cv-01801-FSH-PS," filed in the
United States District Court for the District of New Jersey,
under Faith S. Hochberg. Representing the defendants are Herve
Gouraige of EPSTEIN BECKER & GREEN, P.C., Two Gateway Center,
12th Floor, Newark, NJ 07102-5003, Phone: 973 642-1900, E-mail:
hgouraige@ebglaw.com; and Heather V. Taylor, MCCARTER & ENGLISH,
Four Gateway Center, 100 Mulberry Street, Newark NJ 07102,
Phone: 973-639-5905, E-mail: htaylor@mccarter.com. Representing
the plaintiffs is Barry M. Epstein of SILLS CUMMIS EPSTEIN &
GROSS PC, One Riverfront Plaza, Newark, NJ 07102-5400, Phone:
(973) 643-7000, E-mail: bepstein@sillscummis.com.
HEALTH NET: FL Court's ERISA Suit Settlement Approval Appealed
--------------------------------------------------------------
Two plaintiffs appealed the United States District Court for the
Southern District of Florida's approval of the settlement
proposed by Health Net, Inc. for "Shane v. Humana," the lead
physician provider track class action in the "In re Managed Care
Litigation, MDL 1334."
Various class action lawsuits against managed care companies,
including the Company, were transferred by the Judicial Panel on
Multidistrict Litigation (JPMDL) to the United States District
Court for the Southern District of Florida for coordinated or
consolidated pretrial proceedings in "In re Managed Care
Litigation, MDL 1334." This proceeding was divided into two
tracks, the subscriber track, comprising actions brought on
behalf of health plan members, and the provider track,
comprising actions brought on behalf of health care providers.
On September 19, 2003, the Court dismissed the final subscriber
track action involving the Company, styled "The State of
Connecticut v. Physicians Health Services of Connecticut, Inc."
(filed in the District of Connecticut on September 7, 2000), on
grounds that the State of Connecticut lacked standing to bring
the Employee Retirement Income Security Act (ERISA) claims
asserted in the complaint. That same day, the Court ordered that
the subscriber track be closed "in light of the dismissal of all
cases in the Subscriber Track." The State of Connecticut
appealed the dismissal order to the Eleventh Circuit Court of
Appeals and on September 10, 2004, the Eleventh Circuit affirmed
the District Court's dismissal. On February 22, 2005, the
Supreme Court of the United States denied plaintiffs' Petition
for Writ of Certiorari on the Eleventh Circuit's decision to
uphold the dismissal.
The provider track includes the following actions involving the
Company:
(1) Shane v. Humana, Inc., et al. (including Health Net,
Inc.) (filed in the Southern District of Florida on
August 17, 2000 as an amendment to a suit filed in the
Western District of Kentucky),
(2) California Medical Association v. Blue Cross of
California, Inc., PacifiCare Health Systems, Inc.,
PacifiCare Operations, Inc. and Foundation Health
Systems, Inc. (filed in the Northern District of
California in May 2000),
(3) Klay v. Prudential Ins. Co. of America, et al.
(including Foundation Health Systems, Inc.) (filed in
the Southern District of Florida on February 22, 2001
as an amendment to a case filed in the Northern
District of California),
(4) Connecticut State Medical Society v. Physicians Health
Services of Connecticut, Inc. (filed in Connecticut
state court on February 14, 2001),
(5) Lynch v. Physicians Health Services of Connecticut,
Inc. (filed in Connecticut state court on February 14,
2001),
(6) Sutter v. Health Net of the Northeast, Inc. (filed in
New Jersey state court on April 26, 2002),
(7) Medical Society of New Jersey v. Health Net, Inc., et
al., (filed in New Jersey state court on May 8, 2002),
(8) Knecht v. Cigna, et al. (including Health Net, Inc.)
(filed in the District of Oregon in May 2003),
(9) Solomon v. Cigna, et. al. (including Health Net, Inc.)
(filed in the Southern District of Florida on October
17, 2003),
(10) Ashton v. Health Net, Inc., et al. (filed in the
Southern District of Florida on January 20, 2004), and
(11) Freiberg v. UnitedHealthcare, Inc., et al. (including
Health Net, Inc.) (filed in the Southern District of
Florida on February 24, 2004)
These actions allege that the defendants, including the Company,
systematically underpaid providers for medical services to
members, have delayed payments to providers, imposed unfair
contracting terms on providers, and negotiated capitation
payments inadequate to cover the costs of the health care
services provided and assert claims under the Racketeer
Influenced and Corrupt Organizations Act (RICO), ERISA, and
several state common law doctrines and statutes. "Shane," the
lead physician provider track action, asserts claims on behalf
of physicians and seeks certification of a nationwide class.
The "Knecht," "Solomon," "Ashton" and "Freiberg" cases all are
brought on behalf of health care providers other than physicians
and seek certification of a nationwide class of similarly
situated health care providers. Other than "Shane," all provider
track actions involving the Company have been stayed.
On May 3, 2005, the Company and the representatives of
approximately 900,000 physicians and state and other medical
societies announced that the Company had signed an agreement
settling "Shane," the lead physician provider track action. The
settlement agreement requires the Company to pay $40 million to
general settlement funds and an expected award of up to $20
million for plaintiffs' legal fees. The deadline for class
members to submit claim forms in order to receive a portion of
the settlement funds was September 21, 2005. This deadline was
extended by agreement to November 21, 2005 for class members who
reside or practice in a county declared as a disaster area as a
result of Hurricane Katrina.
The settlement agreement also includes a commitment that the
Company institute a number of business practice changes. Among
the business practice changes it has agreed to implement are:
(1) enhanced disclosure of certain claims payment
practices;
(2) conforming claims-editing software to certain editing
and payment rules and standards;
(3) payment of electronically submitted claims in 15 days
(30 days for paper claims);
(4) use of a uniform definition of "medical necessity" that
includes reference to generally accepted standards of
medical practice and credible scientific evidence
published in peer-reviewed medical literature;
(5) establish a billing dispute external review board to
afford prompt, independent resolution of billing
disputes;
(6) provide 90-day notice of changes in practices and
policies and implement various changes to standard form
contracts;
(7) establish an independent physician advisory committee;
and,
(8) where physicians are paid on a capitation basis,
provide projected cost and utilization information,
provide periodic reporting and not delay assignment to
the capitated physician.
The settlement agreement requires the Company to implement these
business practice changes by various dates, and to maintain them
for a four-year period thereafter.
On September 26, 2005, the District Court issued an order
granting its final approval of the settlement agreement and
directing the entry of final judgment. On October 25, 2005,
Stanley Silverman, M.D. and Scott Calig, M.D. filed a Notice of
Appeal of the District Court's order granting its approval of
the settlement agreement. Consequently, the effective date of
the settlement will be delayed pending the appeal. When all
appeals have been exhausted and the settlement agreement becomes
effective, the Company anticipates that the settlement agreement
will result in the conclusion of substantially all pending
provider track cases filed on behalf of physicians.
IDAHO: Twin Falls School District Faces Teachers Union Lawsuit
--------------------------------------------------------------
The Twin Falls School District recently met with an attorney to
prepare its response to the lawsuit filed by the Twin Falls
Education Association (TFEA) a few weeks back, The Times News
reports.
Wiley Dobbs, superintendent of the Twin Falls School District,
was in Boise, Idaho to talk with John King, the district's
attorney, regarding the class action lawsuit. According to Mr.
Dobbs, Mr. King will file a response soon.
The suit, filed on behalf of the TFEA and four teachers: Shana
Hoge, Trina Tinder, Peggy Hoy and Janel Maki, alleges the Twin
Falls school board and superintendent violated good-faith
bargaining, which requires that the board and superintendent
negotiate teacher contracts only with the teachers union. The
TFEA also alleges that Dobbs violated the bargaining process
when he sent an e-mail to teachers and staff that explaining the
board's contract offer.
According to state law, the district must respond to the lawsuit
within 20 days of being served. Specifically, the board and
superintendent must respond to the suit by November 15. Both the
TFEA and the board though hope contract negotiations can be
resolved before either side can pursue further legal action.
John Rumel, general counsel for the Idaho Education Association,
told The Times-News, "The ball is in the district's court. They
could resolve the negotiations, and we would hope they would,
but at this point there has been no indication."
In an earlier interview with The Times-News, Mr. Dobbs said he
was not breaching negotiation rules when he shared the
district's proposal with the teachers. He also said that the
district was responsible for communicating clearly with its
constituents -- something the board felt the TFEA was not doing.
Mr. Dobbs told The Times-News, "We will most definitely be
denying allegations. And yes, we're certainly working on our
defense."
If neither side seeks to settle the lawsuit outside of court,
the claims will be taken to 5th District Court, since judges
there are assigned to civil actions with claims exceeding
$10,000. Mr. Rumel told The Times-News, "We will ask the court
to grant the release of what we have sought. And we believe it's
an issue the judge can clearly resolve."
The stakes are high for the school district, which already
spends 85 percent of its budget on teacher salaries. But with
many school districts in Idaho resolving teacher contracts,
pressure is mounting on the Twin Falls district to reach an
agreement.
ISOTEC INC.: Judge Allows Neighbors to Join Suit Over 2003 Blast
----------------------------------------------------------------
Individuals living within a one-mile radius of the Isotec plant
in Ohio, where an explosion caused a neighborhood evacuation two
years ago, are eligible to participate in a class action lawsuit
against the company, according to a ruling by a common pleas
court judge, The Dayton Daily News reports.
Richard W. Schulte, the lead attorney for the plaintiffs,
estimates that 500 to 700 homeowners could join in the case,
which was filed in December 2003. It seeks compensation for
evacuation costs, emotional distress and punitive damages.
Isotec Inc., at 3858 Benner Road, is owned by Aldrich Chemical
Co. Aldrich's parent company, Sigma-Aldrich Corporation, is
based in St. Louis. The September 21, 2003, explosion happened
when a nitric oxide column blew up, injuring one worker. The
blast caused the evacuation of more than 500 homes and 2,000
people within that one-mile radius.
Judge Dennis J. Langer ruled on October 21 that a class action
lawsuit would be "in the best interests of judicial economy by
avoiding numerous split trials and split appeals."
Isotec attorney Tom Kraemer told The Dayton Daily News that the
company has not decided whether to appeal the order, but it has
30 days from Judge Langer's decision to file an appeal. He
pointed out though that Isotec did make efforts to help people
with evacuation costs immediately after the incident.
KINDER MORGAN: Trial in TX Royalty Interests Suit Set June 2006
---------------------------------------------------------------
Trial in the consolidated class action filed against Kinder
Morgan C02 Company L.P. is set for June 12,2006 in the 14th
Judicial District Court, Dallas County, Texas
The Statutory Probate Court, Denton County, Texas earlier
dismissed two class actions filed against Kinder Morgan CO2
Company, L.P., Kinder Morgan G.P., Inc., and Cortez Pipeline
Company, styled "Shores, et al. v. Mobil Oil Corp., et al., No.
GC-99-01184 (Statutory Probate Court, Denton County, Texas filed
December 22, 1999)" and "First State Bank of Denton, et al. v.
Mobil Oil Corp., et al., No. 8552-01 (Statutory Probate Court,
Denton County, Texas filed March 29, 2001)."
These cases were originally filed as class actions on behalf of
classes of overriding royalty interest owners (Shores) and
royalty interest owners (Bank of Denton) for damages relating to
alleged underpayment of royalties on carbon dioxide produced
from the McElmo Dome Unit. Although classes were initially
certified at the trial court level, appeals resulted in the
decertification and/or abandonment of the class claims. In
December 2004, the trial judge orally announced his intention to
dismiss both cases in response to motions filed by defendants.
Although classes were initially certified at the trial court
level, appeals resulted in the decertification and/or
abandonment of the class claims. On February 22, 2005, the trial
judge dismissed both cases for lack of jurisdiction. Some of the
individual plaintiffs in these cases re-filed their claims in
new lawsuits.
On May 13, 2004, William Armor, one of the former plaintiffs in
the Shores matter whose claims were dismissed by the Court of
Appeals for improper venue, filed a new case alleging the same
claims for underpayment of royalties against the same defendants
previously sued in the Shores case, including Kinder Morgan CO2
Company, L.P. and Kinder Morgan Energy Partners, L.P. Armor v.
Shell Oil Company, et al, No. 04-03559 (14th Judicial District
Court, Dallas County, Texas filed May 13, 2004). Defendants
filed their answers and special exceptions on June 4, 2004.
Trial, originally scheduled for July 25, 2005, has been
rescheduled for June 12, 2006.
On May 20, 2005, Josephine Orr Reddy and Eastwood Capital, Ltd.,
two of the former plaintiffs in the Bank of Denton matter, filed
a new case in Dallas state district court alleging the same
claims for underpayment of royalties, styled "Reddy and Eastwood
Capital, Ltd. v. Shell Oil Company, et al., No. 05-5021 (193rd
Judicial District Court, Dallas County, Texas filed May 20,
2005)." The defendants include Kinder Morgan CO2 Company, L.P.
and Kinder Morgan Energy Partners, L.P. On June 23, 2005, the
plaintiff in the Armor lawsuit filed a motion to transfer and
consolidate the Reddy lawsuit with the Armor lawsuit. On June
28, 2005, the court in the Armor lawsuit granted the motion to
transfer and consolidate and ordered that the Reddy lawsuit be
transferred and consolidated into the Armor lawsuit. The
defendants filed their answer and special exceptions on August
10, 2005. The consolidated Armor/Reddy trial is set for June 12,
2006.
KINDER MORGAN: NM Court Yet To Rule on Suit Arbitration Motion
--------------------------------------------------------------
The 8th Judicial District Court, Union County, New Mexico has
yet to rule on Kinder Morgan CO2 Company, L.P.'s motion for
arbitration for the class action filed against it in the 8th
Judicial District court, Union County, New Mexico, styled "J.
Casper Heimann, Pecos Slope Royalty Trust and Rio Petro LTD,
individually and on behalf of all other private royalty and
overriding royalty owners in the Bravo Dome Carbon Dioxide Unit,
New Mexico similarly situated v. Kinder Morgan CO2 Company,
L.P., No. 04-26-CL."
This case alleges that defendant has failed to pay the full
royalty and overriding royalty ("royalty interests") on the true
and proper settlement value of compressed carbon dioxide
produced from the Bravo Dome Unit in the period beginning
January 1, 2000. The complaint purports to assert claims for
violation of the New Mexico Unfair Practices Act, constructive
fraud, breach of contract and of the covenant of good faith and
fair dealing, breach of the implied covenant to market, and
claims for an accounting, unjust enrichment, and injunctive
relief. The purported class is comprised of current and former
owners, during the period January 2000 to the present, who have
private property royalty interests burdening the oil and gas
leases held by the defendant, excluding the Commissioner of
Public Lands, the United States of America, and those private
royalty interests that are not unitized as part of the Bravo
Dome Unit.
The plaintiffs allege that they were members of a class
previously certified as a class action by the United States
District Court for the District of New Mexico in the matter
"Doris Feerer, et al. v. Amoco Production Company, et al., USDC
N.M. Civ. No. 95-0012." Plaintiffs allege that defendant's
method of paying royalty interests is contrary to the settlement
of the Feerer Class Action. Defendant has filed a Motion to
Compel Arbitration of this matter pursuant to the arbitration
provisions contained in the Feerer Class Action Settlement
Agreement, which motion is currently pending. No date for
arbitration or trial is currently set.
KINDER MORGAN: AK Court To Rule On Fraud Suit Dismissal in 2006
---------------------------------------------------------------
The Circuit Court for Miller County, Arkansas will hear Kinder
Morgan Energy Partners, L.P.'s motion to dismiss the class
action filed againt them and several other entities, styled
"Weldon Johnson and Guy Sparks, individually and as
Representative of Others Similarly Situated v. Centerpoint
Energy, Inc. et. al., No. 04-327-2," on February 14,2006.
The suit includes as defendants the Company and:
(1) Kinder Morgan Texas Pipeline L.P.;
(2) Kinder Morgan G.P., Inc.;
(3) KM Texas Pipeline, L.P.;
(4) Kinder Morgan Texas Pipeline G.P., Inc.;
(5) Kinder Morgan Tejas Pipeline G.P., Inc.;
(6) Kinder Morgan Tejas Pipeline, L.P.;
(7) Gulf Energy Marketing, LLC;
(8) Tejas Gas, LLC; and
(9) Midcon Corporation
The Complaint purports to bring a class action on behalf of
those who purchased natural gas from the Centerpoint defendants
from October 1, 1994 to the date of class certification. The
Complaint alleges that Centerpoint Energy, Inc., by and through
its affiliates, has artificially inflated the price charged to
residential consumers for natural gas that it allegedly
purchased from the non-Centerpoint defendants, including the
above-listed Kinder Morgan entities. The Complaint further
alleges that in exchange for Centerpoint's purchase of such
natural gas at above market prices, the non-Centerpoint
defendants, including the above-listed Kinder Morgan entities,
sell natural gas to Centerpoint's non-regulated affiliates at
prices substantially below market, which in turn sells such
natural gas to commercial and industrial consumers and gas
marketers at market price.
The Complaint purports to assert claims for fraud, unlawful
enrichment and civil conspiracy against all of the defendants,
and seeks relief in the form of actual, exemplary and punitive
damages, interest, and attorneys' fees. The Complaint was served
on the Kinder Morgan Defendants on October 21, 2004.
On November 18, 2004, the Centerpoint Defendants removed the
case to the United States District Court, Western District of
Arkansas, Texarkana Division, Civ. Action No. 04-4154. On
January 26, 2005, the Plaintiffs moved to remand the case back
to state court, which motion was granted on June 2, 2005. On
July 11, 2005, the Kinder Morgan Defendants filed a Motion to
Dismiss the Complaint, which motion is currently pending. On
October 3, 2005, the Court issued a Scheduling and Case
Management Order in which it ordered that discovery could
proceed, scheduled a hearing on certain of the Kinder Morgan
Defendants' Motions to Dismiss for February 14, 2006, deferred
certain other motions to August 15, 2006, and scheduled a class
certification hearing, if necessary, for March 16, 2006.
KINDER MORGAN: Working To Resolve Personal Injury Suits in NV
-------------------------------------------------------------
Kinder Morgan Energy Partners, L.P. is working for the dismissal
or resolution of several class actions filed in Nevada federal
and state courts, on charges that a leukemia cluster was
developing in the city of Fallon, Nevada.
The first suit is styled "Marie Snyder, et al v. City of Fallon,
United States Department of the Navy, Exxon Mobil Corporation,
Kinder Morgan Energy Partners, L.P., Speedway Gas Station and
John Does I-X, No. cv-N-02-0251-ECR-RAM," filed in the United
States District Court, District of Nevada on July 9, 2002. The
plaintiffs, on behalf of themselves and others similarly
situated, alleges that the plaintiffs have been exposed to
unspecified "environmental carcinogens" at unspecified times in
an unspecified manner and are therefore "suffering a
significantly increased fear of serious disease." The
plaintiffs seek a certification of a class of all persons in
Nevada who have lived for at least three months of their first
ten years of life in the City of Fallon between the years 1992
and the present who have not been diagnosed with leukemia.
The Complaint purports to assert causes of action for nuisance
and "knowing concealment, suppression, or omission of material
facts" against all defendants, and seeks relief in the form of
"a court-supervised trust fund, paid for by defendants, jointly
and severally, to finance a medical monitoring program to
deliver services to members of the purported class that include,
but are not limited to, testing, preventative screening and
surveillance for conditions resulting from, or which can
potentially result from exposure to environmental carcinogens,"
incidental damages, and attorneys' fees and costs.
The defendants responded to the Complaint by filing Motions to
Dismiss on the grounds that it fails to state a claim upon which
relief can be granted. On November 7, 2002, the United States
District Court granted the Motion to Dismiss filed by the United
States, and further dismissed all claims against the remaining
defendants for lack of Federal subject matter jurisdiction.
Plaintiffs filed a Motion for Reconsideration and Leave to
Amend, which was denied by the Court on December 30, 2002.
Plaintiffs filed a Notice of Appeal to the United States Court
of Appeals for the 9th Circuit. On March 15, 2004, the 9th
Circuit affirmed the dismissal of this case.
On December 3, 2002, plaintiffs filed an additional Complaint
for Class Action, styled "Frankie Sue Galaz, et al v. United
States of America, City of Fallon, Exxon Mobil Corporation,
Kinder Morgan Energy Partners, L.P., Berry Hinckley, Inc., and
John Does I-X, No. cv-N-02-0630-DWH-RAM," filed in the United
States District Court, District of Nevada. The suit asserts the
same claims in the same court on behalf of the same purported
class against virtually the same defendants, including the
Company. On February 10, 2003, the defendants filed Motions to
Dismiss the Galaz I Complaint on the grounds that it also fails
to state a claim upon which relief can be granted. This motion
to dismiss was granted as to all defendants on April 3, 2003.
Plaintiffs have filed a Notice of Appeal to the United States
Court of Appeals for the 9th Circuit. On November 17, 2003, the
9th Circuit dismissed the appeal, upholding the District Court's
dismissal of the case.
On June 20, 2003, plaintiffs filed an additional Complaint for
Class Action, styled "Frankie Sue Galaz, et al v. City of
Fallon, Exxon Mobil Corporation, Kinder Morgan Energy Partners,
L.P., Kinder Morgan G.P., Inc., Kinder Morgan Las Vegas, LLC,
Kinder Morgan Operating Limited Partnership "D", Kinder Morgan
Services LLC, Berry Hinkley and Does I-X, No. CV03-03613," filed
in the Second Judicial District Court, State of Nevada, County
of Washoe. The suit asserts the same claims in Nevada State
trial court on behalf of the same purported class against
virtually the same defendants, including the Company (and
excluding the United States Department of the Navy).
On September 30, 2003, the Kinder Morgan defendants filed a
Motion to Dismiss the Galaz II Complaint along with a Motion for
Sanctions. On April 13, 2004, plaintiffs' counsel voluntarily
stipulated to a dismissal with prejudice of the entire case in
State Court. The court has accepted the stipulation and the
parties are awaiting a final order from the court dismissing the
case with prejudice.
Also on June 20, 2003, the plaintiffs in the previously filed
Galaz matters (now dismissed) filed yet another Complaint for
Class Action in the United States District Court for the
District of Nevada, styled "Frankie Sue Galaz, et al v. The
United States of America, City of Fallon, Exxon Mobil
Corporation, Kinder Morgan Energy Partners, L.P., Kinder Morgan
G.P., Inc., Kinder Morgan Las Vegas, LLC, Kinder Morgan
Operating Limited Partnership "D", Kinder Morgan Services LLC,
Berry Hinkley and Does I-X, No.CVN03-0298-DWH-VPC. The suit
asserts the same claims in United States District Court for the
District of Nevada on behalf of the same purported class against
virtually the same defendants, including the Company.
The Kinder Morgan defendants filed a Motion to Dismiss the Galaz
III matter on August 15, 2003. On October 3, 2003, the
plaintiffs filed a Motion for Withdrawal of Class Action, which
voluntarily drops the class action allegations from the matter
and seeks to have the case proceed on behalf of the Galaz family
only. On December 5, 2003, the District Court granted the
Kinder Morgan defendants' Motion to Dismiss, but granted
plaintiff leave to file a second Amended Complaint. Plaintiff
filed a Second Amended Complaint on December 13, 2003, and a
Third Amended Complaint on January 5, 2004. The Kinder Morgan
defendants filed a Motion to Dismiss the Third Amended Complaint
on January 13, 2004. The Motion to Dismiss was granted with
prejudice on April 30, 2004. On May 7, 2004, Plaintiff filed a
Notice of Appeal in the United States Court of Appeals for the
9th Circuit. Briefing of the appeal has been completed and the
parties are awaiting a decision.
LANDAMERICA FINANCIAL: Subsidiaries Working on RESPA Suit Pact
--------------------------------------------------------------
Two of Landamerica Financial Group, Inc.'s subsidiaries are
finalizing the proposed settlement of the consolidated class
action filed against them in the United States District Court
for the Eastern District of Michigan, alleging violations of the
Real Estate Settlement Procedures Act (RESPA).
On May 9, 2000, Romeo Jergess filed a putative class action suit
against the Company's subsidiary Transnation Title Insurance
Company, alleging that the Company's rate for an owner's title
insurance policy, charged in accordance with rates for new
construction filed with the Insurance Bureau of the State of
Michigan, are less than the rate paid by the lender for a
simultaneously issued lender's title insurance policy, and that
the lower rate paid by the builder/developer for the owner's
policy involves an illegal kickback for a referral and an
illegal splitting of fees in violation of the RESPA.
On April 27, 2001, a similar suit was filed by Elaine Miller in
the same court (Case No. 01-71647) against Lawyers Title
Insurance Corporation, a subsidiary of the Company. The
plaintiffs in both suits seek an unspecified amount of damages
equal to three times the amount of the charge for each
simultaneously issued lender's title insurance policy in
connection with a new home purchase commencing with the period
one year before the filing of each complaint, plus costs,
interest and attorneys' fees.
Transnation and Lawyers Title have engaged a forensic accountant
to review plaintiffs' estimate that the charges collected for
such policies by Transnation and Lawyers Title from the class as
originally defined is approximately $15 million. The Jergess
Suit and the Miller Suit were consolidated on July 18, 2002 with
cases pending against First American Title Insurance Company and
Chicago Title Insurance Company. On December 5, 2002, the court
certified a class defined as all individuals who, during the
period commencing prior to one year of the filing of the
applicable suit and ending on October 30, 2002, purchased a
newly constructed one to four family dwelling or condominium and
were charged for a lender's title insurance policy allegedly in
violation of RESPA.
On February 12, 2003, the United States Court of Appeals for the
Sixth Circuit denied Transnation's and Lawyers Title's petitions
for an interlocutory appeal of the class certification order.
On October 30, 2003, the judge ordered that individuals
otherwise meeting the class definition, but who closed
transactions involving relevant policies between October 31,
2002 through October 30, 2003, would not be subject to a statute
of limitations defense raised by Transnation Title or Lawyers
Title between October 30, 2003 and October 31, 2004. On October
28, 2004, Transnation and Lawyers Title stipulated to an order
that individuals otherwise meeting the class definition, but who
closed transactions involving relevant policies between October
31, 2002 through October 30, 2004, would not be subject to a
statute of limitations defense raised by Transnation or Lawyers
Title between October 30, 2004 and October 31, 2005. The court
reserved decision on a Motion to proceed to trial with the
certified class as originally defined.
On January 13, 2005, the court denied Transnation's and Lawyers
Title's motion to dismiss the case for lack of standing. On
February 7, 2005, the court dismissed without prejudice
Transnation's and Lawyers Title's Motion for Partial Summary
Judgment with respect to those members of the class covered by
the affiliated business exception under RESPA with the court
indicating that the parties could resubmit the motion with
additional information. The court has not yet ruled on the
parties' cross Motions for Summary Judgment on Count II of
plaintiffs' complaint alleging an illegal splitting of fees
under RESPA.
On April 21, 2005, Transnation and Lawyers Title filed various
Motions for Summary Judgment and Limine with respect to multiple
issues. The parties participated in non-binding mediation
beginning May 3, 2005. On May 19, 2005, Transnation and Lawyers
Title entered into a binding term sheet to settle the
consolidated suits. The terms of the settlement are subject to
court approval. If approved, Transnation and Lawyers Title will
be obligated to make a single aggregate payment of $10,325,000
into a settlement fund to be established for the benefit of
eligible class members. Transnation and Lawyers Title, who did
not admit any liability in the settlement, would be required to
deposit the settlement funds into escrow within seven days
following the issuance of a final order by the court approving
the settlement. The parties intend to enter into a final
Settlement Agreement that will incorporate the provisions of the
Term Sheet. Pursuant to the Term Sheet, the Settlement
Agreement will provide for the dismissal with prejudice of all
claims by plaintiffs against Transnation and Lawyers Title and a
release of all claims by plaintiffs except claims under their
title policies.
The suit is styled "Jergess v. Transnation Title, et al., case
no. 2:00-cv-72124-AC," filed in the United States District Court
for the Eastern District of Michigan, under Judge Avern Cohn.
Representing the Company is Francis R. Ortiz of Dickinson
Wright, 500 Woodward Avenue, Suite 4000, Detroit, MI 48226-3425,
Phone: 313-223-3500, E-mail: fortiz@dickinson-wright.com.
Representing the plaintiffs are:
(1) Jeffrey A. Yellen, 37000 Grand River Avenue, Suite 300,
Farmington Hills, MI 48335, Phone: 248-473-0001, Email:
jeffyellen@ntlmj.com
(2) Patrick J. Bruetsch, Bruetsch Assoc., 401 S. Old
Woodward Avenue, Suite 400, Birmingham, MI 48009,
Phone: 248-646-1114, E-mail: pbruetsch@aol.com
(3) Timothy K. McConaghy, Hardy, Lewis, 401 S. Old Woodward
Avenue, Suite 400, Birmingham, MI 48009-6629, Phone:
248-645-0800, E-mail: tkm@hardylewis.com
METRO WATER: Appeals Court Allows Race Bias Lawsuit to Proceed
--------------------------------------------------------------
The 6th U.S. Circuit Court of Appeals allowed a racial
discrimination lawsuit by a group of Metro Water Services
employees to proceed as a class action, The Nashville City Paper
reports.
The court paved the way for the suit to proceed by denying
Metro's appeal of an August order by U.S. District Judge William
J. Haynes that gave the case class action status. The trial has
been scheduled for November 14, 2006. The suit, filed in 2004
by nine black Water Services employees, alleges racially
disparate pay, promotion, job assignments, supervision,
discipline and accommodations.
The nine plaintiffs in the suit, styled Grant et al vs. Metro
Government of Nashville and Davidson County, Tennessee are:
application tech Princess A. Martindale, plumber Darrell W.
Gant, office support representative Pamela N. Tucker,
administrative services manager Claude P. Grant, water
maintenance leader Antonio D. McKissack Sr., administrative
services officer Sandra J. Derrick, maintenance and repair
leader Darryl L. McKibben, administrative services officer
Faletha B. Reid and former equipment operator Oralene Day, who
is the only plaintiff no longer with the department, an earlier
Class Action Reporter story (August 26, 2005)reports.
The plaintiffs are all seeking injunctive relief, which would
prohibit any future discriminatory practices, and compensatory
damages for pain, suffering and mental anguish, an earlier Class
Action Reporter story (March 22, 2005) reports. The class
certification allowed the case to proceed on behalf of all
former, current and future black employees since January 2000.
The plaintiffs say there are currently 178 such employees.
Aside from racial discrimination, the suit also alleges former
Water Services human resources manager Robin Brown, who is
black, contributed to the problem by not being receptive to the
employees' concerns. Currently, he is now human resources
manager at Metro's Department of Human Resources.
In its ruling, the 6th Circuit said a case may be "especially
appropriate" for appeal if granting class status "propels the
litigation into a high-stakes game such that the defendant is
more likely to settle than litigate," or if denying class status
"discourages the individual plaintiff from continuing due to the
expense of litigation." Such is not the situation in this case,
however, according to the court's order.
The suit is styled, "Grant, et al v. Metro Govt of Nash, et a,
3:04-cv-00630," filed in the United States District Court for
the Middle District of Tennessee, under Judge William J. Haynes.
Representing the Plaintiff/s is, Martin D. Holmes of Stewart,
Estes & Donnell, SunTrust Center, 424 Church St., 14th Floor
Nashville, TN 37219-2392, Phone: (615) 244-6538, E-mail:
mdholmes@sedlaw.com. Representing the Defendant is J. Brooks Fox
of Metropolitan Legal Department, 204 Metro Courthouse,
Nashville, TN 37201, Phone: (615) 862-6341, E-mail:
brooks.fox@nashville.gov.
MICROMUSE INC.: Deal in Shareholder Derivative Suit Proposed
------------------------------------------------------------
A notice of the proposed settlement of a shareholder derivative
lawsuit brought in federal court on behalf of Micromuse, Inc.
(Nasdaq:MUSE) ("Micromuse") (the "Federal Lawsuit") was recently
sent to the shareholders of Micromuse. Approval of the proposed
settlement of the Federal Lawsuit may affect important rights of
Micromuse and Micromuse shareholders including extinguishing any
potential right to recover $189 million in insider trading
proceeds on behalf of Micromuse. If you are a shareholder of
Micromuse stock and wish to object to the proposed settlement,
the notice of the proposed settlement requires you to do so by
November 15, 2005.
Prior to the proposed settlement, the Federal Lawsuit was
dismissed by the federal court in favor of a previously filed
("related") shareholder derivative lawsuit in state court (the
"State Lawsuit"). Instead of filing in state court, the Federal
Lawsuit was appealed and ultimately reached the proposed
settlement.
The State Lawsuit was brought by plaintiffs derivatively on
behalf of (and for the benefit of) Micromuse, to remedy
defendants' alleged violations of California law, including
breaches of fiduciary duties, abuse of control, gross
mismanagement, waste of corporate assets, unjust enrichment and
violations of the California Corporations Code (including
insider trading) that occurred between October 1, 1999 and the
present (the "Relevant Period") and that plaintiffs in the State
Action allege have caused substantial losses to Micromuse and
other damages, such as to its reputation and goodwill. The
plaintiffs in the State Lawsuit seek, among other things, to
recover $189 million in insider trading proceeds from defendants
for Micromuse. The claim for $189 million in insider trading
proceeds was not brought in the Federal Lawsuit. Plaintiffs in
the State Lawsuit recently defeated, in part, the defendants'
demurrer (attempt to dismiss the lawsuit).
The parties to the proposed settlement of the Federal Lawsuit
also seek to bar all claims in the State Lawsuit, including the
claim to recover $189 million in insider trading proceeds, which
the State Lawsuit seeks for Micromuse's benefit and recovery. If
the proposed settlement is approved, Micromuse will receive no
monetary compensation for the $189 million in insider selling.
In fact, the defendants in the Federal Lawsuit will not be
required to pay anything for their alleged wrongdoing as the
proposed settlement only requires Micromuse to implement limited
corporate governance changes. The plaintiff's attorneys in the
Federal Lawsuit have indicated that they will seek $250,000 in
attorneys' fees.
The proposed settlement is in Greg Sutterfield, derivatively and
on behalf of Micromuse, Inc. v. Lloyd Carney, et al., Defendants
and Micromuse, Inc., Nominal Defendant, Case No. C 04 0893 BZ.
Robbins Umeda & Fink, LLP represents the plaintiffs (suing on
behalf of Micromuse) in the State Lawsuit seeking to recover the
$189 million in insider trading proceeds for Micromuse.
For more details, contact Claims Administrator, Sutterfield v.
Carney, et al., c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee,
Wisconsin, 53217, Phone: (800) 918-9012
OHIO: Judge Dismisses Suit Challenging State's Sex Offender Law
---------------------------------------------------------------
Without getting to the merits of the case, U.S. District Judge
Sandra Beckwith threw out a legal challenge to an Ohio law
barring sex offenders from living within 1,000 feet of a school,
the Associated Press reports. In her ruling, the federal judge
stated that none of the plaintiffs had legal standing because
none lived within 1,000 feet of a school and had not been
injured by the law.
In 2003, Ohio banned registered sex offenders from living within
1,000 feet of school property. At the time, only landlords,
neighbors or schools could seek eviction of an offender
violating that requirement. However, an amendment that went into
effect this year gave legal officials in counties,
municipalities and townships the authority to pursue eviction
proceedings against offenders who lived within 1,000 feet of
school property.
The Cincinnati-based Ohio Justice and Policy Center filed a
lawsuit challenging the law on behalf of six named plaintiffs.
It sought to have the suit designated as a class action
representing all registered sex offenders, arguing that the law
could make it virtually impossible for a sex offender to find
low-cost housing, and could make whole neighborhoods or towns
off-limits.
After the ruling was handed down, Attorney General Jim Petro,
whose office fought the challenge told The Associated Press,
"Because statistics have indicated that some sex offenders tend
to repeat their crimes, this a reasonable and necessary statute
that seeks to not only safeguard children but to protect sex
offenders from situations that could cause them to re-offend."
OMRON HEALTHCARE: Recalls Instant Thermometers For Injury Risk
--------------------------------------------------------------
Omron Healthcare Inc. initiated a voluntary recall of certain
Omronr 3-Way Instant Thermometers -- model numbers MC-600 and
MC-600CAN -- due to a potential issue that may cause the tip of
the device to overheat.
The voluntary recall was initiated following receipt of a
limited number of consumer complaints indicating discomfort
during and following use of the subject thermometers. Consumers
who continue using the affected thermometers are at risk of
discomfort during use, potentially resulting in redness or even
a blister on the skin. Very young children using this device are
at an increased risk due to the inability to express themselves
and their difficulty in pulling away from the device held by an
adult.
The battery-operated, digital thermometers were sold in the
United States and Canada between September 19, 2001, and October
21, 2005. Available through drug stores, the pharmacy sections
of food stores and mass merchandise chains, and internet
retailers, the potentially affected products have Lot Numbers
beginning with 01-32, 01-36, 01-37 and 01-38. (Lot numbers are
located inside the battery compartments of the thermometers.) It
should be noted that no lot numbers begin with 01-33, 01-34 or
01-35. Omron determined that the overheating was a result of a
change in the manufacturing process of the MC-600 and MC-600CAN
thermometers by Medisim Ltd., the third-party manufacturer from
whom Omron purchased the devices.
While none of the reports have involved serious injury, Omron is
requesting consumers to immediately discontinue use of any
affected device and call 800.634.4350 for information on how to
return and receive a refund or exchange for a different
thermometer model. Information is also available on the company
website: www.omronhealthcare.com.
Consumers who have questions about the recall are encouraged to
call Omron Healthcare at 800.634.4350.
For further information on Omron Healthcare Inc. visit the
company's Web site: http://www.omronhealthcare.com.
"We have enjoyed a long history of providing consumers with
safe, accurate and technologically-advanced devices that allow
for healthier living," stated Kaz Saito, Chairman & CEO. "As
part of our ongoing commitment to the consumers who rely on our
products, we are working to rapidly and efficiently recover
these devices of concern."
OVERTURE SERVICES: Final Fairness Hearing Set April 2006 in NY
--------------------------------------------------------------
Final fairness hearing for the settlement of the consolidated
securities class action filed against Overture Services, Inc.,
certain underwriters involved in the Company's initial public
offering, and certain of its current and former officers and
directors is set for April 24,2006 in the United States District
Court for the Southern District of New York.
Plaintiffs allege, among other things, violations of the
Securities Act of 1933 and the Securities Exchange Act of 1934
involving undisclosed compensation to the underwriters, and
improper practices by the underwriters, and seek unspecified
damages.
Similar complaints were filed in the same court against numerous
public companies that conducted initial public offerings of
their common stock since the mid-1990s. All of these lawsuits
were consolidated for pretrial purposes before Judge Shira
Scheindlin. On April 19, 2002, plaintiffs filed an amended
complaint, alleging Rule 10b-5 claims of fraud. On July 15,
2002, the issuers filed a motion to dismiss for failure to
comply with applicable pleading standards. On October 8, 2002,
the Court entered an Order of Dismissal as to all of the
individual defendants in the Overture IPO litigation, without
prejudice. On February 19, 2003, the Court denied the motion to
dismiss the Rule 10b-5 claims against certain defendants,
including the Company.
Settlement discussions relating to this case on behalf of the
named defendants have occurred over the last year, resulting in
a final settlement memorandum of understanding with the
plaintiff and the Company's insurance carriers. This settlement
proposal includes the settlement of and release of claims
against the issuer defendants, including the Company. The
settlement is subject to a number of conditions, including
approval of the court. On August 31 2005, the Court entered an
order confirming its preliminary approval of a settlement
proposal made by plaintiffs, which includes settlement of, and
release of claims against, the issuer defendants, including
Overture. A hearing on the fairness of the settlement to the
shareholder class is currently set for April 24, 2006.
The suit is styled "In RE Overture Services, Inc. Securities
Litigation," related to "In re Initial Public Offering
Securities Litigation, Master File No. 21 MC 92 (SAS)," filed in
the United States District Court for the Southern District of
New York under Judge Shira A. Scheindlin. The plaintiff firms
in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300,
(3) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
PACIFIC ENTERPRISES: Seeks To Resolve CA, NV Antitrust Lawsuits
---------------------------------------------------------------
Pacific Enterprises, Inc. (formerly Southern California Gas) is
working to resolve 12 antitrust actions filed against it,
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 United
States District Court for the District of Nevada, 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 pending in the Nevada U.S.
District Court were amended to name the California Utilities 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.
With respect to the lawsuits coordinated before the San Diego
Superior Court, on June 29, 2005, the court denied defendants'
motion to dismiss on preemption and Filed Rate Doctrine grounds.
A separate motion to dismiss filed by Sempra Energy for improper
joinder remains pending resolution by the court.
PERKINELMER INC.: Plaintiffs Dismissed Suits Filed in 2002, 2004
----------------------------------------------------------------
Plaintiffs voluntarily dismissed the class action and derivative
lawsuits filed in July 2002 and June 2004 against PerkinElmer,
Inc. (NYSE: PKI), and certain of its officers and directors.
"We are very pleased these suits have been dismissed," said
Katherine A. O'Hara, Senior Vice President and General Counsel.
"As we stated when the suits were filed, these allegations were,
in our view, without merit," added Ms. O'Hara.
PerkinElmer, Inc. is a global technology leader driving growth
and innovation in Health Sciences and Photonics markets to
improve the quality of life. The Company reported revenues of
$1.7 billion in 2004, has 10,000 employees serving customers in
more than 125 countries, and is a component of the S&P 500
Index. For more details, contact Dan Sutherby of PerkinElmer,
Inc., Phone: 781-431-4306, Web site: http://www.perkinelmer.com.
QUALCOMM INC.: Continues To Face WA Cellphone Injury Lawsuits
-------------------------------------------------------------
Qualcomm Inc. and other manufacturers of wireless phones,
wireless operators and industry related organizations continue
to face several class actions pending in Washington D.C.
Superior Court.
Several purported class action lawsuits, including a class
action styled "In re Wireless Telephone Frequency Emissions
Products Liability Litigation," have been filed, seeking
monetary damages out of the sale and use of cellular phones.
The suits were later coordinated in the United States District
Court for the District of Maryland. On March 5, 2003, the Court
granted the defendants' motions to dismiss five of the
consolidated cases (Pinney, Gimpleson, Gillian, Farina and
Naquin) on the grounds that the claims were preempted by federal
law. On March 21, 2005, the 4th Circuit Court of Appeals
reversed the ruling by the District Court and ordered the cases
remanded to state court.
All remaining cases filed against the Company allege personal
injury as a result of their use of a wireless telephone. Those
cases have been remanded to the Washington, D.C. Superior Court.
The courts that have reviewed similar claims against other
companies to date have held that there was insufficient
scientific basis for the plaintiffs' claims in those cases.
RENAL CARE: Suit V. Fresenius Merger Remanded To TN State Court
---------------------------------------------------------------
The amended shareholder class action filed against Renal Care
Group, Inc. over its merger agreement with Fresenius Medical
Care has been remanded to the Chancery Court for the State of
Tennessee, 20th Judicial District, Nashville from the United
States District Court in Tennessee.
On May 11, 2005, the Company was served with a complaint
initially filed in the Chancery Court for the State of Tennessee
Twentieth Judicial District at Nashville, styled "Plumbers Local
65 Pension Fund, on behalf of itself and all others similarly
situated, Plaintiff, vs. Renal Care Group, Inc., William P.
Johnston, Gary Brukardt, Peter J. Grua, Joseph C. Hutts, Harry
R. Jacobson, William V. Lapham, Thomas A. Lowery, Stephen D.
McMurray and C. Thomas Smith, Defendants." On May 26, 2005,
another suit ws filed in the same court, styled "Hawaii
Structural Ironworkers Pension Trust Fund, on behalf of itself
and all others similarly situated, Plaintiff, vs. Renal Care
Group, Inc., William P. Johnston, Gary Brukardt, Peter J. Grua,
Joseph C. Hutts, Harry R. Jacobson, William V. Lapham, Thomas A.
Lowery, Stephen D. McMurray and C. Thomas Smith, Defendants."
On May 31, 2005, another complaint was filed in the same court,
styled "Indiana State District Council of Laborers and Hod
Carriers Pension Fund, on behalf of itself and others similar
situated, Plaintiff, vs. Renal Care Group, Inc., William P.
Johnston, Gary Brukardt, Peter J. Grua, Joseph C. Hutts, Harry
R. Jacobson, William V. Lapham, Thomas A. Lowery, Stephen D.
McMurray and C. Thomas Smith, Defendants."
The original complaints in these three lawsuits were
substantially identical. Each complaint was brought by the
plaintiff shareholder as a purported class action on behalf of
all shareholders similarly situated. The complaints allege that
the Company and its directors engaged in self-dealing and
breached their fiduciary duties to its shareholders in
connection with the merger agreement because, among other
things, the Company used a flawed process, the existence of the
previously disclosed subpoena from the Department of Justice,
the lack of independence of one of its financial advisors and
the existence of its supplemental executive retirement plan. The
Company removed these cases to federal court in June 2005.
The plaintiffs in the first two cases dismissed them without
prejudice in July 2005, and the third plaintiff filed an amended
complaint. The amended complaint asserts the same grounds
articulated in the original complaint adding more specific
allegations regarding the termination fee, the no solicitation
clause and the matching rights provision in the Merger Agreement
and adds allegations that the Company's Proxy Statement makes
material misrepresentations and omissions regarding the process
by which the Merger Agreement was negotiated. Specifically, the
Amended Complaint asserts that the Proxy Statement makes
material misstatements or omissions regarding:
(1) the reason why Company management and Board engaged in
a closed process of negotiating a potential merger with
Fresenius and did not solicit potential competing bids
from alternative purchasers;
(2) the reason why the Company's Board did not appoint a
special committee to evaluate the fairness of the
merger;
(3) the alternatives available to Renal Care, including
potential alternative transactions and other strategic
business opportunities, which purportedly were
considered by the Renal Care Board during the strategic
planning process the Board engaged in during the second
half of 2004;
(4) all information regarding conflicts of interest
suffered by defendants and their financial and legal
advisors as alleged herein;
(5) all information regarding past investment banking
services Bank of America has performed for Renal Care
and Fresenius and the compensation Bank of America
received for those services;
(6) the forecasts and projections prepared by Renal Care's
management for fiscal years 2005 through 2008 that were
referenced in the fairness opinions by Morgan Stanley;
(7) the estimates of transaction synergies provided by
Renal Care management that were referenced in the
fairness opinions by Morgan Stanley; and
(8) information concerning the amount of money Bank of
America and Morgan Stanley will receive in connection
with the Proposed Acquisition.
The Company believes that the allegations in the pending
complaint are without merit. Completion of the merger is subject
to customary conditions, including the absence of any order or
injunction prohibiting the closing. The pending complaint seeks
to enjoin and prevent the parties from completing the Fresenius
Medical Care transaction.
The suit is styled "Hawaii Structural Ironworkers Pension Trust
Fund, on behalf of itself and all others similarly situated,
Plaintiff, vs. Renal Care Group, Inc., et al., case no. 3:05-cv-
00451." Representing the plaintiffs are A. Rick Atwood, Randall
J. Atwood, Shaun L. Grove, and Darren J. Robbins of Lerach,
Coughlin, Stoia, Geller, Rudman & Robbins, LLP, 401 B Street,
Suite 1600, San Diego, CA 92101, Phone: (619) 231-1058, E-mail:
ricka@lerachlaw.com; and James Gerard Stranch, III of
Branstetter, Kilgore, Stranch & Jennings, 227 Second Avenue, N
4th Floor, Nashville, TN 37201, Phone: (615) 254-8801, E-mail:
jstranch@branstetterlaw.com. Representing the Company are
Jessica Perry Corley, Todd R. David of Alston & Bird, One
Atlantic Center, 1201 W Peachtree Street, Atlanta, GA 30309-
3424, Phone: (404) 881-7000, E-mail: tdavid@alston.com; and Ames
Davis of Waller, Lansden, Dortch & Davis, Nashville City Center,
511 Union Street, Suite 2100, Nashville, TN 37219, Phone:
(615) 244-6380, E-mail: ames.davis@wallerlaw.com.
RILEY WINDOWS: IL Attorney General Launches Consumer Fraud Suit
---------------------------------------------------------------
Illinois Attorney General Lisa Madigan reports that a lawsuit
was initiated against a former Winnebago County window
replacement company and its owner for allegedly accepting more
than $40,000 in down payments from Illinois consumers and then
using the money to pay off the business' creditors instead of
completing the contracted home improvement projects.
Ms. Madigan's lawsuit charges Riley Windows, Inc., formerly
located in the 2400 block of South Alpine Road, in Rockford, and
James William Murray, company president and owner, with
violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act.
In just four months, between July and October 2004, Riley
Windows allegedly accepted $43,000 in down payments from more
than 50 consumers for the installation of replacement windows.
Ms. Madigan's office received complaints from consumers in
Boone, Cook, DeKalb, McHenry, Ogle and Winnebago Counties, as
well as residents of Wisconsin.
In one complaint filed with Madigan's Consumer Protection
Division, a Winnebago County consumer alleged that he had
written a check for $3,700 to Riley Windows on October 2, 2004,
as a deposit for window installation. Just a few days later, the
consumer called Riley Windows to discuss the project and found
that the company's telephone number had been disconnected. The
consumer then drove over to the company's showroom and found
that it was closed and locked. Riley Windows has not completed
the project or refunded the consumer's deposit.
The defendants allegedly failed to begin any of the projects
before closing for business on or about October 5, 2004, and
have not returned down payments to any of the consumers who
currently hold unfulfilled contracts, Ms. Madigan's lawsuit
states.
"James William Murray knew that his business was in financial
trouble, but instead of dealing honestly with his financial
problems, Mr. Murray played a `shell game' with his customers'
down payments," Ms. Madigan said. "In the end, both his
creditors and the state of Illinois caught on to this illegal
game."
Riley Windows filed for Chapter 7 bankruptcy in the Northern
District of Illinois, Western Division Bankruptcy Court on
October 14, 2005.
Ms. Madigan's lawsuit, which was filed in Winnebago County
Circuit Court, alleges Riley Windows and Mr. Murray violated
Illinois' consumer protection laws by falsely representing that
they would order and install windows for consumers, failing to
return down payments to consumers and falsely representing they
were in good business standing and able to fulfill the terms of
their contracts.
Ms. Madigan's lawsuit asks the court to prohibit the defendants
from engaging in the business of window sales and installation,
and from further violating Illinois' consumer protection laws.
The lawsuit also seeks a civil penalty of $50,000 and additional
penalties of $50,000 for each violation found to have been
committed with the intent to defraud. Additionally, Ms.
Madigan's lawsuit asks the court to order the defendants to pay
restitution to consumers. Assistant Attorney General Russell
McLaughlin is handling the case for Ms. Madigan's Consumer
Protection Division.
For more details, contact Melissa Merz, Phone: 312-814-3118 or
877-844-5461 (TTY), Web site: http://www.ag.state.il.us/.
SHAW GROUP: Asks LA Court To Dismiss Securities Fraud Lawsuit
-------------------------------------------------------------
The Shaw Group, Inc. asked the United States District Court for
the Eastern District of Louisiana to dismiss a consolidated
amended securities class action against it and certain of its
current officers.
Several purported shareholder class action lawsuits were
initially filed alleging violations of federal securities laws.
The first filed lawsuit is styled "Earl Thompson v. The Shaw
Group Inc. et al., Case No. 04-1685." The complaint alleges
claims under Sections 10(b) and Rule 10(b-5) promulgated
thereunder and 20(a) of the Securities Exchange Act of 1934 on
behalf of a class of purchasers of the Company's common stock
during the period from October 19, 2000 to June 10, 2004. The
complaint alleges, among other things, that:
(1) certain of the Company's press releases and SEC filings
contained material misstatements and omissions,
(2) that the manner in which the Company accounted for
certain acquisitions was improper and
(3) that the Company improperly recorded revenue on certain
projects, and as a result, its financial statements
were materially misstated at all relevant times.
Since the filing of the "Thompson" lawsuit, nine additional
purported shareholder class action lawsuits have been filed and
other actions may also be commenced. Each of the additional
lawsuits includes the same defendants, and essentially alleges
the same statutory violations based on the same or similar
alleged misstatements and omissions. All of these actions have
been consolidated under the Thompson caption in the Eastern
District of Louisiana and the Court has appointed a lead
plaintiff to represent the members of the purported class. The
consolidated actions have not been certified as class actions by
the Court.
The suit is styled "Thompson et al v. Shaw Group, Inc., et al,
case no. 04-CV-1685," filed in the United States District Court
for the Eastern District of Louisiana under Judge Helen G.
Berrigan.
Lawyers for the plaintiffs are:
(i) Peter E. Seidman, Milberg Weiss Bershad Hynes & Lerach
LLP, One Pennsylvania Plaza, New York, NY 10119-0165
Phone: (212) 594-5300
(ii) Lewis Stephen Kahn, Kahn Gauthier Law Group, LLC, 650
Poydras St., Suite 2150, New Orleans, LA 70130, Phone:
504-455-1400
(iii) Joel R. Waltzer, Waltzer & Associates, 14349 Chef
Menteur Hwy., P. O. Box 29423, Suite D, New Orleans, LA
70189, Phone: 504-254-4400
(iv) Darren J. Robbins, Lerach Coughlin Stoia Geller Rudman
& Robbins LLP, 401 B Street, Suite 1700, San Diego, CA
92101, Phone: 619-231-1058
(v) John Donellan Fitzmorris, Jr., John D. Fitzmorris, Jr.,
Attorney at Law, 210 Baronne St., Suite 1122, New
Orleans, LA 70112, 504-586-9395
(vi) David A. Rosenfeld, Lerach Coughlin Stoia Geller Rudman
& Robbins, LLP, 200 Broadhollow Rd., Suite 406,
Melville, NY 11747, Phone: 631-367-7100
Lawyers for the defendants are:
(a) Steven W. Copley, Gordon, Arata, McCollam, Duplantis &
Eagan LLP, 201 St. Charles Ave., Suite 4000, New
Orleans, LA 70170-4000, Phone: (504) 582-1111
(b) J. J. (Jerry) McKernan, McKernan Law Firm, 8710
Jefferson Hwy., Baton Rouge, LA 70809, Phone: 225-926-
1234
(c) Clifford Thau, Steven R. Paradise of Vinson & Elkins,
LLP, 666 Fifth Ave., 26th Floor, New York, NY 10103,
Phone: 212-237-0007
WAL-MART STORES: Execs Knew of Illegal Workers, Affidavit Says
--------------------------------------------------------------
A pair of senior Wal-Mart Stores, Inc. (NYSE: WMT) executives
knew cleaning contractors were hiring illegal immigrants, many
of whom were housed in crowded conditions and sometimes slept in
the backs of stores, according to a federal agency's affidavit
that was recently unsealed, The Associated Press reports.
The affidavit, which was filed by the Bureau of Immigration and
Customs Enforcement, was part of an investigation of the
Arkansas-based retail giant by federal immigration officials
that led to the 2003 raid on 60 Wal-Mart stores in 21 states,
and the arrests of 245 illegal workers. The retailer, which
agreed to pay $11 million in March to settle the case, continues
to maintain that top executives neither knew of nor encouraged
the practice. That claim though is being contradicted by the
recently released documents.
The bureau originally filed the affidavit to secure search
warrants for a 2003 raid on the Company's headquarters in
Bentonville, Arkansas.
The document was unsealed on November 2 by a U.S. district judge
in Fayetteville, Arkansas at the request of a New York attorney
representing more than 200 former employees in a civil lawsuit
against the world's largest retailer. In it, investigators said
that testimony and taped conversations from 2003 showed two
executives at Wal-Mart headquarters knew that contractors and
subcontractors cleaning its stores in several states employed
illegal immigrants from Eastern Europe and elsewhere.
The lawyer, James L. Linsey, who asked that the affidavit be
unsealed, said it shows Wal-Mart knew it had illegal janitors in
its stores. Mr. Linsey, who is leading a class action lawsuit on
behalf of former janitors told The Associated Press, "The sworn
testimony (in the affidavit) establishes that top Wal-Mart
executives conspired with contractors to exploit undocumented
immigrants."
Wal-Mart though denied there was any incriminating evidence in
the affidavit and told The Associated Press that the comments by
executives that it contained were "bits and pieces of
information from larger conversations."
In an e-mail to The Associated Press, Wal-Mart spokesman Marty
Heires even stated, "As we have maintained all along, no company
senior official had any direct knowledge that undocumented
workers were working in our stores."
According to the affidavit, one cleaning contractor, Christopher
Walters, told INS investigators that his company, IMC Associates
of St. Louis, had been dropped by Wal-Mart in 1997 after INS
raids in the St. Louis area found illegal workers cleaning the
retailers' stores. Mr. Walters told the INS that a Wal-Mart vice
president, identified in the affidavit as Leroy Schuetz and
Leroy Shutz, advised him to set up multiple subsidiaries so that
if one of them were found using illegal workers, he could
continue to do business with the retailer through the others.
The affidavit also said that another conversation took place in
April 2003 at Wal-Mart headquarters between Steve Bertschy, a
Wal-Mart vice president who managed maintenance of all Wal-Mart
stores, and two contractors accompanied by an undercover INS
investigator. After one of the contractors repeatedly mentioned
that many cleaning subcontractors were known to be using illegal
immigrants at Wal-Mart stores, the affidavit said Mr. Bertschy
commented: "And they load them up into one or two apartments and
they take a family of five and pay them $1,000 a week, that's
probably a dollar an hour if they're there seven days a week and
they're not paying taxes because they're not getting paid a fair
rate compared to U.S. standards, then they start stealing from
the store to make up the difference."
Federal raids in October 2003 later found immigrants crowded
into small apartments or trailers in sleeping bags and, in some
cases, sleeping in the backs of Wal-Mart stores, carrying their
personal belongings from job site to job site.
Mr. Liney's suit, filed in New Jersey, was brought a month after
the raids on behalf of 17 janitors that worked at Wal-Mart. The
janitors claimed that they were underpaid for their work, an
earlier Class Action Reporter story (October 15, 2004) reports.
The case, which spotlights what has become a very common
practice in the U.S. economy, a major employer contracting its
work to companies that are using low-paying, immigrant labor, is
pending before U.S. District Judge Joseph A. Greenaway Jr., an
earlier Class Action Reporter story (October 15, 2004) reports.
According to the Mr. Linsey, many of his clients were paid $350
a week and worked upwards of 60 hours a week without receiving
overtime pay. He further states that Wal-Mart is responsible for
all work done on its property and that whether or not the
janitors were working legally is beside the point, an earlier
Class Action Reporter story (October 15, 2004) reports.
WARNER CHILCOTT: States Launch Antitrust Suit Over Ovcon Drug
-------------------------------------------------------------
Colorado Attorney General John Suthers reports on the filing of
a civil law enforcement action against drug companies Warner
Chilcott Corporation and Barr Pharmaceuticals. The lawsuit,
which was joined by twenty-one other states, including the
District of Columbia, charges both companies with antitrust
violations that have prevented generic versions of Ovcon, a
prescription oral contraceptive, from reaching the marketplace.
"As the cost of healthcare continues to increase, generic drugs
help make those costs more manageable," said Mr. Suthers. "It
is unacceptable that two companies allegedly conspired to keep
generic drugs from reaching the public. We have joined more
than twenty states and the Federal Trade Commission to stop
these anticompetitive agreements."
The civil complaint was filed in the U.S. District Court for the
District of Columbia, and was filed in conjunction with a
similar lawsuit filed today by the Federal Trade Commission.
The lawsuit alleges that Warner Chilcott paid Barr $20 million
to keep Barr from marketing a generic version of Ovcon.
According to the lawsuit, Ovcon has been sold in the United
States since 1976 as an oral contraceptive. Warner Chilcott
became the exclusive U.S. distributor of Ovcon in early 2000.
In early 2003, Barr publicly announced that it planned to have a
generic version of Ovcon on the market by the end of that year.
The lawsuit alleges that Warner Chilcott paid Barr $1 million in
September 2003 for an option agreement designed to prevent
Barr's generic product from coming to market. Under the terms
of the alleged agreement, once Barr received FDA approval to
market generic Ovcon, Warner Chilcott had 90 days to pay Barr
$19 million, after which Barr would refuse to bring the cheaper
generic version to the market.
According to the lawsuit, Warner Chilcott exercised its option
with Barr and remains the only company in the United States that
markets Ovcon.
For more details, contact Colorado Attorney General's Office,
1525 Sherman St., 5th floor, Denver, CO 80203, Phone:
(303) 866-4500, Fax: (303) 866-5691, Web site:
http://www.ago.state.co.us/contact_us.cfm.
WEST CORPORATION: Seeks Summary Judgment in Ohio Fraud Lawsuit
--------------------------------------------------------------
West Corporation asked the Court of Common Pleas, Cuyahoga
County, Ohio to grant summary judgment in its favor in the class
action filed against West Corporation and Billy Blanks
Enterprises in the Court of Common Pleas, Cuyahoga County, Ohio.
The suit, styled "Brandy L. Ritt, et al. v. Billy Blanks
Enterprises, et al." was filed in January 2001 in the Court of
Common Pleas in Cuyahoga County, Ohio, against two of the
Company's clients. The suit, a purported class action, was
amended for the third time in July 2001 and the Company was
added as a defendant at that time. The suit, which seeks
statutory, compensatory, and punitive damages as well as
injunctive and other relief, alleges violations of various
provisions of Ohio's consumer protection laws, negligent
misrepresentation, fraud, breach of contract, unjust enrichment
and civil conspiracy in connection with the marketing of certain
membership programs offered by the Company's clients.
On February 6, 2002, the court denied the plaintiffs' motion for
class certification. On July 21, 2003, the Ohio Court of
Appeals reversed and remanded the case to the trial court for
further proceedings. The plaintiffs have filed a Fourth Amended
Complaint naming West Telemarketing Corporation as an additional
defendant and a renewed motion for class certification.
One of the defendants, NCP Marketing Group, filed bankruptcy and
on July 12, 2004 removed the case to federal court. Plaintiffs
filed a motion to remand the case back to state court. One of
the defendants moved to transfer the case from the United States
District Court for the Northern District of Ohio to the federal
Bankruptcy Court in Nevada. On October 29, 2004, the district
court referred the case to the Bankruptcy Court for the Northern
District of Ohio. On February 22, 2005, the Bankruptcy Court
for the Northern District of Ohio referred the case to the
Bankruptcy Court for the District of Nevada.
A hearing was held on August 1, 2005 in Nevada on plaintiffs'
motion to remand or for mandatory abstention. At the hearing,
the Bankruptcy Court indicated that it would grant the motion on
the grounds of permissive abstention and equitable remand. As a
result, the parties anticipate that the case will be transferred
back to the state court in Cuyahoga County, Ohio. At the
hearing, the Bankruptcy Court also tentatively approved a
settlement between the named Plaintiffs and NCP and two other
defendants, Shape The Future International LLP and Integrity
Global Marketing LLP. The Company and West Telemarketing
Corporation have filed a motion for judgment on the pleadings
and a motion for summary judgment. It is uncertain when the
motion for class certification will be ruled on or when the case
will be tried.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
November 9, 2005
CONCRETE CONSTRUCTION DEFECT LITIGATION CONFERENCE
Mealey Publications
Four Seasons Resort, Santa Barbara
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 9, 2005
C-8/PFOA SCIENCE, RISKS & LITIGATION CONFERENCE
Mealey Publications
The Four Seasons Resort, Santa Barbara, CA
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 10-11, 2005
CALIFORNIA SECTION 17200 CONFERENCE
Mealey Publications
Four Seasons Resort Santa Barbara
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 14-15, 2005
SILICA LITIGATION CONFERENCE
Mealey Publications
The Ritz-Carlton, New Orleans
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 15-16, 2005
12TH ADVANCED NATIONAL FORUM ON LITIGATING BAD FAITH AND
PUNITIVE DAMAGES
American Conferences
Fontainebleau Resort, Miami, FL, United States
Contact: http://www.americanconference.com;877-927-1563
November 17-18, 2005
ASBESTOS LIABILITY FORUM
Mealey Publications
London, England
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 17-18, 2005
Mass Torts Made Perfect Seminar
MassTortsMadePerfect.Com
Las Vegas, Nevada
Contact: 800-320-2227; 850-436-6094 (fax)
December 1-2, 2005
INSURANCE AND REINSURANCE CORPORATE COUNSEL CONFERENCE
Mealey Publications
The Fairmont Scottsdale Princess
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
October 26-27, 2005
PREVENTING AND DEFENDING WAGE & HOUR CLAIMS & CLASS ACTIONS
American Conferences
Sheraton Fisherman's Wharf Hotel, San Francisco, CA
Contact: http://www.americanconference.com;877-927-1563
December 5-6, 2005
ASBESTOS BANKRUPTCY CONFERENCE
Mealey Publications
The Ritz-Carlton New York, Battery Park
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 5-6, 2005
ADVANCED NATIONAL FORUM ON ENVIRONMENTAL INSURANCE COVERAGE AND
CLAIMS
American Conferences
The Waldorf Astoria, New York, NY
Contact: http://www.americanconference.com;877-927-1563
December 6, 2005
ASBESTOS INSURANCE CONFERENCE
Mealey Publications
The Ritz-Carlton New York, Battery Park
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 7, 2005
ASBESTOS INSURANCE CONFERENCE
Mealey Publications
The Ritz-Carlton New York, Battery Park
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 12-14, 2005
10TH ANNUAL DRUG & MEDICAL DEVICE LITIGATION CONFERENCE
American Conferences
The Waldorf Astoria, New York, NY, United States
Contact: http://www.americanconference.com;877-927-1563
December 12-13, 2005
VIOXX LITIGATION CONFERENCE
Mealey Publications
Caesars Palace, Las Vegas
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 12-13, 2005
LEAD LITIGATION CONFERENCE
Mealey Publications
The Ritz-Carlton Pentagon City, Washington DC
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
January 23-24, 2005
ADVANCED INSURANCE COVERAGE ISSUES
Mealey Publications
The Four Seasons Hotel, Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
April 5-8, 2006
INSURANCE INSOLVENCY AND REINSURANCE ROUNDTABLE
Mealey Publications
The Fairmont Scottsdale Princess, Scottsdale, AZ
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
February 16-17, 2006
ACCOUNTANTS' LIABILITY
ALI-ABA
Coral Gables, Miami, Florida
Contact: 215-243-1614; 800-CLE-NEWS x1614
May 25-26, 2006
INSURANCE COVERAGE 2006: CLAIM TRENDS & LITIGATION
Practising Law Institute
New York
Contact: 800-260-4PLI; 212-824-5710; info@pli.edu
September 28-30, 2006
LITIGATING MEDICAL MALPRACTICE CLAIMS
ALI-ABA
Boston
Contact: 215-243-1614; 800-CLE-NEWS x1614
* Online Teleconferences
------------------------
November 01-30, 2005
HBA PRESENTS: AUTOMOBILE LITIGATION: DISPUTES AMONG
CONSUMERS, DEALERS, FINANCE COMPANIES AND FLOORPLANNERS
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
November 01-30, 2005
CONSTRUCTION DISPUTES: TEXAS RESIDENTIAL CONSTRUCTION DEFECT
LIABILITY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
November 01-30, 2005
HBA PRESENTS: ETHICS IN PERSONAL INJURY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
November 01-30, 2005
IN-HOUSE COUNSEL AND WRONGFUL DISCHARGE CLAIMS:
CONFLICT WITH CONFIDENTIALITY?
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
November 01-30, 2005
BAYLOR LAW SCHOOL PRESENTS: 2004 GENERAL PRACTICE INSTITUTE --
FAMILY LAW, DISCIPLINARY SYSTEM, CIVIL LITIGATION, INSURANCE
& CONSUMER LAW UPDATES
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
November 16, 2005
HRT
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 17, 2005
FOOD LIABILITY--ADVERTISING PRACTICES
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 17, 2005
ASBESTOS BANKRUPTCY TUTORIAL
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 30, 2005
PESTICIDES
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
November 30, 2005
ASBESTOS SCREENINGS
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 6, 2005
WELDING RODS
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 7, 2005
PERCHLORATE
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 8, 2005
SSRI's TELECONFERENCE
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 14, 2005
FINITE RISK REINSURANCE
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 14, 2005
CLASS CERTIFICATION--HOW TO GET A CLASS CERTIFIED OR DEFEAT
CERTIFICATION
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 15, 2005
D&O TELECONFERENCE
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 15, 2005
PROFESSIONAL LIABILITY ISSUES
Mealey Publications
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
TORTS PRACTICE: 18TH ANNUAL RECENT DEVELOPMENTS #1
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 18TH ANNUAL RECENT DEVELOPMENTS #2
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 18TH ANNUAL RECENT DEVELOPMENTS #3
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS #1
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS #2
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS #3
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINAITON
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING WRITTEN
DISCOVERY
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
ASBESTOS BANKRUPTCY - PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com / Law Education Institute
Contact: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
Contact: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Contact: 800-285-2221; abacle@abanet.org
________________________________________________________________
The Meetings, Conferences and Seminars column appears in the
Class Action Reporter each Wednesday. Submissions via e-mail to
carconf@beard.com are encouraged.
New Securities Fraud Cases
FIRST BANCORP: Charles J. Piven Files Securities Suit in S.D. NY
----------------------------------------------------------------
The Law Offices Of Charles J. Piven, P.A., filed a securities
class action on behalf of shareholders who purchased or
otherwise acquired the common stock of First Bancorp (NYSE: FBP)
during the expanded period between October 20, 2003 and October
21, 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: Marc S. Henzel Lodges Securities Fraud Suit in NY
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action
lawsuit in the United States District Court for the Southern
District of New York on behalf of purchasers of First BanCorp
(NYSE: FBP) publicly traded securities during the period between
October 20, 2003 and August 25, 2005 (the "Class Period").
The complaint charges First BanCorp and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. First BanCorp operates as the holding company for First
Bank Puerto Rico, which provides various financial services in
Puerto Rico, the U.S. Virgin Islands, and British Virgin
Islands.
The complaint alleges that during the Class Period, defendants
issued false statements about First BanCorp's earnings, assets,
capital and prospects causing the Company's stock to trade at
artificially inflated levels. While the Company's stock price
dropped somewhat in the late spring of 2005 due to problems
announced by First BanCorp's competitors in Puerto Rico, as well
as an adverse interest rate environment, the stock soon
recovered as defendants did not own up to significant accounting
issues, such as those disclosed earlier by its competitors, and
the Company continued to report favorable financial results.
Then on August 25, 2005, the Company issued a press release
announcing that the Company had "received a letter from 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." As a result of this
disclosure, First BanCorp's stock dropped to $18.23 per share on
August 26, 2005. Later, on September 30, 2005, both the
Company's CEO and CFO suddenly announced they were resigning.
According to the complaint, during the Class Period defendants
concealed the following adverse information from the investing
public:
(1) the Company's financial statements were materially
false and misleading in that the Company had
manipulated its accounting for mortgage loans purchased
between 2000 and 2004;
(2) the Company's internal controls were grossly weak,
thereby allowing the Company's top management to
manipulate them at will;
(3) the Company's "record" quarterly income reported during
the Class Period was a product of accounting fraud,
not synergies produced by effective fiscal and
personnel management; and
(4) as a result, the Company's published financial
statements violated Generally Accepted Accounting
Principles.
For more details, contact Marc S. Henzel, Esq. of The Law
Offices of Marc S. Henzel, 273 Montgomery Ave, Suite 202 Bala
Cynwyd, PA 19004-2808, Phone (888) 643-6735 or (610) 660-8000,
Fax: (610) 660-8080, E-mail: Mhenzel182@aol.com, Web site:
http://members.aol.com/mhenzel182.
MOTIVE INC.: Marc S. Henzel Lodges Securities Fraud Suit in TX
--------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action
lawsuit in the United States District Court for the Western
District of Texas against Motive, Inc. (Nasdaq: MOTV), and
certain officers and directors.
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 Marc S. Henzel, Esq. of The Law
Offices of Marc S. Henzel, 273 Montgomery Ave, Suite 202 Bala
Cynwyd, PA 19004-2808, Phone (888) 643-6735 or (610) 660-8000,
Fax: (610) 660-8080, E-mail: Mhenzel182@aol.com, Web site:
http://members.aol.com/mhenzel182.
PIXAR ANIMATION: Marc Henzel Lodges Securities Fraud Suit in CA
---------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action
lawsuit in the United States District Court for the Northern
District of California on behalf of all persons who purchased or
otherwise acquired the securities of Pixar Animation Studios
(Nasdaq: PIXR), between January 18, 2005 and June 30, 2005,
inclusive (the "Class Period"), seeking to pursue remedies under
the Securities Exchange Act of 1934 (the "Exchange Act").
The defendants Pixar, Steve P. Jobs (Chairman and CEO), Edwin E.
Catmull (President), and Simon T. Bax (CFO and Executive VP).
are charged with violating sections 10(b) and 20(a) of the
Exchange Act, and Rule 10b-5, by issuing a series of material
misrepresentations to the market during the Class Period.
The complaint alleges that Pixar creates, develops, and produces
animated films and related products. During the Class Period,
the Company had a co-production agreement with The Walt Disney
Company ("Disney") for the development and production of
animated feature-length theatrical motion pictures. Defendants
claimed that one such film, The Incredibles, was a "Box-Office
smash hit" and would also be successful in the home video
market. According to the complaint, defendants stated, among
other things, that during the Class Period, sales of The
Incredibles home videos, including DVDs and VHS, would enable
the Company to produce earnings of at least $0.15 per share by
the second fiscal quarter of 2005. Unbeknownst to investors,
however, defendants' statements were materially false and
misleading because defendants knew, or recklessly disregarded,
that recent trends in the home video market indicated a slow
down in the sales of new home video releases and therefore,
increased returns of unsold copies from retailers that would
negatively impact the Company's earnings. In fact, according to
an article published in The Wall Street Journal, a new DVD
release would realize approximately 50-70% of its total sales in
its first week, compared to 33% and a steady increase in sales
thereafter five years ago. Defendants' response to the change in
sales trends of home videos was to flood the market with units
of The Incredibles home video, far in excess of what retailers
could sell, prior to and during the first weeks of release to
maximize sales. Defendants knew or recklessly disregarded,
however, that this strategy would result in a disproportionate
number of early sales followed by a disproportionate number of
product returns, but failed to make the necessary adjustments to
account therefor. As a result of defendants' wrongful and
illegal scheme, the price of Pixar securities became
artificially inflated during the Class Period and enabled
Company insiders, including defendants Bax and Catmull, to sell
hundreds of thousands of shares of their personally held Pixar
stock for over $27.1 million in proceeds.
On June 30, 2005, the last day of the Class Period, the Company
issued a press release lowering its second quarter 2005 earnings
guidance to $0.10 per diluted share from $0.15, the difference
of approximately $6 million in net income, as a result of
disappointing sales of The Incredibles home video units and an
increase in the Company's reserves for returns. As a result of
this news, the price of Pixar common stock fell more than $9.00
per share to $43.00 from the prior day's close of almost $52.00
per share, representing a one-day decline of over 17% on very
heavy trading volume. On August 26, 2005, defendants announced
that the SEC had commenced an investigation of Pixar in
connection with reported sales of The Incredibles DVD and that
the SEC had "requested information leading up to the filmmaker's
report earlier this month of lower second-quarter earnings." In
reaction to this news, Pixar shares fell an additional $1.01 per
share to close at below $42.00.
For more details, contact Marc S. Henzel, Esq. of The Law
Offices of Marc S. Henzel, 273 Montgomery Ave, Suite 202 Bala
Cynwyd, PA 19004-2808, Phone (888) 643-6735 or (610) 660-8000,
Fax: (610) 660-8080, E-mail: Mhenzel182@aol.com, Web site:
http://members.aol.com/mhenzel182.
PIXAR STUDIOS: Milberg Weiss Lodges Securities Fraud Suit in CA
---------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman, LLP, initiated
a class action lawsuit on behalf of all persons who purchased or
otherwise acquired the securities of Pixar Animation Studios (or
the "Company") (Nasdaq: PIXR), between January 18, 2005 and June
30, 2005, inclusive (the "Class Period"), seeking to pursue
remedies under the Securities Exchange Act of 1934 (the
"Exchange Act").
The action, Civil Action number C-05-4290JSW, is pending before
the Honorable Jeffrey S. White, in the United States District
Court for the Northern District of California against defendants
Pixar, Steve P. Jobs (Chairman and CEO), Edwin E. Catmull
(President), and Simon T. Bax (CFO and Executive VP). According
to the complaint, defendants violated sections 10(b) and 20(a)
of the Exchange Act, and Rule 10b-5, by issuing a series of
material misrepresentations to the market during the Class
Period.
The complaint alleges that Pixar creates, develops, and produces
animated films and related products. During the Class Period,
the Company had a co-production agreement with The Walt Disney
Company ("Disney") for the development and production of
animated feature-length theatrical motion pictures. Defendants
claimed that one such film, The Incredibles, was a "Box-Office
smash hit" and would also be successful in the home video
market. According to the complaint, defendants stated, among
other things, that during the Class Period, sales of The
Incredibles home videos, including DVDs and VHS, would enable
the Company to produce earnings of at least $0.15 per share by
the second fiscal quarter of 2005. Unbeknownst to investors,
however, defendants' statements were materially false and
misleading because defendants knew, or recklessly disregarded,
that recent trends in the home video market indicated a slow
down in the sales of new home video releases and therefore,
increased returns of unsold copies from retailers that would
negatively impact the Company's earnings. In fact, according to
an article published in The Wall Street Journal, a new DVD
release would realize approximately 50-70% of its total sales in
its first week, compared to 33% and a steady increase in sales
thereafter five years ago. Defendants' response to the change in
sales trends of home videos was to flood the market with units
of The Incredibles home video, far in excess of what retailers
could sell, prior to and during the first weeks of release to
maximize sales. Defendants knew or recklessly disregarded,
however, that this strategy would result in a disproportionate
number of early sales followed by a disproportionate number of
product returns, but failed to make the necessary adjustments to
account therefor. As a result of defendants' wrongful and
illegal scheme, the price of Pixar securities became
artificially inflated during the Class Period and enabled
Company insiders, including defendants Bax and Catmull, to sell
hundreds of thousands of shares of their personally held Pixar
stock for over $27.1 million in proceeds.
On June 30, 2005, the last day of the Class Period, the Company
issued a press release lowering its second quarter 2005 earnings
guidance to $0.10 per diluted share from $0.15, the difference
of approximately $6 million in net income, as a result of
disappointing sales of The Incredibles home video units and an
increase in the Company's reserves for returns. As a result of
this news, the price of Pixar common stock fell more than $9.00
per share to $43.00 from the prior day's close of almost $52.00
per share, representing a one-day decline of over 17% on very
heavy trading volume. On August 26, 2005, defendants announced
that the SEC had commenced an investigation of Pixar in
connection with reported sales of The Incredibles DVD and that
the SEC had "requested information leading up to the filmmaker's
report earlier this month of lower second-quarter earnings." In
reaction to this news, Pixar shares fell an additional $1.01 per
share to close at below $42.00.
For more details, contact Steven G. Schulman, Peter E. Seidman
or Andrei V. Rado of Milberg Weiss Bershad & Schulman, LLP, One
Pennsylvania Plaza, 49th fl., New York, NY 10119-0165, Phone:
(800) 320-5081, E-mail: sfeerick@milbergweiss.com, Web site:
http://www.milbergweiss.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Aurora Fatima Antonio and Lyndsey
Resnick, Editors.
Copyright 2005. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without
prior written permission of the publishers.
Information contained herein is obtained from sources believed
to be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *