/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/060126.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 26, 2006, Vol. 8, No. 19 Headlines AES CORPORATION: CA Court Dismisses Remanded Antitrust Lawsuit AMERICAN EXPRESS: CA Judge Remands "Berry" Case to State Court AMERICAN ITALIAN: Investors File Amended Suit over Accounting BOSTON MARKET: Judge Denies Plaintiff's Request for Class Survey BROCADE COMMUNICATIONS: CA Judge Orders Filing of Amended Suit CALIFORNIA: Judge Says Filing Date is Key to CAFA Jurisdiction COLE NATIONAL: CAFA Failure Deprives VA Court of Jurisdiction FREIGHTLINER LLC: Workers File Racketeering Lawsuit in NC HEWLETT-PACKARD CO.: IL Appeals Court Stresses CAFA Jurisdiction INTERNATIONAL BUSINESS: Workers File Overtime Pay Suit in CA IRVING OIL: Faces Lawsuit for Gasoline Price Overcharging KENTUCKY: Horsemen Mulls Suit to Recover Lost Wagering Revenues L.L. BEAN: Recalls Safety Kits with Function-intervening Magnets LIBERTY MUTUAL: IL Appeals Court Denies Appeal for Knudsen Case MORGAN STANLEY: NY Appeals Court Affirms Ruling For "Shah" Case PINNACLE FOODS: Issues Allergy Alert on Egg-containing Products PORTER-CABLE: Recalls Routers in Danger of Posing Shock Hazard SAVIENT PHARMACEUTICALS: Files Dismissal Motion V. NJ Stock Suit SHELL PIPELINE: Faces LA Suit Over Oil Pipeline Spill in Nairn SHELL PIPELINE: Faces LA Suit Over Ruptured Crude Oil Pipeline SUNDOWN ENERGY: Suit Launched in LA Over Port Sulphur Oil Spill TEXACO INC.: OH Court Declares Ratner Case as Exempt From CAFA VAPOTHERM, INC.: Recalls Contaminated Respiratory Gas Humidifier WYOMING: Casper Residents Complain of Airborne Dirt Pollution New Securities Fraud Cases AMKOR TECHNOLOGY: Goldman Scarlato Files Securities Fraud Suit AMKOR TECHNOLOGY: Schatz & Nobel Files PA Securities Fraud Suit AMKOR TECHNOLOGY: Charles J. Piven Files Securities Fraud Suit AMKOR TECHNOLOGY: Bernard Gross Files PA Securities Fraud Suit MILLS CORPORATION: Charles Piven Files Securities Fraud in VA ********* AES CORPORATION: CA Court Dismisses Remanded Antitrust Lawsuit -------------------------------------------------------------- The San Diego County Superior Court dismissed the remanded antitrust class action lawsuit filed against AES Corporation and other electric companies. In November 2000, the Company was named in a purported class action suit along with six other defendants, alleging unlawful manipulation of the California wholesale electricity market, resulting in inflated wholesale electricity prices throughout California. The alleged causes of action include violation of the Cartwright Act, the California Unfair Trade Practices Act and the California Consumers Legal Remedies Act. In December 2000, the case was removed from the San Diego County Superior Court to the U.S. District Court for the Southern District of California. On July 30, 2001, the Court remanded the case back to San Diego Superior Court. The case was consolidated with five other lawsuits alleging similar claims against other defendants. In March 2002, the plaintiffs filed a new master complaint in the consolidated action, which asserted the claims asserted in the earlier action and names as defendants the Company and: (1) AES Redondo Beach, L.L.C., (2) AES Alamitos, L.L.C., and (3) AES Huntington Beach, L.L.C. In May 2002, the case was removed by certain cross-defendants from the San Diego County Superior Court to the United States District Court for the Southern District of California. The plaintiffs filed a motion to remand the case to state court, which was granted on December 13, 2002. Certain defendants appealed aspects of that decision to the United States Court of Appeals for the Ninth Circuit. On December 8, 2004, a panel of the Ninth Circuit issued an opinion affirming in part and reversing in part the decision of the District Court, and permitting the remand of the case to state court. On July 8, 2005, defendants filed a demurrer in state court seeking for the dismissal of the case in its entirety. In October 2005, the state court dismissed the case. AMERICAN EXPRESS: CA Judge Remands "Berry" Case to State Court -------------------------------------------------------------- U.S. District Judge Alicemarie H. Stotler remanded a class action lawsuit against American Express Publishing, Corp., back to state court, citing that the aggregate value of the case to either side falls short of the Class Action Fairness Act's (CAFA) $5,000,000 threshold, according to McGlinchey Stafford of http://www.cafalawblog.com. The plaintiffs filed their suit entitled, "Berry v. American Express Publishing, Corp.," on March 3, 2005. It alleges that cardholders were charged for magazine subscriptions without their approval. The defendant would later remove the case to federal court claiming federal jurisdiction under CAFA. As a counterstrike the plaintiffs moved to remand their complaint back to state court. Judge Stotler wrote her ruling that plaintiffs contesting federal jurisdiction under CAFA have the burden of proving that the claims fall short of the law's jurisdictional amount and at the same time relying on CAFA's legislative history for support. The judge also recognized established Ninth Circuit jurisprudence opposing aggregation of claims for purposes of testing whether a suit meets the amount in controversy requirement under diversity jurisdiction. Nevertheless, CAFA's legislative history, the court concluded, reveals Congress' clear intent to allow the aggregation of claims in order to meet the jurisdictional threshold, but ruled that neither the plaintiffs nor the Company had proved at least $5,000,000 in controversy necessary to meet the CAFA threshold. The suit was styled, "Samuel A. Berry et al. v. American Express Publishing et al., Case No. 8:05-cv-00302-AHS-AN," filed in the U.S. District Court for the Central District of California, under Judge Alicemarie H. Stotler. Representing the Plaintiff/s is Matthew Hale of Matthew S Hale Law Offices, P.O. Box 1951, Newport News, VA 23601, Phone: 757-596-0309, E-mail: matthale@cox.net. Representing the Defendant/s are, Andrew W. Moritz and Scott M. Pearson of Stroock Stroock & Lavan, 2029 Century Park E, 18th Fl., Los Angeles, CA 90067-3086, Phone: 310-556-5800, Fax: 310-556-5959; and Gerald S. Ohn of CAAG - Office of Attorney General, 300 South Spring St., Suite 1702, Los Angeles, CA 90013, Phone: 213-897-9176, E-mail: gerald.ohn@doj.ca.gov. For more details, visit: http://researcharchives.com/t/s?49c. AMERICAN ITALIAN: Investors File Amended Suit over Accounting ------------------------------------------------------------- Shareholders of American Italian Pasta, Inc. filed on Jan. 20, 2005 an amended complaint against the company over alleged financial manipulation, according to Reuters. The suit filed in the U.S. District Court of Kansas City accuses the company of improper inventory, underreporting marketing allowances paid to distributors and improperly capitalizing costs that should have been listed as expenses. Shareholders have filed lawsuits against American Italian since August, the time when the firm started reviewing its accounting practices. Seven suits were consolidated in December. Two months earlier, American Italian said it is withdrawing financial results for the last three years because they contained errors in accounting for product promotion and overhead costs. In the recent filing, plaintiffs say the firm overstated revenues and earnings, and understated expenses by least 66%. It is seeking class action status for the period Jan. 23, 2002 and Aug. 17, 2005 inclusive. The revelations led to the resignation of co-chief executive officer Timothy Webster, founder Richard Thompson, and chairman Horst Schroeder, though he remained a board member. "We are aware that the lawsuit is just that, an allegation of wrongdoing, yet it seems to suggest a pattern of behavior that, if proven, represents a massive fraud," Timothy Ramey, an analyst at D.A. Davidson & Co., wrote in a research note, according to the report. Shares in the company lost more than 40% on Jan. 24 after Mr. Ramsey highlighted the suit in the research note, and downgraded the company to "underperform" from "neutral." Under the consolidation of the suits in December, U.S. District Judge Ortrie Smith also designated three Iron Workers' Union locals as lead plaintiffs. The ironworkers' locals had used Kent T. Perry & Co. LC of Overland Park for local counsel. Judge Smith accepted Perry & Co.'s motion to make the New York law firm of Pomerantz Haudek Block Grossman & Gross lead counsel. The judge then gave Pomerantz Haudek 30 days to file an amended complaint on behalf of all plaintiffs (Class Action Reporter, Dec. 21, 2005). The complaints alleged that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, the complaint alleges that The Company failed to disclose or misrepresented that the Company failed to properly expense $6.6 million in promotional allowances and deduction receivables, that the Company failed to take timely write-downs for spare parts inventory, that the Company maintained inadequate reserves for slow moving, damaged, and discontinued inventories, the Company failed to record $1.9 million in certain fixed asset retirements, and that as a result the Company's financials were not prepared in accordance with Generally Accepted Accounting Principles, an earlier Class Action Reporter story (October 5, 2005) reports. On August 9, 2005, after the market closed, Pasta announced a $60.7 million charge and an SEC inquiry into the Company's results. Specifically, the Company stated the SEC was investigating it for unspecified restatements and for transactions in the Company's stock by outsiders in late 2004 and early 2005, for which the Company had received inquiries from the New York Stock Exchange and the Philadelphia Stock Exchange. In addition, Pasta's Audit Committee is conducting an internal investigation of certain accounting procedures, an earlier Class Action Reporter story (October 5, 2005) reports. The suit is styled, "In re American Italian Pasta Company Securities Litigation, Case No. 4:05-cv-00725-ODS," filed in the United States District Court for the Western District of Missouri, under Judge Ortrie D. Smith. Plaintiff firms involved in the case: (1) Abbey Gardy, LLP, 212 East 39th St., New York, NY, 10016, Phone: 212-889-3700, E-mail: info@abbeygardy.com; (2) Federman & Sherwood, 120 North Robinson, Suite 2720, Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail: wfederman@aol.com; (3) Kaplan Fox & Kilsheimer, LLP (New York, NY), 805 Third Ave., 22nd Floor, New York, NY, 10022, Phone: 212-687- 1980, Fax: 212-687-7714, E-mail: info@kaplanfox.com; (4) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore,401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410-332-0030, E-mail: pivenlaw@erols.com; (5) Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, 200 Broadhollow, Suite 406, Melville, NY, 11747, Phone: 631-367-7100, Fax: 631-367-1173, E-mail: info@lerachlaw.com; (6) Schatz & Nobel, P.C., 330 Main St., Hartford, CT, 06106, Phone: 800-797-5499, Fax: 860-493-6290, E-mail: sn06106@AOL.com; (7) Schiffrin & Barroway, LLP, 3 Bala Plaza E., Bala Cynwyd, PA, 19004, Phone: 610-667-7706, Fax: 610-667- 7056, E-mail: info@sbclasslaw.com; (8) Schneider & Wallace, 180 Montgomery St., Suite 2000, San Francisco, CA, 94104, Phone: (415) 421-7100, Fax: (415) 421-7105, E-mail: info@schneiderwallace.com; (9) Shepherd, Finkelman, Miller & Shah, LLC, 35 East State St., Media, PA, 19063, Phone: 877-891-9880, Fax: jshah@classactioncounsel.com; (10) Smith & Smith, LLP, 3070 Bristol Pike, Suite 112, Bensalem, PA, 19020, Phone: 215-638-4847, Fax: 215-638- 4867; and (11) Stull, Stull & Brody (New York), 6 East 45th St., New York, NY, 10017, Phone: 310-209-2468, Fax: 310-209- 2087, E-mail: SSBNY@aol.com. BOSTON MARKET: Judge Denies Plaintiff's Request for Class Survey ---------------------------------------------------------------- In the litigation entitled, "Rippee v. Boston Market Corp.," U.S. Magistrate Judge Jan M. Adler denied the plaintiff's request to conduct a class survey during expedited discovery to determine the amount in controversy, finding that, under the Class Action Fairness Act of 2005 (CAFA), "Jurisdictional discovery . . . should be `sufficiently tailored' to lead to information concerning the jurisdictional issue," according to McGlinchey Stafford of http://www.cafalawblog.com. The suit was originally filed in state court, but was later removed by the defendant to the U. S. District Court for the Southern District of California. After its removal the District Court ordered the parties to engage in expedited discovery over a 90-day period in order to discern the true amount in controversy. The plaintiff then requested the authority to conduct the class survey and obtain the names and contact information for all of the class members during the expedited discovery period. Judge Adler first noted that the amount in controversy is generally decided from the face of the complaint, however, if the amount is not facially apparent, the court should consider the facts in the removal pleadings as well as evidence submitted by the parties. She then looked to CAFA's legislative history for additional guidance, noting, "According to the Report of the Senate Committee on the Judiciary on CAFA, the requirement under CAFA that the amount in controversy exceed $5,000,000 in the aggregate may be established `either from the viewpoint of the plaintiff or the viewpoint of the defendant, and regardless of the type of relief sought (e.g., damages, injunctive relief, or declaratory relief).'" The judge concluded that, since the burden of establishing jurisdiction was on the defendant, and not the plaintiff, had to provide the factual basis supporting its assertion that the amount in controversy exceeded the $5 million minimum under CAFA. Since the burden was on the defendant and not the plaintiff, there was no supporting reason to allow the plaintiff to conduct a class survey or obtain the requested demographic information at this stage of the litigation. In a footnote of her opinion, Judge Adler notes that U.S. District Judge Barry Ted Moskowitz, in a previous hearing, concluded that the defendant carried the burden of establishing federal jurisdiction, and declined to lift the burden from its traditional keeper, the party invoking the federal court's jurisdiction, and place it on the party opposing removal, despite CAFA's legislative history and other decisions to the contrary. Another factor weighing against allowing the plaintiff to conduct a class survey cited by Judge Adler was the clear Congressional intent that there should not be in-depth jurisdictional discovery, again referred to CAFA Senate Report No. 109-14, in which the Senate Judiciary Committee noted, "allowing substantial, burdensome discovery on jurisdiction issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions." In denying the plaintiff's request for a class survey in connection with the expedited discovery on the amount in controversy, the court concludes, "Allowing a class survey during the period of expedited discovery, while the Court's jurisdiction remains unsettled, would be contrary to the principle of limited discovery as provided under existing case law and in the Senate Judiciary Committee Report on CAFA." For more details on this complaint, visit: http://researcharchives.com/t/s?497. BROCADE COMMUNICATIONS: CA Judge Orders Filing of Amended Suit -------------------------------------------------------------- A California judge ordered the filing of consolidated amended securities fraud complaint against Brocade Communications Systems, Inc. by March 2006. Beginning on or about May 19, 2005, several securities class action complaints were filed against the Company and certain of its current and former officers. These actions were filed on behalf of purchasers of the Company's stock from February 2001 to May 2005. These complaints were filed in the United States District Court for the Northern District of California. The securities class action complaints allege, among other things, violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and promulgated thereunder. The complaints seek unspecified monetary damages and other relief against the defendants. The complaints generally allege that the Company and the individual defendants made false or misleading public statements regarding the Company's business and operations. These lawsuits followed the Company's restatement of certain financial results due to stock-based compensation accounting issues. On January 12, 2006, the Court appointed a lead plaintiff and lead counsel and ordered that a consolidated complaint be filed by March 3, 2006. The first identified suit is styled, "Prena Smajlaj, et al. v. Brocade Communication Systems, Inc., et al., Case No. 05-CV- 2042," filed in the U.S. District Court for the Northern District of California. Plaintiff firms in this or similar case: (1) Brodsky & Smith, LLC, 11 Bala Ave., Suite 39, Bala Cynwyd, PA, 19004, Phone: 610.668.7987, Fax: 610.660.0450, E-mail: esmith@Brodsky-Smith.com; (2) Dyer & Shuman, LLP, 801 East 17th Ave., Denver, CO, 80218-1417, Phone: 303.861.3003, Fax: 800.711.6483, E- mail: info@dyershuman.com; (3) Law Offices of Brian M. Felgoise, P.C., 261 Old York Road, Suite 423, Jenkintown, PA, 19046, Phone: 215.886.1900, E-mail: securitiesfraud@comcast.net; (4) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com; (5) Lerach Coughlin Stoia Geller Rudman & Robbins LLP (San Diego), 401 B St., Suite 1700, San Diego, CA, 92101, Phone: 206.749.5544, Fax: 206.749.9978, E-mail: info@lerachlaw.com; (6) Murray, Frank & Sailer, LLP, 275 Madison Ave., 34th Flr., New York, NY, 10016, Phone: 212.682.1818, Fax: 212.682.1892, E-mail: email@murrayfrank.com; (7) Schatz & Nobel, P.C., 330 Main St., Hartford, CT, 06106 Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com; (8) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com; (9) Scott & Scott LLC, P.O. Box 192, 108 Norwich Ave., Colchester, CT, 06415, Phone: 860.537.5537, Fax: 860.537.4432, E-mail: scottlaw@scott-scott.com; (10) Spector, Roseman & Kodroff (Philadelphia), 1818 Market St., Suite 2500, Philadelphia, PA, 19103, Phone: 215.496.0300, Fax: 215.496.6610, E-mail: classaction@srk-law.com; (11) Stull, Stull & Brody (New York), 6 East 45th St., New York, NY, 10017, Phone: 310.209.2468, Fax: 310.209.2087, E-mail: SSBNY@aol.com; (12) Wechsler Harwood, LLP, 488 Madison Ave., 8th Floor, New York, NY, 10022, Phone: 212.935.7400, Fax: info@whhf.com; and (13) Wolf Haldenstein Adler Freeman & Herz, LLP, 270 Madison Ave., New York, NY, 10016, Phone: 212.545.4600, Fax: 212.686.0114, E-mail: newyork@whafh.com. CALIFORNIA: Judge Says Filing Date is Key to CAFA Jurisdiction -------------------------------------------------------------- A California federal district judge, presiding on the case entitled, "Bush v. Cheaptickets, Inc.," declared that the date of filing, rather than the date of removal, is the key to Class Action Fairness Act (CAFA) jurisdiction, according to McGlinchey Stafford of http://www.cafalawblog.com. Plaintiffs filed the putative class action involving online travel services in California state court on February 17, 2005, the day before President Bush signed CAFA into law. Relying on CAFA, the defendants removed the action to federal court. The district court, in deciding to remand the action to state court, pointed to "Pritchett v. Office Depot, Inc., 404 F.3d 1232 (10th Cir. 2005)," and declared that the "date of commencement," for CAFA purposes, refers to the original state court filing date rather than the date of removal to federal court. It further concluded that CAFA's "plain language and legislative history" underscore that the word "commenced" in the statute limits CAFA's application to actions originally filed on or after the date of enactment, and not before. The suit is styled, "Ronald Bush et al v. Cheaptickets Inc. et al., Case No. 2:05-cv-02285-PA-VBK," filed in the U.S. District Court for the Central District of California under Judge Percy Anderson with referral to Judge Victor B. Kenton. Representing the Plaintiff/s are, Sabrina S. Kim and Jeff S. Westerman of Milberg Weiss Bershad and Schulman, LLP, 355 South Grand Ave., Suite 4170, Los Angeles, CA 90071, Phone: 213-617-1200, Fax: 213-617-9185, E-mail: skim@milbergweiss.com. Representing the Defendant/s are, Gordon A. Greenberg of McDermott Will & Emery, 2049 Century Park E, 34th Fl., Los Angeles, CA 90067-3208, Phone: 310-277-4110, Fax: 310-277-4730. For more details, on this complaint visit: http://researcharchives.com/t/s?498. COLE NATIONAL: CAFA Failure Deprives VA Court of Jurisdiction ------------------------------------------------------------- In the suit entitled, Holland v. Cole National Corp., a Virginia federal court ruled that plaintiff's failure to plead the Class Action Fairness Act's (CAFA) $5,000,000 minimum deprived it of subject matter jurisdiction, according to McGlinchey Stafford of http://www.cafalawblog.com. Letha Holland and other representatives of a putative class brought the suit in U.S. District Court for the Western District of Virginia against Cole National Corp., the owner of the Sears Optical retail stores. In the suit, plaintiffs alleged fraudulent conduct by employees related to the sale of extended warranties and kits for eyeglasses, including Racketeer Influenced and Corrupt Organizations Act (RICO) and Magnusson- Moss claims. Citing lack of federal jurisdiction to hear the case, the Company filed motions to dismiss for lack of personal jurisdiction and failure to state a claim. The Company maintains that there were no valid federal questions and an insufficient amount in controversy to meet the $75,000 minimum amount requirements under 28 U.S.C. Section 1332. The opinion, which in reality is a Report and Recommendation from the Magistrate Judge, recommends that the district court grant the motion to dismiss for failure to state a claim and dismiss the suit. Most of the opinion is devoted to the court's determination that the RICO and Magnusson-Moss warranty claims were without merit and should be dismissed, however, the Magistrate Judge does consider the federal court's subject matter jurisdiction under CAFA. Although the class had far more than 100 members and the diversity requirements of CAFA were clearly met, the court determined that the plaintiffs did not allege more than $5 million in actual damages, so there was no federal jurisdiction, even under CAFA. Plaintiffs argued that potential damages for the class could be greater than $5 million in view of the Company's gross sales and the potentially thousands of class members, however, according to the court opinion, they failed to specifically allege damages in excess of $5 million in their complaint, which they could have easily done as the "masters of their claims." That failure was found to preclude federal jurisdiction under CAFA, since the $5,000,000 minimum amount in controversy requirement was not met. Additionally, in the opinion, the Magistrate Judge included an extensive analysis of pre-CAFA case law prohibiting aggregation of claims to meet the jurisdictional minimum amount in controversy threshold, and seemed to ignore CAFA's express allowance of claims aggregation. The plaintiffs presumably could have survived the motion to dismiss by alleging that there was more than $5,000,000 in controversy, which would have supported original federal jurisdiction under CAFA. The suit is styled, "Holland v. Cole National Corp. et al., Case No. 7:04-cv-00246-jct-mfu," filed in the U.S. District Court for the Western District of Virginia under Judge James C. Turk with referral to Judge Michael F. Urbanski. Representing the Plaintiff/s are John Eric Lichtenstein, Devon James Munro and John Palmer Fishwick, Jr. of LICHTENSTEIN, FISHWICK & JOHNSON, PLC, POST OFFICE BOX 601, ROANOKE, VA 24004-0601, Phone: 540-343-9711 and 540-343-5890, Fax: 540-343-9713 and 540-345-5789, E-mail: jel@vatrials.com, devon@vaonline.com and jpf@vaonline.com. Representing the Defendant/s are Richard Cullen and Earle Duncan Getchell, Jr. of MCGUIREWOODS, LLP, Phone: 434-977-2500 and 804-775-1000, Fax: 804-698-2061 and 775-1061. FREIGHTLINER LLC: Workers File Racketeering Lawsuit in NC --------------------------------------------------------- Five autoworkers from three major facilities filed a class- action federal racketeering lawsuit against the United Auto Workers (UAW) union and Daimler-Chrysler subsidiary Freightliner LLC. The workers, who announced the lawsuit on Jan. 24 at a press conference outside of UAW headquarters in Detroit, allege an illegal scheme to install a "company union" and repeated violations of workers' rights. The workers are pursuing the case with free legal aid from the National Right to Work Foundation. The lawsuit is filed in the U.S District Court for the Western District of North Carolina under the Racketeer Influenced and Corrupt Practice Act (RICO). It alleges a pattern of violations of longstanding federal law that bars employers from delivering "things of value" to unions. The RICO statutes are used to prosecute criminal enterprises, e.g., organized crime, gang activities, and union corruption. The complaint outlines a secret quid pro quo arrangement between Freightliner and the UAW in which union officials agreed in advance to significant concessions at the expense of the Freightliner workers at its non-union facilities in North Carolina in exchange for valuable company assistance in organizing those workers. Specifically, Freightliner and the UAW union expressly agreed to limitations on wages, cancellation of an employee profit sharing bonus, an increase in the health care costs shouldered by employees, and other concessions. These actions effectively handed certain control of the union over to the company. UAW officials outlined their lengthy list of concessions in a once- secret document titled "Preconditions to Card Check Procedure." In a related case, the National Labor Relations Board's General Counsel already found the preconditions to be illegal. In return, Freightliner agreed to provide valuable organizing assistance outlined in a document titled "Card Check Procedure," including holding compulsory "captive audience" meetings on company time during which union organizers could propagandize employees, granting wide access to unsuspecting employees, and not making any negative comments about unionization. Freightliner also denied employees secret ballot elections when choosing whether to unionize. The "Card Check Procedure" required Freightliner to automatically recognize the union when organizers present the requisite number of signed authorization cards. In such "top down" organizing drives, employees are frequently coerced or misled into signing such "authorization" cards, which are then counted as "votes" in favor of unionization. Workers have also complained that signed cards are difficult to revoke. "To get help in coercing thousands of workers into union ranks and to obtain at least $1 million in annual dues revenues, UAW officials sold out the very workers they sought to represent," said National Right to Work Foundation Vice President Stefan Gleason. "It takes tremendous courage for workers to stand up to pressure from both their employer and the union brass, and the National Right to Work Foundation is proud to stand with them." The suit lists four counts of RICO violations regarding the enforcement of these corrupt arrangements against the employees of certain Freightliner facilities. The employees seek financial restitution to all employees at the Mount Holly, Gastonia, and Cleveland, North Carolina, facilities in the form of treble damages for all dues seized and earnings lost as a result of the unlawful pact. Additional Freightliner plants known to be covered by the secret agreement are located in High Point, North Carolina, and Gaffney, South Carolina. For more information, contact: Justin Hakes, Phone: 703-770-3317; Stefan Gleason, Phone: 703-856-7399. HEWLETT-PACKARD CO.: IL Appeals Court Stresses CAFA Jurisdiction ---------------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit stresses that the Class Action Fairness Act of 2005 (CAFA) does not apply to removed cases originally filed in state court before CAFA's effective date, according to McGlinchey Stafford of http://www.cafalawblog.com. Judge Frank Easterbrook noted that the trend toward removing such actions in the opening line of his opinion in "Schorsch v. Hewlett-Packard Company," "Ever since Congress enacted the Class Action Fairness Act of 2005 defendants have been trying to remove suits that were pending in state court on February 18, 2005, although the statute applies only to suits `commenced' after that date." The Seventh Circuit rejected similar removal attempts in "Knudsen v. Liberty Mutual Insurance Co., No. 05- 8010 (7th Cir. June 7, 2005)" and in "Pfizer, Inc. v. Lott, No. 05-8013 (7th Cir. August 4, 2005)." Although the rule may seem ironclad, Judge Easterbrook did note that the variance among states regarding when a suit is deemed to have been filed. While a federal suit is "commenced" when filed, Judge Easterbrook explained that states differ considerably regarding the conditions that must be met for an action to "commenced" there. Nonetheless, the suit filed against Hewlett Packard in Illinois State Court in 2003 didn't satisfy CAFA upon removal. "Knudsen and Pritchett hold, and we reiterate, that creative lawyering will not be allowed to smudge the line drawn by the 2005 Act: class actions `commenced' in state court on or before February 18, 2005, remain in state court." The Seventh Circuit rejected the argument that redefining the class commenced a new action, especially where the same underlying transaction is at issue: "Amendments to class definitions do not commence new suits." The suit is styled, "Schorsch v. Hewlett-Packard Company," a petition for leave to appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, Case No. 1:05-cv-03397, Judge Ruben Castillo presiding. Representing the Plaintiff/s is Richard N. Kessler, Attorney at Law, 640 North LaSalle St., Suite 590, Chicago, IL 60610, Phone: (312) 280- 0111, E-mail: rkessler@hkgold.com. Representing the Defendant/s is Michael Joseph Hayes of McGuireWoods, LLP, 77 West Wacker Drive, Suite 4100, Chicago, IL 60601, Phone: (312) 372-1121, E- mail: mhayes@bellboyd.com. For more details on this case, visit: http://researcharchives.com/t/s?49b. INTERNATIONAL BUSINESS: Workers File Overtime Pay Suit in CA ------------------------------------------------------------ Current and former employees of International Business Machine Corporation (IBM) filed a nationwide class action in the U.S. District Court in San Francisco charging the computer giant with failure to pay overtime wages in violation of federal and state labor laws. The suit, "Rosenburg, et al. v. IBM," was filed by attorneys from Lieff Cabraser Heimann & Bernstein, LLP, Lewis Feinberg Renaker & Jackson, P.C., Rudy, Exelrod & Zieff, LLP, and Outten & Golden LLP and others on behalf of IBM technical employees. The company employs more than 250,000 workers. The proposed class includes tens of thousand of systems administrators, network technicians and other technical staff throughout the United States. "IBM's employees, including tens of thousands of technical support workers, work hard to build the company's annual sales of more than $90 billion," said Lieff Cabraser partner James M. Finberg. "These technical workers deserve to get compensated for the long hours they put in to make IBM successful." Mr. Finberg noted that this case constitutes one of the largest class action lawsuits, both in numbers of employees and total damages, ever filed against a corporation for failure to pay overtime wages. The complaint charges that IBM unlawfully characterizes its employees who install and maintain computer software and equipment as "exempt" under state and federal labor laws in order to deprive them of overtime pay. The proposed classes consist of current and former IBM technical support workers with the primary duties of installing and/or maintaining computer software and hardware for IBM who were wrongly classified by the company as exempt from the overtime provisions of federal law and/or applicable state wage and hour laws. "The lawsuit seeks to affirm the principle that software and hardware installation and maintenance employees, including IT staff, are entitled to protection under federal and state overtime pay laws," said Steven G. Zieff, a partner with Rudy, Exelrod & Zieff. "A corporation cannot avoid paying overtime wages simply by providing a fancy sounding title to workers who are entitled to overtime pay under the law." Plaintiff Exaldo Topacio, 40, was a technical support worker for IBM in its New York Network Support division responsible for installing and maintaining computer software and hardware for the company. "There were many occasions when I was required to work in excess of 40 hours a week -- but I never received overtime pay for this. "What they did to me and other tech support workers is simply unfair. I worked hard for the company, and was not compensated for all the hours I put in for IBM," said Topacio who left IBM in 2004 and now runs his own small construction business. Lewis Feinberg Renaker & Jackson, P.C. principal Todd F. Jackson said: "Workers are entitled to overtime pay unless they fall under a specific legal exemption, such as computer programmers who develop software. The plaintiffs and class members in this lawsuit are responsible for installing software and maintaining computer networks, not developing new software. They do not qualify for the software development exemption, or any other exemption, under wage and hour laws." "Ironically, IBM recruits employees by touting that it is a company 'where you can find work/life balance and make a difference,'" said Adam T. Klein of Outten & Golden LLP. "We believe the evidence will show that IBM failed to comply with its basic obligation to pay its employees fairly and in accordance with the law." The plaintiffs are asking the federal court to issue an injunction requiring IBM to provide overtime pay to eligible employees as well as compensation and damages to current and former employees who were denied overtime. In addition to the law firms listed above, the plaintiffs are also represented by the Los Angeles firm of Spiro, Moss, Barness, Harrison & Barge, LLP; the Dallas firm of Lee & Braziel, LLP; the Houston firm of Bruckner Burch, PLLC; and the Oakland firm of Goldstein, Demchak, Baller, Borgen & Dardarian. Plaintiffs' attorney, Phone: 1-866-397-1008; Web site: http://www.overtimepaylawsuitagainstIBM.com;Press contact: James M. Finberg of Lieff Cabraser Heimann & Bernstein, LLP, Phone: 415-956-1000; or Todd F. Jackson of Lewis Feinberg Renaker & Jackson, P.C., Phone: 510-839-6824; or Steven G. Zieff of Rudy, Exelrod & Zieff, LLP, Phone: 415-434-9800 or 800-869-0165; or Adam T. Klein of Outten & Golden LLP, Phone: 212-245-1000; Ira Spiro of Spiro, Moss, Barness, Harrison & Barge, LLP, Phone: 310-235-2468; or J. Derek Braziel of Lee & Braziel, LLP, Phone: 214-749-1400; or Richard Burch of Bruckner Burch, PLLC, Phone: 713-877-8065; or David Borgen of Goldstein, Demchak, Baller, Borgen & Dardarian, Phone: 510-763-9800. IRVING OIL: Faces Lawsuit for Gasoline Price Overcharging --------------------------------------------------------- Option consommateurs and Ms. Ginette Bechard filed a motion for authorization to institute a class action against Irving Oil on Jan. 20. According to the Petitioners, the oil company overtaxed gasoline prices. The Fuel Tax Act requires Quebec consumers to pay a tax of a few cents for each liter of fuel they purchase. The law also provides for a lower rate of tax in border regions in order to take into account competition between gas stations on both sides of the border. This tax is also reduced in regions termed "peripheral" or "designated". However, on May 25, 2004, the Court of Appeal ordered Irving Oil to reimburse $884,779.00 in overcharged taxes. In its judgment, the Court reveals that from January 1993 to December 1997, the oil company charged customers taxes, which were higher than what was permitted under the law at its service stations located near the Quebec/New Brunswick border. The oil company would have done the same thing in other regions. This was a repeat offence. Indeed, in 1993, the multinational corporation was ordered to remit over $188,000.00 to Revenue-Quebec for a similar infraction. In so doing, Irving Oil would have contravened not only the Fuel Tax Act, but also the Competition Act, the Consumer Protection Act and the Civil Code of Quebec. Consumers would thereby have incurred losses caused by the multinational. The class action aims at compensating consumers. Option consommateurs and Mrs. Ginette Bechard are represented by Eric David of the firm Beauregard and Partners, and David Schulze of Hutchins Grant & Partners. For further information, contact: Jannick Desforges, Head of the legal department, Option consommateurs, Phone: (514) 598-7288. KENTUCKY: Horsemen Mulls Suit to Recover Lost Wagering Revenues --------------------------------------------------------------- A national horsemen association is considering legal options, possibly a class action, to stop signal piracy and to channel back to their account revenue from wagering on Thoroughbred racing, according to BloodHorse. The National Horsemen's Benevolent and Protective Association, received a proposal from the Louisiana HBPA to pursue such a plan. Louisiana HBPA Sean Alfortish estimates revenue lost to illegal wagering at billions of dollars. Kent Stirling is the executive director of the Florida HBPA. According to the report, national HBPA affiliate representatives admitted horsemen have lost control over the signals and revenue, even in the United States. They receive revenue from source-market fees, but are unable to get their part in other deals official hosts enter into. L.L. BEAN: Recalls Safety Kits with Function-intervening Magnets ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with L.L. Bean of Freeport, Maine is voluntarily recalling about 4,100 units of auto safety kit, auto aid in a bottle, winter safety kit, and outdoorsman in a bottle. Consumers are advised to stop using recalled products immediately. The commission says the products have a flashlight that relies on a powerful magnet and copper coil for manual recharging. The magnet adversely affects the polarity of the compass rendering it unreliable. The magnet could be powerful enough to disrupt a heart patient's Implantable Cardiac Defibrillator (ICD). The product's packaging lacks appropriate warning information. There have been no reported incidents or injuries related to the product. Each kit contains a variety of safety equipment including a "Forever Flashlight," which does not use batteries. Shaking the flashlight for 30 seconds provides about 5 minutes of light. The Outdoorsman in a Bottle kit contains a compass. Other items which could be included in the kits include gloves, a blanket, emergency vest, a water bottle, a rain poncho and a knife. L.L. Bean is written on the bottle or blanket with these kits. The product was manufactured in the U.S. and sold by L.L. Bean's stores, catalogs and Web sites from August 2005 through November 2005 for between $20 and $60. Consumers with recalled kits should contact L.L. Bean immediately to receive a free warning label for the flashlight. Consumers with Outdoorsman in a Bottle kits will receive a free replacement compass/whistle. Consumer Contact: L.L. Bean, Phone: (800) 555-9717 between 8:30 a.m. and 4:30 p.m. ET Monday through Friday; Web site: http://www.llbean.com. LIBERTY MUTUAL: IL Appeals Court Denies Appeal for Knudsen Case --------------------------------------------------------------- In denying the defendant's appeal in the case styled, "Knudsen, et al. v. Liberty Mutual Insurance Company," the U.S. Court of Appeals for the Seventh Circuit ruled that new class definition does not equal "commencement" for Class Action Fairness Act (CAFA) purposes, but hints at other modifications that might, according to McGlinchey Stafford of http://www.cafalawblog.com. Dr. Kirsten Knudsen initially filed the class action lawsuit in Illinois State Court back in 2000 against Liberty Mutual Insurance Company. The Company removed it to the U.S District Court for the Northern District of Illinois, after adoption of CAFA, based in part on the plaintiffs' expansion of the class definition to include customers of a new corporate entity not a party to the case. The District Court later returned the case back to the State Court, based upon its finding that 2000 came before 2005. The Company petitioned the Seventh Circuit for leave to appeal, arguing that that while 2000 does in fact precede 2005, the act of removing the action to the Federal Court created a new action. Hence, it argues that the Federal Court should hear the removed action, because it was commenced after the effective date of the statute. However, Judge Frank Easterbrook, who wrote the opinion of the court proclaimed that "Deconstructionist tactics do not permit its evasion", and denied the petition for leave to appeal. He also addressed the possibility that plaintiffs' class action lawyers would similarly circumvent the underlying purpose of CAFA by perpetually amending actions brought before February of 2005. Judge Easterbrook also wrote that the Company "paints a picture of crafty lawyers tending a garden of pre-2005 class actions, in which they plant new claims by amendment so that the 2005 Act never comes into play. As we have already hinted, however, a new claim for relief (a new "cause of action" in state practice), the addition of a new defendant, or any other step sufficiently distinct that courts would treat it as independent for limitations purposes, could well commence a new piece of litigation for federal purposes even if it bears an old docket number for state purposes. Removal practice recognizes this point: an amendment to the pleadings that adds a claim under federal law (where only state claims had been framed before), or adds a new defendant, opens a new window of removal." The suit is styled, "Kirsten Knudsen, et al. v. Liberty Mutual Insurance Company, No. 05-8010," a petition for leave to appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 05 C 01849, Judge Ruben Castillo presiding. Representing the Plaintiff/s is Robert A. Holsten of Holstein Law Offices, LLC, 19 South LaSalle, Suite 1500, Chicago, IL 60603, Phone: (312) 906-8000. Representing the Defendant/s is George Mario Velcich of Belgrade & O'Donnell, PC, 20 North Wacker, Suite 1900, Chicago, IL 60606, Phone: (312) 422-1700, E-mail: gvelcich@bodpc.com. For more details on this complaint, visit: http://researcharchives.com/t/s?499. MORGAN STANLEY: NY Appeals Court Affirms Ruling For "Shah" Case --------------------------------------------------------------- In this securities fraud appeal for the case, "Shah v. Meeker, 04-5965," the U.S. Court of Appeals for the Second Circuit affirmed a district court ruling and holds that all investors should read Fortune Magazine, according to Robert Loblaw of http://appellatedecisions.blogspot.com/. Following on the heels of New York Attorney General Eliot Spitzer, many investors who lost money during the "dot com" bust sued brokerage houses claiming that their analysts were biased in favor of corporate clients. Most of these cases met little success, as courts routinely hold that the two-year statute of limitations for such claims has expired. In this case, plaintiff Sandip Shah claimed that he did not discover Morgan Stanley's fraudulent practices until Mr. Spitzer's investigation in 2002, so that his 2003 class action lawsuit was timely. Specifically, Mr. Shah is the lead plaintiff for a putative class of holders of publicly traded Morgan Stanley common stock purchased between July 1, 1999 and April 10, 2002. He is appealing the dismissal by the United States District Court for the Southern District of New York of his securities fraud action against the Company, its subsidiary Morgan Stanley & Co., Inc., its chairman and Chief Executive Officer, Philip J. Purcell, and senior analyst and managing director of Morgan Stanley & Co., Inc., Mary Meeker. According to court documents, defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), as well as the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. 78u-4(b), and to strike certain allegations pursuant to Federal Rule of Civil Procedure 12(f). Finding that plaintiff was on inquiry notice more than two years before filing suit, the district court concluded that the claims were time-barred and granted defendants' motion to dismiss the complaint. The Second Circuit affirmed the district court and pointed to several articles in the financial press that should have put investors on inquiry notice of the Company's practices. In particular, a 2001 Fortune article provided a detailed basis for each of the claims that Mr. Shah now advances. Since, Mr. Shah filed suit more than two years after that article appeared, he and the other putative class members are out of luck. For more details, visit: http://researcharchives.com/t/s?49e. PINNACLE FOODS: Issues Allergy Alert on Egg-containing Products --------------------------------------------------------------- Pinnacle Foods Group Inc. of Mountain Lakes, N.J. is recalling certain Frozen Aunt Jemima Cinnamon French Toast 12.5 oz. cartons and Frozen Aunt Jemima 'Home Style' Low Fat Waffles 20 oz. cartons. These products were manufactured with egg that is not listed on the carton. People who have an allergy or severe sensitivity to egg may run the risk of a serious or life-threatening allergic reaction if they consume this product. This voluntary recall was initiated after the Company received an email from a consumer informing the Company that egg was not listed on the carton. Retail Carton Code Description Recommend Use By Date Retail Label Weight (lot codes on or after are the issue) 19600-05130 AJ Low Fat Homestyle Waffle - 20 oz. Nov. 17, 2006 19600-05890 AJ French Toast Cinnamon - 12.5 oz. June 12, 2006 Consumers allergic to or have a severe sensitivity to eggs are advised not to consume these products. Products may be returned to the store where they were purchased for a full refund. The products are safe for people not allergic to eggs. This warning does not apply to any other Aunt Jemima frozen ready-to-eat items or other Aunt Jemima products such as pancake mixes or syrups. Consumer contact, Phone: 1-800-554-5680. PORTER-CABLE: Recalls Routers in Danger of Posing Shock Hazard -------------------------------------------------------------- The U.S. Consumer Product Safety Commission and Porter-Cable of Jackson, Tenn., are recalling about 70,000 units of Porter-Cable 890 Series Routers. Consumers are advised to stop using the recalled products. The company says the motor coil insulation of the routers can be worn away by vibration from the motor, which could pose a shock hazard. No incidents or injuries have been reported. The recalled Porter-Cable routers are tools used in conjunction with various bits to cut and shape wood. The model and serial numbers are printed on the nameplate on the top of the router. Routers marked with a "T" above "PORTER+CABLE" on the nameplate are not included in this recall. Model No. Porter-Cable Product Name Serial Number 891 2 1/4 Peak HP Gripvac(TM) Router 10001 through 24647 892 2 1/4 Peak HP Router Kit 10001 through 68442 893PK 2 1/4 Peak HP Multibase Router Kit 10001 through 68442 894PK 2 1/4 Peak HP Multibase Router Kit with Gripvac(TM) Attachment 10001 through 24647 895PK 2 1/4 Peak MP Multibase Router Kit with Router Table Height Adjuster 10001 through 68442 8902 2 1/4 Peak HP Variable-Speed Motor 10001 through 68442 The products, which were manufactured in the U.S., is sold in major home improvement stores and hardware stores nationwide from September 2003 through December 2005 for between $180 and $269. Consumers are advised to stop using the recalled routers immediately and contact Porter-Cable for a free inspection, and repair if necessary. Consumer contact: Porter-Cable (http://www.porter-cable.com), Phone:(800) 949-6348 (toll-free) between 8 a.m. and 6 p.m. CT Monday through Friday. SAVIENT PHARMACEUTICALS: Files Dismissal Motion V. NJ Stock Suit ---------------------------------------------------------------- Savient Pharmaceuticals, Inc. (NASDAQ: SVNTE), a specialty pharmaceutical company dedicated to developing, manufacturing and marketing novel therapeutic products that address unmet medical needs, filed a motion to dismiss a second amended securities fraud complaint pending in a New Jersey federal court. On December 20, 2002, a purported shareholder class action was filed against the Company and three of its former officers. The action is pending under the caption "In re Bio-Technology General Corp. Securities Litigation," in the U.S. District Court for the District of New Jersey. Plaintiff alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and seeks unspecified compensatory damages. The plaintiff purports to represent a class of shareholders who purchased shares of the Company between April 19, 1999 and August 2, 2002. The complaint asserts that certain of the Company's financial statements were materially false and misleading because the Company restated its earnings and financial statements for the years ended 1999, 2000 and 2001, as described in the Company's Current Report on Form 8-K dated, and its press release issued, on August 2, 2002. Five nearly identical actions were filed in January and February 2003, in each instance claiming unspecified compensatory damages. In September 2003, the actions were consolidated and co-lead plaintiffs and co-lead counsel were appointed in accordance with the Private Securities Litigation Reform Act. The parties subsequently entered into a stipulation, which provided for the lead plaintiff to file an amended consolidated complaint. Plaintiffs filed such amended complaint and the Company filed a motion to dismiss the action. On August 10, 2005, citing the failure of the amended complaint to set forth particularized facts that give rise to a strong inference that the defendants acted with the required state of mind, the Court granted the Company's motion to dismiss the action, without prejudice, and granted plaintiffs leave to file an amended complaint. On October 11, 2005 the plaintiffs filed a second amended complaint, again seeking unspecified compensatory damages, purporting to set forth particularized facts to support their allegations of violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by the Company and its former officers. On December 13, 2005 the Company filed a motion to dismiss the second amended complaint. The first identified suit is styled, "AFIK Holding SPRL, et al. v. Bio-Technology General Corp., et al., Case No. 02-CV-6048," filed in the U.S. District Court for the District of New Jersey, under Judge Harold A. Ackerman. Plaintiff firms in this or similar case: (1) Berman DeValerio Pease Tabacco Burt & Pucillo (FL), 515 North Flagler Drive - Suite 1701, West Palm Beach, FL, 33401, Phone: 561.835.9400; (2) Cauley Geller Bowman Coates & Rudman LLP (Little Rock, AR), P.O. Box 25438, Little Rock, AR, 72221-5438, Phone: 501.312.8500, Fax: 501.312.8505; (3) Chitwood & Harley, 1230 Peachtree St., N.E., 2900, Promenade II, Atlanta, GA, 30309, Phone: 888.873.3999; (4) Dekel-Sabo Law Office, Twin Towers 1, 33 Jabotinsky St., Ramat Gan, Phone: 972.3.6133310, Fax: 972.3.6133321, E-mail: dekel-sabo@isdn.net.il; (5) Glancy and Binkow of 1801 Avenue of the Stars, Suite 311, Los Angeles, CA, 90067, Phone: 310-201-9150, E- mail: info@glancylaw.com; (6) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com; (7) Murray, Frank & Sailer, LLP, 275 Madison Ave., 34th Flr., New York, NY, 10016, Phone: 212.682.1818, Fax: 212.682.1892, E-mail: email@murrayfrank.com; (8) Schatz & Nobel, P.C., 330 Main St., Hartford, CT, 06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com; and (9) Spector Roseman & Kodroff (San Diego), 1818 Market St., Suite 2500, Philadelphia, PA, 19103, Phone: 215.496.0300, Fax: 215.496.6611. SHELL PIPELINE: Faces LA Suit Over Oil Pipeline Spill in Nairn -------------------------------------------------------------- Shell Pipeline Company, LP faces a class action lawsuit that is seeking damages arising out of the release of petroleum products from its pipeline in Plaquemines Parish, Louisiana in conjunction with Hurricane Katrina, according to McGlinchey Stafford of http://www.hurricanelawblog.com/. The suit was filed in the U.S. District Court for the Eastern District of Louisiana. Named as plaintiffs in the suit are, Anna Z. Zibilich Lincoln, John J. Pennison, Jr., K.J. Johnson and Harold J. Treadaway, Jr., who are all residents of Plaquemines Parish. The class is defined as all property owners of Plaquemines Parish, who have had real or personal property damaged and/or irrevocably destroyed as a result of the negligent release of substantial quantities of petroleum hydrocarbons onto property and waters near the Company's pipelines and transportation systems at Nairn, Louisiana within Plaquemines Parish. According to the complaint, there are common issues of law and fact as to: (1) Whether the Company is liable to the Plaquemines Parish residence for negligently allowing the release of substantial quantities of petroleum hydrocarbons into and onto property owned by individuals who live in or about Nairn, Louisiana; (2) Whether the Company is liable to the claimants for failure to contain the spill; (3) Whether the Company is liable pursuant to Louisiana Code Article 2317 for damage to property of the people of Plaquemines Parish; (4) The Company's negligence is ultimately found to prolong the time, which claimants cannot return to their property; (5) Whether the claimants' property is permanently damaged so that their property's fair market value is diminished; and (6) The extent of damages caused by the defendant's negligence. The suit is styled, Lincoln et al v. Shell Pipeline Company LP, Case No. 2:05-cv-04197-GTP-DEK," filed in the U.S. District Court for the Eastern District of Louisiana, under Judge G. Thomas Porteous, Jr. with referral to Judge Daniel E. Knowles. Representing the Plaintiff/s is Scott R. Bickford of Martzell & Bickford, 338 Lafayette St., New Orleans, LA 70130, Phone: (504) 581-9065, E-mail: usdcedla@mbfirm.com. For more details, visit: http://researcharchives.com/t/s?4a1. SHELL PIPELINE: Faces LA Suit Over Ruptured Crude Oil Pipeline -------------------------------------------------------------- Shell Pipeline, LLC and Shell Pipeline, LP faces a class action lawsuit over the release of petroleum products from a crude oil pipeline in lower Plaquemine Parish, Louisiana that ruptured during Hurricane Katrina and caused damage to several properties in the area, according to McGlinchey Stafford of http://www.hurricanelawblog.com/. The suit was filed in the U.S. District Court for the Eastern District of Louisiana. Plaintiffs in the suit are Frank, Clara, Kevin and Greta Frelich; Leo Roth, Vincent Frelich, Sr., Janice Ferach; and Robin and Hewitt Gauthier, all residents of Plaquemines Parish. According to the suit, the pipeline rupture and resulting spill was proximately caused by the acts and omissions of defendants for the following reasons: (1) Breach of legally imposed duty of reasonable care; (2) Failure to maintain their pipeline; (3) Failing to shut in the pipeline and remove all crude oil from within the pipeline; (4) Violation of applicable portions of the oil Pollution Act of 1990, as set forth in 33 U.S.C. 2701, et. esq., thus constituting negligence per se; (5) Violation of certain provisions of the Code of Federal Regulations, which require defendants to take necessary and appropriate steps to avoid the spillage of crude oil; (6) Failure to follow its own procedures for prevention of the crude oil spill; and (7) Failing to form, implement, follow or comply with defendant's internal policies and procedures, as set forth by defendants and/or as required by governmental agencies in disaster evacuation planning reporting requirements. The suit is styled, "Frelich et al. v. Shell Pipeline LLC et al., Case No. 2:05-cv-04199-GTP-DEK," filed in the U.S. Dsitrict Court for the District of Louisiana under Judge G. Thomas Porteous, Jr. with referral to Judge Daniel E. Knowles, III. Representing the Plaintiff/s is Patrick Wayne Pendley of Pendley Law Firm, 24110 Eden St., P.O. Drawer 71, Plaquemine, LA 70765- 0071, Phone: 225-687-6396, E-mail: pwpendley@pendleylawfirm.com. For more details, visit: http://researcharchives.com/t/s?4a0. SUNDOWN ENERGY: Suit Launched in LA Over Port Sulphur Oil Spill --------------------------------------------------------------- Sundown Energy, LP faces a class action lawsuit that is seeking damages arising out of the release of petroleum products from its storage facilities near Port Sulphur within Plaquemines Parish, Louisiana in conjunction with Hurricane Katrina, according to McGlinchey Stafford of http://www.hurricanelawblog.com/. Filed in the U.S. District Court for the Eastern District of Louisiana, the suit's plaintiffs are Roy and Margaret Blanchard; Christopher and Glenda Jenkins, who are owners of the "Cajun Kitchen Plaquemines, Inc.;" LF. Hingle, Jr.; and Kathleen and Allen Ketnoe. The class is defined a all property owners of Plaquemines Parish, who have had a real or personal property damaged and/or irrevocably destroyed as a result of the negligent release of substantial quantities for petroleum hydrocarbons onto property in or near Port Sulphur, Louisiana in the are known as West Potash Field (or Slater Field.) According to the complaint, there are common issues of law and fact as to: (1) Whether the Company is liable to the Plaquemines Parish residence for negligently allowing the release of substantial quantities of petroleum hydrocarbons into and onto property owned by the residents and/or business owners of Plaquemines Parish; (2) whether the Company is liable to the claimants for failure to contain the spill; (3) whether the Company is liable pursuant to Louisiana Code Article 2317 for damage to movable and immovable property of the claimants; (4) the Company's negligence is ultimately found to prolong the time which claimants cannot return to their property; (5) whether the claimants' property is permanently damaged so that their property's fair market value is diminished; and (6) the extent of damages caused by the defendant's negligence. The suit is styled, "Blanchard et al. v. Sundown Energy, LP, Case No. 2:05-cv-04198-ILRL-SS," filed in the U.S. District Court for the Eastern District of Louisiana, under Judge Ivan L. R. Lemelle with referral to Judge Sally Shushan. Representing the Plaintiff/s is Scott R. Bickford of Martzell & Bickford, 338 Lafayette St., New Orleans, LA 70130, Phone: (504) 581-9065, E- mail: usdcedla@mbfirm.com. Representing the Defendant/s is Carl David Rosenblum of Jones Walker (The Woodlands), 10001 Woodloch Forest Dr., Suite 350, The Woodlands, TX 77380, Phone: 281-296-4552, E-mail: crosenblum@joneswalker.com. For more details, visit: http://researcharchives.com/t/s?49f. TEXACO INC.: OH Court Declares Ratner Case as Exempt From CAFA -------------------------------------------------------------- An Ohio federal court declared that a state case filed the day before the Class Action Fairness Act's (CAFA) effective date is not covered by the new law, since it was "commenced" before CAFA's enactment. Joel Ratner filed the putative class action lawsuit in Ohio State Court on February 17, 2005, one day before CAFA's effective date, against Texaco, Inc., Shell Oil and others, raising two Ohio state law claims. Mr. Ratner limited the class definition to himself and all other similarly situated Ohio residents. The defendant oil companies filed their notice of removal on April 11, 2005, claiming jurisdiction under CAFA, as it amended 28 U.S.C. 1332(d). The Tenth Circuit had previously faced a similar issue -- when is an action "commenced" under CAFA -- in the now familiar "Pritchett v. Office Depot". As in the Pritchett case, Mr. Ratner argued that the action was "commenced" when suit was initially filed in state court, and Texaco and Shell responded, as in Pritchett, that the action was "commenced" when it was removed to federal court. The oil company defendants attempted to distinguish the Pritchett case as being "at odds with both the weight of authority and with the purpose and structure of [CAFA]", an argument quickly disposed of by the court. Essentially, the court applied the "plain and ordinary meaning" for the disputed term "commenced" in determining that the date of commencement of the civil action was the date the complaint was initially filed in state court. The balance of the decision contained similar reasoning to and extensive citations from the Pritchett case. In it's ruling the Court also rejected the plaintiff's attempt to recover attorney's fees for the alleged improper removal by the defendants. The suit is styled, "Ratner v. Texaco Inc. et al., Case No. 1:05-cv-00946-LW," filed in the U.S. District for the Northern District of Ohio, Eastern Division, under Judge Lesley Wells. Representing the Plaintiff/s are, Daniel R. Karon of Goldman, Scarlato & Karon, Ste. 1500, 55 Public Square, Cleveland, OH 44113, US, Phone: 216-622-2995, Fax: 216-622-1852, E-mail: dkaron@gsk-law.com. Representing the Defendant/s are, Thomas J. Collin of Thompson Hine, 3900 Key Center, 127 Public Square, Cleveland, OH 44114, Phone: 216-566-5509, Fax: 216-566-5800, E- mail: Tom.Collin@ThompsonHine.com; and Thomas Demitrack of Jones Day, North Point, 901 Lakeside Ave., Cleveland, OH 44114, Phone: 216-586-7141, Fax: 216-579-0212, E-mail: tdemitrack@jonesday.com. For more details, visit: http://researcharchives.com/t/s?49d. VAPOTHERM, INC.: Recalls Contaminated Respiratory Gas Humidifier ---------------------------------------------------------------- Vapotherm, Inc. is recalling its Vapotherm(R) 2000i and 2000h respiratory gas humidifier after the FDA received reports of Vapotherm units becoming contaminated with Ralstonia spp, and other bacteria. The Vapotherm 2000i and 2000h respiratory gas administration delivers moisture to and warms breathing gases through a flexible nasal tube for patients receiving supplemental oxygen. The environments of use include home, hospital or sub-acute institutional settings. A statement from the FDA says exposure to Ralstonia spp bacteria may cause patients to develop tracheitis (infection of the trachea), sepsis (infection in the bloodstream), pneumonia (lung infection), or other serious infections. There is a reasonable probability that immuno-compromised patients or premature newborns could develop pneumonia, sepsis and in the most severe cases, death. The FDA recommends the use of alternative devices until the source of the contamination has been identified. In October 2005, Vapotherm issued new procedures for disinfecting the Vapotherm(R) 2000i and 2000h humidifiers, but these procedures have not been effective in eliminating Ralstonia spp. contamination in the devices. Patients who have been exposed to the Vapotherm system should be monitored for signs and symptoms that may suggest infection, which may include, but are not limited to: (1) changes in temperature; (2) poor feeding, irritability; and (3) changes in hematologic indices. Clinicians may want to consider Ralstonia infection in the differential diagnosis of symptomatic patients even if the organism has not been isolated. Public contact: David Lain, Chief Regulatory Officer, Vapotherm, Inc., 198 Log Canoe Circle, Stevensville, MD 21012, Phone: 410-604-3977. WYOMING: Casper Residents Complain of Airborne Dirt Pollution ------------------------------------------------------------- Residents of Robertson Road met at the Oregon Trail School gymnasium on Jan. 23 to discuss the dirt problem caused by a nearby construction work, The Casper Star-Tribune reports. Between 80 and 100 homeowners are complaining about the dust that are blown off around the naturally windy area of Casper from the activities of property developer IGC Management. They said the particles ruined properties, from carpets to cars. Developer Kevin Keller told the assembly his firm complied with the city of Casper's dust control standards, using plastic snow fences and tackifier system to control the spread of dirt. According to the report, when the crowd realized IGC is beyond fault, they turned to the City of Casper and the City Council for a solution. Casper City Councilwoman Barb Peryam, who attended the forum, said the council will look at the issue. It is meeting Feb. 7, 2006. During the course of the meeting, there were whispers and rumors of a class action, according to the report. Many wanted to know if they could be compensated for the damages caused by the dirt. For more information, call Jesse (last name unknown), the manager of Casper Construction, Phone: (307) 277-5505; Kevin Keller, owner of IGC Management, Phone: (307) 637-7641. New Securities Fraud Cases AMKOR TECHNOLOGY: Goldman Scarlato Files Securities Fraud Suit -------------------------------------------------------------- Goldman Scarlato & Karon, P.C. initiated class action in the United States District Court for the Eastern District of Pennsylvania, on behalf of persons who purchased or otherwise acquired publicly traded securities of Amkor Technology Inc. (AMKR) between Oct. 27, 2003 and July 1, 2004, inclusive. The lawsuit was filed against Amkor and certain officers and directors. The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, the complaint alleges that Defendants issued a series of false and misleading statements with respect to the Company's financial performance. These statements are alleged to be false and misleading because Defendants failed to disclose and misrepresented that: (1) the Company was forcing its customers to accept delivery of inventory well in excess of demand for those products; (2) the Company was experiencing rapidly increasing costs, negatively impacting upon margins; and (3) the Company stuffed its distribution channel ahead of a note offering in order to inflate operating results. Starting April 27, 2004, Amkor began issuing press releases announcing potential problems. On that date the Company indicated it was experiencing weakness for its cell phone products. Amkor shares reacted negatively to the news, falling from $13.42 per share to $9.16 per share, or 31.7%. Then on July 1, 2004, Amkor announced that it would not meet its expected guidance for net income in the second quarter of 2004. Shares reacted negatively again, falling from $8.18 per share to $5.79 per share, a one-day decline of 29.2%. Then on Aug. 22, 2005, Amkor announced that the Securities and Exchange Commission issued a formal order of investigation concerning trading in the Company's securities. If you bought Amkor securities between October 27, 2003 and July 1, 2004, inclusive, and would like to obtain information about the lawsuit, then you are invited to call (888) 753-2796 to speak with an advisor. For more information, contact Mark S. Goldman, Esq. of Goldman Scarlato & Karon, P.C., Phone: 888-753-2796. AMKOR TECHNOLOGY: Schatz & Nobel Files PA Securities Fraud Suit --------------------------------------------------------------- Schatz & Nobel, P.C. initiated a lawsuit seeking class action status in the United States District Court for the Eastern District of Pennsylvania on behalf of all persons who purchased the common stock of Amkor Technology, Inc. (AMKR) between Oct. 27, 2003 and July 1, 2004, inclusive. Also included are those who purchased Amkor in a secondary offering on November 6, 2003. The Complaint alleges that defendants violated federal securities laws by issuing a series of materially false statements regarding Amkor's financial condition. Specifically, defendants failed to disclose that: (1) Amkor was stuffing its customers with inventory far in excess of demand and, as a result, future sales would be impacted; (2) Amkor was experiencing rapidly rising material costs which were far in excess of budgeted material costs, thereby negatively impacting profit margins; and (3) Amkor had stuffed its distribution channels prior to its note offering in order to artificially inflate the Company's operating results so that the Company could raise $152 million. On April 27, 2004, Amkor issued a press release announcing that the Company was experiencing weakness for its cell phone products. On this news, Amkor common stock fell from $13.42 to $9.16 per share. Then, on July 1, 2004, Amkor announced that it could not meet its expected guidance for net income in the second quarter of 2004. In response to this announcement, the price of Amkor common stock declined from $8.18 to $5.79 per share. The Securities and Exchange Commission has also issued a formal order of investigation concerning certain transactions in the Company's securities by insiders or former insiders and persons associated with them. Contact Schatz & Nobel (http://www.snlaw.net),Phone: (800) 797-5499 (toll-free); E-mail: sn06106@aol.com. AMKOR TECHNOLOGY: Charles J. Piven Files Securities Fraud Suit -------------------------------------------------------------- Charles J. Piven, P.A. initiated a securities class action on behalf of shareholders who purchased, converted, exchanged or otherwise acquired the common stock of Amkor Technology, Inc. (AMKR) between Oct. 27, 2003 and July 1, 2004, inclusive. The case is pending in the United States District Court for the Eastern District of Pennsylvania against defendant Amkor 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 information, contact: Charles J. Piven, P.A. The World Trade Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202; E-mail: hoffman@pivenlaw.com; Phone: 410/986-0036. AMKOR TECHNOLOGY: Bernard Gross Files PA Securities Fraud Suit -------------------------------------------------------------- Bernard M. Gross, P.C. initiated a class action (numbered 06- 0298) in the United States District Court for the Eastern District of Pennsylvania, before the Honorable Louis H. Pollak, on behalf of purchasers of Amkor Technology Inc. (AMKR) securities between Oct. 27, 2003 and July 1, 2004. The action is pending against defendants Amkor Technology, Inc., James J. Kim, chief executive officer, Kenneth T. Joyce, chief financial officer, John N. Boruch, president and chief operating officer during the class period until January 2004 and Bruce Freyman, president and chief operating officer from January, 2004 to August, 2004. The Complaint (available at http://www.bernardmgross.com) charges defendants with violations of the Securities Exchange Act of 1934. The complaint alleges that during the class period defendants issued a series of materially false and misleading statements regarding the Company's increasing financial performance. These statements were each materially false and misleading when made because they failed to disclose and/or misrepresented these adverse facts, among others: (1) that the Company was stuffing its customers with inventory far in excess of demand for the products and, as a result, customer inventories were rising above historical levels such that future sales would be impacted; (2) that the Company was experiencing rapidly rising material costs which were far in excess of budgeted material costs, thereby negatively impacting the Company's profit margins; (3) that the Company had stuffed its distribution channels prior to its note offering in order to artificially inflate the Company's operating results so that the Company could successfully raise $152 million; and (4) as a result of the foregoing, Defendants' positive statements about the Company and its business were lacking in a reasonable basis at all times and therefore materially false and misleading. On Oct. 27, 2003, the start of the class period, Amkor issued a press release announcing that the company had returned to profitability. Then, on April 27, 2004, Amkor issued a press release announcing that the Company was experiencing weakness for its cell phone products. Upon this news, the price of Amkor common stock declined on extremely heavy trading volume. On July 1, 2004, Amkor issued a press release announcing that it could not meet its expected guidance for net income in the second quarter of 2004. In response to this announcement the price of Amkor common stock declined from $8.18 per share to $5.79 per share on extremely heavy trading volume of 17.2 million shares. Then, on Aug. 22, 2005, Amkor issued a press release announcing that the Securities and Exchange Commission issued a formal order of investigation concerning certain trading in Amkor securities. The SEC investigation relates to transactions in the Company's securities by certain individuals, including certain insiders or former insiders and persons associated with them. Plaintiff seeks to recover damages on behalf of Class members and is represented by Law Offices Bernard M. Gross, P.C. For more information, contact: Bernard M. Gross PC, Phone: 866-561-3600 (toll free). MILLS CORPORATION: Charles Piven Files Securities Fraud in VA ------------------------------------------------------------- Charles J. Piven, P.A. initiated a securities class action on behalf of shareholders who purchased, converted, exchanged or otherwise acquired the common stock of The Mills Corp. (MLS) between Aug. 14, 2003 and Jan. 6, 2006, inclusive. The case is pending in the United States District Court for the Eastern District of Virginia. 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 information, contact: Charles J. Piven, P.A., The World Trade Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202, E-mail: hoffman@pivenlaw.com, Phone: 410/986-0036. ********* 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, Teena Canson and Lyndsey Resnick, Editors. Copyright 2006. 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. 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