/raid1/www/Hosts/bankrupt/CAR_Public/060330.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, March 30, 2006, Vol. 8, No. 64
Headlines
AMERADA HESS: N.J. Court Denies Dismissal Motion V. Stock Suit
AMERIQUEST MORTGAGE: Court Dismisses Third-Party Class Claims
ANHEUSER-BUSCH: Underage Drinking Suits' Claims, Status Vary
AON CORP: Ill. Court Mulls Final Approval for Suit Settlement
AXIS CAPITAL: Consolidated Stock Suit Drags On in N.Y.
AXIS CAPITAL: Faces Insurance Brokerage Antitrust Suit in N.J.
BC FERRY: Operator Faces Lawsuit Over Accident in Hartley Bay
BLUEHIPPO FUNDING: Md. Customers Sue Over Undelivered Computers
BRADLEY PHARMACEUTICALS: N.J. Court Allows Securities Fraud Suit
CALIFORNIA: Plaintiffs File Injunction V. High School Exit Exam
CHECKPOINT SYSTEMS: Antitrust Litigation Status Hearing Set
CLAYTON HOMES: Ark. Court Remands "Meredith" Back to State Court
CROSS COUNTRY: Calif. Court Denies Certification to Labor Suit
CROSS COUNTRY: Continues to Face Calif. Suit Over Unpaid Wages
FIDELITY FEDERAL: Allows Suit Filed by Fla. Motorists to Proceed
FIDELITY WARRANTY: S.C. Court Refuses to Remand "Chavis" Case
FLEETWOOD ENTERPRISES: Faces Calif. Suits Over Folding Trailers
FORTUNE BRANDS: Continues to Face Suits Over Underage Drinking
FORTUNE BRANDS: Ohio Court Dismisses Consolidated Consumer Suit
HILLENBRAND INDUSTRIES: Settlement Hearing Set June 14, 2006
INFINITY PROPERTY: Could Face Policyholders' Lawsuit in Ark.
INFINITY PROPERTY: Settles Several Suits Over Total Loss Claims
IPO LITIGATION: Settlement Hearing Set Next Month in N.Y. Court
KNIGHT-RIDDER INC: Settlement of MDL-1379 Litigation Challenged
LONG ISLAND: New Plaintiffs Emerge in Suit Over Power Surcharges
MARYLAND: Fourth Circuit Rules in 1998 Racial Profiling Case
MERCURY INSURANCE: May 2006 Trial Date Set for "Goodman" Case
MICROSOFT CORP: Hearing Set for $350M Antitrust Suit Settlement
NC SOFT: Korean Virtual Games Developer Sued for Identity Theft
NEIMAN MARCUS: Plaintiffs Voluntarily Dismiss Tex. Stock Suit
NOVARTIS PHARMACEUTICALS: Facing Suit Over Ritalin in Australia
OHIO: April Conference Set for Steubenville Traffic Camera Suit
PFIZER INC: Sued Over Alleged Off-Labeling Marketing of Lipitor
PENNSYLVANIA: Suit Over Venango County Park Operations Continue
RECORD COMPANIES: Blamed for Increases in Internet Music Prices
SLG GROUP: Accused of Segregating Blacks in Alabama Cemeteries
SMITHKLINE BEECHAM: 49 States Receive $14M in Paxil Litigation
TYSON FOODS: High Court Rules Out $1.28B Damages in Pickett Suit
UNITEDHEALTH GROUP: Ark. Court Rules on "Commencement" Issue
UNITED STATES: Ranchers Claim New Pricing Law Undervalues Meat
ZURICH FINANCIAL: Insurance Issues to Cost Millions of Dollars
New Securities Fraud Cases
H&R BLOCK: Bruce G. Murphy Files Securities Fraud Suit in Miss.
MERGE TECHNOLOGIES: Pomerantz Haudek Files Stock Suit in Wis.
MERGE TECHNOLOGIES: Schatz & Nobel Files Securities Suit in Wis.
NORTHFIELD LABORATORIES: Charles Piven Lodges Stock Suit in Ill.
NORTHFIELD LABORATORIES: Rosen Law Files Securities Suit in Ill.
PAINCARE HOLDINGS: Murray Frank Lodges Securities Suit in Fla.
PAINCARE HOLDINGS: Schiffrin & Barroway Files Stock Suit in Fla.
PHH CORP: Federman & Sherwood Lodges Securities Lawsuit in N.J.
*********
AMERADA HESS: N.J. Court Denies Dismissal Motion V. Stock Suit
--------------------------------------------------------------
The U.S. District Court for the District of New Jersey denied
Amerada Hess Corporation's motion to dismiss a consolidated
class action filed against it and certain of its current and
former executive officers, which is styled, "In re Amerada Hess
Corporation Securities Litigation."
The suit alleged that these individuals sold shares of the
Company's common stock in advance of its acquisition of Triton
Energy Limited (Triton) in 2001 in violation of federal
securities laws.
In April 2003, the Company and the other defendants filed a
motion to dismiss for failure to state a claim and failure to
plead fraud with particularity. On March 31, 2004, the court
granted the defendants' motion to dismiss the complaint. The
plaintiffs were granted leave to file an amended complaint.
Plaintiffs filed an amended complaint in June 2004. In August
2004, defendant moved to dismiss the plaintiffs' amended
complaint. In June 2005, this motion was denied.
The suit was styled, "In re Amerada Hess Corporation Securities
Litigation, Case No. 2:02-cv-03359-JAG-MCA," filed in the U.S.
District Court for the District of New Jersey under Judge Joseph
A. Greenaway, Jr. with referral to Judge Madeline C. Arleo.
Representing the plaintiffs is Peter S. Pearlman of Cohn,
Lifland, Pearlman, Herrmann & Knopf, LLP, Park 80, Plaza West
One, Saddle brook, NJ 07663, Phone: (201) 845-9600, E-mail:
PSP@njlawfirm.com.
Representing the defendants is Edward T. Kole of Wilentz,
Goldman & Spitzer, Esqs., 90 Woodbridge Center Drive, Suite 900
- Box 10, Woodbridge, NJ 07095-0958, Phone: (732) 636-8000, E-
mail: ekole@wilentz.com.
AMERIQUEST MORTGAGE: Court Dismisses Third-Party Class Claims
-------------------------------------------------------------
The U.S. District Court for the District of South Carolina ruled
in the suit "Deutsche Bank Nat'l Trust Co. v. Tyner, No. 05-
2449, 2006 WL 83052 (D.S.C. Jan. 10, 2006)," that:
-- class claims filed in a third-party complaint were
improper, and thus,
-- cannot provide grounds for removal under the Class
Action Fairness Act (CAFA) of 2005.
According to McGlinchey Stafford of http://www.cafalawblog.com/,
Judge David C. Norton, in his written opinion, specifically
ruled that a defendant in a state court case could not
procedurally assert class claims as a third-party demand under
Rules 14 and 19 of the Federal Rules of Civil Procedure.
In this matter, Deutsche Bank initially filed a foreclosure suit
in state court against Thomas and Jennifer Tyner arising out of
a loan assigned to Deutsche Bank. In addition to filing an
answer and counterclaim, the Tyners filed a third-party class
claim against Ameriquest, the original holder of the mortgage
loan. Ameriquest removed the case to federal court under the
Class Action Fairness Act of 2005 and then questioned, among
other things, the validity of the third-party class claims. The
Tyners subsequently moved to remand the case to state court.
Since the court held that the third-party class claims were not
proper under Federal Rules 14 or 19, Judge Norton did not
address specific jurisdictional issues involving CAFA. However,
the court expressly noted that if the class claims were proper
under Rules 14 or 19, that is, that they stemmed from facts that
were "substantially the same" as the primary issues, then
removal would probably be appropriate pursuant to CAFA's
jurisdictional and removal rules, specifically citing 28 U.S.C.
Section 1453 and 28 U.S.C. Section 1332(d). Moreover, Judge
Norton opined that Ameriquest could not remove the action
claiming diversity jurisdiction under 28 U.S.C. 1441 and 1332,
since the original defendants -- the Tyners -- did not want to
remove the case to federal court. Accordingly, the court
dismissed the third party class claims, and remanded the case
back to the state court from whence it came.
For more details visit: http://ResearchArchives.com/t/s?718
(Tyner Opinion).
ANHEUSER-BUSCH: Underage Drinking Suits' Claims, Status Vary
------------------------------------------------------------
Anheuser-Busch Companies, Inc. is defendant in several class
actions in both state and federal courts over underage drinking.
In 2004, the Company and another defendant were served a
complaint brought by two individuals seeking to bring a class
action on behalf of all California residents who, while they
were under 21 years of age, purchased alcohol beverages
manufactured during the last four years.
The suit sought disgorgement of unspecified profits earned by
the Company in the past and other unspecified damages and
equitable relief. By order dated January 28, 2005, the
California state court granted the defendants judgment on the
pleadings and dismissed the case in its entirety. The
plaintiffs in that action have appealed.
Additionally, the Company was served with similar complaints in
putative class actions in Michigan, Ohio, Wisconsin and West
Virginia. In these suits, which name a large number of other
brewers and distillers, the parents of illegal underage drinkers
are suing to recover the sums that their offspring purportedly
spent illegally buying alcohol from persons or entities other
than the defendants.
The claims asserted against the Company vary depending on the
suit, but include negligence, unjust enrichment, violation of
the state's Sales Practice Act or other statutory provisions,
nuisance, fraudulent concealment and civil conspiracy.
The suit filed in Michigan includes a claim under the Michigan
Consumer Protection Act. Each suit seeks money damages,
punitive damages and injunctive and equitable relief, including
so-called disgorgement of profits allegedly attributable to
illegal underage drinking.
The Company removed the Ohio case to federal court in the
Northern District of Ohio in June 2004, removed the West
Virginia case to federal court in the Northern District of West
Virginia in May 2005 and removed the Michigan case to federal
court in the Eastern District of Michigan in July 2005. The
Company filed motions to dismiss the Ohio and Wisconsin cases,
and the Ohio federal court and the Wisconsin state court
dismissed the entire cases with prejudice.
A motion to dismiss is pending in Michigan. Similar actions were
filed in New York and Florida, but the Company was not served in
either case, and the plaintiffs in the Florida case have
voluntarily dismissed it.
AON CORP: Ill. Court Mulls Final Approval for Suit Settlement
-------------------------------------------------------------
The Circuit Court of Cook County, Illinois has yet to grant
final approval to the settlement of a class action fled against
Aon Corporation, styled "Daniel v. Aon (Affinity)."
Several suits were initially filed against Aon subsidiaries
Affinity Insurance Services Inc. and K&K Insurance Group,
alleging that they entered into "profit-sharing" relationships
with the underwriters without disclosing the income to their
policyholder clients. The suit seeks to determine whether the
Company's having received or being eligible for receipt, without
consent of its clients, undisclosed commissions or 'kickbacks'
in connection with the placement of insurance, violates the
fiduciary or confidential obligations imposed under Illinois
law, (Class Action Reporter, Aug. 3, 2004).
The suit was filed on behalf of current or former policyholders
of the Aon Corporation, Aon Group, and Aon Services Group as
class members alongside lead Plaintiffs Alan S. Daniel and the
Williamson County (Illinois) Agricultural Association. On July
28, 2004, the Court granted plaintiff's motion for class
certification. On March 9, 2005, the Court gave preliminary
approval to a nationwide class action settlement within the $40
million reserve established in the fourth quarter of 2004.
The Court held hearings in the fourth quarter of 2005 to
consider whether to grant final approval to the settlement and
is expected to issue a decision in first quarter 2006.
The suit is styled, "Daniel v. Aon (Affinity), case no. 1999-CH-
11893," filed in the Circuit Court of Cook County, Illinois,
under Judge Julia M. Nowicki. Plaintiff Alan S. Daniel is
represented by Hartunian Futterman & How, 122 S. Michigan 1850,
Chicago IL 60603, Phone: (312) 427-3600.
The Company is represented by Kirkland & Ellis, LLP, 200 E.
Randolph Dr., Chicago, IL 60601, Phone: (312) 861-2000.
For more details, contact Daniel Settlement Administrator, 2807
Allen St., PMB #801, Dallas, TX, 75204-4094, Phone: 1-800-714-
9815, Web site: http://www.aon-daniel-settlement.com.
AXIS CAPITAL: Consolidated Stock Suit Drags On in N.Y.
------------------------------------------------------
AXIS Capital Holdings Ltd. and certain of its executive officers
are defendants in a consolidated amended securities class action
filed in the U.S. District Court for the Southern District of
New York.
Two suits were initially filed, relating to the practices being
investigated by the Attorney General of the State of New York
and other state regulators. The suits are styled, "James Dolan
v. AXIS Capital Holdings Limited, Michael A. Butt and John R.
Charman" (filed on October 28, 2004) and "Robert Schimpf v. AXIS
Capital Holdings Limited, Michael A. Butt, Andrew Cook and John
R. Charman," (filed on November 5, 2004).
The suits were filed on behalf of purchasers of AXIS Capital
Holdings Ltd. (NYSE: AXS) publicly traded securities during the
period between August 6, 2003 and October 14, 2004 (the "Class
Period"). The complaints charge AXIS and certain of its
officers and directors with violations of the Securities
Exchange Act of 1934.
The complaints further allege that during the Class Period,
defendants disseminated materially false and misleading
statements concerning the Company's results and operations. The
true facts, which were known by each of the defendants but
concealed from the investing public during the Class Period,
were:
(1) that the Company was paying illegal and concealed
"contingent commissions" pursuant to illegal
"contingent commission agreements;"
(2) that by concealing these "contingent commissions" and
such "contingent commission agreements," the defendants
violated applicable principles of fiduciary law,
subjecting the Company to enormous fines and penalties
totaling potentially tens, if not hundreds, of millions
of dollars; and
(3) that as a result, the Company's prior reported revenue
and income was grossly overstated.
On April 13, 2005, these lawsuits were consolidated and will now
be known as, "In re AXIS Capital Holdings Ltd. Securities
Litigation." The suit alleges securities violations in
connection with the failure to disclose payments made pursuant
to contingent commission arrangements and seeks damages in an
unspecified amount. On May 13, 2005, the plaintiffs filed an
amended, consolidated complaint and added as defendants the
managing underwriters and one of the selling shareholders in the
Company's secondary offering completed in March 2004.
The suit is styled, "Dolan v. AXIS Capital Holdings Ltd. et al.,
Case No. 1:04-cv-08564-RJH," filed in the U.S. District Court
for the Southern District of New York under Judge Richard J.
Holwell. Representing the plaintiffs is Samuel Howard Rudman of
Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, LLP, 200
Broadhollow Road, Ste. 406, Melville, NY 11747, Phone: 631-367-
7100, Fax: 631-367-1173, E-mail: srudman@lerachlaw.com.
Representing the Company is Benjamin E. Rosenberg of Swidler
Berlin Shereff Friedman, LLP, 405 Lexington Avenue, New York, NY
10174, Phone: (212) 891-9231, Fax: (212) 891-9519, E-mail:
benjamin.rosenberg@dechert.com.
AXIS CAPITAL: Faces Insurance Brokerage Antitrust Suit in N.J.
--------------------------------------------------------------
AXIS Capital Holdings Ltd.'s U.S. insurance companies were named
defendant in a putative class action, styled, "In re Insurance
Brokerage Antitrust Litigation," which was filed in the U.S.
District Court for the District of New Jersey.
Filed on August 1, 2005, the suit includes as defendants
numerous insurance brokers and insurance companies. It
generally alleges antitrust and a violation of the Racketeer
Influenced and Corrupt Organizations (RICO) Act in connection to
the payment of contingent commissions and manipulation of
insurance bids and seeks damages in an unspecified amount.
The suit is styled, "In re Insurance Brokerage Antitrust
Litigation, MDL No. 1663," filed in the U.S. District Court for
the District of New Jersey under Judge Faith S. Hochberg with
referral to Judge Patty Shwartz. Representing the plaintiff
are:
(1) Thomas M. Louis of Wells Marble & Hurst, PLLC, P.O. BOX
131, JACKSON, MS 39205-0131, Phone: (601) 355-8321, E-
mail: tlouis@wellsmar.com;
(2) H. Alan Mccall of Stockwell Sievert, P.O. Box 2900,
Lake Charles, LA 70601, US, Phone: 337-436-9491;
(3) Ellen Meriwether of Miller Faucher & Cafferty, LLP, One
Logan Square, Suite 1700, 18TH & Cherry Streets,
Philadelphia, PA 19103, Phone: 215-864-2800, E-mail:
emeriwether@millerfaucher.com; and
(4) Douglas A. Millen, Counsel Not Admitted to USDC-NJ Bar
Much, Shelist, Freed, Denenberg, Ament & Rubenstein,
PC, 191 N. Wacker Drive, Suite 1800, Chicago, IL 60605-
1615, Phone: (312) 521-2100.
Representing the Company is William F. Clarke of Skadden, Arps,
Slate, Meahter & Flom, LLP, Four Times Square, New York, NY
10036-6522, Phone: (212) 735-3000, E-mail: wclarke@skadden.com.
BC FERRY: Operator Faces Lawsuit Over Accident in Hartley Bay
-------------------------------------------------------------
A couple on board BC Ferry, Queen of the North that sank off
northern British Columbia are filing a class action against the
operator of the vessel, according to CBC News.
Alexander and Maria Kota are representing all passengers of the
ferry who lost possessions in relation to the mishap. The ship
was headed off from Prince Rupert to Port Hardy earlier this
month when it hit a rock near Hartley Bay and sank. Two of
about a hundred passengers are missing.
In the suit, the Kotais accuse BC Ferries of failing to train
crew adequately, supervise the crew on the bridge, keep a proper
lookout, operate at safe speed, and conduct an evacuation of the
ferry in a way that prevented or minimized injuries. They have
not specified how much they are asking for compensation. The
couple is represented by lawyer David Varty of 900-555 Burrard
St. Vancouver, British Columbia (Vancouver Co.).
BLUEHIPPO FUNDING: Md. Customers Sue Over Undelivered Computers
---------------------------------------------------------------
BlueHippo Funding LLC is facing a consumer fraud suit at its
home state, according to ConsumerAffairs.com.
The suit is similar to one earlier filed in California. It
alleged the company is involved in a scheme to "violate a host
of federal and state consumer protection laws" through its
broadcast and online sales of big-screen TVs, computers and
other consumer items.
In the California lawsuit, consumers, who bought computers,
electronically, by installments, alleged the units remain
undelivered, according to The Baltimore Sun (Class Action
Reporter, March 17, 2006).
The suit seeks class-action status to represent thousands of
consumers who allege they didn't get their computers and weren't
able to get refunds, the report said.
BlueHippo sells computers and plasma TVs nationwide to people
without access to traditional credit. Consumers pay through
electronic debits to their bank accounts over one year. They
were promised the merchandise after completing three months'
payments worth hundreds of dollars. But early on, consumers
complain, the company reneged on the promise.
The Better Business Bureau of Greater Maryland says it has
logged 799 complaints against the company during the last three
years, according to the report. BlueHippo has only operated
since 2003.
The first suit was styled, "Ray et al. v. Bluehippo Funding, LLC
et al. (3:06-cv-01807-JSW)" filed in the U.S. District Court for
the Northern District of California under Judge Jeffrey S.
White. Representing the plaintiffs are: Debra S. Katz of Katz,
Marshall & Banks, 1718 Conneticut Ave. N.W., Washington, DC
20009, Phone: 202-299-1140; and David J. Marshall of Katz,
Marshall and Banks, LLP, 1718 Conneticut, Ave. N.W., Sixth
Floor, Washington, DC 20009 U.S., Phone: 202-299-1140.
Katz, Marshall & Banks LLP -- http://www.kmblegal.com/--
represents the plaintiffs in the Maryland case.
BRADLEY PHARMACEUTICALS: N.J. Court Allows Securities Fraud Suit
----------------------------------------------------------------
A motion to dismiss a securities class action filed against
Bradley Pharmaceuticals, Inc. in the U.S. District Court for the
District of New Jersey was denied, according to Knobias.com.
The company filed the motion in July 2005. The dismissal
affects two shareholder derivative actions filed against the
company in state court.
Bradley Pharmaceuticals along with certain of its officers and
directors, were named as defendants in two related New Jersey
state court shareholder derivative actions that were filed on
April 29, 2005 and May 11, 2005, alleging breach of fiduciary
duty and other claims arising out of substantially the same
allegations made in the federal securities class action
litigation (Class Action Reporter, Feb. 3, 2006).
Plaintiffs sought an unspecified amount of damages in addition
to lawyer's fees. On July 19, 2005, with the parties'
agreement, these two related state shareholder derivative
actions were consolidated in the Superior Court of New Jersey
and stayed in their entirety pending a decision on the motion to
dismiss the consolidated federal securities class action in the
New Jersey federal court.
The suit was styled, "Esposito v. Bradley Pharmaceuticals, Inc.
et al. (2:05-cv-01219-FSH-PS)," filed in the U.S. District Court
for the District of New Jersey under Judge Faith S. Hochberg
with referral to Patty Shwartz. Representing the plaintiff is
Joseph J. Depalma of Lite, Depalma, Greenberg & Rivas, LLC, Two
Gateway Center, 12th Floor, Newark, NJ 07102-5003, Phone: (973)
623-3000; E-mail: jdepalma@ldgrlaw.com.
CALIFORNIA: Plaintiffs File Injunction V. High School Exit Exam
---------------------------------------------------------------
San Francisco law firm Morrison & Forester filed preliminary
injunction against the high school exit exam being imposed on
the senior class of 2006 in California, The Examiner reports.
In February, ten students from California filed a complaint
against the state over the high school exit exam that stands to
keep 100,000 students from the class of 2006 from graduating,
according to the San Jose Mercury News (Class Action Reporter,
Feb. 10, 2006).
Five Richmond High School students and five others from around
California filed a lawsuit with the San Francisco Superior Court
against state Superintendent Jack O'Connell, the State of
California, the state Department of Education and the state
Board of Education as defendants, the report said. Students
named in the complaint come from Hayward, Newark, Oakland, Fair
Oaks and Rialto, according to the report (Class Action Reporter,
Feb. 10, 2006).
The test is required for a diploma starting this year. The
class of 2006 will be the first to be denied a diploma if they
don't pass the state standardized test. About 22 percent of
this year's senior class, which is roughly 100,000 students, did
not pass the test as of last spring, according to an independent
evaluator's report prepared for the state Education Department
(Class Action Reporter, Jan. 4, 2006).
But the plaintiff's argument, according to the report, states:
(1) by denying a diploma to students who would otherwise
graduate the state would be depriving them of their
fundamental right to public education;
(2) the state violated the equal protection clause of the
California Constitution by providing inadequate
instruction in the first place and unfairly
distributing money dedicated to helping students pass
the test; and
(3) the state violated California's due process law when by
failing to thoroughly research alternatives as mandated
by the Legislature when it approved the exit exam in
1999.
Contact information for Arturo J. Gonzalez, Partner in Morrison
& Foerster LLP, 425 Market Street, San Francisco, California
94105-2482: Phone: 415-268-7000; Fax: 415-268-7522.
CHECKPOINT SYSTEMS: Antitrust Litigation Status Hearing Set
-----------------------------------------------------------
Checkpoint Systems, Inc. is a defendant in several class actions
filed in connection with the jury decision in the ID Security
Systems Canada Inc. litigation. The purported class action
complaints generally allege a claim of monopolization and are
substantially based upon the same allegations as contained in
the ID Security Systems Canada Inc. case (Civil Action No. 99-
CV-577).
On August 1, 2004, the Company and ID Security Systems Canada
Inc. entered into a settlement agreement effective July 30,
2004, pursuant to which the Company agreed to pay $19.95
million, in full and final settlement of the claims covered by
the litigation. This settlement was accrued in the second
quarter of 2004. Payment in full was made on August 5, 2004.
On August 1, 2002, a civil action was filed in U.S. District
Court for the Eastern District of Pennsylvania, designated as
Civil Action No. 02-6379 (ER) by plaintiff Diane Furs, Inc. t/a
Diane Furs against Checkpoint Systems, Inc. and served on August
21, 2002. On August 21, 2002, the plaintiff filed a Notice of
Substitution of Plaintiff and Filing of Amended Complaint, and
the named plaintiff was changed to Medi-Care Pharmacy, Inc.
On August 2, 2002, a civil action was filed in the U.S. District
Court for the District of New Jersey (Camden) designated as
Docket No. 02-CV-3730 (JEI) by plaintiff Club Sports
International, Inc., d/b/a Soccer CSI against Checkpoint
Systems, Inc. and served on August 26, 2002.
On October 2, 2002, a civil action was filed in the U.S.
District Court for the District of New Jersey (Camden)
designated as Docket No. 02-CV-4777 (JBS) by plaintiff Baby
Mika, Inc. against Checkpoint Systems, Inc. and served on
October 7, 2002.
On October 23, 2002, a civil action was filed in the U.S.
District Court for the District of New Jersey (Camden)
designated as Docket No. 02-CV-5001 (JEI) by plaintiff
Washington Square Pharmacy, Inc. against Checkpoint Systems,
Inc. and served on November 1, 2002. On October 18, 2002, The
U.S. District, District of New Jersey (Camden) entered an Order
staying the proceedings in the Club Sports International, Inc.
and Baby Mika, Inc. cases referred to above.
In accordance with the Order, the Stay will also apply to the
Washington Square Pharmacy, Inc. case referred to above. In
addition, the Medi-Care Pharmacy, Inc. case, referred to above,
will be voluntarily dismissed, and it has been re-filed in New
Jersey and is included in the Stay Order. As a result of the
settlement of the litigation with ID Security Systems Canada
Inc., an application can be made to the Court to dissolve the
Stay Order at this time.
On November 13, 2002, a civil action was filed in the U.S.
District Court for the District of New Jersey (Camden)
designated as Docket No. 02-CV-5319 (JEI) by plaintiff 1700
Pharmacy, Inc. against Checkpoint Systems, Inc. and served on
November 15, 2002.
On December 30, 2002, a civil action was filed in the U.S.
District Court for the District of New Jersey (Camden)
designated as Docket No. 02-CV-6131 (JEI) by plaintiff Medi-Care
Pharmacy, Inc. against Checkpoint Systems, Inc. and served on
January 3, 2003.
Both the 1700 Pharmacy, Inc. case and the Medi-Care Pharmacy,
Inc. case were consolidated with the previously mentioned cases
and are included in the October 18, 2002 Stay Order referred to
above.
A status hearing is scheduled for March 26, 2006.
CLAYTON HOMES: Ark. Court Remands "Meredith" Back to State Court
----------------------------------------------------------------
The U.S. District Court for Western District of Arkansas
followed the precedent set by "Pritchett v. Office Depot," in
deciding the "date of commencement" of the case "Meredith v.
Clayton Homes, Inc., No. 04050, (W.D. Ark. September 14, 2005),"
according to McGlinchey Stafford of http://www.cafalawblog.com/.
The court is deciding whether the "date of commencement" of the
case is before the effective date SS 9 of the Class Action
Fairness Act (CAFA) established by the 10th Circuit Court.
The defendant, CMH Homes, Inc. (CMH), removed the action,
arguing complete diversity jurisdiction under SS1332, and
alternatively, federal jurisdiction under the minimal diversity
standards first provided by CAFA. In its rather unique factual
argument, the Company maintained that inconsistencies in the
time stamp on the plaintiff's pleadings indicated that the
complaint was actually filed on February 18, 2005, the effective
date of CAFA, instead of the previous day as claimed by the
plaintiffs.
However, based on affidavits from the Clerk of Court's office,
Judge Barnes did not find the defendant's arguments about the
date inconsistencies compelling, and concluded that the class
action was in fact originally filed on February 17, 2005, in the
Circuit Court of Miller County, Arkansas. The judge then
addressed the construction of the meaning of "commenced" under
CAFA. Using Pritchett as a guide, the judge noted that an
action is commenced pursuant to CAFA when the complaint is filed
in state court, not when it is removed to federal court,
pointing to the statutory construction analysis used in
Pritchett and the statements of Senator Dodd and Representative
Goodlatte to bolster his argument that CAFA has no retroactive
effect.
In rejecting the Company's argument that a new case is commenced
upon removal, the judge pointed out that it could "not ignore
the solid legal analysis of Pritchett and decide it has
jurisdiction over this case." As further justification for his
conclusion, Judge Barnes also pointed out that the Eighth
Circuit had recently denied a Petition for Permission to Appeal
the district court's similar remand decision in the case,
"Lane's Gifts and Collectibles, L.L.C. v. Yahoo!, Inc., 05-CV-
4027," perhaps tacitly agreeing with Pritchett.
Since the action was filed and thereby "commenced" in state
court on February 17, 2005, one day before CAFA became law, the
claims could not be removed under CAFA. Due to the Company's
failure to prove federal jurisdiction over the claims, the court
remanded the action back to state court.
The suit is styled, "Meredith, et al. v. Clayton Homes, Inc., et
al., Case No. 4:05-cv-04050-HFB," filed in the U.S. District
Court for the Western District or Arkansas under Judge Harry F.
Barnes. Representing the plaintiffs is D. Matt Keil of Attorney
at Law, P.O. Box 618, 611 Pecan St., Texarkana, AR 75504-0618,
Phone: (870) 772-4113, E-mail: mkeil@kglawfirm.com.
Representing the defendants are, Charles Edwin Harrell of Hughes
Watters Askanase, L.L.P., 333 Clay, 29th Floor, Three Allen
Center, Houston, TX 77002, Phone: (713) 759-0818, Fax: (713)
759-6834, E-mail: eharrell@hwa.com; and Brent Maurice Langdon of
Holman & Langdon, L.L.P., 2222 St. Michael Drive, P.O. Box 5367,
Texarkana, TX 75505, Phone: (903) 792-4513, E-mail:
blangdon@hlatty.com.
For more details visit: http://researcharchives.com/t/s?724
(Meredith Opinion) and http://researcharchives.com/t/s?4d9
(Pritchett Opinion, 10th Cir.).
CROSS COUNTRY: Calif. Court Denies Certification to Labor Suit
--------------------------------------------------------------
The U.S. District Court for the Central District of California
in Orange County denied plaintiff's certification of a
collective action pursuant to the Fair Labor Standards Act
(FLSA) claims a purported class action filed on June 21, 2005
against Cross Country Healthcare, Inc., its MedStaff subsidiary,
and a number of its individual officers.
The lawsuit relates only to corporate employees purportedly
employed by the Company and/or MedStaff, but based on its
allegations appears to be limited to MedStaff corporate
employees. It alleges, among other things, violations of
certain sections of the federal Fair Labor Standards Act, the
California Labor Code, the California Business and Professions
Code, as well as claims for breach of contract, unjust
enrichment and the recovery of unpaid wages and penalties.
Plaintiff Darrelyn Renee Henry, who purports to sue on behalf of
herself, and all other similarly situated employees, purport to
encompass a nationwide (rather than a California only) putative
class of employees. Ms. Henry alleges that the Company and/or
MedStaff failed, under both federal and California law, to
timely and properly compensate employees for all hours worked
(including overtime) and to provide at least the minimum amount
of compensation required for those hours.
She also alleges that the Company and/or MedStaff failed, under
California law only, to provide meal periods and to pay for
those missed meal periods, suffered employees to work in excess
of 16 hours per day, and breached employment contracts as to the
terms of compensation for all hours worked and the provision of
compensated meal and rest periods.
Plaintiffs seek, among other things, an order enjoining the
Company and MedStaff from engaging in the practices challenged
in the complaint, an order for full restitution of all monies
the Company and/or MedStaff allegedly failed to pay plaintiffs
and their purported class, interest, liquidated damages as
provided for by the Fair Labor Standards Act, penalties as
provided for by the California Labor Code, an equitable
accounting and attorneys' fees and costs.
On February 27, 2006, the U.S. District Court for the Central
District of California filed an order denying plaintiff's
certification of a collective action pursuant to 29 U.S.C.
Section 216(b) (Fair Labor Standards Act claims) without
prejudice and holding on submission plaintiff's Rule 23 motion
for certification of a class action solely with respect to
California employees based on California law.
The suit is styled, "Darrelyn Henry, et al. v. Med-Staff, et
al., Case No. 8:05-cv-00603-DOC-AN," filed in the U.S. District
Court for the Northern District of California under Judge David
O. Carter. Representing the plaintiffs are Henry Hwang, Gregory
G. Petersen, Castle Petersen & Krause, 4675 MacArthur Court,
Suite 1250, Newport Beach, CA 92660, Phone: 949-417-5600 E-mail:
atty@cpk-law.com.
Representing the Company are Enzo Der Boghossian, Kathleen
Frances Paterno, Arthur F. Silbergeld, and Michael H. Weiss of
Proskauer Rose, 2049 Century Park East, 32nd Floor, Los Angeles,
CA 90067-3206, 310-557-2900, Phone: asilbergeld@proskauer.com or
mweiss@proskauer.com.
CROSS COUNTRY: Continues to Face Calif. Suit Over Unpaid Wages
--------------------------------------------------------------
Cross Country TravCorps, Inc. and Cross Country Nurses, Inc.,
both subsidiaries of Cross Country Healthcare, Inc. are named
defendants in a purported class action filed in the Superior
Court of the State of California, for the County of Orange.
Filed on August 26, 2003, the suit is styled, "Theodora Cossack,
et al. v. Cross Country TravCorps and Cross Country Nurses,
Inc." Plaintiffs plead causes of action for:
(1) Violation of California Business and Professions Code
SS 17200, et. Seq;
(2) Violations of California Labor Code SS 200, et. Seq;
(3) Recovery of Unpaid Wages and Penalties;
(4) Conversion;
(5) Breach of Contract;
(6) Common Counts - Work, Labor, Services Provided; and
(7) Common Counts - Money Had and Received.
Plaintiffs, who purport to sue on behalf of themselves and all
others similarly, situated, allege that defendants failed to pay
plaintiffs, and the class they purport to represent, properly
under California law. They specifically claim that defendants:
(i) failed to pay nurses hourly overtime as required by
California law;
(ii) failed to calculate correctly their employees' regular
rate of pay used to calculate the rate at which
overtime hours are to be compensated;
(iii) failed to calculate correctly and pay a double time
premium for all hours worked in excess of 12 in a
workday;
(iv) scheduled some of its employees on an alternative
workweek schedule, but failed to pay them additional
compensation when those employees did not work such
alternative workweek, as scheduled; and
(v) failed to pay employees for the minimum hours
defendants had promised them.
Plaintiffs seek an order enjoining defendants from engaging in
the practices challenged in the complaint; for an order for full
restitution of all monies Defendants allegedly failed to pay
Plaintiffs (and their purported class); for pre-judgment
interest; for certain penalties provided for by the California
Labor Code; and for attorneys' fees and costs.
On February 10, 2006, the Superior Court of the State of
California granted plaintiff leave to amend the complaint to add
causes of actions alleging defendant's failure to pay for missed
meal periods and rest breaks.
The lawsuit has not yet been certified as a class action by the
court. As a result, the Company is unable at this time to
determine its potential exposure.
FIDELITY FEDERAL: Allows Suit Filed by Fla. Motorists to Proceed
----------------------------------------------------------------
Supreme Court judges refused to dismiss a lawsuit filed on
behalf of hundreds of thousands of Florida vehicle owners
against Fidelity Federal Bank and Trust Co., according to The
Intelligencer.
In deciding the case, Justices Samuel Alito and Antonin Scalia
dealt on the question of whether the plaintiffs needed to prove
that they suffered "actual" damages because of Fidelity's
action. Justice Scalia wrote the lawsuit could cost the company
$1.4 billion. The total amount at state may reach $40 billion,
the judge said.
The suit alleged that motorists privacy rights were infringed
upon by the Fidelity Federal when the company paid the state to
obtain names and addresses of about 565,000 vehicle owners,
hoping some of them would be convinced to refinance their debts.
Fidelity Federal Bank & Trust is sole defendant in the purported
class action, styled, "James Kehoe v. Fidelity Federal Bank &
Trust (05-919)," which was filed in the U.S. District Court for
the Southern District of Florida (Class Action Reporter, March
21, 2006).
In this action, filed on July 1, 2003, James Kehoe, on behalf of
himself and other similarly situated persons, alleged that the
Company violated the Driver Privacy Protection Act (DPPA) by
obtaining driver registration information from the State of
Florida for use in its marketing efforts. Mr. Kehoe sought as
damages the statutory minimum of $2,500 per class member. Mr.
Kehoe has alleged that the class numbers over 560,000
individuals.
On June 14, 2004, the Court granted the company's Motion for
Summary Judgment and entered a Final Judgment in favor of
Fidelity Federal against Kehoe ruling that there could be no
statutory minimum damages award unless there were some actual
damages. This issue was only one of several raised by the
Company. The Court did not rule on the other issues.
Mr. Kehoe appealed that ruling to the 11th Circuit Court of
Appeals and on August 26, 2005, the Circuit Court reversed the
Trial Court's Order of Summary Judgment and remanded this case
back to the Trial Court for further proceedings, stating that if
there was a finding of damages that such damages could be no
less then the statutory minimum per class member. Consequently,
the potential damages that could be awarded would be the result
of multiplying the statutory minimum of $2,500 per class member
by the total class of defendants.
However, the Circuit Court also stated that the Trial Court "in
its discretion, may fashion what it deems to be an appropriate
award." The Circuit Court also stated that, "the use of the
word `may' suggests that the award of any damages is permissive
and discretionary."
Fidelity Federal -- http://www.fidfed.com/-- is a savings and
loan holding company with subsidiary which performs savings bank
operations, mortgage banking and other related financial
activities.
FIDELITY WARRANTY: S.C. Court Refuses to Remand "Chavis" Case
-------------------------------------------------------------
The U.S District Court for the District of South Carolina denied
the plaintiffs' motion to remand the case, "Chavis v. Fidelity
Warranty Services, Inc., No. 05-1813, 2006 WL 346425 (D.S.C.
Feb. 13, 2006)," back to state court, according to McGlinchey
Stafford of http://www.cafalawblog.com/.
Intently focused on avoiding federal court, the plaintiffs
carefully pled their complaint to avoid the requirements for
federal jurisdiction as prescribed by the Magnusson-Moss
Warranty Act (M/M Act). The complaint itself alleged violations
of the M/M Act, "a remedial statute designed to protect the
purchasers of consumer goods from deceptive warranty practices,"
which allows state law warranty suits to be filed in federal
court as long as the amount in controversy exceeds $50,000 per
plaintiff, and the class consist of 100 named plaintiffs or
more.
Acutely aware of these requirements, the plaintiffs, alleging
that the Company "charged and received premiums on automobile
warranties in violation" of the M/M Act, limited each class
member's damages to no more than $50,000 by the express terms of
the complaint. In addition, their complaint only named two of
the more than "one hundred (100) persons" that composed the
putative class. Despite their preparations, the plaintiffs
ended up on the defensive, trying to escape the expanded federal
jurisdiction provided by the Class Action Fairness Act (CAFA) of
2005.
Acknowledging that her court did not have jurisdiction under the
M/M Act, Judge Margaret B. Seymour also recognized that other
courts had previously heard M/M Act claims under alternative
bases of federal jurisdiction. After reviewing these cases,
Judge Seymour concluded, "Federal jurisdiction may be
appropriate for the M/M Act claims that fail to satisfy the
requirements of 15 U.S.C. 2310(d)(1)(B) if a valid alternative
federal jurisdictional basis exists." Then CAFA entered the
fray.
Reconnoitering CAFA, Judge Seymour referenced comments by the
Senate Judiciary Committee, noting that CAFA "should be read
broadly, with a strong preference that interstate class actions
should be heard in a federal court if properly removed by any
defendant." Moreover, addressing the interface between CAFA and
the M/M Act, the judge declared that Congress is presumed to
have enacted CAFA with knowledge of the law, including the M/M
Act, and thus, CAFA's grant of federal jurisdiction over any
class action that meets the amount in controversy and minimum
diversity standards also includes classes alleging violations
under the M/M Act, even if federal jurisdiction is not
appropriate under the M/M Act itself.
Since both parties acknowledged that minimal diversity was
satisfied, CAFA's amount in controversy requirement became the
next battleground. Multiplying the number of alleged plaintiffs
(more than 100) by the damages claimed by each one (not more
than $50,000) the district court concisely concluded that it
could not say "to a legal certainty that the amount in
controversy would not reach CAFA's $5,000,000 threshold."
Providing guidance for plaintiffs' use in preparation of future
legal battle strategies, Judge Seymour observed that the
plaintiffs "could have limited the damages alleged in their
complaint to escape possible removal to federal court under
CAFA." However, based on her conclusions, the court denied the
plaintiffs' motion to remand to state court.
The suit is styled, "Chavis, et al v. Fidelity Warranty
Services, Inc., 1:05-cv-01813-MBS," filed in the U.S. District
Court for the District of South Carolina under Judge Margaret B.
Seymour. Representing the plaintiffs is Daniel Webster Williams
of Bedingfield and Williams, P.O. Box 616, Barnwell, SC 29812,
Phone: 803-259-2759, Fax: 803-259-5922, E-mail:
danwilliams@bellsouth.net.
Representing the defendants are, Lee E. Dixon, Stephen G.
Morrison and William Parham Simpson of Nelson Mullins Riley and
Scarborough, P.O. Box 11070, Columbia, SC 29211, Phone: 803-799-
2000, Fax: 803-255-5193 and 803-256-7500, E-mail:
lee.dixon@nelsonmullins.com, steve.morrison@nelsonmullins.com
and bill.simpson@nelsonmullins.com.
For more details, visit: http://researcharchives.com/t/s?725
(Chavis Opinion).
FLEETWOOD ENTERPRISES: Faces Calif. Suits Over Folding Trailers
---------------------------------------------------------------
Fleetwood Enterprises, Inc. is defendant in two class actions
both filed in California over in a specific type of plastic roof
installed on folding trailers.
One of the suits is styled, "Brodhead et al v. Fleetwood
Enterprises, Inc." which was filed in the U.S. District Court
for the Central District of California on June 22, 2005. It
states a claim for damages growing out of certain California
statutory claims with respect to alleged defects in a specific
type of plastic roof installed on folding trailers from 1995
through 2003.
The plaintiffs clarified that the class for which they are
seeking certification extends to all owners of folding trailers
produced by Fleetwood Folding Trailers, Inc. with this type of
roof, as well as any former owners who may have had to pay to
have this type of roof repaired. A hearing on the class
certification was scheduled for April 17, 2006.
The subject matter of the aforementioned claim is similar to a
putative class action previously filed in California state court
in "Griffin et al v. Fleetwood Enterprises, Inc. et al." The
California trial court denied class action certification in the
Griffin matter on April 28, 2005, and the plaintiffs have
appealed that ruling. The appeal is scheduled for oral argument
before the State of California - Court of Appeal on April 12,
2006.
FORTUNE BRANDS: Continues to Face Suits Over Underage Drinking
--------------------------------------------------------------
Fortune Brands, Inc., its Spirits and Wine business and numerous
other manufacturers and importers of beer, spirits and wine are
named defendants in purported class actions in Michigan, New
York and West Virginia seeking damages and injunctive relief
regarding alleged marketing of beverage alcohol to people under
the legal purchase age for alcohol.
The suits are styled:
(1) "Alston v. Advanced Brands & Importing Co., et al.,"
which was filed March 30, 2005 in the Circuit Court for
the Third Judicial Circuit, Michigan.
(2) "Sciocchetti v. Advanced Brands & Importing Co., et
al.," which was filed February 16, 2005 in the Supreme
Court, Albany County, New York. The Company and its
Spirits and Wine business have not yet been served in
the New York lawsuit.
(3) "Bertovich v. Advanced Brands & Importing Co., et al.,"
which was filed February 17, 2005 in the Circuit Court
of Hancock County, West Virginia, and was later removed
to the U.S. District Court for the Northern District of
West Virginia on May 22, 2005.
The lawsuits are similar in that each alleges that the
defendants engaged in deceptive marketing practices and schemes
targeted at people under the legal purchase age, negligently
marketed their products to the underage and fraudulently
concealed their alleged misconduct. They seek the disgorgement
of unspecified profits earned by the Company's Spirits and Wine
business in the past and other unspecified damages and equitable
relief.
Other purported class actions are pending against other
producers of alcoholic beverages for alleged marketing to
persons under the legal purchase age. The Company denies that
its Spirits and Wine business markets beverage alcohol products
to persons under the legal purchase age and denies that the
advertising practices of its Spirits and Wine business are
illegal or in violation of industry codes concerning responsible
marketing practices.
FORTUNE BRANDS: Ohio Court Dismisses Consolidated Consumer Suit
---------------------------------------------------------------
The U.S. District Court for the Northern District of Ohio
dismissed a purported consolidated class action seeking damages
and injunctive relief regarding alleged marketing of beverage
alcohol to people under the legal purchase age for alcohol filed
against Fortune Brands, Inc., its Spirits and Wine business and
numerous other manufacturers and importers of beer, spirits and
wine.
The lawsuit, styled, "Eisenberg v. Anheuser-Busch Inc., et al.,"
was filed September 15, 2004 in the U.S. District Court for the
Northern District of Ohio. It alleges that the defendants have
engaged in deceptive marketing practices and schemes targeted at
people under the legal purchase age, negligently marketed their
products to the underage and fraudulently concealed their
alleged misconduct.
Plaintiffs ask the disgorgement of unspecified profits earned by
the Company's Spirits and Wine business in the past and other
unspecified damages and equitable relief.
On February 6, 2006, the court granted defendants' motion and
dismissed the entire case.
The suit is styled, "Eisenberg et al v. Anheuser-Busch, Inc. et
al., Case No. 1:04-cv-01081-DCN," filed in the U.S. District
Court for the Northern District of Ohio under Judge Donald C.
Nugent. Representing the Plaintiff/s are, Timothy D. Battin
Staus & Boies, LLP, 10513 Braddock Road, Fairfax, VA 22032,
Phone: 703-764-8700, Fax: 703-764-8704; and John S. Chapman, 300
Hoyt Block, 700 West St. Clair Avenue, Cleveland, OH 44113,
Phone: 216-241-8172, Fax: 216-241-8175, E-mail:
jchapman@jscltd.com.
Representing the Defendant/s are, Robert N. Rapp of Calfee,
Halter & Griswold, Ste. 1400, 800 Superior Avenue, Cleveland, OH
44114, Phone: 216-622-8288, Fax: 216-241-0816, E-mail:
rrapp@calfee.com; and David S. Cupps and Anthony J. O'Malley of
Vorys, Sater, Seymour & Pease, Phone: 614-464-6400 and 216-479-
6159, Fax: 614-464-6350 and 216-479-6060, E-mail:
dscupps@vssp.com and ajomalley@vssp.com.
HILLENBRAND INDUSTRIES: Settlement Hearing Set June 14, 2006
------------------------------------------------------------
The U.S. District Court for the District of South Carolina will
hold a fairness hearing for the proposed settlement in the
matter: "Spartanburg Regional Health Services District, Inc. v.
Hillenbrand Industries, Civil Action No. 7:03-2141-HFF."
The case was brought on behalf of all persons who purchased or
rented any Hill-Rom, Inc./Hill-Rom Co., Inc. and/or Support
Systems International products in North America during the
period from January 1, 1990 through February 2, 2006.
The hearing will be held on June 14, 2006, at 9:30 a.m., in the
second-floor courtroom of the Donald S. Russell Federal
Building, 201 Magnolia St., Spartanburg, South Carolina.
Any exclusions or objections to the settlement must be filed by
April 17, 2006.
For more details, contact The Spartanburg Settlement, P.O. Box
9000, #6394 Merrick, NY 11566-9000, Phone: 1-800-967-8683, Web
site: http://www.spartanburgclassaction.com/;John Gressette
Felder of Felder and McGee, P.O. Box 346, Saint Matthews, SC
29135, Phone: 803-874-1430, Fax: 803-655-7167, E-mail:
johngfelder@sc.rr.com; John Gressette Felder, Jr. of McGowan
Hood and Felder, 3710 Landmark Drive, Suite 114, Columbia, SC
29204, Phone: 803-327-7800, Fax: 803-328-5656, E-mail:
jfelder@mcgowanhood.com; IS Leevy Johnson of Johnson Toal and
Battiste, P.O. Box 1431, Columbia, SC 29202, Phone: 803-252-
9700, Fax: 803-252-9102, E-mail: islj@jtbpa.com; and Chad A.
McGowan of McGowan Hood Felder and Johnson, 1539 Healthcare
Drive, Rock Hill, SC 29732, Phone: 803-327-7800, Fax: 803-328-
5656, E-mail: cmcgowan@mcgowanhood.com.
INFINITY PROPERTY: Could Face Policyholders' Lawsuit in Ark.
------------------------------------------------------------
Infinity Property and Casualty Corporation is a possible
defendant in a purported class action in Circuit Court of Miller
County, Arkansas, captioned, "Georgia Hensley v. Computer
Sciences Corporation, et al."
Filed in February 2005, the suit was brought against over 500
insurance companies and several providers of database vendors.
It charges that software programs used to calculate claims on
bodily injury undervalue amounts owed to policyholders.
Based in Birmingham, Alabama, Infinity Property --
http://www.ipacc.com-- the insurer primarily provides personal
nonstandard auto policies. It is the second-largest writer of
policies for high-risk drivers in the U.S., behind Progressive,
according to Hoovers.
INFINITY PROPERTY: Settles Several Suits Over Total Loss Claims
---------------------------------------------------------------
Infinity Property and Casualty Corporation settled five class
actions, brought in various state courts, which challenged the
Company's and other insurers' use of certain automated database
vendors to assist in evaluating total loss claims.
The allegations were that the database systematically
undervalued total loss claims to the detriment of the insureds.
In December 2005, agreements to settle these lawsuits received
final approval. Future payments to third parties under the
terms of the settlement have been adequately reserved for.
Based in Birmingham, Alabama, Infinity Property --
http://www.ipacc.com-- the insurer primarily provides personal
nonstandard auto policies. It is the second-largest writer of
policies for high-risk drivers in the U.S., behind Progressive,
according to Hoovers.
IPO LITIGATION: Settlement Hearing Set Next Month in N.Y. Court
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
will hold a fairness hearing for the proposed settlement in the
matter, "In re Initial Public Offering Litigation, Case No. 21
MC 92 (SAS)."
The hearing will be held before the Honorable Shira Scheindlin
in the U.S. District Court, Southern District of New York, 500
Pearl St., New York, NY 10007 at 10:00 a.m., on April 24, 2006
to determine whether the proposed settlement should be approved
by the Court as fair, reasonable, and adequate.
For more details, visit: http://www.iposecuritieslitigation.com/
OR contact In re IPO Litigation c/o The Garden City Group, Inc.,
Notice Administrator, P.O. Box 9000 #6239, Merrick, NY 11566-
9000, Phone: (800) 916-6946; Melvyn I. Weiss, Esq. of Milberg
Weiss Bershad & Schulman, LLP, Phone: (212) 594-5300; Stanley D.
Bernstein, Esq. of Bernstein Liebhard & Lifshitz, LLP, Phone:
(212) 779-1414; Richard S. Schiffrin, Esq. of Schiffrin &
Barroway, LLP, Phone: (610) 667-7706; Howard Sirota, Esq.
Sirota & Sirota, LLP, Phone: (212) 425-9055; Jules Brody, Esq
Stull, Stull & Brody, Phone: (212) 687-7230; and Fred Taylor
Isquith, Esq. of Wolf Haldenstein Adler Freeman & Herz, LLP,
Phone: (212) 545-4600.
KNIGHT-RIDDER INC: Settlement of MDL-1379 Litigation Challenged
---------------------------------------------------------------
The settlement of a consolidated class action filed against
Knight-Ridder, Inc. and its wholly owned subsidiary,
MediaStream, Inc. before the Judicial Panel on Multidistrict
Litigation, under the caption is being challenged. The suit,
"Chavis v. Fidelity Warranty Services, Inc., No. 05-1813, 2006
WL 346425 (D.S.C. Feb. 13, 2006)," is currently pending before
the U.S. Second Circuit Court of Appeals.
The two lawsuits originally filed against MediaStream in
September 2000 were "The Authors Guild, Inc. et al. v. The
Dialog Corporation et al.," and "Posner et al. v. Gale Group
Inc. et al." These lawsuits were brought by or on behalf of
freelance authors who allege that the defendants have infringed
plaintiffs' copyrights by making plaintiffs' works available on
databases operated by the defendants.
The plaintiffs are seeking to be certified as class
representatives of all similarly situated free-lance authors.
In the Multi-District Litigation, plaintiffs seek actual
damages, statutory damages and injunctive relief, among other
remedies.
In September 2001, the plaintiffs submitted an amended
complaint, which named the Company as an additional defendant
and made reference to Knight Ridder Digital.
The two lawsuits were initially stayed pending disposition by
the U.S. Supreme Court in the case, captioned, "New York Times
Company et al. v. Tasini et al., No. 00-21." On June 25, 2001,
the Supreme Court ruled that the defendants in Tasini did not
have a privilege under Section 201 of the Copyright Act to
republish articles previously appearing in print publications
absent the author's separate permission for electronic
republication.
Thereafter, the judge in the Multi-District Litigation ordered
the parties to try to resolve the claims through mediation,
which commenced in November 2001. After years of settlement
discussions, the parties entered into a settlement agreement,
which was finally approved by the U.S. District Court for the
Southern District of New York on September 27, 2005.
The settlement agreement creates a settlement pool of a minimum
of $10 million ($1 million of which was contributed in the form
of published notice of the settlement by participating newspaper
publishers) up to a maximum of $18 million. All database
company defendants would fund about $5 million of that
settlement pool with the balance funded by each participating
newspaper publisher based on claims submitted by plaintiffs for
works authored by them and published by that newspaper
publisher.
The Company's exposure under that settlement is expected to be
offset by insurance coverage. The settlement was challenged and
is currently pending before the U.S. Second Circuit Court of
Appeals. The Company is optimistic that the Second Circuit will
affirm the trial court's final order, which approves the
settlement.
The suit is styled, "In re Literary Works in Electronic
Databases Copyright Litigation, MDL 1379," filed in the U.S.
District Court for the Southern District of New York under Judge
George B. Daniels.
LONG ISLAND: New Plaintiffs Emerge in Suit Over Power Surcharges
----------------------------------------------------------------
Three businesses were added as plaintiff in the class action
over "fuel-price adjustment" surcharges against Long Island
Power Authority. The new plaintiffs include Pindar Vineyards in
Peconic, and Doxsee Sea Clam Co. in Point Lookout, according to
Newsday.com.
The suit was filed on behalf of all residential and business
customers of Long Island Power since 2001 seeking to recover
monies paid to LIPA as a result of an improper rate increases
(Class Action Reporter, Feb. 27, 2006). The plaintiff is a
resident of Suffolk County.
The lawsuit alleged that Long Island Power used these fuel
surcharges to increase the effective rate paid for power by Long
Island residents and businesses in order to avoid the conditions
of the Public Authority Control Board that bar Long Island Power
from implementing a rate increase of more than 2.5% without the
approval of the Public Service Commission.
The complaint asserted claims for breach of contract, unjust
enrichment, and deceptive trade practices in violation of New
York General Business Law 349, and sought compensatory damages
and injunctive relief.
Meanwhile, the company is planning to implement changes in how
it presents bills to consumers in the coming months, according
to Newsday.com. It will break down the bill into two
categories: a delivery charge and commodity charge to show that
only the latter have gone up.
The suit was styled, "Carol Patti v. Long Island Power
Authority, Index No. 06-3149," filed in the Supreme Court of the
State of New York, County of Nassau. Representing the
plaintiffs are Max W. Berger, Gerald H. Silk and Avi Josefson of
Bernstein Litowitz Berger & Grossmann, LLP, 1285 Avenue of the
Americas New York, New York 10019, Phone: 212-554-1400, Web
site: http://www.blbglaw.com/complaints/LIPAComplaint.pdf;and
Michael E. White of Jaspan Schlesinger Hoffman, LLP, 300 Garden
City Plaza, Garden City, New York 11530, Phone: 516-746-8000,
Web site: http://www.jshllp.com.
MARYLAND: Fourth Circuit Rules in 1998 Racial Profiling Case
------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit highlighted
some pitfalls for unnamed plaintiffs in a failed class action in
the case, "Bridges v. Maryland State Police, 05-1078," according
to Robert Loblaw of http://appellatedecisions.blogspot.com/.
In 1998, the Maryland NAACP and several individuals sued the
Maryland police for racially profiling motorists. Although the
plaintiffs initially sought class action certification, they
abandoned their efforts after the district court preliminarily
denied class action status.
Later, the original plaintiffs moved to amend the complaint to
add more plaintiffs whose claims would otherwise be time-barred.
The district court denied the motion and only the putative new
plaintiffs, who were never parties to the action, pursued an
appeal.
After decrying the putative plaintiffs' "unacceptable distorting
and manipulating of judicial procedures," the Fourth Circuit
agrees to treat the matter as an appeal from a denial of a
motion to intervene that was never made. It concludes that the
unnamed plaintiffs should have asserted their individual claims
once it was clear that the matter would not proceed as a class
action. Instead, they waited too long, and their claims are now
time-barred.
The suit is styled, "State Conference, et al. v. MD State
Police, et al., Case No. 1:98-cv-01098-PWG," on appeal from the
U.S. District Court for the District of Maryland under Judge
Paul W. Grimm. Representing the plaintiffs are, Deborah A. Jeon
and Reginald T. Shuford of American Civil Liberties Union,
Phone: 14108898555 and 12125492613, Fax: 14103667838 and
12125492651, E-mail: jeon@aclu-md.org and rshuford@aclu.org.
Representing the defendants is Maureen Mullen Dove of State of
Maryland Office of the Attorney General, 200 Saint Paul Pl.,
Baltimore, MD 21202-2021, Phone: 14105766300, Fax: 14105766955,
E-mail: mdove@oag.state.md.us.
For more details visit: http://researcharchives.com/t/s?717
(Bridges Opinion).
MERCURY INSURANCE: May 2006 Trial Date Set for "Goodman" Case
-------------------------------------------------------------
A tentative May 2006 trial date was slated for the California
class action filed against Mercury Insurance Company, a
subsidiary of Mercury General Corporation, which is styled,
"Marissa Goodman, et al. v. Mercury Insurance Company."
The suit was filed in Los Angeles Superior Court on June 16,
2002. It is challenging the Company's use of certain automated
database vendors to assist in valuing claims for medical
payments.
The suit's plaintiff filed a motion seeking class action
certification to include all of the Company's insureds from 1998
to the present who presented a medical payments claim, had the
claim reduced using the computer program and whose claim did not
reach the policy limits for medical payments. No date has been
set for this motion.
The suit alleges that these automated databases systematically
undervalue medical payment claims to the detriment of insureds.
It thus seeks unspecified actual and punitive damages.
Similar lawsuits have been filed against other insurance
carriers in the industry. The case has been coordinated with
two other similar cases, and also with ten other cases relating
to total loss claims.
The Court denied the Company's Motion for Summary Judgment
holding that there is an issue of fact as to whether Ms. Goodman
sustained any damages as a result of the Company's handling of
her medical payments claim. A trial date has been set for May
2006.
MICROSOFT CORP: Hearing Set for $350M Antitrust Suit Settlement
---------------------------------------------------------------
New York Supreme Court Judge Karla Moskowitz will hold a final
hearing on June 13, 2006 for the proposed $350 million
settlement in the matter "Charles Cox and Old Factories, Inc. v.
Microsoft Corp. (105193/00)." The case was brought on behalf of
persons who bought Microsoft computers between May 18, 1994, and
Dec. 31, 2004.
Deadline for fling proofs of claim is Oct. 18, 2006. Claims
form is available at http://www.microsoftNYsettlement.com,or by
calling 1-877-867-6133 (toll-free).
The plaintiffs in the lawsuit claimed that Microsoft violated
New York State antitrust and unfair competition laws and thereby
overcharged consumers for some of its software.
The counsel for the New York Settlement Class are: Daniel Hume
of Kirby McInerney & Squire, LLP, 830 Third Avenue, New York,
N.Y. 10022, Phone: (21)355-9500; or David Stellings of Lieff,
Cabraser, Heimann & Bernstein, LLP, 780 Third Avenue, New York,
NY 10017, Phone: (212) 355-9500; or J. Douglas Richards of
Milberg Weiss Bershad & Schulmann LLP, One Pennsylvania Plaza,
New York, NY 10199, Phone: (212) 594-5300.
NC SOFT: Korean Virtual Games Developer Sued for Identity Theft
---------------------------------------------------------------
Thousands of South Koreans filed a suit with a Seoul court
against local Internet games developer N.C. Soft Corp. for
alleged virtual identity theft, Asia Pulse Businesswire reports.
The report, citing online legal portal Lawmarket Asia, says
8,574 people are seeking $1,026 each in damages for their stolen
identities. The suit arose after it was discovered that some
players of online game Lineage were using identities of others
that they obtained from the Internet or through other illegal
channels.
The scheme has been under police investigation since the middle
of March last year. An N.C. Soft spokesman the company has
removed all game IDs stolen from other sites.
According to the report, Lawmarket (http://www.lawmarket.co.kr/)
is planning to file another class action in early May. It
estimated up to 1.22 million identities theft.
NEIMAN MARCUS: Plaintiffs Voluntarily Dismiss Tex. Stock Suit
-------------------------------------------------------------
Plaintiffs in the class action filed against Neiman Marcus
Group, Inc. and its directors have voluntarily dismissed their
case. The suit styled, "NECA-IBEW Pension Fund (The Decatur
Plan) v. The Neiman Marcus Group, Inc. et al. (CA No. 3-05 CV-
0898B)," is filed in the U.S. District Court for the Northern
District of Texas.
On May 1, 2005, the Company's Board of Directors approved a
definitive agreement to sell the Company to an investment group
consisting of Texas Pacific Group and Warburg Pincus, LLC
(collectively, the Sponsors), through a merger of the Company
with an entity owned by the Sponsors. The amended complaint
alleges a cause of action for breach of fiduciary duty against
the Company and its directors, claiming, among other things,
that the defendants are endeavoring to complete the sale of the
Company and its assets at a grossly inadequate and unfair price
and pursuant to an unfair process that fails to maximize
shareholder value.
In addition, the amended complaint alleges that the directors
are not independent and breached their fiduciary duties in
connection with the approval of the merger by, among other
things:
(1) tailoring the transaction to serve the interests of the
defendants and the family of Richard A. Smith, chairman
of the Company's board of directors and its largest
stockholder, rather than structuring the merger to
obtain the highest price for stockholders,
(2) depriving public stockholders of the value of certain
assets (including the credit card business and its
third quarter 2005 profits),
(3) failing to realize the financial benefits from the sale
of the credit card business,
(4) not engaging in a fair process of negotiating at arm' s
length, including provisions precluding superior
competing bids (including a termination fee and no
solicitation provision) and structuring a preferential
deal for insiders.
The amended complaint further claims that the Company's
financial advisor had a conflict of interest by also acting as a
financing source for the merger, and that its proxy statement in
respect of the merger allegedly omitted material information
purportedly necessary to ensure a fully informed shareholder
vote. The amended complaint currently seeks, among other
things, injunctive relief to enjoin the consummation of the
merger, to rescind any actions taken to effect the merger, to
direct the defendants to sell or auction the Company for the
highest possible price, and to impose a constructive trust in
favor of plaintiffs upon any benefits improperly received by
defendants. The lawsuit is in its preliminary stage and the
Company expects to file a motion to dismiss the lawsuit in
October 2005.
Following the closing of the merger, plaintiff voluntarily
dismissed the lawsuit with prejudice as moot on December 1,
2005, and provided a release of all of the defendants for claims
arising out of the merger. The Company paid plaintiff's
attorneys' fees in connection with certain disclosures requested
by plaintiff and included in the proxy statement sent to the
shareholders regarding the merger.
The suit is styled "NECA-IBEW Pension Fund v. The Neiman Marcus
Group Inc et al., case no. 3:05-cv-00898," filed in the U.S.
District Court for the Northern District of Texas, under Judge
Sam A. Lindsay. Representing the plaintiffs is Willie Briscoe
of Provost Umphrey Law Firm - Dallas, 3232 McKinney Ave., Suite
700, Dallas, TX 75204, Phone: 214/744-3000, E-mail:
Provost_Dallas@yahoo.com.
Representing the defendants is William Mayer Katz, Jr. of
Thompson & Knight, LLP, 1700 Pacific Avenue, Suite 3300, Dallas,
TX 75201-4693, Phone: 214/969-1330, Fax; 214/880-3279, E-mail:
william.katz@tklaw.com.
NOVARTIS PHARMACEUTICALS: Facing Suit Over Ritalin in Australia
---------------------------------------------------------------
Five Australian families are filing a class action against
Novartis Pharmaceuticals Corp. over its attention deficit
disorder-drug Ritalin, according to Townsville Bulletin.
Simon Harrison, a partner at Queensland law firm Nicol Robinson
Halletts (http://www.nrh.com.au/),said five children who took
the drugs suffered cardiac episodes and hallucinations. Mr.
Harrison plans to meet with US lawyers in July before deciding
whether to launch the action in Australia or the U.S. According
to him, nine sets of lawyers have already commenced actions in
the U.S. in respect to Ritalin.
Ritalin was listed on the Pharmaceutical Benefits Scheme in
August, which means it now cost lower at $29.50 from $49.
Prescription for the drug have increased to more than 5800 in
January from 523 in August.
Based in New Jersey, Novartis Pharmaceuticals --
http://www.pharma.us.novartis.com-- is an affiliate of Swiss
firm Novartis, which sells products in such markets as
cardiovascular, endocrine, and respiratory diseases,
gastrointestinal complaints, central nervous system disorders,
skin conditions, cancer and blood disorders, eye disorders, bone
and joint conditions, and transplanted organ rejection.
OHIO: April Conference Set for Steubenville Traffic Camera Suit
---------------------------------------------------------------
A conference over the Steubenville traffic camera case is set
April 12, 2006, 2 p.m. at Judge David Henderson's Jefferson
County Court, WTOV9.com reports.
At the meeting, the judge will decide on the reimbursement of
traffic camera fines to claimants. Other points of discussions
will be on how to put up cameras in the future in line with the
city's plan to re-install them. People will also, reportedly,
find out how to opt out of the lawsuit.
Judge Henderson ordered the return of the money collected from
motorists caught speeding by Steubenville's automated traffic
camera earlier this month, The Intelligencer reports (Class
Action Reporter, March 28, 2006). The judge said the citations
were invalid because the city's ordinance on the use of the
traffic cameras wasn't followed; however, he didn't rule that
the cameras were unconstitutional.
Steubenville attorney Gary Stern filed the suit against the city
and camera manufacturer Traffipax Inc. on behalf of his wife,
who received one of the $85 tickets issued by a traffic camera.
The attorney argued that the cameras are illegal and
unconstitutional because, for one, under the ordinance,
motorists don't have the right to appeal.
The lawsuit also said the city does not follow the terms of its
own ordinance which requires a 14-day notice before installing
the cameras. Judge Henderson ordered the temporary removal of
speed cameras in December. In February, he ruled that a class
action could proceed against the city of Steubenville and
Traffipax. In March, he granted the Sterns' request for
permanent injunction against it. About 7,221 speeding notices
were mailed to drivers since the cameras were first used on
Sept. 22.
In his ruling, the judge ruled that the city failed to comply
with the city ordinance requiring the publication of the list of
streets to be monitored by the traffic cameras and for signs to
be erected near where the traffic cameras would be placed prior
to the date of enforcement. The city may appeal or rewrite the
ordinance.
Judge Henderson did not apply voluntary payment doctrine in his
ruling. The doctrine provides that a person who pays what he or
she believes is wrong without challenging the payment forfeits
the right to get the money back. According to the report, he
apparently believed those who paid the ticket felt pressured to
do so because a bulk of the tickets were late in being mailed
and received only days before the due date.
The suit was styled, "April Stern v. The City of Steubenville,
Ohio and Traffipax, Inc., Case No. 05 CV 524," filed in the
Court of Common Pleas of Jefferson County, Ohio, under Judge
David E. Henderson. Representing the Plaintiff is Gary M. Stern
Of Stern, Stern & Stern Co., LPA, 108 South Fourth St.,
Steubenville, OH 43952, Phone: (740) 284-1211, Web site:
http://www.sternlawyer.com/complaint.htm.
PFIZER INC: Sued Over Alleged Off-Labeling Marketing of Lipitor
---------------------------------------------------------------
A group of union and employee insurance plans alleged fraud in
Pfizer, Inc.'s marketing of its best-selling cholesterol-
lowering drug, Lipitor. They said that Lipitor achieved its
blockbuster clout in part through an ongoing fraudulent scheme
that marketed the drug for off-label uses that are not approved
by the Food & Drug Administration for treatment of high
cholesterol.
Health care payors filed suit against Pfizer, asserting that as
a result of the company's off-label promotion of Lipitor that
they, along with other third-party drug plans and state Medicaid
plans, have paid for billions of dollars in unwarranted Lipitor
prescriptions over the last five years. In addition to charging
Pfizer with fraud, violation of state consumer protection
statutes and other state laws, plaintiffs assert claims under
the federal anti-racketeering RICO statute.
The Welfare Fund of Teamsters Local Union 863 filed suit in New
Jersey federal court. Other plaintiff drug plans expected to
join the class action are located in New York, Pennsylvania,
Florida, Illinois, Ohio, and Indiana, a statement by secuirities
litigation firm Grant & Eisenhofer, P.A. said.
There is no question that Lipitor is a certified blockbuster -
"the most widely used treatment for lowering cholesterol and the
best-selling pharmaceutical product in the world," Pfizer touted
in its 2005 annual report. The first drug to achieve $10
billion in worldwide sales, Lipitor has generated more than $46
billion in revenue for Pfizer since 2000.
However, according to the drug plans' lawsuit, "a significant
portion of Lipitor's sales" flows from Pfizer's improper off-
label marketing tactics that breached federal guidelines for
treating cholesterol.
A statin drug that works by blocking certain cholesterol-
producing enzymes, Lipitor received FDA approval in 1996. But
it wasn't until 2001 that Pfizer launched a broad marketing and
advertising campaign to increase awareness among physicians and
consumers. The drug plans allege that Lipitor's dramatic spike
in sales -- from $5 billion in 2000 to $12.1 billion in 2005 --
reflects Pfizer's aggressive off-label promotion of the drug
during that period.
As noted in the plaintiffs' complaint, "if a drug's manufacturer
advertises uses not on its FDA-approved label, the drug is
considered misbranded and its distribution in interstate
commerce is prohibited."
The FDA has on two separate occasions cited Pfizer for
improperly marketing Lipitor, including the way in which the
company downplayed the drug's harmful side effects as well as
for ignoring the critical role played by exercise and diet in
lowering cholesterol. The complaint notes that Pfizer's
physician and hospital marketing materials have misrepresented
treatment protocols established by the National Cholesterol
Education Program, a set of evidence-based guidelines
established in 2002 and known as Adult Treatment Plan III (ATP
III).
Although the FDA does not regulate how doctors prescribe
medications, the agency sets strict guidelines for approved
treatments. As the complaint notes, "the FDA has approved
Lipitor for use only in accordance with ATP III .... Any
marketing of Lipitor that runs afoul of ATP III is considered
off-label marketing and violates FDA regulations."
Elsewhere, the complaint notes that "Pfizer also employed
purported 'independent' third parties ... to promote Lipitor's
off-label use." In addition to paid consultants and marketing
firms, the company engaged organizations such as Emerging
Science in Lipid Management and the National Lipid Education
Council to offer physicians continuing medical education courses
as well as to publish articles extolling Lipitor's off-label
usage.
As the complaint notes, "both organizations are fully funded by
Pfizer" and have become an active part of the marketing plan for
Lipitor.
"Once you connect the dots and see the elaborate sophistication
and reach of Pfizer's plan to go way beyond the federally
mandated guidelines for prescribing Lipitor, there is no other
way to describe it except as a fraudulent scheme, whose true
purpose has been to extract illegal payments from third-party
payors for Lipitor's off-label use," said Jay Eisenhofer of
Grant & Eisenhofer in explaining the racketeering claims.
"Between the company's own off-label marketing and the
coordinated campaign by its various consultants and captive
physician education groups, Pfizer has reaped billions of
dollars in insurance payments to cover prescriptions for
patients for whom Lipitor therapy is not recommended under FDA
approved usage standards," Mr. Eisenhofer noted.
"This is a classic case of unjust enrichment," he added.
"Pfizer has built colossal sales of Lipitor through the pipeline
of third-party payors such as our clients and countless other
drug plans -- including Medicaid and Medicare -- much of it
based on prescriptions that the FDA's guidelines say never
should have been written in the first place."
Mr. Eisenhofer said that the plaintiff drug plans are seeking
several layers of relief, including a court order enjoining
Pfizer from continuing its deceptive off-label marketing. The
plans are also asking for compensatory and punitive damages
based on Pfizer's alleged practices, including treble damages in
accordance with the RICO claims.
Initial Plaintiff Drug Plans Participating in Class Action:
-- Welfare Fund of Teamsters Local Union 863 (New Jersey)
-- Southern Illinois Laborers and Employers Health and
Welfare Fund
-- Midwestern Teamsters Heath & Welfare Fund (Illinois)
-- NECA-IBEW Health and Welfare Fund (Illinois)
-- Cleveland Bakers and Teamsters Health and Welfare Fund
(Ohio)
-- Electrical Workers Benefit Trust Fund (Indiana)
-- Sidney Hillman Health Center of Rochester (New York
State)
For more information, visit: http://www.gelaw.com;or contact
Allan Ripp, Phone: 212-721-7468; E-mail: arippnyc@aol.com; or
Sara Wolosky, Phone: 212-724-7610; E-mail: swolosky@hotmail.com.
PENNSYLVANIA: Suit Over Venango County Park Operations Continue
---------------------------------------------------------------
The operators of Two Mile Run County Park were ordered to
produce forest management plan and related documents to
plaintiffs in a class action challenging some park operations,
The Derrick.com reports.
The Natural Resources Authority has until April 13, 2006 to
produce the documents, according to Venango County President
President Judge H. William White. In question are timbering and
oil and gas activities and the gate and access fees in the park,
which plaintiffs say violate state constitution limiting use of
public lands," and/or the terms of the deeds granting the land
for the park. The land for the park was acquired under the
state Project 70 Land Acquisition and Borrowing Act of 1964,
which provided for the acquisition of land for recreation,
conservation and historic purposes.
On March 21, plaintiffs' lawyer filed court documents asking
further information about the possible timbering activity to
expedite the release of the requested documents. It followed
advertisements in local newspapers that invites bids for
timbering at the park.
Filed in December 2004, the suit by Donald M. Plumer Jr. and
Joyce S. Plumer of Oil City and Richard A. and Annette K.
Burgert of Myerstown was brought on behalf of all those who were
granted land for the 2,700-acre park in Oakland Township and
Sugarcreek Borough. The suit named as defendants the Venango
Park and Natural Resources Authority, and Parks Unlimited, the
firm owned by Marty and Ann Rudegeair, which has managed the
park since 1998. The suit requests:
(1) A permanent injunction voiding the transfer of the park
property to the authority or a ruling invoking the
penalties for improper transfer of Project 70 lands
(2) That all "commercial activities" associated with oil,
gas, and timbering operations be prohibited at the park
(3) That the use of the gate and gate fees be prohibited
(4) Attorney's fees and costs.
The suit was filed in Venango County. Representing the Plumers
and Burgerts is lawyer Michael Hadley of 420 Meadowlark Rd.,
Santa Ynez, California, (Santa Barbara Co.). The operators of
Two Mile Run County Park are represented by lawyer Jim
Greenfield.
RECORD COMPANIES: Blamed for Increases in Internet Music Prices
---------------------------------------------------------------
Two consumers filed federal class actions in Manhattan against
four major record firms alleging conspiracy that resulted to the
increase of prices for songs sold in the Internet, Foxnews.Com
reports.
Cindy Seley of California and David Paschkett of Michigan claim
that Universal Music Group, Sony BMG, Warner Music Group and EMI
colluded to fix royalties. As a result, Internet retailers of
downloaded songs such as iTunes and Wal-Mart are forced to raise
prices, which ultimately are passed to consumers. The suit,
filed March 9, seeks unspecified millions of dollars in damages.
Sony BMG, Universal Music, Time Warner, Bertelsmann, and EMI are
also facing a complaint in federal court in San Francisco,
California for supposedly fixing prices for Internet music
downloads and CDs, according to Red Herring (Class Action
Reporter, March 13, 2006). The suit claimed that the companies
"conspired to fix and maintain" music prices, and sought to shut
down online music pioneer Napster at the same they were
introducing their own joint ventures to sell online music.
The suits follow a U.S. Department of Justice investigation into
the pricing of online music and collusion among the major labels
on how songs are sold over the Internet.
SLG GROUP: Accused of Segregating Blacks in Alabama Cemeteries
--------------------------------------------------------------
A Mobile County, Alabama funeral company is facing a class
action alleging it discriminates against black in its memorial
service. A suit filed on March 16 alleged that Serenity Funeral
Home "attempts to bury only Caucasians in Serenity Memorial
Gardens and only African-Americans in Lawn Haven Memorial
Gardens," according to Montgomeryadvertiser.com.
Serenity Funeral Home is owned and operated by SLG Group, Inc.,
which also runs Serenity Memorial Garden, Lawn Haven Memorial
Gardens and Gulf Coast Vault Co. in Mobile County.
Contact information for SLG Group, Inc. 8691 Old Pascagoula
Road, Theodore, AL 36582, Mobile County: Phone: (251) 653-4781,
(251) 653-8651, (251) 653-8651.
SMITHKLINE BEECHAM: 49 States Receive $14M in Paxil Litigation
--------------------------------------------------------------
New York Attorney General Eliot Spitzer announced a $14 million
multi-state settlement with SmithKline Beecham Corporation d/b/a
GlaxoSmithKline concerning the drug Paxil.
The settlement resolves claims that GlaxoSmithKline delayed
generic competition by fraudulently listing and prosecuting
litigation concerning paroxetine hydrochloride, a drug that
GlaxoSmithKline sells as Paxil which is used to treat
depressive, anxiety, and obsessive-compulsive disorders.
The settlement secures recovery for all state proprietary
claims, primarily for Medicaid purchases that are excluded from
a class action settlement for the other end users of paroxetine
hydrochloride.
The culmination of a multi-state investigation, the settlement
extends to state purchasers the benefits of class action
settlement in the Nichols v. SmithKlineBeecham Corp., No. 00-CV-
6222 (E.D. Pa.), which was premised on a patent litigation
victory at trial by the generic manufacturers.
The state settlement, which includes 49 states (West Virginia
having settled separately), secures recovery for purchasers that
could not recover under the class settlement. Medicaid is the
most significant state purchaser, representing over 90% of such
purchases. The settlement also provides recovery for other
state proprietary purchases for indigent care. Proceeds will be
distributed pro rata among the states based on each state's
purchases. New York will receive $1,386,312 in settlement
proceeds.
In August 2004 Attorney General Spitzer reached a separate
agreement with Glaxosmithkline under which the company became
the first major drug manufacturer to publicly disclose
information on clinical studies of its drugs. The settlement
followed a lawsuit alleging that the company withheld negative
information suggesting a possible increased risk of suicidal
thinking and acts in certain individuals taking Paxil.
In April 2005, Attorney General Spitzer reached a second
unrelated national settlement with Glaxosmithkline for $10
million. This settlement was designed to resolve state
proprietary claims that Glaxosmithkline delayed generic
competition by fraudulently listing and prosecuting litigation
concerning the drug nabumetone, an anti-inflammatory drug that
Glaxosmithkline sells under the trademark Relafen.
The settlement announced, and the underlying investigation, were
handled by Assistant Attorney General Robert Hubbard of the
Attorney General's Antitrust Bureau, under the direction of
Antitrust Bureau Chief Jay Himes.
Based in Londong GlaxoSmithKline plc -- http://www.gsk.com-- is
one of the top five pharmaceutical firms in the world.
TYSON FOODS: High Court Rules Out $1.28B Damages in Pickett Suit
----------------------------------------------------------------
The U.S. Supreme Court denied plaintiffs motion to appeal a
lower court's decision in favor of major meatpackers in the case
Pickett v. Tyson Fresh Meats, Inc. (formerly IBP, Inc.), the
Dakota Voice reports.
In February, the Ranchers-Cattlemen Action Legal Fund, United
Stockgrowers of America (R-CALF USA), along with 36 local, state
and tribal groups, filed a friend-of-the-court brief in the suit
(Class Action Reporter, Feb. 10, 2006). The group asked the
U.S. Supreme Court to review a decision by the U.S. 11th Circuit
Court of Appeals on price manipulation in the meatpacking
industry, The CattleNetwork.com reported.
In the brief, R-CALF USA argued that failure to review the 11th
Circuit's decision could profoundly undermine the Packers and
Stockyards Act of 1921 (PSA), a key component of U.S. law, which
regulates market abuses by the meatpacking industry.
In July 1996, certain cattle producers filed a class action
styled "Henry Lee Pickett, et al. v. IBP, Inc." in the U.S.
District Court for the Middle District of Alabama, seeking
certification of a class of all cattle producers. The complaint
alleged that Tyson Foods "used its market power and alleged
captive supply agreements to reduce the prices paid by TFM on
purchases of cattle in the cash market in alleged violation of
the Packers and Stockyards Act (Class Action Reporter, Jan. 4,
2005).
Plaintiffs sought injunctive and declaratory relief, as well as
actual and punitive damages. Plaintiffs submitted an amended
expert report on November 19, 2003, showing alleged damages on
all cash market purchases by Tyson Foods of approximately $2.1
billion. Trial of this matter began on January 12, 2004, and
concluded on February 10, 2004. On February 17, 2004, a jury
returned a verdict against Tyson Foods on liability and gave an
"advisory" verdict on damages that estimated the impact on the
cash market (i.e., a group larger than the class) to be $1.28
billion, (Class Action Reporter, Jan. 4, 2005).
On February 25, 2004, Tyson Foods filed a renewed motion
requesting the Court to enter a judgment as a matter of law for
the company. On March 1, 2004, the plaintiffs filed motions
asking the Court to enter the $1.28 billion advisory verdict as
an award of damages to the plaintiffs and requesting prejudgment
interest. On March 22, 2004, the court denied the plaintiff's
motions for entry of a damages award. On April 23, 2004, the
Court granted Tyson Food's matter of law motion, and held:
(1) that Tyson Foods had legitimate business reasons for
using "captive supplies;"
(2) there was "no evidence before the Court to suggest that
[Tyson Food's] conduct is illegal;" and
(3) "plaintiffs failed to present evidence at trial to
sustain their burden with respect to liability and
damages" (Class Action Reporter, Jan. 4, 2005).
The suit was styled "Pickett, et al. v. Tyson Fresh Meats, et
al., 2:96-cv-01103-LES-CSC," filed in the U.S. District
Court for the Middle District of Alabama under Judge Lyle E.
Strom, presiding. Representing the plaintiffs are:
(i) Andrew Clay Allen, Joe R. Whatley, Peter Harrington
Burke, Whatley Drake, LLC, PO Box 10647, Birmingham, AL
35202-0647, Phone: 205-328-9576, Fax: 328-9669, Email:
aallen@whatleydrake.com, jwhatley@whatleydrake.com or
measterwood@whatleydrake.com
(ii) David Alan Domina, Norah M. Kane, Domina Law PC, 1065
North 115th Street, Suite 150, Omaha, NE 68154, Phone:
402-493-4100, Fax: 402-493-9782, E-mail:
dad@dominalaw.com or nmk@dominalaw.com
(iii) Ernest Clayton Hornsby, Jr., Morris Haynes & Hornsby
The Financial Center, 505 North 20th Street, Suite
1150, Birmingham, AL 35203, Phone: 205-324-4008, Fax:
205-324-0803, Email: chornsby@bellsouth.net
(iv) Larry Wade Morris, Morris, Haynes & Hornsby, PO Box
1660, Alexander City, AL 35011-1660, Phone: 256-329-
2000, Fax: 329-2015, Email: paralegal888@yahoo.com
(v) Pierce Jackson Harris, Jr., Randy Beard, Beard & Beard
PO Box 88, Guntersville, AL 35976-0088, Phone: 256-582-
3189, Fax: 256-582-6787, Email: pj@beardandbeard.com or
randy@beardandbeard.com
(vi) Stephen K. Griffith, Knight Griffith McKenzie Knight
McLeroy & Little LLP, PO Box 930, Cullman, AL 35056,
Phone: 256-734-0456, Fax: 256-734-0466 or Email:
skgriff@knight-griffith.com.
Representing the defendants are: Sidley Austin Brown & Wood,
1501 K Street, NW, Washington, DC 20005, Phone: 202-736-8000,
Fax: 202-736-8711, E-mail: fvolpe@sidley.com and Nathan Hodne,
Tyson Foods, Inc., Asst. General Counsel, 2210 West Oaklawn
Drive Springdale, AR 72762, Phone: 479-290-4706, Fax:
479-290-7967, E-mail: Nathan.Hodne@Tyson.com.
UNITEDHEALTH GROUP: Ark. Court Rules on "Commencement" Issue
------------------------------------------------------------
The U.S. District Court for the Western District of Arkansas
ruled in the class action styled, "Hot Spring County Solid Waste
Authority v. UnitedHealth Group, No. 05-6065 (W.D. Ark. Jan. 13,
2006)," that a relation-back analysis is irrelevant to the
"commencement" issue under the Class Action Fairness Act (CAFA)
of 2005, according to McGlinchey Stafford of
http://www.cafalawblog.com/.
On January 13, 2006, U.S. District Judge Robert T. Dawson,
writing for the Western District of Arkansas, followed "Weekley
v. Guidant Corp., 392 F. Supp. 2d 1066 (E.D. Ark. 2005)," and
granted the plaintiffs' motion to remand because, as in Weekley,
the action was commenced prior to the enactment of the Class
Action Fairness Act. The plaintiff, Hot Spring County SWA,
originally filed its class action complaint in the Circuit Court
of Hot Spring County, Arkansas, on June 23, 2004. It alleged
violations of the Arkansas Deceptive Trade Practices Act, as
well as claims for breach of fiduciary duty, civil conspiracy,
negligent supervision and negligent management.
In the preliminary, pre-CAFA skirmishes, Hot Spring amended its
complaint on July 15, 2004, and on August 5, 2004, the defendant
removed the case to federal court, asserting the existence of
diversity jurisdiction based on fraudulent joinder. Hot Spring
timely moved to remand the case, and the motion was granted on
October 1, 2004.
After the action was sent back to state court, the state court
judge found that Hot Spring did not have standing to pursue
claims against the defendant on behalf of its employees, but
allowed it twenty days to amend its complaint. On July 26,
2005, Hot Spring filed its third amended class action complaint,
adding two of its employees to satisfy the standing requirement,
which prompted the defendant to again remove this action to
federal court, asserting federal jurisdiction under CAFA.
Judge Dawson addressed the issue, as whether an amended
complaint necessitated by a plaintiff's lack of standing
constitutes the "commencement" of a new action for purposes of
determining whether CAFA is applicable. Before beginning its
analysis, the court noted that the party seeking removal has the
burden of establishing federal jurisdiction, without discussing
the shifting of the burden to the party challenging federal
jurisdiction as set out in CAFA's legislative history.
Following the majority of precedent concerning commencement, the
parties focused on whether the third amended complaint related
back to the filing of the original complaint in their pleadings.
However, giving great weight to Judge James Leon Holmes' opinion
in Weekley, Judge Dawson, interestingly, decided that the
relation-back debate to be irrelevant. Specifically, Judge
Dawson held that CAFA was unambiguous as to its application to
cases filed before February 18, 2005, and to support his
argument, quoted Weekley for the proposition that "a civil
action, viewed as the whole case, the whole proceeding, can only
be commenced once. Pleadings may be amended, but amending
pleadings does not commence a civil action...."
Based on this rationale, the court held that the third amended
complaint did not "commence" a new action on July 26, 2005, and
therefore, since this action was commenced prior to the
enactment of CAFA, removal was not proper under the Class Action
Fairness Act.
The suit is styled, "Hot Spring County Solid Waste Authority, et
al. v. UnitedHealth Group, et al., Case No. 6:05-cv-06065-RTD,"
filed in the U.S. District Court for the Western District of
Arkansas under Judge Robert T. Dawson. Representing the
plaintiffs are:
(1) Herbert T. Schwartz of Attorney at Law, 6303 Beverly
Hill, Houston, TX 77057, Phone: (713) 255-2888, Fax:
(713) 784-8351, E-mail: htslaw@herbertschwartz.com;
(2) Donald M. Spears of Spears and Spears, 113 S. Market
Street, Benton, AR 72015, Phone: (501) 315-5335;
(3) Luther Oneal Sutter of Harrill & Sutter, P.L.L.C., Post
Office Box 26321, Little Rock, AR 72221, Phone: 501-
224-1050, Fax: 501-223-9136, E-mail:
jwatson@aristotle.net; and
(4) Bud B. Whetstone and Joseph W. Woodson, Jr. of
Whetstone and Spears, Phone: (501) 376-3564, E-mail:
jwoodsonjr@yahoo.com.
Representing the defendants are, Thomas F. Fitzgerald, Christa
Haas and Michael J. Prame of Groom Law Group Chartered, Phone:
202-861-6617 and 202-857-0620, Fax: 202-659-4503, E-mail:
tfitzgerald@groom.com, cdh@groom.com and mjp@groom.com; and
Louis L. Loyd, 108 West Third St, Malvern, AR 72104, Phone: 501-
332-6633, Fax: 501-332-6644, E-mail: louisloyd@sbcglobal.net.
For more details visit: http://researcharchives.com/t/s?71a(Hot
Springs Opinion) and http://researcharchives.com/t/s?719
(Weekley Opinion).
UNITED STATES: Ranchers Claim New Pricing Law Undervalues Meat
--------------------------------------------------------------
Several ranchers alleged in a class action that the U.S.
Department of Agriculture's market report on cattle prices is
erroneous, according to Brownfield Network.
Ranchers alleged that meatpackers took advantage of the new
mandatory price reporting law in 2001 to artificially lower
prices for live cattle, the report said. They are demanding
that meatpackers repay them for the alleged lost income.
Some of the largest meatpackers in the nation want the
Agriculture Department's market report excluded from a federal
trial that begins this week in South Dakota, according to the
report. Jury selection will begin March 31 in Aberdeen, South
Dakota, with opening arguments expected to start April 3, the
report said.
ZURICH FINANCIAL: Insurance Issues to Cost Millions of Dollars
--------------------------------------------------------------
Zurich Financial Services said it expects to book $325 million
to settle insurance-related complaints against it, Swissinfo
reports. The amount includes lawyers' fees and payments in
connection with class actions.
On March 27, the company agreed to pay $153 million to settle
bid-rigging and accounting investigations in the U.S. The
"Three-State Agreement" is with the attorneys general of New
York, Illinois and Connecticut. It requires Zurich to pay $88
million in restitution to policyholders and $65 million in
fines. According to New York Attorney General Eliot Spitzer,
Zurich had also agreed to "sweeping reforms" and had made an
apology acknowledging its improper conduct.
This follows an announcement of a nearly $172 million payment in
relation to an industry-wide probe into insurance dealings.
Switzerland-based Zurich Financial -- http://www.zurich.com--
has operations in more than 50 countries worldwide, the company
is the second-largest provider of general corporate insurance
(after AIG).
New Securities Fraud Cases
H&R BLOCK: Bruce G. Murphy Files Securities Fraud Suit in Miss.
---------------------------------------------------------------
The Law Offices of Bruce G. Murphy initiated a class action on
behalf of all persons who purchased the common stock of H&R
Block, Inc. (HRB).
The action is pending in the U.S. District Court for the Western
District of Missouri against the Company, and certain of its
officers. 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.
In particular, in February 2005, California Attorney General
Bill Lockyer sued the Company over its highly publicized
referral anticipation loans (RALs) seeking "hundreds of millions
of dollars" on behalf of customers and $20 million in civil
penalties. Mr. Lockyer's action joins a long list of lawsuits
that have targeted HRB's RALs -- cash advances that the Company
arranges for customers so they won't have to wait an extra one
to four weeks for a check from the federal government they are
otherwise entitled to receive. In return for the loans,
customers must agree to give a percentage of their tax refunds
to HRB and its banking partners.
Further, the Company reported inflated earnings during the Class
Period. As reported on or about February 23, 2006, the Company
must restate results for fiscal 2004 and 2005, plus previous
2006 quarters, because of errors in calculations regarding its
state effective income tax rate. Reportedly, the errors
resulted in the Company understating state income tax
liabilities by at least $32 million as of the end of April 2005.
Indeed, on March 13, 2006, the Company announced it would delay
filing its quarterly report on SEC Form 10-Q until it has
completely sorted out its problems.
Finally, on March 15, 2006, New York Attorney General Elliot
Spitzer sued HRB alleging that the Company over the last four
years opened more than 500,000 "Express IRA" accounts, an
individual retirement account ("IRA") that can take the form of
either a Traditional IRA or a Roth IRA, for clients of its tax-
preparation service; but 85% of the customers who opened the
accounts paid the Company fees in excess of what they earned in
interest. According to Mr. Spitzer's complaint, the program
exploited lower income, working families who were led to believe
the plan presented an excellent opportunity to save for
retirement.
Mr. Spitzer's complaint further avers that Mr. Ernst was aware
of the improper fee practices along with other high-ranking
members of management.
Revelations concerning the Company's improper practices
concerning the Express IRA scheme hammered the Company's stock.
By late afternoon trading on March 15, 2006, the Company's price
per share was down 5.5% at $20.28; earlier, shares traded as low
as $19.80 per share, passing the previous 52-week low of $21.58
set on March 16, 2006.
HRB's use of these improper practices served to artificially
inflate the Company's reported earnings during the Class Period
because the Company's earnings were generated through an
improper and unsustainable business practice. Accordingly, the
Company's Class Period statements concerning its compliance with
applicable laws and regulations were false.
Also, the Company, having disclosed the existence of -- and
touted the success of -- the Express IRA plan and the RALs
program, was obligated to disclose the risks associated with the
business, including that members of management, e.g., Mr. Ernst,
were aware that these plans (or at least how they were
implemented) ran afoul of certain regulations. Failure to
disclose this information constituted material omissions, the
ultimate disclosure of which harmed the Company's stockholders.
For more details, contact Bruce G. Murphy, Esq., 265 Llwyds
Lane, Vero Beach, FL 32963, Phone: (772) 231-4202, E-mail:
bgm@brucemurphy.biz.
MERGE TECHNOLOGIES: Pomerantz Haudek Files Stock Suit in Wis.
-------------------------------------------------------------
Pomerantz Haudek Block Grossman & Gross, LLP filed a class
action in the U.S. District Court for the Eastern District of
Wisconsin, Milwaukee Division, (Case 2:06-cv-00356-RTR) against
Merge Technologies Incorporated d/b/a Merge Healthcare and
certain of its officers, on behalf of purchasers of the common
stock of the Company during the period from August 2, 2005 to
March 16, 2006. The complaint alleges violations of Section
10(b) and Section 20(a) of The Exchange Act and Rule 10b-5.
Merge Technologies, based in Milwaukee, provides clinical
information systems integration solutions for healthcare
organizations. The complaint alleges that defendants' Class
Period representations regarding the Company were false and
misleading when made because the Company lacked effective
internal controls in its financial reporting such that it was
unable to properly analyze and/or estimate Merge Healthcare's
future financial and operational performance.
As a result of the Company's improper accounting practices,
defendants' Class Period statements concerning Merge
Healthcare's financial performance and prospects were materially
false and misleading.
Specifically, on February 24, 2006, Merge Healthcare issued a
press release announcing that the Company was delaying the
release of its fourth-quarter 2005 financial results, that the
Company expected a substantial loss for the quarter and that it
was reducing its revenue guidance for the year. Shares of Merge
Healthcare fell $4.00 per share, or 16.33%, to close that day at
$20.50 per share. Over the next three trading days, Merge
shares continued falling an additional 12%, to close at $18.12
by the end of trading on March 1, 2006.
On March 17, 2006, defendants disclosed the Company's true
financial position and revealed that accounting improprieties
necessitated the delay of the Company's completion of its
financial statements for the year ended December 31, 2005.
Specifically, the Company announced the "reason for the delay
relates to revenue recognition and tax accounting matters
relating to the merger of the Company and Cedara Software
Corporation in June 2005." In addition, the Company announced
that its management and Audit Committee "concluded that its
previously issued financial statement for the quarters ended
June 30, 2005 and September 30, 2005" should no longer be relied
upon. As a result of these revelations, the Company's common
stock declined further and closed at $15.85.
The complaint also alleges that during the Class Period, with
the Company's stock trading at artificially inflated prices, the
Company's insiders sold 680,395 shares for gross proceeds of
over $29 million dollars.
For more details, contact Teresa L. Webb or Carolyn S. Moskowitz
of the Pomerantz Haudek Block Grossman & Gross, LLP, Phone:
(888) 476-6529, E-mail: tlwebb@pomlaw.com and
csmoskowitz@pomlaw.com, Web site: http://www.pomerantzlaw.com.
MERGE TECHNOLOGIES: Schatz & Nobel Files Securities Suit in Wis.
----------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., initiated a lawsuit
seeking class action status in the U.S. District Court for the
Eastern District of Wisconsin of on behalf of all persons who
purchased or otherwise acquired the publicly traded securities
of Merge Technologies, Inc. d/b/a Merge Healthcare between
August 2, 2005 and March 16, 2006, inclusive.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of materially false
statements. Specifically, defendants misrepresented that the
Company's merger with Cedara Software Corporation was highly
successful while concealing:
(1) that Merge lacked adequate internal controls;
(2) the Company's financial statements for the second and
third quarters of 2005 were unreliable; and
(3) that the Company's financial projections were
irresponsible considering the knowledge defendants
possessed concerning the Company's actual financial
situation.
On March 17, 2006, Merge reported, inter alia:
(i) that the accounting improprieties necessitated that
management delay the completion of its financial
statements for the fiscal year ended December 31, 2005;
(ii) that its audit committee, with the assistance of
outside counsel, was investigating anonymous
complaints;
(iii) that it anticipates a report of material weaknesses in
the Company's internal control over financial
reporting;
(iv) the suspension of its registration statement on Form S-
3 relating to issuance of common stock upon exchange of
exchangeable shares of "Merge/Cedara ExchangeCo Ltd.;"
and
(v) that its audit committee concluded that its previously
issued financial statements for the second and third
quarters 2005, should no longer be relied upon.
For more details, contact Wayne T. Boulton or Nancy A. Kulesa of
Schatz & Nobel, P.C., Phone: 800-797-5499, E-mail:
sn06106@aol.com, Web site: http://www.snlaw.net.
NORTHFIELD LABORATORIES: Charles Piven Lodges Stock Suit in Ill.
----------------------------------------------------------------
The Law Offices Of Charles J. Piven, P.A., filed a securities
class action on behalf of shareholders who purchased, converted,
exchanged or otherwise acquired the common stock of Northfield
Laboratories, Inc. (NASDAQ: NFLD) between February 20, 2004 and
February 21, 2006.
The case is pending in the U.S. District Court for the Northern
District of Illinois. The action charges that defendants
violated federal securities laws by issuing a series of
materially false and misleading statements to the market
throughout the Class Period, which statements had the effect of
artificially inflating the market price of the Company's
securities. No class has yet been certified in the above
action.
For more details, contact The Law Offices Of Charles J. Piven,
P.A., The World Trade Center-Baltimore, 401 East Pratt Street,
Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-
mail: hoffman@pivenlaw.com.
NORTHFIELD LABORATORIES: Rosen Law Files Securities Suit in Ill.
----------------------------------------------------------------
The Rosen Law Firm initiated a class action in the U.S. District
Court for the Northern District of Illinois, on behalf of
purchasers of Northfield Laboratories, Inc. common stock during
the period between February 20, 2004 and February 21, 2006,
including purchasers in the May 2004 and February.
The complaint charges Northfield and certain of its officers and
directors with violations of the Securities Act of 1933 and
Securities Exchange Act of 1934 by virtue of the Company's
issuance of a series of materially false and misleading
statements concerning the safety and history of the Company's
blood substitute PolyHeme. In particular, the complaint alleges
that the Company failed to disclose that a significant portion
of patients taking PolyHeme in a clinical study suffered heart
attacks within seven days of taking PolyHeme -- as compared to
zero heart attacks from patients receiving real blood in the
same study.
On February 22, 2006, the investing public, for the first time,
learned of the heart attacks through a Wall Street Journal
article. That same day, the Company responded to the Wall
Street Journal article by issuing a press release admitting that
the data concerning the heart attacks was not disclosed because
"publishing the full data upon closing the study, would have
shown that PolyHeme could not be isolated as the cause of the
observed serious adverse events." As a result of the Company's
actions, Northfield stock fell and damaged investors.
For more details, contact Laurence Rosen, Esq. and Phillip Kim,
Esq. of The Rosen Law Firm, P.A, Phone: (212) 686-1060 and 1-
866-767-3653, Fax: (212) 202-3827, E-mail: lrosen@rosenlegal.com
and pkim@rosenlegal.com, Web site: http://www.rosenlegal.com.
PAINCARE HOLDINGS: Murray Frank Lodges Securities Suit in Fla.
--------------------------------------------------------------
Murray, Frank & Sailer, LLP, initiated a class action in the
U.S. District Court for the Middle District of Florida on behalf
of all securities purchasers of PainCare Holdings, Inc. between
August 27, 2002, and March 15, 2006.
PainCare is based in Orlando, Florida, and describes itself as a
leading provider of cost-effective, high-tech pain relief. The
complaint alleges that PainCare and the individual defendants
violated the federal securities laws by overstating and
exaggerating the company's financial health. In particular,
according to the complaint, PainCare went on a buying spree,
growing its business by corporate acquisition, but accounting
for such acquisitions in violation of Generally Accepted
Accounting Principles (GAAP).
The Company overstated its earnings by failing to comply with
GAAP in recording its noncash growth. On March 15, 2006, the
last day of the class period, the Company announced that it
would have to restate its financial figures going back to 2000--
to its founding--in order to adjust for the improper accounting
of its corporate acquisitions.
In the wake of the revelation of the defendants' wrongful
conduct, the company's stock sunk to new lows, having recently
traded at under $1.75 per share--down from its class period high
of $5.25 per share. In just the first day of trading following
the announced restatement, PainCare's stock dropped 12.6%, on
extremely heavy volume, down over 50% from its class period
high. As a result, investors lost millions of dollars.
For more details, contact Eric J. Belfi and Bradley P. Dyer of
Murray, Frank & Sailer, LLP, Phone: (800) 497-8076 and (212)
682-1818, Fax: (212) 682-1892, E-mail: info@murrayfrank.com, Web
site: http://www.murrayfrank.com/CM/NewCases/NewCases.asp.
PAINCARE HOLDINGS: Schiffrin & Barroway Files Stock Suit in Fla.
----------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP initiated a class
action in the U.S. District Court for the Middle District of
Florida on behalf of all securities purchasers of PainCare
Holdings, Inc. from August 27, 2002 through March 15, 2006.
The complaint charges PainCare and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. PainCare describes itself as a leading provider of cost-
effective, high-tech pain relief. The Company has established
and is aggressively expanding a highly specialized, professional
health services organization that is comprised of neuro- and
orthopedic surgeons, physiatrists and pain management
specialists. PainCare's medical professionals offer pain
sufferers a wide range of modalities including interventional
pain management, minimally invasive spine surgery and orthopedic
rehabilitation.
More specifically, the Complaint alleges that the Company failed
to disclose and misrepresented the following material adverse
facts, which were known to defendants or recklessly disregarded
by them:
(1) that the Company materially overstated its financial
results by improperly accounting for its numerous
acquisitions and certain other non-cash expenses;
(2) as such, the Company's financial results were in
violation of GAAP;
(3) that the Company lacked adequate internal controls; and
(4) that as a result of the foregoing, the Company's
financial results were materially inflated at all
relevant times.
On March 15, 2006, the Company announced that it would not be
filing an annual report on Form 10-K for the fiscal year 2005
and that its financial filings for the years 2000 through 2004
and the first three quarters of 2005 were not in compliance with
GAAP and would have to be restated. According to the Company's
March 15 announcement, PainCare estimates that the total
restatement for the years 2000 to 2004 would be a net negative
$23.5 million to earnings. This is significant since the
Company's previously reported earnings during that period were
$7.4 million.
On news of this, shares of PainCare, which had already been in
decline, dropped by 12.5%, on very heavy trading, to a closing
price of $2.50 per share. Within one week of the corrective
disclosure, the Company's stock price sank to $1.41 per share by
March 21, 2006, losing about 50% in value.
For more details, contact Darren J. Check, Esq. or Richard A.
Maniskas, Esq. of Schiffrin & Barroway, LLP, Phone: 1-888-299-
7706 or 1-610-667-7706, E-mail: info@sbclasslaw.com, Web site:
http://www.sbclasslaw.com.
PHH CORP: Federman & Sherwood Lodges Securities Lawsuit in N.J.
---------------------------------------------------------------
Federman & Sherwood initiated a class action in the U.S.
District Court for the District of New Jersey against PHH
Corporation.
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 which had the effect
of artificially inflating the market price. The class period is
from May 12, 2005 through March 1, 2006.
For more details, contact William B. Federman of FEDERMAN &
SHERWOOD, 120 N. Robinson, Suite 2720, Oklahoma City, OK 73102,
Phone: (405) 235-1560, Fax: (405) 239-2112, E-mail:
wfederman@aol.com, Web site: http://www.federmanlaw.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.
*********
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Copyright 2006. All rights reserved. ISSN 1525-2272.
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