/raid1/www/Hosts/bankrupt/CAR_Public/060914.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, September 14, 2006, Vol. 8, No. 183
Headlines
APPLIED SIGNAL: Plaintiffs Appeal Dismissal of Calif. Stock Suit
AUDIBLE INC: To File Stock Suit Dismissal Motion After Briefing
BARR PHARMACEUTICALS: Court Mulls Rehearing of Tamoxifen Case
BARR PHARMACEUTICALS: No Trials Set for Ovcon Antitrust Cases
BARR PHARMACEUTICALS: Still Faces Ciprofloxacin Antitrust Suits
BIG LOTS: Continues to Face Calif. Labor Violations Litigation
CARDINAL HEALTH: Calif. Court Dismisses Consolidated ERISA Suit
CARDINAL HEALTH: Discovery Begins in Ohio ERISA Violations Suit
CARDINAL HEALTH: Discovery Starts in Ohio Securities Fraud Suit
CIENA CORP: IPO Suit Settlement Yet to Receive Court Approval
EVICTION COS: Face Suit in D.C. Court Over Wage Law Violation
INSIGHT COMMUNICATIONS: Sept. Hearing Set for Stock Suit Deal
ISRAELI BANKS: Face Suit Over Alleged Anticompetitive Practices
JUPITERMEDIA CORP: Still Faces Antitrust Litigation in Calif.
LONGS DRUG: June Trial for Calif. Employment Lawsuit Postponed
NEW YORK: Mamaroneck Suit Plaintiffs Drop First Amendment Claims
NORTH CAROLINA: Court Rules Gov. Easley Violated Constitution
NORWEGIAN CRUISE: Passengers' Suit Denied Certification in Fla.
RITE AID: Judge Certifies Overtime Suit by Managers in Calif.
SARA LEE: Ill. Court Dismisses Consolidated Securities Lawsuit
SEARS ROEBUCK: Ill. Court Dismisses Suit Over Kmart Merger
SEARS ROEBUCK: Ill. Court to Hear Motion in Kmart Merger Suit
SEARS ROEBUCK: Still Faces Ill. Stock Suit Over SRAC 7% Notes
SEARS ROEBUCK: Awaits Approval of $215M Ill. Stock Suit Deal
SEARS ROEBUCK: Reaches Tentative Settlement in Ill. ERISA Suit
SYNCOR INT'L: Awaits Ruling in Calif. Consolidated Stock Suit
TOBACCO LITIGATION: Decertification of UCL, CLRA Suit Affirmed
UAE: Faces Abduction, Human Trafficking Charges in U.S. Courts
UNITED STATES: Milberg Plaintiff Files Motion to Dismiss Suit
VISTEON CORP: Mich. Court Dismisses Shareholder Fraud Lawsuit
WEBLOYALTY.COM INC: Faces Privacy Violations Lawsuit in Mass.
New Securities Fraud Cases
ADVO INC: Goldman Scarlato Announces Stock Suit Filing in Conn.
ASPEN TECHNOLOGY: Berman DeValerio Files Securities Fraud Suit
NATURAL HEALTH: Rosen Law Firm Files Tex. Securities Fraud Suit
SCOTTISH RE: Brower Piven Reminds on Lead Plaintiff Filing Date
*********
APPLIED SIGNAL: Plaintiffs Appeal Dismissal of Calif. Stock Suit
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
has yet to rule on an appeal in relation to the dismissal of the
consolidated securities class action against Applied Signal
Technology, Inc.
On March 11 and July 19, 2005, purported securities class
actions were filed against the company. Later, these suits were
consolidated as, "In re Applied Signal Technology Inc.
Securities Litigation, Master File No. 4:05-cv-1027 (SBA)."
The amended consolidated complaint is brought on behalf of a
putative class of persons who purchased the company's company's
securities from Aug. 24, 2004 to Feb. 22, 2005.
The complaints name the company, its chief executive officer,
and its chief financial officer as defendants, and allege that
false and misleading statements regarding the company were
issued during the class period.
On Feb. 8, 2006, the court dismissed the case with prejudice and
entered judgment in defendants' favor.
Plaintiffs appealed the dismissal on March 23, 2006. The
company said any future unfavorable outcome of the litigation
could have an adverse impact on the company's business,
financial condition, and results of operation.
The suit is "In Re: Applied Signal Technology, Inc. Securities
Litigation, Case No. 05-CV-01027," filed in the U.S. District
Court for the Northern District of California under Judge
Saundra Brown Armstrong.
Representing the plaintiffs are:
(1) Bramson, Plutzik, Mahler & Birkhaeuser, LLP, 2125 Oak
Grove Road, Suite 120, Walnut Creek, CA, 94598, Phone:
(925) 945-0200, Fax: (925) 945-8792, E-mail:
info@bramsonplutzik.com;
(2) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com; and
(3) Robert S. Green of Green Welling, LLP, 595 Market
Street, Suite 2750, San Francisco, CA 94105, Phone:
415/477-6700, Fax: 415-477-6710, E-mail:
RSG@CLASSCOUNSEL.COM.
Representing the defendants is David A. Priebe of DLA Piper US,
LLP, 2000 University Avenue, East Palo Alto, CA 94303-2248,
Phone: 650-833-2000, Fax: 650-833-2001, E-mail:
david.priebe@dlapiper.com.
AUDIBLE INC: To File Stock Suit Dismissal Motion After Briefing
---------------------------------------------------------------
Audible, Inc. plans to file a motion to dismiss a consolidated
securities class action it is facing in the U.S. District Court
for the District of New Jersey pending completion of a related
court briefing.
Starting on or about Feb. 22, 2005, several class actions were
filed against Audible and two of the company's executives in the
U.S. District Court for the District of New Jersey.
The plaintiffs purport to represent a class consisting of all
persons who purchased the company's securities between Nov. 2,
2004 and Feb. 15, 2005. They allege that the defendants
violated Section 10(b) of the U.S. Securities Exchange Act of
1934 and Rule 10b-5 there under by failing to make complete and
accurate disclosures concerning the company's future plans and
prospects.
The individual defendants are also alleged to be liable under
Section 20(a) of the U.S. Exchange Act. All of the defendants
are alleged to have sold stock at inflated prices during the
class period.
In December 2005, the U.S. District Court for the District Court
of New Jersey consolidated the class action, appointed a group
of lead plaintiffs and appointed lead plaintiff's counsel. By
prior agreement, the plaintiff's consolidated amended complaint
was filed on Feb. 14, 2006.
On April 20, 2006, the company provided the plaintiffs' counsel
in the consolidated securities class actions with a memorandum
in support of a motion to dismiss the consolidated amended class
action complaint.
On June 26, 2006, the plaintiffs' counsel provided the company
with a memorandum in opposition to the motion. Previously, the
company had intended to provide the plaintiffs' counsel with a
reply brief in further support of the motion to dismiss.
At the suggestion of the court, the company has agreed with the
plaintiffs' counsel not to file the motion to dismiss and the
supporting papers until the briefing has been completed.
The suit is "Carter v. Audible, Inc., et al., Case No. 2:05-cv-
01027-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 are:
(1) Patrick Louis Rocco of Shalov Stone & Bonner, LLP, 163
Madison Avenue, P.O. BOX 1277, Morristown, NJ 07962-
1277, Phone: (973) 775-8997, E-mail: procco@lawssb.com;
(2) William J. Pinilis of Pinilis Halpern, LLP, 237 South
Street, Morristown, NJ 07960, Phone: (973) 401-1111, E-
mail: wpinilis@consumerfraudlawyer.com; and
(3) Daniel S. Sommers of Cohen, Milstein, Hausfeld & Toll,
PLLC, Suite 500 West, 1100 New York Avenue, NW,
Washington, DC 20005, Phone: (202) 408-4600, E-mail:
dsommers@cmht.com.
Representing the defendants are:
(i) Robert A. Assuncao of DLA Piper Rudnick Gray Cary US
LLP, 379 Thornall Street, Eighth Floor, Edison, NJ
08837-2226, Phone: 732-590-1850, E-mail:
robert.assuncao@piperrudnick.com; and
(ii) John E. Keefe, Jr. of Lynch Keefe Bartels, ESQS., 830
Broad Street, Suite 1, Shrewsbury, NJ 07702-4216,
Phone: (732) 224-9400, E-mail: jkeefe@lkblaw.com.
BARR PHARMACEUTICALS: Court Mulls Rehearing of Tamoxifen Case
-------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit has yet to rule
on the merits of a petition for a rehearing en banc with regards
to the tamoxifen citrate antitrust litigation against Barr
Pharmaceuticals, Inc.
Approximately 31 consumer or third-party payor class action
complaints were filed in state and federal courts against
Zeneca, Inc., AstraZeneca Pharmaceuticals L.P. and the company
alleging, among other things, that the 1993 settlement of patent
litigation between Zeneca and the company violated the antitrust
laws, insulated Zeneca and the company from generic competition
and enabled Zeneca and the company to charge artificially
inflated prices for tamoxifen citrate.
A prior investigation of this agreement by the U.S. Department
of Justice was closed without further action. On May 19, 2003,
the U.S. District Court dismissed the complaints for failure to
state a viable antitrust claim.
On Nov. 2, 2005, the U.S. Court of Appeals for the Second
Circuit affirmed the District Court's order dismissing the cases
for failure to state a viable antitrust claim.
On Nov. 30, 2005, plaintiffs petitioned the U.S. Court of
Appeals for the Second Circuit for a rehearing en banc.
The Court of Appeals directed the company to file a response to
plaintiffs' petition, which the company submitted on Jan. 26,
2006. The court has not yet ruled on the merits of the
petition.
Woodcliff Lake, New Jersey-based Barr Pharmaceuticals, Inc.
(NYSE: BRL) -- http://www.barrlabs.com/-- is primarily a
holding company. The company's subsidiaries, Barr Laboratories,
Inc. and Duramed Pharmaceuticals, Inc., develop, manufacture and
market generic and proprietary pharmaceutical products,
respectively. It operates in two business segments. In the
generic pharmaceutical segment, it manufactures and distributes
approximately 150 different dosage forms and strengths of
approximately 75 different generic pharmaceutical products,
including 22 oral contraceptive products that represent the
largest category of its generic product portfolio. In the
proprietary pharmaceutical segment, the company manufactures and
distributes 19 proprietary pharmaceutical products, largely
concentrated in the women's healthcare therapeutic category.
BARR PHARMACEUTICALS: No Trials Set for Ovcon Antitrust Cases
-------------------------------------------------------------
No trial dates have been scheduled for the various antitrust
lawsuits filed against Barr Pharmaceuticals, Inc. with regards
to the drug Ovcon.
To date, the company has been named as a co-defendant with
Warner Chilcott Holdings, Co. III, Ltd., and others in
complaints filed in federal courts by the Federal Trade
Commission, 34 state Attorneys General and nine private class
action plaintiffs claiming to be direct and indirect purchasers
of Ovcon-35.
These actions allege, among other things, that a March 24, 2004
agreement between the company and Warner Chilcott, then known as
Galen Holdings PLC, constitutes an unfair method of competition,
is anticompetitive and restrains trade in the market for Ovcon-
35 and its generic equivalents.
These cases, the first of which was filed by the FTC on or about
Dec. 2, 2005, remain at a very early stage, with discovery cut-
off dates of Dec. 22, 2006 for the FTC and state cases and March
2, 2007 for the private cases. No trial dates have been set.
Woodcliff Lake, New Jersey-based Barr Pharmaceuticals, Inc.
(NYSE: BRL) -- http://www.barrlabs.com/-- is primarily a
holding company. The company's subsidiaries, Barr Laboratories,
Inc. and Duramed Pharmaceuticals, Inc., develop, manufacture and
market generic and proprietary pharmaceutical products,
respectively. It operates in two business segments. In the
generic pharmaceutical segment, it manufactures and distributes
approximately 150 different dosage forms and strengths of
approximately 75 different generic pharmaceutical products,
including 22 oral contraceptive products that represent the
largest category of its generic product portfolio. In the
proprietary pharmaceutical segment, the company manufactures and
distributes 19 proprietary pharmaceutical products, largely
concentrated in the women's healthcare therapeutic category.
BARR PHARMACEUTICALS: Still Faces Ciprofloxacin Antitrust Suits
---------------------------------------------------------------
Barr Pharmaceuticals, Inc. remains a co-defendant with Bayer
Corp., The Rugby Group, Inc., and others in several class action
complaints filed in state and federal courts by direct and
indirect purchasers of Ciprofloxacin (Cipro) from 1997 to the
present.
The complaints allege that the 1997 Bayer-Barr patent litigation
settlement agreement was anti-competitive and violated federal
antitrust laws and/or state antitrust and consumer protection
laws.
A prior investigation of this agreement by the Texas Attorney
General's Office on behalf of a group of state Attorneys General
was closed without further action in December 2001.
The lawsuits include nine consolidated in California state
court, one in Kansas state court, one in Wisconsin state court,
one in Florida state court, and two consolidated in New York
state court, with the remainder of the actions pending in the
U.S. District Court for the Eastern District of New York for
coordinated or consolidated pre-trial proceedings (MDL Case) as,
"In re: Ciprofloxacin Hydrochloride Antitrust Litigation, MDL
Docket No. 001383."
On March 31, 2005, the court in the MDL case granted summary
judgment in the company's favor and dismissed all of the federal
actions before it. On June 7, 2005, plaintiffs filed notices of
appeal to the U.S. Court of Appeals for the Second Circuit.
The Court of Appeals has stayed consideration of the merits
pending consideration of the company's motion to transfer the
appeal to the U.S. Court of Appeals for the Federal Circuit as
well as plaintiffs' request for the appeal to be considered en
banc.
Merits briefing has not yet been completed because the
proceedings are stayed pending en banc consideration of a
similar case.
On Sept. 19, 2003, the Circuit Court for the County of Milwaukee
dismissed the Wisconsin state class action for failure to state
a claim for relief under Wisconsin law. On May 9, 2006, the
Court of Appeals reinstated the complaint on state law grounds
for further proceedings in the trial court, but on July 25,
2006, the Wisconsin Supreme Court granted the defendants'
petition for further review and thus the case remains on appeal.
On Oct. 17, 2003, the Supreme Court of the State of New York for
New York County dismissed the consolidated New York state class
action for failure to state a claim upon which relief could be
granted and denied the plaintiffs' motion for class
certification. An intermediate appellate court affirmed that
decision, and plaintiffs have sought leave to appeal to the New
York Court of Appeals.
On April 13, 2005, the Superior Court of San Diego, California
ordered a stay of the California state class actions until after
the resolution of any appeal in the MDL Case.
On April 22, 2005, the District Court of Johnson County, Kansas
similarly stayed the action before it, until after any appeal in
the MDL Case.
The Florida state class action remains at a very early stage,
with no status hearings, dispositive motions, pre-trial
schedules, or a trial date set as of yet, according to the
company's Aug. 29 form 10-Q filing with the U.S. Securities and
Exchange Commission for the period ended June 30, 2006.
The suit is "In Re: Ciprofloxin Hydrochloride Antitrust
Litigation, Case No. 1:00-md-01383-DGT-SMG," filed in the U.S.
District Court for the Eastern District of New York under Judge
David G. Trager with referral to Judge Steven M. Gold.
Representing the plaintiffs are:
(1) Robert S. Schachter and Joseph S. Tusa of Zwerling,
Schachter & Zwerling, LLP, 41 Madison Avenue, 32nd
Floor, New York, NY 10010, Phone: 212-223-3900, Fax:
212-371-5969, E-mail: rschachter@zsz.com; and
(2) Jennifer S. Abrams of Berman DeValerio Pease & Tabacco,
425 California Street, Suite 2025, San Francsico, Ca
94104, Phone: (415) 433-3200.
Representing the defendants are:
(i) Joseph Serino, Jr. of Kirkland & Ellis, 153 East 53rd
Street, New York, NY 10055, Phone: (212) 446-4800, Fax:
(212) 446-6460, E-mail: jserino@kirkland.com; and
(ii) Fred H. Bartlit, Jr. of Bartlit, Beck, Herman,
Palenchar & Scott, LLP, 54 West Hubbard Street, Suite
300, Courthouse Place, Chicago, IL 60610, Phone: (312)
494-4400.
BIG LOTS: Continues to Face Calif. Labor Violations Litigation
--------------------------------------------------------------
Big Lots, Inc. remains a defendant in a class action filed in
the Superior Court of the State of California, County of
Ventura, alleging that it violated labor laws.
On Oct. 13, 2005, the company was served a civil complaint
wherein it was alleged that the company had violated certain
California wage and hour laws.
Plaintiff seeks to recover, on her own behalf and on behalf of
all other individuals who are similarly situated, alleged unpaid
wages and rest and meal period compensation, as well as
penalties, injunctive and other equitable relief, reasonable
attorneys' fees, and costs.
The company reported no other development in the case at its
Sept. 1 form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended July 29, 2006.
Columbus, Ohio-based Big Lots, Inc. (NYSE: BIG) --
http://www.biglots.com/-- is a national broadline closeout
retailer. It purchases excess merchandise directly from
manufacturers that generally result from production overruns,
packaging changes, discontinued products or returns. As a
result of the lower purchase cost, it can generally offer most
merchandise at prices lower than those offered by a traditional
retailer. As of Jan. 28, 2006, the company operated a total of
1,401 stores in 47 states. Its stores are located in the U.S.,
predominantly in strip shopping centers, and have an average
store size of approximately 29,600 gross square feet, of which
an average of 21,300 square feet is selling square feet.
CARDINAL HEALTH: Calif. Court Dismisses Consolidated ERISA Suit
---------------------------------------------------------------
The lead plaintiff in the class action against Cardinal Health,
Inc., Syncor International Corp. and certain officers and
employees of the company, which alleges violations of the
Employee Retirement Income Security Act, is appealing the
dismissal of the case by the U.S. District Court for the Central
District of California.
A purported class action complaint, "Pilkington v. Cardinal
Health, et al.," was filed on April 8, 2003, against the
company, Syncor and certain officers and employees of the
company by a purported participant in the Syncor Employees'
Savings and Stock Ownership Plan.
A related purported class action complaint, "Donna Brown, et al.
v. Syncor International Corp., et al.," was filed on Sept. 11,
2003, against the company, Syncor and certain individual
defendants. Another related purported class action complaint,
"Thompson v. Syncor International Corp., et al.," was filed on
Jan. 14, 2004, against the company, Syncor and certain
individual defendants. Each of these actions was brought in the
U.S. District Court for the Central District of California.
A consolidated complaint was filed on Feb. 24, 2004 against
Syncor and certain former Syncor officers, directors and/or
employees alleging that the defendants breached certain
fiduciary duties owed under ERISA based on the same underlying
allegations of improper and unlawful conduct alleged in the
federal securities litigation.
The consolidated complaint seeks unspecified money damages and
other unspecified relief against the defendants. On April 26,
2004, the defendants filed motions to dismiss the consolidated
complaint. On Aug. 24, 2004, the court granted in part and
denied in part defendants' motions to Dismiss.
The court dismissed, without prejudice, all claims against
defendants Ed Burgos and Sheila Coop, all claims alleging co-
fiduciary liability against all defendants, and all claims
alleging that the individual defendants had conflicts of
interest precluding them from properly exercising their
fiduciary duties under ERISA. A claim for breach of the duty to
prudently manage plan assets was upheld against Syncor, and a
claim for breach of the alleged duty to "monitor" the
performance of Syncor's Plan Administrative Committee was upheld
against defendants Monty Fu and Robert Funari. Trial of these
claims was scheduled for Jan. 7, 2006.
On Jan. 10, 2006, the court entered summary judgment in favor of
all defendants on all remaining claims. Consistent with that
ruling, on Jan. 11, 2006, the court entered a final order
dismissing this case. The lead plaintiff has appealed this
decision.
The suit is "Carol Pilkington v. Cardinal Health Inc, et al.,
Case No. 2:03-cv-02446-RGK-RC," filed in the U.S. District Court
for the Central District of California under Judge R. Gary
Klausner.
Representing the plaintiffs are:
(1) Christopher Kim, Lisa J. Yang, Lim Ruger & Kim, 1055 W
7th St, Ste 2800, Los Angeles, CA 90017, Phone: 213-
955-9500 Email: christopher.kim@lrklawyers.com or
lisa.yang@lrklawyers.com;
(2) Edward Chang, Joseph H. Meltzer, Schiffrin and
Barroway, 280 King of Prussia Road, Radnor, PA 19087,
Phone: 610-667-7706, E-mail: echang@sbclasslaw.com or
jmeltzer@sbclasslaw.com;
(3) Edward W Ciolko, Richard S. Schiffrin, Schiffrin &
Barroway, 3 Bala Plaza E, Ste 400, Bala Cynwyd, PA
19004, Phone: 610-667-7706, Email:
eciolko@sbclasslaw.com;
(4) Elizabeth A Leland, Lynn Lincoln Sarko, T. David
Copley, Tobias Kammer, Keller Rohrback, 1201 3rd Ave,
Ste 3200 Seattle, WA 98101, Phone: 206-623-1900, Email:
bleland@kellerrohrback.com, lsarko@kellerrohrback.com,
dcopley@kellerrohrback.com;
(5) Gary A Gotto, Dalton Gotto Samson & Kilgard, National
Bank Plz, 3101 N Central Ave, Ste 900, Phoenix, AZ
85012-2600, Phone: 602-248-0088, Fax: 602-230-6360; and
(6) Ron Kilgard, Keller Rohrback, 3101 North Central
Avenue, Suite 900, Phoenix, AZ 85012, Phone: 602-248-
0088, Email: rkilgard@kellerrohrback.com.
Representing the defendants is Ted Allan Gehring, Gibson Dunn &
Crutcher, 333 S. Grand Ave., 45th Fl., Los Angeles, CA 90071-
3197, Phone: 213-229-7000.
CARDINAL HEALTH: Discovery Begins in Ohio ERISA Violations Suit
---------------------------------------------------------------
Discovery is proceeding in the consolidated class action pending
in the U.S. District Court for the Southern District of Ohio
against Cardinal Health, Inc. and certain of its officers and
directors over allegations of Employee Retirement Income
Security Act violations.
Beginning July 2, 2004, 15 purported class action complaints
have been filed by purported participants in the Cardinal Health
Profit Sharing, Retirement and Savings Plan, collectively
referred to as the Cardinal Health ERISA actions. These cases
include:
-- "David McKeehan and James Syracuse v. Cardinal Health,
Inc., et al., Case No. 04 CV 643,"
-- "Timothy Ferguson v. Cardinal Health, Inc., et al.,
Case No. 04 CV 668,"
-- "James DeCarlo v. Cardinal Health, Inc., et al., Case
No. 04 CV 684,"
-- "Margaret Johnson v. Cardinal Health, Inc., et al.,
Case No. 04 CV 722,"
-- "Harry Anderson v. Cardinal Health, Inc., et al., Case
No. 04 CV 725,"
-- "Charles Heitholt v. Cardinal Health, Inc., et al.,
Case No. 04 CV 736,"
-- "Dan Salinas and Andrew Jones v. Cardinal Health, Inc.,
et al., Case No. 04 CV 745,"
-- "Daniel Kelley v. Cardinal Health, Inc., et al., Case
No. 04 CV 746,"
-- "Vincent Palyan v. Cardinal Health, Inc., et al., Case
No. 04 CV 778,"
-- "Saul Cohen v. Cardinal Health, Inc., et al., Case No.
04 CV 789,"
-- "Travis Black v. Cardinal Health, Inc., et al., Case
No. 04 CV 790,"
-- "Wendy Erwin v. Cardinal Health, Inc., et al., Case No.
04 CV 803,"
-- "Susan Alston v. Cardinal Health, Inc., et al., Case
No. 04 CV 815,"
-- "Jennifer Brister v. Cardinal Health, Inc., et al.,
Case No. (04 CV 828),"
-- "Gint Baukus v. Cardinal Health, Inc., et al., Case No.
05 C2 101"
The Cardinal Health ERISA actions purport to be brought on
behalf of participants in the 401(k) Plan and the Syncor
Employees' Savings and Stock Ownership Plan, and also on behalf
of the Plans themselves.
The complaints allege that the defendants breached certain
fiduciary duties owed under ERISA, generally asserting that the
defendants failed to make full disclosure of the risks to the
Plans' participants of investing in the company's stock, to the
detriment of the Plans' participants and beneficiaries, and that
company stock should not have been made available as an
investment alternative for the Plans' participants.
The misstatements alleged in the Cardinal Health ERISA actions
significantly overlap with the misstatements alleged in the
Cardinal Health federal securities actions.
The complaints sought unspecified money damages and equitable
relief against the defendants and an award of attorney's fees.
On Dec. 15, 2004, the Cardinal Health ERISA actions were
consolidated into one action captioned, "In re Cardinal Health,
Inc. ERISA Litigation."
On Jan. 14, 2005, the court appointed lead counsel and liaison
counsel for the consolidated Cardinal Health ERISA action.
On Apr. 29, 2005, the lead plaintiff filed a consolidated
amended ERISA complaint naming the company, certain current and
former directors, officers and employees, the company's Employee
Benefits Policy Committee and Putnam Fiduciary Trust Co. as
defendants. The complaint seeks unspecified money damages and
other unspecified relief against the defendants.
On Dec. 1, 2005, the lead plaintiff filed a motion for class
certification. The parties agreed to leave the motion for class
certification pending while the court considered a motion to
dismiss.
On Mar. 31, 2006, the court granted the motion to dismiss with
respect to Putnam Fiduciary Trust Co. and with respect to
plaintiffs' claim for equitable relief. The court denied the
remainder of the motion to dismiss filed by the company and
certain defendants. Discovery is now proceeding.
The suit is "In re Cardinal Health, Inc. ERISA Litigation, Case
No. 2:04-cv-00643-ALM-NMK," filed in the U.S. District Court for
the Southern District of Ohio under Judge Algenon L. Marbley.
Representing the plaintiffs are:
(1) James Edward Arnold, Clark Perdue Arnold & Scott - 2,
471 East Broad Street, Suite 1400, Columbus, OH 43215,
Phone: 614-469-1400, E-mail: jarnold@cpaslaw.com; and
(2) George E. Barrett of Barrett Johnston & Parsley - 1,
217 Second Avenue, N. Nashville, TN 37201, Phone: 615-
244-2202, E-mail: gbarrett@barrettjohnston.com.
Representing the company are:
(i) J. Kevin Cogan, Jones Day, 325 John H. McConnell Blvd.,
PO Box 165017, Columbus, OH 43216-5017, Phone: 614-469-
3939, Fax: 614-461-4198, Email: jcogan@jonesday.com;
and
(ii) Roger Philip Sugarman of Kegler Brown Hill & Ritter -
2, 65 E. State Street, Suite 1800, Columbus, OH 43215-
4294, Phone: 614-462-5400, Fax: 614-462-5422, E-mail:
rsugarman@keglerbrown.com.
CARDINAL HEALTH: Discovery Starts in Ohio Securities Fraud Suit
---------------------------------------------------------------
Discovery is proceeding in the consolidated securities class
action against Cardinal Health, Inc. and certain of its officers
and directors that is pending in the U.S. District Court for the
Southern District of Ohio.
Since July 2, 2004, purported purchasers of the company's
securities have filed 10 purported class action complaints.
They named the company and certain of its officers and
directors, asserting claims under the federal securities laws.
These cases include:
-- "Gerald Burger v. Cardinal Health, Inc., et al., Case
No. 04 CV 575,"
-- "Todd Fener v. Cardinal Health, Inc., et al., Case No.
04 CV 579,"
-- "E. Miles Senn v. Cardinal Health, Inc., et al., Case
No. 04 CV 597,"
-- "David Kim v. Cardinal Health, Inc., Case No. 04 CV
598,"
-- "Arace Brothers v. Cardinal Health, Inc., et al., Case
No. 04 CV 604,"
-- "John Hessian v. Cardinal Health, Inc., et al., Case
No. 04 CV 635,"
-- "Constance Matthews Living Trust v. Cardinal Health,
Inc., et al., Case No. 04 CV 636,"
-- "Mariss Partners, LLP v. Cardinal Health, Inc., et al.,
Case No. 04 CV 849,"
-- "The State of New Jersey v. Cardinal Health, Inc., et
al., Case No. 04 CV 831,"
-- "First New York Securities, LLC v. Cardinal Health,
Inc., et al., Case No. 04 CV 911"
The Cardinal Health federal securities actions purport to be
brought on behalf of all purchasers of the company's securities
during various periods beginning as early as Oct. 24, 2000 and
ending as late as July 26, 2004.
The suits allege, among others, that the defendants violated
Section 10(b) of the U.S. Securities Exchange Act of 1934, as
amended, and Rule 10b-5 promulgated thereunder and Section 20(a)
of the U.S. Exchange Act by issuing a series of false and/or
misleading statements concerning the company's financial
results, prospects and condition.
Certain of the complaints also allege violations of Section 11
of the U.S. Securities Act of 1933, as amended, claiming
material misstatements or omissions in prospectuses issued by
the company in connection with its acquisition of Bindley
Western Industries, Inc. in 2001 and Syncor in 2003.
The alleged misstatements relate to the company's accounting for
recoveries relating to antitrust litigation against vitamin
manufacturers, and to classification of revenue in the company's
Pharmaceutical Distribution business as either operating revenue
or revenue from bulk deliveries to customer warehouses, and
other accounting and business model transition issues, including
reserve accounting.
The alleged misstatements are claimed to have caused an
artificial inflation in the company's stock price during the
proposed class period.
The complaints sought unspecified money damages and equitable
relief against the defendants and an award of attorney's fees.
On Dec. 15, 2004, the Cardinal Health federal securities actions
were consolidated into one action captioned, "In re Cardinal
Health, Inc. Federal Securities Litigation." On Jan. 26, 2005,
the court appointed the Pension Fund Group as lead plaintiff in
this consolidated action.
On Apr. 22, 2005, the lead plaintiff filed a consolidated
amended complaint naming the company, certain current and former
officers and employees and the company's external auditors as
defendants. The complaint seeks unspecified money damages and
other unspecified relief against the defendants.
On Mar. 27, 2006, the court granted a motion to dismiss with
respect to the company's external auditors and a former officer
and denied the motion to dismiss with respect to the company and
the other individual defendants. Discovery is now proceeding.
The suit is "In re Cardinal Health, Inc. Securities Litigation,
Case No. 04-CV-575," filed in the U.S. District Court for the
Southern District of Ohio.
Representing the plaintiffs are:
(1) Bernstein Liebhard & Lifshitz, LLP, (New York, NY), 10
E. 40th Street, 22nd Floor, New York, NY, 10016, Phone:
800-217-1522, E-mail: info@bernlieb.com;
(2) Milberg, Weiss, Bershad, Hynes & Lerach, LLP, (San
Diego, CA), 600 West Broadway, 1800 One America Plaza,
San Diego, CA, 92101, Phone: 800.449.4900, E-mail:
support@milberg.com; and
(3) John R. Climaco, Climaco Lefkowitz Peca Wilcox &
Garofoli LPA - 1, 1228 Euclid Avenue, Suite 900,
Cleveland, OH 44115-1891, Phone: 216-621-8484, Fax:
216-771-1632, E-mail: jrclim@climacolaw.com.
Representing the company are John M. Newman, Jr., Geoffrey J.
Ritts of Jones, Day, Reavis, & Pogue, North Point, 901 Lakeside
Ave, Cleveland, OH 44114-1190, Phone: 216-586-3939, E-mail:
jmnewman@jonesday.com or gjritts@jonesday.com.
CIENA CORP: IPO Suit Settlement Yet to Receive Court Approval
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to issue an order with respect to the final approval of
the settlement of a consolidated securities class action against
Ciena Corp., according to the company's Aug. 31, 2006 form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended July 31, 2006.
As a result of its merger with ONI Systems Corp. in June 2002,
the company became a defendant in a securities class action.
Beginning in August 2001, a number of substantially identical
class action complaints alleging violations of the federal
securities laws were filed against the company in the U.S.
District Court for the Southern District of New York.
These complaints name ONI, Hugh C. Martin, ONI's former
chairman, president and chief executive officer; Chris A. Davis,
ONI's former executive vice president, chief financial officer
and administrative officer; and certain underwriters of ONI's
initial public offering as defendants.
The complaints were consolidated into a single action, and a
consolidated amended complaint was filed on April 24, 2002. The
amended complaint alleges, among other things, that the
underwriter defendants violated the securities laws by failing
to disclose alleged compensation arrangements -- such as
undisclosed commissions or stock stabilization practices -- in
the initial public offering's registration statement and by
engaging in manipulative practices to artificially inflate the
price of ONI's common stock after the initial public offering.
The amended complaint also alleges that ONI and the named former
officers violated the securities laws on the basis of an alleged
failure to disclose the underwriters' alleged compensation
arrangements and manipulative practices. No specific amount of
damages has been claimed.
Similar complaints have been filed against more than 300 other
issuers that have had initial public offerings since 1998, and
all of these actions have been included in a single coordinated
proceeding.
Mr. Martin and Ms. Davis have been dismissed from the action
without prejudice pursuant to a tolling agreement.
In July 2004, following mediated settlement negotiations, the
plaintiffs, the issuer defendants (including the company), and
their insurers entered into a settlement agreement, whereby the
plaintiffs' cases against the issuers are to be dismissed.
The plaintiffs and issuer defendants subsequently moved the
court for preliminary approval of the settlement agreement,
which motion was opposed by the underwriter defendants.
On Feb. 15, 2005, the district court granted the motion for
preliminary approval of the settlement agreement, subject to
certain modifications to the proposed bar order, and directed
the parties to submit a revised settlement agreement reflecting
its opinion.
On Aug. 31, 2005, the district court issued a preliminary order
approving the stipulated settlement agreement, approving and
setting dates for notice of the settlement to all class members.
A fairness hearing was held on April 24, 2006, at which time the
court took the matter under advisement. The settlement
agreement does not require the company to pay any amount toward
the settlement or to make any other payments.
For more details, visit http://www.iposecuritieslitigation.com/.
EVICTION COS: Face Suit in D.C. Court Over Wage Law Violation
-------------------------------------------------------------
Six eviction companies are facing a class action in the U.S.
District of Columbia over allegations they pay less than legal
minimum wages to homeless people they recruit to evict people
from their homes and apartments, Jim McElhatton of The
Washington Times reports.
Minimum wage in the District is $7 an hour. The federal minimum
wage is $5.15 an hour. The company allegedly pay the recruits
as little as $1.25 per hour.
The lawsuit names as defendants East Coast Express Eviction and
All American Eviction Co., both in the District; A-1 Eviction
Services of Upper Marlboro; A&A Cardinal Eviction Services of
Waldorf; Big Time Movers of Silver Spring; and Butch Enterprises
of Fairfax.
Plaintiffs are Anthony Forte, Harry Jakeyia Ashford, and Kirk
Douglas Greene. The suit seeks an unspecified amount of back
wages, a court order barring companies from illegally paying
sub-par wages and damages for violations of anti-trust laws.
The suit is "Ashford et al. v. East Coast Express Eviction et
al., Case No. 1:06-cv-01561-RJL, " filed under Judge Richard J.
Leon.
Representing the plaintiffs is Matthew David Slater at Cleary,
Gottlieb, Steen & Hamilton LLP, 2000 Pennsylvania Avenue, NW,
Washington, DC 20006-1812, Phone: (202) 974-1930, Fax: (202)
974-1999, E-mail: mslater@cgsh.com.
INSIGHT COMMUNICATIONS: Sept. Hearing Set for Stock Suit Deal
-------------------------------------------------------------
A Sept. 25, 2006 hearing is scheduled for the settlement in the
consolidated securities class action filed in the Delaware Court
of Chancery against Insight Communications Co., Inc., and each
of its directors.
Between March 7 and March 15, 2005, five purported class actions
were filed in the Delaware Court of Chancery naming Insight
Communications Co., Inc. and each of its directors as
defendants. Three of the lawsuits also named The Carlyle Group
as a defendant. The cases were subsequently consolidated under
the caption, "In Re Insight Communications Co., Inc.
Shareholders Litigation (Civil Action No. 1154-N)." On April
11, 2005, a consolidated amended complaint was filed against
each director and The Carlyle Group.
The complaint alleged, among other things, that the defendant
directors breached their fiduciary duties to the company's
stockholders in connection with a proposal from Sidney R.
Knafel, Michael Willner, together with certain related and other
parties, and The Carlyle Group to acquire all of the company's
outstanding, publicly-held Class A common stock.
The complaint also alleged that the proposed transaction
violated the company's Charter and that The Carlyle Group aided
and abetted the alleged fiduciary duty breaches. The complaint
sought:
-- the certification of a class of the company's
stockholders;
-- a declaration that the proposed transaction violates
the company's Charter;
-- an injunction prohibiting the defendants from
proceeding with the proposed transaction;
-- rescission or other damages in the event the proposed
transaction is consummated;
-- an award of costs and disbursements including
attorneys' fees; and
-- other relief.
On July 28, 2005, the parties to the action entered into a
memorandum of understanding setting forth the terms of a
proposed settlement of the litigation which, among other things,
provides that the buyers shall proceed with the merger, subject
to the terms and conditions of the merger agreement including
the "majority of the minority" stockholder voting condition, and
under which the defendants admit to no wrongdoing or fault.
The memorandum of understanding contemplated certification of a
plaintiff class consisting of all record and beneficial owners
of the company's Class A common stock, other than the buyers,
during the period beginning on and including March 6, 2005,
through and including the date of the consummation of the
merger, a dismissal of all claims with prejudice, and a release
in favor of all defendants of any and all claims related to the
merger.
The proposed settlement is subject to a number of conditions,
including consummation of the merger, which closed on Dec. 16,
2005, the plaintiffs' approval of a definitive settlement
agreement and final court approval of the settlement.
On May 11, 2006, the parties to the action filed a stipulation
of settlement with the court. On May 19, 2006, the court
entered a scheduling order setting a hearing on the proposed
settlement for July 13, 2006.
On or before June 6, 2006, the Notice of Pendency of Class
Action, Proposed Settlement of Class Action and Settlement
Hearing was mailed to company stockholders.
On June 28, 2006, Kim D. Kelly, a former employee and officer,
filed an objection to the proposed settlement. On July 13,
2006, the court convened the settlement hearing, and with the
agreement of all of the parties to the action, the court
adjourned the settlement hearing until Sept. 25, 2006 to permit
Ms. Kelly to review the existing discovery materials and conduct
additional analysis.
New York, New York-based Insight Communications Co., Inc. --
http://www.insight-com.com/-- has a cable system, which is 50%-
owned by Comcast and operates as Insight Midwest, that serves
1.3 million subscribers in Illinois, Indiana, Kentucky, and
Ohio. Insight upgraded its networks for two-way communications
so it can offer interactive digital video and high-speed data
services, including cable modem Internet access. Adding
telephony to its list of services, the company has a deal with
AT&T that provides co-branded broadband phone service. Chairman
Sidney Knafel and Chief Executive Michael Willner, with partner
The Carlyle Group, took Insight private in late 2005.
ISRAELI BANKS: Face Suit Over Alleged Anticompetitive Practices
---------------------------------------------------------------
Sharnoa Computerized Machines Tel Aviv Ltd. asked the Tel Aviv
District Court to certify as class action a NIS7 billion ($1.6
billion) lawsuit against three Israeli banks, Haaretz.com
reports.
The designer of CNC milling machine controls is accusing Bank
Hapoalim, Bank Leumi, and Israel Discount Bank of coordinating
their interest rates, creating an effective cartel and impairing
competition. It claims the conduct raised interest rate spread
in the shekel sector for current bank accounts, creating huge
profits for the banks while harming the public and greatly
damaging the economy. Clients were allegedly damaged by at
least 4 percent of the interest rates the banks charged, or
NIS1.8 billion ($412 million) annually.
The banks allegedly charge the same prices for the prime
interest rate, as well as extra payments on most current
accounts, excess fees, credit allocation charges, and management
fees for current debit accounts.
The suit is seeking an order to dismantle the cartel, order the
banks to set competitive and economic fees and interest rates,
and keep reasonable interest spreads and set fair prices for the
public.
JUPITERMEDIA CORP: Still Faces Antitrust Litigation in Calif.
-------------------------------------------------------------
Jupitermedia Corp. remains a defendant in a putative antitrust
class action pending in the Superior Court of the State of
California, County of San Francisco.
On Aug. 3, 2004, Mario Cisneros and Michael Voight filed a class
action on behalf of themselves and all others situated and/or
the general public against the company and 12 co-defendant
companies that operate Internet search engines.
The suit alleges that defendants posting of paid advertising
providing links to Internet gambling Web sites constitute unfair
competition and unlawful business acts and practices under
California law. Plaintiffs seek declaratory and injunctive
relief, disgorgement of profits and restitution.
On Sept. 3, 2004, Jupitermedia blocked all advertisements from
being published on its Web properties from third-party search
engines for the gambling-related terms specified in the
complaint.
Moreover, Jupitermedia refused to accept advertisements for
gambling-related Web sites directly from companies that operate
them.
Jupitermedia has demanded contractual indemnity from two
companies that supplied advertisements that are the subject
matter of the lawsuit. Neither of these two companies, however,
has stated a final position as whether it will provide
indemnity.
In December 2005, the plaintiffs filed a motion for preliminary
injunction. Jupitermedia is not named or implicated in this
motion.
On April 3, 2006, the plaintiffs filed a motion for leave to
amend the complaint to add a new named plaintiff. No hearing
date on either motion has been set and the litigation is
ongoing, according to the company's Aug. 9 form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
June 30, 2006.
The suit is "Mario Cisneros et al., v. Yahoo! Inc., et al., Case
No. CGC-04-433518," filed in the California Superior Court in
San Francisco County, under Judge Richard A. Kramer.
Representing the plaintiffs is Ira P. Rothken of The Rothken Law
Firm, 1050 Northgate Drive, Suite 520, San Rafael, CA 94903,
Phone: (415) 924-4250, E-mail: feedback@techfirm.com, Web site:
http://www.techfirm.com/.
Representing the company are David T. Biderman, Robert Harvey
Binzel, Janet L. Cullum, Charles H. Dick, Jr., Albert Gidari,
Richard Jay Idell, Matthew P. Kanny, David H. Kramer, Thomas P.
Laffey, Ryan M. Malone, Laurence F. Pulgram, John C. Rawls,
David O. Stewart.
Darien Connecticut-based Jupitermedia Corp. (NASDAQ: JUPM) --
http://www.jupitermedia.com/-- is a global provider of original
online information, images and research resources for
information technology (IT), business and creative
professionals. It has three operating segments: Online images,
Online media and Research.
LONGS DRUG: June Trial for Calif. Employment Lawsuit Postponed
--------------------------------------------------------------
A June 23, 2006 trial for the putative class action, "Rankin v.
Longs Drug Stores California, Inc.," which names as defendant
Longs Drug Stores Corp., has been put on hold.
The suit was originally filed in the Superior Court of
California, San Diego County on Oct. 13, 2004. It was certified
as a class action on July 19, 2005.
The suit alleges that the company's employment application
violates California Labor Code Section 432.8 by inquiring about
criminal convictions within the last seven years, without
providing an exception for misdemeanor marijuana convictions
more than two years old.
The plaintiff sought to recover statutory damages and attorneys'
fees for him and all similarly situated individuals who applied
for employment with the company during the class period.
The court took a trial date of June 23, 2006, off calendar, with
no new trial date set, according to the company's Aug. 31 form
10-Q filing with the U.S. Securities and Exchange Commission for
the period ended July 27, 2006.
Walnut Creek, California-based Longs Drug Stores Corp. (NYSE:
LDG) -- http://www.longs.com/-- operates in two business
segments, retail drug stores and through its RxAmerica
subsidiary, pharmacy benefit management. Through the retail
drug store segment, the company operates a retail drug store
chain on the West Coast of the U.S. and in Hawaii, with 476
stores in California, Colorado, Hawaii, Nevada, Washington and
Oregon, and one mail order pharmacy during the year ended Jan.
26, 2006 (fiscal 2005). The pharmacy benefit management segment
provides a range of services, including plan design and
implementation, claims administration and formulary management
to third-party health plans and other organizations.
NEW YORK: Mamaroneck Suit Plaintiffs Drop First Amendment Claims
----------------------------------------------------------------
Day laborers suing the village of Mamaroneck have dropped a
complaint that their freedoms of speech and assembly were
violated when they were banned from gathering at Columbus Park,
according to a report by Candice Ferrette of The Journal News.
The case continued in federal court with only four plaintiffs
from the original seven pursuing the case. Previously U.S.
District Court Judge Colleen McMahon warned plaintiffs he will
allow lawyers to ask for their immigration status.
Plaintiffs' lawyer Alan Levine of the Puerto Rican Legal Defense
and Education Fund, which filed the lawsuit, said he disagreed
with the ruling. The workers were reportedly unwilling to
answer the question, resulting to Mr. Levine's withdrawing the
First Amendment claims.
Hearing of testimonies in the suit is expected to continue until
today, the report said.
The suit was brought on behalf of unnamed day laborers who
alleged they were harassed and their rights violated when the
village of Mamaroneck banned them from gathering at Columbus
Park, the hiring site the village closed on Feb. 1.
The suit charges Mamaroneck village with deliberately deterring
the day laborers from soliciting work by closing the hiring site
at Columbus Park and targeting them for harassment by conducting
police surveillance of the area. At the hearing, the village's
lawyer, Kevin Plunkett, portrayed that such police patrols as
routine.
Village attorneys reasoned that the city closed the Columbus
Park hiring site to protect the municipality from any potential
lawsuits filed by residents who, in the past, questioned why tax
money was being spent on an employment site.
Kevin Plunkett of the law firm Thatcher, Profitt and Wood, which
is representing the defendant, previously said the village would
not settle the case if it meant admitting police misconduct,
paying the day laborers' legal fees or designating an official
hiring site.
The suit is "John Does Nos. 1 through 6, et al. v. Village of
Mamaroneck, et al., Case No. 7:06-cv-03243-CM," filed in the
U.S. District Court for the Southern District of New York under
Judge Colleen McMahon. Representing the plaintiffs are:
(1) Candace D. Banks and Janis M. Meyer of Dewey Ballantine
LLP, 1301 Avenue of the Americas, New York, NY 10019,
Phone: (212)-259-7166, Fax: (212)-259-6333, E-mail:
cbanks@dbllp.com and lpmco@dbllp.com;
(2) Sandra Del Valle and Foster Maer of Puerto Rican
Defense & Education Fund, Inc., 99 Hudson Street, 14th
Floor, New York, NY 10013, Phone: (212) 219-3360; and
(3) Alan H. Levine of Law Office of Alan H. Levine, 99
Hudson Street, 14th Flr., New York, NY 10013, Phone:
(212) 739-7506, Fax: (212) 431-4276, E-mail:
alev@att.net.
NORTH CAROLINA: Court Rules Gov. Easley Violated Constitution
-------------------------------------------------------------
Superior Court Judge Joseph John ruled that Gov. Mike Easley and
others violated the constitution in 2001 by diverting $225
million in state pension funds to cover a budget shortfall, The
Associated Press reports.
Judge John heard oral arguments in the class action in February.
The suit was filed by 14 current and former state workers in
June 2002, challenging a decision by Gov. Easley to use some of
the money to plug a $850 million shortfall in the government's
budget. The plaintiffs contend the use of the money for
purposes other than its original intent hindered the financial
soundness of the North Carolina Teachers' and State Employees'
Retirement System.
Some of the money was repaid by the end of the 2001, but $130
million wasn't returned, the report said. Plaintiffs are
concerned the decision set a bad precedent and threatened future
cost-of-living raises.
In the recent ruling, Judge John agreed that the Easley
administration and other state officials violated a state
constitution provision requiring that retirement funds be used
only for their intended purpose. He, however, refused to order
that Gov. Easley return the unpaid amount and set no ruling
banning a governor from appropriating retirement funds for other
purposes on concerns it may raise questions of separation of
powers between branches of government.
The General Assembly has made annual payments to the pension
funds to replace the money that Gov. Easley took.
Defendants in the suit include state Treasurer Richard Moore,
controller Robert Powell and the state retirement system.
The employees' attorney is Hardy Lewis member at Blanchard,
Jenkins, Miller, Lewis & Styers, P.A., 1117 Hillsborough Street
Raleigh, North Carolina 27603-1505 (Wake Co.), Phone: 919-755-
3993, Fax: 919-755-3994.
NORWEGIAN CRUISE: Passengers' Suit Denied Certification in Fla.
---------------------------------------------------------------
U.S. District Court Judge Cecilia M. Altonaga for the Southern
District of Florida refused to certify a lawsuit filed by
passengers aboard a Norwegian Cruise Line ship that was hit by
an unusually large wave during a storm last year, according to
Cruise Ship Report.
The passengers had launched a lawsuit seeking more than $100
million in damages against the company, claiming that their
lives were endangered on that trip (Class Action Reporter, June
20, 2005). The ship was reportedly carrying 2,500 passengers
that time.
Court papers revealed that in April last year, the cruise ship
Norwegian Dawn was hit with a 70-foot wave when it ran through
an Atlantic storm, leaving passengers scared but not seriously
injured.
The National Transportation Safety Board and the Bahamas
Maritime Authority later found no wrongdoing by either Norwegian
Cruise Lines or Norwegian Dawn's captain.
RITE AID: Judge Certifies Overtime Suit by Managers in Calif.
-------------------------------------------------------------
Judge Thelton E. Henderson of the U.S. District Court for the
Northern District of California certified a class of more than
1,000 store managers in Rite Aid Corp., Matthew Hirsch of The
Recorder reports.
The suit was filed by Oakland, California's Scott Cole &
Associates in May 2005 on behalf of plaintiff Prag Tierno. It
accuses the drugstore chain of improperly classifying its
managers in California as exempt from state law granting certain
workers overtime pay, and other benefits like meal and rest
breaks. California law allows exceptions for professionals who
are primarily engaged in management duties.
According to the report, the decision is supported in part by a
questionnaire prepared by Rite Aid itself for store managers to
show they spend most of their time doing management work. In
surveys conducted in February 2005 and June, more than 80
percent of the respondents reported spending most of their time
on "management," or exempt, activities, the report said.
Rite Aid had contended there were no "typical" stores or
"typical" class members.
But on Aug. 31, Judge Henderson found that the questionnaires
proved that Rite Aid managers share a typical work experience.
The suit is "Tierno v. Rite Aid, 05-02520."
Representing the company is Paul Hastings at Janofsky & Walker
LLP. On the Net: http://www.paulhastings.com/
SARA LEE: Ill. Court Dismisses Consolidated Securities Lawsuit
--------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
granted Sara Lee Corp.'s motion to dismiss the consolidated
securities class action for failure to adequately plead loss
causation.
The court ruled that the plaintiffs failed to allege economic
loss causation because the plaintiffs did not plead how the
alleged fraud caused their economic loss. The court noted that
the allegation that stock prices were inflated alone was
insufficient.
On May 13, 2003, John Gallo, a purported company stockholder,
filed a putative class action in the U.S. District Court for the
Northern District of Illinois on behalf of purchasers of the
company common stock between and including Aug. 1, 2002 and
April 24, 2003.
The complaint named the company, C. Steven McMillan, former
chairman, president and chief executive officer of the company,
and Lambertus M. de Kool, executive vice president and chief
financial and administrative officer of the company, as
defendants.
Plaintiff seeks, among other things, class action certification,
compensatory damages in an unspecified amount, and an award of
costs and expenses, including counsel fees.
Seven other putative class actions were filed in the U.S.
District Court for the Northern District of Illinois, and named
the company, Mr. McMillan, and Mr. de Kool as defendants.
The allegations in each of those complaints are substantially
similar to the allegations of the lawsuit described in the
immediately preceding paragraph.
Each of the foregoing actions was later consolidated in a single
proceeding, "In re Sara Lee Corp. Securities Litigation." On
Jan. 20, 2004, plaintiffs filed a consolidated amended
complaint.
The consolidated amended complaint contains similar allegations
that the defendants violated Sections 10(b) and 20(a) of the
U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by allegedly misstating or omitting material adverse
facts regarding the company's business, operations, management
and financial statements, and the value of the company common
stock, which allegedly enabled the company to complete
securities offerings, enabled the individual defendants to
increase their bonus compensation and caused the purported class
to purchase the company common stock at artificially inflated
prices.
The consolidated amended complaint, however, omitted the
previous allegations that the individual defendants or other
insiders sold their personally held company stock to the public
at artificially inflated prices.
On March 5, 2004, the company filed a motion to dismiss the
consolidated amended complaint. The motion was denied on Dec.
21, 2004, and the company's motion to take an immediate appeal
from that ruling was denied on May 26, 2005. On June 30, 2005,
the company filed its answer to the complaint, denying all
allegations of wrongdoing.
On Oct. 19, 2005, the company filed a motion for judgment on the
pleadings based on plaintiffs' failure to adequately plead loss
causation. The motion was fully briefed at the end of November
2005.
On Dec. 15, 2005, plaintiffs filed their motion for class
certification. In early March 2006, as part of class
certification discovery, the company deposed both lead
plaintiffs' representatives.
In addition, the company served additional third-party subpoenas
on their investment advisors. Discovery on class issues closed
on May 15, 2006 (Class Action Reporter, June 12, 2006).
The suit is "In Re: Sara Lee Corp. Securities Litigation, Case
No. 03-CV-3202," filed in the U.S. District Court for the
Northern District of Illinois under Judge Hon. Charles R.
Norgle, Sr.
Plaintiff firms named in the complaint:
(1) Geller Rudman, PLLC, 197 South Federal Highway, Suite
200, Boca Raton, FL, 33432, Phone: 561.750.3000, Fax:
888.262.3131, E-mail: info@geller-rudman.com;
(2) Milberg Weiss Bershad & Schulman, LLP, (New York), One
Pennsylvania Plaza, 49th Floor, New York, NY, 10119,
Phone: 212.594.5300, Fax: 212.868.1229, E-mail:
info@milbergweiss.com;
(3) Miller, Faucher & Cafferty, LLP, 30 North LaSalle
Street, Suite 3200, Chicago , IL, 60602, Phone:
312782.4880, E-mail: mmiller@millerfauchner.com;
(4) Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C.,
200 N. LaSalle St., Ste. 2100, Chicago, IL, 60601,
Phone: 312.346.3100; and
(5) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com.
SEARS ROEBUCK: Ill. Court Dismisses Suit Over Kmart Merger
----------------------------------------------------------
The Circuit Court of Cook County, Illinois granted a motion to
dismiss an amended complaint in the consolidated class action
over the 2004 merger of Kmart Holding Corp. and Sears, Roebuck
and Co., a wholly owned subsidiary of Sears Holdings Corp.
Three actions were filed and then consolidated in the Circuit
Court of Cook County, Illinois against the company. These
actions assert claims on behalf of a purported class of Sears
stockholders against Sears and certain of its officers and
directors, together with Kmart, Edward S. Lampert, William C.
Crowley, and other affiliated entities, alleging breach of
fiduciary duty in connection with the merger.
The plaintiffs allege that the merger favors interested
defendants by awarding them disproportionate benefits, and that
the defendants failed to take appropriate steps to maximize the
value of a merger transaction for Sears' stockholders.
On Aug. 8, 2006, the court granted defendants' renewed motions
to dismiss plaintiff's amended complaint.
SEARS ROEBUCK: Ill. Court to Hear Motion in Kmart Merger Suit
-------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
set a briefing schedule on a motion for class certification in
the class action over the 2004 merger of Kmart Holding Corp. and
Sears, Roebuck and Co., a wholly owned subsidiary of Sears
Holdings Corp. The court also directed parties to commence
discovery.
An action has been filed in the U.S. District Court for the
Northern District of Illinois. This action asserts claims under
the federal securities laws on behalf of a purported class of
Sears' stockholders against Sears and Alan J. Lacy, for
allegedly failing to make timely disclosure of merger
discussions with Kmart during the period Nov. 8 through 16,
2004. The suit seeks damages.
The court appointed a lead plaintiff and lead counsel, and an
amended complaint was filed on March 11, 2005. The amended
complaint names Edward S. Lampert and ESL Partners, L.P. as
additional defendants, and purports to assert claims on behalf
of sellers of Sears stock during the period Sept. 9 through Nov.
16, 2004.
All defendants moved to dismiss, and briefing on the motions was
completed in early July 2005. On March 22, 2006, the district
court denied the defendants' motions to dismiss and subsequently
denied a motion for reconsideration by Sears and Alan J. Lacy
and a motion for permission to file an interlocutory appeal by
Edward S. Lampert and ESL.
On Aug. 30, 2006, the court set a briefing schedule for
plaintiffs' motion for class certification and indicated that
the parties should commence discovery.
The suit is "Levie v. Sears Roebuck Co, et al., Case No. 1:04-
cv-07643," filed in the U.S. District Court for the Northern
District of Illinois under Judge Robert W. Gettleman.
Representing the plaintiffs are:
(1) Mark Richard Miller and Andrae P. Reneau of The Wexler
Firm, LLP, One North LaSalle, Suite 2000, Chicago, IL
60602, Phone: (312) 346-2222, E-mail:
mrmiller@wexlerfirm.com;
(2) Charles J. Piven of Law Offices of Charles J. Piven,
P.A., The World Trade Cener - Baltimore, 401 East Pratt
Street, Suite 2525, Baltimore, MD 21202, Phone: (410)
332-0030; and
(3) Lee Squitieri of Squitieri & Fearon, LLP, 32 East 57th
Street, 12th Floor, New York, NY 10022, Phone: 212-421-
6492.
Representing the defendants are:
(i) Mark A. Flessner of Sonnenschein, Nath & Rosenthal,
LLP, 233 South Wacker Drive, 8000 Sears Tower, Chicago,
IL 60606, Phone: (312) 876-8000, E-mail:
mflessner@sonnenschein.com; and
(ii) Alexander Dimitrief of Kirkland & Ellis, LLP,
(Chicago), 200 East Randolph Drive, Suite 6100,
Chicago, IL 60601, Phone: (312) 861-2000, E-mail:
alex.dimitrief@kirkland.com.
SEARS ROEBUCK: Still Faces Ill. Stock Suit Over SRAC 7% Notes
-------------------------------------------------------------
Sears, Roebuck and Co., a wholly owned subsidiary of Sears
Holdings Corp., and certain of its officers and directors remain
defendants in a purported securities class action in the U.S.
District Court for the Northern District of Illinois in relation
to the 7% notes that the company's subsidiary, Sears Roebuck
Acceptance Corp. (SRAC) issued on June 21, 2002
On June 17, 2003, an action was filed in the Northern District
of Illinois against the company and certain officers,
purportedly on behalf of a class of all persons who, between
June 21, 2002 and Oct. 17, 2002, purchased 7% notes that SRAC
issued.
An amended complaint was filed, naming as additional defendants
certain former officers, SRAC and several investment banking
firms who acted as underwriters for SRAC's March 18, May 21 and
June 21, 2002 notes offerings.
The amended complaint alleges that the defendants made
misrepresentations or omissions concerning its credit business
during the class period and in the registration statements and
prospectuses relating to the offerings.
It also alleges that these misrepresentations and omissions
violated Sections 10(b) and 20(a) of the Securities Exchange Act
and Rule 10b-5 promulgated thereunder, and Sections 11, 12 and
15 of the Securities Act of 1933 and purports to be brought on
behalf of a class of all persons who purchased any security of
SRAC between Oct. 24, 2001 and Oct. 17, 2002, inclusive.
The defendants filed motions to dismiss the action. On Sept.
24, 2004, the court granted these motions in part, and denied
them in part.
The court dismissed the claims related to the March 18 and May
21, 2002 note offerings because the plaintiff did not purchase
notes in those offerings. The court dismissed the Section 10(b)
and Rule 10b-5 claims against several of the individual
defendants because the plaintiff failed to adequately plead such
claims. The court sustained the remaining claims.
By leave of court, the plaintiffs filed a second amended
complaint on Nov. 15, 2004. Defendants, other than one of the
underwriter defendants, filed motions to partially dismiss the
second amended complaint on Jan. 10, 2005.
The defendant that did not move to partially dismiss filed an
answer to the second amended complaint on Jan. 28, 2005, denying
all liability. On Sept. 14, 2005, the court granted the pending
motions to dismiss in part, and denied them in part.
The court dismissed the Section 11 claim with respect to SRAC's
May 21, 2002 notes on the ground that the plaintiffs lacked
standing, and the Section 12 claims with respect to SRAC's March
18, 2002 notes and May 21, 2002 notes on the ground that the
plaintiffs could not allege damages.
The court dismissed the Section 15 claim on the ground that the
plaintiffs had failed to allege a predicate violation of the
Securities Act of 1933 on the part of SRAC. The court dismissed
the Section 10(b) and Rule 10b-5 claims as to some, but not all,
of the individual defendants. The court sustained the remaining
claims.
By leave of court, the plaintiffs filed a third amended
complaint on Oct. 28, 2005. The non-underwriter defendants
filed a motion to partially dismiss the third amended complaint
on Nov. 15, 2005. Plaintiffs have requested discovery from
third parties with respect to plaintiffs' remaining claims under
the Securities Act.
The suit is "Ong, et al. v. Sears Roebuck & Co., et al., Case
No. 1:03-cv-04142," filed in the U.S. District Court for the
Northern District of Illinois under Judge Rebecca R. Pallmeyer.
Representing the plaintiffs is Carol V. Gilden of Much, Shelist,
Freed, Denenberg, Ament & Rubenstein, P.C., 191 North Wacker
Drive, Suite 1800, Chicago, IL 60605-1615, Phone: (312) 521-
2403, Fax: (312) 521-2100, E-mail: cgilden@muchshelist.com.
Representing the defendants are:
(1) Walter C. Carlson of Sidley Austin, LLP, One South
Dearborn Street, Chicago, IL 60603, Phone: (312) 853-
7000, E-mail: wcarlson@sidley.com;
(2) Robert Y. Sperling of Winston & Strawn, 35 West Wacker
Drive, 41st Floor, Chicago, IL 60601, Phone: (312) 558-
5600, E-mail: rsperling@winston.com; and
(3) Mary B. Anderson of Sonnenschein, Nath & Rosenthal,
LLP, 233 South Wacker Drive, 8000 Sears Tower, Chicago,
IL 60606, Phone: (312) 876-8000, E-mail:
mbanderson@sonnenschein.com.
SEARS ROEBUCK: Awaits Approval of $215M Ill. Stock Suit Deal
------------------------------------------------------------
Sears, Roebuck and Co., a wholly owned subsidiary of Sears
Holdings Corp., is awaiting court approval for the settlement of
the consolidated securities class action, "In re Sears, Roebuck
and Co. Securities Litigation, No. 02 C 07527."
The suit was brought on behalf of purchasers of company
securities from Oct. 24, 2001 through and including Oct. 14,
2002.
On and after Oct. 18, 2002, several actions were filed in the
U.S. District Court for the Northern District of Illinois
against the company and certain former officers alleging that
certain public announcements by Sears concerning its credit card
business violated Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder. The court has consolidated the actions and
certified the consolidated action as a class action.
On May 17, 2006, defendants entered into a memorandum of
understanding with the lead plaintiff, providing for settlement
of the action. Under the settlement, Sears is required to make
a payment of $215 million.
Sears has made claims under relevant insurance policies, and
expects that, after giving effect to anticipated insurance
proceeds, the cash payment for settlement by Sears will be
approximately $85 million on a pre-tax basis. The settlement is
subject to judicial approval.
The suit is "In re Sears, Roebuck and Co. Securities Litigation,
No. 1:02-cv-07527," filed in the U.S. District Court for the
Northern District of Illinois under Judge Elaine E. Bucklo.
Representing the plaintiffs are:
(1) Steven G. Schulman of Milberg Weiss Bershad & Schulman,
LLP, One Pennsylvania Plaza, 49th Floor, New York, NY
10119-0165, Phone: (212) 594-5300; and
(2) Jennifer Winter Sprengel of Miller Faucher and
Cafferty, LLP, 30 North LaSalle Street, Suite 3200,
Chicago, IL 60602, Phone: (312) 782-4880, E-mail:
jsprengel@millerfaucher.com.
Representing the defendants are:
(i) Jeffrey C. Fourmaux of Wachtell, Lipton, Rosen & Katz,
51 West 52nd Street, New York, HY 10019, Phone: (212)
403-1000; and
(ii) Harold C. Hirshman of Sonnenschein, Nath & Rosenthal,
LLP, 233 South Wacker Drive, 8000 Sears Tower,
Chicago, IL 60606, Phone: (312) 876-8000, Web site:
http://www.sonnenschein.com.
SEARS ROEBUCK: Reaches Tentative Settlement in Ill. ERISA Suit
--------------------------------------------------------------
Sears, Roebuck and Co., a wholly owned subsidiary of Sears
Holdings Corp., settled the consolidated class action pending in
the U.S. District Court for the Northern District of Illinois
that alleges violations of the Employee Retirement Income
Security Act of 1974.
On and after Nov. 15, 2002, several actions were filed against
the company, certain officers and directors, and alleged
fiduciaries of Sears' 401(k) Savings Plan, seeking damages and
equitable relief under ERISA.
The plaintiffs purport to represent participants in the Plan,
and allege breaches of fiduciary duties under ERISA in
connection with the Plan's investment in Sears' common shares
and alleged communications made to plan participants regarding
Sears' financial condition.
The court has consolidated these actions and certified the
consolidated action as a class action. On Aug. 28, 2006, the
parties agreed to settle the action. The settlement is subject
to judicial approval.
Pending entry into a memorandum of understanding reflecting the
settlement, the parties have agreed to suspend all discovery and
other proceedings.
The suit is "Kehr v. Sears Roebuck & Co., et al., Case No. 1:02-
cv-08324," filed in the U.S. District Court for the Northern
District of Illinois under Judge John W. Darrah.
Representing the plaintiffs are:
(1) Steven E. Cauley of Lerach Coughlin Stoia Geller Rudman
& Robbins, LLP, 200 Broadhollow Road, #406, Melville,
NY 11747, Phone: (631) 367-7100; and
(2) Christopher B. Sanchez of Miller Faucher and Cafferty,
LLP, 30 North LaSalle Street, Suite 3200, Chicago, IL
60602, (312) 782-4880, E-mail:
csanchez@millerfaucher.com.
Representing the defendants are:
(i) Harold C. Hirshman of Sonnenschein, Nath & Rosenthal,
LLP, 233 South Wacker Drive, 8000 Sears Tower, Chicago,
IL 60606, Phone: (312) 876-8000; and
(ii) Elissa Eun Choo Rhee-Lee of Sears, Roebuck & Co., Sears
Law Department, 3333 Beverly Road, Hoffman Estates, IL
60179, Phone: (708) 286-9214.
SYNCOR INT'L: Awaits Ruling in Calif. Consolidated Stock Suit
-------------------------------------------------------------
A ruling has yet to be made for an appeal regarding the
dismissal of the third amended complaint in the consolidated
securities fraud class action against Syncor International Corp.
Purported class actions were filed against the company and
certain of its officers and directors, asserting claims under
the federal securities laws.
All of these actions were filed in the U.S. District Court for
the Central District of California. These cases include:
-- "Richard Bowe v. Syncor Int'l Corp., et al., No. CV 02-
8560 LGB (RCx) (C.D. Cal.),"
-- "Alan Kaplan v. Syncor Int'l Corp., et al., No. CV 02-
8575 CBM (MANx) (C.D. Cal.),"
-- "Franklin Embon, Jr. v. Syncor Int'l Corp., et al.,
No. CV 02-8687 DDP (AJWx) (C.D. Cal.),"
-- "Jonathan Alk v. Syncor Int'l Corp., et al., No. CV 02-
8841 GHK (RZx) (C.D. Cal.),"
-- "Joyce Oldham v. Syncor Int'l Corp., et al., CV 02-8972
FMC (RCx) (C.D. Cal.),"
-- "West Virginia Laborers Pension Trust Fund v. Syncor
Int'l Corp., et al., No. CV 02-9076 NM (RNBx) (C.D.
Cal.),"
-- "Brad Lookingbill v. Syncor Int'l Corp., et al., CV
02-9248 RSWL (Ex) (C.D. Cal.),"
-- "Them Luu v. Syncor Int'l Corp., et al., CV 02-9583 RGK
(JwJx) (C.D. Cal.),"
-- "David Hall v. Syncor Int'l Corp., et al., CV 02-9621
CAS (CWx) (C.D. Cal.),"
-- "Phyllis Walzer v. Syncor Int'l Corp., et al., CV 02-
9640 RMT (AJWx) (C.D. Cal.)," and
-- "Larry Hahn v. Syncor Int'l Corp., et al., CV 03-52 LGB
(RCx) (C.D. Cal.)."
The Syncor federal securities actions purport to be brought on
behalf of all purchasers of Syncor shares during various
periods, beginning as early as March 30, 2000 and ending as late
as Nov. 5, 2002.
The actions allege, among other things, that the defendants
violated Section 10(b) of the U.S. Exchange Act and Rule 10b-5
promulgated thereunder and Section 20(a) of the U.S. Exchange
Act by issuing a series of press releases and public filings
disclosing significant sales growth in Syncor's international
business, but omitting mention of certain allegedly improper
payments to Syncor's foreign customers, thereby artificially
inflating the price of Syncor shares.
The lead plaintiff filed a third amended consolidated complaint
on Dec. 29, 2004. Syncor filed a motion to dismiss the third
amended consolidated complaint on Jan. 31, 2005.
On April 15, 2005, the court granted the motion to dismiss with
prejudice. The lead plaintiff has appealed this decision.
The first identified complaint is "Richard Bowe, et al v. Syncor
Intl Corp, et al., Case No. 2:02-cv-08560-LGB-RC," filed in the
U.S. District Court for the Central District of California under
Judge Lourdes G. Baird with referral to Judge Rosalyn M.
Chapman.
Representing the plaintiffs are:
(1) Willie C. Briscoe of Provost Umphrey Law Firm, 3232
McKinney Ave, Ste. 700, Dallas, TX 75204, Phone: 214-
744-3000;
(2) Theodore M. Hess-Mahan of Shapiro Grace Haber & Urmy,
75 State St., Boston, MA 02109, Phone: 617-439-3939;
and
(3) Frank J. Johnson of Frank J. Johnson Law Offices, 402
West Broadway, 27th Floor, San Diego, CA 92101, Phone:
619-230-0063.
Representing the defendants are:
(i) Daniel S. Floyd of Gibson Dunn & Crutcher, 333 S. Grand
Ave., 45th Fl., Los Angeles, CA 90071-3197, Phone: 213-
229-7000, E-mail: dfloyd@gibsondunn.com;
(ii) Robert F. LeMoine of Skadden Arps Slate Meagher & Flom,
300 S. Grand Ave, Ste. 3400, Los Angeles, CA 90071-
3144, Phone: 213-687-5000, E-mail: lacefax@skadden.com;
(iii) Gail Jeanne Standish of Winston and Strawn, 333 South
Grand Avenue, 39th Floor, Los Angeles, CA 90071, Phone:
213-615-1731, E-mail: gstandish@winston.com.
TOBACCO LITIGATION: Decertification of UCL, CLRA Suit Affirmed
--------------------------------------------------------------
The Court of Appeal, Fourth Appellate District, Division One in
California affirmed a decision by San Diego Superior Court Judge
Ronald S. Praeger decertifying the class action, "In re Tobacco
II Cases, D046435 (JCCP No. 4042)."
The suit was filed by plaintiffs Willard R. Brown, Damien Bierly
and Michelle Denise Buller-Seymore against defendants:
-- Phillip Morris USA Inc.,
-- R.J. Reynolds Tobacco Co.,
-- Lorillard Tobacco Co.,
-- Brown & Williamson Tobacco Corp.,
-- The Council for Tobacco Research-U.S.A., Inc.,
-- Liggett Group, Inc.,
-- Liggett & Myers, Inc., and
-- The Tobacco Institute, Inc.
The plaintiffs appealed an order decertifying a class action for
claims under the unfair competition law; an order denying class
certification for claims under the Consumer Legal Remedies Act;
and an order granting summary adjudication of some issues in
favor of defendants.
Plaintiffs contend the court erred in ruling they lack standing
to pursue the UCL claim because Proposition 64 applies
retroactively and eliminates the ability of individuals who have
suffered no injury or monetary loss from pursuing UCL claims.
They also contend the court erred in ruling that individual
issues predominate so this is an inappropriate case for a class
action under the UCL or CLRA; and in granting summary
adjudication on some class-action causes of action.
In March 2005, Judge Prager decertified the suit, ruling that:
"the simple language of Prop 64 makes clear that, for standing
purposes, a showing of causation is required as to each class
members injury in fact."
"Further, because this is not a personal injury action, but a
UCL action seeking restitution for unfair business practice
based on alleged false statements, the injury in fact that each
class member must show for standing purposes in this case would
presumably consist of the cost of their cigarette purchases.
"But significant questions then arise undermining the purported
commonality among the class members, such as whether each class
member was exposed to defendants' alleged false statements and
whether each member purchased cigarettes 'as a result' of the
false statements. Clearly, here, as in plaintiffs' CLRA case,
individual issues predominate, making class treatment
unmanageable and inefficient. Further, it appears from the
record that not even plaintiffs' named class representatives
satisfy Prop 64.s standing requirement.
"In sum, given that plaintiffs' unvested right in this action is
subject to the vagaries of statutory law, and given that there
is no savings clause in Prop 64, the Repeal Rule (Government
Code section 9606) applies and requires this court to impose the
new standing requirements of Prop 64. Accordingly, and for the
additional reasons set forth above, the court grants Defendants'
motion for class decertification.
"The parties dispute whether plaintiffs may properly raise in
this appeal the denial of their motion for class certification
of the CLRA claims. Defendants contend the time has long since
expired for appealing the denial of class certification for the
CLRA claims and the CLRA class action claims were waived because
they are not included in plaintiffs most recently amended
complaint. Plaintiffs respond that the CLRA class action issue
was not properly appealed until the court decertified the UCL
class action and thus rang the "death knell" for the class
action."
On a Sept. 6 ruling, the court of appeal ruled: "We need not
resolve this dispute since our determination that the individual
issues predominate making this case unsuitable for a class
action moots plaintiffs' arguments."
The parties dispute whether plaintiffs can raise in this appeal
the court's granting of summary adjudication on causes of action
based on advertising relating to "light," "low tar, "natural,"
or "no additive" cigarettes. They argue these summary
adjudication issues "tie directly into the class certification
issues" and thus should be addressed in this appeal.
The court decided it does not need to address the issue.
"Plaintiffs' argument that we should address the summary
adjudication is premised on a theory we will resurrect the UCL
or CLRA class actions. They argue the interests of judicial
economy favor our consideration of these additional class action
issues. This argument fails since we have affirmed the trial
court's conclusion this case is not suitable for a class action.
We adhere to the general rule that summary adjudications are not
appealable orders," the court wrote.
Justices Judith L. Haller and Alex C. McDonald concurred in the
opinion.
UAE: Faces Abduction, Human Trafficking Charges in U.S. Courts
--------------------------------------------------------------
Motley Rice LLC, in association with attorney John A. Thornton
of Miami, filed suit against several Arab Sheikhs, including
Sheikh Mohammed Bin Rashid Al Maktoum and Sheikh Hamdan Bin
Rashid Al Maktoum of Dubai, United Arab Emirates, for the
alleged abduction and human trafficking of thousands of young
boys from Asia and Africa.
Once abducted, the children were allegedly sold into slavery to
serve as camel jockeys for the entertainment of the Arabian
elite.
According to the complaint, filed in U.S. District Court,
Southern District of Florida, boys as young as two years old
have been stolen from their families, trafficked across
international borders, and kept in brutal camel-racing camps
throughout the United Arab Emirates, forced to train camels and
perform as jockeys.
Camel racing has long been a favored pastime of the Arab elite.
Yet, despite the enactment of legal weight and age limits, child
jockeys weighing less than 20 kg (44 lbs.) have become the
standard in races. Because of the extreme danger involved in
camel racing, Arab sheikhs have not used their own children for
training or riding, and instead have resorted to this alleged
child enslavement.
According to the lawsuit, this practice has resulted in a vast
conspiracy among camel owners to buy boys in the slave trade,
hold them in brutal camps, forcing them to care for and exercise
the camels, and then race against each other on "race days."
Because one cannot race without competitors, it is alleged that
the use of enslaved boys by the named defendants caused others
to do the same.
According to the 2005 U.S. Department of State Trafficking in
Persons Report, "Those who survive the harsh conditions are
disposed of once they reach their teenage years." Having been
ripped from their families at such a young age, these children
are typically unable to locate their families again or even, in
most cases, speak their own language.
"It is truly shocking that such unimaginable crimes are taking
place against children in this day and age," stated attorney Ron
Motley of Motley Rice. "Two year-old boys have been stolen from
their families, shipped to foreign lands and forced to live in
dangerous and oppressive environments -- robbed of their
childhood and their future. By bringing this lawsuit we hope to
punish the perpetrators of these vile crimes and compensate the
victims for their pain and suffering."
The suit is brought on behalf of the boys and/or the legal
guardians of the boys who were allegedly enslaved and is brought
against the individual slave owners in Dubai and the United Arab
Emirates. Motley Rice is working on the lawsuit together with
co-counsel John Andres Thornton, Esq., of Miami, Florida.
For more information, contact Sally W. Comollo, Director of
Marketing of Motley Rice LLC, Phone: 843-216-9121, Mobile: 843-
834-1612, E-mail: SComollo@motleyrice.com
UNITED STATES: Milberg Plaintiff Files Motion to Dismiss Suit
-------------------------------------------------------------
Attorneys for Seymour M. Lazar, who is accused of acting as a
paid plaintiff in some of the cases of Milberg Weiss Bershad &
Schulman LLP, asked a federal court in Los Angeles to dismiss a
criminal case against him, the New York Sun reports.
The request cites as reasons protracted delays in the suit and
his failing health, the report said.
In June 2005, the Palm Springs investor and former lawyer was
indicted on accusation of collecting $2.4 million in "secret and
illegal kickback payments" for his role in dozens of lawsuits by
Milberg Weiss Bershad.
In May, Milberg Weiss and David J. Bershad and Steven G.
Schulman were indicted by a federal grand jury for allegedly
participating in a scheme in which several individuals were paid
millions of dollars in secret kickbacks in exchange for serving
as named plaintiffs in more than 150 class actions and
shareholder derivative lawsuits. The firm allegedly received
well over $200 million in attorneys' fees from these lawsuits
over the past 20 years.
Mr. Bershad and Mr. Schulman both pled not guilty to wrongdoing.
Mr. Lazar and Paul T. Selzer, who is charged with laundering
money on Lazar's behalf, also pleaded not guilty to charges
filed against them.
In his recent motion to dismiss the suit, his lawyers, Thomas
Bienert Jr., wrote: "The government's inexplicable charging of
Mr. Lazar over a year before charging the Milberg firm, its
heavy-handed treatment of him once charged, and its continuance
of the trial over Lazar's objection to allow it time to indict
the Milberg firm demonstrate an improper effort to ignore the
speedy trial rights of defendant Lazar as part of the
government's strategy in investigating and charging the firm."
Mr. Lazar also submitted a written declaration listing numerous
ailments, including lymphoma, diabetes, and heart disease. He
is currently free on $10 million bail.
VISTEON CORP: Mich. Court Dismisses Shareholder Fraud Lawsuit
-------------------------------------------------------------
Judge Robert H. Cleland of the U.S. District Court for the
Eastern District of Michigan granted the motion to dismiss the
securities class action filed against Visteon Corp. and its
current and former officers Peter Pestillo, Michael Johnston,
Glenda J. Minor, Daniel R. Coulson, and James Palmer, reports
say.
The judge found no evidence that Visteon withheld information
from investors.
In a ruling, the judge wrote "It is clear from numerous
publications, both appearing in market analyst reports and in
Visteon's spinoff prospectus, that the market was made aware of
Visteon's various deficiencies as an independent company."
The judge said there was no evidence of fraud. He also
dismissed claims against Visteon's auditor,
PricewaterhouseCoopers LLP.
The shareholder suit was first filed in February 2005. In July
2005, the Public Employees' Retirement System of Mississippi was
appointed as lead plaintiff in the matter.
In September 2005, the lead plaintiff filed an amended
complaint, which alleges, among other things, that the company
and its independent registered public accounting firm,
PricewaterhouseCoopers LLP, made misleading statements of
material fact or omitted to state material facts necessary in
order to make the statements made, in light of the circumstances
under which they were made, not misleading.
The plaintiff seeks to represent a class consisting of
purchasers of the company's securities during the period between
June 28, 2000 and Jan. 31, 2005.
In December 2005, defendants moved to dismiss the amended
complaint for failure to state a claim, and oral arguments on
that motion were held in May 2006.
The suit is "Ley v. Visteon Corp., et al., Case No. 2:05-cv-
70737-RHC-VMM," filed in the U.S. District Court for the Eastern
District of Michigan under Robert H. Cleland with referral to
Judge Virginia M. Morgan.
Representing the plaintiffs are:
(1) E. Powell Miller and Marc L. Newman of Miller Shea
(Rochester) 950 W. University Drive Suite 300
Rochester, MI 48307 Phone: 248-841-2200 E-mail:
emiller335@aol.com; and
(2) Marc A. Topaz, Schiffrin & Barroway (Radnor) 280 King
of Prussia Road Radnor, PA 19087.
Representing the defendants are:
(i) Michael A. Duffy of Kirkland & Ellis (Chicago), 200 E.
Randolph Drive, Suite 6000, Chicago, IL 60601, Phone:
312-861-2000, Fax: 312-861-2200, E-mail:
maduffy@kirkland.com;
(ii) Jenice C. Mitchell of Foley & Lardner (Detroit), 500
Woodward Avenue, Suite 2700, Detroit, MI 48226-3489,
Phone: 313-234-7100, E-mail: jmitchell@foley.com; and
(iii) Thomas P. Bruetsch, Bodman (Troy), 201 W. Big Beaver
Road, Suite 500, Troy, MI 48084, Phone: 248-743-6000,
E-mail: tbruetsch@bodmanllp.com.
WEBLOYALTY.COM INC: Faces Privacy Violations Lawsuit in Mass.
-------------------------------------------------------------
The law firm Lerach Coughlin Stoia Geller Rudman & Robbins LLP
filed a class action in the U.S. District Court for the District
of Massachusetts against Webloyalty.com, Inc. alleging it
charged unwitting consumers monthly fees for memberships after
they used its partners' sites to make purchases.
The attorneys allege that Webloyalty.com, based in Norwalk,
Connecticut, has reaped and continues to reap tens of millions
of dollars off consumers by illegally obtaining personal,
private information, including credit card information, of
visitors to its partners' websites.
Webloyalty.com -- an online marketing services company that
boasts partnerships with popular websites fandango.com,
staples.com and classmates.com among others -- allegedly
automatically charges consumers monthly fees for a membership in
one of its services without the consent of the consumer.
The complaint charges that consumers who purchase movie tickets
from e-commerce company Fandango.com, are presented with a "pop-
up" advertisement upon completion of the transaction with
Fandango which offers the consumer $10.00 off their next
purchase.
However, once the consumer enters their e-mail address to redeem
the coupon, Fandango allegedly transfers the consumer's private
credit card information to Webloyalty, which begins charging a
monthly fee of up to $10.00 for membership in Webloyalty's
reservation rewards program, which shows up on the consumer's
credit card statement as "WLI Reservation Rewards."
The complaint alleges violations of the Electronic
Communications Privacy Act, unfair and deceptive acts and
practices, unjust enrichment, invasion of privacy, money had and
received, and civil theft.
The lawsuit also alleges that Fandango and Webloyalty have
violated consumers' federally protected privacy rights by
disclosing and using their private credit card information, and
are engaging in deliberately deceptive business practices,
illegally netting the company substantial sums of money from the
consuming public.
The lawsuit seeks an injunction on the claims, compensation for
consumers and other remedies.
According to Webloyalty.com chief executive and co-founder Rick
Fernandes the lawsuit is frivolous and without merit. It
completely misrepresents the manner in which Webloyalty.com
conducts its business.
Webloyalty Consumer Fraud and Privacy Litigation on the net:
http://www.lerachlaw.com/lcsr-cgi-
bin/mil?templ=cases/webloyalty/signup.html
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1163
The suit is "Kuefler et al. v. Webloyalty.com et al.," filed in
the U.S. District of Massachusetts.
Representing the plaintiffs are:
(1) Andrew J. Garcia and Carlin J. Phillips both of
Phillips & Garcia, LLP, 13 Ventura Drive, North
Dartmouth, MA 02747, Phone: 508/998-0800, Fax: 508/998-
0919;
(2) David J. George, Stuart A. Davidson, Marisa N. Demato
and Michael Greenwald all of Lerach Couglin Stoia
Geller Rudman & Robbins LLP, 197 South Federal Highway,
Suite 200, Boca Raton, FL 33432, Phone: 561/750-3000,
Fax: 661/750-3364; and
(3) Eric A. Lee of Lee & Amtzis, P.L., 5550 Glades Road,
Suite 401, Boca Raton, FL 33431, Phone: 561/ 981-9988,
Fax: 561/981-9980.
New Securities Fraud Cases
ADVO INC: Goldman Scarlato Announces Stock Suit Filing in Conn.
---------------------------------------------------------------
Goldman Scarlato & Karon, P.C., announces that a lawsuit has
been filed in the U.S. District Court for the District of
Connecticut, on behalf of persons who purchased or otherwise
acquired publicly traded securities of ADVO, Inc. between July
6, 2006 and Aug. 30, 2006. The lawsuit was filed against ADVO
and certain officers and directors.
The complaint alleges that cefendants violated Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder.
Specifically, the complaint alleges that during the class
period, defendants issued a series of materially false and
misleading statements with respect to its business and financial
results, concealing material adverse problems with ADVO's
business. Defendants concealed this information in order to
accomplish a merger that the company entered into with Valassis
Communications, Inc.
As a result the defendants allegedly false statements, investors
believed that the acquisition would occur, causing ADVO's stock
to trade at artificially inflated levels during the Class
Period. On Aug. 30, 2006, Valassis announced that it had filed
an action to rescind its merger agreement with ADVO. In
reaction to this news, shares fell from $36.80 per share to
$28.59 per share.
Interested parties may move the court no later than Nov. 10,
2006 for appointment as lead plaintiff for the case.
For more details, contact Mark S. Goldman, Esq., of The Law Firm
of Goldman Scarlato & Karon, P.C., Phone: 888-668-4130, E-mail:
info@gsk-law.com.
ASPEN TECHNOLOGY: Berman DeValerio Files Securities Fraud Suit
--------------------------------------------------------------
The law firm Berman DeValerio Pease Tabacco Burt & Pucillo, on
behalf of Lawrence Paskowitz, filed a lawsuit against Aspen
Technology, Inc. and certain of its officers and directors in
the U.S. District Court of Massachusetts.
The suit, on behalf of investors who bought Aspen stock from
Feb. 6, 2006 through Sept. 6, 2006, alleges violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.
Specifically plaintiffs allege:
-- making false and misleading statements and omissions
concerning the backdating of the grant of stock options
to management; and
-- falsifying financial statements for the years 2002-2005
and the first three quarters of 2006.
Among the questions of law and fact common to the class are:
-- whether defendants engaged in acts or conduct in
violation of the federal securities laws;
-- whether defendants had a duty to disclose certain
information;
-- defendants acted negligently, knowingly or recklessly in
making materially false and misleading statements or in
failing to correct such statements upon learning that
they were materially false and misleading during the
class period;
-- whether the market price of the company's common stock
during the class period was artificially inflated
because of defendants' conduct; and
-- whether members of the class have sustained damages and
if so the proper measure of damages.
The suit seeks for compensatory damages together with
appropriate prejudgment interest at the maximum rate allowable
by law and compensation of costs and expenses accrued for the
litigation, attorneys' fees and other disbursements.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1186
The suit is "Paskowitz v. Aspen Technology Inc et al., Case No.
1:06-cv-11616-GAO," filed in the U.S. District Court for the
District of Massachusetts under Judge George A. O'Toole, Jr.
Representing the plaintiffs is Leslie R. Stern of Berman
DeValerio Pease Tabacco Burt & Pucillo, One Liberty Square, 8th
Floor, Boston, MA 02109, Phone: 617/542-8300, Fax: 617-542-1154,
E-mail: lstern@bermanesq.com.
NATURAL HEALTH: Rosen Law Firm Files Tex. Securities Fraud Suit
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The Rosen Law Firm filed a class action on behalf of purchasers
of Natural Health Trends Corp. common stock from March 31, 2003
to Aug. 11, 2006.
The case is pending in the U.S. District Court for the Northern
District of Texas as case no. 3:06-cv-01654.
The complaint charges that Natural Health and certain of its
officers and directors violated Sections 10(b) and 20(a) of the
U.S. Securities Exchange Act by issuing materially false and
misleading statements about key characteristics of the company's
multi-level marketing business model, violations of Generally
Accepted Accounting Principles, and the company's financial
condition.
In particular, the complaint alleges that during the class
period the company:
-- reported revenues and earnings were artificially
inflated due to phantom sales;
-- internal controls and procedures were inadequate and
enabled and assisted the Defendants in engaging in
improper transactions;
-- earnings were significantly impacted from returns by
its distributors which reflected the true market
penetration and acceptance of the company's products;
and
-- the company's financial statements filed with the U.S.
Securities and Exchange Commission were not prepared in
accordance with GAAP.
For more details, contact Laurence Rosen, Esq. or Phillip Kim,
Esq. of The Rosen Law Firm, Phone: 866-767-3653, E-mail:
lrosen@rosenlegal.com or pkim@rosenlegal.com, Web site:
http://www.rosenlegal.com.
SCOTTISH RE: Brower Piven Reminds on Lead Plaintiff Filing Date
---------------------------------------------------------------
The law firm of Brower Piven reminds interested parties that
they have until Oct. 2, 2006 to seek for appointment as lead
plaintiff in the securities class action that was commenced on
behalf of shareholders who purchased or otherwise acquired the
common stock or other securities of Scottish Re Group Ltd.
between Dec. 16, 2005 and July 28, 2006.
The case is pending in the U.S. District Court for the Southern
District of New York against defendant Scottish Re and one or
more of its officers and/or directors.
The complaint alleges that Scottish Re and certain of its
officers and directors violated federal securities laws by
making false and misleading statements and omissions concerning
Scottish Re's financial health and business prospects. It also
alleges that the company and its officers and directors covered
up serious operational and financial problems.
The complaint further alleges that in February 2006, the company
reported strong earnings for the 2005 fourth quarter and that
this positive momentum would continue going forward. In early
May 2006 Scottish Re announced that it had refinanced, at
favorable rates, all of its regulatory reserves for the business
acquired in its acquisition of ING, Scottish Re's reinsurance
business.
The complaint also alleges that the company reported reduced
earnings for the first quarter of 2006, but dismissed it as
temporary, and certainly not a cause for major concern.
However, as further alleged in the complaint, on July 28, 2006,
the defendants jolted the market on news that Chief Executive
Officer Scott Willkomm had resigned, and that for the second
quarter, the company would report a gigantic loss of $130
million, and that results for the remainder of the year would be
negatively affected.
On this news the company's common share price fell from $16.00
to $3.99, a 75% decline. Also, on this news, the preferred
shares (SCT-PB) declined significantly, as well.
For more details, contact Brower Piven The World Trade Center-
Baltimore, 401 East Pratt Street, Suite 2525, Baltimore,
Maryland 21202, Phone: 410/332-0030, E-mail:
piven@browerpiven.com.
*********
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Wednesday's edition of the Class Action Reporter. Submissions
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news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
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*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2006. All rights reserved. ISSN 1525-2272.
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