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/raid1/www/Hosts/bankrupt/CAR_Public/061010.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 10, 2006, Vol. 8, No. 201 Headlines ALLIANCE MORTGAGE: Court Sides With Plaintiffs in Suit Over Fees ALTUS HOME: May be Sued Over Option Adjustable Rate Mortgage ASSICURAZIONI GENERALI: Settles Holocaust Victims' Suits in N.Y. BAYER CROPSCIENCE: May Face Suit by World's Largest Rice Company BAYVIEW CREMATORY: N.H. Court Mulls Class for Clients' Suit BLUEHIPPO FUNDING: Faces Consumer Fraud Lawsuits in Calif., Md. BOLTHOUSE FARMS: Recalls Carrot Juice Over Possible Health Risk BP PLC: Shareholders Sue in S.D. N.Y. After Prudhoe Bay Shutdown CANADA: Vancouver Faces Lawsuit Over Unlawful School Fees CONCEPT SPORTS: Officers to Help Pay Securities Suit Settlement EQ INDUSTRIAL: Faces Federal Suit Over N.C. Plant Explosion EQ INDUSTRIAL: Sued in N.C. Superior Court Over Plant Explosion FINLAND: Mass Lawsuit Proposed for Consumer Protection Cases FLORIDA: Lawsuit Filed Over Conditions at Miami-Dade County Jail FLORIDA: Mentally Ill Inmates in Miami-Dade Sue Over Jail Stays FLORIDA: Paramedics, City Enter Into Mediation for Overtime Suit HISPANIC MEDIA: N.Y. Judge Denies Class Status for Fraud Lawsuit IDAHO: District Judge Mulls SAFE's Lawsuit Over Field Burning IDAHO: Landowners Consider Litigation Over High Property Taxes INDIANA: Superior Court Certifies Class in Housing Fraud Suit ITI INTERNET: Lawyer Asks for More Time to Manage "Turner" Suit KENTUCKY: Circuit Court Approves $20M Settlement with Retirees MTD PRODUCTS: Recalls Compact Snow Throwers After Injury Reports NORTHROP GRUMMAN: Facing Lawsuit Over Pension Plans Management PRICEWATERHOUSECOOPERS: Portus Investors File Suits Over Fees SLAVERY REPARATIONS LITIGATION: Ill. Appeals Court Hears Lawsuit SOUTH AFRICA: Cals Want Govt to Enforce School Fee Exemption Law SYMBOL TECHNOLOGIES: Shareholders Contest Motorola Acquisition UNITED STATES: Seven Plaintiffs in "Aziz" Granted Citizenship WENDY'S INTL: Undocumented Workers Sue Over Citizenship Filing * Skadden, Arps Counsel Joins Alixpartners' New York Practice New Securities Fraud Cases ENCYSICE PHARMACEUTICALS: Federman & Sherwood Announces Lawsuit MARVELL TECHNOLOGY: Roy Jacobs Files Securities Suit in Calif. ********* ALLIANCE MORTGAGE: Court Sides With Plaintiffs in Suit Over Fees ---------------------------------------------------------------- The Supreme Court of the State of New York, Appellate Division - Second Judicial Department found that Alliance Mortgage Co. was wrong in charging "priority handling fee" for providing a client mortgage-related documents, according to The New York Law Journal. The case, "Dowd v. Alliance Mortgage Co.," is a putative class action to recover damages for violation of New York Real Property Law Section 274-a filed on behalf of plaintiff, Sandra Pettit Dowd, f/k/a Sandra J. Pettit. It arose after the plaintiff purchased a condominium that was partially funded by a loan secured by a mortgage in favor of the defendant mortgage company. When the plaintiff contracted to sell the condominium, she requested a payoff statement from the mortgage company. The mortgage company provided the statement but charged the plaintiff a $20 "priority handling fee" and unspecified "additional fees." After paying those amounts, the plaintiff brought suit. The Appellate Division found that pursuant to RPL Section 274- a(2), the mortgage company was prohibited from charging the plaintiff for providing mortgage-related documents, including the payoff statement. Indeed, the court continued, neither the mortgage company's assertion that the plaintiff had voluntarily agreed to pay those fees nor the absence of allegations of a written demand for the payoff statement constituted a defense. The appellate court specifically rejected the mortgage company's invitation to re-examine its holding in another case "Negrin v. Norwest Mortgage" to that effect, but did find that the complaint alleged causes of action to recover damages for violations of General Business Law Section 349(a)3 and for money had and received. ALTUS HOME: May be Sued Over Option Adjustable Rate Mortgage ------------------------------------------------------------ A couple, who are retirees living in Littleton, Colorado, plan to file a lawsuit against Altus Home Loan, whose brokers helped them to get an Option Adjustable Rate Mortgage, Aldo Svaldi of the Denver Post reports. Patrick and Marilou Foley had planned to refinance into a smaller mortgage payment for their house so they could rent it out and receive extra cash. But, according to the report, two months into the new loan, the minimum payment that they thought would be around $1,000 is closer to $2,074 when property taxes and mortgage insurance are added in. It turned out that taking that minimum option will add more than $1,100 a month in unpaid interest back into their loan's principal. The Foleys also alleged they did not get the cash they expected to receive. According to the report, the variable interest rate they are being charged is above 8 percent, much higher than the 6 percent rate on their previous first mortgage. Once unpaid principal grows to 115 percent of the loan amount, their payments will rise sharply. Banking regulators announce only recently that they will put in place stricter disclosure and underwriting requirements to help better inform consumers regarding financial risks associated with the ARMs. Meanwhile, Mrs. Foley is talking to the Arapahoe County district attorney and trying to organize other borrowers into a class action against Altus, according to the report. ASSICURAZIONI GENERALI: Settles Holocaust Victims' Suits in N.Y. ---------------------------------------------------------------- Italian insurer Assicurazioni Generali would pay tens of millions of additional dollars to the heirs of Holocaust victims who once held policies with the company, according to settlement papers filed in three class actions pending against the company in the U.S. District Court for the Southern District of New York, The New York Sun reports. The settlement was filed in August. It requires the insurer to pay the claims currently pending before the U.K.-based commission set up to deal with Holocaust-era insurance claims. The insurer has given The International Commission on Holocaust Era Insurance Claims (ICHEIC) $100 million in 2000, but the fund has already been exhausted and additional claims remain. Though the settlement does not indicate how much money the insurer will have to pay to settle the new and existing claims, sources close to the case says more than $25 million will likely be needed to cover them. Victims and their heirs are to submit new claims directly to the company through February 2007. The deal, which has yet to be approved by the court, also allows for the lawyers involved to inspect the insurer's old records, a source said. The Italian insurer's policies for life and dowry insurance and annuities were sold to Jewish communities across Eastern Europe before the Holocaust. Plaintiffs claim that the insurer seized the assets belonging to Jews and others who were murdered. They also claim that it intentionally thwarted their efforts to be compensated over the last 60 years. The Trieste-based insurer has argued that it is no longer responsible for the accounts in question and that the assets backing those policies were largely seized by communist regimes, but agreed to settle, for "humanitarian reasons," among others. The lawsuits date back to 1997. They suffered a huge setback in 2004, when the judge dismissed them, ruling that the claims should proceed through the commission process. The cases have been pending before the U.S. Circuit Court of Appeals for the Second District, which has yet to rule on an appeal of the dismissal. A source close to the case told The New York Sun that even with the settlement of the three cases, the insurer continues to face more than 20 Holocaust-related lawsuits brought by individual plaintiffs and one class action that has not yet been certified. The 25-page settlement agreement stipulates that if more than 300 claimants decide to opt out of the settlement, the insurer can back out as well. It also stipulates that the insurer will also about $3.25 million in attorney fees and extra fees to several of plaintiffs. For more details, contact Peter Simshauserof Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates, One Beacon St., Boston, MA 02108, Phone: (617) 573-4880, Fax: (617) 305-4880, E-mail: psimshau@skadden.com, Web site: http://www.skadden.com. BAYER CROPSCIENCE: May Face Suit by World's Largest Rice Company ---------------------------------------------------------------- Spain's Ebro Puleva S.A., the world's largest rice processing company, which controls 30% of the European Union rice market, is planning to bring legal actions against Bayer CropScience for contaminating commercial rice supply. Ebro Puleva has confirmed to Greenpeace International that it has stopped all imports of rice from the USA to the European Union due to the threat of contamination by genetically engineered rice. The move follows a summer of scandals, with illegal GE contamination found in rice products all over Europe. As a result, the global food industry is facing massive costs associated with this contamination, including testing costs, product recalls, brand damage, import bans and cancelled imports and contracts. In a letter to Greenpeace, the Chairman of Ebro Puleva states: "We regret that U.S. rice is facing a problem with [genetically modified] rice and decided to stop any imports of U.S. rice since August 2006." Ebro Puleva has also indicated that it will not consider purchasing from the U.S. until the situation is under control. Instead, the company will purchase rice from other countries, with the exception of China, which continues to have problems with GE contamination of its rice. "By imposing a blanket ban on rice imports from the U.S., Ebro Puleva has acknowledged how real and costly the risk of GE contamination is," pointed out Jeremy Tager, GE campaigner, Greenpeace International. "With GE now as uneconomic as it is unacceptable, governments in countries that grow or import GE must stop placing farmers, consumers, the environment and industry at such high risk." At least three multi-million dollar class actions have been filed by U.S. rice farmers against Bayer CropScience already, as farmers struggle to protect their livelihoods. Ebro Puleva has said they expect to bring legal actions against Bayer as well. In January this year, Bayer's illegal GE LL601 rice was detected in rice intended for export from the U.S. This variety has not been approved for human consumption anywhere in the world. It has only been grown in field trials that ended in 2001, and yet in September 2006, testing commissioned by Greenpeace and then by various European government agencies showed a broad variety of products on supermarket shelves in Europe had been contaminated by Bayer's illegal GE rice. Following the Greenpeace expose German supermarket chain Edeka announced that they would cease selling all U.S. long grain rice. A number of European retailers, millers and processors have followed suit. "It is now time for governments to respond strongly as well. They cannot leave enforcement of food safety laws to industry alone. We urge the E.U. to enforce its laws more vigorously and ensure that all member states comply, particularly those that have thus far refused to enforce E.U. law," concluded Jeremy Tager. BAYVIEW CREMATORY: N.H. Court Mulls Class for Clients' Suit ----------------------------------------------------------- The Rockingham County Superior Court in New Hampshire is expected to rule on class action status for claims in a lawsuit against Bayview Crematory within the next two months, according to The Portsmouth Herald. Despite the death of James Fuller, the prime witness against the former owner of the crematorium, which is subject of a class action, the case will still continue, according to attorney Christopher Grant, who is pursuing class-action status for his estimated 35 clients. Mr. Grant said that the civil case would go forward after the court hands down a ruling on class action status in the coming months. The civil plaintiffs are seeking compensation for all forms of damage, including emotional distress and presumed damages for the alleged mishandling of bodies at the crematorium. Mr. Grant's lead plaintiff in the case is Mike Ellis of Maine, whose wife died in a Massachusetts hospital and who was cremated at Bayview. Mr. Ellis stated that forensic tests of his wife's ashes, given to him by someone from Bayview in a McDonald's parking lot, show conclusively the remains are not hers. Other clients of Mr. Grants include residents of New Hampshire and Maine, but most are from Massachusetts because of a law in that state which forbids funeral directors from also operating crematories. New Hampshire has no such statute. Bayview's owner, Derek Wallace, is charged with eight felony counts of theft by deception and one misdemeanor of abuse of a corpse in the operation of the Bayview Crematory. He is set to appear for a pre-trial hearing on Dec. 21 and for trial on Jan. 8 in Rockingham County Superior Court (Class Action Reporter, Oct. 4, 2006). For more details, contact Christopher E. Grant of Boynton, Waldron, Doleac, Woodman & Scott, Professional Association, 82 Court Street, P.O. Box 418, Portsmouth, New Hampshire 03802- 0418, (Rockingham Co.), Phone: 603-436-4010, Fax: 603-431-9973, Web Site: http://www.nhlawfirm.com. BLUEHIPPO FUNDING: Faces Consumer Fraud Lawsuits in Calif., Md. --------------------------------------------------------------- BlueHippo Funding, LLC, faces two class actions in Maryland and California over allegations that it delays shipments on products it offers, unfairly bills customers, and refuses to give refunds for products never delivered. The suits were filed in March. The California suit is "Roylene Ray v. BlueHippo Funding," which was filed in the U.S. District Court for the Northern District of California on March 8, 2006, according to information provided by The Sturdevant Law Firm's Web site. The suit was filed by California residents, Roylene Ray and Kelly Cannon, who are accusing the computer sales company of engaging in an elaborate scheme to violate a host of state consumer protection laws. According to the lawsuit, the company uses deceptive television ads and telephone sales pitches to trick low-income consumers into paying exorbitant prices for computers they never get. The company claims to make "top-of-the-line" computer "affordable" without a credit check, but the suit charges that unsuspecting customers actually end up making weekly payments for one year, paying $2000 or more for a low-end model the consumer could buy elsewhere for $500. The suit alleges that the company collects several months of payments before shipping the customer a computer, and delays shipment for several more months if the customer misses a single payment. It also alleges that the company uses a deceptive "no refund" policy to deny customers the ability to terminate the contract and get any money back -- even if the company never delivers them a computer. The plaintiffs seek class-action status for all Californians who paid money to the company but received nothing in return. No details are current available about the Maryland case, but Kerri Kelly, director of marketing and public relations of the Better Business Bureau of Greater Maryland says that the company has an "unsatisfactory record" with them, based on 991 complaints filed in the last 36 months, according to a report by The Arizona Daily Star. Most of these complaints alleged: -- that the company failed to deliver the merchandise in a timely manner after the required payments had been made; -- that consumers did not receive or sign a contract and were unable to obtain a contract upon request; -- that requests for refunds were denied when complaints were made that merchandise wasn't delivered on time; and -- that company made unauthorized withdrawals from consumers' bank accounts. The California suit is seeking a declaration that the defendants acts are unlawful, unfair and fraudulent, special damages, punitive damages, monetary damages, temporary and permanent injunction against the practice, among others. To view the California complaint, visit: http://researcharchives.com/t/s?131e The California suit is "Roylene Ray v. BlueHippo Funding, Case No. 06-01807 JSW," which was filed in the U.S. District Court for the Northern District of California under Judge Representing the plaintiffs are: (1) Sylvia M. Sokol of The Sturdevant Law Firm, 475 Sansome Street, Suite 1750, San Francisco, CA 94111, Phonw: 415-477-2410, Fax: 415-477-2420, E-mail: ssokol@sturdevantlaw.com, Web site: http://www.sturdevantlaw.com/Cases.php?Case=19; (2) David John Marshall of Katz, Marshall & Banks, LLP, 1718 Connecticut Ave., N.W. Sixth Floor, Washington, DC 20009, U.S., Phone: 202-299-1140, Fax: 202-299-1148, E- mail: marshall@kmblegal.com; and (3) Gary Peller, 600 New Jersey Avenue, N.W. Washington, DC 20001, Phone: 202-662-9122, Fax: 202-662-9680, E-mail: peller@law.georgetown.edu. Representing the defendants are William N. Hebert and Edward P. Sangster of Kirkpatrick & Lockhart Nicholson Graham, LLP, 630 Hansen Way, Palo Alto, CA 94304, Phone: 650-798-6700 and 415- 249-1000, Fax: 650-798-6701 and 415-249-1001, E-mail: whebert@klng.com and esangster@klng.com. BOLTHOUSE FARMS: Recalls Carrot Juice Over Possible Health Risk --------------------------------------------------------------- Bolthouse Farms of Bakersfield, California is recalling 100% Carrot Juice as a precautionary measure, following incidents involving two bottles of temperature abused 100% Carrot Juice. Carrot juice has the potential, if left un-refrigerated, to develop botulism, an illness which can be life-threatening. Proper refrigeration is generally achieved at or below 45 degrees Fahrenheit. All Bolthouse Farms processing facilities have been examined closely by internal auditors and the U.S. Food and Drug Administration, and have been found to be in compliance with all appropriate controlling regulations. In addition, samples from suspect lots have been examined by the FDA, and all samples have been found to be toxin free. These results clearly indicate a likely link between consumer temperature abuse and the development of botulinum toxin. Consistent with this record of compliance, Bolthouse Farms remains committed to the health and safety of its consumers. This voluntary recall serves as an effort to demonstrate the company's commitment to providing the safest product possible, regardless of consumer mishandling. 100% Carrot Juice is distributed to all 50 states, Mexico & Canada through retail stores, and is labeled as follows: -- "Bolthouse Farms 100% Carrot Juice", sold in both 1 liter and 450 milliliter sizes -- "Earthbound Farm Organic Carrot Juice", sold in both 1 liter and 450 milliliter sizes -- "President's Choice Organics 100% Pure Carrot Juice" sold in both 1 liter and 450 milliliter sizes. Use by dates up to and including 11Nov06 are subject to this recall. To date, four people have become ill after consuming what were most likely improperly refrigerated bottles of carrot juice. The incidents involved one liter bottle of carrot juice with a use by date of 18SEP06, and one 450 milliliter bottle of carrot juice with a use by date of 19SEP06. These incidents were reported in Georgia and Florida. Carrot juice, like other low acid products, must be kept refrigerated to ensure product safety. Properly refrigerated carrot juice poses no risk to consumer health. However, all fresh carrot juice (regardless of manufacturer or brand) has the potential to harbor Botulism if improperly refrigerated or exposed to elevated temperatures for extended periods of time. Botulism, a potentially fatal form of food poisoning, can cause the following symptoms: -- general weakness, -- dizziness, -- double-vision and -- trouble with speaking or swallowing. Difficulty in breathing, weakness of other muscles, abdominal distension and constipation may also be common symptoms. People experiencing these problems should seek immediate medical attention. Consumers or retailers who feel the temperature control of their carrot juice may have been compromised are encouraged not to consume the product. If there is any question as to the refrigeration state of any carrot juice product, consumers and retailers are advised to discard the product. Bolthouse Farms remains actively concerned about the health of its consumers, and the proper handling of its products. In light of recent concerns regarding potential risk associated with consumer mishandling of carrot juice, Bolthouse will immediately undertake the industry leading step of modifying its processing to mitigate the potential risk associated with consumer temperature abuse of carrot juice. Consumers who have concerns or questions about juice safety are encouraged to call the FDA at 1-800-SAFEFOOD, or Wm. Bolthouse Farms at (661) 366-72. BP PLC: Shareholders Sue in S.D. N.Y. After Prudhoe Bay Shutdown ---------------------------------------------------------------- BP plc is a defendant in a purported shareholders' class action that was filed in U.S. District Court for the Southern District of New York, according to Reuters. Filed in August 2006, the lawsuit was brought on behalf of U.S. shareholders after BP shut down part of the massive Prudhoe Bay oil field in Alaska due to widespread pipeline corrosion and oil spills. United Kingdom-based BP plc -- http://www.bp.com-- is a holding company that has three operating segments: Exploration and Production; Refining and Marketing; and Gas, Power and Renewables. Exploration and Production's activities include oil and natural gas exploration and field development and production, together with pipeline transportation and natural gas processing. CANADA: Vancouver Faces Lawsuit Over Unlawful School Fees --------------------------------------------------------- The law firm of Poyner Baxter LLP of North Vancouver filed a class action in the Supreme Court of British Columbia against the provincial government claiming on behalf of parents a refund of unlawfully collected school fees. The suit, filed under British Columbia's "Class Proceedings Act," is typically brought in the name of one or more individuals as "representative of a class," and, if successful, would apply to every unlawful fee payment collected in the province, past and present. The Statement of Claim was filed on behalf of the father of two North Vancouver students, one currently in Grade 10 and the other in Grade 8. They had been assessed additional fees since kindergarten, and the lawsuit lists special charges this year totaling $169.50 for one student, and $165 for the other. The filing follows a Supreme Court of B.C. ruling on Sept. 29, 2006 on a Victoria case that these special fees were in contravention of the provisions of the School Act, R.S.B.C. 1996, c. 412. Justice Robert Johnston ruled that the education ministry's fee policy has been incorrectly applied, and that it should permit fees only for supplies such as musical instruments that go beyond the course requirements. "In the same way, if a student enrolls in a course such as woodworking, home economics or art, as part of his or her education program leading to graduation, the school board must provide, free of charge, the materials necessary for successful completion of the course," Mr. Justice Johnston wrote. "If at the end of the class the student wishes to purchase the work he or she has completed, that is a different matter, and the purchase may be negotiated." The Poyner Baxter Statement of Claim seeks: (a) damages in the total amount of all fees and other payments unlawfully billed and collected by the defendant from the plaintiff; (b) an accounting of all fees paid by the plaintiff to the defendant as aforesaid; (c) a declaration of trust in favor of the plaintiff in the full amount of payments made to the defendant as aforesaid; (d) an order for restitution; (e) repayment of all monies paid as aforesaid under a mistake of law; (f) interest pursuant to the Court Order Interest Act; and (g) costs. Further, the Statement of Claim seeks not only reimbursement of all unlawfully collected fees but also a complete accounting of all monies paid to the defendant and further, seeks a declaration that the defendant holds all such monies as a constructive trustee for the benefit of the plaintiff and the plaintiff claims restitution in the full amount of the said trust. A copy of the Statement of Claim is available free of charge at: http://ResearchArchives.com/t/s?1311 For more information, contact Poyner Baxter, Suite 408 - 145 Chadwick Court, North Vancouver, B.C., V7M 3K1, Phone: (604) 988-6321, Fax: (604) 988-3632, E-mail: classaction@poynerbaxter.com, Website: http://www.poynerbaxter.com CONCEPT SPORTS: Officers to Help Pay Securities Suit Settlement --------------------------------------------------------------- Executives of Concept Sports based in Port Melbourne, Australia, agreed to indemnify the company against a securities class action, The Age reports. The confidential settlement between the company and investors is believed to be about $3 million, the report said. Concept Sports will shoulder $500,000. Executive chairman Gary March and general manager Jeff Taylor are expected likely to be required to make additional contributions as a result of being named as co-defendants in the action, as will fellow directors, including Leon Daphne, David Carter, Stephen Rolton and John Moore. The company's auditor, Pitcher Partners, and advisers Baker & McKenzie and Munro Legal are also expected to contribute. Litigation funder IMF (Australia) Ltd. expects to receive $700,000 in the settlement. Shareholders of the company field a class action against the Concept Sports in December 2004, accusing the company of misleading and deceptive conduct in relation to profit targets. The company promised that year to deliver $20.6 million in revenue and a $1.5 million pre-tax profit for the six months to June 30. Instead, it posted a $2.2 million loss. The suit was commenced on behalf of shareholders who acquired an interest in shares in Concept Sports between May 25, 2004 and Aug. 18, 2004. The Statement of Claim alleges various breaches of the Corporations Act such as misleading and deceptive conduct in the prospectus, material omissions from the prospectus and a breach of the continuous disclosure regime of the Australian Stock Exchange. On July 7, 2006 the proceeding was set down for a four-week trial commencing on Nov. 20, 2006. The plaintiff leading more than 120 shareholders in the suit is Cadence Capital. The suit was brought by the law firm Maurice Blackburn Cashman. Concept Sports has also brought cross-claims against international law firm Baker & McKenzie, Munro Legal and CGU Insurance. On the Net: Baker & McKenzie http://www.bakernet.com CGU Insurance: https://www.cgu.com.au/cgu/cgu/home.do Maurice Blackburn: http://www.mauriceblackburncashman.com.au/ EQ INDUSTRIAL: Faces Federal Suit Over N.C. Plant Explosion ----------------------------------------------------------- EQ Industrial Services and EQ Holding company are facing a class action filed in U.S. District Court for the Eastern District of North Carolina, Raleigh Division on behalf of thousands of individuals and businesses who suffered damages due to the explosion of a chemical plant owned by the companies in Apex, North Carolina. The suit was filed by the law firms Parker & Waichman, LLP, Greg Jones & Associates, PA, Neblett, Beard Arsenault, Becnel Law Firm, LLC & Law Offices of Ronnie G. Penton. It alleges that the explosion and massive fire at the facility was a result of the company's negligence, which needlessly endangered the safety of thousands of people, damaged property and interrupted business activity. The lawsuit alleges that EQ's negligent actions caused a massive chemical explosion, resulting in chlorine and other hazardous materials to enter the air and surrounding community. Chlorine gas is highly toxic and was used as a chemical weapon during World War I. Residents and businesses in Apex, North Carolina, and surrounding areas, suffered injuries and damages, and will continue to suffer substantial losses into the future. The suit seeks remedies for claims involving personal injury, property damage and business interruption. On Oct. 5, a chemical explosion occurred at EQ's waste storage plant in Apex, North Carolina causing a fire that forced the evacuation of thousands of nearby residents. EQ Industrial Services and EQ Holding Company were previously warned about unsafe conditions at the facility. EQ was cited and fined in March 2006 for violating North Carolina regulatory waste regulations due to its failure to properly contain hazardous waste materials on its property. Plant explosions are nothing new to EQ; in August 2005, another plant run by Environmental Quality Co., just outside of Detroit in Romulus, Michigan, burst into flames, forcing 2000 residents to evacuate. The suit is Case No. 5:06-cv-00400-D filed in the U.S. District Court for the Eastern District of North Carolina under Judge James C. Dever. Plaintiffs' counsel: (1) Jason Mark, Esq. and Melanie H. Muhlstock, Esq. both of Parker & Waichman, LLP, Phone: (800) LAW-INFO or (800) 529-4636 Toll-free, E-mail: info@yourlawyer.com, Website: http://www.yourlawyer.com;and (2) Gregory L. Jones of Greg Jones & Associates, PA, Phone: 910-251-2240, Fax: 251-1520, E-mail: greg@gregjoneslaw.com. EQ INDUSTRIAL: Sued in N.C. Superior Court Over Plant Explosion --------------------------------------------------------------- The law firms Cohen, Milstein, Hausfeld & Toll, PLLC and Brady, Nordgren, Morton & Malone, PLLC filed a class action in the Superior Court in North Carolina on behalf of thousands of North Carolina residents against EQ Industrial Services. On Oct. 5, a chemical explosion occurred at EQ's waste storage plant in Apex, North Carolina causing a fire which forced the evacuation of thousands of nearby residents. The legal complaint alleges that EQ Industrial Services, which was cited for state regulatory waste violations in March 2006, failed to properly contain the hazardous waste materials on its property. The lawsuit alleges that as a result of EQ's actions, a massive chemical explosion occurred causing chlorine gas and other hazardous materials to enter the air and surrounding community. Chlorine gas is highly toxic and was used as a chemical weapon during World War I. Public health and town officials in the area have advised residents within the vicinity of the plant to evacuate and have closed roads and schools in the area. The plaintiffs are seeking damages for their loss of use and enjoyment of property as well as punitive damages. Further, they are asking the Court to order EQ to pay for environmental and medical testing. Richard S. Lewis, a partner and environmental legal expert with the Cohen, Milstein firm, explained that "our clients were evacuated as a result of EQ's chemical explosion and believe that EQ should take immediate steps to ensure the safety of individuals in the surrounding community and compensate people for any resulting property damages." For more information, contact James Pizzirusso at Cohen, Milstein, Phone: 703-587-6474 or jpizzirusso@cmht.com; or Deborah Schwartz, Phone: 301-897-8838, Mobile: 240 355-8838, E- mail: dschwartz@mediarelationsinc.com. FINLAND: Mass Lawsuit Proposed for Consumer Protection Cases ------------------------------------------------------------ The government of Finland approved the contents of a proposal to make a class action possible in disputes between a consumer and an entrepreneur. The purpose is for the President of the Republic to give the proposal to Parliament. A class action means an action initiated on behalf of a group in a dispute to be handled by a general court of law. According to a press release posted at the Web site of the Finnish Ministry of Justice, the reform would bring to the legal system enforceable claims affecting a large group, which, at present, either due to the costs or a lack of information and skills, are not taken to court in Finland. The class action would be brought by the Consumer Ombudsman. The proposal is that the scope of application of the Class Action Act be limited to matters in which the number of parties is large and so the need for a class action is strongest. The Consumer Ombudsman would act as plaintiff and represent the class. This would ensure that no one could bring a class action for the purpose of harming another. A class action would be possible for example in disputes relating to a defect in consumer goods or the interpretation of contract terms, the statement said. Also disputes between a consumer and an entrepreneur relating to investment insurance and products, for example pension insurance, savings life insurance and the sale and marketing of fund units and other corresponding investment instruments would belong to the scope of application of the Act. On the other hand, consumer disputes relating to share issues would not belong to the scope of the Class Action Act, because issues relating to the procedure of the issuer of a security or a party making a public purchase offer would be excluded from its scope. According to the proposal, the Consumer Ombudsman could, where necessary, inform of a class action in a newspaper or of his web site. People could join the class for example by filling in a form. The proposal would not set any limits to the size of the class. However, it is unlikely that the Consumer Ombudsman would bring a class action unless there were several people involved. Claims Could be Varied A class action could be used for example to demand monetary compensation from the defendant or to demand that the defendant not undertake certain action or allow certain action. Also cases of personal damage could be handled as class actions. The claims for damages of the injured parties could vary in amount. It would also be possible to handle qualitatively different demands, such as a price reduction and the cancellation of a purchase, in the same class action. The claims would, however, have to be based on the same or similar facts and the proof to be presented in favor of the claims could not be very different in the case of the different class members. The procedure to be used would primarily correspond to ordinary legal procedure in a civil case. The members of the class would not be parties to the litigation nor would they have the right of a party to be heard; these rights would be exercised by the Consumer Ombudsman or his representative. A member could withdraw from a class action before the beginning of the main hearing. After the case has been left to be decided, withdrawal would no longer be possible. The judgment to be given on the basis of a class action would be binding on the plaintiff, the members who have joined the class and the defendant. A class member would, for his part, have the right to appeal the judgment only if the plaintiff does not appeal it. A defendant who feels that the dispute is not suitable to be handled as a class action could present a related procedural objection in the ordinary manner. If this objection is overruled, the decision could usually be appealed against even before a decision in the class action. A member of the class would not be liable for litigation costs In a class action, a class member would not be responsible for the litigation costs; instead, they would be paid by the plaintiff, i.e., the Consumer Ombudsman, or by the defendant. It is evident that a class action would be more burdensome and expensive a procedure than an ordinary trial. With regard to attaining the goals of the new procedure, it is well-founded that a member of the class is not responsible for litigation costs. Under the proposal, the handling of class actions would be concentrated in the District Courts of Turku, Vaasa, Kuopio, Helsinki, Lahti and Oulu. It is estimated that at most a few class actions be brought annually. The estimate is based on the number of actions brought in Sweden. The class action would increase the weight of the new class- complaint procedure proposed for the Consumer Complaint Board, the statement said. If a recommendation issued on the basis of a class complaint were not followed, the Consumer Ombudsman could take the case to court as a class action. FLORIDA: Lawsuit Filed Over Conditions at Miami-Dade County Jail ---------------------------------------------------------------- The mother of a mentally ill man detained at the Miami-Dade County jail filed a suit to seek better living conditions at the prison, CBS4 reports. Mini Atwell, whose son Benjamin is being housed on the 9th floor of the Miami-Dade Pretrial Detention Center, filed the suit in federal court. The case names as defendants the Department of Children and Family Services, the County Commission and the Department of Corrections. She alleges condition at the jail is unbearable and illegal. She said the state was slow in facilitating the transfer of individuals committed to state custody. She wants to bring her son home, or at least be transferred in a facility where he has a bed, and where he is getting the medical care and attention that he needs. The suit was filed by attorney Norm Kent on behalf of Benjamin, and 29 other such men living on the 9th floor. For more details, contact Norm Kent of The Law Offices of Kent & Cormican, P.A., 800 E. Broward Boulevard, Suite 310, Fort Lauderdale, FL 33301, Phone: (954) 763-1900, Fax: (954) 763- 4792, Pager: (954) 528-2812, E-mail: norm@normkent.com, Web site: http://www.normkent.com/. FLORIDA: Mentally Ill Inmates in Miami-Dade Sue Over Jail Stays --------------------------------------------------------------- Five mentally ill inmates filed a purported class action in the U.S. District Court for the Southern District of Florida against the state's Department of Children and Families, according to Bay News 9. The inmates are demanding to be released from Miami-Dade County Jail on claims that the conditions there are dangerous. All five have been declared incompetent and ordered into state care. However, DCF said it doesn't have the space, so the inmates are being held in the main jail. According to a class action filed during the past week, by law, the state has 15 days to pick up an inmate. All five inmates have been waiting well past that time on the allegedly overcrowded and understaffed ninth floor. Two of the inmates are represented by attorney Norm Kent. One of the inmates that are suing is Eugene Roman, who went blind after he gouged out his eyes while waiting in one of the jail's suicide cells last year. Mr. Roman was declared incompetent in August and ordered into DCF care. The lawsuits cited a 2004 grand jury report which exposed conditions in the jail's mental health ward. For more details, contact Norm Kent of The Law Offices of Kent & Cormican, P.A., 800 E. Broward Boulevard, Suite 310, Fort Lauderdale, FL 33301, Phone: (954) 763-1900, Fax: (954) 763- 4792, Pager: (954) 528-2812, E-mail: norm@normkent.com, Web site: http://www.normkent.com/. FLORIDA: Paramedics, City Enter Into Mediation for Overtime Suit ---------------------------------------------------------------- Attorneys representing paramedics who won an overtime class action filed in the U.S. District Court for the Southern District of Florida against the City of Plantation will enter into a mediation session with city officials to calculate how much back pay they are owed, The Miami Herald reports. In September, Judge Ursula Ungaro Benages ruled that the way the Plantation Fire Department calculated pay for its paramedics was flawed. Filed in May 2005 under the Fair Labor Standards Act, the suit alleged that the city wrongly categorized paramedics as if they were firefighters, enabling the city to escape paying overtime if they worked more than a 40-hour week. About 16 paramedics joined the class action. Under U.S. laws, workers are eligible for overtime pay if they work more than a 40-hour workweek, but firefighters don't get overtime until they work at least 53 hours, according to a labor attorney. With the judge's decision, the city must now pay paramedics based on a 40-hour workweek. If the paramedics work more than 40 hours a week, they can earn pay at 1 1/2 times their regular rate. Also with the ruling, the city and attorneys for the paramedics must now discuss and calculate the back pay and any other money owed, such as interest. Tom Woodley, counsel for the paramedics and the International Association of Fire Fighters, a union representing firefighters says that if mediation fails, both parties would return to the federal judge and she in turn would decide the appropriate pay. For more details, contact Thomas A. Woodley of Woodley & McGillivary, Suite 400, 1125 15th Street, N.W. Washington, District of Columbia 20005, Phone: 202-833-8855, Fax: 202-452- 1090, Web site: http://www.wmlaborlaw.com. HISPANIC MEDIA: N.Y. Judge Denies Class Status for Fraud Lawsuit ---------------------------------------------------------------- Nassau County Supreme Court Justice Leonard B. Austin refused to certify a class in the lawsuit, "Nissenbaum & Associates v. Hispanic Media Group USA, 8592-04," which leveled fraud accusations against the publisher of a Spanish language business phone directory, The New York Law Journal reports. Two law firms and a plumbing company had filed the suit against Hispanic Media, the publisher of the Spanish Yellow Pages. The three plaintiffs allege that they did not receive any business as a result of the paid ads they placed in the Spanish Yellow Pages. They also claim that the publisher, in its solicitations to prospective advertisers, misrepresented the number of copies of the Spanish Yellow Pages that would be printed and distributed. Plaintiffs moved to have their lawsuit certified as a class action, with the class being all people who placed ads in the publication from 1998 to the present. However, the judge denied the motion to grant class action status, finding that the prospective class members were too dissimilar to merit certification. In denying the motion, Justice Austin cited that different advertisers received different solicitations from Hispanic Media. Additionally, he said that many advertisers appear to be satisfied with the response they have gotten from their ads and have thus responded by purchasing space in the publication year after year. IDAHO: District Judge Mulls SAFE's Lawsuit Over Field Burning ------------------------------------------------------------- U.S. District Judge Edward Lodge in Idaho took under advisement a motion from the state to dismiss a suit filed by Sandpoint- based Safe Air For Everyone over Idaho's management of field burning smoke, The Spokesman-Review reports. SAFE filed the suit seeking class-action status in February. The group accuses Idaho officials of violating the Americans Disabilities Act and the federal Rehabilitation Act in its regulation of field burning smoke in North Idaho. By allowing Bluegrass farmers to continue to burn their fields, the state is allegedly, illegally discriminating against North Idaho residents with respiratory ailments who are hampered from leaving their homes and going to public schools, parks or courthouses during burning. Grass seed farmers on the prairie burn their fields annually in late summer to stimulate another crop without replanting. In August, Judge Lodge rejected SAFE's bid for an injunction to change the rules for this year's field burning season because it was still unclear whether plaintiff's claims of discrimination are legally viable. He did not rule on a motion to dismiss, but asked for more legal arguments. The suit is "Safe Air For Everyone et al. v. Idaho, State of et al., Case No. 1:06-cv-00068-EJL." Representing the plaintiffs are: (1) Ivy D. Arai and Steve W. Berman at Hagens Berman Sobol Shapiro, 1301 Fifth Ave., Suite 2900, Seattle, WA 98101 Phone: (206) 623-7292, Fax: 1-206-623-0594, E-mail: ivy@hbsslaw.com or steve@hbsslaw.com; and (2) Philip H. Gordon at Gordon Law Offices, 623 W Hays Boise, ID 83702-5512, Phone: (208) 345-7100, Fax: 1-208-345-0050, E-mail: pgordon@gordonlawoffices.com; and (3) Karen Lindholdt at 423 W. First Ave. Ste 250, Spokane, WA 99201, Phone: (509) 744-1100, Fax: 1-509-747-5692, E-mail: justice@winning.com. Representing the state is Clay R. Smith, Office of Attorney General, POB 83720, Boise, ID 83720-0010, Phone: (208) 334-2400, Fax: (208) 334-2400, E-mail: clay.smith@ag.idaho.gov. IDAHO: Landowners Consider Litigation Over High Property Taxes -------------------------------------------------------------- About 400 landowners in northern Idaho, including Republican Sen. Shawn Keough of Sandpoint attended a meeting to consider filing a class action against the state to lower down property assessments for tax purposes, The Associated Press reports. In that meeting Sen. Keough told the group that a lawsuit is the way to go. He adds that they should accumulate evidence that will help legislators work toward change. The group, Sensible Taxation of Property, is organizing support for the potential lawsuit. According to one of its committee members, Art Lambert, they want to overturn Idaho's property tax law. As of the moment the group is looking for donations to hire a lawyer. INDIANA: Superior Court Certifies Class in Housing Fraud Suit ------------------------------------------------------------- The Allen Superior Court in Indiana granted class-action status to a complaint filed against the Fort Wayne Neighborhood Housing Partnership, The Journal Gazette reports. Eight clients of the agency filed the suit back in April. They alleged that the defendant sold them homes "at grossly inflated prices" and set them up for failure. Plaintiffs also accused two appraisers of conniving with the partnership. By certifying the suit as class action, the possibility that any of the estimated 750 partnership clients to join the lawsuit, even if they weren't among the original eight plaintiffs has increased, the report said. In his ruling on Oct. 3, 2006, Judge David Avery specifically certified the complaint against the partnership as class action, while the one against the two appraisers was conditionally certified as class action. The hearing mainly focused on whether to certify the claims against the partnership and the appraisers as class action. One of the questions raised included the accusation that the appraisers worked with the partnership to inflate the home prices. An issue critical to whether a class-action claim could be brought against the appraisers was whether there was a pattern of problems. Attorney George Martin, who represents appraisers Jerry Thomas and Jeanie Wiggs, said there was none and that each of the estimated 750 appraisals performed would have to be considered separately. However, according to Matthew Elliot, attorney for the eight clients suing the partnership, there is already evidence of a pattern, even though they haven't started the discovery phase of the case. Also at the recent hearing was an attorney from the Indiana attorney general's office, which is representing the partnership because it has gone into receivership. The non-profit agency went into receivership in May. For more details, contact Matthew J. Elliott of Beckman Lawson, LLP, Phone: (260) 422-0800, or e-mail mje@beckmanlawson.com, Web site: http://www.beckmanlawson.com. ITI INTERNET: Lawyer Asks for More Time to Manage "Turner" Suit --------------------------------------------------------------- Gerald Walters of the Lakin Law Firm asked Judge Daniel Stack on Sept. 29, 2006 to push back certain deadlines in the class action filed by Dian Turner against ITI Internet Services, Bancorp Bank and Moonlight Marketing, according to the St. Clair Record. According to Mr. Walters' motion for extension, the parties have not been able to undertake or complete discovery with regard to class certification issues nor have the depositions of any of the parties been taken. Nothing had happened in the case since April 13, when Gary Peel, attorney Brad Lakin withdrew from Ms. Turner's lawsuit and all his other class actions at the Lakin firm. Mr. Peel left the firm after federal grand jurors charged him with obstruction of justice, bankruptcy fraud and possession of child pornography. Mr. Lakin has attempted to move about half of Mr. Peel's suits forward, but judges have kept on dismissing them. Meanwhile in other cases his firm has done little or nothing. Ms. Turner's suit was filed in 2005, claiming that Moonlight Marketing improperly tendered a check on her bank account number through ITI Internet Services and Bancorp Bank. Thomas Maag, then of the Lakin firm, signed the complaint. In a 2005 hearing before Judge Stack, Mr. Maag argued against a defense motion while Mr. Peel watched from the gallery. In that hearing Mr. Maag called for Virgil Llapitan to the stand, but no one took the stand. It was later discovered that Mr. Llapitan, a manager for one of the defendants, lived in Tacoma, Washington. He had received notice to appear at the hearing the previous week. In a Dec. 21, 2005 hearing Judge Stack signed a scheduling order that would have brought him the last of the class certification briefs on Oct. 6, 2006. Soon after that, Mr. Maag left the Lakin firm to team with Brian Wendler of Collinsville. Mr. Walters filed a brief under Mr. Peel's direction in February, but then the case stalled. Thus in his Sept. 29 motion, he asked for a conference on a new schedule. He said defendants did not object to the motion. For more details, contact The Lakin Law Firm, PC, 300 Evans Ave., P.O. Box 229, Wood River, IL 62095-0229, Phone: (618) 254- 1127 and (800) 851-5523, Fax: (618) 254-0193 Web site: http://www.lakinlaw.com. KENTUCKY: Circuit Court Approves $20M Settlement with Retirees -------------------------------------------------------------- Franklin Circuit Court Judge Thomas Wingate has granted final approval to a $20 million award to retired public employees who filed a class action against the Kentucky Retirement Systems, the Courier-Journal.com reports. Under the settlement, more than 22,000 government retirees will receive checks for between $400 and $1,500 before Christmas. The three original plaintiffs will receive $25,000 each as an "incentive award." Their lawyers were granted $5.75 million in fees. The balance of the Class Fund shall be distributed to class members as: -- 68% of the remainder will be allocated to and distributed among members of Subclass 1 (Class Members who paid out-of-pocket premiums for their health insurance). Each participating Subclass 1 member will receive no less than $400.00; -- 32% of the remainder will be allocated to Subclass No. 2 (Class Members who, because of their long-term service in state or county government, paid 0% of the premiums for their health insurance). Each participating Subclass 2 member will receive $400.00. The retirement systems continue to deny liability or wrongdoing. The suit was filed by Jean C. Love, David E. Wiseman, and Belvia Campbell, on behalf of themselves and all others similarly situated against the Board of Trustees of the Kentucky Retirement Systems, which is a third-party plaintiff and a defendant as well. The defendants are: the Board of Trustees of the Judicial Retirement Plan, Board of Trustees of the Legislators' Retirement Plan and Board of Trustees of the Judicial Form Retirement System. The suit is civil action no. 02-C1-00122 Claimants eligible to receive settlement are participant in the Kentucky Employees' Retirement System, the County Employees' Retirement System, the State Police Retirement System, the Legislators' Retirement Plan, or the Judicial Retirement Plan from June 18, 2001 through Nov. 2, 2001 with no break in coverage during the period of more than one day, and chose Anthem Insurance Companies, Inc.'s as insurer. The plaintiffs in the lawsuit claimed that the defendant wrongfully obtained and withheld demutualization proceeds received from Anthem Insurance as a result of Anthem's June 18, 2001 demutualization. The class counsel is Ron Parry, Esq. Parry Deering Futscher & Sparks, PSC 411 Garrard St., P.O. box 2618 Covington, KY 41012- 2618. The defense counsel is Richard G. Giffifth, Esq. at Stoll Keenon Ogden PLLC, 300 West Vine St., Suite 2100, Lexington, KY 40507- 1801; and James T. Gilbert, Esq. at Coy, Gilbert & Gilbert, 201 North Second St., Richmond, KY 40475. MTD PRODUCTS: Recalls Compact Snow Throwers After Injury Reports ---------------------------------------------------------------- MTD Products Inc., of Cleveland, Ohio, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 130,000 units of two-stage compact snow throwers. The company said if the snow thrower's tires are over-inflated, the plastic wheel rims can burst, posing a risk of lacerations and fractures. MTD has received reports of 16 injuries, including fractured fingers, a broken toe, and facial lacerations. The recalled two-stage compact snow thrower is used for snow removal. The snow thrower has two wheels and comes in red, green, gray or black. Troy-Bilt, Yard Machines or Craftsman is printed on the snow thrower's housing. The model number is located on the snow thrower's rear frame. The model numbers included in this recall are listed below. Brand Model Snow Thrower Troy-Bilt 31AS3BB2766 5.5 HP 24-inch Two Stage Yard Machines 31A-3AAD700 5 HP 22-inch Two Stage 31A-3BAD700 5.5 HP 22-inch Two Stage 31A-3BAD729 5.5 HP 22-inch Two Stage 31A-3BAD752 5.5 HP 22-inch Two Stage 31A-3BAD762 5.5 HP 22-inch Two Stage 31AS3DDE729 7 HP 24-inch Two Stage Craftsman 247.88255 5.5 HP 24-inch Two Stage 247.88700 5 HP 22-inch Two Stage These two-stage compact snow throwers were manufactured in Canada and are being sold at independent dealers, home improvement and hardware stores. The Craftsman brand snow throwers were sold at Sears and Kmart stores. Affected snow throwers were sold from July 2004 through March 2006 for between $500 and $800. Picture of the recalled compact snow thrower: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07003.jpg Consumers are advised to contact MTD for a free service kit with pressure relief valves, labels and instructions. Consumers with Craftsman brand snow throwers will be mailed a service kit directly by Sears. For more information, contact MTD toll-free at (888) 848-6038 between 8 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.mtdproducts.com. NORTHROP GRUMMAN: Facing Lawsuit Over Pension Plans Management -------------------------------------------------------------- The law firm of Schlichter, Bogard & Denton filed a purported class action against defense contractor Northrop Grumman Corp. over the management by the company of workers' 401(k) plans, The Dallas Morning News reports. The 45-page complaint accuses the corporation, its savings plan administrative committee, its investment committee and 16 individuals of "breach of fiduciary duty." It specifically stated that the plan sponsor is accused of failing to fulfill its fiduciary duty to make certain that the 401(k) plan operates with appropriate expenses. According to the suit, the most certain means of increasing the return on employees' 401(k) savings is to reduce the fees and expenses employees pay from their 401(k) accounts. He also stated that unlike generalized market fluctuations, employers could control these fees and expenses with federal law requiring them to do so. The suit is also alleging that the plan is filled with "shadow index funds" that are collecting the much higher fees of managed funds. In effect, according to the suit, workers are paying for something -- active management -- but not getting it. And that, the suit asserts, is where the company and its executives have breached their fiduciary duty. According to the lawsuit, all of the company's nine fund offerings that claim active management have scored as shadow index funds over the last six years. As a consequence, the suit contends, corporate management may have set employees up to pay two or three times as much in fees as management's fiduciary duty would dictate. For more details, contact Schlichter, Bogard & Denton, 100 South Fourth Street, Suite 900, St. Louis, MO 63102, Phone: (314) 621- 6115, Fax: (314) 621-7151, Web site: http://www.uselaws.com/. PRICEWATERHOUSECOOPERS: Portus Investors File Suits Over Fees ------------------------------------------------------------- Portus Alternative Asset Management Inc. investors filed purported class actions in Ontario Superior Court against two Toronto law firms and the accounting firm PricewaterhouseCoopers LLP, demanding that the return of fees they received from the bankrupt Canadian hedge fund, according to Bloomberg.com. According to attorney Joel Vale, the hedge fund probably paid between CA$1 million ($888,570) and CA$3 million ($2,665,710) to the law firms of Blake, Cassels & Graydon and McMillan Binch Mendelsohn, as well as PricewaterhouseCoopers. Mr. Vale is representing Garry Hurst, the lead plaintiff in the proposed class actions. The complaint against McMillan Binch contends that the law firms should have known that at the same time they were receiving legal fees from Portus from 2003, those payments of legal fees improperly came from Portus funds, which were trust monies. Founded in 2002 by Boaz Manor and Michael Mendelson, Portus became one of Canada's fastest-growing hedge funds, with about 26,000 customers who invested C$800 million ($710,856,000). The Ontario Securities Commission sued Portus over questionable transactions in March 2005, about a year before it was placed in bankruptcy. Trustee KPMG LLP is still trying to find as much as $18 million missing from Portus accounts. The complaints stated that McMillan Binch helped prepare Portus' promotional literature and contracts, and Blake Cassels was the hedge fund's lead counsel and oversaw its structure. Companies referred clients to Portus in exchange for fees, which the Ontario Securities Commission said totaled about CA$90 million ($79,971,300) or 12 percent of the capital invested in the hedge fund. The Canadian insurer, Manulife, refunded Portus' clients' investments and is now its biggest creditor. The class actions are: -- "Garry Hurst v. McMillan Binch, Case No. 06-cv- 319555CP," Ontario Superior Court of Justice (Toronto); -- "Garry Hurst v. Blake, Cassels & Graydon, Case No. 06- cv-319679," Ontario Superior Court of Justice (Toronto); and -- "Garry Hurst and PricewaterhouseCoopers (PwC) LLP, Canada, Case No. 06-cv-319818," Ontario Superior Court of Justice (Toronto). SLAVERY REPARATIONS LITIGATION: Ill. Appeals Court Hears Lawsuit ---------------------------------------------------------------- The 7th Circuit Court of Appeals in a Chicago federal courthouse began to hear the case, "Farmer-Paellmann, et al. v. Brown and Williamson, Case No. CV 05-3265" on Sept. 27, according to The Bridge. The lawsuits, filed between March 2002 and January 2003, targeted 18 corporations for causing injuries plaintiffs suffer as a result of the enslavement of their ancestors, and for consumer fraud injuries they recently incurred as a result of defendants making false statements about their roles in slavery. The cases has since been consolidated. Deadria Farmer-Paellmann is lead plaintiff in the cases. Defendants include: -- Aetna Inc., -- American International Group (AIG), -- Lloyd's of London, -- New York Life Insurance Co., -- Southern Mutual Insurance Co., -- FleetBoston Financial Corp. (Bank of America), -- AFSA Data Corp., -- Brown Brothers Harriman, -- JP Morgan Chase Manhattan Bank (Bank One), -- Lehman Brothers, -- RJ Reynolds Tobacco Co., -- Brown and Williamson, -- Liggett Group Inc., -- Loews Corp. (Lorrilard), -- Canadian National Railway, -- CSX Corp., -- Norfolk Southern Corp., and -- Union Pacific Railroad Mrs. Farmer-Paellmann claims that Aetna wrote a life insurance policy on her ancestor Abel who was enslaved in South Carolina. She obtained evidence of the policy from the California Slavery Era Insurance Registry published in 2002 originating from a law introduced by California Senator Tom Hayden. She also claims that she was a consumer of FleetBoston and CSX and lost money as a result of being mislead about their roles in slavery which, in her opinion, constitute recent consumer fraud. SOUTH AFRICA: Cals Want Govt to Enforce School Fee Exemption Law ---------------------------------------------------------------- University of Witwatersrand's Center for Applied Legal Studies has approached the Durban High Court to compel Hunt Road Secondary School to apply the law that exempts poor parents from paying school fees, according to the Mail & Guardian. The demand was filed as a class action by Cals together with two parents of children at the Hunt Road school, Audrey Ngubane and Emily Ngwira. Both are single mothers and currently unemployed, the report said. Ms. Ngubane had enrolled her daughter at Hunt Road in 2004, and that year managed to pay R1,400 ($179.3) of the R4,400 ($563.86) per year for registration and school fees, the application says. Late in 2004, when she approached the school to ask about an exemption because her financial condition would no longer allow her to pay the school fees, she was allegedly told the school did not offer these. Later, Cals discovered the school had obtained a judgment against her for R3,000 ($384.54) in outstanding fees. It obtained an order rescinding this judgment in August last year. Ms. Ngwira was also allegedly told that the school does not offer exemptions to poor parents. The school had secured judgment against her for R12,800 ($1,640.72) in unpaid fees. Cals won an order rescinding this in May this year. The application argues that both women qualify for full exemption under a government regulations that allow such benefit to parents whose gross annual income is less than 10 times the school fees. Partial exemption is granted to those whose income is between 10 and 30 times the fees. The application lists 10 other parents against whom the school has obtained judgments for unpaid fees. The legal action was filed against Minister of Education Naledi Pandor, KwaZulu-Natal Education Minister Ina Cronje, Hunt Road School and its governing body. According to the report, the suit wants the court to interdict the school from suing for unpaid school fees in cases where parents qualify for exemption, and to order the school to begin processing applications for exemption, and to stop harassing or discriminating against pupils whose parents have not paid fees. SYMBOL TECHNOLOGIES: Shareholders Contest Motorola Acquisition -------------------------------------------------------------- Symbol Technologies, Inc. is facing putative class actions filed in state court seeking to enjoin a proposed acquisition of the company by Motorola, Inc. On Sept. 19, 2006, Motorola and Symbol signed a definitive merger agreement, under which Motorola has agreed to acquire all of the outstanding shares of Symbol for $15 per share in cash. The acquisition would more than double Motorola's enterprise business and gain access to corporate clients looking to by radio frequency identification scanners and other hand-held computers. Symbol has agreed to pay a breakup fee of more than $110 million should it back out of the deal. The acquisition is subject to customary regulatory approval and the approval of Symbol's stockholders, and is expected to be completed in late 2006 or early 2007. On Sept. 25, Market Street Securities Inc., which owns shares of Symbol, filed a lawsuit in New York state against Symbol and its seven directors, challenging Motorola Inc.'s intended purchase of the company, saying the leading seller of scanners could fetch more money, the Chicago Business reports. The lawsuit, which seeks class-action status, is asking a judge to either halt the acquisition or provide damages if the deal goes through. "The proposed merger constitutes self-dealing, deception, unfair dealing, overreaching and a breach of fiduciary duty by defendants to the putative class," the lawsuit said. Market Street alleges that Symbol executives jumped too soon and shunned other potential suitors who may be willing to pay more for the company. The suit argues, "Symbol is now beginning to show signs of turning around its business. Operating margins for the second quarter had grown to 9.8% from a negative 6.6% in the year- earlier quarter. The company also cut $80 million, or 11%, of its operating expense since August 2005." Market Street Securities also asserts in the suit that the breakup fee is "certain to chill the ardor of other potential bidders." Symbol believes the lawsuits are entirely without merit and intends to vigorously defend against the claims. For more information, contact: Lori Chaitman, Symbol Technologies, Inc., Phone: 631.738.5050, E-mail: lori.chaitman@symbol.com. UNITED STATES: Seven Plaintiffs in "Aziz" Granted Citizenship ------------------------------------------------------------- Plaintiffs in the class action, "Mustafa Aziz et al. v. Alberto Gonzales, et al.," which was filed in the U.S. District Court for the Central District of California, were granted U.S. citizenship, as part of a deal that would drop charges against the federal government, according to The Los Angeles Times. Seven Muslims who have been waiting years to become U.S. citizens were notified on Oct. 5, 2006 that their applications had been approved, two months after they joined the suit, which accuses immigration officials of illegally delaying background checks and allowing applications to linger indefinitely. Three other plaintiffs who joined that suit are still waiting for approval, American Civil Liberties Union attorney Ranjana Natarajan said. Under an agreement with the government, the seven who were approved should be able to be sworn in as citizens by Nov. 30. In turn, they agreed to drop their cases against the government. According to the ACLU attorney, despite the settlement, the government did not explain the delays or why the applications were approved so quickly after the filing of the suit. Case Background The ACLU of Southern California, the ACLU Immigrants' Rights Project and the Council on American-Islamic Relations filed a class action on behalf of several immigrants against the federal government over citizenship application delays (Class Action Reporter, Aug. 3, 2006). The lawsuit, which was specifically filed against high-ranking officials in the U.S. Citizenship and Immigration Services and the Federal Bureau of Investigation, seeks citizenship for 10 legal permanent residents who have satisfied all the criteria for citizenship, but whose applications have not been acted upon for two years or more. It also seeks a policy change so that no other residents are forced to wait for years after meeting all naturalization requirements. U.S. immigration law states that legal residents who have fulfilled all the requirements including passing a naturalization exam and interview must be granted or denied citizenship within 120 days of their naturalization examinations. According to the lawsuit, despite the fact that plaintiffs have been waiting for over two years since their naturalization interviews, defendants have failed to provide any time frames by which they will adjudicate plaintiffs' naturalization applications. The defendants are accused of depriving plaintiffs of the rights and benefits of U.S. citizenship. The purported reason for the delay is a background check known as a "name check," for which neither the Criminal Investigation Service nor the Federal Bureau of Investigation imposes any deadlines for completion. The ACLU filed the lawsuit Aug. 1, 2006. In it the civil rights group asked a federal judge to certify the complaint as a class action and include all immigrants who have been waiting six months or more for naturalization after filing applications at the Los Angeles citizenship service office. Ms. Natarajan said she was still waiting to hear if the judge would allow the ACLU to continue with a class action. She adds that there are about 50 people, including non-Muslims, who could be added. The complaint is available free of charge at: http://researcharchives.com/t/s?ed0 For more details, contact: (1) Todd Gallinger, Council of American-Islamic Relations (CAIR) - California, 2180 W. Crescent Ave., Suite F, Anaheim, California 92801, Phone: (714) 776-1847, Fax: (714) 776-8340; (2) Ranjana Natarajan and Mark D. Rosenbaum, ACLU Foundation of Southern California, 1616 Beverly blvd., Los Angeles, California 90026, Phone: (213) 997-9500, Fax: (213) 250-3919; and (3) Lucas Guttentag and Cecillia D. Wang, ACLU Foundation Immigrants' Rights Project, 39 Drumm St., San Francisco, California 94111, Phone: (415) 343-0775, Fax: (415) 395-0950. WENDY'S INTL: Undocumented Workers Sue Over Citizenship Filing -------------------------------------------------------------- A group of illegal immigrants working for Wendy's International, Inc., filed a lawsuit against the restaurant chain, alleging that the company fired them after discovering it had missed a deadline for joining a federal program that would have helped them attain legal status, according to The Associated Press. The suit, filed on Oct. 6, 2006 in state district court in Houston, is a companion to a similar class action filed last month in Dallas against Dublin, Ohio-based Wendy's, its subsidiary Cafe Express and the Houston-based business law firm Boyar & Miller. Forty illegal immigrants say they were fired after the company recently found that Boyar & Miller, the law firm that the company had hired, never filed paperwork for a 2001 legalization program that allowed immigrants with employer sponsorship or an American spouse to apply for citizenship. Once the discovery was made, the company was forced by law to fire the employees due to their illegal status. Immigrants in the program would have been insulated from being fired. For more details, contact: (1) Stan Broome or Matthew Bobo of Howie, Broome & Bobo, LLP, Phoen: +1-214-574-7500; and (2) Mike Androvett, Phone: +1-800-559-4534, E-mail: mike@legalpr.com. * Skadden, Arps Counsel Joins Alixpartners' New York Practice ------------------------------------------------------------- AlixPartners, LLC is expanding its Electronic Discovery and Litigation Technology services with the addition of Matthew Cohen, who will lead the firm's electronic discovery practice in New York. The international corporate turnaround, performance improvement and financial advisory firm also announced that it is opening a Data Center to support its litigation technology consulting services. Mr. Cohen spent 15 years with Skadden, Arps, Slate, Meagher & Flom LLP where he was a counsel in the Complex Mass Torts and Insurance Litigation department and Co-Chair of the firm's Electronic Discovery Committee. He specializes in electronic discovery and litigation readiness planning, and has extensive experience assisting corporations in the technology, consumer products, pharmaceutical, medical device, insurance and financial services sectors in preparing for and responding to discovery demands in litigation and regulatory matters and in managing discovery in complex litigation and regulatory matters. Mr. Cohen is a member of the Sedona Conference Working Group on Electronic Document Retention and Production, a co-author of the Working Group's RFP+ White Paper and a contributing editor of its Glossary. He is also a faculty member and a member of the Advisory Committee for the Georgetown University Law Center Continuing Legal Education Electronic Discovery program. In addition, Mr. Cohen is a frequent lecturer and has written numerous articles on electronic discovery. He earned a JD from the Fordham School of Law and a bachelor's degree from the State University of New York at Stony Brook. "The addition of Matt Cohen to our team means that AlixPartners is even more strongly positioned to support its clients with highly credentialed professionals who have real world Electronic Discovery and Litigation Readiness consulting experience. "This expertise is particularly important to the firm's clients in light of the pending amendments to the Federal Rules of Civil Procedure, which are slated to become effective on Dec. 1, 2006. These amendments will require litigants to proactively identify potentially relevant electronically stored information and to confer with their opponents regarding their preservation efforts and information storage systems," according to Meade Monger, managing director at AlixPartners. The firm is opening a Data Center, representing a substantial investment in a state-of-the-art facility and cutting-edge hardware and software to support its data analytics and settlement administration services and to assist clients in meeting the new challenges posed by electronic discovery. The Data Center will provide AlixPartners' clients with multiple options and functionalities to ensure high-quality, cost- efficient solutions tailored to the needs of each individual case. "AlixPartners continues to be at the forefront of the litigation technology revolution," added Meade Monger. "We have long been using our expertise in technology, finance, accounting, litigation, and our unique ability to analyze and distil massive amounts of data to help clients solve complex problems. With the Data Center, we will continue to use these skills to facilitate all aspects of electronic discovery, data analytics and class action settlement administration, but will be able do so more effectively and efficiently for our clients." AlixPartner, LLC -- http://www.alixpartners.com-- based in Southfield, Michigan is a global performance improvement, corporate turnaround and financial advisory services firm. The AlixPartners' "one-stop-shop" suite of services range from operational performance improvement and financial restructuring across all major corporate disciplines (manufacturing, supply chain, IT, sales and marketing, etc.), to financial advisory services (including financial reporting, corporate governance and investigations) to technology-enabled restructuring and claims management. The firm has more than 500 employees, and has offices in Chicago, Dallas, Detroit, Duesseldorf, London, Los Angeles, Milan, Munich, New York, Paris, San Francisco and Tokyo. AlixPartners, LLC: Phone: 248-358-4420, E-mail: dkuptz@alixpartners.com or Shade Vaughn, Phone: 212-836-4232, E- mail: svaughn@marstonpr.com. New Securities Fraud Cases ENCYSICE PHARMACEUTICALS: Federman & Sherwood Announces Lawsuit --------------------------------------------------------------- Federman & Sherwood announces that on Sept. 26, 2006, a class action was filed in the U.S. District Court for the Southern District of Texas against Encysive Pharmaceuticals Inc. The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material misrepresentations to the market which had the effect of artificially inflating the market price. The class period is from Feb. 19, 2004 through Mar. 24, 2006. All motions for appointment as lead plaintiff must be filed with the court by Nov. 27, 2006. For more details, contact William B. Federman of Federman & Sherwood, 10205 North Pennsylvania Avenue, Oklahoma City, OK 73120, Phone: (405) 235-1560, E-mail: wfederman@aol.com, Web site: http://www.federmanlaw.com. MARVELL TECHNOLOGY: Roy Jacobs Files Securities Suit in Calif. -------------------------------------------------------------- Roy Jacobs & Associates filed a class action in the U.S. District Court for the Northern District of California on behalf of purchasers of the common stock and other securities of Marvell Technology Group, Ltd. who purchased during the period from Oct. 3, 2001 through Oct. 3, 2006. The complaint alleges that Marvell and certain of its officers and directors violated the federal securities laws by making false and misleading statements and omissions concerning the backdating of the grant of stock options to management. The company has now said that its financial statements from June of 2000 to the present cannot be relied upon, and that it will be restating financial results. The practice of manipulating stock option dates not only potentially lines the pockets of the executives, but here resulted in the overstatement of Marvell's earnings during the class period, and the under-booking of compensation expenses. Under accounting rules, back-dating an option grant is deemed the payment of additional compensation and must be accounted for as an expense, which Marvell failed to do. On Oct. 3, 2006, the defendants announced that the company would be forced to restate its financial statements to correct for the backdating of stock options. From the time that assertions were first made in the press that Marvell's options practices might be questionable to the date of this announcement, Marvell stock sank from over $28 per share to roughly $16 per share. All motions for appointment as lead plaintiff must be filed with the court by Dec. 5, 2006. For more details, contact Roy Jacobs & Associates, Phone: 1-800- 347-1236, E-mail: classattorney@pipeline.com. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *