/raid1/www/Hosts/bankrupt/CAR_Public/061207.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 7, 2006, Vol. 8, No. 243
Headlines
ACE MORTGAGE: Loan Processors File Fla. FLSA Violations Lawsuit
ADVANCEPCS: Ariz. Appeals Court Affirms ERISA Lawsuit Dismissal
ANNTAYLOR STORES: Calif. Court Approves Suit Over Vacation Pay
AVERY DENNISON: Continues to Face Pa. Suit V. UPM-MACtac Merger
AVERY DENNISON: ERISA Violations Suit Remains Stayed in Calif.
AVERY DENNISON: Securities Fraud Suit Remains Stayed in Calif.
AVERY DENNISON: Webtego, D.R. Ward Abandon Label Stock Lawsuits
AVIS RENT: Certification Hearing in "Esquivel" FSC Suit Set Dec.
AVIS RENT: Faces Two Vehicle Rental Litigation in California
BARR PHARMACEUTICALS: No Trials Set for Ovcon Antitrust Cases
BIRMINGHAM RACE: "Money-Losing" Track Customer Files Ala. Suit
BLUE CROSS: Arbitration Request for Mo. Physicians' Suit Denied
CANADIAN NATIONAL: Class Status for Derailment Victims Denied
CAREMARK RX: Ala. Court Revises "McArthur," "Lauriello" Rulings
CISCO SYSTEMS: Calif. $98M Securities Fraud Settlement Finalized
COUNTRYWIDE INSURANCE: Attorney Seeks Substitution of Ill. Judge
FOOT LOCKER: ERISA Violation Complaints in N.Y. Court Dismissed
FRESH GRILL: Recalls Sandwiches Due to Undeclared Anchovies
INPHONIC INC: Suit Over Rebate Offers Consolidated in D.C. Court
IONATRON INC: Still Faces Securities Fraud Litigation in Ariz.
IPSCO INC: Faces Suit in Ky. Over NS Group-PI Acquisition Deal
JAKKS PACIFIC: Continues Bid to Dismiss N.Y. Securities Suit
JOHNSON & JOHNSON: NJ Employment Bias Suit Certification Mulled
KING PHARMACEUTICALS: $1.5M Legal Fee Sought in Merger Suit
LINDEN LAB: Recalls Cantaloupes Because of Possible Health Risk
MEADE INSTRUMENTS: Faces Securities Fraud Litigation in Calif.
MICROSOFT CORP: Faces Wash. Consumer Suit Over Xbox 360 Problems
MICROSOFT CORP: Gates to Testify Only Once in IA Antitrust Suit
MIRANT CORP: Court Grants "Comer" Plaintiffs' Dismissal Motion
NATIONAL PHYSICIANS: Plaintiff in N.Y. TCPA Suit Drops Complaint
OCWEN FINANCIAL: Court Mulls MDL-1604's Federal Preemption Issue
ODYSSEY HEALTHCARE: Court Dismissed Planned Appeal on Stock Suit
OPEN SOLUTIONS: Stockholder Sues Over Carlyle-Providence Deal
PROPERTY CASUALTY: Seeks Reversal for Credit-Based Scoring Cases
RELIANT ENERGY: Settles Calif. Natural Gas Lawsuits for $35M
SECURITIES FIRMS: Appeals Court Sides with IPO Suit Defendants
ST. LAWRENCE: Seeks Leave to Appeal Beauport Suit in Canada
STANLEY SECURITY: Recalls Faulty 5K Series Door Handle Locks
SUN-TIMES MEDIA: Ill. Court Mulls Dismissal of Securities Suit
VERTEX PHARMACEUTICALS: Calif. Suit Over Aurora Merger Dismissed
WAL-MART STORES: Class Status Granted to Ky. Employees' Lawsuit
New Securities Fraud Cases
BODISEN BIOTECH: Brower Piven Announces Securities Suit Filing
HANSEN NATURAL: Schatz Nobel Announces Securities Suit Filing
*********
ACE MORTGAGE: Loan Processors File Fla. FLSA Violations Lawsuit
---------------------------------------------------------------
Loan processors, formerly employed in Missouri and Florida,
filed a nationwide collective action against Ace Mortgage
Funding, Inc., and its principals for failure to pay overtime
compensation required by the Fair Labor Standards Act.
The loan processors who filed in Tampa allege that they
typically worked as many as sixty hours a week without receiving
any overtime premium. They also report that Ace's managers
instructed them not to report their overtime hours on their time
records.
In July 2005, a group of loan officers employed by Ace filed a
collective action in federal court in Minnesota for unpaid
minimum wage and overtime pay alleging they worked for weeks at
a time without receiving any compensation whatsoever for their
efforts or overtime compensation for hours worked over forty. A
nationwide class was certified under the FLSA and 374 loan
officers have joined that action.
Ace employs loan processors and loan officers in branch offices
in: Alaska, Arizona, California, Colorado, Florida, Georgia,
Indiana, Kansas, Kentucky, Minnesota, Missouri, Nevada, North
Carolina, Ohio, Oregon, Tennessee, Washington and Wisconsin. Its
headquarters are located in Indianapolis, Indiana.
Plaintiffs in Tampa seek to have their case certified as a
collective action under the FLSA (a type of class action in
which individuals employed in similar job positions are provided
with an opportunity to pursue overtime pay claims by opting into
a lawsuit filed by representative plaintiffs.)
In order to participate in the lawsuit, employees who worked for
Ace during the past three years must file consent to join forms,
which may be obtained from plaintiffs' counsel.
Sam J. Smith of the law firm Burr & Smith, LLP, stated,
"Allegations that mortgage companies have ignored the FLSA's
minimum wage and overtime provisions are widespread. Here, the
plaintiffs allege that Ace did not just ignore the FLSA
requirements, but instead requested that loan processors falsify
their time records in order to evade the requirements of the
FLSA."
Nichols Kaster & Anderson, PLLP attorney, Donald H. Nichols
added, "The normal liability period for unpaid wages is two
years but Ace will likely incur damages for an extra year
because we will show the Court that Ace willfully disregarded
its obligation to pay overtime to its loan processors and loan
officers."
Overtime Cases on the net: http://www.overtimecases.com
For more information on the suit, contact Sam J. Smith of Burr &
Smith, LLP, Phone: +1-813-253-2010; or Donald H. Nichols of
Nichols Kaster & Anderson, PLLP, Phone: +1-877-448-0492,
Website: http://www.burrandsmithlaw.com.
ADVANCEPCS: Ariz. Appeals Court Affirms ERISA Lawsuit Dismissal
---------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit has affirmed the
dismissal by the U.S. District Court for the District of Arizona
of the consolidated class action filed against AdvancePCS, now
doing business as CaremarkPCS. The suit alleges violations of
the Employee Retirement Income Security Act.
In April 2002, the company was served with a purported class
action filed by Tommie Glanton on behalf of the plaintiff's
health plan and a putative class of self-funded health plans.
In March 2003, the company was served with a complaint filed by
Tara Mackner in which the plaintiff, a purported participant in
a self-funded health plan customer of AdvancePCS, sought to
bring action on behalf of that plan. Each of the lawsuits
sought unspecified monetary damages and injunctive relief.
Because the previously filed Glanton case purported to be
brought as a class action on behalf of self-funded plans, the
court consolidated the Mackner case and the Glanton case.
In November 2003, the court dismissed and terminated both the
Glanton and Mackner cases on the pleadings, finding that the
plaintiffs lacked standing to bring the actions under ERISA.
In October 2006, the U.S. Court of Appeals for the Ninth Circuit
affirmed the district court's dismissal of these cases, and the
plaintiffs have filed for a rehearing.
The cases are "Glanton, et al. v. AdvancePCS Inc., Case No.
2:02-cv-00507-SRB," and "Mackner v. AdvancePCS Health LP, Case
No. 2:03-cv-00607-SRB," both filed in the U.S. District Court
for the District of Arizona under Judge Susan R. Bolton.
Representing the plaintiffs in both cases is Stephen J. Herman
of Herman Mathis Casey Kitchens & Gerel, LLP, 820 O'Keefe Ave.,
New Orleans, LA 70113, Phone: (504) 581-4892.
Representing the defendant in both cases is Peter Shawn Kozinets
of Steptoe & Johnson, LLP, Collier Ctr., 201 E. Washington St.,
Ste. 1600, Phoenix, AZ 85004-2382, Phone: 602-257-5200, Fax:
602-257-5299, E-mail: pkozinets@steptoe.com.
ANNTAYLOR STORES: Calif. Court Approves Suit Over Vacation Pay
--------------------------------------------------------------
The Santa Clara County Superior Court granted preliminary
approval of the class-wide settlement reached in a putative
class action filed by Anntaylor Stores Corp. employees alleging
they were owed unpaid vacation pay.
The company was served with three putative class action lawsuits
in California relating to how it classified certain of its
employees under California overtime laws and a putative class
action lawsuit alleging that it denied its California employees
earned vacation pay through allegedly unlawful policies related
to vacation, personal days and floating holidays.
On July 10, 2006, the Los Angeles County Superior Court granted
final approval of the class-wide settlement reached on February
28, 2006 in two of the overtime putative class action lawsuits.
The settlement in the third case became final upon final
approval of the settlement in the first two lawsuits.
On Sept. 19, 2006, the Santa Clara County Superior Court granted
preliminary approval of the class-wide settlement reached in the
vacation putative class action. The final approval hearing on
the class settlement is currently scheduled for Jan. 30, 2007.
Anntaylor Stores Corp. on the Net: http://anntaylor.com/.
AVERY DENNISON: Continues to Face Pa. Suit V. UPM-MACtac Merger
---------------------------------------------------------------
Avery Dennison Corp. has filed an answer to the amended
complaint in a purported class action pending in the U.S.
District Court for the Middle District of Pennsylvania.
The suit is in relation to the proposed merger of UPM-Kymmene
(UPM) and the Morgan Adhesives (MACtac) division of Bemis Co.,
Inc. (Bemis).
On April 24, 2003, Sentry Business Products, Inc. filed the
purported class action against the company, UPM, Bemis and
certain of their subsidiaries seeking treble damages and other
relief for alleged unlawful competitive practices. Ten similar
complaints were filed in various federal district courts.
In November 2003, the cases were transferred to the U.S.
District Court for the Middle District of Pennsylvania and
consolidated for pretrial purposes.
On January 21, 2004, plaintiff Pamco Tape & Label voluntarily
dismissed its complaint, leaving a total of ten named
plaintiffs. Plaintiffs filed a consolidated complaint on Feb.
16, 2004, which the company answered on March 31, 2004.
On April 14, 2004, the court separated the proceedings as to
class certification and merits discovery, and limited the
initial phase of discovery to the issue of the appropriateness
of class certification.
On Jan. 4, 2006, plaintiffs filed an amended complaint. On Jan.
20, 2006, the company filed an answer to the amended complaint,
according to the company's Nov. 9, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
Sept. 30, 2006.
The suit is styled "Sentry Business Products, Inc. v. Avery
Dennison Corporation, et al., Case No. 3:03-cv-01999-TIV," filed
in the U.S. District Court for the Middle District of
Pennsylvania, under Judge Thomas I. Vanaskie.
Representing the plaintiffs is Stewart M. Weltman of Cohen,
Milstein, Hausfeld & Toll, PLLC, 39 South LaSalle Street, Suite
1100, Chicago, IL 60603, Phone: 312-357-0370, E-mail:
sweltman@cmht.com.
Representing the Company are Joshua N. Holian and J. Thomas
Rosch, of Latham & Watkins LLP, 505 Montgomery Street, Suite
1900, San Francisco, CA 94111, Phone: 415-646-8343, Fax: 415-
395-8095, E-mail: joshua.holian@lw.com or Tom.Rosch@lw.com.
AVERY DENNISON: ERISA Violations Suit Remains Stayed in Calif.
--------------------------------------------------------------
The U.S. District Court for the Central District of California
approved parties' stipulation to stay the class action filed
against Avery Dennison Corp., alleging violations of the
Employee Retirement Income Security Act.
The suit also names as defendants the company's chief executive
officer, Philip M. Neal; vice president and treasurer, Karyn
Rodriguez; and vice president, compensation and benefits, James
Bochinski.
Ronald E. Dancer filed the suit on May 18, 2005, alleging
breaches of fiduciary duty under ERISA to the company's Employee
Savings Plan and Plan participants.
Plaintiff alleges, among other things, that permitting
investment in and retention of company common stock under the
plan was imprudent because of alleged anticompetitive activities
by the company, and that failure to disclose such activities to
the plan and participants was unlawful.
Plaintiff seeks an order compelling defendants to compensate the
plan for any losses and other relief.
Parties have stipulated to transfer the case to the judge in the
consolidated case, "In Re Avery Dennison Corporation Securities
Litigation."
The court approved the parties' stipulation to stay the matter
pending the outcome of the government investigation of alleged
anticompetitive conduct by the company, according to the
company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the period ended Sept. 30, 2006.
The suit is "Ronald Dancer v. Avery Dennison Corporation et al.,
Case No. 2:05-cv-03708-NM-FMO," filed in the U.S. District Court
for the Central District of California under Judge Nora M.
Manella.
Representing the plaintiffs are:
(1) Wayne T. Boulton, Robert A. Izard, Andrew M. Schatz,
Schatz and Nobel, 20 Church Street, 17th Floor,
Hartford, CT 06103, Phone: 860-493-6292, E-mail:
wboulton@snlaw.net or firm@snlaw.net;
(2) Michael D. Braun, Marc L. Godino, Braun Law Group,
12400 Wilshire Boulevard, Suite 920, Los Angeles, CA
90025, Phone: 310-442-7755, E-mail:
service@braunlawgroup.com; and
(3) Joseph Gentile, Ronnen Sarraf, Sarraf Gentile, 485
Seventh Avenue, New York, NY 10018, Phone: 212-868-
3610, E-mail: ronen@sarrafgentile.com.
AVERY DENNISON: Securities Fraud Suit Remains Stayed in Calif.
--------------------------------------------------------------
The securities class action filed in the U.S. District Court for
the Central District of California against Avery Dennison Corp.,
Chief Executive Officer Philip M. Neal, Chief Financial Officer
D. R. O'Bryant and controller, Michael A. Skovran, remains
stayed.
On May 6, 2003, Sekuk Global Enterprises filed a purported
stockholder class action seeking damages and other relief for
alleged disclosure violations pertaining to alleged unlawful
competitive practices. Subsequently, another similar action was
filed in the same court.
On Sept. 24, 2003, the court appointed a lead plaintiff and
approved lead and liaison counsel and ordered the two actions
consolidated as, "In Re Avery Dennison Corporation Securities
Litigation."
Pursuant to court order and the parties' stipulation, the
plaintiff filed a consolidated complaint in mid-February 2004.
The court approved a briefing schedule for defendants' motion to
dismiss the consolidated complaint, with a contemplated hearing
date in June 2004.
In January 2004, the parties stipulated to stay the consolidated
action, including the proposed briefing schedule, pending the
outcome of the government investigation of alleged
anticompetitive conduct by the company.
The court has approved the parties' stipulation to stay the
consolidated actions. There has been no discovery and no trial
date yet, according to the company's Nov. 9, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Sept. 30, 2006.
The suit is "Sekuk Global Ent., et al. v. Avery Dennison Corp.,
et al., Case No. 2:03-cv-03175-NM-FMO," filed in the U.S.
District Court for the Central District of California under
Judge Nora M. Manella.
Representing the plaintiffs are:
(1) Peter A. Binkow, Lionel Z. Glancy, Michael M. Goldberg,
Glancy & Binkow, 1801 Avenue of the Stars, Ste 311, Los
Angeles, CA 90067, Phone: 310-201-9150;
(2) Richard A. Maniskas and Marc A. Topaz, Schiffrin &
Barroway, 280 King of Prussia Road, Radnor, PA 19087,
Phone: 610-667-7706; and
(3) David A. Rosenfeld, Samuel H. Rudman of Cauley Geller
Bowman Coates & Rudman, 200 Broadhollow Rd, Ste 406,
Melville, NY 11747, Phone: 631-367-7263, E-mail:
drosenfeld@lerachlaw.com or srudman@lerachlaw.com.
Representing the company is William J. Meeske of Latham &
Watkins, 633 West 5th Street, Suite 4000, Los Angeles, CA 90071-
2007, Phone: 213-891-8108, E-mail: bill.meeske@lw.com.
AVERY DENNISON: Webtego, D.R. Ward Abandon Label Stock Lawsuits
---------------------------------------------------------------
Avery Dennison Corp., UPM-Kymmene and UPM's subsidiary Raflatac
are defendants in several class actions filed on behalf of
indirect purchasers of label stock in various state courts.
On May 21, 2003, The Harman Press filed in the Superior Court
for the County of Los Angeles, California, a purported class
action on behalf of indirect purchasers of label stock. The
suit asks treble damages and other relief for alleged unlawful
competitive practices.
Three similar complaints were filed in various California
courts. In November 2003, on petition from the parties, the
California Judicial Council ordered the cases coordinated for
pretrial purposes.
The cases were assigned to a coordination trial judge in the
Superior Court for San Francisco County on March 30, 2004.
A further similar complaint was filed in the Superior Court for
Maricopa County, Arizona on Nov. 6, 2003. Plaintiffs
voluntarily dismissed the Arizona complaint without prejudice on
Oct. 4, 2004.
On Jan. 21, 2005, American International Distribution Corp.
filed a purported class action on behalf of indirect purchasers
in the Superior Court for Chittenden County, Vermont.
Similar actions were filed by Webtego on Feb. 16, 2005, in the
Court of Common Pleas for Cuyahoga County, Ohio; by D.R. Ward
Construction Co. on Feb. 17, 2005, in the Superior Court for
Maricopa County, Arizona; by Richard Wrobel on Feb. 16, 2005, in
the District Court of Johnson County, Kansas; and by Chad and
Terry Muzzey, on Feb. 16, 2005 in the District Court of Scotts
Bluff County, Nebraska.
On Feb. 17, 2005, Judy Benson filed a purported multi-state
class action on behalf of indirect purchasers in the Circuit
Court for Cocke County, Tennessee.
On Oct. 7, 2005, Webtego voluntarily dismissed its complaint.
On Feb. 16, 2006, D.R. Ward voluntarily dismissed its complaint,
according to the company's Nov. 9, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
Sept. 30, 2006.
AVIS RENT: Certification Hearing in "Esquivel" FSC Suit Set Dec.
----------------------------------------------------------------
A hearing on plaintiff's motion for class certification in the
suit, "Esquivel v. Avis," has been scheduled for December 2006.
Avis Rent A Car System, Inc. has been named as a defendant in
two putative class actions:
-- "Esquivel v. Avis," commenced Jan. 24, 2004 in the
214th Judicial District of Nueces County, Texas; and
-- "Stafford v. Avis," commenced Feb. 16, 2005 in the
District Court in and for Creek County, State of
Oklahoma); and
Budget Rent A Car System, Inc. has been named as a defendant in
one putative class action: "Ramon v. Budget," commenced April
21, 2006 in the U.S. District Court for the District of New
Jersey.
Each case alleges that the Company's use and collection of the
fuel service charge (FSC), pursuant to its rental agreements,
constitutes an illegal penalty and is therefore a breach of the
rental agreements between the Company and the putative class
members and is unconscionable under the relevant state Uniform
Commercial Code.
The cases assert other causes of action such as fraudulent
misrepresentation, unjust enrichment, unfair trade practice
under the Oklahoma Consumer Protection Act, and violation of New
Jersey's Consumer Fraud Act. The putative class in each case
comprises:
-- in Esquivel:
* all Texas residents who were charged an FSC by Avis
or its licensee in Texas after February 6, 2000;
-- in Stafford:
* all persons who were charged an FSC by Avis, or
alternatively, all Oklahoma residents who were
charged an FSC by Avis; and
-- in Ramon, all persons who were charged an FSC by
Budget.
In each case, the plaintiff seeks an unspecified amount of
compensatory damages, with the return of all FSC paid or the
difference between the FSC and the company's actual costs,
disgorgement of unearned profits, attorneys' fees and costs.
In the Esquivel matter, discovery is ongoing and a hearing on
the plaintiff's motion for class certification has been
scheduled for December 2006.
No class certification hearing has been scheduled or heard by
the court in either the Stafford or Ramon cases. The company
has filed a motion to dismiss the complaint in its entirety in
the Ramon case, however, no hearing has been held on the motion,
which is still pending.
The New Jersey suit is "Ramon v. Budget Rent A Car System, Inc.,
Case No. 2:06-cv-01905-WJM-MF," under Judge William J. Martini
with referral to Mark Falk.
Representing the defendant is David A. Picon at Proskauer Rose,
LLP, 1585 Broadway, New York, NY 10036, Phone: (212) 969-3000,
E-mail: dpicon@proskauer.com.
Representing the plaintiff is Philip A. Tortoreti at Tortoreti
Tomes & Callahan, 150 Tices Lane, East Brunswick, NJ 08816,
Phone: 732-257-9100, E-mail: ptort@ttclawyers.com.
AVIS RENT: Faces Two Vehicle Rental Litigation in California
------------------------------------------------------------
On Aug. 8, 2006, the suits "Ludwig v. Avis Rent A Car System,
Inc." and "Farrell v. Budget Rent A Car System, Inc." were filed
in the Superior Court of California in and for Los Angeles on
behalf of plaintiffs and all others similarly situated claiming
violations of California Civil Code Section 1936 and unlawful,
unfair or fraudulent business practices under California
Business and Professions Code Section 17203.
In both cases, plaintiffs seek class certification, general and
compensatory damages, reasonable attorneys fees and seek that
Avis and Budget, respectively, be enjoined from future conduct
constituting violations of Civil code 1936.
Section 1936 of the California Civil Code establishes the
additional daily rates which a rental car company may charge for
the optional loss damage waiver product based on the
manufacturer suggested retail price (MSRP) of the vehicle in
2002 with Consumer Price Index increases to the MSRP commencing
January 1, 2003.
Plaintiffs contend that the amount of the daily charge imposed
for certain classes of vehicles exceeds the amount set forth in
the statute based on the vehicle cost. No class certification
hearing has been scheduled or heard by the court.
Avis Rent A Car System, Inc. on the Net: http://www.avis.com/.
BARR PHARMACEUTICALS: No Trials Set for Ovcon Antitrust Cases
-------------------------------------------------------------
No trial dates have yet been scheduled for the various antitrust
lawsuits filed against Barr Pharmaceuticals, Inc. with regards
to the drug Ovcon, according to the company's form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30.
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.
Barr Pharmaceuticals, Inc. on the Net: http://www.barrlabs.com/.
BIRMINGHAM RACE: "Money-Losing" Track Customer Files Ala. Suit
--------------------------------------------------------------
Birmingham Race Course was named a defendant in a purported
class action filed in Jefferson County Circuit Court in Alabama
that seeks to recover money lost at the sweepstakes games at the
track.
The suit came after last week's 8-0 ruling by the Alabama
Supreme Court that the sweepstakes games at the track amounted
to illegal slot machines.
Attorney Matt Lembke and his legal team, who were the ones that
filed the suit, are basing their claims on a state law that
allegedly protects gamblers.
The Legislature passed the law in 1852, which says that if a
gambler loses money in a bet, he has six months in which to have
that money returned. A man's wife, children and next of kin
have 12 months to go back to the person who won the bet and
collect money lost.
Though more than a century old, the statute was used several
times in the past for recoveries, according to Mr. Lembke.
Mr. Lembke filed the suit on behalf of Debra Johnson of
Birmingham, who he described as a money-losing customer of the
track. However, Mr. Lembke seeks to make it a class action on
behalf of all Alabamians who lost money and their immediate
families.
Recovery should not be difficult, according to Mr. Lembke, since
customers of the sweepstakes games opened accounts at the track,
and electronic records of their winnings and losses should be
available.
For more details, contact Matthew Lembke, 134 S. Fitzhugh St.,
Rochester, New York 14608, (Monroe Co.), Phone: 585-454-3323,
Fax: 585-262-6015.
BLUE CROSS: Arbitration Request for Mo. Physicians' Suit Denied
----------------------------------------------------------------
The Circuit Court of Jackson County, Missouri has denied the
request for arbitration by Blue Cross and Blue Shield of Kansas
City, Humana and UnitedHealthcare in a class action involving
more than 2,200 physicians, The Associated Press reports.
Several doctors' groups filed the lawsuit in February 2005,
claiming that the three insurers were violating antitrust laws
by conspiring to fix prices they paid to physicians for services
to customers and refusing to negotiate reasonable
reimbursements.
The bulk of the doctors' contracts with the insurers included
clauses sending disagreements to a third-party arbitrator, which
the insurance companies demanded and a special master in the
case recommended.
However, Judge Charles E. Atwell supported the doctors'
opposition to arbitration, as evidenced by the Dec. 4, 2006
issued ruling.
In his ruling, the judge wrote, "This court believes that the
unique facts to this particular litigation creates a factual
perfect storm that makes these contracts unconscionable and
against the public policy."
The ruling pointed out that to enforce these arbitration
agreements would be tantamount to granting immunity to these
defendants regarding any kind of claim touching upon conspiracy
or relief as part of a class action.
The judge though cautions that the case would be put on hold
while the insurance companies appeal his decision.
In praising Judge Atwell's decision, Diane Breneman of Shaffer
Lombardo Shurin, the physicians' legal representative, said,
"there's no connection between the doctors' contracts and health
insurers' anticompetitive conduct in their price fixing or
forming a monopoly in Kansas City."
For more details, contact Diane Breneman of Shaffer Lombardo
Shurin, 911 Main Street, Suite 2000, Kansas City, MO 64106,
Phone: (816) 931-0500, Fax: (816) 931-5775, E-mail:
dbreneman@sls-law.com, Web site: http://www.sls-law.com/.
CANADIAN NATIONAL: Class Status for Derailment Victims Denied
-------------------------------------------------------------
Illinois Supreme Court Justice Lloyd Karmeier ruled that people
displaced by a southern Illinois train derailment that released
toxic chemicals in 2003 may not file a lawsuit against Canadian
National Railway together, the Du Quoin Evening Call reports.
Justice Karmeier wrote in his opinion for the court that the
problems did not stem from the derailment itself, but from
exposure to the chemicals released.
Determining each victim's injuries and their cause would consume
the bulk of the trial, he said, and is not the point of a class-
action lawsuit.
The original suit names residents Clayton Moss, Dawn Klamm and
children, Vicki Przygoda and children, Larry Galbraith and wife
Shirley, Kenneth Knapp and daughter Brittany, Ricky Long and
wife Opaline, Kim Arendell and Randy Fallowell as plaintiffs and
the railroad as the defendant. The suit seeks $20,000 for each
family (Class Action Reporter, Feb. 26, 2003).
The suit alleged that the Company failed to adequately
compensate residents for damages incurred during the 2003
chemical spill that resulted from the train derailment.
In August 2004, the Company filed a motion asking the 5th
District Court of Appeals to consider an appeal of an earlier
decision by St. Clair County Court that certified the case as a
class action lawsuit.
The Fifth District refused to hear that motion, so the Company
filed their appeal with the Supreme Court. The justices in
Springfield also refused to hear the motion, however it issued a
supervisory order to the appellate court. That order requires
the Fifth District to hear arguments "on the merits of the
appeal" (Class Action Reporter, Dec. 8, 2004).
In January an appellate court ruled that a lawsuit against the
Canadian National Railway over a train derailment that forced
hundreds of residents to evacuate the southern Illinois town
Tamaroa can continue as a class action case (Class Action
Reporter, Jan. 4, 2006).
The National Transportation Safety Board determined that rail
failure caused the accident, which sent 22 of the train's 108
cars off the tracks. Canadian National previously said that in
the wake of the incident, it paid more than 800 households and
businesses more than $700,000 in damages.
But in an opinion issued without dissent, the Supreme Court
ruled that the types of problems the victims encountered were
not common enough to warrant a class action.
"The common issues do not predominate," Justice Karmeier wrote.
Canadian National has said it paid more than 800 families and
businesses more than $700,000 after the accident to compensate
for their problems, according to the report.
Headquartered in Montreal, Quebec, Canadian National Railway
(NYSE:CNI) (Toronto:CNR) -- http://www.cn.ca-- is a Canadian
Class I railway operated by Canadian National Railway Co. It is
the largest railway in Canada, in terms of both revenue and the
physical size of its rail network.
CN is currently Canada's only transcontinental railway company,
spanning Canada from Nova Scotia to British Columbia. It also
has extensive trackage in the central U.S. along the Mississippi
River valley from the Great Lakes to the Gulf of Mexico.
CAREMARK RX: Ala. Court Revises "McArthur," "Lauriello" Rulings
---------------------------------------------------------------
The Alabama Supreme Court withdrew its August 2006 opinion
regarding defendants' petition for writ of mandamus, and the
court's vacate order in the suit, "McArthur v. Caremark Rx, et
al.," and "Lauriello v. Caremark Rx, et al."
Lauriello Litigation
In October 2003, Caremark Rx, Inc. was served with a putative
class action filed by John Lauriello in the Circuit Court of
Jefferson County, Alabama.
This lawsuit was filed on behalf of a purported class of persons
who were participants in the 1999 settlement of then pending
securities class action and derivative lawsuits against Caremark
Rx and others.
Also named as defendants are several insurance companies that
had provided coverage to Caremark Rx up to the time of the
settlement.
The lawsuit seeks, among other things, to recover approximately
$3.2 billion in compensatory damages plus unspecified punitive
damages, pre-judgment interest, costs and attorneys' fees from
the defendants for their alleged intentional, reckless and/or
negligent misrepresentation and suppression of material facts
relating to the amount of insurance coverage that was available
to pay any settlement or judgment arising out of the claims that
were resolved by the 1999 settlement.
Alternatively, the lawsuit seeks to re-open the judgment
approving the 1999 settlement. After the court overruled the
defendants' joint motion to dismiss in July 2004, the defendants
filed their answers, which, among other things, denied all of
the material allegations of the complaint. The parties then
filed pleadings setting out their respective positions as to how
this case should proceed.
In January 2005, the court signed an order on class
certification that, among other things, held that this case will
proceed as a class action and set out a schedule for challenging
the adequacy of John Lauriello to serve as class representative,
as well as the appointment of Mr. Lauriello's lawyers to act as
class counsel.
The defendants have filed papers with the Alabama Supreme Court
seeking immediate appellate review of the trial court's order.
The Alabama Supreme Court has consolidated the issues raised by
the parties to the appeal in "Lauriello" with those raised by
the parties to the appellate proceedings involving the McArthur
plaintiffs.
McArthur Litigation
In November 2003, a second putative class action was filed by
Frank McArthur in the Circuit Court of Jefferson County,
Alabama, arising out of the same 1999 settlement of then pending
securities class action and derivative lawsuits against Caremark
Rx and others.
This lawsuit was also filed on behalf of a purported class of
persons who were participants in the 1999 settlement, and named
as defendants Caremark Rx, several insurance companies that had
provided coverage to Caremark Rx up to the time of the
settlement, and a number of lawyers and law firms involved in
negotiating and securing the approval of the 1999 settlement.
The lawsuit seeks, among other things, to recover approximately
$3.2 billion in compensatory damages plus unspecified punitive
damages, pre-judgment interest, costs and attorneys' fees from
the defendants for their alleged intentional, reckless and/or
negligent misrepresentation and suppression of material facts
relating to the amount of insurance coverage that was available
to pay any settlement or judgment arising out of the claims that
were resolved by the 1999 settlement.
In December 2003, John Lauriello, the plaintiff in the lawsuit,
filed a motion to intervene and a motion to dismiss, abate or
stay this lawsuit on the grounds that it was a duplicative,
later-filed, class action complaint.
In January 2004, Caremark Rx and the other defendants filed
their own motion to dismiss, abate or stay the lawsuit as a
later-filed class action that is substantially similar to the
Lauriello lawsuit.
The defendants' motion to stay was granted by the court, and the
lawsuit was transferred to an administrative docket where it is
reviewed every 90 days.
In February 2005, the plaintiffs in the stayed McArthur case
filed motions in the Lauriello case seeking to intervene in that
litigation and asking for the right to challenge the adequacy of
John Lauriello as class representative and his lawyers as class
counsel. The court denied the McArthur plaintiffs' motion to
intervene.
The McArthur plaintiffs appealed the trial court's order to the
Alabama Supreme Court, and the Alabama Supreme Court
consolidated the issues raised in that appeal with the issues
appealed by the defendants in Lauriello.
In August 2006, the Alabama Supreme Court granted the
defendants' petition for writ of mandamus, ordered the trial
court to vacate its order on class certification and directed
the trial court to analyze the appropriateness of the alleged
claims for class treatment.
The Alabama Supreme Court also concluded that the trial court
exceeded its discretion in denying the McArthur plaintiffs'
motion to intervene, reversed that ruling and directed the trial
court on remand to grant the McArthur plaintiffs' motion.
In October 2006, the Alabama Supreme Court withdrew its August
2006 opinion and issued a substitute opinion that modified
certain portions of the earlier decision but did not change or
alter any of the relief granted.
The parties are awaiting the Alabama Supreme Court's issuance of
a certificate of judgment remanding the case back to the trial
court for further proceedings.
Caremark Rx, Inc. on the Net: http://www.caremark.com/.
CISCO SYSTEMS: Calif. $98M Securities Fraud Settlement Finalized
----------------------------------------------------------------
Cisco Systems and shareholders, who had filed a class action
against the company and certain current and former directors in
2001, finalized the settlement of the case, The San Jose Mercury
News reports.
Under the terms of the settlement, which U.S. District Judge
James Ware of the U.S. District Court for the Northern District
of California reviewed and approved, Cisco will pay $99.8
million to the plaintiffs.
According to the company, the amount, already in escrow and
expected to be administered to claimants over the coming months,
came not from Cisco but rather its liability insurers.
The recovery, less fees and expenses, will be distributed to
purchasers of Cisco common stock between Nov. 10, 1999 and Feb.
6, 2001 who timely filed valid proofs of claim under procedures
to be implemented by court (Class Action Reporter, Aug. 22,
2006).
Beginning on April 20, 2001, a number of purported shareholder
class actions were filed in the U.S. District Court for the
Northern District of California against the company and certain
of its officers and directors.
Plaintiffs allege that defendants have made false and misleading
statements, purport to assert claims for violations of the
federal securities laws, and seek unspecified compensatory
damages and other relief.
The suit is "In re: Cisco Systems, Inc., Securities Litigation,
et al., Case No. 5:01-cv-20418-JW," filed in the U.S. District
Court for the Northern District of California under Judge James
Ware with referral to Judge Patricia V. Trumbull.
Representing the plaintiffs is Spencer A. Burkholz, lead lawyer
for Lerach, Coughlin, Stoia, Gellar, Rudman and Robbins, LLP,
Phone: (619) 231-1058, Fax: (619) 231-7423, Web site:
http://www.lerachlaw.com.
Representing the defendants are, Alice L. Jensen of Fenwick &
West, LLP, 275 Battery Street, San Francisco, CA 94111, Phone:
(415) 875-2300, Fax: (415) 281-1350, E-mail:
ajensen@fenwick.com.
COUNTRYWIDE INSURANCE: Attorney Seeks Substitution of Ill. Judge
----------------------------------------------------------------
Brad Lakin of The Lakin Law Firm is again seeking for the
substitution of Judge Don Weber of the Madison County Circuit
Court in the firm's class action against Countrywide Insurance
Services, Inc., Steve Korris of The St. Clair Record reports.
Previously, Mr. Lakin and his firm accused the judge of bias,
but eventually failed to prove it in March. Now he is asking
the court for another chance to prove their accusations against
the judge.
Thus, on Nov. 20, 2006, Mr. Lakin petitioned for substitution in
the suit, claiming Judge Weber showed bias in statements to the
League of Women Voters.
The petition was filed a day before Judge Weber would have held
a hearing on a motion by Countrywide Insurance for summary
judgment. The hearing did not happen though.
In his petition, Mr. Lakin wrote that Judge Weber's statements
did not attack issues instead it attacked the Lakin Law Firm.
According to Mr. Lakin, Judge Weber points directly to his
opposition to the Lakin Law Firm as a moment of victory and
pride. He adds that the judge characterizes the Lakin Law Firm
as epitomizing what is wrong with Madison County judiciary and
the target of his reforms.
The judge founded his campaign on the idea that he will fight to
reform the Madison County judiciary, and that fight is one he
has with the Lakin Law Firm, according to Mr. Lakin.
Mr. Lakin also wrote that Judge Weber told the League of Women
Voters, "I was the first judge in 30 years that told the Lakin
Law Firm, no. Because I had the integrity to tell them no, but
more importantly I had the courage to tell them no."
The petition also revived a claim that Judge Weber holds bias
because the firm represented someone who sued him in 1992. In
March, however, Chief Judge Edward Ferguson decided that the
1992 suit did not prove bias and declared Judge Weber a fair
judge.
Additionally, the new petition also claims that Judge Weber
allowed a witness to ignore a subpoena prior to a hearing on
summary judgment.
In spite of the apparent futility, Countrywide Insurance
attorney Douglas Stultz of Edwardsville opposed substitution,
calling Mr. Lakin's petition "the latest in a series of attempts
by plaintiff's counsel to put off Countrywide Insurance's
meritorious summary judgment motion so that it can be heard by a
new judge, less familiar with the history of this case."
The case involves Todd Morgan, a Madison County resident, who
claims he paid excessive courier fees when closing a home loan.
He seeks to represent borrowers in a class action.
Countrywide Insurance Services, Inc. on the Net
http://my.countrywide.com/.
FOOT LOCKER: ERISA Violation Complaints in N.Y. Court Dismissed
---------------------------------------------------------------
Foot Locker, Inc. is named defendant in a class action filed in
a federal court in New York alleging that the company's U.S.
pension plan violated the federal Employee Retirement Income
Security Act (ERISA), the company's quarterly report filed with
the Securities and Exchange Commission stated.
Specifically, the suit contends that the company's pension plan
violated the ERISA of 1974, including, without limitation, its
age discrimination provisions, as a result of the company's
conversion of its defined benefit pension plan to a defined
pension plan with a cash balance feature.
On Sept. 25, 2006, the class action was dismissed without
prejudice.
Foot Locker, Inc. on the Net: http://www.footlocker-inc.com/.
FRESH GRILL: Recalls Sandwiches Due to Undeclared Anchovies
-----------------------------------------------------------
Fresh Grill of Santa Ana, California recalled 2056 units of
Smoked Turkey & Jack Cheese because it may have contained
undeclared anchovies.
People who have an allergy or severe sensitivity to anchovies
run the risk of serious or life-threatening allergic reaction if
they consume these products.
Smoked Turkey & Jack Cheese is distributed in Southern
California at 7-Eleven convenience stores.
On Oct. 12 the wording "NATURAL FLAVORING, ANCHOVIES" was added
to the label information on the product.
No illnesses have been reported to date.
Consumers with questions may contact the company at 1-714-444-
2126.
INPHONIC INC: Suit Over Rebate Offers Consolidated in D.C. Court
----------------------------------------------------------------
The Judicial Panel on Multidistrict Litigation granted a motion
by Inphonic, Inc., to consolidate federal court actions filed
against it in relation to rebate offers for online purchases of
wireless telephones that it is sponsoring.
Thirteen related putative federal court class actions have been
filed against the company arising out of InPhonic-sponsored
rebate offers for online purchases of wireless telephones.
Eight of these lawsuits also name a third-party rebate processor
as a defendant.
This rebate processor began to process claims for InPhonic-
sponsored rebate offers in or about July 2005, and InPhonic's
agreement with the rebate processor expired in or about July
2006. One of these lawsuits also names the company's current
third-party rebate processor as a defendant.
Of the thirteen federal court actions, five are pending in the
District of Columbia, another five are pending in the District
of Arizona, and one each is pending in the federal courts
Newark, New Jersey, Chicago, and Los Angeles.
On Oct. 25, 2006 the company received a decision by the Judicial
Panel on Multidistrict Litigation granting our motion to
consolidate the federal court actions in the U.S. District Court
for the District of Columbia before the Honorable Ellen Segal
Huvelle.
The putative class action complaints allege, among other things,
violations of the consumer protection laws of various States and
(in certain lawsuits) the federal Racketeer Influenced and
Corrupt Organizations Act (RICO) (anti-racketeering) statute in
connection with our disclosure and implementation of the terms
and conditions of rebate offers.
The class action plaintiffs seek statutory penalties, treble
damages, attorneys' fees, and punitive damages under the
consumer protection statutes, and treble damages and attorneys'
fees under the RICO statute, as well as injunctions concerning
the content of our websites.
The suit is "In Re: Inphonic, Inc., Wireless Phone Rebate
Litigation - MDL-1792, Case No. 1:06-mc-00507-ESH," filed in
U.S. District Court for the District of Columbia under Judge
Ellen S. Huvelle.
Representing defendant Inphonic Inc. is Mitchell R. Berger
PATTON BOGGS LLP, 2550 M Street, N.W., Washington, DC 20037,
Phone: (202)457-5601, Fax: (202)457-6315, E-mail:
mberger@pattonboggs.com.
Representing defendant Continental Promotion Group, Inc. is
David C. Jacobson at Sonnenschein Nath & Rosenthal, LLP, 8000
Sears Tower, Chicago, IL 60606, Phone: (312) 876-8130.
Representing plaintiffs are:
(1) Steven N. Berk at Cuneo Gilbert & Laduca, LLP, 507 C
Street, NE, Washington, DC 20002, Phone: (202) 789-
3960, Fax: (202) 789-1813, E-mail:
stevenb@cuneolaw.com; and
(2) Khalid A. ElHassan at Eichen, Levinson & Crutchlow
L.L.P., 40 Ethel Road, Edison, NJ 08817, US, Phone:
(732) 777-0100, Fax: (732) 248-8273.
IONATRON INC: Still Faces Securities Fraud Litigation in Ariz.
--------------------------------------------------------------
Ionatron, Inc. remains a defendant in purported securities class
actions filed against the company and its founders in the U.S.
District Court for the District of Arizona.
In July 2006, George Wood and Raymond Veedon filed two purported
class action complaints. Each of the class actions allege,
among other things, violations of Section 10(b) and Rule 10b-5
of the U.S. Securities Exchange Act of 1934, claiming that the
company issued false and misleading statements concerning the
development of its counter improvised explosive device (IED)
product.
The cases will be consolidated, and a consolidated amended
complaint will be served.
Ionatron, Inc. on the Net: http://www.ionatron.com/.
IPSCO INC: Faces Suit in Ky. Over NS Group-PI Acquisition Deal
--------------------------------------------------------------
IPSCO, Inc. was named as defendants in a purported class action
filed in the Campbell Circuit Court of the Commonwealth of
Kentucky over a definitive agreement and plan of merger, dated
as of Sept. 10, 2006, among NS Group, Inc. and its directors,
the company, and PI Acquisition Co.
The deal provides for the merger of PI Acquisition, a wholly-
owned subsidiary of IPSCO, with and into NS Group, with NS Group
continuing as the surviving corporation, and the conversion of
each outstanding share of common stock of NS Group (other than
shares held by NS Group, IPSCO, PI Acquisition or any of their
direct or indirect wholly-owned subsidiaries and shares held by
shareholders who validly perfect their dissenters' rights under
Kentucky law) into the right to receive $66 in cash.
Filed on October 2006 in Campbell Circuit Court of the
Commonwealth of Kentucky, under Case # 06-CI-01422 #2, the
plaintiff, a purported shareholder of the NS Group, has alleged,
among other things, that the merger consideration to be paid to
the shareholders of NS Group in the merger is unfair and
inadequate, as a result of alleged breaches of fiduciary duty by
NS Group and its directors.
According to the complaint, NS Group's directors agreed to an
allegedly unfair and inadequate price and agreed to a
termination fee, which is alleged to serve as a substantial
deterrent to other prospective buyers, because of the directors'
interest in "quickly" signing the merger agreement in order to
obtain allegedly "improper" personal benefits from the
acceleration of various stock options and incentive plans and
the indemnification provision of the merger agreement and, in
the case of certain directors, salary continuation agreements.
The complaint further alleges that the NS Group defendants
breached an alleged duty of "full and fair disclosure" by
failing to disclose in a previously filed preliminary proxy
statement certain allegedly material information regarding the
negotiation of the merger agreement, including information
relating to NS Group and its directors' consideration of
alternative transactions, additional information regarding the
criteria that Raymond James utilized in certain aspects of its
financial analysis, as well as the percentage of its fee that is
contingent on consummation of the merger.
It also alleges that IPSCO aided and abetted NS Group and its
directors in the breaches of their duties to NS Group's
shareholders.
Thus, the complaint seeks, among other relief, compensatory
and/or rescissory damages to the class, and an award of
attorneys' fees and expenses to the plaintiff, according to the
company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the period ended Sept. 30, 2006.
IPSCO, Inc. on the Net: http://www.ipsco.com/.
JAKKS PACIFIC: Continues Bid to Dismiss N.Y. Securities Suit
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to rule on a motion to dismiss the consolidated
securities class action filed against Jakks Pacific, Inc.,
according to the company's form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30.
The suits filed against the company are:
-- Garcia v. Jakks Pacific, Inc. et al., Civil Action No.
04-8807 (filed on Nov. 5, 2004);
-- Jonco Investors, LLC v. Jakks Pacific, Inc. et al.,
Civil Action No. 04-9021 (filed on Nov. 16, 2004);
-- Kahn v. Jakks Pacific, Inc. et al., Civil Action No.
04-8910 (filed on Nov. 10, 2004);
-- Quantum Equities L.L.C. v. Jakks Pacific, Inc. et al.,
Civil Action No. 04-8877 (filed on Nov. 9, 2004); and
-- Irvine v. Jakks Pacific, Inc. et al., Civil Action
No. 04-9078 (filed on Nov. 16, 2004).
The complaints allege that defendants issued positive statements
concerning increasing sales of its World Wrestling Entertainment
(WWE) licensed products which were false and misleading because
the WWE licenses had allegedly been obtained through a pattern
of commercial bribery, its relationship with the WWE was being
negatively impacted by the WWE's contentions and there was an
increased risk that the WWE would either seek modification or
nullification of the licensing agreements with the company.
Plaintiffs also allege that the company misleadingly failed to
disclose the alleged fact that the WWE licenses were obtained
through an unlawful bribery scheme.
The plaintiffs are purchasers of the company's common stock
between Oct. 26, 1999 and late as Oct. 19, 2004.
The suits seek compensatory and other damages in an undisclosed
amount. It alleges violations of Section 10(b) of the U.S.
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by each of the defendants -- the company and Messrs.
Friedman, Berman and Bennett -- and violations of Section 20(a)
of the Exchange Act by Messrs. Friedman, Berman and Bennett.
On Jan. 25, 2005, the court consolidated the class actions as
"In re JAKKS Pacific, Inc. Shareholders Class Action Litigation,
Case No. 04-8807."
On May 11, 2005, the court appointed co-lead counsels and
provided until July 11, 2005 for an amended complaint to be
filed and a briefing schedule thereafter with respect to a
motion to dismiss.
The motion to dismiss has been fully briefed and argument, which
as expected to be completed by September 2006, was set Nov. 30.
The suit is filed under Judge Kenneth M. Karas.
Representing the plaintiffs are:
(1) Eric James Belfi of Labaton Rudoff & Sucharow, LLP, 100
Park Avenue, 12th Floor, New York, NY 10017, Phone:
(212) 907-0790, Fax: (212) 883-7579, E-mail:
ebelfi@labaton.com; and
(2) Ken H. Chang of Wolf, Popper, L.L.P., 845 Third Avenue,
New York, NY 10022, Phone: (212) 451-9667, Fax: (212)
486-2093, E-mail: kchang@wolfpopper.com.
Representing the defendants are:
(i) Michael H. Gruenglas of Skadden, Arps, Slate,Meagher &
Flom, LLP (4 Times Square, Room 44), Four Times Square,
40th Floor, New York, NY 10036, Phone: (212) 735-3567,
Fax: (917)-777-3567, E-mail: mgruengl@skadden.com; and
(ii) Jonathan Honig of Feder, Kaszovitz, Isaacson, Weber,
Skala, Bass & Rhine, LLP, 750 Lexington Avenue, New
York, NY 10022, Phone: (212) 986-1116, Fax: 212-888-
5968, E-mail: jhonig@fkiwsb.com.
JOHNSON & JOHNSON: NJ Employment Bias Suit Certification Mulled
---------------------------------------------------------------
Judge William Walls of the U.S. District Court for the District
of New Jersey may deny class-action status to a lawsuit filed by
black and Hispanic employees against Johnson & Johnson in 2001
claiming racial discrimination in pay and promotions, Bloomberg
News reports.
According to the Judge, plaintiffs' lawyer Cyrus Mehri, may not
have offered enough evidence to justify allowing the salaried
workers to proceed as a group.
Judge Walls had asked Mr. Mehri whether he could prove that as
many as 8,600 workers had common, not individual, grievances.
In 2001, a lawsuit was filed against Johnson & Johnson claiming
the company discriminated against black and Hispanic managers
and other salaried employees.
Named plaintiffs in the suit are:
-- Nilda Gutierrez,
-- Linda Morgan, a former engineer at Johnson & Johnson's
Ethicon subsidiary,
-- Wayne Brown, a former security supervisor, and
-- Krista Marshall, a former production supervisor.
Plaintiffs claim pay discrimination against Hispanic employees,
and both pay and promotion bias against blacks.
Workers are asking for back pay, future pay, punitive damages
and changes in the company's policies.
They are seeking as much as 5 percent of their salary for each
class member per year, starting in 1997.
In September 2004, plaintiffs moved to certify a class of all
African American and Hispanic salaried employees of the company
and its affiliates in the U.S., who were employed at any time
from November 1997 to the present (Class Action Reporter, Dec.
4, 2006). The company filed its response to plaintiffs' class
certification motion in May 2005.
Johnson & Johnson denied that it discriminated and will ask the
judge to reject the bid, which would give as many as 8,600
current and former employees more leverage to negotiate a
settlement.
If the judge certifies the case as class action, it could
proceed to trial or settle. A settlement could cost J&J, the
world's biggest maker of medical devices, tens of millions of
dollars.
The company expects the court to decide that motion in 2007,
according to company's Nov. 8, 2006 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the period ended
Oct. 1, 2006.
The suit is "Guitierrez, et al v. Johnson & Johnson, Case No.
2:01-cv-05302-WHW-RJH," filed in the U.S. District Court for the
District of New Jersey under Judge William H. Walls, with
referral to Judge Ronald J. Hedges.
Representing defendants are Francis X. Dee of McElroy, Deutsch,
Mulvaney, & Carpenter, LLP, Three Gateway Center, 100 Mulberry
Street, Newark, NJ 07102-4079, Phone: (973) 622-7711, E-mail:
fdee@mdmc-law.com; and Theodore V. Wells, Jr., Paul, Weiss,
Rifkind, Wharton, & Garrison, LLP, 1285 Avenue of the Americas,
New York, NY 10019-6064, Phone: (212) 373-3000, E-mail:
twells@paulweiss.com.
Representing plaintiffs are:
(1) Scott A. George of Sheller, Ludwig & Sheller, P.C., One
Greentree Centre, Route 73 & Greentree Road, Suite 201,
Marlton, NJ 08053, Phone: (856) 988-5590, E-mail:
sgeorge@sheller.com;
(2) Nicholas H. Politan of Nicholas Politan Law Offices, 5
Becker Farm Road, Fourth Floor, Roseland, NJ 07068,
Phone: (973) 994-4740, Fax: (973) 994-4755; and
(3) Bennet Dann Zurofsky of Reitman Parsonnet, 744 Broad
Street, Suite 1807, Newark, NJ 07102, Phone: (973) 642-
0885, E-mail: bzurofsky@reitpar.com.
KING PHARMACEUTICALS: $1.5M Legal Fee Sought in Merger Suit
-----------------------------------------------------------
The plaintiff in a class action against King Pharmaceuticals
Inc. in Tennessee state court over the company's then-
anticipated merger with Mylan Laboratories is asking the court
to rule on attorneys' fee eligibility.
The suit was filed in August 2004. Defendants filed a motion to
dismiss the case on November 30, 2004. On March 14, 2006,
plaintiff dismissed the case.
On June 12, 2006, Plaintiff filed a motion requesting an award
of attorneys' fees and expenses in the amount of $1.5 million.
On Oct. 18, 2006, plaintiff modified their motion asking the
court to determine whether plaintiffs are entitled to an award
of reasonable attorneys' fees and expenses.
This motion is pending, according to the company's Nov. 9 form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Sept. 30.
King Pharmaceuticals, Inc., on the Net http://www.kingpharm.com.
LINDEN LAB: Recalls Cantaloupes Because of Possible Health Risk
---------------------------------------------------------------
Rio Vista, Ltd., of Rio Rico, Arizona, is voluntarily recalling
its Llano and Nature's Partner brand cantaloupes, because they
have the potential to be contaminated with Salmonella, although
no illnesses have been reported to date.
Salmonella is an organism, which can cause serious and sometimes
fatal infections in young children, frail or elderly people and
others with weakened immune systems.
Healthy persons infected with Salmonella often experience fever,
diarrhea (which may be bloody), nausea, vomiting and abdominal
pain. In rare circumstances, infection with Salmonella can
result in the organism getting into the bloodstream and
producing more serious illnesses.
If individuals believe they may have experienced symptoms of
illness after consuming this cantaloupe, FDA recommends that
they seek medical advice.
Approximately, 62,640 cartons of cantaloupes were distributed in
the U.S. and a small quantity went to Canada from October 31 to
November 6, 2006. The cantaloupes were distributed for sale in
bulk in cardboard cartons containing from 6 to 15 cantaloupes to
a carton. The cantaloupes are straw-colored on the exterior,
with orange flesh.
The recall was the result of a routine sampling program by the
U.S. Food and Drug Administration ("FDA") on October 31 and
November 10, 2006. The laboratory analysis revealed that a
portion of the products contained Salmonella. Rio Vista began
withdrawing the products on November 6, 2006. In cooperation
with FDA, Rio Vista is taking immediate steps to identify the
source of contamination and eliminate it.
Consumers who have purchased Llano or Nature's Partner
cantaloupes are urged to return them to the place of purchase
for a full refund.
Consumers who have purchased cantaloupes may contact the place
of purchase to ask if the store sold the recalled brands.
Consumers with questions may contact Rio Vista at 1-520-375-
7428.
MEADE INSTRUMENTS: Faces Securities Fraud Litigation in Calif.
--------------------------------------------------------------
Meade Instruments Corp. is facing a putative federal securities
class action challenging the conduct by the company and certain
of its current and former board members and officers in
connection with various stock option grants.
The suit is "Grecian v. Meade Instruments Corp., et al., SA CV
06-908 AG (JTLx)," filed in U.S. District Court for the Central
District of California on Sept. 27, 2006.
The complaint asserts claims for violations of Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act in connection with
the Company's option granting practices.
Plaintiffs' counsel has advised the company that they intend to
file an amended complaint that will also allege violations of
Section 14(a) of the U.S. Securities Exchange Act.
The suit is "Bill Grecian et al v. Meade Instruments Corp et
al., Case No. 8:06-cv-00908-AG-JTL," filed in the U.S. District
Court for the Central District of California under Judge Andrew
J. Guilford with referral to Judge Jennifer T. Lum.
Representing the plaintiffs are:
(1) Timothy J. Burke of Stull Stull and Brody, 10940
Wilshire Boulevard, Suite 2300, Los Angeles, CA 90024,
Phone: 310-209-2468, E-mail: service@ssbla.com; and
(2) Donald J. Enright of Finkelstein Thompson and Loughran,
1050 Thirtieth Street Northwest, The Duvall Foundry,
Washington, DC 20007, Phone: 202-337-8000.
MICROSOFT CORP: Faces Wash. Consumer Suit Over Xbox 360 Problems
----------------------------------------------------------------
Microsoft Corp. was named as a defendant in a purported consumer
fraud class action in the U.S. District Court for the Western
District of Washington over its Xbox 360 gaming consoles.
The suit, filed on Nov. 27, 2006 by California resident Kevin
Ray, alleges that the company and its affiliates are violating
the Washington Consumer Protection Act.
Specifically, it accuses the company of deceptive trade by
ruining its own Xboxes with an update and charging customers
$140 apiece to fix it.
The suit was brought on behalf of all persons who experienced
hardware problems with their gaming consoles following
installations of the company's Fall 2006 update for the Xbox
360.
Mr. Ray claims that on Oct. 31, 2006, the company instructed all
Xbox 360 owners to download a free fall 2006 update, which
immediately ruined the machines of more than 15,000 customers
who followed the instructions.
He explains that Xbox 360 users are referring to the phenomenon
by the slang term "bricking," which essentially means that the
device is now useful only as a brick.
Microsoft Corp.'s Xbox programming director Larry Hyrb,
according to Mr. Ray, admitted the problem on his personal Web
site on Nov. 1, claiming falsely that it affected only "a very
small number of people."
However, Mr. Ray's suit contends that the number of affected
gaming consoles is "anything but small" and that Microsoft Corp.
charges customers $140 to ship the machines back to the company
for repairs.
Thus, the suit seeks damages of more than $5 million for the
class, for breach of contract, negligence and violation of
consumer laws
A copy of complaint is available free of charge at:
http://researcharchives.com/t/s?1645
The suit is "Ray v. Microsoft Corporation, Case No. 2:06-cv-
01720-MJP," filed in the U.S. District Court for the Western
District of Washington under Judge Marsha J. Pechman.
Representing the plaintiffs are:
(1) Juli Farris Desper and Mark Adam Griffin of Keller
Rohrback, 1201 3rd Ave., Ste. 3200, Seattle, WA 98101-
3052, Phone: 206-623-1900, Fax: 206-623-1900 and (206)
623-3384, E-mail: jdesper@KellerRohrback.com, Web site:
mgriffin@kellerrohrback.com; and
(2) Amy C. Williams-Derry of Earthjustice Legal Defense
Fund, 705 2nd Ave., Ste. 203, Seattle, WA 98104-1711,
Phone: 206-343-7340, E-mail:
awilliams-derry@earthjustice.org.
MICROSOFT CORP: Gates to Testify Only Once in IA Antitrust Suit
---------------------------------------------------------------
Polk County District Court Judge Scott Rosenberg has ruled that
Microsoft Corp. chairman Bill Gates and chief executive Steve
Ballmer must testify only once in an antitrust class action
filed against the company in Iowa.
Earlier, plaintiffs' attorney Roxanne Conlin won a ruling that
would force Mr. Gates and Mr. Ballmer to travel to Des Moines
for direct questioning. That meant the two would have to appear
to the court again when they will have to testify for the
company. However, recently, Judge Rosenberg ruled that all
questioning would occur at one time only.
The ruling means Mr. Gates and Mr. Ballmer will come later next
year, reports say. Mr. Gates had been expected to come in
January and Mr. Ballmer in February. Both men are expected to
be on the witness stand for about four days.
A jury of 12 began hearing the case on Dec. 1. The trial seeks
to determine whether Microsoft violated Iowa's competition laws
by monopolizing and unreasonably restraining trade in the
markets for Intel-compatible:
-- personal computer operating system software; and
-- applications software, including word processing,
spreadsheet and office-suite software.
The plaintiffs claim that Microsoft harmed class members by:
-- illegally overcharging for its software;
-- denying class members free choice in software products
and the benefits of software innovation; and
-- making computers increasingly susceptible to security
breaches.
Plaintiffs allege that Microsoft engaged in anticompetitive
conduct in new and specialized purported software markets for
server operating systems.
Class members in the case include all those who bought Microsoft
Windows, MS-DOS, Word, Excel, or Office software, or a personal
computer on which this software was already installed in Iowa
from May 18, 1994, through June 30, 2006.
Microsoft attorney Rich Wallis said during the Dec. 1 hearing
that many of the allegations Ms. Conlin is making are 15 to 20
years old and the company resolved many of the issues years ago.
Iowa Software Suit on the Net: http://www.iowasoftwaresuit.com.
The counsels representing the plaintiffs are:
(1) Roxanne Conlin & Associates, P.C., 319 Seventh Street,
Suite 600, Des Moines, Iowa 50309, Phone: (515) 283-
1111, Fax: (515) 282-0477, E-mail:
rconlin@roxanneconlinlaw.com, Web site:
http://www.roxanneconlinlaw.com;and
(2) Zelle, Hofmann, Voelbel, Mason & Gette LLP, 500
Washington Avenue South, Suite 4000, Minneapolis, MN
55415, Phone: 800-899-5291, Fax: 612-336-9100, Email:
mfeinber@zelle.com, Website: http://www.zelle.com.
Representing Microsoft is David B. Tulchin of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004-2498,
Phone: +1-212-558-3749, Fax: +1-212-558-3588, E-mail:
tulchind@sullcrom.com.
MIRANT CORP: Court Grants "Comer" Plaintiffs' Dismissal Motion
--------------------------------------------------------------
The U.S. District Court for the Southern District of Mississippi
granted a request by plaintiffs in "Comer, et al. v. Murphy Oil,
U.S.A., et al." to dismiss claims against Mirant Corp.
On April 18, 2006, the plaintiffs, who are seeking damages from
a variety of parties that allegedly contribute to global
warming, named the company as one of the defendants in the case.
Other defendants in the suit include various oil companies, coal
companies, chemical companies and other owners of electric
generating facilities.
The plaintiffs seek certification of a class that consists of
residents and property owners in Mississippi who suffered loss
and harm as a result of Hurricane Katrina.
The complaint alleges that the defendants' activities in
producing and combusting coal and other carbon-based fuels
resulted in the emission of greenhouse gasses that caused
significant climate change and increased the frequency and
intensity of hurricanes, including Hurricane Katrina.
Plaintiffs assert that the defendants knowingly engaged in
activities that cause greenhouse warming and have taken no
action to utilize currently available mitigation techniques.
The suit asserts claims based upon nuisance, trespass,
negligence, and fraudulent misrepresentation and concealment.
It thus seeks damages for loss of property, personal injury, and
damage to property, as well as punitive damages.
On June 16, 2006, the plaintiffs filed a motion to dismiss with
prejudice the claims asserted against Mirant Corp. in light of
the discharge of claims against Mirant Corp. that resulted from
The Omnibus Incentive Plan becoming effective on January 3,
2006. On Aug. 7, 2006, the district court granted that motion.
The Plan provides for the granting of nonqualified stock
options, incentive stock options, stock appreciation rights,
restricted stock, restricted stock units, performance shares,
performance units, cash-based awards, other stock-based awards,
covered employee annual incentive awards and non-employee
director awards.
The suit, Case No. 1:05-cv-00436-LTS-RHW, is originally, "Comer,
et al. v. Nationwide Mutual Insurance Co." It is filed in the
U.S. District Court for the Southern District of Mississippi
under Judge L. T. Senter, Jr. with referral to Judge Robert H.
Walker.
Representing the plaintiffs are:
(1) F. Gerald Maples and Meredith A. Mayberry of F. Gerald
Maples, PA, 902 Julia Street, New Orleans, LA 70113,
Phone: 504/569-8732, E-mail: federal@geraldmaples.com
and mmayberry@geraldmaples.com;
(2) Randall Allan Smith and Stephen M. Wiles - PHV, Smith &
Fawer, 201 St. Charles Ave., Suite 3702, New Orleans,
LA 70170, Phone: 504/525-2200, Fax: 504/525-2205, E-
mail: rasmith3@bellsouth.net and
smwiles@smithfawer.com; and
(3) Carlos A. Zelaya - PHV, II, Maples & Kirwan, LLC, 902
Julia Street, New Orleans, LA 70113, Phone: 504-569-
8732, Fax: 504/525-6932.
NATIONAL PHYSICIANS: Plaintiff in N.Y. TCPA Suit Drops Complaint
----------------------------------------------------------------
Plaintiff in the suit pending in U.S. District Court for the
Eastern District of New York against National Physicians
Datasource, LLC, a subsidiary of WebMD Health Corp. have
discontinued the case.
The suit is alleging that the company violated the Telephone
Consumer Protection Act by sending unsolicited fax
advertisements.
Filed by Ari Weitzner M.D., P.C., a Brooklyn ophthalmologist,
the suit claims that faxes allegedly sent by National Physicians
Datasource, which publishes The Little Blue Book, were sent in
violation of the TCPA. The lawsuit seeks damages in excess of
$5,000,000.
The court had temporarily stayed the lawsuit pending resolution
of relevant issues in a related case. On Feb. 21, 2006, the
court lifted the stay. The parties had been conducting
discovery until the named plaintiff in this action discontinued
this suit on Nov. 8, 2006.
However, the Company has been advised that a suit containing the
same allegations may be brought by a different named plaintiff
represented by the same counsel. WHC expects to oppose
certification as a class action when discovery on any such
matter is completed.
The suit is "Weitzner v. National Physicians Datasource LLC,
Case No. 1:05-cv-02531-CBA-SMG," filed in the U.S. District
Court for the Eastern District of New York, under Judge Carol B.
Amon.
Representing the plaintiff is Todd C. Bank, Law Office of Todd
C. Bank, 119-40 Union Pike, Fourth Floor, Kew Gardens, NY 11415,
Phone: 718-520-7125, E-mail: TBLaw101@aol.com.
Representing the company is Richard A. Johnston of Wilmer Cutler
Pickering Hale and Dorr, LLP, 399 Park Avenue, New York, NY
10022, Phone: 212 230-8800, Fax: 212 230-8888.
OCWEN FINANCIAL: Court Mulls MDL-1604's Federal Preemption Issue
----------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit has yet to
rule on an appeal of the federal preemption issue in a multi-
district litigation against Ocwen Financial Corp. (OCN) and its
wholly owned subsidiary, Ocwen Federal Bank FSB (Bank).
On April 13, 2004, the U.S. Judicial Panel on Multi-district
Litigation granted our petition to transfer and consolidate a
number of lawsuits against the Bank, OCN and various third
parties arising out of the servicing of plaintiffs' mortgage
loans into a single case to proceed in the U.S. District Court
for the Northern District of Illinois under the caption, "In re
Ocwen Federal Bank FSB Mortgage Servicing Litigation, MDL Docket
No. 1604," (MDL Proceeding).
Currently, there are approximately 58 lawsuits consolidated in
the MDL Proceeding involving 74 mortgage loans that the company
currently or previously serviced. Additional similar lawsuits
have been brought in other courts, some of which may be
transferred to and consolidated in the MDL Proceeding.
The borrowers in many of these lawsuits seek class-action
certification. Others have brought individual actions. No
class has been certified in the MDL Proceeding or any related
lawsuits.
On May 19, 2006, plaintiffs filed an amended consolidated class
action complaint containing various claims under federal
statutes, including the Real Estate Settlement Procedures Act
and Fair Debt Collection Practices Act, federal bankruptcy laws,
state deceptive trade practices statutes and common law.
The claims are generally based on allegations of improper loan
servicing practices, including:
-- charging borrowers allegedly improper or unnecessary
fees such as breach letter fees, hazard insurance
premiums, foreclosure-related fees, late fees, property
inspection fees and bankruptcy-related fees;
-- untimely posting and misapplication of borrower
payments; and
-- improperly treating borrowers as in default on their
loans.
While the amended consolidated complaint does not set forth any
specific amounts of claimed damages, plaintiffs are not
precluded from requesting leave of court to amend further the
consolidated complaint or otherwise seeking damages should the
matter proceed to trial.
On April 25, 2005, the court entered an opinion and order
granting the Bank partial summary judgment finding that, as a
matter of law, the mortgage loan contracts signed by plaintiffs
authorize the imposition of breach letter fees and other
legitimate default or foreclosure related expenses.
The court explained that it's ruling was in favor of defendants
to the specific and limited extent that plaintiffs' claims
challenge the propriety of the above-mentioned fees.
On May 16, 2006, after having denied defendants' motions to
dismiss various portions of the consolidated complaint on
federal preemption and procedural grounds, as well as the
company's motion to dismiss OCN from the case for lack of
personal jurisdiction, the court granted the company's motion to
take an interlocutory appeal on the federal preemption issue.
On July 29, 2006, the U.S. Court of Appeals for the Seventh
Circuit granted the company's request to hear its appeal on the
federal preemption issue. The appeal on that issue is presently
pending.
The suit is "In re Ocwen Federal Bank FSB Mortgage Servicing
Litigation, MDL-1604, Master Docket No. 04cv2714," on appeal
from the U.S. District Court for the Northern District of
Illinois under Judge Charles R. Norgle, Sr.
ODYSSEY HEALTHCARE: Court Dismissed Planned Appeal on Stock Suit
----------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit dismissed the
appeal on the dismissal of a securities fraud class action
against Odyssey HealthCare, Inc., after plaintiffs decided not
to pursue with the planned motion.
The company and its former chief executive officers and its
current chief financial officer are defendants in a lawsuit
originally filed on Apr. 21, 2004 in the U.S. District Court for
the Northern District of Texas.
The plaintiff is Francis Layher, for himself and on behalf of
all persons who purchased or otherwise acquired the company's
publicly traded securities between May 5, 2003 and Feb. 23,
2004.
The complaint alleges violations of Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder.
Plaintiff seeks an order determining that the action may proceed
as a class action, awarding compensatory damages in favor of the
plaintiff and the other class members in an unspecified amount,
and reasonable costs and expenses incurred in the action,
including counsel fees and expert fees.
Six similar lawsuits were also filed in May and September of
2004 in the same court by plaintiffs Kenneth L. Friedman, Trudy
J. Nomm, Eva S. Caldarola, Michael Schaufuss, Duane Liffrig and
G.A. Allsmiller on behalf of the same plaintiff class, making
substantially similar allegations and seeking substantially
similar damages.
All of these lawsuits were transferred to a single judge and
consolidated into a single action. Lead plaintiffs and lead
counsel have been appointed and the consolidated complaint was
filed on Dec. 20, 2004, which, among other things, extended the
putative class period to Oct. 18, 2004.
The company filed a motion to dismiss the lawsuit, which was
granted on Sept. 30, 2005.
The court also granted plaintiffs the right to amend their
complaint. Plaintiffs filed an amended complaint on Oct. 31,
2005.
On March 20, 2006, the court entered an order dismissing with
prejudice all of the claims against the company and the
individual defendants.
On April 17, 2006, plaintiffs filed a notice of appeal on the
decision of the court to dismiss the complaint to the U.S. Court
of Appeals for the Fifth Circuit.
In September 2006, the plaintiffs decided not to proceed with
the appeal. On Sept. 27, 2006, the U.S. Court of Appeals for
the Fifth Circuit dismissed the appeal.
The suit is "In Re: Odyssey Healthcare, Inc. Securities
Litigation, Case No. 04-CV-00844," filed in the U.S. District
Court for the Northern District of Texas under Judge David C.
Godbey.
Representing the plaintiffs are:
(1) William S. Lerach of Lerach Coughlin Stoia Geller
Rudman & Robbins - San Diego, 655 W Broadway, Suite
1900, San Diego, CA 92101, Phone: 619/231-1058, Fax:
619/231-7423;
(2) Joe Kendall of Provost Umphrey Law Firm - Dallas, 3232
McKinney Ave., Suite 700, Dallas, TX 75204, Phone:
214/744-3000, Fax: 214/744-3015, E-mail:
Provost_Dallas@yahoo.com; and
(3) Thomas E. Bilek of Hoeffner & Bilek, 1000 Louisiana
St., Suite 1302, Houston, TX 77002, Phone: 713/227-
7720, Fax: 713/227-9404, E-mail: tbilek@hb-legal.com.
Representing the defendants is Karen L. Hirschman of Vinson &
Elkins - Dallas, 3700 Trammell Crow Center, 2001 Ross Ave.,
Dallas, TX 75201-2975, Phone: 214/220-7795, Fax: 214/220-7716,
E-mail: khirschman@velaw.com.
OPEN SOLUTIONS: Stockholder Sues Over Carlyle-Providence Deal
-------------------------------------------------------------
Open Solutions, Inc., faces a purported stockholder class-action
complaint, challenging the company's proposed acquisition by The
Carlyle Group and Providence Equity Partners, according to its
Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the period ended Sept. 30, 2006.
The complaint was filed on Oct. 16, 2006 by a company
stockholder against Open Solutions, its directors, The Carlyle
Group and Providence Equity Partners.
It alleges that the company and each of its directors breached
their fiduciary duties to the stockholders in connection with
the proposed acquisition, and that The Carlyle Group and
Providence Equity Partners aided and abetted the individual
defendants' breach.
Thus, the complaint seeks, among other things, injunctive relief
to enjoin the consummation of the acquisition, that defendants
account to plaintiffs and other members of the class for all
damages caused to them and all profits and other special
benefits allegedly received as a result of the alleged breach of
fiduciary duties, and reasonable attorney's fees and expenses.
Open Solutions, Inc. on the Net: http://www.opensolutions.com/.
PROPERTY CASUALTY: Seeks Reversal for Credit-Based Scoring Cases
----------------------------------------------------------------
The Property Casualty Insurers Association of America (PCI) is
urging the U.S. Supreme Court to overturn a federal court ruling
that insurers acted in "willful disregard of the law" by not
informing consumers when their credit reports resulted in them
receiving other than the best possible rates, BestWire reports.
The PCI made the request in a friend-of-the-court brief for two
cases that are before the high court:
-- "Geico v. Edo," and
-- "Safeco v. Burr."
Both cases, which were accepted by the Supreme Court for review
on Sept. 26, 2006, involve rulings by the U.S. Court of Appeals
for Ninth Circuit on the Fair Credit Reporting Act (FCRA), which
requires insurers to notify policyholders if their rates have
been increased because of information on their credit reports.
At issue is whether insurance firms should notify policyholder
applicants, if they are quoted a higher premium based on adverse
information from their credit reports. Insurers and other
businesses have argued that they don't have to, however, the
Ninth Circuit disagreed.
The Geico and Safeco cases ask whether the Ninth Circuit erred
in ruling that insurers can be found liable for a "willful"
violation of FCRA after a finding that they only had a "reckless
disregard" for the FCRA requirements.
Insurance firms pointed out that other federal circuit courts
have held that consumers alleging a FCRA violation have to show
that a business knew that a failure to notify them violated the
law.
However, in a class action last year involving the insurance
firms, the Ninth Circuit said consumers don't need to show the
companies knew their conduct violated FCRA. In that ruling, the
appeals court explained, consumers need only to show that
companies had "reckless disregard" of the law's requirements, a
less-stringent standard.
In its court brief, PCI argues that the Ninth Circuit erred by
expanding the adverse-action notice beyond what was contained in
the FCRA law.
According PCI's Supreme Court filing, "These potential results
are far removed from Congress's intent in enacting FCRA, which
specifically authorizes the use of credit reports in the
underwriting of insurance. At the same time, the effect of the
9th Circuit's notice requirements is to seriously disrupt the
ability of insurers to do business and, in the final analysis,
to harm the very consumers that FCRA was enacted to protect."
PCI also says the Ninth Circuit's decision, especially the
court's so-called "overreaching interpretation" of FCRA, also
"potentially exposes the insurance industry to statutory damages
alone (not including punitive damages) that could threaten the
solvency of many insurers and negatively affect the continued
availability and affordability of personal lines insurance."
RELIANT ENERGY: Settles Calif. Natural Gas Lawsuits for $35M
------------------------------------------------------------
Reliant Energy, Inc. reached a $35 million tentative settlement
of the 12 natural gas class actions pending against it in
California state court.
The company is party to 39 lawsuits, a number of which are class
actions, including an action brought by the Nevada Attorney
General on behalf of gas consumers in Nevada, in state and
federal courts in California, Colorado, Kansas, Missouri, Nevada
and Tennessee relating to alleged conduct to increase natural
gas prices in violation of antitrust and similar laws.
The lawsuits seek treble damages, restitution and/or expenses.
They also name the company's subsidiary, Reliant Energy
Services, Inc. (Reliant Energy Services), and a number of
unaffiliated energy companies as parties.
In October 2006, the company reached a tentative settlement of
the 12 class action natural gas cases pending in state court in
California.
The settlement would require the company to pay $35 million,
which we expensed during the third quarter of 2006, and would
not include similar cases filed by individual plaintiffs, which
we continue to vigorously defend. It will be subject to a
fairness hearing and court approval, which we expect to occur in
the first quarter of 2007.
One of the natural gas cases is a case filed by the Los Angeles
Department of Water and Power (LADWP) in the California Superior
Court in 2004.
The lawsuit alleges that the company conspired to manipulate
natural gas prices in breach of its supply contract with LADWP
and in violation of California's antitrust laws and the
California False Claims Act.
It seeks treble damages for the alleged overcharges (estimated
to be $218 million) for gas purchased by LADWP, interest and
legal costs.
The lawsuit also seeks:
-- a determination that an extension of the contract with
LADWP was invalid in that the required municipal
approvals for the extension were allegedly not obtained;
and
-- a return of all money paid by LADWP during that period
(estimated to be $681 million).
Another of the natural gas cases is a lawsuit filed in October
2006 by the Missouri Public Service Commission in the Circuit
Court of Jackson County, Missouri at Kansas City relating to
alleged conduct to increase natural gas prices in violation of
antitrust and similar laws from January 2000 through October
2002.
The lawsuit, which has not been served on the company, seeks
treble damages and expenses and also names its subsidiary,
Reliant Energy Services, as a party. The case has been removed
to the Western District of Missouri.
Reliant Energy, Inc. on the Net: http://www.reliant.com/.
SECURITIES FIRMS: Appeals Court Sides with IPO Suit Defendants
--------------------------------------------------------------
The U.S. Court of Appeals in New York ruled on Dec. 5 that a
lower court judge erred in certifying as class action a suit
filed against twelve securities firms over alleged manipulation
of initial public stock offerings in the 1990s, reports say.
The case is In Re: Initial Public Offering Securities
Litigation, 05-3349, before U.S. Court of Appeals for the Second
Circuit, in New York.
Defendants in the lawsuits included 55 underwriters, 310 issuers
and hundreds of individual officers of the issuing companies.
Judge Shira Scheindlin of the U.S. District Court for the
Southern District of New York had consolidated the suits into
310 cases. She certified six of these as class actions.
The recent ruling concerns defendants:
-- Bear Stearns Cos. (BSC.N),
-- Credit Suisse Group Inc. (CSGN.VX),
-- Deutsche Bank AG (DBKGn.DE),
-- Goldman Sachs Group Inc. (GS.N),
-- JPMorgan Chase & Co. (JPM.N:),
-- Lehman Brothers Holdings Inc. (LEH.N:),
-- Merrill Lynch & Co. (MER.N),
-- Morgan Stanley (MS.N),
-- Prudential Securities Inc.,
-- RBC Dain Rauscher Inc.,
-- Robertson Stephens Inc. and
-- S.G. Cowen & Co.
Judges Jon Newman, Sonia Sotomayor and Peter Hall authored the
court ruling.
In February 2005, Judge Scheindlin approved a settlement between
the plaintiffs and the IPO issuer and individual officer
defendants in 298 of the 310 consolidated cases. The agreement
provided plaintiffs with a guaranteed recovery of $1 billion to
be offset by any amount recovered from underwriters.
ST. LAWRENCE: Seeks Leave to Appeal Beauport Suit in Canada
-----------------------------------------------------------
St. Lawrence Cement Group will apply to the Supreme Court of
Canada for leave to appeal the judgment rendered on October 31,
2006 by the Quebec Court of Appeal regarding the Beauport Class
Action Suit.
The Court of Appeal held that St. Lawrence Cement was liable for
damages in the context of a class action brought in relation to
the company's operations at its Beauport plant from 1991 to
1997.
The Company believes that the judgment of the Court of Appeal is
flawed in several respects and that it raises legal issues of
great importance in relation to class actions and industrial
operations in Quebec and throughout Canada. In the Company's
view, the Supreme Court's guidance is required on these issues.
Whilst the Company believes that it has reasonable grounds to
appeal to the Supreme Court of Canada.
In November, St. Lawrence acknowledged with reservations the
decision rendered by the Quebec Court of Appeal, which partially
upheld its challenge of the May 2003 Superior Court judgment in
the class action filed by residents and property owners of
Beauport, Quebec (Class Action Reporter, Nov. 7, 2006).
Plaintiffs alleged having suffered undue inconveniences and loss
of property value from the operations of the St. Lawrence Cement
plant in this municipality from 1991 to 1997.
The company was pleased that the Court of Appeal has granted its
appeal in part and that it has reversed the legal foundation for
the judgment of the Superior Court, namely that there would
exist under Quebec civil law a no fault regime of liability for
the inconveniences caused to neighbors.
However, since the company was using state-of-the art pollution
control equipment and consistently complied with regulatory
emission standards, the company deplores the ruling of the Court
of Appeal that, under the particular circumstances of the case,
one should infer from the reported dust fallouts, that the
company's equipment was probably not maintained in optimal
operating conditions at all times.
According to the judgment, this would constitute a fault, which
would make the company responsible for the inconveniences of its
neighbors.
Regarding compensation to the plaintiffs, the Court of Appeal
has reduced by at least 20% the sums awarded by the Superior
Court as it did not find any fault by the company in respect to
noise complaints, and that the company could not be liable for
some of the dust fallouts.
St. Lawrence Cement wishes to be prudent and consistent with
what has been previously communicated in its 2005 annual report.
The Company will therefore record a pre-tax provision of $13.8
million in its fourth quarter.
St. Lawrence Cement Group is a leading producer and supplier of
products and services for the construction industry, namely
cement, concrete, aggregates and construction. The company
operates in Canada and on the eastern seaboard of the United
States, and employs a total of 3,200 people.
For more details, contact Nicole Jarry of St. Lawrence Cement
Group, Inc., Director, Corporate Communications, Phone: 514-340-
1555, ext. 206.
STANLEY SECURITY: Recalls Faulty 5K Series Door Handle Locks
------------------------------------------------------------
Stanley Security Solutions Inc., of Indianapolis, Indiana, in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 25,000 units of keyed 5K Series door handle
locks.
The company said the locks can fail and the door cannot be
unlocked from the inside, posing an entrapment hazard. This
failure could lead to the inability to vacate a location in an
emergency.
Stanley Security Solutions has received three reports of the
locks failing. No entrapments have been reported.
The recalled units include the 5K Light/Medium Duty Lever Series
door handle locks. These sets have a brass or stainless steel
finish with the word "BEST" embossed below the key whole on the
elongated handle.
Picture of the recalled door handle lock:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07511.jpg
These recalled door handle locks were manufactured in Taiwan and
are being sold through locksmiths, hardware, and building supply
stores nationwide from November 2005 through September 2006 for
between $65 and $115.
Consumers are advised to contact Stanley Security Solutions to
schedule an appointment to have the locks replaced free of
charge.
For additional information, contact Stanley Security Solutions
product support department at (800) 479-9087 between 8 a.m. and
6 p.m. CT Monday through Friday or visit the firm's Web site:
http://www.stanleysecurity.com
SUN-TIMES MEDIA: Ill. Court Mulls Dismissal of Securities Suit
--------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
has yet to rule on a motion to dismiss the third amended
complaint in the consolidated securities class action against
Sun-Times Media Group, Inc.
In February and April 2004, the Teachers' Retirement System of
Louisiana, Kenneth Mozingo, and Washington Area Carpenters
Pension and Retirement Fund initiated purported class actions
against:
-- the company;
-- certain of the company's former executive officers and
former directors of the company;
-- The Ravelston Corp. Ltd.;
-- certain affiliated entities; and
-- KPMG LLP, the company's independent registered public
accounting firm.
The suit asserts claims under federal and Illinois securities
laws and claims of breach of fiduciary duty and aiding and
abetting in breaches of fiduciary duty.
On July 9, 2004, the court consolidated the three actions for
pretrial purposes. The consolidated action is "In re Hollinger
Inc. Securities Litigation, No. 04C-0834," (Class Action
Reporter, Nov. 2, 2006).
Plaintiffs filed an amended consolidated class action complaint
on Aug. 2, 2004, and a second consolidated amended class action
complaint on Nov. 19, 2004.
The named plaintiffs in the second consolidated amended class
action complaint are Teachers' Retirement System of Louisiana,
Washington Area Carpenters Pension and Retirement Fund, and E.
Dean Carlson.
They are purporting to sue on behalf of an alleged class
consisting of themselves and all other purchasers of securities
of the company between and including Aug. 13, 1999 and Dec. 11,
2002.
The second consolidated amended class action complaint asserts
claims under federal and Illinois securities laws and claims of
breach of fiduciary duty and aiding and abetting in breaches of
fiduciary duty in connection with misleading disclosures and
omissions regarding: certain "non-competition" payments, the
payment of allegedly excessive management fees, allegedly
inflated circulation figures at the Chicago Sun-Times, and other
alleged misconduct.
On Sept. 13, 2006, plaintiffs filed a third consolidated amended
class action complaint. The new complaint adds an additional
named plaintiff, Cardinal Mid-Cap Value Equity Partners, L.P.,
but is otherwise identical to the prior complaint and asserts
the same claims.
On Oct. 27, 2006, the company moved to dismiss the third
consolidated amended class action complaint. The company's
motion is pending.
The suit is "In Re: Hollinger Intl Securities Litigation, Case
No. 1:04-cv-00834," filed in the U.S. District Court for the
Northern District of Illinois under Judge David H. Coar.
Representing the plaintiffs are:
(1) Cauley Geller Bowman Coates & Rudman, LLP (New York),
200 Broadhollow, Suite 406, Melville, NY, 11747, Phone:
631.367.7100, Fax: 631.367.1173;
(2) Charles J. Piven, World Trade Center-Baltimore,401 East
Pratt Suite 2525, Baltimore, MD, 21202, Phone:
410.332.0030, E-mail: pivenlaw@erols.com;
(3) Federman & Sherwood, 120 North Robinson, Suite 2720,
Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail:
wfederman@aol.com;
(4) Grant & Eisenhofer, P.A., 1201 N. Market Street, Suite
2100, Wilmington, DE, 19801, Phone: 302.622.7000, Fax:
302.622.7100, E-mail: info@gelaw.com;
(5) Much Shelist Freed Denenberg Ament & Rubenstein, PC,
Chicago, IL, Phone: 800-470-6824, Fax: 312-621-1750;
and
(6) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com.
VERTEX PHARMACEUTICALS: Calif. Suit Over Aurora Merger Dismissed
----------------------------------------------------------------
The Superior Court of the State of California, County of San
Diego dismissed with prejudice the class action "Marguerite
Sacchetti v. James C. Blair, et al."
The suit named as defendants all of the directors of Aurora
Biosciences Corp., who approved the merger of Aurora and Vertex
Pharmaceuticals, Inc., which closed in July 2001.
The plaintiffs, who filed the suit in Dec. 17, 2003, claim that
Aurora's directors breached their fiduciary duty to Aurora by,
among other things, negligently conducting a due diligence
examination of Vertex by failing to discover alleged problems
with VX-745, a Vertex drug candidate that was the subject of a
development program which was terminated by Vertex in September
2001.
This case was dismissed with prejudice in the first quarter of
2006 in connection to a settlement, which resulted in payment to
the plaintiffs by the defendants' directors' and officers'
liability insurer of under $200,000, according to the company's
Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the period ended Sept. 30, 2006.
Vertex Pharmaceuticals, Inc. on the Net: http://www.vrtx.com/.
WAL-MART STORES: Class Status Granted to Ky. Employees' Lawsuit
---------------------------------------------------------------
Burg Simpson's Ohio office has obtained class certification on
behalf of all hourly employees of Wal-Mart Stores (including
Wal-Mart Stores, Supercenters and Sam's Clubs) in the State of
Kentucky.
Members of the class are current and former hourly employees
who, contrary to company policy and by law, failed to receive
earned rest and meal breaks anytime during the period beginning
Aug. 30, 1996 to Nov. 21, 2006.
Under Wal-Mart's Break and Meal Period policy, it is states that
"Associates (hourly employees) will be provided meal breaks."
Hourly employees earn breaks based on the duration of their
shift.
For shifts that are 3 to 6 hours, employees are told they are
entitled to one paid fifteen-minute break. For shifts that are
over 6 hours, associates are entitled to two paid fifteen minute
breaks and are entitled to at least a thirty minute meal break,
which is unpaid and can be extended up to one hour with the
supervisor's approval.
Wal-Mart's own President, Thomas Coughlin, stated at a 2001
company-wide management meeting, and in a memo circulated
thereafter to all stores, that the break and meal period
policies are "non-negotiable" and "the LAW."
The expert report of Dr. L. Scott Baggett has been submitted by
the Plaintiffs to establish that Wal-Mart's own time records can
be used to provide evidence of when associates were denied
complete rest and meal breaks.
Dr. Baggett conducted an analysis of Wal-Mart's time records and
concluded that 92.3% of Wal-Mart associates in Kentucky were
systematically denied or shorted breaks and meal periods in any
given two week pay period. His conclusions are supported by Wal-
Mart's own 2000 audit (Shipley Audit), which used similar
methodology, and came to almost the same conclusions.
Judge Marc I. Rosen of Boyd County Circuit Court in Kentucky
granted class-action status to a lawsuit filed by employees of
Wal-Mart Stores, Inc., alleging non-payment of overtime (Class
Action Reporter, Nov. 27, 2006).
A former Wal-Mart employee initially filed the suit in 2001.
Plaintiffs claim they weren't properly compensated for working
overtime and were not paid for missed break time from Aug. 30,
1996 to the present.
An estimated 145,000 people worked at the retail chain's
Kentucky stores during the time. Potential claims for some
worker could be up to $2,000, according to Covington attorney
Barbara Bonar, who represents the plaintiffs, including Michael
Nagy, who originally filed the suit. Another former employee
who is suing Wal-Mart worked at Sam's Club.
The Kentucky ruling certifying the class action comes just one
month after a Pennsylvania jury returned a $78.5 million verdict
in favor of a class of current or former employees of Wal-Mart
Stores, Inc., in the state of Pennsylvania who were forced to
miss rest breaks and worked off the clock without compensation.
Wal-Mart has publicly stated that it plans to appeal the jury
verdict.
For more information, contact Melanie Bailey at Burg Simpson's
Cincinnati office, Phone: 800-713-9340, E-mail:
mbailey@burgsimpson.com, Web site: http://www.burgsimpson.com.
New Securities Fraud Cases
BODISEN BIOTECH: Brower Piven Announces Securities Suit Filing
--------------------------------------------------------------
The law firm of Brower Piven announced that a securities class
action was commenced on behalf of shareholders who purchased or
otherwise acquired the common stock of Bodisen Biotech, Inc.
between Aug. 26, 2005 and Nov. 10, 2006.
The case is pending in the U.S. District Court for the Southern
District of New York against defendant Bodisen and one or more
of its officers and/or directors.
The action charges that defendants violated federal securities
laws by issuing a series of materially false and misleading
statements to the market throughout the Class Period, which
statements had the effect of artificially inflating the market
price of the company's securities. No class has yet been
certified in the above action.
Interested parties may move no later than Jan. 16, 2007 for
appointment as lead plaintiff of the class.
For more details, contact Brower Piven, The World Trade Center-
Baltimore, 401 East Pratt Street, Suite 2525, Baltimore,
Maryland 21202, Phone: 410/986-0036, E-mail:
hoffman@browerpiven.com.
HANSEN NATURAL: Schatz Nobel Announces Securities Suit Filing
-------------------------------------------------------------
The law firm of Schatz Nobel Izard, P.C., which has significant
experience representing investors in prosecuting claims of
securities fraud, announces that a lawsuit seeking class action
status has been filed in the United States District Court for
the Central District of California on behalf of all persons who
purchased or otherwise acquired the common stock of Hansen
Natural Corp. between Nov. 12, 2001 and Nov. 9, 2006.
The complaint alleges that Hansen and certain of its officers
and directors violated federal securities laws by issuing
positive press releases, statements and financial reports which
were materially false and misleading because they failed to
disclose the following adverse facts:
-- that defendants engaged in the backdating of stock
option grants for certain key executives;
-- that Hansen lacked adequate internal controls and was
therefore unable to ascertain its true financial
condition; and
-- that as a result of the foregoing, defendants engaged
in improper accounting practices.
On Oct. 31, 2006, Hansen filed a Form 8-K indicating that it
received a letter from the SEC requesting that the Company
voluntarily produce certain documents and information relating
to the its filing of SEC Forms 4 and the company's stock option
grant practices from January 1, 1996 to the present.
On Nov. 9, 2006, Hansen announced a delay in the filing of its
quarterly report, "in light of the investigation discussed
above, the Company is not in a position to complete the
preparation of the financial statements and certain related
information required to be included in Form 10-Q for the quarter
ended Sept. 30, 2006. The company intends to file Form 10-Q as
soon as practicable after the completion of the investigation by
the Special Committee."
Interested parties may move no later than Jan. 29, 2007 for
appointment as lead plaintiff of the class.
For more details, contact Schatz Nobel Izard, Phone: (800) 797-
5499, E-mail: sn06106@aol.com, Web site: http://www.snlaw.net.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Mendoza, Editors.
Copyright 2006. All rights reserved. ISSN 1525-2272.
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