/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/061214.mbx C L A S S A C T I O N R E P O R T E R Thursday, December 14, 2006, Vol. 8, No. 248 Headlines AARON BROTHERS: Still Faces Wage Law Violations Suit in Calif. ADVANCED MEDICAL: Recalls Lenses Over Bacterial Contamination AMERICA'S CAR: Faces Litigation in Okla. Over Interest Rates ANDRX CORP: Still Faces Suit Over cGMP Status Disclosure in Fla. ATLAS AMERICA: Settles N.Y. Suit Over Royalty Payments for $300T BEAZER HOMES: Fixes 999 Homes that Raised Claims Against Trinity CATALINA MARKETING: Fla. Securities Fraud Suit to Cost $8.5M CONCORD EFS: Tenn. Stock Suit Plaintiffs Allowed to Amend Claims CONCORD EFS: Additional Briefing Ordered in Calif. ATM Fee Suit CONSOLIDATED MANUFACTURING: Settles WARN Violations Suit in Kan. DYNEGY MIDWEST: Discovery Continues in Tex. Savings Plan Lawsuit DYNERGY INC: W.Va. Antitrust Lawsuit Enters Discovery Stage ENTERPRISE GP: Named in TEPPCO Unitholder's Suit Over Jonah Deal FLOWSERVE CORPORATION: Oct. 2007 Trial Set for Tex. Stock Suit LOUISIANA: Court Denies Motion to Dismiss Suit Over Water Damage MET-RX USA: Still Faces Calif. Suit Over Pro-hormone Supplements MICHAELS STORES: Mass. Laborers' Annuity Fund Files Stock Suit MICHAELS STORES: Settles Calif. Suit by Hourly Retail Employees MICHAELS STORES: No Hearing Date Yet for Calif. Managers' Case MIRAB USA: Recalls Beef Jerky for Likely Presence of Animal Drug MORTGAGEIT HOLDINGS: "Pressner" Attorneys Fee Capped at $250T MURPHY OIL: Property Buyout in Oil Spill Suit Deal to Cost $55M NATIONAL SECURITY: Ala. Court Okays Racial Bias Suit Settlement OMNICARE INC: Ken. Stock Suit Plaintiffs Name New Defendants OMNIVISION TECHNOLOGIES: Settles Calif. Securities Fraud Suit PEKIN INSURANCE: Ill. Circuit Court Junks Suit by Chiropractors PHLX: Motion to Dismiss Suit Over Wall Street Firms Deal Denied PUBLIC STORAGE: Continues to Face Unit Renters Suit in Calif. PUBLIC STORAGE: Still Faces Calif. Suit Over Storage Insurance QC HOLDINGS: Accused of Breaching Ariz. Deferred Presentment Law REXALL SUNDOWN: Conference Set for Lawsuit Over Nutrition Bars SUTTER HEALTH: Court Grants Final OK to Uninsured Patients' Suit TELEPHONE COS: Supreme Court Hears Appeal on Antitrust Lawsuit TIVO INC: Reaches Tentative Settlement in Calif. Consumer Suit TYCO INT'L: Appeal on N.H. ERISA Lawsuit Class Status Denied TYCO INT'L: Court Affirms Dismissal of "Ezra" Amended Complaint TYCO INT'L: Court Denies Appeal on MDL-1335 Class Certification TYCO INT'L: N.H. Court Mulls Class Certification for "Newby" TYCO INT'L: Ruling in Ill. Suit Over Mallinckrodt Deal Appealed VISTEON CORP: $7.6M Mich. ERISA Suit Settlement Gets Initial OK VITAMIN WORLD: Dismissal of Hormone Supplement Suit Appealed WARRIOR ENERGY: Faces Amended Securities Fraud Suit in Texas New Securities Fraud Cases ATRICURE INC: Lerach Coughlin Files Stock Fraud Suit in N.Y. ATRICURE INC: Schiffrin & Barroway Files Securities Suit in N.Y. TOP TANKERS: Howard G. Smith Announces Securities Suit Filing ********* AARON BROTHERS: Still Faces Wage Law Violations Suit in Calif. -------------------------------------------------------------- An amended complaint was filed in a class action filed against Aaron Brothers, Inc., in the Superior Court of California, County of San Diego. On Nov. 16, 2005, Geoffrey Morris, a former company employee in San Diego, California, commenced a proposed class action proceeding on behalf of himself, and current and former company employees in California from Nov. 16, 2001 to the present. The suit is alleging that the Aaron Brothers, a subsidiary of Michaels Stores, Inc., failed to pay overtime wages, reimburse the plaintiff for necessary expenses (including the cost of gas used in driving his car for business purposes), and provide adequate meal and rest breaks or compensation in lieu thereof. The suit alleges that this conduct was in breach of California's unfair competition law. With the exception of the meal and rest breaks claim, the claims are asserted on behalf of the putative class. Mr. Morris filed an amended complaint on June 8, 2006 and now seeks to represent a class of current and former assistant managers only, according to Michaels Stores, Inc.'s Dec. 7, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 28, 2006. Plaintiff seeks, injunctive relief, damages for unpaid overtime pay, meal break penalties, waiting time penalties, interest, and attorneys' fees and costs. Michaels Stores, Inc. on the Net: http://www.michaels.com. ADVANCED MEDICAL: Recalls Lenses Over Bacterial Contamination ------------------------------------------------------------- Advanced Medical Optics, Inc., a global ophthalmic surgical and eye care products company, is voluntarily recalling nationwide certain lots of its 12-oz. COMPLETE MoisturePLUS multipurpose contact lens care solution and Active Packs. Three lots sold in Japan were found to have bacterial contamination, which compromised sterility. Because of this production-line issue at its manufacturing plant in China, AMO is recalling 18 lots distributed in the U.S. that were manufactured on the same production lines during the same production period. Non-sterility of a contact lens solution may have serious health consequences, including eye infection and microbial keratitis. AMO has not received any reports of adverse health events associated with the recalled product lots in the U.S. Lot numbers are located on the top of the product box and on the side of the product bottle. The recalled product lots include: Package Lot # Product Description Bottled Lot #(s) in Kit ZB03087 COMPLETE MoisturePLUS ZB03085, ZB02845 Active Pack ZB03724 COMPLETE MoisturePLUS ZB03713, ZB03506 Active Pack ZB03734 COMPLETE MoisturePLUS ZB03713, ZB03506 Active Pack ZB03735 COMPLETE MoisturePLUS ZB03713, ZB03510 Active Pack ZB03736 COMPLETE MoisturePLUS ZB03713, ZB03510 Active Pack ZB03739 COMPLETE MoisturePLUS ZB03737, ZB03510 Active Pack ZB02710 COMPLETE MoisturePLUS ZB02709 12oz (360 mL) ZB02714 COMPLETE MoisturePLUS ZB02713 12oz (360 mL) ZB02718 COMPLETE MoisturePLUS ZB02717 12oz (360 mL) ZB02722 COMPLETE MoisturePLUS ZB02721 12oz (360 mL) ZB02746 COMPLTE MoisturePLUS ZB02745 2 X 12 oz ZB02750 COMPLETE MoisturePLUS ZB02749 2 X 12 oz ZB02771 COMPLETE MoisturePLUS ZB02770 2 X 12 oz ZB02792 COMPLETE MoisturePLUS ZB02791 2 X 12 oz ZB02796 COMPLETE MoisturePLUS ZB02795 2 X 12 oz ZB02800 COMPLETE MoisturePLUS ZB02799 2 X 12 oz ZB02804 COMPLETE MoisturePLUS ZB02803 2 X 12 oz ZB03535 COMPLETE MoisturePLUS ZB03534 2 X 12 oz Contact lens users who experience symptoms of an eye infection such as redness, pain, tearing, increased light sensitivity, blurry vision, discharge or swelling, should remove their lenses and consult their eye care provider immediately. Consumers who believe they are in possession of the recalled product should discontinue use immediately and call 1-877-884- 7779 Monday through Friday between 8 a.m. and 5 p.m. Eastern Time or visit http://www.amo-inc.comfor instructions. The company is currently contacting retailers, customers and distributors regarding return and replacement instructions. Reply cards and mailing slips are being provided for return of product. Retailers may also call 1-877-884-7779 Monday through Friday from 8 a.m. through 5 p.m. Eastern Time for more information. Product from the recalled lots was distributed nationwide to food, drug and mass merchandiser accounts. The recall does not include 4-oz. and 16-oz. bottles, or professional samples and packs provided to eye care practitioners. The U.S. recall includes approximately 183,000 units, representing less than one percent of COMPLETE MoisturePLUS contact lens products distributed in the U.S. on an annual basis. Based on its investigation to date, AMO believes the likelihood of users experiencing an adverse reaction is low. However, the company is taking a conservative approach and is conducting the recall in the best interest of its customers. The company commenced the investigation after testing of products sold in Japan determined that three production lots were found to be non-sterile and contaminated with bacteria. As a result, AMO conducted a limited product withdrawal in Japan and notified appropriate global regulatory authorities, including the U.S. Food and Drug Administration. The subsequent investigation traced the manufacturing issue to two of the four production lines in its China facility that manufactured product during a specific period. This product was shipped to the U.S., Japan and Asia Pacific and is now the subject of this recall. AMO has temporarily ceased all manufacturing at the China facility and scheduled a special cleaning and sanitation of the manufacturing areas and all applicable equipment. Products manufactured in AMO's facility in Spain, which produces the vast majority of AMO's contact lens solution products distributed in the U.S. and Europe, are not affected by this recall. "AMO is committed to taking all necessary measures to remedy this production-line issue and protect the trust physicians and patients place in our products," said Randy Meier, executive vice president, operations; president, global eye care and chief financial officer. "COMPLETE MoisturePLUS(TM) products have been used safely by millions of contact lens wearers since their introduction in 2003 and are supported by our 50-year heritage of meeting high safety and efficacy standards." AMERICA'S CAR: Faces Litigation in Okla. Over Interest Rates ------------------------------------------------------------ Discovery is ongoing in a purported class action filed in Oklahoma against America's Car Mart, Inc., according to the company's Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 31, 2006. In October 2006, the company was named as a defendant in a putative class action complaint served in the District Court of Pottawatomie County, State of Oklahoma. A motion for class certification is pending. The complaint asserts that the company charged usurious interest rates to retail customers in the State of Oklahoma for the period June 11, 2004 and forward. The company has answered the complaint and discovery is ongoing. ANDRX CORP: Still Faces Suit Over cGMP Status Disclosure in Fla. ---------------------------------------------------------------- Andrx Corp. and it's chief executive officer remain defendants in a securities class action filed in the U.S. District Court for the Southern District of Florida on behalf of persons who purchased the company's common stock on March 9, 2005 through Sept. 5, 2005. Jerry Lowry filed the class action complaint on Oct. 11, 2005 (Case No. 05-61640). The complaint seeks damages under the U.S. Securities Exchange Act of 1934, as amended, and alleges that during the class period, it failed to properly disclose the status of its compliance with current Good Manufacturing Practices (cGMP) established by the U.S. Food and Drug Administration. The complaint also alleges that the plaintiffs suffered damages as a result of its disclosure on Sept. 6, 2005 that FDA placed the company in Official Action Indicated status and a subsequent decline in the trading price of its common stock from $17.94 on Sept. 5, 2005 to a closing price of $14.89 on Sept. 6, 2005. The company reported no material development in the case at its Nov. 7 form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30. The suit is "Jerry Lowry, et al. v. Andrx Corp., et al., Case No. 05-CV-61640," filed in the U.S. District Court for the Southern District of Florida under Judge William P. Dimitrouleas. The plaintiff firms in the litigation are: (1) Dyer & Shuman, LLP, 801 East 17th Avenue, Denver, CO, 80218-1417, Phone: 303.861.3003, Fax: 800.711.6483, E- mail: info@dyershuman.com; (2) Federman & Sherwood, 120 North Robinson, Suite 2720, Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail: wfederman@aol.com; (3) Law Offices of Bernard M. Gross, 1515 Locust Street, 2nd Floor, Philadelphia, PA, 19102, Phone: 215-561- 3600, Fax: 215-561-3000, E-mail: bmgross@bernardmgross.com; and (4) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com. ATLAS AMERICA: Settles N.Y. Suit Over Royalty Payments for $300T ---------------------------------------------------------------- Atlas America Inc. tentatively settled in October a class action filed in February 2000 in New York pertaining to the payment of royalty revenues to landowners. Under the terms of the settlement, the company has agreed to pay $300,000, upgrade certain gathering systems and cap certain transportation expenses chargeable to the landowners. Resource Energy, Inc., a subsidiary of Atlas America, is named defendant in a proposed class action originally filed in February 2000 in the New York Supreme Court, Chautauqua County, by individuals, putatively on their own behalf and on behalf of similarly situated individuals, who leased property to the company. The complaint alleges that the company is not paying landowners the proper amount of royalty revenues from the natural gas produced from the wells on leased property. The complaint seeks damages in an unspecified amount for the alleged difference between the amount of royalties actually paid and the amount of royalties that allegedly should have been paid. Plaintiffs were certified as a class in December 2003. BEAZER HOMES: Fixes 999 Homes that Raised Claims Against Trinity ---------------------------------------------------------------- Beazer Homes USA, Inc. had completed remediation of 999 homes under a settlement of a suit over defects at homes constructed by its subsidiary Trinity Homes LLC. Beazer Homes and certain of its subsidiaries have been and continue to be named as defendants in various construction defect claims, complaints and other legal actions that include claims related to moisture intrusion and mold. We have experienced a significant number of such claims in the company's Midwest region and particularly with respect to homes built by Trinity Homes, a subsidiary which was acquired in the Crossmann Communities, Inc. acquisition in 2002. As of Sept. 30, 2006, there were nine pending lawsuits related to such complaints received by Trinity. All nine suits are by individual homeowners, and the cost to resolve these matters is not expected to be material, either individually or in the aggregate. Additionally, a class action was filed in the State of Indiana in August 2003 against Trinity Homes LLC. The parties in the class action reached a settlement agreement, which was approved by the Court on Oct. 20, 2004. The settlement class includes, with certain exclusions, the current owners of all Trinity homes that have brick veneer, where the closing of Trinity's initial sale of the home took place between June 1, 1998 and Oct. 31, 2002. The settlement agreement establishes an agreed protocol and process for assessment and remediation of any external water intrusion issues at the homes which includes, among other things, that the homes will be repaired at Trinity's expense. The settlement agreement also provides for payment of plaintiffs' attorneys' fees and for Trinity to pay an agreed amount for engineering inspection costs for each home for which a claim is filed under the settlement. Under the settlement, subject to Trinity's timely performance of the specified assessments and remediation activities for homeowners who file claims, each homeowner releases Trinity, Beazer Homes Investments, LLC and other affiliated companies, including Beazer Homes, from the claims asserted in the class action, claims arising out of external water intrusion, claims of improper brick installation, including property damage claims, loss or diminution of property value claims, and most personal injury claims, among others. No appeals of the Court's Order approving the settlement were received by the Court within the timeframe established by the Court. the company sent out the claims notices on Dec. 17, 2004, and the Class Members had until Feb. 15, 2005 to file claims. Of the 2,161 total Class Members, a total of 1,311 valid claims were filed, of which 613 complaints had been received prior to the company's receipt of the claim notices. Class Members who did not file a claim by Feb. 15, 2005 are no longer able to file a class action claim under the settlement or pursue an individual claim against Trinity. As of Sept. 30, 2006, the company had completed remediation of 999 homes related to 1,782 total Trinity claims. Beazer Homes' warranty reserves at Sept. 30, 2006 and Sept. 30, 2005 include accruals for the company's estimated costs to assess and remediate all homes for which Trinity had received complaints related to moisture intrusion and mold, including a provision for legal fees. Warranty reserves at Sept. 30, 2006 and 2005 also include accruals for class action claims received, pursuant to the settlement discussed above, from Class Members who had not previously contacted Trinity with complaints. The cost to assess and remediate a home depends on the extent of moisture damage, if any, that the home has incurred. Homes for which the company receive complaints are classified into one of three categories: homes with no moisture damage, homes with isolated moisture damage, or homes with extensive moisture damage. CATALINA MARKETING: Fla. Securities Fraud Suit to Cost $8.5M ------------------------------------------------------------ Catalina Marketing Corp. recorded a liability of $8.5 million representing the amount of a settlement in the memorandum of understanding to settle a consolidated shareholder class action pending against it the U.S. District Court for the Middle District of Florida. In October 2006, the company entered into a memorandum of understanding to settle the pending and consolidated shareholder class action. The settlement, which is on terms that do not adversely affect the company, involved no admission of liability by the company or any of the current and former directors and former officers named in the lawsuit. In the quarter ended Sept. 30, 2006, the company recorded a liability of $8.5 million representing the amount of the settlement in the memorandum of understanding and a corresponding receivable representing settlement proceeds payable substantially by the company's insurers. The settlement is subject to various conditions including court approvals and other customary conditions. Case Background Numerous complaints purporting to be class actions were filed against the company in the U.S. District Court for the Middle District of Florida, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended and Rule 10b-5 thereunder (Class Action Reporter, May 30, 2006). The actions were originally brought on behalf of those who purchased the company's common stock between Jan. 17, 2002 and Aug. 25, 2003, inclusive. The complaints contain various allegations, including that, during the alleged class period, the defendants issued false and misleading statements concerning the company's business and operations with the result of artificially inflating the company's share price and maintained inadequate internal controls. It seeks unspecified compensatory damages and other relief. In October 2003, the complaints were consolidated in the U.S. District Court for the Middle District of Florida as, "In re Catalina Marketing Corp. Securities Litigation, Case No. 8:03- CV-1582-T-27TBM." Named as co-lead plaintiffs in December 2003 are: -- Virginia P. Anderson, and -- the Alaska Electric Pension Fund On Jun. 21, 2004, they served their consolidated amended class action complaint on behalf of those who purchased the company's stock between Aug. 14, 1999 and Aug. 25, 2003, inclusive. The company and other defendants subsequently moved to dismiss the consolidated amended class action complaint which motion was denied by the court on March 31, 2005. Plaintiffs filed a motion for class certification in May 2005, which was subsequently granted, by the court on Feb. 16, 2006. On May 2006, the U.S. District Court for the Middle District of Florida, granted class-action status to the consolidated securities class action against Catalina Marketing Corp., certain of its present and former officers and directors and Catalina Health Resource. The suit is "In re Catalina Marketing Corp. Securities Litigation, Case No. 8:03-CV-1582-T-27TBM." CONCORD EFS: Tenn. Stock Suit Plaintiffs Allowed to Amend Claims ---------------------------------------------------------------- The Shelby County Circuit Court for the state of Tennessee granted a motion by plaintiffs in a securities fraud suit filed against Concord EFS Inc. to file a third amended complaint. On or about April 3 and 4, 2003, two purported class action complaints were filed on behalf of the public holders of Concord EFS's common stock, excluding shareholders related to or affiliated with the individual defendants. The defendants in those actions were certain current and former officers and directors of Concord. The complaints generally alleged breaches of the defendants' duty of loyalty and due care in connection with the defendants' alleged attempt to sell Concord without maximizing the value to shareholders in order to advance the defendants' alleged individual interests in obtaining indemnification agreements related to the securities litigation discussed above and other derivative litigation. The complaints sought class certification, injunctive relief directing the defendants' conduct in connection with an alleged sale or auction of Concord, reasonable attorneys' fees, experts' fees and other costs and relief the Court deems just and proper. On or about April 2, 2003, an additional purported class action complaint was filed by Barton K. O'Brien. The defendants were Concord and certain of its current and former officers and directors. This complaint contained allegations regarding the individual defendants' alleged insider trading and alleged violations of securities and other laws and asserted that this alleged misconduct reduced the consideration offered to Concord shareholders in the proposed merger between Concord and a subsidiary of the company. The complaint sought class certification, attorneys' fees, experts' fees, costs and other relief the Court deems just and proper. Moreover, the complaint also sought an order enjoining consummation of the merger, rescinding the merger if it is consummated and setting it aside or awarding rescissory damages to members of the putative class, and directing the defendants to account to the putative class members for unspecified damages. Consolidated Lawsuit These complaints were consolidated in a second amended consolidated complaint filed Sept. 19, 2003 into one action, "In Re: Concord EFS, Inc. Shareholders Litigation," in the Shelby County Circuit for the State of Tennessee. On Oct. 15, 2003, the plaintiffs the Concord EFS, Inc. Shareholders Litigation moved for leave to file a third amended consolidated complaint similar to the previous complaints but also alleging that the proxy statement disclosures relating to the antitrust regulatory approval process were inadequate. A motion to dismiss was filed on June 22, 2004 alleging that the claims should be denied and are moot since the merger has occurred. On Sept. 12, 2006, the Court granted the plaintiff's motion to file a third amended complaint. CONCORD EFS: Additional Briefing Ordered in Calif. ATM Fee Suit --------------------------------------------------------------- The Northern District of California requested additional briefing in the ATM Fee Antitrust Litigation filed against Concord EFS, Inc. On July 2, 2004, Pamela Brennan, Terry Crayton, and Darla Martinez filed a class action complaint on behalf of themselves and all others similarly situated in the U.S. District Court for the Northern District of California against the company, its subsidiary Concord EFS, Inc., and various financial institutions. Plaintiffs claim the defendants violated antitrust laws by conspiring to artificially inflate foreign ATM fees that were ultimately charged to ATM cardholders. They seek a declaratory judgment, injunctive relief, compensatory damages, attorneys' fees, costs and such other relief as the nature of the case may require or as may seem just and proper to the court. Five similar suits were filed and served in July, August and October 2004, two in the Central District of Los Angeles, California; two in the Southern District of New York, and one in the Western District of Seattle, Washington. The plaintiffs sought to have all of the cases consolidated by the Multi District Litigation panel. The panel denied that request on Dec. 16, 2004 and all cases were transferred to the Northern District Court of California and assigned to a single judge. All cases other than Brennan were stayed. Subsequently, a seventh lawsuit was filed in the District of Alaska, which thereafter was also transferred to the Northern District of California and assigned to the same judge. In Brennan, on May 4, 2005, the court ruled on defendants' Motion to Dismiss and Motion for Judgment on the Pleadings. The court did not dismiss the complaint, except for a technical dismissal of the claims against First Data Corp., Bank One Corp. and JPMorgan Chase. On May 25, 2005, the plaintiffs filed an amended complaint that clarified the basis for alleging that the holding companies First Data Corp., Bank One Corp. and JPMorgan Chase were liable. On Jul. 21, 2005, Concord filed a motion for summary judgment seeking to foreclose claims arising after Feb. 1, 2001, the date that Concord acquired the STAR network. On Aug. 22, 2005, the court also consolidated all of the ATM interchange cases pending against the defendants in Brennan that is now referred to collectively as the "ATM Fee Antitrust Litigation." On Sept. 14, 2006, a hearing on Concord's Motion for Summary Judgment was held and the Court requested additional briefing. The suit is "In re ATM Fee Antitrust Litigation, Case No. 4:04- cv-02676-SBA," filed in the U.S. District Court for the Northern District of California under Judge Saundra Brown Armstrong. Representing the plaintiffs are: (1) Daniel O. Myers, Richardson, Patrick, Westbrook and Brickman, LLC, 1037 Chuck Dawley, Building A, Mt. Pleasant, SC 92464, Phone: 843-727-6500, fax: 843-216- 6509, E-mail: dmyers@rpwb.com; and (2) Joseph R. Saveri, Lieff Cabraser Heiman & Bernstein, LLP, 275 Battery Street, 30th Floor, San Francisco, CA 94111-3339, Phone: 415-956-1000, Fax: 415-956-1008, E- mail: jsaveri@lchb.com. Representing the defendants are Buckmaster DeWolf, Peter Edward Moll, Esq., Benjamin K. Riley, Brian Wallach of Howrey Simon Arnold & White, LLP, 301 Ravenswood Avenue, Menlo Park, CA 94025, Phone: 650-463-8100, E-mail: dewolfb@howrey.com, mollp@howrey.com, rileyb@howrey.com and wallachb@howrey.com. CONSOLIDATED MANUFACTURING: Settles WARN Violations Suit in Kan. ---------------------------------------------------------------- Consolidated Manufacturing reached a tentative agreement to settle for $240,000 a suit filed by former employees in relation to a sudden mass layoff in February, The Hutchinson News reports. Ninety-eight former Consolidated Manufacturing employees filed the suit in June in the U.S. District Court for the District of Kansas, alleging the company violated the federal Workers Adjustment and Retraining Notification Act. The suit claims that about 120 employees were given 30 minutes notice before the company shut down its manufacturing plant at 1600 North Halstead on Feb. 28. But the law requires a company to give at least 60 days notice if it plans to lay off 100 or more employees. The suit sought pay and benefits for all employees for 60 days. But lead plaintiff Bart Newberry said the proposed $240,000 settlement is about half of what workers had asked for. According to attorney Jeff Spahn, of the Wichita law firm of Martin, Pringle, Oliver, Wallace & Bauer, under the settlement, each employee will get about $1,600 to $1,700 after attorney fees are paid, but before state and federal withholding taxes are withdrawn. The company, which under the agreement does not admit it violated the act, contends it fell under the "faltering company" exemption and was not required to give notice. According to plaintiffs' attorney, Jeff C. Spahn, Jr., the company argued it was exempted from notification because of "unforeseeable business circumstances" and it was attempting to secure capital and feared the notice would make it harder to do. "Through discovery in the lawsuit, we found most of the factors they were relying upon they'd been aware of more than 60 days before," Mr. Spahn said. A Dec. 21 hearing is set to consider the settlement agreement. The suit is "Newberry v. Consolidated Manufacturing, Inc., Case No. 6:06-cv-01170-MLB-KMH," filed in the U.S. District Court for the District of Kansas under Judge Monti L Belot, with referral to Judge Karen M. Humphreys. Representing plaintiffs are Jeff C. Spahn, Jr. and Terry L. Mann both of Martin, Pringle, Oliver, Wallace & Bauer, LLP -- Wichita, 100 North Broadway, Suite 500, Wichita, KS 67202, Phone: 316-265-9311, Fax: 316-265-2955, E-mail: jcspahn@martinpringle.com or tlmann@martinpringle.com. Representing defendant are Andrew J. Nazar and Paul D. Sinclair both of Shughart Thomson & Kilroy, PC--KC, Twelve Wyandotte Plaza, 120 West 12th Street, Suite #1700, Kansas City, MO 64105, Phone: 816-421-3355, Fax: 816-374-0509, E-mail: nazar@stklaw.com or psinclair@stklaw.com. DYNEGY MIDWEST: Discovery Continues in Tex. Savings Plan Lawsuit ---------------------------------------------------------------- A second putative class action over Dynegy Midwest Generation, Inc. 401(k) Savings Plan remains pending at the class discovery stage, according to Dynegy Inc.'s Nov. 8 form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30. In September 2005, two former Illinois Power salaried employees who were participants in the Dynegy Midwest Generation, Inc. 401(k) Savings Plan for salaried employees filed a lawsuit in federal court in the Southern District of Texas against the company and several individual defendants. The salaried employees purport to represent all DMG Salaried Plan participants who held Dynegy common stock through the DMG Salaried Plan during the period from Jan. 1, 2002, through Jan. 30, 2003. The Savings Plan is formerly known as the Illinois Power Incentive Savings Plan. It is now referred to as the "DMG Salaried Plan." The complaint alleges violations of ERISA in connection with the DMG Salaried Plan that are similar to the claims made in the ERISA litigation referenced in the preceding paragraph. The lawsuit seeks unspecified damages for the losses to the plan, as well as attorney's fees and other costs. In December 2005, the company filed a motion to dismiss the complaint, in response to which plaintiffs' counsel filed a second putative class action on behalf of three alleged plan participants that is materially identical to the original action. In March 2006, the original action was dismissed by the court with prejudice based on lack of standing and lack of subject matter jurisdiction, and the plaintiffs in that matter have appealed that dismissal. The second putative class action relating to the DMG Salaried Plan remains pending at the class discovery stage. DYNERGY INC: W.Va. Antitrust Lawsuit Enters Discovery Stage ----------------------------------------------------------- Discovery is ongoing in the Stand Energy Litigation, formerly Atlantigas Corp. Litigation, which names as defendants Dynergy Inc. In October 2004, the company was named as a defendant in a West Virginia federal court class action alleging that interstate pipelines provided preferential storage and transportation services to their own unregulated marketing affiliates in return for a percentage of the profits. Plaintiffs contend that such conduct violated applicable Federal Energy Regulatory Commission regulations and federal and state antitrust laws, and constituted common law tortious interference with contractual and business relations. In addition, the complaint claims the defendants conspired with the other market participants to receive preferential natural gas storage and transportation services at off-tariff prices. The complaint seeks unspecified compensatory and punitive damages. The parties are actively engaged in discovery, according to Dynegy Inc.'s Nov. 8 form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30. ENTERPRISE GP: Named in TEPPCO Unitholder's Suit Over Jonah Deal ---------------------------------------------------------------- Enterprise GP Holdings L.P. is named in a purported class action filed by a unitholder of its TEPPCO Partners, L.P. affiliate, a publicly traded Delaware limited partnership. On Sept. 18, 2006, Peter Brinckerhoff, a purported unitholder of TEPPCO Partners, filed a complaint in the Court of Chancery of New Castle County in the State of Delaware, in his individual capacity, as: * a putative class action on behalf of other unitholders of TEPPCO, and * derivatively on behalf of TEPPCO, concerning, among other things, certain transactions involving TEPPCO and Enterprise GP or its affiliates. The complaint names as defendants TEPPCO, its directors, and certain of its affiliates; Enterprise GP and certain of the company's affiliates; EPCO, Inc.; and Dan L. Duncan, the chairman and controlling shareholder of EPCO. The complaint alleges, among other things, that the defendants have caused TEPPCO to enter into certain transactions with the company or its affiliates that are unfair to TEPPCO or otherwise unfairly favored the company or the company's affiliates over TEPPCO. These transactions are alleged to include the joint venture to further expand the Jonah Gas Gathering System -- located in the Greater Green River Basin of southwestern Wyoming -- entered into by TEPPCO and one of the company's affiliates in August 2006 and the sale by TEPPCO to one of the company's affiliates of the Pioneer gas processing plant in March 2006. The Jonah system gathers and transports natural gas produced from the Jonah and Pinedale fields to regional natural gas processing plants and major interstate pipelines that deliver natural gas to end-use markets. The complaint seeks: -- rescission of these transactions or an award of rescissory damages with respect thereto; -- damages for profits and special benefits allegedly obtained by defendants as a result of the alleged wrongdoings in the complaint; and -- awarding plaintiff costs of the action, including fees and expenses of his attorneys and experts. FLOWSERVE CORPORATION: Oct. 2007 Trial Set for Tex. Stock Suit -------------------------------------------------------------- An Oct. 1, 2007 trial was set for an amended consolidated securities class action pending against Flowserve Corp. in the U.S. District Court for the Northern District of Texas. During the quarter ended Sept. 30, 2003, related lawsuits were filed in federal court in the Texas, alleging that the company violated federal securities laws. Since the filing of these cases, which have been consolidated, the lead plaintiff has amended its complaint several times. The lead plaintiff's current pleading is the fifth consolidated amended complaint. The complaint alleges that federal securities violations occurred between Feb. 6, 2001 and Sept. 27, 2002. It names as defendants: -- Mr. C. Scott Greer, the company's former chairman, president and chief executive officer; -- Ms. Renee J. Hornbaker, the company's former vice president and chief financial officer; -- PricewaterhouseCoopers LLP, the company's independent registered public accounting firm; and -- Banc of America Securities LLC and Credit Suisse First Boston LLC, which served as underwriters for two of the company's public stock offerings during the relevant period. The complaint asserts claims under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, and Rule 10b-5 thereunder, and Sections 11 and 15 of the U.S. Securities Exchange Act of 1933. The lead plaintiff seeks unspecified compensatory damages, forfeiture by Mr. Greer and Ms. Hornbaker of unspecified incentive-based or equity-based compensation and profits from any stock sales, and recovery of costs. On Nov. 22, 2005, the Court entered an order denying the defendants' motions to dismiss the Complaint. The case is currently set for trial on Oct. 1, 2007. LOUISIANA: Court Denies Motion to Dismiss Suit Over Water Damage ---------------------------------------------------------------- Judge Stanwood Duval Jr. of the U.S. District Court for the Eastern District of Louisiana refused to dismiss a consolidated lawsuit for damages from Hurricane Katrina's floods, citing that the defendants failed to distinguish between natural and manmade catastrophes in their insurance policies. The 85-page ruling covered several cases that had been consolidated in "In re: Katrina Canal Breaches Consolidated Litigation, Case No. 05-4182." In anticipation of defendants' appeals on the decision, the judge promptly sent his ruling for review by the U.S. Court of Appeals for the Fifth Circuit. Essentially, the judge denied motions by Allstate Insurance Co., St. Paul Travelers Cos., and several insurers, who relied on water damage exclusions written by the Insurance Services Office to dismiss a number of Hurricane Katrina-related claims the insurers asserted were not covered by the policies. Though the ruling covers several cases, Judge Duval has not decided to certify it as a class action as of the moment. A decision on whether to do that probably won't come until the appellate court rules on the judge's decision, says plaintiffs' attorney Joseph Bruno. The consolidated litigation is for claims arising out of damage caused by the breach or overtopping of Louisiana's 17th Street Canal, London Avenue Canal, Industrial Canal, and Mississippi Gulf River Outlet levees. Judge Duval found that language used by most insurance companies doesn't differentiate between a flood caused by an act of God, such as excessive rainfall, and a flood caused by an act of man or by human errors, which would include the levee breaches. However, Judge Duval also found that both State Farm Fire & Casualty Co. and Hartford Insurance Co. are exceptions to his ruling. Thus, the judge dismissed suits filed against both insurers, ruling that their policies effectively employed language that more explicitly denied coverage for water damage irrespective of cause. Both St. Paul Travelers and Allstate Insurance are planning an appeal for Judge Duval's ruling. For more details, contact Joseph Bruno of Bruno & Bruno, 855 Baronne Street, New Orleans, LA 70113, Phone: 504-525-1335 or 1- 800-966-1335, Fax: 504-581-1493, Web site: http://www.brunobrunolaw.com/. MET-RX USA: Still Faces Calif. Suit Over Pro-hormone Supplements ---------------------------------------------------------------- MET-Rx USA, Inc., a subsidiary of Rexall Sundown, Inc., remains a defendant in a putative consumer fraud class action in California state court, claiming that the advertising and marketing of certain pro-hormone supplements were false and misleading, or alternatively, that the pro-hormone products contained ingredients that were controlled substances under California law. The suit, which was filed on July 25, 2002, seeks equitable and monetary relief. On June 18, 2004, the case was coordinated with several other cases brought against other companies relating to the sale of products containing androstenediol, one of the pro-hormones contained in the Met-Rx products. The coordinated proceedings have been assigned to a coordination judge for further pretrial proceedings. No trial date has been set, the court has not yet certified a class, and the matter is currently in discovery, according to the NBTY, Inc.'s Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. Rexall Sundown is an acquisition of NBTY, Inc. In March 2004, a putative class action was filed in New Jersey against the company, claiming that the advertising and marketing of certain pro-hormone supplements were false and misleading and that plaintiff and the putative class of New Jersey purchasers of these products were entitled to damages and injunctive relief. Because these allegations are virtually identical to allegations made in the putative nationwide class action previously filed in California, the company moved to dismiss or stay the New Jersey action pending the outcome of the California action. The motion was granted, and the New Jersey action is stayed at this time. MICHAELS STORES: Mass. Laborers' Annuity Fund Files Stock Suit -------------------------------------------------------------- Michaels Stores, Inc. and certain of its directors were named as defendants in a purported securities fraud class action filed in the U.S. District Court for the Northern District of Texas. On Sept. 6, 2006, the Massachusetts Laborers' Annuity Fund filed a putative class action on behalf of itself and all holders of Michaels Stores, Inc. common stock during the period of May 4, 2004 through the present. The suit alleged that the defendants misrepresented and/or omitted material facts in Michaels' annual proxy statements for 2004, 2005 and 2006, including, among other things, that Michaels' reported financial results inflated its reported earnings by not properly recording stock-based compensation expense relating to the granting of stock options, that problems with Michaels' internal controls prevented it from issuing accurate financial reports and projections, and that Michaels' directors had received and acquiesced in the granting of backdated stock options. Plaintiff asserted claims against all of the defendants of violations of Section 14(a) of the U.S. Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder and (b) violations of Section 20(a) of the U.S. Securities Exchange Act of 1934. The suit sought an indeterminate amount of damages from the defendants and equitable or injunctive relief, including the rescission of stock option grants. The suit is "Massachusetts Laborers Annuity Fund v. Michaels Stores Inc., et al., Case No. 3:06-cv-01635," filed in the U.S. District Court for the Northern District of Texas under Judge David C. Godbey. Representing the plaintiff is Mark Solomon of Lerach Coughlin Stoia Geller Rudman & Robbins - San Diego, 655 W. Broadway, Suite 1900, San Diego, CA 92101, Phone: 619/231-1058. Representing the defendant is Patricia J. Villareal of Jones Day - Dallas, PO Box 660623, 2727 N. Harwood St., Dallas, TX 75266- 0623, Phone: 214/969-2973, Fax: 214/969-5100, E-mail: pjvillareal@jonesday.com. MICHAELS STORES: Settles Calif. Suit by Hourly Retail Employees --------------------------------------------------------------- Michaels Stores, Inc. reached a tentative settlement for a class action pending in the U.S. District Court for the Southern District of California, which alleged violations of the state's wage and labor laws. On July 13, 2005, Michael Clark, a former Michaels store assistant manager and Lucinda Prouty, a former Michaels store department manager in San Diego, California, commenced the suit on behalf of themselves and current and former hourly retail employees employed in California from July 13, 2001 to the present. The suit was filed in the Superior Court of California, County of San Diego, and alleges that the company failed to pay overtime wages, provide meal and rest periods (or compensation in lieu thereof), and provide itemized employee wage statements. The Clark suit also alleges that this conduct was in breach of California's unfair competition law. Plaintiff seeks, injunctive relief, damages for unpaid overtime pay, meal break penalties, waiting time penalties, interest, and attorneys' fees and costs. Under the Class Action Fairness Act, the company removed the case to federal court on Aug. 5, 2005. The parties participated in a voluntary mediation on Oct. 16, 2006 and have reached a tentative settlement of the case. Contingent on court approval, the parties have agreed to a claims made process, with no material impact on the company's statement of operations, balance sheet, or cash flows for any period presented, according to Michaels Stores, Inc.'s Dec. 7, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 28, 2006. The suit is "Clark, et al v. Michaels Stores Inc, et al., Case No. 3:05-cv-01678-WQH-JMA," filed in the U.S. District Court for the Southern District of California under Judge William Q. Hayes with referral to Judge Jan M. Adler. Representing the plaintiffs is Michael D. Singer of Cohelan and Khoury, 605 C. Street, Suite 200, San Diego, CA 92101, Phone: (619) 595-3001, Fax: (619) 595-3000, E-mail: msinger@ck-lawfirm.com. Representing the defendants is Catherine A. Conway of Akin Gump Strauss Hauer and Feld, 2029 Century Park East, Suite 2400, Los Angeles, CA 90067, Phone: (310) 229-1000, Fax: (310) 552-6746. MICHAELS STORES: No Hearing Date Yet for Calif. Managers' Case -------------------------------------------------------------- The Ontario Superior Court of Justice has yet to schedule a hearing on the certification of the class action filed against Michaels of Canada and Michaels Stores, Inc. On Dec. 20, 2002, James Cotton, a former store manager of Michaels of Canada, ULC, the company's wholly owned subsidiary, and Suzette Kennedy, a former assistant manager of Michaels of Canada, commenced the proposed class proceeding on behalf of themselves and current and former employees employed in Canada. The Cotton claim was filed in the Ontario Superior Court of Justice and alleges that the defendants violated employment standards legislation in Ontario and other provinces and territories of Canada by failing to pay overtime compensation as required by that legislation. The Cotton claim also alleges that this conduct was in breach of the contracts of employment of those individuals. It seeks a declaration that the defendants have acted in breach of applicable legislation, payment to current and former employees for overtime, damages for breach of contract, punitive, aggravated and exemplary damages, interest, and costs. In May 2005, the plaintiffs delivered material in support of their request that this action be certified as a class proceeding. The company filed and served its responding materials opposing class certification on Jan. 31, 2006. A date has not yet been set for the hearing with respect to certification, according to Michaels Stores, Inc.'s Dec. 7, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 28, 2006. Michaels Stores, Inc. on the Net: http://www.michaels.com. MIRAB USA: Recalls Beef Jerky for Likely Presence of Animal Drug ---------------------------------------------------------------- Mirab USA, Inc., of Taylor, Michigan, in cooperation with the U.S. Department of Agriculture's Food Safety and Inspection Service, is voluntarily recalling approximately 23,200 lbs. of beef jerky products that may contain the animal drug Doramectin. The following product is subject to recall: -- Four- and 16- ounce packages of "MOUNTAIN TRAILS BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/14/08." This product was distributed to retail stores in Arizona, Michigan, New Hampshire, Ohio, Tennessee, Utah, Washington, Wisconsin and West Virginia. -- Four- and 16- ounce packages of "MOUNTAIN TRAILS BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/14/08." This product was distributed to retail stores in Arizona, California, New Hampshire, Oregon, Tennessee, Utah, Washington, Wisconsin and West Virginia. -- Four - and 4.375 - ounce packages of "SPORTMAN'S WAREHOUSE OUTFITTER BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/14/08." This product was distributed to retail stores in California, Minnesota and Nevada. -- Three-ounce packages of "STEAKHOUSE BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/14/08," "04/20/08," "04/21/08" or "04/26/08." This product was distributed to retail stores in Arizona, California, Florida, Illinois, Pennsylvania, Texas and Wisconsin. -- Three-ounce packages of "STEAKHOUSE BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/14/08," "04/19/08." "04/20/08." This product was distributed to retail stores in California and Florida. -- 3.5-ounce packages of "GOLD AWARD BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/17/08," "04/20/08" or "04/21/08." This product was distributed to retail stores in California, Illinois, Massachusetts, Michigan, Minnesota, Pennsylvania and Ohio. -- 3.5-ounce packages of "GOLD AWARD BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/21/08." This product was distributed to retail stores in California, Illinois, Michigan, Pennsylvania, Ohio and South Carolina. -- Four-ounce packages of "KROGER BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/17/08." This product was distributed to retail stores in California, Colorado, Indiana and Tennessee. -- 1.75- and 3.5-ounce packages of "PECOS BILL'S BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/17/08" or "04/19/08." This product was distributed to retail stores in California, Florida, Georgia, Indiana, Oklahoma and Ohio. -- 3.5-ounce packages of "RITE AID BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/17/08" or "04/21/08." This product was distributed to retail stores in California, Michigan, New York and Oregon. -- 3.5-ounce packages of "RITE AID BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/14/08," "04/17/08" or "04/21/08." This product was distributed to retail stores in California, Michigan and Oregon. -- Four-ounce packages of "KROGER BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/18/08" or "04/21/08." This product was distributed to retail stores in California, Colorado, Indiana and Tennessee -- Four- and 16-ounce packages of "FIRST CHOICE BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/18/08." This product was distributed to retail stores in California. -- 16-ounce packages of "FIRST CHOICE BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/18/08" or "04/21/08." This product was distributed to retail stores in Arizona and California. -- Four-ounce packages of "RAPLH'S BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/18/08" or "04/21/08." This product was distributed to retail stores in California. -- 3.5-ounce packages of "PECOS BILL BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/19/08." This product was distributed to retail stores in Georgia and Texas. -- 3.5-ounce packages of "LOWES BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/19/08." This product was distributed to retail stores in North Carolina. -- 3.5-ounce packages of "PECOS BILL BEEF JERKY, ORIGINAL WITHOUT TRANS FAT." Each label bears a "best before date" of "04/19/08." This product was distributed to retail stores in Oklahoma. -- 16-ounce packages of "WILD RIVER BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/20/08" or "04/26/08." This product was distributed to retail stores in California, Utah and Washington. -- 16-ounce packages of "WILD RIVER BEEF JERKY, TERIYAKI". Each label bears a "best before date" of "04/20/08." This product was distributed to retail stores in California and Washington. -- 4.375-ounce packages of "SPORTMAN'S WAREHOUSE OUTFITTER BEEF JERKY, SELECT, ORIGINAL." Each label bears a "best before date" of "04/20/08." This product was distributed to retail stores in Colorado, Idaho, Utah and Washington. -- Four-ounce packages of "AMERICAN FARE BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/21/08." This product was distributed to retail stores in Florida. -- 4.6-ounce packages of "MEIJER BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "04/21/08." This product was distributed to retail stores in Illinois and Michigan. -- 4.6-ounce packages of "MEIJER BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "04/21/08." This product was distributed to retail stores in Illinois. -- Four- and 16-ounce packages of "HILL COUNTRY FARE BEEF JERKY, ORIGINAL." Each label bears a "best before date" of "10/17/07." This product was distributed to retail stores in Texas. -- Four-ounce packages of "HILL COUNTRY FARE BEEF JERKY, TERIYAKI." Each label bears a "best before date" of "10/17/07." This product was distributed to retail stores in Texas. Each package bears the establishment number "Est. 27373" inside the USDA mark of inspection. The problem was discovered through FSIS routine sampling. The amount of Doramectin found in this product exceeds the tolerance level established by the Department of Health and Human Service's Food and Drug Administration of 30 parts per billion in meat. Consumers and media with questions about the recall should contact Mirab USA, Inc. customer service at 313-292-4100. MORTGAGEIT HOLDINGS: "Pressner" Attorneys Fee Capped at $250T ------------------------------------------------------------- The entity that will be formed from the planned merger of MortgageIT Holdings, Inc. and DB Structured Products is paying the attorneys of plaintiffs in a class action challenging the merger up to $250,000 under a proposed settlement of the suit. On July 13, 2006, as amended on Sept. 15, 2006, Mr. Jerry Pressner, a purported stockholder of the company, filed a complaint, "Pressner v. MortgageIT Holdings, Inc., et al., (Index No. 602472/06)," in the Supreme Court of the State of New York in New York County against the company and seven of its eight directors. The complaint alleged, among other things, that the company's directors breached their fiduciary duties by failing to maximize stockholder value with regard to the proposed acquisition by DB Structured Products. Among other things, the complaint sought class action status, a court order enjoining the company and its directors from proceeding with or consummating the merger, and the payment of attorneys' fees and expenses. On Sept. 25, 2006, the company entered into a Memorandum of Understanding with the plaintiff in the above referenced action that led to the execution of a Stipulation and Agreement of Compromise, Settlement and Release on Oct. 6, 2006. Pursuant to the Stipulation, the company agreed to include certain additional disclosures in its proxy statement relating to the special stockholders' meeting to vote on the proposed acquisition by DB Structured Products from that which were included in its preliminary proxy statement that was filed on Aug. 11, 2006. On Oct. 18, 2006, the Court entered an Order Regarding Preliminary Approval of Class Action and Notice to Class, which, among other things, approved the Notice of Pendency of Class Action and Hearing Thereon, and contained additional information regarding the litigation, the settlement of the litigation according to the terms of the Stipulation, and procedures for objecting to the Settlement, among other things. The parties have agreed to seek final Court approval of the Settlement, which will provide for certification of a non-opt- out class of the company's stockholders, for entry of a judgment dismissing the purported class action with prejudice and a complete release and settlement of all claims that were made or could have been made in the litigation. The parties entered into the Stipulation to eliminate the burden, risk and expense of further litigation. The Stipulation is not an admission by the company or its directors of any breach of duty, liability or wrongdoing. Subject to the occurrence of certain events, including the consummation of the merger and final Court approval of the Settlement, the entity surviving the merger has agreed to pay plaintiff's counsel attorney's fees in an amount not to exceed $250,000 and documented expenses in an amount not to exceed $25,000. The settlement covers all record and beneficial holders of MortgageIT Holdings, Inc. common stock from July 24, 2006 through effective date of the merger. For more details, contact Gregory M. Nespole of Wolf Haldenstein Adler Freeman & Herz, 270 Madison Avenue, New York, New York 10016, Phone: 212-545-4657, Fax: 212-545-4758, Web site: http://www.whafh.com. MURPHY OIL: Property Buyout in Oil Spill Suit Deal to Cost $55M --------------------------------------------------------------- Murphy Oil USA, Inc. expects that purchases of properties and associated remediation under the settlement of a suit filed against it over the Meraux Louisiana oil spill will cost the company about $55 million. The class action was filed in federal court in the Eastern District of Louisiana on Sept. 9, 2005. It seeks unspecified damages to the class comprised of residents of St. Bernard Parish caused by a release of crude oil at a Meraux Louisiana refinery of Murphy Oil USA, Inc., a wholly owned subsidiary of Murphy Oil Corp., as a result of flood damage to a crude oil storage tank following Hurricane Katrina. Additional class actions have been consolidated with the first suit into a single action in the U.S. District Court for the Eastern District of Louisiana. On or about Sept. 25, 2006, the company reached a settlement with class counsel and on Oct. 10, 2006, the court granted preliminary approval of a class action settlement agreement and scheduled a fairness hearing for Jan. 4, 2007. The majority of the settlement of $330 million will be paid by insurance. The company recorded an expense of $14 million in the third quarter 2006 related to settlement costs not covered by insurance. As part of the settlement, all properties in the class area will receive a fair and equitable cash payment and will have residual oil cleaned. In addition, the company will offer to purchase all properties in an agreed area adjacent to the west side of the Meraux refinery; these property purchases and associated remediation will be paid by the company and are expected to total $55 million. Approximately 100 non-class actions regarding the oil spill have been filed and remain pending; however, as part of its Oct. 10, 2006, order, the court stayed these actions pending the settlement proceedings and further orders of the court. NATIONAL SECURITY: Ala. Court Okays Racial Bias Suit Settlement --------------------------------------------------------------- The U.S. District court for the Middle District of Alabama gave final approval to the settlement of a class action against a subsidiary of The National Security Group, Inc. On Dec. 12, 2005, the court entered an order preliminarily approving a proposed settlement of a case pending against a subsidiary of the company captioned, "Mary W. Williams, et al. v. National Security Insurance Co.," and preliminarily certifying such case as a class action. The suit relates primarily to claims that a subsidiary of the company sold industrial burial insurance policies to racial minorities on which it charged higher premiums or provided inferior benefits than premiums charged to or policy benefits provided to similarly situated non-minority policyholders. The company's subsidiary has not sold industrial burial insurance for more than 20 years. The proposed settlement provides for the company's subsidiary to, among other matters, provide additional policyholder benefits, including premiums adjustments and benefits enhancements on existing policies and additional benefits on matured policies and pay attorneys fees. Following a fairness hearing held on Aug. 22, 2006, the court, in an order dated Aug. 30, 2006, granted final approval to the proposed settlement. The effective date of the settlement was Sept. 30, 2006, with a scheduled implementation date of Dec. 29, 2006. The suit is "Williams, et al. v. Nat'l Security Ins., Case No. 1:02-cv-00877-MHT-DRB," filed in the U.S. District court for the Middle District of Alabama under Judge Myron H. Thompson with referral to Judge Delores R. Boyd. Representing the plaintiffs are: (1) Eric James Artrip of Watson Jimmerson, 203 Greene Street, PO Box 18368, Huntsville, AL 35801, Phone: (256) 536-7423, Fax: 256-536-2689, E-mail: artrip@watsonjimmerson.com; (2) Christa L. Collins of James, Hoyer, Newcomer & Smiljanich, P.A., One Urban Centre, 4830 W. Kennedy Boulevard, Suite 550, Tampa, FL 33609, Phone: (813) 286-4100, Fax: 813-286-4174, E-mail: ccollins@jameshoyer.com; and (3) Joel Lee Dilorenzo of Jackson and Tucker, P.C., Black Diamond Building, 2229 1st Avenue North, Birmingham, AL 35203, Phone: 205-252-3535, Fax: 205-252-3536, E-mail: joel@jacksonandtucker.com. Representing the defendant is Richard A. Ball, Jr. of Ball Ball Matthews & Novak PA, PO Box 2148, Montgomery, AL 36102-2148, Phone: 334-387-7680, Fax: 387-3222, E-mail: rball@ball-ball.com. OMNICARE INC: Ken. Stock Suit Plaintiffs Name New Defendants ------------------------------------------------------------ Plaintiffs in a purported class action filed against Omnicare Inc. filed a second amended complaint that seeks to add two members of the company's board of directors as defendants and raises a new claim of fraud in relation to the company's December 2005 public offering. On Feb. 2 and Feb. 13, 2006, respectively, two substantially similar putative class actions: -- "Indiana State Dist. Council of Laborers & HOD Carriers Pension & Welfare Fund v. Omnicare, Inc., et al., No. 2:06cv26," and -- "Chi v. Omnicare, Inc., et al., No. 2:06cv31" were filed against the company and two of its officers in the U.S. District Court For the Eastern District of Kentucky, purporting to assert claims for violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaints, which purport to be brought on behalf of all company shareholders, allege that the company artificially inflated its earnings by engaging in improper generic drug substitution and that the defendants have made false and misleading statements regarding the company's business and prospects. Thus, the suit seeks, among other things, compensatory damages and injunctive relief. On March 7, 2006, the parties to both actions filed stipulations agreeing that the cases should be consolidated and proposing a scheduling order for the conduct of the actions upon consolidation. Those scheduling orders were entered on March 10, 2006. On April 3, 2006 plaintiffs in the HOD Carriers case formally moved for consolidation and the appointment of lead plaintiff and lead counsel pursuant to the Private Securities Litigation Reform Act of 1995. On May 22, 2006, that motion was granted, the cases were consolidated, and a lead plaintiff and lead counsel were appointed. On July 20, 2006, plaintiffs filed a consolidated amended complaint, adding a third officer as a defendant and new factual allegations relating primarily to revenue recognition, the valuation of receivables and the valuation of inventories. On Oct. 31, 2006, plaintiffs moved for leave to file a second amended complaint. The proposed second amended complaint, which purports to be brought on behalf of all purchasers of Omnicare common stock from Aug. 3, 2005 through July 27, 2006, seeks to add two members of the company's board of directors as defendants and a new claim -- asserted by a new proposed plaintiff -- for violation of Section 11 of the Securities Act of 1933 based on alleged false and misleading statements in the registration statement filed in connection with the company's December 2005 public offering. In addition, the proposed second amended complaint would, among other things, add allegations that the company failed to timely disclose its contractual dispute and failed to timely record certain special litigation reserves. Defendants' response to plaintiffs' motion for leave to amend was due on Nov. 20, 2006. The first identified complaint is "Indiana State District Council of Laborers and HOD Carriers Pension and Welfare Fund, et al. v. Omnicare, Inc., et al.," filed in the U.S. District Court for the Eastern District of Kentucky. Plaintiff firms in this or similar case: (1) Federman & Sherwood, 120 North Robinson, Suite 2720, Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail: wfederman@aol.com; (2) Law Offices of Charles J. Piven, P.A., World Trade Center-Baltimore,401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com; (3) Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, (San Diego), 655 West Broadway, Suite 1900, San Diego, CA, 92101, Phone: 619.231.1058, Fax: 619.231.7423; (4) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT, 06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com; (5) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com; and (6) Smith & Smith, LLP, 3070 Bristol Pike, Suite 112, Bensalem, PA, 19020, Phone: 215.638.4847, Fax: 215.638.4867. OMNIVISION TECHNOLOGIES: Settles Calif. Securities Fraud Suit ------------------------------------------------------------- A settlement was reached in a consolidated securities class action filed against OmniVision Technologies, Inc. in the U.S. District Court for the Northern District of California, according to the company's Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 31, 2006. On June 10, 2004, the first of several putative class actions were filed against the company and certain of its present and former directors and officers on behalf of investors who purchased the company's common stock at various times from February 2003 to June 9, 2004. Those actions were consolidated as, "In re OmniVision Technologies, Inc., No. C-04-2297-SC." It asserts claims on behalf of purchasers of the company's common stock between June 11, 2003 and June 9, 2004. It is seeking unspecified damages. The suit generally alleges that defendants violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 by allegedly engaging in improper accounting practices that purportedly led to the company's financial restatement. On July 29, 2005, the court denied the company's motion to dismiss the complaint and discovery commenced thereafter. The parties engaged in settlement discussions and in November 2006, the parties reached an agreement in principle to settle this litigation. The parties are currently drafting a written settlement agreement and other customary documentation. As a result of the pending statement, the parties have agreed to stay discovery and other proceedings. The suit is "In re OmniVision Technologies, Inc. Securities Litigation, Case No. 04-CV-2297," filed in the U.S. District Court for the Northern District of California under Judge Samuel L. Conti with referral to Judge Joseph C. Spero. Representing the plaintiffs are: (1) Marc Louis Ackerman of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 94104, Phone: 610- 667-6200, Fax: 610-667-9029, E-mail: mackerman@brodsky-smith.com; (2) Peter A. Binkow of Glancy Binkow & Goldberg, LLP, 1801 Avenue of the Stars, Suite 311, Los Angeles, CA 90067, Phone: 310-201-9150, Fax: 310-201-9160, E-mail: pbinkow@glancylaw.com; and (3) Jeffery C. Block of Berman DeValerio Pease Tabacco Burt & Pucillo, 8th Floor, One Liberty Square, Boston, MA 02109, Phone: (617) 542-8300, Fax: 6175421194, E-mail: jblock@bermanesq.com. Representing the defendants are Jenny L. Dixon, Cameron Powers Hoffman and Claudia N. Main of Wilson Sonsini Goodrich & Rosati, Phone: 415-947-2000, (650) 493-9300 and 415-947-2053, Fax: 415- 947-2099, E-mail: jldixon@wsgr.com, choffman@wsgr.com and cmain@wsgr.com. PEKIN INSURANCE: Ill. Circuit Court Junks Suit by Chiropractors --------------------------------------------------------------- Madison County Circuit Judge Lola Maddox dismissed a class action filed by chiropractors against Pekin Insurance Co. over alleged improper reduction of payments for treatment of patients who suffered injuries in accidents, the Madison County Record reports. In dismissing Count I of the suit for failure to state a cause of action, Judge Maddox wrote, "Plaintiffs' failed expectations of receiving 100 percent of what they billed (or payment of their billing at usual and customary rates) does not constitute actual damages." On Count II, the unjust enrichment allegation, the judge ruled that the only benefit Pekin received was the insurance premiums paid for by the insureds. "Plaintiffs presents no case authority that the reductions from their charges to the [preferred provider organization] schedule rates constitute a benefit to defendant for which suit can be brought for unjust enrichment," Judge Maddox wrote in dismissing the claim. She also ruled that the plaintiffs did not have a contract with Pekin therefore no breach could exist. Judge Maddox further ruled that any agreement could only be enforced by the PPO administrator and Pekin, not the plaintiffs. Therefore the plaintiffs lacked standing to sue Pekin based on the terms of any payor agreement because they were not parties. "Plaintiffs have failed to establish any duty or responsibility on the Defendant for providing plaintiffs steerage under Illinois law," she wrote. "Because there was no breach of any contract, there can be no damages." The judge also ruled there was no civil conspiracy because there was no contract between the plaintiffs and Pekin, dismissing the fourth and final count of the complaint. The claims were dismissed without leave to amend. Filed originally in February 2005 by chiropractor Frank Bemis, the suit accuses Pekin Insurance of improperly reducing payouts on medical bills. Mr. Bemis sought to represent a class of plaintiffs in at least five states. In June 2005, Pekin Insurance attorney David Osborne asked Madison County Circuit Judge George Moran to dismiss, arguing that Mr. Bemis failed to state a cause of action. In 2006, the Lakin Law Firm of Wood River filed an amended complaint with the Madison County Circuit Judge George Moran after fusing three lawsuits filed by chiropractors against Pekin Insurance (Class Action Reporter, Feb. 13, 2006). On Feb. 1, the parties agreed to add Lakin's client Thomas Kalterbronn to a proposed class suit filed by another Lakin client, Frank Bemis. They further named a third plaintiff, Dale Fischer, doing business as Lebanon Chiropractic. The lawsuit accuses Pekin of improperly reducing payments for treatment of patients who suffered injuries in accidents that its policies covered. Before her Nov. 30 resignation, Judge Maddox dismissed the class action and ordered the clerk to close the file. Representing Pekin Insurance is David S. Osborne of Pretzel & Stouffer Chartered, One South Wacker Drive, Suite 2500, Chicago, IL 60606-8242, Phone: (312) 346-1973, Fax: (312) 346-8242. Plaintiffs' counsel is the Lakin Law Firm PC, 300 Evans Avenue, PO Box 229, Wood River, IL 62095-0229, Phone: (618) 254-1127 or (800) 851-5523, Fax: (618) 254-0193, Web site: http://www.lakinlaw.com. PHLX: Motion to Dismiss Suit Over Wall Street Firms Deal Denied --------------------------------------------------------------- Chancellor William Chandler of the Delaware Court of Chancery denied all defendants' motions to dismiss a lawsuit brought on behalf of shareholders of the Philadelphia Stock Exchange (PHLX). Named defendants in the suit are the Board of Governors of the Philadelphia Stock Exchange and six Wall Street firms: -- UBS Securities, LLC; -- Morgan Stanley & Co., Inc.; -- Citigroup Financial Products, Inc.; -- Credit Suisse First Boston; -- Citadel Derivatives Group, LLC; and -- Merrill Lynch, Pierce Fenner & Smith. The firms bought a non-dilutable 90% interest of the 100% interest held by Class A shareholders of PHLX in 2005. Lawrence Deutsch, Esquire, of Berger & Montague, P.C. argued the motions on behalf of representative plaintiff Chuck Ginsburg and the class of injured Class A shareholders regarding the challenged transactions. Mr. Deutsch notes, "This is an important victory for PHLX's Class A shareholders as well as for shareholder rights, particularly as to the limits of the power of a board whose actions may have injured its own shareholders." Chancellor Chandler ordered that trial be set by early summer 2007. For further information, contact Plaintiff's Counsel Lawrence Deutsch, Esquire and Robin Switzenbaum, Esquire both of Berger & Montague, P.C., 1622 Locust Street, Philadelphia, PA 19103, Phone: 800-424-6690 or 215-875-3000, Fax: 215-875-5715, E-Mail: ldeutsch@bm.net or rswitzenbaum@bm.net, Website: http://www.bergermontague.com. PUBLIC STORAGE: Continues to Face Unit Renters Suit in Calif. ------------------------------------------------------------- Public Storage, Inc. remains a defendant in a purported class action filed in California Superior Court for Orange County, alleging violations of consumer fraud laws, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. The plaintiff filed the suit, "Serrao v. Public Storage, Inc.," in April 2003 against the company on behalf of a putative class of renters who rented self-storage units from the company. Plaintiff alleges that the company misrepresented the size of its storage units, has brought claims under California statutory and common law relating to consumer protection, fraud, unfair competition, and negligent misrepresentation. The suit seeks monetary damages, restitution, and declaratory and injunctive relief. On Nov. 3, 2003, the court granted the company's motion to strike the plaintiff's nationwide class allegations and to limit any putative class to California residents only. In Aug. 2005, the company filed a motion to remove the case to federal court, but the case has been remanded to the Superior Court. The company is vigorously contesting the claims upon, which this lawsuit is based, including class certification efforts. Glendale, California-based Public Storage, Inc. (NYSE: PSA) -- http://www.publicstorage.com/-- is a fully integrated, self - administered and self-managed real estate investment trust (REIT) that acquires, develops, owns and operates storage facilities. The company is an owner and operator of storage space in the U.S., with direct and indirect equity investments in 1,501 storage facilities containing approximately 92 million square feet of net rentable space, as of Dec. 31, 2005. The company also has a 44% ownership interest in PS Business Parks, Inc., a public REIT that, as of Dec. 31, 2005, owned and operated commercial properties containing approximately 17.6 million net rentable square feet of space located in eight states. PUBLIC STORAGE: Still Faces Calif. Suit Over Storage Insurance -------------------------------------------------------------- Public Storage, Inc. remains a defendant in a lawsuit filed in the Superior Court of California, Orange County in relation to the company's sale of storage insurance, 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. Filed on January 2006, plaintiffs brought the action, "Simas v. Public Storage, Inc.," against the company on behalf of a purported class, who bought insurance coverage at the company's facilities. They are alleging that the company does not have a license to offer, sell and/or transact storage insurance. The suit was brought under California Business and Professions Code Section 17200. The company filed a demurrer to the complaint. While the demurrer was pending, plaintiffs amended the complaint to allege a national class and claims for unfair business practices, quasi-contract, common counts, and negligent and intentional misrepresentation. Public Storage renewed its demurrer and moved to strike the national class allegations. The court dismissed all the claims with leave to amend, except for the claim for unjust enrichment. Based on this ruling, the court held that the motion to strike was moot. Plaintiff elected not to amend her complaint and is therefore only proceeding with the claim for unjust enrichment. Glendale, California-based Public Storage, Inc. (NYSE: PSA) - http://www.publicstorage.com-- is a fully integrated, self- administered and self-managed real estate investment trust that acquires, develops, owns and operates storage facilities. The company is an owner and operator of storage space in the U.S., with direct and indirect equity investments in 1,501 storage facilities containing approximately 92 million square feet of net rentable space, as of Dec. 31, 2005. The company also has a 44% ownership interest in PS Business Parks, Inc., a public REIT that, as of Dec. 31, 2005, owned and operated commercial properties containing approximately 17.6 million net rentable square feet of space located in eight states. QC HOLDINGS: Accused of Breaching Ariz. Deferred Presentment Law ---------------------------------------------------------------- QC Holdings, Inc. is facing a suit filed by an Arizona customer in Superior Court of Pima County, Arizona, alleging that a loan to him violated the Arizona Deferred Presentment Companies Statute and asserting various other claims based in tort, contract and violations of state law and seeking class. The company has removed this matter to federal court, and the company has filed a motion to dismiss this lawsuit in accordance with the mandatory arbitration provisions in the consumer loan contracts signed by the plaintiff in this matter. Overland Park, Kansas-based QC Holdings, Inc. (NASDAQ: QCCO) -- http://www.qcholdings.com/-- provides short-term consumer loans, known as payday loans. As of Dec. 31, 2005, the company operated 532 branches in the U.S. It also provides other consumer financial products and services, such as check cashing services, title loans, credit services, money transfers and money orders. REXALL SUNDOWN: Conference Set for Lawsuit Over Nutrition Bars -------------------------------------------------------------- The California Superior Court scheduled a Jan. 10, 2007 conference for the class action filed against Rexall Sundown, Inc., a company acquired by NBTY, Inc. The suit was filed in 2002 on behalf of all California consumers who bought various nutrition bars. Plaintiffs allege misbranding of nutrition bars and violations of California unfair competition statutes, misleading advertising and other similar causes of action. Plaintiffs seek restitution, legal fees and injunctive relief. Until recently, the case was stayed for all purposes, pending rulings on relevant cases before the California Supreme Court. The court has now lifted the stay and has permitted Rexall Sundown and the other defendants to re-raise a motion for judgment on the pleadings. The court has scheduled a conference on that motion for Jan. 10, 2007, according to the NBTY, Inc.'s Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. SUTTER HEALTH: Court Grants Final OK to Uninsured Patients' Suit ---------------------------------------------------------------- The Honorable David W. Abbott of the Sacramento Superior Court granted final approval to a class action settlement resolving claims regarding pricing and collection practices for uninsured patients at all of Sutter Health's affiliate hospitals. The settlement resolves the named plaintiffs' and class members' claims against Sutter and its affiliated hospitals. As part of the settlement, class members will be entitled to make a claim for refunds or deductions of between 25% to 45% from their prior hospital bills. For the next three years, Sutter hospitals have also agreed to maintain discounted pricing policies for uninsureds that will make Sutter's pricing for uninsureds comparable to the pricing for patients with private insurance. In addition, Sutter has agreed to maintain more compassionate collections policies that will protect uninsureds who fall behind in their payments. Commenting on the settlement, plaintiffs' attorney and Lieff Cabraser partner Kelly M. Dermody stated, "We are pleased that the Court has granted final approval to this groundbreaking settlement so that uninsured patients will receive substantial refunds or reductions on their bills going back to September 2000. "In the future, uninsured patients will also benefit substantially, because the settlement requires that Sutter end price discrimination against its uninsured patients, maintain generous charity case policies for low-income uninsureds to receive free or heavily discounted care, and protect uninsured patients from unfair collections practices. We hope that other hospital systems will follow this positive trend in fair hospital pricing and treatment for uninsured patients." The proposed class includes all persons who: -- received hospital services from a Sutter-affiliated hospital between September 3, 2000 and Aug. 3, 2006; and -- were uninsured at the time of treatment. The consolidated lawsuit was filed by six uninsured patients on behalf of themselves and hundreds of thousands of uninsured patients at Sutter-affiliated hospitals in California, alleging that Sutter charged uninsured patients excessive and unfair prices for medical treatment and services given at Sutter- affiliated hospitals, and engaged in aggressive and unfair collections practices. The lawsuits claim that Sutter violated numerous laws by "charging unfair, unreasonable and inflated prices for medical care to its uninsured patients who are generally the least able to pay." The suits also claim that Sutter "pursues aggressive collection techniques that often result in lawsuits, judgments, garnishments and bankruptcies against uninsured patients." Stutter denies wrongdoing and liability in the case. In August, Judge Abbott granted preliminary approval to the settlement. Uninsured Pricing Cases on the Net: http://www.uninsuredsettlement.com/ Representing the plaintiffs is Kelly M. Dermody of Lieff Cabraser Heimann & Bernstein, LLP, 275 Battery Street, 30th Floor San Francisco, CA 94111, Phone: (415) 956-1000, Fax: (415) 956-1008, E-mail: kdermody@lchb.com; Website: http://www.lieffcabraser.com/sutterhealth.htm TELEPHONE COS: Supreme Court Hears Appeal on Antitrust Lawsuit -------------------------------------------------------------- The U.S. Supreme Court has heard arguments by defendants for the consumer class action, "William Twombly, et al. v. Bell Atlantic Corp., et al.," which has been remanded to the district court for further proceedings. According to xchange online, it is not yet known when the justices will decide, but the session of the Supreme Court ends in June. The suit was filed on December 2002 in the U.S. District Court for the Southern District of New York, alleging antitrust violations of Section 1 of the Sherman Antitrust Act against: -- BellSouth Corp.; -- Verizon; -- AT&T, formerly known as SBC; and -- Qwest Corp. It alleges that defendants conspired to restrain competition by agreeing not to compete with one another and to impede competition with others. Plaintiffs are seeking an unspecified amount of treble damages and injunctive relief, as well as attorneys' fees and expenses. In October 2003, the district court dismissed the complaint for failure to state a claim. In October 2005, the U.S. Court of Appeals for the 2nd Circuit reversed the district court's decision and remanded the case to the district court for further proceedings. In June 2006, the U.S. Supreme Court granted the defendants' petition for writ of certiorari. The suit is "Twombly v. Bell Atlantic, et al., Case No. 1:02-cv- 10220-GEL," filed in the U.S. District Court for the Southern District of New York under Judge Gerard E. Lynch. Representing the plaintiffs is J. Douglas Richards of Milberg Weiss Bershad & Schulman LLP (NYC), One Pennsylvania Plaza, New York, NY 10119, Phone: (212) 946-9390, Fax: (212) 244-5423, e- mail: drichards@milbergweiss.com. Representing the defendants are: (1) Hector Gonzalez and Lily Fu Swenson of Mayer, Brown, Rowe & Maw, LLP (NYC), 1675 Broadway, New York, NY 10019, Phone: (212) 506-2500, Fax: (212) 262-1910, e- mail: hgonzalez@mayerbrownrowe.com; (2) Colin Ryle Kass of Kirkland & Ellis, LLP (Washington), 655 Fifteenth Street NW, Suite 1200, Washington, DC 20005, Phone: (202) 879-5172, Fax: (202) 879-5200, e- mail: ckass@kirkland.com; and (3) Kellogg, Huber, Hansen, Todd & Evans PLLC (DC), 1615 M. Street, N.W., Suite 400, Washington, D.C., DC 20036, Phone: 202-326-7902, Fax: 202-326-7999, e-mail: mkellogg@khhte.com. TIVO INC: Reaches Tentative Settlement in Calif. Consumer Suit -------------------------------------------------------------- TiVo, Inc. tentatively settled the consumer class action filed against it in the Superior Court of the State of California, County of San Francisco in relation to gift subscriptions that it sold, according to the company's Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 31, 2006. Filed on Dec. 22, 2005, the action, "Nolz, et al. v. TiVo, Inc.," was brought on behalf of a purported class of purchasers of the company's gift subscriptions, which were allegedly sold to consumers in violation of a California law that allegedly makes it unlawful to sell gift certificates in California containing an expiration date. In November 2006, the company entered into a settlement agreement with the plaintiffs, which is expected to result in dismissal of the action in the company's first quarter of fiscal year 2008, according to the company's Dec. 7, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 28, 2006. TiVo, Inc. on the Net: http://www.tivo.com. TYCO INT'L: Appeal on N.H. ERISA Lawsuit Class Status Denied ------------------------------------------------------------ A motion by Tyco International, Inc. and certain defendants to appeal the class certification by the U.S. District Court for the District of New Hampshire of a consolidated lawsuit alleging pension laws violations, has been denied. The company and certain of its current and former employees, officers and directors, were named as defendants in eight class actions brought under of the Employee Retirement Income Security Act. Two of the actions were filed in the U.S. District Court for the District of New Hampshire and the Judicial Panel on Multidistrict Litigation transferred the six remaining actions to that court later on. Thus, all eight actions are now consolidated in the District Court in New Hampshire, falling under the Multidistrict Litigation, "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335, Master Docket No. 1:02-md-01335-PB." The complaints purported to bring claims on behalf of the Tyco International (US) Inc. Retirement Savings and Investment Plans and the participants therein. On Jan. 12, 2005, the U.S. District Court for the District of New Hampshire denied, without prejudice, the company's motion to dismiss certain additional individual defendants from the action. On Jan. 20, 2005, plaintiffs filed a motion for class certification. On Jan. 27, 2005, the company answered the plaintiffs' consolidated complaint. On Jan. 28, 2005, the company and certain individual defendants filed a motion for reconsideration of the court's Jan. 12, 2005 order, insofar as it related to the Tyco International (US) Inc. Retirement Committee. On May 25, 2005, the court denied the motion for reconsideration. On Jul. 11, 2005, the company and certain individual defendants opposed plaintiffs' motion for class certification. The motion is still pending. On Aug. 15, 2006, the court entered an order certifying a class "consisting of all Participants in the Plans for whose individual accounts the Plans purchased and/or held shares of Tyco Stock Fund at any time from Aug. 12, 1998 to July 25, 2002." On Aug. 29, 2006, Tyco filed a petition for leave to appeal the class certification order to the U.S. Court of Appeals for the First Circuit. On Nov. 13, 2006, the court denied Tyco's petition, according to the company's Dec. 11, 2006 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Sept. 29, 2006. The consolidated suit is "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, Mdl-1335, Master Docket No. 1:02-md-01335-PB," filed in the U.S. District Court for the District of New Hampshire under Judge Paul Barbadoro. Representing the ERISA plaintiffs is Kenneth G. Bouchard Bouchard & Kleinman, PA, 1 Merrill Drive, Ste. 6, Hampton, NH 03842-1968, Phone: 603 926-9333, E-mail: kbouchard@bestnhlaw.com. Representing the defendants are: (i) Elizabeth F. Edwards and Bryan A. Fratkin of McGuireWoods, One James Center, 901 East Cary St., Richmond, VA 23219-4030, Phone: 804 775-4390, E-mail: eedwards@mcguirewoods.com and bfratkin@mcguirewoods.com; (ii) Ann M. Galvani of Boies Schiller & Flexner, LLP, 570 Lexington Ave, 16th Flr., New York, NY 10022, Phone: 212 446-2300, E-mail: kmasci@bsfllp.com; (iii) Edward A. Haffer of Sheehan Phinney Bass & Green, 1000 Elm St., PO Box 3701, Manchester, NH 03105, Phone: 603- 668-0300, E-mail: ehaffer@sheehan.com; and (iv) Mitchell Karlan of Gibson Dunn & Crutcher, LLP, (NY), 200 Park Ave., 47th Floor, New York, NY 10166-0193, Phone: 212 351-4000, E-mail: mkarlan@gibsondunn.com. TYCO INT'L: Court Affirms Dismissal of "Ezra" Amended Complaint --------------------------------------------------------------- The U.S. Court of Appeals for the First Circuit affirmed the court's dismissal by the U.S. District Court for the District of New Hampshire of the amended complaint in a consolidated class action against Tyco International, Ltd. On May 28, 2003, a class action complaint, "Ezra Charitable Trust v. Tyco International Ltd.," was filed in the U.S. District Court for the Southern District of Florida. The Judicial Panel on Multidistrict Litigation transferred the action to the U.S. District Court for the District of New Hampshire under the caption, "In Re Tyco International Securities Litigation, 1:02-md-01335-PB." Thereafter, the company moved to dismiss the complaint. On Dec. 22, 2004, plaintiff moved to amend the complaint. The proposed amendment asserts causes of action under Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against: * the company and Edward Breen, its current chief executive officer, and seeks to add as defendants * David FitzPatrick, its former chief financial officer, and * PricewaterhouseCoopers LLP, its former independent auditors. As against defendants Messrs. Breen and FitzPatrick, the complaint asserts a cause of action under Section 20(a) of the Securities Exchange Act of 1934. On Mar. 25, 2005, the U.S. District Court for the District of New Hampshire granted plaintiff's motion to amend. Plaintiff filed an amended complaint that day. On Mar. 28, 2005, the court denied defendants' motion to dismiss the original complaint, without prejudice to the defendants' ability to move against the amended complaint. On Apr. 25, 2005, defendants moved to dismiss the consolidated amended class action complaint. On Sept. 2, 2005, the U.S. District Court for the District of New Hampshire entered a memorandum and Order dismissing the amended complaint. On Oct. 18, 2005, plaintiff filed a notice to appeal in the U.S. District Court for the District of New Hampshire and briefing has begun. On Sept. 27, 2006, the U.S. Court of Appeals for the First Circuit affirmed the court's dismissal of the amended class action complaint. The consolidated suit is "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335, Master Docket No. 1:02-md-01335-PB," filed in the U.S. District Court for the District of New Hampshire under Judge Paul Barbadoro. Representing the plaintiffs is Biron L. Bedard of Cook & Molan, PA, PO Box 1465, Concord, NH 03302-1465, Phone: 603 225-3323, E- mail: blb@cooknmolan.com. Representing the defendants are: (i) Elizabeth F. Edwards and Bryan A. Fratkin of McGuireWoods, One James Center, 901 East Cary St., Richmond, VA 23219-4030, Phone: 804 775-4390, E-mail: eedwards@mcguirewoods.com and bfratkin@mcguirewoods.com; (ii) Ann M. Galvani of Boies Schiller & Flexner, LLP, 570 Lexington Ave, 16th Flr., New York, NY 10022, Phone: 212 446-2300, E-mail: kmasci@bsfllp.com; (iii) Edward A. Haffer of Sheehan Phinney Bass & Green, 1000 Elm St., PO Box 3701, Manchester, NH 03105, Phone: 603- 668-0300, E-mail: ehaffer@sheehan.com; and (iv) Mitchell Karlan of Gibson Dunn & Crutcher, LLP, (NY), 200 Park Ave., 47th Floor, New York, NY 10166-0193, Phone: 212 351-4000, E-mail: mkarlan@gibsondunn.com. TYCO INT'L: Court Denies Appeal on MDL-1335 Class Certification --------------------------------------------------------------- The U.S. Court of Appeals for the First Circuit denied a petition by Tyco International, Ltd. for leave to appeal the class certification order for the consolidated class action under MDL-1335. Initially, the company and certain of its former directors and officers were named as defendants in over 40 securities class actions. The Judicial Panel on Multidistrict Litigation has transferred to the U.S. District Court for the District of New Hampshire most of the securities class actions for coordinated or consolidated pretrial proceedings. On Jan. 28, 2003, the court-appointed lead plaintiffs in the New Hampshire securities actions filed, "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335, Master Docket No. 1:02-md-01335-PB," a consolidated securities class action complaint against the company certain of the company's former directors and officers and its former auditors. The suit was filed in the U.S. District Court for the District of New Hampshire. As to the company and certain of its former directors and officers, the complaint asserts causes of action under Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule10b-5 promulgated thereunder, and Section 14(a) of that Act and Rule 14a-9 promulgated thereunder, as well as Sections 11 and 12(a)(2) of the Securities Act of 1933. Claims against the company's former directors and officers are also asserted under Sections 20(a) and 20A of the U.S. Securities Exchange Act of 1934 and Section 15 of the Securities Act of 1933. The complaint asserts that the Tyco defendants violated the securities laws by making materially false and misleading statements and omissions concerning, among others: -- Tyco's mergers and acquisitions and the accounting therefor, as well as allegedly undisclosed acquisitions; -- misstatements of Tyco's financial results; -- the impact of a new accounting standard (SAB 101, promulgated in 1999) on the company's earnings performance; -- compensation of certain of the company's former executives; -- their improper use of the company's funds for personal benefit and their improper self-dealing real estate transactions; -- their sales of Tyco shares; -- payment of $20 million to one of the company's former directors and a charity of which he is a trustee; and -- the criminal investigation of the company's former chief executive officer. The plaintiffs sought class certification, compensatory damages, rescission, disgorgement and attorneys' fees and expenses. On Mar. 31, 2003, the company made a motion to dismiss the consolidated class action complaint. The other defendants moved to dismiss shortly thereafter. On Oct. 14, 2004, the court granted the company's motion, in part, and denied it in part. The court granted the company's motion to dismiss Count II of the Consolidated Amended Complaint alleging a violation of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder against all defendants. The court denied the company's motion to dismiss Count I alleging a violation of Section10 (b) of the Securities Exchange Act of 1934 and Rule10b-5 promulgated thereunder, as well as Counts V and VI alleging violations of Sections 11 and 12(a)(2) of the Securities Act of 1933. In addition, the court granted former director Michael Ashcroft's motion to dismiss Count I alleging a violation of Section 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, Counts III and IV alleging a violation of Sections 20(a) and 20A of the Securities Exchange Act of 1934, respectively, and Count VII alleging a violation of Section 14 of the Securities Act of 1933. On Jan. 7, 2005, the company answered the plaintiffs' consolidated complaint. On Jan. 14, 2005, lead plaintiffs made a motion for class certification, which the company opposed on Jul. 22, 2005. The motion is still pending. On Jul. 5, 2005, the company moved for revision of the court's Oct. 14, 2004 order in light of a change in law, insofar as the order denied the company's motion to dismiss the consolidated complaint for failure to plead loss causation. On Dec. 2, 2005, the court denied the company's motion. On April 4, 2006 plaintiffs filed a partial motion for summary judgment that was denied without prejudice to its later renewal. On June 12, 2006, the court entered an order certifying a class "consisting of all persons and entities who purchased or otherwise acquired Tyco securities between Dec. 13, 1999 and June 7, 2002, and who were damaged thereby, excluding defendants, all of the officers, directors and partners thereof, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which any of the foregoing have or had a controlling interest." On June 26, 2006, Tyco filed a petition for leave to appeal the class certification order to the U.S. Court of Appeals for the First Circuit. Separately, on Sept. 22, 2006, the U.S. Court of Appeals for the First Circuit denied Tyco's petition. The suit is "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335, Master Docket No. 1:02-md-01335-PB," filed in the U.S. District Court for the District of New Hampshire under Judge Paul Barbadoro. Representing the plaintiffs are: (1) Vicki K. Andreadis of Hughes Hubbard & Reed, One Battery Park Plaza, New York, NY 10004, Phone: 212 837- 6000, E-mail: andreadi@hugheshubbard.com; (2) Francis P. Barron of Cravath Swaine & Moore, LLP, 825 8th Ave., New York, NY 10019-7475, Phone: 212 474-1000, E-mail: fbarron@cravath.com; (3) Gregory A. Blue of Morgenstern Jacobs & Blue, LLC, 885 Third Ave., New York, NY 10022, US, Phone: 212 750- 6776, E-mail: gblue@mjbllc.com; (4) R. Matthew Cairns of Ransmeier & Spellman, PO Box 600, Concord, NH 03302-0600, Phone: 603 228-0477, Fax: 603 224-2780, E-mail: matt@ranspell.com; and (5) William L. Chapman of Orr & Reno, PA, One Eagle Sq., PO Box 3550, Concord, NH 03302-3550, Phone: 603 224-2381, E-mail: wlc@orr-reno.com. Representing the defendants are: (i) Elizabeth F. Edwards and Bryan A. Fratkin of McGuireWoods, One James Center, 901 East Cary St., Richmond, VA 23219-4030, Phone: 804 775-4390, E-mail: eedwards@mcguirewoods.com and bfratkin@mcguirewoods.com; (ii) Ann M. Galvani of Boies Schiller & Flexner, LLP, 570 Lexington Ave, 16th Flr., New York, NY 10022, Phone: 212 446-2300, E-mail: kmasci@bsfllp.com; (iii) Edward A. Haffer of Sheehan Phinney Bass & Green, 1000 Elm St., PO Box 3701, Manchester, NH 03105, Phone: 603- 668-0300, E-mail: ehaffer@sheehan.com; and (iv) Mitchell Karlan of Gibson Dunn & Crutcher, LLP, (NY), 200 Park Ave., 47th Floor, New York, NY 10166-0193, Phone: 212 351-4000, E-mail: mkarlan@gibsondunn.com. TYCO INT'L: N.H. Court Mulls Class Certification for "Newby" ------------------------------------------------------------ The U.S. District Court for the District of New Hampshire has yet to rule on Mark Newby's motion for class certification of the case "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335, Master Docket No. 1:02-md- 01335-PB." Initially, the U.S. District Court for the District of New Jersey granted one plaintiff's motion for appointment as lead plaintiff in "Stumpf v. Tyco International Ltd.," an action originally filed on July 28, 2003 and "O'Loughlin v. Tyco International Ltd.," an action originally filed on Sept. 26, 2003. On Dec. 13, 2004, lead plaintiff Mark Newby filed a consolidated securities class action complaint purporting to represent a class of purchasers of TyCom securities between Jul. 26, 2000 and Dec. 17, 2001. Plaintiff names as defendants the company, TyCom, Ltd., Goldman Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith, Incorporated and Citigroup Inc., (the underwriters) along with certain former company and TyCom executives. The complaint asserts causes of action under Sections 11 and 15 of the Securities Act of 1933 and under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against the company, TyCom, Goldman Sachs, Merrill Lynch, Citigroup and certain former the company and TyCom executives. The complaint alleges the TyCom registration statement and prospectus relating to the sale of TyCom securities were inaccurate, misleading and failed to disclose facts necessary to make the registration statement and prospectus not misleading. Further, the complaint alleges the defendants violated securities laws by making materially false and misleading statements and omissions concerning, among other things, executive compensation, the company's and TyCom's finances and TyCom's business prospects. On Feb. 18, 2005, the company moved to dismiss the consolidated securities class action complaint. On Sept. 2, 2005, the U.S. District Court for the District of New Hampshire granted in part and denied in part the company's motion to dismiss. The court granted the company's motion to dismiss allegations that the TyCom registration statement and prospectus were misleading to the extent that they failed to disclose alleged looting of Tyco by former senior executives, accounting fraud, analyst conflicts and the participation by James Brennan in the offering, because plaintiff failed to plead that those alleged omissions were disclosed during the class period, with a resultant drop in the value of TyCom stock. However, the court denied the company's motion to dismiss with respect to other allegations. On Sept. 19, 2005, plaintiff filed a motion for reconsideration of the court's Sept. 2, 2005 ruling with respect to Goldman Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith, Incorporated and Citigroup Inc. On Jan. 6, 2006, the court held that the Goldman Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith, Incorporated and Citigroup Inc. should remain in the case on the claim concerning TyCom's business prospects, but that the Section 11 claim related to alleged looting of Tyco by former senior executives was dismissed as to both the Tyco defendants and the underwriters because the affirmative defense of lack of loss causation was apparent on the face of the complaint. On Jan. 13, 2006, the company and TyCom answered the consolidated securities class action complaint. On March 8, 2006, the plaintiff filed a motion for class certification which is still pending, according to the company's Dec. 11, 2006 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Sept. 29, 2006. The consolidated suit is "In re Tyco International, Ltd., Securities, Derivative and 'ERISA' Litigation, Mdl-1335, Master Docket No. 1:02-md-01335-PB," filed in the U.S. District Court for the District of New Hampshire under Judge Paul Barbadoro. Representing the plaintiffs are: (1) John F. Harnes, Darren T. Kaplan, Gregory E. Keller, Mary Kathryn King and Jill Asch Levenson of Chitwood Harley Harnes, LLP, 2300 Promenade II, 1230 Peachtree St., Ste 2300, Atlanta, GA 30309, Phone: 404 873-3900, E-mail: jfharnes@chitwoodlaw.com, dkaplan@chitwoodlaw.com, gkeller@chitwoodlaw.com, kking@chitwoodlaw.com and jlevenson@chitwoodlaw.com; (2) Mark L. Mallory of Mallory & Friedman, PLLC, 8 Green St., Concord, NH 03301, Phone: 228-2277, E-mail: mark@malloryandfriedman.com; (3) Renee L. Karalian and Michael A. Schwartz of Wolf Popper, LLP, 845 Third Ave., New York, NY 10022-6601, 212 759-4600, E-mail: rkaralian@wolfpopper.com and mschwartz@wolfpopper.com. Representing the defendants are: (i) Elizabeth F. Edwards and Bryan A. Fratkin of McGuireWoods, One James Center, 901 East Cary St., Richmond, VA 23219-4030, Phone: 804 775-4390, E-mail: eedwards@mcguirewoods.com and bfratkin@mcguirewoods.com; (ii) Ann M. Galvani of Boies Schiller & Flexner, LLP, 570 Lexington Ave, 16th Flr., New York, NY 10022, Phone: 212 446-2300, E-mail: kmasci@bsfllp.com; (iii) Edward A. Haffer of Sheehan Phinney Bass & Green, 1000 Elm St., PO Box 3701, Manchester, NH 03105, Phone: 603- 668-0300, E-mail: ehaffer@sheehan.com; and (iv) Mitchell Karlan of Gibson Dunn & Crutcher, LLP, (NY), 200 Park Ave., 47th Floor, New York, NY 10166-0193, Phone: 212 351-4000, E-mail: mkarlan@gibsondunn.com. TYCO INT'L: Ruling in Ill. Suit Over Mallinckrodt Deal Appealed --------------------------------------------------------------- Plaintiffs in a purported class action relating to the merger between Tyco International, Inc. and Mallinckrodt, Inc., filed a motion to reconsider the denial of their motion for summary judgment in the case. On March 10, 2005, plaintiff Lionel I. Brazen filed an amended class action complaint in the Circuit Court for Cook County, Illinois purporting to represent a class of purchasers who exchanged shares of Mallinckrodt, Inc. common stock for shares of the company's common stock pursuant to the Joint Proxy Statement and Prospectus, and the Registration Statement in which it was included, in connection with the Oct. 17, 2000 merger of the company and Mallinckrodt. Plaintiff names as defendants the company and certain of its former executives and asserts causes of action under Section 11, 12(a)(2) and 15 of the Securities Act of 1933. The amended class action complaint alleges that the defendants made statements in the Registration Statement and the Joint Proxy Statement and Prospectus that were materially false and misleading and failed to disclose material adverse facts regarding the business and operations of the company. On Apr. 21, 2005, the company moved in the Circuit Court for Cook County, Illinois to dismiss or stay or, in the alternative, to strike the class allegations. On Jul. 22, 2005, the court denied the company's motion. Also, on Jul. 22, 2005, the court granted the motion to dismiss individual defendants Michael A. Ashcroft, Joshua M. Berman, Richard S. Bodman, John F. Fort, III, Stephen W. Foss, James S. Pasman Jr., W. Peter Slusser and Frank E. Walsh, Jr. On Aug. 2, 2005, the company filed a motion for a finding pursuant to Supreme Court Rule 308(a), which was denied on Aug. 16, 2005. On Aug. 19, 2005, the company filed an interlocutory appeal of the Circuit Court for Cook County Illinois' July 22, 2005 memorandum and order. On Dec. 27, 2005, the Appellate Court of Illinois, First Judicial District, denied the company's interlocutory appeal. On Jan. 6, 2006, the plaintiff filed a renewed motion for class certification, which was granted. On Jan. 31, 2006, the company filed a petition for leave to appeal the decision of the appellate court, but that petition was denied. On Feb. 14, 2006, the company filed its answer to the complaint. On July 5, 2006, plaintiffs filed a partial motion for summary judgment, which was denied on Nov. 8, 2006. On Nov. 22, 2006, plaintiffs filed a motion to reconsider the denial of their motion for summary judgment. Briefing is ongoing, according to the company's Dec. 11, 2006 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Sept. 29, 2006. VISTEON CORP: $7.6M Mich. ERISA Suit Settlement Gets Initial OK --------------------------------------------------------------- The Honorable Avern Cohn of the U.S. District Court for the Eastern District of Michigan preliminarily approved a $7.6 million settlement of a class action brought under the Employee Retirement Income Security Act against Visteon Corp. The Settlement with Visteon Corp. will provide for payments to the Visteon Investment Plan and the Visteon 401(k) Savings Plan (formerly known as the Visteon Investment Savings Plan for Hourly Employees) and for allocation of those payments to the accounts of members of the Settlement Class who had portions of their Plan accounts invested in Visteon stock. Lead Counsel in the case, Lynn Sarko of Keller Rohrback L.L.P., stated, "This proposed settlement would allow us to immediately restore retirement monies to current and former Visteon employees. If the settlement receives final approval, members of the Settlement Class could see their individual portions of the settlement restored to their retirement accounts as early as the spring of 2007." In March and April 2005, the company and a number of current and former employees, officers and directors were named as defendants in three class actions brought under ERISA in the U.S. District Court for the Eastern District of Michigan. In September 2005, the plaintiffs filed an amended and consolidated complaint, which generally alleges that: the defendants breached their fiduciary duties under ERISA during the class period by among other things: -- continuing to offer the company stock as an investment alternative under the Visteon Investment Plan; -- failing to disclose complete and accurate information regarding the prudence of investing in the Visteon stock; -- failing to monitor the actions of certain of the defendants; and -- failing to avoid conflicts of interest or promptly resolve them. The consolidated complaint was brought on behalf of a named plaintiff and a putative class consisting of all participants or beneficiaries of the Plans whose accounts included Visteon stock at any time from July 20, 2001 through May 25, 2005. In November 2005, the defendants moved to dismiss the consolidated amended complaint on various grounds. The court has scheduled a March 9, 2007 hearing for the final approval of the Settlement at the U.S. District Court, Eastern District of Michigan, Detroit, Michigan 48226. Deadline to file any objections to the settlement is set on Feb. 19, 2007. The suit is "Skiles v. Visteon Corp., et al., Case No. 2:05-cv- 71205-AC-DAS," filed in the U.S. District Court for the Eastern District of Michigan under Judge Avern Cohn with referral to Judge Donald A. Scheer. Representing the plaintiffs are: (1) Gary A. Gotto of Keller Rohrback (Phoenix), 3101 N. Central Avenue, Suite 900, Phoenix, AZ 85012-2600, Phone: 602-248-2822, E-mail: ggotto@kellerrohrback.com; and (2) Elwood S. Simon of Elwood S. Simon Assoc., 355 S. Woodward Avenue, Suite 250, Birmingham, MI 48009, Phone: 248-646-9730, Fax: 248-258-2335, E-mail: esimon@esimon-law.com. Representing the defendants are: (i) Gabor Balassa and Michael A. Duffy of Kirkland & Ellis, Phone: 312-861-2186 and 312-861-2000, Fax: 312-861-2200 and 312-861-2200, E-mail: maduffy@kirkland.com; (ii) Jenice C. Mitchell of Foley & Lardner (Detroit), 500 Woodward Avenue, Suite 2700, Detroit, MI 48226-3489, Phone: 313-234-7100, E-mail: jmitchell@foley.com; and (iii) Paul J. Ondrasik, Jr. of Steptoe & Johnson (Washington), 1330 Connecticut Avenue, N.W. Washington, DC 20036-1795, Phone: 202-429-3000, Fax: 202-429-3902, E-mail: pondrasik@steptoe.com. VITAMIN WORLD: Dismissal of Hormone Supplement Suit Appealed ------------------------------------------------------------ Plaintiffs are appealing the dismissal of all claims in a purported class action that was filed in New York State Court against Vitamin World, Inc., a wholly owned subsidiary of NBTY, Inc. On July 25, 2002, a lawsuit was filed against Vitamin World, alleging that Vitamin World engaged in deceptive trade practices and false advertising with respect to the sale of certain prohormone supplements and that the plaintiffs were therefore entitled to equitable and monetary relief under the New York General Business Law. By a July 18, 2006 Decision and Order, the court granted Vitamin World's motion for summary judgment and dismissed all claims. The plaintiffs have appealed, according to the NBTY, Inc.'s Dec. 11, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. WARRIOR ENERGY: Faces Amended Securities Fraud Suit in Texas ------------------------------------------------------------ Warrior Energy Services Corp. and president Bill Jenkins are defendants in a purported securities fraud class action filed by 22 investors, The Commercial Dispatch reports. The suit was filed two years ago in Harris County, Texas, District Court and revised last month. It was filed by St. James Capital Partners (SJCP) against the company and Charles Underbrink, St. James Capital Corp., KPMG LLP, and St. James Merchant Bankers. A November filing to amend the suit does not name KPMG. SJCP intervened to also claim wrongdoings by Messrs. Underbrink, Jenkins and the others. Plaintiffs include investors from Texas, California, Colorado, Wisconsin, Minnesota, Michigan, Illinois and Florida. They allege that defendants sold stock in Warrior Energy at "a price depressed by the self-dealing, fraud and breaches of fiduciary duties" of executives. The defendants allegedly misrepresented what they did in selling the stock and omitted information related to the sale. They also failed to pursue alternative financing that would have retired Warrior Energy's debt to benefit its shareholders. The suit also claims that defendants made financial decisions concerning Warrior Energy's debts that should've been put to a vote by shareholders. Plaintiffs in the suit are seeking to recover losses in investments. The case awaits a 2007 trial. New Securities Fraud Cases ATRICURE INC: Lerach Coughlin Files Stock Fraud Suit in N.Y. ------------------------------------------------------------ Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, filed a class action in the U.S. District Court for the Southern District of New York on behalf of those who purchased the common stock of AtriCure, Inc. pursuant and/or traceable to the company's initial public offering on or about Aug. 4, 2005 through Feb. 16, 2006. The suit seeks to pursue remedies under the U.S. Securities Act of 1933. This action concerns the initial public offering of AtriCure common stock, which took place on or about Aug. 4, 2005. The complaint charges AtriCure and certain of its officers and directors with violations of the Securities Act. AtriCure is a medical device company that engages in the development, manufacture, and sale of surgical devices designed to create precise lesions, or scars, in cardiac and soft tissues. The complaint alleges that the Registration Statement and Prospectus issued in connection with the company's IPO contained inaccurate statements of material fact because they failed to disclose that the Cleveland Clinic, where a significant portion of procedures that used the company's products were being performed, was an investor in the company and that doctors from the Cleveland Clinic had been paid consultants to the company. On Feb. 16, 2006, AtriCure issued a press release announcing its financial results for the fourth quarter of 2005 and the fiscal year ended Dec. 31, 2005 and disclosed, among other things, that the company was experiencing a "negative impact" on its business due to the revelations concerning the Cleveland Clinic. In response to this announcement the price of AtriCure common stock dropped from $10.36 per share to $8.04 per share on extremely heavy trading volume. For more details, contact Samuel H. Rudman or David A. Rosenfeld of Lerach Coughlin, Phone: 800/449-4900 or 619/231-1058, E-mail: wsl@lerachlaw.com, Web site: http://www.lerachlaw.com/cases/atricure/. ATRICURE INC: Schiffrin & Barroway Files Securities Suit in N.Y. ---------------------------------------------------------------- The law firm of Schiffrin & Barroway, LLP, filed a class action in the U.S. District Court for the Southern District of New York on behalf of all common stock purchasers of AtriCure, Inc. pursuant and/or traceable to the company's initial public offering on or about Aug. 4, 2005 through Feb. 16, 2006, inclusive. The complaint charges AtriCure and certain of its officers and directors with violations of the Securities Act of 1933. More specifically, the complaint alleges that AtriCure's Registration Statement and Prospectus issued in connection with the company's initial public offering on or about Aug. 4, 2005 failed to disclose that the Cleveland Clinic, where a significant portion of procedures with the company's products were being performed, was an investor in the company and that doctors from the Cleveland Clinic had been paid consultants to the company. On Feb. 16, 2006, AtriCure announced financial results for the fourth quarter of 2005 and the fiscal year ended Dec. 31, 2005. Among other things, the company reported that it was experiencing a "negative impact" on its business due to the revelations concerning the Cleveland Clinic. In response to this announcement, the price of AtriCure common stock dropped from $10.36 per share to $8.04 per share on extremely heavy trading volume. Plaintiffs may move the court not later than Feb. 9, 2007, for appointment as lead plaintiff of the class. For more details, contact Darren J. Check, Esq. or Richard A. Maniskas, Esq. of Schiffrin & Barroway, LLP, Phone: 1-888-299- 7706 or 1-610-667-7706, E-mail: info@sbclasslaw.com, Web site: http://www.sbclasslaw.com. TOP TANKERS: Howard G. Smith Announces Securities Suit Filing ------------------------------------------------------------- The Law Offices of Howard G. Smith announces that a securities class action has been filed on behalf of shareholders who purchased the common stock of TOP Tankers, Inc. between June 28, 2005 and Nov. 28, 2006, inclusive. The class action was filed in the U.S. District Court for the Southern District of New York. The complaint alleges that defendants violated federal securities laws by issuing material misrepresentations to the market concerning the company's business and financial performance, thereby artificially inflating the price of TOP Tankers securities. No class has yet been certified in the above action. Plaintiffs may move the court not later than Feb. 9, 2007, for appointment as lead plaintiff of the class. For more details, contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020, Phone: (215) 638-4847 or (888) 638-4847, E-mail: howardsmithlaw@hotmail.com, Web site: http://www.howardsmithlaw.com. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. 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