/raid1/www/Hosts/bankrupt/CAR_Public/070111.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 11, 2007, Vol. 9, No. 8
Headlines
ALFA CORP: No Class Yet in Suits Against Property Casualty Firms
ASTRAZENECA PHARMACEUTICALS: Faces Wage, Hour Lawsuit in Calif.
AXT INC: Still Faces Amended Securities Fraud Suit in Calif.
BAY CAPITAL: Faces Litigation in Mo. for Alleged FCRA Violations
BSQUARE CORP: Awaits Approval of N.Y. IPO Suit Settlement
CALIFORNIA: Cities Sued Over Disabled People's Access to Roads
CINTAS CORP: Still Faces Consolidated Sex, Racial Bias Lawsuit
CITIZENS INC: Tex. Supreme Court Mulls Appeal in Insurance Suit
DRUGSTORE.COM INC: Awaits Approval of N.Y. IPO Suit Settlement
ENTERGY NEW ORLEANS: Plaintiffs Want Rehearing Request Denied
EQUITY BROADCASTING: Suit Over Merger in Pre-Discovery Phase
FAMILY DOLLAR: Recalls Swinging Ceramic Heaters for Fire Hazard
FEDERAL-MOGUL: Court Sustains Objection on Hill School's Claim
HOUSTON EXPLORATION: Suit Over JANA Offer Now a Derivative Claim
JOHNSON & JOHNSON: Faces N.J. Pharma Rep Suit for Overtime Wages
MANNATECH INC: Enters Mediation for N.Mex. Securities Fraud Suit
MICRON TECHNOLOGY: Reaches Settlement in DRAM Antitrust Suit
MODELING AGENCIES: Appeals Court Vacates 2003 Settlement Order
NATIONAL PHYSICIANS: Served With TCPA Violations Suit in Ohio
NORDSTROM INC: Appeal on "Azizian" Settlement Yet to be Argued
NORTEL NETWORKS: Settles Shareholders Suit Over Bonus Program
RHODE ISLAND: Lawsuit Accuses State Police of Racial Profiling
SAMARA BROS: Recalls Kids Overalls on Snaps' High Lead Content
SOUTHERN STAR: Kans. Court Mulls Motions in "Price" Litigation
SOUTHERN STAR: Kans. Court Mulls Motions in "Price II" Lawsuit
THOMAS WEISEL: Court Denies Dismissal Motion in Friedman's Suit
THOMAS WEISEL: Court Reverses Nixing of First Horizon Stock Suit
THOMAS WEISEL: Discovery Proceeds in AirGate Securities Suit
THOMAS WEISEL: Plaintiffs Appeal Dismissal of Merix Stock Suit
THOMAS WEISEL: Nixing of Leadis Securities Fraud Suit Appealed
THOMAS WEISEL: Faces Calif. Securities Suit Over Intermix Sale
THOMAS WEISEL: Faces Securities Suit in N.J. Over Vonage IPO
THOMAS WEISEL: Faces Stock Suit in Calif. Over SeraCare Offering
TRIPLE-S INC: Mediation Ordered in Physicians' Lawsuit in Fla.
TRIPLE-S INC: Mediation Ordered in "Solomon" Litigation in Fla.
TRIPLE-S MANAGEMENT: "Sanchez" Plaintiff's Appeal Still Pending
UNITED STATES: Peanuts Farmers Get $30M for Insurance Losses
VITRIA TECHNOLOGY: N.Y. Court Mulls Final OK for IPO Suit Deal
WR GRACE: Wants Court to Reject Speights & Runyanss Requests
XERIUM TECHNOLOGIES: Still Faces Securities Fraud Suit in Mass.
*********
ALFA CORP: No Class Yet in Suits Against Property Casualty Firms
----------------------------------------------------------------
Alfa Builders, Inc. and Alfa Mutual Fire Insurance Co. remain
defendants in a purported class action, according to Alfa
Corp.'s form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
Additionally, two purported class actions are pending against
the property casualty companies involving a number of issues and
allegations which could affect the company because of a pooling
agreement between the companies. No class has been certified in
any of these three purported class action cases.
ASTRAZENECA PHARMACEUTICALS: Faces Wage, Hour Lawsuit in Calif.
---------------------------------------------------------------
Astrazeneca Pharmaceuticals LP faces a purported class action
filed in Superior court of the State of California for the
County of Los Angeles by one former employee seeking back pay.
The suit, filed by Mark Brody, alleges violation of federal and
state wage and hour laws and charges the drug company of:
-- failure to pay overtime;
-- failure to provide required meal break under Labor Code
Section 226.7;
-- penalties pursuant to Labor Code Section 203; and
-- violation of Business and Professions Code Section
17200.
Plaintiff alleges, that as a sales representative, he was
regularly required to:
-- work 8 hours per day or 40 hours per week without being
provided premium overtime pay rates; and
-- work in excess of five hours per day without being
provided a meal period and not being compensated one
hour of pay at the regular rate of compensation for each
workday that a meal period was not provided or provided
after five hours, all in violation of California labor
laws, regulations, and Industrial Welfare Commission
Wage Orders.
Plaintiff brings this action on behalf of himself and all
persons, similarly situated, and who are employed or have been
employed as "sales representatives" by defendants in the State
of California and for at least four years prior to the filing of
this action.
There are questions of law and fact common to the proposed class
that predominate over any questions of law and fact include
without limitation:
(a) whether defendants failed to pay overtime compensation
as required by the Labor Code and Wage Orders;
(b) whether defendants violated Labor Code Sections 226.7
and 512, IWC Wage Order 4-2001 or other applicable IWC
Wage Orders, by failing to provide meal periods on days
they worked in excess of five hours and failing to
compensate said employees one hours wages in lieu of
meal periods;
(c) whether defendants violated Sections 201-203 of the
Labor Code by failing to pay compensations due and
owing at the time that any proposed class member's
employment with defendants terminated;
(d) whether defendants violated Section 17200 et seq. of
the Business & Professions Code by failing to provide
overtime wages and meal period compensation to "sales
representatives"; and
(e) whether plaintiff and the members of the proposed class
are entitled to equitable relief pursuant to Business &
Profession Code Section 17200, et. seq.
Plaintiff prays for the following relief:
-- for overtime in an amount according to proof, with
interest thereon;
-- for compensatory damages in the amount of plaintiff's
and each class members' hourly wage for each meal period
missed or taken late from at least 4 years prior to the
filing of this action to the present as may be proven;
-- for restitution of the expenses incurred on behalf of
defendants;
-- for penalties pursuant to Labor Code Section 203 for all
employees who quit or were fired equal to their daily
wage times 30 days;
-- an award of prejudgment and post judgment interest;
-- an order enjoining defendant and its agents, servants,
and employees, and all persons acting under, in concert
with, or for it from providing plaintiff and each class
member with proper overtime compensation and meal breaks
pursuant to Labor Code Sections 226.7, 512, and IWC 4-
2001;
-- for restitution for unfair competition pursuant to
Business & Professions Code Section17200, including
disgorgement or profits, in an amount as may be proven;
-- an award providing for payment of costs of suit;
-- an award of attorneys' fees; and
-- such other and further relief as the court mat deem
proper and just.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?184e
The suit is "Brody et al. v. Astrazeneca Pharmacueticals et al.
Case No. BC358803," filed in the Superior court of the State of
California for the County of Los Angeles.
Representing the plaintiffs is George R. Kingsley, Eric B.
Kingsley and Darren M. Cohen all of Kingsley & Kingsley, APC,
16133 Ventura Blvd., Suite 1200, Encino, CA 91436, Phone: (818)
990-8300, Fax: (818) 990-2903.
AXT INC: Still Faces Amended Securities Fraud Suit in Calif.
------------------------------------------------------------
AXT Inc. continues to face an amended consolidated securities
fraud class action in the U.S. District Court for the Northern
District of California.
On Oct. 15, 2004, a purported securities class action, "City of
Harper Woods Employees Retirement System v. AXT, Inc., et al.,
No. C04 4362 MJJ," was filed in the U.S. Court for the Northern
District of California. The court consolidated the case with a
subsequent related case and appointed a lead plaintiff.
On April 5, 2005, the lead plaintiff filed a consolidated
complaint, "Morgan v. AXT, Inc. et al., No. C 04 4362 MJJ." The
complaint names the company and its chief technology officer, as
defendants, and is brought on behalf of a class of all
purchasers of its securities from Feb. 6, 2001 to April 27,
2004.
The complaint alleges that the company announced financial
results during this period that were false and misleading. No
specific amount of damages is claimed.
On Sept. 23, 2005, the court granted the company's motion to
dismiss the complaint, with leave to amend. Lead plaintiff
filed an amended complaint, which the company moved to dismiss.
The company reported no development on the case at its form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2006.
The suit is "Thomas O. Morgan, et al. v. AXT, Inc. et al., Case
No. 3:04-cv-04362-MJJ," filed in the U.S. District Court for the
Northern District of California under Judge Martin J. Jenkins.
Representing the plaintiffs are:
(1) Peter A. Binkow and Lionel Z. Glancy 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: info@glancylaw.com; and
(2) Elizabeth P. Lin, Milberg Weiss Bershad & Schulman LLP,
355 South Grand Ave., Suite 4170, Los Angeles, CA
90071, Phone: 213-617-1200, Fax: 213-617-1975, E-mail:
elin@milbergweiss.com.
Representing the defendants are David Banie and David Priebe of
DLA Piper Rudnick Gray Cary U.S. LLP, 2000 University Avenue,
East Palo Alto, CA 94303, Phone: 650-833-2000, Fax: 650-833-
2001, E-mail: david.banie@dlapiper.com and
david.priebe@dlapiper.com.
BAY CAPITAL: Faces Litigation in Mo. for Alleged FCRA Violations
----------------------------------------------------------------
Bay Capital Corp., a company acquired by Clear Choice Financial,
Inc., was named defendant in a purported class action filed in
U.S. District Court for the Eastern District of Missouri,
alleging violations of the Fair Credit Reporting Act.
On Sept. 1, 2006, Clear choice was notified of a class action
complaint filed, naming Bay Capital, as the defendant. The
complaint asserts Bay Capital violated FCRA by mailing a
promotional letter to a resident in the state of Missouri. The
claim for damages is estimated at $1,000.
The suit is "Klutho v. Bay Capital Corp., Case No. 4:06-cv-
01316-HEA," filed in the U.S. District Court for the Eastern
District of Missouri under Judge Henry E. Autrey.
Representing the plaintiffs are David T. Butsch and James J.
Simeri of Green & Jacobson, 7733 Forsyth Boulevard, Suite 700,
St. Louis, MO 63105, Phone: 314-862-6800, Fax: 314-862-1606, E-
mail: butsch@stlouislaw.com and simeri@stlouislaw.com.
BSQUARE CORP: Awaits Approval of N.Y. IPO Suit Settlement
---------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to issue an order with respect to the final approval of
the settlement of a consolidated securities class action filed
against BSQUARE Corp.
In 2001, four purported shareholder class actions were filed in
the U.S. District Court for the Southern District of New York
against the company, certain of its current and former officers
and directors, and the underwriters of its initial public
offering.
The suits purport to be class actions filed on behalf of
purchasers of the company's common stock during the period from
Oct. 19, 1999 to Dec. 6, 2000.
The complaints against the company have been consolidated into a
single action and a Consolidated Amended Complaint, which was
filed on April 19, 2002 and is now the operative complaint.
Plaintiffs allege that the underwriter defendants agreed to
allocate stock in the company's initial public offering to
certain investors in exchange for excessive and undisclosed
commissions and agreements by those investors to make additional
purchases of stock in the aftermarket at pre-determined prices.
Plaintiffs allege that the prospectus for the company's initial
public offering was false and misleading in violation of the
securities laws because it did not disclose these arrangements.
The action seeks damages in an unspecified amount.
The action is being coordinated with approximately 300 other
nearly identical actions filed against other companies. On July
15, 2002, the company moved to dismiss all claims against it and
the Individual Defendants.
On Oct. 9, 2002, the court dismissed the individual defendants
from the case without prejudice based upon stipulations of
dismissal filed by the plaintiffs and the individual defendants.
On Feb. 19, 2003, the court denied the motion to dismiss the
complaint against the company. On Oct. 13, 2004, the Court
certified a class in six of the approximately 300 other nearly
identical actions and noted that the decision is intended to
provide strong guidance to all parties regarding class
certification in the remaining cases.
The Underwriter Defendants sought leave to appeal this decision
and the Second Circuit has accepted the appeal. Plaintiffs have
not yet moved to certify a class in the company's case.
The company has approved a settlement agreement and related
agreements, which set forth the terms of a settlement between
the company, the individual defendants, the plaintiff class and
the vast majority of the other approximately 300-issuer
defendants.
Among other provisions, the settlement provides for a release of
the company and the Individual Defendants for the conduct
alleged in the action to be wrongful.
The company would agree to undertake certain responsibilities,
including agreeing to assign away, not assert, or release
certain potential claims the company may have against its
underwriters.
The settlement agreement also provides a guaranteed recovery of
$1 billion to plaintiffs for the cases relating to all of the
approximately 300 issuers.
To the extent that the underwriter defendants settle all of the
cases for at least $1 billion, no payment will be required under
the issuers' settlement agreement.
However, if it is finally approved, then the maximum amount that
the issuers' insurers will be potentially liable for is $575
million.
To the extent that the underwriter defendants settle for less
than $1 billion, the issuers are required to make up the
difference.
On Feb. 15, 2005, the court granted preliminary approval of the
settlement agreement, subject to certain modifications
consistent with its opinion. Those modifications have been
made.
On March 20, 2006, the Underwriter Defendants submitted
objections to the settlement to the Court. The court held a
hearing regarding these and other objections to the settlement
at a fairness hearing on April 24, 2006, but it has not yet
issued a ruling, according to the company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30, 2006.
For more details, visit http://www.iposecuritieslitigation.com/.
CALIFORNIA: Cities Sued Over Disabled People's Access to Roads
--------------------------------------------------------------
George Louie and Linda Pedroni filed a purported class action in
California's Napa Superior Court, alleging violations of the
state laws in relation to disability access, The Napa Valley
Register reports.
Filed on Jan. 5, 2007, the suit was filed against every Napa
Valley city. It is alleging that cracked sidewalks and curbs
with no ramps violate state law by hampering disabled people
dependent on wheelchairs, walkers and motorized scooters.
According to Morse Mehrban, Mr. Louie's Los Angeles-based
attorney, similar lawsuits were filed also against other Bay
Area locales last week. This included the city and county of
San Francisco, the cities and county of Alameda, Contra Costa
and Santa Clara.
In addition, Mr. Mehrban pointed out that other suits have been
filed in Southern California, including the city and county of
Los Angeles and the city of Inglewood.
For more details, contact Morse Mehrban of Morse Mehrban Law
Offices, 609 S. Westmoreland Ave., 2nd Fl., Los Angeles, CA
90005, Phone: 213-382-3821.
CINTAS CORP: Still Faces Consolidated Sex, Racial Bias Lawsuit
--------------------------------------------------------------
Cintas Corp. remains a defendant in consolidated class action in
the U.S. District Court for the Eastern District of Michigan,
alleging both racial and sex discrimination in promoting
employees, according to the company's Jan. 4, 2007 form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Nov. 30, 2006.
The purported class action, "Mirna E. Serrano, et al. v. Cintas
Corp.," was filed on May 10, 2004 in the U.S. District Court for
the Eastern District of Michigan.
"Serrano" alleges that Cintas discriminated against women in
hiring into various Service Sales Representative (SSR) positions
across all divisions of Cintas throughout the U.S.
On Nov. 15, 2005, the Equal Employment Opportunity Commission
EEOC intervened in the Serrano lawsuit. The Serrano plaintiffs
seek injunctive relief, compensatory damages, punitive damages,
attorneys' fees and other remedies.
"Avalos" Lawsuit
Cintas is a defendant in another purported class action, "Nelly
Blanca Avalos, et al. v. Cintas Corp.," currently pending in the
U.S. District Court for the Eastern District of Michigan.
"Avalos" alleges that Cintas discriminated against women,
African-Americans and Hispanics in hiring into various SSR
positions in Cintas' Rental division only throughout the U.S.
On April 27, 2005, the EEOC intervened in the claims asserted in
"Avalos." The Avalos plaintiffs seek injunctive relief,
compensatory damages, punitive damages, attorneys' fees and
other remedies.
Claims in "Avalos" originally were brought in the previously
disclosed lawsuit captioned, "Robert Ramirez, et al. v. Cintas
Corp., filed on Jan. 20, 2004, in the U.S. District Court for
the Northern District of California.
On May 11, 2006, however, those claims were severed from Ramirez
and transferred to the Eastern District of Michigan, where the
case was re-named "Avalos."
On July 10, 2006, "Avalos" and "Serrano" were consolidated for
all pretrial purposes, including proceedings on class
certification.
The consolidated case is known as "Mirna E. Serrano/Blanca Nelly
Avalos, et al. v. Cintas Corp.," and remains pending in the U.S.
District Court for the Eastern District of Michigan.
No filings or determinations have been made in "Serrano/Avalos"
as to class certification.
CITIZENS INC: Tex. Supreme Court Mulls Appeal in Insurance Suit
---------------------------------------------------------------
The Texas Supreme Court has yet to issue a ruling in an appeal
on the certification of the suit "Citizens Insurance Co. of
America, Citizens, Inc., Harold E. Riley and Mark A. Oliver,
Petitioners v. Fernando Hakim Daccach, Respondent."
The suit has been certified as a class action by the Texas
District Court, Austin, Texas, and affirmed by the Court of
Appeals for the Third District of Texas, relating to the
original action filed in 1999.
The company appealed the grant of class status to the Texas
Supreme Court, with oral arguments occurring on Oct. 21, 2004.
It has not yet received a decision from the Texas Supreme Court,
according to the company's form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30.
The suit names as a class all non-U.S. residents who purchased
insurance policies or made premium payments since August 1996
and assigned policy dividends to two non-U.S. trusts for the
purchase of the company's class A common stock.
It alleges that company's life insurance policies made available
to these non-U.S. residents, when combined with a policy feature
that allows policy dividends to be assigned to the trusts for
the purpose of accumulating ownership of the company's Class A
common stock, along with allowing the policyholders to make
additional contributions to the trusts, were actually offers and
sales of securities that occurred in Texas by unregistered
dealers in violation of Texas securities laws. The remedy
sought is rescission and return of the insurance premium
payments.
DRUGSTORE.COM INC: Awaits Approval of N.Y. IPO Suit Settlement
--------------------------------------------------------------
Drugstore.com, Inc. is awaiting final approval of the settlement
of the consolidated securities class action filed against it in
the U.S. District Court for the Southern District of New York.
On and after July 6, 2001, eight stockholder class actions were
filed in the U.S. District Court for the Southern District of
New York naming drugstore.com as a defendant, along with the
underwriters and certain of the company's present and former
officers and directors, in connection with the company's July
27, 1999 initial public offering and March 15, 2000 secondary
offering.
The complaints against drugstore.com have been consolidated into
a single action and a Consolidated Amended Complaint, which is
now the operative complaint, was filed on April 19, 2002. The
suit purports to be a class action filed on behalf of purchasers
of the company's common stock during the period July 28, 1999 to
Dec. 6, 2000.
In general, the complaint alleges that the prospectuses through
which the company conducted the Offerings were materially false
and misleading for failure to disclose, among other things,
that:
-- the underwriters of the Offerings allegedly had
solicited and received excessive and undisclosed
commissions from certain investors in exchange for which
the underwriters allocated to those investors material
portions of the restricted number of shares issued in
connection with the Offerings; and
-- the underwriters allegedly entered into agreements with
customers whereby the underwriters agreed to allocate
drugstore.com shares to customers in the Offerings in
exchange for which customers agreed to purchase
additional drugstore.com shares in the after-market at
predetermined prices.
The complaint asserts violations of various sections of the U.S.
Securities Act of 1933, as amended, and the U.S. Securities
Exchange Act of 1934, as amended. The action seeks damages in
an unspecified amount and other relief. The action is being
coordinated with approximately 300 other nearly identical
actions filed against other companies or their former officers
and directors.
On July 15, 2002, the company moved to dismiss all claims
against the company and the individual defendants. On Oct. 9,
2002, the Court dismissed the Individual Defendants from the
case without prejudice based on stipulations of dismissal filed
by the plaintiffs and the Individual Defendants.
On Feb. 19, 2003, the Court denied the motion to dismiss the
complaint against drugstore.com. On Oct. 13, 2004, the Court
certified a class in nine of the approximately 300 other nearly
identical actions and noted that the decision is intended to
provide strong guidance to all parties regarding class
certification in the remaining cases. Plaintiffs have not yet
moved to certify a class in the company's case.
The company has approved a settlement agreement and related
agreements, which set forth the terms of a settlement between
drugstore.com, the plaintiff class and the vast majority of the
other issuer defendants or, in the case of bankrupt issuers,
their directors and officers. Among other provisions, the
settlement agreement provides for a release of drugstore.com and
the Individual Defendants for the conduct alleged in the action
to be wrongful.
The company said it would agree to undertake certain
responsibilities, including agreeing to assign away, not assert,
or release certain potential claims the company may have against
the company's underwriters. The settlement agreement also
provides a guaranteed recovery of $1 billion to the plaintiffs
for the cases relating to all of the approximately 300 issuers.
To the extent that the underwriter defendants settle all of the
cases for at least $1 billion, no payment will be required under
the issuers' settlement agreement. To the extent that the
underwriter defendants settle for less than $1 billion, the
issuers are required to make up the difference. The company
anticipate that any potential financial obligation of
drugstore.com to the plaintiffs pursuant to the terms of the
settlement agreement and related agreements will be covered by
existing insurance, and the company have already satisfied the
company's deductible.
On Feb. 15, 2005, the Court granted preliminary approval of the
settlement agreement, subject to certain modifications
consistent with its opinion. These modifications have been
made.
The company reported no development on the case at its form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Oct. 1, 2006.
ENTERGY NEW ORLEANS: Plaintiffs Want Rehearing Request Denied
-------------------------------------------------------------
The Gordon and Lowenburg Plaintiffs ask the U.S. Bankruptcy
Court for the Eastern District of Louisiana to deny Entergy New
Orleans, Inc.'s request for a rehearing or clarification on the
Court's reasons behind a Oct. 13, 2006 order that partially
granted the company's request for summary judgment on the
Motions for Class Certification filed by the Gordon and
Lowenburg Plaintiffs.
The Plaintiffs include Reverend C.S. Gordon, Jr., on behalf of
the New Zion Baptist Church, J. Michael Malek, Darryl Malec-
Wiley, Willie Webb, Jr., Masison St. Charles LLC, dba Quality
Inn Maison St. Charles; and Thomas P. Lowenburg, Martin Adamo,
Vern Baxter, Philip D. Carter, Bernard Gordon, Leonard Levine,
Ivory S. Madison and Donetta Dunn Miller.
Luke F. Piontek, Esq., at Roedel, Parsons, Koch, Blache, Balhoff
& McCollister, in Baton Rouge, Louisiana, says that because ENOI
lacks standing to appeal, it also lacks standing to request a
rehearing on the reasons for the Court's judgment.
According to Mr. Piontek, a prevailing party cannot complain
about the reasons for a ruling in its favor, because it is not
"aggrieved" by the favorable judgment.
ENOI, as the prevailing party, lacks standing to attack the
reasons for judgment and its request is not the proper stuff of
motions for rehearing or to alter or amend the judgment, Mr.
Piontek maintains.
He says that it is a bedrock principle that the law affords
remedy only to those who have been aggrieved, which is not
applicable in ENOI's situation since the Court's ruling was not
against it.
ENOI cannot appeal the fact that the reasons it prevailed on the
motions for summary judgment were different that it would have
preferred, therefore it cannot request a rehearing or
modification of the Court's order, and ENOI lacks standing to
challenge the Court's ruling, Mr. Piontek reiterates.
If the Court finds that ENOI has standing to request an
alteration or amendment of an order in its favor because it is
disgruntled with the reasons for the judgment, Mr. Piontek says
the Court should still deny the request for rehearing because
ENOI has failed to meet the test required to justify an
alteration or amendment of a Court order pursuant to Rule 59(c)
of the Federal Rules of Bankruptcy Procedure.
Mr. Piontek says that the three categories must exist if a Court
will consider the alteration or amendment of a prior order:
(i) if there are manifest errors of law or fact that must be
corrected to prevent manifest injustice;
(ii) if new evidence bearing on the order has been discovered
since the order was rendered; or
(iii) if there has been intervening change of controlling law.
He asserts that the Court should deny ENOI's request for a
rehearing because ENOI has not shown any manifest error of fact
or law by the Court nor cited any newly discovered evidence, and
it has not set forth any reason for the Court to modify its
order.
Headquartered in Baton Rouge, Louisiana, Entergy New Orleans
Inc. -- http://www.entergy-neworleans.com/-- is a wholly owned
subsidiary of Entergy Corp. Entergy New Orleans provides
electric and natural gas service to approximately 190,000
electric and 147,000 gas customers within the city of New
Orleans. Entergy New Orleans is the smallest of Entergy Corp.'s
five utility companies and represents about 7% of the
consolidated revenues and 3% of its consolidated earnings in
2004. Neither Entergy Corp. nor any of Entergy's other utility
and non-utility subsidiaries were included in Entergy New
Orleans' bankruptcy filing. Entergy New Orleans filed for
chapter 11 protection on Sept. 23, 2005 (Bankr. E.D. La. Case
No. 05-17697) (Entergy New Orleans Bankruptcy News, Issue No.
28; Bankruptcy Creditors' Service, Inc.,
http://bankrupt.com/newsstand/or 215/945-7000).
EQUITY BROADCASTING: Suit Over Merger in Pre-Discovery Phase
------------------------------------------------------------
The purported class action against Equity Broadcasting Corp. and
each member of its board of directors in relation to the merger
agreement between the company and Coconut Palm Acquisition Corp.
is now in the pre-discovery phase.
On April 7, 2006, Coconut Palm entered into an Agreement and
Plan of Merger with Equity Broadcasting, and certain Equity
Broadcasting shareholders, pursuant to which Equity Broadcasting
will merge with and into Coconut Palm with it remaining as the
surviving corporation.
On June 14, 2006, Max Bobbitt, an Equity Broadcasting
shareholder filed the suit in the Circuit Court of Pulaski
County, Arkansas. It seeks to represent all shareholders in the
class, provided the court certifies the class.
The complaint makes various allegations against Equity
Broadcasting and its board with respect to the merger and other
matters.
In addition to requesting unspecified compensatory damages, the
plaintiff also requested injunctive relief to enjoin Equity
Broadcasting annual shareholder meeting and the vote.
An injunction hearing was not held before the Equity
Broadcasting annual meeting regarding the merger so the meeting
and shareholder vote proceeded as planned and the Equity
Broadcasting shareholders approved the merger.
On Aug. 9, 2006, Equity Broadcasting's motion to dismiss the
lawsuit was denied. The matter is in the pre-discovery phase.
FAMILY DOLLAR: Recalls Swinging Ceramic Heaters for Fire Hazard
---------------------------------------------------------------
Family Dollar Stores, of Charlotte, North Carolina, in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 35,000 -- with 17,000 already distributed to
consumers -- oscillating ceramic heaters.
The company said the heaters can overheat and smoke, which could
pose a fire hazard to consumers.
Family Dollar has received three reports of the heaters
overheating or smoking. There are no reports of fires and two
reports of minor property damage.
The recalled heater is a 1500-watt oscillating ceramic heater.
The heater has a white plastic housing with the name "Heat-Wave"
in black on its top. A label on the product contains the
control number "ETL 3090262."
The recalled oscillating ceramic heaters were manufactured in
China and are being sold at Family Dollar stores nationwide from
September 2006 through November 2006 for about $20.
Pictures of recalled oscillating ceramic heaters:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07076a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07076b.jpg
Consumers are advised to immediately stop using the heaters and
return them to a Family Dollar store for a full refund.
For additional information, contact Family Dollar at (800) 547-
0359 between 8:30 a.m. and 5 p.m. ET Monday through Friday, or
visit: http://www.familydollar.com.
FEDERAL-MOGUL: Court Sustains Objection on Hill School's Claim
--------------------------------------------------------------
The U.S. Bankruptcy Court for the District of Delaware sustained
the objection of Federal-Mogul Corp. and its debtor affiliates
to the Hill School's Claim No. 4708 because its underlying
claims against T&N Limited were fully settled and released as a
result of the T&N National Schools Settlement Agreement.
The Hill School, a private high school in Pottstown,
Pennsylvania, was a member of a certified national class action,
through which certain claims were fully settled against T&N
Limited.
The National Schools Class Action was filed in the U.S. District
Court for the Eastern District of Pennsylvania in 1983 on behalf
of a purported class comprised of all public and private
elementary and secondary schools in the U.S. asserting presence
of asbestos-containing material on their properties. The
Pennsylvania District Court certified the Class as an opt-out
class in 1984, and the certification was upheld by the U.S.
Court of Appeals for the Third Circuit in 1986.
The Hill School did not opt out of the class.
In 1991, T&N and certain duly authorized class representatives
agreed to settle the National Schools Class Action for
$3,000,000. The Pennsylvania District Court subsequently
approved the agreement, which provided T&N with a general
release of all claims relating to asbestos-related property
damage.
On Aug. 16, 2006, the Debtors sent a letter to Timothy D.
Forester to express their position that The Hill School's Claim
No. 4708 should be disallowed because its underlying claims had
been released pursuant to the T&N National Schools Settlement
Agreement. The Debtors asked whether The Hill School disagreed
with their position with respect to Claim No. 4708, and advised
the claimant to submit evidence, if any, that it did not opt out
of T&N's settlement in the National Schools Class Action.
Having received no response to the letter, the Debtors' counsel
contacted Mr. Forester on Sept. 14, 2006, and was informed that
Mr. Forester had received the Debtors' letter and that he had no
information on the National Schools Class Action or about
whether or not The Hill School had opted out of the Class.
The Debtors believe that The Hill School is deemed to have
constructively released all Claims against T&N and Federal-
Mogul, including, but not limited to, Claim No. 4708.
Furthermore, the Debtors note that the Hill School was not
listed anywhere on the official Opt-Out List for the National
Schools Class Action. The Hill School, by failing to opt out of
the Class, was bound by the terms and conditions of the T&N
National Schools Settlement Agreement.
Headquartered in Southfield, Michigan, Federal-Mogul Corp.
-- http://www.federal-mogul.com/-- is an automotive parts
company with worldwide revenue of some $6 billion. The company
filed for chapter 11 protection on Oct. 1, 2001 (Bankr. Del.
Case No. 01-10582) (Federal-Mogul Bankruptcy News, Issue No.
117; Bankruptcy Creditors' Service Inc.,
http://bankrupt.com/newsstand/or 215/945-7000)
HOUSTON EXPLORATION: Suit Over JANA Offer Now a Derivative Claim
----------------------------------------------------------------
The City of Monroe Employees' Retirement System has turned into
a derivative claim its complaints of breach of fiduciary duties
against The Houston Exploration Co. and its directors in
relation to an offer to purchase by JANA Partners LLC.
On June 22, 2006, the City of Monroe Employees' Retirement
System filed a purported class action in the District Court of
Harris County, Texas, on behalf of itself and all of the
company's other public shareholders, against the company and its
directors.
The plaintiff alleges that the defendants breached their
fiduciary duties of loyalty and due care to the class in
connection with the company's response to an unsolicited
proposal by JANA Partners to purchase the company. The company
is accused of failing to negotiate in good faith in response to
the offer.
The plaintiff subsequently amended its petition as a derivative
claim and requested that the court order the defendants to
comply with their fiduciary duties, respond in good faith to
potential offers, and establish a committee of independent
directors to evaluate strategic alternatives and take decisive
steps to maximize shareholder value.
The plaintiff also seeks to invalidate the company's shareholder
rights plan or require the defendants to rescind or redeem such
plan. Finally, the plaintiff seeks compensatory and punitive
damages, as well as attorneys' and experts' fees.
In October 2006, the judge denied the defendants' motion to
abate or special exceptions. Although this ruling allows the
plaintiff's claim to survive beyond the pleadings stage, it has
no bearing on the merits of the case.
JOHNSON & JOHNSON: Faces N.J. Pharma Rep Suit for Overtime Wages
----------------------------------------------------------------
Johnson & Johnson faces a purported class action filed in the
U.S. District Court for the Northern District of New Jersey by
one of its former employees seeking back pay as far back as six
years.
The suit, filed by Joseph Fataous, alleges violation of federal
and state wage and hour laws.
It is filed on behalf of "Covered Employees" who have been, are,
or in the future will be employed by any of the defendants in
any job whose title is or was referred to by any of the
following titles:
-- sales representative,
-- senior sales representative,
-- executive sales representative, and
-- senior executive sales representative
and employees who performed substantial the same work as
employees with those titles above and who were employed during
the statute of limitations period for the particular claim for
relief in which the term Covered Employees is used, including
time during which the statute of limitation was or may have been
tolled or suspended.
The suit charges that the company -- like others in the industry
-- unlawfully characterizes pharmaceutical representatives as
"exempt" under the Fair Labor Standards Act and various state
labor laws in order to deprive them of overtime pay.
Plaintiff, on behalf of himself and all other Covered Employees,
seeks:
-- a declaratory judgment that the practices complained of
are unlawful under FLSA;
-- designation of plaintiff as representative of the FLSA
Collective Action Members;
-- an award of damages, according to proof, including
liquidated damages, to be paid by defendant;
-- penalties available under applicable law;
-- costs of action incurred, including expert fees;
-- attorneys' fees, including fees pursuant to 29 U.S.C.
Section 216 and other applicable statutes;
-- pre-judgment and post-judgment interest, as provided by
law; and
-- such other and further legal and equitable relief as the
court deems necessary, just and proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?184d
The suit is "Fataous v. Johnson and Johnson, et al., Case No.
2:06-cv-04787-JLL-RJH," filed in the U.S. District Court for the
District of New Jersey under Judge Jose L. Linares, with
referral to Judge Ronald J. Hedges.
Representing plaintiffs is Neil Marc Mullin of Smith Mullin,
P.C., 240 Claremont Avenue, Montclair, NJ 07042, Phone: (973)
783-7606, Fax: (973) 783-9894, E-mail: nmullin@smithmullin.com.
Representing defendants is Francis X. Dee of McElroy, Deutsch,
Mulvaney, & Carpenter, LLP, Three Gateway Center, 100 Mulberry
Street, Newark, NJ 07102-4079, Phone: (973) 622-7711, E-mail:
fdee@mdmc-law.com.
MANNATECH INC: Enters Mediation for N.Mex. Securities Fraud Suit
----------------------------------------------------------------
Mannatech Inc. has reached agreements to enter early mediation
for derivative and consolidated securities class actions filed
against it.
The company has been sued in three securities class actions in
the U.S. District Court for the District of New Mexico, which
remain pending.
On Aug. 1, 2005, Mr. Jonathan Crowell filed a putative class
action against the company and Mr. Samuel L. Caster, its chief
executive officer, on behalf of himself and all others who
purchased or otherwise acquired the company's common stock
between Aug. 10, 2004 and May 9, 2005, inclusive, and who were
damaged thereby;
On Aug. 30, 2005, Mr. Richard McMurry filed a class action
against the company, Mr. Caster, Mr. Terry L. Persinger, its
president and chief operating officer, and Mr. Stephen D.
Fenstermacher, its chief financial officer.
On September 5, 2005, Mr. Michael Bruce Zeller filed a class
action against the company, Mr. Caster, Mr. Persinger, and Mr.
Fenstermacher.
The allegations in these class actions are substantially
identical. The complaints allege the company violated Sections
10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, and
Rule 10b-5 thereunder, claiming that defendants artificially
inflated the value of the company's common stock by knowingly
allowing independent contractors to recklessly misrepresent the
efficacy of its products during the purported class period.
On Dec. 12, 2005, the Court granted a motion to consolidate the
three putative class actions into one civil action, "In re
Mannatech, Incorporated Securities Litigation."
Also, on Jan. 4, 2006, the Court entered an order appointing:
* "The Mannatech Group," consisting of Mr. Austin Chang,
Ms. Naomi S. Miller, Mr. John C. Ogden; and
* the Plumbers and Pipefitters Local 51 Pension Fund,
as lead plaintiffs, and appointing the law firms:
* Lerach Coughlin Stoia Geller Rudman & Robbins LLP, as
lead counsel; and
* Freedman Boyd Daniels Hollander & Goldberg, P.A., as
liaison counsel, for the putative class.
On March 3, 2006, the lead plaintiffs filed an amended
consolidated class action complaint.
The company's motion to transfer venue to the U.S. District
Court, Dallas Division, in the consolidated class actions
remains pending before the Court. Both sides have submitted
briefings on the issue of transfer and the company filed a
Notice of Completion of Briefing with the Court on June 28,
2006. The company anticipates the Court will rule on this
motion in the coming months.
Derivative Lawsuits
We have also been sued in three shareholder derivative lawsuits,
which remain pending.
First, on Oct. 18, 2005, a shareholder derivative lawsuit was
filed by Norma Middleton, derivatively and on behalf of nominal
defendant, Mannatech, Inc. against Samuel L. Caster, Terry L.
Persinger, Donald A. Buchholz, J. Stanley Fredrick, Gerald E.
Gilbert, Alan D. Kennedy, Marlin Ray Robbins, and Patricia A.
Wier, in the U.S. District Court for the Northern District of
Texas, Dallas Division.
Second, on Jan. 11, 2006, a shareholder derivative action was
filed by Kelly Schrimpf, derivatively and on behalf of nominal
defendant Mannatech, Inc. against Samuel L. Caster, Terry L.
Persinger, Steven W. Lemme, and Stephen D. Fenstermacher in the
162nd District Court of Dallas County, Texas.
Third, on Jan. 13, 2006, a shareholder derivative action was
filed by Frances Nystrom, derivatively and on behalf of nominal
defendant Mannatech, Inc. against Samuel L. Caster, Terry L.
Persinger, Stephen D. Fenstermacher, John Stuart Axford, J.
Stanley Fredrick, Gerald E. Gilbert, Alan D. Kennedy, Marlin Ray
Robbins, Patricia A. Wier, and Donald A. Buchholz in the U.S.
District Court for the Northern District of Texas, Dallas
Division.
Each of these shareholder derivative lawsuits makes allegations
similar to the allegations of the shareholder class action
litigation described above.
The company's independent directors appointed a Special
Litigation Committee to review these matters and determine the
proper corporate response. This review was completed on Aug.
26, 2006 and the Special Litigation Committee issued its report,
determining that it is in the best interests of Mannatech to
dismiss the derivative lawsuits. Statements by the company to
this effect were filed with the courts in the respective
derivative cases on Sept. 13, 2006.
The Schrimpf state court lawsuit is stayed pending the final
disposition of the Middleton federal lawsuit, the first-filed
derivative action. The company's motions to stay in the
Middleton and Nystrom federal court lawsuits, pursuant to Texas
Business Corp. Act art. 5.14, have been denied by the Court.
The company's motion to consolidate the Middleton and Nystrom
lawsuits remains pending, as does a separate motion to
consolidate filed by Middleton on Aug. 17, 2006.
Competing motions to appoint lead plaintiff and lead counsel
have also been filed by both Middleton and Nystrom. These
motions were filed Aug. 17, 2006, and Sept. 6, 2006,
respectively, and remain pending.
The company reached an agreement with each of the derivative
plaintiffs' counsel, as well as with counsel for the lead
plaintiffs in the consolidated securities class action, to
explore an early mediation. Therefore the parties in the
derivative suits have filed agreed motions to extend for 90 days
the date by which the defendants must file their answer, motion
to dismiss, or otherwise file a responsive pleading. These
motions are pending before the Court, according to the company's
form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
Plaintiffs in the consolidated putative class actions and in the
shareholder derivative actions seek an unspecified amount of
compensatory damages, interest and costs, including legal and
expert fees.
MICRON TECHNOLOGY: Reaches Settlement in DRAM Antitrust Suit
------------------------------------------------------------
Micron Technology, Inc. reached a settlement with a class of
direct purchasers of certain Dynamic Random Access Memory (DRAM)
products.
The settlement dismisses Micron from a class action filed in the
U.S. District Court for the Northern District of California
against the DRAM industry asserting claims on behalf of a class
of individuals and entities that purchased DRAM directly from
DRAM suppliers during the period from April 1, 1999, through
June 30, 2002.
The litigation arose following a 2002 U.S. Department of Justice
inquiry into the DRAM industry.
The settlement's effect upon the company's first quarter of
fiscal 2007 results of operations and financial position will be
provided in the company's Form 10-Q, which is expected to be
filed with the U.S. Securities and Exchange Commission on Jan.
16. It is expected that the settlement will result in a
reduction of the company's first quarter of fiscal 2007 earnings
previously reported on Dec. 21, 2006, in an amount not to exceed
$80 million.
The company continues to defend various other cases filed on
behalf of purported indirect purchasers of DRAM and on behalf of
various states through their Attorneys General.
The suit, filed in 2002 by 11 technology companies, was against:
-- Micron Technology, Inc.,
-- Micron Semiconductor Products, Inc.,
-- Crucial Technology, Inc.,
-- Infineon Technologies AG,
-- Infineon Technologies North America Corp.,
-- Samsung Electronics Co., Ltd.,
-- Samsung Semiconductor, Inc.,
-- Mosel Vitelic Corp.,
-- Mosel Vitelic Corp. (USA),
-- Nanya Technology Corp.,
-- Nanya Technology Corp. USA,
-- Winbond Electronics Corp.,
-- Winbond Electronics Corp. America,
-- Elpida Memory, Inc.,
-- Elpida Memory (USA), Inc.,
-- NEC Electronics America, Inc.
The defendants in the case controlled a vast majority of DRAM
production at the time of filing, an industry with revenue
estimated at $20 billion.
According to the complaint, beginning in 1999 the price for DRAM
began falling dramatically, dipping below the cost of
production. Then, in September 2001, DRAM prices spiked and by
February 2002 reached as high as $4.50, the complaint states.
In mid-2002, media reports cited statements by DRAM manufacturer
Mosel Vitelic's vice president, Thomas Chang, that the company
held price-fixing meetings with other manufacturers where they
agreed to reduce production to boost prices.
The complaints allege price-fixing in violation of federal
antitrust laws and seek treble monetary damages, costs,
attorneys' fees, and an injunction against the allegedly
unlawful conduct.
In June, Judge Phyllis J. Hamilton of the U.S. District Court
for the Northern District of California certified a class action
filed against manufacturers of DRAM. The suit claims that
several computer memory manufacturers illegally conspired to fix
the price of computer memory.
The suit is "In Re Dynamic Random Access Memory (DRAM) Antitrust
Litigation, Case No. M:02-cv-01486-PJH," filed in the U.S.
District Court for the Northern District of California under
Judge Phyllis J. Hamilton with referral to Judge Joseph C.
Spero.
Representing the plaintiffs are:
(1) Steve W. Berman of Hagens Berman Sobol Shapiro LLP,
1301 Fifth Avenue, Suite 2900, Seattle, WA 98101,
Phone: 206-623-7292, Fax: 206-623-0594, E-mail:
steve@hbsslaw.com;
(2) Garrett D. Blanchfield, Jr. of Reinhardt Wendorf &
Blanchfield, East 1250 First National Bank Building
322 Minnesota Street, St. Paul, MN 55101, Phone: 651-
287-2100, Fax: 651-287-2103, E-mail:
g.blanchfield@rwblawfirm.com;
(3) Francis A. Bottini, Jr. of Wolf Haldenstein Adler
Freeman & Herz LLP, Symphony Towers, 750 B Street
Suite 2770, San Diego, CA 92101, Phone: 619/239-4599,
Fax: 619-234-4599, E-mail: bottini@whafh.com;
(4) Jeffrey J. Corrigan of Spector Roseman & Kodroff PC
1818 Market Street, 25th Floor, Philadelphia, PA 19103,
Phone: 215-496-0300, E-mail: jcorrigan@srk-law.com;
(5) Laurence D. King of Kaplan Fox & Kilsheimer LLP, 555
Montgomery Street, Suite 1501, San Francisco, CA 94111,
Phone: 415/772-4700, Fax: (415) 772-4707, E-mail:
lking@kaplanfox.com; and
(6) Anthony D. Shapiro of Hagens Berman Sobol Shapiro LLP,
1301 Fifth Avenue, Suite 2900, Seattle, WA 98101,
Phone: 206-623-7292, Fax: 206-623-0594, E-mail:
tony@hbsslaw.com.
Representing the defendants are:
(1) Kevin Arquit of Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, NY 10017-3954, Phone: 212-
455-2000;
(2) G. Michael Barnhill of Womble Carlyle Sandridge & Rice
PLLC, One Wachovia Center, Suite 3500, 301 College
Street, Charlotte, NC 28202-6025, Phone: 704-331-4900,
Fax: 704-331-4955;
(3) Daniel Lee Alexander of O'Melveny & Myers LLP, 400
South Hope Street, Los Angeles, CA 90071, Phone: 213-
430-6000, Fax: 213-430-6407, E-mail:
dalexander@omm.com;
(4) Debra L. Bouffard of Sheehey Furlong & Behm PC, P.O.
Box 66, Burlington, VT 05402-0066, Phone: 802-864-9891,
E-mail: dbouffard@sheeheyvt.com; and
(5) Aton Arbisser of Kaye Scholer LLP, 1999 Avenue of the
Stars, Suite 1700, Los Angeles, CA 90067, L.A., Phone:
310-788-1000, Fax: 310-788-1205, E-mail:
aarbisser@kayescholer.com.
MODELING AGENCIES: Appeals Court Vacates 2003 Settlement Order
--------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit vacated an
order distributing settlement proceeds and awarding attorney
fees in a class action against major modeling agencies for
allegedly conspiring to fix commissions, the CourtHouse News
Service reports.
Originally filed in 2002 in the U.S. District Court for the
Southern District of New York, plaintiffs claimed some of New
York's leading modeling agencies illegally raised the standard
rate of commissions to 20 percent, when state law capped the
rate at 10 percent for employment agencies.
The suit was filed against:
-- Wilhelmina Model Agency, Inc. also known as Wilhelmina
Artist Management LLC;
-- Ford Models;
-- 50 Inc., formerly known as Ford Model Agency;
-- Elite 51 Model Management, Inc.;
-- Click Model Management;
-- 52 Inc.;
-- Next Management Co.;
-- Boss Models, Inc.;
-- 1 Gerard W. Ford;
-- DNA Model Management, LLC;
-- IMG 2 Models, Inc.;
-- Zoli Management, Inc.;
-- Images 3 Management, Inc.;
-- The MFME Management, Ltd.;
-- Q Model Management, LLC; and
-- Model Management Corporation, formerly known as 9
International Model Managers Association, Inc.
In July 2003, Judge Harold Baer of the U.S. District Court in
Manhattan, New York granted class certification to the suit
allowing thousands of models to take part in the suit, which
alleges that the agencies fixed models' commission rates at 20
percent, twice the 10 percent allowed by state law for
employment agencies (Class Action Reporter, July 17, 2003).
The defendants also allegedly conspired to evade state pricing
regulations by calling themselves model management companies.
The district court sided with the plaintiffs, ruling that their
evidence would support a jury finding that the modeling agency
industry was "inundated with collusion."
Though the plaintiffs won, they appealed the distribution of
excess settlement proceeds to charities, rather than to class
members as treble damages and prejudgment interest.
Plaintiffs-appellants and their counsel appealed from orders
entered into by Judge Baer approving settlements in a class
action brought in violation of the Sherman Act, awarding
attorneys' fees, and denying reconsideration of those orders,
and from an order allocating the proceeds of settlement with a
bankrupt defendant.
The appellants contending on appeal that the District Court
erred in:
(1) ordering the distribution from settlement proceeds in
excess of recognized losses to various charities rather
than to class members as treble damages and prejudgment
interest;
(2) allocating funds derived from the estate of a bankrupt
defendant without additional notice to the class; and
(3) applying the wrong standard in awarding counsel fees,
with the result that the fee allowance was inadequate.
Earlier, the circuit vacated the orders related to settlement
distribution and attorney fees, and affirmed the orders in all
other respects.
A copy of the Appeals Court's decision is available for free at:
http://ResearchArchives.com/t/s?1846
The suit is "Masters, et al. v. Wilhelmina Model, et al., Docket
Nos. 05-2897-cv(L); 05-5766-cv(CON)," appealed in the U.S. Court
of Appeals for the Second Circuit.
Representing plaintiffs are:
(1) Paul R. Verkull and Olav A. Haazen, both of Boies,
Schiller & Flexner LLP, Armonk, New York, New York;
(2) Andrew W. Hayes of Andrew W. Hayes P.C., New York, New
York;
(3) Anthony J. Bolognese of Bolognese & Associates LLC,
Philadelphia, Pennsylvania; and
(4) Merill G. Davidoff of Berger & Montague P.C.,
Philadelphia, 51 Pennsylvania.
Representing defendants are:
(1) David Elbaum of Simpson, Thacher & Bartlett LLP, New
York, New York;
(2) Philip Bentley of Kramer, Levin, Naftalis & Frankel
LLP, New York, New York;
(3) Jerome Gotkin of Mintz, Levin, Cohen, Ferris, Glovsky &
Popeo P.C., New York, New York;
(4) Aaron Richard Golub of the Law Office of Aaron Richard
Golub, New York, New York;
(5) David Bosman of Boss Models, New York, New York;
(6) Judah S. Shapiro of the Law Offices of Judah S.
Shapiro, New York, New York;
(7) Richard S. Oelsner of Wilson, Elser, Moskowitz, Edelman
& Dicker LLP, White Plains, New York;
(8) Sandor Frankel of Frankel & Abrams, New York, New York;
(9) Thomas M. Lopez of Katsky LLP, New York, New York; and
(10) David Blasband of McLaughlin & Stern LLP, New York, New
York.
NATIONAL PHYSICIANS: Served With TCPA Violations Suit in Ohio
-------------------------------------------------------------
National Physicians Datasource, LLC, a subsidiary of WebMD
Health Corp., was served with a purported class action "Anthony
Vlastaris, et al. v. WebMD Publishing Services," which is
pending in the U.S. District Court for the Northern District
Court of Ohio.
On Sept. 25, 2006, Anthony Vlastaris, Brian Kressin, and Richard
Cohen filed a lawsuit individually, and as a class action, under
the Telephone Consumer Protection Act, in the Ohio Court of
Common Pleas, Cuyahoga County.
The lawsuit claims that the defendant sent faxes to the
plaintiffs allegedly in violation of the TCPA. The defendant in
the suit is named as "WebMD Publishing Services," an entity that
does not exist.
Because the suit was served on National Physicians at its
location in Connecticut and because the company is the publisher
of The Little Blue Book, National Physicians removed the lawsuit
to the U.S. District Court for the Northern District Court of
Ohio on Oct. 24, 2006.
National Physicians removed the case in part because of
diversity jurisdiction and in part because the Federal Class
Action Fairness Act provides federal jurisdiction over class
actions in which the potential damages exceed $5,000.
Plaintiffs' counsel has sent a letter challenging the removal on
the grounds that TPCA cases are not subject to removal.
National Physicians intends to defend the notice of removal.
The company expects to oppose class certification in this
lawsuit.
The suit is "Vlastaris v. National Physicians Datasource LLC,
Case No. 1:06-cv-02573-KMO," filed in the U.S. District Court
for the Northern District Court of Ohio under Judge Kathleen M.
O'Malley.
Representing the plaintiffs are:
(1) Joseph R. Compoli, Jr., 612 East 185 Street, Cleveland,
OH 44119, Phone: 216-481-6700, Fax: 216-481-1047, E-
mail: jcompoli@en.com; and
(2) James R. Goodluck, 3517 St. Albans Road, Cleveland
Heights, OH 44121, Phone: 216-481-6700, Fax: 216-481-
1047, E-mail: jim311@webtv.net.
Representing the defendants is Thompson Hine, 3900 Key Tower,
127 Public Square, Cleveland, OH 44114-1216, Phone: 216-566-
5578, Fax: 216-566-5800, E-mail: http://www.thompsonhine.com.
NORDSTROM INC: Appeal on "Azizian" Settlement Yet to be Argued
--------------------------------------------------------------
Oral argument has yet to be set on objections to a settlement of
the California antitrust class action, "Azizian, et al. v.
Federated Department Stores, Inc., et al.," in which Nordstrom,
Inc. is a defendant.
The suit against the company and other department stores and
specialty retailers were filed with the U.S. Court of Appeals
for the 9th Circuit.
The company was originally named as a defendant along with other
department store and specialty retailers in nine separate, but
virtually identical class actions filed in various Superior
Courts of the state of California in May, June and July 1998.
The suits were consolidated in Marin County Superior Court.
In May 2000, plaintiffs filed an amended complaint naming a
number of manufacturers of cosmetics and fragrances and two
other retailers as additional defendants.
Plaintiffs' amended complaint alleged that the retailer and
manufacturer defendants in violation of the Cartwright Act and
the California Unfair Competition Act collusively controlled the
retail price of the "prestige" or "Department Store" cosmetics
and fragrances sold in department and specialty stores.
Plaintiffs sought treble damages and restitution in an
unspecified amount, attorneys' fees and prejudgment interest, on
behalf of a class of all California residents who purchased
cosmetics and fragrances for personal use from any of the
defendants during the four years prior to the filing of the
original complaints.
While the company believes that the plaintiffs' claims are
without merit, it entered into a settlement agreement with the
plaintiffs and the other defendants on July 13, 2003 in order to
avoid the cost and distraction of protracted litigation.
In furtherance of the settlement agreement, the case was re-
filed in the U.S. District Court for the Northern District of
California on behalf of a class of all persons who currently
reside in the U.S. and who purchased "Department Store"
cosmetics and fragrances from the defendants from May 29, 1994
through July 16, 2003.
The court gave preliminary approval to the settlement, and a
summary notice of class certification and the terms of the
settlement were disseminated to class members.
On March 30, 2005, the court entered a final judgment approving
the settlement and dismissing the plaintiffs' claims and the
claims of all class members with prejudice, in their entirety.
On April 29, 2005, two class members who objected to the
settlement filed notices of appeal from the court's final
judgment to the U.S. Court of Appeals for the Ninth Circuit.
One of the objectors has since dropped her appeal, but the other
filed her appeal brief on March 20, 2006. Plaintiffs' and
defendants' briefs were filed on May 25, 2006.
The remaining objector filed her reply brief on June 14, 2006.
The Ninth Circuit has not yet scheduled oral argument on the
appeal, according to the company's form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Oct. 28, 2006.
It is uncertain when the appeal will be resolved, but the appeal
process could take as much as another year or more, the company
said.
If the Court's final judgment approving the settlement is
affirmed on appeal, or the appeal is dismissed, the defendants
will provide class members with certain free products with an
estimated retail value of $175 million and pay the plaintiffs'
attorneys' fees, awarded by the Court, of $24 million.
The suit is "Azizian, et al. v. Federated Department Stores,
Inc., et al., Case No. 4:03-cv-03359," filed in the U.S.
District Court for the Northern District of California under
Judge Saundra Brown Armstrong.
Representing the plaintiffs is Guido Saveri of Saveri & Saveri,
Inc., 111 Pine Street, Suite 1700, San Francisco, CA 94111-5630,
Phone: 415-217-6810, Fax: 415-217-6813, E-mail:
guido@saveri.com.
Representing the company is Larry S. Gangnes, 1420 Fifth Avenue,
Ste. 4100, Seattle, WA 98101-2338, Phone: (206) 223-7036, E-
mail: gangnesl@lanepowell.com.
NORTEL NETWORKS: Settles Shareholders Suit Over Bonus Program
-------------------------------------------------------------
Nortel Networks Corp. reached an agreement in principle on Aug.
2, 2006 to settle a purported class proceeding in the Ontario
Superior Court of Justice on behalf of shareholders who acquired
Nortel Networks Corp. securities as early as Nov. 12, 2002 and
as late as July 28, 2004 (Ontario I Action).
The Ontario I Action, in which Nortel and Nortel Networks Ltd.
(NNL), and certain of their current and former officers and
directors, were named as defendants on July 28, 2004, alleged,
among other things:
-- breaches of trust and fiduciary duty,
-- oppressive conduct and misappropriation of corporate
assets and trust property in respect of the payment of
cash bonuses to executives, officers and employees in
2003 and 2004 under the Nortel Return to Profitability
bonus program.
It sought damages of CA$250 million and an order under the
Canada Business Corporations Act directing that an investigation
be made respecting these bonus payments.
RHODE ISLAND: Lawsuit Accuses State Police of Racial Profiling
--------------------------------------------------------------
Rhode Island residents have filed a civil rights class action in
the U.S. District Court for the District of Rhode Island against
the state, claiming state police uses racial profiling in
arresting Latinos for traffic violations and turning them over
to immigration officials for deportation, the CourtHouse News
Service reports.
Named defendants in the suit are:
-- the state of Rhode Island;
-- Rhode Island State Police Department;
-- Steven M. Pare, superintendent of the Rhode Island State
Police; and
-- Thomas Chabot, a state trooper employed by the state of
Rhode Island
The suit accuses:
-- State Trooper Thomas Chabot of arresting without cause
and threatening to shoot to death peaceful passengers in
a car because they are Guatemalan; and
-- State Police Superintendent Steven Pare of condoning and
directing this unconstitutional stop and others.
Plaintiffs pray that the Court grant the following relief:
a. A declaratory judgment that the Defendants, in the
manner described, violated the Fourth and Fourteenth
Amendments to the United States Constitution, actionable
pursuant to 42 U.S.C. Section 1983, 42 U.S.C. Section
1981, Article I, Section 2 of the Rhode Island
Constitution, Article I, $6 of the Rhode Island
Constitution, and the Racial Profiling Prevention Act of
2004 by causing Plaintiffs to be unlawfully searched and
seized;
b. an award of compensatory damages;
c. an award of punitive damages;
d. an award of reasonable attorney's fees and costs of
litigation to Plaintiffs attorney pursuant to 42 U.S.C.
Section 1988 and 31-21.2-4; and
e. such other and further relief as the Court deems just
and proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1848
The suit is "Estrada et al. v. State of Rhode Island, State
Police Department et al., Case No. 1:07-cv-00010-ML-DLM," filed
in the U.S. District Court for the District of Rhode Island
under Judge Mary M. Lisi, with referral to Judge David L.
Martin.
Representing plaintiffs is V. Edward Formisano of Sinapi
Formisano & Co., Ltd., 100 Midway Place, Suite 1, Cranston, RI
02920-5707, Phone: 944-9690, Fax: 943-9040, E-mail:
edf@sfclaw.com.
SAMARA BROS: Recalls Kids Overalls on Snaps' High Lead Content
--------------------------------------------------------------
Samara Brothers LLC, of New York, in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 200
Starting Out shirt and overalls.
The company said the coatings on the snaps in the overalls and
shirt contain excessive amounts of lead, posing a serious risk
of lead poisoning and adverse health effects to young children.
No incidents or injuries have been reported.
This recall involves two styles of children's overall sets. One
set is a red plaid denim overall with a white shirt trimmed in
red, sold in sizes 12 through 24 months. The other set is a
navy blue corduroy overall with a white shirt trimmed in green,
sold in sizes 3 through 9 months. Both styles have decorative
train appliques on the front of the overalls. The collar tag of
the overalls reads, "Starting Out."
These recalled two-piece overall sets were manufactured in China
and are being sold exclusively at Dillard's nationwide during
October 2006 for about $20 for the red overalls set and about
$25 for the blue corduroy set.
Picture of recalled two-piece overall sets:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07516.jpg
Consumers are advised to stop using the products immediately and
contact Samara to obtain a full refund.
For additional information, please contact Samara Brothers at
(800) 985-9975 between 8:30 a.m. and 5 p.m. ET Monday through
Friday, visit http://www.samararecall.com,or e-mail:
info@samararecall.com.
SOUTHERN STAR: Kans. Court Mulls Motions in "Price" Litigation
--------------------------------------------------------------
The District Court for Stevens County, Kansas has yet to rule on
the motions for and against class certification for the suit
filed against Southern Star Central Corp. and other natural gas
companies, including El Paso Natural Gas Co.
The suit is "Will Price, et al. v. El Paso Natural Gas Co., et
al., Case No. 99 C 30." In this putative class action filed May
28, 1999, the named plaintiffs have sued over 50 defendants.
Asserting theories of civil conspiracy, aiding and abetting,
accounting and unjust enrichment, their fourth amended class
action petition alleges that the defendants have undermeasured
the volume of, and therefore have underpaid for, the natural gas
they have obtained from or measured for plaintiffs.
Plaintiffs seek unspecified actual damages, attorney fees, pre-
and post-judgment interest, and reserved the right to plead for
punitive damages.
On Aug. 22, 2003, an answer to that pleading was filed on behalf
of Southern Star. Despite a denial by the court on April 10,
2003 of their original motion for class certification, the
plaintiffs continue to seek the certification of a class.
Plaintiffs' motion seeking class certification for a second time
was fully briefed and the court heard oral argument on this
motion on April 1, 2005.
In January 2006, the court heard oral argument on a motion to
intervene filed by a third party who is claiming entitlement to
a portion of any recovery obtained by plaintiffs. It is unknown
when the court will rule on the pending motions.
SOUTHERN STAR: Kans. Court Mulls Motions in "Price II" Lawsuit
--------------------------------------------------------------
The District Court for Stevens County, Kansas has yet to rule on
certain motions in the class action, "Will Price, et al. v. El
Paso Natural Gas Co., et al., Case No. 03 C 23," naming as
defendants Southern Star Central Corp. and other natural gas
companies.
In this putative class action filed May 12, 2003, the named
plaintiffs from Case No. 99 C 30 have sued the same defendants.
Asserting substantially identical legal and/or equitable
theories, the Original Class Action Petition alleges that the
defendants have undermeasured the British thermal units content
of, and therefore have underpaid for, the natural gas they have
obtained from or measured for Plaintiffs. Plaintiffs seek
unspecified actual damages, attorney fees, pre- and post-
judgment interest, and reserved the right to plead for punitive
damages.
On Nov. 10, 2003, an answer to that pleading was filed on behalf
of the company. The plaintiffs' motion seeking class
certification for a second time was fully briefed and the court
heard oral argument on this motion on April 1, 2005.
In January 2006, the court heard oral argument on a motion to
intervene filed by a third party who is claiming entitlement to
a portion of any recovery obtained by Plaintiffs. It is unknown
when the court will rule on the pending motions.
THOMAS WEISEL: Court Denies Dismissal Motion in Friedman's Suit
---------------------------------------------------------------
Thomas Weisel Partners Group, Inc. remains a defendant in a
consolidated class action, "In re Friedman's Inc. Securities
Litigation," which is pending in the U.S. District Court for the
Northern District of Georgia.
In September 2003, the company acted as lead manager on a
follow-on offering of common stock of Friedman's Inc.
Plaintiffs have filed a purported class action against
Friedman's and its directors, senior officers and outside
accountant as well as the its underwriters, including the
company, in the U.S. District Court for the Northern District of
Georgia.
The suit is alleging that the registration statement for the
offering and a previous registration statement dated Feb. 2,
2002 were fraudulent and materially misleading because they
overstated revenue and inventory, understated allowances for
uncollectible accounts, and failed to properly account for
impairment of a particular investment.
Friedman's is currently operating its business in bankruptcy.
The company denied liability in connection with this matter.
A consolidated amended complaint was filed in this matter. On
Sept. 7, 2005, the court denied the underwriters' motion to
dismiss.
The suit is "In re Friedman's Inc. Securities Litigation, Case
No. 1:03-cv-03475-WSD," under Judge William S. Duffey, Jr.
Representing the plaintiffs are, Patricia I. Avery of Wolf
Popper, 845 Third Avenue, New York, NY 10022, Phone: 212-759-
4600; and David Andrew Bain of Chitwood Harley Harnes, LLP, 1230
Peachtree Street, N.E., 2300 Promenade II, Atlanta, GA 30309,
Phone: 404-873-3900, E-mail: dab@classlaw.com.
Representing the company are:
(1) Jason DeBretteville of Sullivan & Cromwell, LLP, 1870
Embarcadero Road, Palo Alto, CA 94303, Phone: 650-461-
5600, E-mail: debrettevillej@sullcrom.com; and
(2) Stephen Earl Hudson of Kilpatrick Stockton, 1100
Peachtree Street, Suite 2800, Atlanta, GA 30309-4530,
Phone: 404-815-6356, Fax: 404-541-3248, E-mail:
shudson@kilpatrickstockton.com.
THOMAS WEISEL: Court Reverses Nixing of First Horizon Stock Suit
----------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit allowed
plaintiffs in the consolidated class action "In re First Horizon
Pharmaceutical Corp. Securities Litigation," which names Thomas
Weisel Partners Group, Inc., as one of the defendants to re-
plead their claims. The decision reversed the case's dismissal
by the U.S. District Court for the Northern District of Georgia.
The purported class action was brought in connection with a
secondary offering of First Horizon Pharmaceutical Corp. in
April 2002.
The consolidated amended complaint, filed in the U.S. District
Court for the Northern District of Georgia on Sept. 2, 2003,
alleges violations of federal securities laws against First
Horizon and certain of its directors and officers as well as the
its underwriters, including the company, based on alleged false
and misleading statements in the registration statement and
other documents.
The underwriters' motion to dismiss was granted by the court in
September 2004. The plaintiffs have appealed to the U.S. Court
of Appeals for the Eleventh Circuit, and on Sept. 26, 2006, it
vacated the dismissal and remanded the case to the district
court, which was instructed to permit the plaintiffs to re-plead
their claim.
The suit is "In re First Horizon Pharmaceutical Corp. Securities
Litigation, Case No. 1:02-cv-02332-JOF," on appeal from the U.S.
District Court for the Northern District of Georgia under Judge
J. Owen Forrester.
Representing the plaintiffs is David Andrew Bain of Chitwood
Harley Harnes, LLP, 1230 Peachtree Street, N.E., 2300 Promenade
II, Atlanta, GA 30309, Phone: 404-873-3900, E-mail:
dab@classlaw.com.
Representing the defendants is John Patterson Brumbaugh of King
& Spalding, 191 Peachtree Street, N.E., Atlanta, GA 30303-1763,
Phone: 404-572-5100, E-mail: pbrumbaugh@kslaw.com.
THOMAS WEISEL: Discovery Proceeds in AirGate Securities Suit
------------------------------------------------------------
Discovery is ongoing in the consolidated class action brought in
connection with a secondary offering of AirGate PCS, Inc. in
December 2001.
The complaint, filed on May 17, 2002 in the U.S. District Court
for the Northern District of Georgia, alleges violations of
federal securities laws against AirGate and certain of its
directors and officers as well as the company's underwriters,
including Thomas Weisel Partners Group, Inc., based on alleged
misstatements and omissions in the registration statement.
The underwriters' motion to dismiss was granted by the court in
September 2005, but the court permitted plaintiffs to amend
their complaint.
Subsequently, the plaintiffs filed an amended complaint and the
underwriters again moved to dismiss. The court granted in part
and denied in part the second motion to dismiss, dismissing all
claims and allegations against the firm except a single claim
under Section 11 of the U.S. Securities Act of 1933.
The company has answered the one surviving claim, and the case
has proceeded to the discovery phase.
The suit is "In re AirGate PCS, Inc. Securities Litigation, Case
No. 1:02-cv-01291-JOF," filed in the U.S. District Court for the
Northern District of Georgia under Judge J. Owen Forrester.
Representing the plaintiffs are:
(1) David Andrew Bain and Martin D. Chitwood of Chitwood
Harley Harnes, LLP, 1230 Peachtree Street, N.E., 2300
Promenade II, Atlanta, GA 30309, Phone: 404-873-3900,
Fax: 404-876-4476, E-mail: dab@classlaw.com and
mdc@classlaw.com; and
(2) Howard K. Coates, Jr. of Milberg Weiss Bershad &
Schulman, 5355 Town Center Road, Suite 900, Boca Raton,
FL 33486, Phone: 561-361-5000.
THOMAS WEISEL: Plaintiffs Appeal Dismissal of Merix Stock Suit
--------------------------------------------------------------
Plaintiffs are appealing to the U.S. Court of Appeals for the
9th Circuit the dismissal of a class action pending in the U.S.
District Court for the District of Oregon against Thomas Weisel
Partners Group, Inc. in connection with a share offering of
Merix Corp. in which Thomas Weisel served as co-lead manager.
Plaintiffs filed the suit, "In re: Merix Securities Litigation,
Lead Case No. 3:04-cv-00826-MO," against Merix and certain of
its directors and senior officers as well as Merix's
underwriters, alleging false and misleading statements in the
registration statement.
On Sept. 15, 2005, the U.S. District Court for the District of
Oregon entered an order dismissing all claims against the
underwriter defendants, including the firm, and the Merix
defendants.
A portion of the claim under Section 12(a)(2) of the U.S.
Securities Exchange Act of 1934 was dismissed with prejudice,
and the remainder of that claim and the Section 11 claim were
dismissed with leave to re-file.
Plaintiffs subsequently filed an amended complaint and on Sept.
28, 2006 the court dismissed the remaining claims with
prejudice.
Following the Sept. 28 dismissal, plaintiffs have filed a notice
of appeal to the U.S. Court of Appeals for the Ninth Circuit.
The suit is "In re: Merix Securities Litigation, Lead Case No.
3:04-cv-00826-MO," filed in the U.S. District Court for the
District of Oregon, under Michael W. Mosman. Representing the
plaintiffs are:
(1) Stuart L. Berman, Gregory M. Castaldo, Darren J. Check,
Sean M. Handler, Andrew L. Zivitz, Schiffrin &
Barroway, LLP, Three Bala Plaza East, Suite 400, Bala
Cynwyd, PA 19004, Phone: (610) 667-7706, Fax: (610)
667-7056, E-mail: sberman@sbclasslaw.com,
dcheck@sbclasslaw.com, shandler@sbclasslaw.com,
azivitz@sbclasslaw.com
(2) Gary M. Berne, David F. Rees, Stoll Stoll Berne Lokting
& Shlachter, PC, 209 S.W. Oak Street, Fifth Floor,
Portland, OR 97204, Phone: (503) 227-1600, Fax: (503)
227-6840, E-mail: gberne@ssbls.com or drees@ssbls.com
(3) Lori G. Feldman, Steven G. Schulman, Milberg Weiss
Bershad & Schulman, LLP, 1001 Fourth Avenue, Suite
2550, Seattle, WA 98154, Phone: (206) 839-0730, Fax:
(206) 839-0728, E-mail: lfeldman@milbergweiss.com
Representing the company are:
(i) Bruce L. Campbell and Ky Fullerton of Miller Nash, LLP,
111 SW Fifth Avenue, Suite 3400, Portland, OR 97204,
Phone: 503 205-2419, Fax: (503) 224-0155, E-mail:
bruce.campbell@millernash.com and
ky.fullerton@millernash.com; and
(ii) Darryl S. Lew of White & Case, LLP, 701 Thirteenth
Street, NW, Washington, DC 20005, Phone: (202) 626-
3600, Fax: (202) 639-9355, E-mail: dlew@whitecase.com.
THOMAS WEISEL: Nixing of Leadis Securities Fraud Suit Appealed
--------------------------------------------------------------
Plaintiffs are appealing the dismissal with prejudice by the
U.S. District Court for the Northern District of California of
the complaint in the consolidated class action "In re Leadis
Technology, Inc. Securities Litigation," which names Thomas
Weisel Partners Group, Inc., as one of the defendants.
The suit was brought in connection with Leadis Technology,
Inc.'s initial public offering in June 2004.
The consolidated complaint, filed in on Aug. 8, 2005, alleged
violations of federal securities laws against Leadis and certain
of its directors and officers as well as its underwriters,
including the company, based on alleged misstatements and
omissions in the registration statement.
On March 1, 2006 the court dismissed with prejudice the
complaint against the company in this matter. Subsequently, on
March 28, 2006, the plaintiffs appealed the dismissal.
The suit is "Safron Capital Corp. v. Leadis Technology, Inc. et
al., Case No. 3:05-cv-00882-CRB," filed in the U.S. District
Court for the Northern District of California under Judge
Charles R. Breyer.
Representing the plaintiffs is Patrick J. Coughlin, Lerach
Coughlin Stoia Geller Rudman & Robbins LLP, 100 Pine Street,
Suite 2600, San Francisco, CA 94111, Phone: 415/288-4545, Fax:
415-288-4534, E-mail: patc@mwbhl.com.
Representing the defendants are Grant P. Fondo and Laura R.
Smith of Cooley Godward LLP, Five Palo Alto Square, 3000 El
Camino Real, Palo Alto, CA 94306-2155, Phone: 650 843-5458, Fax:
650 857-0663, E-mail: gfondo@cooley.com or smithlr@cooley.com.
THOMAS WEISEL: Faces Calif. Securities Suit Over Intermix Sale
--------------------------------------------------------------
Thomas Weisel Partners Group, Inc. remains a defendant in a
purported class action arising out of the sale of Intermix
Media, Inc. to News Corp. in September 2005.
The complaint was filed August 2006 in the U.S. District Court
for the Central District of California and alleges various
misrepresentations and/or omissions of material information that
would have demonstrated that the sale was not fair from a
financial point of view to the shareholders of Intermix.
The company acted as a financial advisor to Intermix in
connection with the sale and rendered a fairness opinion with
respect to the sale.
THOMAS WEISEL: Faces Securities Suit in N.J. Over Vonage IPO
------------------------------------------------------------
Thomas Weisel Partners Group, Inc. was named as one of the
defendants in several class actions filed in the New Jersey
arising out of the May 2006 initial public offering of Vonage
Holdings Corp.
The complaints, filed in the U.S. District Court for the
District of New Jersey and in the Supreme Court of the State of
New York, County of Kings starting June 2006, allege misuse of
Vonage's directed share program and violations of federal
securities laws against Vonage and certain of its directors and
senior officers as well as Vonage's underwriters, including the
company, based on alleged false and misleading statements in the
registration statement and prospectus.
The reference complaint is "Gibbons, et al. v. Vonage Holdings
Corp., et al., Case No. 06-CV-02531," filed in the U.S. District
Court for the District of New Jersey under Judge Freda L.
Wolfson.
Plaintiff firms named in complaint:
(1) Cohn, Lifland, Pearlman, Herrmann & Knopf, Park 80
Plaza West-One, Saddle Brook, NJ, 7663, Phone: 201-845-
9600, E-mail: info@njlawfirm.com;
(2) Spector, Roseman & Kodroff (Philadelphia), 1818 Market
Street; Suite 2500, Philadelphia, PA, 19103, Phone:
215.496.0300, Fax: 215.496.6610, E-mail:
classaction@srk-law.com; and
(3) Trujillo, Rodriguez & Richards, 20 Brace Road, Cherry
Hill, NJ.
THOMAS WEISEL: Faces Stock Suit in Calif. Over SeraCare Offering
----------------------------------------------------------------
Thomas Weisel Partners Group, Inc., was named as one of the
defendants in a consolidated securities fraud class action
arising out of alleged false and misleading financial statements
issued between 2003 and 2006 by SeraCare Life Sciences, Inc.
The company was named a defendant in the purported class action,
"In Re SeraCare Life Sciences, Inc. Securities Litigation," in
July 2006.
The complaint was filed in the U.S. District Court for the
Southern District of California, and alleges violations of the
U.S. Securities Act of 1933 and the U.S. Securities Exchange Act
of 1934 against certain of SeraCare's current and former
officers and directors, its former auditor, and its controlling
shareholders and investment bankers, including the company due
to the firm having been a co-manager of SeraCare's 2005
secondary offering of common stock.
SeraCare filed for bankruptcy in March 2006.
The suit is "In Re: SeraCare Life Sciences, Inc. Securities
Litigation, Case No. 05-CV-02335," filed in the U.S. District
Court for the Southern District of California under Judge
Marilyn L. Huff.
Plaintiff firms named in complaint:
(1) Cohen, Milstein, Hausfeld & Toll, P.L.L.C. (Washington,
DC), 1100 New York Avenue, N.W., Suite 500, West Tower,
Washington, DC, 20005, Phone: 202.408.4600, Fax:
202.408.4699, E-mail: lawinfo@cmht.com; and
(2) 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.
TRIPLE-S INC: Mediation Ordered in Physicians' Lawsuit in Fla.
--------------------------------------------------------------
The U.S. District Court for the Southern District of Florida
ordered parties in a purported class action against Triple-S,
Inc. and several other defendants to enter mediation for the
suit.
On May 22, 2003, the class action was filed by Kenneth A.
Thomas, M.D. and Michael Kutell, M.D. on behalf of themselves
and all others similarly situated and the Connecticut State
Medical Society against the Blue Cross and Blue Shield
Association (BCBSA) and multiple other insurance companies
including Triple-S.
The individual plaintiffs bring this action on behalf of
themselves and a class of similarly situated physicians seeking
redress for alleged illegal acts of the defendants, which they
allege have resulted in a loss of their property and a detriment
to their business, and for declaratory and injunctive relief to
end those practices and prevent further losses.
Plaintiffs alleged that the defendants, on their own and as part
of a common scheme, systematically deny, delay and diminish the
payments due to doctors so that they are not paid in a timely
manner for the covered, medically necessary services they
render.
The class action complaint alleges that the health care plans
are the agents of BCBSA licensed entities, and as such have
committed the acts alleged above and acted within the scope of
their agency, with the consent, permission, authorization and
knowledge of the others, and in furtherance of both their
interest and the interests of other defendants.
The company believes that it was brought to this litigation for
the sole reason of being associated with the BCBSA.
However, on June 18, 2004 the plaintiffs moved to amend the
complaint to include:
* the Colegio de Medicos y Cirujanos de Puerto Rico (a
compulsory association grouping all physicians in Puerto
Rico);
* Marissel Velazquez, president of the Colegio de
Medicos y Cirujanos de Puerto Rico; and
* Andres Melendez,
as plaintiffs against the company. Later Marissel Velazquez,
voluntarily dismissed her complaint against the company.
The company along with the other defendants, moved to dismiss
the complaint on multiple grounds, including but not limited to
arbitration and applicability of the McCarran Ferguson Act.
The court issued a 90-day stay to allow the parties to discuss
their differences and come to amicable agreement. The stay
expired on March 7, 2006. Upon the expiration of the stay, both
plaintiffs and defendants agreed to request the court to extend
the stay until April 21, 2006.
The stay expired and the parties informed the court that they
need additional time to iron out the details of an amicable
solution. The court has not reacted to the parties' joint
request.
If the court denies another stay, the parties will have to
continue the proceedings where they were left before the
issuance of the first stay.
In the meantime, the court issued an Agreed Order on the
Preservation of Records. This order supersedes the parties'
existing record-keeping policies in regards to the documents and
materials specified in the order. The purpose of the order is
to avoid the disposition of documents that might be relevant for
the case.
During September 2006, the court, sua sponte, ordered the
parties to engage in mediation with former U.S. District Judge,
Edward Davis. Judge Davis divided the group of plans into
smaller groups to facilitate the process.
Since September the parties have been engaged in mediation,
which according to the company's Nov. 13, 2006 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended Sept. 30, 2006, was to end by December
2006.
The suit is "Kenneth A. Thomas, M.D., et al. v. Blue Cross and
Blue Shield Association, Case No. 03-21296-CIV-MORENO."
For more details, visit: http://researcharchives.com/t/s?824.
TRIPLE-S INC: Mediation Ordered in "Solomon" Litigation in Fla.
---------------------------------------------------------------
The U.S. District Court for the Southern District of Florida
ordered parties in a purported class action against Triple-S,
Inc. and several other defendants to enter mediation to resolve
the suit.
On Dec. 8, 2003 a putative class action was filed by Jeffrey
Solomon, and Orlando Armstrong, on behalf of themselves and all
other similarly situated and the
-- American Podiatric Medical Association,
-- Florida Chiropractic Association,
-- California Podiatric Medical Association,
-- Florida Podiatric Medical Association,
-- Texas Podiatric Medical Association, and
-- Independent Chiropractic Physicians
The suit was filed against the Blue Cross Blue Shield
Association (BCBSA) and multiple other insurance companies,
including Triple-S and all members of the BCBSA.
The individual plaintiffs brought the suit on behalf of
themselves and a class of similarly situated physicians seeking
redress for alleged illegal acts of the defendants, which are
alleged to have resulted in a loss of plaintiff's property and a
detriment to their business, and for declaratory and injunctive
relief to end those practices and prevent further losses.
Plaintiffs alleged that the defendants, on their own and as part
of a common scheme, systematically deny, delay and diminish the
payment due to the doctors so that they are not paid in a timely
manner for the covered, medically necessary services they
render.
The class action complaint alleges that the company's health
care plans are the agents of BCBSA licensed entities, and as
such have committed the acts alleged above and acted within the
scope of their agency, with the consent, permission,
authorization and knowledge of the others, and in furtherance of
both their interest and the interests of other defendants.
The company believes that Triple-S was made a party to this
litigation for the sole reason that Triple-S is associated with
the BCBSA.
On June 25, 2004, plaintiffs amended the complaint but the
allegations against Triple-S did not vary. Triple-S along with
the other defendants, moved to dismiss the complaint on multiple
grounds, including but not limited to arbitration and
applicability of the McCarran Ferguson Act.
The court issued a 90-day stay to allow the parties to discuss
their differences and come to an amicable agreement. The stay
expired on March 7, 2006.
Upon the expiration of the stay, both plaintiffs and defendants
agreed to request the Court to extend the stay until April 21,
2006. The stay expired and the parties informed the court that
they need additional time to iron out the details of an amicable
solution.
The court has not reacted to the parties' joint request. If the
court denies another stay, the parties will have to continue the
proceedings where they were left before the issuance of the
first stay.
In the meantime, the court issued an agreed order on the
preservation of records. This order supersedes the parties'
existing record-keeping policies in regards to the documents and
materials specified in the order. The purpose of the order is
to avoid the disposition of documents that might be relevant for
the case.
During September 2006, the court, sua sponte, ordered the
parties to engage in mediation with former U.S. District Judge
Edward Davis. Judge Davis divided the group of plans into
smaller groups to facilitate the process.
Since September the parties have been engaged in mediation,
which according to the company's Nov. 13, 2006 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended Sept. 30, 2006, was to end by December
2006.
The suit is "Jeffrey Solomon, MD, et al. v. the Blue Cross Blue
Shield Association, et al."
TRIPLE-S MANAGEMENT: "Sanchez" Plaintiff's Appeal Still Pending
---------------------------------------------------------------
The U.S. Court of Appeals for the First Circuit has yet to set a
hearing date for an appeal with regards to the dismissal of the
class action, "Sanchez, et al. v. Triple-S Management, et al."
The purported class action, filed in the U.S. District Court for
the District of Puerto Rico, alleges violations under the
Racketeer Influenced and Corrupt Organizations Act against:
-- Triple-S Management Corp.;
-- certain of its present and former directors;
-- certain of Triple-S, Inc.'s present and former
directors and others.
Filed on Sept. 4, 2003 by Jose Sanchez, the suit specifically
alleges, a scheme to defraud the plaintiffs by acquiring control
of Triple-S, Inc. through illegally capitalizing Triple-S and
later converting it to a for-profit corporation and depriving
the stockholders of their ownership rights.
Plaintiffs base their later allegations on the supposed
decisions of Triple-S' board of directors and stockholders,
allegedly made in 1979, to operate with certain restrictions in
order to turn Triple-S into a charitable corporation, basically
forever.
On March 4, 2005 the court issued an Opinion and Order. In this
opinion and order, of the 12 counts included in the complaint,
eight counts were dismissed for failing to assert an actionable
injury, six of them for lack of standing and two for failing to
plead with sufficient particularity in compliance with the
Rules.
All shareholder allegations were dismissed in the opinion and
order. The remaining four counts were found standing, in a
limited way, in the opinion and order.
Parties finished class certification discovery and fully briefed
the issue of class certification. While waiting for the court's
decision on the issue of class certification, the court, sua
sponte, issued an Order to Show Cause to plaintiffs as to why
the complaint should not be dismissed with prejudice.
The court's Order to Show Cause is predicated on the parties'
submissions about class certification. The court then granted
plaintiffs leave to file a sur-reply, which they did on April
21, 2006.
In its Order to Show Cause the court indicated that it would
decide first the sustainability of the complaint before deciding
plaintiffs' request for class certification.
On May 4, 2006, the court issued an opinion and order, which
entered a summary judgment in favor of all the defendants, and
dismissing the case.
Plaintiffs filed a notice of appeal before the U.S. Court of
Appeals for the First Circuit. The Appeals Court notified the
briefing schedule, and plaintiffs filed their brief on Aug. 21,
2006. Respondent filed theirs on Sept. 30, 2006.
The court has yet to notify the date for the hearing to argue
the case, according to the company's Nov. 13, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Sept. 30, 2006.
The suit is "Sanchez, et al. v. Triple-S Management, et al.,
Case No. 3:03-cv-01967-JAF," filed in the U.S. District Court
for the District of Puerto Rico under Judge Jose A. Fuste.
Representing the plaintiffs are:
(1) Robert G. Blakey, 1341 East Wayne Street North, South
Bend, IN 46615, Phone: 219-239-5717;
(2) Paul H. Hulsey, Marco Tulio Torres-Moncada of
Hulsey Litigation Group, L.L.C., Charleston Harbor, 2
Wharfside 3, Charleston, SC 29401, Phone: 843-723-5303,
Fax: 843-723-5307, E-mail:
phulsey@hulseylitigationgroup.com; and
(3) Eric M. Quetglas-Jordan, Quetglas Law Office, PO Box
16606, San Juan, PR 00908-6606, Phone: 787-722-7745,
Fax: 787-725-3970, E-mail: quetglaslaw@hotmail.com.
Representing the company are Seth B. Kosto and Gael Mahony, 10
St. James Avenue, Boston, MA 02114, Phone: 617-523-2700, Fax:
617-523-6850.
UNITED STATES: Peanuts Farmers Get $30M for Insurance Losses
------------------------------------------------------------
Judge Malcolm Howard of the U.S. District Court for the Eastern
District of North Carolina awarded $30 million in damages to
peanut farmers in seven states whose crop insurance was slashed
by a government agency.
Judge Howard entered a final judgment for more than 3,870
farmers in North Carolina, Virginia, Texas, South Carolina,
Georgia, Alabama and Florida who suffered heavy crop losses in
2002, only to find their federally-backed insurance cut in half.
The coverage reduction was triggered by the Farm Security and
Rural Investment Act of 2002, which eliminated the quota system
for peanuts. The problem for the farmers was that when they
planted their fields, insurance contracts purchased from one
government agency gave them coverage at $0.31 per pound for all
"quota" peanuts.
After the Farm Security Act eliminated the old system, a
different agency designated all peanuts as "non-quota" and
arbitrarily lowered the coverage rate to $0.1775 per pound. The
switch exposed each plaintiff peanut farmer to thousands of
dollars in uninsured losses after the peanut crop that year was
hit by drought and at harvest time soaked by heavy rains.
The plaintiffs, on behalf of all peanut farmers, filed a class
action for breach of contract.
Those who administered the crop insurance program and were named
defendants in the suit, included:
-- the Federal Risk Management Agency;
-- Ross J. Davidson, Federal Risk Management Agency
administrator;
-- the U.S. Department of Agriculture;
-- Ann M. Veneman, USDA Secretary; and
-- the U.S. of America.
After certifying the class action, Judge Howard ruled as a
matter of law for the plaintiffs on the contract claims. Judge
Howard ruled that it was fundamentally wrong for the government
to tell the farmers that they would have insurance coverage at
$0.31 per pound for as many peanuts as the Food Standards Agency
declared to be quota peanuts, and then, after all the key
contract dates had passed and the farmers had planted their
crops, to tell the FSA not to declare any quota peanuts.
Boyce and Isley of Raleigh, North Carolina has been named class
counsel in each of the lawsuits.
Dan Boyce of Boyce and Isley said, "North Carolina peanut
farmers and farmers throughout the nation had made all their
necessary financial and credit preparations and had actually
begun planting their crops before the Government stepped in and
unfairly cut their protection almost in half. The 2002 drought
during the growing season and heavy rains at harvest time were
devastating to the peanut crops that year. Some farmers lost
all or most of their 2002 crops and income from peanuts. Some
of the clients had to go out of business and others still owed
their banks thousands of dollars on crop losses that they
thought were fully insured. This was a terrible injustice to
the farmers that should have been corrected over four years
ago."
Judge Howard entered final judgment in the amount of
approximately $30 million. The losses per state are as:
-- 705 North Carolina peanut farmers stand to recover
approximately $3.5 million;
-- 332 Virginia peanut farmers stand to recover
approximately $2.4 million;
-- 21 South Carolina peanut farmers stand to recover
approximately $172,683;
-- 1,641 Georgia peanut farmers stand to recover
approximately $11.7 million;
-- 367 Texas peanut farmers stand to recover approximately
$3.4 million;
-- 625 Alabama peanut farmers stand to recover
approximately $7.6 million; and
-- 188 Florida peanut farmers stand to recover
approximately $1.0 million.
The government recently indicated they will now drag the four
year old case out even longer through the appellate courts.
In cases of Government wrongdoing, the ultimate resolution is
for the legislature (Congress) to appropriate the settlement
funds or otherwise order payment by the pertinent agency.
As to the Government's actions, Mr. Boyce said, "It is our
understanding the Department of Agriculture has already been
appropriated sufficient funds to cover the losses. For four
years the Government has resisted any efforts to resolve the
matter and has refused to meet or even consider settlement, even
after the Court ruled for farmers. We think it is only fair
that the Government go ahead and give the farmers their
insurance money rather than continue to drag this case out
through the appellate courts and we hope elected officials will
persuade the Department of Agriculture and Department of Justice
to do the right thing."
Representing plaintiffs is R. Daniel Boyce of Boyce & Isley,
PLLC, P. O. Box 1990, Raleigh, NC 27602-1990, Phone: 919-833-
7373, Fax: 919-833-7536, E-mail: dboyce@boyceisley.com.
VITRIA TECHNOLOGY: N.Y. Court Mulls Final OK for IPO Suit Deal
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to issue an order with respect to the final approval of
the settlement of the consolidated securities class action
against Vitria Technology, Inc.
In November 2001, the company and certain of its officers and
directors were named as defendants in a class action shareholder
complaint filed in the U.S. District Court for the Southern
District of New York, now captioned, "In re Vitria Technology,
Inc. IPO Securities Litigation, Case No. 01-CV-10092."
In the amended complaint, the plaintiffs allege that the
company, certain of its officers and directors, and the
underwriters of the company's initial public offering, or the
IPO, violated federal securities laws because company's IPO
registration statement and prospectus contained untrue
statements of material fact or omitted material facts regarding
the compensation to be received by, and the stock allocation
practices of, the IPO underwriters.
The plaintiffs seek unspecified monetary damages and other
relief. Similar complaints were filed in the same court against
hundreds of public companies, or the Issuers, which first sold
their common stock since the mid-1990s, or the IPO Lawsuits.
The IPO Lawsuits were consolidated for pretrial purposes before
U.S. Judge Shira Scheindlin of the Southern District of New
York. Defendants filed a global motion to dismiss the IPO-
related lawsuits on July 15, 2002.
In October 2002, company's officers and directors were dismissed
without prejudice pursuant to a stipulated dismissal and tolling
agreement with the plaintiffs. On Feb. 19, 2003, Judge
Scheindlin issued a ruling denying in part and granting in part
the Defendants motions to dismiss.
In June 2003, company's Board of Directors approved a resolution
tentatively accepting a settlement offer from the plaintiffs
according to the terms and conditions of a comprehensive
Memorandum of Understanding negotiated between the plaintiffs
and the Issuers.
Under the terms of the settlement, the plaintiff class will
dismiss with prejudice all claims against the Issuers, including
the company and its current and former directors and officers,
and the Issuers will assign to the plaintiff class or its
designee certain claims that they may have against the IPO
underwriters.
In addition, the tentative settlement guarantees that, in the
event that the plaintiffs recover less than $1.0 billion in
settlement or judgment against the underwriter defendants in the
IPO Lawsuits, the plaintiffs will be entitled to recover the
difference between the actual recovery and $1.0 billion from the
insurers for the Issuers.
In June 2004, the company executed a final settlement agreement
with the plaintiffs consistent with the terms of the Memorandum
of Understanding.
On Feb. 15, 2005, the Court issued a decision certifying a class
action for settlement purposes and granting preliminary approval
of the settlement subject to modification of certain bar orders
contemplated by the settlement.
On Aug. 31, 2005, the Court reaffirmed class certification and
preliminary approval of the modified settlement in a
comprehensive Order, and directed that Notice of the settlement
be published and mailed to class members beginning Nov. 15,
2005.
On Feb. 24, 2006, the Court dismissed litigation filed against
certain underwriters in connection with the claims to be
assigned to the plaintiffs under the settlement.
On April 24, 2006, the Court held a Final Fairness Hearing to
determine whether to grant final approval of the settlement.
The Court's decision on final approval of the settlement remains
pending, according to the company's form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Sept. 30.
For more details, visit http://www.iposecuritieslitigation.com/.
WR GRACE: Wants Court to Reject Speights & Runyanss Requests
------------------------------------------------------------
W.R. Grace & Co. and its debtor-affiliates ask the U.S.
Bankruptcy Court District of Delaware to deny Speights &
Runyan's deposition notices and discovery requests because they:
(1) seek information that is irrelevant and not reasonably
calculated to lead to the discovery of information
relevant to Anderson class certification;
(2) are extremely burdensome and overly broad, in that they
seek "all documents" relating to 16 broad document
requests and 11 broad deposition topics;
(3) seek production of documents and deposition testimony
that are subject to privileges, including the attorney-
client and work product privileges; and
(4) purport to impose obligations, burdens and duties on the
Debtors that vastly exceed the requirements or
permissible scope of discovery under the Federal Rules of
Bankruptcy Procedure.
Mr. O'Neill explains that to warrant class certification:
(x) a court must determine whether a class action "makes
sense" and will advance the bankruptcy's interests; and
(y) even if claimants can demonstrate that a class may be an
acceptable way to proceed in a particular bankruptcy
case, the claimants must also satisfy the Civil Rule 23
requirements of commonality, typicality and adequacy of
representation.
Moreover, Mr. O'Neill asserts that the Bankruptcy Court has
recognized that there was a bar date for PD Claims in March 2003
and that the Debtors' notice program was extensive. Therefore,
claims that have never been filed before the Bankruptcy Court
cannot be made part of a putative class, he maintains.
Anderson Responds
Christopher D. Loizides, Esq., at Loizides & Associates, in
Wilmington, Delaware, relates that Rule 408 of the Federal Rules
of Evidence does not create immunity from discovery of the
conduct and statements of the Debtors and their representatives.
"Anderson is entitled to this discovery to develop the factual
predicate upon which the Debtors' statements and conduct were
based, as well as to create a record for impeachment of the
Debtors and the factual assertions it has made regarding the
Anderson Class Certification Motion," Mr. Loizides asserts.
Accordingly, Anderson asks the Court to permit Speights'
discovery requests to go forward so that it can make an
admissibility determination under Rule 408, when the evidence is
offered.
Debtors Talk Back
Mr. O'Neill contends that Rule 408 reflects important policy
considerations. He explains that settlement offers are
irrelevant since they "may be motivated by a desire for peace
rather than from any concession of weakness of position."
The more consistently impressive ground for excluding evidence
of settlement negotiations, however, is that exclusion promotes
"the public policy favoring the compromise and settlement of
disputes," Mr. O'Neill avers.
Furthermore, Mr. O'Neill maintains that Rules 408 and 403 render
inadmissible the statements Grace made in the course of
purported Anderson settlement negotiations, for purposes of
supporting the Class Certification Motion.
Mr. O'Neill notes that Grace's purported efforts to settle the
South Carolina lawsuit are not even relevant to the requirements
for class certification, especially at this stage in bankruptcy
where:
(i) Grace implemented a multi-million dollar notice and bar
date program to bring all property damage claimants
before the Court;
(ii) the Court approved the notice and bar date program and
later concluded that the program was thorough; and
(iii) only 166 Speights U.S. Claims remain.
Mr. O'Neill insists that permitting Speights' discovery requests
to go forward would violate the "settlement privilege" that
protects the content of settlement negotiations from discovery.
James E. O'Neill, Esq., at Pachulski Stang Ziehl Young Jones &
Weintraub LLP, in Wilmington, Delaware, relates that on Oct. 30,
2006, Speights & Runyan served, on Anderson Memorial Hospital's
behalf, "extremely broad, non-tailored requests that once again
seek all documents in the Debtors' files on a host of issues
that have no bearing" on whether certification will advance the
interests of the Debtors' Chapter 11 cases or whether the
requirements of Rule 23 of the Federal Rules of Civil Procedure
can be met.
Mr. O'Neill notes that as of Nov. 6, 2006, there are
637 total pending asbestos property damage claims, including 166
U.S. Speights claims, 97 Canadian Speights claims, and only
three South Carolina claims -- even fewer claims than in January
2006, when the Bankruptcy Court initially recognized that the
numerosity requirement for class certification cannot be met.
Mr. O'Neill tells Judge Fitzgerald that Speights & Runyan has
requested deposition testimony and "all documents" regarding:
(i) Anderson's South Carolina lawsuit, Anderson's request to
certify in South Carolina, the certification hearing, any
purported efforts to delay the same, and circumstances
surrounding the South Carolina Circuit Court's
certification of a statewide class as to W.R. Grace &
Co.;
(ii) members or potential members of the putative Anderson
class;
(iii) damage estimates of Anderson's individual and class
claims;
(iv) any position the Debtors took with respect to Anderson's
request to be included on the Official Committee of
Asbestos Property Damage Claimants;
(v) any evaluation of Anderson's individual or class claims
before the Debtors' Petition Date; and
(vi) the Debtors' knowledge before Sept. 1, 2005, of
Anderson's individual and class proofs of claim.
Speights & Runyan also requested "all documents" relating to:
-- the identity of any asbestos-containing surface treatment
in any building owned or operated by Anderson and
potential membership of Anderson's putative class,
including buildings located in South Carolina and outside
of South Carolina;
-- communications with witnesses involving any issues in
Anderson's efforts to obtain class certification;
-- the Debtors' knowledge concerning the facts or factual
assertions relating to Anderson's putative class action;
-- any amount that could or should be set aside for the
resolution of Anderson's claim, including any insurance
reserve;
-- communications between the Debtors and insurers relating
to Anderson's claims; and
-- communications with any building owners regarding the
Anderson proofs of claim.
Headquartered in Columbia, Maryland, W.R. Grace & Co. (NYSE:GRA)
-- http://www.grace.com/-- supplies catalysts and silica
products, especially construction chemicals and building
materials, and container products globally. The company and its
debtor-affiliates filed for chapter 11 protection on April 2,
2001 (Bankr. D. Del. Case No. 01-01139). (W.R. Grace
Bankruptcy News, Issue No. 119; Bankruptcy Creditors' Service,
Inc., http://bankrupt.com/newsstand/or 215/945-7000).
XERIUM TECHNOLOGIES: Still Faces Securities Fraud Suit in Mass.
---------------------------------------------------------------
Xerium Technologies, Inc. remains a defendant in a purported
securities fraud class action filed in the U.S. District Court
for the District of Massachusetts.
On June 7, 2006, Parkside Capital Ltd. filed a purported class
action complaint on behalf of itself and all others similarly
situated against the company, the company's chief executive
officer and the company's chief financial officer. The company
was served with the complaint on June 8, 2006.
The complaint concerns the company's initial public offering of
common stock and alleges violations of Sections 11 and 12(a)(2)
and liability under Section 15 of the U.S. Securities Act of
1933.
Plaintiff seeks rescission rights, attorneys' fees and other
costs and unspecified damages on behalf of a purported class of
purchasers of the company's common stock "pursuant and/or
traceable to the company's IPO on or about May 16, 2005 through
Nov, 15, 2005."
The suit is "Parkside Capital Ltd. v. Xerium Technologies Inc.
et al., Case No. 1:06-cv-10991-RWZ," filed in the U.S. District
Court for the District of Massachusetts under Judge Rya W.
Zobel.
Representing the plaintiffs is Theodore M. Hess-Mahan of Shapiro
Haber & Urmy, LLP, 53 State Street, Boston, MA 02108, Phone:
617-439-3939, Fax: 617-439-0134, E-mail: ted@shulaw.com.
Representing the defendants is Seth C. Harrington of Ropes &
Gray, LLP, One International Place, Boston, MA 02110, Phone:
617-951-7226, Fax: 617-951-7050, E-mail:
seth.harrington@ropesgray.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice
Mendoza, Editors.
Copyright 2007. All rights reserved. ISSN 1525-2272.
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