/raid1/www/Hosts/bankrupt/CAR_Public/070116.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, January 16, 2007, Vol. 9, No. 11
Headlines
ALLSTATE INSURANCE: Loses in Bid to Stop Discovery in Arensburg
AMERICAN MEDICAL: Judge Allows Delay in Ambulance Bill Trial
ASSOCIATED ESTATES: No Ruling Yet in Suredeposit Program Lawsuit
ASTORIA FINANCIAL: N.Y. Court Certifies Mortgage Loan Fees Suit
BAXTER INT'L: Continues to Face ERISA Violations Suit in Ill.
BAXTER INT'L: Dismissal of 2004 Securities Fraud Suit on Appeal
CA INC: Investors Seek to Junk Final Judgment in N.Y. Stock Suit
CANADA: Phoenix Capital to Sue Ontario Securities Regulator
CARFAX INC.: Settles Consumers' Unfair Practices Lawsuit in OH
CARRIER ACCESS: Court Denies Bid to Dismiss Securities Lawsuit
CENTERPOINT ENERGY: Tex. Court Ruling in ERISA Lawsuit Appealed
CIENA CORP: Court Mulls Final Approval of IPO Suit Settlement
CMS ENERGY: Tenn. Court Considers Motion to Dismiss "Leggett"
CONCORD CAMERA: Fla. Securities Suit Hearing Set Jan. 26, 2007
CONOR MEDSYSTEMS: Faces Suet Over Johnson & Johnson Merger
DUANE READE: Continues to Face "Damassia" Labor Suit in N.Y.
DUANE READE: Still Faces "Chowdhury" Labor Litigation in N.Y.
DUANE READE: Female Store Workers Complain Over Work Environment
DUANE READE: Still Faces Suits in Del., N.Y. Over Oak Hill Deal
IPAYMENT INC: Parties Reach Settlement in "Fogazzo" Litigation
JNI CORP: N.Y. Court Mulls Final Approval of IPO Laddering Deal
KENTUCKY: Transfer of Property Valuation Litigation Considered
QUICKLOGIC CORP: Court Mulls Final Okay For IPO Suit Settlement
QVC INC: Recalls Pumpkin Candle Holders Due to Laceration Hazard
SEARS HOLDINGS: Consolidation Motion Filed in N.Y. Stock Lawsuit
SEARS HOLDINGS: Ill. Securities Fraud Suit Enters Discovery
SPORTSTUFF INC: Recalls Inflator Air Pumps for Laceration Hazard
STATE FARM: Negotiates Settlement in Miss. Katrina-Related Suit
RITA MEDICAL: Investors File Calif. Suit Over AngioDynamics Deal
TEMPUR-PEDIC INT'L: Faces Suit in Ga. Over Mattress Price-Fixing
TERAYON COMMUNICATION: Ernst & Young Named in Calif. Stock Suit
VATICAN: Ky. Judge Allows Priest Sex Abuse Litigation to Proceed
WILKKES & MCHUGH: Faces Tenn. Litigation Over Contingency Fees
XETHANOL CORP: Faces Multiple Securities Fraud Lawsuits in N.Y.
ZURICH FINANCIAL: Jan. 26 Hearing Set for $121.8 Brokerage Deal
New Securities Fraud Cases
CAPITAL RESEARCH: Scott + Scott Files Securities Suit in Calif.
*********
ALLSTATE INSURANCE: Loses in Bid to Stop Discovery in Arensburg
---------------------------------------------------------------
The Supreme Court of Appeals of West Virginia refused on Nov.
30, 2006 to issue a writ of prohibition to halt the enforcement
of a discovery order by the Circuit Court of Ohio County, West
Virginia in a suit against Allstate Insurance Co.
Petitioners in the case, Allstate Insurance Co. and claims
adjuster Joe Freme, asked the Supreme court to review whether
the circuit court's discovery order was overbroad and unduly
burdensome.
Douglas Arensburg, whose house, insured by Allstate, was damaged
by a fire in 2002, filed the suit on March 28, 2003. Mr. Freme
as the adjuster sent by Allstate estimated the damage as
"partial loss." A contractor inspected the house and estimated
the repairs would cost $21,330.48. Allstate approved the
estimate and agreed to pay the cost of the repairs.
Allstate payed him the balance of the estimate. Allstate
refused, contending that when insureds performed their own
repairs on their property, Allstate was entitled to reduce the
cost of the repairs by Allstate's estimate of the contractor's
overhead and profit.
Allstate and Mr. Freme seeking compensatory and punitive damages
for breach of contract, breach of the duty of good faith and
fair dealing, and violation of the West Virginia Unfair Trade
Practices Act. The respondent also sought class action relief,
contending that there existed a class of Allstate policyholders
whose insurance payments in partial loss claims, where the
policyholders performed the repairs rather than a contractor,
were wrongfully reduced by Allstate's estimate of the
contractor's overhead and profit.
Along with the complaint, counsel for Mr. Arensburg served
numerous discovery requests upon Allstate. On June
21, 2006, the circuit court entered an order granting the
respondent's motion to compel discovery and denying Allstate's
motion for a protective order.
On July 26, 2006, Allstate filed a petition for a writ of
prohibition with the Supreme Court seeking to halt enforcement
of the circuit court's July 21, 2006 order.
On Nov. 30, the Supreme Court issued a ruling denying Allstate a
writ of prohibition, finding no sufficient evidence that the
circuit court abused its discretion in requiring Allstate to
respond to the respondent's discovery requests.
The court stated: "In the instant case, the information sought
in the respondent's discovery requests is clearly relevant and
material to determining whether Allstate violated the Unfair
Trade Practices Act as a general business practice, and whether
Allstate acted with the requisite bad faith or malice required
for the imposition and calculation of punitive damages."
"The information sought through discovery substantively bears on
the issues which the respondent hopes to be resolved at trial."
A copy of the ruling is available for free at:
http://ResearchArchives.com/t/s?1881
The case is No. 33172. Representing the Petitioners are:
P. Nathan Bowles, Jr., Esq. and Charles M. Love, III, Esq. at
Bowles Rice McDavid Graff & Love, PLLC, Charleston, West
Virginia.
Representing the Respondents are: Robert P. Fitzsimmons, Esq at
Fitzsimmons Law Offices, Wheeling West Virginia; Michael W.
McGuane, Esq at McGuane Law Offices, Wheeling, West Virginia;
Thomas E. McIntire, Esq. at Thomas E. McIntire & Associates, LC,
Wheeling West Virginia.
AMERICAN MEDICAL: Judge Allows Delay in Ambulance Bill Trial
------------------------------------------------------------
Superior Court Judge Jerome Leveque in Washington granted a
trial date delay for class action that accuses American Medical
Response of overbilling patients for its ambulance services, The
Spokesman-Review reports.
Plaintiffs' attorney D. Roger Reed sought the delay citing that
he has not received city records identifying a complete list of
patients who received care from Spokane Fire Department
paramedics before being transported to hospitals by AMR
ambulance.
Mr. Reed specifically told the court at a Jan. 12 hearing that
those affected by the suit would be city residents transported
by company ambulances responding to 911 calls going back to
1998.
Paul Dayton, AMR's attorney, who participated via telephone in
recent hearing, opposed delaying the scheduled April trial
saying that the case has been in the newspaper for over a year
and that his client wants to get it resolved.
In granting a delay, Judge Leveque told attorneys that it was
important for the "court to be cautious" in such lawsuits to
ensure all potential plaintiffs in a class action can be
identified and become involved.
The judge also told attorneys that he would pick a date in
August for the jury trial, where damages will be sought against
AMR.
Case Background
Generally, the suit alleges that the company engaged in an
ongoing practice of overcharging patients under a contract
sanctioned and monitored by city government (Class Action
Reporter, Feb. 1, 2006).
The suit alleges that patients picked up within the city of
Spokane are billed for more-expensive "advanced life support"
(ALS) services when they only need cheaper "basic life support"
(BLS). The ALS base rate is $480, compared with the BLS rate of
$348.
Filed on Dec. 13, 2005, the suit was brought on behalf of Lori
E. Davis-Bacon and Lorraine and Doug Bacon, all residents of
Spokane. It was certified as a class action in June 2006 (Class
Action Reporter, Aug. 23, 2006).
The company, a subsidiary of Emergency Medical Services Corp.,
is the nation's largest provider of ambulance service. It
currently has a five-year contract with the city of Spokane,
which expires in 2008. That contract gives the company the
exclusive right to transport patients within the city.
For more details, contact:
(1) [Plaintiffs] D. Roger Reed of Reed & Giesa, P.S. 222
North Wall, Suite 410, Spokane, Washington 99201,
(Spokane Co.), Phone: 509-838-8341; Fax: 509-838-6341;
and
(2) [Defendant] Paul J. Dayton at Short Cressman & Burgess
PLLC, Wells Fargo Center, 999 Third Avenue, Suite 3000
Seattle, Washington 98104-4088 (King Co.), Phone: 206-
682-3333, Fax: 206-340-8856.
ASSOCIATED ESTATES: No Ruling Yet in Suredeposit Program Lawsuit
----------------------------------------------------------------
The Franklin County, Ohio Court of Common Pleas has yet to rule
on a motion for summary judgment filed by Associated Estates
Realty Corp. in a suit filed against it over the company's
Suredeposit program.
On or about April 14, 2002, Melanie and Kyle Kopp commenced an
action against the company in the Franklin County, Ohio Court of
Common Pleas seeking undetermined damages, injunctive relief and
class action certification. This case arose out of the
company's Suredeposit program.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
Plaintiffs allege that the non-refundable premium paid for the
bond is a disguised form of security deposit, which is otherwise
required to be refundable in accordance with Ohio's Landlord-
Tenant Act.
They further allege that certain pet deposits and other
nonrefundable deposits required by the company are similarly
security deposits that must be refundable in accordance with
Ohio's Landlord-Tenant Act.
On or about Jan. 15, 2004, the plaintiffs filed a motion for
class certification. The company subsequently filed a motion
for summary judgment.
Both 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, 2006.
ASTORIA FINANCIAL: N.Y. Court Certifies Mortgage Loan Fees Suit
---------------------------------------------------------------
Astoria Financial Corp. remains a defendant in a purported class
action filed in the U.S. District Court for the Eastern District
of New York, claiming that the company's charging of attorney
document preparation fees, recording fees, and facsimile fees
for mortgage loans violate state laws.
In 2004, David McAnaney and Carolyn McAnaney, individually and
on behalf of all others similarly situated filed the suit
against Astoria Financial Corp., and other defendants (Class
Action Reporter, Nov. 23, 2006).
The action, commenced as a punitive class action, alleges that
in connection with the satisfaction of certain mortgage loans
made by Astoria Federal, The Long Island Savings Bank, FSB,
which was acquired by Astoria Federal in 1998, and their related
entities, customers were charged attorney document preparation
fees, recording fees and facsimile fees allegedly in violation
of:
-- the federal Truth in Lending Act,
-- the Real Estate Settlement Procedures Act (RESPA),
-- the Fair Debt Collection Act (FDCA), and
-- the New York State Deceptive Practices Act
The suit also alleges unjust enrichment and common law fraud.
Astoria Federal previously moved to dismiss the amended
complaint, which motion was granted in part and denied in part,
dismissing claims based on violations of RESPA and FDCA.
The court further determined that class certification would be
considered prior to considering summary judgment. On Sept. 19,
2006, the court granted the plaintiff's motion for class
certification.
The class comprises current or former customers who obtained
residential loans carrying fees deemed in violation of the
contract or the law. Court filings revealed that the case could
involve tens of thousands of current and former customers, e
report by Newsday indicated.
According to filings with the U.S. Securities and Exchange
Commission, Astoria Federal gets millions of dollars in fees for
servicing loans: $5 million in 2005, down from $5.8 million in
2004.
The suit is "McAnaney et al v. Astoria Financial Corporation et
al., Case No. 2:04-cv-01101-JFB-WDW," filed in the U.S. District
Court for the Eastern District of New York under Judge Joseph F.
Bianco with referral to Judge William D. Wall.
Representing the plaintiffs are:
(1) G. Oliver Koppell, 99 Park Avenue, Suite 800, New York,
NY 10016, Phone: 212-368-0400, Fax: 212-973-9494, E-
mail: okoppell@koppellaw.com; and
(2) Joseph S. Tusa at Whalen & Tusa, P.C., 90 Park Avenue,
New York, NY 10016, Phone: 212-786-7377, Fax: 212-658-
9685, E-mail: joseph@whalen-tusa.com.
Representing the defendants are:
(1) Alfred W.J. Marks at Day, Berry & Howard, LLP, 875
Third Avenue, 28th Floor, New York, NY 10022, Phone:
212-829-3634, Fax: 212-829-3601, E-mail:
awjmarks@dbh.com; and
(2) Lisa Pepe Whittaker at Day Berry & Howard LLP, 875
Third Avenue, New York, NY 10022, US, Phone: 212-829-
3600, Fax: 212-829-3601, E-mail: lpwhittaker@dbh.com.
BAXTER INT'L: Continues to Face ERISA Violations Suit in Ill.
-------------------------------------------------------------
Baxter International Inc. remains a defendant in a lawsuit filed
in the U.S. District Court for the Northern District of Illinois
alleging Employee Retirement Income Security Act violations.
In October 2004, a purported class action was filed in the
Northern District of Illinois against Baxter and its current
chief executive officer and then current chief financial officer
and their predecessors for alleged violations of the Employee
Retirement Income Security Act of 1974 (ERISA), as amended.
Plaintiff alleges that these defendants, along with the
Administrative and Investment Committees of the company's 401(k)
plans, breached their fiduciary duties to the plan participants
by offering Baxter common stock as an investment option in each
of the plans during the period of January 2001 to October 2004.
Plaintiff alleges that Baxter common stock traded at
artificially inflated prices during this period and seeks
unspecified damages and declaratory and equitable relief. In
March 2006, the trial court certified a class of plan
participants who elected to acquire Baxter common stock through
the plans between January 2001 and the present. The court
denied defendants' motion to dismiss but has allowed Baxter to
seek an interlocutory appeal of the decision.
The company reported no development in 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 "Rogers v. Baxter Intl. Inc., et al., Case No. 1:04-
cv-06476," filed in the U.S. District Court for the District of
Colorado under Judge Joan B. Gottschall. Representing the
plaintiffs are:
(1) Robert D. Allison of Robert D. Allison & Associates,
122 S. Michigan Avenue, Ste. 1850, Chicago, IL 60603,
Phone: 427-4500, E-mail: rdalaw@ix.netcom.com; and
(2) Michael M. Mulder of Meites, Mulder, Mollica & Glink,
20 South Clark Street, Suite 1500, Chicago, IL 60603,
Phone: (312) 263-0272, Fax: (312) 263-2942, E-mail:
mmmulder@mmbmlaw.com.
Representing the defendants is Matthew Robert Kipp of Skadden
Arps Slate Meagher & Flom, LLP, 333 West Wacker Drive, Suite
2100, Chicago, IL 60606, Phone: (312) 407-0700, E-mail:
mkipp@skadden.com.
BAXTER INT'L: Dismissal of 2004 Securities Fraud Suit on Appeal
---------------------------------------------------------------
Plaintiffs in securities fraud suits filed against Baxter
International Inc. in 2004 are appealing the dismissal of the
suit by the U.S. District Court for the Northern District of
Illinois.
In July 2004, a series of four purported class actions, now
consolidated, were filed in the U.S. District Court for the
Northern District of Illinois, in connection with the company's
restatement of its consolidated financial statements, previously
announced in July 2004, naming Baxter and its current chief
executive officer and then current chief financial officer and
their predecessors as defendants.
The lawsuits allege that the defendants violated the federal
securities laws by making false and misleading statements
regarding the company's financial results, which allegedly
caused Baxter common stock to trade at inflated levels during
the period between April 2001 and July 2004.
As of December 2005, the District Court had dismissed the last
of the remaining actions. The matter is on appeal, according to
the company's form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30, 2006.
In August and September 2004, three plaintiffs raised similar
allegations based on breach of fiduciary duty in separate
derivative actions filed against members of the company's
management and directors and consolidated in the Circuit Court
of Cook County Illinois.
The Circuit Court dismissed those claims in December 2005 on
defendants' motion, and the time for the plaintiffs to appeal
has expired.
One of the plaintiffs thereafter sent to the company's board of
directors a letter demanding that the company take action to
recover sums paid to certain directors and employees, which
demand the board of directors has taken under advisement.
CA INC: Investors Seek to Junk Final Judgment in N.Y. Stock Suit
----------------------------------------------------------------
A motion to vacate the Order of Final Judgment and Dismissal
entered by the U.S. District Court for the Eastern District of
New York in connection with the settlement of the 1998 and 2002
stockholder lawsuits against CA, Inc. has been filed.
Stockholder Class Action and Derivative Lawsuits
The company, its former chairman and chief executive Charles B.
Wang, its former chairman and chief executive Sanjay Kumar, its
former chief financial officer Ira Zar, and its executive vice
president Russell M. Artzt were defendants in one or more
stockholder class actions, filed in July 1998, February 2002,
and March 2002 in the U.S. District Court for the Eastern
District of New York.
The suits alleges among other things, that a class consisting of
all persons who purchased the company's common stock during the
period from Jan. 20, 1998 until July 22, 1998 were harmed by
misleading statements, misrepresentations, and omissions
regarding the company's future financial performance.
In addition, in May 2003, a class action, "John A. Ambler v.
Computer Associates International, Inc., et al." was filed in
the federal court.
The complaint in this matter, a purported class action on behalf
of the CA Savings Harvest Plan (the CASH Plan) and the
participants in, and beneficiaries of, the CASH Plan for a class
period running from March 30, 1998, through May 30, 2003,
asserted claims of breach of fiduciary duty under the federal
Employee Retirement Income Security Act.
The named defendants were the company, the company's board of
directors, the CASH Plan, the Administrative Committee of the
CASH Plan, and the following current or former employees and/or
former directors of the company: Messrs. Wang, Kumar, Zar,
Artzt, Peter A. Schwartz, and Charles P. McWade; and various
unidentified alleged fiduciaries of the CASH Plan.
The complaint alleged that the defendants breached their
fiduciary duties by causing the CASH Plan to invest in company
securities and sought damages in an unspecified amount.
Derivative Lawsuit
Charles Federman filed a derivative lawsuit against certain
current and former directors of the company, based on
essentially the same allegations as those contained in the
February and March 2002 stockholder lawsuits. This action was
commenced in April 2002 in Delaware Chancery Court, and an
amended complaint was filed in November 2002.
The defendants named in the amended complaint were the company
as a nominal defendant, current company directors Mr. Lewis S.
Ranieri, and The Honorable Alfonse M. D'Amato, and former
Company directors Ms. Shirley Strum Kenny and Messrs. Wang,
Kumar, Artzt, Willem de Vogel, Richard Grasso, and Roel Pieper.
The derivative suit alleged breach of fiduciary duties on the
part of all the individual defendants and, as against the former
management director defendants, insider trading on the basis of
allegedly misappropriated confidential, material information.
The amended complaint sought an accounting and recovery on
behalf of the company of an unspecified amount of damages,
including recovery of the profits allegedly realized from the
sale of common stock of the company.
Settlement
On Aug. 25, 2003, the company announced the settlement of all
outstanding litigation related to the above-referenced
stockholder and derivative actions as well as the settlement of
an additional derivative action filed by Charles Federman that
had been pending in Delaware.
As part of the class action settlement, which was approved by
the federal court in December 2003, the company agreed to issue
a total of up to 5.7 million shares of common stock to the
stockholders represented in the three class actions, including
payment of attorneys' fees.
The company has completed the issuance of the settlement shares
as well as payment of $3.3 million to the plaintiffs' attorneys
in legal fees and related expenses.
In settling the derivative suits, which settlement was also
approved by the federal court in December 2003, the xompany
committed to maintain certain corporate governance practices.
Under the settlement, the company, the individual defendants and
all other current and former officers and directors of the
company were released from any potential claim by stockholders
arising from accounting-related or other public statements made
by the company or its agents from January 1998 through February
2002 (and from January 1998 through May 2003 in the case of the
employee ERISA action).
Motions to vacate Final Judgment and Dismissal Order
The individual defendants were released from any potential claim
by or on behalf of the company relating to the same matters. On
Oct. 5, 2004 and Dec. 9, 2004, four purported company
stockholders served motions to vacate the Order of Final
Judgment and Dismissal entered by the federal court in December
2003 in connection with the settlement of the derivative action.
These motions primarily seek to void the releases that were
granted to the individual defendants under the settlement. On
Dec. 7, 2004, a motion to vacate the order of final judgment and
dismissal entered by the federal court in December 2003 in
connection with the settlement of the 1998 and 2002 stockholder
lawsuits was filed by Sam Wyly and certain related parties.
The motion seeks to reopen the settlement to permit the moving
stockholders to pursue individual claims against certain present
and former officers of the company.
The motion states that the moving stockholders do not seek to
file claims against the company. These motions (the 60(b)
Motions) have been fully briefed.
On June 14, 2005, the Federal Court granted movants' motion to
be allowed to take limited discovery prior to the Federal
Court's ruling on the 60(b) Motions. Such discovery is ongoing.
No hearing date is currently set for the 60(b) Motions,
according to the company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30.
CANADA: Phoenix Capital to Sue Ontario Securities Regulator
-----------------------------------------------------------
Phoenix Capital Income Trust said that Jim Hamilton, the chief
executive of the Trust, has advised the other trustees that he
has served a notice on the Minister of Government Services and
the Attorney General for Ontario that he intends to commence
proceedings against certain employees of the Ontario Securities
Commission and seek certification as a class action on behalf of
beneficiaries of the Trust, creditors of the Trust and service
providers to the Trust, all of whom have sustained damages.
Phoenix Capital Income Trust historically provided liquidity to
the Canadian real estate syndicate market by acquiring interests
from persons involved in financially sound but illiquid
partnerships or managed joint ventures that own real property
primarily located in Canada.
Contacts: Phoenix Capital Income Trust Jim Hamilton or Michael
Pereira, Phone: (416) 861-1940, Fax: (416) 849-0492, Email:
inquiry@phoenixcapital.com.
CARFAX INC.: Settles Consumers' Unfair Practices Lawsuit in OH
--------------------------------------------------------------
Carfax, Inc. settles a class action filed in the Court of Common
Pleas Trumbull County, Ohio.
In 2004, the law firm of Federman & Sherwood filed the complaint
alleging violations of the Ohio Sales Practices Act and Common
Law (Class Action Reporter, Aug. 11, 2004).
Plaintiff claims that Carfax violated the consumer protection
laws of all fifty states by not properly disclosing terms and
conditions for, and limitations of, Carfax Vehicle History
Reports.
The complaint further alleges that Carfax engages in unfair,
misleading and/or deceptive sales practices in connection with
the automobile database services that it offers to the public.
The class period is from October 1998 to the present.
The suit involves a nationwide scheme devised and implemented by
Defendants to market Carfax's Vehicle History Reports concerning
used automobiles in a manner which is unfair, false, deceptive
and materially misleading.
Carfax purports to conduct accident report searches for used
vehicles on a nationwide basis in order to determine for
consumers whether a specific used car has been involved in a
collision.
CarFax, however, failed to disclose to consumers that it does
not have the ability to access and search public accident
records in over twenty-three (23) states in the U.S.
Carfax denies all of Plaintiff's claims of wrongdoing.
Under the settlement, class members can claim:
-- a Voucher good for $20.00 off a vehicle inspection by a
designated third party within six months of final
approval of the settlement,
-- a Voucher good for two free Carfax Vehicle History
Reports from Carfax within one year of final approval of
the settlement,
-- a Voucher for one free Carfax Vehicle History Report
from Carfax within two years of final approval of the
settlement, or
-- a Voucher for 50% off an unlimited number of Carfax
Vehicle History Reports (for personal, not commercial
use) over 30 consecutive days within three years of
final approval of the settlement.
The Court will also order Carfax to make certain changes in its
disclosures and contracting process with customers.
Carfax has also agreed that it will pay up to $566,000 in
attorneys' fees and costs if awarded by the Court.
The Court of Common Pleas, Trumbull County, Ohio will hold on
April 27, 2007, 1:00 p.m., a final approval hearing for the
settlement of the class action, "West v. Carfax, Inc., Case No.
04-CV-1898."
Deadline to file for exclusion is March 13, 2007. Deadline to
file for objection is March 27, 2007. Deadline to file claims is
May 27, 2007.
West v. Carfax, Inc. Settlement on the net:
http://www.westcarsettlement.com
The suit is "West v. Carfax, Inc., Case No. 04-CV-1898," filed
in the Court of Common Pleas, Trumbull County, Ohio under Judge
Andrew D. Logan.
Representing plaintiffs are William B. Federman of Federman &
Sherwood, 10205 North Pennyslvania, Oklahoma City, Oklahoma
73120; and Curtis J. Ambrosey of Ambrosey & Fredericka, 144
North Park Avenue, Suite 200, Warren, Ohio 44481.
Defendants are represented by Christopher M. Mason of Nixon
Peabody LLP, 437 Madison Avenue, New York, New York 10022; and
Hugh E. McKay of Porter Wright Morris & Arthur LLP, 925 Euclid
Avenue, Suite 1700, Cleveland, Ohio 44115.
CARRIER ACCESS: Court Denies Bid to Dismiss Securities Lawsuit
--------------------------------------------------------------
The U.S. District Court for the District of Colorado denied
Carrier Access Corp.'s motion to dismiss the consolidated
securities class action filed against it and certain of its
officers and directors.
Beginning on Jun. 2, 2005, three purported shareholder class
actions were filed against the company and certain company
officials. The cases were:
-- "Croker v. Carrier Access Corp., et al., Case No.
05-cv-1011-LTB,"
-- "Chisman v. Carrier Access Corp., et al., Case
No. 05-cv-1078-REB," and
-- "Sved v. Carrier Access Corp., et al, Case No.
05-cv-1280-EWN."
On Jan. 17, 2006, a consolidated amended complaint was filed.
The action is purportedly brought on behalf of those who
purchased the company's publicly traded securities between Oct.
21, 2003 and May 20, 2005.
Plaintiffs alleged that defendants made false and misleading
statements, purported to assert claims for violations of the
federal securities laws, and sought unspecified compensatory
damages and other relief.
The complaint was primarily based upon allegations of wrongdoing
in connection with the company's announcement of the company's
intention to restate previously issued financial statements for
the years ended Dec. 31, 2003 and 2004 and certain interim
periods in each of the years ended Dec. 31, 2003 and 2004.
On Mar. 17, 2006, the company moved to dismiss on numerous
grounds, including:
-- failure to state a claim;
-- failure to adequately plead a claim based upon
purported failure to disclose "saturation" and product
development delays;
-- failure to plead specific facts giving rise to a strong
inference that defendants knew or were reckless in not
knowing that the 2003 and 2004 Annual Reports on Form
10-K and Quarterly Reports on Form 10-Q contained
materially false financial statements; and
-- failure to plead motive for defendants to commit fraud
and failure to plead a violation of Section 20A of the
Exchange Act (15 U.S.C. Section 78t-1(a)).
On July 18, 2006, the court denied defendants' motions to
dismiss the consolidated complaint. No trial date has been set
for this matter.
The company reported no material development in the case at its
Nov. 3 form 10-Q filing with the U.S. Securities and Exchange
Commission for the quart ended Sept. 30, 2006.
The consolidated suit is "Croker v. Carrier Access Corp, et al.,
Case No. 1:05-cv-01011-LTB," filed in the U.S. District Court
for the District of Colorado under Judge Lewis T. Babcock.
Representing the plaintiffs are:
(1) Kip Brian Shuman, Dyer & Shuman, LLP, 801 East 17th
Avenue, Denver, CO 80218-1417, U.S.A., Phone: 303-861-
3003, Fax: 303-830-6920, E-mail:
KShuman@DyerShuman.com;
(2) Matthew M. Wolf, Allen & Vellone, P.C., 1600 Stout
Street, #1100 Denver, CO 80202, U.S.A., Phone: 303-534-
4499, E-mail: mwolf@allen-vellone.com; and
(3) Karen Jean Cody-Hopkins and Charles Walter Lilley,
Lilley & Garcia, LLP, 1600 Stout Street #1100, Denver,
CO 80202, U.S.A., Phone: 303-293-9800, Fax: 303-298-
8975, E-mail: kcody-hopkins@lilleygarcia.com or
clilley@lilleygarcia.com.
Representing the company is Karen Thomas Stefano of Wilson,
Sonsini, Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA
94304-1050, U.S.A., Phone: 650-493-9300, Fax: 650-493-6811, E-
mail: kstefano@wsgr.com.
CENTERPOINT ENERGY: Tex. Court Ruling in ERISA Lawsuit Appealed
---------------------------------------------------------------
Plaintiffs are appealing to the U.S. Court of Appeals for the
Fifth Circuit the ruling of the U.S. District Court for the
Southern District of Texas that granted the motion of
CenterPoint Energy, Inc. for summary judgment in a purported
class action alleging violations of the Employee Retirement
Income Security Act of 1974 (ERISA).
In May 2002, three class actions were filed in Houston federal
court on behalf of participants in various employee benefits
plans sponsored by CenterPoint Energy. Two of the lawsuits were
dismissed without prejudice.
In the remaining lawsuit, the company and certain current and
former members of its benefits committee are defendants. That
lawsuit alleged that the defendants breached their fiduciary
duties to various employee benefits plans, directly or
indirectly sponsored by the company, in violation of ERISA by
permitting the plans to purchase or hold securities issued by
the company when it was imprudent to do so, including after the
prices for such securities became artificially inflated because
of alleged securities fraud engaged in by the defendants.
The complaint sought monetary damages for losses suffered on
behalf of the plans and a putative class of plan participants
whose accounts held CenterPoint Energy or Reliant Resources,
Inc. securities, as well as restitution.
In January 2006, the federal district judge granted a motion for
summary judgment filed by the Company and the individual
defendants. The plaintiffs appealed the ruling to the U.S.
Court of Appeals for the Fifth Circuit.
The company reported no development in 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 "Boca Raton Police &, et al. v. Reliant Resources,
et al., Case No. 4:02-cv-01810," filed in the U.S. District
Court for the Southern District of Texas, Houston Division under
Judge Ewing Werlein, Jr. Representing the plaintiffs are:
(1) Jacks C. Nickens of Nickens Keeton et al, 600 Travis
Ste 7500, Houston, TX 77002, Phone: 713-571-9191, Fax:
713-571-9652;
(2) Niki L. O'Neel, Alan Schulman, David R. Stickney,
Bernstein Litowitz et al, 12544 High Bluff Dr., Ste
150, San Diego, CA 92130, Phone: 858-793-0070; and
(3) Peter A. Pease, Michael J. Pucillo, Wendy Hope
Zoberman, Berman DeValerio & Pease, One Liberty Square,
Boston, MA 09109, Phone: 617-542-8300, Fax: 617-542-
1194.
Representing the company is James Edward Maloney of Baker &
Botts, 910 Louisiana, Ste 3000, Houston, TX 77002, Phone: 713-
229-1255, Fax: 713-229-7755.
CIENA CORP: Court Mulls Final Approval of 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 against
Ciena Corp., according to the company's Jan. 10, 2007 form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Oct. 31, 2006.
As a result of its merger with ONI Systems Corp. in June 2002,
the company became a defendant in a securities class action.
Beginning in August 2001, a number of substantially identical
class action complaints alleging violations of the federal
securities laws were filed against the company in the U.S.
District Court for the Southern District of New York.
These complaints name ONI, Hugh C. Martin, ONI's former
chairman, president and chief executive officer; Chris A. Davis,
ONI's former executive vice president, chief financial officer
and administrative officer; and certain underwriters of ONI's
initial public offering as defendants.
The complaints were consolidated into a single action, and a
consolidated amended complaint was filed on April 24, 2002. The
amended complaint alleges, among other things, that the
underwriter defendants violated the securities laws by failing
to disclose alleged compensation arrangements -- such as
undisclosed commissions or stock stabilization practices -- in
the initial public offering's registration statement and by
engaging in manipulative practices to artificially inflate the
price of ONI's common stock after the initial public offering.
The amended complaint also alleges that ONI and the named former
officers violated the securities laws on the basis of an alleged
failure to disclose the underwriters' alleged compensation
arrangements and manipulative practices. No specific amount of
damages has been claimed.
Similar complaints have been filed against more than 300 other
issuers that have had initial public offerings since 1998, and
all of these actions have been included in a single coordinated
proceeding.
Mr. Martin and Ms. Davis have been dismissed from the action
without prejudice pursuant to a tolling agreement.
In July 2004, following mediated settlement negotiations, the
plaintiffs, the issuer defendants (including the company), and
their insurers entered into a settlement agreement, whereby the
plaintiffs' cases against the issuers are to be dismissed.
The plaintiffs and issuer defendants subsequently moved the
court for preliminary approval of the settlement agreement,
which motion was opposed by the underwriter defendants.
On Feb. 15, 2005, the district court granted the motion for
preliminary approval of the settlement agreement, subject to
certain modifications to the proposed bar order, and directed
the parties to submit a revised settlement agreement reflecting
its opinion.
On Aug. 31, 2005, the district court issued a preliminary order
approving the stipulated settlement agreement, approving and
setting dates for notice of the settlement to all class members.
A fairness hearing was held on April 24, 2006, at which time the
court took the matter under advisement. The settlement
agreement does not require the company to pay any amount toward
the settlement or to make any other payments.
On Dec. 5, 2006, the U.S. Court of Appeals for the Second
Circuit vacated the district court's grant of class
certification in the six focus cases.
Because the settlement agreement involves certification of a
settlement class as part of the approval process, the impact of
the Second Circuit's decision on the settlement remains unclear.
For more details, visit http://www.iposecuritieslitigation.com/.
CMS ENERGY: Tenn. Court Considers Motion to Dismiss "Leggett"
-------------------------------------------------------------
The Chancery Court of Fayette County, Tennessee has yet to rule
on a motion to dismiss the class action, "Samuel D. Leggett, et
al. v. Duke Energy Corp., et al.," in which CMS Energy Corp. is
a defendant.
Filed in January 2005, the class action complaint was brought on
behalf of retail and business purchasers of natural gas in
Tennessee.
The complaint contains claims for violations of the Tennessee
Trade Practices Act based upon allegations of false reporting of
price information by defendants to publications that compile and
publish indices of natural gas prices for various natural gas
hubs.
The complaint seeks statutory full consideration damages and
attorneys fees and injunctive relief regulating defendants'
future conduct. Defendants include the company, CMS Marketing,
Services and Trading Co. (CMS MST) and CMS Field Services, Inc.
On Aug. 10, 2005, certain defendants, including CMS MST, filed a
motion to dismiss and CMS Energy and CMS Field Services also
filed a motion to dismiss citing lack of personal jurisdiction.
Defendants attempted to remove the case to federal court, but it
was remanded to state court by a federal judge. Plaintiffs have
opposed the motions to dismiss and they remain pending,
according to the company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
Sept. 30, 2006.
CMS Energy Corp. on the Net: http://www.cmsenergy.com/.
CONCORD CAMERA: Fla. Securities Suit Hearing Set Jan. 26, 2007
--------------------------------------------------------------
The U.S. District Court for the Southern District of Florida
will hold on Jan. 26, 2007, at 9:00 a.m. a hearing for the $1.5
million settlement of the class action "Underwood, et al v.
Concord Camera Corp., et al., Case No. 1:02-cv-21154-CMA."
The class consists of all persons who purchased the common stock
of Concord Camera Corp., during the period between Jan. 18, 2001
through and including June 22, 2001.
The hearing will be at the United States District Court for the
Southern District of Florida in the courtroom of the Honorable
Cecilia M. Altonaga.
Deadline to file for exclusion and objection is January 12,
2007. Deadline to file claims is February 20, 2007.
In July 2002, individuals purporting to be shareholders of the
company filed a class action complaint against the company and
certain of its officers.
On Aug. 20, 2002, the company filed a motion to dismiss the
complaint and in December 2002, the court granted the company's
motion and the complaint was dismissed.
In January 2003, an amended class action complaint was filed
adding certain of the company's current and former directors as
defendants.
Lead plaintiffs in the amended complaint sought to act as
representatives of a class consisting of all persons who
purchased the company's common stock issued pursuant to the
company's Sept. 26, 2000 secondary offering or from Sept. 26,
2000 to June 22, 2001, inclusive.
On April 18, 2003, the company filed a motion to dismiss the
amended complaint and on Aug. 27, 2004, the court dismissed all
claims against the defendants related to the secondary offering.
On Sept. 8, 2005, the court granted the plaintiffs' motion for
class certification and certified as plaintiffs all persons who
purchased the common stock between Jan. 18, 2001 and June 22,
2001, inclusive, and who were allegedly damaged thereby.
The allegations remaining in the amended complaint are centered
on claims:
-- that the company failed to disclose, in periodic
reports it filed with the U.S. Securities and Exchange
Commission and in press releases it made to the public
during the class period regarding its operations and
financial results;
-- that a large portion of its accounts receivable was
represented by a delinquent and uncollectible balance
due from then customer, KB Gear Interactive, Inc.; and
-- that a material portion of its inventory consisted of
customized components that had no alternative usage.
The amended complaint claims that such failures artificially
inflated the price of the common stock. It seeks unspecified
damages, interest, attorneys' fees, costs of suit and
unspecified other and further relief from the court.
Pursuant to a scheduling order of the court, trial in this
matter is scheduled to commence on Nov. 13, 2006.
The company has reached an agreement in principle with the
plaintiffs on the settlement of this lawsuit, according to the
company's Sept. 13, 2006 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
July 1, 2006 (Class Action Reporter, Sept. 22, 2006).
The suit is "Underwood, et al v. Concord Camera Corp., et al.,
Case No. 1:02-cv-21154-CMA," filed in the U.S. District Court
for the Southern District of Florida under Judge Cecilia M.
Altonaga.
Representing defendants are:
(1) Richard Eugene Brodsky, Alvin Bruce Davis and Wendy
Susan Leavitt all of Squire Sanders & Dempsey LLP,
Wachovia Financial Center, 200 S Biscayne Boulevard,
40th Floor, Miami, FL 33131-2398, Phone: 305-577-7000
or 305-577-2835, Fax: 577-7001, E-mail:
rbrodsky@ssd.com or adavis@ssd.com or wleavitt@ssd.com;
(2) Catherine Whitfield of Squire Sanders & Dempsey LLP,
1900 Phillips Point West, 777 S Flagler Drive, Suite
1900, West Palm Beach, FL 33401-6198, Phone: 561-650-
7200, Fax: 655-1509, E-mail: CWhitfield@ssd.com;
(3) Claudia A. Costa and John J. Rizzo both of Stryker Tams
& Dill, 2 Penn Plaza East, Newark, NJ 07105, Phone:
973-491-3851;
(4) Alan Graham Greer of Richman Greer Weil Brumbaugh
Mirabito & Christensen, 201 S Biscayne Boulevard, Suite
1000, Miami, FL 33131, Phone: 305-373-4000, Fax: 373-
4099, E-mail: agreer@richmangreer.com; and
(5) David J. Onorato of King & Spalding, 1180 Peachtree
Street NE, Atlanta, GA 30309-3521, Phone: 404-572-4600,
Fax: 572-5100.
Representing plaintiffs are:
(1) Jack Reise and Robert Jeffrey Robbins both of Lerach
Coughlin Stoia Geller Rudman & Robbins, 120 East
Palmetto Park Road, Suite 500, Boca Raton, FL 33432,
Phone: 561-750-3000, Fax: 750-3364, E-mail:
jreise@lerachlaw.com or rrobbins@lerachlaw.com; and
(2) Maya Susan Saxena of Saxena White PA, 2424 N Federal
Highway, Suite 257, Boca Raton, FL 33431, Phone: 561-
394-3399, Fax: 394-3382, E-mail:
msaxena@saxenawhite.com.
CONOR MEDSYSTEMS: Faces Suet Over Johnson & Johnson Merger
----------------------------------------------------------
Conor Medsystems Inc. is facing a purported class action
complaint seeking to enjoin a takeover of the company by Johnson
& Johnson, Reuter reports.
The Federal Trade Commission has cleared the $1.4 billion merger
of Conor, Johnson & Johnson and a wholly owned subsidiary of
Johnson & Johnson.
A special meeting of Conor stockholders is set Jan. 31.
Conor Medsystems on the Net: http://www.conormed.com.
DUANE READE: Continues to Face "Damassia" Labor Suit in N.Y.
------------------------------------------------------------
Duane Reade, Inc. remains a defendant in the purported class
action, "Damassia v. Duane Reade, Inc.," which is pending in the
U.S. District Court for the Southern District of New York.
The complaint alleges that from the period beginning November
1998, the company incorrectly gave some employees the title,
"assistant manager," in an attempt to avoid paying these
employees overtime, in contravention of the Fair Labor Standards
Act and the New York Law. It seeks an award equal to twice an
unspecified amount of unpaid wages.
The company reported no development in the case at its Jan. 10
form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
The suit is "Damassia v. Duane Reade, Inc., Case No. 1:04-cv-
08819-GEL," filed in the U.S. District Court for the Southern
District of New York under Judge Gerard E. Lynch.
Representing the plaintiffs are Tarik Fouad Ajami, Adam T. Klein
and Justin Mitchell Swartz of Outten & Golden, LLP, (NYC), 3
Park Avenue, 29th Floor, New York, NY 10016, Phone: (212) 245-
1000, Fax: (212) 977-4005, E-mail: tfa@outtengolden.com,
atk@outtengolden.com and jms@outtengolden.com.
Representing the defendants are, Gerald Thomas Hathaway and Lisa
A. Schreter of Littler Mendelson, P.C., Phone: 212.583.2684 and
(404) 233-0330, Fax: 212.832.2719 and (404) 233-2361, E-mail:
ghathaway@littler.com.
DUANE READE: Still Faces "Chowdhury" Labor Litigation in N.Y.
-------------------------------------------------------------
Duane Reade, Inc. remains a defendant in the purported class
action, "Enamul Chowdhury v. Duane Reade Inc. and Duane Reade
Holdings, Inc.," which is pending in the U.S. District Court for
the Southern District of New York.
The suit was filed on March 24, 2006. The company was served
with the purported class action complaint on April 2006. The
suit alleges that from a period beginning March 2000, the
company incorrectly classified certain employees in an attempt
to avoid paying overtime to such employees, thereby violating
the Fair Labor Standards Act and New York law.
The complaint seeks an unspecified amount of damages.
The company reported no development in the case at its Jan. 10
form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
The suit is "Chowdhury v. Duane Reade, Inc., et al., Case No.
1:06-cv-02295-MGC," filed in the U.S. District Court for the
Southern District of New York under Judge Miriam Goldman
Cedarbaum.
Representing the plaintiffs is Seth Richard Lesser of Locks Law
Firm, PLLC, 110 East 55th Street, New York, NY 10022, Phone:
212-838-3333, Fax: 212-838-3735, E-mail: slesser@lockslawny.com.
Representing the defendants are Gerald Thomas Hathaway and
Frances Mollie Nicastro of Littler Mendelson, P.C., 885 Third
Avenue 16th Floor, New York, NY 10022, Phone: 212-583-2684 and
(212) 583-2688, Fax: 212-832-2719, E-mail: ghathaway@littler.com
and fnicastro@littler.com.
DUANE READE: Female Store Workers Complain Over Work Environment
----------------------------------------------------------------
Duane Reade, Inc. is facing a complaint in the U.S. District
Court for the Southern District of New York that was brought on
behalf of the company's female store employees.
In January 2005, the Equal Employment Opportunity Commission
filed an action against the Company in the U.S. District Court
for the Southern District of New York alleging, among other
things, that the Company created a hostile work environment for
three female store employees, and potentially a class of such
female employees.
At the present time, it is not possible to determine the
ultimate outcome of this action, which, if adverse, could be
material, according to the company's Jan. 10 form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30.
DUANE READE: Still Faces Suits in Del., N.Y. Over Oak Hill Deal
---------------------------------------------------------------
Duane Reade Holdings, Inc. is a defendant in several purported
class actions in state courts in Delaware and New York that
challenges its acquisition by a group of investors, including
Oak Hill Capital Partners, L.P., and members of the company's
management team.
On July 30, 2004, the acquisition of the company was completed
by a group of investors. As part of the acquisition, Duane
Reade Acquisition Corp., the company's wholly owned subsidiary,
merged with and into Duane Reade Inc., with Duane Reade Inc.
remaining as the surviving corporation.
Initially, the company was faced with:
-- six purported class action complaints filed in the Court
of Chancery of the State of Delaware, referred
to as the "Delaware Complaints," as well as;
-- three purported class action complaints that were filed
in the Supreme Court of the State of New York.
Two of the New York complaints have been dismissed without
prejudice. The other New York complaint is pending, but has not
been served on the company.
The Delaware complaints name the company's former chairman and
certain other members of its board of directors and executive
officers as well as Duane Reade as defendants. Four of the
Delaware complaints name Oak Hill as a defendant.
The New York Complaint names the company's former chairman and
certain other members of the company's board of directors and
executive officers as well as Duane Reade as defendants. One of
the dismissed New York complaints named Oak Hill as a defendant.
The Delaware Complaints were consolidated on Jan. 28, 2004, and
on April 8, 2004 the plaintiffs in the Delaware actions filed a
consolidated class action complaint.
The company reported no development in the case at its Jan. 10
form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
Duane Reade Holdings, Inc. on the Net:
http://www.duanereade.com.
IPAYMENT INC: Parties Reach Settlement in "Fogazzo" Litigation
--------------------------------------------------------------
Parties in the purported class action, "Fogazzo Wood Fired Ovens
and Barbecues, LLC v. iPayment, Inc., Case No. BC342878," which
is pending in Los Angeles County Superior Court, state of
California, have reached a settlement in the case, according to
the company's Nov. 14, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended Sept.
30, 2006.
On Nov. 10, 2005, plaintiff Fogazzo Wood Fired Ovens and
Barbecues, LLC on its own behalf and as a "class action" filed a
lawsuit in Los Angeles County Superior Court, naming iPayment,
Inc. as the sole defendant.
The complaint as amended, adds an individual plaintiff, and
asserts seven causes of action, claiming that in connection with
advertising the company's services and providing merchant card
services to plaintiffs and other merchants we made certain false
representations, violated the plaintiff's merchant processing
contract, and engaged in certain wrongful conduct that
constitutes "unfair, unlawful and fraudulent business acts and
practices."
The plaintiffs seek an injunction to restrain the company from
continuing to engage in such actions, for imposition of a
constructive trust for the benefit of the plaintiffs, for
unspecified monetary damages, for restitution of profits, plus
other costs and expenses, including attorney fees.
A status conference was held on July 10, 2006, at which time
counsel for plaintiff informed the court that he had not yet
filed an amended complaint because the parties were discussing
resolution.
As a result, the court ordered the parties to participate in a
settlement mediation conference, which the court ordered to be
conducted by the end of August.
The court also scheduled a further status conference for Sept.
6, 2006, in the event that the parties are unable to resolve the
dispute at mediation.
Parties have agreed in principle to settle all claims upon
payment by the company of a nominal amount. Under the terms of
the settlement, the plaintiffs will dismiss with prejudice all
claims in the lawsuit and file a request to dismiss the class
action allegations without prejudice.
Approval by the court is required for the dismissal of the class
action allegations and is a condition of the settlement. In the
event that such approval is not received, the settlement will be
null and void.
At a status conference held on Oct. 11, 2006, the court was
advised of the settlement understanding. The company is
currently finalizing the documents reflecting the settlement
agreement.
IPayment Inc. on the Net: http://www.ipaymentinc.com/.
JNI CORP: N.Y. Court Mulls Final Approval of IPO Laddering 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 purported class action against JNI Corp., an
acquisition of Applied Micro Circuits Corp., according to the
Applied Micro's Jan. 10, 2007 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended Sept. 30, 2006.
In November 2001, a class action was filed against JNI and the
underwriters of its initial and secondary public offerings of
common stock in the U.S. District Court for the Southern
District of New York, case no. 01 Civ 10740 (SAS).
The complaint alleges that defendants violated the Securities
Exchange Act of 1934 in connection with JNI's public offerings.
This lawsuit is among more than 300 class actions pending in
this court that have come to be known as the "IPO laddering
cases."
In June 2003, a proposed partial global settlement, subsequently
approved by JNI's board of directors, was announced between the
issuer defendants and the plaintiffs that would guarantee at
least $1 billion to investors who are class members from the
insurers of the issuers.
The proposed settlement, if approved by the court and by the
issuers, would be funded by insurers of the issuers, and would
not result in any payment by JNI or the company.
The court has granted its preliminary approval of settlement
subject to defendants' agreement to modify certain provisions of
the settlement agreements regarding contractual indemnification.
JNI has accepted the court's proposed modifications.
The court held a hearing for final approval of the settlement on
April 24, 2006 and took the issue under submission. The court
did not indicate when it will render its decision.
KENTUCKY: Transfer of Property Valuation Litigation Considered
--------------------------------------------------------------
An attorney representing the plaintiff in a suit over alleged
incorrect property valuation in Boone County is planning to re-
file the case with the state Board of Claims, according to The
Community Press.
Independence attorney Eric Deters filed the suit in Boone County
Circuit Court on behalf of local property owner Bill Chipman
against Boone County. Mr. Deters plans to have the case
certified as a class action.
The suit originally named the revenue department, the Property
Valuation Administrator's office and the Kentucky Board of Tax
Appeals, but those have now been dropped from the claim.
Boone County is seeking the dismissal of the suit.
The county and the Property Valuation Administrator's office are
represented by Covington attorney Jeff Mando of Adams, Stepner,
Woltermann & Dusing, P.L.L.C., 40 West Pike Street, P.O. Box 861
Covington, Kentucky 41012 (Kenton Co.), Phone: 859-394-6200,
Fax: 859-392-7200.
For more details, contact Eric C. Deters of Eric C. Deters &
Associates, P.S.C., Independence, Kentucky 41051, Phone: Phone:
(859) 363-1900.
QUICKLOGIC CORP: Court Mulls Final Okay For 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 against
QuickLogic Corp., according to the company's Jan. 10, 2007 form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended Oct. 1, 2006.
On Oct. 26, 2001, a putative securities class action was filed
in the U.S. District Court for the Southern District of New York
against certain investment banks that underwrote QuickLogic's
initial public offering, QuickLogic and some of QuickLogic's
officers and directors.
The complaint alleges excessive and undisclosed commissions in
connection with the allocation of shares of common stock in
QuickLogic's initial and secondary public offerings and
artificially high prices through "tie-in" arrangements which
required the underwriters' customers to buy shares in the
aftermarket at pre-determined prices in violation of the federal
securities laws.
Plaintiffs seek an unspecified amount of damages on behalf of
persons who purchased QuickLogic's stock pursuant to the
registration statements between Oct. 14, 1999 and Dec. 6, 2000.
Various plaintiffs have filed similar actions asserting
virtually identical allegations against over 300 other public
companies, their underwriters, and their officers and directors
arising out of each company's public offering.
These actions, including the action against QuickLogic, have
been coordinated for pretrial purposes and captioned, "In re
Initial Public Offering Securities Litigation, 21 MC 92."
A stipulation of settlement for the claims against the issuer
defendants, including the company, has been signed and was
submitted to the court.
Under the stipulation of settlement, the plaintiffs will dismiss
and release all claims against participating defendants in
exchange for a contingent payment guaranty by the insurance
companies collectively responsible for insuring the issuers in
all the related cases, and the assignment or surrender to the
plaintiffs of certain claims the issuer defendants may have
against the underwriters.
Under the guaranty, the insurers will be required to pay the
amount, if any, by which $1.0 billion exceeds the aggregate
amount ultimately collected by the plaintiffs from the
underwriter defendants in all the cases.
On Feb. 15, 2005, the court preliminarily approved the
settlement contingent on specified modifications. The
settlement is still subject to court approval and a number of
other conditions. There is no guarantee that the settlement
will become effective.
On Dec. 5, 2006, the U.S. Court of Appeals for the Second
Circuit reversed the court's October 2004 order certifying a
class in six test cases that were selected by the underwriter
defendants and plaintiffs in the coordinated proceedings.
QuickLogic is not among the test cases and it is unclear what
impact this will have on the class certified in the QuickLogic
action or on the proposed settlement pending before the court.
For more details, visit http://www.iposecuritieslitigation.com/.
QVC INC: Recalls Pumpkin Candle Holders Due to Laceration Hazard
----------------------------------------------------------------
QVC Inc., of West Chester, Pennsylvania, in cooperation with the
U.S. Consumer Product Safety Commission is recalling about
25,500 pumpkin-shaped candleholders, distributed by Arteflorum
Inc., of South San Francisco, California.
The company said the product can crack, break or shatter when
used with the tea light candles that accompany them, yielding
sharp pieces of glass that pose a laceration hazard.
QVC has received 85 reports that the product cracked, broke or
shattered during use. Two consumers reported receiving minor
lacerations that did not require medical treatment to their
hands.
The product is the "Heartfelt 3 Glass Pumpkins with Tealights
and Garland by Valerie." It consists of three separate glass
candle holders of three graduated sizes which are shaped like
pumpkins. Each set includes six tea light candles, as well as a
glass bead decorative garland. The pumpkin candle holders were
sold in either clear glass or an amber color.
These pumpkin-shaped candleholders were manufactured in China
and are being sold by QVC through television, its Web page, its
toll-free number, and in its outlet, employee and Studio stores
from September 2006 through November 2006 for between $45 and
$50 plus about $8 for shipping and handling.
Pictures of the recalled pumpkin-shaped candleholders:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07519a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07519b.jpg
QVC has already notified each customer by telephone and mail to
stop using the candleholders until they received replacement tea
lights. QVC will replace the tea light candles that accompanied
the candle holders with battery-powered tea light candles at no
charge, or will refund the purchase price of the product,
including shipping and handling upon the customer's
certification that they have safely discarded the glass candle
holders.
For more information, call QVC at (800) 367-9444 between 7 a.m.
and 1 a.m. ET any day, or visit QVC's Web site:
http://www.qvc.com.
SEARS HOLDINGS: Consolidation Motion Filed in N.Y. Stock Lawsuit
----------------------------------------------------------------
Plaintiffs in a securities fraud suit filed against Sears
Holdings Corp. in the U.S. District Court for the Southern
District of New York have filed a motion for consolidation.
In May and July 2006, two putative class actions, which each
name as defendants Sears Holdings Corp. and Edward Lampert, were
filed in U.S. District Court for the Southern District of New
York, purportedly on behalf of a class of persons that sold
shares of Kmart Holding Corp stock on or after May 6, 2003
through June 4, 2004.
These complaints allege that Kmart's Plan of Reorganization and
Disclosure Statement filed on Jan. 24, 2003 and amended on Feb.
25, 2003 misrepresented Kmart's assets, particularly its real
estate holdings, as evidenced, according to the complaints, by
the prices at which Kmart subsequently sold certain of its
stores in June 2004 to Home Depot and Sears.
Plaintiffs in both actions, as well as one of the members of the
putative class, have each filed a motion for consolidation,
appointment as lead plaintiff and approval of selection of lead
counsel.
The motions are currently pending before the district court,
according to the company's Dec. 4 form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct.
28, 2006.
SEARS HOLDINGS: Ill. Securities Fraud Suit Enters Discovery
-----------------------------------------------------------
Parties in a securities fraud suit pending against Sears
Holdings Corp. in the United States District Court for the
Northern District of Illinois have commenced written discovery.
Following the announcement of the merger between the parent
company of Kmart and Sears on Nov. 17, 2004, several actions
have been filed relating to the transaction.
These lawsuits are in their preliminary stages, and defendants
have not yet been required to respond to certain of the
complaints, according to the company.
Three actions were filed and then consolidated in the Circuit
Court of Cook County, Illinois. These actions assert claims on
behalf of a purported class of Sears' stockholders against Sears
and certain of its officers and directors, together with Kmart,
Edward S. Lampert, William C. Crowley and other affiliated
entities, alleging breach of fiduciary duty in connection with
the merger.
The plaintiffs allege that the merger favors interested
defendants by awarding them disproportionate benefits, and that
the defendants failed to take appropriate steps to maximize the
value of a merger transaction for Sears' stockholders.
On Sept. 7, 2006, plaintiffs filed a notice of appeal of the
court's Aug. 8, 2006 order dismissing plaintiffs' amended
complaint. Briefing on the appeal has not yet commenced.
One action has been filed in the U.S. District Court for the
Northern District of Illinois. This action asserts claims under
the federal securities laws on behalf of a purported class of
Sears' stockholders against Sears and Alan J. Lacy, for
allegedly failing to make timely disclosure of merger
discussions with Kmart during the period Sept. 9 through Nov.
16, 2004, and seeks damages.
The court appointed a lead plaintiff and lead counsel, and an
amended complaint was filed on March 11, 2005. The amended
complaint names Edward S. Lampert and ESL Partners, L.P. as
additional defendants, and purports to assert claims on behalf
of sellers of Sears stock during the period Sept. 9 through Nov.
16, 2004. The defendants have answered the amended complaint.
On Oct. 2, 2006, plaintiffs filed their motion for class
certification. Meanwhile, the parties have commenced written
discovery, according to the company's Dec. 4 form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Oct. 28, 2006.
The suit is "Levie v. Sears Roebuck Co, et al., Case No. 1:04-
cv-07643," filed in the U.S. District Court for the Northern
District of Illinois under Judge Robert W. Gettleman.
Representing the plaintiffs are:
(1) Mark Richard Miller and Andrae P. Reneau of The Wexler
Firm, LLP, One North LaSalle, Suite 2000, Chicago, IL
60602, Phone: (312) 346-2222, E-mail:
mrmiller@wexlerfirm.com;
(2) Charles J. Piven of Law Offices of Charles J. Piven,
P.A., The World Trade Cener - Baltimore, 401 East Pratt
Street, Suite 2525, Baltimore, MD 21202, Phone: (410)
332-0030; and
(3) Lee Squitieri of Squitieri & Fearon, LLP, 32 East 57th
Street, 12th Floor, New York, NY 10022, Phone: 212-421-
6492.
Representing the defendants are:
(i) Mark A. Flessner of Sonnenschein, Nath & Rosenthal,
LLP, 233 South Wacker Drive, 8000 Sears Tower, Chicago,
IL 60606, Phone: (312) 876-8000, E-mail:
mflessner@sonnenschein.com; and
(ii) Alexander Dimitrief of Kirkland & Ellis, LLP,
(Chicago), 200 East Randolph Drive, Suite 6100,
Chicago, IL 60601, Phone: (312) 861-2000, E-mail:
alex.dimitrief@kirkland.com.
SPORTSTUFF INC: Recalls Inflator Air Pumps for Laceration Hazard
----------------------------------------------------------------
Sportsstuff Inc., of Omaha, Nebraska, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
11,000 units of inflator air pumps.
The company said these air pumps can overheat and explode during
use, posing a risk of lacerations to the user and nearby
consumers.
Sportsstuff has received 52 reports of pumps exploding, 13 of
which resulted in lacerations. Six of these incidents involved
facial lacerations and one consumer reported an eye injury.
The recalled products are 2.5 PSI pumps with model numbers 57-
1504-A and 57-1504 that are used to inflate low pressure
inflatable items such as rafts and toys. The Model No. 57-1504-
A pump was sold separately with an assortment of interlocking
nozzles to adapt to a number of needs. The Model 57-1504 pump
was sold with the Sportsstuff Launch Pod, an inflatable water
trampoline sold under Sportsstuff number 58-1002. The model
number and the date code "0104" are located on the Underwriters'
Laboratories label on the top of each pump. "2.5 PSI" was not
written on the air pump, but was written on the packaging.
These recalled air pumps were manufactured in China and are
being through marine distributors, mail order catalogs, and
sporting good and various other stores nationwide from January
2004 through January 2005 for about $50. The Launch Pod water
trampolines that included recalled pumps were sold at Sam's Club
from January 2004 through August 2004 for about $375.
Picture of the recalled air pumps:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07078.jpg
Consumers are advised to immediately stop using the pumps and
contact Sportsstuff for a free replacement.
For more information, call Sportsstuff toll-free at (888) 814-
8833 between 8 a.m. and 5 p.m. CT Monday through Friday, or
visit the firm's Web site: http://www.sportsstuff.com.
STATE FARM: Negotiates Settlement in Miss. Katrina-Related Suit
---------------------------------------------------------------
Lawyers of Farm Fire & Casualty Co. is negotiating a settlement
of a suit filed by Mississippi Attorney General Jim Hood over
the refusal of the company to honor policyholders' damage claim
from Hurricane Katrina, according to The Associated Press.
Case Background
The attorney general filed a civil action in the Chancery Court
of Hinds County, Mississippi, First Judicial District on Sept.
15 against the insurance industry to protect Mississippi's
property owners who incurred damage from Hurricane Katrina.
The lawsuit seeks to make the insurance industry honor their
contracts to pay for losses caused by Katrina, particularly
their attempt to exclude damage caused directly or indirectly by
water, whether or not driven by wind.
The complaint asks the court to declare that certain insurance
contract provisions are void and unenforceable as the same are
contrary to public policy, are unconscionable, and are ambiguous
(Class Action Reporter, Sept. 26, 2005).
The provisions at issue attempt to exclude from coverage loss or
damage caused directly or indirectly by water, whether or not
driven by wind.
The complaint states that these provisions should be strictly
construed against the insurance companies who drafted the
insurance policies and their exclusions. The complaint also
states that the issuance of such insurance policies violates the
Mississippi Consumer Protection Act.
The complaint also asks the court, among other things, to enter
a Temporary Restraining Order to immediately stop insurance
companies from asking property owners to sign documents stating
that their loss was caused by flood or water as opposed to wind,
and to stop using water exclusions to deny or reduce coverage
for hurricane damage or loss. The court is also being asked to
enter a preliminary and permanent injunction with regard to
these same matters.
The suit is Civil Action No. G2005-1642 R1. Defendants are:
-- Mississippi Farm Bureau Insurance,
-- State Farm Fire and Casualty Company,
-- Allstate Property and Casualty,
-- Insurance Company, United Services,
-- Automobile Association, Nationwide Mutual,
-- Insurance Company, and "A" through "Z" Entities
According to the recent report by Associated Press, State Farm
agreed "in principle" to pay an undisclosed amount of money to
more than 600 policyholders.
A "class action resolution" component of the proposed deal calls
for the company to review the claims filed by roughly 35,000
policyholders who live in Mississippi's three coastal counties
but didn't file lawsuits against State Farm for refusing to
cover storm damage, according to the report. State Farm's
potential liability is estimated at least $50 million.
A copy of the complaint and motion for temporary restraining
order is at available for free at:
http://ResearchArchives.com/t/s?d87
For more details, contact Jacob Ray of The Office of the
Attorney General, P.O. Box 220, Jackson, MS 39205-0220, Phone:
601-359-3680, Telefax: (601) 359-2009.
RITA MEDICAL: Investors File Calif. Suit Over AngioDynamics Deal
----------------------------------------------------------------
RITA Medical Systems, Inc., faces a purported stockholder class
action in the Superior Court of the State of California for the
County of Alameda with regards to its acquisition by
AngioDynamics, Inc., according to its Jan. 11, 2007 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Dec. 2, 2006.
The suit was filed on Dec. 15, 2006 in the Superior Court of the
State of California for the County of Alameda against RITA and
its directors asserting claims relating.
It alleges that, among other things, RITA's directors engaged in
self-dealing and breached their fiduciary duties in connection
with the merger agreement.
Plaintiff seeks, among other things, unspecified monetary
damages, attorneys' fees and certain forms of equitable relief,
including enjoining the consummation of the merger, rescinding
the merger agreement and imposing a constructive trust with
respect to any payments or awards to be issued to defendants.
TEMPUR-PEDIC INT'L: Faces Suit in Ga. Over Mattress Price-Fixing
----------------------------------------------------------------
Tempur-Pedic International, Inc. is a defendant in a class-
action complaint in the U.S. District Court for the Northern
District of Georgia that accuses it of restraining trade and
fixing prices of mattresses.
Plaintiffs bring this action on behalf of themselves and, under
Federal Rules of Civil Procedure Rule 23(b)(2) and (b)(3), as
representatives of a class made up of all persons and entities
who purchased Tempur-Pedic brand mattresses for delivery in the
United States, at any time from Jan. 5, 2003 to the present,
directly from TPX or from an authorized distributor and/or their
selling agents.
The class seeks treble damages and injunctive relief under U.S.
antitrust laws.
There are questions of law and fact common to all class members,
including but not limited to:
-- whether distributors agreed with TPX on minimum resale
prices for Tempur-Pedic brand mattresses;
-- whether distributors agreed with TPX to fix the price
at which the distributors and TPX would sell Tempur-
Pedic brand mattresses to consumers;
-- the identities of the parties to the agreements;
-- the duration, extent, and success of the agreements to
set minimum resale prices for Tempur-Pedic brand
mattresses;
-- the duration, extent, and success of the agreements to
fix the price a which TPX and its distributors would
sell Tempur-Pedic brand mattresses to consumers;
-- whether the agreements violated the federal antitrust
laws;
-- whether an injunction should issue to prohibit TPX and
its distributors from engaging in conduct in violation
of the antitrust laws;
-- whether and to what extent the conduct of TPX and its
distributors caused injury to the class members; and
-- the appropriate measure of damages to the class
members.
Plaintiffs request that the court enter judgment against
defendants as follows:
-- that the court certify this action as a class action
pursuant to Rule 23(b)(2) and (3) of the Federal Rules
of Civil Procedure, and designate plaintiffs as the
representatives of the class and counsel for plaintiffs
as counsel for the class;
-- that the court adjudge and decree that TPX has engaged
in unlawful conduct in violation of Section 1 of the
Sherman Act, 15 U.S.C. Section 1;
-- that the court order TPX to pay the class and plaintiffs
actual damages as result of the unlawful overcharges
identified, trebled as required under Section 4 of the
Clayton Act, 15 U.S.C. Section 15;
-- that the court enjoin TPX from continuing or resuming
its unlawful anticompetitive conduct as permitted under
Section 16 of the Clayton Act, 15 U.S.C. Section 26;
-- that the court order TPX to pay the costs of this
action, including but not limited to attorneys' fees, as
permitted under Section 4 of the Clayton Act, 15 U.S.C.
Section 15; and
-- that the court grant all other relief as may be deemed
equitable, appropriate and just.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1889
The suit is "Jacobs et al v. Tempur-Pedic International, Inc.,
Case No. 4:07-cv-00002-HLM," filed in the U.S. District Court
for the Northern District of Georgia, under Judge Harold L.
Murphy.
Representing plaintiffs are:
(1) Martin D. Chitwood, Craig Gordon Harley and James M.
Wilson, Jr., all of Chitwood Harley Harnes, 2300
Promenade II, 1230 Peachtree Street, NE, Atlanta, GA
30309, Phone: 404-873-3900, Fax: 404-876-4476, E-mail:
mchitwood@chitwoodlaw.com or CHarley@chitwoodlaw.com or
jmw@classlaw.com; and
(2) Robert Kirtley Finnell of The Finnell Firm, Suite 200,
P.O. Box 63, One West Fourth Avenue, Rome, GA 30162-
0063, Phone: 706-235-7272, E-mail:
bob@finnelllawfirm.com.
TERAYON COMMUNICATION: Ernst & Young Named in Calif. Stock Suit
---------------------------------------------------------------
The new lead plaintiff in a securities suit pending against
Terayon Communication Systems, Inc. in the United States
District Court for the Northern District of California added
Ernst & Young as defendant in an amended complaint.
On June 23, 2006, a putative class action was filed against the
Company in the United States District Court for the Northern
District of California by I.B.L. Investments Ltd. purportedly on
behalf of all persons who purchased the Company's common stock
between October 28, 2004 and March 1, 2006.
Zaki Rakib, Jerry D. Chase, Mark Richman and Edward Lopez are
named as individual defendants. The lawsuit focuses on the
Company's March 1, 2006 announcement of the restatement of
financial statements for the year ended December 31, 2004, and
for the four quarters of 2004 and the first two quarters of
2005.
On Nov. 8, 2006, Adrian G. Mongeli was appointed lead plaintiff
in the case, replacing I.B.L. Investments Ltd. On Jan. 8, 2007,
Mongeli filed an amended complaint, purportedly on behalf of all
persons who purchased the Company's common stock between June
28, 2001 and March 1, 2006.
The amended complaint adds as defendants the following:
* Ernst & Young,
* Ray Fritz,
* Carol Lustenader,
* Matthew Miller,
* Shlomo Rakib,
* Doug Sabella,
* Christopher Schaepe,
* Mark Slaven,
* Lewis Solomon,
* Howard W. Speaks,
* Arthur T. Taylor, and
* David Woodro.
The amended complaint incorporates the prior allegations and
includes new allegations relating to the restatement of the
Company's consolidated historical financial statements as
reported in the Company's Form 10-K filed on December 29, 2006.
The plaintiffs are seeking damages, interest, costs and any
other relief deemed proper by the court.
The suit is "Adrian G. Mongeli, et al. v. Terayon Communication
Systems, Inc. et al., Case No. 3:06-cv-03936-MJJ," filed in the
United States District Court for the Northern District of
California under Judge Martin J. Jenkins.
Representing Mr. Mongeli is Michael David Braun at Braun Law
Group, P.C., 12400 Wilshire Boulevard, Suite 920, Los Angeles,
CA 90025, Phone: 310-442-7755, Fax: (310) 442-7756, E-mail:
service@braunlawgroup.com.
VATICAN: Ky. Judge Allows Priest Sex Abuse Litigation to Proceed
----------------------------------------------------------------
The U.S. District Court for the Western District of Kentucky
allowed sex abuse victims to pursue damages from the Vatican in
a lawsuit alleging top church officials failed to report known
or suspected cases of child abuse, The Associated Press reports.
The ruling by Judge John G. Heyburn II, essentially allows three
men to pursue negligence claims against the Vatican over
allegations of sexual abuse by priests in the Archdiocese of
Louisville in Kentucky.
The case, "O'Bryan et al v. Holy See," is thought to be the
first sexual-abuse suit to name the Vatican as sole defendant
and would be the first class action against the Vatican
regarding clerical sexual abuse.
Filed by attorney William McMurry on June 4, 2004, it was
brought on behalf of three men who say they were abused as far
back as 1928 (Class Action Reporter, Oct. 11, 2006).
It alleges a cover up by the Vatican to protect priests who
molested American children. Specifically, the men alleged that
the Vatican knew or suspected some of its priests or bishops
were child molesters, but failed to warn the public or local
authorities about them. In doing so, the suit claims that the
Vatican was negligent.
Mr. McMurry, who in 2003 represented 243 abuse victims in
reaching a $25.7 million settlement with the Archdiocese of
Louisville, is seeking to have the suit certified as a class
action, alleging that "several thousand" victims exist across
the U.S. He is also seeking unspecified damages.
Previously, Judge Heyburn had previously dismissed parts of the
lawsuit that sought damages for sex abuse allegations outside
the U.S.
The recent decision though opens the way to take depositions of
Vatican officials and to get copies of church records and
documents.
One of the three plaintiffs suing the Vatican is Michael Turner
of Louisville, who also filed the first lawsuit against the
Archdiocese of Louisville. Turner alleged the Rev. Louis E.
Miller molested him in the 1970s while attending St. Aloysius
Church in Pewee Valley, Kentucky.
The late Pope John Paul II removed Mr. Miller from the
priesthood in 2006 after pleading guilty in 2003 to sexually
abusing children in Jefferson and Oldham counties. Mr. Miller
is currently serving a 13-year prison sentence.
The other two plaintiffs, James H. O'Bryan and Donald E. Poppe,
now both living in California, allege that while growing up in
Louisville priests abused them.
Mr. O'Bryan contends a "Father Lawrence" at St. Cecilia Church
in western Louisville abused him in 1928. An archdiocesan
spokeswoman has said a Rev. Lawrence Kuntz worked at St. Cecelia
from 1928 to 1935 and died in 1952.
Mr. Poppe alleges the Rev. Arthur Wood, who died in 1983 and was
named as an abuser by 39 plaintiffs who settled with the
archdiocese, molested him.
The suit is "O'Bryan et al v. Holy See, Case No. 3:04-cv-00338-
JGH," filed in the U.S. District Court for the Western District
of Kentucky under Judge John G. Heyburn II.
Representing the plaintiffs are:
(1) William F. McMurry of William F. McMurry & Associates,
4801 Olympia Park Plaza, Suite 4800, Louisville, KY
40241, US, Phone: 502-326-9000, Fax: 502-326-9001, E-
mail: bill@courtroomlaw.com;
(2) Marci A. Hamilton, 36 Timber Knoll Drive, Washington
Crossing, PA 18977, Phone: 212-790-0215, Fax: 215-493-
1094, E-mail: hamilton02@aol.com; and
(3) Ross T. Turner 6500 Glenridge Park Place, Suite 12,
Louisville, KY 40222, Phone: 502-429-9303 or 502-445-
4144, Fax: 502-429-9304, E-mail:
ross@rossturnerlaw.com.
WILKKES & MCHUGH: Faces Tenn. Litigation Over Contingency Fees
--------------------------------------------------------------
The law firm of Wilkes & McHugh, P.A., faces a purported class
action in the U.S. District Court for the Western District of
Tennessee that accuses it of knowingly violating state law
regarding contingency fees.
The suit against Wilkes & McHugh, which has garnered millions of
dollars in neglect and abuse settlements and lawsuits against
nursing homes in Florida, on Dec. 7, 2006 by Debbie Howard.
Ms. Howard, according to the 38-page complaint, hired the firm
several years ago to sue a Memphis nursing home in the death of
her grandmother for medical negligence.
The class-action claim states Wilkes & McHugh engaged in an
unlawful scheme to collect 40 percent or 45 percent in
contingency fees of settlement amounts, although Tennessee law
caps fees to 33 and 1/3 percent in medical malpractice cases. It
stated that the law firm charged the higher and unlawful
contingency fee to hundreds of clients in Tennessee.
According to the complaint, "Although it has never actually
tried any of these nursing home lawsuits in Tennessee, defendant
Wilkes & McHugh has reaped tens of millions of dollars in legal
fees from settlements ... paid by nursing home defendants to
their Tennessee clients during the Class period."
Ms. Howard retained the law firm in 1999 to take action against
a Memphis-area nursing home under the state's medical
malpractice act for the death of her grandmother.
A few days before filing an amended complaint in 2002, the law
firm wrote Ms. Howard telling her it had no signed fee
agreement. Later on, Ms. Howard claims that she was presented a
contract stating the firm would retain 40 percent of a
settlement or award before expenses or 45 percent of a recovery
in the event of an appeal.
The contract failed to disclose that state law limits lawyers'
fees to 33 1/3 percent as a contingency or that the law firm
would be required to seek a trial court determination of the
actual percentage amount.
A few months later, the firm settled the case and retained 40
percent of the settlement, the amount of which wasn't disclosed
in the lawsuit.
Defense documents filed on Jan. 3 by the firm's defense attorney
Lorrie Ridder, of Rossie, Luckett, Pinstein & Ridder in Memphis,
Tenn., state that the plaintiff never appealed a Tennessee state
court order approving Wilkes and McHugh's fees. It also stated
that the plaintiff's complaint contains numerous falsehoods to
try and manufacture a claim in federal court.
In addition, defense documents revealed that the plaintiff
failed to disclose another law firm filed the wrongful death
claim against the nursing home and that Wilkes & McHugh didn't
receive 40 percent of the settlement.
The suit is "Howard v. Wilkes & McHugh, P.A. et al., Case No.
2:06-cv-02833-JPM-tmp," filed in the U.S. District Court for the
Western District of Tennessee under Judge Jon Phipps McCalla
with referral to Judge Tu M. Pham.
Representing the plaintiffs is William F. Burns of Watson Burns,
LLC, 11 South Idlewild Street, Memphis, TN 38104, Phone: 901-
578-3528, Fax: 901-578-2649, E-mail: bburns@watsonburns.com.
Representing the defendants are:
(1) Lorrie K. Ridder of Rossie Luckett, Pinstein & Ridder,
1669 Kirby Pkwy, Ste. 106, Memphis, TN 38120, Phone:
901-763-1800, Fax: 901-767-6514, E-mail:
lkridder@rlpr.com; and
(2) Robert Redding of Redding Steen & Staton, P.C., 464 N.
Parkway, Ste. A, Jackson, TN 38305, US, Phone: 731-660-
2332, Fax: 731-512-4020, E-mail:
rredding@rsslawfirm.com.
XETHANOL CORP: Faces Multiple Securities Fraud Lawsuits in N.Y.
---------------------------------------------------------------
Xethanol Corp. was named a defendant in several securities fraud
class actions in the U.S. District Court for the Southern
District of New York, according to the company's Nov. 14, 2006
Form 10-QSB filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2006.
On Oct. 23, 2006, a purported class action, "Milton Ariail vs.
Xethanol Corporation, Lawrence S. Bellone, Christopher d'Arnaud-
Taylor and Jeffery S. Langberg, Civil Action No. 06-10234," was
filed.
The complaint alleges, among other things, that the company and
the individual defendants made materially false and misleading
statements regarding the Company's operations, management and
internal controls in violation of Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934, as amended, and Rule
10b-5 thereunder.
The individual defendants, Lawrence S. Bellone, Christopher
d'Arnaud-Taylor and Jeffery S. Langberg, are respectively the
Company's Chief Financial Officer and a member of its board of
directors; a member of its board of directors and its former
Chairman, President and Chief Executive Officer; and a former
member of its board of directors.
Plaintiff seeks, among other things, unspecified compensatory
damages and reasonable costs and expenses, including counsel
fees and expert fees, on behalf of a purported class of
purchasers of the company's common stock during the period
between Jan. 31, 2006 and April 8, 2006.
On Oct. 31, 2006, two additional purported class actions were
also filed in the same court. They are:
-- "Joseph Spoto vs. Xethanol Corporation, Lawrence S.
Bellone, Christopher d'Arnaud-Taylor and Jeffery S.
Langberg, Civil Action No. 06-11476," and
-- "Robert Hamilton vs. Xethanol Corporation, Lawrence S.
Bellone and Christopher d'Arnaud-Taylor, Civil Action
No. 06-11477."
On Nov. 1, 2006, an additional purported class action, "Cheryl
Difruscio vs. Christopher d'Arnaud-Taylor, Lawrence S. Bellone,
Jeffery S. Langberg and Xethanol Corporation, Civil Action No.
06-11516" was filed in the U.S. District Court for the Southern
District of New York.
Each of these three complaints makes substantially the same
allegations as the complaint filed on Oct. 23, 2006 and each of
these three plaintiffs seeks substantial the same damages as
those sought by the plaintiff in "Ariail."
The first identified complaint is "Milton Ariail, et al. v.
Xethanol Corporation, et al., Case No. 06-CV-10234," filed in
the U.S. District Court for the Southern District of New York.
Plaintiff firms in this or similar case:
(1) Kahn Gauthier Swick, LLC, 650 Poydras St. Suite 2150,
New Orleans, LA, 70130, Phone: (504) 455-1400, E-mail:
lewis.kahn@kglg.com;
(2) Murray, Frank & Sailer LLP, 275 Madison Ave 34th Flr.,
New York, NY, 10016, Phone: 212.682.1818, Fax:
212.682.1892, E-mail: email@murrayfrank.com;
(3) Schiffrin & Barroway LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com;
(4) Scott & Scott LLC, P.O. Box 192, 108 Norwich Avenue,
Colchester, CT, 06415, Phone: 860.537.5537, Fax:
860.537.4432, E-mail: scottlaw@scott-scott.com; and
(5) Shalov Stone & Bonner LLP (New York), 485 Seventh
Avenue, Suite 1000, New York, NY, 10018, Phone: (212)
239-4340, Fax: (212) 239-4310, E-mail:
lawyer@lawssb.com.
ZURICH FINANCIAL: Jan. 26 Hearing Set for $121.8 Brokerage Deal
---------------------------------------------------------------
The U.S. District Court for the District of New Jersey will hold
a fairness hearing on Jan. 26, 2007 for the proposed $121.8
million settlement by Zurich Financial Services Group and
certain of its units in the matter, "Insurance Brokerage
Antitrust Litigation."
The hearing will be held in Courtroom No. 1 in the U.S.
Courthouse located at U.S. Post Office and Courthouse Building,
Federal Square, Newark, New Jersey 07101.
Deadline for the submission of claim forms is on June 12, 2007.
Case Background
Beginning in August 2004, numerous putative class actions were
filed against various insurance brokers and insurers. In August
2005, Zurich Financial Services Group, Zurich American Insurance
Co., Steadfast Insurance Co., Fidelity and Deposit Company of
Maryland, Empire Fire and Marine Insurance Co., American
Guarantee and Liability Insurance Co., Empire Indemnity
Insurance Co., and Assurance Company of America were added to
the class actions as defendants.
The class actions allege that the brokers and insurers engaged
in conduct that, among other things, violated federal and state
statutes and common law. These putative class actions have been
consolidated into this multidistrict proceeding.
In a May 25, 2005 order, the court appointed the law firms of
Milberg Weiss Bershad & Schulman LLP and Miller Faucher and
Cafferty LLP as co-lead counsel for plaintiffs. In a July
17, 2006 order, the court substituted the law firm of Whatley,
Drake & Kallas, LLC, for the law firm of Milberg Weiss Bershad &
Schulman, LLP, as co-lead counsel.
Plaintiffs allege that the defendants "engaged in a combination
and conspiracy to suppress and eliminate competition in the sale
of insurance by coordinating and rigging bids for insurance
policies, allocating insurance markets and customers and
raising, or maintaining or stabilizing premium prices above
competitive levels."
On Oct. 14, 2005, the Zurich defendants and plaintiffs entered
into a memorandum of understanding setting forth the principal
terms of a settlement of the action.
Certified Class
On Nov. 8, the court certified a settlement class consisting of
all individuals or entities, who, during the period of time from
Aug. 26, 1994 through Sept. 1, 2005, inclusive, engaged the
services of:
(i) one of the Broker Defendants or any subsidiary or
affiliate of a broker defendant in connection with a
settlement class policy purchase from any Zurich
Insurer, any insurer defendant or any insurance company
that is not an affiliate or subsidiary of a Zurich
Insurer; or
(ii) any other broker in connection with a settlement class
policy purchase from any Zurich insurer.
The court scheduled a fairness hearing for Jan. 26, 2007 at
11:00 a.m. EST in Courtroom No. 1, U.S. Post Office and
Courthouse, Federal Square, Newark, New Jersey.
Claim filing is until June 12, 2007. Deadline for exclusion and
objection is Jan. 11, 2007.
A copy of the court's Nov. 8 Order is available for free at:
http://ResearchArchives.com/t/s?177a
A copy of the Settlement Notice is available at:
http://researcharchives.com/t/s?1882
The suit is "In Re: Insurance Brokerage Antitrust Litigation,
MDL No. 1663, Civil No. 04-5184 (FSH)," filed in the U.S.
District Court District of New Jersey under Judge Faith S.
Hochberg.
For more details, contact:
(1) Complete Claim Solutions, LLC, P.O. Box 24721, West
Palm Beach, FL 33416, Phone: 1-866-722-3544 & 001-612-
359-7999, Web site:
http://ResearchArchives.com/t/s?1880;
(2) Edith M. Kallas, Esq. and Joseph Guglielmo, Esq. of
Whatley, Drake & Kallas, LLC, 1540 Broadway, 37th
Floor, New York, New York 10036, Phone:(212) 447-7070,
Fax: (212) 447-7077, E-mail: EKallas@whatleydrake.com;
(3) Bryan L. Clobes, Esq. and Ellen Meriwether, Esq. of
Miller Faucher and Cafferty, LLP, One Logan Square,
18th & Cherry Streets, Philadelphia, Pennsylvania
19103, Phone: (215) 864-2800, Fax: (215) 864-2810, E-
mail: bclobes@millerfaucher.com; and
(4) Mark Tobey, Esq. of Chief, Antitrust and Civil Medicaid
Fraud Division, Office of the Attorney General - State
of Texas, 300 W. 15th Street, 9th Floor, Austin, Texas
78701, Phone: (512) 463-1262, Fax: (512) 320-0975, E-
mail: Mark.Tobey@oag.state.tx.us.
New Securities Fraud Cases
CAPITAL RESEARCH: Scott + Scott Files Securities Suit in Calif.
---------------------------------------------------------------
Scott + Scott, LLP filed a class action on Jan. 12, 2007 against
Capital Group Companies, Inc., Capital Research and Management
Co., and American Funds Distributors Inc. in the U.S. District
Court for the Central District of California.
The action is on behalf of all persons or entities that
purchased one or more of the funds identified below which were
distributed by American Funds Distributors (AFD Funds) during
the period Jan. 1, 2000 through March 23, 2005, for violations
of the Securities Act of 1933 and the U.S. Securities Exchange
Act of 1934.
The complaint alleges that defendants failed to disclose a
deceitful and unlawful course of conduct in which they
participated in an illicit kickback scheme, which operated to
the detriment of investors in the AFD Funds.
Interested parties must move the court no later than Feb. 19,
2007 for appointment as lead plaintiff.
According to the complaint, during the class period, defendants
participated in an illicit kickback scheme, which operated to
the detriment of investors in the AFD Funds.
Defendants actively concealed their use and improperly used
hundreds of millions of dollars in assets of the AFD Funds for
the payment of illicit incentives and illegal kickbacks to cause
broker-dealers to actively promote AFD Funds.
Plaintiff further alleges that Defendants actively concealed
these conflicts of interest involving AFD Funds from plaintiff
and other members of the Class, thereby depriving them of
necessary information for making investment decisions.
For more details, contact Scott + Scott, Phone: 800/404-7770 or
860/537-5537, E-mail: scottlaw@scott-scott.com, Web site:
http://www.scott-scott.com.
*********
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