/raid1/www/Hosts/bankrupt/CAR_Public/070528.mbx
C L A S S A C T I O N R E P O R T E R
Monday, May 28, 2007, Vol. 9, No. 104
Headlines
CANADA: Breast Cancer Patients Seek Class Certification
CHECK POINT: June 6 Hearing Set for Securities Suit Settlement
CITIGROUP GLOBAL: "Disher" Lawsuit Remanded to Ill. State Court
CONCORD EFS: Court Denies Summary Judgment Motion in ATM Case
CONCORD EFS: Seeks Dismissal of Amended Complaint in Tenn. Suit
DIAMOND PET: Recalls Pet Foods Contaminated With Melamine
DYNEGY INC: Expects to Submit Antitrust Suit Settlement in 2007
ESTEE LAUDER: Motion to Dismiss Amended Securities Suit Granted
FARO TECHNOLOGIES: Seeks Dismissal of Fla. Securities Complaint
FIRST DATA: Faces Lawsuits in Colo., Del. Over New Omaha Merger
FLORIDA: Seminole County Strip Search Suit Settlement Okayed
FLORIDA: Residents Sue Over Septic Tank Connection Time Frame
FORD MOTOR: Calif. Explorer Cases Slated to Go to Trial June 4
FORMULA ONE: 7th Circuit Upholds U.S. Grand Prix Suit Dismissal
GLAXOSMITHKLINE PLC: Faces N.Y. Suit Over Diabetes Drug Avandia
HONG CHANG: Recalls Monkfish-labeled Products that May be Toxic
HORNBECK OFFSHORE: Faces Multiple Securities Fraud Suits in La.
HOWMEDICA OSTEONICS: Faces N.J. Suit Over Faulty Artificial Hip
INTERNATIONAL COAL: Faces W.Va. Suit Over "False" IPO Disclosure
MARRIOTT INT'L: D.C. Court Denies Motion to Dismiss "Shaw" Case
MEADE INSTRUMENTS: Settles Shareholder Suits in Fourth Quarter
METLIFE INC: Tag-Along Stay Order Issued in Racketeering Suit
NATIONWIDE LIFE: Seeks Summary Judgment in Ohio Insurance Suit
NISOURCE INC: Added as Defendant in Ky. Gas Well Royalties Suit
NISOURCE INC: To Appeal $404.3M Order in W.Va. Royalties Lawsuit
NOBLE ENERGY: June 11 Hearing Set for Royalty Suits Settlement
OHIO: Measures to Improve Mahoning County Jail Conditions Ok'd
OLD REPUBLIC: Settles Title Insurance Lawsuits in Florida
PMI MORTGAGE: Calif. Court Approves FCRA Suit Settlement
QUIGLEY CORP: Cold-Eeze Suit Plaintiffs Appeal Dismissal of Case
QWEST COMMUNICATIONS: $400M Securities Suit Settlement on Appeal
SEMPRA ENERGY: Settles Antitrust Suit with L.A. for $8.5M
SOLUTIA INC: Court Considers Appeal on Dismissal of "Dickerson"
STATE FARM: Fla. Court Okays $6.4M Settlement with Policyholders
TIP TOP: Production Employees Sue to Claim Overtime Compensation
TOBACCO LITIGATION: June 6 Oral Argument Set in "Daniels"
TOLL BROTHERS: Faces Penn. Lawsuit Over Alleged RESPA Violations
UNITED STATES: La. Residents Sue Over Contaminated FEMA Trailers
WAYNE FARMS: Ga. Lawsuit Aims to Claim Unpaid Overtime Wages
New Securities Fraud Cases
AMGEN INC: Kaplan Fox Files Securities Fraud Suit in Calif.
OPTIONABLE INC: Wites & Kapetan Files Securities Suit in N.Y.
*********
CANADA: Breast Cancer Patients Seek Class Certification
-------------------------------------------------------
A St. John lawyer is seeking class certification for a suit
filed on behalf of nearly hundreds of breast cancer patients who
received inaccurate cancer test results.
Breast cancer patients' attorney Ches Crosbie presented his
arguments last week before the Supreme Court of Newfoundland in
Canada. Justice Carl Thompson said after three days of
arguments last week that he hoped to release a decision by
Monday.
The suit alleges that Eastern Regional Integrated Health
Authority mishandled the provision of information to the public
and that it wrongly diagnosed several women that they have
breast cancer.
Verna Doucette filed the suit on behalf of a group of women who
feel they suffered as a result of testing problems in the
pathology department that date as far as 1997. Errors were
disclosed only in 2005.
Mr. Crosbie said women involved in the suit are:
-- those who say they suffered mental stress after learning
their tissue samples were being retested;
-- those who say their estrogen and progesterone receptor
tests were changed from negative to positive and they
were unnecessarily treated with chemotherapy; and
-- those who were allegedly misdiagnosed with breast
cancer (Class Action Reporter, Oct 23, 2006).
He estimates that as many as 1,000 women are involved. He did
not specify the amount of damages being sought.
Eastern Health executives apologized last week for withholding
the information on the inaccuracy of cancer tests.
Mr. Crosbie believes Eastern Health's admissions would
strengthen his claims. He now has nearly 70 clients. Other
lawyers are representing 30 other breast cancer patients.
Meanwhile, according to CBC News, the Newfoundland and Labrador
government already ordered a judicial inquiry into flawed
hormone receptor tests.
Defendant Eastern Health told the public it has already fixed
the problems in its pathology testing.
For more information, contact the plaintiffs' lawyer:
Ches Crosbie, Esq.
169 Water Street, 4th Floor
St. John's, NL A1C 1B1
Phone: 1-888-579-3262 or 579-4000
Fax: 709-579-9671
E-mail: ccb@chescrosbie.nf.net
Web site: http://www.chescrosbie.com/
CHECK POINT: June 6 Hearing Set for Securities Suit Settlement
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York
will hold a fairness hearing on June 6, 2007 at 2:15 p.m. for a
proposed $13 million settlement in the class action, "In Re:
Check Point Software Securities Litigation, Case 1:03-cv-06594-
RMB-DFE."
The hearing will be held before Judge Richard M. Berman in the
U.S. District Court for the Southern District of New York, U.S.
Courthouse, 500 Pearl St., New York, NY 10007-1312 Courtroom
14A.
Deadline to file objections or exclusions was May 17, 2007.
Case Background
Beginning on Aug. 29, 2003, the company received a number of
class action complaints filed in the U.S. District Court for the
Southern District of New York by holders of its ordinary shares,
alleging violations of the U.S. federal securities laws.
On Jan. 14, 2004, the court-appointed lead plaintiffs filed a
consolidated amended complaint on behalf of a putative class of
all purchasers of ordinary shares between July 10, 2001 and
April 4, 2002.
The complaint generally alleges that the company and certain of
its senior officers made misrepresentations and omissions
regarding, among other things, sales and future prospects.
The company retained counsel and filed a motion to dismiss the
complaint. On March 7, 2005 the District Court granted the
company's motion to dismiss but permitted the lead plaintiffs to
file an amended complaint to attempt to cure the defects in the
dismissed complaint.
On Sept. 2, 2005, the company filed a motion to dismiss this
complaint. On April 25, 2006, the court denied the company's
motion to dismiss.
On Dec. 20, 2006, the company reached an agreement-in-principle
with the lead plaintiffs to settle this matter. The company
expects that its insurance carrier will pay the $13 million
settlement, which is subject to the completion of appropriate
documentation and to court approval.
Also on Dec. 20, 2006, the lead plaintiffs dismissed without
prejudice the senior officers named as defendants in the
lawsuit, according to the company's March 15 Form 20-F filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended Dec. 31, 2006.
The suit is "In Re: Check Point Software Securities Litigation,
Case 1:03-cv-06594-RMB-DFE," filed in the U.S. District Court
for the Southern District of New York under Judge Richard M.
Berman with referral to Judge Douglas F. Eaton.
Representing the plaintiffs are:
(1) Kirk E. Chapman of Milberg Weiss Bershad & Schulman LLP
(NYC), One Pennsylvania Plaza, New York, NY 10119,
Phone: (212)-946-9377, Fax: (212)-273-4391, E-mail:
kchapman@milbergweiss.com; and
(2) Aaron Lee Brody of Stull Stull & Brody, 6 East 45th
Street, 5th Floor, New York, NY 10017, Phone: 212-687-
7230, Fax: 212-4902022, E-mail: ssbny@aol.com.
(3) Kay E. Sickles of Schiffrin Barroway Topaz & Kessler,
LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone:
(610) 822-2218, Fax: (610) 667-7056, Web site:
http://www.sbclasslaw.com/.
CITIGROUP GLOBAL: "Disher" Lawsuit Remanded to Ill. State Court
---------------------------------------------------------------
The U.S. District Court for the Southern District of Illinois
remanded the class action, "Disher v. Citigroup Global Markets
Inc., f/k/a Salomon Smith Barney, Inc.," back to a state court.
Case Background
Richard Disher filed the suit on March 22, 2004 before a circuit
court. Mr. Disher was a customer of the Salomon Smith Barney,
Inc. He purchased shares of MCI WorldCom Inc. between April 16,
1998, and March 5, 1999. He also purchased shares of Rhythms
Netconnections Inc. on Aug. 11, 1999. As part of its services
for its customers, Salomon Smith issued investment research
reports and ratings on a stock's future performance.
The subject of Mr. Disher's complaint included unspecified
stocks researched and rated by Salomon Smith's Internet and
Telecommunications research groups.
Salomon Smith represented that its reports employed a five-point
rating system: "buy," "outperform," "neutral," "underperform"
and "sell." Mr. Disher's complaint alleged that "no later than
March 2000," Salomon Smith "secretly abandoned its published
five-point rating system and instead utilized a de facto three-
point system of 'buy,' 'outperform,' and 'neutral'."
Specifically, a neutral recommendation allegedly was a coded
message from Salomon Smith to certain institutional customers to
sell a security. Also, instead of assigning an underperform or
sell rating for a particular stock, Salomon Smith allegedly
would stop covering that stock, with no public announcement or
explanation. Thus, the complaint alleged, Salomon Smith's
research ratings did not reflect its actual beliefs concerning
the future performance of a stock.
The gravamen of the complaint was that Salomon Smith's
misleading ratings induced Mr. Disher and class members to
continue holding their securities in reliance on Salomon Smith's
positive ratings when SSB's analysts no longer believed that
such ratings were warranted. In addition, Salomon Smith also
allegedly used its research reports, ratings and recommendations
of certain stock to attract new, and to retain current,
investment banking clients "by agreeing to issue a research
rating for [those clients'] stock more favorably than Smith
Barney's research warranted."
Mr. Disher defined the putative class to include himself and
"all customers of Smith Barney who held one or more of the
Internet or Telecom Stocks in their Smith Barney accounts at
times when those stocks were declining in value and when Smith
Barney was rating those stocks as 'buy' 'outperform' or
'neutral' when such ratings were not warranted by Smith Barney's
research."
The complaint specifically excluded "any claims based on Smith
Barney's conduct in connection with plaintiff's or any class
member's purchases or sales of any of the Internet Stocks or
Telecom Stocks."
Salomon Smith timely removed the case to the U.S. District Court
for the Southern District of Illinois (Case No. 04 C 308) under
Judge G. Patrick Murphy on the basis of federal question
jurisdiction, diversity of citizenship jurisdiction,
jurisdiction related to bankruptcy proceedings, and preemption
under the SLUSA.
District Court Proceedings
The Securities Litigation Uniform Standards Act (SLUSA) provides
for the removal to federal court of certain class actions based
on state law in which the plaintiffs allege "a misrepresentation
or omission of a material fact in connection with the purchase
or sale of a covered security."
The district court ruled that SLUSA did not apply in this case
because the alleged misconduct was not connected sufficiently to
any purchase or sale of stock. Rather, the complaint alleged
harm solely from the retention of securities in reliance on
Salomon Smith's misleading research reports and ratings. The
district court also concluded that there was no basis for
removal under the general removal statute, section 1441 of the
Judiciary Code.
On Mr. Disher's motion, the district court remanded the case to
state court.
On appeal, Salomon Smith challenges the district court's
conclusion that Mr. Disher's action did not fall within SLUSA's
preemptive scope.
On Aug. 17, 2005, the appeals court reversed the judgment of the
district court and remands the case for further proceedings.
The 7th Circuit found federal law mandated removal of the action
to federal court and that the district court's order was a
determination delegated to federal court by the SLUSA rather
than a determination of lack of adjudicatory competence,
according to Securities Class Action Clearinghouse. Thus, it
was an appealable order rather than remand for lack of subject
matter jurisdiction.
On March 2, 2007, the district court vacated its 2005 order
dismissing the case and remanded the action to Illinois state
court, according to the company's May 4, 2007 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the
quarterly period ended March 31, 2007.
The suit is "Disher v. Citigroup Global Markets Inc., Case No.
3:04-cv-00308-GPM-CJP," filed in the U.S. District Court for the
Southern District of Illinois under Judge G. Patrick Murphy with
referral to Judge Clifford J. Proud.
Representing the plaintiff is:
Derek Y. Brandt, Esq.
SimmonsCooper
209 South LaSalle Street, Suite 805
Chicago, IL 60604
Phone: 312-759-7500
Fax: 312-759-7516
E-mail: dbrandt@simmonscooper.com
Representing the defendants is:
Richard K. Hunsaker, Esq.
Heyl, Royster et al.
103 West Vandalia Street, P.O. Box 467
Edwardsville, IL 62025
Phone: 618-656-4646
E-mail: rhunsaker@hrva.com
CONCORD EFS: Court Denies Summary Judgment Motion in ATM Case
-------------------------------------------------------------
The U.S. District Court for the Northern District of California
issued an order terminating Concord EFS, Inc.'s motion for
summary judgment in the purported class action, "ATM Fee
Antitrust Litigation," which was filed against Concord EFS, Inc.
On July 2, 2004, Pamela Brennan, Terry Crayton, and Darla
Martinez filed a class action complaint on behalf of themselves
and all others similarly situated in the U.S. District Court for
the Northern District of California against the company, its
subsidiary Concord EFS, Inc., and various financial
institutions.
Plaintiffs claim the defendants violated antitrust laws by
conspiring to artificially inflate foreign ATM fees that were
ultimately charged to ATM cardholders. They seek a declaratory
judgment, injunctive relief, compensatory damages, attorneys'
fees, costs and such other relief as the nature of the case may
require or as may seem just and proper to the court.
Five similar suits were filed and served in July, August and
October 2004, two in the Central District of Los Angeles,
California; two in the Southern District of New York, and one in
the Western District of Seattle, Washington.
The plaintiffs sought to have all of the cases consolidated by
the Multi District Litigation panel. The panel denied that
request on Dec. 16, 2004 and all cases were transferred to the
Northern District Court of California and assigned to a single
judge. All cases other than Brennan were stayed.
Subsequently, a seventh lawsuit was filed in the District of
Alaska, which thereafter was also transferred to the Northern
District of California and assigned to the same judge.
In Brennan, on May 4, 2005, the court ruled on defendants'
Motion to Dismiss and Motion for Judgment on the Pleadings. The
court did not dismiss the complaint, except for a technical
dismissal of the claims against First Data Corp., Bank One Corp.
and JPMorgan Chase.
On May 25, 2005, the plaintiffs filed an amended complaint that
clarified the basis for alleging that the holding companies
First Data Corp., Bank One Corp. and JPMorgan Chase were
liable.
On July 21, 2005, Concord filed a motion for summary judgment
seeking to foreclose claims arising after Feb. 1, 2001, the date
that Concord acquired the STAR network.
On Aug. 22, 2005, the court also consolidated all of the ATM
interchange cases pending against the defendants in Brennan that
is now referred to collectively as the "ATM Fee Antitrust
Litigation."
On Sept. 14, 2006, a hearing on Concord's Motion for Summary
Judgment was held and the Court requested additional briefing.
On Nov. 30, 2006, the Court issued an order that terminated the
pending motion and requested further discovery on the limited
issue of procompetitive justifications for the fixed ATM
interchange by March 1, 2007.
The suit is "In re ATM Fee Antitrust Litigation, Case No. 4:04-
cv-02676-SBA," filed in the U.S. District Court for the Northern
District of California under Judge Saundra Brown Armstrong.
Representing the plaintiffs are:
Daniel O. Myers, Esq.
Richardson, Patrick, Westbrook and Brickman, LLC
1037 Chuck Dawley, Building A,
Mt. Pleasant, SC 92464
Phone: 843-727-6500
Fax: 843-216-6509
E-mail: dmyers@rpwb.com
- and -
Joseph R. Saveri, Esq.
Lieff Cabraser Heiman & Bernstein, LLP
275 Battery Street, 30th Floor
San Francisco, CA 94111-3339
Phone: 415-956-1000
Fax: 415-956-1008
E-mail: jsaveri@lchb.com
Representing the defendants are:
Buckmaster DeWolf, Esq.
Peter Edward Moll, Esq.
Benjamin K. Riley, Esq.
Brian Wallach, Esq.
Howrey Simon Arnold & White, LLP
301 Ravenswood Avenue
Menlo Park, CA 94025
Phone: 650-463-8100
E-mail: dewolfb@howrey.com
mollp@howrey.com
rileyb@howrey.com
wallachb@howrey.com
CONCORD EFS: Seeks Dismissal of Amended Complaint in Tenn. Suit
---------------------------------------------------------------
Concord EFS Inc., which has merged with First Data Corp., is
seeking the dismissal of the third amended complaint in a
consolidated securities fraud suit filed in Shelby County
Circuit Court in Tennessee.
On or about April 3 and 4, 2003, two purported class action
complaints were filed on behalf of the public holders of Concord
EFS's common stock, excluding shareholders related to or
affiliated with the individual defendants.
The defendants in those actions were certain current and former
officers and directors of Concord. The complaints generally
alleged breaches of the defendants' duty of loyalty and due care
in connection with the defendants' alleged attempt to sell
Concord without maximizing the value to shareholders in order to
advance the defendants' alleged individual interests in
obtaining indemnification agreements related to the securities
litigation discussed above and other derivative litigation.
The complaints sought class certification, injunctive relief
directing the defendants' conduct in connection with an alleged
sale or auction of Concord, reasonable attorneys' fees, experts'
fees and other costs and relief the Court deems just and proper.
On or about April 2, 2003, Barton K. O'Brien filed an additional
purported class-action complaint. The defendants were Concord
and certain of its current and former officers and directors.
This complaint contained allegations regarding the individual
defendants' alleged insider trading and alleged violations of
securities and other laws and asserted that this alleged
misconduct reduced the consideration offered to Concord
shareholders in the proposed merger between Concord and a
subsidiary of the company.
The complaint sought class certification, attorneys' fees,
experts' fees, costs and other relief the Court deems just and
proper. Moreover, the complaint also sought an order enjoining
consummation of the merger, rescinding the merger if it is
consummated and setting it aside or awarding rescissory damages
to members of the putative class, and directing the defendants
to account to the putative class members for unspecified
damages.
Consolidated Lawsuit
These complaints were consolidated in a second amended
consolidated complaint filed Sept. 19, 2003 into one action, "In
Re: Concord EFS, Inc. Shareholders Litigation," in the Shelby
County Circuit for the State of Tennessee.
On Oct. 15, 2003, the plaintiffs in "Concord EFS, Inc.
Shareholders Litigation," moved for leave to file a third
amended consolidated complaint similar to the previous
complaints but also alleging that the proxy statement
disclosures relating to the antitrust regulatory approval
process were inadequate.
A motion to dismiss was filed on June 22, 2004 alleging that the
claims should be denied and is moot since the merger has
occurred.
On Oct. 18, 2004, the Court heard arguments on the plaintiff's
motion to amend complaint and defendant's motion to dismiss.
On Sept. 12, 2006, the Court granted the plaintiff's motion to
file a third amended complaint.
In early November 2006, Concord filed a motion to dismiss the
third amended complaint, according to First Data Corp.'s May 8,
2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period March 31, 2007.
First Data Corp. -- http://www.firstdatacorp.com-- operates
electronic commerce, payment services and customer account
management businesses. FDC has four main business segments:
First Data Commercial Services Segment, First Data Financial
Institution Services Segment, First Data International Segment
and Integrated Payment Systems Segment, and a fifth segment,
known as All Other and Corporate.
DIAMOND PET: Recalls Pet Foods Contaminated With Melamine
---------------------------------------------------------
Diamond Pet Foods has recalled a limited quantity of Nutra
Nuggets 40 Lb. Lamb Meal and Rice Formula because of
confirmatory testing that indicates the product may include
traces of melamine resulting from cross contamination during
manufacturing.
No animal deaths have been reported.
This action is limited to Nutra Nuggets 40 Lb. Lamb Meal and
Rice Formula with production codes of NLR0404A2SL, "Best Before"
Oct. 9, 2008, and NLR0404B2SL, "Best Before" Oct. 9, 2008. The
recalled product was manufactured at the company's Lathrop,
Calif. facility. No other Nutra Nuggets products are affected.
Consumers who purchased Nutra Nuggets 40 Lb. Lamb Meal and Rice
Formula with production codes of NLR0404A2SL, "Best Before" Oct.
9, 2008, and NLR0404B2SL, "Best Before" Oct. 9, 2008, should
stop feeding the product immediately and return unused portions
to their retailer for a full refund.
Consumers may also contact the Diamond Pet Foods Customer
Information Center toll free at 1-866-214-6945 for further
information. The Center, which is staffed by veterinarians, is
open Monday through Friday from 8:00 a.m. to 7:00 p.m. CDT.
DYNEGY INC: Expects to Submit Antitrust Suit Settlement in 2007
---------------------------------------------------------------
An agreement entered by Dynegy Inc. to settle a suit by
California natural gas resellers and cogenerators is expected to
be submitted to the court for approval in 2007.
In August 2006, Dynegy entered into an agreement to settle class
action claims by California natural gas resellers and
cogenerators. These claims are pending in Nevada federal
district court in "In Re Western States Wholesale Natural Gas
Antitrust Litigation". In this case, plaintiffs allege that the
defendant gas providers reported false trades and exaggerated
trading volumes to the publishers of gas pricing indices, by
which the market sets prices, and otherwise conspired to
manipulate the natural gas market, resulting in artificially
inflated prices.
WCP (Generation) Holdings, Inc. and its subsidiaries are named
defendants and Dynegy's settlement would include full releases
for these entities. The settlement is expected to be submitted
to the court for approval in 2007. Dynegy used to own 50% of
WCP.
Neither WCP, its subsidiaries, nor NRG paid any defense costs or
settlement funds, as Dynegy owed and provided a complete defense
and indemnification.
Dynegy, Inc. on the Net: http://www.dynegy.com.
ESTEE LAUDER: Motion to Dismiss Amended Securities Suit Granted
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
issued an order on May 22, 2007 granting defendants' motion to
dismiss an amended complaint in the consolidated securities
fraud class action pending against the company.
The Court dismissed the Complaint on grounds that the
allegations did not sufficiently show that the Lead Plaintiff
suffered economic losses from his purchases of Estee Lauder
common stock during the Class Period.
On March 30, 2006, a purported securities class action
complaint, "Thomas S. Shin, et al. v. The Estee Lauder Cos.
Inc., et al.," was filed against the company and certain of its
officers and directors.
The suit was filed on behalf of all persons who purchased or
otherwise acquired the publicly traded securities of The Estee
Lauder Companies, Inc. between April 28, 2005 and October 25,
2005, inclusive.
The complaint alleged that the defendants made statements during
the period April 28, 2005 to October 25, 2005 in press releases,
the company's public filings and during conference calls with
analysts that were materially false and misleading and that
artificially inflated the price of the company's stock. It also
alleged claims under Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934.
Additionally, the complaint asserted that during the class
period, certain executive officers and the trust for the benefit
of a director sold shares of our Class A Common Stock at
artificially inflated prices.
Three additional purported securities class action complaints
were subsequently filed in the U.S. District Court for the
Southern District of New York containing similar allegations.
On July 10, 2006, the court consolidated these actions as "In Re
Estee Lauder Companies Securities Litigation," appointed lead
plaintiff, and approved the selection of lead counsel.
A consolidated amended complaint addressing the same issues as
the original complaint was filed on Sept. 8, 2006.
Defendants filed a motion to dismiss the amended complaint on
Nov. 7, 2006 and the plaintiff responded to the motion on Jan.
5, 2007. Defendants replied to plaintiff's response on Feb. 5,
2007 (Class Action Reporter, May 14, 2007).
In it's May 22, 2007 dismissing the complaint, the U.S. District
Court for the Southern District of New York, granted Plaintiff
permission to file an Amended Complaint on or before June 4,
2007.
The suit is "In re: Estee Lauder Cos. Securities Litigation,
Case No. 1:06-cv-02505-LAK," filed in the U.S. District Court
for the Southern District of New York under Judge Lewis A.
Kaplan.
Representing the plaintiffs are:
James Henry Glavin, Esq.
Stull Stull & Brody
6 East 45th Street, 5th Floor
New York, NY 10017
Phone: (212) 687-7230
Fax: (212) 490-2022
E-mail: jhglavin@ssbny.com
Eric James Belfi, Esq.
Labaton Rudoff & Sucharow, LLP
100 Park Avenue, 12th Floor
New York, NY 10017
Phone: (212) 907-0790
Fax: (212) 883-7579
E-mail: ebelfi@labaton.com
FARO TECHNOLOGIES: Seeks Dismissal of Fla. Securities Complaint
---------------------------------------------------------------
Faro Technologies, Inc. is seeking the dismissal of a Second
Amended Complaint in a securities fraud class action pending
against it in the U.S. District Court for the Middle District of
Florida.
On Dec. 6, 2005, the first of four essentially identical class
action securities fraud lawsuits were filed against the Company
and certain officers of the Company.
On April 19, 2006, the four lawsuits were consolidated, and
Kornitzer Capital Management, Inc. was appointed as the lead
plaintiff.
On May 16, 2006, Kornitzer filed its Consolidated Amended Class
Action Complaint against the Company and the individual
defendants.
The Amended Complaint also named Grant Thornton LLP, the
Company's independent registered public accounting firm, as an
additional defendant.
On July 31, 2006, the Company filed a Motion to Dismiss the
Amended Complaint. On Feb. 3, 2007, the Court dismissed the
Amended Complaint, without prejudice.
As to the Company and the individual defendants, the Court's
decision primarily was based on its findings that the Amended
Complaint failed to adequately allege:
-- scienter (i.e., intentionally fraudulent or severely
reckless conduct) with respect to certain claims; and
-- that certain supposed misrepresentations or omissions
actually caused economic loss.
The Court granted Kornitzer leave to file a Second Amended
Complaint by Feb. 22, 2007.
On Feb. 22, 2007, Kornitzer filed its Consolidated Second
Amended Class Action Complaint against the Company, the
individual defendants and Grant Thornton LLP.
In the Second Amended Complaint, as in the Amended Complaint,
Kornitzer seeks to represent a class consisting of all persons
who purchased or otherwise acquired the Company's publicly
traded securities between April 15, 2004 and March 15, 2006.
On behalf of the alleged class, Kornitzer seeks an unspecified
amount of damages, premised on allegations that each defendant
made misrepresentations and omissions of material fact during
the class period in violation of the Securities Exchange Act of
1934.
Among other things, Kornitzer alleges:
-- that the Company's reported inventory, gross margins
and profits were false and misleading during a portion
of the class period because the Company consciously
overstated the value of its inventory;
-- that the Company misstated during 2005 certain of the
selling expenses it had accrued and had expected to
incur;
-- that certain Asian sales that the Company had reported
during the class period had been the product of
unlawful payments made in violation of the Foreign
Corrupt Practices Act, and that the Company failed to
disclose that it was utilizing unlawful means to
achieve such sales; and
-- that certain of the Company's statements regarding the
Company's systems of internal controls had been false
and misleading, in light of the above and other
circumstances.
The Company intends to file a motion to dismiss the Second
Amended Complaint in May 2007, according to the company's May 8,
2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period March 31, 2007.
The suit is "Goldberger v. Faro Technologies, Inc. et al., Case
No. 6:05-cv-01810-ACC-DAB," filed in the U.S. District Court for
the Middle District Court of Florida under Judge Anne C. Conway
and with referral to Judge David A. Baker.
Representing the plaintiffs are:
John F. Edgar, Esq.
John M. Edgar, Esq.
Edgar Law Firm, LLC
4520 Main St., Suite 1650
Kansas City, MO 64111
Phone: 816/531-0033
Fax: 816/531-3322
E-mail: jfe@edgarlawfirm.com
jme@edgarlawfirm.com
- and -
Patrick A. Klingman, Esq.
Karen M. Leser, Esq.
James E. Miller, Esq.
James C. Shah, Esq.
Nathan Zipperian, Esq.
Scott R. Shepherd, Esq.
Shepherd, Finkelman, Miller & Shah, LLC
Phone: 860-526-1100, 610-891-9880 and 954-943-9191
Fax: 860-526-1120, 610-891-9883 and 954-943-9173
E-mail: pklingman@sfmslaw.com
kleser@sfmslaw.com
jmiller@sfmslaw.com
jshah@classactioncounsel.com
nzipperian@classactioncounsel.com
sshepherd@classactioncounsel.com
Representing the defendants are:
Richard S. Davis, Esq.
Robert A. Scher, Esq.
Foley & Lardner, LLP
Phone: (407) 244-3260 and (212) 682-7474
Fax: (407) 648-1743 and (212) 687-2329
E-mail: rdavis@foley.com
- and -
Daniel A. Casey, Esq.
Jeffrey T. Kucera Esq.
Kirkpatrick & Lockhart Nicholson Graham, LLP
201 S. Biscayne Blvd., Suite 2000
Miami, FL 33131-2399
Phone: 305-539-3324 and 305-539-3322
Fax: 305-358-7095
E-mail: dcasey@klng.com
jkucera@kl.com
FIRST DATA: Faces Lawsuits in Colo., Del. Over New Omaha Merger
---------------------------------------------------------------
First Data Corp. faces several purported class actions in
Colorado and Delaware with regards to a merger agreement it
entered into with New Omaha Holdings L.P., and its wholly owned
subsidiary Omaha Acquisition Corp.
On April 1, 2007, the company entered into an agreement and plan
of merger with New Omaha, a Delaware limited partnership, and
its subsidiary Omaha Acquisition, a Delaware corporation. New
Omaha is controlled by affiliates of Kohlberg Kravis Roberts &
Co. (KKR).
Four purported class actions were filed against the company and
its directors challenging the process by which the company
agreed to enter into the merger agreement. These lawsuits are:
-- "Anthony Pappas, individually and on behalf of all
others similarly situated v. Kohlberg Kravis Roberts &
Co., Henry C. Duques, Daniel P. Burnham, David A.
Coulter, Alison Davis, Peter B. Ellwood, Courtney F.
Jones, Richard P. Kiphart, James D. Robinson, III,
Charles T. Russell, Joan E. Spero, Arthur F. Weinbach,
and First Data Corporation, filed in the District Court
for Arapahoe County, Colorado, on April 2, 2007;"
-- "Morton Smith Trust, on behalf of its and all others
similarly situated v. First Data Corporation, Henry C.
Duques, Peter B. Ellwood, Richard P. Kiphart, David A.
Coulter, Alison Davis, Daniel P. Burnham, Courtney F.
Jones, James D. Robinson, III, Charles T. Russell, Joan
E. Spero, and Arthur F. Weinbach, filed in the District
Court for Arapahoe County, Colorado, on April 4, 2007;"
-- "Chris Larson v. First Data Corporation, Kohlberg
Kravis Roberts & Co., L.P., Henry C. Duques, Arthur F.
Weinbach, James D. Robinson, III, Charles T. Russell,
Daniel P. Burnham, David A. Coulter, Alison Davis,
Peter B. Ellwood, Courtney F. Jones, Richard P.
Kiphart, and Joan E. Spero, filed in the Court of
Chancery in and for Newcastle County, Delaware, on
April 10, 2007;" and
-- "Trust Under the Will of Florence Rosenman v. First
Data Corporation, Kohlberg Kravis Roberts & Co., L.P.,
Henry C. Duques, Daniel P. Burnham, David A. Coulter,
Alison Davis, Peter B. Ellwood, Courtney F. Jones,
Richard P. Kiphart, James D. Robinson, III, Charles T.
Russell, Joan E. Spero, and Arthur F. Weinbach, filed
in the Court of Chancery in and for Newcastle County,
Delaware, on April 19, 2007."
These purported class-action complaints generally allege that
the members of the company's Board of Directors breached their
fiduciary duties of care and loyalty by entering into the merger
agreement without regard to the fairness of the transaction to
the company's shareholders or the maximization of shareholder
value.
The complaints also allege that the company and/or KKR aided and
abetted the directors' breaches.
They generally seek class certification, an order enjoining
consummation of the proposed merger, rescinding the proposed
merger if it is consummated and setting it aside or awarding
rescissory damages to members of the class, directing the
defendants to exercise their fiduciary duties and account to the
class members for unspecified damages, imposing a constructive
trust in favor of the class for benefits improperly received by
the defendants, and awarding costs and disbursements, including
reasonable attorneys' fees, experts' fees and other costs and
relief the court deems just and proper.
First Data Corp. -- http://www.firstdatacorp.com-- operates
electronic commerce, payment services and customer account
management businesses. FDC has four main business segments:
First Data Commercial Services Segment, First Data Financial
Institution Services Segment, First Data International Segment
and Integrated Payment Systems Segment, and a fifth segment,
known as All Other and Corporate.
FLORIDA: Seminole County Strip Search Suit Settlement Okayed
------------------------------------------------------------
The U.S. District Court for the Middle District of Florida gave
final approval to a settlement of a class action filed by eight
people illegally strip-searched at the Seminole County Jail in
2004, Robert Perez of The Orlando Sentinel reports.
The suit was filed in 2004 by eight people who were jailed and
strip-searched after they were mistakenly sent to the wrong
Seminole County courtroom, and thus failed to show up at the
designated courtroom.
Named defendants in the suit are the Seminole County and the
Sheriff's Office.
Under the settlement, the eight named plaintiffs will receive
$40,000 each. Another $54,000 will be divided among as many as
30 others who were similarly strip-searched. The settlement
totals $620,000 including attorney's fees.
The class includes those people who were sent to jail without
first seeing a judge, and then were strip-searched.
Though initial estimates predicted as many a 1,000 additional
claims could be made against the jail -- potentially costing the
county millions of dollars -- only four more claims were
approved in the final order approving the settlement.
Judge Gregory Presnell questioned attorneys for both sides about
the four additional claims and eight others that were rejected
or were filed after a May 4, 2007 deadline.
The small number of successful claims in the class action stems
from the specific circumstances surrounding the eight original
plaintiffs. The settlement required additional claims to
involve people who were "mistakenly" jailed then illegally
strip-searched.
"That shrunk the class astronomically," Larry Hanks, one of the
plaintiff's attorneys, pointed out to The Orlando Sentinel. He
adds that a settlement probably couldn't have been reached
without that concession and another involving dropping a claim
of lengthy detainment at the jail.
Mr. Hanks told The Orlando Sentinel that without a negotiated
settlement, the plaintiffs faced a two- to three-year court
battle, and even if they succeeded, appeals could stretch out
the case to five years.
Three other people opted out of the class action and will likely
pursue separate lawsuits.
The suit is "Parilla et al. v. Eslinger et al., Case No. 6:05-
cv-00850-GAP-KRS," filed in the U.S. District Court for the
Middle District of Florida, under Judge Gregory A. Presnell with
referral to Judge Karla R. Spaulding.
Representing the plaintiffs are:
Randall Challen Berg, Jr., Esq.
Cullin Avram O'Brien, Esq.
Peter Michael Siegel, Esq.
Florida Justice Institute, Inc.
200 S. Biscayne Blvd., Suite 2870
Miami, FL 33131-2309
Phone: 305/358-2081
Fax: 305/358-0910
E-mail: rcberg@bellsouth.net
cullinobrien@bellsouth.net
pmsiegel@bellsouth.net
- and -
J. Larry Hanks, Esq.
Larry Hanks, P.A.
6500 S. Highway 17-92
Fern Park, FL 32819
Phone: 407/423-1231
Fax: 407/423-3066
E-mail: larrylaw@bellsouth.net
Representing the defendants are:
D. Andrew DeBevoise, Esq.
Thomas W. Poulton, Esq.
DeBevoise & Poulton, P.A.
Lakeview Office Park, Ste. 1010, 1035 S. Semoran Blvd.
Winter Park, FL 32792
Phone: 407/673-5000 ext. 231
Fax: 407/673-5059
E-mail: debevoise@debevoisepoulton.com
poulton@debevoisepoulton.com
- and -
Henry W. Jewett, II, Esq.
David T. White, III, Esq.
Rissman Weisberg Barrett Hurt Donahue & McLain P.A.
201 E. Pine St., 15th Floor, P.O. Box 4940
Orlando, FL 32802-4940
Phone: 407/839-0120
Fax: 407-841-9726
E-mail: skip.jewett@rissman.com
trey.white@rissman.com
FLORIDA: Residents Sue Over Septic Tank Connection Time Frame
-------------------------------------------------------------
About 150 residents of Marco Island, Florida, filed a suit
against the city over the time limit it has set in order for
homeowners to hook up to the Septic Tank Replacement Program
(STRP).
The suit seeks declaratory judgment from the Collier County
Circuit Court regarding the ordinance, which only gives them 90
days to make that connection and destroy their septic system as
opposed to the state statute that allows them 365 days. The
suit wants the court to declare the city ordinance invalid.
Resident Jim Kennedy, one of the lead plaintiffs, said more than
5,000 property owners in the sewer districts would be affected
by this action.
Lisa Douglass, Marco Island Public Information Coordinator, said
nearly 400 properties in Tigertail Sewer District and the
Barfield Sewer District still need to hook up to the STRP.
According to residents' attorney Sam Gold, they seek to preserve
the private property rights of over 5,200 property owners. He
added that state law gives residents a full year to connect to
the septic system replacement program after receiving official
notice from the city.
Mr. Gold further added, "We checked with the Collier County
Attorney's Office prior to filing the class action and was told
that the ordinance mandating connection within 90 days is on
shaky ground and likely wouldn't survive a court challenge."
Marco Island City Council Chairman Mike Minozzi said the city
extended the hookup time to June 1.
Representing the city is:
Richard D. Yovanovich, Esq.
Goodlette, Coleman & Johnson, P.A.
Northern Trust Bank Building,
4001 Tamiami Trail North, Suite 300
Naples, Florida 34103
Phone: 239-435-3535
Fax: 239-435-1218
Representing the property owners is:
Samuel C. Gold, Esq.
The Gold Law Firm
405 Fifth Avenue S., Suite 9
Naples, Florida 34102
Phone: 239-263-2060
Fax: 239-649-4219
Web Site: http://www.golddees-law.com
FORD MOTOR: Calif. Explorer Cases Slated to Go to Trial June 4
--------------------------------------------------------------
The class action filed by California consumers against
Ford Motor Co. over its 1991-2001 model year Explorers is
scheduled to go to trial on June 4.
Class members include all people and entities residing in
California who bought, owned or leased, a new or used 1991-2001
model year Ford Explorer in California between 1990 and August
9, 2000, and who either still own their Explorer or who sold,
ended their lease, or otherwise disposed of it after August 9,
2000.
Filed in 2003, Plaintiffs in the lawsuit claimed that Defendant,
Ford Motor Co., violated California's statutory Unfair
Competition Law, False Advertising Law, and Consumers Legal
Remedies Act.
Plaintiffs say that Ford knew about a dangerous design flaw that
made the Explorer unsafe and too likely to roll over, yet
concealed it, and instead marketed and sold the Explorer as a
safe vehicle. The Plaintiffs contend that after the alleged
rollover tendency was revealed to the public on
August 9, 2000 (when Firestone recalled tires-many of which were
designed specifically for use on the Ford Explorer-and Explorer
rollover accidents were publicized), the value of Explorers
significantly declined.
Plaintiffs say the Firestone tire recall did not solve the
Explorer's instability problem. The Plaintiffs also say that
Ford's cover-up of the Explorer's design flaws, combined with
the Explorer's false safety image, led California consumers to
buy or lease Explorers at higher prices than would have been
placed on Explorers had these dangers been disclosed.
The Plaintiffs want Class members to get compensation from Ford
for the excess money they say they paid for their Explorers, as
well as money from the profits Ford earned on California
Explorer sales, and other legal costs.
On April 23, 2007 Class Counsel requested that the Court
voluntarily and permanently dismiss, with prejudice, the claims
against Ford for violations of the CLRA. Ford provided no
compensation or relief on this claim. Plaintiffs' request is
being considered by the Court but the Court has not yet ruled.
If the Court grants this request, it would mean that the CLRA
claims in the case are completely eliminated and cannot be
brought against Ford again.
Dismissal of the CLRA claim means that none of the claims in
this class action will be presented to a jury and that all
claims for compensatory and punitive damages will be dismissed
at the request of Class Counsel. The claims against Ford
seeking equitable relief for violations of the Unfair
Competition Law and False Advertising Law remain and the lawsuit
continues to seek the return of the money Plaintiffs say was
unjustly taken from them by Ford.
The trial on the remaining claims will begin on June 4, 2007,
before Judge David DeAlba.
Ford continues to deny all the claims and allegations in the
lawsuit. It denies that the Explorers at issue are defectively
designed and claims that the unique handling characteristics of
sport utility vehicles (SUVs) were fully disclosed through its
product literature and government-mandated warning labels in the
vehicles themselves.
Ford notes that Plaintiffs are not claiming that the Explorer is
more prone to roll over than other comparable SUVs. Ford says
that neither the Plaintiffs nor the members of the Class have
lost money or paid too much for their vehicles due to the
alleged design flaw, which Ford believes has not "manifested"
(i.e., shown) itself in its vehicles. Accordingly, Ford says it
has no liability for any of these issues.
Ford Explorer Cases on the net: http://www.explorercasuit.com
Copies of the 2003 Complaint, the detailed notice and an updated
notice are available free of charge at:
http://ResearchArchives.com/t/s?202a
http://ResearchArchives.com/t/s?202b
http://ResearchArchives.com/t/s?202c
The case is "Ford Explorer Cases, JCCP Nos. 4226 and 4270."
FORMULA ONE: 7th Circuit Upholds U.S. Grand Prix Suit Dismissal
---------------------------------------------------------------
The U.S. Circuit Court of Appeals for the Seventh District
upheld the dismissal by the U.S. District Court for the Southern
District Court of Indiana of the purported class action, "In Re:
2005 United States Grand Prix, Case No. 1:05-cv-00914-SEB-VSS."
Initially, the suit was filed in 2005 against Formula One,
French tiremaker Michelin and the Indianapolis Motor Speedway by
fans upset that seven race teams boycotted the 2005 U.S. Grand
Prix.
The Formula One fan behind the case is Larry Bowers, who filed
the class action following the debacle at the U.S. Grand Prix in
Indianapolis when 14 out of 20 cars refused to race after
Michelin earlier told its partners that racing was unsafe after
they failed to find out what had caused two crashes in practice
at the Indianapolis Motor Speedway (Class Action Reporter, June
23, 2005).
The suit sought punitive damages as well as compensatory damages
for ticket costs, travel expenses and food, from the motor
sport's governing body Federation Internationale de
l'Automobile, the Formula One Administration, Michelin and Motor
Speedway, accusing them of fraud.
After the debacle, Michelin offered to refund money to those who
bought race tickets and buy 20,000 tickets for those wanting to
return for the 2006 race. However, some fans think the offer
was not enough (Class Action Reporter, July 22, 2005).
Also named in the suit are the seven teams that used Michelin
tires: BMW-Williams, Mercedes-McLaren, BAR-Honda, Toyota,
Sauber, Red Bull and Renault, as well as Bridgestone-Firestone
and Michael Schumacher's winning Ferrari team.
In dismissing the suit back in June 2006, Judge Sarah Evans
Barker of the U.S. District Court for the Southern District
Court of Indiana said that plaintiffs, who are car-racing
enthusiasts, had no basis to sue.
She also noted that each ticket to the race clearly stated "No
refund" and includes a disclaimer of liability from all claims
arising from the race.
Chief Judge Frank Easterbrook of the Seventh Circuit upheld
Judge Barker's ruling and thus dismissed plaintiffs' claims in a
14-page opinion.
Judge Easterbrook pointed out that the reduced race was
allowable under Formula One rules, "and once it is established
that the plaintiffs received a regulation race, they admit that
they had no additional right to a race that was exciting or
drivers that competed well."
The suit is "In Re: 2005 United States Grand Prix, Case No.
1:05-cv-00914-SEB-VSS," on appeal from the U.S. District Court
for the Southern District Court of Indiana under Judge Sarah
Evans Barker with referral to Judge Sue Shields.
Representing the plaintiffs is:
Henry J. Price, Esq.
Price Waicukauski & Riley, LLC
301 Massachusetts Ave.
Indianapolis, Indiana 46204
Phone: (317) 633-8787 or (800) 905-2856
Fax: (317) 633-8797
Web site: http://www.price-law.com
GLAXOSMITHKLINE PLC: Faces N.Y. Suit Over Diabetes Drug Avandia
---------------------------------------------------------------
GlaxoSmithKline Plc is facing a class-action complaint filed May
22 in the U.S. District Court for the Southern District of New
York alleging violations of Section 49 of the New York General
Business Law, common law fraud, unjust enrichment and negligent
misrepresentation.
Avandia, created and marketed by Glaxo, is designed to treat
persons with Type 2 diabetes by helping sensitize cells to
insulin, thereby greatly assisting in blood-sugar control. It
also is combined with metformin and sold as Avandamet.
Named plaintiff Shiela E. Schrank, alleges Glaxo is fraudulently
creating, marketing, distributing and selling its diabetes drug
Avandia (rosiglitazone), even after trials showed that patients
suffered a 43 percent increased chance of heart attacks after
using it.
As early as 2005, Glaxo performed an overview analysis of
multiple Avandia trials, referred to as a "meta-analysis", and
shared the preliminary results with the Food and Drug
Administration in September 2005. Almost a year later, in
August 2006, a more complete version of the meta-analysis was
provided to the FDA, results of which showed that patients
taking Avandia had a 31% higher risk of adverse cardiovascular
events such as heart attack due to obstruction of blood flow.
The suit claims that despite Glaxo's longstanding knowledge of
these dangers, Avandia's label only warns about possible heart
failure and other heart problems when taken with insulin.
Defendants failed to warn and disclose to consumers that Avandia
significantly increase the risk of adverse cardiovascular
events. Furthermore, the proper and effective use of Avandia by
plaintiffs was impaired due to defendant's failure to warn of
Avandia's defects and defendant's failure to properly and
adequately set forth such warnings in Avandia's drug labeling.
Not only has Glaxo failed to disclose in its labeling or
advertising that Avandia is actually dangerous for diabetics,
the company has represented and continues to represent that they
manufacture and/or sell safe and dependable pharmaceuticals with
safety as their first concern, the suit says.
Ms. Schrank brings this action as a class action pursuant to
Federal Rules of civil Procedure 23(b)(3) on behalf of those
persons who purchased or ingested Avandia from Sept. 1, 2005
through and including May 21, 2007 and satisfying the following
requirements:
(a) if Avandia was created and designed with defects that
increase patients' risk of adverse cardiovascular
events;
(b) if Avandia increases patients' risk of adverse
cardiovascular events, as a result of its defects;
(c) if defendant knowingly failed to disclose and ward of
Avandia's defects with the intent that others rely upon
such concealment, suppression or omission;
(d) if defendant used or employed unconscionable commercial
practices in connection with the sale of Avandia;
(e) whether plaintiff and members of the class are entitled
to entry of final injunctive relief compelling
defendant to recall Avandia;
(f) if plaintiff and members of the class are entitled to
entry of final injunctive relief compelling defendant
to fully and adequately inform consumers of Avandia's
defects;
(g) if plaintiff and members of the class are entitled to
actual damages representing the ascertainable loss of
money and/or property that have been and/or will be
suffered by plaintiff and members of the class as a
result of Avandia's defects;
(h) if defendant intentionally or negligently misrepresented
material facts concerning Avandia's defects;
(i) if defendant was unjustly enriched by their
misrepresentations and fraud;
(j) whether class members are entitled to monetary damages
and injunctive relief;
(k) if the court should establish a constructive trust
funded by the benefits upon the defendant by its
wrongful and unlawful conduct;
(l) if the GBL and the common laws were violated by Glaxo's
conduct as alleged;
(m) if defendant had a duty to disclose material facts
concerning the serious problems that would inevitably
result from its inherently defective Avandia design;
(n) the extent the class has sustained damages; and
(o) the extent defendant should be held to account for its
wrongful conduct.
Plaintiff pray for relief and judgment as follows:
-- determining that this action is a proper class action,
designating plaintiff as lead plaintiff and plaintiff's
counsel as lead counsel, certifying plaintiff as class
representative under Rule 23 of the Federal Rules of
Civil Procedure;
-- awarding compensatory and punitive damages in favor of
plaintiff and the other class members against defendant
for all damages sustained as a result of defendant's
wrongdoing, including violation of the GBL, in an amount
to be determined at trial, including interest;
-- requiring defendant to account for and/or pay in damages
to plaintiff and the class the amounts by which Glaxo
was unjustly enriched due to its wrongful conduct;
-- awarding plaintiff and the class their reasonable costs
and expenses incurred in this action, including counsel
fees and expert fees, as well as incidental and
consequential damages;
-- awarding injunctive relief by ordering Glaxo to issue
corrective actions including notification and recall,
and imposing a constructive trust upon monies obtained
by Glaxo as a result of the alleged wrongful conduct;
and
-- such other and further relief as the court may deem just
and proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?2025
The suit is "Schrank v. Glaxosmithkline Plc, Case No. 1:07-cv-
04006-BSJ," filed in the U.S. District Court for the Southern
District of New York under Judge Barbara S. Jones.
Representing plaintiffs are:
Jay Paul Saltzman, Esq.
Frank Rocco Schirripa, Esq.
Samuel P. Sporn, Esq.
Schoengold Sporn Laitman & Lometti, P.C.
19 Fulton Street, Suite 406
New York, NY 10038
Phone: 212-964-0046
Fax: 212-267-8137
E-mail: jay@spornlaw.com or frank@spornlaw.com
HONG CHANG: Recalls Monkfish-labeled Products that May be Toxic
---------------------------------------------------------------
Hong Chang Corp., Santa Fe Springs, Calif., is recalling its
product labeled as monkfish because it may contain tetrodotoxin,
a potent toxin.
Although the product was identified as monkfish, the company is
concerned the product may be pufferfish because this toxin is
usually associated with certain types of pufferfish.
Consumption of foods containing tetrodotoxin can result in life-
threatening illness or death. This toxin cannot be destroyed by
cooking or freezing.
Initial symptoms occur within 30 minutes to several hours after
consuming food containing the toxin and are characterized by lip
and tongue tingling and then followed by facial and extremity
tingling and numbness. Subsequent symptoms may include
headache, balance problems, excessive salivation, nausea,
vomiting, and diarrhea with abdominal pain, which can be severe.
In severe cases, muscles can become paralyzed and death may
follow resulting from respiratory muscle paralysis.
Consumers experiencing these symptoms should seek immediate
medical care.
The problem was discovered after two people in the Chicago, IL
area fell ill after consuming soup made with the "monkfish".
A total of 282, 22-lb. boxes of monkfish were distributed to
wholesalers in Illinois, California and Hawaii beginning in
September 2006. This product was sold in retail stores,
restaurants, and cash and carry stores in these regions.
The monkfish are individually packaged in clear plastic sleeves
and placed in a plastic liner, which is inside a cardboard box.
There are no lot numbers on the box. The boxes are packed by
total weight, 22 pounds, with labeling on one panel that reads
"Monk Fish Gutted And Head-off Product of China". A second box
panel bears nutritional facts and:
"Ingredients: Monk fish; Imported by: Hong Chang Corp,
Santa Fe Springs, CA 90670; Product of China
(P.R.C.)."
The Food and Drug Administration's (FDA) analysis of the fish
confirmed the presence of life-threatening levels of
tetrodotoxin.
At this time, Hong Chang Corp. and FDA are investigating how the
problem occurred.
Consumers who have purchased this monkfish are urged to return
it to the place of purchase for a full refund. Care should be
exercised in handling the fish, as the tetrodotoxin may be
present on the skin and flesh of the fish. Wash hands
thoroughly after handling. Consumers with questions may contact
the company at 1-562-309-0068.
Consumers who may have consumed these products and have concerns
are encouraged to contact their health care provider. Consumers
should also report illnesses associated with consumption of
these products to the nearest FDA district offices and to their
local health authority.
HORNBECK OFFSHORE: Faces Multiple Securities Fraud Suits in La.
---------------------------------------------------------------
Hornbeck Offshore Services, Inc. is a defendant in four
purported securities fraud class actions filed in the U.S.
District Court for the Eastern District of Louisiana, according
to the company's May 8, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period
March 31, 2007.
On Jan. 18, 2007, Anthony Caiafa filed an action in the U.S.
District Court for the Eastern District of Louisiana against
Hornbeck Offshore Services, Inc. and Todd M. Hornbeck, its
Chairman of the Board, President, and Chief Executive Officer.
On Jan. 24, 2007, Thomas Schedler filed a similar action in the
U.S. District Court for the Eastern District of Louisiana
against Hornbeck Offshore Services, Inc., Todd M. Hornbeck and
James O. Harp, Jr., its Executive Vice President and Chief
Financial Officer.
On Jan. 26, 2007, Michael D. Fontenelle filed another similar
action in the U.S. District Court for the Eastern District of
Louisiana against Hornbeck Offshore Services, Inc. and Todd M.
Hornbeck.
On Feb. 8, 2007, Oakmont Capital Management, LLC filed a similar
action in the U.S. District Court for the Eastern District of
Louisiana against Hornbeck Offshore Services, Inc., Todd M.
Hornbeck, James O. Harp, Jr. and Carl G. Annessa, its Executive
Vice President and Chief Operating Officer.
These lawsuits purport to be filed as a class action on behalf
of the plaintiffs and other similarly situated purchasers of our
securities from Nov. 1, 2006 to Jan. 10, 2007.
In their complaints, the plaintiffs allege that Hornbeck
Offshore Services, Inc. and the other defendants violated
Section 10(b) of the U.S. Securities Exchange Act of 1934, as
amended, and Rule 10b-5 thereunder, by allegedly making false
and misleading statements, and/or by omitting to state material
facts necessary to make the statements not misleading, in
connection with its forward earnings guidance and its Jan. 10,
2007 announcement of preliminary financial results for the
fourth quarter of 2006 that fell short of such guidance and
indicated a reduction in 2007 guidance.
The first identified complaint is "Anthony Caiafa, et al. v.
Hornbeck Offshore Services, Inc., et al.," filed in the U.S.
District Court for the Eastern District of Louisiana.
Plaintiff firms in this or similar case:
Abbey Spanier Rodd Abrams & Paradis, LLP
212 East 39th Street
New York, NY 10016
Phone: 212-889-3700
Fax: 212-684-519
E-mail: info@abbeyspanier.com
Gardy & Notis, LLP
440 Sylvan Avenue
Englewood Cliffs, NJ 07632
Phone: 201-567-7377
Fax: 201-567-7337
E-mail: info@gardylaw.com
Paskowitz & Associates
60 East 42nd Street, 46th Floor
New York, NY 10165
Phone: 212.685.0969
Fax: 212.685.2306
E-mail: classattorney@aol.com
Roy Jacobs & Associates
350 Fifth Avenue Suite 3000
New York, NY 10118
E-mail: classattorney@pipeline.com
- and -
Schiffrin Barroway Topaz & Kessler, LLP
2125 Oak Grove Road, Suite 120
Walnut Creek, CA 94598
Phone: 925.945.0200
Fax: 925.945.8792
E-mail: info@sbtklaw.com
HOWMEDICA OSTEONICS: Faces N.J. Suit Over Faulty Artificial Hip
---------------------------------------------------------------
Howmedica Osteonics Corp. is facing a class action filed May 18
in the U.S. District Court for the District of New Jersey over
its "The Trident Ceramic Acetabular System" artificial hip.
The Trident Ceramic Acetabular System contains a ceramic-on-
ceramic acetabular bearing couple indicated for patients
requiring primary total hip arthroplasty or replacement due to
painful disabling joint disease of the hip resulting from non-
inflammatory degenerative arthritis.
This is an action for economic damages relating to defendant's
development, testing, assembling, manufacture, packaging,
labeling, preparing, distribution, marketing, supplying, and/or
selling the defective product sold.
Named plaintiff Jama Parker, who underwent a total right hip
arthroplasty in 2004, files this suit seeking compensation for
damages incurred as a result of the implantation of the
defective Trident System.
She claims that after the implantation, she heard an audible
clicking, squeaking and/or squealing sound emanating from the
location of the implanted defective device.
Plaintiff brings this class action, pursuant to Federal Rules of
Civil Procedure 23(b)(2) and 23(b)(3), on behalf of all natural
persons in the U.S. who have had implanted a Howmedica Osteonics
acetabular shell medical device which squeaks and/or otherwise
creates unnecessary noise and satisfying the following
requirements:
(a) if defendant negligently designed, manufactured,
promoted, labeled and/or marketed Trident System;
(b) if defendant breached implied and express warranties of
merchantability and futures for intended use;
(c) if defendant violated the Product Liability Act of New
Jersey by selling, manufacturing, marketing and
distributing a defective designed product;
(d) if defendant violated the Consumer Fraud Act in the
manufacture, distribution, sale and promotion of the
Trident System;
(e) the causation between the product's defects and the
damages suffered by the member of the class;
(f) if there exist monitoring and testing procedure which
make early detection and treatment Trident System
failures;
(g) the need for future diagnosis and medical monitoring of
an entire class;
(h) the defenses asserted by the defendant will be very
similar if not identical as to all named members of the
class; it would be impractical to assert the claims and
defenses in separate lawsuits;
(i) if plaintiff and the class are entitled to monetary
relief; and
(j) if defendant should be required to recall the Trident
System.
Plaintiff requests for the following judgment against defendant:
-- that this action be certified as a class action on
behalf of the proposed consumers who have purchased the
Trident System;
-- that the named plaintiff be designated as representative
of the class;
-- that named counsel be designed as class counsel;
-- that plaintiff and the class have and recover
compensatory damages under the New Jersey Consumer Fraud
Act and that these damages be trebled;
-- that plaintiff and the class have and recover
compensatory damages resulting from defendant's
violation of the PLA;
-- that plaintiff and the class have and recover
compensatory damages resulting from defendant's breach
of warranty;
-- that plaintiff and the class have and recover
compensatory damages resulting from defendant's
negligent design and manufacture;
-- that plaintiff and the class have and recover a
reasonable attorney's fees and costs pursuant to the New
Jersey Consumer Fraud Act.
-- the creation of a court supervised trust fund, paid for
by defendant, to finance a medical monitoring program to
deliver services that include, but are not limited to,
testing, preventive screening and surveillance for
conditions resulting from, or potentially resulting from
the Trident System;
-- entry of an order requiring defendant to bear the cost
of publication to members of the class guidelines issued
by the U.S. Department of Health and Human Services, and
such other governmental or regulatory agency as approved
by the court, for medical screening and monitoring, the
content, form and manner of such publication to be
approved by the court;
-- for a jury trial on all issues so triable;
-- that the costs of this action be taxed to defendant; and
-- for such other and further relief as the court deems
just, fair and reasonable.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?2030
The suit is "Parker v. Howmedica Osteonics Corp., Case No. 2:07-
cv-02400-JLL-CCC," filed in the U.S. District Court for the
District of New Jersey under Judge Jose L. Linares with referral
to Judge Claire C. Cecchi.
Representing plaintiffs are:
David R. Buchanan, Esq.
Seeger Weiss, LLP
550 Broad Street, Suite 920
Newark, NJ 07102
Phone: (973) 639-9100
E-mail: dbuchanan@seegerweiss.com
INTERNATIONAL COAL: Faces W.Va. Suit Over "False" IPO Disclosure
----------------------------------------------------------------
International Coal Group, Inc. faces a purported class action in
the U.S. District Court for the Southern District of West
Virginia accusing it of misleading investors about its
operations when it made an initial public offering of stock in
late 2005.
On April 5, 2007 a class action was filed in the U.S. District
Court in the Southern District of West Virginia against the
company and certain of its officers and directors.
The complaint alleges that our registration statements filed in
connection with its initial public offering contained false and
misleading statements, and that investors relied upon those
securities filings and suffered damages as a result.
The suit is "City of Ann Arbor Employees' Retirement System, et
al. v. ICG, Inc., et al., Case No. 2:07-cv-00226," filed in the
U.S. District Court for the Southern District of West Virginia,
under Judge John T. Copenhaver, Jr.
Representing plaintiffs are:
Mark W. Carbone, Esq.
Carbone & Blaydes
2442 Kanawha Boulevard
East Charleston, WV 25301
Phone: 304/342-3650
Fax: 304/342-3651
E-mail: wvjustice@aol.com
William S. Lerach, Esq.
Matthew P. Montgomery, Esq.
Darren J. Robbins, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins
Suite 1900, 655 West Broadway
San Diego, CA 92101
Phone: 619/231-1058
Fax: 619/231-7423
- and -
Steven F. White, Esq.
Suite 908, 405 Capitol Street
Charleston, WV 25301
Phone: 304/720-1400
Fax: 304/346-6731
MARRIOTT INT'L: D.C. Court Denies Motion to Dismiss "Shaw" Case
---------------------------------------------------------------
The U.S. District Court for the District of Columbia has denied
a motion seeking the dismissal of the purported class action,
"Shaw v. Marriott International, Inc., Case No. 1:05-cv-01138-
GK," according to a posting by Michael J. Hassen at
http://classactiondefense.jmbm.com.
Britt A. Shaw filed the putative class action against Marriott
for unfair business practices under the Consumer Protection
Procedures Act of the District of Columbia (CPPA) alleging that
the company misrepresents the pricing practices at Marriott's
Moscow Hotel, specifically with respect to the exchange rates
quoted by Marriott to its customers.
The action had been filed in the superior court, but the defense
removed the class action to federal court under the Class Action
Fairness Act of 2005.
Mr. Shaw reserved a room at the Marriott-owned Renaissance
Moscow Hotel at a rate of $425 per night. The Marriott website
stated that the exchange rate was 27.78 Russian rubles to the
dollar, but when he checked out of the hotel, his bill reflected
an exchange rate of 32 rubles to the dollar. Other class
representatives had similar experiences.
Defense attorneys filed a motion to dismiss the class action for
failure to state a claim or on the ground of "forum non
conveniens," because the events central to the class action took
place in Russia, which the district court denied.
The district court began with the forum non conveniens argument.
The court readily concluded that the defense argument misstated
the allegations of the class action complaint because the
defense focused on acts in Russia and alleged violations of
Russian law.
In point of fact, the court held, the class action focused on
events that transpired at Marriott's corporate headquarters in
the District of Columbia and on violations of District of
Columbia laws.
The federal court also found that a balancing of the public and
private interest factors supports keeping the case in the
District of Columbia.
Further, "There is no question that testimony from Marriott's
witnesses related to these claims is more accessible in the
District of Columbia, as are business records and other
documents."
With respect to the CPPA, defense attorneys argued that the
statute "does not apply outside of the District of Columbia."
The court held that the defense argument missed the mark,
explaining, "Plaintiffs, American citizens and a permanent
American resident, seek to apply a District of Columbia statute
to a dispute between plaintiffs from various local jurisdictions
in the U.S., including the District of Columbia, and a U.S.
corporate defendant headquartered in the District of Columbia,
regarding policies and practices allegedly developed and adopted
in the District of Columbia. The District of Columbia has a
'strong interest in ensuring that its corporate citizens refrain
from fraudulent activities.'" After a thorough analysis, the
federal court concluded that the CPPA claim survived the motion
to dismiss.
Defense attorneys also moved to dismiss the unjust enrichment
claim on the ground that the "voluntary payment" doctrine barred
such relief.
Plaintiffs' counsel argued that the payment was "not truly
voluntary" because "any reasonable person trying to check out of
a hotel in a foreign country would find it difficult if not
impossible, under the circumstances, to refuse to pay their bill
with no knowledge of what consequences such an action would
engender."
On that point, the district court concluded that the allegations
in the class action complaint were sufficient to state a claim.
The suit is "Shaw v. Marriott International, Inc., Case No.
1:05-cv-01138-GK," filed in the U.S. District Court for the
District of Columbia under Judge Gladys Kessler.
Representing the plaintiff is:
Paul Damian Cullen, Esq.
The Cullen Law Firm, P.L.L.C.
1101 30th Street, NW Suite 300
Washington, DC 20007
Phone: (202) 944-8600
Fax: (202) 944-8611
E-mail: pdc@cullenlaw.com
Representing the defendant is:
Benjamin S. Boyd, Esq.
DLA Piper US LLP
1200 19th Street, NW 7th Floor
Washington, DC 20036-2430
Phone: (202) 861-3900
Fax: (202) 223-2085
E-mail: benjamin.boyd@piperrudnick.com
MEADE INSTRUMENTS: Settles Shareholder Suits in Fourth Quarter
--------------------------------------------------------------
Meade Instruments has reached a settlement in principle on the
class action and stockholder derivative suits filed against it,
according to a transcript of the company's May 24 conference
call for its fourth-quarter results. Both settlements are
contingent upon court approval.
Earlier regulatory filings by the company state that it is
facing a suit "Grecian v. Meade Instruments Corp., et al., SA CV
06-908 AG (JTLx)," filed in U.S. District Court for the Central
District of California on Sept. 27, 2006.
The complaint asserts claims for violations of Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act in connection with
the Company's option granting practices.
Representing the plaintiffs are:
(1) Timothy J. Burke of Stull Stull and Brody, 10940
Wilshire Boulevard, Suite 2300, Los Angeles, CA 90024,
Phone: 310-209-2468, E-mail: service@ssbla.com; and
(2) Donald J. Enright of Finkelstein Thompson and Loughran,
1050 Thirtieth Street Northwest, The Duvall Foundry,
Washington, DC 20007, Phone: 202-337-8000.
METLIFE INC: Tag-Along Stay Order Issued in Racketeering Suit
-------------------------------------------------------------
The U.S. District Court for the Southern District of Florida has
issued a tag-along order that will indefinitely stay a purported
class action brought by the American Dental Association against
MetLife Inc.
In May 19, 2003, the American Dental Association and three
individual providers filed a purported class action against
MetLife Inc. and Cigna Corp. in the U.S. District Court for the
Southern District of Florida.
The plaintiffs purport to represent a nationwide class of in-
network providers who allege that their claims are being
wrongfully reduced by downcoding, bundling, and the improper use
and programming of software. The complaint alleges federal
racketeering and various state law theories of liability.
The district court has granted in part and denied in part
MetLife's motion to dismiss. MetLife has filed another motion
to dismiss.
The court has issued a tag-along order, related to a medical
managed care trial, which will stay the lawsuit indefinitely.
The company reported no development in the matter in its May 4,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2007.
The suit is "American Dental Asso, et al. v. Cigna Corp., et
al., Case No. 1:03-cv-21266-FAM," filed in the U.S. District
Court for the Southern District of Florida under Federico A.
Moreno.
NATIONWIDE LIFE: Seeks Summary Judgment in Ohio Insurance Suit
--------------------------------------------------------------
Nationwide Life Insurance Co., a subsidiary of Nationwide
Financial Services, Inc., filed a motion for summary judgment in
a purported class action pending against it in Common Pleas
Court, Franklin County, Ohio.
On Feb. 11, 2005, NLIC was named in a class action filed in
Common Pleas Court, Franklin County, Ohio entitled, "Michael
Carr v. Nationwide Life Insurance Co."
The complaint seeks recovery for breach of contract, fraud by
omission, violation of the Ohio Deceptive Trade Practices Act
and unjust enrichment.
The complaint also seeks unspecified compensatory damages,
disgorgement of all amounts in excess of the guaranteed maximum
premium and attorneys' fees.
On Feb. 2, 2006, the court granted the plaintiff's motion for
class certification on the breach of contract and unjust
enrichment claims.
The court certified a class consisting of all residents of the
U.S. and the Virgin Islands who, during the class period, paid
premiums on a modal basis to NLIC for term life insurance
policies issued by NLIC during the class period that provide for
guaranteed maximum premiums, excluding certain specified
products.
Excluded from the class are NLIC; any parent, subsidiary or
affiliate of NLIC; all employees, officers and directors of
NLIC; and any justice, judge or magistrate judge of the State of
Ohio who may hear the case.
The class period is from Feb. 10, 1990 through Feb. 2, 2006,
which was the date the class was certified. The parties are
currently engaged in discovery.
On Jan. 26, 2007, the plaintiff filed a motion for summary
judgment. On April 30, 2007, NLIC filed a motion for summary
judgment, according to the company's May 4, 2007 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarterly period March 31, 2007.
Columbus, Ohio-based Nationwide Financial Services, Inc. --
http://www.nationwide.com/-- is the holding company for the
domestic retirement savings operations of Nationwide, which owns
63.1 percent of the outstanding common shares of Nationwide
Financial. The major operating subsidiary of Nationwide
Financial is Nationwide Life Insurance Co.
NISOURCE INC: Added as Defendant in Ky. Gas Well Royalties Suit
---------------------------------------------------------------
NiSource, Inc., was added as a defendant in the purported class
action, "John Thacker, et al. v. Chesapeake Appalachia, L.L.C.,"
which was filed in the U.S. District Court for the Eastern
District of Kentucky.
On Feb. 8, 2007, John Thacker filed the purported class action,
alleging that Chesapeake Appalachia, L.L.C. has failed to pay
royalty owners the correct amounts pursuant to the provisions of
their oil and gas leases covering real property located within
the state of Kentucky.
Plaintiffs filed an amended complaint on March 19, 2007, which,
among other things, added NiSource, Inc. as defendants,
according to the company's May 4, 2007 Form 10-Q Filing with the
U.S. Securities and Exchange Commission for the quarterly period
March 31, 2007.
The suit is "Thacker v. Chesapeake Appalachia, LLC, Case No.
7:07-cv-00026-GFVT," filed in the U.S. District Court of the
Eastern District of Kentucky under Judge Gregory F. Van
Tatenhove.
Representing the plaintiff is:
Thomas E. Meng, Esq.
Stites & Harbison PLLC
250 W. Main Street, 2300 Lexington Financial Center
Lexington, KY 40507
Phone: 859-226-2300
Fax: 859-425-7902
E-mail: tmeng@stites.com
NISOURCE INC: To Appeal $404.3M Order in W.Va. Royalties Lawsuit
----------------------------------------------------------------
NiSource, Inc. is appealing a $404.3 million verdict made by a
jury in Spencer, West Virginia against defendants in the case,
"Tawney, et al. v. Columbia Natural Resources et al.," which is
pending in Roane County Circuit Court.
Plaintiffs filed the lawsuit in early 2003 against Columbia
Natural Resources (CNR) alleging that CNR underpaid royalties on
gas produced on their land by improperly deducting post-
production costs and not paying a fair value for the gas.
In December 2004, the court granted plaintiffs' motion to add
NiSource, Inc., and Columbia Energy Group as defendants.
Columbia Natural is a former NiSource subsidiary, which was sold
in 2003.
Plaintiffs also claimed that the defendants fraudulently
concealed the deduction of post-production charges.
The court certified the case as a class action that includes any
person who, after July 31, 1990, received or is due royalties
from CNR (and its predecessors or successors) on lands lying
within the boundary of the state of West Virginia. All claims
by the government of the U.S. are excluded from the class.
Although NiSource sold CNR in 2003, NiSource remains obligated
to manage this litigation and for the majority of any damages
ultimately awarded to the plaintiffs.
On Jan. 27, 2007 the jury hearing the case returned a verdict
against all defendants in the amount of $404.3 million; this is
comprised of $134.3 million in compensatory damages and $270
million in punitive damages.
The defendants filed motions with the trial court challenging
the award and the trial court held a hearing in March on these
motions.
Unless the trial court substantially revises the jury's verdict,
the defendants intend to appeal the judgment to the West
Virginia Supreme Court of Appeals, which may or may not accept
the appeal, according to the company's May 4, 2007 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the
quarterly period March 31, 2007.
The suit is "Tawney, et al. v. Columbia Natural Resources,
Inc.," filed in West Virginia Circuit Court for Roane County
under Judge Thomas Evans III.
Representing the plaintiffs is:
Marvin Masters, Esq.
181 Summers Street
Charleston, West Virginia 25301
Phone: 304-342-3106
Fax: 304-342-3189
Representing the defendants is:
Timothy Miller, Esq.
400 Fifth Third Center, 700 Virginia St., P.O. Box 1791
Charleston, West Virginia 25326
Phone: 304-344-5800
Fax: 304-344-9566
NOBLE ENERGY: June 11 Hearing Set for Royalty Suits Settlement
--------------------------------------------------------------
A June 11, 2007 fairness hearing was set for the settlement of
two class actions filed against Noble Energy, Inc., and Patina
Oil & Gas Corp.
In January 2003, Patina Oil & Gas Corp., a company acquired by
Noble Energy in 2005, was named as a defendant in a lawsuit
alleging that Patina had improperly deducted certain costs in
connection with its calculation of royalty payments relating to
its Wattenberg, Colorado field operations.
The suit is captioned, "Jack Holman, et al. v. Patina Oil & Gas
Corp., Case No. 03-CV-09," and was filed in the District Court,
Weld County, Colorado.
In October 2006, Noble Energy received service in an additional
lawsuit styled, "Wardell Family Partnership and Glen
Droegemueller v. Noble Energy, Inc. et al., Case No. 06-CV-734,"
which was filed in District Court, Weld County, Colorado.
That suit involves royalty and overriding royalty interest
owners in the same field and not members of the Holman class.
Through a mediation process, Noble Energy and the attorneys
representing the Holman class and Wardell putative class entered
into a Settlement Agreement dated Feb. 15, 2007.
Such a settlement was preliminarily approved by the court with
notice of the settlement published in local newspapers and sent
to all members of the Holman class and Wardell putative class.
In accordance with the terms of the Settlement Agreement, Noble
Energy deposited the settlement funds into an escrow account in
April 2007. A Final Approval Hearing is set with the Court for
June 11, 2007.
Noble Energy, Inc. -- http://www.nobleenergyinc.com/-- through
its subsidiaries, engages in the exploration, development,
production, and marketing of crude oil and natural gas in the
U.S. and internationally. It operates in Colorado's Wattenberg
field, the Mid-continent region of western Oklahoma and the
Texas Panhandle, the San Juan basin in New Mexico, the Gulf
Coast, and the Gulf of Mexico in the U.S. The company also has
operations in Equatorial Guinea and Cameroon in West Africa, the
Mediterranean Sea, Ecuador, the North Sea, China, Argentina, and
Suriname.
OHIO: Measures to Improve Mahoning County Jail Conditions Ok'd
--------------------------------------------------------------
Judge Alice M. Batchelder of the 6th U.S. Circuit Court of
Appeals, and U.S. District Judges Dan Aaron Polster and David D.
Dowd Jr. approved a consent judgment entry to settle a suit
regarding overcrowding at Mahoning County jail, Vindy.com
reports.
The suit was filed on Nov. 14, 2003 against the County of
Mahoning, Ohio, A Local Government Entity; Dave Ludt; Edward J.
Reese; Randall A. Wellington; and Vicki Allen Sherlock (Class
Action Reporter, July 24, 2006).
Named as plaintiffs are James Joseph Mancini, Joshua Baird,
Kevin Whitacker, Leland Scott, Maurice Barnes, Mike Hamad,
Nathaniel Roberts, Rodney Gray.
The plaintiffs claim their overcrowded jail conditions violated
their constitutional rights.
The settlement entry was also agreed upon by the city of
Youngstown. Settlement terms include the reopening of all jail
facilities by Aug. 1, an allotment of jail beds for Youngstown
city prisoners and an emergency prisoner-release policy to
prevent future overcrowding. It also allows for the housing of
federal prisoners in the county jail.
The federal court has been overseeing the jail ever since. It
and the inmates' lawyers will monitor jail conditions for three
more years to see if defendants have corrected the problems.
The suit is "Roberts, et al. v. County of Mahoning, Ohio, A
Local Government Entity, et al., Case No. 4:03-cv-02329-DDD,"
filed in the U.S. District Court for the Northern District of
Ohio under Judge David D. Dowd, Jr.
Representing the plaintiffs are Robert P. Armbruster and Thomas
Kelley of Armbruster, Kelley, Kot, Honeck & Baker, Ste. 720,
159 South Main Street, Akron, OH 44308, Phone: 330-434-2113,
Fax: 330-434-2158, E-mail: robattarm@aol.com and
tkelley1@neo.rr.com
Representing the defendants is Sharon K. Hackett, Office of the
Prosecuting Attorney, Mahoning County, 120 Market Street,
Youngstown, OH 44503, Phone: 330-740-2330, Fax: 330-740-2366.
Representing the Intervenor is Anthony J. Farris, City of
Youngstown, Department of Law, 26 South Phelps Street,
Youngstown, OH 44503, Phone: 330-742-8874, Fax: 330-742-8867, E-
mail: ajf@cityofyoungstownoh.com.
Lawyers for the plaintiffs are:
Robert P. Armbruster, Esq.
Thomas Kelley, Esq.
Armbruster, Kelley, Kot, Honeck & Baker
159 South Main Street Ste. 720
Akron, OH 44308
Phone: 330-434-2113
Fax: 330-434-2158
E-mail: robattarm@aol.com and tkelley1@neo.rr.com
Lawyer for the defendant:
Sharon K. Hackett, Esq.
Office of the Prosecuting Attorney Mahoning County
120 Market Street
Youngstown, OH 44503
Phone: 330-740-2330
Fax: 330-740-2366
OLD REPUBLIC: Settles Title Insurance Lawsuits in Florida
---------------------------------------------------------
Old Republic National Title Insurance Co. (ORNTIC), a principal
title insurance subsidiary of Old Republic International Corp.,
settled a class action over title insurance in Florida.
The company faces purported class action in state courts in
Connecticut, Florida, New Jersey and Ohio. Generally,
plaintiffs allege that, pursuant to rate schedules filed by
ORNTIC or by state rating bureaus with the state insurance
regulators, ORNTIC was required to, but failed to give consumers
reissue credits on the premiums charged for title insurance
covering mortgage refinancing transactions.
Substantially similar lawsuits have been filed against other
unaffiliated title insurance companies in these and other states
as well. The actions seek damages and declaratory and
injunctive relief.
ORNTIC has reached a tentative settlement in Florida for an
amount not to exceed $1.2, exclusive of attorneys' fees and
costs.
The company reported no material development in any of the cases
in its May 4 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended May 31, 2006.
Old Republic International Corp. (NYSE: ORI) on the Net:
http://www.oldrepublic.com/.
PMI MORTGAGE: Calif. Court Approves FCRA Suit Settlement
--------------------------------------------------------
The U.S. District for the Northern District of California
approved a settlement in the class action, "Hogan, et al. v. PMI
Mortgage Insurance Co."
Filed on Sept. 23, 2005, the suit action sought certification of
a nationwide class of consumers. Plaintiffs alleged that they
were required to pay for private mortgage insurance written by
PMI and that their loans allegedly were insured at greater than
PMI's "best available rate."
Plaintiffs also alleged that PMI had an obligation to notify
them of an adverse action based upon their credit information
and failed to do so in violation of the Fair Credit Reporting
Act.
The action sought, among other relief, actual and statutory
damages and declaratory and injunctive relief.
On Jan. 4, 2006, plaintiffs filed an amended complaint adding
additional claims under state law and FCRA, alleging that PMI
did not have a permissible purpose to access the plaintiffs'
credit information.
PMI has entered into a class action settlement agreement with
the plaintiffs' counsel, which was preliminarily approved by the
court on Dec. 22, 2006.
On April 4, 2007, the Court issued a consent order and an order
and judgment approving the settlement, certifying the settlement
class and dismissing the action.
Pursuant to the settlement, PMI is required to make certain
payments and provide a free credit report to class members who
submit a completed claim form, and to provide a form of notice
approved by the Court to certain borrowers for a three-year
prospective period advising the borrower that the rate that PMI
will charge for the mortgage insurance on the borrower's loan
will be higher than the lowest rate available for the applicable
insurance program. Amounts payable in respect of the settlement
are not material to PMI.
The suit is "Hogan et al. v. PMI Mortgage Insurance Co., Case
No. 3:05-cv-03851-PJH," filed in the U.S. District Court for the
Northern District of California under Judge Phyllis J. Hamilton.
Representing the plaintiffs is Stephen Meagher of The Law
Offices of Stephen Meagher, 1 Embarcadero Center, Suite 523, San
Francisco, CA 94111, Phone: (415) 773-2824, Fax: 415-773-2825,
E-mail: slm@meagherlawoffices.com.
Representing the defendants is Michael J. Agoglia of Morrison &
Foerster, 425 Market Street, San Francisco, CA 94105-2482,
Phone: (415) 268-7000, Fax: (415) 268-7522, E-mail:
magoglia@mofo.com.
QUIGLEY CORP: Cold-Eeze Suit Plaintiffs Appeal Dismissal of Case
----------------------------------------------------------------
Plaintiffs in a nationwide consumer fraud class action filed in
the Court of Common Pleas of Philadelphia County, Pennsylvania
against Quigley Corp. are appealing the dismissal of their case.
In September 2000, Jason Tesauro and Elizabeth Eley, both
residents of Georgia, filed the suit on behalf of a "nationwide
class" of "similarly situated individuals," alleging that the
plaintiffs purchased certain Cold-Eeze(R) products between
August 1996, and November 1999, based upon cable television,
radio and internet advertisements which allegedly misrepresented
the qualities and benefits of the company's products.
The complaint requests an unspecified amount of damages for
violations of Pennsylvania's consumer protection law, breach of
warranty and unjust enrichment, as well as a judicial
determination that the action be maintained as a class action.
In October 2000, the company filed preliminary objections to the
complaint seeking dismissal of the action. The court sustained
certain objections thereby narrowing plaintiffs' complaint.
In May 2001, plaintiffs filed a motion to certify the alleged
class. The company opposed the motion.
In November 2001, the court held a hearing on plaintiffs' motion
for class certification. In January 2002, the court denied in
part and granted in part the plaintiffs' motion.
The court denied plaintiffs' motion to certify a class based on
plaintiffs' claim under the Pennsylvania Consumer Protection
Law, however the court certified the class based on plaintiffs'
breach of warranty and unjust enrichment claims.
In August 2002, the court issued an order adopting a form of
notice of class action to be published nationally. The form of
notice approved by the court included a provision, which limits
the potential class members who may potentially recover damages
in this action to those persons who present a proof of purchase
of Cold-Eeze during the period August 1996 and November 1999.
Afterward, a series of pre-trial motions were filed raising
issues concerning trial evidence and the court's jurisdiction
over the subject matter of the action. In March 2005, the court
held oral argument on these motions.
On Nov. 8, 2006, the court entered an order dismissing the case
in its entirety on the basis that federal law preempted the
action.
The plaintiffs appealed the Court's decision in December 2006.
On March 22, 2007, the Superior Court entered a scheduling order
for briefing. On May 1, plaintiffs/appellants filed their
opening brief. The Company's brief in response is due on May
30, 2007.
Quigley Corp. on the Net: http://www.quigleyco.com/.
QWEST COMMUNICATIONS: $400M Securities Suit Settlement on Appeal
----------------------------------------------------------------
Qwest Communications International Inc. deposited in January the
$200 million part of a $400 million settlement of a securities
fraud suit that was filed against the company in Colorado.
Meanwhile, its former chief executive officer and former chief
financial officer are appealing the approval of the settlement
and certification of a settlement class to the U.S. Court of
Appeals for the 10th Circuit.
Twelve putative class actions purportedly brought on behalf of
purchasers of QCII's publicly traded securities between May 24,
1999 and February 14, 2002 were consolidated into a consolidated
securities action pending in federal district court in Colorado
against QCII and various other defendants. The first of these
actions was filed on July 27, 2001.
Plaintiffs alleged, among other things, that defendants issued
false and misleading financial results and made false statements
about QCII's business and investments, including materially
false statements in certain of QCII's registration statements.
The most recent complaint in this matter sought unspecified
compensatory damages and other relief. However, counsel for
plaintiffs indicated that the putative class would seek damages
in the tens of billions of dollars.
In November 2005, QCII, certain other defendants, and the
putative class representatives entered into and filed with the
federal district court in Colorado a Stipulation of Partial
Settlement that, if implemented, will settle the consolidated
securities action against QCII and certain other defendants. No
parties admit any wrongdoing as part of the settlement.
Pursuant to the settlement, QCII has deposited approximately
$400 million in cash into a settlement fund: $200 million of
which was deposited in 2006, and $200 million of which (plus
interest) was deposited on January 12, 2007.
In connection with the settlement, QCII received $10 million
from Arthur Andersen LLP, which is also being released by the
class representatives and the class they represent. If the
settlement is not implemented, QCII will be repaid the $400
million, less certain expenses, and QCII will repay the $10
million to Arthur Andersen.
If implemented, the settlement will resolve and release the
individual claims of the class representatives and the claims of
the settlement class they represent against QCII and all
defendants except Joseph Nacchio, former chief executive
officer, and Robert Woodruff, former chief financial officer.
In September 2006, the federal district court in Colorado issued
an order approving the proposed settlement and certifying a
settlement class on behalf of purchasers of QCII's publicly
traded securities between May 24, 1999 and July 28, 2002.
Messrs. Nacchio and Woodruff have appealed that order to the
U.S. Court of Appeals for the 10th Circuit, according to the
company's May 1, 2007 form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended March 31,
2007.
SEMPRA ENERGY: Settles Antitrust Suit with L.A. for $8.5M
---------------------------------------------------------
Sempra Energy and the Sempra Utilities (composed of San Diego
Gas & Electric Co. and Southern California Gas Co.) have entered
into a separate settlement agreement with the City of Los
Angeles resolving all of its claims in the Continental Forge
litigation in return for the payment of $8.5 million on April
25, 2007.
The litigation that is the subject of the January 2006
settlements is frequently referred to as the Continental Forge
litigation, although the settlements also include other cases.
The Continental Forge class-action and individual antitrust and
unfair competition lawsuits in California and Nevada alleged
that Sempra Energy and the Sempra Utilities unlawfully sought to
control natural gas and electricity markets and claimed damages
in excess of $23 billion after applicable trebling.
The San Diego County Superior Court entered a final order
approving the settlement of the Continental Forge class action
as fair and reasonable in July 2006. The California Attorney
General, the Department of Water Resources (DWR), the Utility
Consumers Action Network and one class member have filed notices
of appeal of the final order.
The Nevada Clark County District Court entered an order
approving the Nevada class-action settlement in September 2006.
Both the California and Nevada settlements must be approved for
either settlement to take effect, but the company is permitted
to waive this condition. The settlements are not conditioned
upon approval by the California Public Utilities Commission
CPUC, the DWR, or any other governmental or regulatory agency to
be effective.
California and Nevada Suits Settlements
To settle the California and Nevada litigation, the company
agreed to make cash payments in installments aggregating $377
million, of which $347 million relates to the Continental Forge
and California class action price reporting litigation and $30
million relates to the Nevada antitrust litigation. The Los
Angeles City Council had not previously voted to approve the
City of Los Angeles's participation in the January 2006
California settlement.
On March 26, 2007, Sempra Energy and the Sempra Utilities
entered into a separate settlement agreement with the City of
Los Angeles resolving all of its claims in the Continental Forge
litigation in return for the payment of $8.5 million on April
25, 2007. This payment was made in lieu of the $12 million
payable in eight annual installments that the City of Los
Angeles was to receive as part of the January 2006 California
settlement.
Additional Terms of the Settlement
Additional consideration for the January 2006 California
settlement includes an agreement that Sempra LNG would sell to
the Sempra Utilities, subject to CPUC approval, regasified LNG
from its LNG terminal being constructed in Baja California,
Mexico, for a period of 18 years at the California border index
price minus $0.02 per MMBtu.
The Sempra Utilities agreed to seek approval from the CPUC to
integrate their natural gas transmission facilities and to
develop both firm, tradable natural gas receipt point rights for
access to their combined intrastate transmission system and
Southern California Gas Co.s' underground natural gas storage
system and filed for approval at the CPUC in July 2006.
In addition, Sempra Generation voluntarily would reduce the
price that it charges for power and limit the places at which it
would deliver power under its contract with the DWR. Based on
the expected contractual volumes of power to be delivered, this
discount would have potential value aggregating $300 million
over the contract's then remaining six-year term.
As a result of recording the price discount of the DWR contract
in 2005, subsequent earnings reported on the DWR contract
reflect original rather than discounted power prices. The price
reductions would be offset by any amounts in excess of a $150
million threshold up to the full amount of the price reduction
that Sempra Generation is ordered to pay or incurs as a monetary
award, any reduction in future revenues or profits, or any
increase in future costs in connection with arbitration
proceedings involving the DWR contract.
Under the terms of the January 2006 California settlement, $83
million was paid in August 2006 and an additional $83 million
will be paid in August 2007. Of the remaining amounts, $25.8
million is to be paid on the closing date of the January 2006
settlements, which will take place after the resolution of all
appeals, and $24.8 million will be paid on each successive
anniversary of the closing date through the seventh anniversary
of the closing date, as adjusted for the City of Los Angeles
settlement.
Under the terms of the City of Los Angeles settlement, $8.5
million was paid on April 25, 2007. The reserves recorded for
the California and Nevada settlements in 2005 fully provide for
the present value of both the cash amounts to be paid in the
settlements and the price discount to be provided on electricity
to be delivered under the DWR contract. A portion of the
reserves was discounted at 7 percent, the rate specified for
prepayments in the settlement agreement. For payments not
addressed in the agreement and for periods from the settlement
date through the estimated date of the first payment, 5 percent
was used to approximate the company's average cost of financing.
SOLUTIA INC: Court Considers Appeal on Dismissal of "Dickerson"
---------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit has yet to rule
on an appeal against the dismissal of the purported class
action, "Dickerson v. Feldman," which names Solutia, Inc.'s
former officers and employees as defendants.
On Oct. 7, 2004, a purported class action, "Dickerson v.
Feldman, et al." was filed in the U.S. District Court for the
Southern District of New York against a number of defendants,
including former officers and employees of Solutia Inc. and
Solutia's Employee Benefits Plans Committee and Pension and
Savings Funds Committee. Solutia was not named as a defendant.
The action alleged breach of fiduciary duty under Employee
Retirement Income Security Act and sought to recover alleged
losses to the Solutia Inc. Savings and Investment Plan (SIP
Plan) from Dec. 16, 1998 to the date the action was filed.
The investment of SIP Plan assets in Solutia's common stock is
alleged to have been imprudent because of the risks and
liabilities related to Solutia's legacy environmental and
litigation liabilities and because of the involvement of its
50/50 joint venture Flexsys, comprising of interests in:
* Flexsys Holding B.V.,
* Flexsys America L.P., and
* Flexsys Rubber Chemicals Ltd.
in alleged collusive sales and marketing activities in the
rubber chemicals market from July 1995 through September 2001.
The action sought monetary payment to the SIP Plan to recover
the losses resulting from the alleged breach of fiduciary
duties, as well as injunctive and other appropriate equitable
relief, reasonable attorney's fees and expenses, costs and
interest.
In addition, the plaintiff in this action filed a proof of claim
for $269 million against Solutia in the U.S. Bankruptcy Court
for the Southern District of New York.
The plaintiff sought to withdraw the reference of their ERISA
claim from the Bankruptcy Court to the District Court so that
the proof of claim and the class action could be considered
together by the District Court. On Feb. 11, 2005, Solutia filed
an objection to the motion to withdraw the reference.
On March 11, 2005, the District Court denied without prejudice
Dickerson's motion to withdraw the reference. The Dickerson
plaintiffs subsequently amended their initial complaint to add
several current officers and directors of Solutia as defendants.
On July 5, 2005, the defendants filed motions to dismiss
Dickerson's amended complaint. In early September 2005,
Dickerson filed an amended proof of claim against Solutia
increasing Dickerson's claim from $269 million to $290 million,
based on his amended complaint.
Dickerson also filed a motion for class certification of his
proof of claim.
On March 30, 2006, the District Court granted the defendants'
motion to dismiss on grounds that the Dickerson plaintiffs
lacked standing to sue and that the complaint failed to state a
claim on which relief may be granted.
The dismissal of Dickerson's cause of action resulted in
dismissal of the entire purported class action, including claims
asserted on behalf of the unnamed purported class members.
On April 3, 2006, Dickerson filed an appeal of this dismissal
with the U.S. Court of Appeals for the Second Circuit. The
parties have fully briefed the appeal, and a May oral argument
was scheduled.
The suit is "Dickerson v. Feldman et al., Case No. 1:04-cv-
07935-LAP," on appeal from the U.S. District Court for the
Southern District of New York Under Judge Loretta A. Preska.
Representing plaintiff is:
Ronen Sarraf, Esq.
Sarraf Gentile, LLP
485 Seventh Avenue, New York, NY 10018
Phone: (212) 868-3610
Fax: (212)918-7967
E-mail: ronen@sarrafgentile.com
Representing the Employee Benefits Plan Committee is:
Robert M. Stern, Esq.
O'Melveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006
Phone: (202) 383-5328
Fax: (202) 383-5396
E-mail: rstern@omm.com
STATE FARM: Fla. Court Okays $6.4M Settlement with Policyholders
----------------------------------------------------------------
A Broward County (Fla.) judge approved a $6.4 million settlement
between State Farm Florida Insurance and policyholders who made
claims pertaining to screen enclosures damaged by Hurricanes
Katrina and Wilma in 2005, the South Florida Sun-Sentinel
reports.
The lawsuit was brought by Jason Hammett on Feb. 6, 2006 in the
Circuit Court of the 17th Judicial Circuit in and for Broward
County as a purported class action.
Attorneys for the plaintiffs at Lee & Amtzis and Kopelman &
Blankman had argued that State Farm's policy contradicted the
language of the policyholders' agreements when it depreciated
the cost of screen enclosures damaged by the hurricanes,
allowing it to pay significant discounts to replace the screens.
More than 12,000 policyholders stand to benefit from the
settlement. A final hearing to approve the settlement is set
July 21.
Under the settlement, State Farm will, among others:
-- pay more than 12,000 policyholders 100% of the damages
claimed in the class action;
-- establish a fund of $6,788,200.00 to make payments to
class members; and
-- agree to pay the costs of administering the settlement
and all attorneys' fees and other expenses in addition
to the payments to class members.
For more information, contact:
Eric Lee, Esq.
Lee & Amtzis
5550 Glades Road
Suite 401
Boca Raton, FL 33431
Phone: (561) 981-9988
Fax: (561) 981-9980
E-mail: leeleeamlaw.com
TIP TOP: Production Employees Sue to Claim Overtime Compensation
----------------------------------------------------------------
Tip Top Poultry, Inc. is facing a class-action complaint filed
May 23 in the U.S. District Court for the Northern District of
Georgia alleging Labor Code violations.
Named plaintiff Sherri White seeks to recover for violations of
the Fair Labor Standards Act of 1938, 29 U.S.C. Section 201 et.
seq.
This is a representative action brought pursuant to FLSA Section
216(b) by plaintiffs on behalf of current and former production
employees of Tip Top for purposes of obtaining relief under the
FLSA for unpaid wages, unpaid overtime wages, liquidated
damages, costs, attorneys' fees, declaratory and/or injunctive
relief, and/or any such other relief the court may deem
appropriate.
The lawsuit alleges Tip Top uniformly denies hourly wages and
overtime premium pay to its employees by requiring them to
perform "off the clock" work. The deliberate failure to pay
employees earned wages and overtime compensation violates
federal law as set out in the FLSA.
The work time for which plaintiffs are allegedly not paid
includes but is not limited to:
(1) changing into the protective required work uniforms,
sanitary clothing and protective safety equipment that
can include among other things (depending on the task
and whether First or Second Processing): ear plugs,
smocks, work pants and shirts; safety jump suits;
safety boots; hair nets; face nets; hard hats; aprons;
belts with holsters and knives; and hand and arm
protections;
(2) walking to and from security, changing areas, work
areas and break areas; washing activities; and
(3) breaks that are effectively compensable.
The unlawful compensation system at issue in the complaint has
affected Tip Top's former and present hourly production
employees.
Plaintiffs bring this action, pursuant to 29 U.S.C. Section
216(b), on behalf of all current and former hourly 1st and 2nd
processing employees, paid under a master time compensation
system in which individuals' time card punches are not the basis
for starting and ending hours worked, within three years from
the date of filing this complaint, and who were not paid for all
the time spent performing compensable work-related tasks or
legally compensable time, including but not limited to:
-- authorized break times,
-- donning and doffing times,
-- washing activity times,
-- time associated with passing through security check
points and walking to changing areas and time walking to
security and passing through security at the end of the
day and walking times to and from break areas or donning
and doffing areas; and
-- including time compensable at regular hourly wages,
as well as overtime pay for these employees.
Questions raised by the purported class:
(a) if plaintiffs were compensated for time spent clearing
security and time spent walking from security to their
changing areas and from changing areas to security;
(b) if the security activities at issue are integral or
indispensable to defendant's business activities;
(c) if plaintiffs were compensated for time spent donning
and doffing clothing and protective gear, washing and
walking to and from job posts;
(d) whether the donning, doffing and washing activities at
issue are integral or indespensable to defendant's
business activities;
(e) if plaintiffs were entitled to compensation for time
spent donning and doffing, washing activity time, and
walking time to and from "the line";
(f) if plaintiffs' donning, doffing, washing activity, and
walking times is integral and indispensable to their
principal activities;
(g) if defendant failed to pay employees for unpaid breaks
that were effectively compensable;
(h) if defendant's compensation policy and practice
accurately accounts for the time plaintiffs are
actually working;
(i) if defendant's compensation policy and practice is
illegal;
(j) if defendant had a policy and practice of willfully
failing to record and compensate employees for all time
worked; and
(k) if defendant failed to accurately record all
compensable time, resulting in a failure to compensate
plaintiffs and other similarly situated employees of
regular hourly wages and overtime pay, in violation of
defendant's policies and procedures and the mandate of
the FLSA.
Plaintiffs request for the following relief:
-- at the earliest possible time, issue an order allowing
notice or issue such court supervised notice to all
similarly situated current and former Wayne Farms hourly
employees of this action and their rights to participate
in this action. Such notice shall inform all similarly
situated current and qualified former employees of the
pendency of this action, the nature of this action, and
of their right to "opt-in" to this action if they worked
"off the clock" for times not paid, including time that
may be paid at overtime rates.
-- issue an order, pursuant to the Declaratory Judgment
Act, 28 U.S.C. Sections 2201-2202, declaring Wayne
Farms' actions as described in the complaint are
unlawful and in violation of the FLSA and applicable
regulations and are and were willful as defined in the
FLSA;
-- issue an order directing and requiring Tip Top to
pay plaintiffs and all other similarly situated
employees damages in the form of reimbursement for
unpaid hourly and premium overtime wages (past and
future) for all time spent performing compensable work
for which they were not paid pursuant to the rate
provided by the FLSA;
-- issue an order directing defendant to reimburse
plaintiffs and other similarly situated employees for
the costs and attorneys' fees expended in the course of
litigating this action, pre-judgment and post-judgment
interest;
-- provide plaintiffs with such other and further relief as
the court deems just and equitable.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?203a
The suit is "White v. Tip Top Poultry, Inc., Case No. 4:07-cv-
00101-HLM," filed in the U.S. District Court for the Northern
District of Georgia, under Judge Harold L. Murphy.
Representing plaintiffs is:
Deirdre Maria Stephens, Esq.
Morgan & Morgan, P.A.
191 Peachtree Street, NE, Suite 4200
Atlanta, GA 30303
Phone: 404-965-8811
Fax: 404-965-8812
E-mail: djohnson@forthepeople.com
TOBACCO LITIGATION: June 6 Oral Argument Set in "Daniels"
---------------------------------------------------------
A June 6, 2007 oral argument is set in a lawsuit brought by
Devin Daniels on behalf of all California resident minors who
smoked one or more cigarettes between April 2, 1994, and Dec.
31, 1999, and who were exposed to the defendants' marketing and
advertising activities in the state during that period.
Other plaintiffs in the suit are Bryce Clements, Daimon
Fullerton, Nicole Morrow and Maren Sandler. Defendants are
Philip Morris Inc., Brown & Williamson Tobacco Corp., R.J.
Reynolds Tobacco Co., and Lorillard Tobacco Co.
The case alleged that the defendants violated the Unfair
Competition Law through deceptive advertising practices
targeting youth. Summary Judgment was granted in favor of the
Defendants Philip Morris USA, R.J. Reynolds, Lorillard and Brown
& Williamson on November 1, 2002.
On Oct. 6, 2004, the California Court of Appeal, San Diego,
affirmed the dismissal of this case. In a 41-page opinion, the
unanimous appeals panel ruled that U.S. Supreme Court decisions
interpreting the Federal Cigarette Labeling and Advertising Act
bar "...plaintiffs' essential claim that defendants' violated
the UCL [California's Unfair Competition Law] by targeting
children and teenagers with unfair and deceptive marketing
programs and advertising..."
This case is currently on appeal to the California Supreme
Court.
The suit is "Daniels v. Philip Morris, Case No. 719446 (JCCP No.
4042) filed by in the Superior Court of the State of California
for the County of San Diego.
TOLL BROTHERS: Faces Penn. Lawsuit Over Alleged RESPA Violations
----------------------------------------------------------------
Toll Brothers, Inc. is facing a class-action complaint in the
U.S. District Court for the Eastern District of Pennsylvania for
alleged violation of the Real Estate Settlement Procedures Act.
Lead plaintiffs Robert J. Emrich, Jr. and Shelley D. Emrich
bring this action on behalf of all residential mortgage
borrowers, nationally, who, within one year of the filing of
this Class Action Complaint,
-- purchased a home from Toll Brothers, Inc.;
-- received a mortgage loan for such home purchase that was
originated, processed and/or brokered by TBI Mortgage
Corporation; and/or
-- bought title insurance for such home purchase that was
provided, processed and/or brokered by Westminster
Abstract Company,
wherein the borrowers were allegedly required by the literal
terms of their real estate purchase agreement with Toll Brothers
to finance their purchase through TBI Mortgage and obtain title
insurance through Westminster, or else forfeit various discounts
off of the purchase price and/or closing costs for their new
home.
TBI Mortgage and Westminster are subsidiaries of, or otherwise
share a common ownership with, Toll Brothers and for this
reason, among others, their relationship constitutes an
"affiliated business arrangement" within the meaning of Section
8(c) of the Real Estate Settlement Procedures Act, 12 U.S.C.
Section 2607(c).
Affiliated business arrangements are exempt from RESPA's
prohibition against kickbacks and unearned fees only if, inter
alia, there is no requirement that the borrower use a particular
settlement service provider.
By requiring home buyers to finance their purchase through TBI
Mortgage and to obtain title insurance through Westminster,
under the direct threat of having to otherwise pay more money
for their new home, Defendants have allegedly failed to comply
with the statutory prerequisites for exemption as an affiliated
business arrangement and, consequently, have violated RESPA's
prohibition against kickbacks and unearned fees.
Additionally, Toll Brothers, as a seller of property, has
violated Section 9 of RESPA by requiring the use of a particular
title insurance company.
This action is brought as a Plaintiff Class Action under Fed. R.
Civ. P. 23, on behalf of all persons nationwide and within the
territories of the U.S. who are:
(a) required to finance their home purchases through Toll
Brothers' affiliate, TBI Mortgage, within the meaning
and in violation of Section 8 of RESPA;
(b) required to obtain title insurance through Toll
Brothers' affiliate, Westminster, within the meaning
and in violation of Sections 8 and 9 of RESPA;
(c) if the relationship between and among Toll Brothers,
TBI Mortgage, and Westminster constitute an "affiliated
business arrangement" within the meaning of RESPA;
(d) if Defendants' affiliated business arrangement failed
to meet the prerequisites for exemption from liability
under Section 8 of RESPA;
(e) if Defendants engaged in an illegal referral scheme, in
violation of Section 8(a) of RESPA;
(f) if Defendants accepted an unearned fee in violation of
Section 8(b) of RESPA;
(g) if Defendants' failure to meet the requirements for
exemption as an affiliated business arrangement
automatically resulted in a violation of Section 8 of
RESPA;
(h) measure of damages appropriated; and
(i) declaratory or injunctive relief appropriated.
Plaintiffs pray for judgment against Defendant, as follows:
-- for an Order certifying this action may be maintained as
a class action, as defined, under Fed. R. Civ. P.
23(a) and 23(b)(3);
-- for an Order appointing Plaintiffs as representatives of
the class;
-- for an Order appointing the undersigned counsel as class
counsel pursuant to Fed. R. Civ. P. 23;
-- for an Order directing that reasonable notice of the
class action be provided to all members of the class at
the appropriate time after discovery and dispositive
motions have been resolved;
-- for violating RESPA, an Order and Judgment finding that
the Defendants are liable as a matter of law to each
member of the class for treble damages;
-- for declaratory and injunctive relief as permitted by
law or equity, including enjoining Defendants from
continuing the unlawful practices as set forth herein;
-- for reasonable attorneys' fees as provided by law and
statute;
-- for pre-and-post judgment interest as provided by law in
an amount according to proof at trial;
-- for an award of costs and expenses incurred in this
action; and
-- for such other relief as the Court may deem just and
proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1fef
The suit is "Emrich et al. v. Toll Brothers, Inc. et al, Case
No. 2:07-cv-02046-HB," filed in the U.S. District Court for the
Eastern District of Pennsylvania, under Judge Harvey Bartle,
III.
Representing plaintiffs is:
Gary F. Lynch, Esq.
Carlson Lynch Ltd.
36 N. Jefferson Street
P.O. BOX 7635
New Castle, PA 16107
Phone: 724-656-1555
Fax: 724-656-1556
E-mail: glynch@carlsonlynch.com
UNITED STATES: La. Residents Sue Over Contaminated FEMA Trailers
----------------------------------------------------------------
The federal government, along with several other parties, faces
a purported federal class action that accuses it of housing
victims of Hurricane Katrina in Federal Emergency Management
Agency trailers contaminated by carcinogenic formaldehyde.
Robin Oldenburg, Austin Sicard, and Cindy McDonald -- all
residents of the Parish of St. Bernard -- filed the lawsuit in
U.S. District Court for the Eastern District of Louisiana on May
18, 2007.
In it, the trio also named as defendants
-- Fleetwood Enterprises, Inc.;
-- Fleetwood Canada, Ltd.; and
-- Other as yet unnamed travel trailer vendors to FEMA.
The case was brought on behalf of those persons residing or
living in manufactured mobile homes, mobile homes or travel
trailers (hereinafter called "housing units") along the Gulf
coast of the U.S.
The housing units were provided by FEMA after the landfalls of
Hurricane Katrina, and who are being subjected to harmful levels
of formaldehyde while residing in said housing units.
Formaldehyde (http://www.epa.gov/iaq/formalde.html)is used in
the manufacture of certain construction materials as
particleboard and plywood, particularly in the manufactured home
industry.
According to the National Cancer Institute, formaldehyde has
been classified as a human carcinogen (cancer-causing substance)
by the International Agency for Research on Cancer and as a
probably human carcinogen by the U.S. Environmental Protection
Agency.
Plaintiffs allege that they have suffered damages in an amount
in excess of $75,000.00 exclusive of interest and costs, as to
themselves and each proposed class member. They are demanding a
jury trial for their case.
A copy of the complaint is available free of charge at:
http://researcharchives.com/t/s?200a
The suit is "Oldenburg et al. v. United State of America et al.,
Case No. 2:07-cv-02961-ILRL-DEK," filed in the U.S. District
Court for the Eastern District of Louisiana under Judge Ivan L.
R. Lemelle with referral to Judge Daniel E. Knowles, III.
Representing the plaintiffs is:
Daniel E. Becnel, Jr., Esq.
Law Offices of Daniel E. Becnel, Jr.
106 W. Seventh St., P.O. Drawer H
Reserve, LA 70084
Phone: 985-536-1186
E-mail: dbecnel@becnellaw.com
WAYNE FARMS: Ga. Lawsuit Aims to Claim Unpaid Overtime Wages
------------------------------------------------------------
Wayne Farms, LLC is facing a class-action complaint filed May 23
in the U.S. District Court for the Northern District of Georgia
alleging Labor Code violations.
Named plaintiffs Joey Tate, Luc Ly, Sanjanetta Teasley and
Deserra Warren seek to recover for violations of the Fair Labor
Standards Act of 1938, 29 U.S.C. Section 201 et. seq.
This is a representative action brought pursuant to FLSA Section
216(b) by plaintiffs on behalf of current and former production
employees of Wayne Farms for purposes of obtaining relief under
the FLSA for unpaid wages, unpaid overtime wages, liquidated
damages, costs, attorneys' fees, declaratory and/or injunctive
relief, and/or any such other relief the court may deem
appropriate.
The lawsuit alleges Wayne Farms uniformly denies hourly wages
and overtime premium pay to its employees by requiring them to
perform "off the clock" work. The deliberate failure to pay
employees earned wages and overtime compensation allegedly
violates federal law as set out in the FLSA.
The work time for which plaintiffs are allegedly not paid
includes but is not limited to:
(1) changing into the protective required work uniforms,
sanitary clothing and protective safety equipment that
can include among other things (depending on the task
and whether First or Second Processing): ear plugs,
smocks, work pants and shirts; safety jump suits;
safety boots; hair nets; face nets; hard hats; aprons;
belts with holsters and knives; and hand and arm
protections;
(2) walking to and from security, changing areas, work
areas and break areas; washing activities; and
(3) breaks that are effectively compensable.
Plaintiffs request for the following relief:
-- at the earliest possible time, issue an order allowing
notice or issue such court supervised notice to all
similarly situated current and former Wayne Farms hourly
employees of this action and their rights to participate
in this action. Such notice shall inform all similarly
situated current and qualified former employees of the
pendency of this action, the nature of this action, and
of their right to "opt-in" to this action if they worked
"off the clock" for times not paid, including time that
may be paid at overtime rates.
-- issue an order, pursuant to the Declaratory Judgment
Act, 28 U.S.C. Sections 2201-2202, declaring Wayne
Farms' actions as described in the complaint are
unlawful and in violation of the FLSA and applicable
regulations and are and were willful as defined in the
FLSA;
-- issue an order directing and requiring Wayne Farms to
pay plaintiffs and all other similarly situated
employees damages in the form of reimbursement for
unpaid hourly and premium overtime wages (past and
future) for all time spent performing compensable work
for which they were not paid pursuant to the rate
provided by the FLSA;
-- issue an order directing defendant to reimburse
plaintiffs and other similarly situated employees for
the costs and attorneys' fees expended in the course of
litigating this action, pre-judgment and post-judgment
interest;
-- provide plaintiffs with such other and further relief as
the court deems just and equitable.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?2037
The suit is "Tate et al. v. Wayne Farms, LLC, Case No. 2:07-cv-
00055-WCO," filed in the U.S. District Court for the Northern
District of Georgia under Judge William C. O'Kelley.
Representing plaintiffs is:
Deirdre Maria Stephens, Esq.
Morgan & Morgan, P.A.
191 Peachtree Street, NE, Suite 4200
Atlanta, GA 30303
Phone: 404-965-8811
Fax: 404-965-8812
E-mail: djohnson@forthepeople.com
New Securities Fraud Cases
AMGEN INC: Kaplan Fox Files Securities Fraud Suit in Calif.
-----------------------------------------------------------
Kaplan Fox & Kilsheimer LLP filed a class action in the U.S.
District Court for the Central District of California on behalf
of all persons who purchased the publicly traded securities of
Amgen Inc. from May 4, 2005 through May 10, 2007 against Amgen
and certain of its officers and directors for violations of the
Securities Exchange Act of 1934.
The complaint alleges, inter alia, that during the class period,
the defendants improperly marketed Amgen's anti-anemia drugs
Aranesp and Epogen to doctors for off-label uses. As a result,
Amgen sold several hundred million dollars worth of drugs each
year for off-label uses.
The complaint further alleges that in October 2006, a group of
researchers conducting a clinical study of head and neck cancer
patients treated with Aranesp immediately discontinued the
study, prior to its completion, because more deaths occurred in
patients taking Aranesp than in those taking a placebo, which
was not disclosed to investors, and that on February 16, 2007, a
publication called The Cancer Letter published an article about
the results of the study.
The complaint further alleges that on March 9, 2007, the FDA
mandated a "black box" warning regarding the off-label use of
both Aranesp and Epogen, and then on May 8, 2007, in
anticipation of an advisory panel meeting, the FDA issued a
report suggesting that there is not enough data to ensure that
Aranesp is safe even when used as directed. It is further
alleged that on May 10, 2007, it was reported that an FDA
outside panel of experts voted to expand warnings and require
Amgen and Johnson & Johnson to conduct new studies to test the
safety of ESAs and that these revelations caused Amgen's stock
price to significantly decline on high trading volume.
Interested parties may move the court no later than June 18,
2007 for appointment as lead plaintiff.
Plaintiff seeks to recover damages on behalf of the class.
For more information about the action, contact:
Frederic S. Fox, Esq.
Joel B. Strauss, Esq.
Donald R. Hall, Esq.
Jeffrey P. Campisi, Esq.
Kaplan Fox & Kilsheimer LLP
805 Third Avenue, 22nd Floor
New York, New York 10022
Phone: (800) 290-1952 or (212) 687-1980
Fax: (212) 687-7714
E-mail address: mail@kaplanfox.com
- or -
Laurence D. King, Esq.
Kaplan Fox & Kilsheimer LLP
555 Montgomery Street, Suite 1501
San Francisco, California 94111
Phone: (415) 772-4700
Fax: (415) 772-4707
E-mail address: mail@kaplanfox.com
OPTIONABLE INC: Wites & Kapetan Files Securities Suit in N.Y.
-------------------------------------------------------------
Wites & Kapetan, P.A., filed a class action in the U.S. District
Court for the Southern District of New York on behalf of all
persons who purchased the publicly traded common stock of
Optionable Inc. from May 6, 2005 through May 11, 2007 against
Optionable and certain of its officers and directors for
violations of the Securities Exchange Act of 1934.
The complaint alleges, inter alia, that during the class period,
defendants issued materially false statements and made material
omissions regarding its business fundamentals, and in
particular, that defendants failed to disclose the material
dependence it had on its largest client, the Bank of Montreal,
and that Optionable improperly concealed material losses
incurred by BMO in connection with trades BMO transacted through
Optionable.
The complaint further alleges that on April 27, 2007, BMO
disclosed that it had lost between $300 to $400 million in
trades executed through Optionable, and then on May 8, 2007,
after the close of trading, BMO announced that it was
"suspending all of its business relationships" with Optionable
and "all derivatives trading through that firm, pending the
results of a full external review which is ongoing."
It is further alleged that on May 10, 2007, it was disclosed
that Deloitte & Touche LLP had conducted an audit of the trades
BMO had conducted with Optionable and that the Deloitte report
stated that there had been "serious mismarkings" of natural gas
options and that the "auditors had never seen such a wide
discrepancy between the pricing in the bank's portfolio and
their market value."
It is further alleged that on May 14, 2007, Optionable disclosed
the "resignation" of its Vice Chairman and CEO and that the New
York Mercantile Exchange, which acquired a 19% stake in the
company on April 19, 2007, was concerned about recent
developments at Optionable and was quitting its seat on the
board of the company.
Overall, as alleged in the complaint, Optionable shares have
declined from $7.01 per share at the close of trading on April
26, 2007, to close at $0.43 per share on May 14, 2007, a decline
of $6.58 per share or approximately 94%. The complaint further
alleges that during the class period, defendants sold
artificially inflated Optionable stock for proceeds of over $28
million.
Members of the class described may move the court no later than
July 10, 2007 for appointment as lead plaintiff.
Plaintiff seeks to recover damages on behalf of the class.
For more information about Wites & Kapetan, P.A., to review a
copy of the complaint filed in this action, or for questions
about this case, contact:
Marc A. Wites, Esq.
Wites & Kapetan, P.A.
4400 North Federal Highway
Lighthouse Point, FL 33064
Phone: (954) 570-8989
Toll Free: (866) 277-8631
E-mail: mwites@wklawyers.com
Web Site: http://www.wklawyers.com
*********
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*********
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Copyright 2007. All rights reserved. ISSN 1525-2272.
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