/raid1/www/Hosts/bankrupt/CAR_Public/070531.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 31, 2007, Vol. 9, No. 107
Headlines
AMO CANADA: Sued in Ontario Over Moisture Plus Lens Solution
ANGLO PLATINUM: Faces Suit Over Relocation of Limpopo Villagers
ASAP LAND: Kans. Lawsuit Alleges Overtime Compensation Denial
AUSTRALIA: Suit Planned Over Speeding Fine in Lane Cove Tunnel
BROOKDALE SENIOR: Faces Suits in N.Y., Del. Over Sale to Ventas
CAPTARIS INC: Settles TCPA Litigation, Still Faces Another Case
CARDINAL HEALTH: Settles Ohio Securities Fraud Suit for $600M
CARDINAL HEALTH: Discovery Proceeds in Ohio ERISA Litigation
CARDINAL HEALTH: Plaintiff Appeals Dismissal of "Pilkington"
CASEY’S GENERAL: Accused of Violating Fair Labor Standards Act
CHICAGO MERCANTILE: Court Mulls Motion to Dismiss LMERS’ Lawsuit
ENCYSIVE PHARMACEUTICALS: Court Appoints Lead Plaintiff, Counsel
EAGLE HOSPITALITY: Faces Lawsuit in Ky. Over Corporex Proposal
GEORGIA: Retailers Group Sued for Refusing Membership to Stores
MEDIMMUNE INC: Motion to Block $15.6B AstraZeneca Deal Filed
NATIONAL FREIGHT: Faces Labor Code Violations Lawsuit in Fla.
OSI PHARMACEUTICALS: Amended Securities Complaint Not Yet Filed
PANTRY INC: Faces “Hot Fuel” Lawsuits in Fla., Ala., Del. Courts
POLARIS INDUSTRIES: Recalls ATVs Due to Steering Posts Failure
POLYMEDICA CORP: Settles Mass. Securities Fraud Suit for $5.5M
QUAIL INTERNATIONAL: GA Suit Claims Unpaid Overtime Compensation
SEALED AIR: Discovery Ongoing in N.J. Securities Fraud Lawsuit
SYNCOR INT'L: Court Mulls Appeal on Nixing of Stock Complaint
WITNESS SYSTEMS: Still Faces Securities Fraud Litigation in Ga.
WITNESS SYSTEMS: Opposes Second Amended Complaint in “Miller”
ZIMMER HOLDINGS: JPMDL Transfers Orthopaedic Lawsuits to Ind.
New Securities Fraud Cases
STERLING FINANCIAL: Chimicles & Tikellis Files Securities Suit
*********
AMO CANADA: Sued in Ontario Over Moisture Plus Lens Solution
------------------------------------------------------------
The law offices of Juroviesky and Ricci LLP have filed a class action in the
Ontario Superior Court of Justice against AMO Canada Company, a division of
Advanced Medical Optics Inc.
Defendant has issued a voluntary recall of its "Complete all in one Moisture
Plus Lens Solution" after the Center for Disease Control (CDC) in Atlanta,
Georgia, found that the Solution could be a factor in causing a serious eye
infection that can lead to vision impairment or blindness, commonly known as
Keratitis. The CDC further recommended that anyone that used the Solution
discard all contact lenses, and lens cases that had come into contact with
the Solution.
Specifically, the suit claims damages for losses suffered by consumers of the
Solution after consumers discarded their Solution, contact lenses and lens
cases that had come into contact with the Solution, in compliance with the
recommendation of the CDC.
Juroviesky and Ricci LLP are seeking to pursue remedies against the Defendant
for common law Tort, Negligence, and Breach of Warranty.
Note that the detailed statement of claim filed with the Ontario Superior
Court of Justice is the result of an extensive and independent investigation
conducted by Juroviesky and Ricci LLP.
To the knowledge of Juroviesky and Ricci LLP, no other statement of claim has
been filed in this matter against Defendant and no other law firms, as at the
time of filing its statement of claim, represent plaintiffs in this
litigation.
Because attorneys at Juroviesky and Ricci LLP have conducted a thorough
investigation on this matter, they are in a superior position to answer
questions about the claims alleged in the statement of claim, and can be
contacted to discuss this case through the telephone number and/or e-mail
address indicated below.
For more information, contact:
Juroviesky and Ricci LLP
Web site: http://www.jrclassactions.com
Phone: (416) 481-0718
Fax: (416) 481-1792
Email: info@jrclassactions.com
ANGLO PLATINUM: Faces Suit Over Relocation of Limpopo Villagers
---------------------------------------------------------------
Class action lawyer Richard Spoor threatens to file a suit to block the
leasing of land to a section 21 company -- said to be influenced by Anglo
Platinum -- on behalf of displaced Limpopo villagers, Chantelle Benjamin and
Charlotte Mathews of Resource Investor reports.
Mr. Spoor said he would apply for an interdict to nullify an agreement
between Angloplat's Potgietersrus Platinum (PPRust) and the section 21
company about the leasing of land to people living in two villages in
Limpopo, the northernmost province of South Africa. He also wants a court
order prohibiting the section 21 company from representing the villagers,
according to the report.
Angloplat is asking the land affairs department to approve the leasing
agreement. The company and representatives of the land affairs department
met to clarify issues related to the expansion and the relocation of the
villagers, but no decisions were taken as yet. Angloplat plans to expand its
mine near Mokopane.
Mr. Spoor, representing a group of villagers, said Angloplat was not properly
compensating the villagers for what they were losing. Under the relocation
agreement, the villagers will receive a modern house in the new villages at
Armoede and Rooibokfontein. They will also receive a settling-in allowance
of ZAR20,000 ($2,788). Other amounts had been committed to community trusts
and small-business development funds.
"There are massive social and environmental costs that are not being factored
into the equation,” he said.
Mr. Spoor also said that members of the two communities were nominated to the
board of the section 21 company have since benefited from their election by
receiving an income from Angloplat and by being given by Angloplat the right
to award contracts and offer employment.
ASAP LAND: Kans. Lawsuit Alleges Overtime Compensation Denial
-------------------------------------------------------------
ASAP Land Express, Inc. is facing a class action filed May 25 in the U.S.
District Court for the District of Kansas alleging Labor Code violations.
Named plaintiff Scott Andrew Lewis, brings this action against ASAP Land
Express, Inc. for unpaid wages, and unpaid overtime compensation and related
penalties and damages and for failure to pay their employees for all hours
worked.
Mr. Lewis, a former ASAP Land delivery driver, alleges that Defendant failed
and refused to pay him and all others similarly situated overtime pay for
overtime worked and failed and refused to pay him and all other similarly
situated employees straight time for all hours worked. Defendant's practices
are in direct violation of the Fair Labor Standards Act, 29 U.S.C. Section
201, et seq., the suit claims.
The suit alleges defendant's practice and policy is, and for the past three
years has been, to willfully fail and refuse to pay overtime compensation due
and owing to Mr. Lewis, and all other similarly situated employees, in
violation of the FLSA, and to willfully fail to compensate Mr. Lewis, and all
other similarly situated employees, for all hours worked while employed by
Defendant.
It further claims, Defendant has instituted and carried out an unlawful
policy and practice of refusing to pay all such employees for all time worked
and for overtime, notwithstanding that each hourly employee is entitled to
overtime pay under the FLSA.
Plaintiff brings this Complaint as a collective action pursuant to Section 16
(b) of the FLSA, 29 U.S.C. Section 216(b), on behalf of all persons who were,
are, or will be employed by the Defendant performing delivery services
throughout the United States within three years from the commencement of this
action who have not been compensated for all hours worked and/or have not
been compensated at one and one-half times the regular rate of pay for all
work performed in excess of forty hours per week.
He prays for relief as follows:
-- designation of this action as a collective action on
behalf of the proposed members of the FLSA
representative action and prompt issuance of notice
pursuant to 29 U.S.C. Section 216(b) to all similarly
situated members of the FLSA opt-in class apprising them
of the pendency of this action and permitting them to
assert timely FLSA claims in this action by filing
individual Consents To Sue pursuant to U.S.C. Section
216(b);
-- designation of Plaintiff Scott Lewis as Representative
Plaintiff of the putative members of the FLSA
representative action;
-- a declaratory judgment that the practices complained of
herein are unlawful under the FLSA, 29 U.S.C. Section
201, et seq.;
-- an injunction against Defendant and its officers,
agents, successors, employees, representatives, and any
and all persons acting in concert with Defendant, as
provided by law, from engaging in each of the unlawful
practices, policies, and patterns set forth herein;
-- an award of damages, including liquidated damages, to be
paid to Representative Plaintiffs and class members by
Defendant;
-- costs and expenses of this action incurred herein,
including reasonable attorneys' fees and expert fees;
-- pre-Judgment and Post-Judgment interest, as provided by
law; and
-- any and all such other and further legal and equitable
relief as the Court deems necessary, just, and proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?206e
The suit is "Lewis v. ASAP Land Express, Inc., Case No. 2:07-cv-02226-KHV-
GLR," filed in the U.S. District Court for the District of Kansas, under
Judge Kathryn H. Vratil, with referral to Judge Gerald L. Rushfelt.
Representing plaintiffs are:
Michael F. Brady, Esq.
Michael A. Hodgson, Esq.
Law Offices of Michael F. Brady
10901 Lowell Ave. Suite #280
Overland Park, KS 66210
Phone: 913-696-0925
Fax: 913-696-0468
E-mail: brady@mbradylaw.com or mhodgson@mbradylaw.com
AUSTRALIA: Suit Planned Over Speeding Fine in Lane Cove Tunnel
--------------------------------------------------------------
The Australian government and the Roads and Traffic Authority stand to face a
class action over an imposed fine for motorists exceeding the new speed limit
in the Lane Cove Tunnel in Sydney.
Lawyer Dennis Miralis said he is planning to file a class action on behalf of
motorists caught speeding in the tunnel, who claims authorities did not
inform them of the changes in the speed limit in the tunnel, The Sydney
Morning Herald reports.
Some 10,000 were caught exceeding the new 40 kmh speed limit during the
tunnel’s first six weeks of operation. Some of them said they only learned
of the changes when they received a letter informing them of a $590 fine and
three-month licence suspension.
The normal speed limit in the tunnel is 80kmh.
Mr. Miralis is accusing the government of failing to to comply with variable
speed limit regulations by not giving motorists advance warning of changing
speeds in the tunnel.
BROOKDALE SENIOR: Faces Suits in N.Y., Del. Over Sale to Ventas
---------------------------------------------------------------
Brookdale Senior Living, Inc. is a defendant in two purported class actions --
filed in New York and Delaware -- arising out of the sale of certain
facilities to Ventas Realty Limited Partnership in 2004, according to the
company’s May 8, 2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2007.
The first action was filed on Sept. 15, 2005, by current and former limited
partners in 36 investing partnerships in the U.S. District Court for the
Eastern District of New York captioned, “David T. Atkins et al. v. Apollo
Real Estate Advisors, L.P., et al.,” (the Action).
On March 17, 2006, a third amended complaint was filed in the Action. The
third amended complaint is brought on behalf of current and former limited
partners in 14 investing partnerships.
It names as defendants, among others, the company, Brookdale Living
Communities, Inc. (BLC), a subsidiary of the company, GFB-AS Investors, LLC
(GFB-AS), a subsidiary of BLC, the general partners of the 14 investing
partnerships, which are alleged to be subsidiaries of GFB-AS, Fortress
Investment Group (Fortress), an affiliate of the company’s largest
stockholder, and R. Stanley Young, its former Chief Financial Officer.
The nine count third amended complaint alleges, among other things:
-- that the defendants converted for their own use the
property of the limited partners of 11 partnerships,
including through the failure to obtain consents the
plaintiffs contend were required for the sale of
facilities indirectly owned by those partnerships to
Ventas;
-- that the defendants fraudulently persuaded the limited
partners of three partnerships to give up a valuable
property right based upon incomplete, false and
misleading statements in connection with certain
consent solicitations;
-- that certain defendants, including GFB-AS, the general
partners, and our former Chief Financial Officer, but
not including the Company, BLC, or Fortress, committed
mail fraud in connection with the sale of facilities
indirectly owned by the 14 partnerships at issue in the
Action to Ventas;
-- that certain defendants, including GFB-AS and its
former Chief Financial Officer, but not including the
Company, BLC, the general partners, or Fortress,
committed wire fraud in connection with certain
communications with plaintiffs in the Action and
another investor in a limited partnership;
-- that the defendants, with the exception of the Company,
committed substantive violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO);
-- that the defendants conspired to violate RICO;
-- that GFB-AS and the general partners violated the
partnership agreements of the 14 investing
partnerships;
-- that GFB-AS, the general partners, and the company’s
former Chief Financial Officer breached fiduciary
duties to the plaintiffs; and
-- that the defendants were unjustly enriched.
The plaintiffs have asked for damages in excess of $100.0 million on each of
the counts described above, including treble damages for the RICO claims.
On April 18, 2006, the company filed a motion to dismiss the claims with
prejudice, which remains pending before the court, and plan to continue to
vigorously defend the Action.
A putative class action was also filed on March 22, 2006, by certain limited
partners in four of the same partnerships involved in the Action in the Court
of Chancery for the State of Delaware captioned, “Edith Zimmerman et al. v.
GFB-AS Investors, LLC and Brookdale Living Communities, Inc.,” (Second
Action).
On Nov. 21, 2006, an amended complaint was filed in the Second Action. The
putative class in the Second Action consists only of those limited partners
in the four investing partnerships who are not plaintiffs in the Action. BLC
and GFB-AS were named as defendants in the Second Action.
The complaint alleges a claim for breach of fiduciary duty arising out of the
sale of facilities indirectly owned by the investing partnerships to Ventas
and the subsequent lease of those facilities by Ventas to subsidiaries of
BLC.
The plaintiffs seek, among other relief, an accounting, damages in an
unspecified amount, and disgorgement of unspecified amounts by which the
defendants were allegedly unjustly enriched.
On Dec. 12, 2006, the company filed an answer denying the claim asserted in
the amended complaint and providing affirmative defenses.
On Dec. 27, 2006, the plaintiffs moved to certify the Action as a class
action. Both the plaintiffs and defendants have served document production
requests and the Action is currently in the beginning stages of document
discovery. The company also intends to vigorously defend the Second Action.
Brookdale Senior Living, Inc. -- http://www.brookdaleliving.com/-- is an
operator of senior living facilities in the U.S. with 546 facilities in 35
states and the ability to serve over 51,000 residents. The company offers
its residents access to a full continuum of services across all sectors of
the senior living industry. BSL operates in four segments: independent
living, assisted living, retirement centers/continuing care retirement
communities (CCRCs) and management services.
CAPTARIS INC: Settles TCPA Litigation, Still Faces Another Case
---------------------------------------------------------------
A subsidiary of Captaris, Inc. has settled one of two lawsuits filed on
behalf of travel service providers that allege violations of the Telephone
Consumer Protection Act (TCPA).
According to the company’s May 8, 2007 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended March 31,
2007, Captaris has been involved in two ongoing lawsuits in Circuit Court in
Cook County, Illinois. Travel 100 Group, Inc., filed both lawsuits - one
against Mediterranean Shipping Company and the other against The Melrose
Hotel Co.
The complaints allege violations of the TCPA in connection with the receipt
of facsimile advertisements that were transmitted by MediaTel Corp., a wholly
owned subsidiary of Captaris, on behalf of travel service providers,
including Mediterranean and Melrose. All of the assets of MediaTel were sold
to a subsidiary of PTEK Holdings, Inc. on Sept. 1, 2003.
Each of the Travel 100 complaints sought injunctive relief and unspecified
damages and certification as a class action on behalf of Travel 100 and
others similarly situated throughout the U.S. that received the facsimile
advertisements.
Both Mediterranean and Melrose named Captaris as a third-party defendant and
asserted that, to the extent that they are liable, Captaris should be liable
under theories of indemnification, contribution or breach of contract for any
damages suffered by them.
Both Captaris and MediaTel have denied any liability in the cases because,
among other facts and defenses, MediaTel understood that the database and
lists of travel agent recipients to whom faxes were sent had authorized that
information could be sent to them by fax.
On July 28, 2006, the court in the Melrose case entered final approval of a
settlement between the plaintiffs and Melrose. Under the settlement
agreement, Melrose retained its right to pursue its claims for contribution
against Captaris and MediaTel.
Melrose subsequently settled these claims with Captaris and MediaTel without
any material liability to Captaris or MediaTel and all claims against
Captaris and MediaTel were dismissed with prejudice on January 24, 2007,
bringing to a close the Melrose litigation.
On Sept. 29, 2006, the court in the Mediterranean case granted summary
judgment in favor of Mediterranean and Captaris and dismissed the case.
In granting summary judgment, the court ruled that Travel 100 had invited the
facsimile advertisements and there was no violation of the Telephone Consumer
Protection Act.
Travel 100 filed a motion for reconsideration, which the court denied.
Travel 100 then filed a notice of appeal on December 29, 2006.
No appeal briefs have been filed to date and no date has been set for a
hearing at this time.
The company’s insurance carrier paid the settlement amount in the Melrose
matter. In the Mediterranean matter, the company’s carrier has agreed to pay
defense costs, but has reserved its rights to contest their duty to indemnify
Captaris with respect to this matter.
Captaris, Inc. -- http://www.captaris.com-- develops software products that
automate business processes, manage documents electronically and provide
efficient information delivery. With a comprehensive suite of software and
services, Captaris specializes in automating the slow and inefficient
unstructured and paper-based document processes that are found in every
organization. Its products and services address business needs in the fax
server and electronic document delivery market; the workflow and business
process automation market, and the enterprise content management market. The
Company's products run on off-the-shelf personal computer servers and
Microsoft software platforms, including Microsoft Windows NT, Windows 2000,
Windows 2003 and Windows XP. Captaris utilizes Microsoft.NET development
tools in its suite of products and integrate with a variety of hardware
equipment and enterprise software products.
CARDINAL HEALTH: Settles Ohio Securities Fraud Suit for $600M
-------------------------------------------------------------
Cardinal Health, Inc. reached a $600 million settlement in a consolidated
securities fraud class action filed against the company and certain of its
officers and directors in the U.S. District Court for the Southern District
of Ohio, according to the company’s May 8, 2007 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period ended March
31, 2007.
Since July 2, 2004, purported purchasers of the company's securities have
filed 10 purported class action complaints. They named the company and
certain of its officers and directors, asserting claims under the federal
securities laws.
These cases include:
-- "Gerald Burger v. Cardinal Health, Inc., et al., Case
No. 04 CV 575,"
-- "Todd Fener v. Cardinal Health, Inc., et al., Case No.
04 CV 579,"
-- "E. Miles Senn v. Cardinal Health, Inc., et al., Case
No. 04 CV 597,"
-- "David Kim v. Cardinal Health, Inc., Case No. 04 CV
598,"
-- "Arace Brothers v. Cardinal Health, Inc., et al., Case
No. 04 CV 604,"
-- "John Hessian v. Cardinal Health, Inc., et al., Case
No. 04 CV 635,"
-- "Constance Matthews Living Trust v. Cardinal Health,
Inc., et al., Case No. 04 CV 636,"
-- "Mariss Partners, LLP v. Cardinal Health, Inc., et al.,
Case No. 04 CV 849,"
-- "The State of New Jersey v. Cardinal Health, Inc., et
al., Case No. 04 CV 831,"
-- "First New York Securities, LLC v. Cardinal Health,
Inc., et al., Case No. 04 CV 911"
The Cardinal Health federal securities actions purport to be brought on
behalf of all purchasers of the company's securities during various periods
beginning as early as Oct. 24, 2000 and ending as late as July 26, 2004.
The suits allege, among others, that the defendants violated
Section 10(b) of the U.S. Securities Exchange Act of 1934, as amended, and
Rule 10b-5 promulgated thereunder and Section 20(a) of the U.S. Exchange Act
by issuing a series of false and/or misleading statements concerning the
company's financial results, prospects and condition.
Certain of the complaints also allege violations of Section 11 of the U.S.
Securities Act of 1933, as amended, claiming material misstatements or
omissions in prospectuses issued by the company in connection with its
acquisition of Bindley
Western Industries, Inc. in 2001 and Syncor in 2003.
The alleged misstatements relate to the company's accounting for recoveries
relating to antitrust litigation against vitamin manufacturers, and to
classification of revenue in the company's Pharmaceutical Distribution
business as either operating revenue or revenue from bulk deliveries to
customer warehouses, and other accounting and business model transition
issues, including reserve accounting.
The alleged misstatements are claimed to have caused an artificial inflation
in the company's stock price during the proposed class period.
The complaints sought unspecified money damages and equitable relief against
the defendants and an award of attorney's fees.
On Dec. 15, 2004, the Cardinal Health federal securities actions were
consolidated into one action captioned, "In re Cardinal
Health, Inc. Federal Securities Litigation." On Jan. 26, 2005, the court
appointed the Pension Fund Group as lead plaintiff in this consolidated
action.
On Apr. 22, 2005, the lead plaintiff filed a consolidated amended complaint
naming the company, certain current and former officers and employees and the
company's external auditors as defendants. The complaint seeks unspecified
money damages and other unspecified relief against the defendants.
On Mar. 27, 2006, the court granted a motion to dismiss with respect to the
company's external auditors and a former officer and denied the motion to
dismiss with respect to the company and the other individual defendants.
On Dec. 12, 2006, the parties stipulated that the case could proceed as a
class action with a class comprised of all persons other than Company
officers or directors who purchased or otherwise acquired the Company’s stock
during the class period.
The Company has recently been engaged in mediation with counsel for the
plaintiffs regarding a possible settlement of the Cardinal Health federal
securities actions.
As a result of the mediation, on April 23, 2007, the Company announced that
it had determined that it was necessary to record a reserve of $600 million
for the quarter ended March 31, 2007 in respect of the Cardinal Health
federal securities actions.
Since that announcement, the Company has negotiated a proposed memorandum of
understanding with counsel for the plaintiffs to settle these actions,
including an agreement by the Company to pay $600 million.
On May 2, 2007, the Company’s Board of Directors approved the proposed
memorandum of understanding; however, the proposed memorandum of
understanding remains subject to approval by the class representatives for
the plaintiffs.
The suit is "In re Cardinal Health, Inc. Securities Litigation,
Case No. 04-CV-575," filed in the U.S. District Court for the Southern
District of Ohio.
Representing the plaintiffs are:
Bernstein Liebhard & Lifshitz, LLP
10 E. 40th Street, 22nd Floor
New York, NY, 10016
Phone: 800-217-1522
E-mail: info@bernlieb.com
Milberg, Weiss, Bershad, Hynes & Lerach, LLP
600 West Broadway, 1800 One America Plaza,
San Diego, CA, 92101
Phone: 800.449.4900
E-mail: support@milberg.com
- and -
John R. Climaco, Esq.
Climaco Lefkowitz Peca Wilcox & Garofoli LPA
1228 Euclid Avenue, Suite 900
Cleveland, OH 44115-1891
Phone: 216-621-8484
Fax: 216-771-1632
E-mail: jrclim@climacolaw.com
Representing the company are:
John M. Newman, Jr., Esq.
Geoffrey J. Ritts, Esq.
Jones, Day, Reavis, & Pogue
North Point, 901 Lakeside Ave.
Cleveland, OH 44114-1190
Phone: 216-586-3939
E-mail: jmnewman@jonesday.com
gjritts@jonesday.com
CARDINAL HEALTH: Discovery Proceeds in Ohio ERISA Litigation
------------------------------------------------------------
Discovery is proceeding in the purported class action, "In re Cardinal
Health, Inc. ERISA Litigation, Case No. 2:04-cv-00643-ALM-NMK," which was
filed in the U.S. District Court for the Southern District of Ohio.
The suit, which alleges violations of the Employee Retirement Income Security
Act (ERISA), was filed against Cardinal Health, Inc. and certain of its
officers and directors.
Beginning July 2, 2004, 15 purported class action complaints have been filed
by purported participants in the Cardinal Health
Profit Sharing, Retirement and Savings Plan, collectively referred to as the
Cardinal Health ERISA actions. These cases include:
-- "David McKeehan and James Syracuse v. Cardinal Health,
Inc., et al., Case No. 04 CV 643,"
-- "Timothy Ferguson v. Cardinal Health, Inc., et al.,
Case No. 04 CV 668,"
-- "James DeCarlo v. Cardinal Health, Inc., et al., Case
No. 04 CV 684,"
-- "Margaret Johnson v. Cardinal Health, Inc., et al.,
Case No. 04 CV 722,"
-- "Harry Anderson v. Cardinal Health, Inc., et al., Case
No. 04 CV 725,"
-- "Charles Heitholt v. Cardinal Health, Inc., et al.,
Case No. 04 CV 736,"
-- "Dan Salinas and Andrew Jones v. Cardinal Health, Inc.,
et al., Case No. 04 CV 745,"
-- "Daniel Kelley v. Cardinal Health, Inc., et al., Case
No. 04 CV 746,"
-- "Vincent Palyan v. Cardinal Health, Inc., et al., Case
No. 04 CV 778,"
-- "Saul Cohen v. Cardinal Health, Inc., et al., Case No.
04 CV 789,"
-- "Travis Black v. Cardinal Health, Inc., et al., Case
No. 04 CV 790,"
-- "Wendy Erwin v. Cardinal Health, Inc., et al., Case No.
04 CV 803,"
-- "Susan Alston v. Cardinal Health, Inc., et al., Case
No. 04 CV 815,"
-- "Jennifer Brister v. Cardinal Health, Inc., et al.,
Case No. (04 CV 828), and"
-- "Gint Baukus v. Cardinal Health, Inc., et al., Case No.
05 C2 101."
The Cardinal Health ERISA actions purport to be brought on behalf of
participants in the 401(k) Plan and the Syncor Employees' Savings and Stock
Ownership Plan, and also on behalf of the Plans themselves.
The complaints allege that the defendants breached certain fiduciary duties
owed under ERISA, generally asserting that the defendants failed to make full
disclosure of the risks to the
Plans' participants of investing in the company's stock, to the detriment of
the Plans' participants and beneficiaries, and that company stock should not
have been made available as an investment alternative for the Plans'
participants.
The misstatements alleged in the Cardinal Health ERISA actions significantly
overlap with the misstatements alleged in the Cardinal Health federal
securities actions.
The complaints sought unspecified money damages and equitable relief against
the defendants and an award of attorney's fees.
On Dec. 15, 2004, the Cardinal Health ERISA actions were consolidated into
one action captioned, "In re Cardinal Health,
Inc. ERISA Litigation."
On Jan. 14, 2005, the court appointed lead counsel and liaison counsel for
the consolidated Cardinal Health ERISA action.
On April 29, 2005, the lead plaintiff filed a consolidated amended ERISA
complaint naming the company, certain current and former directors, officers
and employees, the company's Employee
Benefits Policy Committee and Putnam Fiduciary Trust Co. as defendants. The
complaint seeks unspecified money damages and other unspecified relief
against the defendants.
On Dec. 1, 2005, the lead plaintiff filed a motion for class certification.
The parties agreed to leave the motion for class certification pending while
the court considered a motion to dismiss.
On March 31, 2006, the Court granted the Motion to Dismiss with respect to
Putnam Fiduciary Trust Co. and with respect to plaintiffs’ claim for
equitable relief. The Court denied the remainder of the Motion to Dismiss
filed by the Company and certain defendants.
On Sept. 8, 2006, the plaintiffs filed a Motion for Class Certification.
Discovery is proceeding, according to the company’s May 8, 2007 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2007.
The suit is "In re Cardinal Health, Inc. ERISA Litigation, Case
No. 2:04-cv-00643-ALM-NMK," filed in the U.S. District Court for the Southern
District of Ohio under Judge Algenon L. Marbley.
Representing the plaintiffs are:
James Edward Arnold, Esq.
Clark Perdue Arnold & Scott
471 East Broad Street, Suite 1400
Columbus, OH 43215,
Phone: 614-469-1400
E-mail: jarnold@cpaslaw.com
- and -
George E. Barrett, Esq.
Barrett Johnston & Parsley
217 Second Avenue N.
Nashville, TN 37201
Phone: 615-244-2202
E-mail: gbarrett@barrettjohnston.com
Representing the company are:
J. Kevin Cogan, Esq.
Jones Day
325 John H. McConnell Blvd., P.O. Box 165017
Columbus, OH 43216-5017
Phone: 614-469-3939
Fax: 614-461-4198
E-mail: jcogan@jonesday.com;
- and -
Roger Philip Sugarman, Esq.
Kegler Brown Hill & Ritter
65 E. State Street, Suite 1800
Columbus, OH 43215-4294
Phone: 614-462-5400
Fax: 614-462-5422
E-mail: rsugarman@keglerbrown.com
CARDINAL HEALTH: Plaintiff Appeals Dismissal of "Pilkington"
------------------------------------------------------------
Lead plaintiff in a class action alleging violations of the
Employee Retirement Income Security Act against Cardinal Health,
Inc., Syncor International Corp. and certain officers and
employees of the company, is appealing the dismissal of the case
by the U.S. District Court for the Central District of
California.
A purported class action complaint, "Pilkington v. Cardinal
Health, et al.," was filed on April 8, 2003, against the
company, Syncor and certain officers and employees of the
company by a purported participant in the Syncor Employees'
Savings and Stock Ownership Plan.
A related purported class action complaint, "Donna Brown, et al.
v. Syncor International Corp., et al.," was filed on Sept. 11,
2003, against the company, Syncor and certain individual
defendants.
Another related purported class action complaint, "Thompson v.
Syncor International Corp., et al.," was filed on Jan. 14, 2004,
against the company, Syncor and certain individual defendants.
Each of these actions was brought in the U.S. District Court for
the Central District of California.
A consolidated complaint was filed on Feb. 24, 2004 against
Syncor and certain former Syncor officers, directors and/or
employees alleging that the defendants breached certain
fiduciary duties owed under ERISA based on the same underlying
allegations of improper and unlawful conduct alleged in the
federal securities litigation.
The consolidated complaint seeks unspecified money damages and
other unspecified relief against the defendants. On April 26,
2004, the defendants filed motions to dismiss the consolidated
complaint. On Aug. 24, 2004, the court granted in part and
denied in part defendants' motions to Dismiss.
The court dismissed, without prejudice, all claims against
defendants Ed Burgos and Sheila Coop, all claims alleging co-
fiduciary liability against all defendants, and all claims
alleging that the individual defendants had conflicts of
interest precluding them from properly exercising their
fiduciary duties under ERISA.
A claim for breach of the duty to prudently manage plan assets
was upheld against Syncor, and a claim for breach of the alleged
duty to "monitor" the performance of Syncor's Plan
Administrative Committee was upheld against defendants Monty Fu
and Robert Funari.
On Jan. 10, 2006, the court entered summary judgment in favor of
all defendants on all remaining claims. Consistent with that
ruling, on Jan. 11, 2006, the court entered a final order
dismissing this case.
The lead plaintiff has appealed this decision to the U.S. Court of Appeals
for the Ninth Circuit, according to the company’s May 8, 2007 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2007.
The suit is "Carol Pilkington v. Cardinal Health Inc., et al.,
Case No. 2:03-cv-02446-RGK-RC," filed in the U.S. District Court
for the Central District of California under Judge R. Gary
Klausner.
Representing the plaintiffs are:
Christopher Kim, Esq.
Lisa J. Yang, Esq.
Lim Ruger & Kim
1055 W 7th St, Ste 2800
Los Angeles, CA 90017
Phone: 213-955-9500
Email: christopher.kim@lrklawyers.com
lisa.yang@lrklawyers.com
- and -
Edward Chang, Esq.
Joseph H. Meltzer, Esq.
Schiffrin and Barroway
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
E-mail: echang@sbclasslaw.com
jmeltzer@sbclasslaw.com
Representing the defendants is:
Ted Allan Gehring, Esq.
Gibson Dunn & Crutcher
333 S. Grand Ave., 45th Fl.
Los Angeles, CA 90071-3197
Phone: 213-229-7000.
CASEY’S GENERAL: Accused of Violating Fair Labor Standards Act
--------------------------------------------------------------
Two former assistant managers at Casey’s General Stores Inc. are planning to
sue the convenience store chain for allegedly failing to pay them overtime
wages, Patt Johnson of the Desmoines Register reports.
Kristina Jones and Kim Marrs said in a prepared statement that allegations
would include claims that the company violated the Fair Labor Standards Act
by “working assistant managers off-the-clock to avoid paying overtime
wages.” They plant to file the case in U.S. District Court in Sioux City
(Ia).
Ms. Jones worked as an assistant manager at several Casey’s stores in Des
Moines and Ms. Marrs worked at two Casey’s stores in Missouri. They are
represented by Scott Peters of Council Bluffs. Mr. Peters estimates that the
suit could include hundreds of people.
Casey’s operates about 1,460 stores in nine states.
For more information, contact:
Scott Peters, Esq.
Peters Law Firm, P.C.
233 Pearl Street
P.O. Box 1078
Council Bluffs, IA 51502
Phone: (712) 328-3157
(888) 840-3157 (Toll Free)
Fax: (712) 328-9092
CHICAGO MERCANTILE: Court Mulls Motion to Dismiss LMERS’ Lawsuit
----------------------------------------------------------------
The Court of the Chancery of the state of Delaware in and for New Castle
County has yet to rule on a motion seeking the dismissal of the purported
class action, "Louisiana Municipal Employees’ Retirement System v. CBOT
Holdings, Inc., et al. Case No. 2803," which names Chicago Mercantile
Exchange Holdings, Inc., (CME Holdings), as a defendant.
On March 16, 2007, Louisiana Municipal Police Employees’ Retirement System
filed a class action complaint in the Delaware Court of Chancery against CBOT
Holdings, its directors and CME Holdings.
The complaint alleges, among other things, that CBOT Holdings and its
directors breached their fiduciary duties related to the sale of CBOT
Holdings by approving allegedly improper deal protection devices including a
$240 million termination fee and a no-shop/no-talk provision.
It further alleges that CME Holdings aided and abetted the alleged breaches
of fiduciary duty. The plaintiff seeks to enjoin the CBOT Holdings/CME
merger.
On March 19, 2007, the plaintiff filed a motion seeking expedited
proceedings. A teleconference arguing the motion was held on March 21, 2007.
Due to CBOT Holdings’ decision to postpone the April 4, 2007 special meeting
of its shareholders to vote on the merger, the motion for expedited
proceedings was denied.
However, the court ordered that limited document discovery could proceed on
an expedited basis. On April 9, 2007, CBOT Holdings, the director defendants
and CME Holdings filed motions to dismiss the complaint.
These motions are currently pending before the court, according to the
company’s May 7, 2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2007.
The suit is "Louisiana Municipal Employees’ Retirement System v. CBOT
Holdings, Inc., et al. Case No. 2803," filed in the Court of the Chancery of
the State of Delaware in and for New Castle County.
Representing the plaintiffs are:
Gerald H. Silk, Esq.
Bernstein Litowitz Berger & Grossmann LLP
1285 Avenue of the Americas
New York, NY 10019
Phone: (212) 554-1282 and (212) 554-1400
Fax: (212) 554-1444
E-mail: jerry@blbglaw.com
Web site: http://www.blbglaw.com
- and –
Stuart M. Grant, Esq.
Grant & Eisenhofer, P.A.
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Phone: (302) 622-7070
Fax: (302) 622-7100
E-mail: sgrant@gelaw.com
Web site: http://www.gelaw.com/stuartm_grant.cfm
ENCYSIVE PHARMACEUTICALS: Court Appoints Lead Plaintiff, Counsel
----------------------------------------------------------------
The U.S. District Court for the Southern District of Texas has appointed a
lead plaintiff and lead counsel in the consolidated securities fraud class
action against Encysive Pharmaceuticals Inc. in relation to statements it
made regarding its drug sitaxsentan sodium.
On Sept. 26, 2006, a purported class action complaint was filed in the U.S.
District Court for the Southern District of Texas by Massachusetts Laborers’
Annuity Fund, on behalf of itself and all other similarly situated investors
against the Company, Bruce D. Given, M.D., the Company’s President and Chief
Executive Officer, Richard A.F. Dixon, the Company’s Senior Vice President,
Research and Chief Scientific Officer and Stephen L. Mueller, the Company’s
former Vice President, Finance and Administration, Secretary and Treasurer.
The complaint alleges violations of sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission
Rule 10b-5, and focuses on statements that are claimed to be false and
misleading regarding our drug sitaxsentan sodium.
Plaintiffs seek unspecified damages on behalf of a purported class of
purchasers of our securities during the period from Feb. 19, 2004 through
March 24, 2006.
In addition, on Oct. 10, 2006, a second purported class action complaint was
filed in the U.S. District Court for the Southern District of Texas by Gustav
R. Bastian, on behalf of himself and all other similarly situated investors
against the Company, Dr. Given, Mr. Dixon and Mr. Mueller.
The complaint asserts substantially the same factual allegations and legal
claims as the Massachusetts Laborers complaint on behalf of the same putative
class.
A third substantially similar purported class action complaint was filed on
Oct. 20, 2006 by Steven O. Scott, and a fourth substantially similar
purported class action complaint was filed on Nov. 1, 2006 by Cami Janzen-
Guare.
These complaints assert substantially the same factual allegations and legal
claims as the Massachusetts Laborers’ complaint and were filed in the same
court on behalf of the same putative class.
It is possible that additional complaints regarding the same subject matter
may be filed in the future. The Court has consolidated the four existing
putative class actions into a single civil action, and the company expects
that any future purported class actions involving the same subject matter as
the existing lawsuits will likewise be consolidated into this action.
The Court has also appointed a lead plaintiff and lead counsel in the
consolidated action, who are preparing to file a consolidated amended
complaint, according to the company’s May 8, 2007 Form 10-Q Filing with the
U.S. Securities and Exchange Commission for the quarterly period ended March
31, 2007.
Encysive Pharmaceuticals, Inc. -- http://www.encysive.com/-- is a
biopharmaceutical company that engages in the discovery, development and
commercialization of synthetic small molecule compounds.
EAGLE HOSPITALITY: Faces Lawsuit in Ky. Over Corporex Proposal
--------------------------------------------------------------
Eagle Hospitality Properties Trust, Inc. was named a defendant in a purported
class-action complaint filed on Feb. 28, 2007 in the Commonwealth of Kentucky
Kenton Circuit Court, according to the company’s May 8, 2007 Form 10-Q Filing
with the U.S. Securities and Exchange Commission for the quarterly period
ended March 31, 2007.
The suit was filed against the company and each of its directors and Corporex
Companies, LLC. It was brought by the City of Pontiac General Employees’
Retirement System, on behalf of itself and behalf of all holders of the
Company’s stock (excluding the named defendants and their affiliates).
The complaint alleges, among other things, that the directors are in breach
of their fiduciary duties to shareholders in connection with the previously
announced exploration of strategic alternatives by the Special Committee of
the Company and, in particular, in connection with a letter received from
Corporex Companies, Inc., an affiliate of William P. Butler, the Chairman of
the Company, regarding a potential acquisition of the outstanding common
stock of the Company not currently owned by Corporex or its affiliates.
The complaint seeks, among other things, unspecified damages on behalf of the
Company, including attorneys’ fees, costs and expenses, and injunctive relief
against the Company from consummating any buyout between the Company and
Corporex.
Covington, Kentucky-based Eagle Hospitality Properties Trust, Inc. --
http://www.eaglehospitality.com/-- is a self-advised real estate investment
trust formed to pursue investment opportunities in the full service and all-
suites hotel industry.
GEORGIA: Retailers Group Sued for Refusing Membership to Stores
---------------------------------------------------------------
The Atlanta Retailers Association is facing a class action filed by three
convenience stores alleging the group discriminated against certain races in
accepting members.
The plaintiffs are Wilson’s Grocery, Potts Grocery and Henderson’s Grocery.
They said they were illegally denied membership to the association.
According to them, the group refuses permit non-Asian convenience store
owners to join ARA.
The complaint was filed with the Superior Court of Fulton County, Ga.,
according to CSNews Online. It stated that the denial made the plaintiffs
unable to qualify for discounts on beverages made available to those members
by Pepsi Cola Bottling Group (Pepsi), which was also named in the suit.
Pepsi provides $3 discounts per case to those members, and a $1,000 rebate on
Pepsi products sold.
According to the group's lawyer, David Marmins, the ARA membership is within
its legal rights to limit membership to Ismaili Muslims, a sect of the Muslim
religion. The ARA represents 900 businesses owned or managed by Ismaili
Muslims, Mr. Marmins said.
Representing ARA is:
David J. Marmins, Esq.
Balch and Bingham
30 Allen Plaza, Suite 700
30 Ivan Allen, Jr. Blvd., NW
Atlanta, Georgia 30308
Phone: (404) 962-3524
Fax: (404) 261-3656
Email: dmarmins@balch.com
Representing Pepsi is:
Jim Coil, Esq.
Kilpatrick Stockton LLP
Suite 2800
1100 Peachtree Street
Atlanta, GA 30309-4530
Phone: 404 815 6348
Fax: 404 541 3161
E-mail: JCoil@KilpatrickStockton.com
MEDIMMUNE INC: Motion to Block $15.6B AstraZeneca Deal Filed
------------------------------------------------------------
MedImmune, Inc., along with its executives and directors, were named as
defendants in a purported shareholder's class action that sought to block
AstraZeneca PLC's planned $15.6 billion takeover of the company, Vandana
Sinha of The Washington Business Journal reports.
Company shareholder Chris Larson filed the purported class action on April
25, 2007 in Montgomery County Circuit Court. He generally claims that the
deal with the British drug company would unfairly enrich top MedImmune
executives at the expense of shareholders.
The suit also names MedImmune founder and board chair Wayne Hockmeyer as a
defendant. Five other board directors were also named as defendants:
-- James Cavanaugh,
-- Barbara Hackman Franklin,
-- Elizabeth Wyatt,
-- George Milne, and
-- Robert Hotz
According to the suit, which was disclosed in a recent MedImmune regulatory
filing obtained by The Washington Business Journal, "Instead of attempting to
obtain the highest value reasonably available for the company's stockholders,
defendants spent a substantial effort tailoring the acquisition to meet the
specific needs of AstraZeneca."
Generally, defendants are withholding key information shareholders need to
evaluate whether the $58 per share offer from AstraZeneca is fairly priced.
The lawsuit, filed two days after the buyout deal was announced, claims that
leaders of the MedImmune had an unfair advantage in their negotiations with
AstraZeneca PLC to "reap disproportionate benefits to the exclusion of
maximizing stockholder value."
The suit seeks to stop the merger "unless and until the Company adopts and
implements a procedure or process to obtain the highest possible value for
shareholders."
On May 29, 2007, plaintiff filed with the court an amended class action
complaint. In addition to the allegations and requests for relief made in
the initial complaint, as summarized above, the amended complaint alleges,
among other things, that MedImmune failed to disclose certain information to
its shareholders. On May 29, 2007, the plaintiff filed a motion for a
temporary restraining order to prevent consummation of the Offer until June
15, 2007.
The suit is “Chris Larson v. MedImmune, Inc. et. al., Case No. 281946, Sixth
Judicial Court, Montgomery County, MD.
Maryland-based MedImmune, Inc. -- http://www.medimmune.com/-- is a
biotechnology company focusing its efforts on the therapeutic areas of
infectious disease, cancer and inflammatory disease. The company primarily
develops monoclonal antibodies and vaccines.
NATIONAL FREIGHT: Faces Labor Code Violations Lawsuit in Fla.
-------------------------------------------------------------
National Freight, Inc. is facing a class-action complaint filed May 24 in the
U.S. District Court for the Middle District of Florida alleging Labor Code
violations.
Named plaintiff, Harry Ashby, brings this action for unpaid overtime
compensation, declaratory relief and other relief under the Fair Labor
Standards Act, as amended, 29 U.S.C. Section 216(b).
Mr. Ashby, a former National Freight driver and loader, claims defendants
failed to comply with 29 U.S.C. Sections 201-209, because he had performed
services for them for which no provisions were made to properly compensate
him for those hours worked in excess 40 within a work week.
He further claims that during his employment with National Freight, he was
not paid time and one-half his regular rate of pay for all hours worked in
excess of 40 per work week during one or more weeks.
As a result, defendants' intentional, willful and unlawful acts in refusing
to pay him, and those similarly situated to him, suffered damages plus
incurring reasonable attorneys' fees and costs.
Mr. Ashby demands judgment against National Freight for the payment of all
overtime hours at one and one-half the regular rate of pay for the hours
worked by them for which defendants did not properly compensate them,
liquidated damages, reasonable attorneys' fees and costs incurred in this
action, and any and all further relief that the court determines to be just
and appropriate.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?206f
The suit is "Ashby v. National Freight, Inc. et al., Case No. 8:07-cv-00898-
JSM-MSS," filed in the U.S. District Court for the Middle District of
Florida, under Judge James S. Moody, Jr., with referral to Judge Mary S.
Scriven.
Representing plaintiffs is:
Carlos V. Leach, Esq.
Morgan & Morgan, PA
20 N Orange Ave - Ste 1600
PO Box 4979
Orlando, FL 32802-4979
Phone: 407/420-1414
Fax: 407/423-7928
E-mail: cleach@forthepeople.com
OSI PHARMACEUTICALS: Amended Securities Complaint Not Yet Filed
---------------------------------------------------------------
Plaintiffs in the class action, “In re OSI Pharmaceuticals, Inc. Securities
Litigation, Case No. 2:04-cv-05505-JS-WDW,” have yet to file an amended
complaint in the matter, according to the company’s May 8, 2007 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2007.
On or about Dec. 16, 2004, several purported shareholder class actions were
filed in the U.S. District Court for the Eastern District of New York against
the company, certain of its current and former executive officers, and the
members of its Board of Directors.
The lawsuits were brought on behalf of those who purchased or otherwise
acquired our common stock during certain periods in 2004, which periods
differed in the various complaints.
The court appointed a lead plaintiff who, on Feb. 17, 2006, filed a
consolidated amended class action complaint seeking to represent a class of
all persons who purchased or otherwise acquired our common stock during the
period from April 26, 2004 through Nov. 22, 2004.
The consolidated complaint alleges that the defendants made material
misstatements and omissions concerning the survival benefit associated with
our product, Tarceva and the size of the potential market of Tarceva upon FDA
approval of the drug.
It alleges violations of Sections 11 and 15 of the U.S. Securities Act of
1933, as amended, and Sections 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder.
The consolidated complaint seeks unspecified compensatory damages and other
relief.
On April 7, 2006, the company filed a motion to dismiss the consolidated
amended complaint. Briefing on this motion was completed on June 21, 2006.
In an opinion dated March 31, 2007 (and entered on the docket on April 4,
2007), the Court granted in part and denied in part the motion to dismiss.
The Court dismissed claims against some of the individual defendants and
dismissed the Section 11 and 15 claims, but granted the plaintiff 30 days
leave to replead the Section 11 claim in accordance with the Court’s order
and to renew the Section 15 claim.
The Court’s order states that if plaintiff does not properly amend the
complaint within 30 days, the Section 11 and 15 claims will be dismissed with
prejudice. As of the date of this filing, the plaintiff has not amended the
complaint.
The suit is “In re OSI Pharmaceuticals, Inc. Securities Litigation, Case No.
2:04-cv-05505-JS-WDW,” filed in the U.S. District Court for the Eastern
District of New York under Judge Joanna Seybert with referral to Judge
William D. Wall.
Representing the plaintiffs are:
David A. Rosenfeld, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
E-mail: drosenfeld@lerachlaw.com
- and -
Frank R. Schirripa, Esq.
Schoengold Sporn Laitman & Lometti, PC.
19 Fulton Street, Suite 406
New York, NY 10038
Phone: 212-964-0046
Fax: 212-267-8137
E-mail: frank@spornlaw.com
Representing the defendants is:
Michael L. Kichline, Esq.
Dechert LLP
Cira Centre, 2929 Arch Street
Philadelphia, PA 19104
(215) 994-4000
PANTRY INC: Faces “Hot Fuel” Lawsuits in Fla., Ala., Del. Courts
----------------------------------------------------------------
The Pantry, Inc. is a defendant in three purported class actions over motor
fuel that was greater than 60 degrees Fahrenheit at the time of sale,
according to the company’s May 8, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended March 29,
2007.
Since late 2006, over 35 class actions have been filed in federal courts
across the country against numerous companies in the petroleum industry.
Major petroleum companies and significant retailers in the industry have been
named as defendants in these cases. To date, the company has been named as a
defendant in three cases:
-- “Cozza, et al. v. Murphy Oil USA, Inc. et al., S.D.
Fla., No. 9:07-cv-80156-DMM,”
-- “Snable, et al. v. Murphy Oil USA, Inc., et al., N.D.
Ala., No.7:07-cv-00535-LSC,” and
-- “Becker, et al. v. Marathon Petroleum Company LLC, et
al., D. Del., No.1:07-cv-00136.”
Plaintiffs in the lawsuits generally allege that they are retail purchasers
who purchased motor fuel that was greater than 60 degrees Fahrenheit at the
time of sale.
In two cases in which the company is a defendant, the plaintiffs allege that
they received less motor fuel than the defendants agreed to deliver because
the defendants measured the amount of motor fuel they delivered in non-
temperature adjusted gallons which, at higher temperatures, contain less
energy.
These cases seek, among other relief, an order requiring the defendants to
install temperature-adjusting equipment on their retail motor fuel dispensing
devices.
In one case in which the company is a defendant, plaintiffs have alleged that
because defendants pay fuel taxes based on temperature adjusted 60 degree
gallons, but collect taxes from consumers in non-temperature adjusted
gallons, defendants sell a greater volume of fuel than the amount on which
they pay tax.
Thus, plaintiffs allege that when fuel is sold to consumers at temperatures
above 60 degrees, defendants enjoy a benefit because they receive a greater
amount of tax from consumers than they paid on the same gallon of fuel.
Plaintiffs in this case seek, among other relief, recovery of excess taxes
paid and punitive damages. Both types of cases seek compensatory damages,
injunctive relief, attorneys’ fees and costs, and prejudgment interest.
Motions to consolidate all the cases with one court pursuant to multidistrict
litigation procedures have recently been filed.
The Pantry, Inc. -- http://www.thepantry.com-- operates an independently
operated convenience store chain in the U.S.
POLARIS INDUSTRIES: Recalls ATVs Due to Steering Posts Failure
--------------------------------------------------------------
Polaris Industries Inc. of Medina, Minn., in cooperation with the U.S.
Consumer Product and Safety Commission, is voluntarily recalling nearly 8,800
units of Polaris Model Year 2006 Hawkeye 2x4 and Hawkeye 4x4 ATVs.
The company said the steering posts can break in the area where the handlebar
attaches to the steering post. This can result in loss of steering control
resulting in a crash and/or serious injury to the operator.
Polaris has received three reports of steering post failure. No injuries
have been reported.
Only certain model year 2006 Polaris Hawkeye ATVs produced prior to January
23, 2006 are included in this recall. Consumers should contact Polaris to
identify whether their model is part of the recall. All serial number ranges
of the Hawkeye 2x4 model number A06LB27AA and the Hawkeye 4x4 model number
A06LD27AA/AB/AC are included. The serial number (VIN) identification decal
is located under the right-hand front fender and stamped on the lower portion
of the frame behind the left front wheel.
These ATVs were manufactured in the United States and sold through Polaris
dealers nationwide from August 2005 through April 2007 for between $3,900 and
$4,700.
Consumers should immediately stop using the recalled ATVs and contact a
Polaris dealer to schedule a free repair. Polaris is contacting registered
consumers directly. Consumers can verify whether their ATV is included in
the recall by contacting a Polaris dealer or Polaris directly.
Photo of the product involved is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07553.html
For more information, contact Polaris at (800) 765-2747 between 8 a.m. and
midnight ET everyday, or visit the firm’s Web site at
http://www.polarisindustries.com
POLYMEDICA CORP: Settles Mass. Securities Fraud Suit for $5.5M
--------------------------------------------------------------
Schatz Nobel Izard, P.C. and Shapiro Haber & Urmy LLP Schatz Nobel Izard,
P.C. and Shapiro Haber & Urmy LLP announced that a $5,500,000 settlement has
been submitted, for approval, for the consolidated securities class action
pending in the U.S. District Court for the District of Massachusetts against
Polymedica Corp.
All persons who purchased or otherwise acquired the common stock of
PolyMedica Corp. ("PolyMedica") during the period between October 26, 1998,
and December 31, 2000, may be eligible to participate in the settlement.
On Nov. 27, 2000, Richard Bowe SEP-IRA filed a purported class action against
the company and Steven J. Lee, the company's former chief executive officer
and chairman of the board, on behalf of himself and purchasers of common
stock.
The suit seeks an unspecified amount of damages, attorneys' fees and costs
and claims violations of Sections 10(b), 10b-5, and 20(a) of the Securities
Exchange Act of 1934, alleging various statements were misleading with
respect to the company's revenue and earnings based on an alleged scheme to
produce fictitious sales.
Several virtually identical lawsuits were subsequently filed in the U.S.
District Court for the District of Massachusetts against the company. On
July 30, 2001, the court granted the plaintiffs' motion to consolidate the
complaints under the caption, "In re: PolyMedica Corp. Securities Litigation,
Civ. Action No. 00-12426-REK."
Plaintiffs filed a consolidated amended complaint on Oct. 9, 2001. The
consolidated amended complaint extended the class period to Oct. 26, 1998
through Aug. 21, 2001, and named as defendants the company, Liberty Medical
Supply, Inc., and certain former officers of Liberty.
Defendants moved to dismiss the consolidated amended complaint on Dec. 10,
2001. Plaintiffs filed their opposition to this motion on Feb. 11, 2002, and
defendants filed a reply memorandum on March 11, 2002.
The court denied the motion without a hearing on May 10, 2002. On June 20,
2002, defendants filed answers to the consolidated amended complaint.
On Jan. 28, 2004, plaintiffs filed a motion for class certification to which
defendants filed an opposition on Feb. 27, 2004.
Plaintiffs filed a reply memorandum on April 12, 2004 followed by additional
briefing by the parties. The court heard oral argument on the motion on June
2, 2004.
On Sept. 8, 2004, the court allowed the plaintiffs' motion and certified the
class. On Sept. 21, 2004, the defendants filed a petition requesting that
they be permitted to appeal the decision to the First Circuit Court of
Appeals.
Plaintiffs filed a response to the defendants' petition on Oct. 7, 2004
opposing defendants' request to appeal the class certification.
Also on Oct. 7, 2004, the Court stayed sending notice of the class action
pending a ruling on defendants' appeal of class certification.
On Feb. 15, 2005, the First Circuit Court of Appeals granted defendants'
petition for leave to appeal the class certification decision.
Defendants-appellants filed their brief on March 15, 2005, and plaintiffs-
appellees filed an opposition on April 15, 2005. On April 25, 2005,
defendants-appellants filed a reply brief. The First Circuit Court of
Appeals heard oral argument on May 4, 2005 and took the matter under
advisement.
On Dec. 13, 2005, the First Circuit Court of Appeals rendered a decision in
defendants-appellants' favor and entered an order vacating the District
Court's order certifying the class for the period from January 2001 through
August 2001 and remanding the matter for further proceedings in the District
Court consistent with its opinion.
On Feb. 23, 2006, plaintiffs filed a motion in the District Court to re-
certify the class for the period from January 2001 through August 2001, which
the defendants opposed.
On March 23, 2006, the court held an evidentiary hearing relating to class
certification and on March 31, 2006 the court heard oral argument regarding
class certification. The court took the motion under advisement.
A fairness hearing will be held on September 5, 2007, 2:00 p.m., in the
courtroom of the Honorable William G. Young at the U.S. District Court for
the District of Massachusetts.
Deadline to file objections is August 26, 2007. Deadline to file for
exclusion is August 22, 2007. Deadline to file claims is October 26, 2007.
The suit is "Bowe et al v. Polymedica Corp., Case No. 1:00-cv-12426-REK,"
filed in the U.S. District Court for the District of Massachusetts under
Judge Robert E. Keeton.
Representing the plaintiffs are:
Theodore M. Hess-Mahan, Esq.
Shapiro Haber & Urmy, LLP
53 State Street
Boston, MA 02108
Phone: 617-439-3939
Fax: 617-439-0134
E-mail: ted@shulaw.com
- and -
Seth R. Klein, Esq.
Schatz & Nobel, P.C.
One Corporate Center
20 Church Street, Suite 1700
Hartford, CT 06103
Phone: 860-493-6292.
Representing the defendants are:
Michael G. Bongiorno, Esq.
Jeffrey B. Rudman, Esq.
Emily R. Schulman, Esq.
Wilmer Cutler Pickering Hale and Dorr, LLP
60 State Street
Boston, MA 02115
Phone: 617-526-6145, 617-526-6912 and 617-526-6077
Fax: 617-526-5000
E-mail: michael.bongiorno@wilmerhale.com and
jeffrey.rudman@wilmerhale.com and
emily.schulman@wilmerhale.com
- and -
Gus P. Coldebella, Esq.
Goodwin Procter, LLP
Exchange Place, 53 State Street
Boston, MA 02109
Phone: 617-570-1780
Fax: 617-523-1231
QUAIL INTERNATIONAL: GA Suit Claims Unpaid Overtime Compensation
----------------------------------------------------------------
Quail International, Inc. is facing a class-action complaint filed May 22 in
the U.S. District Court for the Middle District of Georgia alleging Labor
Code violations.
Named plaintiffs -- Hattie Daniel, Mattie KIlpatrick and Jackie Woods -- seek
to revocer for Quail International's violations of the Fair Labor Standards
Act of 1938, 29 U.S.C. Section 201 et. seq.
Plaintiffs bring this as a representative action pursuant to FLSA Section 216
(b) on behalf of all current and former production employees of Quail
International 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 complaint alleges the time for which plaintiffs and other similarly
situated employees are paid is significantly less than the time they spend at
work between the time they begin their integral, essential and indispensable
work duties and the time they arrive at their workstations on the line. The
work time for which plaintiffs are 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): ear plugs, smocks, work pants and shirts; safety
jump suits; safety boots; hair nets; face nets; hard
hats; aprons; belts with holsters and knifes; 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 complaint further alleges Quail International uniformly denies hourly
wages and overtime premium pay to its employees by requiring them to
perform "off the clock" work. The company's deliberate failure to pay
employees earned wages and overtime compensation violates federal law as set
out in the FLSA.
Quail International deducts from plaintiffs' daily time worked, without
regard for the actual time spent on break, two uncompensated breaks of fixed
duration.
In addition to depriving plaintiffs and others similarly situated of hourly
wages for compensable time pursuant to the FLSA, Quail International's
failure to accurately account for and report all compensable time worked by
the plaintiffs and others similarly situated has deprived plaintiffs and
others similarly situated of what would otherwise be overtime pay pursuant to
the FLSA.
Plaintiffs perform multiple tasks, but are victims to the same illegal policy
and practice of failing to pay workers for all time worked, including unpaid
but compensable break periods, unpaid hourly wage times and unpaid overtime
premium wage times, the suit claims.
The unlawful compensation system at issue has affected Quail International's
former and present hourly production employees at its Greensboro facility.
Plaintiffs bring this complaint as an "opt-in" collective action pursuant to
29 U.S.C. Section 216(b) on behalf of all current and former hourly 1st and
2nd processing employees of defendant, paid under a master time compensation
system in which individuals' time card punches are not the basis for starting
and ending hours worked who worked at the Greensboro, Georgia, facility
within three years from the date of filing of this complaint and whose work-
related tasks or legally compensable time, including, but not limited to:
-- authorized unpaid break times,
-- donning and doffing times,
-- washing activity times,
-- time associated with passing through security check
points,
-- 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;
and satisfying the following requirements:
(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 his job posts;
(d) if the donning, doffing and washing activities at issue
are integral or indispensable to defendant's business
activities;
(e) if plaintiffs were entitled to compensation for time
spent donning and doffing, washing activity time,
walking time to and from "the line";
(f) if plaintiffs' donning and doffing, washing activity,
and walking time 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 the mandate of the FLSA.
Plaintiffs pray that the court grant 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 Quail
International hourly employees (working at defendant's
Greensboro, Georgia, location in the last three years)
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 Quail
International's 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 Quail
International 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 and requiring Quail
International to pay plaintiffs and all other similarly
situated employees liquidated damages pursuant to the
FLSA in an amount equal to, and in addition, to the
amount of wages and overtime wages owed to them;
-- 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; and
-- 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:
The suit is "Daniel et al v. Quail International, Inc., Case No. 3:07-cv-
00053-CDL," filed in the U.S. District Court for the Middle District of
Georgia, under Judge Clay D. Land.
Representing plaintiffs are:
Richard Celler, Esq.
Morgan & Morgan
284 South University Drive
Fort Lauderdale, FL 33324
Phone: 877-435-9243
Fax: 954-333-3515
E-mail: Richard@cellerlegal.com
- and -
Deirdre Stephens Johnson, Esq.
Suite 42
191 Peachtree Street
Atlanta, GA 3030
Phone: 404-965-8811
E-mail: djohnson@forthepeople.com
SEALED AIR: Discovery Ongoing in N.J. Securities Fraud Lawsuit
--------------------------------------------------------------
Discovery is still ongoing in the securities fraud suit filed against Sealed
Air Corp. in the U.S. District Court for the District of New Jersey.
The suit was filed on Sept. 15, 2003. It seeks class-action status on behalf
of all persons who purchased or otherwise acquired securities of the company
from March 27, 2000 through July 30, 2002.
It names the company and five current and former officers and directors of
the company as defendants. The company is required to provide
indemnification to the other defendants, and accordingly, the company's
counsel is also defending them.
On June 29, 2004, the court granted plaintiff Miles Senn's motion for
appointment as lead plaintiff and for approval of his choice of lead
counsel.
The plaintiff's amended complaint makes a number of allegations against the
defendants. The principal allegations are that during the above period, the
defendants materially misled the investing public, artificially inflated the
price of the company's common stock by publicly issuing false and misleading
statements and violated U.S. Generally Accepted Accounting Principles by
failing to properly account and accrue for the company's contingent liability
for asbestos claims arising from past operations of W.R. Grace & Co.
Plaintiffs seek compensatory damages and other relief. The company is
vigorously defending the lawsuit, since the company believes that it properly
disclosed its contingent liability for Grace's asbestos claims and properly
accounted for its contingent liability for such claims under U.S. GAAP.
On March 14, 2005, the company and the individual defendants filed a motion
to dismiss the amended complaint in "Senn" for failure to state a claim.
On Dec. 19, 2005, the court granted in part and denied in part defendants'
motion to dismiss. The court determined that the complaint failed adequately
to allege scienter as to the four individual defendants other than T.J.
Dermot Dunphy, and therefore dismissed the lawsuit with respect to these four
individual defendants, but adequately alleged scienter as to Mr. Dunphy and
the company.
Mr. Dunphy is a current director of the company and was formerly chairman of
the board and chief executive officer of the company.
On Dec. 28, 2005, the defendants requested that the Court reconsider the
portion of the Dec. 19, 2005 order denying defendants’ motion to dismiss with
regard to the Company’s arguments other than scienter, or, in the
alternative, that the Court certify the matter for interlocutory appeal.
On Feb. 13, 2006, the defendants filed an answer to the amended complaint.
On April 7, 2006, the Court heard oral argument on defendants’
reconsideration motion, and on July 10, 2006, the Court denied the motion on
the ground that issues of fact prevent the Court from granting a motion to
dismiss based on the Company’s arguments other than scienter.
On Nov. 22, 2006, plaintiff filed an amended motion for class certification,
seeking to withdraw as a class representative and to substitute a new class
representative, the State of Louisiana Municipal Police Employees Retirement
System (MPERS).
On March 26, 2007, the Court entered an order permitting Miles Senn to
withdraw as Lead Plaintiff and permitting MPERS to be substituted as Lead
Plaintiff.
On March 29, 2007, MPERS, as Lead Plaintiff, filed a motion to certify a
class of all persons or entities that purchased Sealed Air Corp. securities
during the period from March 27, 2000 through July 30, 2002, both dates
inclusive, and were damaged thereby.
Discovery concerning class certification and the merits is ongoing, according
to the company’s May 8, 2007 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31, 2007.
The suit is "Senn v. Hickey, et al., Case No. 03-CV-4372," filed in the U.S.
District Court for the District of New Jersey under
Dennis M. Cavanaugh with referral to Judge Mark Falk.
Representing the plaintiffs is:
Olimpio Lee Squitieri, Esq.
Squitieri & Fearon, LLP
26 South Maple Avenue, Suite 202
Marlton, NJ 08053
Phone: (856) 797-4611
Fax: (856) 797-4612,
E-mail: lee@sfclasslaw.com
Representing the defendants is:
Gregory B. Reilly, Esq.
Lowenstein Sandler, PC, 65 Livingston Avenue
Roseland, NJ 07068-1791
Phone: (973) 597-2500
E-mail: greilly@lowenstein.com
SYNCOR INT'L: Court Mulls Appeal on Nixing of Stock Complaint
-------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit has yet rule in an appeal
regarding the dismissal of the third amended complaint in a consolidated
securities fraud class action against Syncor International Corp.
Purported class actions were filed against the company and
certain of its officers and directors, asserting claims under
the federal securities laws.
All of these actions were filed in the U.S. District Court for
the Central District of California. These cases include:
-- "Richard Bowe v. Syncor Int'l Corp., et al., No. CV 02-
8560 LGB (RCx) (C.D. Cal.),"
-- "Alan Kaplan v. Syncor Int'l Corp., et al., No. CV 02-
8575 CBM (MANx) (C.D. Cal.),"
-- "Franklin Embon, Jr. v. Syncor Int'l Corp., et al.,
No. CV 02-8687 DDP (AJWx) (C.D. Cal.),"
-- "Jonathan Alk v. Syncor Int'l Corp., et al., No. CV 02-
8841 GHK (RZx) (C.D. Cal.),"
-- "Joyce Oldham v. Syncor Int'l Corp., et al., CV 02-8972
FMC (RCx) (C.D. Cal.),"
-- "West Virginia Laborers Pension Trust Fund v. Syncor
Int'l Corp., et al., No. CV 02-9076 NM (RNBx) (C.D.
Cal.),"
-- "Brad Lookingbill v. Syncor Int'l Corp., et al., CV
02-9248 RSWL (Ex) (C.D. Cal.),"
-- "Them Luu v. Syncor Int'l Corp., et al., CV 02-9583 RGK
(JwJx) (C.D. Cal.),"
-- "David Hall v. Syncor Int'l Corp., et al., CV 02-9621
CAS (CWx) (C.D. Cal.),"
-- "Phyllis Walzer v. Syncor Int'l Corp., et al., CV 02-
9640 RMT (AJWx) (C.D. Cal.)," and
-- "Larry Hahn v. Syncor Int'l Corp., et al., CV 03-52 LGB
(RCx) (C.D. Cal.)."
The Syncor federal securities actions purport to be brought on
behalf of all purchasers of Syncor shares during various
periods, beginning as early as March 30, 2000 and ending as late
as Nov. 5, 2002.
The actions allege, among other things, that the defendants
violated Section 10(b) of the U.S. Exchange Act and Rule 10b-5
promulgated thereunder and Section 20(a) of the U.S. Exchange
Act by issuing a series of press releases and public filings
disclosing significant sales growth in Syncor's international
business, but omitting mention of certain allegedly improper
payments to Syncor's foreign customers, thereby artificially
inflating the price of Syncor shares.
The lead plaintiff filed a third amended consolidated complaint
on Dec. 29, 2004. Syncor filed a motion to dismiss the third
amended consolidated complaint on Jan. 31, 2005.
On April 15, 2005, the court granted the motion to dismiss with
prejudice. The lead plaintiff has appealed this decision to the U.S. Court
of Appeals for the Ninth Circuit, according to the Cardinal Health, Inc.’s
May 8, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended March 31, 2007.
The first identified complaint is "Richard Bowe, et al. v.
Syncor Int'l Corp., et al., Case No. 2:02-cv-08560-LGB-RC,"
filed in the U.S. District Court for the Central District of
California under Judge Lourdes G. Baird with referral to Judge
Rosalyn M. Chapman.
Representing the plaintiffs are:
Willie C. Briscoe, Esq.
Provost Umphrey Law Firm
3232 McKinney Ave, Ste. 700
Dallas, TX 75204
Phone: 214-744-3000
- and -
Theodore M. Hess-Mahan, Esq.
Shapiro Grace Haber & Urmy
75 State St.
Boston, MA 02109
Phone: 617-439-3939
Representing the defendants are:
Daniel S. Floyd, Esq.
Gibson Dunn & Crutcher
333 S. Grand Ave., 45th Fl.
Los Angeles, CA 90071-3197
Phone: 213-229-7000
E-mail: dfloyd@gibsondunn.com
- and -
Robert F. LeMoine, Esq.
Skadden Arps Slate Meagher & Flom
300 S. Grand Ave., Ste. 3400
Los Angeles, CA 90071-3144
Phone: 213-687-5000
E-mail: lacefax@skadden.com
WITNESS SYSTEMS: Still Faces Securities Fraud Litigation in Ga.
---------------------------------------------------------------
Witness Systems, Inc. remains a defendant in a purported securities fraud
class action filed in the U.S. District Court for the Northern District of
Georgia, according to the company’s May 8, 2007 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period ended March
31, 2007.
On Aug. 14, 2006, a putative securities class action was filed by an
individual claiming to be a stockholder of the company and naming the company
and certain of its Board of Directors and officers as defendants in
connection with certain stock option grants made by the company.
The suit, “Rosenberg v. Gould, et al., Civil Action No. 1:06-CV-1894, was
filed in the U.S. District Court for the Northern District of Georgia,
alleges violations of Section 10(b) of the U.S. Securities Exchange Act of
1934 and Rule 10b-5 thereunder and seeks unspecified damages, attorneys’ fees
and other costs and expenses, unspecified extraordinary, equitable and
injunctive relief, and other relief as determined by the court.
On Jan. 25, 2007, the court granted an unopposed motion by “Witness Systems
Investor Group” for an order consolidating all later-filed securities class
actions, appointing the Group as Lead Plaintiff, and approving its selection
of Motley Rice LLC and Kahn Gauthier Swick LLC as Co-Lead Counsel.
A consolidated amended complaint was filed on April 6, 2007, adding a claim
under Section 20(a) of the U.S. Exchange Act and naming the company’s
auditor, KPMG LLP, as an additional defendant.
The company and its Board of Directors intend to review the allegations of
the consolidated amended complaint and respond when appropriate.
The suit is “Rosenberg v. Gould et al., Case No. 1:06-cv-01894-CC,” filed in
the U.S. District Court for the Northern District of Georgia under Judge
Clarence Cooper.
Representing the plaintiffs is:
Lauren S. Antonino, Esq.
Motley Rice, LLC
One Georgia Center, Suite 800
600 West Peachtree Street
Atlanta, GA 30308
Phone: 404-201-6908
E-mail: lantonino@motleyrice.com
- and -
Lewis Kahn, Esq.
Kahn Gauthier Swick, LLC
Suite 2150, 650 Poydras Street
New Orleans, LA 70130
Phone: 504-455-1400
Fax: 504-455-1498
Representing the defendants is:
Peter J. Macdonald, Esq.
Wilmer Cutler Pickering Hale and Dorr
399 Park Avenue
New York, NY 10022
Phone: 212-937-7223
- and -
John H. Williamson, Esq.
Morris Manning & Martin
3343 Peachtree Rd., N.E. 1600 Atlanta Financial Center
Atlanta, GA 30326-1044
Phone: 404-233-7000
E-mail: jwilliamson@mmmlaw.com
WITNESS SYSTEMS: Opposes Second Amended Complaint in “Miller”
-------------------------------------------------------------
Witness Systems, Inc. is opposing a proposed Second Amended Complaint --
purporting to bring four new direct claims as a putative class action for
breach of fiduciary duty, abuse of control, gross mismanagement, and
constructive fraud -– filed in the case, “Miller v. Gould, et al., Civil
Action No. 1:06-CV-2039.”
Originally, on Aug. 29, 2006, A. Edward Miller filed the shareholder
derivative lawsuit in the U.S. District Court for the Northern District of
Georgia naming Witness Systems, Inc. as a nominal defendant and naming all of
its current Board of Directors and a number of its current officers as
defendants.
The suit alleges purported violations of federal and state law, including
breaches of fiduciary duty, abuse of control, constructive fraud, corporate
waste, unjust enrichment, gross mismanagement and violations of certain
antifraud provisions of the federal securities laws (including Sections 10(b)
and 14(a) of the U.S. Securities Exchange Act of 1934 and Rules 10b-5 and 14a-
9 thereunder) in connection with certain stock option grants made by the
company.
The complaint seeks monetary damages in unspecified amounts, disgorgement of
profits, an accounting, rescission of stock option grants, imposition of a
constructive trust over the defendants’ stock options and proceeds derived
therefrom, punitive damages, reimbursement of attorneys’ fees and other costs
and expenses, an order directing the Company to adopt or put to a stockholder
vote various proposals relating to corporate governance, and other relief as
determined by the court.
Plaintiffs filed an amended complaint on Jan. 9, 2007. Defendants moved to
dismiss the Amended Complaint on March 9, 2007, arguing, inter alia, that the
case should be stayed or dismissed because the company’s announced cash-out
merger with Verint Systems Inc. (expected to close during the second quarter
of 2007) would eliminate plaintiff’s standing to pursue a derivative action
on behalf of the company’s shareholders.
Plaintiffs responded by filing, on April 6, 2007 a motion for leave to file a
proposed Second Amended Complaint, which purports to bring four new direct
claims as a putative class action for breach of fiduciary duty, abuse of
control, gross mismanagement, and constructive fraud.
Defendants filed an opposition to the motion for leave to amend on May 4,
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 ended March 31,
2007.
The suit is “Miller v. Gould et al., Case No. 1:06-cv-02039-CC,” filed in the
U.S. District Court for the Northern District of Georgia under Judge Clarence
Cooper.
Representing the plaintiff is:
Martin D. Chitwood, Esq.
Chitwood Harley Harnes
2300 Promenade II, 1230 Peachtree Street, NE
Atlanta, GA 30309
Phone: 404-873-3900
Fax: 404-876-4476
E-mail: mchitwood@chitwoodlaw.com
Representing the defendant is:
Ross A. Albert, Esq.
Morris Manning & Martin
3343 Peachtree Rd., N.E. 1600 Atlanta Financial Center
Atlanta, GA 30326-1044
Phone: 404-504-7768
Fax: raa@mmmlaw.com
ZIMMER HOLDINGS: JPMDL Transfers Orthopaedic Lawsuits to Ind.
-------------------------------------------------------------
The Judicial Panel on Multidistrict Litigation (JPMDL) issued a transfer
order that directs purported class actions over orthopaedic implant devices,
which are pending outside the U.S. District Court for the Southern District
of Indiana, to be transferred to that district for coordinated or
consolidated pretrial proceedings with the action already pending in that
district, according to the company’s May 8, 2007 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period ended March
31, 2007.
In June 2006, Zimmer Holdings, Inc. received a subpoena from the U.S.
Department of Justice, Antitrust Division, requesting that we produce
documents for the period beginning January 2001 through June 2006, pertaining
to an investigation of possible violations of federal criminal law, including
possible violations of the antitrust laws, involving the manufacture and sale
of orthopaedic implant devices.
The company is cooperating fully with federal authorities with regard to this
matter. We understand that similar inquiries were directed to at least four
other companies in the orthopaedics industry.
Following the commencement of the Department of Justice, Antitrust Division’s
investigation, the company and several other major orthopaedic manufacturers
were named as defendants in five putative class actions as of Jan. 1, 2007.
Direct and indirect purchasers of orthopaedic products alleging violations of
Federal and state antitrust laws and certain state consumer protection
statutes brought these lawsuits.
In each of these lawsuits, the plaintiffs allege that the defendants engaged
in a conspiracy to fix prices of orthopaedic implant devices.
The direct purchaser cases, “South Central Surgical Center, LLC v. Zimmer
Holdings, Inc. et al.,” and “Chaiken DDS, P.C. v. Biomet, Inc. et al.,” were
filed in the U.S. District Court for the Southern District of Indiana on July
13, 2006 and in the U.S. District Court for the Northern District of Indiana
on July 26, 2006, respectively.
The indirect purchaser cases, “Thomas v. Biomet, Inc. et al., Kirschner v.
Biomet, Inc. et al.,” and “Williams v. Biomet, Inc. et al.,” were filed in
the U.S. District Court for the Western District of Tennessee on July 18,
2006, July 24, 2006 and July 27, 2006, respectively.
On Jan. 12, 2007, the company and the other defendants in the cases delivered
a Motion for Transfer and Consolidation of Pretrial Proceedings under 28
U.S.C. Section 1407 to the Judicial Panel on Multidistrict Litigation,
requesting the court to transfer the cases to the U.S. District Court for the
Southern District of Indiana for coordinated or consolidated pretrial
proceedings.
The Panel filed the motion on Jan. 18, 2007. The plaintiffs did not oppose a
stay of proceedings pending resolution of this motion.
On Jan. 15, 2007, the plaintiff in “Thomas” filed a Notice of Voluntary
Dismissal Without Prejudice in the U.S. District Court for the Western
District of Tennessee.
On April 18, 2007, the Judicial Panel on Multidistrict Litigation issued a
Transfer Order ordering that the remaining actions pending outside the
Southern District of Indiana be transferred to that district for coordinated
or consolidated pretrial proceedings with the action already pending in that
district.
In each of these remaining cases, the plaintiffs seek damages of unspecified
amounts, in some cases to be trebled under applicable law, attorneys’ fees
and injunctive or other unspecified relief.
Zimmer Holdings, Inc. -- http://www.zimmer.com-- designs, develops,
manufactures and markets reconstructive orthopaedic implants, including joint
and dental, spinal implants, trauma products and related orthopaedic surgical
products. The Company’s products include joint and dental reconstructive
orthopaedic implants, spinal implants, trauma products, and related
orthopaedic surgical products. Its related orthopaedic surgical products
include surgical supplies and instruments designed to aid in orthopaedic
surgical procedures and post-operation rehabilitation. Orthopaedic surgeons
and neurosurgeons use spinal implants in the treatment of degenerative
diseases, deformities and trauma. Trauma products are used primarily to
reattach or stabilize damaged bone and tissue to support the body’s natural
healing process.
New Securities Fraud Cases
STERLING FINANCIAL: Chimicles & Tikellis Files Securities Suit
--------------------------------------------------------------
The law firm of Chimicles & Tikellis LLP of Haverford, Pa. filed the first
securities class action in the United States District Court for the Eastern
District of Pennsylvania against Sterling Financial Corporation (NASDAQ:
SLFI), Equipment Finance LLC (EFI), and certain officers and directors of
Sterling and EFI (Docket No. 07-2171).
Sterling is a diversified financial services company based in Lancaster, Pa.
that has $2.63 billion in deposits at sixty-one (61) bank branches in central
Pennsylvania, northern Maryland, and northern Delaware. EFI, a wholly-owned
subsidiary of Sterling, is also headquartered in Lancaster, Pa. and provides
commercial financing for the soft pulp logging and land-clearing industries,
primarily in the southeastern United States. Lancaster, Pa. is located in the
region served by the United States District Court for the Eastern District of
Pennsylvania.
The class action complaint filed by Chimicles & Tikellis LLP seeks to
represent a Class consisting of all persons that purchased Sterling common
stock between April 27, 2004 and May 24, 2007, inclusive. The complaint,
which seeks damages and other appropriate relief for the Class, charges the
Defendants with violations of the federal securities laws,including Sections
10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5 promulgated there under.
The class action complaint filed by Chimicles & Tikellis can be viewed by
clicking here.
The complaint filed by Chimicles & Tikellis alleges that the Defendants
engaged in a scheme to defraud the investing public and artificially inflate
the price of Sterling common stock during the Class Period. Among the facts
alleged in the complaint are the following:
(a) Sterling issued a press release on April 19, 2007 that
disclosed, for the first time, that it was
investigating "irregularities related to certain
financing contracts" at EFI;
(b) On April 30, Sterling announced that based on
information that it received from its internal
investigation related to EFI, it expects to
be "restating financial statements for the years 2004
through 2006," and that all of Sterling's financial
statements and earnings releases issued during this
period "should no longer be relied upon due to the
expected material impact of these irregularities;"
(c) After the markets had closed on May 24, Sterling issued
another press release that disclosed that the
"irregularities" at EFI were actually "a direct result
of collusion by EFI employees," and that Sterling had
terminated five (5) employees as a result of its
investigation;
(d) The May 24 press release also disclosed that
Sterling's investigation "revealed evidence of a
sophisticated loan scheme, orchestrated deliberately
by certain EFI officers and employees over an extended
period of time, to conceal credit delinquencies,
falsify financing contracts and related documents, and
subvert Sterling's established internal controls and
reporting systems," according to the complaint;
(e) Sterling common stock, which closed at $16.16 per
share on May 24, fell by $6.19 upon the news contained
in the May 24 press release, closing at $9.97
per share on May 25;
(f) The $9.97 per share price at which SLFI closed on
May 25 represents a decrease of $20.42 per share from
the highest price at which Sterling common stock
traded during the Class Period ($30.39) -- a
decrease of nearly two-thirds (2/3) of the value of
the stock.
Lead plaintiff filing deadline is July 24, 2007.
For more information, contact:
Nicholas E. Chimicles, Esq.
Benjamin F. Johns, Esq.
Chimicles & Tikellis LLP
361 West Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
Toll Free: (866) 399-2487
Fax: (610) 649-3633
Website: http://www.chimicles.com
Email: bfj@chimicles.com
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice Mendoza, and Mary
Grace Durana, Editors.
Copyright 2007. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or publication in
any form (including e-mail forwarding, electronic re-mailing and
photocopying) is strictly prohibited without prior written permission of the
publishers.
Information contained herein is obtained from sources believed to be
reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via e-mail.
Additional e-mail subscriptions for members of the same firm for the term of
the initial subscription or balance thereof are $25 each. For subscription
information, contact Christopher Beard at 240/629-3300.
* * * End of Transmission * * *