/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070904.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 4, 2007, Vol. 9, No. 175 Headlines ALEXICO CORP: Suit Claims Illegal Sale of Car Theft Insurance APPLE CANADA: Certification of Canadian iPods Suit Suspended APPLE INC: Sept. 28 Hearing Set for Demurrer in “Bader” Lawsuit APPLE INC: Awaits Ruling on Calif. iPod Hearing Loss Lawsuit APPLE INC: Discovery Ongoing in Calif. Trade Practices Suit APPLE INC: In Talks to Settle Lawsuit Over 65W Power Adapters APPROVED FINANCIAL: Accused of Fair Housing Act Violations BEST BUY: Calif. Retail Workers’ Lawsuit Granted Certification CAREMARK RX: Del. Court Approves Settlement of CVS Merger Suit CAREMARK RX: Continues to Face “Moeckel” ERISA Suit in Tenn. CAREMARK RX: Ala. Court Mulls Motions in “Lauriello” Litigation CAREMARK RX: Still Faces Pharmacy Benefit Managers Lawsuit CAREMARK RX: Discovery Ongoing in Cal. Suit by Non-ERISA Members CVS CAREMARK: Discovery Ongoing in Calif. Pharmacists’ Suit CHECKFREE CORP: Del. Suit Aims to Block $4.4B Sale to Fiserv CHOICEPOINT INC: FCRA Violations Suit in Cal. Now Dismissed CHOICEPOINT INC: Renews Motion to Dismiss Ga. Securities Suit CHOICEPOINT INC: Ga. ERISA Suit Plaintiffs Appeal Case’s Nixing CHOICEPOINT INC: Fla. Court Denies Motion to Stay DPPA Suit Deal CHOICEPOINT INC: Tex. “Taylor” Case Enjoined From Proceeding DAVITA INC: Faces Suit in Calif. Over Use of “Epogen” Drug DONNAMX INC: Recalls China-Made Toothpaste with “Diglycol” ESS TECHNOLOGY: $3.5M Securities Suit Deal Granted Final Okay IFS INC: Recalls Sandwiches Because of Possible Health Risk ISRAEL: Legal Group Appeals “Ya’alon” War Crimes Suit Dismissal OREGON SCIENTIFIC: Recalls Thousands of Defective Weather Radios RITZ-CARLTON: Staffers File Lawsuit for Unpaid Overtime Wages UNITED STATES: Scientists Challenge Extensive Background Checks New Securities Fraud Cases AMERICAN MORTGAGE: Susman Heffner Files Securities Suit in N.Y. COUNTRYWIDE FINANCIAL: Labaton Sucharow Files Securities Suit ********* ALEXICO CORP: Suit Claims Illegal Sale of Car Theft Insurance ------------------------------------------------------------- Alexico Corp., Cherry Hills Nissan and ABC Corps. are facing a class-action complaint filed Aug. 29 in the U.S. District Court for the District of New Jersey over alleged diversity fraud. Named plaintiff Todd D. Falkenberg accuses these companies of illegally selling car theft insurance. The suit is “Falkenberg et al. v. Alexico Corp. et al, Case No. 1:07-cv-04149- RBK-JS,” filed in the U.S, District Court for the District of New Jersey under Judge Robert B. Kugler. Representing plaintiffs is: Patrick Howard Saltz Mongeluzzi Barrett & Bendesky, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Phone: (215) 496-8282 E-mail: phoward@smbb.com APPLE CANADA: Certification of Canadian iPods Suit Suspended ------------------------------------------------------------ A Canadian Court has postponed class certification proceedings in the matter, “Royer-Brennan v. Apple Computer, Inc. and Apple Canada, Inc.” This action alleges that the Company’s iPod music players, and the ear bud headphones sold with them, are inherently defective in design and are sold without adequate warnings concerning the risk of noise-induced hearing loss by iPod users. The complaint was filed in Montreal, Quebec, Canada, on Feb. 1, 2006, and is seeking authorization to institute a class action on behalf of iPod purchasers in Quebec. At the request of plaintiffs’ counsel, the court has postponed class certification proceedings in the action indefinitely, according to the company's Aug. 7, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer, Inc., designs, manufactures and markets personal computers and related software, services, peripherals and networking solutions. It also designs, develops and markets a line of portable digital music players along with accessories, including the online sale of third-party audio and video products. Apple Inc.'s products and services include the iPod line of portable digital music players. APPLE INC: Sept. 28 Hearing Set for Demurrer in “Bader” Lawsuit --------------------------------------------------------------- A Sept. 28, 2007 hearing is scheduled for a demurrer in the purported class action, “Bader v. Anderson, et al.,” which names Apple, Inc. as a defendant. Plaintiff filed the purported shareholder derivative action against the Company and each of its then current executive officers and members of its Board of Directors on May 19, 2005 in Santa Clara County Superior Court asserting claims for breach of fiduciary duty, material misstatements and omissions and violations of California Business & Professions Code Section 17200 (unfair competition). Plaintiff alleges that the Company’s March 14, 2005, proxy statement was false and misleading for failure to disclose certain information relating to the Apple Computer, Inc. Performance Bonus Plan, which was approved by shareholders at the annual meeting held on April 21, 2005. Plaintiff, who ostensibly brings suit on the Company’s behalf, has made no demand on the Board of Directors and alleges that such demand is excused. Plaintiff seeks injunctive and other relief for purported injury to the Company. On July 27, 2005, plaintiff filed an amended complaint alleging that, in addition to the purported derivative claims, adoption of the bonus plan and distribution of the proxy statement describing that plan also inflicted injury on her directly as an individual shareholder. On Jan. 10, 2006, the Court sustained defendants’ demurrer to the amended complaint, with leave to amend. Plaintiff filed a second amended complaint on Feb. 7, 2006, and the Company filed a demurrer. After a hearing on June 13, 2006, the Court sustained the demurrer without leave to amend as to the non-director officers and with leave to amend as to the directors. On July 24, 2006, plaintiff filed a third amended complaint, which purports to bring claims derivatively as well as directly on behalf of a class of common stockholders who have been or will be harmed by virtue of the allegedly misleading proxy statement. In addition to reasserting prior causes of action, the third amended complaint included a claim that the Company violated the terms of the plan, and a claim for waste related to restricted stock unit grants to certain officers in 2003 and 2004 and an option grant to the company’s chief executive in January 2000. The Company filed a demurrer to the third amended complaint. On Jan. 30, 2007, the Court sustained the Company’s demurrer with leave to amend. Plaintiff filed a fourth amended complaint on May 8, 2007, and the Company filed a demurrer, which will be heard on Sept. 28, 2007. Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer, Inc., designs, manufactures and markets personal computers and related software, services, peripherals and networking solutions. It also designs, develops and markets a line of portable digital music players along with accessories, including the online sale of third-party audio and video products. APPLE INC: Awaits Ruling on Calif. iPod Hearing Loss Lawsuit ------------------------------------------------------------ The U.S. District Court for the Northern District of California has yet to rule on a motion seeking for the dismissal of a purported class action filed against Apple Inc. in California alleging that defects in its iPod causes hearing loss to users. The action, "Birdsong v. Apple Computers Inc.," alleges that the company’s iPod music players, and the ear bud headphones sold with them, are inherently defective in design and are sold without adequate warnings concerning the risk of noise-induced hearing loss by iPod users. The Birdsong action was initially filed on Jan. 30, 2006 in the U.S. District Court for the Western District of Louisiana. It asserts causes of action on behalf of a purported Louisiana class of iPod purchasers. A similar action, "Patterson v. Apple Computer, Inc.," was filed on Jan. 31, 2006 in the U.S. District Court for the Northern District of California asserting California causes of action on behalf of a purported class of all iPod purchasers within the four-year period before Jan. 31, 2006. The Birdsong action was transferred to the Northern District of California, and the Patterson action was dismissed. An amended complaint was subsequently filed in Birdsong, dropping the Louisiana law-based claims and adding California law-based claims equivalent to those in “Patterson.” After the company filed a motion to dismiss on Nov. 3, 2006, plaintiffs agreed not to oppose the motion and filed a second amended complaint on Jan. 16, 2007. That complaint alleges California law-based claims for breaches of implied and express warranties, violations of California Business & Professions Code Section 17200 (unfair competition), California Business & Professions Code Section 17500 (false advertising), the Consumer Legal Remedies Act and negligent misrepresentation on behalf of a putative nationwide class and a Louisiana law-based claim for redhibition for a Louisiana sub-class. On March 1, 2007, the Company filed a motion to dismiss the California law based claims. The court held a hearing on the motion to dismiss on June 4, 2007 but has not yet issued a ruling. Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer, Inc., designs, manufactures and markets personal computers and related software, services, peripherals and networking solutions. It also designs, develops and markets a line of portable digital music players along with accessories, including the online sale of third-party audio and video products. Apple Inc.'s products and services include the iPod line of portable digital music players. APPLE INC: Discovery Ongoing in Calif. Trade Practices Suit ----------------------------------------------------------- Discovery is still ongoing in the class action, "Branning et al. v. Apple Computer, Inc.," which is alleging violations of the California’s trade laws. Plaintiffs originally filed the purported class action in San Francisco County Superior Court on Feb. 17, 2005. The initial complaint alleged violations of California Business Professions Code 17200 (unfair competition) and violation of the Consumer Legal Remedies Act regarding a variety of purportedly unfair and unlawful conduct including, but not limited to, allegedly selling used computers as new and failing to honor warranties. Plaintiffs also brought causes of action for misappropriation of trade secrets, breach of contract, and violation of the Song Beverly Act. Plaintiffs requested unspecified damages and other relief. On May 9, 2005, the court granted the company’s motion to transfer the case to Santa Clara County Superior Court. On May 2, 2005, plaintiffs filed an amended complaint adding two new named plaintiffs and three new causes of action including a claim for treble damages under the Cartwright Act (California Business and Professions Code 16700 et seq.), and a claim for false advertising. The company filed a demurrer to the amended complaint, which the court sustained in its entirety on Nov. 10, 2005. The court granted Plaintiffs leave to amend and they filed an amended complaint on Dec. 29, 2005. Plaintiffs’ amended complaint adds three additional plaintiffs and alleges many of the same factual claims as the previous complaints such as alleged selling of used equipment as new, alleged failure to honor warranties and service contracts for the consumer plaintiffs, and alleged fraud related to the opening of the Apple Retail stores. Plaintiffs continue to assert causes of action for unfair competition (17200), violations of the CLRA, breach of contract, misappropriation of trade secrets, violations of the Cartwright Act and allege new causes of action for fraud, conversion and breach of the implied covenant of good faith and fair dealing. The company filed a demurrer to the amended complaint on Jan. 31, 2006, which the court sustained on March 3, 2006 on sixteen of seventeen causes of action. Plaintiffs filed an amended complaint adding one new plaintiff. The company filed a demurrer, which was granted in part on Sept. 9, 2006. Plaintiffs filed a further amended complaint on Sept. 21, 2006. On Oct. 2, 2006, the company filed an answer denying all allegations and asserting numerous affirmative defenses. The case is in discovery. The company reported no development in the matter in it's Aug. 7, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer, Inc., designs, manufactures and markets personal computers and related software, services, peripherals and networking solutions. It also designs, develops and markets a line of portable digital music players along with accessories, including the online sale of third-party audio and video products. APPLE INC: In Talks to Settle Lawsuit Over 65W Power Adapters ------------------------------------------------------------- A purported consumer fraud class action against Apple Inc. over problems with its 65W Power Adapters for iBooks and Powerbooks has been suspended pending ongoing settlement discussions. The suit is “Gordon v. Apple Computer, Inc.,” and was filed on Aug. 31, 2006 in the U.S. District Court for the Northern District of California on behalf of a purported nationwide class of consumers who purchased 65W Power Adapters for iBooks and Powerbooks between November 2002 and the present. The complaint alleges various problems with the 65W Adapter, including fraying, sparking and premature failure. Plaintiffs allege violations of California Business & Professions Code Section 17200 (unfair competition), the Consumer Legal Remedies Act, the Song-Beverly Consumer Warranty Act and breach of warranties. The complaint seeks damages and equitable relief. The Company filed an answer on Oct. 20, 2006 denying the material allegations and asserting numerous affirmative defenses. The litigation has been suspended pending ongoing settlement discussions, according to the company's Aug. 7, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer, Inc., designs, manufactures and markets personal computers and related software, services, peripherals and networking solutions. It also designs, develops and markets a line of portable digital music players along with accessories, including the online sale of third-party audio and video products. APPROVED FINANCIAL: Accused of Fair Housing Act Violations ---------------------------------------------------------- A class-action complaint filed Aug. 30 in the U.S. District Court for the Northern District of Illinois accuses Approved Financial Inc., Option One Mortgage Corp., and U.S. Bank NA of violating the Fair Housing Act. Named plaintiff Keisha Chavers accuses these lenders -- as trustee for JP Morgan Mortgage Acquisition Corp. 2005-OPT2 Asset Backed Pass through Certificates Series 2005-OPT2 -- of overcharging minorities, in violation of housing and credit laws. The suit is “Chavers v. Option One Mortgage Corp. et al., Case No. 1:07-cv- 04916,” filed in the U.S. District Court for the Northern District of Illinois under Judge Elaine E. Bucklo. Representing plaintiffs are: Cathleen M. Combs Daniel A. Edelman Albert F Hofeld, Jr. James O. Latturner Edelman, Combs, Latturner & Goodwin, LLC 120 South LaSalle Street, 18th Floor Chicago, IL 60603 Phone: (312) 739-4200 E-mail: ccombs@edcombs.com or courtecl@edcombs.com or ahofeld@edcombs.com or jlatturner@edcombs.com BEST BUY: Calif. Retail Workers’ Lawsuit Granted Certification -------------------------------------------------------------- The U.S. District Court for the Northern District of California granted certification to a lawsuit brought against Best Buy Co. by retail workers. The judge ruled that over 16,000 Best Buy California retail workers may join the lawsuit alleging that the company refused to pay employees for time spent undergoing security checks. Over Best Buy's objections that not all of its workforce was actually required to undergo searches, the Court ruled that the company's policies were widespread and that allowing the massive number of employees to sue collectively was more efficient than permitting separate lawsuits. The lawsuit, filed in March 2006, claims that Best Buy's state-wide practices are unlawful in that they fail to compensate workers for security check "waiting time" and deny them the full meal and rest breaks that California law demands. While Best Buy denies these allegations, Scott Cole & Associates' attorneys look forward to prosecuting a case that seeks compensation for every one of Best Buy's California retail employees. "Yesterday, we represented one client. Today, we're honored to say that we're fighting for thousands of workers' rights to be paid for their work," says Scott Cole, Esq., the lead attorney for the class. In light of the ruling, the parties will be proceeding toward trial, an event that the class attorneys excitedly await. If successful there, thousands of Best Buy workers could recover compensation for years of lost wages. According to Mr. Cole, "The right to be paid for all time worked is an elementary concept that many large employers seem to ignore. We're looking forward to showing a jury what Best Buy has been up to." The suit is “Kurihara v. Best Buy Co., Inc., Case No. 3:06-cv-01884-MHP,” filed in the U.S. District Court for the Northern District of California under Judge Marilyn H. Patel. Representing plaintiffs are: Kevin Robert Allen 1970 Broadway, Ninth Floor Oakland, CA 94612 Phone: 510-891-9800 Fax: 510-891-7030 E-mail: kallen@scalaw.com - and - Matthew Roland Bainer Clyde Hobbs Charlton Scott Edward Cole cott Cole & Associates, APC 970 Broadway, Ninth Floor, Suite 950 Oakland, CA 94612 Phone: 510-891-9800 Fax: 510-891-7030 E-mail: mrbainer@scalaw.com or ccharlton@scalaw.com or scole@scalaw.com Representing defendants are: Hernaldo Jose Baltodano Thomas Allen Miller Robins, Kaplan, Miller & Ciresi L.L.P. 2049 Century Park East, Suite 3700 Los Angeles, CA 90067 Phone: 310-552-0130 Fax: 310-229-3800 E-mail: HJBaltodano@rkmc.com or tamiller@rkmc.com CAREMARK RX: Del. Court Approves Settlement of CVS Merger Suit -------------------------------------------------------------- The Delaware Chancery Court approved a settlement of a purported class action filed against Caremark RX Inc. over its merger agreement with CVS Corp. Nov. 1, 2006, CVS Corp. and Caremark RX entered into a definitive merger agreement, and the merger closed on March 22, 2007 following receipt of required shareholder approvals. Prior to approval and closing of the merger, several putative class actions were filed in the Tennessee state court, the Tennessee federal court and the Delaware Chancery Court alleging, among other things, that Caremark’s board of directors breached their fiduciary duties by approving the merger. The Tennessee state and federal cases were either stayed or held in abeyance pending the outcome of the Delaware Chancery Court litigation. The Delaware case was filed by the Louisiana Municipal Police Employees’ Retirement System and later joined by R.W. Lodge of Free & Accepted Masons of Pennsylvania, purportedly on behalf of Caremark’s stockholders. On March 8, 2007, the parties reached an agreement in principle to settle the Delaware case and informed the Delaware Chancery Court of their agreement. A stipulation of settlement was entered into by the parties on April 13, 2007, which provided, among other things, that: -- the plaintiffs will dismiss the case and release the defendants from claims asserted in the action, and -- the defendants will not oppose plaintiffs’ petition for an award of attorneys’ fees and expenses not to exceed $20 million. On June 8, 2007, the Delaware Chancery Court conducted a telephonic hearing and approved the settlement, according to CVS Caremark Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Caremark Rx, Inc. -- http://www.caremark.com-- is a pharmaceutical services company. Its operations are conducted primarily through its subsidiaries, Caremark Inc. and CaremarkPCS. Caremark Rx’s customers are sponsors of health benefit plans (employers, unions, government employee groups, insurance companies and managed care organizations) and individuals located throughout the U.S. The Company dispenses pharmaceuticals to eligible participants in benefit plans maintained by its customers and utilizes its information systems to perform safety checks, drug interaction screening and generic substitution. In addition, Caremark Rx is a provider of drug benefits to eligible beneficiaries under the federal government’s Medicare Part D program. In March 2007, CVS Corp. completed the acquisition of Caremark Rx. The combined company is named CVS Caremark Corp. CAREMARK RX: Continues to Face “Moeckel” ERISA Suit in Tenn. ------------------------------------------------------------- Discovery continues in the class action, "Moeckel v. Caremark RX, Inc., et al.," which is pending in the U.S. District Court for the Middle District of Tennessee, the company said at its Aug. 8, 2007 regulatory filing for the quarter ended June 30, 2007. In July 2004, Caremark Rx and Caremark were served with a putative private class action filed by Robert Moeckel, purportedly on behalf of the John Morrell Employee Benefits Plan, which is an employee benefit plan sponsored by a former Caremark client. The lawsuit, which seeks unspecified damages and injunctive relief, alleges that Caremark acts as a fiduciary under Employee Retirement Income Security Act and has breached certain alleged fiduciary duties under ERISA. This lawsuit makes allegations similar to those made in prior cases against Caremark’s subsidiaries Caremark Inc. and AdvancePCS, which have been dismissed based on substantive rulings that the applicable subsidiary does not act as an ERISA fiduciary, dismissed based on threshold procedural grounds, or dismissed voluntarily by the plaintiffs. The suit is "Moeckel v. Caremark RX, Inc., et al., Case No. 3:04-cv-00633," filed in the U.S. District Court for the Middle District of Tennessee under Judge Aleta A. Trauger. Representing the plaintiffs are: Rebecca Cothran Blair, Esq. John A. Day, Esq. Branham & Day, P.C. 5300 Maryland Way, Suite 300 Brentwood, TN 37027 Phone: (615) 742-4880 E-mail: rblair@branhamday.com jday@branhamday.com - and - Mike Miller, Esq. Solberg Stewart Miller & Tjon 1129 Fifth Avenue South, P.O. Box 1897 Fargo, ND 58107-1897 Phone: (701) 237-3166 E-mail: mmiller@solberglaw.com Representing the defendants are: Paul Savage Davidson, Esq. Joseph A. Woodruff, Esq. Jennifer L. Weaver, Esq. Waller, Lansden, Dortch & Davis Nashville City Center, 511 Union Street, Suite 2100, Nashville, TN 37219 Phone: (615) 244-6380 Fax: (615) 244-6380 E-mail: pdavidson@wallerlaw.com joseph.woodruff@wallerlaw.com jennifer.weaver@wallerlaw.com - and - Frank E. Pasquesi, Esq. Ungaretti & Harris 3500 Three First National Plaza Chicago, IL 60602-4283 Phone: (312) 977-4400 CAREMARK RX: Ala. Court Mulls Motions in “Lauriello” Litigation --------------------------------------------------------------- Caremark Rx Inc. filed a motion to dismiss a complaint in intervention filed by Frank McArthur in Alabama state court over the 1999 agreement to settle various securities class action and derivative lawsuits filed against Caremark, among others. Caremark was named in a putative class action filed in 2003 in Alabama state court by John Lauriello, purportedly on behalf of participants in the 1999 settlement of various securities class action and derivative lawsuits against Caremark and others. Other defendants include insurance companies that provided coverage to Caremark with respect to the settled lawsuits. The Lauriello lawsuit seeks approximately $3.2 billion in compensatory damages plus other non-specified damages based on allegations that the amount of insurance coverage available for the settled lawsuits was misrepresented and suppressed. A similar lawsuit was filed the next month by Frank McArthur, also in Alabama state court, naming Caremark, several insurance companies and attorneys and law firms involved in the 1999 settlement. This lawsuit was subsequently stayed by the court as a later-filed class action. In 2005, the trial court in the Lauriello case issued an order allowing the Lauriello case to proceed on behalf of the settlement class in the 1999 securities class action. Mr. McArthur then sought to intervene in the Lauriello case and to challenge the adequacy of Mr. Lauriello as class representative and his lawyers as class counsel. The trial court denied Mr. McArthur’s motion to intervene, but the Alabama Supreme Court subsequently ordered the lower court to vacate its prior order on class certification and allow McArthur to intervene. Caremark and other defendants have filed motions to dismiss the complaint in intervention filed by Mr. McArthur, and these motions are pending, according to the CVS Caremark Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Caremark Rx, Inc. -- http://www.caremark.com-- is a pharmaceutical services company. Its operations are conducted primarily through its subsidiaries, Caremark Inc. and CaremarkPCS. Caremark Rx’s customers are sponsors of health benefit plans (employers, unions, government employee groups, insurance companies and managed care organizations) and individuals located throughout the U.S. The Company dispenses pharmaceuticals to eligible participants in benefit plans maintained by its customers and utilizes its information systems to perform safety checks, drug interaction screening and generic substitution. In addition, Caremark Rx is a provider of drug benefits to eligible beneficiaries under the federal government’s Medicare Part D program. In March 2007, CVS Corp. completed the acquisition of Caremark Rx. The combined company is named CVS Caremark Corp. CAREMARK RX: Still Faces Pharmacy Benefit Managers Lawsuit ---------------------------------------------------------- Caremark Rx, Inc. continues to face the purported class action, “In Re Pharmacy Benefit Managers Antitrust Litigation,” pending in Pennsylvania federal court. Initially, various lawsuits have been filed alleging that CVS Caremark Corp. and its subsidiaries Caremark Inc. and AdvancePCS have violated applicable antitrust laws in establishing and maintaining retail pharmacy networks for client health plans. Bellevue Drug Litigation In August 2003, Bellevue Drug Co., Robert Schreiber, Inc. d/b/a Burns Pharmacy and Rehn-Huerbinger Drug Co. d/b/a Parkway Drugs #4, together with Pharmacy Freedom Fund and the National Community Pharmacists Association filed a putative class action against AdvancePCS in Pennsylvania federal court, seeking treble damages and injunctive relief. The claims were initially sent to arbitration based on contract terms between the pharmacies and AdvancePCS. North Jackson Litigation In October 2003, two independent pharmacies, North Jackson Pharmacy, Inc. and C&C, Inc. d/b/a Big C Discount Drugs, Inc. filed a putative class action complaint in Alabama federal court against Caremark, Caremark Inc. AdvancePCS and two Pharmacy Benefit Manager (PBM) competitors, seeking treble damages and injunctive relief. The case against Caremark and Caremark Inc. was transferred to Illinois federal court, and the AdvancePCS case was sent to arbitration based on contract terms between the pharmacies and AdvancePCS. The arbitration was then stayed by the parties pending developments in Caremark’s court case. Consolidation In August 2006, the Bellevue case and the North Jackson Pharmacy case were transferred to Pennsylvania federal court by the Judicial Panel on Multidistrict Litigation for coordinated and consolidated proceedings with other cases before the panel, including cases against other PBMs. Caremark has appealed a decision which vacated the order compelling arbitration and staying the proceedings in the Bellevue case to the U.S. Court of Appeals for the Third Circuit. Motions for class certification in the coordinated cases within the multidistrict litigation, including the North Jackson Pharmacy case, remain pending, according to the CVS Caremark Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The consolidated action is now known as “In Re Pharmacy Benefit Managers Antitrust Litigation.” Caremark Rx, Inc. -- http://www.caremark.com-- is a pharmaceutical services company. Its operations are conducted primarily through its subsidiaries, Caremark Inc. and CaremarkPCS. Caremark Rx’s customers are sponsors of health benefit plans (employers, unions, government employee groups, insurance companies and managed care organizations) and individuals located throughout the U.S. The Company dispenses pharmaceuticals to eligible participants in benefit plans maintained by its customers and utilizes its information systems to perform safety checks, drug interaction screening and generic substitution. In addition, Caremark Rx is a provider of drug benefits to eligible beneficiaries under the federal government’s Medicare Part D program. In March 2007, CVS Corp. completed the acquisition of Caremark Rx. The combined company is named CVS Caremark Corp. CAREMARK RX: Discovery Ongoing in Cal. Suit by Non-ERISA Members ---------------------------------------------------------------- Discovery is ongoing in a purported class action that was filed against Caremark Rx Inc. and Caremark Inc. in the Superior Court of the State of California on behalf of all California members of non-ERISA health plans and/or all California taxpayers. In March and April of 2003, AdvancePCS, and subsequently Caremark Rx and Caremark, were served with a complaint filed by Robert Irwin in the Superior Court of the State of California. The plaintiff filed the action individually and purportedly as a private attorney general on behalf of the general public of the State of California, the non-ERISA health plans who contract with pharmacy benefit management (PBM) companies and the individuals who are members of those plans. Other PBM companies are also named as defendants in this lawsuit, which alleges violations of the California unfair competition law. Specifically, the lawsuit challenges alleged business practices of PBMs, including practices relating to pricing, rebates, formulary management, data utilization and accounting and administrative processes. It seeks injunctive relief, restitution and disgorgement of revenues. Discovery in the case is ongoing, according to CVS Caremark Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Caremark Rx, Inc. -- http://www.caremark.com-- is a pharmaceutical services company. Its operations are conducted primarily through its subsidiaries, Caremark Inc. and CaremarkPCS. Caremark Rx’s customers are sponsors of health benefit plans (employers, unions, government employee groups, insurance companies and managed care organizations) and individuals located throughout the U.S. The Company dispenses pharmaceuticals to eligible participants in benefit plans maintained by its customers and utilizes its information systems to perform safety checks, drug interaction screening and generic substitution. In addition, Caremark Rx is a provider of drug benefits to eligible beneficiaries under the federal government’s Medicare Part D program. In March 2007, CVS Corp. completed the acquisition of Caremark Rx. The combined company is named CVS Caremark Corp. CVS CAREMARK: Discovery Ongoing in Calif. Pharmacists’ Suit ----------------------------------------------------------- Discovery is ongoing in a purported class action filed against CVS Caremark Corp. in California state court by Gabe Tong, purportedly on behalf of current and former pharmacists working in the company’s California stores. The lawsuit alleges that CVS failed to provide pharmacists in the purported class with meal and rest periods or to pay overtime as required under California law. Discovery in the case is ongoing, according to the CVS Caremark Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. Caremark Rx, Inc. -- http://www.caremark.com-- is a pharmaceutical services company. Its operations are conducted primarily through its subsidiaries, Caremark Inc. and CaremarkPCS. Caremark Rx’s customers are sponsors of health benefit plans (employers, unions, government employee groups, insurance companies and managed care organizations) and individuals located throughout the U.S. The Company dispenses pharmaceuticals to eligible participants in benefit plans maintained by its customers and utilizes its information systems to perform safety checks, drug interaction screening and generic substitution. In addition, Caremark Rx is a provider of drug benefits to eligible beneficiaries under the federal government’s Medicare Part D program. In March 2007, CVS Corp. completed the acquisition of Caremark Rx. The combined company is named CVS Caremark Corp. CHECKFREE CORP: Del. Suit Aims to Block $4.4B Sale to Fiserv ------------------------------------------------------------- CheckFree Corp. and Fiserv Inc. are facing a complaint seeking class-action status in Delaware Chancery Court in Wilmington aiming to block a $4.4 billion sale of Checkfree to Fiserv, reports say. On Aug. 2, Brookfield-based Fiserv, which manages check-processing and cash machines for 17,000 companies, announced plans to purchase CheckFree -- which makes software to run Internet-banking services -- to add electronic systems for online-bill paying. CheckFree's technology processes more than 1 billion transactions a year. Fiserv said the combination would allow it to eliminate about $100 million a year in expenses and add more than $125 million in revenue. CheckFree investor, Alice Tawil, said CheckFree directors failed to conduct a fair bidding process and neglected to disclose whether Fiserv's offer was the highest price available. She wants a judge to bar the transaction or award damages if the deal is consummated. "As a result of defendants' unlawful actions, plaintiff and other members of the class will be irreparably damaged in that they will not receive their fair portion of the value of the company's assets and business," Ms. Tawil said in the complaint. She also questioned the impartiality of company directors who entered into retention agreements with Fiserv as part of the deal. As part of the deal, Fiserv agreed to indemnify the directors for any expense or judgments associated with that suit, according to Ms. Tawil's complaint. CheckFree directors failed to disclose details of the sale that are important for a shareholder vote, she said in the complaint. Specifically, the company provided insufficient information concerning the financial analysis done by Goldman Sachs Group Inc., she said. Additionally, the company failed to disclose a conflict of interest for a director who's a former senior adviser to the bank. "The individual defendants have initiated a process to sell CheckFree that imposes a heightened fiduciary responsibility on them and requires enhanced scrutiny by the court," Ms. Tawil said in her complaint. According to a Bloomberg News report, CheckFree spokeswoman Sheryl Roehl and Fiserv spokeswoman Melanie Tolley didn't return phone messages seeking comment. CHOICEPOINT INC: FCRA Violations Suit in Cal. Now Dismissed ----------------------------------------------------------- A consolidated class action in California that generally alleges violations of the Fair Credit Reporting Act against Choicepoint, Inc. has been dismissed after the company settled the case for $117,500. The Company was a defendant in a purported class action that resulted from the consolidation of four previously filed class actions in the U.S. District Court for the Central District of California, “Harrington, et al. v ChoicePoint, CV05-1294.” A similar purported class action lawsuit was filed against the Company in the U.S. District Court for the Northern District of Georgia, “Wilson v. ChoicePoint Inc., 1-05-CV-1604.” On July 10, 2006, the California court consolidated the Wilson and Harrington cases. The court granted the Company’s motion for summary judgment on Oct. 12, 2006. The Company entered into a settlement agreement with all of the plaintiffs on Feb. 9, 2007, pursuant to which it settled all outstanding claims for a total of $117,500, and as a result, the case was dismissed on June 7, 2007. The suit is “Harrington, et al. v ChoicePoint, CV05-1294,” filed in the U.S. District Court for the Central District of California under Judge Mariana R. Pfaelzer with referral to Judge Jeffrey W. Johnson. Representing the plaintiffs are: Robert M. Bramson, Esq. Bramson Plutzik Mahler & Birkhaeuser 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598 Phone: 925-945-0200 E-mail: rbramson@bramsonplutzik.com - and - John Glugoski, Esq. Righetti & Wynne 456 Montgomery St., Ste. 1400 San Francisco, CA 94104 Phone: 415-983-0900 E-mail: jglugoski@righettilaw.com Representing the defendants are: Jeffrey A. Kent, Esq. Poindexter & Doutre 624 S. Grand Ave., Ste. 2420 Los Angeles, CA 90017-3325 Phone: 213-628-8297 E-mail: jkent@pdlawyers.com - and - Laurie S. Fulton, Esq. Williams & Connolly 725 12th Street, Northwest Washington, DC 20005-5901 Phone: 202-434-5787 CHOICEPOINT INC: Renews Motion to Dismiss Ga. Securities Suit ------------------------------------------------------------- The U.S. District Court for the Northern District of Georgia has yet to rule on a renewed motion to dismiss a consolidated securities fraud class action field against ChoicePoint, Inc., according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. On March 4, 2005, a purchaser of the company's securities filed a lawsuit against the company and certain of its officers in the U.S. District Court for the Central District of California. The complaint alleged that the defendants violated federal securities laws by issuing false or misleading information in connection with the fraudulent data access. Additional similar complaints were filed by other purchasers of the company's securities in the U.S. District Court for the Central District of California on March 10, 2005 and in the Northern District of Georgia on March 11, 2005, March 22, 2005 and March 24, 2005. By court order, the cases pending in the California were transferred to the U.S. District Court for the Northern District of Georgia. By order dated Aug. 5, 2005, the court consolidated the pending cases into a single consolidated action, "In re ChoicePoint Inc. Securities Litigation, 1:05-CV-00686." On Nov. 14, 2005, the court entered an order appointing the Alaska Laborers Employers Retirement Fund as lead plaintiff for the proposed plaintiff class. A consolidated amended complaint was filed on Jan. 13, 2006, seeking certification as a class action and unspecified compensatory damages, attorneys' fees, costs, and other relief. On March 14, 2006, the defendants filed a motion to dismiss the consolidated amended complaint, which remains pending before the court. On Nov. 21, 2006, the court entered an order denying the defendants’ motion to dismiss. Thereafter, defendants moved the court to certify its order for immediate review. The court granted that motion on Jan. 10, 2007. On Jan. 25, 2007, the defendants filed a petition asking the U.S. Circuit Court of Appeals for the Eleventh Circuit to allow them to appeal on an interlocutory basis. On May 3, 2007, the defendants’ petition was denied. As a result, the District Court re-opened the case. Based on the subsequent U.S. Supreme Court decision in “Tellabs, Inc. v. Makor Issues & Rights, Ltd.,” which requires District Courts to consider competing inferences of scienter rather than just those most favorable to a plaintiff, the Company filed a renewed motion to dismiss which is currently pending before the District Court. The suit is "In re ChoicePoint Inc. Securities Litigation, 1:05- CV-00686," filed in the U.S. District Court for the Northern District of Georgia under Judge Jack T. Camp. Representing the plaintiffs are: Martin D. Chitwood, Esq. Chitwood & Harley, Esq. 1230 Peachtree Street, N.E. 2300 Promenade II Atlanta, GA 30309 Phone: 404-873-3900 E-mail: mdc@classlaw.com Edward P. Dietrich, Esq. Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, LLP Suite 1900, 655 West Broadway San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 E-mail: edd@lerachlaw.com - and - Christopher Kim, Esq. Lim Ruger & Kim Suite 2800, 1055 West 7th Street Los Angeles, CA 90017 Phone: 213-955-9500 Representing the defendants is: Tracy Cobb Braintwain, Esq. King & Spalding, LLP 1180 Peachtree Street, NE Atlanta, GA 30309-3521 Phone: 404-572-2714 Fax: 404-572-5139 E-mail: tbraintwain@kslaw.com CHOICEPOINT INC: Ga. ERISA Suit Plaintiffs Appeal Case’s Nixing --------------------------------------------------------------- Plaintiffs in a purported class action against ChoicePoint, Inc. that is alleging violations of the Employee Retirement Income Security Act (ERISA) are appealing the dismissal of the matter to the U.S. Court of Appeals for the Eleventh Circuit. On May 20, 2005, the class action was filed in the in the U.S. District Court for the Northern District of Georgia against the company and certain individuals who are alleged to be fiduciaries under the ChoicePoint, Inc. 401 (K) Profit Sharing Plan. The suit alleged violations of ERISA fiduciary rules through the acquisition and retention of ChoicePoint stock by the Plan on and after Nov. 24, 2004. Plaintiffs sought compensatory damages, injunctive and equitable relief, attorneys' fees and costs. On April 14, 2006, the defendants filed a motion to dismiss, which the court granted on March 7, 2007, disposing of the case in its entirety. On March 21, 2007, a motion for reconsideration was filed by the plaintiffs, which was eventually denied on June 18, 2007. On July 12, 2007, Plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Eleventh Circuit, which was docketed on July 16, 2007, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Curtis R. Mellot v. ChoicePoint Inc., et al., Case No. 1:05-cv- 01340-JTC," filed in the U.S. District Court for the Northern District of Georgia under Judge Jack T. Camp. Representing the plaintiffs are: Thomas J. McKenna, Esq. Gainey & McKenna, 4th Floor, 295 Madison Avenue New York, NY 10017 Phone: 212-983-1300 Fax: 212-983-0383 E-mail: tjmckenna@gaineyandmckenna.com Lisa T. Millican, Esq. Greenfield Millican, P.C. 800 The Grant Building, 44 Broad Street NW Atlanta, GA 30303 Phone: 404-522-1122 E-mail: lisa.millican@lawofficepc.com Ronen Sarraf, Esq. Sarraf Gentile, LLP 485 Seventh Avenue, Suite 1005, Suite 1005 New York, NY 10018 Phone: 212-868-3610 E-mail: ronen@sarrafgentile.com - and - Kenneth J. Vianale, Esq. Vianale & Vianale 2499 Glades Road, Suite 112 Boca Raton, FL 33431 Phone: 561-392-4750 Fax: 561-392-4775 E-mail: kvianale@vianalelaw.com CHOICEPOINT INC: Fla. Court Denies Motion to Stay DPPA Suit Deal ---------------------------------------------------------------- The U.S. District Court for the Southern District of Florida denied a motion by a Texas intervenor to stay an implementation of a settlement that was reached in the purported class action, "Fresco, et al. v. Automotive Directions Inc., et al." The case alleges violation of the Driver's Privacy Protection Act. It names ChoicePoint, Inc. as defendant. The class action was filed on Aug. 11, 2003 in U.S. District Court for the Southern District of Florida. It alleges that the company obtained, disclosed and used information obtained from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) in violation of DPPA. The plaintiffs seek to represent classes of individuals whose personal information from Florida DHSMV records has been obtained, disclosed and used for marketing purposes or other allegedly impermissible uses by the company without the express written consent of the individual. A number of the company's competitors have also been sued in the same or similar litigation in Florida. This complaint seeks certification as a class action, compensatory damages, attorneys' fees and costs, and injunctive and other relief. The company has joined with the other defendants in a motion for judgment on the pleadings as to the plaintiffs' "obtaining" claim. To date, the court has not ruled on the pending motion. After vigorously defending against the action, the defendants engaged in court ordered mediation beginning in February 2006. A proposed settlement agreement was filed with the court on Dec. 20, 2006 on behalf of the Plaintiffs and all but two of the named defendants. On May 11, 2007, the District Court entered orders which, among other things: -- granted preliminary approval of the proposed class action settlement; -- certified the conditional nationwide class; -- denied the motion of the Texas plaintiffs (referenced below) to intervene in Fresco; -- and granted an injunction to maintain the status quo, which prohibits the Texas action (referenced below) from moving forward. On May 11, 2007, the Texas intervenors and the putative class members in the Texas case filed a notice of appeal with respect to the denial of the motion for limited intervention and the granting of the temporary injunction. The U.S. Court of Appeals for the Eleventh Circuit, then, issued an order dated June 6, 2007, questioning whether it has jurisdiction over the appeal. The interested parties have submitted briefs to the Court of Appeals responding to this question. To date, the Court of Appeals has not ruled on the issue. On June 13, 2007, the Texas intervenors filed a motion to stay asking that the District Court stay implementation of the settlement approval process until the Court of Appeals has had time to evaluate the appeal. On July 26, 2007, the District Court denied the Texas intervenors’ motion, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Richard Fresco, et al. v. Automotive Directions, Inc., et al., Case No. CIV-03-61063-Martinez/Klein," filed in the U.S. District Court for the Southern District of Florida under Judge Jose E. Martinez with referral to Judge Ted E. Bandstra. Representing the plaintiffs are: Tod N. Aronovitz, Esq. Aronovitz Trial Lawyers 150 W Flagler Street, Suite 2700 Museum Tower Miami, FL 33130 Phone: 305-372-2772 Fax: 305-375-0243 E-mail: ta@aronovitzlaw.com - and - Lawrence Dean Goodman, Esq. Devine Goodman Pallot & Wells 777 Brickell Avenue, Suite 850 Miami, FL 33131 Phone: 305-374-8200 Fax: 374-8208 E-mail: lgoodman@devinegoodman.com Representing the defendants are: Alan Graham Greer, Esq. Richman Greer Weil Brumbaug Mirabito & Christensen 201 S. Biscayne Boulevard Suite 1000 Miami, FL 33131 Phone: 305-373-4000 Fax: 305-373-4099 E-mail: agreer@richmangreer.com - and - Deanna Kendall Shullman, Esq. Holland & Knight 1 E. Broward Boulevard, Suite 1300 Fort Lauderdale, FL 33301-4811 Phone: 954-525-1000 Fax: 463-2030 E-mail: deanna.shullman@tlolawfirm.com CHOICEPOINT INC: Tex. “Taylor” Case Enjoined From Proceeding ------------------------------------------------------------ The class action, "Taylor v. Acxiom Corp.," which is pending against ChoicePoint, Inc. in the U.S. District Court for the Eastern District of Texas, is currently enjoined from proceeding further. The suit was filed on Jan. 5, 2007 against the company and certain of its competitors in on behalf of each and every individual in the State of Texas whose name, address, driver identification number, and certain other identifiers are contained in motor vehicle records obtained by the defendants from the Texas Department of Public Safety without the express consent of the individual during the period from June 1, 2000 through the date of judgment. Plaintiff also filed pleadings seeking to intervene in "Richard Fresco, et al. v. Automotive Directions, Inc., et al., Case No. CIV-03-61063- Martinez/Klein." Plaintiff is objecting to the proposed settlement agreement for the case, which is pending in the U.S. District Court for the Southern District of Florida. Such plaintiff also filed a Motion to Stay Proceedings in the "Fresco" litigation pending the outcome of the Texas Court's class certification determination in "Taylor." On Feb. 8, 2007, the company filed a motion to dismiss the Taylor litigation based on the fact that Fresco was first-filed, the nationwide class in "Fresco" encompasses the Texas class, and reasons of judicial economy and fundamental fairness dictate against duplicative class actions in federal courts. The Taylor litigation is currently enjoined from proceeding pursuant to the District Court’s order issued in the Fresco litigation, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Taylor et al. v. Acxiom Corp. et al., Case No. 2:07-cv-00001- TJW," filed in the in the U.S. District Court for the Eastern District of Texas under Judge T. John Ward. Representing the plaintiffs is: -- Jeremy Reade Wilson, Esq. The Corea Firm, PLLC The Republic Center, 325 North St. Paul St., Ste. 4150 Dallas, TX 75201 Phone: 214-953-3900 Fax: 214-953-3901 E-mail: jwilson@corealaw.com Representing the defendants are: David J. Beck, Esq. Beck Redden & Secrest 1221 McKinney St., Suite 4500, One Houston Center Houston, TX 77010-2020 Phone: 713/951-3700 Fax: 713/951-3720 E-mail: dbeck@brsfirm.com George Barton Butts, Esq. DLA Piper Rudnick Gray Cary US LLP 12221 S. MoPac Expressway, Suite 400 Austin, TX 78746 Phone: 512/457-7068 Fax: 512/457-7001 E-mail: george.butts@dlapiper.coml - and - James Patrick Kelley, Esq. Ireland Carroll & Kelley 6101 S. Broadway Ste. 500 Tyler, TX 75703 Phone: 903-561-1600 Fax: 903-581-1071 E-mail: patkelley@icklaw.com DAVITA INC: Faces Suit in Calif. Over Use of “Epogen” Drug ----------------------------------------------------------- DaVita Inc. received a copy of a civil complaint filed in the U.S. District Court for the Central District of California by plaintiff Sheet Metal Workers National Health Fund. The complaint names as defendants: -- Amgen, Inc.; -- Fresenius Medical Care Holdings, Inc.; and -- DaVita Inc. The complaint, which has not yet been served on DaVita, is styled as a request for class action and alleges claims against DaVita relating to the administration and use of Epogen(R). The complaint's principal allegations against DaVita are that Epogen(R) was administered to hemodialysis patients intravenously, as opposed to subcutaneously, and that Epogen(R) was over- utilized. DaVita administers Epogen(R) only pursuant to a physician's order, and the physician determines both the dosage amount and route of administration of Epogen(R). Also, the FDA-approved package insert for Epogen(R) recommends that Epogen(R) be administered intravenously for patients on hemodialysis. DaVita intends to vigorously defend the plaintiffs' claims and allegations contained in the complaint. DaVita, Inc. -- http://www.davita.com-- is a leading provider of dialysis services for patients suffering from chronic kidney failure. DaVita operates and provides administrative services to approximately 1,300 outpatient dialysis centers located in 42 states and the District of Columbia, serving approximately 104,000 patients. DONNAMX INC: Recalls China-Made Toothpaste with “Diglycol” ---------------------------------------------------------- Donnamax Inc. of Brooklyn, N.Y., in cooperation with the U.S. Food and Drug Administration, has initiated a voluntary recall of these brands of toothpaste made in China: -- DentaPro brand CAVITY FIGHTING FLUORIDE TOOTHPASTE, FRESH SPEARMINT FLAVOR, NET WT. 6.4 oz. - Item No. 9112, UPC 8 71290 – 00062 5, and -- Bright Max Toothpaste, NET WT. 6.4 oz. - Item No. 9111 This recall has been initiated because the products may contain diethylene glycol (DEG), also known as “diglycol”. The FDA is not aware of any U.S. reports of poisoning from toothpaste containing DEG. However, the agency is concerned about potential risks from chronic exposure to DEG in certain populations, such as children and individuals with kidney or liver disease. DEG in toothpaste has a low but meaningful risk of toxicity and injury to these populations. Toothpaste is not intended to be swallowed, but FDA is concerned about unintentional swallowing or ingestion of tooth paste with DEG. The toothpaste products were sold to retail stores located in the states of New York, Pennsylvania, Massachusetts, Michigan, Ohio, Illinois, Mississippi, South Carolina, Georgia, Florida, and Idaho. No injuries or illnesses have been reported to date in connection with this problem. Retailers are advised to immediately examine their inventory for the recalled brands of toothpaste, remove them from sale, destroy any units found, and report the quantity destroyed on the response form to Donnamax Inc. as soon as possible. Consumers are advised to stop using the recalled products and return them to the place of purchase or throw them away. ESS TECHNOLOGY: $3.5M Securities Suit Deal Granted Final Okay ------------------------------------------------------------- The Stipulation of Settlement and Release by and among ESS Technology Inc. (Nasdaq: ESST), certain current and former officers and directors of the Company and the plaintiffs in the securities fraud class action filed in the U.S. District Court for the Northern District of California became final and binding after no appeal was submitted within the applicable period following the Court's entry of the Final Judgment and Order of Dismissal With Prejudice. Under the Settlement, ESS has agreed, among other terms, to pay the amount of $3,500,000 to the plaintiffs. In exchange for such payment by ESS, plaintiffs release and relinquish all claims against ESS and other defendants. On Aug. 12, 2002, following the company's downward revision of revenue and earnings guidance for the third fiscal quarter of 2002, a series of putative federal class actions were filed against the company in the U.S. District Court for the Northern District of California. Complaints alleged that the company and certain of its present and former officers and directors made misleading statements regarding the company's business and failed to disclose certain allegedly material facts during an alleged class period of Jan. 3, 2002 through Aug. 12, 2002, in violation of federal securities laws. These actions were consolidated and are proceeding under the caption, "In re ESS Technology Securities Litigation." Plaintiffs seek unspecified damages on behalf of the putative class. They later amended their consolidated complaint on Nov. 3, 2003, which the company then moved to dismiss on Dec. 18, 2003. On Dec. 1, 2004, the court granted in part and denied in part the company's motion to dismiss, and struck from the complaint allegations arising prior to Feb. 27, 2002. On Dec. 22, 2004, based on the court's order, the company moved to strike from the complaint all remaining claims and allegations arising prior to Aug. 10, 2002. On Feb. 22, 2005, the court granted the company's motion in part and struck all remaining claims and allegations arising prior to Aug. 1, 2002 from the complaint. In an order filed on Feb. 8, 2006, the court certified a plaintiff class of all persons and entities who purchased or otherwise acquired the company's publicly traded securities during the period beginning Aug. 1, 2002, through and including Aug. 12, 2002. On March 24, 2006, plaintiff filed a motion for leave to amend their operative complaint, which the Court denied on May 30, 2006. Trial was tentatively set for January 2008. On Nov. 12, 2006, the parties attended a mediation at which they agreed to settle the litigation for $3.5 million (to be paid by defendants’ insurance carriers), subject to appropriate documentation by the parties and approval by the Court. The Stipulation of Settlement and Release was filed with the Court on April 30, 2007. On May 8, 2007, the Court issued an order preliminarily approving the settlement and providing for class notice (Class Action Reporter, June 15, 2007). On August 27, 2007, the agreement became final and binding. The Company and other defendants have denied, and continue to deny, any and all allegations of wrongdoing in connection with this matter. The suit is "In re ESS Technology, Inc. Securities Litigation, Case No. 02-CV-4497," filed in the U.S. District Court for the Northern District of California under Judge Ronald M. Whyte with referral to Judge Howard R. Lloyd. Representing the plaintiffs is: Patrick J. Coughlin, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 100 Pine Street, Suite 2600 San Francisco, CA 94111 Phone: 415/288-4545 Fax: 415-288-4534 E-mail: patc@lerachlaw.com Representing the defendants is: Meredith N. Landy, Esq. O'Melveny & Myers 2765 Sand Hill Road Menlo Park, CA 94025-7019 Phone: 650.473.2600 Fax: 650.473.2601 E-mail: mlandy@omm.com IFS INC: Recalls Sandwiches Because of Possible Health Risk ------------------------------------------------------------ IFS, Inc. of South Elgin, Illinois is recalling 7,500 Sandwiches, because it has the potential to be contaminated with Listeria monocytogenes, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. This product reached consumers through vending machines and c-stores in Illinois, Wisconsin, Michigan, Indiana, Ohio, and Missouri. These products are in a plastic wrapper and contain the exp. 073007. The items are Buffalo Chicken Sandwich PLU # 3707, Cuban Sandwich PLU # 3795, and Asiago Italian PLU #3770. No illnesses have been reported as of 07/30/2007. The recall is the result of a routine sampling program by IFS, Inc. which revealed that the finished products contained the bacteria. IFS, Inc. has ceased the production and distribution of the product as FDA and the IFS, Inc. continue their investigation as to what caused the problem. If you find any of this product, please contact the location you received it from, or contact IFS, Inc. directly: 740 Schneider Dr. South Elgin, IL 60177 Phone: 847-741-2544 ISRAEL: Legal Group Appeals “Ya’alon” War Crimes Suit Dismissal --------------------------------------------------------------- The Center for Constitutional Rights (CCR) appealed a lower court’s dismissal of a civil class action that charges a former Israeli official with war crimes and extrajudicial killing for his role in the Israel Defense Forces' (IDF's) shelling of a United Nations compound in Lebanon, which killed more than 100 Lebanese civilians who had taken shelter there. In April 1996, the IDF conducted "Operation Grapes of Wrath," bombarding villages in southern Lebanon for three weeks. Due to the attacks, approximately 400,000 people were forced to leave their homes. Many did not have the means to escape the area and took refuge in places they hoped might provide some safety. Lebanese civilians who were unable to leave the south fled to U.N. compounds; more than 800 civilians -- mostly women, children, and the elderly -- had sought refuge in the U.N. compound in Qana. The IDF then targeted the compound, killing more than 100 civilians and injuring even more. Lieutenant General Moshe Ya'alon was the head of IDF Intelligence on April 18, 1996 when the shelling occurred. The complaint alleges that Gen. Ya'alon participated in the decision to shell the compound and had command responsibility for the unlawful attack. The suit also alleges that the IDF continued to shell the compound even after the U.N. specifically notified the IDF that it was shelling a U.N. position in which civilians were taking shelter. The plaintiffs -- all Lebanese citizens who were injured and/or lost relatives in the attack -- include Saadallah Ali Belhas, whose wife and nine children were killed in the attack on the U.N. compound, as well as Ali Mohammed Ismail, whose wife and three children were killed. Plaintiffs Ibrahim Khalil Hammoud, Raiman Nasseeb, Hamidah Sharif Deeb, and Hala Yassim Khalil each suffered disabling injuries, and most lost immediate relatives due to the IDF shelling. The plaintiffs are seeking damages and declaratory relief. In December 2006, about a year after the case was filed, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia dismissed the case, stating that Gen. Ya'alon could not be sued for the shelling of the U.N. compound. Relying on the fact that the General was a government official at the time and a letter from the Israeli Ambassador stating that Gen. Ya'alon's acts were sovereign acts of Israel, the court decided that the General was acting in his official capacity in the IDF, and thus immune under the Foreign Sovereign Immunity Act (FSIA). The appeal was filed after a district court judge ruled that former IDF Lieutenant General Moshe Ya'alon was immune from being sued, a finding that directly contradicts established precedent. "The court's refusal to hold Gen. Ya'alon accountable for violating U.S. and international law amounts to impunity for killing civilians taking shelter in a UN compound," said CCR Attorney Katherine Gallagher. "More than 11 years after the attack on Qana, the survivors are still seeking justice." CCR attorneys are arguing that the district court judge erroneously applied the FSIA in his ruling, as Gen. Ya'alon was no longer a government official when sued and since his decision to shell the U.N. compound sheltering civilians violated international law, as well as Israeli law and policy. The Center for Constitutional Rights (CCR) is a non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights demonstrators in the South, CCR is committed to the creative use of law as a positive force for social change." OREGON SCIENTIFIC: Recalls Thousands of Defective Weather Radios ---------------------------------------------------------------- Oregon Scientific Inc., of Tualatin, Oregon, in cooperation with U.S. Consumer Product Safety Commission, is recalling about 66,000 Oregon Scientific weather radios. The company said the radios could fail to receive National Weather Service alert signals in certain areas of the country. In the event of severe weather, this failure could put a consumer’s life and property at risk. No injuries have been reported. This recall involves the following Weather Radios and Weather Stations: NAME MODEL All Hazards Portable Weather Alert Radio WR103NX Portable Public Alert Radio WR108 Public Alert Weather Station WRB308 John Deere Public Alert Weather Station WRB308J No other models are included in this recall. These recalled weather radios were manufactured in China and are being sold at retail stores nationwide, including some electronics and sporting goods stores, online retailers and in catalogs from December 2005 through June 2007 for between $30 and $150. Pictures of recalled weather radios: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07292a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07292b.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07292c.jpg Consumers are advised not rely on the recalled weather radios to receive emergency information. Consumers should contact Oregon Scientific for instructions on returning the radio to receive a free replacement. For additional information, contact Oregon Scientific at (800) 203-4921 between 8 a.m. and 5 p.m. PT Monday through Friday or visit the firm’s Web site: http://www2.oregonscientific.com RITZ-CARLTON: Staffers File Lawsuit for Unpaid Overtime Wages -------------------------------------------------------------- Ritz-Carlton, Huntington Hotel & Spa in Pasadena is facing a lawsuit, seeking class-action status, alleging employees are not paid overtime and are forced to work through their breaks, the Los Angeles Times reports. Housekeeper Elvia Alonso, who has worked at the hotel for six years and is one of the plaintiffs in the lawsuit, told the Los Angeles Business Journal, "They say, 'If you don't like it, you go home.' " According to the report, eight current and former employees of the hotel representing different departments complained about racial discrimination, hour and wage violations, staffing problems, unsafe work conditions and retaliation for engaging in union activities. In addition to the lawsuit, workers have recently filed complaints with the state Department of Fair Employment and Housing and the National Labor Relations Board, the report said. Allison Sitch, a spokeswoman for Ritz-Carlton Hotel Co., declined to comment, according to the report, but said, "Genuinely, we take all of these things seriously." Ritz-Carlton -- a unit of Marriott International of Bethesda, Md. Ritz- Carlton -- is a brand of luxury hotel and resort with 63 properties that are located in major cities and exclusive resort destinations of 21 countries worldwide. The Ritz-Carlton brand is managed by the Ritz-Carlton Hotel Company LLC, a subsidiary of Marriott International. The first Ritz-Carlton Hotel was built in Boston in 1927. The Ritz-Carlton headquarters are found in Chevy Chase, Maryland, a suburb of Washington, D.C. UNITED STATES: Scientists Challenge Extensive Background Checks --------------------------------------------------------------- Dozens of scientists and engineers at the California Institute of Technology’s Jet Propulsion Laboratory filed a class-action complaint in the U.S. District Court for the Central District of California, claiming the: -- U.S. National Aeronautical and Space Agency, -- U.S. Secretary of Commerce and -- Cal Tech are threatening their jobs and invading their privacy by forcing them to submit to unconstitutional “background checks” into their sexual orientation, sexual histories, associations and other “dangerously vague” criteria, reports say. The offenses are “putatively based upon Homeland Security Presidential Directive 12.” According to the complaint, NASA demands “that JPL employees – including senior scientists and engineers, many of whom have been employed there for decades, and none of whom work on classified or national security materials or issues –- submit to: 1) an open-ended background investigation prying into their protected associational activities as well as myriad private and irrelevant personal information; and 2) a determination of their suitability for employment that includes such wrong-headed and/or dangerously vague criteria as sexual orientation, sexual history, medical and emotional history, financial history, ‘attitude,’ and ‘personality conflict.’” Plaintiff Dr. Robert Nelson is a 27-year JPL employee, a senior research scientist and head of NASA’s New Millennium Program. The suit claims violations of the U.S. Constitution's 4th Amendment protection against unreasonable search and seizure, 14th Amendment protection against invasion of the right to privacy, the Administrative Procedure Act, the Privacy Act, and rights under the California Constitution. Plaintiff brings this action on behalf of JPL employees in non-sensitive positions. There are approximately 5000 employees of Caltech at JPL, approximately 97% of which have been designated by NASA as non-sensitive personnel. Plaintiffs want the court to rule on: (a) whether and to what extent plaintiffs' constitutionally protected privacy rights are being violated by th requirement that they complete Form 85, sign the waiver that is part of that form, and submit to a NACI background investigation; (b) whether and to what extent plaintiffs' constitutionally protected rights to be free from unlawful searches and seizures are violated by the requirement that they complete Form 85, sign the waiver that is part of the form, and submit to a NACI background investigation; (c) whether the Secretary of Commerce and Commerce Department violated the Administrative Procedure Act, 5 U.S.C. Section 706(2)(c), by imposing a background investigation on employees of government contractors which has no basis in HSPD-12, or in any other executive order or statute; and (d) whether defendants' policy directly violates several sections of the Privacy Act of 1974, codified at 5 U.S.C. Sections 552a(a)-(q), which requires departments and agencies of the executive branch to observe certain rules in the computerization, collection, management, use, and disclosure of personal information about individuals. Plaintiffs request the court to: -- enter judgment in favor of plaintiffs on all counts of the complaint; -- award plaintiffs injunctive relief; -- award plaintiffs the costs of suit including reasonable attorneys' fees; and -- award plaintiffs such other and further relief as the court deems just under the circumstances. Caltech was sued because it manages JPL for NASA and employs its staff. The suit also named the U.S. Department of Commerce, which is involved in promulgating federal identification standards, the English General News said. The suit is "Robert M. Nelson et al. v. National Aeronautical and Space Agency, et al.” filed in the U.S. District Court for the Central District of California. Representing plaintiffs are Robert M. Nelson William Bruce Banerdt Hadsell & Stormer, Inc. Marine Building, Suite 204 128 N. Fair Oaks Avenue Pasadena, CA 91103-3645 Phone: (626) 585-9600 Fax: (626) 577-7079 New Securities Fraud Cases AMERICAN MORTGAGE: Susman Heffner Files Securities Suit in N.Y. --------------------------------------------------------------- Susman Heffner & Hurst LLP filed a class action in the U.S. District Court for the Eastern District of New York, on behalf of shareholders who purchased American Home Mortgage Investment Corp., (OTC: AHMIQ.PK) common stock in AHM's April 30, 2007, secondary offering for four million (4,000,000) shares of AHM common stock at $23.80 per share. The Complaint alleges that defendants issued numerous positive financial statements, annual and quarterly financial reports filed with the SEC and incorporated by reference into the Offering Materials for the April 30, 2007, secondary offering that described AHM's financial performance. These statements were materially false and misleading because they misrepresented and failed to disclose the following adverse facts, among others: (a) AHM was experiencing an increasing number of loan delinquencies; (b) AHM failed to take adequate reserves against known or knowable future losses, including losses as a result of loan delinquencies; (c) AHM failed to write down on its financial statements the value of certain loans that had substantially declined, thereby increasing AHM's overall exposure to loss; (d) as a result of the increased delinquencies, it was becoming increasingly more difficult for AHM to sell its loans absent sharp price discounts, thus reducing profit margins and profit; (e) even at reduced prices, AHM was unable sell many of its loans and was forced to hold them, thereby increasing its exposure; and (f) as a result, AHM reported overstated financial results and concealed from the investing public, including plaintiff and other members of the Class, the true nature and extent of the undisclosed credit risk facing AHM. The Complaint charges that the defendants failure to disclose these facts, among others, violated Sections 11, 12(a)(2), and 15 of the Securities Act of 1934. On July 31, 2007, when AHM issued a press release announcing its true financial condition and its inability to fund its lending obligations, AHM's stock price plummeted to an all time low of $1.04 per share. The Offering Materials consisted of the Prospectus Supplement dated April 30, 2007 (the "Prospectus Supplement"); the Registration Statement dated December 15, 2004; the Prospectus dated January 6, 2005; and all documents incorporated by reference into the above materials. Interested parties may move the court no later than October 1, 2007, for lead plaintiff appointment. For more information, contact: Attn: Matthew T. Heffner Susman Heffner & Hurst LLP Phone: (312) 346-3466 Fax: (312) 346-2829 Email: mheffner@shhllp.com COUNTRYWIDE FINANCIAL: Labaton Sucharow Files Securities Suit ------------------------------------------------------------- Labaton Sucharow LLP filed a class action on August 31, 2007 in the U.S. District Court for the Central District of California, on behalf of persons who purchased or otherwise acquired the common stock of Countrywide Financial Corporation between April 24, 2004 and August 9, 2007, inclusive. The lawsuit was filed against Countrywide and Angelo R. Mozilo, David Sambol, Eric P. Sieracki and Stanford L. Kurland. The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, the complaint alleges that Defendants misled investors by falsely representing that Countrywide had strict and selective underwriting and loan origination practices, ample liquidity that would not be jeopardized by negative changes in the credit markets, and a conservative approach that set it apart from other lenders. Additionally, the complaint alleges that Countrywide also improperly inflated its reported income by understating its loan loss reserves in SEC filings. On July 24, 2007, Countrywide announced that it was taking a $417 million impairment charge and would add $292.9 million to its loan loss reserves, and noted defaults were increasing in the prime market. In reaction to this news, shares of Countrywide fell 10.5% to close at $30.50 per share. Then on August 9, 2007, the Company warned of potential short-term liquidity issues. Shares reacted negatively to the news, falling $1.00 per share to close at $27.86 per share. Interested parties may move the court no later than October 15, 2007 for lead plaintiff appointment. For more information, contact: Christopher Keller, Esq. Labaton Sucharow & Rudoff LLP Phone: 800-321-0476 ********* 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, 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 * * *