/raid1/www/Hosts/bankrupt/CAR_Public/071016.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 16, 2007, Vol. 9, No. 204
Headlines
AUDIOVOX CORP: Still Faces Litigation Over Cell Phone Radiation
BUTLER INT'L: Md. Court Junks Fiduciary Duty Breach Complaints
CARMAX INC: Still Faces Md. Suit Over Vehicle’s Rental History
CHATTEM INC: Still Faces Suit Over Fraudulent Sale of “Garlique”
CONAGRA FOODS: Suit Filed Over Salmonella-Contaminated Pot Pies
DHB INDUSTRIES: N.Y. Court to Rule on Settlements Nov. 17
FMR CO: Traders Accused of Accepting “Bribes” from Brokers
GENERAL MOTORS: Calif. Suit Alleges Defective Transmissions
HOGLA-KIMBERLY: Tel-Aviv Court Dismisses “Huggies” Fraud Lawsuit
H&R BLOCK: Missouri Suit Over RALS, Express IRA Dismissed
MEDTRONIC INC: Faces Suit Over Defibrillators with Lead Wire
MERCURY INTERACTIVE: Settles Cal. Securities Suit for $117M
MERIX CORP: Expects 2008 Appeal Hearing of Nixed Investors Suit
MRT LLC: Fla. Suit Alleges $50M Ponzi Scam in Securities Sales
PALM INC: Seeks to Settle Cal. Consumer Suits Over Treo Products
RITA MEDICAL: Calif. Court Approves Settlement of Suit Over Sale
SCHOLASTIC CORP: Faces Two Securities Fraud Lawsuits in N.Y.
SHARPER IMAGE: Proposed Settlement in Fla. Purifier Suit Nixed
STARBUCKS COFFEE: Recalls Kids’ Cups for Laceration Hazard
TIMBERLAND MORTGAGE: Accused of Reneging on Loan Discounts
TREES N TRENDS: Faces Ill. FACTA Suit Over Credit Card Receipts
VITESSE SEMICONDUCTOR: Settles Calif. Securities Suit for $10M
WAL-MART STORES: Calif. Court Stays Assistant Managers’ Lawsuit
WINN-DIXIE: Employees Prepare Age, Gender, Racial Bias Lawsuit
YES TV: Faces Multi-million Dollar Suit Over Service Problems
* Milberg Weiss Co-founder Denies Kickback Scheme Conspiracy
New Securities Fraud Cases
NUTRISYSTEM INC: Klafter & Olsen Files Pa. Securities Fraud Suit
*********
AUDIOVOX CORP: Still Faces Litigation Over Cell Phone Radiation
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Audiovox Corp., and other suppliers, manufacturers and distributors of hand-
held wireless telephones face certain consolidated class actions that were
transferred to a Multi-District Litigation Panel of the U.S. District Court
of the District of Maryland.
The suits are generally alleging damages relating to exposure to radio
frequency radiation from hand-held wireless telephones.
The company reported no development in the matter in its Oct. 10, 2007 Form
10-Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Aug. 31, 2007.
Audiovox Corp. -- http://www.audiovox.com/-- is an international
distributor and value added service provider in the accessory, mobile and
consumer electronics industries.
BUTLER INT'L: Md. Court Junks Fiduciary Duty Breach Complaints
--------------------------------------------------------------
The Circuit Court of Baltimore, Maryland dismissed a second amended
complaint in a purported class action against Butler International, Inc.
In January 2007, Thomas J. Carley filed a second amended class-action
complaint alleging a breach of fiduciary duty concerning the December 2006
issuance of a warrant to purchase 2,125,000 shares of Butler stock, and a
breach of fiduciary duty concerning the grant of certain restricted stock in
May 2003.
The second amended class action complaint was dismissed by the Circuit Court
of Baltimore, Maryland on April 7, 2007, according to the company's Oct. 11,
2007 Form 10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 25, 2005.
Butler International, Inc. -- http://www.butlerintl.com-- provides
outsourcing, project management and technical staff augmentation services in
technical, information technology (IT) and telecommunications disciplines.
CARMAX INC: Still Faces Md. Suit Over Vehicle’s Rental History
--------------------------------------------------------------
CarMax, Inc. continues to face a purported class action in Baltimore County
Circuit Court, Maryland alleging that it has not properly disclosed its
vehicles’ prior rental history.
Regina Hankins filed the suit on June 12, 2007. The plaintiff seeks
compensatory damages, punitive damages, injunctive relief, and the recovery
of attorneys’ fees.
The company reported no development in the matter in its Oct. 9, 2007 Form
10-Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Aug. 31, 2007.
CarMax, Inc. -- http://www.carmax.com/-- is a holding company and its
operations are conducted through its subsidiaries. The Company is a
retailer of used cars.
CHATTEM INC: Still Faces Suit Over Fraudulent Sale of “Garlique”
----------------------------------------------------------------
Chattem, Inc. continues to face a purported class action in the U.S.
District Court for the Southern District of California accusing it of
defrauding customers by selling them the dietary supplement Garlique.
Named plaintiff Robert O. Wilkinson alleges that Chattem manufactures,
markets, distributes and promotes the product known as Garlique, a diet
supplement sold as an enteric-coated tablet containing garlic that Chattem
contends is "America's #1 selling garlic supplement!"
The product is promoted, marketed, advertised and distributed directly by
Chattem and through distributors. Chattem's website --
http://www.chattem.com-- features the product prominently and makes a
number of claims regarding the product.
The complaint, filed on May 24, 2007, claims Chattem has actively promoted
the product as an aid to cardiovascular health, using celebrities such as
television talk show host Larry King. The labeling and packaging of the
product states that it is "Cholesterol's Natural Enemy" and that
it "Supports Cardiovascular Health."
In support of its claims, Chattem has referenced a 2001 analysis of data
pooled from 37 studies that indicated that garlic slightly lowered high
blood cholesterol levels when taken for three months.
However, further analysis by those same researchers showed that garlic had
no effect on cholesterol levels when taken for six months or more.
Furthermore, when a panel of national experts reviewed the two studies, they
determined that the effect of garlic on cholesterol was unclear.
Plaintiff claims he had purchased, used and ingested the product for its
intended and foreseeable purpose as marketed, promoted, advertised and
labeled by Chattem as forth in the complaint. He relied on these
representations by Chattem in purchasing and using the product.
However, as he has now learned, the product does not provide the benefits of
cholesterol reduction as claimed by Chattem. As a result, he contends that
he has been misled by Chattem's false claims into purchasing and paying for
a product that did not perform as promised when he used it for its intended
and foreseeable purpose as marketed, promoted, advertised and labeled by
Chattem, and that he has as a direct result been deprived of the benefit of
his bargain and has spent money on a product that did not have any value, a
product he would not have purchased and used had he known the true facts
about it.
Pursuant to California Code of Civil Procedure Section 382 and Federal Rule
of Civil Procedure 23, plaintiff brings this action on behalf of himself and
all other consumers who purchased, used and ingested the product.
The complaint questions whether:
(a) defendant's practices in connection with the
marketing, promotion, advertising, labeling and sale of
the product were deceptive or unfair in any respect,
thereby violating California's Unfair Competition Law,
Cal. Bus. & Prof. Code Section 17200 et. seq.;
(b) defendant's practices in connection with the
marketing, promotion, advertising, labeling and sale of
the product were deceptive or false in any respect,
thereby violating California's False Advertising Law,
Cal. Bus. & Prof. Code Section 17500 et. seq.;
(c) defendant breached implied warranties in its sale of
the product, thereby causing harm to plaintiff and
class members;
(d) defendant breached express warranties in its sale of
the product, thereby causing harm to plaintiff and
class members;
(e) defendant's practices in connection with the
marketing, promotion, advertising, labeling and sale of
the product unjustly enriched defendant at the expense
of, and to the detriment of, plaintiff and class
members;
(f) defendant fraudulently marketed, promoted,
advertised, labeled and sold the product;
(g) defendant breached California's Consumer Legal
Remedies Act, Civil Code Section 1750 et. seq., in its
sale of the product, thereby causing harm to plaintiff
and class members; and
(h) defendant's conduct as set forth injured consumers
and if so,. the extent of the injury.
Plaintiff prays for the following relief:
-- for an order certifying that the action may be
maintained as a class action;
-- for an award of equitable relief as follows:
(i) enjoining defendant from continuing to engage in the
unlawful, unfair and fraudulent business practices
and deceptive marketing, promotion labeling and
advertising described in the complaint;
(ii) requiring defendant to make full restitution of all
monies wrongfully obtained as a result of the
conduct described;
(iii) requiring defendant to disgorge all ill-gotten gains
flowing from the conduct described;
(iv) requiring defendant to provide public notice of the
true nature of the product.
-- for actual and punitive damages under the CLRA in an
amount to be proven at trial, including any damages as
may be provided for by statute upon the filing of a
First Amended Complaint should the demanded corrections
not take place within the 30-day notice period;
-- for an award of attorneys' fees pursuant to, inter alia,
Section 1780(d) of the CLRA and Code of Civil Procedure
section 1021.5;
-- for actual damages in an amount to be determined at
trial;
-- for an award of costs and any other relief the court
might deem appropriate; and
-- for pre- and post-judgment interest on any amounts
awarded.
The company was served with this lawsuit on July 5, 2007, according to the
company's Oct. 9, 2007 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended Aug. 31, 2007.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?2052
The suit is "Wilkinson v. Chattem, Inc., Case No. 3:07-cv-00952-W-AJB,"
filed in the U.S. District Court for the Southern District of California,
under Judge Thomas J. Whelan, with referral to Judge Anthony J. Battaglia.
Representing plaintiffs is:
Harold M. Hewell, Esq.
Hewell Law Firm
402 West Broadway, Fourth Floor
San Diego, CA 92101
Phone: (619) 235-6854
Fax: (619) 235-9122
E-mail: hmhewell@hewell-lawfirm.com
CONAGRA FOODS: Suit Filed Over Salmonella-Contaminated Pot Pies
---------------------------------------------------------------
The law firms Schiffrin Barroway Topaz & Kessler, LLP, and Janet, Jenner &
Suggs, LLC filed on Oct. 12 the first nationwide class action against
Conagra Foods, Inc. and Conagra Foods Packaged Food, LLC in the United
States District Court for the Western District of Missouri on behalf of:
(1) all persons who purchased and/or consumed ConAgra's Pot
Pies subject to the October 11, 2007 recall; and
(2) all persons who consumed ConAgra's Pot Pies subject to
the October 11, 2007 recall and have suffered physical
injuries.
"This Class Action was filed to protect the rights of all victims that have
been wronged by the carelessness of ConAgra in the manufacture of these
contaminated frozen pot pies. Consumers reasonably relied upon ConAgra to
manufacture and sell food that was free from poisonous contamination.
ConAgra betrayed the trust of consumers and it must be held accountable for
not protecting basic food, health and safety," said Tobias L. Millrood,
partner with Schiffrin Barroway Topaz & Kessler, LLP, in Radnor,
Pennsylvania.
On October 9, 2007, ConAgra ceased operations at its Marshall, Missouri
manufacturing plants due to reported cases of Salmonella linked to its
products. Banquet brand and generic store brand frozen not-ready-to-eat pot
pie products with "P-9" printed on the side of the package are alleged to be
the source of the reported illnesses caused by Salmonella based on
epidemiological evidence collected by the Centers for Disease Control and
Prevention (CDC) and State public health departments. At the time, the CDC,
which is leading the investigation, said 30 states had reported 139 cases of
Salmonella poisoning, including 23 that required hospitalization. Wisconsin
had the most cases (19), followed by Pennsylvania (13).
ConAgra did not recall the Pot Pies but issued an "advisory" to consumers
that purchased Banquet Turkey and Chicken Pot Pies or generic store brand
not- ready-to-eat pot pie products bearing the number "P-9" printed on the
side of the package.
On October 11, 2007, ConAgra Foods announced that it was replacing its
advisory notice of October 9, 2007 with a RECALL notice of all varieties of
Banquet brand frozen pot pies and all varieties of store brand frozen pot
pies sold under the names of Albertson's, Hill Country Fare, Food Lion,
Great Value, Kirkwood, Kroger, Meijer and Western Family. Now, the
Salmonella outbreak related to the ConAgra food debacle is up to 165
injuries in 31 states. The company has finally recalled not just frozen
chicken or turkey pot pie products with "P-9" printed on the side of
packaging, but also all pot pie products, including chicken, turkey and beef.
Salmonella poisoning can lead to symptoms that can appear 12 to 72 hours
after infection, which include diarrhea, fever and abdominal cramps. The
illness usually lasts four to seven days. In severe cases, the infection may
spread from the intestines to the blood and then to other sites in the body,
sometimes causing death. Treatment includes antibiotics.
Plaintiffs are Troy True, J.T., Marc McFrazier, Gwen Golden, Heaven Davis
and M.W. Plaintiffs demand $500,000.00
The suit is “True et al. v. ConAgra Foods, Inc. et al., Case No. 4:2007-cv-
00770,” filed in Missouri Western District Court under Magistrate Judge John
T. Maughmer.
For more information, contact:
Tobias L. Millrood, Esq.
Hal J. Kleinman, Esq.
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 1-888-348-6787 or 1-610-822-0249
E-mail: masstortinfo@sbtklaw.com
- and -
Robert K. Jenner, Esq.
Gerald D. Jowers, Jr., Esq.
Janet, Jenner & Suggs, LLC
Woodholme Center
1829 Reisterstown Road, Suite 320
Baltimore, Maryland 21208
Phone: 1-888-463-3529 or 1-410-653-3200
E-mail: rjenner@medlawlegalteam.com
DHB INDUSTRIES: N.Y. Court to Rule on Settlements Nov. 17
---------------------------------------------------------
The U.S. District Court for the Eastern District of New York will decide on
Nov. 17, 2007 whether to grant final approval to settlements entered in a
securities class action against DHB Industries, Inc., and certain individual
defendants, as well as the related shareholder derivative action.
Securities Litigation
During the third and second quarters of 2005, a number of purported class
actions were filed in the U.S. District Court for the Eastern District of
New York against the Company and certain of the Company’s officers and
directors.
The actions were filed on behalf of purchasers of the Company’s publicly
traded securities during various periods from November 18, 2003, though Aug.
29, 2005.
The complaints, which were substantially similar to one another, allege,
among other things, that the Company’s public disclosures were false or
misleading.
The suits alleged that the Company’s body armor products were defective and
failed to meet the standards of its customers, and that these alleged facts
should have been publicly disclosed. They were ultimately consolidated into
a single class action.
Derivative Litigation
During the same time frame, a number of derivative complaints were filed,
also in the U.S. District Court for the Eastern District of New York,
against certain officers and directors of the Company, and in certain cases
the Company’s former auditors.
The complaints, which were substantially similar to one another, allege,
among other things, that the defendants breached their fiduciary duties and
engaged in fraud, misrepresentation, misappropriation of corporate
information, waste of corporate assets, abuse of control, and unjust
enrichment. They were ultimately consolidated into a single shareholder
derivative action.
The Settlement
On July 13, 2006, the Company signed a Memorandum of Understanding to settle
the class action and the derivative action.
Under the Memorandum of Understanding, the class action would be settled,
subject to court approval, for $34,900 in cash and 3,184,713 shares of the
Company’s common stock.
The derivative action also would be settled, subject to court approval, in
consideration of the adoption of certain corporate governance provisions and
the payment of $300 in legal fees and expenses to the lead counsel in the
derivative action.
As previously reported, these settlements are subject to review and approval
of the U.S. District Court for the Eastern District of New York (Class
Action Reporter, July 19, 2007).
On Dec. 15, 2006, a stipulation of settlement was filed with the court (U.S.
District Court, 100 Federal Plaza, Central Islip, New York, 11722-4438).
This stipulation, which was signed on behalf of the Company, the plaintiffs'
representatives and individual defendants, represents the definitive
documentation of the settlement.
Under the settlement documents, the class consists of all Persons who
purchased or otherwise acquired DHB shares on or after Nov. 18, 2003 until
and including November 30, 2006.
In July of 2007, the U.S. District Court for the Eastern District of New
York granted a motion for preliminary approval of the above-described
settlements of the class action and derivative shareholder lawsuits.
The court held a hearing on Oct. 5, 2007, to consider and determine whether
to grant final approval of the settlement. The Court took no action at the
hearing, and indicated that it would issue a decision no sooner than 45 days
after the hearing (or Nov 17, 2007) in order to allow the Commercial
Litigation Division of the U.S. Justice Department, which had been notified
of the settlement pursuant to the Class Action Fairness Act, to determine if
it wished to make an objection to the settlement.
DHB Industries, Inc. -- http://www.dhbt.com/-- through its subsidiaries,
Point Blank Body Armor, Inc., and Protective Apparel Corporation of America
is in the protective body armor industry and is focused on the design,
manufacture, and distribution of bullet resistant and protective body armor
for military, law enforcement, and corrections in the U.S. and worldwide.
FMR CO: Traders Accused of Accepting “Bribes” from Brokers
----------------------------------------------------------
A class action accusing Fidelity Management & Research Co. and FMR Co. of
breaking their “best execution” practice was refilled as a class action in
St. Clair County Circuit Court in September, reports Steve Gonzalez & Ann
Knef of Madison St. Clair Record.
The suit was originally filed in the U.S. District Court for the Southern
District of Illinois by David Kurz on Aug. 20. It was refilled in Sept. 27
outside federal jurisdiction because of an exception to the Class Action
Fairness Act involving a covered security.
Mr. Kurz and co-plaintiff Raymond Heinzl of Belleville claim the companies’
traders breached their obligation to choose execution brokers on the basis
of the most favorable practicable execution costs because they were swayed
by brokers’ “bribes.” The traders allegedly steered transactions to brokers
who provided them perks.
Specifically, the complaint states that between May 2002 and October 2004,
the defendants retained Jeffries & Co. as an executing broker in
transactions they made on behalf of their investors. Mr. Kurz claims during
that time, Jeffries lavished a number of gifts on Fidelity and FMR traders.
Jeffries’ revenues from Fidelity and FMR for transactions executed on behalf
of investors like plaintiff and the plaintiff class allegedly ballooned from
$1.7 million during the first six months of 2002 up to $24.5 million in
business by September 2004," the complaint states.
The plaintiffs allege that defendants’ wrongful conduct resulted in higher
executions costs that easily run into the tens of millions of dollars or
more per year. They said that Fidelity Board of Trustees has agreed to pay
the Fidelity mutual funds $42 million plus interest to redress its
misconduct, but it did not mention compensation to the Fidelity mutual funds
former shareholders.
The purported class consists of all persons who were clients of the
defendants at any time between May 1, 2002, and Oct. 31, 2004, but
subsequently liquidated their investments and terminated their agreements
with the defendants prior to Dec. 21, 2006, and whose investment portfolios
entered into at least one transaction in which Fidelity and FMR used
Jeffries as the execution broker.
Representing plaintiffs is:
Steven Katz
Korein Tillery LLC
Gateway on the Mall
701 Market Street, Suite 300
St. Louis, MO 63101
Phone: (314) 241-4844
Fax: (314) 588-7036
GENERAL MOTORS: Calif. Suit Alleges Defective Transmissions
-----------------------------------------------------------
General Motors Corp. is facing a class action complaint in the U.S. District
Court for the Eastern District Court of California alleging it made Saturn
vehicles with defective transmissions from 2002 to 2004 and sold them while
concealing the defects from consumers, the CourtHouse News Service reports.
The named plaintiffs are Kelly Castillo, Nichole Brown and Barbara Glisson.
They claim that Saturn and GM knew in 2002 that the Saturn Vti transmissions
failed, disabling the car, but they sold them anyway, and either refused to
fix them, swapped them for another defective Vti tranny, or tried to get the
victimized consumer to trade in the car for less than true value.
Plaintiffs bring this action on behalf of themselves and a class of Saturn
vehicle owners in the States of California, Florida, Georgia, Illinois,
Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina,
Ohio and Oklahoma whose defectively designed Saturn Vti transmissions have
experienced a failure that GM failed or refused to fully remedy.
They want the court to rule on:
(a) whether Saturn vehicles containing the Vti transmission
are defective in that: they fail to perform in
accordance with the reasonable expectations of ordinary
consumers; they are not fit and safe for their
ordinary, intended, and foreseeable use; their risks
and dangers outweigh their benefits, if any; and/or
they would not be offered for sale by a reasonably
careful manufacturer or seller who knew of their
defective nature;
(b) whether GM knew of the defective and unreasonably
dangerous nature of vehicles equipped with the Vti
transmission at the time those vehicles were sold;
(c) whether GM represented, through its advertising,
warranties and other representations, that Vti-equipped
Saturn vehicles had characteristics that they did not
actually have, or omitted to disclose material facts
and actual characteristics regarding the Vti-equipped
Saturn vehicles;
(d) whether GM made any affirmations of fact or promises
relating to the Vti-equipped vehicles that became a
basis of the bargain between the seller and buyer, and
thereby created an express warranty that the vehicles
would conform to those affirmations or promises;
(e) whether the Vti-equipped vehicles conformed to GM's
express warranties;
(f) whether the Vti-equipped vehicles are merchantable,
pass without objection in the trade, and are fit for
their ordinary and intended purposes;
(g) whether the Vti-equipped vehicles have the value
represented by GM;
(h) whether plaintiffs and the class are entitled to
compensatory damages; and
(i) whether GM's active concealment and failure to disclose
the inherently defective nature of the Vti transmission
constituted fraud or misrepresentation.
The suit is "Kelly Castillo et al. v. General Motors Corp.," filed in the
U.S. District Court for the Eastern District of California.
Representing plaintiffs are:
C. Brooks Cutter
Kershaw Cutter & Ratinoff LLP
980 9th Street, 19th Floor
Sacramento, California 95814
Phone: (916) 448-9800
Fax: (916) 669-4499
- and -
Mark L. Brown
The Lakin Law Firm
300 Evans Avenue
P.O. Box 2259
Wood River, IL 62095
Phone: (618) 254-127
Fax: (618) 254-0193
HOGLA-KIMBERLY: Tel-Aviv Court Dismisses “Huggies” Fraud Lawsuit
----------------------------------------------------------------
Hogla-Kimberly Ltd. reported that the court dismissed a class action that
was filed against it regarding the reduction of the number of units of
diapers in a package of its "Huggies(R) Freedom" brand.
In 2003, Hogla-Kimberly Ltd. faced a claim and a petition filed in Tel- Aviv
district court for the approval of a class action against it (Class Action
Reporter, Dec. 11, 2003).
According to the petition, the Company reduced the number of units of
diapers in a package and thus misled the public according to the Israeli
Consumer Protection Act.
The plaintiffs estimated the scope of the class action to be $4.1 million).
In its recent decision, the court also ordered the plaintiffs to pay lawyers
fee expenses to H-K in the amount of $7,437.06.
Israel-based American Israeli Paper Mills Ltd. (AIPM) --
http://www.aipm.co.il-- is engaged through its subsidiaries in the
manufacture of paper and paper products in Israel. It currently
manufactures and markets a wide range of paper grades for stationery,
printing and various office uses, fluting paper for the corrugated cardboard
industry, corrugated board packaging, packaging for consumer goods, office
supplies, a wide range of paper products for household use, absorbent
products including disposable diapers and feminine hygiene products, as well
as various household products. AIPM is also engaged in recycling including
the collection and recycling of paper and cardboard, plastics and in the
treatment of solid waste. AIPM shares are publicly traded on the Tel Aviv
Stock Exchange and on AMEX.
H&R BLOCK: Missouri Suit Over RALS, Express IRA Dismissed
---------------------------------------------------------
The U.S. District Court for the Western District of Missouri dismissed a
lawsuit filed by a pension fund alleging that H&R Block misled investors
about its legal problems with its Refund Anticipation Loan and Express IRA
programs, CFO.com reports.
The suit was filed by several individual shareholders and the Iron Workers
Local 16 Pension Fund on June 2006. Plaintiffs allege that the company had
misrepresented the dangers presented by legal challenges to the RAL and
Express IRA programs, which were subject of separate criminal lawsuits
brought by two different states. As a result, they were allegedly harmed
when H&R Block restated several years of financial statements due to
improper booking of revenues derived from deceptive consumer practices.
Judge Ortrie Smith ruled that the plaintiffs provided insufficient evidence
to support their claims, noting that Block repeatedly disclosed the problems
in regulatory filings and that information about the problems was also
available in public court filings.
Plaintiffs may amend their complaint within the next 20 days to prove that
Block knew it had problems with its internal controls when it released
materially false financial information.
The suit is “Iron Workers Local 16 Pension Fund v. H&R
Block, et al., Case No. Case No. 06-cv-00466-ODS” filed in the United States
District Court for the Western District of Missouri under Judge Ortrie Smith.
MEDTRONIC INC: Faces Suit Over Defibrillators with Lead Wire
------------------------------------------------------------
Heart patients nationwide who received implants of recalled defibrillators
filed separate lawsuits in Minneapolis, Minnesota, and San Juan, Puerto
Rico, against the manufacturer Medtronic Inc., and related companies.
Each plaintiff received a cardiac pacemaker/defibrillator combination that
was attached to their hearts with a lead wire system manufactured by
Medtronic and sold under the brand name Sprint Fidelis.
In the case of three of the patients, the Sprint Fidelis lead fractured or
frayed, necessitating additional surgery to remove the device and implant a
new lead system. The plaintiffs are residents of California, Massachusetts,
North Carolina, New York and Oregon.
"The complaints charge that Medtronic has misrepresented the safety of the
Sprint Fidelis leads and a large proportion may fracture," stated class
counsel Elizabeth J. Cabraser of the national plaintiffs' law firm Lieff
Cabraser Heimann & Bernstein, LLP. "As a result, patients may receive
massive, unnecessary electrical shocks or the device may fail to function
during a life-threatening cardiac event."
"The Medtronic Sprint Fidelis lead, compared to competing products, has a
significantly higher failure rate that appears in just the first two years
after implantation. We are concerned that Medtronic is minimizing the
likelihood that patients may need to have their lead surgically removed,"
stated Wendy R. Fleishman, a partner at the New York office of Lieff
Cabraser. "It is critical that patients with the recalled Medtronic lead
promptly meet with their physician and discuss their options."
Medtronic has not disclosed the precise mechanism of the Sprint Fidelis lead
fracture failures. The complaints charge that it appears the defect is
attributable to the small diameter of the coil and conductors in the lead
and because of this the lead is subject to stress damage both during and
after the implant. Fracture eventually occurs when the conductor is
critically overstressed.
"The defect is potentially fatal," explained class counsel Nick J. Drakulich
of The Drakulich Firm of San Diego, California. "In the class action lawsuit
filed in Minnesota, plaintiffs seek an order from the Court requiring that
Medtronic create a treatment fund to monitor the health of all patients with
the recalled lead and reimburse patients for all diagnostic and corrective
medical and surgical expenses attributable to their faulty leads."
"Both the patients who have had to undergo unnecessary and invasive
surgeries as a result of Medtronic's actions -- which Medtronic has only now
begun to admit but has not accepted responsibility for - and those who now
fear that their life-saving devices may not save their lives, should have
their opportunity to obtain justice," added Seth R. Lesser of the Locks Law
Firm in New York, New York.
Plaintiffs' Experiences and Allegations
In January 2006, Kelly Luisi of San Diego, California, a plaintiff in the
class action filed in Minnesota, was implanted with a defibrillator with a
Sprint Fidelis lead. As alleged in the complaint, in March 2007, Ms. Luisi
experienced frightening episodes of unnecessary shocks. She went to the
hospital and was admitted in the emergency department.
The Medtronic Representative was present, and when he used his device to
interrogate the device, Ms. Luisi's defibrillator began delivering
unnecessary shocks over and over again. The Medtronic Representative did not
have a magnet to deenergize the leads, and could not immediately deactivate
the device. Ms. Luisi experienced several additional inappropriate and
frightening shocks at the emergency room.
Ms. Luisi's lead was removed in April 2007 as it has fractured. Ms. Luisi
was required to undergo additional and complicated surgery to remove and
replace the faulty lead.
In the lawsuit filed in Puerto Rico, plaintiff Russell Nelson of Portland,
Oregon, received a defibrillator heart with a Sprint Fidelis lead in March
2005. The lead was found to have "frayed" in the nature of a fracture and
was replaced in an emergency surgery in January of 2007.
In October 2005, George Anastas, a resident of Westminister, Massachusetts,
and also a plaintiff in the lawsuit filed in Puerto Rico, received a
defibrillator with a Sprint Fidelis lead.
The complaint charges that in May 2006, Mr. Anastas experienced frightening
episodes of unnecessary shocks. He went to the hospital and was admitted in
the emergency department. A Medtronic representative was present, and when
he used his device to interrogate the defibrillator, it began delivering
repetitive unnecessary shocks. The Medtronic representative did not have a
magnet to deenergize the leads, and could not immediately deactivate the
device. Mr. Anastas experienced several additional inappropriate and
frightening shocks at the emergency room.
As was the case with Ms. Luisi, the Medtronic lead system inside Mr. Anastas
had fractured. Mr. Anastas was therefore forced to undergo additional and
complicated surgery to remove and replace the faulty lead.
Information for Heart Patients
On October 15, 2007, due to reports of adverse events and at least five
patient deaths with defibrillator leads sold under the brand name Sprint
Fidelis, Medtronic issued a recall of the product.
Leads are the thin insulated wires connected to a defibrillator that carry
electric impulses to the heart. Your wallet card will specify the
manufacturer of your defibrillator leads.
Medtronic recall on the net: http://www.personalinjurylawyeramerica.com
For more information, contact:
Wendy Fleishman
Lieff Cabraser Heimann & Bernstein, LLP
Phone: 212-355-9500 (office)
MERCURY INTERACTIVE: Settles Cal. Securities Suit for $117M
-----------------------------------------------------------
Labaton Sucharow LLP has reached a $117.5 million settlement in principle on
behalf of its client the Mercury Pension Fund Group in the securities class
action titled “In re: Mercury Interactive Corp. Securities Litigation.”
In November 2006, Hewlett-Packard Co. completed its acquisition of Mercury
Interactive Corp. Upon completion of the acquisition, Hewlett Packard
assumed oversight for all litigation and regulatory matters pending or
subsequently commenced against Mercury.
Prior to the announcement of the acquisition, and beginning on or about Aug.
19, 2005, four securities class actions were filed against Mercury
Interactive and certain of its officers and directors on behalf of
purchasers of Mercury's stock from October 2003 to November 2005:
The original actions were:
-- "Archdiocese of Milwaukee Supporting Fund, Inc. v.
Mercury Interactive, et al., Case No. C05-3395";
-- "Johnson v. Mercury Interactive, et al., Case No. 05-
3864";
-- "Munao v. Mercury Interactive, et al., Case No. 05-
4031"; and
-- "Public Employees' Retirement System of Mississippi v.
Mercury Interactive, et al., Case No. 05-5157."
These class actions were consolidated in the U.S. District Court for the
Northern District of California as, "In re Mercury Interactive Corp.
Securities Litigation."
The consolidated complaint filed on Sept. 8, 2006 alleges that the
defendants made false or misleading public statements regarding Mercury's
business and operations in violation of Section 10(b) and Section 20(a) of
the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder and seeks unspecified monetary damages and other
relief.
The recent settlement is the largest in any stock options backdating case to
date. It is subject to final documentation and court approval.
The settlement dwarfs all other options backdating settlements in sheer
size. It is more than 6 times larger than the largest prior backdating
settlement, which totaled just $18 million. The largest settlement in a
stock options backdating case involved Los Altos, California-based computer
chip designer Rambus, which agreed last month to pay $18 million to settle
an investor lawsuit.
The lawyer for the Plaintiffs in the Mercury action, Joel H. Bernstein of
Labaton, said, "We are satisfied that the parties have come to such a fair
settlement and are confident that the award will provide fair recompense to
the investors who lost money as a result of Mercury's improper practices."
The suit is "In re Mercury Interactive Corp. Securities Litigation, Case No.
C05-3395," filed in the U.S. District Court for the Northern District of
California under Judge Jeremy Fogel with referral to Judge Patricia V.
Trumbull.
Representing the plaintiffs is:
Arthur L. Shingler, III, Esq.
Scott + Scott, LLC, 600 B. Street, Suite 1500
San Diego, CA 92101
Phone: 619-233-4565
Fax: 619-233-0508
E-mail: ashingler@scott-scott.com
Representing the defendants are:
Jennifer Tetefsky
Marketing Director
Labaton Sucharow LLP
Phone: 212-907-0659
E-mail: jtetefsky@labaton.com
Nicole Acton Jones, Esq.
Heller Ehrman, LLP
333 Bush Street
San Francisco, CA 94104
Phone: 415-772-6032
Fax: 415-772-6268
E-mail: nicole.jones@hellerehrman.com
Kirk Andrew Dublin, Esq.
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104-1500
Phone: 415-626-3939
Fax: 415-875-5700
E-mail: kdublin@jonesday.com
- and -
Jeffrey S. Facter, Esq.
Shearman & Sterling, LLP
525 Market Street, Suite 1500
San Francisco, CA 94105
Phone: 415-616-1100
Fax: 415-616-1199
E-mail: jfacter@shearman.com
MERIX CORP: Expects 2008 Appeal Hearing of Nixed Investors Suit
---------------------------------------------------------------
Merix Corp. expects that oral argument on the plaintiff's appeal of the
dismissal of an amended complaint in the consolidated securities fraud class
action against the company will occur in 2008.
On June 17, 2004, the company and certain of its executive officers and
directors were named as defendants in the first of four purported class
actions alleging violations of federal securities laws.
These four cases, which were filed in the U.S. District Court for the
District of Oregon, have now been consolidated in a single action
entitled "In re Merix Securities Litigation, Lead Case No. CV 04-826-MO."
A lead plaintiff was appointed, who filed a consolidated and amended class
action complaint on Nov. 15, 2004. On March 3, 2005, the company filed a
motion to dismiss the amended and consolidated complaint for failure to
identify with sufficient specificity the statements that plaintiffs allege
to have been false and why the statements were either false when made or
material.
On Sept. 15, 2005, the court dismissed the complaint, without prejudice, and
gave plaintiffs leave to amend their complaint. On Nov. 18, 2005, the lead
plaintiff filed an amended complaint.
The complaint, as amended, alleges that the defendants violated the federal
securities laws by making certain alleged inaccurate and misleading
statements in the prospectus used in connection with the January 2004 public
offering of approximately $103.4 million of the Company’s common stock.
On Jan. 26, 2006, the defendants filed a motion to dismiss the amended
complaint. On Sept. 28, 2006, the U.S. District Court of Oregon dismissed
the amended complaint with prejudice.
On Oct. 31, 2006, the plaintiffs filed a notice of appeal with the U.S.
Court of Appeals for the Ninth Circuit.
The parties have submitted briefs to the Court of Appeals. The Company
expects that oral argument in the appeal will occur in 2008.
The suit is "Central Laborers Pension Fund v. Merix Corp. et al, Case No.
3:04-cv-00826-MO," filed in the U.S. District Court for the District of
Oregon under Judge Michael W. Mosman.
Representing the plaintiffs are:
Gregory M. Castaldo, Esq.
Stuart L. Berman, Esq.
Darren J. Check, Esq.
Sean M. Handler, Esq.
Andrew L. Zivitz, Esq.
Schiffrin & Barroway, LLP
Three Bala Plaza East, Suite 400
Bala Cynwyd, PA 19004
Phone: (610) 667-7706
Fax: (610) 667-7056
E-mail: sberman@sbclasslaw.com
dcheck@sbclasslaw.com
shandler@sbclasslaw.com
azivitz@sbclasslaw.com
- and -
Lori G. Feldman, Esq.
Milberg Weiss Bershad & Schulman, LLP
1001 Fourth Ave., Suite 2550
Seattle, WA 98154
Phone: (206) 839-0730
Fax: (206) 839-0728
E-mail: lfeldman@milbergweiss.com
Representing the defendants are:
Richard L. Baum, Esq.
Perkins Coie, LLP
1120 NW Couch St., 10th Floor
Portland, OR 97209-4128
Phone: (503) 727-2021
Fax: (503) 727-2222
E-mail: baumr@perkinscoie.com
- and -
Joseph E. Bringman, Esq.
Ronald L. Berenstain, Esq.
Douglas W. Greene, III, Esq.
Perkins Coie, LLP
1201 Third Ave., Suite 4800
Seattle, WA 98101-3099
Phone: (206) 359-8501, 206-359-8477 and (206) 359-8613
Fax: (206) 359-9000, (206) 359-9477 and (206) 359-9613
E-mail: jbringman@perkinscoie.com
RBerenstain@perkinscoie.com
DGreene@perkinscoie.com
MRT LLC: Fla. Suit Alleges $50M Ponzi Scam in Securities Sales
--------------------------------------------------------------
MRT, LLC, James Clements, Zeina Smidi and Sami Nabil Smidi are facing a
class-action complaint filed in the U.S. District Court for the Southern
District of Florida accusing them of bilking hundreds of investors of $50
million by selling them unregistered securities in a Ponzi scheme, the
CourtHouse News Service reports.
Lead plaintiff Bernice Kramer claims the defendants, all of Plantation,
Fla., except Clements, of Fort Lauderdale, “guaranteed” 26 percent annual
returns, but just took the money and used it as they liked. Ms. Kramer
claims bankers, traders and financial advisors defrauded her of $280,000.
Plaintiffs bring this lawsuit as a federal class action under Rules 23(a)
and 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all
purchasers of MRT's investment contracts, who purchased from March 1, 2006
through to the present and who were damaged thereby.
They want the court to rule on:
(a) whether defendants' conduct violated the federal
securities laws, as alleged;
(b) whether defendants offered and sold unregistered
securities;
(c) whether defendants' statement to the investing public
during the class period materially misrepresented MRT's
business and financial condition; and
(d) to what extent the class suffered damages, and whether
the class stands entitled to rescind their transactions
with MRT.
Plaintiffs demand judgment against defendants for compensatory damages, pre-
judgment interest, attorneys' fees and costs, and for such other and further
relief as the court deems just and proper.
The suit is "Bernice Kramer et al. v. MRT, LLC et al., Case No. 07-80931,"
filed in the U.S. District Court for the Southern District of Florida.
Representing plaintiffs are:
Darren C. Blum
Scott L. Silver
Shirin Movahed
Blum & Silver, LLP
12540 W. Atlantic Blvd.
Coral Springs, FL 33071
Phone: (954) 255-8181
Fax: (954) 255-8175
PALM INC: Seeks to Settle Cal. Consumer Suits Over Treo Products
----------------------------------------------------------------
Palm, Inc. is working to settle several purported consumer class actions
filed in either the U.S. District Court for the Northern District of
California or the Superior Court of California for Santa Clara County on
behalf of all purchasers of Palm Treo 600 and Treo 650 products.
In September and October 2005, these purported consumer class actions were
filed against the company:
-- "Moya v. Palm, Case No. 5:05-cv-03926-RMW," filed in
the U.S. District Court for the Northern District of
California;
-- "Berliner v. Palm, Case No. 5:05-cv-03854-RMW," filed
in the U.S. District Court for the Northern District of
California;
-- "Loew v. Palm, Case No. 5:05-cv-03980-RMW," filed in
the U.S. District Court for the Northern District of
California;
-- "Geisen v. Palm, Case No. 5:05-cv-04120-RMW," filed in
the U.S. District Court for the Northern District of
California; and
-- "Palza v. Palm," filed in the Superior Court of
California for Santa Clara County.
All four federal complaints allege in substance that the company made false
or misleading statements regarding the reliability of its Treo 600 and 650
products in violation of various California laws and breached its warranty
of these products.
They seek unspecified damages, restitution, disgorgement of profits and
injunctive relief.
In September 2005, a purported consumer class action entitled
"Gans v. Palm, Case No. 5:05-cv-03774-RMW" was filed against the company in
the U.S. District Court for the Northern District of California on behalf of
all purchasers of the Treo 650 product.
The complaint alleges that, in violation of various California laws, the
company made false or misleading statements regarding automatic E-mail
delivery to the Treo 650 product. It seeks unspecified damages,
restitution, disgorgement of profits and injunctive relief.
The company removed the "Palza" case to the U.S. District Court for the
Northern District of California. Subsequently, all six cases were related
before a single judge in that court.
Subsequently, all six cases were consolidated before a single judge in that
Court and the plaintiffs provided a consolidated, amended complaint.
The parties have agreed to a tentative settlement and are in the process of
negotiating a full settlement agreement.
The company reported no development in the matter in its Oct. 9, 2007 Form
10-Q filing with the U.S. Securities and Exchange Commission for the
quarterly period ended Aug. 31, 2007.
Palm, Inc. -- http://www.palm.com/-- formerly palmOne, Inc. is a provider
of mobile computing solutions. The Company offers Treo smartphones, as well
as handheld computers, add-ons and accessories. It distributes these
products through a network of wireless carriers and retail and business
distributors worldwide.
RITA MEDICAL: Calif. Court Approves Settlement of Suit Over Sale
----------------------------------------------------------------
The Superior Court of the State of California for the County of Alameda
granted final approval to a proposed settlement in the purported stockholder
class action against RITA Medical Systems, Inc. with regards to its
acquisition by AngioDynamics, Inc.
The suit, “Holleran v. RITA Medical Systems, Inc., et al., Case No. RG 06-
302394” was filed on Dec. 15, 2006 in the Superior Court of the State of
California for the County of Alameda against RITA and its directors
asserting claims relating.
It alleges that, among other things, RITA's directors engaged in self-
dealing and breached their fiduciary duties in connection with the merger
agreement.
Plaintiff seeks, among other things, unspecified monetary damages,
attorneys' fees and certain forms of equitable relief, including enjoining
the consummation of the merger, rescinding the merger agreement and imposing
a constructive trust with respect to any payments or awards to be issued to
defendants.
Recently, RITA and AngioDynamics agreed to settle the matter. In addition,
both agreed to pay the plaintiff’s attorneys’ fees in the amount of $300,000
as awarded by the court.
The court granted final approval of the parties’ settlement on Aug. 1, 2007.
RITA Medical Systems, Inc. -- http://www.ritamedical.com-- is a diversified
medical device oncology company that develops, manufactures and markets
products for cancer patients, including radiofrequency ablation systems for
treating cancerous tumors, as well as specialty access ports and catheters.
SCHOLASTIC CORP: Faces Two Securities Fraud Lawsuits in N.Y.
------------------------------------------------------------
Scholastic Corp. faces two purported securities fraud class actions in the
U.S. District Court for the Southern District of New York, according to the
company's Oct. 5, 2007 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended Aug. 31, 2007.
On Aug. 20, 2007, the Alaska Laborers Employers Retirement Fund filed a
lawsuit seeking class action status in the U.S. District Court for the
Southern District of New York against the Corporation, Richard Robinson, the
Corporation’s Chairman, President and Chief Executive Officer, and Mary
Winston, the former Chief Financial Officer of the Corporation.
A second complaint was filed on Sept. 21, 2007 by Paul Baicu against the
same parties.
Each complaint claims in substance that the Corporation made false and
misleading statements concerning its operations and financial results during
the period from March 18, 2005 through March 23, 2006.
Both are styled as class actions on behalf of a class of persons who
purchased the Corporation’s securities during such time and asserts claims
pursuant to Sections 10(b) and 20(a) of the Exchange Act.
They seek unspecified compensatory damages, costs and attorneys fees.
Scholastic Corp. -- http://www.scholastic.com/-- is a global children's
publishing, education and media company. The Company is a publisher, and
distributor of children's books and a developer of educational technology
products.
SHARPER IMAGE: Proposed Settlement in Fla. Purifier Suit Nixed
--------------------------------------------------------------
The U.S. District Court for the Southern District Court of Florida rejected
a proposed settlement to a purported class action against Sharper Image
Corp. in relation to its purifier products.
The proposed settlement would have required the company to distribute $19
coupons to millions of consumers who bought air purifiers that were
allegedly defective, according to a report by The Associated Press.
Court documents revealed that in arguments supporting the settlement
proposal, Sharper Image depicted it as the best consumers could hope for
because the company is on the verge of bankruptcy.
The company had estimated the settlement could be worth $60 million to the
3.2 million consumers eligible to participate. Other documents in the case
estimated about $25 million of the coupons would be redeemed.
However, in a 61-page ruling, Judge Cecilia M. Altonaga called the
settlement unfair. She said it violated the Class Action Fairness Act
passed by Congress in 2005, a law was intended to curb coupon-only
settlements and provide more meaningful agreements, according to The Daily
Business Review.
Sharper Image's "precarious financial situation" did not affect her
decision, according to Judge Altonaga. She further wrote that she did not
find the proposed settlement "fair, adequate or reasonable."
Judge Altonaga also rejected the $2 million in attorney fees that the
plaintiffs firms were due to receive.
In ruling against the settlement, the judge indicated that she was
influenced by the rare interventions in the class action by 36 state
attorneys general, who filed amicus briefs objecting to the proposed
settlement.
Along with plaintiffs’ attorneys prosecuting a separate lawsuit, the
attorneys general said the case should have been settled with cash payments.
Case Background
On or before April 15, 2006, five purported class actions were filed against
the Company in relation to its “Ionic Breeze” purifiers.
The actions were filed on behalf of purchasers of the Ionic Breeze in the
State Courts of California (San Francisco) and Florida (Jacksonville), as
well as the U.S. District Courts of Maryland, Florida (Miami) and the
Central District of California. Only the San Francisco action has been
certified for class representation.
The Florida State Court action was stayed pending resolution of the ongoing
San Francisco case. The Maryland and Central District of California cases
have been dismissed.
The Florida District Court case was filed by Manual Figueroa in 2005. It
alleged that Sharper Image's "Ionic Breeze" purifiers didn't remove dust,
pollen and other nettlesome particles as the retailer advertised. The
devices sold for several hundred dollars apiece.
On Jan. 16, 2007, the Company entered into a Settlement Agreement and
Release in the case pending in the U.S. District Court for the Southern
District of Florida covering all persons who purchased an Ionic Breeze
branded product between May 6, 1999 and the effective date of the Agreement
who do not opt out of the Agreement.
The Agreement relates to claims made with respect to the performance,
effectiveness and safety of the Ionic Breeze line of indoor air purification
products.
The Agreement provides for the full release of the Company by all members of
the Settlement Class with respect to the Claims.
On Jan. 25, 2007, the Court gave preliminary approval to the Agreement. On
June 22, 2007 and on July 30, 2007, the Company amended and further amended
certain terms of the Agreement, including some of the considerations to be
provided to the Settlement Class.
On Aug. 16, 2007, a fairness hearing was held for the settlement in the
Florida District Court case. Judge Altonaga rejected the settlement in a
ruling issued Oct. 11.
The Florida suit is "Figueroa v. Sharper Image Corp., et al., Case No. 1:05-
cv-21251-CMA," filed in the U.S. District Court for the Southern District
Court of Florida, under Judge Cecilia M. Altonaga, with referral to Judge
Ted E. Bandstra.
Representing plaintiffs are:
David L. Aronoff, Esq.
Thelen Reid & Priest LLP
333 S Hope Street, 29th Floor
Los Angeles, CA 90071
Phone: 213-576-8044
Fax: 576-8080
Daniel Dennis Dolan, II, Esq.
Robert L. Parks, Esq.
Haggard Parks Haggard & Lewis
330 Alhambra Circle, 1st Floor
Coral Gables, FL 33134
Phone: 305-446-5700
Fax: 446-1154
E-mail: bob@haggardparks.com
- and -
Enrique J. Gimenez, Esq.
Stephen J. Rowe, Esq.
Jere F. White, Esq.
Lightfoot Franklin & White
400 20th Street North
The Clark Building, Birmingham, AL 35203-2706
Phone: 205-581-0774
Fax: 581-0799
Representing defendants are:
James S. Toscano, Esq.
Terry C. Young, Esq.
Lowndes Drosdick Doster Kantor & Reed
P.O. Box 2809, Orlando, FL 32802-2809
Phone: 407-843-4600
Fax: 843-4444
STARBUCKS COFFEE: Recalls Kids’ Cups for Laceration Hazard
----------------------------------------------------------
Starbucks Coffee Co., of Seattle, Washington, in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 250,000 Starbucks
children’s plastic cups.
The company said if the cup is dropped, the colorful face on the cup can
break off and leave small parts or sharp exposed edges that can pose a
choking or laceration hazard to young children.
Starbucks has received seven reports of the cups breaking, including two
reports in which a child began to choke on a broken piece. No injuries have
been reported.
The recall includes four styles of Starbucks children?s plastic 10-ounce
cups. Styles include: “Dot” Red Ladybug; “Dash” Green Turtle; Bunny Pink;
and Chick Yellow cups.
These recalled plastic cups were manufactured in China and are sold
exclusively at Starbucks stores nationwide from May 2006 through August 2007
for about $6.
Picture of recalled children’s plastic cups:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08017.jpg
Consumers are advised to immediately take the recalled cups away from young
children and contact Starbucks for instructions on returning the cups for a
refund. Starbucks is also offering a complimentary beverage as an incentive
to return the recalled cups.
For additional information, contact Starbucks at (888) 288-4008 anytime or
visit the firm’s Web site: http://www.starbucks.com
TIMBERLAND MORTGAGE: Accused of Reneging on Loan Discounts
----------------------------------------------------------
Timberland Mortgage Services, The Mortgage Shop and ATI Title Co. are facing
a class-action complaint in Hennepin County Court, Minneapolis alleging it
refused to provide discounted mortgage loans after promising to do so.
Named plaintiffs George O. Ensminger and Donnie B. Ensminger allege
Timberland has uniformly and repeatedly breached its contracts with the
class by including in its contract document language agreeing to provide
them discounted loans when, in fact, Timberland failed to provide the
promised discounts.
The complaint alleges Timberland induces borrowers, such as the plaintiffs,
to enter into loans by, inter alia, including in the closing costs of such
loans a charge for "discount points," "discount fees," or similar charges,
often totaling thousands of dollars, which are added to the principal of the
loan. The imposition of these charges leads borrowers to believe that
Timberland has promised to and will provide a "discount" to the loans'
interest rate. Unknown to the borrower, the interest rate of the loan is
not "discounted" and is frequently higher than Timberland's "par rate", the
complaint states. This conduct also constitutes a deceptive trade practice
within the meaning of Minn.Stat Sections 325D.44 and 325F.69.
Plaintiffs seek certification of the following classes:
Class 1: all persons who entered into a mortgage loan
transaction with Timberland or Timberland's
predecessors in interest, at any time after a date
six years prior to the commencement of this
action, were assessed a loan discount fee or
similar charge, and received either a par or
premium loan;
Class 2: all persons for whom the Mortgage Shop or its
predecessors in interest, at any time after a date
six years prior to the commencement of this
action, negotiated a mortgage at a rate of
interest exceeding the lender's par rate as
disclosed in the lender's then current
underwriting criteria;
Class 3: all persons who, on or after a date six years
prior to the commencement of this action were:
- charged fees by ATI in connection with real
estate transactions in Minnesota for recording
deeds, mortgages or releases that ATI either did
not record or were charged fees by ATI that
exceeded the actual cost of filing, or
- charged "Settlement or Closing Fees" or
"Handling Fees" without receiving advance notice
of ATI's intent to charge such fees, or
- charged fees for what were disclosed by ATI as
third party services that exceeded the actual
fee paid by ATI for such services, or
- charged fees for services that were not
performed.
They want the court to rule on:
(a) whether Timberland systematically assessed loan
discount fees without providing a discount;
(b) whether Timberland and/or the Mortgage Shop
misrepresented the nature of the so-called loan
discount fees;
(c) whether ATI has collected fees described as "Government
Recording and Transfer Charges" in excess of the actual
charges imposed by government officials or fees for
those services or charged fees for services not
performed or charged fees in excess of the actual costs
of said services;
(d) whether ATI has collected "Settlement or Closing Fees"
and "Handling Fees" without providing advance notice
thereof as required by Minn.Stat. Sections 82.41 Subd.7
and 507.45 Subd.2;
(e) whether Timberland and/or the Mortgage Shop has
violated Minn.Stat. Sections 28.13 and/or58.15
(f) whether the conduct described as alleged constitutes a
breach of contract;
(g) whether the conduct described as alleged constitutes a
deceptive trade practice within the meaning of the
deceptive trade practice statutes;
(h) whether the conduct described as alleged constitutes a
breach of fiduciary duty;
(i) whether the conduct described as alleged constitutes
unjust enrichment by the defendants;
(j) whether named plaintiffs are entitled to damages and/or
equitable relief, and the appropriate measures of such
damages.
Plaintiffs request for relief from the court as follows:
-- certification of this case as a class action on behalf
of the proposed classes and designation of plaintiffs as
class representatives and their counsel of record as
class counsel;
-- judgment in favor of the plaintiffs and members of the
plaintiffs' class 1 against Timberland, finding
Timberland to be in breach of its contracts with
plaintiffs and awarding damages in an amount to be
determined;
-- judgment in favor of the plaintiffs and members of the
plaintiffs' class 1, against Timberland for plaintiffs'
actual damages in an amount to be determined by the
court, plus costs and reasonable attorneys' fees;
-- declaratory judgment determining and declaring
defendants' conduct constitute unlawful and deceptive
trade practices and enjoining said conduct in the
future;
-- judgment in favor of plaintiffs and the members of the
plaintiffs' class against Mortgage Shop for plaintiffs'
actual damages in an amount to be determined by the
court, plus costs and reasonable attorneys' fees;
-- judgment in favor of the plaintiffs and the members of
the plaintiffs' class 2 against ATI for plaintiffs'
actual damages in an amount to be determined by the
trier of fact, plus reasonable attorneys' fees;
-- judgment in favor of the plaintiffs' class 2 against
ATI, finding ATI to be in breach of its contracts and
awarding damages to plaintiffs in an amount to be
determined by the trier of fact;
-- judgment in favor of plaintiffs and the members of
classes 2 and 3 against ATI and the Mortgage Shop,
finding ATI and the Mortgage Shop to be in breach of
their fiduciary duties and awarding plaintiffs damages
and equitable relief in an amount and/or nature to be
determined by the trier of fact and the court;
-- judgment in favor of the plaintiffs and the members of
plaintiffs' classes 2 and 3 against ATI and the Mortgage
Shop, finding ATI and the Mortgage Shop to have been
unjustly enriched and awarding plaintiffs' damages and
equitable relief in an amount to be determined by the
trier of fact and the court;
-- an award of prejudgment interest to plaintiffs at the
applicable rate;
-- an award to plaintiffs of reasonable attorneys' fees and
costs; and
-- such other and further relief, including such equitable
relief as the court deems just and proper.
The suit is "George O. Ensminger et al. v. Timberland Mortgage Services,
Inc. et al," filed in Hennepin County Court, Minneapolis.
Representing plaintiffs are:
Andrew J. Dawkins
Richard J. Fuller, Esq.
James P. Cullen, Esq.
1700 U.S. Bank Plaza South
220 South Sixth Street
Minneapolis, MN 55402-4511
Phone: (612) 339-4295
TREES N TRENDS: Faces Ill. FACTA Suit Over Credit Card Receipts
---------------------------------------------------------------
Trees N Trends, Inc. faces a purported class action in the U.S. District
Court for the Southern District of Illinois alleging violations of the Fair
and Accurate Credit Transaction Act.
The suit, a proposed national class action, was on filed Oct. 9, 2007 by
attorney Randy Patchett on behalf of Williamson County resident Stephen
Woods.
It is alleging plaintiffs wronged when a company printed the last four
digits and expiration dates of credit cards on receipts.
AFACTA was passed in 2003 and provides that anyone accepting credit or debit
cards may not print more than the last five digits of the card number or the
expiration date upon any receipt provided to the cardholder at the point of
sale or transaction.
Credit card machines (devices) put into use after Jan. 1, 2005, required
immediate compliance with FACTA. Machines in use before Jan. 1, 2005, were
required to be in compliance by Dec. 4, 2006.
The suit claims that Trees N Trends has printed expiration dates and/or more
than the last five digits of credit or debit cards on receipts at the point
of sale.
"Each and every such receipt violated (FACTA), irrespective of when the
Device was put into use," according to the complaint obtained by The St.
Clair Record.
The complaint states, "Trees N Trends' violations were not the product of an
accident or an isolated oversight. Rather, Trees N Trends knowingly and
intentionally continued to use Devices which were not programmed to, or
otherwise did not comply with (FACTA)."
It also states, "Plaintiff and class members also were exposed to at least
an increased risk of identity theft by reason of defendant's conduct."
Common questions of law as stated in the complaint are:
-- Whether defendants printed prohibited information on
credit card or debit card receipts in violation of
FACTA;
-- Whether defendants' conduct constituted willful
noncompliance with FACTA;
-- Whether class members are entitled to recover
statutory damages, punitive damages or attorneys'
fees.
The suit states that class members are entitled to monetary relief of not
less than $100 and not more than $1,000 for each violation.
The suit is “Woods v. Trees N Trends Inc. et al., Case No. 3:07-cv-00707-GPM-
CJP,” filed in the U.S. District Court for the Southern District of Illinois
under Judge G. Patrick Murphy with referral to Judge Clifford J. Proud.
Representing the plaintiffs are:
Randy Patchett, Esq.
Patchett Law Office
104 West Calvert, P.O. Box 1176
Marion, IL 62959
Phone: 618-997-1984
Fax: 618-998-1495
E-mail: patchettlawoffice@ll.net
VITESSE SEMICONDUCTOR: Settles Calif. Securities Suit for $10M
--------------------------------------------------------------
Vitesse Semiconductor Corp. entered into a proposed settlement of all
federal securities class action claims that were filed against the Company.
Case Background
On May 2, 2006 an investor sued Vitesse Semiconductor in federal court,
accusing the company of securities law violations.
The class action was filed in the U.S. District Court for the Central
District of California and seeks damages for violations of federal
securities laws on behalf of all investors who acquired Vitesse securities
from Oct. 23, 2003 to April 26, 2006, inclusive.
The lawsuit claims that Vitesse and three individual defendants violated
Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, 15
U.S.C. Sections 78j(b) and 78t(a), and SEC Rule 10b-5, 17 C.F.R. Section
240.10b-5, promulgated
thereunder.
Vitesse engages in the design, development, manufacturing, and marketing of
integrated circuits for systems manufacturers in the communications and
storage industries.
According to the complaint, Vitesse and three individual defendants violated
the federal securities laws by issuing materially false and misleading
statements during the class period that artificially inflated the company's
stock price.
Specifically, the defendants:
-- failed to properly account for credits issued to or
requested by customers;
-- failed to properly apply payments received to the
appropriate account receivable; and
-- failed to properly account for the stock options granted
to senior officers and directors.
Settlement
According to a report by WELT ONLINE, Christopher R. Gardner, Chief
Executive Officer stated, "We are very pleased to reach a settlement with
the plaintiffs in these actions. This litigation has been a distraction for
Vitesse management and employees as well as its customers and shareholders.
This settlement, if approved by the Court, will resolve the uncertainty
associated with these litigations and put an end to the significant legal
expenses we would have incurred in the event we had to continue to
litigate.”
The proposed settlement of the class action will include a cash payment to
the settlement fund of $10.2 million:
-- $8.75 million to be paid by Vitesse’s directors’ and
officers’ liability insurers, and
-- a total of $1.45 million to be paid by Louis R.
Tomasetta and Eugene F. Hovanec, two of the former
executives of Vitesse.
The same two former executives also will contribute all shares of Vitesse
common stock that they own, totaling 1,272,669 shares.
In addition, Vitesse will contribute 2,650,000 shares of Vitesse common
stock and no cash to the class fund.
In addition, under the proposed agreement, the Company and certain current
and former officers and directors of the Company who were named as
defendants will be dismissed from the lawsuits and will obtain releases from
the class plaintiffs.
The next step will be the filing of motions in the federal court asking for
preliminary approval of the proposed settlement and authorization to provide
current and former shareholders of Vitesse with notice of the proposed
settlement. The settlement will require final approval from the federal
court before they become effective.
The suit is “In Re: Vitesse Semiconductor Corporation Securities Litigation,
Case No. 06-CV-02639,” filed in the U.S. District Court for the Central
District of California under Judge.
Representing the plaintiffs are:
Abbey Spanier Rodd Abrams & Paradis, LLP
212 East 39th Street, New York, NY, 10016
Phone: 212-889-3700
Fax: 212-684-519
E-mail: info@abbeyspanier.com
Brodsky & Smith, LLC
11 Bala Avenue, Suite 39
Bala Cynwyd, PA, 19004
Phone: 610.668.7987
Fax: 610.660.0450
E-mail: esmith@Brodsky-Smith.com
Federman & Sherwood
120 North Robinson, Suite 2720
Oklahoma City, OK, 73102
Phone: 405-235-1560
E-mail: wfederman@aol.com
- and -
Law Offices of Charles J. Piven, P.A.
World Trade Center-Baltimore, 401 East Pratt, Ste 2525
Baltimore, MD, 21202
Phone: 410.332.0030
E-mail: pivenlaw@erols.com
WAL-MART STORES: Calif. Court Stays Assistant Managers’ Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Central District of California stayed the
purported class action, “Sepulveda v. Wal-Mart Stores, Inc.,” pending a
decision on plaintiff's appeal in the matter.
Generally, the suit - involving more than 2,750 assistant managers -- is
alleging violations of California’s meal break and overtime laws. It seeks
certification of a class of salaried managers who challenge their exempt
status under state and federal laws.
In May 2006, the federal court denied a motion for class certification. In
refusing to certify the class action, Judge Dale S. Fischer found that the
claims of the assistant managers were too individualized and that injunctive
relief would fail to address the concerns of the majority of potential class
members since they are no longer with the company.
Plaintiffs would then appeal the ruling to the U.S. Court of Appeals for the
Ninth Circuit.
On Aug. 11, 2006, the Ninth Circuit granted the plaintiffs permission to
appeal the order denying class certification. In its appeal plaintiffs
argued that the District Court’s decision denying class certification
was “manifestly erroneous.”
However, on June 26, 2006, before the Ninth Circuit granted plaintiffs’
petition for permission to appeal, the District Court agreed that the
petition was likely to be granted and stayed the action.
The District Court found that the stay was appropriate because the class
certification decision involves an unsettled, fundamental issue of law.
The Court then found, “Thus there is at least some likelihood that the Ninth
Circuit may grant the Petition, and ultimately find in Plaintiffs’ favor.”
The suit is "Daniel Sepulveda, et al. v. Wal-Mart Stores Inc., et al., Case
No. 2:04-cv-01003-DSF-E," on appeal from the U.S. District Court for the
Central District of California under Judge Dale Fischer.
Representing the plaintiffs are:
Robert J. Drexler, Jr., Esq.
Quisenberry Law Firm
2049 Century Park East, Suite 2200
Los Angeles, CA 90067-2909
Phone: 310-785-7966
E-mail: rdrexler@quislaw.com
- and -
Steven G. Pearl, Esq.
Pearl Law Offices
16133 Ventura Boulevard, Suite 625
Encino, CA 91436-2412
Phone: 818-995-8300
E-mail: sgpearl@sgpearl.com
Representing the defendants is:
Lawrence C. DiNardo, Esq.
Jones Day
77 West Wacker Drive, Suite 35
Chicago, IL 60601-1692
Phone: 312-782-3939
WINN-DIXIE: Employees Prepare Age, Gender, Racial Bias Lawsuit
--------------------------------------------------------------
Melbourne lawyer Maurice Arcadier is preparing a suit on behalf of former
and current Winn-Dixie employees who are allegedly victims of age, gender
and racial discrimination, Scott Blake of Florida Today reports.
Mr. Arcadier is building the suit for about 35 former and current Winn-Dixie
employees, mostly from Brevard, Fla. where the company has 11 stores, but he
said the suit is expanding now. He said he wants to get information on all
employees terminated by Winn-Dixie in the last three years, and analyze it
to see if patterns of discrimination emerge.
"I've gotten calls from different parts of Central Florida -- Gainesville,
Daytona, Orlando. But the bulk are from Brevard County,” Mr. Arcadier said.
A recent labor complaint ruling that favored a former Winn-Dixie supermarket
employee is expected to boost the allegation. The Florida Commission on
Human Relations has found "reasonable cause" to believe that Tammie Leonard
of Titusville of Brevard County was the victim of age and racial
discrimination.
According to the report, when Winn-Dixie was asked for comment on the
allegations, the company issued a statement, saying the company has an anti-
discrimination policy.
Winn-Dixie -- http://www.winn-dixie.com-- operates supermarkets throughout
the Southeastern U.S. with stores in Florida, Georgia, Alabama, Mississippi,
and Louisiana. The company also operates distribution centers in
Jacksonville, Miami and Orlando, FL; Montgomery, AL; and Hammond, LA. In
addition, Winn-Dixie's manufacturing plants produce or process a variety of
products including coffee, tea, spices, carbonated and non-carbonated
drinks, frozen pizza, ice cream, sherbet and milk.
Maurice Arcadier, Esq.
Allen & Arcadier, P.A.
700 North Wickham Road, Suite 107
Melbourne, FL 32935
Phone: (321) 254-7550
Fax: (321) 242-1681
Web site: http://www.wamalaw.com
YES TV: Faces Multi-million Dollar Suit Over Service Problems
-------------------------------------------------------------
Israeli satellite broadcaster Yes TV is facing two suits seeking class-
action status in relation to frequent disruptions of its services in recent
weeks, Israel Business Arena reports.
Both suits were filed in Tel Aviv District Court. The first seeks NIS122
million ($30.2 million) the second NIS62.5 million ($15.5 million). The
second suit was filed by Maya Ofek of Tel Aviv. She asked the court to
order YES to reimburse subscribers in the amount of one month's subscription
fee because of the disruptions. She said that she had expected YES to
reimburse subscribers immediately in September, when the disruptions began,
but that the company has not yet done so, according to the report.
Yes tv -- http://www.yes.tv.com,founded in 1998, is the sole satellite
television provider (DBS) in Israel. It began broadcasting in July 2000
under the trademark Yes. The largest shareholder of the provider is the
Bezeq corporation holding up to 49% of its shares.
* Milberg Weiss Co-founder Denies Kickback Scheme Conspiracy
------------------------------------------------------------
The co-founder of New York law firm Milberg Weiss and two co-defendants
pleaded not guilty Monday to federal charges related to a major class-action
kickback scheme, reports say.
Melvyn Weiss' not guilty plea followed a guilty plea of Steven G. Schulman,
former lawyer with Milberg Weiss, and a guilty plea of another former
Milberg executive William Lerach. Mr. Lerach pleaded guilty on Sept. 18 of
conniving to conceal secret payments to plaintiffs in shareholder lawsuits.
He is scheduled to enter his guilty plea to a conspiracy charge at end of
the month.
Milberg Weiss is accused of reaping $250 million in a scheme in which it
paid clients to act as plaintiffs in securities lawsuits. Mr. Schulman
pleaded guilty on Oct. 9 to a federal racketeering conspiracy charge against
him. He admitted arranging secret payments to Howard Vogel, a client and
former real estate broker from Florida, in 2005 at the instructions of
Weiss.
On Monday, Mr. Weiss entered not guilty pleas to two counts of conspiracy
and one count each of obstruction of justice and making false statements in
relation to documents that were the subject of a grand jury subpoena. If
found guilty, he faces a maximum sentence of 40 years in prison.
Not guilty pleas were also entered by plaintiff Seymour M. Lazar, who
appeared in court, and attorney Paul T. Selzer, who was represented by his
attorney, to charges contained in a superseding indictment filed last month.
Mr. Lazar, who allegedly received kickbacks, and Mr. Selzer are each charged
with four counts of money laundering. Mr. Selzer also is charged with one
count of conspiracy to launder money and a count of criminal forfeiture.
The firm also has been charged in the case and pleaded not guilty Monday to
charges in the superceding indictment.
Mr. Schulman will forfeit $1.85 million and pay a $250,000 fine. He agreed
to cooperate with prosecutors and they have agreed to recommend a sentence
range of 27 to 33 months. Sentencing was scheduled for June 23.
A trial date for the Milberg Weiss firm, accused paid plaintiff Seymour
Lazar and lawyer Paul Selzer is set for January. No trial date has been set
for Weiss.
New Securities Fraud Cases
NUTRISYSTEM INC: Klafter & Olsen Files Pa. Securities Fraud Suit
----------------------------------------------------------------
Klafter & Olsen LLP filed a class action in the United States District Court
for the Eastern District of Pennsylvania on behalf of a Class consisting of
all persons other than Defendants who purchased the common stock of
NutriSystem, Inc. (Nasdaq: NTRI - News) between February 14, 2007 and
October 3, 2007, inclusive, seeking to pursue remedies under the Securities
Exchange Act of 1934.
The complaint charges NutriSystem and certain of its officers with
violations of the Exchange Act while at the same time selling nearly $7
million in their personal holdings of NutriSystem stock. According to the
complaint, during the Class Period, defendants issued materially false and
misleading statements that misrepresented and/or failed to disclose:
(a) that the Company had been signing up fewer new
customers and was not performing according to internal
expectations;
(b) that the Company's costs of acquiring new customers
were significantly increasing; and
(c) that the Company's performance had been negatively
impacted by competition from other weight loss products
on the market.
As a result, the defendants lacked a reasonable basis for their positive
statements about the Company and its prospects, which artificially inflated
NutriSystem stock to Class Period highs exceeding $70 per share while the
defendants unloaded nearly $7 million in NutriSystem stock.
After the markets closed on October 3, 2007, the Company announced its
preliminary third quarter 2007 results and revised earnings guidance for the
full year of 2007. In response to this announcement, the price of
NutriSystem common stock fell $15.98 per share, or approximately 34%, to
close at $31.59 per share, on extremely heavy trading volume.
Interested parties may move the court no later than December 10, 2007 for
lead plaintiff appointment.
For more information, contact:
Klafter & Olsen LLP
Phone: 202/261-3553
Website: http://www.klafterolsen.com
*********
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Copyright 2007. All rights reserved. ISSN 1525-2272.
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