/raid1/www/Hosts/bankrupt/CAR_Public/071203.mbx
C L A S S A C T I O N R E P O R T E R
Monday, December 3, 2007, Vol. 9, No. 239
Headlines
ALLEGHENY ENERGY: Plaintiffs Appeal Dismissal of “Comer” Case
AMERICAN ACCEPTANCE: Faces Suit in Ind. Over Debt Collection
AMERIPRISE FINANCIAL: $100M Securities Suit Settlement on Hold
AMERIPRISE FINANCIAL: Plaintiffs Appeal Ruling in “Gallus” Case
AMERIPRISE FINANCIAL: Seeks Ruling in Advisors' Fees Lawsuit
APPLERA CORP: Continues to Face Conn. Securities Fraud Lawsuit
ARCHSTONE WESTBURY: Tenant Sues N.Y. Apartment Over Water Leaks
BECKMAN COULTER: Faces Ex-Worker's Labor Law Violations Lawsuit
BUCA INC: Plaintiffs Appeal Nixing of Minn. Securities Complaint
CIB MARINE: Opposes Motion to Lift Stay in Wis. Securities Suit
CONSTELLATION POWER: Md. Residents File Suit Over Fly Ash Dump
DELTA FINANCIAL: Responds to FLSA Violations Lawsuit in N.Y.
DELTA FINANCIAL: Settles Consumer Privacy Breach Lawsuit in Ill.
DELTA FINANCIAL: Settlement of N.Y. Consumer Fraud Suit Opposed
DENDREON CORP: Wash. Court Consolidates Securities Fraud Suits
DVA RENAL: Patients Seek Arbitration in Dismissed La. Lawsuit
DVA RENAL: Continues to Face Labor Law Violations Suit in Calif.
ENERGY PARTNERS: Del. Suit Over Merger with Stone Energy Junked
HIGHMARK INC: Reaches $14M Settlement for Fla. Physicians' Suit
MICROSOFT CORP: Senior Official Denies Wrongdoing in Wash. Suit
NEW MEXICO: Dona Ana Jail Settles Strip Suit by Former Inmates
RENT-A-CENTER INC: Feb. Hearing Set in Tex. Securities Suit Deal
UNITED NATIONS: Dutch Court Allows Suit Over Srebrenica Massacre
UNITED STATES: Appeals Court Junks Suit Over Michael Bianco Raid
WESTLING MANUFACTURING: Settles Labor Violations Suit in Minn.
New Securities Fraud Cases
BANKATLANTIC INC: Schiffrin Barroway Files Securities Fraud Suit
FOCUS MEDIA: Abraham Fruchter Files N.Y. Securities Fraud Suit
HOMEBANC CORP: Saxena White Files Securities Fraud Suit in Fla.
HOME SOLUTIONS: Sarraf Gentile Files Tex. Securities Fraud Suit
VIRGIN MOBILE: Kahn Gauthier Files Securities Fraud Suit in N.J.
*********
ALLEGHENY ENERGY: Plaintiffs Appeal Dismissal of “Comer” Case
-------------------------------------------------------------
Plaintiffs in the purported class action, “Comer, et al. v.
Nationwide Mutual Insurance Co., Case No. 1:05-cv-00436-LTS-
RHW,” are appealing the dismissal of all defendants, including
Allegheny Energy, Inc., from the case.
The suit was filed on April 19, 2006 against Allegheny Energy,
Inc., and numerous other companies with coal-fired generation
facilities.
It was brought on behalf of a purported class of residents and
property owners in Mississippi who were harmed by Hurricane
Katrina.
The named plaintiffs allege that the emission of greenhouse
gases by defendants contributed to global warming, thereby
causing Hurricane Katrina and plaintiffs' damages. The
plaintiffs seek unspecified damages.
On Dec. 6, 2006, the company filed a motion to dismiss
plaintiffs' complaint on jurisdictional grounds and joined a
motion filed by other defendants to dismiss the complaint for
failure to state a claim.
At a hearing on Aug. 30, 2007, the Court granted the motion to
dismiss that Allegheny Energy had joined, and dismissed all of
the plaintiffs’ claims against all defendants.
Plaintiffs filed a notice of appeal of that ruling on Sept. 17,
2007, and the appeal will now proceed before the U.S. Court of
Appeals for the Fifth Circuit.
The suit is “Comer, et al. v. Nationwide Mutual Insurance Co.,
Case No. 1:05-cv-00436-LTS-RHW,” filed in the U.S. District
Court for the Southern District of Mississippi under Judge L. T.
Senter, Jr. with referral to Judge Robert H. Walker.
Representing the plaintiffs are:
F. Gerald Maples, Esq.
Meredith A. Mayberry, Esq.
F. Gerald Maples, PA
902 Julia Street
New Orleans, LA 70113
Phone: 504/569-8732
E-mail: federal@geraldmaples.com
mmayberry@geraldmaples.com
- and -
Randall Allan Smith, Esq.
Stephen M. Wiles, Esq.
Smith & Fawer
201 St. Charles Ave., Suite 3702
New Orleans, LA 70170
Phone: 504/525-2200
Fax: 504/525-2205
E-mail: rasmith3@bellsouth.net
smwiles@smithfawer.com
AMERICAN ACCEPTANCE: Faces Suit in Ind. Over Debt Collection
------------------------------------------------------------
American Acceptance Co., and the law firm of Bowman Heintz
Boscia & Vician Professional Corp., are facing a class action in
the U.S. District Court for the Northern District of Indiana for
allegedly violating federal debt collection law, Erik Potter of
The Gary Post Tribune reports.
The suit was filed on Nov. 27, 2007 by Donna Ketchem on behalf
of herself and 50 other Indiana consumers against both
defendants, who were located at the corner of 86th Avenue and
Broadway in Merrillville, Indiana.
The suit claims both businesses are owned by the same people,
with American Acceptance Co. purchasing delinquent debt from
credit card companies and turning it over to Bowman Heintz
Boscia & Vician to pursue collection in court.
The 50-plus members of the suit claim that American Acceptance
Co. was misleading when it threatened to charge consumers the
legal fees it incurred in collecting their debt, because it was
not legally able to collect those fees.
Many major credit card companies, including Citibank, Capital
One, Wells Fargo and MBNA (now FIA Card Services), prohibit
collection agencies from collecting in-house attorney's fees.
The suit claims that, given the “substantial identity of
interest” between American Acceptance Co. and Bowman Heintz
Boscia & Vician, the firm functions like an in-house firm and
falls under the same rules.
The suit is “Ketchem v. American Acceptance Co et al., Case No.
2:07-cv-00415-RLM-PRC,” filed in the U.S. District Court for the
Northern District of Indiana under Judge Robert L. Miller Jr.
with referral to Judge Paul R Cherry.
Representing the plaintiffs is:
Cathleen M. Combs, Esq.
Daniel A. Edelman, Esq.
Edelman Combs Latturner & Goodwin LLC
120 S LaSalle Street Suite 1800
Chicago, IL 60603
Phone: 312-739-4200
Fax: 312-419-0379
E-mail: ccombs@edcombs.com
courtecl@edcombs.com
AMERIPRISE FINANCIAL: $100M Securities Suit Settlement on Hold
--------------------------------------------------------------
The settlement in the matter “In re American Express Financial
Advisors (AEFA) Securities Litigation,” which was filed against
AEFA -- now known as Ameriprise Financial Advisors, will not be
implemented until an objector's appeal, which is primarily
contesting the attorney’s fees allocation, is resolved.
In October 2005, the Company reached a comprehensive settlement
regarding the consolidated securities class action filed against
the Company, its former parent and affiliates in October 2004
called, “In re American Express Financial Advisors (AEFA)
Securities Litigation.”
Among the allegations in the AEFA Securities Litigation, the
Plaintiffs contend that they were sold financial plans and/or
advice that contained one-size-fits-all recommendations, in
order to generate fees for AEFA.
These recommendations were, in part, designed to place
investors' money into non-proprietary “Preferred” or “Select”
mutual funds, as well as AEFA proprietary funds, which included:
-- AXP Global Technology n/k/a RiverSource Global
Technology;
-- AXP Global Technology F n/k/a RiverSource Global
Technology F;
-- AXP Equity Select A n/k/a RiverSource Mid Cap Growth;
-- AXP Growth A n/k/a RiverSource Growth A;
The settlement, under which the Company denies any liability,
includes a one-time payment of $100 million to the class
members.
The class members include individuals who purchased mutual funds
in the Company’s Preferred Provider Program, Select Group
Program, or any similar revenue sharing program, purchased
mutual funds sold under the American Express or AXP brand; or
purchased for a fee financial plans or advice from the Company
between March 10, 1999 and through April 1, 2006.
On Feb. 14, 2007, the Court preliminarily approved the
settlement and set a Final Fairness Hearing for June 4, 2007.
Final approval was granted by the Court on July 18, 2007.
The Court issued an Order and Final Judgment that dismissed the
Class Action Complaint with prejudice, released the defendants
from all liability for the claims asserted and any other claims
based upon the same core allegations, and enjoined class members
from asserting such claims in the future.
In August 2007, an objector filed an appeal, primarily
contesting the attorney’s fees allocation. The settlement will
not be implemented until the appeal is resolved, according to
the company's Nov. 7, 2007 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended Sept. 30, 2007.
Ameriprise Financial, Inc. -- http://www.ameriprise.com/-- is
engaged in providing financial planning, products and services
that are designed to offer solutions for its clients’ asset
accumulation, income and protection needs.
AMERIPRISE FINANCIAL: Plaintiffs Appeal Ruling in “Gallus” Case
---------------------------------------------------------------
Plaintiffs in the purported class action, “John E. Gallus et al.
v. American Express Financial Corp. and American Express
Financial Advisors Inc.,” which was originally filed in June
2004 against American Express -- now known as Ameriprise
Financial, Inc., are appealing a decision by the U.S. District
Court for the District of Arizona to grant the defendant's
summary judgment motion.
Plaintiffs allege that they are investors in several of the
Company’s mutual funds and they purport to bring the action
derivatively on behalf of those funds under the Investment
Company Act of 1940.
They also allege that fees allegedly paid to the defendants by
the funds for investment advisory and administrative services
are excessive.
Plaintiffs seek remedies including restitution and rescission of
investment advisory and distribution agreements.
They later would voluntarily agree to transfer this case to the
U.S. District Court for the District of Minnesota.
In response to the Company’s motion to dismiss the complaint,
the Court dismissed one of plaintiffs’ four claims and granted
plaintiffs limited discovery.
In April 2007, the Company moved for summary judgment on all
claims.
On July 6, 2007, the Court granted Ameriprise’s motion for
summary judgment, dismissing all claims with prejudice.
Plaintiffs have appealed the Court’s decision, according to the
company's Nov. 7, 2007 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended Sept. 30,
2007.
Ameriprise Financial, Inc. -- http://www.ameriprise.com/-- is
engaged in providing financial planning, products and services
that are designed to offer solutions for its clients’ asset
accumulation, income and protection needs.
AMERIPRISE FINANCIAL: Seeks Ruling in Advisors' Fees Lawsuit
------------------------------------------------------------
The U.S. District Court for the District of Minnesota has yet to
rule on a motion for summary judgment in a purported class
action that alleges Ameriprise Financial, Inc. miscalculated
advisors' fees.
The lawsuit, “Good, et al. v. Ameriprise Financial, Inc. et al.
Case No. 00-cv-01027,” was filed in March 2006 in the U.S.
District Court for the District of Minnesota.
It has been brought as a putative class action and plaintiffs
purport to represent all of the company's advisors who sold
shares of Real Estate Investment Trusts and tax credit limited
partnerships between March 22, 2000, and March 2006.
Plaintiffs seek unspecified compensatory and restitutionary
damages as well as injunctive relief, alleging that the company
incorrectly calculated commissions owed advisors for the sale of
these products.
In September 2007, the Company moved for summary judgment on all
claims and is awaiting the Court’s ruling on the motion,
according to the company's Nov. 7, 2007 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended Sept. 30, 2007.
The suit is “Good, et al. v. Ameriprise Financial, Inc. et al.
Case No. 00-cv-01027,” filed in the U.S. District Court for the
District of Minnesota under Judge Donovan W. Frank with referral
to Judge Susan R. Nelson.
Representing the plaintiffs are:
Bryan L. Crawford, Esq.
Samuel D. Heins, Esq.
Stacey L. Mills, Esq.
Brian L. Williams, Esq.
Heins Mills & Olson, PLC
80 S. 8th St., Ste. 3550
Mpls, MN 55402
Phone: 612-338-4605
Fax: 612-338-4692
E-mail: bwilliams@heinsmills.com
sheins@heinsmills.com
smills@heinsmills.com
magarian.edward@dorsey.com
bcrawford@heinsmills.com
Representing the defendant is:
Edward B. Magarian, Esq.
Dorsey & Whitney, LLP
50 S. 6th St., Ste. 1500
Minneapolis, MN 55402-1498
Phone: 612-340-7873
Fax: 612-340-2807
E-mail: magarian.edward@dorsey.com
APPLERA CORP: Continues to Face Conn. Securities Fraud Lawsuit
--------------------------------------------------------------
Applera Corp. and some of its officers continue to face a
securities fraud class action in the U.S. District Court for the
District of Connecticut.
The suit was filed on behalf of purchasers of Applera-Celera
Genomics stock in the company's follow-on public offering of
Applera-Celera Genomics stock completed on Feb. 6, 2000.
In the offering, the company sold an aggregate of approximately
4.4 million shares of Applera-Celera Genomics stock at a public
offering price of $225 per share.
The suit was commenced with the filing of several complaints in
April and May 2000. An amended consolidated complaint was filed
on Aug. 21, 2001.
The consolidated complaint generally alleges that the prospectus
used in connection with the offering was inaccurate or
misleading because it failed to adequately disclose the alleged
opposition of the Human Genome Project and two of its
supporters, the governments of the U.S. and the U.K., to provide
patent protection to the company's genomic-based products.
Although the Celera Genomics group has never sought, or intended
to seek, a patent on the basic human genome sequence data, the
complaint also alleges that the company did not adequately
disclose the risk that the Celera Genomics group would not be
able to patent this data.
The consolidated complaint seeks monetary damages, rescission,
costs and expenses, and other relief as the court deems proper.
On March 31, 2005, the court certified the case as a class
action.
The company reported no development in the matter in its Nov. 7,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2007.
Applera Corp. -- http://www.applera.com– through its Applied
Biosystems unit makes instrumentation systems, along with
related consumables, software, and services, that let life
sciences researchers analyze nucleic acids, proteins, and small
molecules. It's Celera unit is primarily engaged in genomics
and proteomics research, seeking out diagnostic markers and
developing molecular diagnostic products.
ARCHSTONE WESTBURY: Tenant Sues N.Y. Apartment Over Water Leaks
---------------------------------------------------------------
Archstone Westbury apartment complex in Westbury, N.Y. faces a
purported class action by a resident claiming mold and water
leaks in the property made her sick and damaged her property,
Newsday reports.
The suit was filed by Andrea Sorrentino, a business executive,
who moved to an apartment owed by the defendants in June 2005.
According to the report, Ms. Sorrentino learned of the water
problems when the parent company of apartment informed tenants
last week that they move out by March 31 so that renovation may
begin.
Ms. Sorrentino is represented by attorney Richard W. Cohen of
Lowey, Dannenberg, Bemporad & Selinger, P.C., a White Plains,
N.Y. law firm.
"Ms. Sorrentino moved into a luxury apartment building with
extremely high rents and had the right to expect not only
habitability, but a luxury standard of habitability," said Mr.
Cohen.
According to the report, last week, it was no yet clear what
caused the leaching of water into the walls of the upscale
development, soaking insulation and threatening interior
mechanical equipment and structural integrity. Archstone-Smith
said it was still investigating whether the construction and
design of the complex were the possible causes.
For more details, contact:
Richard W. Cohen
Lowey, Dannenberg, Bemporad & Selinger, P.C.
White Plains Plaza
One North Broadway
White Plains, NY 10601-2310
Phone: (914) 997-0500 and (877) 777-3581
Fax: (914) 997-0035
Web site: http://www.ldbs.com
BECKMAN COULTER: Faces Ex-Worker's Labor Law Violations Lawsuit
---------------------------------------------------------------
Beckman Coulter, Inc. faces a purported class action in
California, which alleges that the company violated certain
provisions of the California Labor Code and applicable
California Industrial Welfare Commission Wage Orders.
On Aug. 16, 2007, a former employee of the Company filed a
lawsuit in Orange County California Superior Court titled,
“Davila v. Beckman Coulter.”
The lawsuit alleges claims on the plaintiff’s own behalf and
also on behalf of a purported class of former and current
Beckman Coulter employees.
The complaint alleges, among other things, that the Company
violated certain provisions of the California Labor Code and
applicable California Industrial Welfare Commission Wage Orders
with respect to meal breaks and rest periods, the payment of
compensation for meal breaks and rest periods not taken, the
information shown on pay stubs, and certain overtime payments.
It also alleges that the Company engaged in unfair business
practices.
The plaintiff is seeking back pay, statutory penalties, and
attorneys’ fees, and seeks to certify this action on behalf of
the Company’s nonexempt California employees.
Beckman Coulter, Inc. -- http://www.beckman.com/-- is a
manufacturer of biomedical testing instrument systems, tests and
supplies that simplify and automate laboratory processes. It
designs, manufactures and sells systems, services, reagents and
supplies to clinical and life science laboratories worldwide.
BUCA INC: Plaintiffs Appeal Nixing of Minn. Securities Complaint
----------------------------------------------------------------
Plaintiffs in a consolidated securities class action against
BUCA, Inc. are appealing a dismissal by the U.S. District Court
for the District of Minnesota of the second complaint in their
case.
Between Aug. 7, 2005 and Sept. 7, 2005, three identical civil
actions were commenced against the company. The three actions
were later consolidated.
On Jan. 11, 2006, the four lead plaintiffs filed and served a
consolidated amended complaint. The complaint was brought on
behalf of a class consisting of all persons who purchased the
company's common stock in the market during the time period from
Feb. 6, 2001 through March 11, 2005.
The lead plaintiffs allege that in press releases and U.S.
Securities and Exchange Commission filings issued during the
class period, defendants made materially false and misleading
statements about the company's income, revenues, and internal
controls, which allegedly had the result of artificially
inflating the market price for the company's stock.
They assert claims under Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934, and seek compensatory damages
in an unspecified amount, plus an award of attorneys' fees and
costs of litigation.
On Feb. 26, 2007, the company filed a motion to dismiss the
Second Complaint, which was granted on August 30, 2007.
Judgment was entered against the plaintiffs. Plaintiffs have
filed an appeal to the U.S. Court of Appeals for the Eighth
Circuit, which remains pending, according to the company's Nov.
7, 2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2007.
The suit is “West Palm Beach Police Pension Fund, et al. v.
Buca, Inc., et al., Case No. 05-CV-1762,” filed in the U.S.
District Court for the District of Minnesota under Judge Donovan
W. Frank with referral under Judge Arthur Boylan.
Representing the plaintiffs are:
Bryan L. Crawford, Esq.
Muria J. Kruger, Esq.
Stacey L. Mills, Esq.
Heins Mills & Olson, PLC
80 S. 8th St., Ste. 3550,
Mpls., MN 55402
Phone: 612-338-4605
Fax: 612-338-4692
E-mail: bcrawford@heinsmills.com
mkruger@heinsmills.com
smills@heinsmills.com
Jay W. Eng, Esq.
Michael J. Pucillo, Esq.
Berman DeValerio Pease Tabacco Burt & Pucillo
222 Lakeview Ave., Ste. 900
West Palm Beach, FL 33401
Phone: 561-835-9400,
Fax: 561-835-0322, E-mail: jeng@bermanesq.com and
mpucillo@bermanesq.com
- and -
Daniel S. Sommers, Esq.
Steven J. Toll of Cohen Milstein
Hausfeld & Toll, PLLC - DC, 1100 New York Ave., NW Ste.
500, Washington, DC 20005-3934, Phone: 202-408-4609 and
202-408-4646, E-mail: dsommers@cmht.com and
stoll@cmht.com.
Representing the defendants are:
Michael M. Krauss, Esq.
Wendy J. Wildung, Esq.
Faegre & Benson, LLP
90 S. 7th St., Ste. 2200
Minneapolis, MN 55402-3901
Phone: 612-766-8514
Fax: 612-766-1600
E-mail: mkrauss@faegre.com
wwildung@faegre.com
CIB MARINE: Opposes Motion to Lift Stay in Wis. Securities Suit
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Wisconsin
has yet to rule on motions to vacate the stay of discovery in a
securities fraud suit against CIB Marine Bancshares, Inc.
On June 3, 2005, a first consolidated complaint was filed by
Dennis Lewis, a shareholder, and other alleged shareholders of
CIB Marine, in the U.S. District Court for the Central District
of Illinois, Urbana Division, against CIB Marine, certain of its
current and former officers and directors, and KPMG, LLP.
The filing consolidated two actions that had been filed in
January 2005:
-- one filed by Mr. Lewis in the U.S. District Court for
the Central District of Illinois, Urbana Division; and
-- another filed in the U.S. District Court for the Central
District of Illinois, Peoria Division by Elaine
Sollberger, a purported shareholder, whose claims were
voluntarily dismissed in connection with the
consolidation, and have not been reasserted in the
consolidated complaint.
Plaintiffs sought to maintain the action as a class action on
behalf of all persons who purchased common stock of CIB Marine
between April 12, 1999, and April 12, 2004, claiming violations
of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder
by CIB Marine and other defendants and liability of certain
defendants other than CIB Marine and KPMG under Section 20(a) of
the U.S. Securities Exchange Act as controlling persons.
The substance of the complaint is that the financial condition
of CIB Marine was overstated with the result that members of the
purported class acquired their CIB Marine stock at inflated
prices. Plaintiffs seek money damages, interest, attorneys'
fees and costs.
The court granted the motion of CIB Marine and several other
defendants to transfer the action to the U.S. District Court for
the Eastern District of Wisconsin, sitting in Milwaukee,
Wisconsin, where the action is now pending.
All defendants moved to dismiss the action on various grounds.
On Oct. 12, 2006, the court denied CIB Marine's motion to
dismiss, granted in part the motions to dismiss filed by the
individual defendants and granted the motion to dismiss filed by
KPMG.
CIB Marine and the individual defendants have filed answers to
the pending complaint denying any liability. An additional
person has moved to intervene as a plaintiff in the action.
In light of a recent decision of the U.S. Supreme Court that
addressed the pleading standards that must be satisfied by the
plaintiff in a case such as this one, on July 16, 2007, CIB
Marine and the individual defendants filed a motion for judgment
on the pleadings, or in the alternative, a motion for
reconsideration of the ruling on the motion to dismiss, seeking
dismissal of the action on the ground that the plaintiffs have
not satisfactorily pleaded one of the essential elements of
their cause of action. That motion has been fully briefed and
no date has been set for a decision.
On Nov. 10, 2006, plaintiffs filed a further amended complaint
as to KPMG, which KPMG moved to dismiss. On Aug. 13, 2007, the
court granted KPMG’s motion and dismissed the action as to it.
As a result of the filing of the initial motions to dismiss, all
discovery in this action was stayed automatically. Plaintiffs
have moved to vacate that stay of discovery, which all
defendants opposed based on KPMG’s pending motion to dismiss the
further amended complaint filed by plaintiffs against KPMG.
In granting KPMG’s motion to dismiss, the court noted the
pendency of the motion for judgment on the pleadings described
above and ruled that the stay of discovery will remain in place.
Plaintiffs have filed a separate motion for a limited lift of
the stay of discovery, which CIB Marine and the individual
defendants opposed in their response filed on Sept. 11, 2007.
The court has not set a date to rule on the motions to vacate
the stay of discovery, according to the company's Nov. 7, 2007
Form 10-K Filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2006.
The suit is “Lewis et al. v. Straka et al., Case No. 2:05-cv-
01008-LA,” filed in the U.S. District Court for the Eastern
District of Wisconsin under Judge Lynn Adelman.
Representing the plaintiffs are:
Kristi L. Browne, Esq.
The Patterson Law Firm, 33 N LaSalle St.
Chicago, IL 60602
Phone: 312-223-1699
- and -
James W. Gardner, Esq.
Douglas J. Phebus, Esq.
Lawton & Cates
10 E Doty St. – Ste. 400, P.O. Box 2965
Madison, WI 53701-2965
Phone: 608-282-6200
Representing the company are:
Allan Horwich, Esq.
John C. Martin, Esq.
Schiff Hardin LLP
Sears Tower, 233 S Wacker Dr - Ste 6600
Chicago, IL 60606-6473
Phone: 312-258-5618
Fax: 312-258-5700
E-mail: ahorwich@schiffhardin.com
jmartin@schiffhardin.com
CONSTELLATION POWER: Md. Residents File Suit Over Fly Ash Dump
--------------------------------------------------------------
Murphy & Falcon, P.A. of Baltimore filed a class action on
behalf of Gambrills, Maryland residents whose wells have been
contaminated by nearby fly ash dump sites operated by
Constellation Power Source Generation, Inc. on property owned by
BBSS, Inc. in Anne Arundel County.
The complaint was filed in the Circuit Court for Baltimore City,
Md.
The Gambrills residents have been affected by groundwater
contaminated with toxins including arsenic, lead and cadmium,
which are linked to cancer and other serious health effects.
So far, 34 residential wells have been polluted by
Constellation's reckless negligence. The dump sites also sit
atop the deep aquifer that supplies Crofton's municipal wells,
which residents fear may be threatened by future contamination.
“What this $19-billion dollar a year energy giant continues to
do to this community is blatantly unconscionable,” said Prince
Georges County Executive Wayne Curry, a member of the Murphy
firm legal team. “To add insult to injury, they told this
community for years that dumping fly ash in an old mine site was
actually beneficial.”
Mr. Curry added, “Constellation seems to think these neighbors
should be able to get by on bottled water and garden hoses
hooked up to fire hydrants, while they constantly worry over
their health and watch their property values plummet.”
“By filing this suit, the victims and the Murphy firm legal team
form the vanguard of citizens trying to solve a national health
and environmental crisis,” according to Mr. Curry.
“Under-regulated fly ash dumps are scattered throughout the U.S.
and many of them are badly polluting groundwater, surface water
and the air with contaminated dust at a risk to individuals
living near the dump sites. Regulations have failed in so many
instances to protect nearby residents, so people must bring suit
to protect themselves.”
For more details, contact:
Murphy & Falcon, P.A.
One South Street, Suite 2300
Baltimore, Maryland 21202
Phone: 410-539-6500
Fax: 410-539-6599
http://www.billymurphylaw.com
DELTA FINANCIAL: Responds to FLSA Violations Lawsuit in N.Y.
------------------------------------------------------------
A subsidiary of Delta Financial Corp. faces a purported class
action filed in the U.S. District Court of the Eastern District
of New York alleging violations of the Fair Labor Standards Act.
In or about August 2007, the company received notice that it has
been named in a lawsuit styled as a class action and collective
action filed in the U.S. District Court of the Eastern District
of New York. The suit alleges that Fidelity Mortgage Inc., now
a division of Delta Financial's other subsidiary, Delta Funding
Corp., did not pay its loan officers overtime compensation
and/or minimum wage in violation of the FLSA and New York and
Ohio state wage and hour laws.
The complaint seeks with respect to the FLSA collective action
claims:
-- an amount equal to the unpaid wages at the applicable
overtime rate,
-- an amount equal to the overtime wage damages as
liquidated damages,
-- judgment that Fidelity willfully violated the FLSA,
-- prejudgment interest and
-- costs and attorneys’ fees.
With respect to the New York state wage and hour laws claims,
the complaint seeks:
-- certification of a class of plaintiffs,
-- an amount equal to the unpaid wages at the applicable
overtime rate, and
-- costs and attorneys’ fees.
With respect to the Ohio state wage and hour law claims, the
complaint seeks:
-- certification of a class of plaintiffs,
-- an amount equal to the unpaid wages at the applicable
overtime rate,
-- an amount equal to six percent of the unpaid overtime
wage, or $200, whichever is greater, as liquidated
damages, and
-- costs and attorneys’ fees.
In October 2007, the company filed an answer to the complaint,
according to the company's Nov. 8, 2007 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended Sept. 30, 2007.
Delta Financial Corp. -- http://www.deltafunding.com/-- is a
specialty consumer finance company that originates, securitizes
and sells non-conforming mortgage loans.
DELTA FINANCIAL: Settles Consumer Privacy Breach Lawsuit in Ill.
----------------------------------------------------------------
Delta Financial Corp. agreed to an individual nuisance value
settlement with regards to a purported class action filed
against it in the U.S. District Court for the Northern District
of Illinois.
In or about February 2007, the company received notice that it
was named as a defendant in a case, which is alleging that it
had accessed certain consumers' credit reports without a
permissible purpose under the Fair Credit Reporting Act and sent
improper prescreening offers in Illinois.
The case is based upon alleged violations of the FCRA, common
law invasion of privacy, and consumer fraud/unfair acts and
practices.
The complaint sought certification of a class of plaintiffs,
injunctive relief against further violations, statutory damages
and general and other damages, and attorneys' fees, costs and
litigation expenses.
In March 2007, the company filed a motion for a stay of the
action pending certain decisions expected to be rendered by
other courts in actions pending against other companies, whose
decisions in them may impact the legal issues involved in the
company's case.
In March 2007, the Court stayed the action until June 2007. In
June 2007, the plaintiff stipulated, without prejudice, to
dismissing the common law invasion of privacy claim and the
consumer fraud/unfair acts and practices claim, and dismissed
only that part of the relief seeking injunctive relief on the
FCRA claim.
In June 2007, the company filed an answer to the complaint and
discovery is proceeding.
In July 2007, plaintiff filed a motion for class certification
and the company's opposition filing was due in August 2007.
In September 2007, the company agreed to an individual nuisance
value settlement on an individual basis with the plaintiff and
the lawsuit has been dismissed.
Delta Financial Corp. -- http://www.deltafunding.com/-- is a
specialty consumer finance company that originates, securitizes
and sells non-conforming mortgage loans.
DELTA FINANCIAL: Settlement of N.Y. Consumer Fraud Suit Opposed
---------------------------------------------------------------
Certain parties object to a proposed settlement of a class
action filed against Delta Financial Corp. in the U.S. District
Court for the Eastern District of New York over alleged
violations of laws on consumer protection for deceptive
practices.
In December 1998, plaintiff filed an amended complaint alleging
that the company had violated the Home Ownership and Equity
Protection Act of 1994, the Truth-in-Lending Act and Section 349
of the New York State General Business Law, which relates to
consumer protection for deceptive practices.
The complaint sought certification of a class of plaintiffs,
declaratory judgment permitting rescission, unspecified actual,
statutory, treble and punitive damages, including attorneys'
fees, injunctive relief and declaratory judgment declaring the
loan transactions as void and unconscionable.
On Dec. 7, 1998, plaintiff filed a motion seeking a temporary
restraining order and preliminary injunction, enjoining the
company from conducting foreclosure sales on 11 properties.
The District Court ruled that in order to consider the motion,
plaintiff must move to intervene on behalf of these 11
borrowers.
Thereafter, plaintiff moved to intervene on behalf of three of
these 11 borrowers and sought injunctive relief on their behalf.
The company opposed the motions.
On Dec. 14, 1998, the District Court granted the motion to
intervene and on Dec. 23, 1998, the District Court issued a
preliminary injunction that enjoined the company from proceeding
with the foreclosure sales of the three interveners' properties.
The company filed a motion for reconsideration of the Dec. 23,
1998 order.
In January 1999, the company filed an answer to plaintiffs'
first amended complaint. In July 1999, the plaintiffs were
granted leave, on consent to file a second amended complaint.
In August 1999, the plaintiffs filed a second amended complaint
that, among other things, added additional parties but contained
the same causes of action alleged in the first amended
complaint.
In September 1999, the company filed a motion to dismiss the
complaint, which was opposed by plaintiffs and, in June 2000,
was denied in part and granted in part by the District Court.
In October 1999, plaintiffs filed a motion seeking an order
preventing the company, its attorneys and/or the New York State
Banking Department (NYSBD) from issuing notices to a number of
borrowers, in accordance with the settlement agreement entered
into by and between the NYSBD and the company. In the fourth
quarter of 1999, the company and the NYSBD submitted opposition
to the plaintiffs' motion.
In March 2000, the District Court issued an order that permitted
the company to issue an approved form of the notice. In
September 1999, the plaintiffs filed a motion for class
certification, which the company opposed in February 2000, and
which was ultimately withdrawn without prejudice by the
plaintiffs in January 2001.
In February 2002, the company executed a settlement agreement
with the plaintiffs, under which it denied all wrongdoing, but
agreed to resolve the litigation on a class-wide basis.
The District Court preliminarily approved the settlement and a
fairness hearing was held in May 2002. The company submitted
supplemental briefing at the court's request in or about April
2004.
In August 2004, the District Court conditionally approved the
settlement, subject to the company's submitting supplemental
documentation regarding a change in the settlement agreement and
proposed supplemental notices to be sent to those borrowers who
either opted out or objected.
The company, plaintiffs and certain objectors submitted its
respective supplemental submissions in August 2004 and the
District Court granted its final approval to the settlement in
January 2005.
In February 2005, certain objectors filed a notice of appeal.
The objectors filed their appellate brief in July 2005. The
company filed its appellate papers in opposition in September
2005, and the objectors filed their reply papers in September
2005.
In February 2006, the Appellate Court vacated the District
Court's decision to approve the settlement, not based on the
merits of the settlement, but because a motion to intervene was
decided by the District Court Magistrate Judge and not the
District Court.
The Appellate Court instructed the District Court to rule on the
motion to intervene and, until then, it cannot be determined if
the District Court will also have to rule on the fairness of the
settlement, or if that issue will have to return to the
Appellate Court.
Briefing on the intervention motion was re-submitted to the
District Court Judge in July 2006, and the motion was denied in
November 2006.
In January 2007, the company executed a proposed amendment to
the settlement with the plaintiffs, which did not increase the
settlement amount.
In March 2007, the plaintiffs filed a motion for preliminary
approval of the amended settlement and the proposed notice to
the class.
In April 2007, certain objectors filed an opposition to the
motion for preliminary approval. The company filed its reply to
the objectors' opposition in May 2007. The plaintiffs also
filed their reply to the objectors' opposition in May 2007.
The company reported no development in the matter at its Nov. 8,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2007.
The suit is “Lopez v. Delta Funding Corp. et al., Case No. 1:98-
cv-07204-MDG,” filed in the U.S. District Court for the Eastern
District of New York under Judge Marilyn D. Go.
Representing the plaintiffs is Karin E. Fisch, Abbey Gardy, LLP,
212 East 39th Street, New York, NY 10016, Phone: 212-889-3700.
Representing the company are:
Martin C. Bryce, Esq.
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st. Floor
Philadelphia, PA 19103
Phone: (215) 864-8238
Fax: (215) 864-9511
E-mail: bryce@ballardspahr.com
- and -
Eugene R. Licker, Esq.
Loeb & Loeb, 345 Park Avenue
New York, NY 10154
Phone: 212-407-4157
Fax: 646-219-7454
E-mail: elicker@loeb.com
DENDREON CORP: Wash. Court Consolidates Securities Fraud Suits
--------------------------------------------------------------
The U.S. District Court for the Western District of Washington
consolidated securities fraud class actions filed against
Dendreon Corp.
Three of these suits name Dendreon and its chief executive
officer as defendants and allege a proposed class period of
March 30, 2007 through May 8, 2007. One suit names Dendreon,
four of its executive officers, and two members of our board of
directors and alleges a proposed class period of March 1, 2007
through May 8, 2007.
All four proposed class actions purport to state claims for
securities law violations stemming from the company's
disclosures related to Provenge and the U.S. Food and Drug
Administraion's actions regarding its pending biologics license
application for Provenge.
The complaints seek compensatory damages, attorney’s fees and
expenses.
On Oct. 4, 2007, the Court consolidated these actions under the
caption, “McGuire v. Dendreon Corp., et al.,” and designated a
lead plaintiff.
The lead plaintiff has indicated that he intends to designate
the complaint filed June 6, 2007 in “McGuire, et al. v. Dendreon
Corp., et al.,” as the operative complaint.
Dendreon Corp. -- http://www.dendreon.com-- is a biotechnology
company focused on the discovery, development and
commercialization of therapeutics that harness the immune system
to fight cancer.
DVA RENAL: Patients Seek Arbitration in Dismissed La. Lawsuit
-------------------------------------------------------------
The plaintiff in a purported class action against DVA Renal
Healthcare, Inc. filed a demand to compel class arbitration in
the case, which was previously dismissed by U.S. District Court
for the Western District of Louisiana back in March.
DVA Renal is formerly known as Gambro Healthcare, Inc. It is
now a subsidiary of DaVita, Inc.
On Aug. 8, 2005, Blue Cross/Blue Shield of Louisiana filed a
complaint against Gambro AB, DVA Renal and related entities.
The plaintiff sought to bring its claims as a class action on
behalf of itself and all entities that paid any of the
defendants for health care goods and services from on or about
January 1991 through at least December 2004.
The complaint alleged, among other things, damages resulting
from facts and circumstances underlying DVA Renal's December
2004 settlement agreement with the Department of Justice and
certain agencies of the U.S. Government.
In March 2006, the case was dismissed and the plaintiff was
compelled to seek arbitration to resolve the matter. In August
2006, the plaintiff proceeded with a demand to compel
arbitration.
In March 2006, the case was dismissed and the plaintiff was
compelled to seek arbitration to resolve the matter.
In November 2006, the plaintiff filed a demand for class
arbitration against the company and DVA Renal Healthcare.
DaVita, Inc. reported no development in the matter its Nov. 7,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2007.
The suit is “Louisiana Health Service Indemnity Co. v. Gambro A
B, et al., Case No. 6:05-cv-01450-TLM-CMH,” filed in the U.S.
District Court for the Western District of Louisiana under Judge
Tucker L. Melancon with referral to Judge C. Michael Hill.
Representing the plaintiff is:
Greg Murphy, Esq.
Morain & Murphy
6555 Perkins Rd., Ste. 200
Baton Rouge, LA 70808
Phone: 225-767-7151
Fax: 225-767-8995
E-mail: greg@mandmlawfirm.com
Representing the company is:
G. William Jarman, Esq.
Kean Miller, et al.
P.O. Box 3513
Baton Rouge, LA 70821
Phone: 225-387-0999
Fax: 225-388-9133
DVA RENAL: Continues to Face Labor Law Violations Suit in Calif.
----------------------------------------------------------------
DVA Renal Healthcare, Inc. still faces a class action in the
Superior Court of California, alleging violations of the state's
labor laws.
In June 2004, DVA Renal was served with a complaint filed in the
Superior Court of California by one of its former employees that
worked for its California acute services program.
The complaint, which is styled as a class action, alleges, among
other things, that DVA Renal failed to provide overtime wages,
defined rest periods and meal periods, or compensation in lieu
of such provisions and failed to comply with certain other
California labor code requirements.
DVA Renal is formerly Gambro Healthcare, Inc. DaVita, Inc.
acquired it in 2005.
DaVita, Inc. reported no development in the matter its Nov. 7,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 30, 2007.
DaVita, Inc. -- http://www.davita.com/-- is a provider of
dialysis services in the U.S. for patients suffering from
chronic kidney failure, also known as end-stage renal disease.
The company also provides acute inpatient dialysis services in
approximately 770 hospitals and related laboratory services.
ENERGY PARTNERS: Del. Suit Over Merger with Stone Energy Junked
---------------------------------------------------------------
Parties in a putative securities class action filed in Delaware
against Energy Partners, Ltd. have filed motions that has
dismissed the matter.
On Sept. 12, 2006, Thomas Farrington, a purported stockholder of
the Company, filed a putative class action against the Company,
all of the Company's directors, EPL Acquisition Corp. LLC, and
Stone Energy Corp. in the Delaware Court. The suit is in
relation to the company's terminated merger agreement with Stone
Energy Corp.
As amended on Oct. 19, 2006, the complaint in the Farrington
Action alleges that the Company's directors breached their
fiduciary duties by agreeing to the termination fee provisions
in the Merger Agreement, adopting the sixth-month stockholders
rights agreement, amending and extending coverage to all full
time employees of its change of control severance arrangements,
and paying a fee to Stone in connection with the termination of
the Merger Agreement.
The Farrington action also alleges that the Companys directors
failed to adequately disclose material information relevant to
the Company stockholders decision whether to accept the Woodside
Tender Offer.
On July 26, 2007, plaintiff filed a petition for an award of
attorneys’ fees and expenses. A trial on plaintiff’s fee
petition is scheduled for Nov. 29, 2007.
This case was dismissed on the motion of all parties in
September 2007, according to the company's Nov. 7, 2007 Form 10-
Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended Sept. 30, 2007.
Energy Partners Ltd. -- http://www.eplweb.com/-- is an oil and
natural gas exploration and production company. The Company's
operations are concentrated in the Gulf of Mexico Shelf, the
deepwater Gulf of Mexico, as well as the Gulf Coast onshore
region (the Gulf of Mexico Region).
HIGHMARK INC: Reaches $14M Settlement for Fla. Physicians' Suit
---------------------------------------------------------------
Highmark, Inc. reached a tentative $14 million settlement in a
purported class action over payments to physicians, physicians
groups, and physician organizations, Rick Stouffer of The
Pittsburgh Tribune-Review reports.
The suit was filed in a Florida federal court. It generally
alleges that during a period of 8 1/2 years begining in May
1999, Highmark and other insurers “engaged in a conspiracy to
improperly deny, delay and/or reduce payment to physicians,
physician groups and physician organizations by engaging in
several types of allegedly improperly conduct.”
It further alleges that the improper conduct violated the
federal statute known as the Racketeer Influenced and Corrupt
Organizations Act.
Though denying all allegations, representatives of Highmark and
its affiliated companies, including Keystone Health Plan West,
Highmark West Virginia Inc, doing business as Mountain State
Blue Cross Blue Shield, along with Parker Benefits Inc., doing
business as Super Blue HMO, recently opted to settle the matter,
citing significant costs involved in litigating the lawsuit.
According to a preliminary settlement obtained by The Pittsburgh
Tribune-Review:
-- Highmark and its affiliated defendants agree to set up
a settlement fund totaling nearly $10 million.
-- Highmark and its affiliated defendants agreed to pay
attorney's fees not to exceed $3.8 million.
-- The insurers agreed to pay $7,500 per plaintiff. It's
unknown how many plaintiffs could be part of this
agreement.
In a prepared statement, the company said that “Like other
commercial insurers and the majority of Blue Cross and Blue
Shield companies and the Blue Cross and Blue Shield Association,
Highmark has entered into a settlement agreement of a national
class action lawsuit brought by physicians, pending final
approval by the U.S. District Court in Miami.”
MICROSOFT CORP: Senior Official Denies Wrongdoing in Wash. Suit
---------------------------------------------------------------
A senior official of Microsoft Corp. has denied any wrongdoing
in a purported class action against the company with regards to
“Windows Vista Capable” stickers on computers, and even pointed
out “kinks” in the plaintiffs case.
Case Background
The suit, “Kelley v. Microsoft Corp., Case No. 2:07-cv-00475-
MJP,” was filed by Dianne L. Kelley on March 29, 2007 in the
U.S. District Court for the Western District of Washington. Her
legal representative in the case is the law firm of Gordon
Murray Tilden LLP (Class Action Reporter, July 11, 2007).
Prior to the availability of Vista, Microsoft launched a
marketing campaign that allowed PC makers to place a sticker on
computers alerting potential buyers that they could upgrade to
Vista when it became available.
Generally, Microsoft defines a PC as “Windows Vista Capable”
when it uses “at least” an 800MHz processor, 512 megabytes of
RAM, and DirectX 9 compatible graphics card.
However, according to the suit, “a large number” of those PCs
were only capable of running the Home Basic version of Vista,
which lacks many of the features, such as media center, and
enhanced graphics, which Microsoft advertises as included in
Vista.
It was reported that when Microsoft later offered buyers of
“Windows Vista Capable” computers free or reduced-price upgrades
to Vista, the company offered Home Basic to many customers.
Additionally, the suit claims that Bill Gates contributed to the
deception by saying on NBC's Today Show, PC users could upgrade
to Windows Vista for just $100.
A jury trial on the matter is scheduled to begin on Oct. 27,
2008 (Class Action Reporter, Nov. 30, 2007).
Allegations Denied
In a statement obtained by The Mac Observer, Microsoft Senior
Public Relations Manager, David Bowermaster, pointed to some
elements that the company believes significantly undermine the
plaintiff's case and eligibility for class certification.
Mr. Bowermaster pointed out:
-- Rather than conducting “deceptive and unfair
marketing,” Microsoft provided a large amount of
information to consumers through a variety of channels
– PC manufacturers, retailers, the media and from
Microsoft itself – about "Windows Vista Capable," the
differing versions of Vista, and their varying
hardware requirements.
-- Diane Kelley testified in her deposition that she did
not see the “Windows Vista Capable” sticker on her
daughter’s laptop until several months after she
bought it, and neither the sticker nor Vista (which
she had never heard of) influenced her buying
decision.
-- Ms. Kelley and Kenneth Hansen, the other named
plaintiff, had widely different knowledge about
computers and operating systems when they made their
purchases, and each were influenced by different
factors to buy the machines and operating systems they
did. Such disparities would be widespread among
buyers of Windows Vista Capable PCs and would thus
negate the uniformity of alleged injury required for
class certification.
-- Neither Ms. Kelley nor Mr. Hansen used the “Express
Upgrade” to Windows Vista, so they have no basis to
make class certification claims about customers who
did.
The suit is “Kelley v. Microsoft Corp., Case No. 2:07-cv-00475-
MJP,” filed in the U.S. District Court for the Western District
of Washington under Judge Marsha J. Pechman.
Representing the plaintiff is:
Gordon Murray Tilden, LLP
1001 4th Ave., Ste. 4000, Seattle, WA 98154
Phone: 206-467-6477
Fax: 206-467-6292
E-mail: office@gmtlaw.com
Web site: http://www.gmtlaw.com
NEW MEXICO: Dona Ana Jail Settles Strip Suit by Former Inmates
--------------------------------------------------------------
U.S. District Judge William P. Johnson granted preliminary
approval to a $5 million settlement of a strip search suit filed
by former inmates of Dona Ana County Detention Center,
Associated Press reports.
The suit was filed on behalf of five men and two women wanting
that the center stop strip-searching almost everyone booked into
jail (Class Action Reporter, April 4, 2006). Court rulings
prohibit such searches unless there's reasonable suspicion an
individual might be trying to smuggle in weapons or contraband.
It is only allowed after inmates visit with members of the
public and after court-ordered detention.
The suit alleged the searches violate constitutional rights to
due process and to be free from unreasonable searches and
seizures and from cruel and unusual punishment, according to the
report. It asked unspecified damages, and sought class-action
status.
Associated Press reports on Nov. 24 that Judge Johnson certified
the suit and preliminarily approved its settlement. Attorneys
say about 2,000 former inmates could receive payments under the
settlement.
Former inmates booked into the jail between March 7, 2003, and
March 7, 2006, are potentially eligible for estimated payments.
Judge Johnson set a fairness hearing for March 31, 2008.
Dona Ana County continues to deny wrongdoing.
Representing the defendants are:
Michael Lilley, Esq.
Mark Donatelli, Esq.
Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg &
Bienvenu LLP
1215 Paseo de Peralta, Santa Fe
New Mexico 87504
Phone: 505-988-8004
Fax: 505-982-0307
RENT-A-CENTER INC: Feb. Hearing Set in Tex. Securities Suit Deal
----------------------------------------------------------------
The U.S. District Court for the Eastern District of Texas has
set a final approval hearing on February 6, 2008, at 10:00 a.m.,
for the $3.6 million settlement of a purported securities
fraud class action filed against Rent-A-Center, Inc. and certain
of its current and former officers and directors.
Case Background
Filed on Jan. 4, 2002, the putative class action, “Terry Walker,
et al. v. Rent-A-Center, Inc., et al.,” alleged that the
defendants violated Sections 10(b) and/or Section 20(a) of the
U.S. Securities Exchange Act and Rule 10b-5 promulgated
thereunder by issuing false and misleading statements and
omitting material facts regarding the company's financial
performance and prospects for the third and fourth quarters of
2001 (Class Action Reporter, Nov. 2, 2007).
The complaint purported to be brought on behalf of all
purchasers of the company's common stock from April 25, 2001
through Oct. 8, 2001 and sought damages in unspecified amounts.
The court later consolidated similar complaints with the
“Walker” suit in October 2002.
On Nov. 25, 2002, the lead plaintiffs in the “Walker” suit filed
an amended consolidated complaint, which added certain of the
company's outside directors as defendants to the Exchange Act
claims.
The amended complaint also added additional claims that the
company, and certain of its current and former officers and
directors, violated various provisions of the Securities Act as
a result of alleged misrepresentations and omissions in
connection with an offering in May 2001 and also added the
managing underwriters in that offering as defendants.
On Feb. 7, 2003, the company, along with certain officer and
director defendants, filed a motion to dismiss the matter as
well as a motion to transfer venue.
In addition, the company's outside directors named in the matter
separately filed a motion to dismiss the Securities Act claims
on statute of limitations grounds.
On Feb. 19, 2003, the underwriter defendants also filed a motion
to dismiss the matter. The plaintiffs filed response briefs to
these motions, to which the company replied on May 21, 2003. A
hearing was held by the court on June 26, 2003 to hear each of
these motions.
On Sept. 30, 2003, the court granted the company's motion to
dismiss without prejudice, dismissed without prejudice the
outside directors' and underwriters' separate motions to dismiss
and denied the company's motion to transfer venue.
In its order on the motions to dismiss, the Court granted the
lead plaintiffs leave to replead the case within certain
parameters.
On July 7, 2004, the plaintiffs again repled their claims by
filing a third amended consolidated complaint, raising
allegations of similar violations against the same parties
generally based upon alleged facts not previously asserted.
The company, along with certain officer and director defendants
and the underwriter defendants, filed motions to dismiss the
third amended consolidated complaint on Aug. 23, 2004. A
hearing on the motions was held on April 14, 2005.
On July 25, 2005, the court ruled on these motions, dismissing
with prejudice the claims against the outside directors as well
as the underwriter defendants, but denying the company's motion
to dismiss.
In evaluating this motion to dismiss, the court was required to
view the pleadings in the light most favorable to the plaintiffs
and to take the plaintiffs' allegations as true.
On Aug. 18, 2005, the company filed a motion to certify the
dismissal order for an interlocutory appeal, which was denied on
Nov. 14, 2005.
A hearing on class certification was held on June 22, 2006. The
court has made no ruling on the motion for class certification.
Discovery is ongoing.
Settlement
On Oct. 29, 2007, the company announced that it had reached a
prospective settlement with the plaintiffs to resolve “Terry
Walker, et al. v. Rent-A-Center, Inc., et al.,” a putative class
action filed in federal court in Texarkana, Texas, alleging that
the company violated various federal securities laws.
Under the terms of the settlement, which has now been documented
and was preliminarily approved by the court on Oct. 31, 2007,
the company anticipate its insurance carrier will pay an
aggregate of $3.6 million in cash, which will be distributed to
an agreed upon class of claimants who purchased the company's
common stock from April 25, 2001 through Oct. 8, 2001, as well
as used to pay costs of notice and settlement administration,
and plaintiffs’ attorneys’ fees and expenses.
This month, the U.S. District Court for the Eastern District of
Texas gave preliminary approval to the settlement (Class Action
Reporter, Nov. 20, 2007).
The suit is "Walker, et al. v. Rent-A-Center, et al., Case No.
5:02-cv-00003-DF," filed in the U.S. District Court for the
Eastern District of Texas under Judge David Folsom.
Representing the plaintiffs are:
Bradley Earl Beckworth, Esq.
Nix Patterson & Roach
205 Linda Drive
Daingerfield, TX 75638,
Phone: 903-645-7333
Fax: 19036454415
E-mail: bbeckworth@nixlawfirm.com
- and -
Thomas Emerson Bilek, Esq.
Hoeffner & Bilek, LLP
1000 Louisiana, Suite 1302
Houston, TX 77002
Phone: 713-227-7720
Fax: 17132279404
E-mail: tbilek@hb-legal.com
Representing the defendants are:
Anne Marie Rodgers, Esq.
Darryl Wade Anderson, Esq.
Fulbright & Jaworski, 1301 McKinney, Suite 5100,
Houston, TX 77010-3095
Phone: 713/651-5473
Fax: 713-651-6652 and 17136515246
E-mail: arodgers@fulbright.com
danderson@fulbright.com
UNITED NATIONS: Dutch Court Allows Suit Over Srebrenica Massacre
----------------------------------------------------------------
A court in the Netherlands allowed a class action by families of
approximately 8,000 Bosnian Muslims who were killed in the 1995
Srebrenica massacre to go ahead against the United Nations and
the Netherlands, The Jurist reports.
The suit was filed in the Dutch Supreme Court in The Hague,
Netherlands on June 4 (Class Action Reporter, June 7, 2007). It
alleges that both the U.N. and Netherlands failed to protect
Muslim civilians from the 1995 genocide, also known as the
Srebrenica massacre. Many of the victims were refugees that
relocated to the Srebrenica enclave declared to be a "safe area"
by the U.N. Security Council in 1993.
The U.N. had argued it was immune under Article 2 Section 2 of
the Convention on the Privileges and Immunities of the United
Nations. The provision says the U.N.'s property and assets
"shall enjoy immunity from every form of legal process except it
has expressly waived its immunity."
Lawyer Marco Gerritsen represents approximately 6,000 family
members of victims in the lawsuit.
UNITED STATES: Appeals Court Junks Suit Over Michael Bianco Raid
----------------------------------------------------------------
Judges of the U.S. First Circuit Court of Appeals upheld a
dismissal of a suit filed on behalf of more than 250
undocumented workers who were detained during a 2006 raid of a
company suspected of employing large numbers of illegal
immigrants, Karen Lee Ziner of Providence Journal reports.
On March 6, The federal Bureau of Immigration and Customs
Enforcement raided Michael Bianco company, a Defense Department
contractor, as part of the government’s Operation United Front.
The operation were against the company owner and several
managers. Those detained made up most of the rank-and-file work
force of the company. The cases of three of those executives,
including company owner Francesco Insolia, are pending,
according to the report.
The suit claims approximately 260 undocumented immigrants were
denied a host of due-process rights during and after the raid.
The ICE allegedly violated certain of the petitioners’
constitutional and statutory rights.
The government argued that the case be dismissed because the
district court did not have jurisdiction. On May 22, the lower
court dismissed the case.
Recently, a three-judge panel the circuit court upheld the
dismissal. The appellate court ruled that the lower court's
dismissal of the case is proper, but that the manner in which it
was conducted was not.
The appellate court concluded that "some of the petitioners’
claims are unpreserved, some are subject to a jurisdictional bar
and others are simply not actionable. The common denominator is
that none of the claims can proceed in the district court.”
The appellate judges noted in part that some of the detainees’
remedies may lie with the immigration court, the Bureau of
Immigration Appeals and then by the court of appeals.
Several lead lawyers are considering what options they have,
including seeking reconsideration by the full First Circuit
Court of Appeals or seeking U.S. Supreme Court review.
WESTLING MANUFACTURING: Settles Labor Violations Suit in Minn.
--------------------------------------------------------------
Westling Manufacturing Co. reached a $120,000 settlement for a
purported class action which claims that the company failed to
provide mandatory notices pertaining to the layoffs of about 240
employees.
Filed on Feb. 8, 2006, the suit charges that defendants misled
and/or were negligent in providing information to employees
concerning their employment status. It also charges defendants
of failing to compensate plaintiffs for wages and benefits due
them and reimburse expenses prepaid by plaintiffs.
The lawsuit alleges that defendants are jointly and severally
liable under the “alter ego and piercing the corporate veil
theories of recovery, and in their capacities as fiduciaries of
benefit plans.”
Besides the company other defendants in the case are Westling
Leasing Co., John W. Westling and his children Tom, Allyson
Leonard and Kathryn Westling, and Westling Mfg. chief financial
officer Jeff Tillman.
Plaintiffs in the suit are Steve Dickinson, Jay Johnson, Chris
Derby, Melinda Harrington, Tom Eller, Russ Balder, Jane St.
George, Mike Bierbaum, Diane Jacobson and Mark Barlage.
According to the suit, the company informed about 78 employees
last Oct. 17, 2006 that they were being laid off immediately.
The number was about 32 percent of the workforce.
On Nov. 2, 2006, the remaining employees were called to a
meeting and told the company's creditor had accepted a financial
plan and would work with the company until the end of the year.
The suit contends that the employees were told they had job
security until the end of the year.
However, on Nov. 3, 2006, employees were told the company could
not make the prior week's payroll when it was due on Nov. 4, or
the current week's payroll due in another week. The suit claims
the employees were not told at that time what their job status
were.
The lawsuit alleges that defendants have committed five counts
of violations:
-- Count 1: failure to provide notice of mass layoff as
required under the federal Worker Adjustment and
Retraining Notification Act;
-- Count 2: violation of the Employee Retirement Income
Security Act by not paying certain benefits;
-- Count 3: violation of ERISA, namely breach of
fiduciary duty;
-- Count 4: failure to pay wages promptly; and
-- County 5: conversion of property.
The lawsuit accused Westling Mfg. of Count 1 violation because
it employed more than 100 full-time workers.
According to the lawsuit, some employees used personal credit
cards to pay certain company expenses and were not reimbursed
for them.
It also claims the defendants did not make certain contributions
to employee accounts within the company's retirement and profit-
sharing plan, even though money was deducted from paychecks.
Another claim is that the defendants failed to pay medical bills
pursuant to the company's group health care plan for medical
costs incurred by individuals prior to defendants informing the
employees their medical insurance was discontinued.
The suit alleges that Westling Leasing, which leased vehicles to
Westling Mfg., was not treated as a separate entity as it should
have been.
Instead, it alleges that Westling Leasing was used as a siphon
and mechanism to remove funds from Westling Mfg. to other
defendants, including John Westling.
The suit also gives many accounts of the company paying for
various personal purchases or activities that benefited
defendants.
Settlement
In reaching the settlement, defendants pointed out that that the
reason for settling was to avoid further expense and time
involved in “burdensome and protracted litigation.”
U.S. District Court Chief Magistrate Judge Raymond Erickson, on
Aug. 16, 2007, granted preliminary approval of the settlement,
subject to a fairness hearing on Nov. 15, 2007.
The parties who brought the lawsuit stated a few months ago
there were about 235 class members who may have had claims under
the settlement. Class refers to the former employees who were
entitled to apply for proceeds in the settlement
The fairness hearing went through on Nov. 15, 2007, and it was
agreed a settlement payment will be made on behalf of the
defendants totaling $120,000 to fully settle the class claims.
The $120,000 will be reduced by fees for the attorneys
representing the class, as well as certain costs to prosecute
and also reduced by certain payments to be made to the 10 class
representatives, the ones who initiated and followed through
with the lawsuit. They are each to receive $300 for their time,
expense and effort.
The remaining sum is to be distributed on a pro rata basis to
class members who submit a timely claim.
The suit is “Dickinson et al v. Westling Manufacturing Co. et
al., Case No. 0:06-cv-00528-JMR-RLE,” filed in the U.S. District
Court for the District of Minnesota under Judge James M.
Rosenbaum with referral to Judge Raymond L. Erickson.
Representing the plaintiffs are:
Clair E. Schaff, Esq.
Eric D. Satre, Esq.
Connor, Satre & Schaff, LLP
Phone: 763-552-1322 or 651-287-5233
Fax: 763-552-1322 or 651-405-4765
E-mail: clair@connorsatreschaff.com
Eric@connorsatreschaff.com
Representing the defendants are:
Michael F. McGrathm, Esq.
Will R. Tansey, Esq.
Ravich Meyer Kirkman McGrath & Nauman
80 S. 8th St., Ste. 4545,
Mpls, MN 55402
Phone: 612-332-8511
Fax: 612-332-8302
E-mail: mfmcgrath@ravichmeyer.com
wrtansey@ravichmeyer.com
Alan I. Silver, Esq.
Bassford Remele, Esq.
33 S. 6th St. Ste. 3800
Mpls, MN 55402-3707
Phone: (612) 333-3000
Fax: (612) 333-8829
E-mail: alans@bassford.com
- and -
Thomas M. Thorfinnson, Esq.
Thorfinnson Law Offices, PA
P.O. Box 44326
Eden Prairie, MN 55347
Phone: 952-974-0454
Fax: 952-974-0477
E-mail: tthorf@mn.rr.com
New Securities Fraud Cases
BANKATLANTIC INC: Schiffrin Barroway Files Securities Fraud Suit
----------------------------------------------------------------
The law firm of Schiffrin Barroway Topaz & Kessler, LLP
announced that a class action was filed in the United States
District Court for the Southern District of New York on behalf
of all purchasers of securities of BankAtlantic Bancorp, Inc.
from November 9, 2005 through October 25, 2007, inclusive.
The Complaint charges BankAtlantic and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. BankAtlantic is a financial services holding company that,
through its subsidiaries, provides a full line of products and
services encompassing consumer and commercial banking. More
specifically, the Complaint alleges that the Company failed to
disclose and misrepresented the following material adverse facts
which were known to defendants or recklessly disregarded by
them:
(1) that the Company had granted a $27 million loan without
having obtained an adequate appraisal of the underlying
collateral;
(2) that the Company had failed to properly classify this
under-collateralized $27 million loan as an impaired
loan;
(3) that the Company's exposure to "at-risk" loans was
significantly understated;
(4) that the Company had significantly under-reserved for
loan losses in its portfolio, which had the effect of
understating the Company's loan loss reserves and
overstating its net income;
(5) that the Company had deferred the recognition of losses
associated with certain non-accrual loans rather than
taking timely writedowns on such loans;
(6) that, as a result of the above, the Company's financial
statements were materially false and misleading at all
relevant times;
(7) that the defendants had failed to comply with the
Company's policies relating to collateral based
lending, underwriting and risk management;
(8) that the Company lacked adequate internal and financial
controls; and
(9) that, as a result of the foregoing, the Company's
statements about its financial well-being and future
business prospects were lacking in any reasonable basis
when made.
On October 25, 2007, the Company shocked investors when it
reported its third quarter 2007 financial and operational
results. For the quarter, the Company announced a net loss of
$29.6 million, or ($0.52) per diluted share, as compared to net
income of $2.5 million, or $0.04 per diluted share, for the
third quarter of 2006. Additionally, the Company disclosed that
its non- performing loans had increased from $21.8 million at
June 30, 2007 to $165.4 million at September 30, 2007, and that
its loss experience for the quarter was a net charge-off of
$11.3 million, as compared to a net recovery of $0.2 million for
the quarter ended September 30, 2006. Included in the $11.3
million net charge-off was $8.8 million related to the write-
down of one "builder land bank loan." On this news, the
Company's shares fell $2.93 per share, or over 38.3 percent, to
close on October 26, 2007 at $4.72 per share, on unusually heavy
trading volume.
Plaintiff seeks to recover damages on behalf of class members.
For more information, contact:
Darren J. Check, Esq.
Richard A. Maniskas, Esq.
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 1-888-299-7706 (toll free) or 1-610-667-7706
E-mail: info@sbtklaw.com
New Securities Fraud Cases
FOCUS MEDIA: Abraham Fruchter Files N.Y. Securities Fraud Suit
--------------------------------------------------------------
Abraham Fruchter & Twersky LLP has filed a class action in the
United States District Court for the Southern District of New
York on behalf of purchasers of the American Depositary Shares
("ADSs") of Focus Media Holding Limited in the Company's
secondary public offering on or about November 7, 2007.
The complaint charges Focus Media and certain of its officers
and directors with violations of the Exchange Act of 1933. Focus
Media operates out-of-home advertising network using audiovisual
television displays in the People's Republic of China.
According to the complaint, on or about November 1, 2007, Focus
Media filed a Form F-1/A Registration Statement (the
"Registration Statement") with the Securities and Exchange
Commission ("SEC") for the Secondary Offering. On or about
November 6, 2007, the Prospectus (the "Prospectus") with respect
to the Secondary Offering, which forms part of the Registration
Statement, became effective and more than 13.5 million shares of
Focus Media's ADSs at $64.75 per ADS were sold to the public,
thereby raising more than $888 million.
The complaint alleges that the Registration Statement and the
Prospectus contained inaccurate statements of material fact
because they failed to disclose that the Company had made
numerous acquisitions in its Internet advertising business
division which were depressing its gross margins in that
important division. On November 19, 2007, after the close of the
market, Focus Media issued a press release announcing its
financial results for the third quarter of 2007, the period
ending September 30, 2007. Among other things, the Company
reported that its gross margins for the third quarter of 2007
had declined due to several recent acquisitions. Following the
Company's earnings release, on November 20, 2007, the price of
Focus Media ADSs dropped from $57.15 per ADS to $52.00 per ADS
on extremely heavy trading volume.
Interested parties may move the court within sixty days of
November 27, 2007 for lead plaintiff appointment.
For more information, contact:
Jack Fruchter
Ximena Skovron
Abraham Fruchter & Twersky LLP
Phone: (212) 279-5050
Fax: (212) 279-3655
HOMEBANC CORP: Saxena White Files Securities Fraud Suit in Fla.
---------------------------------------------------------------
Saxena White P.A., on November 30, 2007, filed suit on behalf of
shareholders against HomeBanc Corp. (PINKSHEETS: HMBN)
(PINKSHEETS: HMBNP) in the United States District Court for the
Southern District of Florida.
Based in Atlanta, Georgia, the Company, prior to filing for
bankruptcy, engaged in the mortgage banking business principally
in the southeast United States. HomeBanc primarily focused on
originating purchase money mortgage loans and offered various
fixed and adjustable-rate residential mortgage loan products.
The complaint seeks damages for violations of federal securities
laws on behalf of all investors who acquired HomeBanc common
stock from March 7, 2006 through and including August 3, 2007
(the "Class Period"), including those investors who purchased
the Company's 10% Series A Cumulative Redeemable Preferred Stock
("Series A Preferred Stock") pursuant or traceable to HomeBanc's
February 2, 2006 offering in which the Company sold 2 million
shares of Series A Preferred Stock for $25.00 per share (the
"Offering").
The lawsuit claims that HomeBanc, founder and former Chief
Executive Officer Patrick S. Flood, and other executives and
directors of the Company violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Sections 11, 12(a) and
15 of the Securities Act of 1933. Specifically, the lawsuit
alleges that prior to the Offering and during the Class Period,
Defendants issued false and misleading statements touting the
Company's positive financial results and future business
prospects, and withheld from investors material adverse
information indicating that the internal business environment,
structure and policies at HomeBanc were in a severe state of
deterioration.
In addition, the lawsuit claims Defendants manipulated the
Company's financial results prior to the Offering in an effort
to increase demand for the Company's Series A Preferred Stock
and entice investors to purchase the Company's common stock.
In marked contrast to the Company's positive statements prior to
the Offering, HomeBanc issued a press release on November 6,
2006 announcing substantial losses for the three and nine months
ended September 30, 2006 -- the second quarter following the
Offering. Over the course of the next thirteen months, HomeBanc
would release increasingly adverse financial results,
culminating in the August 3, 2007 suspension of the listing of
the Company's common stock and Series A Preferred Stock on the
NYSE.
Finally, on August 7, 2007, HomeBanc announced that it was
unable to satisfy its mortgage loan funding obligations, and on
August 9, 2007, HomeBanc filed a voluntary petition for relief
under Chapter 11 of the U.S. Bankruptcy Code. Less than a year-
and-a-half after the Company's Offering in which it obtained $50
million from unknowing investors, HomeBanc was bankrupt and the
Company's shares were worthless.
Interested parties may move the court no later than January 29,
2008 for lead plaintiff appointment.
For more information, contact:
Joseph White, Esq.
Greg Stone
Saxena White P.A.
2424 North Federal Highway, Suite 257
Boca Raton, FL 33431
Tel: (561) 394-3399
Fax: (561) 394-3382
website: http://www.saxenawhite.com
HOME SOLUTIONS: Sarraf Gentile Files Tex. Securities Fraud Suit
---------------------------------------------------------------
The law firm of Sarraf Gentile LLP has filed a securities fraud
class action in the United States District Court for the
Northern District of Texas on behalf of those investors who
acquired the securities of Home Solutions of America, Inc.
between May 18, 2007 and November 14, 2007, inclusive.
The Complaint charges that HSOA and certain of its officers and
directors violated federal securities laws by making false and
misleading statements concerning construction contracts for
projects at three sites in New York, including Manhattan, and a
site in Florida. Unbeknownst to investors, Defendants failed to
disclose that:
(i) HSOA did not have an agreement with Blue Diamond
Construction to perform construction with respect to at
least one of the three New York sites Defendants had
previously identified; and,
(ii) the party that had reportedly awarded the Florida
contract to HSOA was a party related to HSOA.
On August 15, 2007, HSOA revealed that
(i) the Florida project was a related party transaction;
(ii) that in July HSOA had "received informal inquiries from
the SEC and Nasdaq with respect to prior disclosure and
related issues;" and
(iii) that management had requested that the audit committee
perform an investigation into related party
transactions and disclosures.
Then, on September 27, 2007, Defendants acknowledged that they
did not have a contract for the Manhattan element of the New
York projects. Finally, on November 14, 2007, HSOA announced
that it would delay the filing of its third quarter financial
results, citing its "voluntary review of related party
transactions." On this news, HSOA's stock dropped over 20% to
close at $1.57 per share on November 15, 2007.
Interested parties may move the court no later than January 21,
2008 for lead plaintiff appointment.
For more information, contact:
Joseph Gentile
Sarraf Gentile LLP
11 Hanover Square
New York, NY 10005
Phone: 212.868.3610
Fax: 212.918.7967
Website: http://www.sarrafgentile.com
VIRGIN MOBILE: Kahn Gauthier Files Securities Fraud Suit in N.J.
----------------------------------------------------------------
Kahn Gauthier Swick, LLC filed a class action against Virgin
Mobile USA, Inc. (VM) in the U.S. District Court for the
District of New Jersey on behalf of shareholders who purchased
the common stock of Virgin Mobile, relating to the company's IPO
on or about Oct. 11, 2007.
Virgin Mobile, together with certain of its officers and
directors, certain controlling majority shareholders, and its
underwriters have been charged for providing false and
misleading statements in the Registration Statement and
Prospectus issued in connection with the IPO.
The lawsuit states that the defendants failed to conduct an
adequate investigation into the company prior to the IPO. They
also failed to reveal, at the time of the IPO, that Virgin
Mobile was not performing well.
The suit is “Volpe, et al. v. Schuman, et al., Case No. 07-CV-
05619,” filed in the U.S. District Court for the District of New
Jersey under Judge Susan D. Wigenton.
Representing the plaintiffs are:
Kahn Gauthier Swick, LLC
12 East 41st Street, 12th Floor
New York, NY, 10016
Phone: 212.920.4310
Fax: 212.696.3730
E-mail: info@kglg.com
Schatz & Nobel, P.C.
330 Main Street
Hartford, CT 06106
Phone: 800.797.5499
Fax: 860.493.6290
E-mail: sn06106@AOL.com
*********
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
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Mendoza, Editors.
Copyright 2007. All rights reserved. ISSN 1525-2272.
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