/raid1/www/Hosts/bankrupt/CAR_Public/080225.mbx
C L A S S A C T I O N R E P O R T E R
Monday, February 25, 2008, Vol. 10, No. 39
Headlines
ALOHA HOUSEWARES: Recalls Electric Heaters Due to Fire Hazard
AMERICAN AIR: May Be Named Defendant in Air Cargo Antitrust Suit
AMR CORP: Ninth Circuit Affirms Ruling in "Westways World" Case
ANALOG DEVICES: Court Mulls Request for Dismissal of ERISA Suit
COMCAST CORP: Continues to Face Subscribers' Antitrust Lawsuits
COMCAST CORP: March Hearing Set for Dismissal Bid v. "Brantley"
COMCAST CORP: Faces ERISA Violations Litigating in Pennsylvania
COMVERSE TECHNOLGY: Dismissal Request in Securities Suit Junked
DUMAR INTL: Recalls Toy Cars Due to Fire and Burn Hazards
FAST FORWARD: Recalls Spiderman Water Bottles for Choking Hazard
FLORIDA: Court Favors Broward Homeowners in Canker Lawsuit
GREENHECK FAN: Recalls Indirect Gas Fired Furnaces for Fire Risk
INDIANAPOLIS LIFE: Sued Over Equity-Indexed Insurance Policies
INTEL CORP: Still Faces Suits Over "High" Microprocessor Prices
MEMPHIS LIGHT: City Declines Offer in Overcharging Litigation
MICROSOFT CORP: Wash. Court Certifies Class in "Vista" Lawsuit
NISSAN NORTH: Calif. Court Refuses to Dismiss Dealership's Suit
NORTHERN STATES: Appeals Court Rules v. "Hoffman" Plaintiffs
NORTHROP GRUMMAN: Still Faces Consolidated ERISA Suit in Calif.
OPNEXT INC: Lead Plaintiff Appointment Deadline Set for April 21
PETROLEUM MARKETERS: Dismissal Request in "Hot Fuel Suit" Junked
PIERRE'S ICE CREAM: Recalls Ice Cream Over Undeclared Content
SELWYN HOUSE: Offers Students CDN5 Mln. to Settle Sex Abuse Suit
TRAVEL AGENCIES: Certification Hearing Not Necessary, Judge Says
TYCO INT'L: Investors Opting Out Of Class Settlement File Suit
UNITED ONLINE: No Trial Date Set for Calif. NetZero Litigation
WALT DISNEY: ADA Violation Suit on Segway Use Ban, Thrown-Out
XCEL ENERGY: Fifth Circuit to Hear Appeal in "Comer" Litigation
XCEL ENERGY: Continues to Face Several Nev. Natural Gas Lawsuits
New Securities Fraud Cases
CENTERLINE HOLDING: Lead Plaintiff Deadline Set March 18
*********
ALOHA HOUSEWARES: Recalls Electric Heaters Due to Fire Hazard
-------------------------------------------------------------
Aloha Housewares Inc., of Arlington, Texas, in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
152,000 portable electric heaters.
The company said the portable electric heater can overheat and
melt plastic parts, posing a fire hazard to consumers.
Aloha Housewares has received 29 reports of the heaters melting,
smoking or catching fire, including 18 reports of property
damage. One consumer reported minor burns to the hands and
feet.
This recall involves electric oscillating tower heaters with the
name "Aloha Breeze" printed on the top. The white heaters have
model number 02044 and date codes 06/06, 06/07, 06/08 or 06/09.
Model numbers and date codes are printed on the silver label
located on the back of the heater, near the bottom.
These recalled portable heaters were manufactured in China and
were being sold at Wal-mart and small retail chain stores
nationwide from August 2006 through November 2007 for between
$35 and $45.
A picture of the recalled portable electric heaters is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08198.jpg
Consumers should immediately stop using the recalled heaters and
contact Aloha Housewares to receive a replacement product.
For additional information, contact Aloha Housewares at (800)
295-4448 between 9 a.m. and 4 p.m. CT Monday through Friday, or
e-mail: ahitexaslg@aol.com
AMERICAN AIR: May Be Named Defendant in Air Cargo Antitrust Suit
----------------------------------------------------------------
The plaintiffs in a consolidated suit in New York alleging
antitrust violations have not released any claims that they may
have against American Airlines, Inc., raising the possibility
that the company may later be added as a defendant in the
litigation.
Approximately 44 purported class actions have been filed in the
U.S. against the company and certain foreign and domestic air
carriers alleging that the defendants violated U.S. antitrust
laws by illegally conspiring to set prices and surcharges on
cargo shipments.
These cases, along with other purported class actions in which
the company was not named, were consolidated in the U.S.
District Court for the Eastern District of New York as "In re
Air Cargo Shipping Services Antitrust Litigation, 06-MD-1775" on
June 20, 2006.
The plaintiffs are seeking trebled money damages and injunctive
relief. The company has not been named as a defendant in the
consolidated complaint filed by the plaintiffs.
However, the plaintiffs have not released any claims that they
may have against the company, and the company may later be added
as a defendant in the litigation.
The company said that if it is sued on these claims, it will
vigorously defend the suit, although any adverse judgment could
have a material adverse impact on the company.
The company reported no development in the matter in its
Feb. 20, 2008 form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Feb. 20, 2008.
The suit is "In re Air Cargo Shipping Services Antitrust
Litigation, Case No. 1:06-md-01775-CBA-VVP," filed with the U.S.
District Court for the Eastern District of New York, Judge Carol
Bagley Amon presiding.
Representing the plaintiffs are:
Lee Albert, Esq. (lalbert@magergoldstein.com)
Mager & Goldstein, LLP
One Liberty Place, 21st Floor, 1650 Market Street
Philadelphia, PA 19103
Phone: 215-640-3280
Fax: 215-640-3281
- and -
Steven A. Asher, Esq. (asher@wka-law.com)
Weinstein Kitchenoff & Asher
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Phone: 215-545-7200
Fax: 215-545-6535
Representing the defendants are:
Robert G. Badal, Esq. (robert.badal@hellerehrman.com)
Heller Ehrman, LLP
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Phone: 213-689-0200
Fax: 213-614-1868
- and -
Christian Reginald Bartholomew, Esq.
(cbartholomew@morganlewis.com)
Morgan Lewis & Bockius
200 S. Biscayne Boulevard, Suite 5300
Wachovia Financial Center
Miami, Fl 33131-2339
Phone: 305-579-0418
Fax: 305-415-3001
AMR CORP: Ninth Circuit Affirms Ruling in "Westways World" Case
---------------------------------------------------------------
The U.S. Court of Appeals for the 9th Circuit affirmed the
decertification of the class action, "Westways World Travel,
Inc. v. AMR Corp., et al.," which was filed with the U.S.
District Court for the Central District of California, according
to its Feb. 20, 2008 form 10-K filing with the U.S. Securities
and Exchange Commission for the fiscal year ended Feb 20, 2008.
The suit names as defendants American Airlines, Inc., and:
-- AMR Corp.,
-- AMR Eagle Holding Corp.,
-- Airlines Reporting Corp., and
-- Sabre Group Holdings, Inc.
The lawsuit alleges that requiring travel agencies to pay debit
memos to the company for violations of American Air's fare rules
by customers of the agencies:
-- breaches the Agent Reporting Agreement between American
Air and AMR Eagle and the plaintiffs;
-- constitutes unjust enrichment; and
-- violates the Racketeer Influenced and Corrupt
Organizations Act of 1970.
The certified class includes all travel agencies who have been
or will be required to pay money to American Air for debit memos
for fare rules violations from July 26, 1995 to the present.
The plaintiffs seek to enjoin American Air from enforcing the
pricing rules in question and to recover the amounts paid for
debit memos, plus treble damages, attorneys' fees, and costs.
On Feb. 24, 2005, the court decertified the class. In September
2005, the court granted summary judgment in favor of the company
and all other defendants.
The plaintiffs filed an appeal with the U.S. Court of Appeals
for the 9th Circuit.
On Jan. 22, 2008, the Ninth Circuit affirmed the decertification
of the class and summary judgment on the RICO claims, but
remanded the remaining claims to the trial court for factual
determinations.
The suit is "Westways World Travel, Inc. v. AMR Corp., et al.,
Case No. 99-cv-07689-WDK-AIJ," filed with the U.S. District
Court for the Central District of California, Judge William D.
Keller presiding.
Representing the plaintiffs are:
Linda S. Platisha, Esq.
Linda S. Platisha Law Offices
21520 Yorba Linda Blvd., Ste. G-560 Yorba
Linda, CA 92887
Phone: 714-694-1542
- and -
Dean Browning Webb, Esq. (rico_man@hotmail.com)
Dean Browning Webb Law Offices
8002 NE Hwy. 99, Ste. B
Vancouver, WA 98665-8833
Phone: 503-629-2176
Fax: 503-629-9527
Representing the defendants are:
Chad S. Hummel, Esq. (chummel@manatt.com)
Manatt Phelps & Phillips, 11355 W. Olympic Blvd.
Los Angeles, CA 90064-1614
Phone: 310-312-4000
- and -
William A. Wargo, Esq. (wwargo@gibsondunn.com)
Gibson Dunn & Crutcher
333 S. Grand Ave., 45th Fl.
Los Angeles, CA 90071-3197
Phone: 213-229-7000
ANALOG DEVICES: Court Mulls Request for Dismissal of ERISA Suit
---------------------------------------------------------------
The U.S. District Court for the District of Massachusetts has
yet to rule on Analog Devices, Inc.'s motion to dismiss a
purported class action filed against the company that alleges
violations of the Employee Retirement Income Security Act.
The purported class action complaint was filed on Oct. 13, 2006,
with the U.S. District Court for the District of Massachusetts
on behalf of participants in the company's Investment
Partnership Plan from Oct. 5, 2000 to the present. The
complaint named as defendants the company, certain of its
officers and directors, and its Investment Partnership Plan
Administration Committee.
Specifically, the complaint alleges purported violations of
federal law in connection with the company's option granting
practices during the years 1998, 1999, 2000, and 2001, including
breaches of fiduciary duties owed to participants and
beneficiaries of the company's Investment Partnership Plan under
ERISA. The complaint seeks unspecified monetary damages, as
well as equitable and injunctive relief.
On Nov. 22, 2006, the company and the individual defendants
filed motions to have the complaint dismissed, which motions
were opposed by the plaintiffs.
The court heard the Company's dismissal motion on Jan. 30, 2008,
but has not yet issued a ruling, according to the company's
Feb. 20, 2008 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Feb. 2, 2008.
The suit is "Bendaoud v. Hodgson et al., Case No. 1:06-cv-11873-
NG," filed with the U.S. District Court for the District of
Massachusetts under Judge Nancy Gertner.
Representing the plaintiffs are:
Theodore M. Hess-Mahan, Esq. (ted@shulaw.com)
Thomas G. Shapiro, Esq. (tshapiro@shulaw.com)
Shapiro Haber & Urmy LLP
53 State Street
Boston, MA 02108
Phone: 617-439-3939
Fax: 617-439-0134
COMCAST CORP: Continues to Face Subscribers' Antitrust Lawsuits
---------------------------------------------------------------
Comcast Corp. continues to face purported antitrust class
actions filed by its subscribers in connection with the
company's certain subscriber exchange transactions with other
cable providers.
The company was named as defendant in two suits originally filed
with the U.S. District Courts for the District of Massachusetts
and the Eastern District of Pennsylvania, respectively.
The potential class in the Massachusetts case is the company's
subscriber base in the "Boston Cluster" area, and the potential
class in the Pennsylvania case is the company's subscriber base
in the "Philadelphia and Chicago Clusters," as those terms are
defined in the complaints.
In each case, the plaintiffs allege that certain subscriber
exchange transactions with other cable providers resulted in
unlawful "horizontal market restraints" in those areas and seek
damages pursuant to antitrust statutes, including treble
damages.
The company's motion to dismiss the Pennsylvania case on the
pleadings was denied and classes of "Philadelphia Cluster," and
"Chicago Cluster" subscribers were certified.
The company's motion to dismiss the Massachusetts case, which
was recently transferred to the Eastern District of
Pennsylvania, was also denied.
The company is proceeding with discovery on plaintiffs claims
concerning the Philadelphia Cluster. The plaintiffs claims
concerning the other two clusters are stayed pending
determination of the Philadelphia Cluster claims.
The company reported no development on the matter in its Feb.
20, 2008 Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2007.
Pennsylvania-based Comcast Corp. -- http://www.comcast.com-- is
a cable operator in the U.S. and offers a variety of consumer
entertainment and communication products and services.
COMCAST CORP: March Hearing Set for Dismissal Bid v. "Brantley"
---------------------------------------------------------------
A March 2008 hearing is scheduled for Comcast Corp.'s motion
seeking the dismissal of the purported class action, entitled
"Rob Brantley et al v. NBC Universal, Inc. et al., Case No.
2:2007cv06101," according to the company's Feb. 20, 2008 form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 31, 2007.
The company was among the defendants named in the purported
class action, which was filed with the U.S. District Court for
the Central District of California on Sept. 20, 2007.
Listed as plaintiffs in the matter are:
-- Rob Brantley,
-- Darryn Cooke,
-- William Costley,
-- Beverly Costley,
-- Christina Hills,
-- Michael B. Kovac,
-- Michelle Navarrette,
-- Timothy J. Stabosz, and
-- Joseph Vranich.
The defendants in the case are:
-- NBC Universal, Inc.,
-- Viacom Inc.,
-- The Walt Disney Company,
-- Fox Entertainment Group, Inc.,
-- Time Warner Inc.,
-- Time Warner Cable Inc.,
-- Comcast Corp.,
-- Comcast Cable Communications, Inc.,
-- Cox Communiations, Inc.,
-- The Directv Group, Inc.,
-- Echostar Satellite LLC,
-- Charter Communications, Inc., and
-- Cablevision Systems Corp.
The plaintiffs allege that the defendants who produce video
programming have entered into agreements with the defendants who
distribute video programming via cable and satellite, which
preclude the distributors from reselling channels to subscribers
on an a la carte (or channel-by-channel) basis in violation of
federal antitrust laws.
The plaintiffs seek treble damages for the loss of their ability
to pick and choose the specific channels to which they wish to
subscribe, and injunctive relief requiring each distributor
defendant to resell certain channels to its subscribers on an a
la carte basis.
The potential class is comprised of all persons residing in the
U.S. who have subscribed to an expanded basic level of video
service provided by one of the distributor defendants.
The company has filed motions to dismiss the plaintiffs' case
and a hearing on its motion is scheduled for March 2008.
The suit is "Rob Brantley et al v. NBC Universal, Inc. et al.,
Case No. 2:07-cv-06101-CAS-VBK," filed with the U.S. District
Court for the Central District of California, Judge Christina A.
Snyder presiding.
Representing the plaintiffs is:
Maxwell M. Blecher, Esq. (mblecher@blechercollins.com)
Blecher & Collins
515 South Figueroa Street, 17th Floor
Los Angeles, CA 90071
Phone: 213-622-4222
Representing the defendants are:
Arthur J. Burke, Esq. (arthur.burke@dpw.com)
Davis Polk and Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Phone: 650-752-2005
John D. Lombardo, Esq. (john.lombardo@aporter.com)
Arnold and Porter
777 South Figueroa Street, 44th Fl
Los Angeles, CA 90017-2513
Phone: 213-243-4000
- and -
Steven F. Cherry, Esq. (steven.cherry@wilmerhale.com)
Wilmer Cutler Pickering Hale & Dorr
1875 Pennsylvania Avenue NW
Washington, DC 20006
Phone: 202-663-6321
COMCAST CORP: Faces ERISA Violations Litigating in Pennsylvania
---------------------------------------------------------------
Comcast Corp. faces a purported class action filed with the U.S.
District Court for the Eastern District of Pennsylvania,
alleging violations of Employee Retirement Income Security Act,
according to the company's Feb. 20, 2008 form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Dec. 31, 2007.
The suit was filed on Feb. 15, 2008, on behalf of plaintiff
Robert Urban. Aside from the company, the suit also named as
defendants:
-- Brian L. Roberts;
-- Ralph J. Roberts;
-- S. Decker Anstrom;
-- Kenneth J. Bacon;
-- Sheldon M. Bonovitz;
-- Edward D. Breen;
-- Julian A. Brodsky;
-- Joseph J. Collins;
-- Michael Cook;
-- Jeffrey A. Honickman;
-- Judith Rodin;
-- Michael I. Sovern;
-- Lawrence J. Salva; and
-- Unknown Fiduciary Defendants 1-30.
The alleged class comprises participants in the company's
retirement-investment (401(k) plan that invested in the plans
company stock account.
The plaintiff asserts that the defendants breached their
fiduciary duties in managing the plan. Mr. Urban is seeking
unspecified damages.
The suit is "Urban v. Comcast Corporation et al., Case No. 2:08-
cv-00773-HB," filed with the U.S. District Court for the Eastern
District of Pennsylvania, Judge Harvey Bartle, III, presiding.
Representing the plaintiff is:
Michael D. Donovan, Esq. (mdonovan@donovansearles.com)
Donovan Searles, LLC
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Phone: 215-732-6067
Fax: 215-732-8060
COMVERSE TECHNOLGY: Dismissal Request in Securities Suit Junked
---------------------------------------------------------------
By an Order dated Feb. 19, 2008 in "In re Comverse Technology
Inc. Sec. Litig., 06 CV 1825 (NGG) (RER)," filed with the U.S.
District Court for the Eastern District of New York, Judge
Nicholas G. Garaufis denied the defendants' motions to dismiss
the lead plaintiffs' consolidated amended class action
complaint.
Pomerantz Haudek Block Grossman & Gross LLP, lead counsel in the
case, represents the lead plaintiffs, made up of institutional
investors Menorah Insurance Co. Ltd. and Mivtachim Pension
Funds, Ltd. -- collectively called the Menorah Group.
The securities fraud class action involves the massive improper
backdating of options at Comverse Technology, Inc. (Pink
Sheets:CMVT).
The complaint alleges that senior officers of the company
repeatedly "cherry picked" option grant dates when the Company's
stock was trading at relatively low market prices, and then
fabricated paperwork to cover up the selection process.
Additionally, the defendants created a "slush fund" of backdated
options issued to fictitious employees which were then awarded
to actual employees at later dates.
Moreover, the complaint alleges that in order to insure that the
backdated options were in the money when exercised, the
defendants engaged in an additional scheme to inflate income by
manipulating reserves and misclassifying expenses.
As investors became aware of the widespread accounting fraud at
the Company, and the defendants' lack of integrity and
credibility, the price of Comverse shares plummeted from $29.15
per share to less than $18 per share following the disclosures
regarding the additional accounting irregularities. This
decline represents a loss of market capitalization exceeding $2
billion, indicative of the damages sustained by Class Members.
Comverse's former CEO, Jacob "Kobi" Alexander, fled to Namibia
shortly after the scheme was uncovered in the summer of 2006,
and faces extradition by the U.S. Department of Justice.
Of particular note was Judge Garaufis' denial of the
Compensation and Audit Committee members' motions to dismiss.
As members of these Committees, these defendants were
responsible for administering the Company's stock option plans
and granting its option awards.
Lead Plaintiff alleged that during the Class Period, these
options awards contained "as of" dates which were backdated to
reflect historically low share prices of Comverse stock.
Throughout the Class Period, the Compensation Committee
defendants received Comverse stock options and sold Comverse
common stock.
"As a result," writes Judge Garaufis in his decision, "they had
firsthand knowledge as shareholders of the ups and downs in
Comverse's stock price, which makes it likely that they were
aware that the 'as of' dates on the unanimous consent forms they
signed corresponded to low points in Comverse's stock price."
Citing the procedure that a court must follow when faced with a
Rule 12(b)(6) motion to dismiss a Section 10(b) action, as
established by the Supreme Court in Tellabs, Inv. v. Makor
Issues & Rights, Ltd., 127 S. Ct. 2499 (2007), and referencing
the "red flags" evident on the face of the unanimous consent
forms, as well as the Committee members' "experience and
knowledge," Judge Garaufis held that the facts alleged by
Menorah Group "give rise to a 'strong inference' that (the
Comverse Directors) acted recklessly -- that is, that the danger
that they were committing fraud by signing the unanimous consent
forms was 'so obvious that (they) must have been aware of it.'"
The suit is "In re Comverse Technology Inc. Sec. Litig., 06 CV
1825," filed with the U.S. District Court for the Eastern
District of New York, Magistrate-Judge Ramon E. Reyes Jr.,
presiding.
For more information, contact:
Jeremy A. Lieberman (jalieberman@pomlaw.com)
Director of Institutional Relations
Pomerantz Haudek Block Grossman & Gross LLP
100 Park Avenue
New York, NY 10017-5516
Phone: (888) 476.6529 or (888) 4.POMLAW
DUMAR INTL: Recalls Toy Cars Due to Fire and Burn Hazards
---------------------------------------------------------
Dumar International USA, of Franklin, Mass., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
64,000 Cinderella 12-Volt electric ride-on vehicles.
The company said the wires under the hood of the car and in the
battery compartment under the seat can short circuit, posing a
fire and burn hazard to children riding in the car.
The firm and CPSC are aware of 40 incidents of the toy car's
wires overheating. In several incidents, smoke was seen coming
out from underneath the seat area where the battery is located.
In one incident, flames shot from under the hood while a 4-year-
old girl was riding the vehicle. No injuries have been
reported.
The electric ride-on toy resembles the Pontiac Solstice. It is
light blue and has Cinderella graphics on the front and sides.
The wheels, steering wheel and two seats are pink. The white
dashboard may contain an optional radio. "Pontiac Solstice" is
printed on the back of the car. "Walt Disney's Cinderella
Special Edition" is printed on the license plate. It is
designed for children 4 to 7 years old.
These recalled toy cars were manufactured in China and were
being sold at Wal-Mart stores nationwide from August 2005
through February 2006 for about $200.
A picture of the recalled toy cars is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08195.jpg
Consumers are advised to immediately take the recalled toy cars
away from children and contact Dumar International for a free
retrofit kit, including a new battery.
For additional information, contact Dumar International at (866)
424-0500 between 10:00 a.m. And 8:00 p.m. ET Monday through
Friday, or visit the firm's Web site: http://www.dumarusa.com/
FAST FORWARD: Recalls Spiderman Water Bottles for Choking Hazard
----------------------------------------------------------------
Fast Forward LLC, of New York, N.Y., in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
6,600 Spiderman water bottles.
The company said screws under the bottle's lid can come loose
and fall into the cup, posing a choking hazard to children.
The firm has received three reports of screws coming loose under
the water bottle?s lid. No injuries have been reported.
The recalled plastic water bottles have a Spiderman picture on
the cup and a Spiderman figure on the screw-on lid. The water
bottle is red, white, blue, and black and measures nine inches
high.
These recalled Spiderman water bottles were manufactured in
China and were being sold exclusively at Sears stores nationwide
from July 2007 through August 2007 for about $10.
A picture of the recalled Spiderman water bottles is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08196.jpg
Consumers are advised to immediately take the recalled water
bottles away from children and contact Fast Forward LLC for
instructions on returning the water bottles for a full refund.
For additional information, contact company toll-free at (877)
244-4433 between 9:00 a.m. And 5:00 p.m. ET Monday through
Friday.
FLORIDA: Court Favors Broward Homeowners in Canker Lawsuit
----------------------------------------------------------
Circuit Judge Ronald Rothschild, on Feb. 21, 2008, ruled in
favor of Broward County homeowners who lost citrus trees to the
canker eradication program of the Florida Department of
Agriculture, Sun-Sentinel.com reports.
According to Sun-Sentinel, Judge Rothschild ruled that the
department destroyed the homeowners' property without paying
adequate compensation.
CBS4.com recounts that a class-action lawsuit was filed on
behalf of about 70,000 Broward homeowners against the state,
which cut down citrus trees across South Florida between over 10
years as part of a program to eradicate Citrus Canker, a plant
disease which is harmless to humans but which damages trees.
The state claimed that the trees were worthless because they
were either infected or potentially infected.
According to CBS4, the tree owners asserted that they should
have been paid for each tree cut down. During the program, Palm
Beach Post recalls, the state offered a $100 Wal-Mart voucher
for the first tree it removed and $55 for each subsequent tree,
which, the lawsuit had argued, was not enough.
Palm Beach Post relates that Judge Rothschild ruled in Fort
Lauderdale that the department's destruction of 133,720
residential citrus trees in Broward that were labeled as
"exposed" to canker constituted a "taking." That requires the
state to pay "full and just" compensation to thousands of
homeowners, he said.
Judge Rothschild did not yet award damages, Sun-Sentinel notes.
The next step, unless there is an appeal, is for the judge to
empanel a jury to hear testimony from both sides and decide how
to set a value on the destroyed trees, the report says.
Palm Beach Post cites Robert Gilbert, Esq., of Coral Gables,
lead attorney for the Broward homeowners, as saying that Judge
Rothschild also found no rational basis for the department's
adoption of its 1,900-foot policy. The rule required the
removal of every healthy citrus tree within 1,900 feet of a tree
that tested positive for canker.
Mr. Gilbert said that the trial to decide how much the Broward
homeowners should be paid for the trees is scheduled to begin on
April 14.
Florida Agriculture Commissioner Charles Bronson said in a
statement that he is disappointed with the Broward ruling but
believes the department will prevail on appeal.
Sun-Sentinel points out that the case is one of five virtually
identical class-action suits filed in different counties over
the canker eradication program. The first case to go to trial
was in Palm Beach County, where Circuit Judge Robin Rosenberg
decided in favor of 40,000 Palm Beach County homeowners.
A compensation trial for the Palm Beach County homeowners was to
begin in March, but has been moved to September.
The Broward Homeowners are represented by:
Robert C. Gilbert, Esq. (rgilblaw@aol.com)
Robert C. Gilbert, P.A.
220 Alhambra Circle, Suite 400
133 Sevilla Avenue
Coral Gables, FL 33134
Phone: (305) 529-9100
Fax: (305) 529-1612
GREENHECK FAN: Recalls Indirect Gas Fired Furnaces for Fire Risk
----------------------------------------------------------------
Greenheck Fan Corp., of Schofield, Wis., in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
1,500 indirect gas-fired furnaces.
The ignition control module can fail preventing the unit from
shutting down in high temperature conditions. This poses a risk
of fire, as well as hazardous fumes being released from
burning/melting insulation. No incidents or injuries have been
reported.
The recall involves Greenheck Fan Indirect Gas-Fired Furnaces
models PVF, PVFH, IGX, IG, ERH and ERCH. The model name is
located on the control center door or the furnace door. The
furnace is either natural gas or LP gas (propane) fueled. Only
units with ignition control module model number 35-615922-125
are included in the recall.
These recalled indirect gas-fired furnaces were manufactured in
the United States and were being sold through Greenheck sales
representatives to mechanical contractors nationwide from
November 2006 through October 2007 for between $2,000 and
$100,000.
A picture of the recalled indirect gas-fired furnaces is found
at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08545.jpg
Property managers or job sites who have not been contacted by
Greenheck Fan should contact the firm to arrange for a free
repair.
For additional information, contact Greenheck Fan at (800) 931-
6579 between 8:00 a.m. and 5:00 p.m. CT Monday through Friday
anytime, or visit the firm's Web site at
http://www.greenheck.com
INDIANAPOLIS LIFE: Sued Over Equity-Indexed Insurance Policies
--------------------------------------------------------------
Indianapolis Life Insurance Co. dba Aviva USA is facing a class-
action complaint filed with the U.S. District Court for the
District of Massachusetts alleging that the company defrauded
customers nationwide by misrepresenting the value of its equity-
indexed life insurance policies and its charges for cashing them
in, CourtHouse News Service reports.
Named plaintiff John D. Collins filed the suit on behalf of all
persons and entities who purchased equity-indexed life insurance
policies issued by Indianapolis Life beginning with the date
which is six years preceding the date this complaint is filed,
and a subclass composed of all members of the class that are
residents of the Commonwealth of Massachusetts and that received
their first annual statements for their policies at any time
after the date which is four years preceding the date the
complaint is filed.
The plaintiff wants the court to rule on:
(a) whether Indianapolis Life's conduct justifies classwide
equitable relief, and the proper form(s) of such
relief;
(b) whether Indianapolis Life's conduct constitutes unfair
or deceptive acts or practices in violation of
Massachusetts General Laws Chapter 93A; and
(c) whether plaintiff and members of the class and subclass
have sustained damages, and the proper measure of such
damages.
The plaintiff wants the court to enter judgment:
-- determining that the action is a proper class action and
certifying an appropriate plaintiff class pursuant to
Fed. R. Civ. P. 23;
-- granting declaratory, equitable and injunctive relief
as permitted by law or equity, including specific
performance, reformation of contract and waiver of
surrender charges due to mutual mistake, rescission, and
imposition of a constructive trust upon or otherwise
restricting the proceeds of Indianapolis Life's ill-
gotten funds to ensure plaintiff and class members
obtain an effective remedy;
-- awarding the plaintiff and class members equitable
restitution of surrender charges charged and collected
by defendant;
-- awarding the plaintiff and class members their costs and
disbursements incurred in connection with this action,
including attorneys' fees, expert witness fees and other
costs; and
-- awarding the plaintiff and the subclass members damages
and multiple damages in connection with Court VI for
violations of MGL chapter 93A.
The suit is "John D. Collins et al v. Indianapolis Life
Insurance Company," filed with the U.S. District Court for the
District of Massachusetts.
Representing the plaintiffs are:
Peter A. Lagorio, Esq. (plagorio@lagoriolaw.com)
Steven M. Taylor, Esq. (staylor@lagoriolaw.com)
Lynda Carey Paris, Esq. (lcarey@lagoriolaw.com)
Law Office of Peter A. Lagorio
63 Atlantic Avenue
Boston, MA 02110
Phone: (617) 367-4200
Fax: (617) 227-3384
INTEL CORP: Still Faces Suits Over "High" Microprocessor Prices
---------------------------------------------------------------
Intel Corp. continues to face several lawsuits, including some
class actions, with regards to the higher prices of its
microprocessors.
In June 2005, Advanced Micro Devices, Inc., filed a complaint
with the U.S. District Court for the District of Delaware
alleging that Intel and Intel's Japanese subsidiary engaged in
various actions in violation of the Sherman Act and the
California Business and Professions Code, including providing
secret and discriminatory discounts and rebates and
intentionally interfering with prospective business advantages
of AMD.
AMD's complaint seeks unspecified treble damages, punitive
damages, an injunction, and attorneys' fees and costs.
Subsequently, AMD's Japanese subsidiary also filed suits with
the Tokyo High Court and the Tokyo District Court against
Intel's Japanese subsidiary, asserting violations of Japan's
Anti-monopoly Law and alleging damages of approximately
$55 million, plus various other costs and fees.
At least 78 separate class actions, generally repeating AMD's
allegations and asserting various consumer injuries, including
that consumers in various states have been injured by paying
higher prices for Intel microprocessors, have been filed with
the U.S. District Courts for the Northern District of
California, Southern District of California, and the District of
Delaware, as well as in various California, Kansas, and
Tennessee state courts.
All the federal class actions have been consolidated by the
Multi-district Litigation Panel to the District of Delaware.
All California class actions have been consolidated to the
Superior Court of California in Santa Clara County.
Intel disputes AMD's claims and the class-action claims, and
intends to defend the lawsuits vigorously.
The company reported no development on the matter in its
Feb. 19, 2008 form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Dec. 29, 2007.
Intel Corp. -- http://www.intel.com/-- is a semiconductor
chipmaker, developing advanced integrated digital technology
platforms and components, primarily integrated circuits, for the
computing and communications industries. Intel's products
include chips, boards and other semiconductor products that are
the building blocks integral to computers, servers, handheld
devices, and networking and communications products. Its
component-level products consist of integrated circuits used to
process information, including microprocessors, chipsets, and
flash memory.
MEMPHIS LIGHT: City Declines Offer in Overcharging Litigation
-------------------------------------------------------------
The Memphis City Council declined to accept a proposed
settlement of a class action against Memphis Light, Gas and
Water Division, Jacinthia Jones of Commercial Appeal reports.
The lawsuit, filed last year, accuses the public utility of
overcharging customers, investing in risky ventures and
withholding operating surpluses that should have been returned
to customers.
The settlement offer, presented publicly to council members,
asks that MLGW credit utility customers $17 million over the
next five years. The plaintiffs' attorneys also are requesting
MLGW pay their fees in a lump sum payment of $3.9million.
The Commercial Appeal reports that Frank L. Watson, III, Esq.,
who is representing the plaintiffs, wrote in his settlement-
demand letter, "We believe we will be able to obtain a judgment
in excess of $100,000,000 at the trial of this matter,"
City Councilman Allan Wade strongly urged council members not to
accept, arguing that MLGW is not sitting on a "slush fund," but
rather maintains enough reserves to stay within "safe operating
margins" as dictated by the charter.
According to the proposed settlement, the four named parties in
the class suit would receive $2,500 yearly rebates, The
Commercial Appeal says.
The settlement offer distributed recently was dated Aug. 28,
2007, but Mr. Wade said he was presenting the matter now,
because the plaintiffs want the matter to go to mediation.
The council voted to reject the settlement proposal, and gave
city lawyers leeway to continue negotiating, according to The
Commercial Appeal.
For more details, contact:
Frank L. Watson, III, Esq.
1 Commerce Square
Memphis, TN 38103
Phone: (901)578-3528
MICROSOFT CORP: Wash. Court Certifies Class in "Vista" Lawsuit
--------------------------------------------------------------
Judge Marsha Pechman of the U.S. District Court for the Western
District of Washington granted class-action status to a lawsuit
against Microsoft Corp., alleging that the company unjustly
enriched itself by promoting PCs as "Windows Vista Capable" even
when they could only run a bare-bones version of the operating
system, called "Vista Home Basic," Joseph Tartakoff and Todd
Bishop of The Seattle Post Intelligencer report.
The slogan was emblazoned on PCs during the 2006 holiday
shopping season as part of a campaign by Microsoft to maintain
sales of Windows XP computers after the launch of Windows Vista
was delayed.
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. 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 (Class Action Reporter, Dec. 3,
2007).
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.
In addition, the suit claims that Bill Gates contributed to the
deception by saying on NBC's Today Show that PC users could
upgrade to Windows Vista for just $100.
Recent Decision
Judge Pechman's recent decision was the result of a hearing --
held about two weeks ago -– to determine whether the lawsuit
merited class-action status.
In her ruling, Judge Pechman granted class-action status,
stating that "common issues predominate." She wrote, "These
common issues . . . are whether Vista Home Basic, in truth, can
fairly be called 'Vista' and whether Microsoft's 'Windows Vista
Capable' marketing campaign inflated demand market-wide for
'Windows Vista Capable' PCs," according to a report by The
Seattle Post Intelligencer.
However, The Intelligencer notes, despite the ruling, Judge
Pechman narrowed the basis on which plaintiffs could move
forward with their claims.
Judge Pechman specifically pointed out that the plaintiffs could
not pursue a class action on the basis that consumers had been
deceived, since "an individualized analysis is necessary to
determine what role Microsoft's 'Windows Vista Capable'
marketing program played in each class members' purchasing
decision."
The judge stated that it was appropriate for plaintiffs to argue
as a class that Microsoft had artificially inflated demand --
and prices -- for computers only capable of running Vista Home
Basic by marketing them as "Windows Vista Capable."
Additionally, The Intelligencer relates that Judge Pechman also
said that the two consumers currently named as plaintiffs in the
case could not also represent buyers who participated in a
related Microsoft program called "Express Upgrade," which gave
consumers the right to free or low-priced upgrades to Windows
Vista after it came out.
Judge Pechman said "injury" to those consumers was "correlated
to the amount spent on the cost of the upgrade program, not the
allegedly inflated price of the 'Windows Vista Capable' PCs."
Judge Pechman, however, said that plaintiffs could amend their
complaint to include a named plaintiff who participated in that
program, according to The Intelligencer report.
The suit is "Kelley v. Microsoft Corp., Case No. 2:07-cv-00475-
MJP," filed with 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
NISSAN NORTH: Calif. Court Refuses to Dismiss Dealership's Suit
---------------------------------------------------------------
Judge Carter P. Holly of the Superior Court of the State of
California in and for the county of San Joaquin rejected an
effort by Nissan North America to block a lawsuit by a
Sacramento-area auto dealer who alleges that Nissan is
systematically violating California law when it forces auto
dealers to relocate near Honda and Toyota competitors before
selling their dealerships.
Specifically, Judge Holly denied Nissan's motion for summary
judgment and rejected eight of the nine motions for summary
adjudication.
In addition, the court ruled that the class action portion of
the suit remains and that, if the case is successful, Nissan
could face punitive damages.
"The motion for summary judgment is denied as triable issues of
material fact exist as to several of the causes of action as
delineated below," the judge wrote in his order.
The suit is entitled, "Western Automotive Group Inc., and
Sherwen's Investments v. Nissan North America Inc., Case No. CV
028510."
Gary Hamner, who owned a Nissan dealership in a Stockton auto
mall, claims that Nissan cost him millions of dollars by
imposing unreasonable requirements before he could sell his
dealership, according to a lawsuit.
Mr. Hamner claims that he was told that a new buyer would have
to move the dealership. Nissan had required him to purchase the
land he was leasing for his auto dealership. If he didn't
purchase the land, Nissan told Mr. Hamner he would lose his
franchise.
After he bought the land and notified Nissan that he planned to
sell the dealership, Nissan then told Mr. Hamner any buyer would
have to agree to move the dealership so that it was located near
Honda and Toyota dealerships in Stockton, the lawsuit says.
"Nissan's actions cost Mr. Hamner and his companies millions of
dollars," said Mr. Hamner's lawyer, Michael M. Sieving, Esq.
"He purchased the land where his dealership was located only to
be told by Nissan that, if he sold the dealership, it had to
move."
"Buyers who were interested in buying the dealership refused to
agree to Nissan's added conditions," stated Sieving.
"California law specifically protects owners of auto franchises
against unreasonable demands such as those imposed by Nissan."
Mr. Sieving said other dealers have approached him since news of
Mr. Hamner's lawsuit has become widely known.
"We know there are many other dealers in comparable situations
so we are continuing to investigate other instances where Nissan
overstepped its boundaries and similarly imposed unreasonable
requirements that appear to violate California law," Sieving
added.
Mr. Sieving, who specializes in representing auto dealers, said
Nissan has made it a practice to withhold its approval on
dealership sales if the buyers didn't agree to move the
dealership to be near Honda and Toyota dealerships.
Mr. Hamner ultimately sold the Nissan dealership and the
property in 2005 -- with both selling for far less than they
would have if not for the restrictions imposed by Nissan.
For more details, contact:
Michael M. Sieving, Esq. (msieving@surewest.net)
350 University Ave., Suite 105,
Sacramento, CA 95825
Phone: (916) 649 3500
Fax: (916) 649 3159
Web site: http://www.sievinglaw.com
- and -
Gary Hamner (garyhamner@gopeoples.com)
Western Automotive Group
13389 Folsom Blvd Suite 300-169
Folsom, CA 95630
Phone: 916-608-1300-101
Fax: 916-608-1350
NORTHERN STATES: Appeals Court Rules v. "Hoffman" Plaintiffs
------------------------------------------------------------
The Minnesota Court of Appeals sided with Northern States Power
Co., a wholly owned subsidiary of Xcel Energy, Inc., with regard
to the plaintiffs' appeal in the purported consumer class
action, "Hoffman vs. Northern States Power Co."
Filed on March 15, 2006, the complaint was brought on behalf of
NSP-Minnesota's residential customers in Minnesota, North
Dakota, and South Dakota for alleged breach of a contractual
obligation to maintain and inspect the points of connection
between NSP-Minnesota's wires and customers' homes within the
meter box.
The plaintiffs assert that NSP-Minnesota's breach results in an
increased risk of fire and that it is in violation of tariffs on
file with the Minnesota Power Utilities Commission. Thus, they
seek injunctive relief and damages in an amount equal to the
value of inspections plaintiffs claim NSP-Minnesota was required
to perform over the past six years.
NSP-Minnesota filed a motion for dismissal on the pleadings. In
November 2006, the court issued an order denying NSP-Minnesota's
motion.
On Nov. 28, 2006, pursuant to a motion by NSP-Minnesota, the
court certified the issues raised in NSP-Minnesota's original
motion as important and doubtful. The certification permits
NSP-Minnesota to file an appeal, and it has done so. Briefs
have been filed, and oral arguments were heard Oct. 24, 2007.
On Jan. 22, 2008, the Minnesota Court of Appeals determined that
the plaintiffs' claims are barred by the filed rate doctrine and
remanded the case to the district court for dismissal, according
to the company's Feb. 20, 2008 form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 31, 2007.
Minnesota-based Xcel Energy, Inc. -- http://www.xcelenergy.com
-- is a holding company engaged in the utility business in the
U.S.
NORTHROP GRUMMAN: Still Faces Consolidated ERISA Suit in Calif.
---------------------------------------------------------------
Northrop Grumman Corp. continues to face a consolidated class
action, entitled "In Re Northrop Grumman Corporation ERISA
Litigation, Case No. 2:07-cv-00153-R-JC," which is pending with
the U.S. District for the Central District of California.
The suit was a consolidation of these two separately filed
Employee Retirement Income Security Act class actions:
-- "Grabek v. Northrop Grumman Corporation, et al.,
previously styled Waldbuesser v. Northrop Grumman
Corporation, et al.," and
-- "Heidecker v. Northrop Grumman Corporation, et al."
The plaintiffs in "Grabek" allege breaches of fiduciary duty by
the company, certain of its administrative and Board committees,
all members of the company's Board of Directors, and certain
company officers and employees with respect to alleged
excessive, hidden and otherwise improper fee and expense charges
to the Northrop Grumman Savings Plan and the Northrop Grumman
Financial Security and Savings Plan (both of which are 401(k)
plans).
The Heidecker litigation asserts similar claims, but has
dismissed the company's Board of Directors.
Each lawsuit seeks unspecified damages, removal of individuals
acting as fiduciaries to such plans, payment of attorney fees
and costs, and an accounting.
The suits were consolidated under the caption, "In Re Northrop
Grumman Corporation ERISA Litigation," for discovery and other
purposes, as each alleged similar issues of law and fact. They
were consolidated in the U.S. District Court for the Central
District of California.
On May 21, 2007, the Court granted a motion to dismiss with
prejudice the company and the Board of Directors from the Grabek
litigation. A few days later, the Court entered an order
dismissing the company with prejudice from the Heidecker
lawsuit.
On Aug. 7, 2007, the Court denied the plaintiffs' motion for
class certification. The plaintiffs sought leave to file an
appeal with the U.S. Court of Appeals for the Ninth Circuit on
the issue of class certification.
On Sept. 28, 2007, the Ninth Circuit ordered that the trial
court proceedings be stayed pending its decision on whether to
grant appellate review. In October 2007, the Ninth Circuit
granted such review.
The company reported no development on the matter in its
Feb. 20, 2008 form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended Dec. 31, 2007.
The suit is "In Re Northrop Grumman Corporation ERISA
Litigation, Case No. 2:07-cv-00153-R-JC," filed with the U.S.
District for the Central District of California, Judge Manuel L.
Real presiding.
Representing the plaintiffs are:
Stephen M. Fishback, Esq. (sfishback@kfjlegal.com)
Keller Fishback
28720 Roadside Drive, Suite 201
Agoura Hills, CA 91301
Phone: 818-879-8033
- and -
Thomas J. McKenna, Esq.
(tjmckenna@gaineyandmckenna.com)
Gainey and McKenna
295 Madison Avenue, 4th Fl
New York, NY 10017
Phone: 212-983-1300
OPNEXT INC: Lead Plaintiff Appointment Deadline Set for April 21
----------------------------------------------------------------
Shareholders of Opnext, Inc. (NasdaqGS:OPXT - News) who
purchased shares of the Company in its Initial Public Offering
on February 14, 2007, or in the open market from February 14,
2007, through February 13, 2008, have only until April 21, 2008,
to move for appointment as Lead Plaintiff in a securities class
action lawsuit currently pending in the United States District
Court for the District of New Jersey.
Beginning on January 11, 2008 -- after defendants and other
Company insiders has sold almost $300 million in Company stock
to investors in the public markets -- defendants first revealed
that the Company was operating well below plan and defendants'
forward guidance would need to be adjusted -- substantially
downward. In reaction to this news shares of the Company
declined precipitously, falling from almost $7.00 per share on
January 10, 2008, to a low of $3.77 per share on January 11,
2008, on exceptionally heavy trading volume with over 6 million
shares traded -- hundreds of times the Company's recent average
daily trading volume.
On Feb. 13, 2008, the Company announced that its previously
issued financial statements for the fiscal years ended March 31,
2007, and 2006 and certain interim quarterly periods can no
longer be relied upon and have to be restated. This adverse
announcement caused the Company's stock to fall $0.89 per share,
or 16.6%, that day (Class Action Reporter, Feb. 18, 2008).
Subsequently, Opnext and certain of its officers and directors
were charged with, including, or allowing the inclusion of,
materially false and misleading statements in the Registration
Statement and Prospectus issued in connection with the IPO, in
violation of the Securities Act of 1933.
For more information, contact:
Lewis Kahn, Esq. (lewis.kahn@kgscounsel.com)
Kahn Gauthier Swick, LLC
650 Poydras St. Suite 2150
New Orleans, Louisiana 70130
Phone: 1-866-467-1400, ext. 100
PETROLEUM MARKETERS: Dismissal Request in "Hot Fuel Suit" Junked
----------------------------------------------------------------
Judge Kathryn H. Vratil of the U.S. District Court for the
District of Kansas refused to dismiss the lawsuit against
petroleum marketers alleging deceptive sale of gasoline and
diesel fuel.
The sale of "hot fuel" will bring a long, uncomfortable summer
to petroleum marketers, refiners and oil companies with a
federal judge's across-the-board decision to let a lawsuit
against the practice go forward, said the Foundation for
Taxpayer and Consumer Rights and its OilWatchdog project.
FTCR said the lawsuit, covering a majority of states, should
raise motorists' awareness that they lose up to a dime a gallon
from the sale of "hot fuel," especially in the South and
Southwest.
"Forcing motorists to buy 'hot fuel' is yet another way oil
companies cheat us. Drivers' losses boost the bottom line of
the oil business, from the oil company down to the retail
level," said Judy Dugan, research director of Oilwatchdog.org
and FTCR. "A major point of this lawsuit is that drivers have
no way of telling the temperature of the fuel they buy, and thus
have no way to determine its true value."
In 2007, the plaintiffs asserted putative class action claims
for damages and injunctive relief against various motor fuel
retailers in:
-- Alabama,
-- Arizona,
-- Arkansas,
-- California,
-- Delaware,
-- Florida,
-- Georgia,
-- Indiana,
-- Kansas,
-- Kentucky,
-- Louisiana,
-- Maryland,
-- Mississippi,
-- Missouri,
-- Nevada,
-- New Jersey,
-- New Mexico,
-- North Carolina,
-- Oklahoma,
-- Oregon,
-- Pennsylvania,
-- South Carolina,
-- Tennessee,
-- Texas,
-- Utah,
-- Virginia,
-- the District of Columbia and
-- Guam
The plaintiffs claim that because defendants sell motor fuel for
a specified price per gallon without disclosing or adjusting for
temperature expansion, they are liable under various state law
theories including breach of contract, breach of warranty, fraud
and consumer protection.
The plaintiffs assert claims individually and on behalf of
similarly situated persons and entities who purchased gasoline
or diesel fuel at temperatures greater than 60 degrees
Fahrenheit from one or more defendants in the Region.
On August 30, 2007, the Court directed the plaintiffs to file a
consolidated amended complaint as an MDL administrative and
procedural tool designed to narrow the predominant legal issues
common to the underlying cases. The Consolidated Amended
Complaint (Doc. #186) was filed October 8, 2007.
The defendants seek dismissal of the plaintiffs' claims under
Rule 12(b)(6). In support of their motion, defendants assert
that:
(1) all claims must fail as a matter of law because state
regulation requires defendants to dispense motor fuel
in uniform gallons of exactly 231 cubic inches;
(2) the consumer protection and breach of contract claims
fail as a matter of law because defendants accurately
represent what they sell;
(3) the consumer protection claims fail as a matter of
because defendants do not omit, suppress or conceal
material facts;
(4) the consumer protection claims fail as a matter of law
because state weights-and-measures regimes have
endorsed defendants’ practices as fair and proper;
(5) the implied warranty claims fail as a matter of law
because defendants did not warrant that each unit of
motor fuel would have identical energy content;
(6) the fraud and negligent misrepresentation claims fail
as a matter of law because defendants did not make
untrue or misleading statements or conceal material
facts;
(7) the breach of duty of good faith and fair dealing
claims fail as a matter of law because the alleged
conduct does not violate consumer protection laws;
(8) the unjust enrichment and conversion claims fail as a
matter of law because state law prohibits defendants
from selling temperature-adjusted gallons and because
plaintiffs cannot bring quasi-contractual claims when
the transaction is governed by contract;
(9) the civil conspiracy claims fail as a matter of law
because plaintiffs cannot prove an underlying wrong and
because plaintiffs do not allege facts sufficient to
support conspiracy; and
(10) any claims based on tax overpayments fail as a matter
of law because defendants have not violated any law and
plaintiffs do not allege any inequity in defendants’
practice.
The 'hot fuel' scam occurs because gasoline expands as it warms
up, for reasons including the refining process, air temperature
and solar heating. The expansion means that a measured gallon
loses energy as it warms, providing fewer miles per gallon. When
gasoline is sold at the wholesale level, it is adjusted for
temperature variation from the national standard of 60 degrees.
Most retailers also get extra gallons to compensate for
temperature expansion. But consumers can buy fuel only by a
measured gallon, no matter what its energy content, with warmer
gas yielding less energy per gallon. It is notable that in
Canada oil companies adjust retail gasoline sales for
temperature, because colder than average temperatures there
would otherwise give consumers an advantage.
In California and Arizona, Exxon Mobil has put stickers on its
pumps about fuel energy being "affected by temperature" as a
tactic to fend off the class action lawsuits against hot fuel
sales.
Independent truckers, represented by the Owner Operator
Independent Drivers Association, based in Missouri, say they
lose hundreds of dollars a year from hot fuel. The truckers'
group noted that the lawsuit is far from finished but relished
the fight.
"America's truckers are closely watching the progress of this
case. They want, and deserve to get the same miles per gallon
from every fill-up. Especially since they are having to buy an
extra 200 gallons, or so, every year due to hot fuel," said John
Siebert of the truckers' association. "Having jumped this
'motion to dismiss' hurdle, the case is well into the middle of
the beginning phase."
The judge has asked the attorneys for their plans for the
discovery portion of the proceedings. For the plaintiffs, this
is not such a hard problem: US fuel consumers found out how
retail fuel is really sold, and did so recently. For the
petroleum retail defendants, it's going to be a little harder to
explain: they've known the impact of temperature on fuel volume
since the 1920's, yet managed to keep it very quiet until now.
Attorney George Zelcs of Chicago, who originally brought the
case for motorists, also praised the breadth of the decision,
"The oil industry defendants represented to the Court that they
had a silver bullet that would end the case and result in the
dismissal of all of the consumers claims. Their aim was not
true."
The decision by District Court Judge Kathryn H. Vratil moves the
case to the discovery stage.
"Today's legal victory raises the pressure on regulators and
lawmakers to fix the hot fuel ripoff. It is even more important
to motorists with crude oil over $100 a barrel and gasoline
prices rising to match," said Dugan of OilWatchdog.org.
The suit is "In Re: Motor Fuel Temperature Sales Practice
Litigation, Case No. 07-MD-1840-KHV," filed with the U.S.
District Court for the District of Kansas, Judge Kathryn H.
Vratil, presiding.
PIERRE'S ICE CREAM: Recalls Ice Cream Over Undeclared Content
-------------------------------------------------------------
Pierre's Ice Cream Company, in cooperation with the Food and
Drug Administration, is voluntarily recalling its Pierre’s
Homestyle Dutch Chocolate Ice Cream (purple 56 fl oz package)
because it may contain undeclared peanut butter cup candies.
The containers are identified with the code 07320 which is
printed on the rim of the lid.
People who have an allergy or severe sensitivity to peanuts run
the risk of developing a life threatening health problem/illness
if they consume this batch of Dutch Chocolate. No illnesses
have been reported to date.
This ice cream was distributed in Ohio, Michigan, Western
Pennsylvania, and Indiana and reached consumers through retail
stores. The packaging does not reveal the presence of peanut
butter candy or peanuts on the ingredient label.
If consumers have a Dutch Chocolate 56 fl oz (purple package)
with the code 07320 on the rim of the lid, they should discard
the ice cream and send the lid of the empty container back to
Pierre's for a full refund:
Consumer Response Department
Pierre’s Homestyle Dutch Chocolate Refund
6200 Euclid Ave.
Cleveland, OH 44103
For any questions, consumers are asked to call 1-216-432-1144.
SELWYN HOUSE: Offers Students CDN5 Mln. to Settle Sex Abuse Suit
----------------------------------------------------------------
Canadian private school Selwyn House has offered a formal
apology and up to CDN$5 million in compensation to former
students who claimed that they were sexually abused by teachers,
The Globe and Mail reports.
According to CBC News, Selwyn House proposed the settlement
terms in a document filed with the Quebec Superior Court on
Feb. 19. The boys' school, however, denies any wrongdoing or
liability, and clarified that it made the offer to help alleged
victims "move past this matter."
The settlement, CBC News relates, was filed after three former
students launched a class action lawsuit against their alma
mater, alleging that they were sexually abused at the school
dating back as far as the 1960s.
The Montreal Gazette writes that the offer comes before the
Quebec Superior Court is set to decide on April 25 whether the
former students can pursue a class-action suit against the
school. The students allege they were abused by former teachers
Leigh Seville, John Aimers and James Hill.
Sources told Globe and Mail that the deal came after more than
18 months of negotiations, which grew especially intense after
an agreement in principle was reached last summer.
Globe and Mail recounts that the allegations of sexual
misconduct first rocked Selwyn House in 1995, when one of the
three plaintiffs claimed that Mr. Seville sexually preyed on him
and other students in the 1970s and 1980s. Mr. Seville killed
himself and his 81-year-old father in 1991 when confronted by
the school about an earlier allegation of abuse.
A few months later, Globe and Mail further recalls, the other
two students stepped forward with claims against other former
teachers. One suit named Mr. Aimers, former head of the
Monarchist League of Canada, who taught and coached the debating
club at Selwyn House in the 1970s. The plaintiff alleged that
Mr. Aimers asked him, then 13, to his home, where he tried to
force him to perform oral sex. Mr. Aimers has signed the
proposed settlement, although he also denies wrongdoing.
The third teacher, Mr. Hill, who taught at the school from 1961
to 1972, is named by the third former student who alleges that
Mr. Hill invited him to his apartment, ordered him to strip, and
sexually fondled him. Mr. Hill's whereabouts are not known,
Globe and Mail says.
The class-action lawsuit, according to CBC News, is seeking
CDN$19 million in damages for each victim.
CTV News earlier reported that the plaintiff's lawyers have
already been contacted by more than 20 former students
interested in the class-action suit, who say they were abused at
the school.
The settlement has yet to be approved by the court.
The plaintiffs are represented by:
Irwin I. Liebman, Esq.
Liebman & Associates
1500 - 1 Westmount Square
Montreal, Quebec
H3Z 2P9
Phone: (514) 846-0666
Fax: (514) 935-2314
- and -
Bryan McPhadden, Esq. (bmcphadden@msmb.ca)
McPhadden Samac Merner Barry
8 King Street East
Suite 300
Toronto, Ontario M5C 1B5
Phone: (416) 363-5195
Fax: (416) 363-7485
TRAVEL AGENCIES: Certification Hearing Not Necessary, Judge Says
----------------------------------------------------------------
U.S. District Judge David Herndon will not hold a hearing for
the city of Fairview Heights on its request to have a statewide
class-action seeking back taxes from Orbitz, Travelocity and
other online travel agents certified, The Madison St. Clair
Record reports.
"After further review of the motion and briefs, the Court has
determined that a hearing will not be necessary," Judge Herndon
wrote on Feb. 12. "The motion is now under advisement."
As reported in the Class Action Reporter on Sept. 21, 2007, the
class action was filed Oct. 5, 2005, in St. Clair County. It
was later removed to federal court. In the suit, Fairview
Heights seeks to represent 50 Illinois cities in a claim that
online travel agents have cheated on room taxes. The suit was
filed against travel agents Orbitz, Priceline.com and Expedia,
Hotels.com, Hotwire, Cheap Tickets, Travelnow.com,
Travelocity.com, Travelweb, LowestFare.com and Site 59.com.
Fairview Heights, according to Madison Record, seeks to collect
municipal room taxes from the online companies that book hotel
rooms. According to the CAR report, the hotels are accused of
pocketing the difference between the retail room taxes they
charge customers and the wholesome room taxes they paid to the
city. The plaintiffs also assert that in addition to the rental
price of the hotel rooms, the occupants are required to pay a
transient occupancy tax.
Madison Record writes that Judge Herndon's order keeps hope
alive for Fairview Heights, but just barely. After all, the
city does not belong to the class.
City attorney Richard Burke, Esq., admitted as much in a
Jan. 14 brief and blithely declared, "Plaintiff amends the class
definition to bring it in conformity with the facts of the
case."
However, the defendants protested that Fairview Heights cannot
amend the definition without amending its certification motion.
They had caught Fairview Heights out of bounds by drawing a
distinction between cities that collect use taxes and those that
collect occupancy taxes.
Attorneys involved in the Fairview Heights lawsuit are City
Attorney Al Paulson, Esq. (acp@bphlaw.com), Kevin Hoerner –- Mr.
Paulson's law partner –- and Richard Burke, Esq., as
well as the law firm Becker, Paulson, Hoerner & Thompson, P.C.,
which was tasked to initiate the suit in 2005.
TYCO INT'L: Investors Opting Out Of Class Settlement File Suit
--------------------------------------------------------------
The settlement of a consolidated securities class action filed
against Tyco International Ltd., certain of the company's former
directors and officers and its former auditors, did not end
securities litigation against the company, Charles Toutant of
the New Jersey Law Journal reports.
According to NJ Law Journal, a second wave, generated by class
members who opted out of the settlement, has made landfall.
Two suits were filed with the U.S. District Court in Newark on
Jan. 29, asserting that former Tyco CEO L. Dennis Kozlowski
misappropriated more than $400 million in company funds and that
he and other senior executives inflated Tyco's stock price with
deceptive financial reports.
The plaintiffs, four funds owned by Nuveen Investments of
Chicago and 28 funds owned by New York investment firm
BlackRock, allege violations of the Securities Acts of 1933 and
1934 and New Jersey's RICO statute.
The named defendants include Mr. Kozlowski and former Chief
Financial Officer Mark Swartz, who were convicted in a New York
State court in Manhattan in June 2005 on charges of taking more
than $100 million from the company.
Case Background
The company and certain of its former directors and officers
were named as defendants in over 40 securities class actions.
The Judicial Panel on Multidistrict Litigation transferred to
the U.S. District Court for the District of New Hampshire most
of the securities class actions for coordinated or consolidated
pretrial proceedings.
On Jan. 28, 2003, the court-appointed lead plaintiffs in the New
Hampshire securities actions filed, "In re Tyco International,
Ltd., Securities, Derivative and 'ERISA' Litigation, MDL-1335,
Master Docket No. 1:02-md-01335-PB," a consolidated securities
class action complaint against the company certain of the
company's former directors and officers and its former auditors.
The suit was filed in the U.S. District Court for the District
of New Hampshire.
As to the company and certain of its former directors and
officers, the complaint asserts causes of action under Section
10(b) of the U.S. Securities Exchange Act of 1934 and Rule10b-5
promulgated thereunder, and Section 14(a) of that Act and Rule
14a-9 promulgated thereunder, as well as Sections 11 and
12(a)(2) of the Securities Act of 1933.
Claims against the company's former directors and officers are
also asserted under Sections 20(a) and 20A of the U.S.
Securities Exchange Act of 1934 and Section 15 of the Securities
Act of 1933.
The complaint asserts that the Tyco defendants violated the
securities laws by making materially false and misleading
statements and omissions concerning, among others:
-- Tyco's mergers and acquisitions and the accounting
therefor, as well as allegedly undisclosed
acquisitions;
-- misstatements of Tyco's financial results;
-- the impact of a new accounting standard (SAB 101,
promulgated in 1999) on the company's earnings
performance;
-- compensation of certain of the company's former
executives;
-- their improper use of the company's funds for personal
benefit and their improper self-dealing real estate
transactions;
-- their sales of Tyco shares;
-- payment of $20 million to one of the company's former
directors and a charity of which he is a trustee; and
-- the criminal investigation of the company's former
chief executive officer.
On June 12, 2006, the court entered an order certifying a class
"consisting of all persons and entities who purchased or
otherwise acquired Tyco securities between Dec. 13, 1999 and
June 7, 2002, and who were damaged thereby, excluding
defendants, all of the officers, directors and partners thereof,
members of their immediate families and their legal
representatives, heirs, successors or assigns, and any entity in
which any of the foregoing have or had a controlling interest."
In May 2007, Tyco agreed to immediately fund $2.975 billion in
cash to settle securities and accounting fraud claims relating
to the Kozlowski era (Class Action Reporter, May 16, 2007).
Tycos auditor, PricewaterhouseCoopers, then agreed to pay
$225 million to settle securities and accounting fraud claims
relating to Tycos securities class action (Class Action
Reporter, July 9, 2007). Judge Paul Barbadoro of the U.S.
District Court for the District of New Hampshire gave
preliminary approval to the $3.2 billion settlement (Class
Action Reporter, Jul 18, 2007).
In Dec. 2007, the U.S. District Court for the District of New
Hampshire, following the Nov. 2 final approval hearing, granted
final approval to the $3.2-billion settlement of the
consolidated securities class action filed (Class Action
Reporter, Dec. 26, 2007).
The class consists of all persons who purchased or otherwise
acquire Common Stock, Notes or Options on Common Stock of Tyco
from December 13, 1999 to June 7, 2002, inclusive.
The case caption is: In re: Tyco International, Ltd.
Multidistrict Litigation, MDL-1335, Master Docket No. 1:02-md-
01335-PB," filed with the U.S. District Court for the District
of New Hampshire under Judge Paul Barbadoro.
For more information, contact:
Katharine Ryan, Esq. (kryan@sbtklaw.com)
Michael Yarnoff, Esq. (myarnoff@sbtklaw.com)
Darren Check (dcheck@sbtklaw.com)
Schiffrin Barroway Topaz & Kessler, LLP
Phone: 1-888-299-7706 (Toll Free)
1-610-822-2223
1-610-822-2203
1-610-822-2235
UNITED ONLINE: No Trial Date Set for Calif. NetZero Litigation
--------------------------------------------------------------
A trial date has not yet been set for a consolidated consumer
fraud class action filed against NetZero, a brand name of United
Online, Inc.
On March 6, 2006, plaintiff Anthony Piercy filed a purported
consumer class action with the Superior Court of the State of
California, County of Los Angeles, against NetZero, claiming
that NetZero continues to charge consumers fees after they
cancel their Internet access account.
On July 27, 2006, plaintiff Donald E. Ewart filed a purported
consumer class action with the Superior Court of the State of
California, County of Los Angeles, against NetZero containing
substantially similar allegations to the Piercy case.
The plaintiffs in both cases sought injunctive and declaratory
relief and damages. NetZero filed a response to both lawsuits
denying the material allegations of the complaints.
Both Mr. Piercy and Mr. Ewart subsequently withdrew from the
actions as class representatives. Then, on March 16, 2007,
Barbara Rasnake, Robert Du Verger, and Peter Chrisler were
substituted as purported class representatives.
On May 25, 2007, the court consolidated the actions under the
caption, "Rasnake v. NetZero, Inc., Case No. BC348461."
On July 13, 2007, the plaintiffs filed a consolidated amended
class action complaint. A trial date has not yet been set,
according to the company's Feb. 20, 2008 form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Dec. 31, 2007.
United Online, Inc. -- http://www.unitedonline.net/-- is a
provider of consumer Internet and media services through a
number of brands, including NetZero, Juno, Classmates and
MyPoints.
WALT DISNEY: ADA Violation Suit on Segway Use Ban, Thrown-Out
-------------------------------------------------------------
Judge Gregory A. Presnell of the U.S. District Court for the
Middle District of Florida dismissed a lawsuit filed by three
disabled people against Walt Disney World alleging that they
were not allowed to use Segways to move around its Disney theme
park, The Orlando Sentinel reports.
The suit was filed in 2007, as a purported class action on
behalf of Mahala Ault and Dan Wallace of Illinois and Stacie
Rhea of Iowa (Class Action Reporter, Nov. 14, 2007).
The plaintiffs are each able to stand but cannot walk far, and
use Segways to get around. They say they have been denied
permission to use the vehicles at Disney World. The theme park
has allegedly violated the Americans With Disabilities Act.
Disney has banned Segways in its parks because of its danger to
guests and cast. Segways can go 12 mph.
Judge Presnell dismissed the suit after agreeing with Walt
Disney's contention that none of the three people who sued had
any standing to do so because none of them demonstrated any
intention to visit the resort in the near future.
"We asked for dismissal and the court agreed it was
appropriate," Disney World Acting Vice President Jacquee Polak
stated. "We provide a variety of accommodations to guests with
disabilities, which allow them to fully enjoy our theme parks."
According to the report, Disney says it has safety concerns
about allowing Segways to maneuver through its often-crowded
parks and that it has no practical way to gauge whether a Segway
user entering a park is adequately trained on the scooters.
SeaWorld Orlando also bars Segways.
Both theme-park companies say they make other accommodations for
disabled customers by allowing motorized wheelchairs and
conventional motorized scooters.
The suit is "Ault et al. v. Walt Disney World Co., Case No.
6:2007-cv-01785," filed with the U.S. District Court for the
Middle District of Florida under Judge Gregory A. Presnell with
referral to Magistrate Judge Karla R. Spaulding.
One of the plaintiffs' lawyers is:
Nancy A. Johnson, Esq.
Dempsey & Associates, P.A.
1560 Orange Ave., Suite 200
Winter Park, Florida 32789
Phone: (407) 422-5166
Fax: (407) 422-8556
XCEL ENERGY: Fifth Circuit to Hear Appeal in "Comer" Litigation
---------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit agreed to hear
an appeal regarding the dismissal of a purported class action
over carbon dioxide emission, which names Xcel Energy, Inc., as
a defendant.
On April 25, 2006, Xcel Energy received notice of the lawsuit,
"Comer v. Xcel Energy Inc. et al.," which named as defendants
more than 45 oil, chemical and utility companies, including the
company. The suit was filed with the U.S. District Court for
the Southern District of Mississippi.
The suit alleges that the defendants' carbon dioxide emissions
"were a proximate and direct cause of the increase in the
destructive capacity of Hurricane Katrina."
The plaintiffs also assert several legal theories in support of
their claim, including negligence, and public and private
nuisance, and seek damages related to the hurricane.
At Xcel Energy's request, the court, on Aug. 30, 2007,
dismissed the lawsuit in its entirety against all defendants on
constitutional grounds.
On Sept. 17, 2007, the plaintiffs filed a notice of appeal to
the U.S. Court of Appeals for the Fifth Circuit.
The Court of Appeals has taken the matter under advisement, and
is expected to issue an opinion in due course, according to the
company's Feb. 20, 2008 form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 31, 2007.
The suit is "Comer, et al. v. Nationwide Mutual Insurance Co.,
et al., Case No. 1:05-cv-00436-LTS-RHW," filed with the U.S.
District Court for the Southern District of Mississippi, Judge
L. T. Senter, Jr. presiding.
Representing the plaintiffs are:
Carlos A. Zelaya, Esq. (czelaya@maplesandkirwan.com)
Maples & Kirwan, LLC
902 Julia Street
New Orleans, LA 70113
Phone: 504/569-8732
Fax: 504/525-6932
Stephen M. Wiles, Esq. (smwiles@smithfawer.com)
Randall Allan Smith, Esq. (rasmith3@bellsouth.net)
Smith & Fawer
201 St. Charles Ave., Suite 3702
New Orleans, LA 70170
Phone: 504/525-2200
Fax: 504/525-2205
- and -
F. Gerald Maples, Esq. (federal@geraldmaples.com)
F. Gerald Maples, PA
902 Julia Street
New Orleans, LA 70113
Phone: 504/569-8732
Representing the company are:
John G. Corlew, Esq. (jcorlew@watkinseager.com)
Katherine K. Smith, Esq. (ksmith@watkinseager.com)
Watkins & Eager
P.O. Box 650
Jackson, MS 39205-0650
Phone: (601) 948-6470
XCEL ENERGY: Continues to Face Several Nev. Natural Gas Lawsuits
---------------------------------------------------------------
Xcel Energy, Inc., and its subsidiaries still face multiple
lawsuits in Nevada with regards to the sale of natural gas in
the U.S., according to the company's Feb. 20, 2008 form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended Dec. 31, 2007.
e prime, a subsidiary of Xcel Energy Markets Holdings Inc.,
which is a wholly owned subsidiary of Xcel Energy, Inc., was in
the business of natural gas trading and marketing. It has not
engaged in natural gas trading or marketing activities since
2003.
Twelve lawsuits have been commenced against e prime, and Xcel
Energy (and NSP-Wisconsin in one instance), alleging fraud and
anticompetitive activities in conspiring to restrain the trade
of natural gas and manipulate natural gas prices.
Xcel Energy, e prime, and NSP-Wisconsin deny these allegations
and will vigorously defend against these lawsuits, including
seeking dismissal and summary judgment.
The initial gas trading lawsuit, a purported class action
brought by wholesale natural gas purchasers, was filed in
November 2003 with the U.S. District Court in the Eastern
District of California. e prime is one of several defendants
named in the complaint. This case is captioned, "Texas-Ohio
Energy vs. CenterPoint Energy."
The other eleven cases arising out of the same or similar set of
facts are captioned:
1. "Fairhaven Power Company vs. EnCana Corporation et
al;"
2. "Ableman Art Glass vs. EnCana Corporation et al;"
3. "Utility Savings and Refund Services LLP vs. Reliant
Energy Services Inc. et al;"
4. "Sinclair Oil Corporation vs. e prime and Xcel Energy
Inc.;"
5. "Ever-Bloom Inc. vs. Xcel Energy Inc. and e prime et
al;"
6. "Learjet, Inc. vs. e prime and Xcel Energy Inc et al;"
7. "J.P. Morgan Trust Company vs. e prime and Xcel Energy
Inc. et al;"
8. "Breckenridge Brewery vs. e prime and Xcel Energy Inc.
et al;"
9. "Missouri Public Service Commission vs. e prime, inc.
and Xcel Energy, Inc. et al;"
10. "Arandell vs. e prime, Xcel Energy, NSP-Wisconsin et
al;" and
11. "Hartford Regional Medical Center vs. e prime, Xcel
Energy et al."
Many of these cases involve multiple defendants and have been or
are in the process of being transferred to Judge Phillip Pro of
the U.S. District Court for the District of Nevada, who is the
judge assigned to the western area wholesale natural gas
antitrust litigation.
An exception is the Missouri Public Service Commission case,
which was remanded to Missouri state court in November 2007.
In April 2005, Judge Pro granted defendants' motion to dismiss
based upon the filed rate doctrine in "Texas-Ohio Energy."
Based upon this same legal doctrine, Judge Pro subsequently
granted defendants' motion to dismiss in "Fairhaven Power
Company," "Ableman Art Glass," and "Utility Savings and Refund
Services."
Plaintiffs subsequently appealed these dismissals to the Ninth
Circuit Court of Appeals.
In September 2007, the Ninth Circuit Court of Appeals reversed
the dismissal and remanded the lawsuits to Judge Pro for
consideration of whether any of plaintiffs' claims are based
upon retail rates not directly barred by the filed rate
doctrine.
All of the gas trading lawsuits are in the early procedural
stages of litigation.
No trial dates have been set for any of these lawsuits, however,
defendants' motions to dismiss are pending in the Missouri
Public Service Commission matter, and defendants' summary
judgment motions are pending in the "Arandell," "Breckenridge,"
Learjet, and "J.P. Morgan matters."
New Securities Fraud Cases
CENTERLINE HOLDING: Lead Plaintiff Deadline Set March 18
--------------------------------------------------------
Shareholders of Centerline Holding Company who purchased common
stocks of the Company between March 12, 2007, and
December 28, 2007, have only until March 18, 2008, to move for
appointment as lead plaintiff in a securities class action
lawsuit currently pending in the United States District Court
for the Southern District of New York.
In January, the law firm of Berger & Montague, P.C. filed the
class action alleging that the defendants issued a series of
materially false and misleading statements about Centerline's
business model and financial condition, including statements
concerning its portfolio of tax-exempt first mortgage bonds,
which generated the majority of the Company's revenues and
supported the Company's $1.68 per share annual dividend (Class
Action Reporter, Jan. 22, 2008).
The defendants' statements concealed from the investing public
that defendants were in the midst of structuring a sale of the
Company's mortgage revenue bond portfolio to a third party.
On Dec. 28, 2007, Centerline shocked the financial markets with
a press release announcing that the Company had sold its
"$2.8 billion tax-exempt affordable housing bond portfolio" to a
third party and, in the process, transformed the Company's
business model to a pure asset management firm. As a result of
this transaction, the Company disclosed that it would be
slashing its annual dividend from $1.68 per share to only $0.60
per share. Even more shocking was the revelation that
Defendants had entered into a related party transaction with a
company owned by certain of the Defendants called The Related
Companies, L.P. (TRCLP), whereby TRCLP agreed to provide
Centerline $131 million in financing, in exchange for 12.2
million shares of newly-issued convertible preferred stock that
will pay Company insiders an 11% dividend. In reaction to this
news, the price of Centerline stock plummeted from $10.27 per
share on December 27, 2007, to close at $7.70 per share on
December 28, 2007, representing a 25% single-day decline, on
unusually heavy trading volume of 4,152,688 shares.
For more information, contact:
Sherrie R. Savett, Esq. (ssavett@bm.net)
Barbara A. Podell, Esq. (bpodell@bm.net)
Kimberly A. Walker, Investor Relations Manager
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: 1-888-891-2289 or 215-875-3000
Web site: http://www.bergermontague.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
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Janice Mendoza, Freya Natasha Dy, and
Peter Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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re-mailing and photocopying) is strictly prohibited without
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Information contained herein is obtained from sources believed
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The CAR subscription rate is $575 for six months delivered via
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are $25 each. For subscription information, contact Christopher
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