/raid1/www/Hosts/bankrupt/CAR_Public/080430.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 30, 2008, Vol. 10, No. 85
Headlines
ACCREDITED HOME: Seeks Dismissal of Suit Over Lone Star Merger
ACCREDITED HOME: Still Faces WARN Act Violations Suit in Calif.
ACCREDITED HOME: Stipulates Transfer of "Hayes" Matter to Texas
AIR CARRIERS: ESC Join 2-Year-Old Price-Fixing Lawsuit
ARIZONA: Filing in ELL Suit Informs of $40.6MM Appropriation
AUSTRALIA: Class Action vs. Gov't Agencies Over Horse Flu Likely
BROADCOM CORP: To Settle SEC Stock Options Fraud Suit for $12MM
CANADA: No Appeal for Court Ruling on Students' $200-Mln. Suit
CARMAX INC: Still Faces Md. Suit Over Vehicle's Rental History
CERADYNE: July 8 is Overtime Suit Certification Motion Deadline
COCA-COLA: No Appeal Made on Dismissal of Ga. Securities Lawsuit
COCA-COLA: Georgia Court Dismisses ERISA Suit with Prejudice
DALMATIAN PRESS: Board Book Sets Recalled Posing Choking Hazard
ECHOSTAR COMMS: Colorado Retailers' Suit Granted Certification
FORCE PROTECTION: May 9 is Lead Plaintiff Application Deadline
HALLIBURTON CO: July 2009 Trial Set for Texas Securities Suit
HENRY GORDY: Recalls Magnetic Dart Boards Posing Ingestion Risks
HORIZON LINES: Faces Antitrust Lawsuits in Florida & Puerto Rico
MERCK & CO: Harwood Feffer Files ERISA Violations Suit in N.J.
NOM SHIM: Noodle-Maker Faces Wage and Hour Lawsuit in California
PETS OF BEL AIR: High-End Pet Shop Sued for False Advertising
PUTNAM INVESTMENT: Attorney Seeks Punitives in Mutual Funds Suit
SILICON IMAGE: May 16 Brief Deadline Set in Securities Lawsuit
TARO PHARMACEUTICAL: Settles Consolidated Securities Lawsuit
TERAYON COMMS: "Mongeli" Securities Suit Settled for $2.73 Mln.
UNITED FIRE: Faces Hurricane Katrina-Related Lawsuits in La.
WEYERHAEUSER CO: Appeals Jury Decision in Alder Antitrust Suit
XEROX CORP: Discovery Continues in Conn. Securities Fraud Suit
XEROX CORP: Discovery Still Ongoing in Conn. ERISA Litigation
XEROX CORP: Seeks Supreme Court Review of Opinion in "Digwamaje"
XEROX CORP: Oct. 7 Hearing Set in "Carlson" Securities Suit Deal
XEROX: July 11 Hearing Set for N.Y. Civil Rights Suit Settlement
* Bob Klein to Speak at Law Seminars International Conference
New Securities Fraud Cases
AGRIA CORP: Federman & Sherwood Files Securities Suit in N.Y.
HARMONY GOLD: Holzer Commences N.Y. Securities Fraud Lawsuit
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
*********
ACCREDITED HOME: Seeks Dismissal of Suit Over Lone Star Merger
--------------------------------------------------------------
Accredited Home Lenders Holding Co. is seeking the dismissal of
a purported class action suit filed with the U.S. District Court
for the Central District of California over a recent merger with
an affiliate of Lone Star Fund V (U.S.), L.P.
In October 2007, as a result of the merger with Lone Star, AHLHC
succeeded to the position of LSF5 Accredited Merger Co., Inc.,
as a defendant in the class action, "McNeil, et al. v. Lone Star
Fund V (U.S.), L.P., et al.," which filed with the U.S. District
Court for the Central District of California.
The complaint alleges that the failure of defendants to
consummate the purchase of AHLHC at the original price of $15.10
per share constitutes a breach of contract as to each of the
defendants and a breach of guaranty by defendant Lone Star Fund.
The plaintiffs seek to recover, on behalf of themselves and
similarly situated individuals, damages, attorneys' fees, and
any other relief the court may grant.
AHLHC and the other defendants have filed a motion to dismiss,
the hearing on which is scheduled for March 17, 2008, according
to Citigroup Mortgage Loan Trust 2007-AHL1's March 28, 2008 Form
10-K Filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 31, 2007.
The suit is "Yass McNeil et al v. Lone Star Fund V (U.S.), L.P.
et al., Case No. 8:07-cv-01191-CJC-AN," filed with the U.S.
District Court for the Central District of California, Judge
Cormac J. Carney, presiding.
Representing the plaintiffs are:
Deborah A. Klar, Esq. (dklar@linerlaw.com)
Liner Yankelevitz Sunshine and Regenstreif
1100 Glendon Ave, 14th Floor
Los Angeles, CA 90024-3503
Phone: 310-500-3500
ACCREDITED HOME: Still Faces WARN Act Violations Suit in Calif.
---------------------------------------------------------------
Accredited Home Lenders Holding Co. and Accredited Home Lenders,
Inc. continue to face a purported class action filed with the
Superior Court of the State of California, County of Los
Angeles, alleging violations of the Worker Adjustment and
Retraining Notification Act.
In October 2007, AHLHC and AHL were named in a class action
complaint captioned, "Seigel v. Accredited Home Lenders, Inc. et
al.," brought with the Superior Court of the State of
California, County of Los Angeles.
The complaint alleges that AHLHC and AHL violated the WARN Act
by failing to provide 60 days' notice to plaintiffs who were
terminated through no fault of their own as part of or as the
reasonable consequence of a mass layoff and plant closing
effectuated by AHL on or about Aug. 22, 2007.
The plaintiffs seek to recover, on behalf of themselves and
other similarly situated former employees, the alleged wages for
the work days in the 60 calendar days prior to their respective
terminations along with benefits, interest, attorneys' fees and
costs of suit.
A motion to certify a class has not been filed, according to
Citigroup Mortgage Loan Trust 2007-AHL1's March 28, 2008 Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Dec. 31, 2007.
Accredited Home Lenders Holding Co. -- http://www.accredhome.com
-- is a mortgage company operating throughout the U.S. and in
Canada. The Company originates, finances, securitizes,
services, and sells non-prime mortgage loans secured by
residential real estate.
ACCREDITED HOME: Stipulates Transfer of "Hayes" Matter to Texas
---------------------------------------------------------------
Accredited Home Lenders, Inc., stipulated for the transfer of
the purported class action suit, entitled "Hayes v. Accredited
Home Lenders Holding, Co. and Accredited Home Lenders, Inc.,"
which was filed with the U.S. District Court for the Southern
District of California to the U.S. District Court for the
Western District of Texas, according to Citigroup Mortgage Loan
Trust 2007-AHL1's March 28, 2008 Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
Dec. 31, 2007.
In September 2007, AHL was named in the class action complaint,
which is alleging violations of the Worker Adjustment and
Retraining Notification Act.
The complaint alleges that AHL violated the WARN Act by failing
to provide 60 days' notice to plaintiffs who were terminated
through no fault of their own as part of or as the reasonable
consequence of a mass layoff and plant closing effectuated by
AHL on Aug. 22, 2007.
The plaintiffs seek to recover, on behalf of themselves and
other similarly situated former employees, the alleged wages for
the work days in the 60 calendar days prior to their respective
terminations along with benefits, interest, attorneys' fees and
costs of suit.
AHL has stipulated to the transfer of this matter to the U.S.
District Court for the Western District of Texas to be
consolidated with "Viera et al. v. Accredited Home Lenders
Holding, Inc.," and the certified class to which AHL stipulated
in "Viera" will be increased to include the members of the Hayes
class.
The suit is "Hayes v. Accredited Home Lenders Holding Co. et
al., Case No. 3:07-cv-01799-LAB-BLM," filed with the U.S.
District Court for the Southern District of California, Judge
Larry Alan Burns, presiding.
Representing the plaintiffs is:
Peter Alan Davidson, Esq. (pdavidson@mdfslaw.com)
Moldo Davidson Fraioli Seror & Sestanovich
2029 Century Park East, 21st Floor
Los Angeles, CA 90067
Phone: (310) 551-3100
Fax: (310) 551-0238
AIR CARRIERS: ESC Join 2-Year-Old Price-Fixing Lawsuit
------------------------------------------------------
The European Shippers' Council has joined the two-year-old U.S.
litigation class action by airfreight customers against air
carriers accused of engaging in a cargo price-fixing scheme,
impactpub.com reports.
The complaint alleges that airlines conspired to fix prices on
costs associated with airfreight worldwide.
According to impactpub.com, the ESC said it wants to help
European shippers with claims.
"The effect of the surcharges illegally agreed and set by some
airlines has been to artificially inflate cargo shipment prices
to the benefit of those cartel members and to the detriment of
the customer which is in clear violation of the law," ESC
secretary general Nicolette van der Jagt said in a statement.
The alleged cartel member carriers charged their customers'
surcharges calculated in nearly identical ways, thus eliminating
competition between them.
ARIZONA: Filing in ELL Suit Informs of $40.6MM Appropriation
------------------------------------------------------------
Lawyers for plaintiffs in a class action suit over the adequacy
of Arizona's programs for students who are learning English, as
well as the state, the Board of Education, Republican
legislative leaders and Superintendent of Public Instruction Tom
Horne have all signed a filing submitted last week to a federal
judge, the Associated Press reports.
According to AP, the filing tells about a recent state
appropriation resolving the issue of large daily fines that were
to be imposed by the judge if the Legislature did not act by a
court deadline.
However, the filing adds that there is no agreement on whether
the $40.6 million appropriation settles all issues in the case.
The lawyer for the plaintiffs says he is preparing to file a
challenge on that very question.
Case Background
The suit is styled, "Flores, et al. v. Arizona, State of, et
al., Case No. 4:92-cv-00596-RCC," filed with the U.S. District
Court for the District of Arizona, under Judge Raner C. Collins.
As recounted by the Class Action Reporter on March 4, 2008,
the state was ordered to improve its offering to students
learning English after Judge Collin's predecessor ruled in 2000
that the state's programs for approximately 150,000 students
were inadequately funded.
The deficiency was declared a violation of a federal law that
guarantees equal opportunities in education. The state was
fined $500,000 in January 2006 for missing a deadline to draft
ways to improve the program. The fine was increased to
$1 million, resulting to $21 million in total fines. The
fines were stopped when the latest version of a Republican bill
seeking to revamp the English learning programs was passed into
law in March 2006.
In April 2006, Judge Collins ruled that the law still does not
adequately fund English-learning programs, fails to spell out
the costs of providing those programs, and does not explain the
basis for funding that it does provide.
The 9th Circuit panel heard arguments in the case in San
Francisco on July 25, 2006. In August 2006, it vacated orders
by Judge Collins, blocked the distribution of the fines to
public schools, and allowed the state to return the money to the
general fund.
The circuit court ordered Judge Collins to review whether the
state has made improvements to its programs in light of changes
in education funding and related circumstances since the
original 2000 ruling.
The August 2006 ruling of the appellate court did not rule
directly on the latest law regarding the program.
Judge Collins finished on Jan. 25, 2007, a hearing to determine
whether the state has already improved the program. In March
2007, he issued a ruling stating that the system is still
deficient. He ordered lawmakers to resolve the issue by the end
of their current session.
Meanwhile, the Legislature adjourned in 2007 without any
discussion of revamping English language learning to comply with
Judge Collins' judgment. Instead, Republican lawmakers and the
state schools chief asked the 9th Circuit to put Judge Collins'
ruling on hold.
The appeals court rejected that request on June 25, 2007, saying
Judge Collins has not yet found the Legislature in contempt for
ignoring his earlier ruling to boost the programs.
Judge Collins had subsequently set a March 4, 2008 deadline for
lawmakers to increase funding for instruction of students
learning English. The judge ruled in October 2007 that the 2006
law revamping English Language Learning programs to use new
instruction models does not do enough to satisfy federal
mandates for equal opportunities in education. He also ruled
that several provisions violate federal laws.
Judge Collins has further threatened to impose new, yet
unspecified sanctions if the Legislature does not meet the
deadline he set in the 16-year-old class-action case challenging
the adequacy of Arizona's ELL programs.
Against this backdrop, the legislative leaders had asked Judge
Collins to extend for six weeks -- until April 18 -- the looming
deadline.
Representing the plaintiffs is:
Timothy Michael Hogan, Esq. (thogan@aclpi.org)
Arizona Center for Law in the Public Interest
202 E. McDowell Rd., Ste. 153
Phoenix, AZ 85004
Phone: 602-258-8850
Fax: 602-258-8757
Representing the defendants are:
Lynne Christensen Adams, Esq. (ladams@lrlaw.com)
Jose A. Cardenas, Esq. (jcardenas@lrlaw.com)
Lewis & Roca, LLP
40 N. Central Ave.
Phoenix, AZ 85004-4429
Phone: 602-262-5372
602-262-5790
Fax: 602-734-4015
602-734-3852
AUSTRALIA: Class Action vs. Gov't Agencies Over Horse Flu Likely
----------------------------------------------------------------
The final report into how horse flu entered Australia was handed
to Federal Agriculture Minister Tony Burke on April 24, 2008,
according to ABC Online.
However, ABC Online relates, even before the report is tabled in
parliament, a class action against government agencies looks
likely.
ABC says that after six months and 80,000 documents, the horse
flu inquiry has ended with Commissioner Ian Callinan delivering
his single volume on time to the government.
Legal proceedings are far from over, though.
Partner with lawyers Atwood Marshall, Jeff Garrett, who
represented livestock transporters and farriers in the inquiry,
told ABC that he is ready to file a class action suit on behalf
of 350 clients who suffered loss after the horse flu outbreak.
"We've been working very hard to assemble the various components
of their claims, so that we are ready to proceed as soon as the
findings are handed down by the inquiry," Mr. Garrett expressed
to ABC.
The ABC report points out that interim recommendations from the
Commissioner have already put the Commonwealth on notice that
its entire quarantine system is facing a major shake-up.
It is not known if, or when, Minister Burke will make public the
inquiry's final report, ABC writes.
BROADCOM CORP: To Settle SEC Stock Options Fraud Suit for $12MM
---------------------------------------------------------------
Broadcom Corp. has agreed to pay $12 million to settle a
Securities and Exchange Commission lawsuit alleging that the
Irvine chip-maker's top officers falsified reported income by
backdating stock options, Kim Christensen writes for Los Angeles
Times.
"The backdating scheme at Broadcom went on for five years,
involved dozens of option grants, and resulted in the largest
accounting restatement to date arising from stock option
backdating," Linda Chatman Thomsen, Director of the SEC's
enforcement division, had said in a statement.
As a result of the fraud, Broadcom restated its financial
results in January 2007 and reported more than $2 billion in
additional compensation expenses, SEC said.
"The scope and magnitude of the fraud warrants the significant
penalty imposed on the company," Thomsen said.
CANADA: No Appeal for Court Ruling on Students' $200-Mln. Suit
--------------------------------------------------------------
The two former students who filed a $200-million class action
lawsuit against the Ontario's community colleges in June 2007
officially indicated their intention not to appeal the recent
dismissal.
The lawsuit against all 24 public colleges in Ontario was filed
by two former college students in June 2007. The legal action
was initiated as a result of the failure of successive Training,
Colleges and Universities Ministers to enforce their own
'Binding Policy Directive' that prohibits tuition-related
ancillary fees.
In March, the Honorable Madam Justice Joan L. Lax of the Ontario
Superior Court of Justice ruled against the consideration of the
$200-million class action lawsuit to stop prohibited college
ancillary fees (Class Action Reporter, April 1, 2008).
Justice Lax's ruling found that the enforcement of the
Minister's 'Binding Policy Directive' on ancillary fees is the
responsibility of the government, not the Court.
The representative plaintiffs have an automatic right to appeal
the Ontario court's ruling and will make a decision on how to
proceed after consulting with their legal counsel.
However, following the announcement of the dismissal last month,
the Honorable John Milloy, Minister of Training, College and
Universities, refused to address the prohibited ancillary fees
problem until after the 30-day appeal period which has now
expired.
CARMAX INC: Still Faces Md. Suit Over Vehicle's Rental History
--------------------------------------------------------------
CarMax, Inc., continues to face a purported class action suit
with the Baltimore County Circuit Court, Maryland, alleging that
the company has not properly disclosed its vehicles' prior
rental history.
Regina Hankins filed the suit on June 12, 2007. The plaintiff
seeks compensatory damages, punitive damages, injunctive relief,
and the recovery of attorneys' fees.
The company reported no development in the matter in its
April 25, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended Feb. 29,
2008.
CarMax, Inc. -- http://www.carmax.com/-- is a holding company
and its operations are conducted through its subsidiaries. The
Company is a retailer of used cars.
CERADYNE: July 8 is Overtime Suit Certification Motion Deadline
---------------------------------------------------------------
The California Superior Court for Orange County set a July 8,
2008 deadline for plaintiffs to file a motion seeking class-
action status for a lawsuit against Ceradyne, Inc., in which it
is asserted that the representative plaintiff, a former Ceradyne
employee, and the putative class members, were not paid overtime
at an appropriate overtime rate.
The suit, "Daniel Vargas, Jr. v. Ceradyne, Inc., Orange County
Superior Court, Civil Action No. 07CC01232," was filed on
March 23, 2007.
The suit alleges that the purportedly affected employees should
have had their regular rate of pay for purposes of calculating
overtime, adjusted to reflect the payment of a bonus to them for
the four years preceding the filing of the complaint.
The complaint further alleges that a waiting time penalty should
be assessed for the failure to timely pay the correct overtime
payment.
Ceradyne has filed an answer denying the material allegations of
the complaint.
A third-party administrator completed the mailing and processing
of the "opt-out" procedure and has provided the employee contact
information for employees that did not opt-out.
The court has ordered that the motion for class certification
must be filed by July 8, 2008, according to the company's
April 25, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for quarter ended March 31, 2008.
Ceradyne, Inc. -- http://www.ceradyne.com/-– develops,
manufactures and markets advanced technical ceramic products,
ceramic powders and components for defense, industrial,
automotive/diesel and commercial applications. The Company
operates through six segments: Advanced Ceramic Operations, ESK
Ceramics, Semicon Associates, Thermo Materials, Ceradyne Canada
and Ceradyne Boron Products. The Company's products include
lightweight ceramic armor for soldiers and other military
applications; ceramic industrial components for erosion and
corrosion resistant applications; ceramic powders, including
boron carbide, boron nitride, titanium diboride, calcium
hexaboride, and zirconium diboride, which are used in
manufacture of armor and a range of industrial products;
BORONEIGE boron nitride powder for cosmetic products, and
evaporation boats for metallization of materials for food
packaging and other products. Its products are sold into four
principal markets: defense, industrial, automotive/diesel and
commercial.
COCA-COLA: No Appeal Made on Dismissal of Ga. Securities Lawsuit
----------------------------------------------------------------
The plaintiffs in a purported securities fraud class action suit
filed against Coca-Cola Enterprises, Inc., and several current
and former officers and directors did not appeal an order by the
U.S. District Court for the Northern District of Georgia
dismissing the case with prejudice.
The suit, "In re Coca-Cola Enterprises Inc. Securities
Litigation, Civil Action File No. 1:06-CV-0275-TWT," was
originally filed as "Argento Trading Co., et al., vs. Coca-Cola
Enterprises Inc. et al." on Feb. 7, 2006.
The suit alleges that the company engaged in "channel stuffing"
with customers. In addition, the suit raises certain insider
trading claims.
On Feb. 7, 2007, the court dismissed the case, but gave the
plaintiffs the right to file an amended complaint. The
plaintiffs filed an amended complaint on March 12, 2007.
On April 16, 2007, the company filed a renewed motion to dismiss
the lawsuit.
On Oct. 4, 2007, the court dismissed the case as requested by
the company, this time with prejudice.
The plaintiffs did not appeal the ruling, thus, the case is now
concluded, according to the company's April 25, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 28, 2008.
The suit is "Argento Trading Co. L.P. v. Coca-Cola Enterprises,
Inc., et al., Case No. 1:06-cv-00275-TWT," filed with the U.S.
District Court for the Northern District of Georgia, Judge
Thomas W. Thrash, Jr. presiding.
Representing the plaintiffs are:
Lauren S. Antonino, Esq. (lantonino@motleyrice.com)
James M. Evangelista, Esq.
(jevangelista@motleyrice.com)
Stuart Jay Guber, Esq. (sguber@motleyrice.com)
Motley Rice, LLC
Phone: 404-664-9168
404-881-9199
COCA-COLA: Georgia Court Dismisses ERISA Suit with Prejudice
------------------------------------------------------------
The U.S. District Court for the Northern District of Georgia has
dismissed with prejudice a purported class action against Coca-
Cola Enterprises, Inc., that alleges violation of Employees'
Retirement Income Security Act, according to the company's
April 25, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 28, 2008.
On Feb. 7, 2006, a purported class action was filed against the
company and several of its current and former officers and
directors. The lawsuit alleged that the company engaged in
"channel stuffing" with customers and raised certain insider
trading claims.
More Lawsuits virtually identical to the first suit, bringing
claims under the ERISA, were also filed with Georgia courts.
The various suits have been consolidated in each court by suit
type.
Amended complaints containing allegations substantially similar
to the original suit have now been filed in each suit.
The company possess strong defenses to the claims raised in
these lawsuits and have asked the courts to dismiss each of the
suits.
In an order dated Feb. 7, 2007, the court granted the company's
motion to dismiss the consolidated securities class action in
Georgia.
The court's order was without prejudice, and the plaintiffs have
re-filed their suit and the company has again asked that the
case be dismissed.
On June 19, 2007, the same trial court granted the company's
motion to dismiss the ERISA class action.
The plaintiffs subsequently filed an amended ERISA class action
complaint and the company again moved to dismiss that suit.
On March 21, 2008, the court again dismissed the ERISA suit,
this time with prejudice. It is not known whether the
plaintiffs will appeal the ruling.
Coca-Cola Enterprises Inc. -- http://www.cokecce.com-- markets,
sells, manufactures, and distributes non-alcoholic beverages.
It serves a market of approximately 412 million consumers
throughout North America, Great Britain, continental France,
Belgium, the Netherlands, Luxembourg, and Monaco.
DALMATIAN PRESS: Board Book Sets Recalled Posing Choking Hazard
---------------------------------------------------------------
Dalmatian Press LLC, of Franklin, Tennessee, in cooperation with
U.S. Consumer Product Safety Commission, is recalling about
17,000 Little Builder Children's Board Book Sets with Toys.
The company said the cylinder on the toy concrete mixer and the
tailgate on the toy dump truck can detach, posing a choking
hazard to young children. No injuries have been reported.
This recall involves Little Builder Children's Board Book sets
with ISBN 1-49373-215-9. The sets include four concept board
books (colors, tools, 123, shapes) and two toy trucks (dump
truck and concrete mixer truck).
These recalled board book sets were manufactured in China and
were being sold at Wal-Mart, Levy Home Entertainment, Lion Sales
of NW Brunswick, Farris Wholesale Outlet, Crane Book Sales,
Ingram Book Co., BPDI Corp., Books A Million and Christmas Tree
Shop stores nationwide and on the Internet at Amazon.com and
Barnes&Noble.com from August 2007 through February 2008 for
about $9.
Pictures of the recalled board book sets are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08245a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08245b.jpg
Consumers are advised to immediately take the recalled toys from
young children and return the entire book set to the retailer
where purchased for a refund or exchange.
For additional information, contact Dalmatian Press toll-free at
(866) 418-2572 between 8:00 a.m. and 4:00 p.m. CT Monday through
Friday or visit the firm's Web site at:
http://www.Dalmatianpress.com/
ECHOSTAR COMMS: Colorado Retailers' Suit Granted Certification
--------------------------------------------------------------
The Arapahoe County District Court, Colorado, granted class
certification to a lawsuit filed eight years ago against
EchoStar Communications by thousands of its retail distributors,
The Denver Post reports.
The report recounts that in 2000, lawsuits were filed by
retailers in Arapahoe County and with the U.S. District Court
for the District of Colorado, attempting to certify nationwide
classes on behalf of certain of the company's satellite hardware
retailers.
The plaintiffs are requesting the courts to declare certain
provisions of, and changes to, alleged agreements between the
company and the retailers invalid and unenforceable, and to
award damages for lost incentives and payments, charge backs,
and other compensation.
The company is vigorously defending against the suits and has
asserted a variety of counterclaims. The federal court action
has been stayed during the pendency of the state court action.
EchoStar Communications later filed a motion for summary
judgment on all counts and against all plaintiffs. Plaintiffs
filed a motion for additional time to conduct discovery to
enable them to respond to the company's motion.
The court granted limited discovery, which ended during 2004.
The plaintiffs claimed that the company did not provide adequate
disclosure during the discovery process. The court agreed, and
recently denied the company's motion for summary judgment as a
result.
Recently, Judge John Wheeler issued a strongly worded ruling in
which he blamed EchoStar for demonstrating "a willingness and
proclivity for drawing out legal proceedings as long as humanly
possible and burying their opponents in paperwork and filings."
Trial has been set for August 2008 (Class Action Reporter,
Dec. 26, 2007).
EchoStar Communications Corp. -- http://www.echostar.com/-- is
primarily a holding company. Through its subsidiaries, the
Company operates two interrelated business units: the DISH
Network and EchoStar Technologies Corp. The DISH Network
provides a direct broadcast satellite subscription television
service in the U.S. DISH Network services include hundreds of
video, audio and data channels, interactive television channels,
digital video recording, high-definition television,
international programming, professional installation and around-
the-clock customer service. ETC designs and develops DBS set-
top boxes, antennae and other digital equipment for the DISH
Network (collectively referred to as EchoStar receiver systems).
ETC also designs, develops and distributes similar equipment for
international satellite service providers.
FORCE PROTECTION: May 9 is Lead Plaintiff Application Deadline
--------------------------------------------------------------
Brower Piven, A Professional Corporation, said that the deadline
for investors to apply for lead plaintiff appointment is on
May 9, 2008.
This is in connection with the securities class action
lawsuit filed on behalf of all persons who purchased or
otherwise acquired the common stock of Force Protection, Inc.
(Nasdaq: FRPT) between August 14, 2006, and March 17, 2008,
inclusive.
The complaint alleges that during the Class Period the Company,
and several of its current and former executives, violated
federal securities laws by issuing various materially false and
misleading statements that had the effect of artificially
inflating the market price of the Company's securities and
causing Class members to overpay for the securities.
For more information, contact:
Brower Piven
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410-986-0036
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com
HALLIBURTON CO: July 2009 Trial Set for Texas Securities Suit
-------------------------------------------------------------
A July 2009 trial is scheduled for a securities fraud lawsuit
pending with the U.S. District Court for the Northern District
of Texas against Halliburton Co.
The class action was filed in June 2002 against the company with
the federal court on behalf of purchasers of its common stock
during the period starting approximately May 1998 until
approximately May 2002. The suit alleges violations of the
federal securities laws in connection with the accounting change
and disclosures involved in the U.S. Securities and Exchange
Commission investigation.
In addition, the plaintiffs allege that the company overstated
its revenue from unapproved claims by recognizing amounts not
reasonably estimable or probable of collection. In the weeks
that followed, approximately 20 similar class actions were filed
against the company.
Several of those lawsuits also named as defendants Arthur
Andersen LLP -- the company's independent accountants for the
period covered by the lawsuits -- and several of the company's
present or former officers and directors: David J. Lesar,
Douglas L. Foshee, Gary V. Morris, and Robert Charles Muchmore,
Jr.
The class actions were later consolidated, and the amended
consolidated class action complaint, "Richard Moore, et al. v.
Halliburton Co., et al.," was filed and served upon the company
in April 2003.
As a result of a substitution of lead plaintiffs, the case is
now styled, "Archdiocese of Milwaukee Supporting Fund (AMSF) v.
Halliburton Company, et al."
In June 2003, the lead plaintiffs filed a motion for leave to
file a second amended consolidated complaint, which was granted
by the court.
In addition to restating the original accounting and disclosure
claims, the second amended consolidated complaint included
claims arising out of Halliburton's 1998 acquisition of Dresser
Industries, Inc., including that the company failed to timely
disclose the resulting asbestos liability exposure.
Settlement Attempts
A memorandum of understanding contemplated settlement of the
Dresser claims as well as the original claims.
In June 2004, the court entered an order preliminarily approving
the settlement. Following the transfer of the case to another
district judge, the court held that evidence of the settlement's
fairness was inadequate, denied the motion for final approval of
the settlement, and ordered the parties to mediate. The
mediation was unsuccessful.
Motion to Dismiss
In April 2005, the court appointed new co-lead counsel and named
AMSF the new lead plaintiff, directing that it file a third
consolidated amended complaint and that the company file a
motion to dismiss. The court held oral arguments on that
motion in August 2005, at which time the court took the motion
under advisement.
In March 2006, the court entered an order in which it granted
the motion to dismiss with respect to claims arising prior to
June 1999 and granted the motion with respect to certain other
claims while permitting AMSF to replead some of those claims to
correct deficiencies in its earlier complaint.
In April 2006, AMSF filed its fourth amended consolidated
complaint. The company filed a motion to dismiss those portions
of the complaint that had been replead.
A hearing was held on that motion in July 2006, and in March
2007, the court ordered dismissal of the claims against all
individual defendants other than the company's CEO.
The court ordered that the case proceed against the company's
CEO and Halliburton.
In response to a motion by the lead plaintiff, on Feb. 26, 2007,
the court ordered the removal and replacement of their co-lead
counsel.
In June 2007, upon becoming aware of a U.S. Supreme Court
opinion issued in that month, the court allowed further briefing
on the motion to dismiss filed on behalf of the company's CEO.
The court again denied the motion to dismiss in March 2008.
In September 2007, AMSF filed a motion for class certification,
and our response was filed in November 2007. A hearing was held
in March 2008, and the company awaits the court's ruling.
The case is set for trial in July 2009, according to
Halliburton's April 25, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for quarter ended March 31,
2008.
The suit is "The Archdiocese of Milwaukee Supporting Fund, Inc.,
et al. v. Halliburton Co., et al., Case No. 3:02-cv-01152,"
filed with the U.S. District Court for the Northern District of
Texas, Judge Barbara M. G. Lynn presiding.
Representing the plaintiffs are:
Richard S. Schiffrin, Esq. (rschiffrin@sbtklaw.com)
Schiffrin & Barroway
280 King of Prussia Rd.
Radnor, PA 19087
Phone: (610) 667-7706
Fax: (610) 667-7056
Marc R. Stanley, Esq. (mstanley@smi-law.com)
Stanley Mandel & Iola
3100 Monticello Ave., Suite 750
Dallas, TX 75205
Phone: (214) 443-4301
Fax: (214) 443-0358
- and -
Thomas Burt, Esq.
Wolf Haldenstein Adler Freeman & Herz
270 Madison Ave, Ninth Floor
New York, NY 10016
Phone: (212) 545-4600
Representing the company is:
Thomas E. Bilek, Esq. (tbilek@hb-legal.com)
Hoeffner & Bilek
1000 Louisiana St., Suite 1302
Houston, TX 77002
Phone: (713) 227-7720
Fax: (713) 227-9404
HENRY GORDY: Recalls Magnetic Dart Boards Posing Ingestion Risks
----------------------------------------------------------------
Henry Gordy International Inc., of Plainfield, New Jersey, in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 870,000 Fun 'N Games Magnetic Dart Boards.
The company said small magnets at the ends of the darts can
detach. Magnets found by young children can be swallowed or
aspirated. If more than one magnet is swallowed, the magnets
can attract each other and cause intestinal perforations or
blockages, which can be fatal. No injuries have been reported.
This recall involves magnetic dartboards with a black, green,
blue, and white checkered design, and a red bulls eye. The
magnetic dartboards measure about 5 inches wide and were sold
with two 2-inch long magnetic darts. The darts magnetically
attract to the dart board.
These recalled magnetic dartboards were manufactured in China
and were being sold exclusively at Family Dollar stores
nationwide from September 2002 through March 2008 for about $1.
Pictures of the recalled magnetic dartboards are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08244a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08244b.jpg
Consumers are advised to immediately take the recalled magnetic
boards away from children and return them by first class mail
to: Henry Gordy International Inc., 809A Market Street, Hermann,
MO 65041 for a full refund including tax and shipping costs.
For additional information, contact Henry Gordy International
Inc., at (888) 790-2700 between 8:00 a.m. and 4:00 p.m. CT
Monday through Friday.
HORIZON LINES: Faces Antitrust Lawsuits in Florida & Puerto Rico
----------------------------------------------------------------
Horizon Lines, Inc., as well as other domestic ocean carriers,
including Sea Star Lines, Trailer Bridge and Crowley, face three
putative antitrust class action lawsuits filed in Florida and
Puerto Rico, according to Horizon Lines' April 25, 2008 Form 10-
Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 23, 2008.
The suits were filed between April 22, 2008, and April 24, 2008.
Two of the actions appear to have been filed with the U.S.
District Court for the Southern District of Florida and one
appears to have been filed with the U.S. District Court for the
District of Puerto Rico.
Although the Company has not yet been formally served in
connection with these lawsuits, the Company understands that
these three actions allege violations of the federal antitrust
laws and related claims and seek damages and injunctive relief.
Horizon Lines, Inc. -- http://www.horizon-lines.com-- formerly
known as H-Lines Holding Corp., is a container shipping and
integrated logistics company. The Company's subsidiaries
include Horizon Lines, LLC; Horizon Logistics Holdings, LLC; and
Horizon Lines of Puerto Rico, Inc. With 21 vessels, 16 of which
are fully qualified Jones Act vessels, and approximately 22,000
cargo containers the Company provides shipping and logistics
services in its markets. The Company, through its wholly owned
subsidiary, Horizon Logistics, offers inland transportation
through its own trucking operations on the U.S. west coast and
Alaska, and its integrated logistics services including
relationships with third-party truckers, railroads, and barge
operators in its markets. The Company ships a spectrum of
consumer and industrial items ranging from foodstuffs
(refrigerated and non-refrigerated) to household goods and auto
parts to building materials and various materials used in
manufacturing.
MERCK & CO: Harwood Feffer Files ERISA Violations Suit in N.J.
--------------------------------------------------------------
The law firm of Harwood Feffer LLP filed a class action
complaint against Merck & Co., Inc., and certain of its
officers, directors, and employees, in the United States
District Court for the District of New Jersey.
The action is on behalf of participants in the Merck's Employee
Savings & Security Plans, alleging violations of the Employee
Retirement Income Security Act.
The Complaint asserts ERISA breach of fiduciary duty claims
against Defendants arising from improprieties relating to
Vytorin, Merck's prescription anti-cholesterol drug. It is
alleged, inter alia, that Defendants negligently failed to
disclose material information about the effects of Vytorin
necessary for participants to make informed decisions concerning
their investments in Merck stock in the Plan.
The Complaint alleges that while Merck was publicly touting
Vytorin as a superior cholesterol treatment, it hid clinical
study results negating such claims. When the truth was
revealed, the Plans and Plan participants suffered massive
losses as Merck's stock price and the price of the Fund
decreased substantially.
For more information, contact:
Jennifer K. Hirsh, Esq. (jhirsh@hfesq.com)
Samuel K. Rosen, Esq. (srosen@hfesq.com)
Harwood Feffer LLP
488 Madison Avenue
New York, NY 10022
Phone: (877) 935-7400
NOM SHIM: Noodle-Maker Faces Wage and Hour Lawsuit in California
----------------------------------------------------------------
A class action lawsuit involving hundreds of possible plaintiffs
was filed against Nom Shim Foods, the maker of instant noodle
dishes and packaged snacks, based in Rancho Cucamonga,
California.
Filed with the Superior Court of California in Los Angeles by
Khorrami, Pollard & Abir, LLP, the suit contends that the
defendant failed to pay adequate wages, overtime pay and engaged
in other unlawful business practices toward its workers.
The suit was filed on behalf of lead plaintiff David Hicks, who
like other workers at Nom Shim Foods's warehouse in Rancho
Cucamonga, was required to spend time at the beginning of his
work day and after the completion of the work day, changing in
and out of protective clothing and shoes as well as walking
through the sanitation blowers without being paid for it.
"I worked at Nom Shim, from Jan. '06 to June '07 and when I left
I received a $233 check for one month of the extra 20 minutes a
day I spent at work without pay," said Mr. Hicks. "I should
have been paid for those extra 20 minutes a day from my date of
hire."
"Practices such as this are despicable -- they line the pockets
of companies by cheating their workers," says Shawn Khorrami,
Esq. "This is real money to hourly employees who are living
paycheck to paycheck and have families to support.
"No socially conscious corporation would nickel and dime minimum
or low wage workers like this."
The policy and practice of not paying workers proper
compensation and overtime compensation violates the California
Industrial Welfare Commission Wage Orders, the California Labor
Code and the California Business and Professions code.
For more information, contact:
Shawn Khorrami, Esq.
Law Offices of Khorrami, Pollard & Abir
444 S. Flower St., 33rd Floor
Los Angeles, CA
Phone: 310-308-9423
PETS OF BEL AIR: High-End Pet Shop Sued for False Advertising
-------------------------------------------------------------
Pets of Bel Air, a posh pet shop, is facing a lawsuit alleging
fraud and false advertising, the Associated Press reports.
The lawsuit, filed by Wayne S. Kreger, claims that animals the
store said were from private breeders actually came from puppy
mills and were less than healthy and hardy.
Puppy mills are operations that mass breed dogs for sale, often
keeping them in bare, wire cages. The practice is legal, but
many animal welfare groups consider it cruel.
Mr. Kreger claims he bought a Chihuahua from the shop in August
2007 and it died 12 days later in his wife's arms of a virus in
its digestive system.
Other plaintiffs with similar claims of parasites and pneumonia
have since been added to the lawsuit, and attorneys are seeking
to have it certified as a class-action suit.
The store's Web site says "we would never knowingly buy a dog
from a puppy mill; and we are appalled by the possibility that
this may have happened."
A judge had ruled the store defaulted on the lawsuit, but in a
closed-door meeting with attorneys, the ruling was set aside
after the store's attorney, David A. Shapiro, Esq., filed a
response to the complaint.
The case will now go to trial.
Pets of Bel Air on the net: http://www.petsofbelair.com/
PUTNAM INVESTMENT: Attorney Seeks Punitives in Mutual Funds Suit
----------------------------------------------------------------
Class action attorney Stephen Tillery of St. Louis seeks
punitive damages from Putnam Investment Management while
admitting that the firm did not deceive his clients, St. Clair
Record reports.
"This is not a case about anybody being deceived in any way,
shape or form," Tillery associate Robert King, Esq., told
Circuit Judge Barbara Crowder at a March 17, 2008 hearing.
Judge Crowder took under advisement a motion from Putnam to
certify a question about the case for review at the Fifth
District appellate court in Mount Vernon, the report points out.
According to St. Clair Record, the suit asserts that Putnam
allowed mutual fund shareholders to profit from market timing at
the expense of other shareholders.
Tillery, the report recounts, filed a batch of class action
claims against mutual funds in 2003. Judge Crowder's docket
carries three of these suits, circuit judges Nicholas
Byron and David Hylla each has one, and Associate Judge Ralph
Mendelsohn has two.
In the Putnam case, Judge Crowder ruled in October 2007 that
Tillery did not allege deception, St. Clair Record recalls.
After U.S. District Judge David Herndon rendered a decision in
another case that favored Putnam's position, Putnam asked Judge
Crowder to certify an appeal.
At Judge Crowder's hearing, Peter Simshauser, Esq., of Boston,
argued for Putnam that the federal Securities Litigation Uniform
Standards Act precluded the complaint. "Your honor and Judge
Mendelsohn of this court are the only judges to rule that this
complaint is not precluded," Mr. Simshauser said.
Mr. Simshauser noted that 50 cases are pending in multi-district
litigation against Putnam at federal court in Baltimore, with
damage claims in nine figures. "There is almost a complete
overlap between this case and the federal MDL," he pointed out.
Mr. Simshauser further said that the complaint alleged that
Putnam knew of mispricing and it accused Putnam of willfully,
wantonly and recklessly breaching its duties.
"We all should have the benefit of the appellate court
evaluating whether plaintiffs can have it both ways," Mr.
Simshauser said. "To avoid SLUSA they say that they are
alleging mere negligence, yet to attempt to recover punitive
damages they allege knowing, willful and wanton wrongdoing. . .
. There is no set of facts that the plaintiff can prove that
will avoid preclusion," he said.
Mr. Simshauser added, "There are going to be complex choice of
law issues. Plaintiffs haven't said what law they contend
should apply to their claims. . . . If they contend Illinois law
applies, why should a shareholder in a state other than Illinois
have Illinois law applied to their claim? Our position is, the
case is precluded and if the appellate court agrees then that's
the end of the case."
To this, Mr. King responded, "A motion to stay these proceedings
has never been filed based upon the existence of the MDL
proceedings and that's because the cases aren't the same."
"Everybody agrees on what SLUSA says," Mr. King added. "If you
allege fraud or deceit in any way, shape or form, you are out.
One thing I want to make real clear about this: Recklessness
does not equal fraud. I mean you can drive a car recklessly.
That's not fraud."
Furthermore, Mr. King stated, "Willful and wanton conduct under
the law of the state of Illinois is not fraudulent conduct ipso
facto."
Mr. King then pointed out that nobody was deceived and that
"nobody bought shares in the mutual fund because they were
deceived." He said Putnam negligently or recklessly allowed
market timers to trade. "We were injured by that whether we
knew it was happening or not," he said. "It has nothing to do
with us being deceived."
If Putnam disclosed in prospectuses that they exposed funds to
short swing strategies, Mr. King said, that disclosure would
squelch suits of this kind. "We haven't alleged anything about
their prospectuses," he said. "They are the ones that put their
prospectuses in the record."
Mr. King contended that "You could be injured if you were
holding a share of this mutual fund without having any idea what
the price was on any given day. . . . You don't need to know the
price. You are going to get hurt simply by holding the stock."
"Let's get the discovery. Let's get going," Mr. King
subsequently suggested.
Judge Crowder asked Mr. Simshauser if the plaintiffs could amend
after a Fifth District decision. To this, Mr. Simshauser said
that SLUSA says nothing about fraud or deceit.
"Those words are not in the statute," he said. "It talks about
untrue statements or omissions."
Judge Crowder said that the case would be appealed however it
came out. "If they take it and a year and a half later
plaintiff gets to amend their complaint, then I haven't done
anything other than put it off my docket for a year and a half,"
she said. "If I send a question, I want to send a question that
will really resolve the issue for me."
Judge Crowder asked Mr. Simshauser if it was his position that
plaintiffs could never allege their claim without coming under
SLUSA. Mr. Simshauser replied, "It is difficult for me to
imagine a circumstance in which they can plead their claim
around SLUSA, particularly given the scope of what's being
addressed in the MDL proceeding in Maryland. It is impossible
for me to imagine that they could plead around SLUSA and still
include a claim seeking punitive damages."
Judge Crowder then asked if Mr. Simshauser thinks that if the
plaintiffs "plead for punitive damages, that automatically
brings them under SLUSA?" And Mr. Simshauser answered that it
does.
Judge Crowder said that a certified question about punitive
damages might be different from a question about rewriting a
negligence count.
Judge Crowder eventually assured the arguing attorneys that she
would decide as quickly as she could.
SILICON IMAGE: May 16 Brief Deadline Set in Securities Lawsuit
--------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit gave a May 16,
2008 deadline for the filing of optional reply briefs in an
appeal concerning the dismissal of the fourth consolidated
amended securities fraud complaint in a purported class action
suit against Silicon Image, Inc.
The lawsuit, "Curry v. Silicon Image, Inc., Steve Tirado, and
Robert Gargus," was filed on Jan. 31, 2005, with the U.S.
District Court for the Northern District of California. The
case was filed on behalf of purchasers of the company's common
stock from Oct. 19, 2004, to Jan. 24, 2005.
The suit asserts that the company and certain of its officers
and directors made alleged misstatements of material facts and
violated certain provisions of Sections 20(a) and 10(b) of the
U.S. Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.
On April 27, 2005, the court issued an order appointing a lead
plaintiff and approving the selection of lead counsel. In July
2005, the plaintiffs filed a consolidated amended complaint,
which dropped Robert Gargus, but added Dr. David Lee as
individual defendant.
The consolidated amended complaint also expanded the class
period from June 25, 2004, to April 22, 2005. The defendants
filed a motion to dismiss the consolidated amended complaint in
September 2005.
On Dec. 8, 2005, the plaintiffs filed a second consolidated
amended complaint, which extended the end of the class period
from April 22, 2005, to Oct. 13, 2005, and added additional
factual allegations under the same causes of action against the
company, Mr. Tirado and Dr. Lee. The complaint also added a new
plaintiff, James D. Smallwood.
The defendants, on Feb. 9, 2006, filed a motion to dismiss the
second consolidated amended complaint. This request was granted
by the court on June 21, 2006, with leave to amend.
The plaintiffs subsequently filed a third consolidated amended
complaint, which the defendants again sought to be dismissed.
Subsequently, on Feb. 23, 2007, the court granted the
defendants' motion to dismiss the third amended complaint, still
with leave to amend.
The plaintiffs filed a fourth consolidated amended complaint,
which was again dismissed by the court at the defendants'
behest, without further leave to amend. Final judgment was
entered in favor of the defendants on Sept. 25, 2007.
On Oct. 19, 2007, the plaintiffs filed notice of appeal of the
court's final judgment to the U.S. Court of Appeals for the
Ninth Circuit.
The appellants' opening brief was due on Feb. 28, 2008, and the
company's answer was due April 14, 2008. The appellants may
file an optional reply brief on or before May 16, 2008,
according to the company's April 25, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
The suit is "In Re Silicon Image, Inc. Securities Litigation,
Case No. 3:05-cv-00456-MMC," filed with the U.S. District Court
for the Northern District of California, Judge Judge Maxine M.
Chesney.
Representing the plaintiffs are:
Aaron H. Darsky Esq. (adarsky@schubert-reed.com)
Schubert & Reed, LLP
Three Embarcadero Center, Suite 1650
San Francisco, CA 94111
Phone: 415-788-4220
Fax: 415-788-0161
Merrick Scott Rayle, Esq. (mrayle@lshllp.com)
Lovell Stewart Halebian, LLP
212 Wood Street
Pacific Grove, CA 93950-3227
Phone: 831-333-0309
Fax: 831-333-0325
- and -
Richard A. Speirs, Esq. (rspeirs@zsz.com)
Zwerling, Schachter & Zwerling, LLP
41 Madison Avenue, 32nd Floor
New York, NY 10010
Phone: 212-223-3900
Representing the defendants is:
Emmett C. Stanton, Esq. (estanton@fenwick.com)
Fenwick & West, LLP
Silicon Valley Center, 801 California Street
Mountain View, CA 94041-2008
Phone: 650-988-8500
Fax: 650-938-5200
TARO PHARMACEUTICAL: Settles Consolidated Securities Lawsuit
------------------------------------------------------------
Parties in the purported securities class action captioned
"Zwickel v. Taro Pharmaceutical Industries, Ltd. et al., Case
No. 1:04-cv-05969-RMB," filed with the U.S. District Court for
the Southern District of New York, have reached an agreement in
principle to settle all claims asserted against all defendants.
On Aug. 2, 2004, a purported securities class action complaint
was filed against the company and certain of its current and
former officers and directors in the U.S. District Court for the
Southern District of New York.
The complaint alleges that the defendants made statements during
the period Feb. 20, 2003, through July 29, 2004, in press
releases, the company's 2003 Annual Report and during conference
calls with analysts which were materially false and misleading
and which artificially inflated the price of the company's
ordinary shares.
The complaint alleges claims under Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934. Nine additional
purported securities class action complaints were subsequently
filed in the U.S. District Court for the Southern District of
New York, all containing similar allegations.
The actions have been consolidated and lead plaintiffs and lead
counsel have been appointed. No consolidated amended complaint
has been filed in the case (Class Action Reporter, March 28,
2007).
The settlement is subject to the execution of definitive
documentation, notice to the purported shareholder class and
final approval of the settlement by the court at a hearing to be
scheduled in the near future.
The complaint is "Zwickel v. Taro Pharmaceutical Industries,
Ltd. et al., Case No. 1:04-cv-05969-RMB," filed with the U.S.
District Court for the Southern District of New York, under
Judge Richard M. Berman.
Representing the plaintiffs are:
Eric James Belfi, Esq. (ebelfi@labaton.com)
Labaton Rudoff & Sucharow LLP
100 Park Avenue, 12th Floor
New York, NY 10017
Phone: (212) 907-0790
Fax: (212) 883-7579
Steven G. Schulman, Esq. (sschulman@milbergweiss.com)
Milberg Weiss Bershad & Schulman LLP (NYC)
One Pennsylvania Plaza
New York, NY 10119
Phone: 212-946-9356
Fax: 212-273-4406
Marc L. Ackerman, Esq.
Scott & Scott
11 Bala Avenue
Bala Cynwyd, PA 19004
Phone: (610) 668-1955
- and -
Jules Brody, Esq.
Stull Stull & Brody
6 East 45th Street, 5th Floor
New York, NY 10017
Phone: (212)-687-7230
Fax: (212)-490-2022
e-mail: ssbny@aol.com
TERAYON COMMS: "Mongeli" Securities Suit Settled for $2.73 Mln.
---------------------------------------------------------------
Terayon Communication Systems, Inc., has settled for $2,730,000
a securities suit against it.
The putative class action was filed on June 23, 2006, against
the Company with the U.S. District Court for the Northern
District of California by I.B.L. Investments Ltd. purportedly on
behalf of all persons who purchased the Company's common stock
between Oct. 28, 2004, and March 1, 2006.
Zaki Rakib, Jerry D. Chase, Mark Richman and Edward Lopez were
named as individual defendants. The lawsuit focused on the
company's March 1, 2006 announcement of the restatement of
financial statements for the year ended Dec. 31, 2004, and for
the four quarters of 2004 and the first two quarters of 2005.
On Nov. 8, 2006, Adrian G. Mongeli was appointed lead plaintiff
in the case, replacing I.B.L. Investments Ltd. On Jan. 8, 2007,
Mongeli filed an amended complaint, purportedly on behalf of all
persons who purchased the company's common stock between
June 28, 2001 and March 1, 2006.
The amended complaint added as defendants:
* Ernst & Young,
* Ray Fritz,
* Carol Lustenader,
* Matthew Miller,
* Shlomo Rakib,
* Doug Sabella,
* Christopher Schaepe,
* Mark Slaven,
* Lewis Solomon,
* Howard W. Speaks,
* Arthur T. Taylor, and
* David Woodro.
The amended complaint incorporated the prior allegations and
includes new allegations relating to the restatement of the
Company's consolidated historical financial statements as
reported in the Company's Form 10-K filed on Dec. 29, 2006.
The plaintiffs sought damages, interest, costs and any other
relief deemed proper by the court.
On March 9, 2007, Terayon and the individual defendants filed a
motion to dismiss the amended complaint (Class Action Reporter,
April 26, 2007).
Recently, Terayon has settled the suit.
Deadline to file claims is on July 25, 2008. Deadline to file
for exclusions and objections is on August 28, 2008.
The United States District Court for the Northern District of
California will hold a settlement fairness hearing on
September 18, 2008, at 2:00 p.m., before the Honorable Claudia
Wilken at the United States.
The suit is "Adrian G. Mongeli, et al. v. Terayon Communication
Systems, Inc. et al., Case No. 3:06-cv-03936-MJJ," filed with
the U.S. District Court for the Northern District of California
under Judge Martin J. Jenkins.
The plaintiffs are represented by:
Joseph E. White, III, Esq.
Sasxena White, P.A.
2424 North Federal Highway, Suite 257
Boca Raton, FL 33431
- and -
Lewis S. Kahn, Esq.
Kahn Guthier Swick LLC
650 Poydras St., Suite 2150
New Orleans, LA 70130
The Liaison Counsel for the plaintiffs and the class is:
Michael D. Braun, Esq.
Braun Law Group, P.C.
12304 Santa Monica Blvd., Ste. 109
Los Angeles, CA 90025
The defendants are represented by:
Patrick E. Gibbs, Esq.
Latham & Watkins LLP
140 Scott Drive
Menlo Park, CA 94025
John Hemann, Esq.
Morgan Lewis & Bockius LLP
One Market
Spear Street Tower
San Francisco, CA 94105
UNITED FIRE: Faces Hurricane Katrina-Related Lawsuits in La.
------------------------------------------------------------
United Fire & Casualty Co. was named as a defendant in various
lawsuits -- including complaints seeking certification from the
court to proceed as a class action suit and actions filed by
individual policyholders -- relating to disputes arising from
damages that occurred as a result of Hurricane Katrina in 2005,
according to the company's April 25, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
As of March 31, 2008, there were in excess of 400 such cases
pending, approximately 20 of which were styled as class actions.
These cases have been filed with both Louisiana state courts and
federal district courts.
The cases involve, among other claims, disputes as to the amount
of reimbursable claims in particular cases, as well as the scope
of insurance coverage under homeowners and commercial property
policies due to flooding, civil authority actions, loss of use
and business interruption.
Certain of these cases also claim a breach of duty of good faith
or violations of Louisiana insurance claims-handling laws or
regulations and involve claims for punitive or exemplary damages
while other cases claim that under Louisiana's so-called "Valued
Policy Law," the insurers must pay the total insured value of a
home that is totally destroyed if any portion of such damage was
caused by a covered peril, even if the principal cause of the
loss was an excluded peril.
Other cases challenge the scope or enforceability of the water
damage exclusion in the policies.
United Fire & Casualty Co. -- http://www.unitedfiregroup.com--
is engaged in the business of writing property and casualty
insurance, and life insurance. The Company operates in two
segments: property and casualty insurance, and life insurance.
The property and casualty insurance segment markets forms of
commercial and personal property, and casualty insurance
products, including surety bonds and reinsurance. The Company
is licensed as a property and casualty insurer in 42 states,
primarily in the Midwest, West and South and is represented by
865 independent agencies. The Company's life insurance
subsidiary is licensed in 28 states, primarily in the Midwest
and West and is represented by 927 independent agencies. United
Fire focuses on its commercial lines, which represented 92.6% of
its property and casualty premiums written for the year ended
Dec. 31, 2007. United Fire's principal life insurance products
are single premium annuities, universal life products and
traditional life products.
WEYERHAEUSER CO: Appeals Jury Decision in Alder Antitrust Suit
--------------------------------------------------------------
Weyerhaeuser Company (NYSE:WY) will appeal a jury decision
rendered in a class action lawsuit claiming that Weyerhaeuser
unlawfully monopolized an alleged market for finished alder
lumber.
A jury in Portland, Ore., awarded the plaintiffs $27.98 million,
which will be trebled under antitrust laws.
"We are very disappointed with the verdict," said Sandy D.
McDade, Weyerhaeuser senior vice president and general counsel.
"We are confident it will be reversed on appeal because last
year the U.S. Supreme Court decided in our favor a case
presenting virtually identical issues. We fully expect that the
Court of Appeals will apply that precedent. Our business conduct
has been and remains within the spirit and letter of the law,
and we will continue to vigorously defend this case."
Initial Alder Case
In December 2000, a lawsuit was filed against the company with
the U.S. District Court in Oregon alleging from 1996 to 2001 the
company had monopoly power or attempted to gain monopoly power
in the Pacific Northwest market for alder logs and finished
alder lumber.
A jury verdict of trebled damages of $79 million was appealed to
the U.S. Court of Appeals for the Ninth Circuit where the
decision was upheld. In February 2007, the Supreme Court
vacated the Ninth Circuit Court of Appeals decision in the
Initial Alder Case and remanded the matter to the Ninth Circuit
for further action. The Supreme Court held that because the
plaintiff had conceded it had not satisfied the test established
by the Supreme Court, the claim on which the damage award was
based could not be supported.
Based on the Supreme Court ruling, the $79 million reserve that
had previously been established for this matter was reversed in
the fourth quarter of 2006, because the requirements for
establishing a reserve under Statement of Financial Accounting
Standards No. 5, Accounting for Contingencies, were no longer
met. In April 2007, the Ninth Circuit issued an order vacating
the judgment of the District Court and remanding the matter to
the District Court for further proceedings.
In January 2005, the company received a copy of a "complaint in
equity" filed with the U.S. District Court in Oregon to set
aside the judgment in the Initial Alder Case on behalf of a
plaintiff who did not prevail in the trial. It alleged a fraud
was committed on the court and requested judgment against the
plaintiff be vacated and a new trial set on the plaintiff's
claim of monopolization of the alder sawlog market.
Trebled damages of $20 million were alleged. The U.S. District
Court stayed this matter pending final disposition by the U.S.
Supreme Court of the Initial Alder Case. The company denied the
allegations in the complaint and filed motions opposing a
retrial.
In August 2007, the company reached a settlement of the Initial
Alder Case and the "complaint in equity" matter. The company
recognized an after-tax charge in the amount of $11 million in
the second quarter of 2007.
Washington Alder
In June 2003, Washington Alder filed an antitrust lawsuit
against the company in U.S. District Court in Oregon alleging
monopolization of the alder log and lumber markets and seeking
trebled damages of $36 million and divestiture of the company's
Northwest Hardwoods Division and alder sawmills in Oregon,
Washington and British Columbia.
A jury verdict of trebled damages of $16 million was appealed to
the U.S. Court of Appeals for the Ninth Circuit. The matter was
stayed pending final disposition by the U.S. Supreme Court of
the Initial Alder Case.
Based on the February 2007 Supreme Court ruling in the Initial
Alder Case, the $16 million reserve that had previously been
established for this matter was reversed in the fourth quarter
of 2006. In May 2007, the Ninth Circuit issued an order
vacating the judgment and remanding to the District Court.
In the previous litigation, the company prevailed in proving it
did not attempt to nor did it gain monopoly power from 2002 to
the present and that matter cannot be retried. The court
previously applied issue preclusion between June 1999 and 2001
and is evaluating whether that time period should be subject to
further retrial.
Class Action
In April 2004, a civil class action antitrust lawsuit was filed
against the company with the U.S. District Court in Oregon
claiming that as a result of the company's alleged
monopolization of the alder sawlog market in the Pacific
Northwest as determined in the Initial Alder Case, the company
monopolized the market for finished alder and charged monopoly
prices for finished alder
lumber.
In December 2004, the judge issued an order certifying the
plaintiff as a class representative for all U.S. purchasers of
finished alder lumber between April 28, 2000, and March 31,
2004, for purposes of awarding monetary damages. The claimed
value of this matter, with trebling, is $59 million.
In February 2005, class counsel notified the court that
approximately 5% of the class members opted out of the class
action lawsuit. The company has no litigation pending with any
entity that has opted out of the class, but it is possible that
entities who have opted out may file lawsuits against the
company in the future.
In April 2007, the court granted the plaintiffs’ motion to file
an amended complaint, extended the claims period to December 31,
2006, and scheduled trial on the matter for April 2008. New
notices to the class members will be issued. In July 2007, the
court denied the company's motion to decertify the class (Class
Action Reporter, Sept. 27, 2007).
Weyerhaeuser Co. produces and distributes forest products
principally in the United States and Canada. The Company is
based in Federal Way, Wash.
XEROX CORP: Discovery Continues in Conn. Securities Fraud Suit
--------------------------------------------------------------
Discovery proceedings are still ongoing in the matter, "In re
Xerox Corporation Securities Litigation," which was filed with
the U.S. District Court for the District of Connecticut against
Xerox Corp. and certain other defendants, according to the
company's April 25, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
Initially consisting of 17 cases, the consolidated action also
named these individuals as defendants:
-- Barry Romeril,
-- Paul Allaire, and
-- G. Richard Thoman.
The suit purports to be a class action on behalf of the named
plaintiffs and all other purchasers of common stock of the
company between Oct. 22, 1998, and Oct. 7, 1999.
The amended consolidated complaint in the action alleges that in
violation of Section 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, as amended, and SEC Rule 10b-5 thereunder,
each of the defendants is liable as a participant in a
fraudulent scheme and course of business that operated as a
fraud or deceit on purchasers of the company's common stock
during the class period by disseminating materially false and
misleading statements and concealing material facts relating to
the defendants' alleged failure to disclose the material
negative impact that the April 1998 restructuring had on the
company's operations and revenues.
The amended complaint further claims that the alleged scheme:
-- deceived the investing public regarding the economic
capabilities, sales proficiencies, growth, operations
and the intrinsic value of the company's common
stock;
-- allowed several corporate insiders, such as the named
individual defendants, to sell shares of privately held
common stock of the company while in possession of
materially adverse, non-public information; and
-- caused the individual plaintiffs and the other members
of the purported class to purchase common stock of the
company at inflated prices.
The amended consolidated complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
members of the purported class against all defendants, jointly
and severally, for all damages sustained as a result of
defendants' alleged wrongdoing, including interest thereon,
together with reasonable costs and expenses incurred in the
action, including counsel fees and expert fees.
In 2001, the Court denied the defendants' motion to dismiss the
complaint. The plaintiffs' motion for class certification was
also denied by the Court in 2006, without prejudice to refiling.
In February 2007, the Court granted the motion of the
International Brotherhood of Electrical Workers Welfare Fund of
Local Union No. 164, Robert W. Roten, Robert Agius and Georgia
Stanley to appoint them as additional lead plaintiffs.
In July 2007, the Court denied the plaintiffs' renewed motion
for class certification, without prejudice to renewal after the
Court holds a pre-filing conference to identify factual disputes
the Court will be required to resolve in ruling on the motion.
After that conference and Mr. Agius' withdrawal as lead
plaintiff and proposed class representative, the plaintiffs, in
February 2008, filed a second renewed motion for class
certification, which remains pending.
In April 2008, the defendants filed their response and motion to
disqualify Milberg LLP as a lead counsel, which request is also
pending. The parties are currently engaged in discovery.
The suit is "In Re Xerox Corp. Securities Litigation, Case No.
3:99-cv-02374-AWT," filed with the U.S. District Court for the
District of Connecticut, Judge Alvin W. Thompson presiding.
Representing the plaintiffs are:
Bernstein Liebhard & Lifshitz LLP
10 E. 40th Street, 22nd Floor,
New York, NY 10016
Phone: 800.217.1522
e-mail: info@bernlieb.com
- and -
Hurwitz & Sagarin
147 North Broad St., P.O. Box 112
Milford, CT 06460-0112,
Phone: 203.877.8000.
Representing the defendants are:
Alfred U. Pavlis, Esq. (apavlis@dalypavlis.com)
Daly & Pavlis, LLC,
107 John St.,
Southport, CT 06890
Phone: 203-255-6700
Fax: 203-255-1953
- and -
Andrew N. Vollmer, Esq.
Wilmer, Cutler & Pickering,
2445 M St. NW
Washington, DC 20037-1420
Phone: 202-663-6000.
XEROX CORP: Discovery Still Ongoing in Conn. ERISA Litigation
-------------------------------------------------------------
Discovery is still ongoing in a consolidated lawsuit filed with
the U.S. District Court for the District of Connecticut that
accuses Xerox Corp. of violating the Employee Retirement Income
Security Act.
On Jul. 1, 2002, a class action complaint "Patti v. Xerox Corp.
et al.," was filed over alleged ERISA violations. Three
additional class action suits -- "Hopkins," "Uebele" and "Saba"
-- were subsequently filed with the same court asserting
substantially similar claims.
On Oct. 16, 2002, the four cases were consolidated as "In Re
Xerox Corp. ERISA Litigation." On Nov. 15, 2002, a consolidated
amended complaint was filed.
A fifth class action -- "Wright" -- was filed in the District of
Columbia. It has been transferred to Connecticut and
consolidated with the other actions.
The purported class includes all persons who invested or
maintained investments in the Xerox Stock Fund in the Xerox
401(k) Plans (either salaried or union) during the proposed
class period, May 12, 1997 through Nov. 15, 2002, and allegedly
exceeds 50,000 persons.
The defendants include the company and these individuals or
groups of individuals during the proposed class period:
-- Plan Administrator;
-- Board of Directors;
-- Fiduciary Investment Review Committee;
-- Joint Administrative Board;
-- Finance Committee of the Board of Directors; and
-- Treasurer.
The complaint claims that all the foregoing defendants were
fiduciaries of the Plan under ERISA and, as such, were obligated
to protect the Plan's assets and act in the interest of Plan
participants. The complaint alleges that the defendants failed
to do so and thereby breached their fiduciary duties.
Specifically, the plaintiffs claim that the defendants failed to
provide accurate and complete material information to
participants concerning company stock, including accounting
practices which allegedly artificially inflated the value of the
stock, and misled participants regarding the soundness of the
stock and the prudence of investing their retirement assets in
company stock.
The plaintiffs also claim that the defendants failed to invest
Plan assets prudently, to monitor the other fiduciaries and to
disregard Plan directives they knew or should have known were
imprudent, and failed to avoid conflicts of interest.
The complaint does not specify the amount of damages sought.
However, it asks that the losses to the Plan be restored, which
it describes as "millions of dollars."
It also seeks other legal and equitable relief, as appropriate,
to remedy the alleged breaches of fiduciary duty, as well as
interest, costs and attorneys' fees.
The company filed a motion to dismiss the complaint.
The plaintiffs subsequently filed a motion for class
certification and a motion to commence discovery. The
defendants have opposed these motions, contending that both are
premature before there is a decision on their motion to dismiss.
In the fall of 2004, the court requested an updated briefing on
the company's dismissal motion and update briefs were filed in
December that year.
On March 31, 2006, the court granted the company's motion to
postpone consideration of class certification pending
disposition of the dismissal motion, and granted the plaintiffs'
motion to commence formal discovery.
On April 17, 2007, the Court ruled on the dismissal motion,
granting it in part and denying it in part, and giving the
plaintiffs an opportunity to replead. In essence, the Court
stated that the class period does not extend past the date on
which the complaint was filed -- Nov. 15, 2002.
The Court also required the plaintiffs to plead with greater
specificity with regard to which defendants are alleged to have
breached which duties, and granted the motion with respect to
the duty of loyalty count, agreeing with defendants that ERISA
does not require fiduciaries to avoid conflicts of interest but
rather sets a loyalty standard to which fiduciaries must adhere
when faced with a conflict of interest. However, the Court did
give the plaintiffs leave to replead the duty of loyalty count.
Further, the Court granted the plaintiffs' prayer for relief
seeking to enjoin the defendants from violating ERISA, holding
that an injunction must be more specific than a simple command
that the defendants obey the law.
The Court denied the motion as to the prudence count and the
monitoring count, ruling that further fact development is needed
as to those counts, and, on the disclosure count, determined
that plaintiffs have set forth a claim, rejecting defendants'
assertion that SEC filings made by the Company in its corporate
capacity and required by the federal securities laws cannot be
the basis of a fiduciary breach under ERISA even if subsequently
included in disclosures made directly to plan participants.
Finally, the Court held that the plaintiffs are not precluded
from pursuing their claims under section 502(a)(2) merely
because any recovery will not be shared by all participants in
the plan but rather by a sub-class of participants who had
invested in Xerox stock during the class period.
Also on April 17, 2007, the Court denied the plaintiffs' motion
to certify a class and said that the subject needs to be
addressed in a scheduling conference that the Court will convene
in the future.
The plaintiffs subsequently filed a Second Consolidated Amended
Complaint, alleging that some or all defendants breached their
ERISA fiduciary duties during 1997-2002 by:
-- maintaining the Xerox Stock Fund as an investment
option under the Plan;
-- failing to monitor the conduct of Plan fiduciaries;
and
-- misleading Plan participants about Xerox stock as an
investment option under the Plans.
On July 18, 2007, the defendants answered the new complaint and
also filed a partial motion to dismiss.
On Aug. 9, 2007, the plaintiffs filed their motion for class
certification and on Aug. 31, 2007, filed their opposition to
the defendants' partial motion to dismiss.
In March 2008, the Court denied the plaintiffs' motion for class
certification, without prejudice against re-filing, and also
denied most of the defendants' partial motion to dismiss.
Currently, discovery in the case is ongoing, according to the
company's April 25, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March
31, 2008.
The suit is "In Re Xerox Corp. ERISA Litigation, Case No. 3:02-
cv-01138-AWT," filed with the U.S. District Court in
Connecticut, Judge Alvin W. Thompson presiding.
Representing the plaintiffs are:
Gary A. Gotto, Esq. (ggotto@kellerrohrback.com)
Keller Rohrback
3101 North Central Avenue, Suite 900
Phoenix, Arizona 85012-2600
Phone: 602-230-6322
Fax: 602-248-2822
- and -
Charles R. Watkins, Esq. (chuckwatkins@ameritech.net)
Susman & Watkins
Two First National Plaza, Suite 600,
Chicago, IL 60603
Phone: 312-346-3466
Fax: 312-346-2829
Representing the defendants are:
William H. Boice, Esq. (bboice@kilpatrickstockton.com)
Kilpatrick Stockton
1100 Peachtree St., Ste. 2800
Atlanta, GA 30309-4530
Phone: 404-815-6464
Fax: 404-541-3134
- and -
William J. Egan, Esq. (wegan@brownraysman.com)
Brown Raysman Millstein Felder & Steiner
City Place II, 185 Asylum Street, 10th Floor
Hartford, CT 06103
Phone: 860-275-6400
Fax: 860-275-6410
XEROX CORP: Seeks Supreme Court Review of Opinion in "Digwamaje"
----------------------------------------------------------------
Xerox Corp., along with several defendants in the matter
"Digwamaje, et al. v. IBM Corporation, et al., Case No. 1:02-cv-
06218-JES," filed a petition for a writ of certiorari with the
U.S. Supreme Court, seeking review of the U.S. Court of Appeals
for the Second Circuit's October 2007 opinion in the case.
The suit was originally filed with the U.S. District Court for
the Southern District of New York against Xerox Corp. and
several other corporations. It alleges that the defendants
provided material assistance to the apartheid government in
South Africa from 1948 to 1994, by engaging in commerce in South
Africa and with the South African government and by employing
forced labor, thereby violating both international and common
law.
Filed on Sept. 27, 2002, the First Amended Complaint on the
company was deemed effective as of Dec. 6, 2002.
On March 19, 2003, the plaintiffs filed a Second Amended
Complaint that eliminated a number of corporate defendants but
was otherwise identical in all material respects to the First
Amended Complaint.
The plaintiffs claim violations of the Alien Tort Claims Act,
the Torture Victims Protection Act and Racketeer Influenced and
Corrupt Organizations Act. They also assert human rights
violations and crimes against humanity.
The plaintiffs seek compensatory damages in excess of
$200 billion and punitive damages also in excess of $200
billion. The foregoing damages are being sought from all
defendants, jointly and severally.
The company filed a motion to dismiss the Second Amended
Complaint. Oral argument of the motion was heard on Nov. 6,
2003.
By Memorandum Opinion and Order entered on Nov. 29, 2004, the
court granted the dismissal motion.
On Dec. 27, 2004, the company received a notice of appeal dated
Dec. 24, 2004.
On Feb. 16, 2005, the parties filed a stipulation withdrawing
the Dec. 24, 2004 appeal on the ground that the judgment of
dismissal was not appealable.
On March 28, 2005, the plaintiffs submitted a letter requesting
permission to file a motion for leave to file an amended and
consolidated complaint. The court subsequently denied this
request.
In a second Summary Order, the court amended its Nov. 29, 2004,
Opinion and Order, which dismissed the action, so as to render
the Opinion and Order appealable and plaintiffs filed a new
appeal on May 3, 2005.
On Aug. 19, 2005, the plaintiff-appellants filed their brief
with the U.S. Court of Appeals for the Second Circuit. On
Oct. 4, 2005, the defendant-appellees filed their brief in the
Second Circuit Court of Appeals. Oral argument in the Second
Circuit Court of Appeals was held on Jan. 24, 2006.
On Oct. 12, 2007, the U.S. Court of Appeals affirmed the
dismissal of the claims asserted under the Torture Victim
Protection Act, vacated the dismissal of the claims asserted
under the Alien Tort Claims Act, and remanded those claims to
the district court for further proceedings.
In January 2008, the defendant-appellees filed a petition for a
writ of certiorari with the U.S. Supreme Court, seeking review
of the Second Circuit's October 2007 opinion, according to the
company's April 25, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Digwamaje, et al. v. IBM Corporation, et al., Case
No. 1:02-cv-06218-JES," filed with the U.S. District Court for
the Southern District of New York, Judge John E. Sprizzo
presiding.
Representing the plaintiffs are:
Kweku J. Hanson, Esq.
487 Main Street
Harford, CT 06106
Phone: (860) 728-5454
Fax: (860) 548-9660
Medi Moira Mokuena
268 Jubilee Avenue, Halfway House 1685
Extension 12
Republic of South Africa
- and -
Paul M. Ngobeni, Esq.
914 Main Street, Suite 206
East Hartford, CT 06108
Phone: (860) 289-3155
(508) 620-4798.
Representing the defendants are:
Kristin M. Heine, Esq.
Drinker, Biddle & Reath, LLP
500 Campus Drive, Florham Park
NJ 07932-1047
Phone: (973) 549-7338
Fax: (973) 360-9831
Web site: http://www.drinkerbiddle.com/
- and -
Kristin Michele Heine, Esq. (kristin.heine@dbr.com)
Drinker, Biddle & Reath, LLP
140 Broadway, 39th Flr.
New York, NY 10005
Phone: (973) 549-7338
Fax: (973) 360-9831
XEROX CORP: Oct. 7 Hearing Set in "Carlson" Securities Suit Deal
----------------------------------------------------------------
The U.S. District Court for the District of Connecticut set an
Oct. 7, 2008 final fairness hearing for the proposed settlement
in the matter, "Carlson, et al. v. Xerox Corporation, et al.,
Case No. 3:00-cv-01621-AWT."
Initially consisting of 21 cases, the consolidated securities
class action suit also names as defendants KPMG LLP, Paul A.
Allaire, G. Richard Thoman, Anne M. Mulcahy, Barry D. Romeril,
Gregory Tayler, and Philip Fishbach.
On Sept. 11, 2002, the court entered an endorsement order
granting the plaintiffs' motion to file a third consolidated
amended complaint. The defendants' motion to dismiss the second
consolidated amended complaint was denied as moot.
According to the third consolidated amended complaint, the
plaintiffs purport to bring the case as a class action on behalf
of an expanded class consisting of all persons and entities who
purchased the company's common stock and bonds between Feb. 17,
1998, and June 28, 2002, and who were purportedly damaged.
The third consolidated amended complaint sets forth two claims:
1. each of the company, KPMG, and the individual defendants
violated Section 10(b) of the 1934 Act and U.S.
Securities and Exchange Commission Rule 10b-5
thereunder; and
2. the individual defendants are also allegedly liable as
"controlling persons" of the company pursuant to Section
20(a) of the 1934 Act.
The plaintiffs claim that the defendants participated in a
fraudulent scheme that operated as a fraud and deceit on
purchasers of the company's common stock and bonds by
disseminating materially false and misleading statements and
concealing material adverse facts relating to various of the
company's accounting and reporting practices and financial
condition.
The plaintiffs further allege that this scheme deceived the
investing public regarding the true state of the company's
financial condition and caused the plaintiffs and other members
of the alleged class to purchase the company's common stock and
bonds at artificially inflated prices, and prompted a SEC
investigation that led to the April 11, 2002 settlement which,
among other things, required the company to pay a $10 penalty
and restate its financials for the years 1997-2000, including
restatement of financials previously corrected in an earlier
restatement which plaintiffs contend was improper.
The third consolidated amended complaint seeks unspecified
compensatory damages in favor of the plaintiffs and the other
class members against all defendants, jointly and severally,
including interest thereon, together with reasonable costs and
expenses, including counsel fees and expert fees.
On Dec. 2, 2002, the company and the individual defendants filed
a motion to dismiss the complaint. On July 13, 2005, the court
denied the dismissal motion. On Oct. 31, 2005, the defendants
answered the complaint.
On Jan. 19, 2006, the plaintiffs filed a motion for class
certification.
On July 18, 2007, the Court entered an order denying the
plaintiffs' motion for class certification, without prejudice to
renewal after the Court holds a pre-filing conference to
identify factual disputes the Court will be required to resolve
in ruling on the motion.
The plaintiffs have filed notices of withdrawal of proposed
class representatives Sol Sachs, Leonard Nelson and Fernan
Cepero.
The Court has approved the plaintiffs' notice of withdrawal of
proposed class representative Fernan Cepero.
On March 27, 2008, the Court granted preliminary approval of an
agreement to settle this case. The Company has agreed to make
cash payments totaling $670. KPMG has agreed to make cash
payments totaling $80.
The individual defendants and the Company do not admit any
wrongdoing as a part of the settlement, which is subject to
final court approval and other conditions.
As required by Rule 23(e) of the Federal Rules of Civil
Procedure, the Court has scheduled a settlement fairness hearing
for Oct. 7, 2008, according to the company's April 25, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2008.
The suit is "Carlson, et al. v. Xerox Corporation, et al., Case
No. 3:00-cv-01621-AWT," filed with the U.S. District Court for
the District of Connecticut, Judge Alvin W. Thompson presiding.
Representing the plaintiffs are:
Francis P. Karam, Esq. (karam@bernlieb.com)
Bernstein Liebhard & Lifshitz, LLP
10 East 40th St.
New York, NY 10016
Phone: 212-779-1414
Fax: 212-779-3218,
- and -
Eliot B. Gersten, Esq. (egersten@gcrlaw.net)
Gersten & Clifford
214 Main Street
Hartford, CT 06106
Phone: 860-527-7044
Fax: 860-527-4968
Representing the defendants are:
Michael Gruenglas, Esq.
Skadden, Arps, Slate, Meagher & Flom
Four Times Square
New York, NY 10036-3897
Phone: 212-735-3000
- and -
Timothy W. Blakely, Esq.
Cravath, Swaine & Moore
825 8th Ave., Worldwide Plaza
New York, NY 10019-7415
Phone: 212-474-1000
Fax: 212-474-3700.
XEROX: July 11 Hearing Set for N.Y. Civil Rights Suit Settlement
----------------------------------------------------------------
The U.S. District Court for the Eastern District of New York set
a July 11, 2008 final fairness hearing for the proposed
settlement in the matter, "Warren, et al. v. Xerox Corp."
The suit, filed in May 2001, alleged race discrimination with
respect to sales territory assignments, quotas and compensation.
On March 11, 2004, the U.S. District Court for the Eastern
District of New York entered an order certifying a nationwide
class of all black salespersons employed by Xerox from Feb. 1,
1997, to the present under Title VII of the Civil Rights Act of
1964, as amended, and the Civil Rights Act of 1871. Six black
sales representatives commenced the suit on May 9, 2001.
The plaintiffs allege that the company engaged in a pattern or
practice of race discrimination against them and other black
sales representatives by assigning them to less desirable sales
territories, denying them promotional opportunities, and paying
them less than their white counterparts.
Although the complaint does not specify the amount of damages
sought, the plaintiffs seek, on behalf of themselves and the
classes they seek to represent, front and back pay, compensatory
and punitive damages, and attorneys' fees.
A tentative settlement agreement was eventually reached, the
terms of which are not material to Xerox, and in 2007, the
parties submitted the settlement agreement to the Court for
preliminary approval.
At a status conference held on June 6, 2007, the judge indicated
that he would not approve the current version of the settlement
agreement. He said he was concerned that the named plaintiffs
may be receiving a disproportionate amount of damages as
compared to the other class members. He directed the parties to
revise this aspect of the agreement and bring it back to him.
A revised agreement was submitted to the Court on March 7, 2008,
and the Court approved it on a preliminary basis, without
hearing, on April 3, 2008.
A Preliminary Approval Order was issued and provided that notice
to Class Members is to be mailed by May 9, 2008, and that a
Final Fairness Hearing is scheduled for July 11, 2008, according
to the company's April 25, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Warren, et al. v. Xerox Corp., Case No. 1:01-cv-
02909-JG-KAM," filed with the U.S. District Court for the
Eastern District of New York, Judge John Gleeson presiding.
Representing the plaintiffs is:
Barry Alan Weprin, Esq. (bweprin@milbergweiss.com)
Milberg, Weiss, Bershad, Hynes & Schulman, LLP
One Pennsylvania Plaza, 48th floor
New York, NY 10119-0165
Phone: (212) 946-9312
Fax: 212-868-1229
Representing the defendant are:
Eugene D. Ulterino, Esq. (eulterino@nixonpeabody.com)
Amy Laura Ventry, Esq. (aventry@nixonpeabody.com)
Nixon Peabody, LLP
Phone: 585-263-1580 and (516) 832-7500
Fax: 585-263-1600 and (516) 832-7555
* Bob Klein to Speak at Law Seminars International Conference
-------------------------------------------------------------
Bob Klein, President of Applied Marketing Science, has been
invited to speak at the "Innovative Strategies for Litigating
Class Action Suits" conference, which will be presented by Law
Seminars International on May 8 and 9 at the Marion Oliver McCaw
Hall in Seattle, WA.
In his talk, Mr. Klein will explain how to effectively use
market research surveys in class action litigations.
He will be joining a panel of national leaders from the courts
and both sides of the class action bar to discuss:
* Recent developments in litigating class actions;
* Case trends under California's Section 17200 after
Proposition 64;
* Dispositive motions and merits discovery before class
certification;
* Judicial views of class action litigation;
* Litigation fire juggling: strategies for managing
simultaneous class, regulatory, and enforcement actions;
* The when and how of effectively using economic experts;
* Managing the public relations element: what to do in the
first critical hours of a case;
* Settlement strategies and issues;
* Tribal strategies and approaches;
* Avoiding ethical traps in settling class actions;
* Claims administration; and
* Substantive areas, such as the intersection of antitrust
law and class action law; products liability; and wage
and hour.
Bob Klein is president and co-founder of Applied Marketing
Science, a market research consulting firm based in Waltham,
Massachusetts. He has served as an expert witness in over 30
cases involving marketing science and consumer behavior in cases
related to trademark infringement, confusion, patent damages,
class certification, trade secrets, sales forecasting and
others. His articles and commentaries have appeared in the
Harvard Business Review, Advertising Age, Marketing News, and
Intellectual Property Today. Mr. Klein is also a member of the
Proof of Confusion Subcommittee of the International Trademark
Association's Enforcement Committee.
Applied Marketing Science is an established consulting firm with
two distinct businesses: helping product development teams
understand their customers' wants and needs for input into new
product and service development; and assisting attorneys with
consumer behavior and marketing issues in litigation using
surveys and other techniques.
New Securities Fraud Cases
AGRIA CORP: Federman & Sherwood Files Securities Suit in N.Y.
-------------------------------------------------------------
On April 11, 2008, a class action lawsuit was filed by Federman
& Sherwood with the United States District Court for the
Southern District of New York against Agria Corporation.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is on behalf of persons who purchased or
otherwise acquired securities of Agria Corporation pursuant to
or traceable to the Company's November 6, 2007 Initial Public
Offering.
The plaintiff seeks to recover damages on behalf of the Class.
Interested parties may move the court no later than June 10,
2008 for lead plaintiff appointment.
For more information, contact:
K. Lynn Nunn, Esq. (kln@federmanlaw.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com
HARMONY GOLD: Holzer Commences N.Y. Securities Fraud Lawsuit
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Holzer Holzer & Fistel, LLC, has filed a shareholder class
action lawsuit with the United States District Court for the
Southern District of New York against Harmony Gold Mining
Company Limited and certain of its officers and directors on
behalf of purchasers of Harmony Gold's American Depository
Receipts and call options and sellers of Harmony Gold's put
options, who purchased or sold between April 2, 2007, and
August 7, 2007, inclusive.
The lawsuit alleges the Company violated the Securities Act of
1934 by making false and misleading statements to the public in
its press releases and in its Securities Exchange Commission
filings. Specifically, the lawsuit alleges that Harmony
understated its costs and overstated the productivity of its
mining operations.
For more information, contact:
Michael I. Fistel Jr., Esq. (mfistel@holzerlaw.com)
Marshall P. Dees, Esq. (mdees@holzerlaw.com)
Holzer Holzer & Fistel, LLC
117 Perimeter Center West, Suite E-107
Atlanta, Georgia 30338
Phone: (888) 508-6832
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
April 30 - May 1, 2008
ACI LAW FIRM GENERAL COUNSEL SUMMIT
American Conference Institute
New York
Web site: https://www.americanconference.com
Phone: 1-888-224-2480
April 30 - May 1, 2008
WAGE & HOUR LITIGATION
American Conference Institute
Miami
Web site: https://www.americanconference.com
Phone: 1-888-224-2480
May 1-2, 2008
SECURITIES LITIGATION: PLANNING AND STRATEGIES
ALI-ABA
Boston, MA
Contact: 215-243-1614; 800-CLE-NEWS x1614
May 5-6, 2008
MEALEY'S ASBESTOS TRIAL STRATEGIES CONFERENCE
Mealeys Seminars
The Rittenhouse Hotel, Philadelphia
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 7, 2008
LEXISNEXIS ETHICS TELECONFERENCE SERIES: CONFLICT OF INTEREST
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 8, 2008
MEALEY'S TELECONFERENCE: BENZENE LITIGATION
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 8, 2008
LEXISNEXIS WOMEN IN THE LEGAL PROFESSION SUMMIT: RAINMAKING,
NEGOTIATING AND COLLABORATIVE DEVELOPMENT (ATLANTA)
Mealeys Seminars
The Atlantic Station Building, Atlanta, GA
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 13-14, 2008
D&O LIABILITY INSURANCE
American Conference Institute
New York
Web site: https://www.americanconference.com
Phone: 1-888-224-2480
May 15, 2008
LEXISNEXIS WOMEN IN THE LEGAL PROFESSION TELECONFERENCE
SERIES: ASSUMING A LEADERSHIP POSITION
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 19-20, 2008
MEALEY'S INSURANCE SUMMIT: CAPITAL MARKETS CONVERGENCE AND
STRATEGIC CONSIDERATIONS FACING THE INSURANCE INDUSTRY
Mealeys Seminars
The Westin Grand, Washington, DC
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 20-21, 2008
MEALEY'S CONSTRUCTION LITIGATION CONFERENCE
Mealeys Seminars
The Rittenhouse Hotel, Philadelphia
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 29-30, 2008
MASS LITIGATION
ALI-ABA
Charleston, SC
Contact: 215-243-1614; 800-CLE-NEWS x1614
June 23-24, 2008
MEALEY'S WRAP INSURANCE CONFERENCE
Mealeys Seminars
The Signatures at the MGM Grand, Las Vegas
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
June 25, 2008
LEXISNEXIS WOMEN IN THE LEGAL PROFESSION SUMMIT: RAINMAKING,
NEGOTIATING AND COLLABORATIVE DEVELOPMENT (NEW YORK)
Mealeys Seminars
The Harvard Club, New York
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
July 10-11, 2008
CLASS ACTION LITIGATION 2008: PROSECUTION AND
DEFENSE STRATEGIES
Practising Law Institute
New York
Phone: 800-260-4PLI; 212-824-5710
July 30, 2008
MANAGING COMPLEX FEDERAL LITIGATION: A PRACTICAL GUIDE TO NEW
DEVELOPMENTS, PROCEDURES, & STRATEGIES
Practising Law Institute
Chicago
Phone: 800-260-4PLI; 212-824-5710
October 23-24, 2008
Mass Torts Made Perfect Seminar
Mass Torts Made Perfect
Bellagio, Las Vegas
Phone: 1-800-320-2227
* Online Teleconferences
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December 13, 2008
MEALEY'S FINITE REINSURANCE TELECONFERENCE
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
(2004)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
CIVIL LITIGATION PRACTICE: 23RD ANNUAL RECENT DEVELOPMENTS
(2005)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINATION
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING
WRITTEN DISCOVERY
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
SUMMARY JUDGMENT AND OTHER DISPOSITIVE MOTIONS
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS (2004)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
TORTS PRACTICE: 20TH ANNUAL RECENT DEVELOPMENTS (2005)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
ASBESTOS BANKRUPTCY-PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
e-mail: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
e-mail: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com/Law Education Institute
e-mail: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
e-mail: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Phone: 800-285-2221
e-mail: abacle@abanet.org
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, 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
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without
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Information contained herein is obtained from sources believed
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are $25 each. For subscription information, contact Christopher
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* * * End of Transmission * * *