/raid1/www/Hosts/bankrupt/CAR_Public/080508.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 8, 2008, Vol. 10, No. 91
Headlines
ALLIED WASTE: Ninth Circuit Affirms Dismissal of Arizona Lawsuit
AMKOR TECH: Briefing in Arizona Suit Dismissal Appeal Completed
APPLE CANADA: Settles Canadian Lawsuits Over iPod Battery Life
APPLE CANADA: Appeals Court Ruling in iPod Levy Litigation
APPLE COMPUTER: Still Faces Lawsuit Over iTunes-iPod Sale Tie-Up
APPLE COMPUTER: Court Yet to Rule on Motions in "Vogel" Lawsuit
APPLE INC: Denies Allegations in CA iPod-Related Antitrust Suit
APPLE INC: California Court Mulls iBook G4 Suit Dismissal Motion
APPLE INC: Court Yet to Decide on Motion to Dismiss iPod Lawsuit
APPLE INC: Settles California Litigation Over 65W Power Adapters
APPLE INC: Oct. 17 Hearing Set in "Branning" Class Certification
APPLE INC: Still Faces U.S. & Canadian Lawsuits Over iPod Nanos
BECO BABY: Recalls Infant Carriers Posing Fall Hazard
BROWN HARRIS: Sued for Refusing Renters with Children
DENTSPLY INT'L: Still Faces Suit Over Declared Uses of Cavitron
DOWNEY SAVINGS: Still Faces "Holman" Labor Case in California
FIRST FRANKLIN: Faces California Suit Over Illegal Penalties
FUNTASTIC: Recalls Fake Teeth for Lead Paint Standard Breach
GUIDANT CORP: Shareholders Amend Indiana Securities Complaint
ILLINOIS: Residents File Lawsuit Over $200 I-PASS Fines
JETBLUE AIRWAYS: Logan Airport Skycaps Sue Over $2-Per-Bag Fee
LG TELECOM: Mobile Users Sue Over Information Leak
MICHAELS STORES: Recalls Pens for Lead Paint Standard Breach
MOHAWK INDUSTRIES: Class Status Denial in "Williams" Appealed
N.Y. LOTTERY DIVISION: Lottery Customers Ripped Off, Suit Claims
NIGERIAN GOV'T: Bakassi Natives Throw NGN456-Billion Lawsuit
PEDERNALES ELECTRIC: Court Okays Settlement in Member-Led Suit
PENNSYLVANIA PORT AUTHORITY: Police Union Sues for Overtime Pay
SUTTER HEALTH: To Improve Facility for Disabled to Settle Suit
TOSHIBA AMERICA: Faces Ohio Suit Over Defective Video Recorders
TXI RIVERSIDE: Faces California Lawsuit for Causing Illnesses
TYCO INTERNATIONAL: Settles Securities Lawsuit in N.J. for $73MM
WAL-MART: Recalls Charm Key Chains Due to Lead Exposure Risks
* Stacey Fishbein Joins Administration Division of A.B. Data
New Securities Fraud Cases
CBEYOND INC: Gardy & Notis Files Securities Lawsuit in Georgia
*********
ALLIED WASTE: Ninth Circuit Affirms Dismissal of Arizona Lawsuit
----------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit affirmed the
dismissal of a consolidated securities fraud class action
lawsuit filed in the U.S. District Court for the District of
Arizona against Allied Waste Industries, Inc.
A consolidated amended class-action complaint was filed against
Allied Waste and five of its current and former officers on
March 31, 2005, consolidating three lawsuits previously filed on
Aug. 9, Aug. 27, and Sept. 30, 2004. The amended complaint
asserted claims against all defendants under Section 10 (b) of
the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder and claims against the officers under
Section 20(a) of the U.S. Securities Exchange Act.
The complaint alleged that from Feb. 10 to Sept. 13, 2004, the
defendants caused false and misleading statements to be issued
in the company's public filings and public statements regarding
the company's anticipated results for fiscal year 2004. The
lawsuit sought an unspecified amount of damages.
On Dec. 15, 2005, the U.S. District Court for the District of
Arizona granted the company's motion and dismissed the lawsuit
with prejudice.
The plaintiffs appealed the dismissal to the U.S. Court of
Appeals for the Ninth Circuit. The appeal was fully briefed and
oral argument before the Court of Appeals was held on April 17,
2008. Results are yet to be disclosed.
On April 29, 2008, the U.S. Court of Appeals for the Ninth
Circuit affirmed the dismissal with prejudice, according to the
company's April 30, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Steven Zack, et al. v. Allied Waste Industries,
Inc., et al., Case No. 2:04-cv-01640-MHM," filed in the U.S.
District Court for the District of Arizona, Judge Judge Mary H.
Murguia presiding.
Representing the plaintiffs are:
Stuart L. Berman, Esq. (ecf_filings@sbclasslaw.com)
Schiffrin & Barroway, LLP
280 King of Prussia Rd.
Radnor, PA 19087
Phone: 610-667-7706
Fax: 610-667-7056
- and -
Richard Glenn Himelrick, Esq. (rgh@tblaw.com)
Tiffany & Bosco, PA
Camelback Esplanade II, 2525 E. Camelback Rd., 3rd Fl.
Phoenix, AZ 85016
Phone: 602-255-6021
Fax: 602-255-0103
Representing the defendants are:
Shahzeb Lari, Esq. (shahzeb.lari@friedfrank.com)
Fried Frank Harris Shriver & Jacobson
1 New York Plaza
New York, NY 10004
Phone: 1.212.859.8096
Fax: 1.212.859.4000
- and -
Doug C. Northup, Esq. (dnorthup@fclaw.com)
Fennemore Craig, P.C.
3003 N. Central Ave., Ste. 2600
Phoenix, AZ 85012-2913
Phone: 602-916-5000
Fax: 602-916-5562
AMKOR TECH: Briefing in Arizona Suit Dismissal Appeal Completed
---------------------------------------------------------------
The parties in a consolidated securities fraud class action
against Amkor Technology, Inc., have completed their respective
briefings with the U.S. Circuit Court of Appeals for the Ninth
Circuit in connection to an appeal of an order dismissing the
case.
On Jan. 23, 2006, a purported securities class action entitled
"Nathan Weiss et al. v. Amkor Technology, Inc., et al.," was
filed with the U.S. District Court for the Eastern District of
Pennsylvania against Amkor and certain of its current and former
officers.
Subsequently, other law firms filed two similar cases, which
were consolidated with the initial complaint.
In August 2006 and again in November 2006, the plaintiffs
amended the complaint. The plaintiffs added additional officer,
director and former director defendants and alleged
improprieties in certain option grants.
The amended complaint further alleges that the defendants
improperly recorded and accounted for the options in violation
of generally accepted accounting principles and made materially
false and misleading statements and omissions in its disclosures
in violation of the federal securities laws, during the period
from July 2001 to July 2006.
The amended complaint seeks certification as a class action
pursuant to Fed. R. Civ. Proc. 23, compensatory damages, costs,
and expenses, and such other further relief as the Court deems
just and proper.
On Dec. 28, 2006, pursuant to a motion by the defendants, the
U.S. District Court for the Eastern District of Pennsylvania
transferred the action to the U.S. District Court for the
District of Arizona.
On Sept. 25, 2007, the U.S. District Court for the District of
Arizona dismissed the case with prejudice.
On Oct. 23, 2007, the plaintiffs filed a notice of appeal from
the dismissal with the U.S. Circuit Court of Appeals for the
Ninth Circuit.
The parties have completed briefing of the appeal, according to
the company's May 5, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Nathan Weiss et al. v. Amkor Technology, Inc. et
al.," filed in the U.S. District Court for the Eastern District
of Pennsylvania.
Representing the plaintiffs are:
Jacob A. Goldberg, Esq. (jgoldberg@faruqilaw.com)
Faruqi & Faruqi, LLP
P.O. Box 30132
Elkins Park, PA 19027
Phone: 215-782-8235
- and -
Evan J. Smith, Esq. (esmith@brodsky-smith.com)
Brodsky & Smith, LLC
Two Bala Plaza, Suite 602
Bala Cynwyd, PA 19004
Phone: 610-667-6200
Representing the defendants are:
Patrick Loftus, Esq. (loftus@duanemorris.com)
Duane Morris, LLP
30 South 17th Street
Philadelphia, PA 19103-7396
Phone: 215-979-1367
- and -
Karen T. Stefano, Esq. (kstefano@wsgr.com)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Phone: 650-849-3405
APPLE CANADA: Settles Canadian Lawsuits Over iPod Battery Life
--------------------------------------------------------------
Apple Canada, Inc., has settled several lawsuits in Canada over
alleged misrepresentations by the company regarding the battery
life of its popular iPod mp3 player, according to the company's
May 1, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 29, 2008.
Lenzi Complaint
The dismissed action, styled "Lenzi v. Apple Canada, Inc.," was
filed in Montreal, Quebec, on June 7, 2005, seeking
authorization to institute a class action on behalf of
Generations 1, 2 and 3 iPod owners in Quebec.
On Feb. 2, 2006, the Court denied the plaintiff's authorization
request.
Wadell Complaint
Two similar complaints related to the iPod battery life, "Wolfe
v. Apple," and "Hirst v. Apple," were filed in Toronto, Ontario,
on Aug. 15, 2005, and Sept. 12, 2005, respectively.
The counsel subsequently amended the complaint, now called,
"Waddell v. Apple." The Waddell lawsuit is brought on behalf of
all Canadian purchasers other than Quebec purchasers.
On Jan. 17, 2006, the Company filed its statement of defense to
the Waddell complaint.
Hamilton Complaint
In addition, a similar complaint regarding iPod battery life,
"Hamilton v. Apple Computer, Inc. and Apple Canada, Inc.," was
filed in Calgary, Alberta, on Oct. 5, 2005, purportedly on
behalf of all purchasers of iPods in Alberta, Canada. The
complaint was served on Sept. 27, 2006.
The Company has reached settlement in these matters and the
parties have obtained preliminary court approval for the
agreements.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
APPLE CANADA: Appeals Court Ruling in iPod Levy Litigation
----------------------------------------------------------
Apple Canada, Inc., appealed a ruling issued in the purported
class action, "St-Germain v. Apple Canada, Inc.," which is
seeking a refund of the Canadian Private Copying Levy that was
applied to the iPod purchase price in Quebec.
The plaintiffs filed the case in Montreal, Quebec, on Aug. 5,
2005. The Canadian Private Copying Levy was applied to the iPod
purchase price in Quebec between Dec. 12, 2003, and Dec. 14,
2004, but later declared invalid by the Canadian Court.
A class certification hearing took place Jan. 13, 2006. On
Feb. 24, 2006, the court granted class certification and notice
was published during the last week of March 2006.
The trial was conducted on Oct. 15, and 16, 2007. On Jan. 11,
2008, the Court issued a ruling in the plaintiffs' favor.
The Court ruled that despite the Company's good faith efforts
with the levy refund program, the Company must pay the amount
claimed, and that the class is comprised of 20,000 persons who
purchased an iPod in Quebec between Dec. 12, 2003, and Dec. 14,
2004.
The Court ordered the Company to submit a statement of account
showing the amount received by the Canadian Private Copying
Collective, and the amount that has already been paid to class
members in Quebec under the Company's levy refund program.
The Court also ordered the parties to submit further briefing
regarding the collective recovery award by Feb. 23, 2008. On
Feb. 11, 2008, the Company filed an appeal.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
APPLE COMPUTER: Still Faces Lawsuit Over iTunes-iPod Sale Tie-Up
----------------------------------------------------------------
Apple Computer, Inc., continues to face a consolidated class
action suit in the U.S. District Court for the Northern District
of California accusing it of illegally tying iTunes music and
iPods sales.
Charoensak Litigation
The plaintiff filed the suit "Charoensak v. Apple Computer,
Inc.," formerly "Slattery v. Apple Computer, Inc.," on Jan. 3,
2005, in the U.S. District Court for the Northern District of
California, alleging various claims including alleged unlawful
tying of music purchased on the iTunes Music Store with the
purchase of iPods and vice versa and unlawful acquisition or
maintenance of monopoly market power.
The plaintiff's complaint alleges violations of Sections 1 and 2
of the Sherman Act (15 U.S.C. Sections 1 and 2), California
Business and Professions Code Section 16700 et seq., California
Business and Professions Code Section 17200 (unfair
competition), common law unjust enrichment and common law
monopolization. It seeks unspecified damages and other relief.
The company, on Feb. 10, 2005, filed a motion to dismiss the
suit, which motion was subsequently denied by the court in part
and granted in part.
The plaintiff filed an amended complaint on Sept. 23, 2005, and
the company filed an answer on Oct. 11, 2005.
On May 8, 2006, the court heard the plaintiff's motion for leave
to file a second amended complaint to substitute two new
plaintiffs for "Slattery."
In August 2006, the court dismissed "Slattery" without prejudice
and allowed plaintiffs to file an amended complaint naming two
new plaintiffs.
On Nov. 2, 2006, the company filed an answer to the amended
complaint denying all material allegations and asserting
numerous affirmative defenses.
Tucker Case
The plaintiff filed the "Tucker v. Apple Computer, Inc." case as
a purported class action on July 21, 2006, in the U.S. District
Court for the Northern District of California alleging various
claims including alleged unlawful tying of music and videos
purchased on the iTunes Store with the purchase of iPods and
vice versa and unlawful acquisition or maintenance of monopoly
market power.
The complaint alleged violations of Sections 1 and 2 of the
Sherman Act, California Business & Professions Code Section
16700 et seq., California Business & Professions Code Section
17200 and the California Consumer Legal Remedies Act. The
Plaintiff sought unspecified damages and other relief.
On Nov. 3, 2006, the company filed a motion to dismiss the
complaint. On Dec. 20, 2006, the Court denied the motion to
dismiss.
On Jan. 11, 2007, the company filed an answer denying all
material allegations and asserting numerous defenses.
Consolidation of Cases
On March 20, 2007, the court consolidated the two cases. The
plaintiffs filed a consolidated complaint on April 19, 2007.
On June 6, 2007, the company filed an answer to the consolidated
complaint denying all material allegations and asserting
numerous affirmative defenses.
The company reported no development in the matter in its May 1,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 29, 2008.
The suit is "Charoensak v. Apple Computer, Inc., Case No. 5:05-
cv-00037-JW," filed in the U.S. District Court for the Northern
District of California under Judge James Ware with referral to
Judge Patricia V. Trumbull.
Representing the plaintiffs are:
Michael David Braun, Esq.
Braun Law Group, P.C.
12400 Wilshire Boulevard, Suite 920
Los Angeles, CA 90025
Phone: 310-442-7755
Fax: (310) 442-7756
e-mail: service@braunlawgroup.com
Roy A. Katriel, Esq. (rak@katriellaw.com)
The Katriel Law Firm, P.L.L.C.
1101 30th Street, NW, Suite 500
Washington, DC 20007
Phone: 202-625-4342
- and -
John J. Stoia, Jr., Esq. (jstoia@lerachlaw.com)
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
Representing the company is:
Caroline N. Mitchell, Esq. (cnmitchell@jonesday.com)
Jones Day, 555 California Street, 26th Floor
San Francisco, CA 94104
Phone: 415-875-5712
Fax: 415-875-5700
APPLE COMPUTER: Court Yet to Rule on Motions in "Vogel" Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Northern District of California
has yet to rule on either parties' motions in the matter, "Vogel
v. Jobs et al.," which names Apple Computer, Inc., as a
defendant.
The plaintiff filed the purported class action on Aug. 24, 2006,
against the company and certain of the company's current and
former officers and directors, alleging improper backdating of
stock option grants to maximize certain defendants' profits,
failing to properly account for those grants and issuing false
financial statements.
On Jan. 19, 2007, the Court appointed the New York City
Employees' Retirement System as lead plaintiff.
On March 23, 2007, the plaintiffs filed a Consolidated Class
Action Complaint.
The Consolidated Complaint purports to be brought on behalf of
several classes of holders of the company's stock and asserts
claims under Section 14(a) and 20(a) of the Securities Exchange
Act as well as state law.
The Consolidated Complaint seeks rescission of amendments to
various stock option and other incentive compensation plans, an
accounting and damages in an unspecified amount.
The defendants, on June 8, 2007, filed a motion to dismiss the
suit. Subsequently, on Nov. 14, 2007, the court issued an order
dismissing all securities claims with prejudice, and held that
any amended complaint could only be styled as a derivative case.
On Dec. 14, 2007, the plaintiff filed a motion for leave to file
a first amended consolidated class action complaint.
On Jan. 23, 2008, defendants filed an opposition to plaintiff's
motion. The plaintiff's motion was heard on March 21, 2008, but
the Court has not yet issued a ruling, according to the
company's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
The suit is "Vogel et al. v. Jobs et al., Case No. 5:06-cv-
05208-JF," filed in the U.S. District Court for the Northern
District of California, Judge Jeremy Fogel, presiding.
Representing the plaintiffs are:
Patrice L. Bishop, Esq.
Stull, Stull & Brody
10940 Wilshire Boulevard, Suite 2300
Los Angeles, CA 90024
Phone: 310-209-2468
Fax: 310-209-2087
e-mail: service@ssbla.com
- and -
Mary Sikra Thomas, Esq. (mthomas@gelaw.com)
Grant & Eisenhofer, P.A.
1201 N. Market St., Suite 2100
Wilmington, DE 19801
Phone: 302-622-7000
Representing the defendants is:
David Malcolm Furbush, Esq. (dfurbush@omm.com)
O'Melveny & Myers, LLP
2765 Sand Hill Road
Menlo Park, CA 94025
Phone: (650) 473-2600
Fax: (650) 473-2601
APPLE INC: Denies Allegations in CA iPod-Related Antitrust Suit
---------------------------------------------------------------
Apple, Inc., filed answer with the U.S. District Court for the
Northern District of California denying the allegations in a
purported class action filed on Dec. 31, 2007.
The suit accuses the company of making digitally recorded music
sold through its online stores inoperable with operating systems
other than iPods, and of making iPods unable to play music
downloaded through competitors' Web sites.
Named plaintiff Stacie Somers brings this action pursuant to
Rules 23(b)(2) and (3) of the Federal Rules of Civil Procedure
on behalf of all persons or entities in the U.S., that, during
the class period, purchased an Apple iPod, or who purchased
audio or video content from Apple's Music Store, from Dec. 31,
2203 through the conclusion of the trial of this matter (Class
Action Reporter, Jan. 7, 2008).
Ms. Somers wants the court to rule on whether:
(a) the definition of the relevant markets;
(b) Apple's market power within these markets;
(c) Apple monopolized and continues to monopolize the
relevant markets;
(d) Apple attempted to monopolize and continues to attempt
to monopolize the relevant markets;
(e) the contractual conditions Apple imposes upon its
customers are unconscionable;
(f) whether Apple's conduct caused damage to the plaintiff
which prices paid by the classes are higher than the
and members of the classes, including the degree to
prices that would be paid in a market free from tying,
monopolization, and other illegal conduct; and
(g) the appropriateness of injunctive relief to restrain
ongoing and future violations of the law.
The plaintiff prays that the court declare, adjudge and decree
that:
-- this action may be maintained as a class action
pursuant to Rule of the Federal Rules of Civil Procedure
with respect to the claims for damages and other
monetary relief, and declaring plaintiff as
representatives of the class and her counsel as counsel
for the classes;
-- the conduct alleged constitutes unlawful tying,
monopolization, and attempted monopolization in
violation of Cartwright Act, California common law, and
sections 1 and 2 of the Sherman Antitrust Act;
-- the conduct alleged is in violation of the
California Unfair Competition Law and appropriate
injunctive relief be granted pursuant to this law;
-- the plaintiff and the classes are entitled to damages,
penalties and other monetary relief provided by
applicable law, including treble damages;
-- the plaintiff and the classes recover their costs of
suit, including reasonable attorneys' fees and pre- and
post-judgment interest;
-- the company is permanently restrained and enjoined
from continuing the alleged unfair and anti-competitive
activities;
-- all funds acquired from Apple's unfair business
practices, including disgorgement of revenues and
profits require full restitution;
-- the plaintiff and the class are awarded expenses and
costs of suit, including reasonable attorneys' fees, to
the extent provided by law; and
-- the plaintiff and the classes are granted such other,
further, and different relief as the nature of the case
may require or as may be determined to be just,
equitable, and proper by the court.
On Feb. 21, 2008, the company filed an answer denying all
material allegations and asserting numerous defenses, according
to the company's May 1, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 29, 2008.
The suit is "Stacie Somers et al. v. Apple Inc., Case No. CV 07
6507," filed with the U.S. District Court for the Northern
District of California.
Representing the plaintiffs are:
Alreen Haegguist, Esq.
Haegguist Law Group
501 West Broadway, Suite A-276
San Diego, CA 92101
Phone: 619-955-8218
Fax: 619-342-7878
Helen I. Zeldes, Esq. (helenz@zeldeslaw.com)
Law Office of Helen Zeldes
249 S. Highway 101, #370
Solana Beach, CA 92075
Phone: 858-523-1713
Fax: 858-523-1783
- and -
Steven A. Skalet, Esq. (sskalet@findjustice.com)
Craig L. Briskin, Esq. (cbrinskin@findjustice.com)
Mehri & Skalet, PLLC
1250 Connecticut Ave. NW, Suite 300
Washington, DC 20036
Phone: 202-822-5100
Fax: 202-822-4997
APPLE INC: California Court Mulls iBook G4 Suit Dismissal Motion
----------------------------------------------------------------
The U.S. District Court for the Central District of California
has yet to rule on a motion seeking the dismissal of a class
action suit filed against Apple, Inc., over the failure rate of
its iBook G4's logic board.
The suit is "Vitt v. Apple Computer, Inc.," filed on Nov. 7,
2006, on behalf of a purported nationwide class of all
purchasers of the iBook G4. It claims that the computer's logic
board fails at an abnormally high rate.
The complaint alleges violations of California Business &
Professions Code Section 17200 (unfair competition) and
California Business & Professions Code Section 17500 (false
advertising). The plaintiff seeks unspecified damages and other
relief.
The company filed a motion to dismiss the suit on Jan. 19, 2007,
which the court granted on March 13, 2007.
The plaintiffs filed an amended complaint on March 26, 2007,
which the company again sought to have dismissed. This request
was heard on Oct. 4, 2007.
The Court has not yet issued a ruling, according to the
company's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
The suit is "Alan Vitt v. Apple Computer Inc., Case No. 2:06-cv-
07152-GHK-RC," filed with the U.S. District Court for the
Central District of California under Judge George H. King with
referral to Judge Rosalyn M. Chapman.
Representing the plaintiffs are:
James S. Cahill, Esq.
Rossbacher Firm, 811 Wilshire Blvd., Ste. 1650
Los Angeles, CA 90017-2666
Phone: 213-895-6500
Fax: 213-895-6161
Taras Kick, Esq.
Kick Law Offices
900 Wilshire Boulevard, Suite 230
Los Angeles, CA 90017
Phone: 213-624-1588
- and -
Kevin P. Roddy, Esq.
Wilentz Goldman and Spitzer
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Phone: 732-636-8000
e-mail: kevin@hagens-berman.com
Representing the defendants is:
Ronald K. Meyer, Esq.
Munger Tolles & Olson
355 S Grand Ave., 35th Fl.
Los Angeles, CA 90071-1560
Phone: 213-683-9100
APPLE INC: Court Yet to Decide on Motion to Dismiss iPod Lawsuit
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
has yet to rule on a motion seeking the dismissal of the third
amended complaint in a purported class action suit against
Apple, Inc., which alleges that defects in its iPod products
cause hearing loss to users.
The action, entitled, "Birdsong v. Apple Computers Inc.,"
specifically alleges that the company's iPod music players, and
the ear bud headphones sold with them, are inherently defective
in design and are sold without adequate warnings concerning the
risk of noise-induced hearing loss by iPod users.
The Birdsong Action was initially filed on Jan. 30, 2006, in the
U.S. District Court for the Western District of Louisiana. It
asserts causes of action on behalf of a purported Louisiana
class of iPod purchasers.
A similar action, "Patterson v. Apple Computer, Inc.," was filed
on Jan. 31, 2006, in the U.S. District Court for the Northern
District of California asserting California causes of action on
behalf of a purported class of all iPod purchasers within the
four-year period before Jan. 31, 2006.
The Birdsong Action was transferred to the U.S. District Court
with the Northern District of California, and the Patterson
Action was dismissed.
An amended complaint was subsequently filed in "Birdsong,"
dropping the Louisiana law-based claims and adding California
law-based claims equivalent to those in "Patterson."
After the company filed a motion to dismiss on Nov. 3, 2006, the
plaintiffs agreed not to oppose the motion and filed a second
amended complaint on Jan. 16, 2007.
That complaint alleges California law-based claims for breaches
of implied and express warranties, violations of California
Business & Professions Code Section 17200 (unfair competition),
California Business & Professions Code Section 17500 (false
advertising), the Consumer Legal Remedies Act and negligent
misrepresentation on behalf of a putative nationwide class and a
Louisiana law-based claim for redhibition for a Louisiana sub-
class.
On March 1, 2007, the Company filed a motion to dismiss the
California law-based claims, which was heard on June 4, 2007.
On Dec. 14, 2007, the Court granted this request, with leave to
amend the complaint.
The plaintiffs filed a third amended complaint on Jan. 11, 2008,
which the Company again sought to have dismissed.
A hearing on the motion to dismiss took place on April 21, 2008.
The Court has not yet issued a ruling, according to the
company's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
APPLE INC: Settles California Litigation Over 65W Power Adapters
----------------------------------------------------------------
Apple, Inc., reached a tentative settlement in a purported
consumer fraud class action suit over problems with the
company's 65W Power Adapters for iBooks and Powerbooks,
according to the company's May 1, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 29, 2008.
The suit is "Gordon v. Apple Computer, Inc.," and was filed on
Aug. 31, 2006, in the U.S. District Court for the Northern
District of California on behalf of a purported nationwide class
of consumers who purchased 65W Power Adapters for iBooks and
Powerbooks between November 2002 and the present.
The complaint alleges various problems with the 65W Adapter,
including fraying, sparking and premature failure. The
plaintiffs allege violations of California Business &
Professions Code Section 17200 (unfair competition), the
Consumer Legal Remedies Act, the Song-Beverly Consumer Warranty
Act and breach of warranties.
The complaint seeks damages and equitable relief. The company
filed an answer on Oct. 20, 2006, denying the material
allegations and asserting numerous affirmative defenses.
According to the company's latest update on the matter, it has
reached a settlement of the suit and the parties have received
preliminary court approval for the agreement. The parties await
final court approval for the settlement.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
APPLE INC: Oct. 17 Hearing Set in "Branning" Class Certification
----------------------------------------------------------------
The Santa Clara County Superior Court set an Oct. 17, 2008 class
certification hearing for a purported class action suit against
Apple Computer, Inc., which alleges that the company violated
California's trade laws.
The plaintiffs originally filed the purported class action,
styled, "Branning et al. v. Apple Computer, Inc." in the San
Francisco County Superior Court on Feb. 17, 2005.
The initial complaint alleged violations of California Business
Professions Code 17200 (unfair competition) and violation of the
Consumer Legal Remedies Act regarding a variety of purportedly
unfair and unlawful conduct including, but not limited to,
allegedly selling used computers as new and failing to honor
warranties.
The plaintiffs also brought causes of action for
misappropriation of trade secrets, breach of contract, and
violation of the Song Beverly Act. They requested unspecified
damages and other relief.
On May 9, 2005, the court granted the company's motion to
transfer the case to Santa Clara County Superior Court. On
May 2, 2005, the plaintiffs filed an amended complaint adding
two new named plaintiffs and three new causes of action
including a claim for treble damages under the Cartwright Act
(California Business and Professions Code 16700 et seq.), and a
claim for false advertising.
The company filed a demurrer to the amended complaint, which the
court sustained in its entirety on Nov. 10, 2005. The court
granted the plaintiffs leave to amend and they filed an amended
complaint on Dec. 29, 2005.
The plaintiffs' amended complaint adds three additional
plaintiffs and alleges many of the same factual claims as the
previous complaints such as alleged selling of used equipment as
new, alleged failure to honor warranties and service contracts
for the consumer plaintiffs, and alleged fraud related to the
opening of the Apple Retail stores.
The plaintiffs continue to assert causes of action for unfair
competition (17200), violations of the CLRA, breach of contract,
misappropriation of trade secrets, violations of the Cartwright
Act and allege new causes of action for fraud, conversion and
breach of the implied covenant of good faith and fair dealing.
The company filed a demurrer to the amended complaint on
Jan. 31, 2006, which the court sustained on March 3, 2006, on 16
of 17 causes of action.
The plaintiffs filed a further amended complaint on Sept. 21,
2006.
On October 2, 2006, the company filed an answer denying all
allegations and asserting numerous affirmative defenses. On
Nov. 30, 2007, it filed a motion for judgment on the pleadings,
which the court denied.
The plaintiffs filed a Fifth Amended Complaint on March 19,
2008, and a Corrected Fifth Amended Complaint on April 1. The
company filed an answer to the Corrected Fifth Amended Complaint
on April 18, 2008.
The Court has scheduled the class certification hearing on the
purported consumer class for Oct. 17, 2008, according to the
company's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
APPLE INC: Still Faces U.S. & Canadian Lawsuits Over iPod Nanos
---------------------------------------------------------------
Apple, Inc., and its subsidiaries continue to face several
purported class actions in both the U.S. and Canada over its
iPod Nano products, according to the company's May 1, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 29, 2008.
U.S. Federal Action
The suit, "In re Apple iPod Nano Products Liability Litigation,"
consolidates these cases:
-- "Wimmer v. Apple Computer, Inc.;"
-- "Moschella, et al., v. Apple Computer, Inc.;"
-- "Calado, et al. v. Apple Computer, Inc.;"
-- "Kahan, et al., v. Apple Computer, Inc.;"
-- "Jennings, et al., v. Apple Computer, Inc.;"
-- "Rappel v. Apple Computer, Inc.;"
-- "Mayo v. Apple Computer, Inc.;"
-- "Valencia v. Apple Computer, Inc.;"
-- "Williamson v. Apple Computer, Inc.;"
-- "Sioson v. Apple Computer, Inc."
Beginning on Oct. 19, 2005, eight complaints were filed in
various U.S. District Courts and two complaints were filed with
the California State Court, alleging that the Company's iPod
nano was defectively designed so that it scratches excessively
during normal use, rendering the screen unreadable.
The federal actions were coordinated in the U.S. District Court
for the Northern District of California and assigned to Judge
Ronald Whyte pursuant to an April 17, 2006 order of the Judicial
Panel on Multidistrict Litigation.
The plaintiffs filed a First Consolidated and Amended Master
Complaint on Sept. 21, 2006, alleging violations of California
and other states' consumer protection and warranty laws and
claiming unjust enrichment.
The Master Complaint alleges two putative plaintiff classes:
-- all U.S. residents (excluding California residents)
who purchased an iPod nano that was not manufactured
or designed using processes necessary to ensure normal
resistance to scratching of the screen; and
-- all iPod nano purchasers other than U.S. residents who
purchased an iPod nano that was not manufactured or
designed using processes necessary to ensure normal
resistance to scratching of the screen. The Company
answered the Master Complaint on Nov. 20, 2006.
U.S. State Court Action
The two California State Court actions were coordinated on
May 4, 2006, and assigned to the Hon. Carl West in Los Angeles
Superior Court.
The plaintiffs filed a Consolidated Amended Class Action
Complaint on June 8, 2006, alleging violations of California
state consumer protection, unfair competition, false advertising
and warranty laws and claiming unjust enrichment.
The Consolidated Complaint alleges a putative plaintiff class of
all California residents who own an iPod nano containing a
manufacturing defect that results in the nano being susceptible
to excessive scratching. The Company answered the Consolidated
Amended Complaint on Oct. 6, 2006.
The Court has scheduled the class certification hearing on the
purported consumer class for Sept. 26, 2008.
Canadian Cases
Two similar complaints, "Carpentier v. Apple Canada, Inc.," and
"Royer-Brennan v. Apple Computer, Inc. and Apple Canada, Inc.,"
were filed in Montreal, Quebec, Canada on Oct. 27, 2005, and
Nov. 9, 2005, respectively, seeking authorization to institute
class actions on behalf of iPod nano purchasers in Quebec.
The Royer-Brennan file was stayed in May 2006 in favor of the
Carpentier file.
A similar complaint, "Mund v. Apple Canada Inc.," and "Apple
Computer, Inc.," was filed in Ontario, Canada on Jan. 9, 2006
seeking authorization to institute a class action on behalf of
iPod nano purchasers in Canada.
Apple Canada, Inc. and Apple Computer, Inc. have served Notices
of Intent to Defend.
Apple, Inc. -- http://www.apple.com/-- formerly Apple Computer,
Inc., designs, manufactures and markets personal computers and
related software, services, peripherals and networking
solutions. It also designs, develops and markets a line of
portable digital music players along with accessories, including
the online sale of third-party audio and video products.
BECO BABY: Recalls Infant Carriers Posing Fall Hazard
-----------------------------------------------------
Beco Baby Carrier Inc., of Newport Beach, Calif., in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 2,000 Beco Baby Butterfly Carriers.
The company said the buckles on the carrier shoulder straps can
unexpectedly release tension, causing the strap to slip through,
posing a fall hazard to the baby.
Beco has received eight reports of the carrier straps slipping
through the shoulder buckles. No injuries have been reported.
The recalled infant carriers were sold under brand name "Beco
Baby Carrier Butterfly." The carriers have a black label with a
green "b" logo on the left side and a butterfly on the right
side. The label is sewn on the outside of the carrier. The
following carrier styles are included in the recall: Mia, Pony
Express, Carnival, Addison, Ethan, Sophia, Cameron, Ava and
Joshua.
These recalled infant carriers were manufactured in the USA and
Dominican Republic and were being sold at specialty retail
stores nationwide and internet sites from January 2008 through
February 2008 for about $140.
A picture of the recalled infant carrier is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08253.jpg
Consumers are advised to immediately stop using the carriers and
contact Beco Baby Carrier to receive instructions for returning
the carriers for repair.
Consumers should contact Beco Baby Carrier Inc. toll-free at
888-943-8232/9-GET-BECO between 10:00 a.m. and 4:00 p.m. PT
Monday through Friday, or visit the firm's Web site at
http://www.becobabycarrier.com
BROWN HARRIS: Sued for Refusing Renters with Children
-----------------------------------------------------
A couple has sued real estate firm Brown Harris Stevens Brooklyn
in federal court for repeatedly refusing to rent them a home
because they have a child, AHN News reports.
According to the report, Jamie Katz and Lisa Nocera filed the
class action lawsuit last month against the Brooklyn firm over
housing discrimination. The suit asks the court to compel the
firm -- known as the city's oldest and most respected realtor
-- to train its brokers to comply with anti-discrimination laws.
The suit also seeks unspecified damages.
The plaintiffs claim that the firm's broker refused to let them
see an apartment in Brooklyn Heights in 2006 because Ms. Nocera
was expecting. The broker told them the owner did not want to
rent the place to a family with children, the report notes,
citing the New York Times.
The following year, another broker from the firm agreed to show
the couple an apartment in Park Slope and accepted a credit
check from them only to be told later by the same broker that
the owner would not rent to families with children. The couple,
by then, had a baby.
A third rejection in Brooklyn Heights, according to AHN News,
came a few weeks later with the broker citing lead paint, which
is a health risk to children, as the reason why the couple was
turned away.
The non-profit group Fair Housing Justice Center verified the
complaint by sending undercover testers to the Brooklyn Heights
apartment. One tester who pretended to have a child was
rejected by the broker and another tester who claimed to be
childless was shown the apartment.
The report says that the firm's head office in Manhattan
declined to comment about the suit. The owners, who were not
part of the suit, told the New York Times that they had not told
Brown Harris to refuse to rent to families with children.
DENTSPLY INT'L: Still Faces Suit Over Declared Uses of Cavitron
---------------------------------------------------------------
DENTSPLY International, Inc., continues to face a purported
class action suit alleging that the company's Cavitron(R)
ultrasonic scalers was sold in breach of contract and warranty.
The company allegedly misrepresented the potential uses of the
product because it cannot deliver potable or sterile water.
On Dec. 12, 2006, Carole Hildebrand, D.D.S., and Robert Jaffin,
D.D.S., filed a complaint against the company in the U.S.
District Court for the Eastern District of Pennsylvania. The
complaint seeks a refund of the purchase price paid for Cavitron
scalers and asserts putative class action claims on behalf of
dentists located in New Jersey and Pennsylvania.
The plaintiffs have filed their request for class certification
to which the company has filed its response, according to the
company's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
The suit is "Hilderbrand, et al. v. Dentsply International, et
al., Case No. 2:06-cv-05439-RBS," filed with the U.S. District
Court for the Eastern District of Pennsylvania, Judge R. Barclay
Surrick presiding.
Representing the plaintiff is:
Alan Klein, Esq. (aklein@duanemorris.com)
Duane Morris LLP
30 South 17th St.
Philadelphia, PA 19103-4196
Phone: 215-979-1000
Fax: 215-979-1020
Representing the defendants is:
Richard G. Placey (rplacey@mmwr.com)
Montgomery, Mccracken, Walker & Rhoads, LLP
123 S. Broad St., 24th Floor
Philadelphia, PA 19109
Phone: 215-772-7424
Fax: 215-772-7620
DOWNEY SAVINGS: Still Faces "Holman" Labor Case in California
-------------------------------------------------------------
Downey Savings and Loan Assoc., F.A., a subsidiary of Downey
Financial Corp., remains a defendant in a purported class action
filed by two former traditional branch employees in Los Angeles
Superior Court, California.
The suit was filed on Oct. 29, 2004, under the caption, "Margie
Holman and Alice A. Mesec, et al. v. Downey Savings and Loan
Association, Case No. BC323796."
The complaint seeks unspecified damages for alleged unpaid
regular and overtime wages and bonuses, inadequate meal and rest
breaks, and related claims.
The plaintiffs are seeking class action status to represent all
other current and former Downey Savings employees who held the
position of Customer Service Supervisor and Customer Service
Representative at Downey Savings' in-store branches at any time
from Oct. 29, 2000, to date.
The company reported no further development in the case at its
May 1, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31,
2008.
Downey Financial Corp. -- http://www.downeysavings.com/-- is a
savings and loan holding company. Downey Savings and Loan
Association is the Company's wholly owned subsidiary. The
Company is also involved in real estate investments. Its
banking activities focus on attracting funds from the general
public and institutions and obtaining borrowings; originating
and investing in loans, primarily residential real estate
mortgage loans, investment securities and mortgage-backed
securities, and originating and selling loans to investors in
the secondary markets.
FIRST FRANKLIN: Faces California Suit Over Illegal Penalties
------------------------------------------------------------
First Franklin Financial Corp. is facing a class-action
complaint filed with the Superior Court of the State of
California, County of San Diego, alleging that it illegally
charged a pre-payment penalty for refinancing, CourtHouse News
Service reports.
Named plaintiff Maria De Jesus Rosas brings this action pursuant
to the California Civil Code Section 1781 (Class Action under
Consumer Legal Remedies Act) and the Code of Civil Procedure
Section 382 on behalf of California citizens who have been
wrongfully charged a pre-payment penalty in a refinancing
transaction on real property by First Franklin or its authorized
agents, subsidiaries, or other entities under its control.
The plaintiff asks the court for:
-- an order certifying the proposed class under
California Code of Civil Procedure Section 382 and
California Civil Code Section 1781, in appointing Ms.
Rosas and her counsel of record to represent the class;
-- an order requiring Franklin to notify each affected
class member and the general public of the wrongful
conduct to which they have been subjected;
-- an order requiring Franklin to provide an accounting
of all monies that it may have received as a result of
the acts and practices found to constitute unfair
competition under California Business and Professions
Code Section 17200 et seq. and California Civil Code
Section 1750 et seq.;
-- an order requiring Franklin to restore any money or
property that it may have acquired as a result of any
act or practice constituting unfair competition under
California Business and Professions Code Section 17200
et seq.;
-- any additional Orders necessary to restore to the
general public any money or property that defendant may
have acquired as a result of any act or practice
constituting unfair competition under California
Business and Professions Code Section 17200 et seq.,
including the appointment of a receiver pursuant to
California Business and Professions Code Section 17203;
-- distribution of any residuals from money recovered
on behalf of the general public or the class or
similarly situated consumers as provided in California
Code of Civil Procedure Section 384;
-- permanent injunctive relief preventing Franklin from
engaging in any act or practice constituting unfair
competition under California Business and Professions
Code Section 17200 et seq.;
-- disgorgement and restitution of the full value of
all benefits and enrichment Franklin has obtained, and
continues to obtain, at the expense of plaintiff and
each member of the class;
-- the return of all money unlawfully charged to
plaintiff and the class members and all interest
accumulated thereon, by imposition of a constructive
trust;
-- damages suffered by plaintiff and members of the
class;
-- penalties of up to $5,000 in addition to the other
damages for seniors and persons with disabilities
pursuant to California Civil Code Section 1780;
-- punitive damages;
-- prejudgment interest; and
-- attorney fees and costs.
The suit is "Maria De Jesus Rosas et al. v. First Franklin
Financial et al., Case No. 37-2008-00053418-CU-BT-NC," filed in
the Superior Court of the State of California, County of San
Diego.
Representing the plaintiff are:
J. Michael Vallee, Esq.
Law Offices of J. Michael Vallee
603 N. Highway 101, Suite G
Solana Beach, CA 92075
Phone: 858-755-6477
Fax: 858-755-0785
- and -
Darrell J. Palmer, Esq.
Law offices of Darrell Palmer
603 N. Highway 101, Suite A
Solana Beach, CA 92075
Phone: 858-792-5600
Fax: 858-792-5655
FUNTASTIC: Recalls Fake Teeth for Lead Paint Standard Breach
------------------------------------------------------------
FUNTASTIC, of Houston, Texas, in cooperation with the U.S.
Consumer Product Safety Commission, is recalling about 26,000
Hillbilly Teeth.
The company said the gray surface paint on the teeth contains
excessive levels of lead, violating the federal lead paint
standard. No injuries have been reported.
This recall involves a 2-pack fake Hillbilly Teeth with item #
2657. The item number is printed on the packaging. The gums
are brown and the teeth are yellow.
These recalled hillbilly teeth were manufactured in China and
were being sold at grocery, drug, convenience, and mass
retailers nationwide from March 2005 through March 2008 for
about $2.
A picture of the recalled hillbilly teeth is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08247.jpg
Consumers are advised to immediately take the recalled toy away
from children and contact FUNTASTIC for information on receiving
a refund.
For additional information, contact FUNTASTIC at 800-434-5207
between 9:00 a.m. and 5:00 p.m. CT Monday through Friday or
visit the company's Web site: http://www.funtastictoy.com/
GUIDANT CORP: Shareholders Amend Indiana Securities Complaint
-------------------------------------------------------------
Plaintiffs and former shareholders of Guidant Corporation (now
part of Boston Scientific Corporation (NYSE:BSX)) in the "In re:
Guidant Corporation Securities Litigation, Case No. 05-1658,"
pending in the United States District Court for the Southern
District of Indiana, have filed a motion requesting that the
Court reconsider its recent order dismissing the investor
class's claims.
The plaintiffs' motion to file another complaint and continue
with the class-action lawsuit is based on new information that
has come to light as to certain Guidant executives' knowledge of
safety concerns with Guidant defibrillators between December 15,
2004, through October 18, 2005, inclusive.
The lawsuit centers on investor claims that Guidant executives
entered into a scheme that artificially inflated the price of
Guidant's stock and entered into a merger agreement with Johnson
& Johnson that was predicated on false representations about the
safety of Guidant's medical devices. The false statements and
omissions related to potentially deadly defects in thousands of
Guidant's implantable medical devices, including its
defibrillators and pacemakers.
The lawsuit further claims that these misrepresentations enabled
company insiders to reap enormous personal gains on the sale of
their Guidant stock at artificially inflated prices.
The suit seeks class-action status for those investors who
bought Guidant stock during the Class Period.
For more information, contact:
Scott+Scott, LLP
Phone: 800-404-7770
860-537-5537
e-mail: scottlaw@scott-scott.com
ILLINOIS: Residents File Lawsuit Over $200 I-PASS Fines
-------------------------------------------------------
Marvin and Cheri Kushner, of Buffalo Grove-area, filed a lawsuit
seeking class-action status after they were fined more than $200
on April 10, 2008, for toll violations over the last 10 years,
Joseph Ryan writes for the Daily Herald.
The lawsuit claims the toll enforcement system violates
constitutional protections for due process largely because the
Kushners couldn't get through to toll operators on "multiple
occasions" after receiving the fines.
According to the Kushners' attorney, Daniel Edelman, Esq., the
tollway alleges the Kushners used a car that was not registered
to their I-PASS, causing the violations.
The suit estimates more than 2 million violations were recorded
in the 13-month span and asserts that once letters started going
out "many of the notices were erroneous."
The suit claims notices were "erroneous" because the tollway
allegedly had problems linking credit cards to accounts and
properly identifying license plates with enforcement cameras.
Tollway spokeswoman Joelle McGinnis said the Kushners' account
has been updated and the fines have been waived.
To contact Mr. Edelman:
Daniel A. Edelman, Esq.
Edelman, Combs, Latturner & Goodwin, LLC
120 South LaSalle Street, 18th Floor
Chicago, IL 60603-3403
Phone: 312-739-4200
Fax: 312-419-0379
Web site: http://www.edcombs.com/
JETBLUE AIRWAYS: Logan Airport Skycaps Sue Over $2-Per-Bag Fee
--------------------------------------------------------------
JetBlue Airways Corporation skycaps working at Logan
International Airport have filed a class action suit in the U.S.
District Court for the District of Massachusetts claiming that
the airline's new $2-per-bag fee for luggage checked curbside
violates state law and is cutting into their tips, Donna
Goodison of the Boston Herald reports.
Curbside check-in allows airline passengers to avoid dragging
their luggage into an airport terminal and long lines at check-
in counters.
According to the lawsuit, JetBlue -- which assessed the $2 fee
for a time in 2006 -- announced in February that it would again
start charging the fee at Logan and other airports.
The lawsuit contends that their take-home pay has dramatically
decreased because fewer passengers are willing to tip them on
top of paying the $2 fee, and many passengers are unaware that
the fee goes to JetBlue and its third-party contractor.
According to Boston Herald's Ms. Goodson, a JetBlue spokesman
declined comment.
Based in Forest Hills, New York, JetBlue Airways Corporation
(Nasdaq:JBLU) -- http://www.jetblue.com/-- is a passenger
airline that provides customer service on point-to-point routes.
As of Feb. 14, 2007, JetBlue operated approximately 502 daily
flights. The company serves 50 destinations in 21 states,
Puerto Rico, Mexico and the Caribbean. The company operates a
fleet of 98 Airbus A320 and 23 Embraer 190 aircrafts. The
company's operations primarily consists of transporting
passengers on its aircraft, with domestic United States
operations, including Puerto Rico, accounting for approximately
97.1% of its capacity during the year ended Dec. 31, 2006.
LG TELECOM: Mobile Users Sue Over Information Leak
--------------------------------------------------
LG Telecom is facing a class action suit for leaving its
customer records open on the Internet between 2005 and March
2008, The Korea Times reports.
According to Korea Times, some 120 mobile users have signed up
to file a lawsuit since April 11, after the police found a Web
site showing the names, resident registration numbers, mobile
phone types and dates of contract signing of LG Telecom
subscribers.
The report relates that LG Telecom became the latest among a
number of companies that have faced similar charges in South
Korea regarding personal information leaks. The report cites
Internet shopping mall Auction, which has faced two massive
lawsuits from its members after hackers stole IDs, passwords,
phone numbers and shopping logs of some 10 million customers in
February 2008.
Moreover, as reported in the Class Action Reporter on May 2,
2008, subscribers of South Korean broadband and fixed-line
operator Hanarotelecom (KSE:033630) launched a class-action
lawsuit against the company amid allegations that former
management officials were involved in illegally selling customer
information in the past.
"We are angered that a large company such as LG Telecom has
exposed customers' private information. To change this loose
attitude of companies, victims must join forces and protest,"
lawyer Park Jin-sik, of Next Law, who is also representing
clients in the suit against Auction, told Korea Times.
Korea Times says that LG Telecom accepted responsibility, though
the data was found to have been leaked from a partner's Web
site.
"We understand there was a weak point (in the system), and we
will fulfill our duty in accordance with the court's ruling," an
LG Telecom spokesman, who refused to be identified, told Korea
Times. "We are considering suing the Web site as a warning sign
to all our subcontractors."
Korea Times recounts that in previous cases of customer
information leaks, companies compensated each plaintiff up to
KRW500,000. However, it is hard to estimate how much money and
to how many people LG Telecom will have to pay because of
controversies surrounding the case.
The police said that LG Telecom had provided the data to Mshop,
an online shop, which needed to identify the customers' phone
type to sell ring tones, Korea Times notes. The police said
there were no proper security measures in the process, and an
unidentified insider found an Internet link by which anyone
could see resident registration numbers and phone types by
entering a phone number.
Korea Times points out that the method had been circulating on
the Web since 2005 though not many people knew of it. In March,
a 29-year-old computer programmer made a simple Web page, which
had easy access to the database. Some 200 visitors, mostly the
programmer's friends and colleagues, used the page. One of them
reported it to the police, who then charged the programmer --
identified only by his surname, Kang -- and advised the
Broadcasting and Communications Commission to fine LG Telecom
for its lax privacy policy.
Meanwhile, Mr. Kang, pleaded not guilty, claiming that he only
made a gateway to the information which was already widely
exposed on the Internet, according to Korea Times.
"The police misunderstood the case. They do not know the basics
of computer databases," he told Korea Times in a phone call,
adding that others found the same method by using Google.
The police, however, denounced Mr. Kang's explanation, saying
that for programmers, it was as good as being exposed because
they could see how it worked, but that for ordinary people, it
was not exposed.
Lieutenant Kim Tae-hoon, of Cyber Terror Response Center, told
Korea Times in a phone interview that, "It wasn't a very serious
crime case given the range of information that was leaked. But
he cannot avoid the charge for leaking resident registration
numbers of others."
Mr. Park said that all 8 million LG Telecom subscribers can join
the lawsuit, even though he does not know how many were victims
of the leak since 2005.
Headquartered in Kangnam-gu, Seoul, South Korea, LG Telecom Ltd.
-- http://www.lgtelecom.com/-- is a telecommunications and
mobile phone operator controlled by the LG Group, one of the
country's largest chaebol. It is Korea's smallest wireless
operator. LG Telecom became one of the first companies to launch
a commercial 3G service using PCS technology. In 1997, this was
followed up by launching the second PCS network, offering
greatly increased data transmission speeds. LG Telecom also
offers a variety of internet services. BankOn is one of the most
popular mobile banking services in South Korea and Musicon is a
popular instant messenger.
MICHAELS STORES: Recalls Pens for Lead Paint Standard Breach
------------------------------------------------------------
Michaels Stores Inc., of Irving, Texas, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
310,000 Flower Writers; Christmas Writers; Easter Writers; and
Spooky Writers Seasonal Writing Pens.
The company said the seasonal writing pens' surface coating
contains high levels of lead, violating the federal lead paint
standard. No injuries have been reported.
The recalled pens were sold individually as one of four-series
pens including Flower Writer; Christmas Writer; Easter Writer
and Spooky Writer. Each pen has themed decorations including
flowers, Christmas, Easter and Halloween ornamentation.
These recalled seasonal writing pens were manufactured in China
and were being sold at Michaels retail stores nationwide from
August 2007 through March 2008 for about $1.
A picture of the recalled seasonal writing pens is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08248.jpg
Consumers are advised to stop using the recalled pens
immediately and return them to any Michaels store to receive a
refund.
For additional information, contact Michaels' customer service
at 800-642-4235/(800) MICHAELS between 8:00 a.m. and 5:00 p.m.
CT Monday through Friday, or visit the firm's Web site at
http://www.michaels.com/
MOHAWK INDUSTRIES: Class Status Denial in "Williams" Appealed
-------------------------------------------------------------
The plaintiffs in the matter "Williams, et al. v. Mohawk
Industries, Inc. Case No. 4:04-cv-00003-HLM," are appealing to
the U.S. Court of Appeals for the 11th Circuit a ruling by the
U.S. District Court for the Northern District of Georgia that
denied their motion for class certification, according to the
Mohawk's May 1, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
Four plaintiffs filed the suit in January 2004. The case
purports that the plaintiffs are former and current employees of
the company and that the actions and conduct of the company,
including the employment of persons who are not permitted to
work in the U.S., have damaged them and the other members of the
purported class by suppressing the wages of the company's hourly
employees in Georgia (Class Action Reporter, March 27, 2008).
The plaintiffs seek a variety of relief, including:
-- treble damages;
-- return of any allegedly unlawful profits; and
-- attorney's fees and costs of litigation.
According to the original complaint, the company sent its
employees "to the U.S. border, including areas near Brownsville,
Texas, to recruit undocumented aliens that recently entered the
U.S. in violation of federal law" and transport them to North
Georgia. The suit also alleges that Mohawk employees and other
recruiters provided these illegal immigrants with housing and
found them jobs with the company. It even charges that although
some of the illegal workers were arrested, Mohawk's supervisors
helped others evade detection.
Additionally, the suit claims that even though the company fired
several illegal immigrants after discovering them among its work
force during internal audits, it soon rehired them under
different names. It claims that the company destroyed documents
in an effort to conceal the fact that it employed illegal
workers.
One of the company's objectives, the suit alleges, was to
inflate the size of the pool from which it hires hourly workers,
thereby depressing wages. Another was to reduce the number and
expense of workers' compensation claims, since "illegal
employees are unlikely to file," the suit states.
In February 2004, the Company filed a motion to dismiss the
complaint, which was denied by the District Court in April 2004.
Following appellate review, the case has been returned to the
District Court and discovery is proceeding.
On Dec. 18, 2007, the plaintiffs filed a motion for class
certification, which the Company opposed. The District Court
denied the suit class certification.
The plaintiffs then appealed the decision to the U.S. Court of
Appeals for the 11th Circuit on March 17, 2008. Discovery has
been stayed at the District Court while the appeal is pending.
The suit is "Williams, et al. v. Mohawk Industries, Case No.
4:04-cv-00003-HLM," filed with the U.S. District Court for the
District of North Georgia, Judge Harold L. Murphy presiding.
Representing the plaintiffs are:
Bobby Lee Cook, Esq. (LisaDodd@alltel.net)
Cook & Connelly
P.O. Box 370
Summerville, GA 30747-0370
Phone: 706-857-3421
- and -
Ronan P. Doherty, Esq. (doherty@bmelaw.com)
John Earl Floyd, Esq. (floyd@bmelaw.com)
Nicole G. Iannarone, Esq. (iannarone@bmelaw.com)
Joshua F. Thorpe, Esq. (thorpe@bmelaw.com)
Bondurant Mixson & Elmore
1201 West Peachtree St., N.W.
3900 One Atlantic Ctr.
Atlanta, GA 30309-3417
Phone: 404-881-4100
Representing the defendants are:
Steven Thomas Cottreau, Esq. (scottreau@sidley.com)
Juan P. Morillo, Esq. (jmorillo@sidley.com)
Virginia A. Seitz, Esq. (vseitz@sidley.com)
Sidley Austin Brown & Wood
1501 K. St., NW
Washington, DC 20005
Phone: 202-736-8000
- and -
R. Carl Cannon, Esq. (ccannon@constangy.com)
Rosemary C. Lumpkins, Esq. (rlumpkins@constangy.com)
Constangy Brooks & Smith
230 Peachtree St., N.W.
2400 Peachtree Center Tower
Atlanta, GA 30303-1557
Phone: 404-525-8622
N.Y. LOTTERY DIVISION: Lottery Customers Ripped Off, Suit Claims
----------------------------------------------------------------
A lawsuit filed in the U.S. District Court in Manhattan on
May 5, 2008, claims that the New York State Division of Lottery
is tricking people into playing its Take Five lottery game by
exaggerating the likelihood of winning, according to Newsday.
Newsday relates that the lawsuit said people were cheated of
more than $5 million. It seeks unspecified damages and an order
that puts a stop to the "rip-off." The suit also seeks class
action status.
The plaintiff in the lawsuit was identified as M. McKee, a
resident of Richmond County, Newsday says. The lawsuit called
her an "especially avid purchaser of tickets for Take Five" and
thus a target of a massive advertising campaign across
television, radio and print.
The lawsuit said Ms. McKee was tricked by the advertising that
promised a one-in-nine chance of winning, when the actual most
likely result is what is called a "Quick Pick Free Play." The
complaint pointed out that "Quick Pick Free Play" amounts to
another chance to hit two of the game's five numbers, drawn
daily from 39 different numbers. The lawsuit said the actual
odds of winning a cash prize was 1-in-109, a sixth place prize
of an average of $7.
According to the lawsuit, despite this, the advertising boasts
that there are 100,000 winners in the game every day. The
filing seeks to hold liable some of the merchants who sell
lottery tickets, saying they were complicit in the fraud.
"The odds are very well detailed for all our games," John
Charlson, a spokesman for the state Lottery Division, shared
with Newsday. "The clear message is that the one-in-nine odds
definitely includes winning a Free Play, and that's conveyed in
our brochure and on our Web site."
NIGERIAN GOV'T: Bakassi Natives Throw NGN456-Billion Lawsuit
------------------------------------------------------------
Prominent natives of the Bakassi Peninsula, in Nigeria, have
filed a class action lawsuit before a federal high court in
Abuja, demanding compensation from the federal government over
what they called "compulsory" ceding of their ancestral home to
Cameroon, Vanguard reports.
The Vanguard report notes that the plaintiffs in the case are
led by two ex-chairmen of the Bakassi local government -- Chief
Emmanuel Etene and Hon. Ani Esin -- along with six others.
Vanguard's Ise-Oluwa Ige writes that the plaintiffs ask the
court to enter an order stopping the Federal Government from
remitting funds due to Bakassi local government to Cross River
State. They are also urging the court to restrain the
government from relocating the administrative headquarters of
Bakassi from Abana to any other place.
In addition, the plaintiffs also asked for an order stopping the
Federal Government from ceding the remaining parts of Bakassi
(Abana and Atabong Zones) to Cameroon.
Named as defendants in the lawsuit are Nigerian President Umaru
Yar'Adua, the National Assembly, the Attorney-General of the
Federation, the Governor of Cross Rivers and the Cross Rivers
State House of Assembly. The other defendants are the National
Boundary Commission, the Federal Ministry of Finance, the
Central Bank of Nigeria and the Revenue Mobilisation, Allocation
and Fiscal Commission.
The suit, filed at the registry of the Abuja division of the
Federal high court, seeks NGN356 billion in compensation from
the government for the compulsory ceding of the plaintiffs'
ancestral homes and land and their source of livelihood to
Cameroon in an unconstitutional manner.
The suit also seeks NGN100 billion in damages for the
infringement of the plaintiffs' human rights to dignity, to
acquire and own immovable property and right to self
determination.
The plaintiffs said that they rejected the resettlement of the
affected people to the newly created New Bakassi.
"The creation of the New Bakassi Local Government by legislative
fiat and the relocation of the headquarter without compliance
with Constitutional provision is inchoate," they said. "The
said New Bakassi is already inhabited by people other than
Bakassi people, and the inhabitants are hostile to the Bakassi
refugees."
The plaintiffs also said that the New Bakassi is landlocked and
ideal for farmers and not fishermen like them, according to
Vanguard.
The plaintiffs therefore seek the order of the court "directing
the respondents to resettle them at Nsutana Iyata in Cross
Rivers State or any other area, location in the State where they
may choose by way of plebiscite or referendum."
The plaintiffs contended that the 206,000 citizens of Bakassi
are entitled to be protected and catered to by the government.
They alleged that the Cameroon authority -- to which the
government has left their fate -- has a history of imposing
undue taxes, molesting, assaulting and killing Nigerian citizens
in Bakassi.
"The choice of remaining as Nigerians in Cameroon as offered by
the Green Tree Agreement is no choice at all, moreover, when
Nigeria government will not have authority over the people in
Bakassi after August 11, 2008," they said in their complaint.
PEDERNALES ELECTRIC: Court Okays Settlement in Member-Led Suit
--------------------------------------------------------------
State district Judge John Dietz approved the proposed settlement
in a class action lawsuit against Pedernales Electric
Cooperative after more than 200 objections were filed by
members, Claudia Grisales writes for American-Statesman.
Case Background
The Class Action Reporter reported on May 21, 2007, that a Texas
customer filed a class action lawsuit against the officers of
PEC in the 200th Texas District Court of Travis County alleging
"flagrant breaches of fiduciary duty that have gone
uninterrupted for decades" amongst PEC's leadership.
The suit further alleged that PEC overpays its managers in
breach of fiduciary duty to its members and that the
cooperative's officers are too secretive in their financial
dealings.
Jan Soifer, Esq., filed the class action suit on behalf of Lee
Beck Lawrence, a co-operative member since 1994, and others in
similar situation. The suit named 19 PEC officers and
directors.
The suit sought damages of all "excessive compensation and
benefits and all improper expenditures" and "exemplary damages
based on malice and/or malfeasance."
The CAR report noted that PEC, at that time, had about 213,000
members and had estimated assets in excess of $1 billion in
2006. It reportedly had revenues of about $413 million and paid
executive compensation of $829,000 in 2005. The lawsuit also
sought removal of the entire board of directors, reduction in
executive compensation, return of dividends to members and other
governance changes.
According to a subsequent CAR report on April 24, 2008, the
excessive compensation issue at PEC had led to the forced
testimony of top PEC executives -- including Bennie Fuelberg,
Will Dahmann and former board president W.W. "Bud" Burnett. All
three resigned after revelations about the pay of and perks
enjoyed by co-op executives and directors.
The Settlement
The April 24, 2008 CAR recounted that on Jan. 7, 2008, the day
after $700,000 in credit card charges by the defendants during a
five-year period were revealed, Judge Dietz ordered both sides
of the suit to enter settlement talks that he mediated,
virtually ending discovery in the case.
On March 10, 2008, the parties in the case reached the initial
settlement terms, pursuant to which the co-op's officials have
agreed to provide, if the money is available, $23 million in
credits to members over a five-year period. The settlement also
provides for an ongoing financial and governance review by
Navigant Consulting Inc., as well as releases the co-op's
officials, employees and consultants from personal civil
liability on claims relating to the lawsuit, such as negligence.
Moreover, the settlement will also provide for up to $4 million
in attorneys' fees and plaintiffs' costs, including $1.4 million
which is not covered by the co-op's insurance firm and will be
paid directly out of co-op funds. Up to five individually named
plaintiffs will be eligible for a "bonus" payment, to be
determined by the court.
The Navigant Investigation
In January last year, PEC had rejected lawmakers' request for
the state auditor's office to review the co-op's books and
selected its own firm -- Navigant -- to perform the audit.
The lawmakers and the co-op agreed earlier in April 2008 that
Navigant will report its findings to the Public Utility
Commission first, creating an intermediary role for the state
agency. The state auditor's office, however, will review and
comment on the findings, which could be available as early as
this summer or late this year.
Settlement Objections
The previous CAR report stated that members of the class in the
case opposed the proposed settlement because the agreement could
exempt PEC officials from accountability for any wrongful
actions that may have occurred.
Two legal experts who reviewed the 33-page settlement document
previously told American-Statesman that the settlement gives the
co-op's old regime -- including its entire board of directors
and Mr. Fuelberg and Mr. Dahmann -- full immunity from civil
actions brought by members, even if an ongoing review
by Navigant eventually finds evidence of negligence or breach of
fiduciary duties.
"The settlement will bind the corporation and end all its rights
against these various officers and directors who are the
defendants," said John Coffee, a law professor and expert in
corporate law at Columbia University. It also helps protect the
defendants from recovery of any money they received from
Pedernales.
The co-op's members may receive small credits on their electric
bills as part of the settlement. But "you are not getting any
personal contribution from any of the defendants," Mr. Coffee
said. "The individual defendants are escaping liability."
Settlement Approval
"There is not going to be an answer that satisfies everybody,"
Judge Dietz told about 35 people in his courtroom during the
settlement approval hearing. "This was a settlement in the true
meaning of the word, where each side had to forgive a little of
its position."
According to American-Statesman, Judge Dietz's order approving
the settlement caps a tumultuous period for the Johnson City-
based member-owned utility, which is the largest in the country
with 223,000-plus members. The co-op still faces legislative
and criminal inquiries.
The settlement becomes final 30 days after the approval, unless
a co-op member files a motion for a new trial or appeals the
ruling.
PENNSYLVANIA PORT AUTHORITY: Police Union Sues for Overtime Pay
---------------------------------------------------------------
A federal lawsuit was filed by the Port Authority Transit Police
Association on behalf of officers who are not paid for some of
their work hours, including having to remain on duty through
meal breaks and other mandatory unpaid policies, Jim Ritchie
writes for the Pittsburgh Tribune-Review.
The union representing the Port Authority police says that
officers are not getting time to eat and claims that the transit
agency, which operates its own police force, is violating the
Fair Labor Standards Act and owes officers overtime pay.
Tribune-Review notes that Port Authority spokesman David Whipkey
declined to comment on the matter.
SUTTER HEALTH: To Improve Facility for Disabled to Settle Suit
--------------------------------------------------------------
Sutter Health will greatly improve accessibility and patient
care for people with disabilities at its hospitals and other
health care facilities under a settlement to a class-action
lawsuit, Oakland Tribune reports.
According to Oakland Tribune, the settlement agreement calls for
sweeping changes in hospital policies, architecture, equipment,
staff and contractor training and outreach at 28 Sutter Health
hospitals located across Northern California. The changes, the
report notes, are tailored for patients with mobility, visual,
hearing and speech disabilities.
Oakland Tribune recalls that the class-action suit was filed in
2005 by Disability Rights Advocates who asserted that the Sutter
network of hospitals and medical foundations failed to provide
access for disabled people as required by the Americans with
Disabilities Act.
"We spoke to people throughout California who have never had a
thorough medical exam, because practitioners exam them in their
wheelchairs," Linda Dardarian, Esq., of Goldstein, Demchak,
Baller, Borgen and Dardarian, who represented the plaintiffs,
told Oakland Tribune. "Sutter has committed that will no longer
be the case," she said.
One of the ground-breaking aspects of the plan is the call for
medical equipment specially designed for people with
disabilities, Melissa Kasnitz, of the Disability Rights
Advocates, shared with Oakland Tribune. "Most hospital scales
can't accommodate wheelchairs," which hinders determination of
medication dosage based on weight, Ms. Kasnitz added. Women in
wheelchairs have been denied mammograms because of the machine's
configuration.
"The problems we identified with Sutter Health early on were by
no means unique to them," Ms. Kasnitz said. "There's a long way
to go, and the strides that Sutter committed to taking will
really put them in the forefront."
Bonnie George of Sutter Health also told Oakland Tribune that it
will take 10 years for the hospitals to implement all the
changes, with the architectural improvements taking the longest.
Some aspects of the plan are already under way, including
facility assessments and employee training.
Of the Bay Area's three major health care networks, Sutter
Health is the second taking strides to comply with the American
Disabilities Act, the report notes. In 2001, Disability Rights
Advocates and Kaiser Permanente reached a similar settlement,
although Sutter's is much more detailed, Ms. Kasnitz said.
The report says that the proposed settlement is now awaiting
final approval from the Alameda County Superior Court.
TOSHIBA AMERICA: Faces Ohio Suit Over Defective Video Recorders
---------------------------------------------------------------
Toshiba America Consumer Products, LLC, is facing a class-action
complaint in the U.S. District Court for the Southern District
of Ohio over alleged defective video recorders, CourtHouse News
Service reports.
The complaint claims that since 2004, Toshiba has sold D-R550
digital video recorders with defective memory systems that lose
data and require constant reprogramming, and it concealed the
defects and refuses to fix it.
Named plaintiff Jason Asp brings this nationwide class action
for actual damages, equitable relief (including restitution,
injunctive relief, and disgorgement of profits), civil
penalties, punitive damages, and all other available relief on
behalf of himself and all similarly situated individuals and
entities who own or have owned a Toshiba D-R550 Digital Video
Recorder.
The plaintiff and the class claim that they have been harmed as
a result of Toshiba's design, manufacture, distribution and sale
of defective DVRs.
The plaintiff brings this action pursuant to Federal Rules of
Civil Procedure 23(a), (b)(2) and (b)(3) on behalf of all
persons in the United States of America, its territories, and
the District of Columbia who are purchasers and end-users of a
Toshiba DVR.
Mr. Asp wants the court to rule on:
(a) whether the DVRs contain a common design and
manufacturing defect;
(b) whether the DVRs are substantially certain to
prematurely fail;
(c) whether the DVRs are of merchantable quality;
(d) whether the defect in the DVRs are a material fact
reasonable purchasers would have considered in deciding
whether to purchase a DVR;
(e) whether Toshiba knew and was reckless in not knowing
of the defect in the DVRs;
(f) whether Toshiba concealed from and failed to
disclose to plaintiff and the class the defect in the
DVRs;
(g) whether Toshiba had a duty to plaintiff and the class
to disclose the defect in the DVRs;
(h) whether Toshiba's concealment of and failure to
disclose the defect induced plaintiff and the class to
act to their detriment by purchasing defective DVRs;
(i) whether Toshiba's active concealment of and failure
to disclose the true nature of the DVRs was likely to
mislead or deceive, and therefore violated New Jersey's
Consumer Fraud Act;
(j) whether Toshiba's active concealment of and failure
to disclose the true nature of the DVRs is unfair and
therefore violated New Jersey's Consumer Fraud Act;
(k) whether Toshiba has breached its express warranty on
the DVRs;
(l) whether Toshiba should be declared financially
responsible for notifying all class members of the
defective DVRs and for the costs and expenses of repair
and replacement of all such defective components
therein;
(m) whether plaintiff and the class are entitled to
compensatory damages, and the amount of such damages;
(n) whether, as a result of Toshiba's actions, plaintiff
and the class are entitled to civil penalties and
punitive damages, and the amount of such damages;
(o) whether Toshiba should be enjoined from engaging in the
methods acts or practices alleged; and
(p) whether Toshiba should be ordered to refund, for the
benefit of the class, all moneys Toshiba acquired from
the unlawful sale of defective DVRs and replacement
components.
The plaintiff asks the court for:
-- an order certifying the proposed class under
Federal Rule of Civil Procedure 23(a), (b)(2) and
(b)(3) and appointing the plaintiff and his counsel of
record to represent the class;
-- an order that Toshiba permanently enjoined from
engaging in the unlawful activities and practices
complained of;
-- an order awarding a refund of all moneys acquired
by Toshiba by means of its unlawful, unfair and
fraudulent practices complained of;
-- an order imposing a constructive trust for the
benefit of plaintiff and the class members upon all
moneys acquired by Toshiba by means of its unlawful,
unfair and fraudulent practices complained of;
-- declaratory relief as the court deems appropriate;
-- attorneys' fees and costs of suit, including expert
witness fees;
-- an order awarding pre-judgment and post-judgment
interest as prescribed by law;
-- actual and punitive damages plus interest thereon;
and
-- such other further relief as the court may deem
just and proper.
The suit is "Jason Asp et al. v. Toshiba America Consumer
Products, LLC., Case No. C@ 08 0427," filed with the U.S.
District Court for the Southern District of Ohio.
Representing the plaintiffs are:
David P. Meyer, Esq. (dmeyer@dmlaws.com)
Matthew R. Wilson, Esq. (mwilson@dmlaws.com)
Marnie C. Lambert, Esq. (mlambert@dmlaws.com)
David P. Meyer & Associates Co. LPA
1320 Dublin Road, Suite 100
Columbus, Ohio 43215
Phone: 614-224-6000
Fax: 614-224-6600
TXI RIVERSIDE: Faces California Lawsuit for Causing Illnesses
-------------------------------------------------------------
TXI Riverside Cement is facing a class-action complaint filed in
the Riverside County Superior Court (California) claiming the
cement plant is responsible for residents' illnesses ranging
from cancer to skin irritation, David Danelski of The Press-
Enterprise reports.
Two and a half weeks ago, regional air-quality officials
disclosed that dust from the plant contained unacceptable levels
of hexavalent chromium, the report says.
According to a California Air Resources Board fact sheet, in
sufficient amounts, the chemical can cause cancer, respiratory
problems, kidney failure and skin rashes, among other ailments.
Air district representatives, who traced the contaminated dust
to TXI, have said the risk near the plant is about 500 cases of
cancer per million people. Air district rules allow a risk of
no more than 25 cases per million for any one factory or
facility. The district has cited the plant for violations and
ordered TXI to control the dust.
The lawsuit was filed as a class action to include anyone who
believes they have been affected by contamination from the
cement plant.
The suit claims that people have been stricken with numerous
cancers, kidney and liver injuries, airway and sinus irritation
and skin problems.
The lawsuit demands that the cement plant owners pay unspecified
damages, as well as the cost of medical tests for people
affected by toxic releases from the cement plant.
Frank Sheets, communications and government affairs manager for
TXI's California operations, read a company statement, saying,
"We are unaware of any scientific or other factual basis for the
claims made in the lawsuit.
"We are working with the South Coast Air Quality Management
District and our experts to get a better understanding of the
situation. The Crestmore plant has long been a part of this
community, and the health and safety of our employees and the
neighborhood is very important to us."
Mr. Sheets stressed that air-district officials found the cancer
risk to be no worse than living next to a freeway or railroad
yard.
A court hearing is scheduled for Nov. 6, 2008.
TYCO INTERNATIONAL: Settles Securities Lawsuit in N.J. for $73MM
----------------------------------------------------------------
Tyco International Ltd. agreed to pay $73.25 million to settle a
lawsuit filed in 2002 by the state of New Jersey, claiming that
several state pension funds had lost value due to mismanagement
of the company, Brendan Pierson of Portfolio Media reports.
On December 13, 2004, lead plaintiff Mark Newby filed a
consolidated securities class action complaint purporting to
represent a class of purchasers of TyCom securities between July
26, 2000 and December 17, 2001.
Named as defendants in the suit are:
-- Tyco International Ltd.,
-- TyCom, Ltd.,
-- Goldman Sachs & Co.,
-- Merrill Lynch, Pierce, Fenner & Smith, Incorporated,
-- Citigroup, Inc., and
-- certain former Tyco and TyCom executives.
The complaint asserted causes of action under Sections 11 and 15
of the Securities Act of 1933 and under Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder against Tyco, TyCom, Goldman Sachs,
Merrill Lynch, Citigroup and certain former Tyco and TyCom
executives.
The complaint alleged the TyCom registration statement and
prospectus relating to the sale of TyCom securities were
inaccurate, misleading and failed to disclose facts necessary to
make the registration statement and prospectus not misleading.
The complaint also alleged the defendants violated securities
laws by making materially false and misleading statements and
omissions concerning, among other things, executive
compensation, Tyco's and TyCom's finances and TyCom's business
prospects.
On February 18, 2005, the Company moved to dismiss the
consolidated securities class action complaint. On September 2,
2005, the U.S. District Court for the District of New Hampshire
granted in part and denied in part the Company's motion to
dismiss. The Court granted the Company's motion to dismiss
allegations that the TyCom registration statement and prospectus
were misleading to the extent that they failed to disclose
alleged looting of Tyco by former senior executives, accounting
fraud, analyst conflicts and the participation by James Brennan
in the offering, because plaintiff failed to plead that those
alleged omissions were disclosed during the class period, with a
resultant drop in the value of TyCom stock.
However, the Court denied the Company's motion to dismiss with
respect to other allegations. On September 19, 2005, plaintiff
filed a motion for reconsideration of the Court's September 2,
2005 ruling with respect to Goldman Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith, Incorporated and Citigroup. Inc.
On January 6, 2006, the Court held that the Goldman Sachs,
Merrill Lynch, Pierce Fenner and Citigroup should remain in the
case on the claim concerning TyCom's business prospects, but
that the Section 11 claim related to alleged looting of Tyco by
former senior executives was dismissed as to both the Tyco
defendants and the Underwriters because the affirmative defense
of lack of loss causation was apparent on the face of the
complaint. On Jan. 13, 2006, Tyco International and TyCom
answered the consolidated securities class action complaint
(Class Action Reporter, Feb. 14, 2006).
On April 30, 2008, Tyco agreed to pay $73.25 million to settle
the lawsuit. In exchange for the settlement, New Jersey will
dismiss its claims against Tyco, some of its former directors,
and one of its former employees.
Since Tyco was split into three companies in June 2007, Tyco
International itself will pay only about $20 million, while Tyco
Electronics will pay about $23 million and Covidien will pay
about $31 million.
Tyco International Ltd. -- http://www.tyco.com/-- is a global,
diversified company that provides vital products and services to
customers in five business segments: Fire & Security,
Electronics, Healthcare, Engineered Products & Services, and
Plastics & Adhesives. With 2004 revenue of $40 billion, Tyco
employs approximately 250,000 people worldwide.
WAL-MART: Recalls Charm Key Chains Due to Lead Exposure Risks
-------------------------------------------------------------
Wal-Mart Stores Inc., of Bentonville, Ark., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
12,000 "Hip Charm" Key Chains.
The company said the charms on the key chain can contain high
levels of lead, which is toxic if ingested and can cause adverse
health effects.
The Illinois Attorney General informed Wal-Mart and CPSC on
April 16, 2008, that the key chain was found in the home of a 9-
month-old child who was discovered to have high blood-levels of
lead. The child was observed mouthing this key chain.
The recalled key chain -– which were imported by FGX
International Inc., of Smithfield, R.I. -- has several charms
including a button, clover, leaf, heart and a sand dollar. The
charms hang from a silver-colored chain. The words "Hip charm"
and UPC (#31568 11017) are printed on the product's packaging.
These recalled key chains were manufactured in China and were
being sold at Wal-Mart stores nationwide from April 2005 through
April 2008 for about $6.
A picture of the recalled key chains is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08250.jpg
Consumers are advised not to allow children to handle the key
chain and return it to any Wal-Mart store for a full refund.
For further information, contact Wal-Mart at 800-925-6278
between 7:00 a.m. and 9:00 p.m. CT Monday through Friday, or
visit the firm's Web site: http://www.walmartstores.com/
* Stacey Fishbein Joins Administration Division of A.B. Data
------------------------------------------------------------
Jerry Benjamin, Co-Managing Director of A.B. Data, Ltd.,
disclosed that Stacey Fishbein, Esq., has joined the firm as
account executive, and that the firm has launched its new West
Palm Beach, Florida office.
"Ms. Fishbein comes to A.B. Data with significant experience
litigating class actions. The addition of Ms. Fishbein to A.B.
Data's Class Action Administration Division, along with the
addition of a Florida office, is the latest step in our
commitment to providing unparalleled service to our clients,"
Mr. Benjamin said.
With the addition of Ms. Fishbein, A.B. Data's Class Action
Administration Division now has four former class action
attorneys on its senior management team.
From 2000 to 2006, Ms. Fishbein was an associate with Labaton
Sucharow LLP, where she represented individual and institutional
investors in complex class actions involving both consumer and
securities fraud. During her tenure at Labaton Sucharow, Ms.
Fishbein played a key role in securing settlements in a number
of high profile class actions, including
-- El Paso Corporation Securities Litigation ($285
million);
-- In re Vesta Insurance, Group, Inc. Securities Litigation
(partial recovery of $78 million);
-- Romig v. Jefferson-Pilot Life Insurance Company ($55.3
million); and
-- In re Phoenix Leasing Limited Partnership Litigation
($21.7 million).
In addition, Ms. Fishbein actively litigated several actions,
including:
-- In re Take Two Interactive Software Securities
Litigation,
-- Topel v. Reliastar Life Insurance Company,
-- Werner v. Interprise Technology Partners,
-- In re Pricesmart Securities Litigation and
-- Goldman v. Metropolitan Life Insurance Company.
In the year prior to joining A.B. Data, Ms. Fishbein worked at
LexisNexis as primary liaison for Columbia Law School,
developing and implementing marketing strategies and adult
learning concepts in the academic market.
Ms. Fishbein maintains a strong commitment to pro bono work.
During the 2004 presidential election, she served as a non-
partisan election monitor in New York, has served as a guardian-
ad-litem, and has provided assistance to the Lawyers' Committee
for Civil Rights Under Law. Ms. Fishbein was also actively
involved with the Unemployment Action Center where she
represented indigent individuals seeking unemployment benefits
before administrative law judges.
Ms. Fishbein earned a B.A. from the State University of New York
College at Geneseo, where she graduated with honors. She
received her J.D. from Hofstra University School of Law in May
2000, where she served as Research Editor of the Hofstra Law
Review. Ms. Fishbein also served as judicial intern to
Magistrate Judge E. Thomas Boyle in the U.S. District Court of
the Eastern District of New York. She is admitted to practice
in the State of New York and before the United States District
Courts for the Southern and Eastern Districts of New York.
For more information, contact:
Stacey Fishbein, Esq. (Stacey.Fishbein@abdata.com)
Account Executive
A.B. Data, Ltd.
325 Clematis Street #316
West Palm Beach, FL 33401
Phone: 561-202-8147
Web site: http://abdatalawserve.com
- and -
Jerry Benjamin (yitz@abdata.com)
Co-Managing Director
A.B. Data, Ltd.
8050 North Port Washington Road
Milwaukee, Wisconsin 53217
Phone: 414-963-6451
Web site: http://abdatalawserve.com
New Securities Fraud Cases
CBEYOND INC: Gardy & Notis Files Securities Lawsuit in Georgia
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Gardy & Notis, LLP has commenced a class action lawsuit in the
United States District Court for the Northern District of
Georgia on behalf of all purchasers of Cbeyond, Inc. securities
during a class period of November 1, 2007, to February 21, 2008.
The lawsuit charges Cbeyond and its founder, Chairman, President
and CEO, James Geiger, with violating Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, and certain rules
thereunder.
The case alleges that beginning on November 1, 2007, the
defendants made specific misstatements designed to hide the fact
that Cbeyond was recording a higher churn rate for its services,
which permitted certain of Cbeyond's officers and directors to
engage in insider sales of $39 million of Cbeyond stock at
artificially inflated prices. Shortly thereafter, Cbeyond was
forced to admit on February 21, 2007, that it elected to make
certain operational changes that caused its churn rate to climb
even higher, contrary to its prior representations. Cbeyond's
stock price dropped 20% on this shocking news.
The plaintiff seeks to recover damages on behalf of himself and
all other individual and institutional investors who purchased
or otherwise acquired Cbeyond securities between November 1,
2007, and February 21, 2008, excluding defendants and their
affiliates.
For more information, contact:
Mark C. Gardy, Esq. (mgardy@gardylaw.com)
Dustin P. Mansoor, Esq. (dmansoor@gardylaw.com)
Gardy & Notis, LLP
440 Sylvan Avenue, Suite 110
Englewood Cliffs, New Jersey 07632
Phone: 201-567-7377
Fax: 201-567-7337
Web site: http://www.gardylaw.com
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via e-mail to carconf@beard.com are encouraged.
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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.
*********
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Class Action Reporter is a daily newsletter, co-published by
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USA. Glenn Ruel Senorin, Janice Mendoza, Freya Natasha Dy, and
Peter Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
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