/raid1/www/Hosts/bankrupt/CAR_Public/080512.mbx
C L A S S A C T I O N R E P O R T E R
Monday, May 12, 2008, Vol. 10, No. 93
Headlines
AK STEEL: Seeks Supreme Court Review of "West" Payment Order
AK STEEL: Faces Ohio Suit Over Anthem Insurance Demutualization
AMERICAN BUSINESS: Class Members Notified of Noteholders Suit
AMERICAN HONDA: Recalls ATVs Due to Loss of Steering Control
BLUEHIPPO: Gateway Added as Defendant in Overpricing Lawsuit
CBEYOND INC: Intends to Vigorously Defend GA Securities Lawsuit
DEWALT INDUSTRIAL: Recalls Table Saws Due to Laceration Hazard
FINOVA GROUP: 4th Circuit Denies Dismissal Appeal in "Thaxton"
FREMONT RIDEOUT: Sued for Violating Work Week & Meal Break Rules
GLAXOSMITHKLINE: Court Certifies Wellbutrin Antitrust Lawsuit
GREENFIELD ONLINE: Settles Connecticut Securities Fraud Case
HCC INSURANCE: Settles Texas Securities Fraud Suit for $10 Mln.
IHOP CORP: Discovery Still Ongoing in "Fast" Litigation
KYODO AMERICA: Recalls Lawn Mowers Due to Laceration Hazard
MERCK & CO: Bernard Gross Refiles Pa. Securities Suit in N.J.
MIDWAY GAMES: Seeks Dismissal of Illinois Securities Fraud Suit
NETFLIX INC: California Court Affirms Judgment in "Chavez" Case
PANERA BREAD: Faces Two Securities Fraud Lawsuits in Missouri
PANERA BREAD: Faces Labor-Related Lawsuit in California
PANERA BREAD: Faces California Labor Code Violations Lawsuit
PRISON HEALTH: Pa. Court Mulls Motion in Physician's Litigation
QWEST COMMS: Continues to Face Multiple Rights-of-Way Lawsuits
QWEST COMMS: Amended Complaint Filed in Insurance Benefit Suit
REDDY ICE: May 29 Hearing Set For Motions in Packaged Ice Suits
REDDY ICE: Texas Court Considers Dismissal of GSO Merger Lawsuit
RIDLEY INC: Continues to Face BSE Claims in Canadian Courts
SHELL OIL: Awaits Court Approval of $16MM Gas-Fume Settlement
SHIPPING LINES: Faces Antitrust Lawsuit in Puerto Rico
SONIC SOLUTIONS: California Shareholder Suit Complaint Amended
STARTEK INC: Court Dismisses Certain Claims in Securities Suit
TELUS CORP: Canadian Court Certifies Access Fee Suit in 2007
THINK BIG: Hammocks Sold by LivingXL Recalled Due to Fall Hazard
TIER TECHNOLOGIES: Virginia Court Throws Securities Fraud Suit
UNITED WESTERN: California Court Affirms "Munoz" Case Dismissal
New Securities Fraud Cases
CBEYOND INC: Brian Felgoise Files Georgia Securities Fraud Suit
*********
AK STEEL: Seeks Supreme Court Review of "West" Payment Order
------------------------------------------------------------
AK Steel Corp. is asking the U.S. Supreme Court to review a
decision handed down in the class action, "West v. AK Steel
Retirement, et al.," wherein the company was ordered to pay more
than $46 million to plaintiffs in the case.
On Jan. 2, 2002, John D. West, a former employee, filed the
class action suit in the U.S. District Court for the Southern
District of Ohio against the AK Steel Corporation Retirement
Accumulation Pension Plan and the AK Steel Corporation Benefit
Plans Administrative Committee.
Mr. West claims that the method used under the AK RAPP to
determine lump sum distributions does not comply with the
Employment Retirement Income Security Act of 1974 and resulted
in underpayment of benefits to him and the other class members.
The District Court ruled in favor of the plaintiff class and on
March 29, 2006, entered an amended final judgment against the
defendants in the amount of $37.6 in damages and $7.3 in
prejudgment interest, for a total of approximately $44.9, with
post judgment interest accruing at the rate of 4.7% per annum
until paid.
The defendants appealed to the U.S. Court of Appeals for the
Sixth Circuit. On April 20, 2007, a panel of the Court of
Appeals issued an opinion in which it affirmed the decision of
the District Court.
On Aug. 15, 2007, the defendants filed a motion to stay the
issuance of a mandate pending the filing of a petition for
certiorari. On Aug. 28, 2007, the Court of Appeals granted the
motion.
On Nov. 16, 2007, the defendants filed a petition for certiorari
with the U.S. Supreme Court. That petition remains pending.
The suit is "West v. AK Steel Retirement, et al., Case No. 1:02-
cv-00001-SSB-TSB," filed with the U.S. District Court for the
Southern District of Ohio, Judge Sandra S. Beckwith, presiding.
Representing the plaintiffs is:
Thomas R. Theado, Esq.
Gary, Naegele & Theado, LLC
446 Broadway
Lorain, Ohio 4405
Phone: 216-244-4809
Fax: 440-244-3462
Representing the company is:
Robert Wick, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, District of Columbia 20004-2401
Phone: 202-662-6000
Fax: 202-662-6291
AK STEEL: Faces Ohio Suit Over Anthem Insurance Demutualization
---------------------------------------------------------------
AK Steel Holding Corp. is facing a purported class action that
was filed in the U.S. District Court for the Southern District
of Ohio in connection to the demutualization of Anthem Insurance
Cos., Inc., according to the company's May 5, 2008 Form 10-Q
filing with the U.S. Securities and exchange Commission for the
quarter ended May 5, 2008.
On Dec. 12, 2007, two individuals filed the purported class
action suit against AK Steel Holding, AK Steel, Anthem Insurance
and others, under th caption, "Green et al v. AK Steel Holding
Corporation et al., Case No. 1:07-cv-01002."
The complaint alleges that the plaintiffs are entitled to
compensation arising from the demutualization of Anthem in 2001.
On March 20, 2008, AK Holding and AK Steel filed their answer to
the complaint. No trial date has been set.
The suit is "Green et al v. AK Steel Holding Corporation et al.,
Case No. 1:07-cv-01002," filed with the U.S. District Court for
the Southern District of Ohio, Judge Michael R. Barrett,
presiding.
Representing the plaintiffs are:
Eric H. Zagrans, Esq. (eric@zagrans.com)
474 Overbrook Road
Elyria, OH 44035
Phone: 440-452-7100
Fax: 440-914-9601
Representing the defendants are:
Stephanie S. Bisselberg, Esq. (Bisselberg@taftlaw.com)
Taft Stettinius & Hollister
425 Walnut Street
Suite 1800
Cincinnati, OH 45202-3957
Phone: 513-357-9367
Kent Allen Britt, Esq. (kabritt@vssp.com)
Vorys Sater Seymour & Pease
221 E Fourth Street
Suite 2100
Cincinnati, OH 45201-0236
Phone: 513-723-4000
Fax: 513-723-4054
- and -
Adam P. Hall, Esq. (ahall@fbtlaw.com)
Frost Brown Todd LLC
201 E 5th Street
Cincinnati, OH 45202-4182
Phone: 513-651-6800
AMERICAN BUSINESS: Class Members Notified of Noteholders Suit
-------------------------------------------------------------
The law firm of Berger & Montague, P.C. notifies potential class
members in a suit filed in the Eastern District of Pennsylvania
on behalf of all purchasers of subordinated notes of American
Business Financial Services, Inc.
The class would include all persons who purchased noted of ABFS
between Jan. 18, 2002, and Jan. 20, 2005, and still owned their
notes as of Jan. 20, 2005. The class is limited to all persons
who suffered damage as a result of their purchase of notes,
pursuant to registration statements, including prospectuses,
that became effective on or about Oct. 16, 2001, Oct. 3, 2002
and Nov. 7, 2003.
Several securities fraud lawsuits, including that of Shepherd
Finkelman Miller & Shah, were filed against ABFS. The lawsuit
seeks to recover on behalf of investors who bought the Company's
subordinated notes pursuant to materially false and misleading
prospectuses and registration statements, which violated
Sections 11 and 12 of the Securities Act of 1933.
Specifically, the Complaint alleges that, at the end of 2004,
the Company stopped paying principal and interest on maturity
and stopped honoring checks written on ABFS money market
accounts. On December 23, 2004, the Company issued a press
release stating that it was unable to make any payments on the
Company's notes as they became due and on January 21, 2005, the
Company announced that it had filed for bankruptcy protection.
On March 30, 2005, the various cases against ABFS were
consolidated and the lead plaintiff and counsel were appointed
in this action. Following further investigation by lead
counsel, an amended consolidated complaint was filed on Nov. 16,
2005.
On February 16, 2006, the defendants filed a motion to dismiss
this action and on April 3, 2006, the plaintiffs submitted their
opposition. On January 9, 2007, the Court granted in part and
denied in part the defendants' motion to dismiss.
The following is a brief summary of the Court's decision:
-- the defendants' dismissal motion was granted with
respect to the plaintiffs' claims based on delinquency
rates, as barred by the statute of limitations;
-- the defendants' motion was granted with respect to the
plaintiffs' claim based on ABFSs strong credit
culture. The Court found that ABFSs use of this phrase
did not result in a substantial likelihood that
investors would allow it to unduly affect their opinion
of the stock;
-- the Court denied the defendants' motion to dismiss the
plaintiffs' claims based on the abilities of ABFS to
repay the Notes, finding that the plaintiffs had
adequately pled this allegation;
-- the Court denied the defendants' motion to dismiss the
plaintiffs' claim, which alleges that ABFS lacked
adequate internal controls. The Court found that the
plaintiffs properly pled allegations concerning internal
Controls;
-- the Court denied the defendants' motion with respect to
the plaintiffs' Section 12 claims, stating that the
plaintiffs properly pled these claims;
-- the Court upheld the plaintiffs' claims for rescission
of a contract against defendants Santilli and Mandia.
The plain language of Section 20 provides that control
persons can be found liable for the Securities Act
violations of the companies they control; and
-- the Court found that the plaintiffs' control person
claim states a viable securities fraud claim and refused
to dismiss the plaintiffs' control person claim for
failure to allege culpable participation in their
complaint.
On March 19, 2006, the defendants filed their answer to the
plaintiffs' Complaint. The plaintiffs' Motion for Class
Certification was filed on April 16, 2007. On June 5, 2007, the
defendants filed a Motion for Judgment on the Pleadings for
purposes of seeking dismissal of plaintiffs' claims based on
ABFS's ability to repay notes and internal controls (Counts I
and II), Count III regarding claims under Section 15 of the
Securities Act of 1933, and Count VI regarding claims under
Section 15a and 29 of the Exchange Act of 1934.
The plaintiffs responded on July 2, 2007. Shepherd Finkelman
said at its Web site that the defendants' Motion was granted in
part and denied in part on July 26, 2007. Specifically, the
defendants' motion was granted as to the plaintiffs' Section 12
solicitation claims. The Court has allowed the plaintiffs to
amend their claims to conform to the "Bell Atlantic Co. V.
Twombly 127 S. Ct 1955 (2007)" Standard. The defendants' motion
was denied as to all other claims (Class Action Reporter,
Sept. 26, 2007).
Deadline to file for exclusion from the class is on June 16,
2008.
The suit is "In Re: American Business Financial Services, Inc.
Noteholders Litigation, Docket Number: 05-CV-00232," filed with
the Eastern District of Pennsylvania, Judge Thomas N. O'Neill,
Jr., presiding.
Representing the plaintiffs are:
Berger & Montague PC
1622 Locust Street
Philadelphia, PA, 19103
Phone: 800-424-6690
Fax: 215-875-4604
e-mail: investorprotect@bm.net
Klafter & Olsen LLP
2121 K St., NW Suite 800
Washington, DC, 20037
Phone: 202-261-3553
Fax: 202-261-3533
e-mail: info@klafterolsen.com
Law Offices of Bernard M. Gross
1515 Locust Street, 2nd Floor
Philadelphia, PA, 19102
Phone: 215-561-3600
Fax: 215-561-3000
e-mail: bmgross@bernardmgross.com
Law Offices of Charles J. Piven, P.A.
World Trade Center-Baltimore
401 East Pratt Suite 2525
Baltimore, MD, 21202
Phone: 410-332-0030
e-mail: pivenlaw@erols.com
Squitieri & Fearon LLP
420 5th Avenue, 18th Floor
New York, NY, 10018
Phone: 212-575-2092
Fax: 212-575-2184
e-mail: lee@sfclasslaw.com
AMERICAN HONDA: Recalls ATVs Due to Loss of Steering Control
------------------------------------------------------------
American Honda Motor Co. Inc., of Torrance, Calif., in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 1,400 Model Year 2008 Honda TRX500 ATVs.
The company said the electric power steering shaft of the
recalled ATVs could break unexpectedly, resulting in the rider's
losing steering control. This poses a risk of injury or death
to riders. No incidents or injuries have been reported.
This recall involves Model Year 2008 Honda TRX500 ATVs equipped
with electric power steering, also known as the Honda FourTrax
Foreman 4X4 with electric power steering. The adult-size ATVs
are designed for use by riders age 16 and older. The ATVs are
available in red, black, olive, white, and camouflage. "Honda"
and wing logo are printed on the fuel tank and "TRX500" is
printed on the side panel just below the seat.
These recalled ATVs were manufactured in the United States and
were sold by Honda ATV dealers nationwide from October 2007
through March 2008 for between $6,850 and $7,400.
A picture of the recalled ATVs is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08570.jpg
Consumers are advised to stop using these recalled ATVs
immediately and contact any Honda ATV dealer to make an
appointment for a free repair. Registered owners of the
recalled ATVs have been sent direct notices.
For additional information, consumers can contact Honda toll-
free at 866-784-1870 between 8:30 a.m. and 5:00 p.m. PT Monday
through Friday, or visit the company's Web site:
http://www.powersports.honda.com
BLUEHIPPO: Gateway Added as Defendant in Overpricing Lawsuit
------------------------------------------------------------
Judge Jeffrey White has ruled that Gateway, which exclusively
provided computers to BlueHippo Funding LLC for years, can be
added as a defendant in a class action lawsuit against the
computer layaway company, ConsumerAffairs.com reports.
"A third party does not have a duty to report another's tortious
activity. But neither does a third party have a right to aid
and abet another in a tortious activity and profit from it by
providing substantial assistance," Judge White stated in his
ruling.
According to ConsumerAffairs.com, the class action lawsuit seeks
restitution for thousands of California BlueHippo customers who
paid thousands of dollars for overpriced merchandise and in many
cases received nothing.
"The indications we have so far is that for most of the period
BlueHippo has been in business, around two-thirds of the
customers never received anything for the money that they paid,"
David Marshall, Esq., the lead counsel on the case, said. "(It
is) one of the most bold-faced scams that I've ever seen as a
consumer lawyer."
The Class Action Reporter reported on October 10, 2006, that
BlueHippo faces two class action suits in Maryland and
California over allegations that it delays shipments on products
it offers, unfairly bills customers, and refuses to give refunds
for products never delivered.
The California suit is "Roylene Ray v. BlueHippo Funding," which
was filed in the U.S. District Court for the Northern District
of California on March 8, 2006. The suit was filed by
California residents Roylene Ray and Kelly Cannon, who are
accusing the computer sales company of engaging in an elaborate
scheme to violate a host of state consumer protection laws.
According to the lawsuit, the company uses deceptive television
ads and telephone sales pitches to trick low-income consumers
into paying exorbitant prices for computers they never get.
The company claims to make "top-of-the-line" computer
"affordable" without a credit check, but the suit charges that
unsuspecting customers actually end up making weekly payments
for one year, paying $2000 or more for a low-end model the
consumer could buy elsewhere for $500.
The suit alleges that the company collects several months of
payments before shipping the customer a computer, and delays
shipment for several more months if the customer misses a single
payment. It also alleges that the company uses a deceptive "no
refund" policy to deny customers the ability to terminate the
contract and get any money back -- even if the company never
delivers them a computer.
The plaintiffs seek class-action status for all Californians who
paid money to the company but received nothing in return.
The California suit is seeking a declaration that the defendants
acts are unlawful, unfair and fraudulent, special damages,
punitive damages, monetary damages, temporary and permanent
injunction against the practice, among others.
Gateway's Role
The latest installment to the class action suit could make
Gateway partially responsible for allowing BlueHippo to
advertise its involvement with Gateway and use its logos to
legitimize the offer, Mr. Marshall said.
"There are consumers that we've talked to who said they would
have never bought a computer from BlueHippo if they hadn't
believed it was a legitimate operation and that was shown in
part by the fact that BlueHippo touted its relationships with
manufactures and suppliers, used the Gateway name in its
advertisements for a long period of time. And we believe that
that had the effect to lure people into very unconscionable
deals," Mr. Marshall further shared.
ConsumerAffairs.com notes that court documents indicated that
Gateway had an exclusive deal with BlueHippo from December 2003
to "some time in early 2007."
ConsumerAffairs.com also cites Gateway spokesman David Hallisey
as having admitted in an interview with BusinessWeek a year ago
that Gateway knew about BlueHippo's business practices. "We've
clearly been aware of their business model from the get-go," Mr.
Hallisey told the business magazine. He also said that the
reason Gateway severed ties with BlueHippo was to "make profit."
According to ConsumerAffairs.com, BlueHippo no longer has an
exclusivity deal and sells computers from Apple, Hewlett-Packard
and Lenovo. Mr. Marshall said he believes BlueHippo buys the
computers on a per-sale basis and has no contracts with the
manufacturers.
Mr. Marshall told ConsumerAffairs.com that he and his team will
spend the next few months in discovery. "We plan to pursue both
companies aggressively in the discovery process, obtaining
documents that reveal the specific practices of BlueHippo and
its dealings with customers -- the number of people BlueHippo
has gotten money from and not provided computers to -- as well
as the relationship between Gateway and BlueHippo.”
Mr. Marshall further said that he does not believe the companies
will try to settle the lawsuit before discovery can take place,
a practice companies often rely on to block consumer lawyers
from discovering and releasing secret documents. "We plan to
press ahead with the litigation and hold BlueHippo responsible
to pay back the money that it has taken from consumers and if we
show that Gateway is liable then to hold Gateway responsible in
some proportion or some percentage of that," he added.
BlueHippo is also at the center of investigations by the state
attorneys general in Florida, West Virginia and Illinois and has
settled fines with the Maryland attorney general and Federal
Trade Commission in the past year, ConsumerAffairs.com notes.
Representing the plaintiffs are:
David John Marshall, Esq. (marshall@kmblegal.com)
Katz, Marshall & Banks, LLP
1718 Connecticut Ave., N.W. Sixth Floor
Washington, DC 20009
Phone: 202-299-1140
Fax: 202-299-1148
Sylvia M. Sokol, Esq. (ssokol@sturdevantlaw.com)
The Sturdevant Law Firm
475 Sansome Street, Suite 1750
San Francisco, CA 94111
Phone: 415-477-2410
Fax: 415-477-2420
Web site: http://www.sturdevantlaw.com/
Representing the defendants are:
William N. Hebert, Esq. (whebert@klng.com)
Edward P. Sangster, Esq. (esangster@klng.com)
Kirkpatrick & Lockhart Nicholson Graham, LLP
630 Hansen Way
Palo Alto, CA 94304
Phone: 650-798-6700
415-249-1000
Fax: 650-798-6701
415-249-1001
CBEYOND INC: Intends to Vigorously Defend GA Securities Lawsuit
---------------------------------------------------------------
Cbeyond, Inc. (NASDAQ:CBEY), a leading IP-based managed services
provider to small businesses, intends to vigorously defend the
Company and its Chairman against a class action lawsuit that the
Company believes is meritless.
The lawsuit, which was filed on May 6, 2008, against the Company
and the company's chairman and chief executive officer, James F.
Geiger, in the United States District Court for the Northern
District of Georgia, alleges that the Company violated certain
United States securities laws by understating customer churn
between November 1, 2007, and February 21, 2008.
Cbeyond, Inc. (NASDAQ:CBEY) – http://www.cbeyond.net/-- a
leading IP-based managed services provider that delivers
integrated packages of communications and IT services to more
than 36,000 small businesses throughout the United States.
Cbeyond offers more than 30 productivity-enhancing applications
including local and long-distance voice, broadband Internet,
mobile, BlackBerry(R), broadband laptop access, voicemail,
email, web hosting, fax-to-email, data backup, file-sharing and
virtual private networking. Cbeyond manages these services over
a private, 100-percent Voice over Internet Protocol (VoIP)
facilities-based network.
DEWALT INDUSTRIAL: Recalls Table Saws Due to Laceration Hazard
--------------------------------------------------------------
DEWALT Industrial Tool Co., of Towson, Md., in cooperation with
the U.S. Consumer Product Safety Commission, is recalling about
13,000 DEWALT DW744 Jobsite Table Saws.
The company said the pivot bracket on the saw can separate which
can misalign the blade and the fence and cause kick back. This
poses a laceration hazard to consumers.
DEWALT has received one reported incident of the table saw's
blade misaligning. No injuries have been reported.
This recall involves the 10 inch DEWALT jobsite table saw model
number DW744. Date codes included in the recall are 200715
through 200740. The table saws are yellow and black. The model
number and date code are located on the name plate on the front
of the saw. Table saws with an "X" stamped on the name plate by
the date code are not included in this recall.
These recalled saws were manufactured in Mexico and were being
sold at major home centers and hardware stores nationwide from
April 2007 through January 2008 for about $500.
A picture of the recalled saws is found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08259.jpg
Consumers are advised to immediately stop using the recalled
table saws and contact DEWALT for the location of a service
center to obtain a free replacement table saw.
For additional information, contact DEWALT toll-free at 888-
742-9178 between 8:00 a.m. and 5:00 p.m. ET Monday through
Friday, or visit the firm's Web site: http://www.dewalt.com
FINOVA GROUP: 4th Circuit Denies Dismissal Appeal in "Thaxton"
--------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit denied an
appeal regarding the dismissal of a purported federal class
action filed against FINOVA Group, Inc., in connection with the
sale of Thaxton Life Partners, Inc.' notes, 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.
On Feb. 14, a group of noteholders of Thaxton Life filed a suit
against the company and FINOVA Capital. The suit purports to be
a class action filed on behalf of approximately 150 Thaxton Life
noteholders with claims related to approximately $20 million in
Thaxton Life notes.
The suit alleges that, in connection with Thaxton Life's sale of
its notes, the company, FINOVA Capital, and several other
defendants participated in a civil conspiracy, violated the
South Carolina Unfair Trade Practices Act, violated the civil
Racketeer Influenced and Corrupt Organizations Act statute, and
were unjustly enriched. In its various counts, the suit seeks
actual, treble, and punitive damages.
The TLP Action was filed in the South Carolina Court of Common
Pleas of Lancaster County, Sixth Judicial Circuit, and was
removed on Feb. 6, 2007, to the U.S. District Court for the
District of South Carolina.
Upon motion by the Company and FINOVA Capital to the District
Court seeking an order compelling such arbitration, the District
Court granted the relief sought and entered an order dismissing
the action on May 30, 2007.
On June 19, 2007, the plaintiffs appealed such order to the U.S.
Court of Appeals for the Fourth Circuit.
Furthermore, on June 29, 2007, the plaintiffs filed an
arbitration demand with the American Arbitration Association.
On Aug. 16, 2007, the Company and FINOVA Capital filed a
response to the arbitration demand denying any liability.
On Dec. 20, 2007, the plaintiffs' appeal was denied by the
Fourth Circuit. On Jan. 23, 2008, a petition for rehearing by
the plaintiffs was also denied by the Fourth Circuit.
Per the arbitration schedule, a hearing on the merits of the TLP
Action is not expected until later in the third quarter of 2008.
The Finova Group, Inc. -- http://www.finova.com/-- is a
financial services holding company that provided a range of
financing and capital markets products, primarily to mid-size
businesses through its principal operating subsidiary, FINOVA
Capital Corporation. The Company's business activities have
been limited to maximizing the value of its portfolio through
the orderly collection of assets. The orderly collection of
assets includes collection efforts pursuant to underlying
contractual terms, negotiation of prepayments and sales of
assets or collateral. The Company has substantially completed
the liquidation of its portfolio and its focus has shifted to
the continued wind down of its operations and future dissolution
of its entities.
FREMONT RIDEOUT: Sued for Violating Work Week & Meal Break Rules
----------------------------------------------------------------
A class-action lawsuit was filed against Fremont Rideout Health
Group claiming that the hospital has been violating the
alternative work week and meal breaks for its employees since
2004, Appeal-Democrat reports.
The complaint was filed in the Yuba County Superior Court in
April by Fremont Rideout employees David Cook and Glenn Green on
behalf of registered nurses, licensed vocational nurses, monitor
technicians and respiratory therapists.
The suit claims that the hospital reduced pay when shifts for
nurses and technicians changed from the typical 40-hour week to
a 36-hour week, known as the alternative week, the complaint
states. The complaint also alleges that the hospital denied
plaintiffs "overtime pay, meal periods and rest periods as
required by law. Defendants failed to provide a true and
accurate itemized statement of reduction of hours and wages, and
failed to timely pay wages."
Bill Kershaw, Esq., who represents the plaintiffs, told Appeal-
Democrat that the shift change and the way the hospital operates
does not allow nurses to take state-mandated breaks by the fifth
hour. The hospital requires nurses to follow doctors on rounds,
but those rounds may not start until four hours into a nurse's
shift.
"You can't get lunch by the fifth hour if you are on rounds that
take two to three hours," Mr. Kershaw said. He added that
nurses also have not been given the additional breaks required
by the state for shifts of more than eight hours.
Employees are asking for compensation for the cut wages and
repayment of all missed meal breaks with interest.
The report relates that hospital officials said they are aware
of the complaint, but have not been served with documents.
Tresha Moreland, vice president of human resources for the
hospital, told Appeal-Democrat that the hospital does not
comment on pending litigation.
GLAXOSMITHKLINE: Court Certifies Wellbutrin Antitrust Lawsuit
-------------------------------------------------------------
A federal judge has certified a class action antitrust suit that
accuses GlaxoSmithKline of using monopolistic tactics to boost
its profits from Wellbutrin, a popular antidepressant, by
delaying a generic version of the drug from coming to market,
Shannon P. Duffy writes for The Legal Intelligencer.
The suit was brought by direct purchasers who claim that GSK
concocted a plan to keep Wellbutrin prices high by making
fraudulent assertions to the U.S. Patent and Trademark Office
and by engaging in "sham" patent litigation against generic drug
manufacturers.
According to the suit, the plan worked because the patent
litigation delayed the market entry of generic versions of
Wellbutrin, and the direct purchasers were forced to pay
unnecessarily high prices for the drug, because no generic
versions of bupropion were available for nearly two years after
GSK's patent monopoly would have expired.
The case is captioned "In re Wellbutrin Direct Purchaser
Antitrust Litigation."
According to Legal Intelligencer, the plaintiffs' team is led by
Dianne M. Nast, Esq., of Roda & Nast in Lancaster, Pa., and
includes Arnold Levin, Esq., of Levin Fishbein Sedran & Berman
in Philadelphia; Daniel E. Gustafson, Esq., of Gustafson Gluek
in Minneapolis; and Shelly L. Friedland, Esq., of Cohen Milstein
Hausfeld & Toll in New York.
In their motion for class certification, the plaintiffs urged
Senior U.S. District Judge Bruce W. Kauffman to certify the case
on behalf of direct purchasers who bought the 100 mg or 150 mg
dosage of Wellbutrin directly from GSK between Jan. 24, 2002 --
the date on which the suit says generic entry would have
occurred but for GSK's allegedly anticompetitive conduct -- and
June 30, 2006, the date on which prices allegedly stabilized at
competitive levels.
GSK's lawyers, led by Amy R. Mudge, Esq., and David P. Gersch,
Esq., at Arnold & Porter, in Washington, D.C., urged Judge
Kauffman not to certify the class, arguing that the interests of
the named plaintiffs and other class members are in conflict.
In their brief, the defense team argued that when a brand-name
drug faces no competition from generic equivalents, it is
usually sold to the three major national drug wholesalers who
purchase the majority of the product for resale to other parties
in the distribution chain.
When a generic drug enters the market, the defense team argued,
it generally hurts the national wholesalers because generic
manufacturers often sell directly to the other parties in the
distribution chain, bypassing the national wholesalers.
As a result of that "generic bypass," the defense team further
contended, a conflict exists among the members of the proposed
class of direct purchasers because the national wholesalers
benefit from anticompetitive activity that prevents entry of
generic drugs into the market, allowing them to retain higher
sales volumes, whereas other direct purchasers are harmed by the
same anticompetitive activity in the form of higher prices.
However, Judge Kauffman found that the defense argument was
premised on a 2003 decision from the 11th U.S. Circuit Court of
Appeals that has been rejected by other courts. This case was
"In Valley Drug Co. v. Geneva Pharmaceuticals Inc.," wherein the
11th Circuit reversed a lower court's certification of a direct
purchaser class alleging antitrust injury due to delayed generic
entry, finding that potential conflicts among class members
prevented certification without further "downstream discovery."
Judge Kauffman refused to follow Valley Drug, saying GSK's
defense team had failed to convince him that a true conflict
exists in the Wellbutrin purchaser class.
"Even assuming that the national wholesalers in this case were
harmed by the introduction of generic drugs, generic versions of
Wellbutrin . . . have been on the market since 2004. Therefore,
the national wholesalers are no longer reaping the alleged
benefits of delayed generic entry, and their interests are not
'harmed' by recovery of any illegal overcharge," Judge Kauffman
wrote.
"Indeed, any economic benefits the wholesalers experienced in
the past are legally irrelevant because the overcharge itself --
not any economic effect of the overcharge -- is the proper
measure of recovery in this antitrust case," stated Judge
Kauffman wrote.
Judge Kauffman added that the U.S Supreme Court, in its seminal
decisions on direct purchaser antitrust suits, has held that
plaintiffs may recover for antitrust overcharges irrespective of
whether they suffered a net loss or even a net gain.
Applying that logic, Judge Kauffman found that "regardless of
whether some class members profited from the alleged activity in
this case, the controlling question is whether the class members
suffered an overcharge: if an overcharge occurred, all class
members are entitled to recover, whether or not some plaintiffs
experienced a net benefit while others experienced a net loss."
Viewed in that light, Kauffman said, all of the direct
purchasers, including the national wholesalers, "seek exactly
the same result: they urge the court to conclude that defendant
committed an antitrust violation, thereby allowing all direct
purchasers to recover the overcharges."
GREENFIELD ONLINE: Settles Connecticut Securities Fraud Case
------------------------------------------------------------
On May 7, Greenfield Online, Inc. (Nasdaq: SRVY) entered into an
agreement in principle to settle the pending class action
securities litigation filed on behalf of all common stock
purchasers of Greenfield Online from February 9, 2005, to
September 30, 2005, inclusive, with the U.S. District Court for
the District of Connecticut.
Greenfield Online is an independent collector of consumer
opinions, which they provide to the global marketing research
industry.
Filed in 2007, the Complaint charges Greenfield Online and
certain of its officers and directors with violations of the
Securities Exchange Act of 1934 (Class Action Reporter, Aug. 9,
2007).
More specifically, the Complaint alleges that the Company failed
to disclose and misrepresented the following material adverse
facts which were known to defendants or recklessly disregarded
by them:
(1) that internal performance expectations were not being
met;
(2) that the Company's revenues and earnings would be
significantly impacted in subsequent financial
quarters;
(3) that the highly touted Ciao AG acquisition was
unsuccessful in its implementation and integration, and
that Ciao AG was not performing as previously expected;
(4) that the Company's financial statements overvalued the
Ciao AG acquisition, and should have been written down
to reflect Ciao AG's actual value;
(5) that the Company lacked adequate internal and financial
controls; and
(6) that, as a result of the foregoing, the Company's
statements about its financial well-being, earnings,
and future prospects were lacking in a reasonable basis
when made.
On August 9, 2005, after the market had closed, the Company
announced that it was revising its 2005 revenue guidance
downward to $95 to $99 million, down from the $102 to $108
million revenue guidance previously provided to investors. The
Company announced that its bid volume in the second quarter
was essentially flat in the U.S., and that its revised outlook
also reflected an estimated $1.5 million negative adjustment
related to the Company's estimates for foreign currency
translation. On this news, shares of the Company's stock
declined $3.31 per share, or over 27%, to close on August 10,
2005 at $8.94 per share, on unusually heavy trading volume.
Then on September 29, 2005, the Company announced preliminary
its Third Quarter 2005 results which revealed that the Company
expected to report quarterly revenue of $22 to $23 million,
which was significantly below the quarterly revenue guidance
previously provided of $26 to $27 million. Additionally, the
Company reported that it had replaced its President and Chief
Executive Officer, and had elected new Directors to the
Company's Board. On this news, shares of the Company's stock
declined an additional $1.53 per share, or almost 22 percent, to
close on September 30, 2005 at $5.44 per share, on unusually
heavy trading volume.
The plaintiff seeks to recover damages on behalf of class
members.
On May 7, 2008, the Company and the individual defendants
reached an agreement in principle to settle the class action
lawsuit. The Company has determined that it is beneficial to
enter into the proposed settlement in order to avoid costly and
time consuming litigation.
The terms of the settlement, which contain no admission of any
liability or wrongdoing on the part of any defendant, are
subject to the completion of confirmatory discovery by
plaintiffs' counsel, the negotiation of definitive documentation
and approval by the court, and includes a cash payment by the
Company of $4 million that is expected to be made to the
plaintiffs during 2008.
As part of the proposed settlement the Company has also agreed
to adopt certain enhancements to its corporate governance
policies and procedures. The Company anticipates that one-half
of the settlement payment will be funded by insurance proceeds.
The balance of the costs of settlement will be borne by the
Company.
Once approved, the Company believes the settlement will resolve
all class action litigation pending against the Company, as well
as its former and current officers. As a result of this
agreement in principle, the Company recorded a one-time net
charge of $2.0 million in its financial statements for the
quarter ended March 31, 2008.
The proposed settlement is subject to court approval and other
contingencies. Accordingly, there can be no assurance that a
final settlement will ultimately be achieved on the terms
described above, if at all. In the event that a settlement is
not finalized, the Company intends to defend against the
allegations contained in the class action lawsuit.
The suit is "Plumbers & Pipefitters Local Union No. 630 Pension
Annuity Trust v. Greenfield Online, Inc., et al., Docket No. 07-
cv-1118 (VLB)," filed with the U.S. District Court for the
District of Connecticut.
HCC INSURANCE: Settles Texas Securities Fraud Suit for $10 Mln.
---------------------------------------------------------------
HCC Insurance Holdings, Inc., has reached a $10-million
settlement with the plaintiffs in a class action
litigation relating to the Company's historic stock option
granting practices.
The suit, "Bristol County Retirement System v. HCC Insurance
Holdings Inc et al., Case No. 4:07-cv-00801," was filed on
March 8, 2007. The company is named as a defendant in the
putative class action along with certain current and former
officers and directors.
The plaintiff seeks to represent a class of persons who
purchased or otherwise acquired the company's securities between
May 3, 2005, and Nov. 17, 2006, inclusive.
The action purports to assert claims arising out of improper
manipulation of option grant dates, alleging violation of
Sections 20(a) and 10(b) of the U.S. Securities Exchange Act, as
well as Rule 10b-5 promulgated thereunder.
The plaintiff also purports to assert a claim for violation of
Section 14(a) of the U.S. Securities Exchange Act and Rules 14a-
1 and 14a-9 promulgated thereunder. The plaintiff seeks
recovery of compensatory damages for the putative class and
costs and expenses.
On Sept. 21, 2007, jointly with the other defendants, the
company filed a motion to dismiss the suit.
On January 9, 2008, the company announced that it had reached a
settlement in the shareholder derivative litigation regarding
the stock option matter (Class Action Reporter, Feb. 11, 2008).
With the announcement, all private securities litigation pending
against the Company regarding the stock option matter has been
resolved.
The terms of the settlement, which includes no admission of
liability or wrongdoing by HCC or any other defendants, provide
for a full and complete release of all claims in the litigation
and payment of $10 million to be paid into a settlement fund,
pending approval by the Court of a plan of distribution. The
amount will be paid by the Company's directors' and officers'
liability insurers, and will not have a material effect on HCC's
financial results.
The deadline to file for exclusions and objections is on
June 26, 2008. Deadline to file claims is on July 31, 2008.
The United States District Court for the Southern District of
Texas will hold a hearing at 3:00 p.m., on July 17, 2008.
The suit is "Bristol County Retirement System v. HCC Insurance
Holdings Inc. et al., Case No. 4:07-cv-00801," filed with the
U.S. District Court for the Southern District of Texas,
Judge Sim Lake, presiding.
Representing the plaintiff is:
Damon Joseph Chargois, Esq. (damon@cmhllp.com)
Chargois & Heron LLP
2201 Timberloch Place, Ste. 110
The Woodlands, TX 77380
Phone: 281-444-0604
Fax: 281-440-0124
- and –
Alan I. Ellman, Esq. (aellman@labaton.com)
Labaton Sucharow & Rudoff
100 Park Avenue
New York, NY 10017
Phone: 212-907-0813
Fax: 212-818-0477
Representing the defendant is:
Barry F. McNeil, Esq. (barry.mcneil@haynesboone.com)
Haynes and Boone
901 Main St., Ste. 3100
Dallas, TX 75202-3789
Phone: 214-651-5580
Fax: 214-200-0535
IHOP CORP: Discovery Still Ongoing in "Fast" Litigation
-------------------------------------------------------
Discovery is ongoing in the matter, "Gerald Fast v. Applebee's
International, Inc.," which names a subsidiary of IHOP Corp. as
a defendant, 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 case is a collective action filed under the Fair Labor
Standards Act. In it, the named plaintiffs claim that tipped
workers in company restaurants perform excessive amounts of non-
tipped work for which they should be compensated at the minimum
wage.
The court has conditionally certified a nationwide class of
servers and bartenders who have worked in company-operated
Applebee's restaurants since June 19, 2004.
Unlike a class action, a collective action requires potential
class members to "opt in" rather than "opt out."
On Feb. 12, 2008, around 5,500 opt-in forms were filed with the
court. Conditional certification is granted under a lenient
standard and the company will have an opportunity to have the
class de-certified following the close of discovery at the end
of 2008.
IHOP Corp. -- http://www.ihop.com/-- owns and operates two
restaurant concepts in the casual dining and family dining
niches: Applebee's Neighborhood Grill and Bar and International
House of Pancakes. Its segments are recorded in four
categories: franchise operations, company restaurant operations,
rental operations and financing operations. Each Applebee's
restaurant is designed as a friendly neighborhood establishment
featuring moderately priced food and beverage items, table
service and a comfortable atmosphere. The restaurants appeal to
a range of customers including young adults, senior citizens and
families with children. IHOP restaurants feature full table
service and moderately priced food and beverage offerings in a
comfortable atmosphere. IHOP restaurants are open throughout
the day and evening hours and many operate 24 hours a day. The
Company's segments are recorded in four categories: franchise
operations, company restaurant operations, rental operations and
financing operations.
KYODO AMERICA: Recalls Lawn Mowers Due to Laceration Hazard
-----------------------------------------------------------
Kyodo America Industries Co. LTD., of Lawrenceville, Ga., in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 530 LawnBott Lawn Mowers.
The company said the cutting blades continue to rotate when the
mower is lifted from the ground and the spacing on the side of
the lawn mower could allow room for a consumer's foot to go
beyond the shield and be struck by the blade. Both instances
pose a serious laceration hazard to consumers.
Kyodo America has received one report of a consumer lifting the
mower from the ground and suffered minor lacerations from the
moving blade.
This recall involves LawnBott lawn mowers with model numbers
LB2000, LB2100, LB3000, and LB3200. The robotic lawn mowers
freely and automatically cut grass by detecting the signal of a
perimeter cable. The mowers have a docking station for
recharging and a shiny plastic cover sold in red, green or blue.
"Evolution" or "deluxe" is printed on the side of the mower.
These recalled lawn mowers were manufactured by Zucchetti Centro
Sistemi S.p.A., of Italy and were being sold by Kyodo America
dealers nationwide from January 2006 through December 2007 for
between $1,750 and $2,750.
Pictures of the recalled lawn mowers are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08256a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08256b.jpg
Consumers should stop using the recalled LawnBott lawn mowers
immediately and contact Kyodo America to register their lawn
mowers for repairs that will be ready by the end of June.
Consumers who have registered their mower with Kyodo America
have been sent direct notification by mail.
For more information, contact Kyodo America at 877-465-9636
between 8:00 a.m. and 4:30 p.m. CT Monday through Friday, or
visit the firm's Web site: http://www.lawnbott.com/
MERCK & CO: Bernard Gross Refiles Pa. Securities Suit in N.J.
-------------------------------------------------------------
The Law Offices of Bernard M. Gross, P.C. withdraws a class
action lawsuit in the United States District Court, Eastern
District of Pennsylvania filed on behalf of purchasers of the
securities of Merck & Co., Inc. between October 22, 2007,
through and including March 28, 2008, inclusive, seeking to
pursue remedies under the Securities Exchange Act of 1934.
Filed on April 4, 2008, the purported class action accuses Merck
& Co. and its chairman, president and chief executive officer,
Richard T. Clark, of violating certain federal securities laws
(Class Action Reporter, April 8, 2008).
The suit alleges that the company "deceived the investing public
regarding the results of the Enhance trial because the results
were not positive or beneficial to Merck."
The trial results, when disclosed on March 28, 2008, "showed
that there was no statistically significant difference between
patient use of Vytorin versus patients treated with
Simvastatin," the complaint states. The complaint states "these
disclosures caused Merck's stock price to fall" on March 31.
The lawsuit has been withdrawn without prejudice since
defendants had not appeared, answered or moved for summary
judgment.
The action will be refiled in the United States District Court
for the District of New Jersey due to the many related actions
pending in New Jersey against Merck concerning Zetia, Vytorin
and the ENHANCE trials, including a lawsuit filed by the Genesee
County Employees' Retirement System on behalf of purchasers of
the securities of Merck between July 24, 2006, and March 28,
2008.
The lead plaintiff motion must be filed no later than June 3,
2008.
For more information, contact:
Law Offices Bernard M. Gross, P.C.
Suite 450, John Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
Phone: (215) 561-3600
1-866-561-3600 (toll free)
Fax: (215) 561-3000
e-mail: susang@bernardmgross.com
MIDWAY GAMES: Seeks Dismissal of Illinois Securities Fraud Suit
--------------------------------------------------------------
Midway Games, Inc., is seeking the dismissal of a consolidated
securities fraud class action suit filed in the U.S. District
Court for the Northern District of Illinois, according to
Midway's May 6, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
Beginning on July 6, 2007, a number of putative securities class
actions were filed against Midway, as well as against these
individuals:
* Steven M. Allison
* James R. Boyle
* Miguel Iribarren
* Thomas E. Powell, and
* David F. Zucker.
The lawsuits are essentially identical and purport to bring suit
on behalf of those who purchased the Company's publicly traded
securities between Aug. 4, 2005, and May 24, 2006.
The plaintiffs allege that the defendants made a series of
misrepresentations and omissions about Midway's financial well-
being and prospects concerning its financial performance,
including decisions regarding reductions in work force, the
company's need to seek additional capital, and decisions by
Sumner Redstone and his related parties with respect to their
ownership or trading of the company's common stock, that had the
effect of artificially inflating the market price of the
company's securities during the Class Period.
They also claim that the defendants lacked a reasonable basis
for the company's earnings projections, which the plaintiffs
alleged were materially false and misleading.
The suit seeks to recover damages on behalf of all purchasers of
the company's common stock during the Class Period.
The actions have all been consolidated, and on Oct. 16, 2007,
the Court appointed lead plaintiffs and lead counsel.
The lead plaintiffs filed a Consolidated Amended Complaint on
Dec. 17, 2007, asserting the same allegations and the same
claims.
Midway and the individual defendants filed motions to dismiss
the Consolidated Amended Complaint in its entirety on Feb. 15,
2008. The plaintiffs responded to these motions on March 20,
2008.
According to an update by the company, the dismissal motions are
now fully-briefed and awaiting the court's ruling. No class has
been certified and discovery has not begun.
The suit is "Joseph Zerger, et al. v. Midway Games Inc., et al.,
Case No. 07-CV-03797," filed in the U.S. District Court for the
Northern District of Illinois, Judge David H. Coar, presiding.
Representing the plaintiffs are:
Lasky & Rifkind, Ltd.
100 Park Avenue
New York, NY, 10017
Phone: 212-907-0800
Fax: 212-684-6083
- and -
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA, 92101
Phone: 619-231-1058
Fax: 619-231-7423
NETFLIX INC: California Court Affirms Judgment in "Chavez" Case
---------------------------------------------------------------
The California Court of Appeal, First District, affirmed the
final judgment in the matter "Frank Chavez v. Netflix, Inc., et
al., Case No. CGC-04-434884."
On Sept. 23, 2004, Frank Chavez, individually and on behalf of
others similarly situated, filed the class action suit against
Netflix in the California Superior Court for City and County of
San Francisco.
The company entered into an amended settlement under which
Netflix subscribers who were enrolled in a paid membership
before Jan. 15, 2005, and were a member on Oct. 19, 2005, are
eligible to receive a free one-month upgrade in service level
and Netflix subscribers who were enrolled in a paid membership
before Jan. 15, 2005, and were not a member on Oct. 19, 2005,
are eligible to receive a free one-month Netflix membership of
either the 1, 2 or 3 DVDs at-a-time unlimited program.
The Court issued final judgment on the settlement on July 28,
2006, awarding plaintiffs' attorneys' fees and expenses of
$2.1 million.
The final judgment was appealed to the California Court of
Appeal, First Appellate District. The appeal was heard on
April 2, 2008.
On April 21, 2008, the Court of Appeal affirmed the district
court's ruling. The appeal period for the Court of Appeal's
affirmation has not yet expired, 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 "Frank Chavez v. Netflix, Inc., A Foreign Corp. et
al., Case No. CGC-04-434884."
Representing the plaintiffs is:
Adam Gutride Law Offices
835 Douglass Street
San Francisco, CA 94114
Phone: 415-271-6469
Representing the company is:
Keith Eggleton, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Phone: 650-493-9300
Fort more details, visit http://www.netflix.com/settlementor
http://netflixsettlementsucks.com/
PANERA BREAD: Faces Two Securities Fraud Lawsuits in Missouri
-------------------------------------------------------------
Panera Bread Co. is facing two purported securities fraud class
action suits that were filed in the U.S. District Court for the
Eastern District of Missouri, 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 25, 2008.
On Jan. 25, 2008, and Feb. 26, 2008, two purported class action
lawsuits were filed against the company and three of its current
or former executive officers by the Western Washington Laborers-
Employers Pension Trust and by Sue Trachet, respectively, on
behalf of investors who purchased the company's common stock
during the period between Nov. 1, 2005, and July 26, 2006.
Each complaint alleges that the company and the other defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934, as amended and Rule 10b-5 under the Exchange Act in
connection with its disclosure of system-wide sales and earnings
guidance during the period from November 1, 2005, through
July 26, 2006.
Also, each complaint seeks, among other relief, class
certification of the lawsuit, unspecified damages, costs and
expenses, including attorneys' and experts' fees, and such other
relief as the court might find just and proper.
Panera Bread Co. -- http://www.panerabread.com/-- operates
retail bakery-cafes. As of Dec. 26, 2007, the Company operated,
directly and through area development agreements with 39
franchisee groups, 1,167 bakery-cafes (501 Company-owned and 666
franchise-operated, bakery-cafes) under the Panera Bread and
Saint Louis Bread Co. names. Bakery-cafes are principally
located in suburban, strip mall and regional mall locations, and
operate in 38 states. The menu includes a variety of year-round
favorites, complemented by new items introduced seasonally.
Panera Bread operates as three business segments: the Company-
owned, bakery-cafe operations segment; the franchise operations
segment, and the fresh dough operations segment. On Feb. 1,
2007, the Company purchased 51% of Paradise Bakery & Cafe, Inc.
During fiscal year ended December 25, 2007, it opened 148
bakery-cafes, acquired 36 bakery-cafes from its franchisees,
closed eight bakery-cafes, and sold one Company-owned, bakery-
cafe to a franchisee.
PANERA BREAD: Faces Labor-Related Lawsuit in California
-------------------------------------------------------
Panera Bread Co. is facing a purported class action lawsuit
filed in the U.S. District Court for the District of Northern
California, 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 25, 2008.
The suit was filed on Feb. 22, 2008, against the company and one
of its subsidiaries by former employee Pati Johns.
The complaint alleges, among other things, violations of the
Fair Labor Standards Act and the California Labor Code for
failure to pay overtime and termination compensation. The
complaint seeks, among other relief, collective and class
certification of the lawsuit, unspecified damages, costs and
expenses, including attorneys' fees, and such other relief as
the court might find just and proper.
Panera Bread Co. -- http://www.panerabread.com/-- operates
retail bakery-cafes. As of Dec. 26, 2007, the Company operated,
directly and through area development agreements with 39
franchisee groups, 1,167 bakery-cafes (501 Company-owned and 666
franchise-operated, bakery-cafes) under the Panera Bread and
Saint Louis Bread Co. names. Bakery-cafes are principally
located in suburban, strip mall and regional mall locations, and
operate in 38 states. The menu includes a variety of year-round
favorites, complemented by new items introduced seasonally.
Panera Bread operates as three business segments: the Company-
owned, bakery-cafe operations segment; the franchise operations
segment, and the fresh dough operations segment. On Feb. 1,
2007, the Company purchased 51% of Paradise Bakery & Cafe, Inc.
During fiscal year ended December 25, 2007, it opened 148
bakery-cafes, acquired 36 bakery-cafes from its franchisees,
closed eight bakery-cafes, and sold one Company-owned, bakery-
cafe to a franchisee.
PANERA BREAD: Faces California Labor Code Violations Lawsuit
------------------------------------------------------------
Panera Bread Co. is facing a purported class action lawsuit
filed with the U.S. District Court for the District of Northern
California, 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 25, 2008.
The suit was filed on March 19, 2008, against the company and
one of its subsidiaries by Marion Taylor, a former employee.
The complaint alleges, among other things, violations of the
California Labor Code for failure to pay termination
compensation and failure to provide rest and meal periods.
The complaint seeks, among other relief, class certification of
the lawsuit, unspecified damages, costs and expenses, including
attorneys' fees, and such other relief as the court might find
just and proper.
Panera Bread Co. -- http://www.panerabread.com/-- operates
retail bakery-cafes. As of Dec. 26, 2007, the Company operated,
directly and through area development agreements with 39
franchisee groups, 1,167 bakery-cafes (501 Company-owned and 666
franchise-operated, bakery-cafes) under the Panera Bread and
Saint Louis Bread Co. names. Bakery-cafes are principally
located in suburban, strip mall and regional mall locations, and
operate in 38 states. The menu includes a variety of year-round
favorites, complemented by new items introduced seasonally.
Panera Bread operates as three business segments: the Company-
owned, bakery-cafe operations segment; the franchise operations
segment, and the fresh dough operations segment. On Feb. 1,
2007, the Company purchased 51% of Paradise Bakery & Cafe, Inc.
During fiscal year ended December 25, 2007, it opened 148
bakery-cafes, acquired 36 bakery-cafes from its franchisees,
closed eight bakery-cafes, and sold one Company-owned, bakery-
cafe to a franchisee.
PRISON HEALTH: Pa. Court Mulls Motion in Physician's Litigation
---------------------------------------------------------------
The Court of Common Pleas of Philadelphia County, Trial Division
has yet to rule on a motion for class certification that was
filed in the purported class action against Prison Health
Services, Inc., a unit of the America Service Group, Inc., and
the City of Philadelphia.
The suit was filed by Andrew Berkowitz, M.D., an individual
physician independent contractor in Philadelphia. The plaintiff
filed the suit as a putative class action on Aug. 2, 2006, with
the Court of Common Pleas of Philadelphia County, Trial
Division.
The plaintiff is seeking unspecified damages for the class, but
damages in the amount of at least $9,588, individually.
The complaint alleges that the plaintiff provided services to
inmates at the Philadelphia Prison System at the request of the
defendants and that the defendants breached the alleged
contractual duties owed to him by paying an amount alleged to be
less than the full amount the plaintiff billed for his medical
services.
On Sept. 22, 2006, the City of Philadelphia filed a cross-claim
against PHS alleging breach of contract, negligence and seeking
indemnification.
On Sept. 29, 2006, Prison Health filed its answer to the
plaintiff's complaint, which answer included a cross-claim
against the City of Philadelphia for contribution and
indemnification.
The plaintiff filed his motion for class certification on
Oct. 1, 2007, and PHS and the City have since responded to this
motion.
On Sept. 29, 2006, PHS filed its answer to the plaintiff's
complaint, which answer included a cross-claim against the City
for contribution and indemnification.
The plaintiff filed his motion for class certification on
Oct. 1, 2007, and PHS and the City have since responded to this
motion.
On March 10, 2008, the court held a hearing on the motion for
class certification; and PHS is currently waiting on a ruling,
according to America Service's May 5, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
America Service Group Inc. -- http://www.asgr.com/-- through
its subsidiaries Prison Health Services, Inc., EMSA Limited
Partnership, Correctional Health Services, LLC, and Secure
Pharmacy Plus, LLC, contracts to provide and administer managed
healthcare services, including the distribution of
pharmaceuticals throughout the U.S.
QWEST COMMS: Continues to Face Multiple Rights-of-Way Lawsuits
--------------------------------------------------------------
Qwest Communications International, Inc., is still facing
several putative class action suits in state and federal courts
in relation to the installation of fiber optic cable in certain
rights-of-way.
To recall, several putative class action lawsuits in connection
with the installation of fiber optic cable in certain rights-of-
way were filed against the company on behalf of landowners on
various dates and in various courts in California, Colorado,
Georgia, Illinois, Indiana, Kansas, Massachusetts, Mississippi,
Missouri, Oregon, South Carolina, Tennessee and Texas. For the
most part, the complaints challenge the company's right to
install fiber optic cable in railroad rights-of-way.
Complaints in Colorado, Illinois and Texas, also challenge the
company's right to install fiber optic cable in utility and
pipeline rights-of-way.
The complaints allege that the railroads, utilities and pipeline
companies own the right-of-way as an easement that did not
include the right to permit the company to install its fiber
optic cable in the right-of-way without the plaintiffs' consent.
Most actions (California, Colorado, Georgia, Kansas,
Mississippi, Missouri, Oregon, South Carolina, Tennessee and
Texas) purport to be brought on behalf of state-wide classes in
the named plaintiffs' respective states.
The Massachusetts action purports to be on behalf of state-wide
classes in all states (other than Louisiana and Tennessee) in
which Qwest has fiber optic cable in railroad rights-of-way, and
also on behalf of two classes of landowners whose properties
adjoin railroad rights-of-way originally derived from federal
land grants.
Several actions purport to be brought on behalf of multi-state
classes.
The Illinois state court action purports to be on behalf of
landowners in Illinois, Iowa, Kentucky, Michigan, Minnesota,
Nebraska, Ohio and Wisconsin.
The Illinois federal court action purports to be on behalf of
landowners in Arkansas, California, Florida, Illinois, Indiana,
Missouri, Nevada, New Mexico, Montana and Oregon.
The Indiana action purports to be on behalf of a national class
of landowners adjacent to railroad rights-of-way over which the
company's network passes.
The complaints seek damages on theories of trespass and unjust
enrichment, as well as punitive damages.
The company reported no further development in the case in its
May 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended March 31,
2008.
Denver, Colorado-based Qwest Communications International, Inc.
-- http://www.qwest.com/-- is a provider of voice, data and
video services. The Company operates most of its business
within its local service area, which consists of the 14-state
region of Arizona, Colorado, Idaho, Iowa, Minnesota, Montana,
Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah,
Washington and Wyoming. The Company operates through three
segments: wireline services, wireless services and other
services.
QWEST COMMS: Amended Complaint Filed in Insurance Benefit Suit
--------------------------------------------------------------
The plaintiffs in a purported class action, "Kerber et al. v.
Qwest Group Life Insurance Plan et al., Case No. 1:07-cv-00644-
WDM-CBS," which names Qwest Communications International, Inc.,
as a defendant, are amending their complaint to assert
additional claims.
The putative class action suit was purportedly filed in the U.S.
District Court for the District of Colorado on behalf of certain
of the company's retirees. The complaint was in connection with
the company's decision to reduce life insurance benefits for the
retirees to a flat $10,000 benefit.
The action was filed on March 30, 2007. The plaintiffs allege,
among other things, that the company and the other defendants
were obligated to continue their life insurance benefits at the
levels in place before the company decided to reduce them.
The plaintiffs seek restoration of life insurance benefits to
previous levels and certain equitable relief.
The district court recently ruled in the company's favor on the
central issue of whether it properly reserved the right to
reduce the life insurance benefit under applicable law and plan
documents.
In an update, the retirees have amended their complaint to
assert additional claims, according to Qwest's May 5, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended March 31, 2008.
The suit is "Kerber et al. v. Qwest Group Life Insurance Plan et
al., Case No. 1:07-cv-00644-WDM-CBS," filed with the U.S.
District Court for the District of Colorado, Judge Walker D.
Miller, presiding.
Representing the plaintiffs is:
Curtis L. Kennedy, Esq. (CurtisLKennedy@aol.com)
Curtis L. Kennedy Law Office
8405 East Princeton Avenue
Denver, CO 80237-1741
Phone: 303-770-0440
Fax: 303-834-0360
Representing the defendants is:
Michael Brian Carroll, Esq. (mcarroll@sah.com)
Sherman & Howard, L.L.C.
633 Seventeenth Street #3000
Denver, CO 80202
Phone: 303-299-8474
Fax: 303-298-0940
REDDY ICE: May 29 Hearing Set For Motions in Packaged Ice Suits
---------------------------------------------------------------
The Judicial Panel on Multidistrict Litigation set a May 29,
2008 hearing for motions that sought for the consolidation of
several lawsuits -- including purported class actions -- over
practices in the packaged ice industry, which names Reddy Ice
Holdings, Inc., as a defendant.
Following the announcement that the Department of Justice's
Antitrust Division had instituted an investigation of the
packaged ice industry, a number of lawsuits, including putative
class action lawsuits, have been instituted in various federal
courts in multiple jurisdictions alleging violations of the
federal antitrust laws and related claims and seeking damages
and injunctive relief.
Although the company has not yet been formally served in
connection with all of these lawsuits, as of May 2, 2008, it is
aware of 62 putative class action suits that have been filed
naming it and other packaged ice companies as defendants.
Motions have been filed with the Judicial Panel on Multidistrict
Litigation seeking to consolidate pretrial proceedings in all of
the putative class actions in various districts.
The company filed a response to those motions with the Panel on
April 24, 2008, agreeing that consolidation of the cases is
appropriate and requesting that the cases be consolidated in the
District of Minnesota.
A hearing on these motions has been scheduled for May 29, 2008,
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.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com-- is a
manufacturer and distributor of packaged ice in the U.S.,
serving approximately 82,000 customer locations in 31 states and
the District of Columbia under the Reddy Ice brand name. The
Company's principal product is ice packaged in 7- to 50-pound
bags, which it sells to a diversified customer base, including
supermarkets, mass merchants and convenience stores. During the
year ended December 31, 2007, it sold approximately 1.9 million
tons of ice. In 2007, traditional ice manufacturing and Ice
Factory sales accounted for approximately 90% and 10% of the
Company's ice segment revenues, respectively. In September
2007, the Company announced that it had completed the
divestiture of its bottled water business and substantially all
of its cold storage business.
REDDY ICE: Texas Court Considers Dismissal of GSO Merger Lawsuit
----------------------------------------------------------------
The 199th Judicial District Court of Collin County, Texas has
yet to rule on a motion by Reddy Ice Holdings, Inc., seeking the
dismissal of a purported class action against the company, its
board, and GSO Capital Partners LP, 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.
On July 3, 2007, a stockholder derivative complaint was filed on
the company's behalf in the 199th Judicial District Court of
Collin County, Texas, Cause No. 199-02240-07. The suit seeks
to temporarily prohibit a shareholder vote on Reddy's $1.1
billion buyout by GSO.
On Aug. 9, 2007, the complaint was amended by the plaintiff,
purporting to state a class action claim on behalf of the
Company's stockholders.
The amended complaint alleged, among other things, that the
company's directors breached their fiduciary duties in
connection with the proposed merger transaction between the
company and affiliates of GSO by approving a transaction that
would purportedly provide certain of the company's stockholders
and directors with preferential treatment at the expense of its
other stockholders and would not maximize stockholder value.
A second amended complaint was filed on Sept. 10, 2007,
containing similar allegations and also setting forth various
alleged omissions from the disclosures provided by the company
in its preliminary proxy statement relating to the special
meeting of its stockholders to adopt the Merger Agreement. All
defendants have served answers to the second amended complaint.
On Sept. 27, 2007, the plaintiff filed a motion seeking a
temporary restraining order to enjoin the special meeting of the
company's stockholders to adopt the Merger Agreement.
A hearing with respect to the motion has been scheduled for
Oct. 3, 2007. On that date, the company and the other parties
reached an agreement in principle to settle the action in return
for the company providing certain supplemental disclosures in
advance of the special meeting of the company's stockholders.
The defendants also agreed that, if the settlement was approved
by the Court and consummated in accordance with its terms, the
company would pay the plaintiff's attorneys' fees and expenses
in an amount awarded by the Court but not to exceed $325,000 in
the aggregate.
On Jan. 31, 2008, the company announced that the Merger
Agreement had been terminated. As a result, the proposed
settlement will not be consummated.
On March 28, 2008, the defendants filed a motion seeking
dismissal of the action on the ground that all of plaintiff's
claims were rendered moot by the termination of the Merger
Agreement. The court has not yet established a date for a
hearing on the defendants' motion.
Reddy Ice Holdings, Inc. -- http://www.reddyice.com/-- is a
manufacturer and distributor of packaged ice in the U.S.,
serving approximately 82,000 customer locations in 31 states and
the District of Columbia under the Reddy Ice brand name. The
Company's principal product is ice packaged in 7- to 50-pound
bags, which it sells to a diversified customer base, including
supermarkets, mass merchants and convenience stores. During the
year ended December 31, 2007, it sold approximately 1.9 million
tons of ice. In 2007, traditional ice manufacturing and Ice
Factory sales accounted for approximately 90% and 10% of the
Company's ice segment revenues, respectively. In September
2007, the Company announced that it had completed the
divestiture of its bottled water business and substantially all
of its cold storage business.
RIDLEY INC: Continues to Face BSE Claims in Canadian Courts
-----------------------------------------------------------
The actions by proposed representative plaintiffs continue
against the Government of Canada and Ridley Inc.
In April 2005, Ridley, along with its majority shareholder,
Ridley Corporation Limited of Sydney Australia, and the
Government of Canada were named defendants in proposed class
actions filed in four Canadian provinces. These lawsuits sought
damages, including punitive damages, for losses allegedly
incurred by Canadian cattle producers as a result of
international bans on the importation of Canadian beef and
cattle.
These bans followed the May 20, 2004 announcement of a bovine
spongiform encephalopathy diagnosis in an Alberta cow. None of
the plaintiffs in any of the cases alleged any direct connection
between them and Ridley.
Representative plaintiffs seek to certify class actions in
Ontario, Alberta, Saskatchewan and Quebec to include all
Canadian cattle farmers who allegedly suffered damage as a
result of international bans.
In October 2005, Ridley disclosed that it had filed and argued
preliminary motions seeking early dismissal of the BSE lawsuit
filed in the Ontario Superior Court for failure to state
actionable claims under Canadian law. Ridley had asserted
strong legal arguments supporting its request that the
Court strike the claims in advance of class certification
hearings or commencement of discovery.
In 2006, Ridley reported that the Ontario Superior Court of
Justice denied its motion for early dismissal of the proposed
class action (Class Action Reporter, Jan. 9, 2006). In its
June 21, 2007 decision, the Court of Appeal for Ontario upheld
the January 2006 decision of the Ontario Superior Court.
In 2007, Ridley filed an application with the Supreme Court of
Canada to appeal a decision by the Ontario Court of Appeal
denying Ridley's motion to strike claims of economic losses by
cattle producers affected by an international meat ban in 2004
(Class Action Reporter, Sept. 7, 2007).
Ridley requested leave to appeal from the Ontario Court of
Appeal's decision because it believes the decision conflicts
with Supreme Court of Canada case law and other court decisions,
and because the proposed appeal raises issues of national
importance.
On February 5, 2008, Ridley reached a settlement agreement with
the plaintiffs in all four of the BSE lawsuits (Class Action
Reporter, Feb. 7, 2008). Under the settlement agreement, Ridley
will pay CDN$6 million into a plaintiffs' settlement trust fund
and will effectively cap its exposure to the claims made by the
plaintiffs to the $6 million. However, Ridley will remain a
participant in the ongoing litigation as plaintiffs continue
their claim against the Government of Canada.
The actions in Saskatchewan and Alberta are in abeyance. There
has been no decision made on the merits of the actions in any
province.
Counsel for the plaintiffs have applied to the Canadian courts
for approval of the settlement agreement and Ridley will consent
to certification of the class actions. Through notices
published in various agricultural journals and newspapers in
April 2008, the settlement class members were notified of their
right to object to the settlement.
A hearing is scheduled before the Superior Court of Quebec on
May 22-23, 2008, for the approval of the settlement agreement in
the Quebec action.
A hearing is scheduled before the Superior Court of Justice for
Ontario on June 9, 2008, for the approval of the settlement
agreement in the Ontario action.
The settlement agreement will be finalized and Ridley will pay
the settlement funds provided the Ontario and Quebec courts both
approve the settlement and the number of class member opt-outs
is below an agreed threshold.
The financial results for Ridley's nine months of fiscal 2008
reflect a provision of $6.0 million for this contingent
liability. Ridley will continue to incur legal expenses as a
result of the settlement approval process and its continuing
involvement in the actions. No accruals have been made in
respect of ongoing legal expenses related to the actions.
Ridley will continue to fund these expenses out of earnings.
Ridley Inc. -- http://www.ridleyinc.com/-- headquartered in
Mankato, Minnesota and Winnipeg, Manitoba, is one of North
America's leading commercial animal nutrition companies. Ridley
manufactures and distributes a full range of animal nutrition
products under a number of highly regarded trade names.
SHELL OIL: Awaits Court Approval of $16MM Gas-Fume Settlement
-------------------------------------------------------------
Shell Oil Products US and Premcor Refining Group have reached an
agreement with attorneys from two different groups in connection
with a lawsuit over a huge gas plume beneath Hartford, Sanford
J. Schmidt writes for The Telegraph.
The report relates that the two refining companies agreed to pay
$16 million to settle the suit. Of the aggregate settlement
amount, Shell would contribute $8.5 million, while Premcor would
contribute $7.5 million.
However, the court's final approval of the deal will not come
until July 2008. Judge Dan Stack will rule on the settlement
after the scheduled July 15 hearing.
According to The Telegraph, the two law firms once battled each
other for the right to pursue a clash action case in the matter,
but have now agreed to accept a settlement on behalf of the
people they represent.
The report says that the settlement would affect only Premcor
and Shell, while other companies who have operated refineries in
the area and named in the original suits would remain as
defendants. These other companies include Apex Oil Co.,
Atlantic Richfield, Sinclair Oil Corp. and BP Products North
America.
Case Background
The Telegraph points out that the fumes at issue in the suit
rise during wet weather because the gasoline and vapors rest
atop the groundwater beneath the village. The plume was once
estimated at 4 million gallons. There have been not complaints
after recent heavy rains after the preliminary phase of a
government-sponsored cleanup process.
The EPA has already reached an agreement with other refiners to
start the cleanup process. That group is working under the name
Hartford Working Group.
In the suit heard recently in federal court, the government
claims that, since Apex helped contribute to the problem, it
could be held responsible to clean up the entire plume, the
report says.
The complaints about the plume has been going on for decades,
but each refiner that has operated in the Hartford area has
pointed out the problem could be attributed to other refiners.
Decades ago, Standard Oil, Shell and Sinclair have owned and
operated three refineries in and around Hartford. They have all
undergone changes of ownership, and all but the original Shell
plant have closed.
The Hartford Working group consists of Atlantic Richfield,
Equilon Enterprises LLC (Shell) and Premcor Refining Group. The
group has been installing and operating vapor recovery systems,
sealing basements and other work to remove the vapors under the
village. "So far, we have removed 350,000 gallons of vapor from
the soil," Working Group spokesman Robert Miner told The
Telegraph. He said the group is also working on another
agreement to remove liquid petroleum products, but a pilot
project to study a system of recovering both vapor and liquid is
about to get under way.
As mentioned in the Class Action Reporter on Feb. 27, Judge
Stack ordered the lawyers for two competing class action
lawsuits to try to work out a settlement with all the parties to
compensate people who may have been made sick by the underground
gas plume. Judge Stack ordered mediation on May 1, 2008,
appointing Retired Judge William Quinlan as mediator.
"The judge has asked us to get together to resolve all issues.
He would like a global settlement," said Stan Faulkner, Esq., of
Goldenberg, Heller, Antognolie, Rowland, Short and Gori.
Goldenberg Heller filed 120 personal injury cases against four
of the refiners, but converted it to a class action case. Apex
Oil has settled out of court in that suit.
Goldenberg Heller, The Telegram recounts, previously had a
proposed $8-million settlement with Premcor and Equilon
Enterprises, plus all the scientific studies those two firms
have done to determine the sources of the plum.
Another attorney, Norman Siegel, Esq., was working on a
competing class action case and objected to the settlement. The
judge has ordered the two firms to work together.
According to the report, pipeline and refinery releases over
decades have created the underground mess. Lawyers point out
that the gasoline contains benzene and other toxic substances,
which can cause cancer.
Homes in Hartford have burst into flames during high water
periods, The Telegram further relates. As recently as last
year, people have had to be evacuated from their homes when they
became sick with the fumes.
For more information regarding the oil companies litigation,
please contact:
Mark Goldenberg, Esq. (mark@ghalaw.com)
Stan Faulkner, Esq. (stan@ghalaw.com)
Goldenberg Heller Antognoli Rowland Short and
Gori, P.C.
2227 S. State Route 157
P.O. Box 959
Edwardsville, Illinois 62025
Phone: 618-656-5150
Fax: 618-656-6230
SHIPPING LINES: Faces Antitrust Lawsuit in Puerto Rico
------------------------------------------------------
Attorney Eric M. Quetglas-Jordan of the Quetglas Law Office, in
San Juan, Puerto Rico, filed an antitrust class action suit on
May 6, 2008, in the U.S. District Court for the District of
Puerto Rico for conspiracy to fix the prices of shipping
services to and from Puerto Rico and other noncontiguous Jones
Act markets, Marine Log reports.
Named defendants in the complaint are:
-- Horizon Lines, Inc.,
-- Horizon Lines of Puerto Rico, Inc.,
-- Horizon Lines, LLC,
-- Sea Star Line, LLC,
-- Crowley Maritime Corporation,
-- Crowley Liner Services, Inc. and
-- Trailer Bridge, Inc.
Named plaintiff in the complaint is La Esperanza Bus Line of
Puerto Rico, a business operating and principally located in San
Juan, Puerto Rico. La Esperanza Bus line ships passenger buses
to Puerto Rico from the United States using ocean freight
services.
According to the complaint, the plaintiff, as a direct purchaser
of shipping services from and to Puerto Rico from one or more of
the defendants, is an appropriate plaintiff to pursue recovery
for the injury sustained to its property or business as a result
of the alleged antitrust conspiracy or combination.
During the class period, La Esperanza Bus Line shipped freight
through Sea Star and Crowley Liner ocean freight shipping
services, the complaint states.
The complaint says that on April 17, 2008, the FBI (at the
direction of the United States Department of Justice's Antitrust
Division) executed a search warrant and seized computers and
other documents from the Defendant Horizon Lines as part of an
antitrust investigation. Reports also indicate the FBI raided
pursuant to a search warrant Crowley Liner and Sea Star's
offices.
"In order to obtain a search warrant, a government official will
execute an affidavit detailing the evidence supporting the
issuance of a warrant. The affidavit must establish sufficient
probable cause for issuance of a warrant by a federal court,"
states the complaint.
"Frequently," the complaint says, "search warrants result from
information obtained from an amnesty applicant. Under the DOJ's
antitrust amnesty program, the first conspirator toapply and
obtain amnesty receives favorable treatment from the government
with respect to potential criminal and civil prosecution.
However, to be granted amnesty, the applicant must fully
disclose the existence of a conspiracy and the extent of its
participation. It is likely, though not certain, that there is
an amnesty applicant involved in this matter."
The complaint says that "all defendants increased their prices
during 2007 by approximately 9%. These increases were in
addition to increases related to rising fuel prices. This trend
of increasing prices started in 2004 after several prior years
of decreasing prices. Indeed, Horizon's former CFO Mr. Urbania
acknowledged during a conference call on the 2007 4th Quarter
financial results, the prices increases have been sustained in a
difficult economic environment because all competitors have
shown good discipline on pricing."
The complaint also cites trends in bunker fuel surcharges and
says that "since at least August 2007, the defendants have
increased bunker fuel surcharges for containers and/or new
vehicles in same amounts for at least shipments out of
Jacksonville, Florida. In August 2007, the three defendants
imposed a $420.00 bunker fuel for each container transported
from Jacksonville, Florida to Puerto Rico. In November 2007,
they increased the bunker fuel surcharge to $455.00. In December
2007, Sea Star increased the bunker fuel surcharge to $520 and
both Crowley and Horizon increased the surcharge to $505. In
January 2008, Crowley increased the bunker fuel surcharge to
$520.00 which was then followed by Horizon. By the end of
February 2008, these three defendants had all announced a bunker
fuel surcharge of $520.00."
The complaint says that the defendants have also imposed the
same per vehicle bunker fuel surcharges.
"Currently, all defendants charge approximately $210 per used
vehicle. Though Crowley and Trailer Bridge use a different type
of fuel than Horizon and Sea Star because they operate tug boats
and barges rather than self propelled vessel, these parties were
all charging approximately the same bunker fuel surcharge for
shipments from Jacksonville to Puerto Rico," the complaint
states.
The complaint further states that the alleged antitrust
conspiracy injured the plaintiff and class members in
substantially similar manner by eliminating, suppressing and
reducing price competition in the Jones Act Puerto Rico market.
The alleged antitrust conspiracy had the effect of raising,
maintaining or otherwise stabilizing the prices for ocean liner
freight services at a supra-competitive level.
La Esperanza seeks certification of a class consisting of all
persons, corporations or other legal entities who purchased
ocean liner freight shipping services from the defendants during
the class period for shipments to and from Puerto Rico (Jones
Act market).
The Class period runs from at least April 2004 to the present.
SONIC SOLUTIONS: California Shareholder Suit Complaint Amended
--------------------------------------------------------------
An amended complaint was filed in a putative shareholder class
action against Sonic Solutions and various of its executive
officers and directors.
On Nov. 16, 2007, a putative shareholder class action was filed
in the Superior Court of California for the County of Marin
against the company and various of its executive officers and
directors on behalf of a proposed class of persons that
purchased its shares between July 12, 2001, and May 17, 2007.
The action alleges breach of fiduciary duties, and is based on
substantially similar factual allegations and claims as in the
other lawsuits.
The court in the state putative shareholder class action
sustained the company's demurrers to the complaint with leave to
amend.
On April 21, 2008, the plaintiffs in that action filed an
amended complaint, according to the company's May 5, 2008 Form
10-Q filing in the U.S. Securities and Exchange Commission for
the quarter ended Dec. 31, 2007.
Sonic Solutions -- http://www.sonic.com/-- develops and markets
computer software related to digital media, such as data,
photographs, audio and video in digital formats. Its product
lines focus on the two optical disc-based digital media formats,
the Compact Audio Disc and the Digital Video Disc, as well as
the High Definition Digital Video Disc and Blu-ray Disc formats.
Sonic's Professional Products Group offers hardware and software
authoring solutions for creating packaged media releases in DVD-
Video, DVD-read only memory, as well as HD DVD and BD next-
generation, high-definition and high-density disc formats. The
Roxio Division offers a number of digital media software
application products under the Roxio brand name. The Advanced
Technology Group develops software and software components that
it supplies to the other two operating units and that it
licenses to personal computer application and consumer
electronics developers.
STARTEK INC: Court Dismisses Certain Claims in Securities Suit
--------------------------------------------------------------
The U.S. District Court for the District of Colorado dismissed
certain claims in a consolidated securities class action against
StarTek, Inc., and certain of its current and former officers,
according to the company's May 6, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2008.
Initially, the company and others were named as defendants in
two purported class action suits in the U.S. District Court for
the District of Colorado:
1. "West Palm Beach Firefighters' Pension Fund v. StarTek,
Inc., et al.," filed on July 8, 2005; and
2. "John Alden v. StarTek, Inc., et al.," filed on July
20, 2005.
The federal court later consolidated those actions. The
consolidated action is a purported class action suit brought on
behalf of all persons who purchased shares of the company's
common stock in a secondary offering by certain of the company's
stockholders in June 2004, and in the open market between
Feb. 26, 2003, and May 5, 2005.
The consolidated complaint alleges that the defendants made
false and misleading public statements about the company and its
business and prospects in the prospectus for the secondary
offering, as well as in filings with the U.S. Securities and
Exchange Commission and in press releases issued during the
class period, and that the market price of the company's common
stock was artificially inflated as a result.
It also alleges claims under Sections 11 and 15 of the
Securities Act of 1933, and under Sections 10(b) and 20(a) of
the U.S. Securities Exchange Act of 1934.
The plaintiffs in both cases seek compensatory damages on behalf
of the alleged class and award of attorneys' fees and costs of
litigation.
On May 23, 2006, the company and the individual defendants asked
the court to dismiss the action in its entirety.
On March 28, 2008, the motion was denied with respect to the
claims under Sections 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, except the claim under Section 20(a) of
the Securities Exchange Act of 1934 was dismissed against two of
the individual defendants.
On the same date, the motion was granted with respect to the
claims under Sections 11 and 15 of the Securities Act of 1933
without prejudice to plaintiffs filing an amended complaint with
respect to such claims.
The suit is "West Palm Beach Firefighters' Pension Fund v.
Startek, Inc., et al., Case No. 1:05-cv-01265-PSF-OES," filed
with the U.S. District Court for the District of Colorado, Judge
Phillip S. Figa presiding.
Representing the plaintiffs is:
Matthew M. Wolf, Esq. (mwolf@allen-vellone.com)
Allen & Vellone, P.C.
1600 Stout Street, #1100
Denver, CO 80202
Phone: 303-534-4499
Representing the company are:
James E. Nesland, Esq. (neslandje@cooley.com)
Matthew Voss, Esq. (mvoss@cooley.com)
Cooley Godward, LLP
380 Interlocken Crescent, #900
Broomfield, CO 80021-8023
Phone: 720-566-4000
Fax: 720-566-4099
TELUS CORP: Canadian Court Certifies Access Fee Suit in 2007
------------------------------------------------------------
Telus Corp. said at its first-quarter financial report that on
Sept. 17, 2007, a Saskatchewan court in Canada certified a suit
filed against the company and other communications companies
over their collection of system access fees.
The lawsuit was brought on Aug. 9, 2004, under the Class
Actions Act of Saskatchewan against a number of past and present
wireless service providers including the company. The claim
alleges that each of the carriers is in breach of contract and
has violated competition, trade practices and consumer
protection legislation across Canada in connection with the
collection of system access fees. It seeks to recover direct
and punitive damages in an unspecified amount.
On July 18, 2006, the Saskatchewan court declined to certify the
action as a class action, but granted the plaintiffs leave to
renew their application in order to further address certain
statutory requirements respecting class actions (Class Action
Reporter, Aug. 8, 2006).
But on Sept. 17, 2007, the Saskatchewan Court of Queen's Bench,
certified the suit.
On February 20, 2008, the same court removed from the class all
customers of the Company who are bound by an arbitration clause,
applying two recent decisions of the Supreme Court of
Canada.
The Company has applied for leave to appeal the certification
decision. The Company believes that it has good defences to the
action.
TELUS Corporation (TSE: T, T.A; NYSE: TU) –
http://www.telus.com/-- is one of Canada's leading
telecommunications companies, providing a full range of
telecommunications products and services that connect Canadians
to the world. The company is the leading service provider in
Western Canada and provides data, Internet Protocol, voice and
wireless services to Central and Eastern Canada.
THINK BIG: Hammocks Sold by LivingXL Recalled Due to Fall Hazard
----------------------------------------------------------------
Think Big Products LLC, d/b/a LivingXL, of Canton, Mass., in
cooperation with the U.S. Consumer Product Safety Commission, is
recalling about 400 Multi Texteline Hammocks and Striped Quilted
Hammocks.
The company said the metal frame for the hammocks can crack and
break, causing a consumer to fall to the ground.
LivingXL has received three reports of injuries, including lower
back pain and broken ribs, when the hammock collapsed after the
frame broke or cracked.
The recalled hammocks are Model X1010 multi texteline hammock
and Model X1011 striped quilted hammock. They consist of a
metal frame and cloth hammock. The metal frame is made of
steel, is beige in color, and has five pieces, including two
foot brackets. The model number is located on the hammock's
packaging and instruction sheet.
Pictures of the recalled hammocks are found at:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08564a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08564b.jpg
These recalled hammocks were manufactured in India, imported by
CMRG Apparel, LLC, of Canton, Mass., and were being sold by
LivingXL's catalog or at http://www.LivingXL.comfrom May 2007
through October 2007 for between $170 and $200.
Consumers are adviced to immediately stop using the hammocks and
contact LivingXL for instructions on returning the hammock to
receive a full refund. LivingXL is directly notifying consumers
who purchased the hammock about the recall.
For additional information, contact LivingXL at 800-535-7639
extension 7777 anytime, or visit the company's Web site:
http://www.LivingXL.com
TIER TECHNOLOGIES: Virginia Court Throws Securities Fraud Suit
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Virginia
dismissed with prejudice the case, "Shiring v. Tier
Technologies, Inc. et al., Case No. 1:06-cv-01276-TSE-BRP,"
after both parties reached an amicable conclusion in the matter.
On Nov. 20, 2006, Tier Technologies was served with a purported
class action suit filed in the U.S. District Court for the
Eastern District of Virginia on behalf of purchasers of its
common stock. The suit alleged that Tier and certain of its
former officers issued false and misleading statements.
On July 24, 2007, the U.S. District Court for the Eastern
District of Virginia entered an order denying the plaintiff's
motion for class certification for the purported class action
lawsuit.
On Dec. 3, 2007, the court granted the company's motion to
dismiss the complaint, but gave the plaintiff an opportunity to
file an amended complaint.
On Jan. 29, 2008, the company settled the matter for a nominal
sum and entered into a mutual settlement agreement and release.
On Feb. 19, 2008, the U.S. District Court for the Eastern
District of Virginia dismissed the case with prejudice,
according to the company's May 6, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
May 6, 2008.
The suit is "Shiring v. Tier Technologies, Inc. et al., Case No.
1:06-cv-01276-TSE-BRP," filed in the U.S. District Court for
the Eastern District of Virginia, Judge T. S. Ellis, III,
presiding.
Representing the plaintiffs are:
Laurence Rosen, Esq. (lrosen@rosenlegal.com)
Phillip Kim, Esq. (pkim@rosenlegal.com)
The Rosen Law Firm P.A.
Phone: (212) 686-1060
(917) 797-4425
1866-767-3653
Fax: (212) 202-3827
Representing the defendants is:
Nicholas Ian Porritt, Esq.
Wilson Sonsini Goodrich & Rosati, PC
1700 K. St. NW, Suite 500
Washington, DC 20006-3817
Phone: 703-734-3100
Fax: 703-973-8899
UNITED WESTERN: California Court Affirms "Munoz" Case Dismissal
---------------------------------------------------------------
The California Court of Appeals affirmed the dismissal of the
purported class action, "Heraclio A. Munoz, et al. v. Sterling
Trust Co., et al.," which named United Western Bancorp, Inc., as
a defendant, according to United Western'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 was originally filed with the Superior Court of the
State of California on December 2001, and, aside from United
Western, it named Sterling Trust Co., United Western Bank, The
Vintage Group, Inc. and Vintage Delaware Holdings, Inc., as
defendants.
The complaint sought class-action status, requested unspecified
damages and alleged negligent misrepresentation, breach of
fiduciary duty and breach of written contract on the part of
Sterling Trust.
In the fourth quarter of 2005, Sterling Trust was granted
summary judgment as to all claims against it. In April 2006,
the court granted a motion for summary judgment, dismissing
Sterling Trust, United Western Bancorp, United Western Bank, The
Vintage Group and Vintage Delaware Holdings from the action.
On Sept. 27, 2006, the plaintiffs filed a Notice of Appeal with
the California Superior Court. The plaintiffs filed their
appellate brief with the California Court of Appeals on
March 19, 2007.
In March 2008, the California Court of Appeals issued a
tentative order which affirmed the trial court's decision
granting summary judgment in favor of Sterling. This decision
became final in April 2008.
The California Court of Appeals also awarded Sterling its costs
on appeal. Counsel for the plaintiffs in this matter has
indicated that the plaintiffs will not seek a review of the
court of appeals decision in the California Supreme court.
United Western Bancorp, Inc. -- http://www.uwbancorp.com/-- is
a unitary thrift holding company that, through its subsidiaries,
provides diversified financial services. The Company's core
business operations are conducted through operating
subsidiaries, including United Western Bank, Sterling Trust
Company, Matrix Financial Services Corporation, First Matrix
Investment Services Corp. and UWBK Fund Management, Inc. United
Western Bank's lending activities principally comprises
originated community bank loans and purchased wholesale loans.
Community bank loans consist of commercial real estate,
residential and commercial construction and development,
commercial and industrial, and consumer. United Western Bank
offers a variety of deposit accounts with a range of interest
rates and terms. United Western Bank's core deposits consist of
retail and institutional checking accounts, negotiable order of
withdrawal accounts, money market accounts, retail savings
accounts and certificates of deposit.
New Securities Fraud Cases
CBEYOND INC: Brian Felgoise Files Georgia Securities Fraud Suit
---------------------------------------------------------------
Law Offices of Brian M. Felgoise, P.C., disclosed that a
securities class action has been commenced in the United States
District Court for the Northern District of Georgia on behalf of
shareholders who acquired Cbeyond, Inc.'s securities between
November 1, 2007, and February 21, 2008, inclusive.
The action charges that defendants violated the federal
securities laws by issuing a series of materially false and
misleading statements to the market throughout the Class Period
which statements had the effect of artificially inflating the
market price of the Company's securities.
For more information, contact:
Brian M. Felgoise, Esq. (FelgoiseLaw@verizon.net)
261 Old York Road, Suite 423
Jenkintown, Pennsylvania, 19046
Phone: 215-886-1900
*********
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collectively face billions of dollars in asbestos-related
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*********
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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