/raid1/www/Hosts/bankrupt/CAR_Public/080514.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, May 14, 2008, Vol. 10, No. 95
Headlines
AEROTEK INC: Faces California Suit Over Labor Laws Violations
ARKANSAS BEST: Faces Lawsuit Over LTL Shipment Fuel Surcharges
ASSOCIATED ESTATES: No Summary Judgment Yet in Suredeposit Suit
BABY BOTTLE MAKERS: Face Kansas Lawsuit Over "Toxic" Bottles
BEAR STEARNS: Study Finds that Employees Should Opt Out of Suit
CANADA: Intrusive Electricity-Use Law Challenged in B.C. Suit
CENTRO PROPERTIES: To Fight AUD100-Million Lawsuit by IMF
CHARLIE'S PRODUCE: Recalls Cantaloupe for Possible Health Risk
CINCINNATI BELL: Denies Claims in Anthem Demutualization Lawsuit
CLIMATE MASTER: Faces Consumer Fraud Litigation in Illinois
DISCOVERY LABS: Appeals Court Upholds Surfaxin Suit Dismissal
ELI LILLY: Faces US & Canadian Suits Over Zyprexa Effects, Sale
ELI LILLY: N.Y. Court Dismisses Consolidated Securities Lawsuit
ELI LILLY: Indiana Court Still to Certify Racial Bias Case
GOOGLE: California Suit Filed on Defrauded Phone Users' Behalf
INTERMUNE INC: Lung Drug "Actimmune" Prompts California Lawsuit
IPO LITIGATION: N.Y. Court Denies Multiple Dismissal Motions
KINDER MORGAN: Arkansas State Court Dismisses "Johnson" Suit
LEADIS TECH: Appeals Court Reverses IPO Suit Dismissal Ruling
LIFELOCK INC: Sued in W.V. Over Deceptive Marketing Practices
LIVENT INC: Drabinsky Fraud Trial Begins After Six Years
MERRILL LYNCH: Faces Suits in N.Y. Over Auction Rate Securities
NEUROMETRIX: May 16 Deadline Set for Lead Plaintiff Application
PANTRY INC: Court Still to Approve Wage, Hour Suit Settlement
PANTRY INC: Alabama Court Dismisses FLSA Violations Lawsuit
PANTRY INC: KS Court Denies Motion to Dismiss "Hot Fuel" Suits
PARKER-HANNIFIN: Seeks Nixing of Marine Hose Price-Fixing Suit
PERFORMANCE FOOD: Faces Consolidated Merger Suit in Tennessee
SIGMA-ALDRICH: Suit Over Nitric Oxide Plant Accident on Appeal
ST. JUDE: Still Faces Silzone Suit Filed for E.E.U. Residents
ST. JUDE: Still Faces Suits Over Silzone-Coated Heart Valves
ST. JUDE: Discovery Ongoing in Minnesota Securities Fraud Case
STONYFIED FARM: Recalls Blueberry Yogurts Containing Fragments
TENET HEALTHCARE: Dismissal of RICO Violations Suit Under Appeal
TENET HEALTHCARE: Still Faces California Labor Violations Suits
VETERANS AFFAIRS: Vets Await Inadequate Healthcare Suit Verdict
WASHOE COUNTY: Incline Residents Sue Over Tax Revolt
* Overtime Class Actions Dead in British Columbia, FP Says
New Securities Fraud Cases
CANDELA CORP: Schiffrin Barroway Files Massachusetts Fraud Suit
OPPENHEIMER & CO: Girard Gibbs Files N.Y. Securities Fraud Suit
RBC DRAIN: Girard Gibbs Files Securities Fraud Lawsuit in N.Y.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
*********
AEROTEK INC: Faces California Suit Over Labor Laws Violations
-------------------------------------------------------------
General Motors Corp. and Aerotek Inc. are facing a class-action
complaint filed with the Superior Court of the State of
California in and for the County of San Diego alleging that
Aerotek required its district managers to drive GM cars no more
than two years old but did not reimburse them for it, or for
other expenses, and stiffed them for overtime, CourtHouse News
Service reports.
Named plaintiff Brian Hough claims that GM and Aerotek required
him to drive the nearly new GM cars in the course of his job
pushing GM's "ACDelco" products.
The plaintiff asks the court:
-- for nominal damages
-- for actual damages;
-- for compensatory damages;
-- for restitution of all compensation due to plaintiff;
-- for disgorged profits from the unfair and unlawful
business practices of defendants;
-- for interest accrued to date;
-- for interest pursuant to Labor Code sections 218.6 and
1194;
-- for punitive and exemplary damages;
-- for costs of suit and expenses incurred pursuant to
Labor Code sections 226, 1194, and 2802;
-- for reasonable attorneys' fees pursuant to Labor Code
sections 226, 1194, and 2802, and California Code of
Civil Procedure sections 1021.5;
-- for appropriate injunctive relief;
-- for appropriate equitable relief;
-- for all such other and further relief that the court may
deem just and proper.
The suit is "Brian Hough et al. v. Aerotek, Inc., et al., Case
No. 37-2008-00063506-CU-MT-CTL," filed in the Superior Court of
the State of California in and for the County of San Diego.
Representing the plaintiff is:
Harvey C. Berger, Esq.
Pope, Berger & Williams, LLP
550 West "C" street, Suite 1400
San Diego, California 92101
Phone: 619-595-1366
Fax: 619-236-9677
ARKANSAS BEST: Faces Lawsuit Over LTL Shipment Fuel Surcharges
--------------------------------------------------------------
Arkansas Best Corp. and other less-than-truckload carriers are
facing a consolidated class action suit in the U.S. District
Court for the Northern District of Georgia accusing them of
conspiring throughout four years or more to fix fuel surcharges
on LTL shipments, according Arkansas Best's May 6, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended March 31, 2008.
On July 30, 2007, Farm Water Technological Services, Inc. (doing
business as Water Tech) and C.B.J.T. (doing business as
Agricultural Supply), on behalf of themselves and other
plaintiffs, filed the putative class action lawsuit against
Arkansas Best and other companies engaged in the LTL trucking
business in the U.S. District Court for the Southern District of
California (Class Action Reporter, April 7, 2008).
The other named defendants in the complaint are:
-- Arkansas Best Corp.,
-- Averitt Express,
-- Con-Way, Inc.,
-- Fedex Corp.,
-- Jevic Transportation, Inc.,
-- Sun Capital Partners IV, LLC,
-- New England Motor Freight, Inc.,
-- R+L Carriers, Inc.,
-- Saia, Inc.,
-- United Parcel Service, Inc.,
-- YRC Worldwide Inc., and
-- Old Dominion Motor Freight, Inc.
Farm Water and its subsidiary, C.B.J.T. contend that the
practice dates back to 2003 (Class Action Reporter, Aug. 29,
2007). They assert that the carriers agreed to impose identical
or nearly identical surcharges by linking them to diesel fuel
prices published by the U.S. Department of Energy and by listing
surcharges on their websites to communicate pricing.
The plaintiff brings the action on behalf of all persons or
entities who purchase LTL service directly to defendants or
their unnamed co-conspirators from July 30, 2003, through the
conclusion of the trial in this matter (Class Action Reporter,
Aug. 2, 2007).
The plaintiff wants the court to rule on:
(a) whether defendants and their co-conspirators engaged in
a combination and conspiracy among themselves to fix,
raise, maintain or stabilize fuel surcharges imposed
for LTL services sold in the United States;
(b) the identity of participants in the conspiracy;
(c) the duration of the conspiracy alleged in this
complaint and the nature and character of the acts
performed by defendants and their co-conspirators in
furtherance of the conspiracy;
(d) whether the alleged conspiracy violated Section of the
Sherman Act;
(e) whether the conduct of defendants and their co-
conspirators, as alleged in the complaint, caused
injury to the business and property plaintiffs and
other members of the classes;
(f) the effect of defendants' conspiracy on the prices of
LTL services sold in the United States during the class
period; and
(g) the appropriate measure of damages sustained by
plaintiffs and other members of the damages class.
The plaintiffs pray that:
-- the court determines that this action may be maintained
as a class action under Rule 23 of the Federal Rules of
Civil Procedure;
-- the contract, combination or conspiracy, and the acts
done in furtherance thereof by defendants and their co-
conspirators, b adjudged to have been in violation of
Section 1 of the Sherman Act, 15 U.S.C. Section 1;
-- judgment be entered for plaintiffs and members of the
damages class against defendants for three times the
amount of damages sustained by plaintiffs and the
damages class as allowed by law, together with the costs
of this action, including reasonable attorneys' fees;
-- defendants and their affiliates, successors,
transferees, assignees, and the officers, directors,
partners, agents and employees thereof, and all other
persons acting or claiming to ac on their behalf, be
permanently enjoined and restrained from, in any manner:
(i) continuing, maintaining or renewing the contract,
combination or conspiracy alleged, or from engaging
in any other contract, combination or conspiracy
having a similar purpose or effect, and from
adopting or following any practice, plan, program
or device having a similar purpose or effect; and
(ii) communicating or causing to be communicated to any
other person engaged in the manufacture,
distribution or sale of any product except to the
extent necessary in connection with a bona fide
sales transaction between the parties to such
communications; and
-- plaintiffs and members of the class have such other,
further and different relief as the case may require and
the court may deem just and proper under the
circumstances.
Subsequent to this original complaint, similar complaints have
been filed against the defendants and other LTL motor carriers,
each with the same allegation of conspiracy to fix fuel
surcharge rates.
On Dec. 20, 2007, these cases were consolidated in the U.S.
District Court for the Northern District of Georgia and are now
in the process of being transferred to that court.
Arkansas Best Corp. -- http://www.arkbest.com/-- is a holding
company. The Company, through its subsidiaries, is engaged in
motor carrier transportation operations. Its principal
subsidiary is ABF Freight System, Inc. ABF offers national,
inter-regional and regional transportation of general
commodities through standard, expedited and guaranteed less-
than-truckload services. General commodities include all
freight except hazardous waste, dangerous explosives,
commodities of exceptionally high value and commodities in bulk.
ABF accounted for 96.4% of the Company's consolidated revenues
for 2007. The Company's LTL motor carrier operations are
conducted through ABF, ABF Freight System Ltd., ABF Freight
System Canada, Ltd., ABF Cartage, Inc. and Land-Marine Cargo,
Inc. On June 15, 2006, the Company sold its wholly owned
subsidiary, Clipper Exxpress Co., to a division of Wheels Group.
With this sale, the Company exited the intermodal transportation
business.
ASSOCIATED ESTATES: No Summary Judgment Yet in Suredeposit Suit
---------------------------------------------------------------
The Franklin County, Ohio Court of Common Pleas has yet to rule
on a motion for summary judgment filed by Associated Estates
Realty Corp. in a suit over its Suredeposit program.
On or about April 14, 2002, Melanie and Kyle Kopp commenced an
action against the company in the Franklin County, Ohio Court of
Common Pleas seeking undetermined damages, injunctive relief and
class action certification. This case arose out of the
company's Suredeposit program.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
The plaintiffs allege that the non-refundable premium paid for
the bond is a disguised form of security deposit, which is
otherwise required to be refundable in accordance with Ohio's
Landlord-Tenant Act.
They further allege that certain pet deposits and other
nonrefundable deposits required by the company are similarly
security deposits that must be refundable in accordance with
Ohio's Landlord-Tenant Act.
On or about Jan. 15, 2004, the plaintiffs filed a motion for
class certification. The company subsequently filed a motion
for summary judgment. Both motions are pending before the
court.
The company reported no further development in the matter in its
May 6, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2008.
Associated Estates Realty Corp. -- http://www.aecrealty.com/--
is an integrated multifamily real estate company engaged in
property acquisition, advisory, development, management,
disposition, operation and ownership activities.
BABY BOTTLE MAKERS: Face Kansas Lawsuit Over "Toxic" Bottles
------------------------------------------------------------
On May 1, 2008, Rights For America attorneys Robert H. Weiss,
Esq., and Stephen Murakami, Esq., along with two prominent class
action law firms -- Scharnhorst Ast & Kennard, P.C. and The
Hodges Law Firm -- filed a billion-dollar class action lawsuit
against the top five baby bottle manufacturers:
1. Avent America,
2. Evenflo,
3. Gerber,
4. Handi-Craft (Dr. Brown's), and
5. Playtex
for their use of Bisphenol A in polycarbonate plastic baby
bottles and toddler training cups.
The lawsuit was filed in the United States District Court for
the District of Kansas pursuant to Kansas Consumer Protection
Laws on behalf of persons living in Kansas who purchased
polycarbonate plastic baby bottles, bottle liners and training
cups containing the chemical Bisphenol-A.
This is the third class action lawsuit filed by Mr. Weiss. Mr.
Weiss filed the first such lawsuit last spring in California
against the same baby bottle manufacturers and the lawsuit is
presently active in the Superior Court of Los Angeles County
before Judge Chaney. The second lawsuit was filed on April 30,
2008, in the United States District Court for the Western
District of Missouri.
Bisphenol-A or BPA was developed in the 1930s as a synthetic
estrogen, but it is used mostly today in polycarbonate plastic
as it can make plastic shatterproof. Studies have shown that
BPA can activate estrogen receptors that lead to the same
effects as the body's own estrogens. Exposure to BPA has been
linked to lowered sperm count and infertile sperm in men,
developmental toxicity, carcinogenic effects, and possible
neurotoxicity.
Infants are especially vulnerable and are believed to be at a
greater risk from the effects of BPA, which acts as a powerful
hormone that can interfere with an infant's normal brain and
sexual development.
Mr. Weiss and Rights For America say they are committed to
protecting infants and will not stop until the infants of
America are protected.
The suit is "Wilson et al et al v. Avent America, Inc. et al.,
Case Number: 2:2008cv02201," filed with the United States
District Court for the District of Kansas.
BEAR STEARNS: Study Finds that Employees Should Opt Out of Suit
---------------------------------------------------------------
Based on a recently completed study, The Sherman Law Firm
concluded that Bear Stearns employees with substantial losses
stand to obtain far greater monetary recoveries by opting out of
class actions and proceeding with individual lawsuits against
the fallen investment bank.
Class Actions
Beginning on March 17, 2008, a number of prominent class action
firms filed putative class action claims against Bear Stearns on
behalf of Bear Stearns employees.
A class action is a special type of lawsuit in which a group of
plaintiffs that share substantially similar legal claims against
one or more defendants band together in a single lawsuit. Class
actions are known as "representative actions," because one or
more plaintiffs are actually named in the class action
complaint. Along with their attorneys, these named plaintiffs
pursue the case as representatives for an entire defined class
(in this instance a class might consist of one or more
categories of Bear Stearns employees).
Most class action claims settle. The end result, however, is
that there often is not much money distributed to individual
class members. In a 2006 article, Lawsuitssearch.com stated:
"Often being part of a class action lawsuit is not financially
advantageous to an individual. Even though the defendant named
in the case may be required to pay out a large sum of money, one
individual who is part of the class action will only receive a
small portion of that sum."
A study published by NERA Economic Consulting supported the
statement of Lawsuitsearch.com. NERA reported that the average
settlement recovery in securities class actions in 2006 was only
2.2% of investor losses. Bear Stearns employees who suffered
devastating losses told The Sherman Law Firm that they would be
little helped by a class action settlement for 2.2% of aggregate
investor losses.
"Opt out" cases
While class action claims against Bear Stearns have received a
great deal of news coverage, articles on the right of Bear
Stearns employees to opt out are nearly impossible to find. For
this reason, it is not be surprising that many Bear Stearns
employees are unaware of the right to opt out of class action
litigation. In opting out, an individual is electing not to be
part of a class, not to be bound by rulings that affect the
class, and not to be forced to accept any class action
settlement. A Bear Stearns employee who decides to opt out
generally will hire his or her own lawyer and proceed against
Bear Stearns in an individual litigation.
Research shows that opt out plaintiffs pursuing their own cases
are generally faring much better than the 2.2 percent average
securities class action settlement in 2006. A prominent example
is the recent AOL Time Warner Class Action. In April 2007,
Oakbridge Insurance Services wrote in its "Insights" report that
AOL Time Warner opt-out plaintiffs reported recoveries that were
between 6.5 and 50 times higher than what plaintiffs received in
the class action settlement. Other sources indicate that the
average Time Warner opt-out investor recovered 20 times more
than the average class action investor.
It is too early to tell whether the huge advantage for AOL Time
Warner opt out plaintiffs will prove to be high or typical.
Still, Oakbridge noted that, as a whole, the "the elevated
percentage of investment loss recoveries in the opt-out cases"
is a concern to class action defendants and to D&O insurers.
Conclusion
The study underlying this release was intended to compare the
relative merits of class action litigation versus opt out
litigation for Bear Stearns employees. Based on statistical
evidence from NERA and the outcomes of prominent securities
class action, the only reasonable conclusion is that Bear
Stearns employees with substantial losses have a dramatically
better chance to recover a higher percentage of losses in
individual opt out cases rather than as participants in class
actions.
Disclaimer
Because the study was statistically based, it does not take into
account individual circumstances such as quality of counsel, and
facts which may be unique to any individual. Bear Stearns
employees should consult with an attorney about pursuing claims
as part of a class action or through individual litigation.
For more information, contact:
Brett D. Sherman, Esq.
The Sherman Law Firm
152 Woodland Road
Demarest, NJ 07627
Phone: 201-723-9470
e-mail: information@shermanlawyers.net
Web site: http://www.shermanlawyers.net
CANADA: Intrusive Electricity-Use Law Challenged in B.C. Suit
-------------------------------------------------------------
The City of Coquitlam is facing a class-action complaint filed
in the Supreme Court of British Columbia challenging its
"Intrusive Electricity-Use Law," CourtHouse News SERvice
reports.
According to the complaint, a City of Coquitlam ordinance
unconstitutionally allows warrantless searches of private homes
that use a lot of electricity, on mere suspicion that the
residents are using the power to grow marijuana.
The plaintiffs claim the British Columbia Hydro and Power
Authority has no right to report such electricity consumption to
the Mounties.
The complaint states that BC Hydro identified the Property to
Coquitlam as being a marijuana grow operation based on the rate
of electricity consumption and it was based solely on this
information that Coquitlam invoked the By-Law against the
plaintiffs.
The plaintiffs had an expectation of privacy over and a right to
privacy in their personal information, including without
limiting the generality of the foregoing, the amount and
patterns of consumption of electricity at the property, gathered
and held by BC Hydro.
This action is brought on behalf of a proposed class of persons
with similar claims pursuant to the provisions of the Class
Proceedings Act, RSBC 1996, c.50.
The plaintiffs ask the court for:
(a) general, aggravated, special, exemplary and punitive
damages for invasion of privacy, trespass, negligent
misrepresentation, breach of contract, inducement of
breach of contract and interference with contractual
relations;
(b) a declaration that the By-Law is ultra vires;
(c) a declaration that the By-Law is unconstitutional
and unlawful and, therefore, of no force and effect;
(d) a declaration that the inspection was unconstitutional
and unlawful;
(e) damages in the total amount of all fees, fines and
other amounts unlawfully charged to the plaintiffs by
the defendants;
(f) an accounting of all monies paid by the plaintiffs to
the defendants as aforesaid;
(g) a declaration of trust in favor of the plaintiffs in
the full amount of the money paid to the defendants;
(h) an order for restitution;
(i) repayment of all amount paid under a mistake of law;
(j) costs, including special costs;
(k) interest pursuant to the Court Order Interest Act, RSBC
1996. c. 79; and
(l) such further and other relief as the court may seem
just.
The suit is "Nicola Monaco et al. v. City of Coquitlam et al.,
Case No. S-083289," filed in the Supreme Court of British
Columbia.
Representing the plaintiffs are:
Alexander Markham-Zantvoort, Esq.
Comparelli & Company
510 Weest hastings Street
Vancouver, British Columbia V6B 1L8
Phone: 604-683-6888
Fax: 604-683-4497
CENTRO PROPERTIES: To Fight AUD100-Million Lawsuit by IMF
---------------------------------------------------------
Centro Properties Group and Centro Retail Group say that they
will vigorously defend themselves in a class action lawsuit
filed against them, according to Melbourne Herald Sun.
Centro Properties said in a statement that it "will vigorously
defend the proceeding in the interests of its securityholders."
Melbourne Herald recounts that the class action has been brought
against the troubled property group, and CPT Manager Ltd -- the
responsible entity for Centro Property Trust -- in the Federal
Court in Melbourne. The shareholder class action against the
property fund, with a claim value of at least AUD100 million,
was commenced by litigation funder IMF Australia Ltd.
"The claims relate to alleged misleading and deceptive conduct
and breaches by (Centro) of its continuous disclosure
obligations between 9 August 2007 and 15 February 2008," IMF
said on May 9, 2008.
The shareholder claim, pursued by legal firm Maurice Blackburn,
will seek compensation over the price paid for securities
inflated by Centro's alleged failure to properly disclose its
circumstances.
"Last month, the maximum claim value was $100 million," IMF said
last week. "But since then the claim value has increased
materially."
Melbourne Herald relates that last week, Centro was thrown
another lifeline by its lenders with debt maturities now
extended to December 15, 2008, including AUD2.3 billion owed to
a syndicate of Australian banks and US$450 million
(AUD478.06 million) owed to US private placement noteholders.
Centro and some of its subsidiaries have provided security for
the debt by way of fixed and floating charges and some US real
estate, the report points out.
To close the debt deal, a series of conditions must be met by
May 30, 2008, including Centro's creditors establishing a
consent process for refinancing and how proceeds from asset
sales are distributed, Melbourne Herald says.
As well, by May 30, Centro must have finalized a AUD155-million
"liquidity facility" to pay for capital expenditure, adviser
fees and higher lender costs.
Melbourne Herald notes that also tied to last week's
announcement is another two obligations of US$1.1 billion each
(AUD1.2 billion), owed by Centro and Centro Retail Trust on
their U.S. joint venture, which will also be pushed back to the
December 15 deadline from September 30. The rollover of that
joint venture debt also is contingent on the conditions set out
in the deal being inked by the May 30 deadline.
Melbourne Herald recalls that Centro's troubles became apparent
in December last year, sending its shares tumbling 80% when it
announced thatit was struggling with the leverage on its 800-
strong property portfolio spanning Australia, New Zealand and
the United States. As part of its survival plan, Centro is
fielding offers for two of its unlisted property portfolios, the
Australia Wholesale Fund and its America Fund.
In March 2008, Melbourne Herald further recounts, IMF managing
director John Walker said more transparency was needed in a
market that lacked liquidity. He said Centro had failed to
disclose its short-term debt and, when it was disclosed, the
price of the stock dropped significantly. Mr. Walker said
investors would not have bought the stock during the non-
disclosure period had they been fully informed.
CHARLIE'S PRODUCE: Recalls Cantaloupe for Possible Health Risk
--------------------------------------------------------------
Charlie's Produce of Spokane, Washington, is recalling Charlie's
Produce Brand Cut Cantaloupe Products because they have the
potential to be contaminated with Salmonella, an organism which
can cause serious and sometimes fatal infections in young
children, frail or elderly people, and others with weakened
immune systems.
Healthy persons infected with Salmonella often experience fever,
diarrhea (which may be bloody), nausea, vomiting and abdominal
pain. In rare circumstances, infection with Salmonella can
result in the organism getting into the bloodstream and
producing more severe illnesses such as arterial infections
(i.e., infected aneurysms), endocarditis and arthritis.
The products recalled by Charlie's Produce Spokane include the
following fruit items containing cut cantaloupe:
Retail Products:
* Cut Fruit 4 Section – 40oz
* Cut Cantaloupe – 24oz, 16oz, 8oz
* Cut Honeydew/Cantaloupe - 16oz
* Mixed Fruit –24oz, 16oz, 8oz
* Rainbow - 24oz, 16oz, 8oz
* Cut Fruit Tray Deli – 12', 8'
* Cut Fruit Tray - 76oz, 40oz 8'
* Grab & Go Fruit Tray - 16oz
Foodservice Products:
* Cut Cantaloupe – 20lb, 64oz
* Cut Mixed Fruit – 20lb, 64oz
These products containing cantaloupe were distributed in Eastern
Washington, Idaho, and Montana to retail stores, delis, and
foodservice institutions.
Products are branded with the Charlie's Produce name and logo,
in a hard plastic clamshell, with a "Use By" date of "3 07"
through "3 29" stamped on the bottom of the container.
No illnesses have been reported to date.
Cantaloupe used in these products may have been supplied from
Agropecuaria Montelibano, a Honduran grower and packer, to
Charlie's Produce Spokane. This recall was initiated when the
U.S. Food and Drug Administration issued an import alert
regarding cantaloupe from this grower, because, based on current
information, fruit from this company appears to be associated
with a Salmonella Litchfield outbreak in the United States and
Canada.
Consumers who have purchased these products are urged to return
them to the place of purchase for full refund. Customers with
questions may contact the company through:
Mike Ruff
Food Safety Director
Phone: 206-625-1412 (Monday – Friday)
CINCINNATI BELL: Denies Claims in Anthem Demutualization Lawsuit
----------------------------------------------------------------
Cincinnati Bell, Inc., denied all allegations that were asserted
in a class-action complaint filed in the U.S. District Court for
the Southern District of Ohio, 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. The suit
alleges that Cincinnati Bell defrauded policyholders of 459,223
shares of Anthem common stock when defendant Anthem Insurance
Cos., Inc., demutualized.
Also named as defendants in the suit are:
-- Broadwing IT Consulting, Inc.
-- BRCOM Inc.
-- Cincinnati Bell Any Distance, Inc.,
-- Cincinnati Bell Long Distance, Inc.,
-- Cincinnati Bell Directory, Inc.,
-- Cincinnati Bell Public Communications, Inc.,
-- Zoomtown.com, Inc.,
-- Cincinnati Bell Entertainment, Inc.,
-- Cincinnati Bell Wireless Company,
-- Cincinnati Bell Wireless, LLC,
-- Cincinnati Bell Technology Solutions, Inc.,
-- Cincinnati Bell Telecommunications Services, Inc.,
-- Cincinnati Bell Telecommunications Services, LLC,
-- Cincinnati Bell Supply Company,
-- Enterprise IT Consulting, LLC,
-- Anthem Inc. n/k/a Wellpoint, Inc., and
-- Community Insurance Co. f/k/a Community Mutual
Insurance, Co.
This is a class action brought under the court's diversity
jurisdiction as expanded by the Class Action Fairness Act of
2005 asserting state common law claims for breach of contract,
conversion and misappropriation, aiding and abetting conversion
and misappropriation, breach of fiduciary duties, aiding and
abetting breach of fiduciary duties, and breach of agency
agreement seeking compensatory and punitive damages and other
appropriate relief (Class Action Reporter, Nov. 29, 2007).
Policyholders bring this action on behalf of individuals who
were named as insured persons covered under the Group Policy, or
who were members of a named group of insured persons covered
under the Group Policy, to recover the value of 459,223 shares
of Anthem common stock that should have been paid to them upon
the demutualization of Anthem Insurance, but which shares of
stock were improperly paid to and kept by Broadwing and its
subsidiaries and affiliates instead.
The plaintiffs pray that the court:
-- issue an order certifying the case as a class action
pursuant to Rule 23(b)(3) of the Fed.R.civ.P., and
certifying the class as alleged and defined;
-- order broadwing and its subsidiaries to provide the
class members with an accounting of the Anthem shares
sold and the net proceeds received from the stock sales;
-- order Anthem to specifically perform its obligations
under insurance law and under the relevant agreements
between its predecessors in interest and CBI's
predecessors in interest, and thereupon issue,
distribute and deliver 918,446 shares of WellPoint
common stock to and among the class members to account
for the 2-for-1 stock split that occurred after Jan.
2002;
-- grant preliminary and permanent injunctive relief in
favor of plaintiffs in the form of orders requiring
defendants, and each of them, to conform their conduct
to the terms of the specific performance order prayed
for;
-- award plaintiffs compensatory damages to be paid by
defendants and each f them, jointly and severally, with
respect to each claim for relief in amounts ranging
between $23.4 million and $75 million to be determined
from the evidence in accordance with law;
-- award plaintiffs punitive damages in amounts ranging
between $50 million and $150 million to be determined
from the evidence in accordance to law;
-- award plaintiffs their costs and expenses of this action
including reasonable attorneys' fees, together with pre-
judgment and post-judgment interest at the maximum rate
allowed by law; and
-- grant such other and further relief as the court may
deem just and proper.
In February 2008, Cincinnati Bell filed a response in which it
denied all liability in the matter and raised a number of
defenses.
The suit is "Wayne Stapp et al. v. Broadwing, Inc. et al., Case
No. 1:07-cv-00970," filed in the U.S. District Court for the
Southern District of Ohio.
Representing plaintiffs are:
Eric H. Zagrans, Esq. (eric@zagrans.com)
Zagrans Law Firm
474 Overbrook Road
Elyria, Ohio 44035
Phone: 440-452-7100
- and -
Dennis P. Barron, Esq. (DennisPBarron@aol.com)
582 Torrence Lane
Cincinnati, Ohio 45208
Phone: 513-871-2369
CLIMATE MASTER: Faces Consumer Fraud Litigation in Illinois
-----------------------------------------------------------
Climate Master, Inc., a unit of LSB Industries, Inc., is facing
a purported class action lawsuit filed in the Illinois state
district court in September 2007, alleging that certain
evaporator coils sold by Climate Master in Illinois from 1990 to
approximately 2003 were defective, according to LSB Industries'
May 6, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2008.
The complaint requests certification as a class action for the
State of Illinois, which request has not yet been heard by the
court.
The plaintiff asserts claims based upon negligence, strict
liability, breach of implied warranties, and the Illinois
Consumer Fraud and Deceptive Business Practices Act.
Climate Master has timely filed its pleadings to remove this
action to federal court. It has also filed its answer denying
the plaintiff's claims and asserting several affirmative
defenses.
LSB Industries, Inc. -- http://www.lsb-okc.com/-- is a
diversified holding company, which operates through its wholly
owned subsidiary, ThermaClime, Inc., and its subsidiaries. The
Company operates in two segments: Climate Control and Chemical.
Climate Control business is engaged in the manufacturing and
selling of a range of heating, ventilation and air conditioning
products for use in commercial and residential new building
construction, renovation of existing buildings and replacement
of existing systems. Chemical business is engaged in the
manufacturing and selling of chemical products produced from
plants in Texas, Arkansas and Alabama for the industrial, mining
and agricultural markets.
DISCOVERY LABS: Appeals Court Upholds Surfaxin Suit Dismissal
-------------------------------------------------------------
On April 29, 2008, the U.S. Court of Appeals for the Third
Circuit affirmed a lower court's dismissal of the plaintiffs'
285-paragraph complaint, which alleged that Discovery Labs
misled investors about the prospects for regulatory approval of
its lead product, Surfaxin, for the prevention of Respiratory
Distress Syndrome in premature infants.
On May 1, 2006, Hal Unschuld filed a lawsuit in the U.S.
District Court for the Eastern District of Pennsylvania,
individually and purportedly on behalf of a class of the
company's investors who purchased its publicly traded securities
between Dec. 28, 2005, and April 25, 2006 (Class Action
Reporter, June 15, 2006).
The suit was filed against the company and its chief
executive officer, Robert J. Capetola. The suit alleged
violations of Section 10(b) of the U.S. Securities Exchange Act
of 1934, Rule 10b-5 promulgated thereunder and Section 20(a) of
the Exchange Act in connection with various public statements
made by the company.
The plaintiff sought an order wherein the suit may proceed as a
class action and an award of compensatory damages in favor of
the plaintiff and the other class members in an unspecified
amount, together with interest and reimbursement of costs and
expenses of the litigation and other equitable or injunctive
relief.
The company was notified that two additional class action suits
seeking the same relief have since been filed in the U.S.
District Court for the Eastern District of Pennsylvania,
although the company has not been served with a complaint in
these actions.
All these lawsuits were consolidated.
On July 25, 2006, the U.S. District Court for the Eastern
District of Pennsylvania issued an order appointing the Mizla
Group as lead plaintiff in "In re Discovery Laboratories
Securities Litigation, No. 06-1820 (SD)." The court also
approved the appointment of Chimicles & Tikellis
LLP as lead counsel. On Aug. 10, 2006, at the court's mandate,
a consolidated amended complaint was filed.
On Sept. 14, 2006, the defendants filed a motion to dismiss the
consolidated amended complaint, and, in an order dated Nov. 1,
2006, the district court granted that motion while giving
the plaintiffs leave to file an amended complaint.
On Nov. 30, 2006, the second consolidated amended complaint was
filed against the company, CEO Capetola, and its former chief
operating officer, Christopher J. Schaber. It sought an order
that the suit proceed as a class action and an award of
compensatory damages in favor of the plaintiffs and the other
class members in an unspecified amount, together with interest
and reimbursement of costs and expenses of the litigation and
other equitable or injunctive relief.
On March 19, 2007, the court granted the company's motion to
dismiss the second consolidated amended complaint. On April 10,
2007, the plaintiffs filed a Notice of Appeal with the U.S.
District Court for the Eastern District of Pennsylvania.
Subsequently, the Third Circuit upheld the earlier rulings by
the U.S. District Court for the Eastern District of
Pennsylvania.
Robert L. Hickok and Gay Parks Rainville, partners with Pepper
Hamilton LLP, led the team defending Discovery Labs. The team's
extensive motions to dismiss pointed to voluminous public
documents that refuted the plaintiffs' claims against Discovery
Labs.
"Winning this type of litigation is a significant victory for
our client," said Mr. Hickok. "It should also help other
biotech start-ups that, like Discovery Labs, fully comply with
the securities laws but suffer a set-back in their efforts to
obtain regulatory approval of a new medicine. Development-stage
companies operate in an uncertain environment. Any bump along
the road to regulatory approval can adversely affect their stock
price. But, as the courts deciding the claims against Discovery
Labs recognized, such bumps, alone, do not signify securities
fraud."
Mary B. Templeton, Senior Vice President and Deputy General
Counsel of Discovery Labs, commented, "We are pleased that our
counsel on this matter, Pepper Hamilton, has effectively
presented our arguments, and that both the District Court and
the Third Circuit have recognized the quality of our disclosures
and dismissed this lawsuit in its entirety."
Ms. Rainville noted that "Pepper Hamilton's extensive experience
working with biotech and pharmaceutical clients makes us
particularly well-suited to defend these companies when they're
faced with this type of litigation. Because we know and
understand the drug development and regulatory approval
processes, we can effectively provide the court with the context
it needs for fairly assessing the disclosures at issue."
The suit is "In re Discovery Laboratories Securities Litigation,
Case No. 2:06-cv-01820-SD," filed in the U.S. District Court for
the Eastern District of Pennsylvania under Judge Stewart
Dalzell.
Representing the plaintiffs are:
James R. Malone, Esq. (jamesmalone@chimicles.com)
Joseph G. Sauder, Esq. (josephsauder@chimicles.com)
Chimicles & Tikellis LLP
361 West Lancaster Avenue
Haverford, PA 19401
Phone: 610-642-8500
Representing defendants are:
Michelle M. Crimaldi, Esq. (crimaldim@pepperlaw.com)
Robert L. Hickok, Esq. (hickokr@pepperlaw.com)
Christopher J. Huber, Esq. (huberc@pepperlaw.com)
Gay Barlow Parks Rainville, Esq.
(rainvilleg@pepperlaw.com)
Pepper Hamilton LLP
3000 Two Logan Square, 18th and Arch Streets
Philadelphia, PA 19103-2799
Phone: 215-981-4000
215-981-4583
215-981-4446
Fax: 215-981-4750
ELI LILLY: Faces US & Canadian Suits Over Zyprexa Effects, Sale
---------------------------------------------------------------
Eli Lilly and Co. faces several purported class action suit in
the U.S. and Canada over the side effects and marketing of
Zyprexa, 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.
U.S. Lawsuits
In 2005, two lawsuits were filed in the U.S. District Court for
the Eastern District of New York purporting to be nationwide
class action suits on behalf of all consumers and third-party
payors, excluding governmental entities, which have made or will
make payments for their members or insured patients being
prescribed Zyprexa.
These actions have now been consolidated into a single lawsuit,
which is brought under certain state consumer protection
statutes, the federal civil Racketeer Influenced and Corrupt
Organizations statute, and common law theories, seeking a refund
of the cost of Zyprexa, treble damages, punitive damages, and
attorneys' fees.
Two additional lawsuits were filed in the Eastern District of
New York in 2006 on similar grounds.
In 2007, The Pennsylvania Employees Trust Fund brought claims in
state court in Pennsylvania as insurer of Pennsylvania state
employees, who were prescribed Zyprexa on similar grounds as
described in the New York cases.
In general, these lawsuits allege that the company inadequately
tested for and warned about side effects of Zyprexa and
improperly promoted the drug.
Canadian Lawsuits
In early 2005, the company was served with four lawsuits seeking
class action status in Canada on behalf of patients who took
Zyprexa.
One of these four lawsuits has been certified for residents of
Quebec, and a second has been certified in Ontario and includes
all Canadian residents, except for residents of Quebec and
British Columbia.
The allegations in the Canadian actions are similar to those in
the litigation pending in the U.S.
The company reported no further developments in the cases.
Eli Lilly and Co. -- http://www.lilly.com/-- discovers,
develops, manufactures and sells products in one business
segment, pharmaceutical products. The Company also has an
animal health business segment. It manufactures and distributes
its products through owned or leased facilities in the U.S.,
Puerto Rico and 25 other countries. Eli Lilly and Company's
products are sold in approximately 135 countries. The Company
also conducts research to find products to treat diseases in
animals and to increase the efficiency of animal food
production. Its principal products include Neurosciences
products, Endocrinology products, Oncology products,
Cardiovascular products, Animal health products and Other
pharmaceuticals.
ELI LILLY: N.Y. Court Dismisses Consolidated Securities Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Eastern District of New York
dismissed a consolidated securities fraud litigation pending
against Eli Lilly and Co.
Initially, two cases were filed against the company and various
current and former directors, officers and employees. The suits
are:
-- "Smith et al. v. Eli Lilly and Company et al.," filed
on March 28, 2007, and
-- "Valentine v. Eli Lilly and Company et al.," filed on
April 5, 2007.
The suits have been consolidated under the caption, "In re Eli
Lilly and Company Securities Litigation."
In August 2007, the lead plaintiffs filed a consolidated amended
complaint, seeking certification of a putative class of
purchasers of the company's stock from Aug. 1, 2002, through
Dec. 22, 2006.
The complaint alleges that the defendants made false and
misleading statements regarding Zyprexa in violation of the U.S.
Securities Exchange Act of 1934, and seeks unspecified
compensatory damages and the costs of suit, including attorneys'
fees.
In October 2007, the defendants filed a motion to dismiss the
consolidated amended complaint. That motion has been converted
in part to a motion for summary judgment, and a hearing on the
motion was scheduled in March 2008.
In April 2008, the court granted summary judgment in favor of
all defendants, dismissing the action, 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.
Eli Lilly and Co. -- http://www.lilly.com/-- discovers,
develops, manufactures and sells products in one business
segment, pharmaceutical products. The Company also has an
animal health business segment. It manufactures and distributes
its products through owned or leased facilities in the U.S.,
Puerto Rico and 25 other countries. Eli Lilly and Company's
products are sold in approximately 135 countries. The Company
also conducts research to find products to treat diseases in
animals and to increase the efficiency of animal food
production. Its principal products include Neurosciences
products, Endocrinology products, Oncology products,
Cardiovascular products, Animal health products and Other
pharmaceuticals.
ELI LILLY: Indiana Court Still to Certify Racial Bias Case
----------------------------------------------------------
Eli Lilly and Co. continues to face a purported class action
suit filed in the U.S. District Court for the Southern District
of Indiana for alleged racial discrimination, 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.
The suit was filed in April 2006 by several workers of the drug
company who allegedly experienced racial discrimination (Class
Action Reporter, Nov. 2, 2007). Three former and one current
Eli Lilly employee alleged that the company paid black employees
less than their white counterparts, passed them over for
promotions and verbally abused them.
The alleged discrimination dates back to 2003. One of the
plaintiffs is Cassandra Welch, who was fired in mid-2004 for an
unrelated reason.
The suit is seeking class action on behalf of more than 1,000
black employees. It is asking unspecified damages, lost
compensation and an order enjoining Lilly against future
discrimination.
The other plaintiffs are current sales representative, Sheryl A.
Davis of Memphis, Tennessee; and two former sales reps, Jarmaine
Bromell of Philadelphia and Raynard Tyson of North Carolina.
In November 2007, the plaintiffs amended their original
complaint to add 50 new plaintiffs, as well as the national and
local chapters of the National Association for the Advancement
of Colored People.
Under the current schedule, the plaintiffs are to file their
class certification motion in April 2009.
The suit is "Welch et al. v. Eli Lilly & Company, Case No. 1:06-
cv-00641-RLY-VSS," filed in the U.S. District Court for the
Southern District of Indiana, Judge Richard L. Young, presiding.
Representing the plaintiffs are:
Joshua Rose, Esq.
Terri N. Marcus, Esq.
David L. Rose, Esq.
Rose & Rose, P.C.
1320 19TH ST., N.W., Suite 601
Washington, DC 20036
Phone: 202-331-8555
Fax: 202-331-0996
e-mail: daver@roselawyers.com
GOOGLE: California Suit Filed on Defrauded Phone Users' Behalf
--------------------------------------------------------------
Google Inc. is facing a class-action complaint filed in the
Superior Court of the State of California for the County of
Santa Clara alleging it aids and abets consumer fraud by
allowing third-party cell phone aggregators and other
unscrupulous businesses to use its "Google AdWords" program to
surreptitiously bill cell-phone users for services they do not
want and never ordered, CourtHouse News Service reports.
Named plaintiff Jenna Goddard brings this action on behalf all
persons or entities who suffered damages as a result of clicking
on a Google AdWords advertisement for mobile subscription
services which linked to a Fraudulent Mobile Subscription
Services Web site.
This case arises from the ever-increasing computerization of
cellular telephones. The cell phones used and owned by
Plaintiff and the other class members are sophisticated
electronics equipment and contain many (if not most) of the same
capabilities and equipment as traditional desktop computers, as
well as cellular radio signal processing technology.
This computerization means that most modem cellular telephones
are capable of transacting commerce through a variety of
functionalities, including -- most significantly for present
purposes -- "premium" text message services. These services,
also known as "mobile subscription services" and "mobile
content" include products that range from the basic (customized
ringtones for use with cell phones, sports score reports,
weather alerts, stock tips, horoscope services, and the like) to
those requiring more advanced capabilities (such as direct
payment services, interactive radio and participatory
television).
The plaintiff wants the court to rule on:
(a) whether class members are third party beneficiaries of
the content policy incorporated into Google's
Advertising Terms;
(b) whether Google breached its own Advertising Terms by
allowing the Fraudulent Mobile Subscription Services to
continue to use the AdWords program;
(c) whether Google undertook a duty to protect class
members from misleading landing pages used by the
Fraudulent Mobile Subscription Services;
(d) whether Google breached its duty to protect class
members from misleading landing pages used by the
Fraudulent Mobile Subscription Services;
(e) whether these practices violate the Computer Fraud and
Abuse Act (18 U.S.C. Section 1030);
(f) whether Google aided and abetted the commission of
fraud and trespass to chattels by the Fraudulent Mobile
Subscription Services;
(g) whether Google knew about the practices and income
of the Fraudulent Mobile Subscription Services;
(h) whether Google consciously avoided knowing about the
practices and income of the Fraudulent Mobile
Subscription Services; and
(i) whether the plaintiff and the class are entitled to
relief.
The plaintiff asks the court for:
-- an order certifying the class, directing that this
case proceed as a class action, and appointing plaintiff
and her counsel to represent the class;
-- equitable and injunctive relief against the defendant,
including a constructive trust, an accounting, and an
injunction prohibiting the continued unlawful business
practices alleged;
-- damages;
-- restitution and disgorgement of all ill-gotten gains
unjustly obtained and retained by the defendant through
acts complained of; and
-- an order granting reasonable attorneys' fees and costs,
as well as pre- and post-judgment interest at the
maximum legal rate.
The suit is "Jenna Goddard et al. v. Google Inc., Case No.
108CV222658," filed in the Superior Court of the State of
California for the County of Santa Clara.
Representing the plaintiffs are:
Alan Himmelfarb, Esq. (ahimmelfarb@kamberedelson.com)
KamberEdelson LLC
2757 Leonis Boulevard
Los Angeles, California 90058
Phone: 323-585-8696
- and -
Jay Edelson, Esq. (jedelson@kamberedelson.com)
Myles McGuire, Esq. (mmcguire@kamberedelson.com)
Ethan Preston, Esq. (epreston@amberedelson.com)
KamberEdelson LLC
53 West Jackson Boulevard, Suite 550
Chicago, Illinois 60604
Phone: 312-589-6370
INTERMUNE INC: Lung Drug "Actimmune" Prompts California Lawsuit
---------------------------------------------------------------
Intermune Inc. and Genentech Inc. are facing a class-action
complaint filed with the U.S. District Court for the Northern
District of California alleging it defrauded the public of
millions of dollars by pushing the drug Actimmune for idiopathic
pulmonary fibrosis, through misrepresentations, CourtHouse News
Service reports.
This is a proposed nationwide class action on behalf of
consumers and other end-payors of Actimmune -- a bioengineered
form of interferon-gamma, alleging fraud and deception in the
marketing and sale of Actimmune for scientifically unproven
purposes, primarily the treatment of idiopathic pulmonary
fibrosis.
Intermune CEO W. Scott Harkonen was criminally indicted for his
role in the alleged fraud, according to the RICO class action.
The plaintiff brings this action pursuant to Rule 23 of the
Federal Rules of Civil Procedure on behalf of all individuals
and entities in the United States and its territories who, for
purposes other than resale, purchased, reimbursed, and paid for
Actimmune for the treatment of IPD during the period from May 5,
1998, through the present.
the plaintiff wants the court to rule on:
(a) whether the defendants promoted the use of Actimmune
for unproven and ineffective uses;
(b) whether the defendants marketed Actimmune to physicians
for the treatment of IPF;
(c) whether the prescriptions of Actimmune for IPF were
supported by medical necessity and conferred any
medical benefit;
(d) whether the defendants engaged in a pattern or
deceptive, fraudulent, and unfair activity intended to
deceive and defraud the plaintiff and the class
members;
(f) whether the defendants trained, authorized, and
encouraged sales representatives to actively market
Actimmune as a treatment for IPF, a disease for which
Actimmune was medically unproven or ineffective, in
order to induce physicians to prescribe Actimmune;
(g) whether the defendants' fraudulent and unlawful
promotion of Actimmune, an unapproved and unproven
treatment for IPF, caused consumers and third-party
payors to pay for Actimmune which the patients did not
need and which provided them no medical benefit;
(h) whether defendants' publications and dissemination of
various press releases, faxes to physicians, and direct
mailings to patients caused consumers and third-party
payors to pay for Actimmune in circumstances in which
there was no medical benefit conferred on the patients
taking Actimmune; and
(i) whether the defendants are liable to the plaintiff and
the class members for damages for conduct actionable
under various state law provisions for unjust
enrichment.
The plaintiff demands judgment:
-- on the RICO claims, three times the damages the
plaintiff has sustained as a result of the defendant's
conduct, such amount to be determined at trial, plus
the plaintiff's costs in this suit, including reasonable
attorneys' fees;
-- on the claims under California Business and
Professions Code Section 17200, et seq., monetary relief
in the form of actual damages, restitution, and
disgorgement of ill-gotten gains, punitive or treble
damages, and such other relief as provided by law, such
amount to be determined at trial, plus plaintiff's costs
in this suit, including reasonable attorney's fees;
-- on the consumer protection act claims,
compensatory damages, three times the damages plaintiff
has sustained as a result of defendants' conduct, and
such other relief as provided by the statutes cited,
such amount to be determined at trial, plus plaintiff's
costs in this suit, including reasonable attorney's
fees;
-- on the claim for unjust enrichment, recovery in
the amount plaintiff's and the class' payment for
Actimmune based on prescriptions that were not supported
by medical necessity or benefit, such amount to be
determined at trial, plus plaintiff's costs in the suit,
including all reasonable attorney's fees;
-- awarding prejdugment and post-judgment interest on such
monetary relief;
-- awarding other appropriate equitable relief;
-- awarding plaintiffs their costs and expenses in the
litigation, including reasonable attorneys' fees and
expert fees; and
-- awarding plaintiffs such other and further relief as may
be just and proper under the circumstances.
The suit is "Deborah Jane Jarrett, et al. v. Intermune Inc.,
Case No. C08-02376," filed with the U.S. District Court for the
Northern District of California.
Representing the plaintiffs is:
Reed R. Kathrein, Esq. (reed@hbsslaw.com)
Hagens Berman Sobol Shapiro, LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Phone: 510-725-3000
Fax: 510-725-3001
IPO LITIGATION: N.Y. Court Denies Multiple Dismissal Motions
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
denied several motions that sought for the dismissal of the
matter "Initial Public Offering Securities Litigation."
Case Background
On Oct. 13, 2004, six selected focus cases, among the more than
300 coordinated cases in the IPO allocation litigation, were
certified as class actions. The actions are coordinated for
pretrial purposes before Judge Shira A. Scheindlin of the U.S.
District Court for the Southern District of New York.
The six focus cases are that against:
1. Corvis Corp.;
2. Engage Technologies, Inc.;
3. Firepond, Inc.;
4. iXL Enterprises, Inc.;
5. Sycamore Networks, Inc.; and
6. VA Linux Corp.
The IPO Litigation consists of 309 class actions involving more
than 300 IPOs marketed between 1998 and 2000. The defendants
include the companies brought public, certain of their officers
and directors and 55 of the investment banks that brought them
public and underwrote various follow-on offerings.
The lawsuits allege that the IPO offerings were manipulated by
the investment banks to artificially inflate the market price of
those securities and to reap excessive compensation and that
their conduct was concealed from the public, in violation of the
federal securities laws. There are also allegations that they
misused their securities analysts to hype the stock.
In June 2006, The Plaintiffs' Executive Committee announced that
a proposed settlement between the issuer defendants and their
directors and officers and the plaintiffs has been structured in
the IPO Securities Litigation which would guarantee at least (or
the first) $1 billion dollars to investors who are class members
from the insurers of the issuers.
Decertification of Focus Cases
On Dec. 5, 2006, the U.S. Court of Appeals for the 2nd Circuit
issued a decision reversing the court's ruling certifying six of
the cases in the consolidated proceedings as class actions.
On Dec. 14, 2006, the court agreed to stay all proceedings,
including consideration of the settlement, pending a decision
from the 2nd Circuit on whether it will hear further argument on
the class certification issue.
In seeking for a review, plaintiffs argued that the initial
decision by the 2nd U.S. Circuit Court of Appeals adopted
incorrect standards that a district court must apply in
determining whether to grant class certification, according to
Law.com.
They also said the circuit erred in concluding that the
criterion for certification set out in Rule 23(b)(3) of the
Federal Rule of Civil Procedure could not be satisfied with
respect to their class, and argued that a remand was appropriate
to enable the district court to reconsider the class
certification motion under the standards set forth by the
circuit.
Denial to Hear Rehearing of Decertification
On April 6, 2007, the Second Circuit denied plaintiffs' petition
for rehearing, but allowed the plaintiffs to request that the
district court certify a more limited class.
On April 23, 2007, plaintiffs requested 30 days to report to the
District Court on how they wish to proceed regarding class
certification.
The District Court indicated that a new class definition was a
priority for the issuers' proposed settlement agreement, and met
on May 30, 2007, to discuss this as well as other issues.
During the May 30, 2007 conference, the plaintiffs orally moved
for revised class certification and stated that they will seek
mixed class and merits discovery in advance of their opening
brief on class certification.
The plaintiffs also indicated that they may seek discovery from
issuers in cases other than the six focus cases.
On June 25, 2007, the parties submitted a stipulation to
terminate the settlement, which was granted by Court Order.
On June 26, 2007, plaintiffs served a document request on all
issuer defendants. On June 27, 2007, the Court held a
conference with counsel for all three groups in the case.
The parties agreed that the plaintiffs had until July 31, 2007,
to file any Amended Complaints.
In addition, the Court set the following briefing schedule for
class certification: opening briefs due by Sept. 27, 2007,
responses due by Dec. 21, 2007, and reply briefs due by Feb. 15,
2008.
Finally, the plaintiffs had until July 11, 2007, to respond to
the underwriters' motion, joined by the issuers, regarding the
statute of limitations.
There was a conference with the Court to address discovery
issues on July 25, 2007; however, the conference was adjourned
at the request of the parties, and has not been rescheduled.
On July 31, 2007, the plaintiffs requested that the Court extend
the deadline to Aug. 14, 2007, for filing any Amended
Complaints.
On Aug. 14, 2007, the plaintiffs filed amended complaints in the
six focus cases. The amended complaints include a number of
changes, such as changes to the definition of the purported
class of investors, and the elimination of the individual
defendants as defendants.
On Sept. 27, 2007, the plaintiffs filed a motion for class
certification in the six focus cases.
On Nov. 12, 2007, certain of the defendants in the focus cases
moved to dismiss the second consolidated amended class action
complaints.
On Dec. 21, 2007, the issuers and the underwriters filed papers
opposing plaintiffs' class certification motion and plaintiffs
filed an opposition to defendants' motions to dismiss.
On Jan. 28, 2008, the issuers and the underwriters filed reply
briefs in further support of their motions to dismiss the
amended complaints.
On March 26, 2008, the district court denied the motions to
dismiss except as to Section 11 claims raised by those
plaintiffs who sold their securities for a price in excess of
the initial offering price and those who purchased outside the
previously certified class period. Briefing on the class
certification motion was filed on April 22, 2008.
Issuer Begin Date End Date
------ ---------- --------
724 Solutions, Inc. 01/27/00 12/06/00
Accelerated Networks, Inc. 06/22/00 12/06/00
ACLARA BioSciences, Inc. 03/20/00 12/06/00
Aether Systems, Inc. 10/20/99 12/06/00
AGENCY.COM, Ltd. 12/08/99 12/06/00
Agile Software Corp. 08/20/99 12/06/00
Agilent Technologies, Inc. 11/17/99 12/06/00
AirNet Communications 12/06/99 12/06/00
Airspan Networks, Inc. 07/19/00 12/06/00
Akamai Technologies, Inc. 10/28/99 12/06/00
Alamosa PCS Holdings, Inc. 02/03/00 12/06/00
Alloy Online, Inc. 05/14/99 12/06/00
Antigenics Inc. 02/03/00 12/06/00
Apropos Technology, Inc. 02/17/00 12/06/00
Ariba, Inc. 06/23/99 12/06/00
Ashford.com, Inc. 09/22/99 12/06/00
AsiaInfo Holdings, Inc. 03/03/00 12/06/00
Ask Jeeves, Inc. 07/01/99 12/06/00
Audible, Inc. 07/15/99 12/06/00
Autobytel.com, Inc. 03/26/99 12/06/00
AutoWeb.com, Inc. 03/23/99 12/06/00
Avanex Corporation 02/03/00 12/06/00
AvantGo, Inc. 09/27/00 12/06/00
Avenue A, Inc. 02/28/00 12/06/00
Avici Systems Inc. 07/27/00 12/06/00
BackWeb Technologies Ltd. 06/07/99 12/06/00
Be Free, Inc. 11/03/99 12/06/00
Blue Martini Software, Inc. 07/24/00 12/06/00
Bookham Technology PLC 04/11/00 12/06/00
Bottomline Technologies, Inc. 02/12/99 12/06/00
Braun Consulting, Inc. 08/10/99 12/06/00
Breakaway Solutions, Inc. 10/05/99 12/06/00
Brocade Communication Systems, Inc. 05/24/99 12/06/00
BSQUARE Corporation 10/19/99 12/06/00
Buy.com, Inc. 02/07/00 12/06/00
CacheFlow, Inc. (now Blue Coat Systems) 11/19/99 12/06/00
Caldera International, Inc. 03/20/00 12/06/00
Calico Commerce, Inc. 10/06/99 12/06/00
Caliper Technologies Corp. (now Caliper
Life Sciences, Inc.) 12/14/99 12/06/00
Capstone Turbine Corp. 06/28/00 12/06/00
Carrier1 International SA 02/23/00 12/06/00
Centra Software, Inc. 02/03/00 12/06/00
chinadotcom corporation 07/12/99 12/06/00
Choice One Communications, Inc. 02/16/00 12/06/00
Chordiant Software, Inc. 02/14/00 12/06/00
Clarent Corporation 06/30/99 12/06/00
CNET Networks (named as successor-
in-interest to Ziff-Davis)1 03/30/99 12/06/00
Cobalt Networks, Inc. 11/05/99 12/06/00
Commerce One, Inc. 07/01/99 12/06/00
Concur Technologies, Inc. 12/16/98 12/06/00
Copper Mountain Networks, Inc. 05/12/99 12/06/00
Corio, Inc. 07/21/00 12/06/00
Corvis Corp. 07/27/00 12/06/00
Cosine Communications, Inc. 09/25/00 12/06/00
Covad Communications Group, Inc. 01/21/99 12/06/00
Critical Path, Inc. 03/29/99 12/06/00
CyberSource Corporation 06/23/99 12/06/00
Daleen Technologies, Inc. 09/30/99 12/06/00
Data Return Corp. 10/27/99 12/06/00
deCODE Genetics, Inc. 07/17/00 12/06/00
Delano Technology Corporation 02/09/00 12/06/00
deltathree, Inc. 11/22/99 12/06/00
Dice, Inc. (named as EarthWeb, Inc.) 11/10/98 12/06/00
Digimarc Corporation 12/01/99 12/06/00
Digital Impact, Inc. 11/22/99 12/06/00
Digital Insight Corp. 09/30/99 12/06/00
Digital Island Corporation (now Cable &
Wireless plc) 06/29/99 12/06/00
Digital River, Inc. 08/11/98 12/06/00
DigitalThink, Inc. 02/24/00 12/06/00
Digitas, Inc. 03/13/00 12/06/00
Diversa Corp. 02/14/00 12/06/00
DoubleClick, Inc. 12/11/98 12/06/00
Drugstore.com, Inc. 07/28/99 12/06/00
Epiphany, Inc. 09/21/99 12/06/00
eBenX Inc. 12/09/99 12/06/00
eGain Communications Corp. 09/23/99 12/06/00
El Sitio, Inc. 12/10/99 12/06/00
E-Loan, Inc. 06/28/99 12/06/00
Eloquent, Inc. 02/16/00 12/06/00
Engage Technologies, Inc. 07/20/99 12/06/00
Equinix, Inc. 08/10/00 12/06/00
eToys, Inc. 05/20/99 12/06/00
Evolve Software, Inc. 08/09/00 12/06/00
Exchange Applications, Inc. 12/09/98 12/06/00
EXFO Electro Optical Engineering, Inc. 06/29/00 12/06/00
Expedia, Inc. 11/09/99 12/06/00
Extensity, Inc. 01/26/00 12/06/00
Extreme Networks, Inc. 04/08/99 12/06/00
F5 Networks, Inc. 06/04/99 12/06/00
Fairmarket, Inc. 03/14/00 12/06/00
Fatbrain.com 11/19/98 12/06/00
Finisar Corp. 11/11/99 12/06/00
FirePond, Inc. 02/04/00 12/06/00
FlashNet Communications, Inc. 03/16/99 12/06/00
Focal Communications 07/28/99 12/06/00
Foundry Networks, Inc. 09/27/99 12/06/00
FreeMarkets, Inc. 12/09/99 12/06/00
Gadzoox Networks, Inc. 07/19/99 12/06/00
Gigamedia Ltd. 02/17/00 12/06/00
Global Crossing Ltd. 08/13/98 12/06/00
GlobeSpan, Inc. (now GlobeSpanVirata,
Inc.) 06/23/99 12/06/00
GoTo.com (now Overture Services, Inc.) 06/18/99 12/06/00
GRIC Communications 12/14/99 12/06/00
GT Group Telecom, Inc. 03/09/00 12/06/00
Handspring, Inc. (now PalmOne, Inc.) 06/20/00 12/06/00
High Speed Access Corp. 06/04/99 12/06/00
Hoover's, Inc. 07/20/99 12/06/00
iBasis, Inc. 11/10/99 12/06/00
iBeam Broadcasting Corporation 05/17/00 12/06/00
iManage, Inc. 11/17/99 12/06/00
Immersion Corp. 11/12/99 12/06/00
Impsat Fiber Networks, Inc. 01/31/00 12/06/00
Informatica Corp. 04/28/99 12/06/00
InforMax, Inc. (now Invitrogen Corp.) 10/02/00 12/06/00
Inforte Corp. 02/17/00 12/06/00
Inrange Technologies Corp. 09/21/00 12/06/00
InsWeb Corp. 07/22/99 12/06/00
Integrated Information Systems, Inc. 03/17/00 12/06/00
Integrated Telecom Express, Inc. 08/18/00 12/06/00
InterNAP Network Services Corporation 09/29/99 12/06/00
Internet Capital Group 08/04/99 12/06/00
Internet Initiative Japan, Inc. 08/03/99 12/06/00
Intersil Holding Corp. 02/24/00 12/06/00
InterTrust Technologies Corp. 10/26/99 12/06/00
interWAVE Communications
International Ltd. 01/31/00 12/06/00
Interwoven, Inc. 10/08/99 12/06/00
Intraware, Inc. 02/25/99 12/06/00
iPrint.com, Inc. (now iPrint
Technologies, Inc.) 03/07/00 12/06/00
ITXC Corporation 09/27/99 12/06/00
iVillage, Inc. 03/18/99 12/06/00
iXL Enterprises, Inc. 06/02/99 12/06/00
Jazztel PLC 12/08/99 12/06/00
JNI Corp. 10/26/99 12/06/00
Juniper Networks Inc. 06/24/99 12/06/00
Kana Software, Inc. 09/21/99 12/06/00
Keynote Systems Inc. 09/24/99 12/06/00
Korea Thrunet Co. Ltd. 09/16/99 12/06/00
Lante Corporation 02/10/00 12/06/00
Latitude Communications, Inc. 05/06/99 12/06/00
Lexent Inc. 07/27/00 12/06/00
Liberate Technologies (named as Liberate
Technologies, Inc.) 07/27/99 12/06/00
Lionbridge Technologies, Inc. 08/20/99 12/06/00
Liquid Audio, Inc. 07/08/99 12/06/00
Loudeye Technologies, Inc. 03/15/00 12/06/00
Manufacturers Services Ltd. 06/22/00 12/06/00
Marimba, Inc. 04/29/99 12/06/00
MarketWatch.com, Inc. 01/15/99 12/06/00
Martha Stewart Living
Omnimedia, Inc. 10/18/99 12/06/00
Marvell Technology Group, Ltd. 06/27/00 12/06/00
MatrixOne, Inc. 03/01/00 12/06/00
Maxygen, Inc. 12/15/99 12/06/00
McAfee.com Corp. 12/01/99 12/06/00
McData Corporation 08/09/00 12/06/00
MCK Communications, Inc. 10/22/99 12/06/00
Mediaplex, Inc. 11/19/99 12/06/00
MedicaLogic, Inc. 12/10/99 12/06/00
MetaSolv Software, Inc. 11/17/99 12/06/00
Metawave Communications Corp. 04/26/00 12/06/00
Microtune, Inc. 08/04/00 12/06/00
Modem Media, Inc. 02/05/99 12/06/00
MP3.com, Inc. 07/21/99 12/06/00
Multex.com, Inc. 03/17/99 12/06/00
NaviSite, Inc. 10/22/99 12/06/00
Neoforma.com, Inc. 01/24/00 12/06/00
Net Perceptions, Inc. 04/22/99 12/06/00
Net2000 Communications, Inc. 03/06/00 12/06/00
Net2Phone, Inc. 07/29/99 12/06/00
Netcentives, Inc. 10/13/99 12/06/00
NetRatings, Inc. 12/08/99 12/06/00
Netro Corporation (now SR Telecom Inc.) 08/18/99 12/06/00
NetSilicon, Inc. 09/15/99 12/06/00
NetSolve, Inc. 09/29/99 12/06/00
Network Engines Inc. 07/13/00 12/06/00
Network Plus Corporation 06/29/99 12/06/00
NetZero, Inc. 09/23/99 12/06/00
New Focus, Inc. 05/17/00 12/06/00
Next Level Communications 11/09/99 12/06/00
NextCard, Inc. 05/14/99 12/06/00
Nextel Partners, Inc. 02/22/00 12/06/00
Niku Corp. 02/28/00 12/06/00
Northpoint Communications Group Inc. 05/05/99 12/06/00
Nuance Communications, Inc. 04/12/00 12/06/00
OmniSky Corp. 09/20/00 12/06/00
OmniVision Technologies, Inc. 07/14/00 12/06/00
ON Semiconductor Corporation (named as
ON Semiconductor Corp.) 04/27/00 12/06/00
ONI Systems Corp. (now CIENA Corp.) 06/01/00 12/06/00
Onvia.com, Inc. 02/29/00 12/06/00
Onyx Software Corp. 02/11/99 12/06/00
OpenTV Corp. 11/23/99 12/06/00
Openwave Systems Inc. (named as Openwave
Systems, Inc.) (f/k/a Phone.com, Inc.) 06/11/99 12/06/00
Oplink Communications, Inc. 10/03/00 12/06/00
Optio Software, Inc. 12/15/99 12/06/00
OraPharma, Inc. 03/09/00 12/06/00
Oratec Interventions, Inc. 04/04/00 12/06/00
Orchid Biosciences, Inc. 05/04/00 12/06/00
Organic, Inc. 02/09/00 12/06/00
OTG Software, Inc. 03/10/00 12/06/00
Pacific Internet Ltd. 02/05/99 12/06/00
Packeteer, Inc. 07/27/99 12/06/00
Pac-West Telecomm, Inc. 11/03/99 12/06/00
Palm Inc. 03/01/00 12/06/00
Paradyne Networks, Inc. 07/15/99 12/06/00
pcOrder.com, Inc. (named as PCOrder.com,
Inc.) (now Trilogy Software, Inc.) 02/25/99 12/06/00
Perot Systems Corp. 02/01/99 12/06/00
PlanetRX.com 10/06/99 12/06/00
Portal Software, Inc. 05/05/99 12/06/00
Predictive Systems, Inc. 10/27/99 12/06/00
Preview Systems, Inc. 12/07/99 12/06/00
priceline.com Inc. (named as
Priceline.com, Inc.) 03/30/99 12/06/00
Primus Knowledge Solutions Inc. 07/01/99 12/06/00
Prodigy Communications Inc. 02/10/99 12/06/00
Proton Energy Systems, Inc. 09/28/00 12/06/00
PSi Technologies Holdings, Inc. 03/16/00 12/06/00
PurchasePro.com, Inc. 09/13/99 12/06/00
Quest Software, Inc. 08/13/99 12/06/00
Quicklogic Corp. 10/14/99 12/06/00
Radio One, Inc. 05/06/99 12/06/00
Radio Unica Communications Corp. 10/19/99 12/06/00
Radware Ltd. 09/30/99 12/06/00
Ravisent Technologies, Inc. 07/16/99 12/06/00
Razorfish, Inc. 04/26/99 12/06/00
Red Hat, Inc. 08/11/99 12/06/00
Redback Networks, Inc. 05/17/99 12/06/00
Regent Communications Inc. 01/24/00 12/06/00
Register.com, Inc. 03/02/00 12/06/00
Repeater Technologies, Inc. 08/08/00 12/06/00
Resonate, Inc. 08/02/00 12/06/00
Retek Inc. 11/17/99 12/06/00
Rhythms NetConnections, Inc. 04/06/99 12/06/00
Rowecom, Inc. 03/09/99 12/06/00
Saba Software, Inc. 04/06/00 12/06/00
Satyam Infoway, Inc. 10/18/99 12/06/00
SciQuest.com, Inc. 11/19/99 12/06/00
Selectica, Inc. 03/09/00 12/06/00
Sequenom, Inc. 01/31/00 12/06/00
Silicon Image, Inc. 10/05/99 12/06/00
Silicon Laboratories, Inc. 03/24/00 12/06/00
SilverStream Software, Inc. 08/16/99 12/06/00
Sirenza Microdevices, Inc. (f/k/a Stanford
Microdevices) 05/24/00 12/06/00
SmartDisk Corporation 10/05/99 12/06/00
SMTC Corp. 07/20/00 12/06/00
SonicWALL, Inc. 11/11/99 12/06/00
Sonus Networks, Inc. 05/24/00 12/06/00
Spanish Broadcasting System, Inc. 10/27/99 12/06/00
Stamps.com, Inc. 06/24/99 12/06/00
StarMedia Network, Inc. (now CycleLogic,
Inc.) 05/25/99 12/06/00
StorageNetworks, Inc. 06/29/00 12/06/00
Stratos Lightwave, Inc. (now known as
Stratos International, Inc.) 06/26/00 12/06/00
Support.com, Inc. (now SupportSoft, Inc.) 07/18/00 12/06/00
Switchboard, Inc. 03/02/00 12/06/00
Sycamore Networks, Inc. 10/21/99 12/06/00
Talarian Corporation 07/20/00 12/06/00
Telaxis Communications Corp.
(now YDI Wireless, Inc.) 02/01/00 12/06/00
TeleCommunication Systems Inc. 08/07/00 12/06/00
TeleCorp PCS, Inc. 11/23/99 12/06/00
TenFold Corp. 05/21/99 12/06/00
Terra Networks, S.A. 11/15/99 12/06/00
TheGlobe.com, Inc. 11/12/98 12/06/00
TheStreet.com, Inc. 05/10/99 12/06/00
TIBCO Software, Inc. 07/13/99 12/06/00
Ticketmaster Online-CitySearch, Inc. (now
Ticketmaster) 12/02/98 12/06/00
Tickets.com, Inc. 11/03/99 12/06/00
Tippingpoint Technologies, Inc. 03/17/00 12/06/00
TiVo, Inc. 09/29/99 12/06/00
Transmeta Corporation (named as Transmeta
Corp.) 11/06/00 12/06/00
Triton Network Systems, Inc. 07/12/00 12/06/00
Turnstone Systems, Inc. 01/31/00 12/06/00
Tut Systems, Inc. 01/29/99 12/06/00
UAXS Global Holdings Inc. (now Universal
Access Global Holdings Inc.) 03/16/00 12/06/00
United Pan-European Communications NV 02/11/99 12/06/00
Usinternetworking, Inc. 04/08/99 12/06/00
UTStarcom, Inc. 03/02/00 12/06/00
VA Linux Systems Inc. (now VA Software
Corp.) 12/09/99 12/06/00
ValiCert, Inc. 07/27/00 12/06/00
Valley Media, Inc. 03/26/99 12/06/00
Value America, Inc. 04/08/99 12/06/00
Variagenics, Inc. 07/21/00 12/06/00
Ventro Corporation (now NexPrise, Inc.) 07/26/99 12/06/00
Verado Holdings, Inc. (f/k/a First World
Comm. Inc.) 03/08/00 12/06/00
VerticalNet, Inc. 02/10/99 12/06/00
VIA Net.Works, Inc. 02/11/00 12/06/00
Viador, Inc. 10/25/99 12/06/00
Viant Corporation 06/17/99 12/06/00
Vicinity Corporation 02/09/00 12/06/00
Vignette Corp. 02/19/99 12/06/00
Virage, Inc. 06/29/00 12/06/00
Vitria Technology, Inc. 09/16/99 12/06/00
Vixel Corp. (now Emulex Corp.) 10/01/99 12/06/00
WebMD Corporation 02/10/99 12/06/00
WebMethods, Inc. (named as WebMethods,
Inc.) 02/10/00 12/06/00
Webvan Group, Inc. 11/04/99 12/06/00
Wink Communications 08/19/99 12/06/00
Wireless Facilities, Inc. 11/04/99 12/06/00
Women.com Networks, Inc. 10/14/99 12/06/00
World Wrestling Federation Entertainment,
Inc. 10/18/99 12/06/00
XCare.net, Inc. (now Quovadx, Inc.) 02/09/00 12/06/00
Xpedior, Inc. 12/15/99 12/06/00
Z-Tel Technologies, Inc. 12/15/99 12/06/00
For more details, visit http://www.iposecuritieslitigation.com/
KINDER MORGAN: Arkansas State Court Dismisses "Johnson" Suit
------------------------------------------------------------
The Circuit Court for Miller County, Arkansas, dismissed in its
entirety the class action suit captioned "Weldon Johnson and Guy
Sparks, et al. v. Centerpoint Energy, Inc. et al., No. 04-327-
2," which names Kinder Morgan Energy Partners, L.P., and several
other firms, including its subsidiaries, as defendants.
The suit was filed on Oct. 8, 2004. The other defendants in the
suit are:
-- Kinder Morgan Texas Pipeline L.P.;
-- Kinder Morgan G.P., Inc.;
-- KM Texas Pipeline, L.P.;
-- Kinder Morgan Texas Pipeline G.P., Inc.;
-- Kinder Morgan Tejas Pipeline G.P., Inc.;
-- Kinder Morgan Tejas Pipeline, L.P.;
-- Gulf Energy Marketing, LLC;
-- Tejas Gas, LLC;
-- Midcon Corp.; and
-- CenterPoint Energy, Inc.
The complaint was served on the Kinder Morgan defendants on
Oct. 21, 2004. It purports to bring a class action on behalf of
those who purchased natural gas from the defendants from Oct. 1,
1994, to the date of class certification.
The suit alleges that CenterPoint, by and through its
affiliates, had artificially inflated the price charged to
residential consumers for natural gas that it allegedly
purchased from the non-CenterPoint defendants.
The complaint further alleges that in exchange for CenterPoint's
purchase of such natural gas at above market prices, the non-
CenterPoint defendants sell natural gas to CenterPoint's non-
regulated affiliates at prices substantially below market, which
in turn sells such natural gas to commercial and industrial
consumers and gas marketers at market price.
The complaint purports to assert claims for fraud, unlawful
enrichment and civil conspiracy against all of the defendants,
and seeks relief in the form of actual, exemplary and punitive
damages, interest, and attorneys' fees.
On June 8, 2007, the Arkansas Supreme Court held that the
Arkansas Public Service Commission has exclusive jurisdiction
over any Arkansas plaintiffs' claims that consumers were
overcharged for gas in Arkansas and mandated that any such
claims be dismissed from this lawsuit.
On Feb. 14, 2008, the Arkansas Supreme Court clarified its
previously issued order and mandated that the trial court
dismiss the lawsuit in its entirety.
On Feb. 29, 2008, the trial court dismissed the case in its
entirety, 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.
Houston, Texas-based Kinder Morgan Energy Partners, L.P. --
http://www.kindermorgan.com/-- is a pipeline transportation ad
energy storage company in North America. The Company owns an
interest in or operates more than 25,000 miles of pipelines and
approximately 165 terminals. The Company's pipelines transport
natural gas, gasoline, crude oil, carbon dioxide and other
products, and its terminals store petroleum products and
chemicals and handle bulk materials like coal and petroleum
coke. The Company operates through five segments: Products
Pipelines, which consists of approximately 8,300 miles of
refined petroleum products pipelines; CO2, which produces,
markets and transports, through approximately 1,300 miles of
pipelines, carbon dioxide (CO2) to oil fields; Terminals, which
consists of approximately 108 owned or operated liquids and bulk
terminal facilities and more than 45 rail transloading and
materials handling facilities, and Trans Mountain, which
consists of over 700 miles of common carrier pipelines.
LEADIS TECH: Appeals Court Reverses IPO Suit Dismissal Ruling
-------------------------------------------------------------
. April 22, 2008
http://securities.stanford.edu/news-
archive/2008/20080422_Dismissal106328_Henson.html
A three-judge panel of the U.S. Court of Appeals for the Ninth
Circuit has reversed and remanded a lower court's decision
dismissing a proposed securities class action lawsuit that
accused Leadis Technology Inc. of misleading investors about its
initial public offering, Shannon Henson writes for Securities
Law360.
As reported in the Class Action Reporter on Dec. 5, 2007, a
lawsuit was filed in the U.S. District Court for the Northern
District of California against Leadis Tech and certain of its
officers and directors on March 2, 2005. The complaint alleges
the defendants violated Sections 11 and 15 of the Securities Act
of 1933 by making allegedly false and misleading statements in
the company's registration statement and prospectus filed on
June 16, 2004, for the company's IPO.
The CAR stated that another similar action was filed on
March 11, 2005. The District Court then consolidated the two
suits.
The consolidated complaint seeks unspecified damages on behalf
of a class of purchasers that acquired shares of the company
common stock pursuant to its registration statement and
prospectus.
The suit was spearheaded by Safron Capital Corp.
The claims appear to be based on allegations that at the time of
the IPO demand, the company's color organic light-emitting
diodes products was already slowing due to competition from one
of its existing customers and that the company failed to
disclose that it was not well positioned for continued success
as a result of such competition.
On Oct. 28, 2005, the company and the individual defendants
filed a motion to dismiss the lawsuit. The District Court
granted the defendants' dismissal motion, with prejudice.
On March 28, 2006, the plaintiffs filed a notice of appeal with
the Court of Appeals for the Ninth Circuit.
In its recent order, the Ninth Circuit panel decided 2-1 to
throw the case back to the District Court after finding that the
lower court was wrong in deciding that the allegations -- no
matter how they were pled -- were grounded in fraud.
"The complaint does not rely upon a unified course of fraudulent
conduct," the appeals court said. "Indeed, appellants do not
allege a claim under Section 10(b) of the Securities Exchange
Act -- a claim that would require them to allege fraud. Nor do
they allege facts in the complaint that necessarily constitute
fraud."
"Accordingly, the allegations in the complaint do not 'sound in
fraud,' and we conclude that the complaint is not properly
subject to the heightened pleading requirements of Rule 9(b),"
the appeals court said.
Judge Pamela Ann Rymer dissented from the majority, saying only
that she would affirm for the reasons stated by District Court
Judge Charles R. Breyer in his order.
The consolidated suit is "Safron Capital Corporation v. Leadis
Technology, Inc. et al., Case No. 3:05-cv-00882-CRB," filed in
the U.S. District Court for the Northern District of California
under Judge Charles R. Breyer.
Representing the plaintiffs is:
Patrick J. Coughlin, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
100 Pine Street, Suite 2600
San Francisco, CA 94111
Phone: 415-288-4545
Fax: 415-288-4534
Representing the defendants are:
Grant P. Fondo, Esq. (gfondo@cooley.com)
Laura R. Smith, Esq. (smithlr@cooley.com)
Five Palo Alto Square, 3000 El Camino Real
Cooley Godward, LLP
Palo Alto, CA 94306-2155
Phone: 650-843-5458
Fax: 650-857-0663
LIFELOCK INC: Sued in W.V. Over Deceptive Marketing Practices
-------------------------------------------------------------
Marks & Klein, LLP filed its third class action lawsuit against
LifeLock, Inc., a provider of identity theft protection
services, and its CEO Richard "Todd" Davis.
The lawsuit was filed in the Circuit Court of Jackson County,
West Virginia (Docket No. 08-C-69), on behalf of Kevin Gerhold
of Falling Rivers, as well as all other LifeLock subscribers in
West Virginia.
This latest action followed suits filed by the firm in April on
behalf of Dr. and Mrs. Gerald Falke of Hagerstown, Maryland, as
well as all other LifeLock subscribers in Maryland; and in March
on behalf of Dr. and Mrs. Warren Pasternack of East Brunswick,
New Jersey, as well as all other New Jersey LifeLock
subscribers.
The lawsuits allege that LifeLock and its multi-million-dollar
advertising campaign provided false and misleading information
about the limited level of identity protection the company
provides, and failed to warn them about the potential adverse
impact the company's services could have on their credit
profiles. The complaints also allege that the CEO has himself
been a victim of identity theft by multiple offenders while a
customer of LifeLock's services.
David Paris, Esq., an attorney with Marks & Klein, LLP, and lead
counsel in the New Jersey, Maryland and West Virginia class
actions, maintains that LifeLock dramatically overstates the
level of protection provided by its primary service -- the
placement and constant renewal of fraud alerts on its
subscribers' credit profiles.
"Customers of LifeLock rely on the company's misleading
advertisements and pay for a perceived level of protection that
is clearly not provided," said Mr. Paris.
LifeLock, which is headquartered in Tempe, Arizona, charges
subscribers $10 per month. According to the Complaints,
potential LifeLock subscribers are enticed by the 'safety net'
of what appears to be a $1 million insurance policy against any
losses sustained as a result of identity theft.
"In actuality, once you get beyond the numerous legal
limitations and disclaimers, the policy really only guarantees
that LifeLock will investigate how to fix its failure if an
incident occurs and will pay other third-party organizations to
attempt to restore the subscriber's identity," noted David Grubb
of the Grubb Law Group in Charleston, the local counsel for
Gerhold and the putative West Virginia class. "The subscriber
receives no monetary recompense and no guarantee that their
reputation and credit status will be restored."
According to the Complaints, LifeLock induces consumers into
subscribing through a marketing campaign that showcases CEO
Davis broadcasting his own social security number as testimony
to his confidence in Lifelock's services. As a result, the
Complaints note, Davis's identity has been "stolen while he was
a customer and is, upon information and belief, presently being
misappropriated by at least twenty identity thieves."
The West Virginia action seeks to recover the money subscribers
have paid to LifeLock and to prohibit the company from
continuing to promote its services through a deceptive marketing
campaign. Marks & Klein plans to file similar actions on behalf
of consumers in other states. Founded in 2005, LifeLock
presently has approximately 1 million subscribers across the
United States.
Beyond the charges leveled in the Complaints, lead counsel Paris
related the story of a Wisconsin consumer who contacted the firm
regarding her accidental experience with LifeLock. "Her debit
card was stolen and the thief had the audacity to use the card
to buy a subscription to LifeLock," he noted. "Most
disturbingly, LifeLock issued the subscription to the thief in
the thief's name, clearly failing to verify the appropriate
information."
LifeLock customers seeking information about or participating in
the class action should contact David Paris at Marks & Klein,
732-747-7100.
Lifelock customers in Maryland should contact:
Spencer Hecht, Esq.
Hecht & Associates
Phone: 301-587-2099
LifeLock customers in West Virginia should contact:
David Grubb, Esq.
The Grubb Law Group
Phone: 304-345-3356.
LIVENT INC: Drabinsky Fraud Trial Begins After Six Years
--------------------------------------------------------
Six years after their arrest, the long-awaited fraud trial
against Garth Drabinsky and Myron Gottlieb -- co-founders of
big-time theater producer Livent Inc. -- began on May 5, 2008,
Peter Small writes for Toronto Star.
Toronto Star relates that Mr. Drabinsky, an award-winning
impresario and film producer, and his long-time business
partner, Mr. Gottlieb, are accused of falsifying financial
statements and bilking creditors and investors out of millions
of dollars. They are accused of defrauding the public by making
false representations about Livent's finances.
Mr. Drabinsky and Mr. Gottlieb face two charges of fraud over
CDN$5,000, and one of uttering forged documents, down from the
19 charges they originally faced in 2002. The charges, which
span nine years from December 1989 to August 1998, carry a
maximum penalty of 14 years in prison, the report points out.
According to Toronto Star, the trial is expected to last until
fall, with a summer break.
Robert Hubbard, who leads a prosecution team with Amanda
Rubaszek and Alex Hrybinsky, declined to comment on why the
number of charges have been reduced, or any other matters,
Toronto Star says.
The report recalls that in 2002, after a four-year
investigation, the Royal Canadian Mounted Police charged Mr.
Drabinsky and Mr. Gottlieb, as well as former Livent chief
operating officer Robert Topol and former senior vice-president
of finance Gordon Eckstein. They were accused of perpetuating a
fraud worth half a billion dollars.
Toronto Star notes that Livent was a one-time theatrical
powerhouse and Broadway darling, producing such hits as
"Showboat," "Ragtime," and "The Phantom of the Opera." Mr.
Drabinsky is a Tony Award winner and was named to the Order of
Canada.
In April 1998, the report further recounts, Hollywood superagent
Michael Ovitz and U.S. investment banker Roy Furman, a friend of
Mr. Drabinsky's, sealed a deal to buy a large stake in the
company for US$22 million and took over operations.
In August, according to Toronto Star, several members of
Livent's accounting staff disclosed alleged irregularities in
its financial records. As a result, the new U.S. management
team hired KPMG Investigation and Security Inc. to pore over the
company's books.
That month, Mr. Ovitz suspended Mr. Drabinsky and Mr. Gottlieb
pending the investigation. In November they were fired, and
criminal investigations began in the U.S. and Canada, the report
says.
The case gave rise to a flurry of lawsuits and countersuits
involving all the major players. Four class-action lawsuits
were brought in New York against Mr. Drabinsky and Mr. Gottlieb.
In January 1999, the U.S. Attorney's Office in Manhattan
indicted Mr. Drabinsky, Mr. Gottlieb, Mr. Eckstein and Maria
Messina, Livent's former chief financial officer, on fraud and
conspiracy charges. At the same time the Washington-based
Securities and Exchange Commission sued Mr. Drabinsky, Mr.
Gottlieb and six other former Livent executives for an alleged
"multi-faceted accounting fraud spanning eight years."
Ms. Messina pleaded guilty in 1999 to the U.S. criminal charge
of making false statements about Livent's finances. Mr.
Eckstein also admitted to U.S. authorities that, among other
things, he told Livent staff to falsify the books. Last year,
Mr. Eckstein pleaded guilty to one count of fraud in the
Canadian case and received a two-year conditional sentence.
Both Mr. Eckstein and Ms. Messina are expected to be key Crown
witnesses in the Ontario Superior Court trial.
In 2001, the Ontario Securities Commission filed charges against
Mr. Drabinsky and other Livent executives. Those charges are on
hold, Toronto Star points out.
In June last year, charges against Mr. Topol were stayed by
Justice Ian Nordheimer. The judge said his constitutional right
to a timely trial had been violated by delays in the case. Many
of those delays were caused by the Crown accommodating the busy
schedules of the prominent defense lawyers representing Mr.
Drabinsky and Mr. Gottlieb.
Edward Greenspan represents Mr. Drabinsky, and his brother,
Brian Greenspan, represents Mr. Gottlieb.
In March, Mr. Drabinsky and Mr. Gottlieb chose to be tried in
front of a judge without a jury. Presiding on the case is
Justice Mary Lou Benotto.
In July 2007, an Ontario judge ordered Mr. Drabinsky and Mr.
Gottlieb to pay US$36.5 million to note holders who lost their
investments when Livent went bankrupt.
U.S. District Judge Victor Marrero had awarded the money -–
US$23 million plus prejudgment interest -- to the note holders
in 2005.
According to Toronto Star, Mr. Drabinsky has shown no signs of
slowing down or reducing his public profile, continuing to
produce for stage and screen. Mr. Gottlieb, a businessman,
continues to work with Mr. Drabinsky on various projects.
MERRILL LYNCH: Faces Suits in N.Y. Over Auction Rate Securities
---------------------------------------------------------------
Merrill Lynch & Co., Inc., is facing two purported class action
lawsuits filed in the U.S. District Court for the Southern
District of New York in relation to auction rate securities,
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 28, 2008.
The suit is "Burton v. Merrill Lynch & Co., Inc., et al.," which
was filed on March 25, 2008, against Merrill Lynch on behalf of
persons who purchased and continue to hold auction rate
securities offered for sale by the firm between March 25, 2003,
and February 13, 2008.
The complaint alleges that Merrill Lynch failed to disclose
material facts about auction rate securities.
A similar action, captioned, "Stanton v. Merrill Lynch & Co.,
Inc., et al., was filed the next day in the same court.
Merrill Lynch & Co., Inc. -- http://www.ml.com/-- together with
its subsidiaries, provide investment, financing, insurance, and
related services to individuals and institutions on a global
basis through its broker, dealer, banking, and other financial
services subsidiaries. The Company's operations are organized
into two business segments: Global Markets and Investment
Banking and Global Wealth Management. GMI provides service
global markets and origination products and services to
corporate, institutional, and government clients around the
world. GWM creates and distributes investment products and
services for individuals, small- and mid-size businesses, and
employee benefit plans.
NEUROMETRIX: May 16 Deadline Set for Lead Plaintiff Application
---------------------------------------------------------------
Brower Piven, A Professional Corporation disclosed that
shareholders of NeuroMetrix, Inc., who purchased shares of
NeuroMetrix between October 27, 2005, and March 6, 2007,
inclusive, have only until May 16, 2008, to move for appointment
as lead plaintiff in a securities class action lawsuit currently
pending in the U.S. District Court for the District of
Massachusetts.
The complaint alleges that during the Class Period, the company
and certain of its officers and directors violated federal
securities laws by issuing various materially false and
misleading statements that had the effect of artificially
inflating the market price of the company's securities and
causing class members to overpay for the securities.
NeuroMetrix designs, develops and markets medical device
products that aid physicians in the diagnosis and treatment of
diseases of the nervous system and neurovascular disorders, as
well as provide regional anesthesia and pain control.
For more information, contact:
Brower Piven
The World Trade Center-Baltimore
401 East Pratt Street, Suite 2525
Baltimore, Maryland 21202
Phone: 410-986-0036
e-mail: hoffman@browerpiven.com
Web site: http://www.browerpiven.com
PANTRY INC: Court Still to Approve Wage, Hour Suit Settlement
-------------------------------------------------------------
The U.S. District Court for the Middle District of North
Carolina has yet to approve the tentative settlement reached in
the purported class action, "Barton, et al. v. The Pantry,
Inc.," according to the company's May 6, 2008 Form 10-Q Filing
with the U.S. Securities and Exchange Commission for the quarter
ended Feb. 19, 2008.
The suit asserted claims on behalf of the company's North
Carolina present and former employees for unpaid wages under
North Carolina Wage and Hour laws. It was filed in the Superior
Court for Forsyth County, State of North Carolina in June 2004.
The plaintiffs in the suit are Constance Barton, Kimberly Clark,
Wesley Clark, Tracie Hunt, Eleanor Walters, Karen Meredith,
Gilbert Breeden, LaCentia Thompson, and Mathesia Peterson, and
others similarly situated.
The suit sought an injunction against any unlawful practices,
damages, liquidated damages, costs and attorneys' fees.
On Aug. 17, 2004, the case was removed to the U.S. District
Court for the Middle District of North Carolina. On July 18,
2005, the plaintiffs filed an amended complaint asserting
certain additional claims under the federal Fair Labor Standards
Act on behalf of present and former store employees in the
southeastern U.S. It added one additional plaintiff, Chester
Charneski.
The plaintiffs have filed a motion to remand the case to the
Superior Court for Forsyth County, which is presently pending
before the federal district court.
The company filed a motion to dismiss parts of the amended
complaint on Aug. 23, 2005. On May 17, 2006, the court granted
in part and denied in part the company's motion, with the result
that the court will now determine if the case may proceed as a
class action under state law and a collective action under
federal law and if so, who among the company's present or former
employees will be members of the classes.
On Jan. 16, 2007, the plaintiffs filed a motion to file a second
amended complaint, asserting state law claims for alleged unpaid
wages in all 11 states in which the company does business.
On Feb. 8, 2007, the company filed a motion opposing the filing
of the Seconded Amended Complaint.
On March 26, 2007, the company reached a proposed settlement in
principle with the class counsel. The proposed settlement will
establish a settlement fund of $1,000,000 from which payments
will be made to settlement class members and class counsel.
Additionally, the proposed settlement provides for the company
to bear all costs of sending notices, processing and preparing
payments and other administrative costs of the settlement.
No other payments will be made to class members or class
counsel. The proposed settlement is subject to court approvals.
Final approval of the proposed settlement is expected to take
several months and there can be no assurance that the court will
approve the proposed settlement, the company stated in its SEC
regulatory filing.
The suit is "Barton, et al. v. The Pantry, Inc., Case No. 1:04-
cv-00748-NCT," filed in the U.S. District Court for the Middle
District of North Carolina, Judge N.C. Tilley, Jr., presiding.
Representing the plaintiffs are:
Robert M. Elliot, Esq. (rmelliot@epmlaw.com)
J. Griffin Morgan, Esq. (jgmorgan@epmlaw.com)
Elliot Pishko Morgan, P.A.
426 Old Salem Road
Winston-Salem, NC 27101
Phone: 336-724-2828
Fax: 336-714-4499
- and -
Charles Joseph, Esq.
Joseph & Herzfeld, LLP
757 Third Ave., 25th Floor
New York, NY 10017
Phone: 212-688-5640
Representing the company is:
Kimberly Jo Korando, Esq. (kkorando@smithlaw.com)
Smith Anderson Blount Dorsett Mitchell & Jernigan
POB 2611
Raleigh NC 27602-2611
Phone: 919-821-6671
Fax: 919-821-6800
PANTRY INC: Alabama Court Dismisses FLSA Violations Lawsuit
-----------------------------------------------------------
The U.S. District Court for the Northern District of Alabama
dismissed a purported class action suit against The Pantry,
Inc., that alleged violations of the Fair Labor Standards Act,
after a tentative settlement was reached and later approved,
according to the company's May 6, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Feb. 19, 2008.
On Nov. 16, 2007, Arnesa Jones, Burdeen Smith, Patricia Taylor,
and Sandra Holt, on behalf of themselves and on behalf of others
similarly situated, filed the suit against the company.
The plaintiffs sought class action status and asserted claims on
behalf of the company's present and former employees for unpaid
wages under the Fair Labor Standards Act.
The plaintiffs generally alleged that they were/are employed by
the company as store managers, but their managerial duties were
non-existent or minimal compared to their non-managerial duties.
The plaintiffs further alleged that the company required its
store managers to work over 40 hours per week for a salaried
amount without overtime compensation.
The suit sought permission to give notice of this action to all
of the company's employees during the three years immediately
preceding the filing of this suit and to all other potential
plaintiffs who may be similarly situated.
The plaintiffs also sought damages, liquidated damages, costs,
pre-judgment interest and attorneys' fees, and any injunctive
and declaratory relief to which they may be entitled.
On Feb. 8, 2008, the company entered into a settlement agreement
with the named plaintiffs for an immaterial amount, and the
district court approved the deal. The court then entered an
order dismissing the suit on Feb. 13, 2008.
The suit is "Jones, et al. v. The Pantry, Inc., Case No. CV-07-
P-2097-S," filed in the U.S. District Court for the Northern
District of Alabama, Judge R. David Proctor presiding.
Representing the plaintiffs is:
Kevin W. Jent, Esq. (kjent@wcqp.com)
Wiggins Childs Quinn & Pantazis LLC
The Kress Building, 301 19th Street North
Birmingham, AL 35203-3204
Phone: 205-314-0549
Fax: 205-254-1500
Representing the defendants is:
Tammy L. Baker, Esq. (BakerT@jacksonlewis.com)
Jackson Lewis LLP
800 Shades Creek Parkway, Suite 870
Birmingham, AL 35209
Phone: 205-332-3106
Fax: 205-332-3131
PANTRY INC: KS Court Denies Motion to Dismiss "Hot Fuel" Suits
--------------------------------------------------------------
The U.S. District Court for the District of Kansas denied a
motion by The Pantry, Inc., and other defendants seeking the
dismissal of several purported class actions over motor fuel
that was greater than 60 degrees Fahrenheit at the time of sale.
Since the beginning of fiscal 2007, over 45 class-action
lawsuits have been filed with federal courts across the country
against numerous companies in the petroleum industry.
Major petroleum companies and significant retailers in the
industry have been named as defendants in these lawsuits.
To date, Pantry Inc. had been named as a defendant in seven
cases:
1. one in Florida ("Cozza, et al. v. Murphy Oil USA, Inc.
et al., S.D. Fla., No. 9:07-cv-80156-DMM," filed on
Feb. 16, 2007);
2. one in Delaware ("Becker, et al. v. Marathon Petroleum
Company LLC, et al., D. Del., No. 1:07-cv-00136,"
filed on March 7, 2007);
3. one in North Carolina ("Neese, et al. v. Abercrombie
Oil Company, Inc., et al., E.D.N.C., No. 5:07-cv-
00091-FL,' filed on Match 7, 2007);
4. one in Alabama ("Snable, et al. v. Murphy Oil USA,
Inc., et al., N.D. Ala., No. 7:07-cv-00535-LSC," filed
on March 27, 2007);
5. one in Georgia ("Rutherford, et al. v. Murphy Oil USA,
Inc., et al., No. 4:07-cv-00113-HLM," filed on June 5,
2007);
6. one in Tennessee ("Shields, et al. v. RaceTrac
Petroleum, Inc., et al., No. 1:07-cv-00169," filed on
July 13, 2007);
7. one in South Carolina ("Korleski v. BP Corporation
North America, Inc., et al., D.S.C., No 6:07-cv-03218-
MDL," filed on Sept. 24, 2007).
Pursuant to an order entered by the Joint Panel on Multi-
District Litigation, all of the cases against the numerous
companies in the petroleum industry, including the seven in
which Pantry Inc. was named, have been or will be transferred to
the U.S. District Court for the District of Kansas where the
cases will be consolidated for all pre-trial proceedings.
The plaintiffs in the lawsuits generally allege that they are
retail purchasers who received less motor fuel than the
defendants agreed to deliver because the defendants measured the
amount of motor fuel they delivered in non-temperature adjusted
gallons which, at higher temperatures, contain less energy.
These cases seek, among other relief, an order requiring the
defendants to install temperature adjusting equipment on their
retail motor fuel dispensing devices.
In certain of the cases, including some of the cases in which
the company are named, plaintiffs also have alleged that because
defendants pay fuel taxes based on temperature adjusted 60
degree gallons, but allegedly collect taxes from consumers in
non-temperature adjusted gallons, defendants receive a greater
amount of tax from consumers than they paid on the same gallon
of fuel.
The plaintiffs in these cases seek, among other relief, recovery
of excess taxes paid and punitive damages.
Both types of cases seek compensatory damages, injunctive
relief, attorneys' fees and costs and prejudgment interest.
The defendants have filed motions to dismiss all cases for
failure to state a claim, which were heard by the court on Jan.
11, 2008.
The defendants have filed motions to dismiss all cases for
failure to state a claim, which were heard by the court on Jan.
11, 2008. The court denied the motions by Order dated Feb. 21,
2008.
The defendants expect to contest class certification and to file
motions for summary judgment after appropriate discovery,
according to the company's May 6, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Feb. 19, 2008.
The Pantry, Inc. -- http://www.thepantry.com/-- operates an
independently operated convenience store chain in the U.S.
PARKER-HANNIFIN: Seeks Nixing of Marine Hose Price-Fixing Suit
--------------------------------------------------------------
Parker-Hannifin Corp. and Parker ITR SLR ask for the dismissal
of a consolidated class action suit accusing them of "conspiring
to fix, raise, maintain and stabilize prices of Marine Hose,"
according to Parker-Hannifin's May 6, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
Marine Hose is a flexible rubber hose used to transport oil
between ships, terminals, buoys and tanks (Class Action
Reporter, May 23, 2007).
Initially, four purported class actions were filed in the U.S.
District Court for the Southern District of Florida:
1. "Shipyard Supply LLC v. Bridgestone Corporation, et
al.," filed May 17, 2007;
2. "Expro Gulf Limited v. Bridgestone Corporation, et
al.," filed June 6, 2007;
3. "Bayside Rubber & Products, Inc. v. Trelleborg
Industrie S.A., et al.," filed June 25, 2007;
4. "Bayside Rubber & Products, Inc. v. Caleca, et al.,
filed July 12, 2007; and
And one was file in the Southern District of New York -- "Weeks
Marine, Inc. v. Bridgestone Corporation, et al.," filed July 27,
2007.
The Company is named as a defendant in one case and it filed an
answer in that matter. Parker ITR filed a motion to dismiss
each of the four cases in which it is a defendant. However,
these dismissal motions were denied as moot after all five cases
were consolidated in the Southern District of Florida as 08-MDL-
1888.
On March 24, 2008, the plaintiffs filed a consolidated class
action complaint that alleges that the defendants, for a period
of approximately 21 years, conspired with competitors in
unreasonable restraint of trade to artificially raise, fix,
maintain or stabilize prices, rig bids and allocate markets and
customers for marine oil and gas hose in the United States.
The plaintiffs generally seek treble damages, a permanent
injunction, attorneys' fees, and pre-judgement and post-
judgement interest.
The company and Parker ITR have filed a motion to dismiss the
consolidated complaint, 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.
Parker-Hannifin Corp. -- http://www.parker.com/-- is a full-
line diversified manufacturer of motion control products,
including fluid power systems, electromechanical controls and
related components. In addition to motion control products, the
Company also is a producer of fluid purification, fluid and fuel
control, process instrumentation, air conditioning,
refrigeration, electromagnetic shielding and thermal management
products and systems. Its manufacturing, service, distribution
and administrative facilities are located in 35 states and in 42
foreign countries. Its motion control technology is used in the
products of its three principal business segments: Industrial,
Aerospace, and Climate & Industrial Controls. The products are
sold as original and replacement equipment through product and
distribution centers worldwide. Parker products are supplied to
over 427,000 customers in manufacturing, transportation and
processing industry.
PERFORMANCE FOOD: Faces Consolidated Merger Suit in Tennessee
-------------------------------------------------------------
Performance Food Group Co. is facing a consolidated class action
in Tennessee over a merger agreement by and among VISTAR Corp.,
Panda Acquisition, Inc., and Performance, according to the
company's May 6, 2008 Form 10-Q filing in the U.S. Securities
and Exchange Commission for the quarter ended March 29, 2008.
In January 2008, three of Performance Food's shareholders filed
three separate class action suits against it and its individual
directors in the Chancery Court for the State of Tennessee, 20th
Judicial District at Nashville.
The suits are styled as:
-- "Crescente v. Performance Food Group Company, et al.,
Case No. 08-140-IV;"
-- "Neel v. Performance Food Group Company, et al., Case
No. 08-151-II;" and
-- "Friends of Ariel Center for Policy Research v. Sledd,
et al. Case No. 08-224-II."
The allegations in all three suits arise from the company's
Jan. 18, 2008 public announcement of entering into a certain
merger agreement with VISTAR and Panda Acquisition.
VISTAR Corp. is a foodservice distributor controlled by
affiliates of The Blackstone Group with a minority interest held
by an affiliate of Wellspring Capital Management LLC.
Two of the lawsuits also include The Blackstone Group and
Wellspring Capital Management as named defendants, and one
includes VISTAR Corporation as a named defendant.
Each complaint asserts claims for breach of fiduciary duties
against the Company's directors, alleging, among other things,
that the consideration to be paid to the Company's shareholders
pursuant to the merger agreement is unfair and inadequate, and
not the result of a full and adequate sale process, and that the
Company's directors engaged in "self-dealing."
Two of the complaints also allege aiding and abetting or undue
control claims against The Blackstone Group, Wellspring Capital
Management LLC and VISTAR.
The complaints each seek, among other relief, class
certification, an injunction preventing completion of the merger
and attorneys' fees and expenses.
By order entered Jan. 28, 2008, the Neel case was transferred to
Chancery Court Part IV where the Crescente case is pending.
An agreed order was entered by the Court on Feb. 14, 2008,
consolidating the Crescente and Neel cases and appointing
counsel for the plaintiffs as co-lead counsel for the renamed
consolidated matter, "In re: Performance Food Group Co.
Shareholders Litigation, Case No. 08-140-IV."
On March 12, 2008, the Friends of Ariel Center for Policy
Research case was transferred and consolidated into the "In re:
Performance Food Group Shareholders Litigation."
Performance Food Group Co. -- http://www.pfgc.com-- markets and
distributes food and non-food products to customers in the
foodservice or food-away-from-home industry. It markets and
distributes over 68,000 national and its own brand food and non-
food products to over 41,000 customers in the foodservice or
food-away-from-home industry. It has two segments. The
Broadline distribution segment markets and distributes more than
65,000 national and own brand food and non-food products to more
than 41,000 customers, including street customers, such as
independent restaurants, and certain corporate-owned and
franchisee locations of chains, such as Burger King, Church's,
Subway and Zaxby's. The Customized distribution segment focuses
on serving casual and family dining chain restaurants, such as
Outback Steakhouse, Ruby Tuesday and T.G.I. Friday's. Products
offered under the Company's own brands include canned and dry
groceries, tabletop sauces, meat, baked goods, shortenings and
oils.
SIGMA-ALDRICH: Suit Over Nitric Oxide Plant Accident on Appeal
--------------------------------------------------------------
A purported class action suit in Ohio over a Sept. 21, 2003
explosion at an Isotec, Inc. plant -- owned by a Sigma-Aldrich
Corp. subsidiary -- is still on appeal, according to Sigma-
Aldrich's May 6, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended March 31,
2008.
The class-action complaint was filed against a subsidiary of
Sigma-Aldrich in the Montgomery County, Ohio Court of Common
Pleas in connection with a 2003 explosion in a column at the
company's Isotec facility in Miamisburg, Ohio. The plant had an
explosion at its nitric oxide operations that caused the
evacuation of surrounding neighborhoods.
The purported class action suit, filed in December 2003,
represents 3,000 individuals.
The case was divided into these four phases:
phase 1: existence of liability,
phase 2: quantification of any compensatory damages,
phase 3: existence of any punitive damages, and
phase 4: quantification of any punitive damages.
Class certification was granted to phases one, three and four,
but denied to phase two.
The compensatory damages for all the plaintiffs must be
established before the case can proceed to the punitive damages
phases.
Sigma-Aldrich has accepted responsibility for phase one, the
existence of liability.
The case is currently in the compensatory damages phase, where,
because no class status yet exists, each plaintiff must
individually establish actual damages.
The initial phase two trial, for 31 plaintiffs, was completed on
April 27, 2007, with a jury verdict establishing actual damages
of approximately $200 per plaintiff.
The plaintiffs filed an appeal staying further action on the
case until the appeal has been resolved. The original appeal
has been dismissed, but the plaintiffs have refiled their
appeal.
Sigma-Aldrich Corp. -- http://www.sigmaaldrich.com/-- develops,
manufactures, purchases and distributes a range of biochemicals
and organic chemicals.
ST. JUDE: Still Faces Silzone Suit Filed for E.E.U. Residents
-------------------------------------------------------------
St. Jude Medical Inc. continues to face a purported class action
suit filed for all persons residing in the European Economic
Union member jurisdictions who have had a heart valve
replacement or repair procedure using a product with Silzone
coating.
The suit was filed in Minnesota state court and served upon the
company in February 2004 by two European citizens who now live
in Canada.
The complaint seeks damages in an unspecified amount for the
class, and in excess of $50 thousand for each plaintiff. It
also seeks injunctive relief in the form of medical monitoring.
Silzone Background
In July 1997, the company began marketing mechanical heart
valves which incorporated Silzone coating. The company later
began marketing heart valve repair products incorporating
Silzone coating.
Silzone coating was intended to reduce the risk of endocarditis,
a bacterial infection affecting heart tissue, which is
associated with replacement heart valve surgery.
In January 2000, the company initiated a voluntary field action
for products incorporating Silzone coating after receiving
information from a clinical study that patients with a Silzone-
coated heart valve had a small, but statistically significant,
increased incidence of explant due to paravalvular leak compared
to patients in that clinical study with heart valves that did
not incorporate Silzone coating.
Subsequent to its voluntary field action, the company has been
sued in various jurisdictions by some patients who received a
product with Silzone coating.
Some of these claimants allege bodily injuries as a result of an
explant or other complications, which they attribute to Silzone-
coated products.
Others, who have not had their Silzone-coated heart valve
explanted, seek compensation for past and future costs of
special monitoring they allege they need over and above the
medical monitoring all other replacement heart valve patients
receive.
Some of the lawsuits seeking the cost of monitoring have
been initiated by patients who are asymptomatic and who have no
apparent clinical injury to date.
The company reported no furtehr development in the matter in its
May 5, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 29, 2008.
St. Jude Medical, Inc. -- http://www.sjm.com/-- develops,
manufactures and distributes cardiovascular medical devices for
the global cardiac rhythm management, cardiology and cardiac
surgery and atrial fibrillation therapy areas and implantable
neurostimulation devices for the management of chronic pain.
The Company operates in four business segments: Cardiac Rhythm
Management, Cardiovascular, Atrial Fibrillation and Advanced
Neuromodulation Systems. The Company's principal products in
each operating segment include CRM-tachycardia implantable
cardioverter defibrillator systems and bradycardia pacemaker
systems (pacemakers); CV-vascular closure devices and heart
valve replacement and repair products; AF-electrophysiology
introducers and catheters, advanced cardiac mapping and
navigation systems and ablation systems, and ANS-
neurostimulation devices.
ST. JUDE: Still Faces Suits Over Silzone-Coated Heart Valves
------------------------------------------------------------
St. Jude Medical Inc. continues to face four purported class
action suits in Canada over its Silzone-coated mechanical heart
valves, 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 29, 2008.
In one such case in Ontario, the court certified that a class
action involving Silzone patients may proceed. The company's
request for leave to appeal the rulings on certification was
rejected, and the trial of the initial phase of this matter is
scheduled for March 2009.
A second case seeking class action in Ontario has been stayed
pending resolution of the other Ontario action.
A case filed as a class action in British Columbia is in the
early stages of discovery and has not been certified by the
court as a class action. That case remains pending.
A court in Quebec has certified a class action, and that matter
is proceeding in accordance with the court orders.
Silzone Background
In July 1997, the company began marketing mechanical heart
valves which incorporated Silzone coating. The company later
began marketing heart valve repair products incorporating
Silzone coating.
Silzone coating was intended to reduce the risk of endocarditis,
a bacterial infection affecting heart tissue, which is
associated with replacement heart valve surgery.
In January 2000, the company initiated a voluntary field action
for products incorporating Silzone coating after receiving
information from a clinical study that patients with a Silzone-
coated heart valve had a small, but statistically significant,
increased incidence of explant due to paravalvular leak compared
to patients in that clinical study with heart valves that did
not incorporate Silzone coating.
Subsequent to its voluntary field action, the company has been
sued in various jurisdictions by some patients who received a
product with Silzone coating.
Some of these claimants allege bodily injuries as a result of an
explant or other complications, which they attribute to Silzone-
coated products.
Others, who have not had their Silzone-coated heart valve
explanted, seek compensation for past and future costs of
special monitoring they allege they need over and above the
medical monitoring all other replacement heart valve patients
receive.
Some of the lawsuits seeking the cost of monitoring have
been initiated by patients who are asymptomatic and who have no
apparent clinical injury to date.
St. Jude Medical, Inc. -- http://www.sjm.com/-- develops,
manufactures and distributes cardiovascular medical devices for
the global cardiac rhythm management, cardiology and cardiac
surgery and atrial fibrillation therapy areas and implantable
neurostimulation devices for the management of chronic pain.
The Company operates in four business segments: Cardiac Rhythm
Management, Cardiovascular, Atrial Fibrillation and Advanced
Neuromodulation Systems. The Company's principal products in
each operating segment include CRM-tachycardia implantable
cardioverter defibrillator systems and bradycardia pacemaker
systems (pacemakers); CV-vascular closure devices and heart
valve replacement and repair products; AF-electrophysiology
introducers and catheters, advanced cardiac mapping and
navigation systems and ablation systems, and ANS-
neurostimulation devices.
ST. JUDE: Discovery Ongoing in Minnesota Securities Fraud Case
--------------------------------------------------------------
Discovery is ongoing in a consolidated securities fraud class
action filed with the U.S. District Court for the District of
Minnesota against St. Jude Medical, Inc.
In April and May 2006, three shareholders, each purporting to
act on behalf of a class of purchasers from Jan. 25 through
April 4, 2006, separately sued the company and certain officers,
alleging that the company made materially false and misleading
statements during the class period relating to financial
performance, projected earnings guidance, and projected sales of
implantable cardioverter defibrillators.
The complaints, which all seek unspecified damages and other
relief, as well as attorneys' fees have been consolidated.
The company filed a motion to dismiss the suit, which request
was denied by the district court in March 2007. The parties are
now engaged in the discovery process, 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 29, 2008.
The suit is "In Re: St. Jude Medical, Inc. Securities
Litigation, Case No. 06-cv-01379-JMR-FLN," filed in the U.S.
District Court for the District of Minnesota, Judge James M.
Rosenbaum, presiding.
Representing the plaintiffs are:
Jill S. Abrams, Esq. (jabrams@abbeyspanier.com)
Abbey Spanier Rodd Abrams & Paradis, LLP
212 E 39th St.
New York, NY 10016
Phone: 212-284-5258
Stuart W. Emmons, Esq. (swe@federmanlaw.com)
Federman & Sherwood
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Phone: 405-235-1560
Fax: 405-239-2112
- and-
Gregg M. Fishbein, Esq. (gmfishbein@locklaw.com)
Lockridge Grindal Nauen PLLP
100 Washington Ave., S. Ste. 2200
Minneapolis, MN 55401-2179
Phone: 612-339-6900
Fax: 612-339-0981
Representing the defendant is:
Michelle S. Grant, Esq. (grant.michelle@dorsey.com)
Dorsey & Whitney LLP
50 S. 6th St., Ste. 1500
Minneapolis, MN 55402-1498
Phone: 612-340-5671
Fax: 612-340-2807
STONYFIED FARM: Recalls Blueberry Yogurts Containing Fragments
--------------------------------------------------------------
Organic yogurt maker Stonyfield Farm is voluntarily recalling
Stonyfield Organic Fat Free Blueberry Yogurt, packaged in 6 oz
cups, carrying product codes printed along the cup bottom that
start with the following dates:
-- "Apr 13 08"
-- "Apr 14 08"
-- "Apr 15 08"
-- "Apr 25 08"
-- "Apr 26 08"
The recall comes in response to consumer complaints reporting
plastic or glass fragments in these particular batches of fat
free blueberry yogurt. There have been no reports of injury.
People who bite into or swallow a fragment could possibly be
injured, prompting this precautionary recall. Although the
company believes the problem is not widespread, it is taking
this measure to ensure the safety of its consumers.
Stonyfield Farm is advising its distribution network to
immediately remove these specific code-dates of 6-ounce fat free
blueberry yogurt from retail shelves. The yogurts are sold at
natural food stores and grocery retailers nationwide.
Consumers who may have purchased fat free blueberry yogurts with
these code dates are asked to return opened or unopened
containers to their retailers. You will be reimbursed for the
full value of your purchase.
Consumers with questions should contact Stonyfield Farm Consumer
Relations at 1-800-PRO-COWS or e-mail the company at
crelations@Stonyfield.com.
"Our first priority has always been and always will be the
welfare of our consumers," says Gary Hirshberg, Stonyfield Farm
President and CE-Yo. "While we continue to investigate these
complaints and believe that the risk of injury is extremely
remote, we feel that this voluntary measure is the prudent and
responsible step at this time."
TENET HEALTHCARE: Dismissal of RICO Violations Suit Under Appeal
----------------------------------------------------------------
Boca Raton Community Hospital, Inc., is appealing the dismissal
of a federal case accusing Tenet Healthcare Corp. of violating
the Racketeer Influenced and Corrupt Organizations Act.
The suit is principally alleging that Tenet's past pricing
policies and receipt of Medicare outlier payments violated the
federal RICO Act, causing harm to BRCHI.
BRCHI seeks unspecified amounts of damages (including treble
damages under RICO), restitution, disgorgement and punitive
damages.
In December 2006, the district court denied the plaintiff's
motion for class certification, which decision the U.S. Court of
Appeals for the Eleventh Circuit declined to review.
On Aug. 1, 2007, the district court granted the company's motion
for summary judgment on all claims, thereby dismissing the case.
BRCHI subsequently filed an appeal of this order to the Eleventh
Circuit.
The company reported no further development in the matter in its
May 6, 2008 Form 10-Q filing with the U.S. Securities and
exchange Commission for the quarter ended March 31, 2008.
The suit is "Boca Raton Community Hospital, Inc. v. Tenet
Healthcare Corporation, Case No. 05-80183-CIV," filed in the
U.S. District Court for the Southern District of Florida under
Judge Patricia A. Seitz.
Representing the plaintiff are:
Greenberg Traurig, P.A
1221 Brickell Avenue
Miami, Florida 33131
Phone: 305-579-0500
Fax: 305-579-0717
Web site: http://www.gtlaw.com
-and -
Melvyn I. Weiss, Esq.
Milberg Weiss Bershad & Schulman, LLP
Tower One, 5200 Town Center Road, Suite 600
Boca Raton, Florida 33486
Phone: 561-361-5000
Telecopier: 561-367-8400
Web site: http://www.milbergweiss.com
Representing the defendant are:
Kenny Nachwalter, Esq.
Seymour Arnold Critchlow & Spector, P.A.
1100 Miami Center, 201 South Biscayne Boulevard,
Miami, FL 33131
Phone: 305-373-1000
Fax: 305-372-1861
-and
Holland & Knight, LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
P.O. Box 015441, Florida, 33101
Phone: 305-374-8500
Fax: 305-789-7799
Web site: http://www.hklaw.com
TENET HEALTHCARE: Still Faces California Labor Violations Suits
---------------------------------------------------------------
Tenet Healthcare Corp. continues to face several purported
class action suits in California that allege violations of
various labor laws, 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.
State Court Cases
The company has been defending three coordinated lawsuits in Los
Angeles Superior Court that allege its hospitals violated
certain provisions of California's labor laws and applicable
wage and hour regulations.
On Feb. 14, 2008, one of these cases was certified as a class
action over the company's objections. Motions for class
certification in the other two cases, which the company has
opposed, are still pending.
The plaintiffs in all three cases are seeking back pay,
statutory penalties, interest and attorneys' fees.
Federal Case
Another wage and hour matter pending with the U.S. District
Court for the Southern District of California specifically
involves allegations regarding unpaid overtime.
This case, which was first provisionally certified as a
collective action under the federal Fair Labor Standards Act for
the purpose of giving notice to potential class members, was
certified as a class action for all purposes on Feb. 12, 2008.
The plaintiff in this case is seeking back pay, statutory
penalties, interest and attorneys' fees.
Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is an
investor-owned healthcare services company, whose subsidiaries
and affiliates primarily operate general hospitals and related
healthcare facilities, and also hold investments in other
companies (including health care companies). All of Tenet's
operations are conducted through its subsidiaries. During the
year ended Dec. 31, 2007, its subsidiaries operated 57 general
hospitals, a cancer hospital and a critical access hospital,
with a combined total of 15,244 licensed beds, serving urban and
rural communities in 12 states. Of those general hospitals, 48
were owned by its subsidiaries and nine were owned by third
parties and leased by Tenet's subsidiaries (including one
facility it owned located on land leased from a third party).
VETERANS AFFAIRS: Vets Await Inadequate Healthcare Suit Verdict
---------------------------------------------------------------
The U.S. Department of Veterans Affairs is facing a class action
lawsuit that accuses it of not doing enough to prevent suicide
and of not providing adequate medical care for Americans who
have served in the armed forces, the Associated Press reports.
The lawsuit, filed in July 2007 by two non-profit groups
representing military veterans, accuses the agency of
inadequately addressing a "rising tide" of mental health
problems, especially post-traumatic stress disorder, the AP
notes.
According to Los Angeles Times, the lawsuit was filed in a San
Francisco federal court on behalf of Veterans for Common Sense,
which is based in Washington, D.C., and Veterans United for
Truth, based in Santa Barbara. It does not seek damages, but
wants the court to compel the department to improve the care of
hundreds of thousands of veterans suffering from post-traumatic
stress disorder.
LA Times notes that a lawyer for the two advocacy groups argued
in federal court last month that the agency has systematically
denied benefits to sick veterans and delayed claims so long that
many of them commit suicide.
"The court faces an agency that is in denial and a healthcare
system and an adjudication system that are broken down and in
crisis," said Gordon P. Erspamer, Esq., one of the plaintiffs'
attorneys, in his opening statement during trial that began in
April.
An average of 18 military veterans kill themselves every day,
and five of them are under VA care when they commit suicide, the
AP cites a December 2007 e-mail between top VA officials that
was filed as part of the federal lawsuit.
"That failure to provide care is manifesting itself in an
epidemic of suicides," the veterans groups wrote in court
papers.
Moreover, the AP notes, a study released last month by the RAND
Corp. estimates that 300,000 U.S. troops -- about 20% of those
deployed -- are suffering from depression or post-traumatic
stress from serving in Iraq and Afghanistan.
"We find that the VA has simply not devoted enough resources,"
said Mr. Erspamer. "They don't have enough psychiatrists."
The plaintiffs ask U.S. District Court Judge Samuel Conti, a
World War II U.S. Army veteran, to order the VA to drastically
overhaul its system. Judge Conti is hearing the trial without a
jury.
"What I would like to see from the VA is that they actually
treat patients with respect," Bob Handy, head of the Veterans
United for Truth, told the AP. Mr. Handy, 76, who retired from
the Navy in 1970, said he founded the veterans group in 2004
after hearing myriad complaints from veterans about their
treatment at the VA when he was a member of the Veterans Caucus
of the state Democratic Party.
According to the AP, the department acknowledges in court papers
that it takes on average about 180 days to decide whether to
approve a disability claim.
The veterans are also asking Judge Conti "to administer the
programs of the second largest Cabinet-level agency, a task for
which Congress and the executive branch are better suited,"
government lawyers wrote in court papers.
If the judge ordered an overhaul, he would be responsible for
such things as employees workloads, hours of operations,
facility locations, the number of medical professionals
employed, and "even the decision whether to offer individual or
group therapy to patients with" post-traumatic stress, the court
papers said, according to the AP report.
The VA also said it is besieged with an unprecedented number of
claims, which have grown from 675,000 in 2001 to 838,000 in
2007. The rise is prompted not from the current war, but from
veterans growing older, government lawyers said.
"The largest component of these new claims is the aging veteran
population of the Vietnam and Cold War eras," the government
filing stated. "As they age, older veterans may lose
employment-related health care, prompting them to seek VA
benefits for the first time." Government lawyers in their
filings defended its average claims processing time as
"reasonable," given that it has to prove the veterans disability
was incurred during service time.
The AP further cites government lawyers as saying that the VA
has been devoting more resources to mental health and making
suicide prevention a top priority.
The lawyers noted that the VA will spend $3.8 billion for fiscal
year 2008 on mental health and announced a policy in June 2007
that requires all medical centers to have mental health staff
available all the time to provide urgent care. They said that
"suicide prevention is a singular priority for the VA."
The VA "has hired over 3,700 new mental health professionals in
the last two and a half years, bringing the total number of
mental health professionals within VA to just under 17,000.
This hiring effort continues," they added.
The VA lawyers also argued that the courts don't have the
authority to tell the department how it should operate.
Judge Conti Still to Issue Verdict
In an update, Kaiser Network relates that attorneys presented
their closing arguments on April 30. According to The New York
Times, the issue of whether veterans with mental health problems
are neglected or whether their sheer numbers are overwhelming
the system divided the closing arguments.
As the trial concluded, Kaiser Network notes, Judge Conti
continued to question the amount of power he had in ordering
changes to VA. "One of the problems I have in this case is this
court is restricted by various statutes, binding regulations and
case law," he said.
The Mercury News writes that at the conclusion of the two-week
trial, Judge Conti ordered lawyers for both sides to file
additional legal documents on the issue by May 19, after which
he said he would decide on the case.
WASHOE COUNTY: Incline Residents Sue Over Tax Revolt
----------------------------------------------------
The Village League to Save Incline Assets, a nonprofit group of
Incline tax protesters, filed a class-action complaint for
preliminary and permanent injunctive relief with the U.S.
District Court of Nevada, naming Washoe County, Washoe County
Assessor Josh Wilson and Washoe County Treasurer Bill Berrum as
defendants, Kevin MacMillan writes for Nevada Appeal.
The report says that the move initiated by the group of Incline
residents comes as the community's tax revolt trudges through
its sixth year of existence.
Nevada Appeal points out that the class action suit marks the
first time since the tax revolt began in 2002 that a complaint
for injunctive relief has been filed in federal court.
More is to come, said Reno-based attorney Suellen Fulstone,
Esq., who represents the Village League. "This is just a
complaint; we'll be filing a motion for entering a preliminary
injunction as well," Fulstone said. "The ultimate goal is to
stop the county from collecting taxes in an unconstitutional way
on assessed properties in Incline Village."
Ms. Fulstone said she plans to file the motion for injunction
some time in the next few days. Once the defendants are served
with a motion for injunction, they generally have 20 days to
respond, Ms. Fulstone added, noting that "[s]ometimes government
bodies get more time."
Nevada Appeal explains that an injunction can be defined as a
judicial process or order requiring the person or persons to
whom it is directed to do a particular act or to refrain from
doing a particular act.
The complaint names six plaintiffs who are ". . . owners of real
property at Lake Tahoe, in Washoe County, Nevada, and are
bringing this action for themselves and other similarly situated
taxpayers."
The complaint argues that assessments made on Incline and
Crystal Bay properties for the 2008-2009 were unconstitutional.
The five points the complaint makes are:
1. The Washoe County Assessor failed to follow the valuation
methodologies promulgated by the Nevada Tax Commission for
uniform use throughout all seventeen counties in Nevada,
that the resulting valuations and assessments violate the
Nevada and U.S. Constitutions and Nevada statutes and that
any tax bills based on those valuations/assessments are
unconstitutional and void;
2. The plaintiff homeowner taxpayers and other similarly
situated homeowner taxpayers have no plain, speedy,
efficient or otherwise adequate remedy under state law
from the unconstitutional valuation and assessment of
their properties or from the unconstitutional and
excessive tax bills based on that unconstitutional
valuation and assessment;
3. That the Court enter an order preliminary and permanently
enjoining Washoe County Treasurer Bill Berrum from
collecting any taxes on any residential real property at
Lake Tahoe, in Washoe County for the tax year 2008-2009
based or calculated on the unconstitutional valuations and
resulting unconstitutional assessments;
4. That the plaintiffs be awarded costs of this action and
their reasonable attorney's fees; and
5. That the plaintiffs be awarded such other and further
relief as they may be adjudged entitled to in the
premises.
"I've been elected to carry out the legislative mandate of our
constitution, and I'm doing that the very best that I can," Mr.
Berrum told Nevada Appeal. "I will say this; I know a number of
people in Incline Village, and they don't share the same view of
the Village League. The Village League doesn't represent how
everyone feels in Incline."
If Ms. Fulstone files a motion, she said the defendants will
face some timeline to oppose it. From there, the district court
would determine the logistics of the case and decide if things
should go further.
Maryanne Ingmemanson, president of the Village league, is one of
the six plaintiffs named in the complaint. She said the Village
League's aim with the litigation is to send a powerful message.
"This is letting the county know that it stands to lose a lot of
tax dollars if the court rules in our favor, so it hopefully
will encourage them to look at things differently," she said.
* Overtime Class Actions Dead in British Columbia, FP Says
----------------------------------------------------------
On May 1, 2008, the British Columbia Court of Appeal ruled that
employees cannot bring a civil class action suit based on the
minimum overtime pay provisions of the province's Employment
Standards Act, FP Legal Post reports.
The court ruled that the BC Director of Employment Standards has
sole jurisdiction to enforce the statute, subject to appeals to
the BC Employment Tribunal, the report notes. The ESA, the
court noted, presents "a complete code for the granting and
enforcement of statutorily-conferred benefits."
Legal Post further says that the court also ruled that the
minimum overtime pay requirements of the ESA were not implied
terms of the plaintiff's contract of employment, and that the
province's class proceeding legislation was not an independent
source of authority for pursuing a class action claiming damages
under the ESA.
New Securities Fraud Cases
CANDELA CORP: Schiffrin Barroway Files Massachusetts Fraud Suit
---------------------------------------------------------------
The law firm of Schiffrin Barroway Topaz & Kessler, LLP
commenced a class action with the United States District Court
for the District of Massachusetts on behalf of all purchasers of
securities of Candela Corporation from February 1, 2006, through
August 21, 2006, inclusive.
The Complaint charges Candela and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
Candela manufactures and distributes clinical solutions that
enable physicians, surgeons, and personal care practitioners to
treat selected cosmetic and medical conditions using lasers,
aesthetic laser systems, and other advanced technologies.
More specifically, the Complaint alleges that the Company failed
to disclose and misrepresented the following material adverse
facts which were known to defendants or recklessly disregarded
by them:
(1) that the Company was not able to remain competitive in
the field;
(2) specifically, the Company was not offering a
competitive multi-configuration/multi-application
device and was losing market share;
(3) that the Company and Palomar Medical Technologies, Inc.
had exchanged various communications concerning the
prospect of patent litigation by Palomar, which if
commenced would increase costs;
(4) that the Company lacked adequate internal and financial
controls; and
(5) that, as a result of the foregoing, the Company's
statements about its financial well-being and future
business prospects were lacking in any reasonable basis
when made.
On August 10, 2006, the Company announced that it had filed a
claim against Palomar asserting that certain Palomar systems
infringed on upon patents held by Candela. The Company stated
that it would seek an injunction and monetary damages. Then, on
August 21, 2006, the Company shocked investors when it reported
that net income for the fourth quarter would be $0.10 per share,
well below the $0.23 per share analysts had expected. The
Company announced that it was not satisfied with these results,
and that it would examine its position and the market and plan
to introduce new products in the first half of 2007. Upon the
release of this news, the Company's shares declined $4.16 per
share, or 28.71 percent, to close on August 22, 2006 at $10.33
per share, on unusually heavy trading volume.
The plaintiff seeks to recover damages on behalf of the class
members.
For more information, contact:
Darren J. Check, Esq.
Richard A. Maniskas, Esq.
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 1-888-299-7706 (toll free)
1-610-667-7706
e-mail: info@sbtklaw.com
OPPENHEIMER & CO: Girard Gibbs Files N.Y. Securities Fraud Suit
---------------------------------------------------------------
The law firm of Girard Gibbs LLP has filed a class action
lawsuit in the United States District Court for the Southern
District of New York on behalf of persons who purchased Auction
Rate Securities from Oppenheimer & Co. Inc. Oppenheimer Holdings
Inc., and Oppenheimer Asset Management Inc. between April 9,
2003, and February 13, 2008, inclusive, and who continued to
hold such securities as of February 13, 2008.
The class action is brought against Oppenheimer Holdings Inc.
and its wholly-owned subsidiaries, Oppenheimer & Co. Inc. and
Oppenheimer Asset Management Inc.
The Complaint alleges that Oppenheimer violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 by deceiving
investors about the investment characteristics of auction rate
securities and the auction market in which these securities
traded.
Auction rate securities are either municipal or corporate debt
securities or preferred stocks which pay interest at rates set
at periodic "auctions." Auction rate securities generally have
long-term maturities or no maturity dates.
The Complaint alleges that, pursuant to uniform sales materials
and top-down management directives, Oppenheimer offered and sold
auction rate securities to the public as highly liquid cash-
management vehicles and as suitable alternatives to money market
mutual funds. According to the Complaint, holders of auction
rate securities sold by Oppenheimer and other broker-dealers
have been unable to liquidate their positions in these
securities following the decision on February 13, 2008, of all
major broker-dealers including Oppenheimer to "withdraw their
support" for the periodic auctions at which the interest rates
paid on auction rates securities are set.
The Complaint alleges that Oppenheimer failed to disclose the
following material facts about the auction rate securities it
sold to the class:
(1) the auction rate securities were not cash alternatives,
like money market funds, but were instead, complex,
long-term financial instruments with 30 year maturity
dates, or longer;
(2) the auction rate securities were only liquid at the
time of sale because broker-dealers were artificially
supporting and manipulating the auction rate market to
maintain the appearance of liquidity and stability; and
(3) Oppenheimer continued to market auction rate securities
as liquid investments after it had determined that
broker dealers were likely to withdraw their support
for the periodic auctions and that a "freeze" of the
market for auction rate securities would result.
For more information, contact:
Daniel C. Girard, Esq. (dcg@girardgibbs.com)
Jonathan K. Levine, Esq. (jkl@girardgibbs.com)
Aaron M. Sheanin, Esq. (ams@girardgibbs.com)
Girard Gibbs LLP
601 California Street, 14th Floor
San Francisco, CA 94108
Phone number: 866-981-4800
Web site: http://www.girardgibbs.com/
RBC DRAIN: Girard Gibbs Files Securities Fraud Lawsuit in N.Y.
--------------------------------------------------------------
The law firm of Girard Gibbs LLP has filed a class action
lawsuit in the United States District Court for the Southern
District of New York on behalf of persons who purchased Auction
Rate Securities from RBC Dain Rauscher Inc., Royal Bank of
Canada, and RBC Capital Markets Corporation between May 12,
2003, and February 13, 2008, inclusive, and who continued to
hold such securities as of February 13, 2008.
The class action is brought against Royal Bank of Canada and its
wholly-owned subsidiaries, RBC Dain Rauscher Inc. and RBC
Capital Markets Corporation.
The Complaint alleges that RBC Dain Rauscher violated Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 by
deceiving investors about the investment characteristics of
auction rate securities and the auction market in which these
securities traded.
Auction rate securities are either municipal or corporate debt
securities or preferred stocks which pay interest at rates set
at periodic "auctions." Auction rate securities generally have
long-term maturities or no maturity dates.
The Complaint alleges that, pursuant to uniform sales materials
and top-down management directives, RBC Dain Rauscher offered
and sold auction rate securities to the public as highly liquid
cash-management vehicles and as suitable alternatives to money
market mutual funds. According to the Complaint, holders of
auction rate securities sold by RBC Dain Rauscher and other
broker-dealers have been unable to liquidate their positions in
these securities following the decision on February 13, 2008, of
all major broker-dealers including RBC Dain Rauscher to
"withdraw their support" for the periodic auctions at which the
interest rates paid on auction rates securities are set.
The Complaint alleges that RBC Dain Rauscher failed to disclose
the following material facts about the auction rate securities
it sold to the class:
(1) the auction rate securities were not cash alternatives,
like money market funds, but were instead, complex,
long-term financial instruments with 30 year maturity
dates, or longer;
(2) the auction rate securities were only liquid at the
time of sale because RBC Dain Rauscher and other
broker-dealers were artificially supporting and
manipulating the auction rate market to maintain the
appearance of liquidity and stability;
(3) RBC Dain Rauscher and other broker-dealers routinely
intervened in auctions for their own benefit, to set
rates and prevent all-hold auctions and failed
auctions; and
(4) RBC Dain Rauscher continued to market auction rate
securities as liquid investments after it had
determined that it and other broker dealers were likely
to withdraw their support for the periodic auctions and
that a "freeze" of the market for auction rate
securities would result.
For more information, contact:
Daniel C. Girard, Esq. (dcg@girardgibbs.com)
Jonathan K. Levine, Esq. (jkl@girardgibbs.com)
Aaron M. Sheanin, Esq. (ams@girardgibbs.com)
Girard Gibbs LLP
601 California Street, 14th Floor
San Francisco, CA 94108
Phone number: 866-981-4800
Web site: http://www.girardgibbs.com/
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
May 13-14, 2008
D&O LIABILITY INSURANCE
American Conference Institute
New York
Web site: https://www.americanconference.com
Phone: 1-888-224-2480
May 15, 2008
LEXISNEXIS WOMEN IN THE LEGAL PROFESSION TELECONFERENCE
SERIES: ASSUMING A LEADERSHIP POSITION
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 19-20, 2008
MEALEY'S INSURANCE SUMMIT: CAPITAL MARKETS CONVERGENCE AND
STRATEGIC CONSIDERATIONS FACING THE INSURANCE INDUSTRY
Mealeys Seminars
The Westin Grand, Washington, DC
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 20-21, 2008
MEALEY'S CONSTRUCTION LITIGATION CONFERENCE
Mealeys Seminars
The Rittenhouse Hotel, Philadelphia
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
May 29-30, 2008
MASS LITIGATION
ALI-ABA
Charleston, SC
Contact: 215-243-1614; 800-CLE-NEWS x1614
June 23-24, 2008
MEALEY'S WRAP INSURANCE CONFERENCE
Mealeys Seminars
The Signatures at the MGM Grand, Las Vegas
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
June 25, 2008
LEXISNEXIS WOMEN IN THE LEGAL PROFESSION SUMMIT: RAINMAKING,
NEGOTIATING AND COLLABORATIVE DEVELOPMENT (NEW YORK)
Mealeys Seminars
The Harvard Club, New York
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
July 10-11, 2008
CLASS ACTION LITIGATION 2008: PROSECUTION AND
DEFENSE STRATEGIES
Practising Law Institute
New York
Phone: 800-260-4PLI; 212-824-5710
July 30, 2008
MANAGING COMPLEX FEDERAL LITIGATION: A PRACTICAL GUIDE TO NEW
DEVELOPMENTS, PROCEDURES, & STRATEGIES
Practising Law Institute
Chicago
Phone: 800-260-4PLI; 212-824-5710
October 23-24, 2008
Mass Torts Made Perfect Seminar
Mass Torts Made Perfect
Bellagio, Las Vegas
Phone: 1-800-320-2227
* Online Teleconferences
------------------------
December 13, 2008
MEALEY'S FINITE REINSURANCE TELECONFERENCE
Mealeys Seminars
Phone: 1-800-MEALEYS; 610-768-7800;
e-mail: mealeyseminars@lexisnexis.com
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
(2004)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
CIVIL LITIGATION PRACTICE: 23RD ANNUAL RECENT DEVELOPMENTS
(2005)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINATION
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING
WRITTEN DISCOVERY
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
SUMMARY JUDGMENT AND OTHER DISPOSITIVE MOTIONS
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS (2004)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
TORTS PRACTICE: 20TH ANNUAL RECENT DEVELOPMENTS (2005)
CEB Online
e-mail: customer_service@ceb.ucop.edu
Phone: 1-800-232-3444
ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
ASBESTOS BANKRUPTCY-PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
e-mail: customerservice@lawcommerce.com
INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
e-mail: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
e-mail: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com/Law Education Institute
e-mail: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
e-mail: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
e-mail: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Phone: 800-285-2221
e-mail: abacle@abanet.org
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel S. Senorin, Janice M. Mendoza, Freya Natasha F.
Dy, and Peter A. Chapman, Editors.
Copyright 2008. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without
prior written permission of the publishers.
Information contained herein is obtained from sources believed
to be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *