/raid1/www/Hosts/bankrupt/CAR_Public/080527.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, May 27, 2008, Vol. 10, No. 104
Headlines
5-STAR TRUCK: Court Approves $177,500 Settlement in 2003 Lawsuit
AGRIA CORP: Lead Plaintiff Application Deadline is on June 10
ALLSTATE INSURANCE: Scarfone Hawkins Files $60MM Suit in Toronto
BARR PHARMACEUTICALS: No Trial Date Set for Ovcon-35 Lawsuits
BJ'S RESTAURANTS: California Labor Suit Remains in Arbitration
CARDINAL HEALTH: Ninth Circuit Denies Petition in Calif. Matter
CARRIAGE SERVICES: Faces FSLA Violations Lawsuit in Nevada Court
CARRIAGE SERVICES: Faces Ind. Lawsuit Over Withdrawals From GTF
CARRIAGE SERVICES: Denies Allegations in "Leathermon" Litigation
CENTRO PROPERTIES: Slate & Gordon Commences Shareholder Lawsuit
COUPON PROCESSING: RICO Conspiracy Alleged in Wisconsin Lawsuit
E*TRADE FINANCIAL: No Lead Plaintiff Named Yet in "Freudenberg"
FEN-PHEN LITIGATION: Judge Admits Poor Judgment on $200MM Deal
GENERAL MOTORS: Plaintiffs Seeks Rehearing on Suit Dismissal
GENERAL MOTORS: June 3, 2008 Hearing Set for UAW Suit Settlement
GENERAL MOTORS: Plaintiffs Appeal Dismissal of N.Y. ERISA Suits
GMAC LLC: Sixth Circuit Affirms Dismissal of "Zielezienski" Case
NISOURCE INC: Sup. Ct. Refuses to Hear $404MM Judgment Appeal
NOVOPHARM: Class Action Suit Denial Affirmed by Appeals Court
PEOPLES UNITED: Faces Connecticut Lawsuit Over Security Breach
PFIZER INC: Court Denies Records Request in Celebrex Lawsuit
POWERWAVE TECHNOLOGIES: Seeks Dismissal of Consolidated Lawsuit
POWER MOWERS: New Jersey Lawsuit Alleges Widespread Conspiracy
SASKATOON CITY: Sued for $18M with United Cab Over Taxi Licenses
ST. JOSEPH'S: Sued Over Patient Admission and Billing Scheme
SUTTER HEALTH: Third Suit Over Labor Code Breach Filed in Calif.
SYNCOR INT'L: Enters Mediation to Settle Calif. Securities Suit
TOUSA INC: Engle Homeowners Sue Over Dangers Vintage Bombs Pose
VARIABLE ANNUITY: Law Firms Sue Over Teacher Retirement
ZIMMER HOLDINGS: Faces N.Y. Suit Over Pervasive Kickback Scheme
New Securities Fraud Cases
GOLDMAN SACHS: Stull & Brody Files N.Y. Securities Fraud Suit
MGIC INVESTMENT: Schatz Nobel Commences Michigan Securities Suit
TRM CORP: Coughlin Stoia Files Securities Fraud Suit in Oregon
TRM CORP: Federman & Sherwood Files Oregon Securities Lawsuit
*********
5-STAR TRUCK: Court Approves $177,500 Settlement in 2003 Lawsuit
----------------------------------------------------------------
Retired Butler County Common Pleas Judge Matthew Crehan has
approved a $177,500 settlement in a class action
lawsuit filed on behalf of former students of 5-Star Truck
Driving School in Middletown, Middletown Journal relates.
5-Star students alleged in a lawsuit filed in Butler County
Common Pleas Court in 2003 that the school:
-- falsely guaranteed to get them jobs that would pay off the
high-interest loans for the Commercial Driver's License;
-- used unqualified instructors and inadequate hours of
instruction; and
-- that a state CDL examiner pleaded guilty following a probe
to falsifying test results, which led to the revocation of
more than 200 CDLs of former students by the Ohio
Department of Motor Vehicles.
In April 2008, without admitting any wrongdoing, the lenders and
driver's license test site agreed to settle the claims to end
the cost and uncertainty of litigation (Class Action Reporter,
April 29, 2008).
At the fairness hearing on May 23, 2008, Judge Crehan approved
the $177,500 settlement and the distribution of payments to
about 200 victims.
The agreement calls for $5,000 payments to be made to the three
main plaintiffs as well as voiding of their student loan debts,
and a 39% refund to people who made payments directly to the
school or a financial institution for a loan to pay the fee.
The case is scheduled to be dismissed on June 27, 2008, after
payments are made.
The truck school, owned by the defunct Franklin Career Services
LLC of Louisville, Ky., is not party to the settlement, the
report says.
The former 5-Star students are represented by Equal Justice
Foundation of Columbus and the Dayton ABLE office, which will
administer the collection of forms and claim payment. For
information, call 866-837-8832.
AGRIA CORP: Lead Plaintiff Application Deadline is on June 10
-------------------------------------------------------------
Pomerantz Haudek Block Grossman & Gross LLP reminds investors of
Agria Corporation that June 10, 2008, is the deadline to ask the
Court for appointment as lead plaintiff in a class action
lawsuit that the firm filed in the United States District Court,
Southern District of New York, against Agria and certain of its
officers.
The class action was filed on behalf of purchasers of the
securities of the company who purchased or otherwise acquired
Agria's securities pursuant or traceable to the company's
November 6, 2007 Initial Public Offering.
The complaint alleges violations of Sections 11 and 15 of the
Securities Act of 1933 (15 U.S.C. Sections 77k and 77o).
The complaint alleges that on November 6, 2007, Agria conducted
its IPO, filing a Registration Statement and Prospectus with the
SEC. The IPO was successful for the company and its selling
shareholder, raising over $282 million by selling the company's
securities to investors at $16.50 per share. On April 7, 2007,
Agria surprised the market when it announced that the company's
auditors were unable to begin their 2007 audit of Agria's
financials due to various accounting and payment issues. The
company also announced that its chief operating officer had
resigned and disclosed for the first time that its CEO was
actively involved in protracted compensation negotiations with
the COO and other key executives. Consequently, shares of the
company's securities declined $3.34 per share, or almost
38 percent, representing a cumulative loss of $11.04, or
66.9 percent, of the value of the company's shares since the
time of its IPO.
The complaint further alleges that, in connection with the
company's IPO, defendants failed to disclose or indicate the
following:
(1) that the company had failed to secure enforceable
employment agreements with its COO and other key
executives prior to its IPO;
(2) that the company was in negotiations with its COO and
other key executives to provide multi-million dollar
compensation packages and that these increased
compensation expenses would materially impact the
company's financial results going forward;
(3) that various accounting and payment issues, which
existed at the time of the IPO, would subsequently
prohibit the company's auditors from completing its
audit of the company's financial statements; (4) that
the company lacked adequate internal and financial
controls; and
(5) that, as a result of the foregoing, the company's
Registration Statement was false and misleading at all
relevant times.
Agria Corporation engages in the research and development,
production, and sale of upstream agricultural products in the
People's Republic of China.
For more information, contact:
Teresa Webb, Esq. (tlwebb@pomlaw.com)
Pomerantz Haudek Block Grossman & Gross LLP
100 Park Avenue
New York, NY 10017-5516
Phone: 888-476-6529
888-4-POMLAW
ALLSTATE INSURANCE: Scarfone Hawkins Files $60MM Suit in Toronto
----------------------------------------------------------------
Scarfone Hawkins LLP filed a $60-million class action suit in
the Ontario Superior Court of Justice in Toronto against
insurance giant Allstate on behalf of its agents, The Hamilton
Spectator reports.
The complaint claims damages for breach of contract and breach
of the Employment Standards Act.
The plaintiffs claim Allstate unilaterally changed its contracts
with 450 agents across Canada. They claim the company told its
agents last July they would no longer be paid commission on
policy renewals and 256 agent locations would be closed in
Canada.
While the company said it would guarantee its agents' incomes
for 24 months, the statement of claim says that guarantee was
inappropriately tied to "minimum performance standards" and was
therefore no guarantee at all.
The allegations contained in the statement of claim has yet to
be proven in court.
BARR PHARMACEUTICALS: No Trial Date Set for Ovcon-35 Lawsuits
-------------------------------------------------------------
No trial date is set for lawsuits filed by direct purchasers of
the Ovcon-35 drug against Barr Pharmaceuticals, Inc., and Warner
Chilcott Holdings, Co. III, Ltd., among others, according to
Barr's May 9, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2008.
To date, the company has been named as a co-defendant with
Warner Chilcott and others in complaints filed in federal courts
by the Federal Trade Commission, 34 state Attorneys General, and
certain private class-action plaintiffs claiming to be direct or
indirect purchasers of Ovcon-35.
These actions, the first of which was filed by the FTC in
December 2005, allege, among other things, that a March 24, 2004
agreement between the company and Warner Chilcott (then known as
Galen Holdings PLC) constitutes an unfair method of competition,
is anticompetitive and restrains trade in the market for Ovcon-
35 and its generic equivalents.
In the suit brought on behalf of the direct purchasers, on
Oct. 22, 2007, the Court granted a motion by the plaintiffs to
certify a class on behalf of all entities that purchased Ovcon
35 directly from Warner Chilcott (or its affiliated companies)
from April 22, 2004.
In November 2007, the company and the direct purchasers filed
cross motions for summary judgment. No ruling has been made on
the motions and no trial date has been set.
Barr Pharmaceuticals, Inc. -- http://www.barrlabs.com/-- is
primarily a holding company. The Company's subsidiaries, Barr
Laboratories, Inc. and Duramed Pharmaceuticals, Inc., develop,
manufacture and market generic and proprietary pharmaceutical
products, respectively. It operates in two business segments.
In the generic pharmaceutical segment, it manufactures and
distributes approximately 150 different dosage forms and
strengths of approximately 75 different generic pharmaceutical
products, including 22 oral contraceptive products that
represent the largest category of its generic product portfolio.
BJ'S RESTAURANTS: California Labor Suit Remains in Arbitration
--------------------------------------------------------------
A labor-related lawsuit against BJ's Restaurants, Inc.,
continues to remain in arbitration, according to the company's
May 9, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended April 1, 2008.
On Feb. 5, 2004, a former employee of the company, on behalf of
herself, and other BJ employees, filed a class action complaint
in the Los Angeles County, California Superior Court, with case
number BC310146.
On March 16, 2004, the plaintiff filed an amended complaint,
alleging causes of action for:
-- failure to pay reporting time minimum pay;
-- failure to allow meal breaks;
-- failure to allow rest breaks;
-- waiting time penalties;
-- civil penalties;
-- reimbursement for fraud and deceit;
-- punitive damages for fraud and deceit; and
-- disgorgement of illicit profits.
On June 28, 2004, the plaintiff stipulated to dismiss her
second, third, fourth and fifth causes of action, and in
September 2004, she stipulated to binding arbitration of the
action.
On March 2 and March 19, 2008, one of the plaintiff's attorneys
filed a notice with the California Labor and Workforce
Development Agency, alleging failure to keep adequate pay
records and to pay plaintiff minimum wage.
The company reported no further development in the matter in its
SEC regulatory disclosure.
BJ's Restaurants, Inc. -- http://www.bjsbrewhouse.com/-- owned
and operated 55 restaurants located in California, Oregon,
Colorado, Arizona, Texas and Nevada, as of Jan. 2, 2007. A
licensee also operates one restaurant in Lahaina, Maui. Each of
the Company's restaurants is operated either as a BJ's
Restaurant & Brewery that includes a brewery within the
restaurant, a BJ's Restaurant & Brewhouse that receives the beer
BJ's sells from one of its breweries or an approved third-party
craft brewer of its recipe beers (contract brewer), or a BJ's
Pizza & Grill, which is a smaller format, full-service
restaurant. The Company's menu features the BJ's signature
deep-dish pizza, its own handcrafted beers, as well as a
selection of appetizers, entrees, pastas, sandwiches, specialty
salads and desserts, including the Pizookie cookie. The
Company's 12 BJ's Restaurant & Brewery restaurants feature in-
house brewing facilities, where BJ's handcrafted beers are
produced and sold.
CARDINAL HEALTH: Ninth Circuit Denies Petition in Calif. Matter
---------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit has denied a
petition for panel rehearing and rehearing en banc of an appeal
related to the dismissal of a purported class action suit filed
in the U.S. District Court for the Central District of
California against Cardinal Health, Inc., Syncor International
Corp., and certain Syncor officers and employees.
Initially, several class action suits were filed against
Cardinal Health, alleging violations of the Employee Retirement
Income Security Act. The suits are:
-- "Pilkington v. Cardinal Health, et al.," which was
filed on April 8, 2003, against the company, Syncor
and certain officers and employees of the company by a
purported participant in the Syncor Employees' Savings
and Stock Ownership Plan.
-- "Donna Brown, et al. v. Syncor International Corp., et
al.," which was filed on Sept. 11, 2003, against the
company, Syncor and certain individual defendants.
-- "Thompson v. Syncor International Corp., et al.,"
which was filed on Jan. 14, 2004, against the company,
Syncor and certain individual defendants.
Each of these actions was brought in the U.S. District Court for
the Central District of California. These suits were
subsequently consolidated.
A consolidated complaint was filed on Feb. 24, 2004, against
Syncor and certain former Syncor officers, directors and
employees. The consolidated complaint alleges that the
defendants breached certain fiduciary duties owed under ERISA
based on the same underlying allegations of improper and
unlawful conduct alleged in the federal securities litigation.
The consolidated complaint seeks unspecified money damages and
other unspecified relief against the defendants.
On April 26, 2004, the defendants filed motions to dismiss the
consolidated complaint. In August 2004, the court granted in
part and denied in part defendants' dismissal motions.
Specifically, the court dismissed, without prejudice, all claims
against individual defendants Ed Burgos and Sheila Coop, all
claims alleging co-fiduciary liability against all defendants,
and all claims alleging that the individual defendants had
conflicts of interest precluding them from properly exercising
their fiduciary duties under ERISA.
A claim for breach of the duty to prudently manage plan assets
was upheld against Syncor, and a claim for breach of the alleged
duty to "monitor" the performance of Syncor's Plan
Administrative Committee was upheld against individual
defendants Monty Fu and Robert Funari.
On Jan. 10, 2006, Syncor and the other parties entered into a
term sheet to settle the litigation for a cash payment of
$4 million and payment of an additional amount not to exceed
$4 million for litigation fees and expenses and reported the
settlement to the District Court.
Also on Jan. 10, 2006, the District Court entered summary
judgment in favor of all the defendants on all remaining claims.
Consistent with that ruling, on Jan. 11, 2006, the District
Court entered a final order dismissing the case and the lead
plaintiff appealed this decision to the U.S. Court of Appeals
for the Ninth Circuit.
On Feb. 19, 2008, the Court of Appeals entered an order
reversing the District Court's dismissal of the plaintiffs'
claims and remanded the case to the District Court to hold a
hearing to review the fairness of the settlement agreement.
On March 3, 2008, Syncor filed a petition for panel rehearing
and rehearing en banc, which was denied on March 31, 2008,
according to the company's May 8, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Carol Pilkington v. Cardinal Health Inc., et al.,
Case No. 2:03-cv-02446-RGK-RC," filed in the U.S. District Court
for the Central District of California, Judge R. Gary Klausner,
presiding.
Representing the plaintiffs are:
Christopher Kim, Esq. (christopher.kim@lrklawyers.com)
Lisa J. Yang, Esq. (lisa.yang@lrklawyers.com)
Lim Ruger & Kim
1055 W 7th St, Ste 2800
Los Angeles, CA 90017
Phone: 213-955-9500
- and -
Edward Chang, Esq. (echang@sbclasslaw.com)
Joseph H. Meltzer, Esq. (jmeltzer@sbclasslaw.com)
Schiffrin and Barroway
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
Representing the defendants is:
Ted Allan Gehring, Esq.
Gibson Dunn & Crutcher
333 S. Grand Ave., 45th Fl.
Los Angeles, CA 90071-3197
Phone: 213-229-7000
CARRIAGE SERVICES: Faces FSLA Violations Lawsuit in Nevada Court
----------------------------------------------------------------
Carriage Services, Inc., is facing a purported class action
lawsuit filed before the U.S. District Court for the District of
Nevada and generally alleges violations of the Fair Labor
Standards Act, according to the company's May 9, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2008.
On Nov. 28, 2007, five former funeral directors filed suit for
themselves and on behalf of all hourly, non-exempt employees of
Carriage. The plaintiffs allege violations of state wage and
hour laws and FLSA, as well as related tort and contract claims.
Specifically, the plaintiffs allege that Carriage failed to
properly compensate employees for time spent on community work,
on-call time, pre-need appointments, and training, failed to
provide required meal and rest breaks under California state
law, and failed to maintain proper records.
Carriage filed its answer to the complaint on Jan. 28, 2008,
denying all material allegations and asserting appropriate
affirmative defenses.
On Feb. 29, 2008, the Court granted the plaintiffs' motion for
conditional certification under the FLSA. The parties have
effectuated notice of the lawsuit to all potential class members
pursuant to the Court's order. The case is currently in its
opt-in period.
The suit is "Spencer Cranney, et al., v. Carriage Services,
Inc., et al., Case No. 2:07-cv-01587," filed in the U.S.
District Court for the District of Nevada, Judge Roger L. Hunt,
presiding.
Representing the plaintiffs are:
Justin M. Cordello, Esq.
(jcordello@theemploymentattorneys.com)
Dolin Thomas Solomon LLP
693 East Avenue
Rochester, NY 14607
Phone: 585-272-0540
- and -
Kyle T. McGee, Esq. (kmcgee@margolisedelstein.com)
Margolis Edelstein
525 William Penn Place
Pittsburgh, PA 15219
Phone: 412-281-4256
Fax: 412-642-2380
Representing the defendants is:
Michael L. Banks, Esq. (mbanks@morganlewis.com)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Phone: 215-963-5387
Fax: 215-963-5001
CARRIAGE SERVICES: Faces Ind. Lawsuit Over Withdrawals From GTF
---------------------------------------------------------------
Carriage Services, Inc., is facing a purported class action suit
captioned, "Means v. Carriage Cemetery Services, Inc., et al.,
Case No. 49D12-0704-PL-016504," filed in the Indiana Superior
Court, Marion County, Indiana, according to the company's May 9,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2008.
On April 20, 2007, Plaintiff Cecilia Means filed a putative
class action complaint alleging that one or more of the current
and past owners of Grandview Cemetery in Madison, Indiana—
including the Carriage subsidiaries that owned the cemetery from
January 1997 until February 2001 -- and one or more of the bank
trustees who served as trustee of Grandview Cemetery's Pre-
Arrangement Trust Fund -- improperly withdrew funds from the
Grandview Trust Fund.
Carriage filed a motion for summary judgment with respect to the
plaintiff's claims against it. The Court has yet to rule on
either motion. The plaintiff has also filed a motion to certify
a class, and briefing on this issue is ongoing.
Carriage Services, Inc. -- http://www.carriageservices.com/--
is a provider of death care services and merchandise in the U.S.
The Company operates two types of businesses: funeral homes,
which principally service businesses that provide burial and
cremation services and sell related merchandise, such as caskets
and urns, and cemetery operations, which provides interment
rights (grave sites and mausoleums) and related merchandise,
such as markers and memorials.
CARRIAGE SERVICES: Denies Allegations in "Leathermon" Litigation
----------------------------------------------------------------
Carriage Services, Inc., denied all claims asserted against it
in the matter, "Leathermon, et al. v. Grandview Memorial
Gardens, Inc., et al., Case No. 4:07-cv-137," which was filed
with the U.S. District Court for the Southern District of
Indiana.
On Aug. 17, 2007, five plaintiffs filed a putative class action
suit against the current and past owners of Grandview Cemetery
in Madison, Indiana, including Carriage subsidiaries that owned
the cemetery from January 1997 until February 2001, on behalf of
all individuals who purchased cemetery and burial goods and
services at Grandview Cemetery.
The plaintiffs claim that the cemetery owners performed burials
negligently, breached plaintiffs' contracts, and made
misrepresentations regarding the cemetery.
On Oct. 15, 2007, the case was removed from Jefferson County
Circuit Court, Indiana, to the U.S. District Court for the
Southern District of Indiana.
The company has filed its answer denying the claims asserted,
according to the company's May 9, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2008.
Carriage Services, Inc. -- http://www.carriageservices.com/--
is a provider of death care services and merchandise in the U.S.
The Company operates two types of businesses: funeral homes,
which principally service businesses that provide burial and
cremation services and sell related merchandise, such as caskets
and urns, and cemetery operations, which provides interment
rights (grave sites and mausoleums) and related merchandise,
such as markers and memorials.
CENTRO PROPERTIES: Slate & Gordon Commences Shareholder Lawsuit
---------------------------------------------------------------
The law firm Slate & Gordon lodged a class action suit in the
Federal Court in Melbourne against:
-- Centro Properties Ltd,
-- CPT Manager Ltd, the responsible entity for Centro
Property Trust,
-- Centro Retail Ltd, and
-- Centro MCS Manager Ltd, the responsible entity for the
Centro Retail Trust
on behalf of Nicholas Vlachos, Monatex Pty Ltd and Ramon Franco,
the Sydney Morning Herald reports.
The applicants are representative parties for persons who were
not group members in the class action claim commenced against
Centro Properties Ltd and CPT Manager Ltd by Maurice Blackburn
on May 9, 2008, also in the Federal Court in Melbourne.
Maurice Blackburn filed the shareholder class action against the
property fund, with a claim value of at least AUD100 million,
commenced on behalf of litigation funder IMF Australia Ltd
(Class Action Reporter, May 14, 2008 ).
According to IMF, the claims relate to alleged misleading and
deceptive conduct and breaches by Centro of its continuous
disclosure obligations between August 9, 2007, and February 15,
2008.
Maurice Blackburn's shareholder claim will seek compensation
over the price paid for securities inflated by Centro's alleged
failure to properly disclose its circumstances.
"Centro will vigorously defend this proceeding in the interests
of its securityholders," the company said.
Centro Properties Group -- http://www.centro.com.au/-- is a
retail investment organisation specialising in the ownership,
management and development of retail shopping centres. Centro
manages both listed and unlisted retail property and has an
extensive portfolio of shopping centres across Australia, New
Zealand and the United States. Centro has funds under
management of $24.9 billion.
COUPON PROCESSING: RICO Conspiracy Alleged in Wisconsin Lawsuit
---------------------------------------------------------------
The two leaders of the coupon processing industry --
International Outsourcing Services of Indiana, and Inmar, of
North Carolina -- are facing a class-action complaint filed
before the U.S. District Court for the Eastern District of
Wisconsin alleging RICO conspiracy, CourtHouse News Service
reports.
This case arises in the coupon processing industry, a highly
concentrated industry beset with fraud, corruption, and
agreements among competitors to allocate customers and not to
compete.
The complaint accuses the companies of conspiring to raise and
fix prices, allocate customers, breach contracts and defraud.
Named plaintiff the Montana Food Distributors Association,
representing 162 retailers, claims that coupon processing is "a
highly concentrated industry beset with fraud, corruption, and
agreements among competitors to allocate customers and not to
compete."
This action is brought on behalf of all retailers, state
associations, and wholesalers in the United States that have
retained or engaged IOS or Inmar to provide coupon processing
services from Jan. 1, 1997, through the present (and continuing
until the effects of IOS' and Inmar's fraudulent and
anticompetitive scheme ceases).
The plaintiffs want the court to rule on:
(a) whether defendants participated in, or committed, or
are responsible for the conduct complained of;
(b) whether defendants' conduct constitutes violations of
law alleged;
(c) whether defendants conspired to allocate customers or
markets, fix prices, and otherwise not to compete;
(d) whether defendants conspired to share confidential
information about retailers' policies and practices in
breach of their fiduciary duties to those retailers;
(e) whether defendants conspired to conceal their unlawful
activities;
(f) the duration, extent and success of the agreements
between defendants to conspire to defraud the plaintiff
class;
(g) whether defendants' conduct constituted a breach of
fiduciary agreement and duty or conspiracy to commit
a breach of fiduciary agreement and duty;
(h) whether defendants' conduct violates the Federal
Racketeer Influenced and Corrupt Organizations Act,
18 USC Section 1962;
(i) whether defendants' conduct violated the Sherman Act;
(j) whether defendants' conduct constituted common law
fraud or conspiracy to commit common law fraud;
(k) whether defendants were unjustly enriched by their
course of conduct with respect to their collection,
processing, and submission of coupons to the plaintiff
class;
(l) whether plaintiff and other class members have
sustained or continue to sustain damages as a result of
defendants wrongful conduct, and if so, the proper
measure and appropriate formula to be applied in
determining such damages;
(m) whether plaintiff and the other class members are
entitled to an award of compensatory, treble, and
punitive damages, and if so, in what amount; and
(n) whether plaintiff and the other class members are
entitled to declaratory, injunctive, or other equitable
relief.
The plaintiffs ask the court for an order:
-- certifying this action as a class action, appointing
plaintiff as a class representative and its counsel as
lead class counsel;
-- awarding plaintiff and the class their full monetary
damages to be proven at trial;
-- awarding plaintiff and the class treble their monetary
damages, pursuant to 18 USC Section 1964(c) and 15 USC
Section 15;
-- awarding plaintiff and the class pre- and post-judgment
interest on their damages;
-- awarding plaintiff and the class the costs of this
action and reasonable attorneys' fees pursuant to 18 USC
Section 1964(c) and 15 USC Section 15;
-- awarding plaintiff and the class the amount by which
defendants have been unjustly enriched;
-- awarding plaintiff and the class punitive damages in an
amount to be determined;
-- enjoining defendants from continuing or resuming their
unlawful and anticompetitive practices; and
-- awarding plaintiff and the class such other and further
relief as the court deems just and proper.
The suit is "Montana Food Distributors Association et al v.
International Outsourcing Services, LLC et al., Case No. 08-C-
0457," filed before the U.S. District Court for the Eastern
District of Wisconsin.
Representing the plaintiffs are:
Daniel A. Kotchen, Esq.
Daniel L. Low, Esq.
Kotchen & Low LLP
2300 M St., NW, Suite 800
Washington, DC 20037
Phone: 202-416-1848
Fax: 202-293-3083
E*TRADE FINANCIAL: No Lead Plaintiff Named Yet in "Freudenberg"
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to rule on several motions that seeks for the
appointment of a lead plaintiff in the matter, "Freudenberg v.
E*Trade Financial Corporation et al., Case No. 1:07-cv-08538-
RWS."
On Oct. 2, 2007, a class action complaint alleging violations of
the federal securities laws was filed in the U.S. District Court
for the Southern District of New York against the company and
its chief executive officer and chief financial officer.
The suit was initially entitled, "Larry Freudenberg,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, versus E*TRADE Financial Corporation, Mitchell H.
Caplan and Robert J. Simmons, Defendants."
The plaintiff contends, among other things, that between
Dec. 14, 2006, and Sept. 25, 2007, the defendants:
-- issued materially false and misleading statements and
failed to disclose that the Company was experiencing a
rise in delinquency rates in its mortgage and home
equity portfolios;
-- failed to timely record an impairment on its mortgage
and home equity portfolios; materially overvalued its
securities portfolio, which includes assets backed by
mortgages; and
-- based on the foregoing, lacked a reasonable basis for
the positive statements it made about the Company's
earnings and prospects.
The plaintiff seeks to recover damages in an amount to be proven
at trial, including interest and attorneys' fees and costs.
Four additional class action complaints alleging similar
violations of the federal securities laws and alleging either
the same or somewhat longer class periods were filed in the same
court between Oct. 12, 2007, and Nov. 21, 2007, by named
plaintiffs William Boston, Robert D. Thulman, Wendy M. Davidson,
and Joshua Ferenc -- who subsequently dismissed his complaint on
May 2, 2008.
On Jan. 23, 2008, the trial court heard motions from various
plaintiffs seeking to be appointed lead plaintiff in these
actions, but has yet to issue its decision, according to the
company's May 9, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
The suit is "Freudenberg v. E*Trade Financial Corporation et
al., Case No. 1:07-cv-08538-RWS," filed with the U.S. District
Court for the Southern District of New York, Judge Robert W.
Sweet, presiding.
Representing the plaintiffs is:
David Avi Rosenfeld, Esq. (drosenfeld@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins, LLP
58 South Service Road
Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
Representing the defendants is:
Dennis E. Glazer, Esq. (dennis.glazer@dpw.com)
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Phone: 212-450-4900
Fax: 212-450-3900
FEN-PHEN LITIGATION: Judge Admits Poor Judgment on $200MM Deal
--------------------------------------------------------------
The judge who presided over a $200-million settlement over the
diet drug fen-phen that three Lexington lawyers are accused of
looting said he used "poor judgment" in his handling of the
case, according to The Kentucky Enquirer.
"I'm embarrassed," retired Circuit Judge Joseph "Jay" Bamberger
said while testifying during the eighth day of the trial of
Shirley Cunningham Jr., Esq., William Gallion, Esq., and
Melbourne Mills Jr., Esq., in the U.S. District Court.
Being the busiest circuit judge in Kentucky at the time of the
2001 settlement, Judge Bamberger said he depended on the advice
of the three lawyers in the case, along with Cincinnati class-
action lawyer Stan Chesley, Esq. Mr. Chesley has not been
charged with a crime.
According to The Kentucky Enquirer, jurors watched a video of a
May 2001 hearing in which Judge Bamberger approved the
settlement with the drug's maker. In the video, Judge Bamberger
seeks advice from Mr. Chesley on the proper way to proceed with
the case. Mr. Chesley is then heard on the tape making a self-
deprecating joke about his qualifications as a class-action
expert. Over the laughs that follow, Judge Bamberger said Mr.
Chesley was "taking the role" of the expert in the fen-phen
litigation.
Despite mandatory continuing education during the 12 years he
served as circuit judge in Boone and Gallatin counties, Judge
Bamberger testified that he never received training in class-
action lawsuits. Judge Bamberger told jurors he had never
presided over a class-action suit then and looked to an
acknowledged national expert, Mr. Chesley, to guide him.
Mr. Bamberger acknowledged he should not have approved the
creation of the charity with $20 million of the settlement money
and appointed Messrs. Cunningham, Gallion, Mills, and later
himself, to the board. Each board member, including Judge
Bamberger, was paid $5,000 a month to manage the charity.
Judge Bamberger also said he made an error by issuing a court
order approving the lawyers' fees without specifying in writing
how much those fees were. He said the lawyers did not tell him
many pertinent facts about the case, including the fact they had
agreed with their clients to take no more than 30 percent of any
settlement.
Mr. Chesley has previously said he did not represent the people
sickened by the drug, the report recounts. He said he was
brought into the case as "an adviser" to help the three lawyers
reach an out-of-court settlement with the drug's maker.
The three Lexington lawyers, meanwhile, each face up to 20 years
in prison if convicted of conspiracy to commit wire fraud.
Assistant U.S. Attorney Laura Voorhees said they withheld
information as part of a conspiracy to keep a huge share of the
settlement money for themselves.
As reported in the Class Action Reporter on Feb. 21, 2008,
Messrs. Gallion, Mills, and Cunningham are accused of taking
$65 million more than what their individual contracts with 440
clients said they should receive. Specifically, according to
The Kentucky Enquirer, court records say that the lawyers were
entitled to about $60 million in fees, but took an additional
$45 million and put another $20 million into a charity they
created and controlled.
The CAR report stated that the three lawyers, who pleaded not
guilty to the federal wire-fraud charges related to their
handling of the $200-million settlement involving the diet drug
fen-phen, are expected to argue that the state's procedures
involving class action and mass tort lawsuits are vague and that
they relied on a now-disgraced state court judge to set their
fees.
The Kentucky Bar Association has already suspended the lawyers.
A judge in a civil lawsuit regarding the same fen-phen
settlement has said the lawyers have to repay at least
$42 million to their former clients, the CAR said, citing an
earlier Associated Press report.
The April 14, 2008 CAR report said that a group of lawyers and
judges is reviewing how Kentucky courts handle class action
lawsuits and mass torts to see if there is more that can be done
to prevent wrongdoing by attorneys. According to AP, the
meetings among the members of this committee follow the criminal
charges against the three former Lexington-area lawyers.
The group -- Kentucky's mass tort and class-action litigation
committee -- has been looking at various issues including better
case management and strengthening ethics rules for lawyers. The
committee will also look at whether the state should change its
rules to mirror federal court rules, which are more specific and
include a mechanism for moving similar lawsuits into one court
or under one judge. The group hopes to have some
recommendations to forward to the state Supreme Court for
consideration in the next 12 months, Supreme Court Justice
Lisabeth Hughes Abramson, co-chair of the committee, told AP.
GENERAL MOTORS: Plaintiffs Seeks Rehearing on Suit Dismissal
------------------------------------------------------------
The plaintiffs in the purported class action, "In re New Market
Vehicle Canadian Export Antitrust Litigation Cases," which names
General Motors Corp. as one of the defendants, filed a motion
for rehearing en banc in connection with a ruling entered by the
U.S. Court of Appeals for the First Circuit in the matter.
Initially, several purported class action suits were filed in
various state and federal courts on behalf of all purchasers of
new motor vehicles in the U.S. since Jan. 1, 2001 (Class Action
Reporter, April 16, 2007).
The defendants include:
-- General Motors Corp.,
-- General Motors of Canada Ltd. along with Ford,
-- Daimler Chrysler,
-- Toyota,
-- Honda,
-- Nissan and BMW,
-- their Canadian affiliates,
-- the National Automobile Dealers Association, and
-- the Canadian Automobile Dealers Association.
The federal court actions were consolidated for coordinated
pretrial proceedings in federal court under the caption "In re
New Market Vehicle Canadian Export Antitrust Litigation Cases,"
in the U.S. District Court for the District of Maine.
The nearly identical complaints alleged that the defendant
manufacturers, aided by the association defendants, conspired
among themselves and with their dealers to prevent the sale to
U.S. citizens of vehicles produced for the Canadian market and
sold by dealers in Canada.
The complaints alleged that new vehicle prices in Canada are 10%
to 30% lower than those in the U.S. and that preventing the sale
of these vehicles to U.S. citizens resulted in the payment of
supracompetitive prices by U.S. consumers. In addition, the
complaints also alleged unjust enrichment and violations of
state unfair trade practices act.
The court ruled on March 21, 2007, that it 20 separate statewide
class action suits for damages were certified under various
state law theories under Federal Rule 23(b)(3), covering the
period from Jan. 1, 2001, to April 30, 2003.
General Motors has appealed the certification of the damages
classes following the entry of the class certification order and
anticipates that its appeal will be consolidated with its
pending appeal of a prior order certifying a nationwide class
for injunctive relief only.
On Oct. 3, 2007, the U.S. Court of Appeals for the First Circuit
heard oral arguments on the company's consolidated appeal of the
orders of the U.S. District Court for the District of Maine
certifying 20 separate statewide class actions for damages under
various state law theories and certifying a nationwide class for
injunctive relief only.
On March 28, 2008, the U.S. Court of Appeals for the First
Circuit reversed the certification of the injunctive class and
ordered dismissal of the injunctive claim.
The U.S. Court of Appeals for the First Circuit also vacated the
certification of the damages class and remanded to the U.S.
District Court for the District of Maine for determination of
several issues concerning federal jurisdiction and, if such
jurisdiction still exists, for reconsideration of that class
certification on a more complete record.
On April 11, 2008, the plaintiffs filed a motion with the U.S.
Court of Appeals for the First Circuit for rehearing en banc of
its decisions regarding the injunctive class, according to the
company's May 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2008.
General Motors Corp. -- http://www.gm.com/-- is primarily
engaged in the worldwide development, production and marketing
of cars, trucks and parts. The Company develops, manufactures
and markets its vehicles worldwide through its four automotive
regions: GM North America, GM Europe, GM Latin
America/Africa/Mid-East and GM Asia Pacific.
GENERAL MOTORS: June 3, 2008 Hearing Set for UAW Suit Settlement
----------------------------------------------------------------
A June 3, 2008 final fairness hearing is set for the proposed
settlement in the matter, "UAW, et al. v. General Motors
Corporation," which is pending with the U.S. District Court for
the Eastern District of Michigan.
The suit was filed by the United Automobile Workers and eight
putative class representatives.
On Feb. 21, 2008, the company completed settlement negotiations
and entered into the Settlement Agreement with the UAW and the
putative classes.
The Court certified the class and granted preliminary approval
of the Settlement Agreement on March 4, 2008. Notice of the
settlement has been mailed to 520,000 class members, and the
final hearing to review the fairness of the Settlement Agreement
is scheduled for June 3, 2008, according to the company's May 8,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2008.
General Motors Corp. -- http://www.gm.com/-- is primarily
engaged in the worldwide development, production and marketing
of cars, trucks and parts. The Company develops, manufactures
and markets its vehicles worldwide through its four automotive
regions: GM North America, GM Europe, GM Latin
America/Africa/Mid-East and GM Asia Pacific.
GENERAL MOTORS: Plaintiffs Appeal Dismissal of N.Y. ERISA Suits
---------------------------------------------------------------
The plaintiffs in two purported class action suits against
General Motors Investment Management Corp. alleging violations
of the Employee Retirement Income Security Act, are appealing
the dismissal of their respective cases by the U.S. District
Court for the Southern District of New York.
The suits, alleging similar allegations, are entitled:
* "Young, et al. v. General Motors Investment Management
Corporation, et al.," and
* "Mary M. Brewer, et al. v. General Motors Investment
Management Corporation, et al.,"
The Brewer case was brought by a plaintiff who alleges that she
is a participant in the Delphi Savings-Stock Purchase Program
for Salaried Employees and purports to bring claims on behalf of
all participants in that plan as well as participants in the
Delphi Personal Savings Plan for Hourly-Rate Employees, the ASEC
Manufacturing Savings Plan and the Delphi Mechatronic Systems
Savings-Stock Purchase Program against General Motors Investment
Management Corp. (GMIMCo) and State Street Bank (Class Action
Reporter, Aug. 22, 2007).
The complaint alleges that GMIMCo and State Street breached
their fiduciary duties to plan participants by allowing
participants to invest in five different funds that each held
primarily the equity of a single company: the EDS Fund, the
DIRECTV Fund, the News Corp. Fund, the Raytheon Fund, and the GM
Common Stock Fund, all of which plaintiffs allege were imprudent
investments because of their inherent risk and poor performance
relative to more prudent investment alternatives.
It also alleges that GMIMCo breached its fiduciary duties to
plan participants by allowing participants to invest in mutual
funds offered by FMR Corp. under the Fidelity brand name.
The plaintiffs allege that by investing in these funds,
participants paid excessive fees and costs that they would not
have incurred had they invested in more prudent investment
alternatives.
The complaint seeks a declaration that the defendants have
breached their fiduciary duties, an order requiring defendants
to compensate the plans for their losses resulting from their
breaches of fiduciary duties, the removal of defendants as
fiduciaries, an injunction against further breaches of fiduciary
duties, other unspecified equitable and monetary relief, and
attorneys fees and costs.
On March 24, 2008 the U.S. District Court for the Southern
District of New York granted General Motors Corp.'s motions to
dismiss both of the cases on statute of limitations grounds.
The plaintiffs have appealed the dismissal in both cases,
according to General Motors Corp.'s May 8, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
General Motors Corp. -- http://www.gm.com/-- is primarily
engaged in the worldwide development, production and marketing
of cars, trucks and parts. The Company develops, manufactures
and markets its vehicles worldwide through its four automotive
regions: GM North America, GM Europe, GM Latin
America/Africa/Mid-East and GM Asia Pacific.
GMAC LLC: Sixth Circuit Affirms Dismissal of "Zielezienski" Case
----------------------------------------------------------------
The U.S. Court of Appeals for the Sixth Circuit affirmed the
dismissal of the consolidated litigation, "Zielezienski v.
General Motors Corporation et al., Case No. 2:06-cv-11784-NGE-
VMM," which names GMAC, LLC, as a defendant.
Zielezienski Litigation
On Nov. 29, 2005, Stanley Zielezienski filed the purported class
action lawsuit before the Circuit Court for Palm Beach County,
Florida, against General Motors Corp.; GMAC; General Motors
Chairman and Chief Executive Officer G. Richard Wagoner, Jr.;
GMAC Chairman Eric A. Feldstein; and GM and GMAC officers,
namely, William F. Muir, Linda K. Zukauckas, Richard J. S.
Clout, John E. Gibson, W. Allen Reed, Walter G. Borst, John M.
Devine, and Gary L. Cowger. The action also names certain
underwriters of GMAC debt securities as defendants.
The suit alleges that the defendants violated Section 11 of the
Securities Act and, with respect to all defendants except GM,
Section 12(a)(2) of the Securities Act. The complaint also
alleges that GM violated Section 15 of the Securities Act.
In particular, the complaint alleges material misrepresentations
in certain GMAC financial statements incorporated by reference
with GMAC's 2003 Form S-3 Registration Statement and Prospectus.
More specifically, the complaint alleges material
misrepresentations in connection with the offering for sale of
GMAC SmartNotes in certain GMAC financial statements contained
in GMAC's forms 10-Q for the quarterly periods ended in
March 31, 2004, and June 30, 2004, and the Form 8-K, which
disclosed financial results for the quarterly period ended in
Sept. 30, 2004, were materially false and misleading as
evidenced by GMAC's 2005 restatement of these quarterly results.
In December 2005, the plaintiff filed an amended complaint,
making substantially the same allegations as were in the
previous filing, with respect to additional debt securities
issued by GMAC during the period April 23, 2004, to March 14,
2005, and adding approximately 60 additional underwriters as
defendants.
GMAC said that the complaint does not specify the amount of
damages sought, and the defendants have no means to estimate the
damages the plaintiffs will seek based on the limited
information available in the complaint.
On Jan. 6, 2006, the defendants named in the original complaint
removed the case to the U.S. District Court for the Southern
District of Florida, and on April 3, 2006, that court
transferred the case to the U.S. District Court for the Eastern
District of Michigan.
J&R Marketing Litigation
On Dec. 28, 2005, J&R Marketing, SEP, filed a purported class
action suit, captioned "J&R Marketing, et al. v. General Motors
Corporation, et al."
The action was filed in the Circuit Court for Wayne County,
Michigan, against GM; GMAC; GM Chairman and CEO G. Richard
Wagoner, Jr.; GMAC Chairman Eric A. Feldstein; William F. Muir;
Linda K. Zukauckas; Richard J. S. Clout; John E. Gibson; W.
Allen Reed; Walter G. Borst; John M. Devine; Gary L. Cowger; and
several underwriters of GMAC debt securities.
Similar to the original complaint filed in "Zielezienski," the
J&R Complaint alleges claims under Sections 11, 12(a), and 15 of
the Securities Act based on alleged material misrepresentations
or omissions in the Registration Statements for GMAC SmartNotes
purchased between Sept. 30, 2003, and March 16, 2005, inclusive.
The complaint alleges inadequate disclosure of GM's financial
condition and performance as well as issues arising from GMAC's
2005 restatement of quarterly results for the three quarters
ended Sept. 30, 2005.
The complaint does not specify the amount of damages sought, and
the defendants have no means to estimate damages the plaintiffs
will seek based upon the limited information available in the
complaint.
On Jan. 13, 2006, the defendants removed this case to the U.S.
District Court for the Eastern District of Michigan.
Mager Litigation
On Feb. 17, 2006, Alex Mager filed a purported class action
suit, "Mager v. General Motors Corporation, et al."
The suit was filed before the U.S. District Court for the
Eastern District of Michigan and is substantively identical to
the J&R Marketing case.
On Feb. 24, 2006, J&R Marketing filed a motion to consolidate
"Mager" with its case and for appointment as lead plaintiff and
the appointment of lead counsel.
Consolidation
On March 8, 2006, the court entered an order consolidating "J&R
Marketing" and "Mager." Subsequently these cases were also
consolidated with "Zielezienski."
Lead plaintiffs' counsel has been appointed, and on July 28,
2006, the plaintiffs filed a Consolidated Amended Complaint,
differing mainly from the initial complaints by asserting claims
for GMAC debt securities purchased during a different period, of
July 28, 2003, through Nov. 9, 2005, and added additional
underwriter defendants.
On Aug. 28, 2006, the underwriter defendants were dismissed
without prejudice.
On Sept. 25, 2006, the GM and GMAC defendants filed a motion to
dismiss the Consolidated Amended Complaint.
In February 2007, the U.S. District Court for the Eastern
District of Michigan issued an opinion granting the defendants'
dismissal motion.
The plaintiffs have appealed this order, and oral argument on
the appeal was held on Feb. 7, 2008. Under the terms of the
Sale Transactions, GM is indemnifying GMAC in connection with
these cases.
On March 6, 2008, the U.S. Court of Appeals for the Sixth
Circuit affirmed the dismissal of the case by the U.S. District
Court for the Eastern District of Michigan, according to General
Motors Corp.'s May 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2008.
The suit is "Zielezienski v. General Motors Corporation et al.,
Case No. 2:06-cv-11784-NGE-VMM," filed before the U.S. District
Court for the Eastern District of Michigan, Judge Nancy G.
Edmunds.
Representing the plaintiffs is:
Joseph H. Weiss, Esq. (jweiss@weisslurie.com)
Weiss and Lurie
551 Fifth Avenue, Suite 1600
New York City, NY 10176
Phone: 212-682-3025
NISOURCE INC: Sup. Ct. Refuses to Hear $404MM Judgment Appeal
-------------------------------------------------------------
The Supreme Court of Appeals of West Virginia refuses to hear
NiSource Inc.'s appeal of a $404-million verdict handed out by a
West Virginia Circuit Court for Roane County jury in the
purported class action "Tawney, et al. v. Columbia Natural
Resources, Inc."
The plaintiffs filed the lawsuit in early 2003 against Columbia
Natural Resources, alleging that CNR underpaid royalties on gas
produced on their land by improperly deducting post- production
costs and not paying a fair value for the gas. They also
claimed that the defendants fraudulently concealed the deduction
of post-production charges.
In December 2004, the court granted the plaintiffs' motion to
add NiSource, Inc., and Columbia Energy Group as defendants.
CNR is a former NiSource subsidiary, which was sold in 2003.
Although NiSource sold CNR in 2003, NiSource remains obligated
to manage this litigation and for the majority of any damages
ultimately awarded to the plaintiffs.
On Jan. 27, 2007, the jury hearing the case returned a verdict
against all defendants in the amount of $404.3 million. This
amount is comprised of $134.3 million in compensatory damages
and $270 million in punitive damages.
On Sept. 25, 2007, the Court issued an order which appears to
also to be its final appealable judgment.
In January 2008, NiSource appealed to the West Virginia Supreme
Court of Appeals the $404.3-million judgment handed out by the
jury (Class Action Reporter, April 4, 2008).
On May 22, the Supreme Court of Appeals of West Virginia voted
to refuse to hear NiSource's appeal.
NiSource will seek a continuation of the stay of the judgment in
the case pending a petition for writ of certiorari to the
Supreme Court of the United States. The company said its
petition will be filed with the U.S. Supreme Court within 90-120
days and that it expects the court to decide whether to hear the
appeal in early 2009.
NiSource President and CEO Robert C. Skaggs, Jr. said the
company is surprised and disappointed with the West Virginia
Court's decision not to hear its appeal. "The Court's decision
to not even address the substance of an appeal in a case of this
significance, particularly in light of the $270 million in
punitive damages awarded at the trial court level, is
unprecedented and contrary to the most basic principles of
fairness. We firmly believe in the merits of our position and
will continue to vigorously pursue our arguments before the U.S.
Supreme Court."
Mr. Skaggs added, "While (the decision) is certainly a setback,
as a company we remain focused on our investment-driven business
strategy and are confident in our ability to deliver on our
commitments to all our stakeholders."
NiSource said it will assert in its certiorari petition that its
constitutional rights were violated by the manner in which the
trial was conducted, particularly with respect to the punitive
damages award.
NiSource will also assert that its due process rights were
violated by a lack of meaningful state appellate review of the
trial court verdict. The company said it strongly believes that
the case will warrant favorable review by the U.S. Supreme
Court.
The suit is "Tawney, et al. v. Columbia Natural Resources,
Inc.," filed before the West Virginia Circuit Court for Roane
County, Judge Thomas Evans, III, presiding.
Representing the plaintiffs is:
Marvin Masters, Esq.
181 Summers Street
Charleston, West Virginia 25301
Phone: 304-342-3106
Fax: 304-342-3189
Representing the defendants is:
Timothy Miller, Esq.
400 Fifth Third Center, 700 Virginia St.
P.O. Box 1791
Charleston, West Virginia 25326
Phone: 304-344-5800
Fax: 304-344-9566
NOVOPHARM: Class Action Suit Denial Affirmed by Appeals Court
-------------------------------------------------------------
The Court of Appeal last week released its judgment in a lawsuit
filed by Option Consommateurs against Novopharm, National Post
reports.
According to the report, the appeal court's decision affirms the
Superior Court's January 2006 judgment refusing to grant Option
Consommateurs authorization to institute a class action for
CDN$4 billion in damages against a number of pharmaceutical
companies. This would have been the largest class action in
Quebec history, the report notes.
As reported in the Class Action Reporter on March 13, 2006, the
Superior Court of Quebec, Canada has refused certification
to the purported class action filed against a number of drug
manufacturers that are accused of giving "illegal rebates,"
saying the suit has no material basis.
Consumer rights advocate Option Consommateurs filed the suit
seeking class-action status against the companies in 2003. The
suit is styled "Option Consommateurs v. Novopharm et al."
The CAR said that Option Consommateurs sought to represent all
Quebec residents against nine manufacturers of medications,
alleging the "illegal" rebates increased the cost of private or
public drug insurance plans in Quebec. In January 2006,
however, the Superior Court of Quebec ruled that the "the
authorization of class action proceedings is not simply a
rubber-stamp process which invites the institution of
proceedings grounded merely on general and vague allegations and
pure speculation."
National Post relates that the case puts the kibosh to the
rubber-stamp process by which some judges in Quebec had
authorized class action based on vague allegations and
speculation alone. The Court of Appeal also confirmed that, as
a general rule, class members must demonstrate a contractual or
other legal relationship with each and every named defendant.
PEOPLES UNITED: Faces Connecticut Lawsuit Over Security Breach
--------------------------------------------------------------
Peoples United Bank of Bridgeport is facing a class-action
complaint filed in New Haven Superior Court (Connecticut) over
the loss of data tapes containing clients' personal information
by the Bank of New York Mellon Corp., The Associated Press
reports.
The AP recounts that the Bank of New York Mellon has told
Connecticut officials that a box with back up bank tapes was
lost in February from a truck that transports and stores tapes
in its storage facility.
The tapes contained Social Security numbers, names and addresses
and possibly bank account numbers and balances of about
4.5 million people.
Mike Stratton, Esq., who represents several customers suing the
banks, said his clients are seeking extended credit monitoring,
credit insurance and punitive damages.
"Identity thieves are pretty patient and will wait years to use
someone's information," Mr. Stratton said. "The aftershocks
could go out a long way here."
According to Mr. Stratton, the banks have offered customers one
year of credit monitoring, which he called inadequate. He said
the banks failed to make sure all its customer information was
encrypted.
Connecticut Gov. M. Jodi Rell says the Bank of New York Mellon
did not quickly notify People's Bank of the security breach.
According to the report, Connecticut state law requires banks to
immediately notify customers when such information is lost.
To contact Mr. Stratton:
Michael A. Stratton
Stratton Faxon
59 Elm Street
New Haven, CT 06510
Phone: 203-624-9500
866-351-9500 (Toll Free)
Fax: 203-624-9100
PFIZER INC: Court Denies Records Request in Celebrex Lawsuit
------------------------------------------------------------
During a May 21, 2008 hearing on a proposed class action suit
against drug maker Pfizer Inc., Madison County Associate Judge
Ralph Mendelsohn reversed an order that would have allowed the
identification of physicians who prescribed painkiller Celebrex
to clients, represented by Stephen Tillery, Esq., Madison County
Record reports.
"I was in error initially," the judge said. "I am not ordering
that those records be produced."
As reported in the Class Action Reporter on March 4, 2008,
Pfizer asked Judge Mendelsohn in February to compel plaintiffs
in the class-action lawsuit against the company to provide
answers to certain questions relating to the prescription of
painkillers Celebrex and Bextra.
"Complete pharmacy records are vital to discovering the details
of plaintiffs' use of Celebrex and Bextra and are relevant to
plaintiffs' claim that they have been injured due to the
prescription and purchase of Celebrex and Bextra," Pfizer's
attorney, Robert Shultz, Esq., wrote.
However, according to the CAR report, Mr. Tillery won't tell
Pfizer who prescribed the pills for his clients or who paid for
the pills.
Case Background
Madison County Record recounts that Mr. Tillery sued Pfizer in
2005, on behalf of Ricky Lott, Gerald Sumner, Sandy Becker and
Mike Baldwin. He alleged that Pfizer deceptively promoted
Celebrex and Bextra as superior to other non-steroidal anti-
inflammatory drugs. The plaintiffs claim economic injury and
seek damages equal to the difference between what they paid and
what they would have paid if they had known the truth about the
drugs.
The report recounts that earlier this year, Judge Mendelsohn
adopted a case schedule that Mr. Shultz proposed, but the
schedule didn't hold up. Associate Judge Thomas Chapman took
charge of the case long enough to discard Mr. Shultz's schedule.
According to Madison County Record, Judge Mendelsohn, at
Mr. Tillery's request, then scheduled hearings four days apart
on change of venue to Cook County and class certification.
Pfizer, meanwhile, petitioned the Illinois Supreme Court to
inject more time between the hearings. Mr. Shultz argued that
if Judge Mendelsohn denied transfer and Pfizer prepared an
appeal, the judge could certify a class action before Pfizer
could file the appeal. If Pfizer then succeeded in obtaining
transfer on appeal, Mr. Shultz argued, class certification would
stand and the suit would proceed as a class action in Cook
County.
Pfizer's petition remains pending at the Supreme Court, the
report notes.
Request for Records
Pfizer served questions on the plaintiffs in September 2005 and
requested production of documents. In December, Mr. Tillery
objected to most of the requests and provided less than 20 pages
of heavily redacted pharmacy records. Mr. Tillery claimed
physician-patient privilege and a constitutional right to
privacy.
However, Mr. Shultz responded in his motion that the right to
privacy "does not protect against disclosure of medical
information relevant to a plaintiff's claim." He said that
"Pfizer is entitled to investigate the decisions of plaintiffs'
prescribing physicians in order to respond to plaintiffs'
claims. . ."
Noting that Mr. Tillery alleges deception in advertising, Mr.
Shultz argued that the influence of advertising on physicians
was directly relevant. "Plaintiffs have not completely answered
whether they or their physician saw any allegedly misleading
advertisements or promotional materials . . . Plaintiffs merely
state that they 'recall seeing' advertisements either in
television or magazines, but fail to describe the date and
substance of any advertising and fail to state how they were
misled in any way," Mr. Schultz wrote.
According to Madison Record, Mr. Shultz seeks to learn about
reasons why doctors prescribed Celebrex and Bextra, the
responses of the patients, and other medicines they took. He
also wants to know what physicians told patients about the
pills.
The report recalls that Pfizer gained a victory on April 22,
2008, when Judge Mendelsohn ordered Mr. Tillery to identify the
physicians of his clients and produce their records. Judge
Mendelsohn found the information relevant if not necessarily
admissible.
Mr. Tillery moved for reconsideration and brought the motion to
Judge Mendelsohn on May 21. The judge told Mr. Tillery his
complaint alleged that Pfizer concealed risks of Celebrex from
physicians, and said, "You're saying the defendant knew the
risks and never gave the information to plaintiffs or
plaintiffs' physicians."
Judge Mendelsohn also asked if class representatives have to
establish that they were susceptible to the ailments in the
complaint. Mr. Tillery's associate, Aaron Zigler, Esq., said
that ailments did not matter. He also told Judge Mendelsohn to
compare the fair value of the drugs to the sale price. "They
paid too much," Mr. Zigler said.
"They could have used it for everything," Mr. Tillery also said.
"We need not prove why this was prescribed to a plaintiff" . . .
"It doesn't matter if they had a cardiovascular problem.
Everybody in the class paid too much and it doesn't matter why
the drug was prescribed."
Mr. Shultz noted that a consumer can't buy the drug without a
prescription. "Something has to take that plaintiff to the
pharmacy and deception must figure in," he said. "They can't
just start at third base and run home."
Judge Mendelsohn subsequently denied Pfizer's motion, holding
that physician patient privilege applied.
The plaintiffs are represented by:
Stephen Tillery, Esq. (stillery@koreintillery.com)
Korein Tillery LLC
Gateway on the Mall, 701 Market Street, Suite 300
St. Louis, MO 63101
Phone: 314-241-4844
Fax: 314-588-7036
The defendant is represented by:
Robert H. Shultz, Jr. (rshultz@hrva.com)
Heyl Royster Voelker & Allen PC
103 West Vandalia, Suite 100, P.O. Box 467
Edwardsville, IL 62025
Phone: 618-656-4646
Fax: 618-656-7940
POWERWAVE TECHNOLOGIES: Seeks Dismissal of Consolidated Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Central District of California
dismissed certain claims in a consolidated securities fraud
class action suit filed against Powerwave Technologies, Inc.,
according to Powerwave's May 9, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 30, 2008.
Several purported shareholder class action complaints were filed
in January, February and March 2007, against the company, its
president and chief executive officer, its executive chairman of
the board of directors and its chief financial officer.
The complaints are:
-- "Jerry Crafton v. Powerwave Technologies, Inc., et.
al.,"
-- "Kenneth Kwan v. Powerwave Technologies, Inc., et.
al.,"
-- "Achille Tedesco v. Powerwave Technologies, Inc., et.
al.," and
-- "Farokh Etemadieh v. Powerwave Technologies, Inc. et.
al."
These were brought under Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The
complaints purport to state claims on behalf of all persons who
purchased Powerwave securities between May 2, 2005 and Oct. 9,
2006.
The essence of the allegations is that the defendants made
misleading statements or omissions concerning the company's
projected and actual sales revenues, the integration of certain
acquisitions and the sufficiency of the company's internal
controls.
In June 2007, the four cases were consolidated into one case,
and a lead plaintiff was appointed. In October 2007, the lead
plaintiff filed an amended complaint asserting the same causes
of action.
The amended complaint purports to state claims on behalf of all
persons who purchased Powerwave securities between May 2, 2005
and November 2, 2006.
In December 2007, the defendants filed a motion to dismiss the
amended complaint. On April 17, 2008, the court granted the
defendant's motion to dismiss the plaintiffs' claims in
connection with the company's projected sales revenues, but
denied the defendant's motion to dismiss the other claims
asserted.
Powerwave Technologies, Inc. -- http://www.powerwave.com/-- is
a global supplier of end-to-end wireless solutions for wireless
communications networks. The company's business consists of the
design, manufacture and marketing and sale of products to
improve coverage, capacity and data speed in wireless
communications networks, including antennas, boosters,
combiners, filters, radio frequency power amplifiers, repeaters,
tower-mounted amplifiers and coverage solutions.
POWER MOWERS: New Jersey Lawsuit Alleges Widespread Conspiracy
--------------------------------------------------------------
Major manufacturers of power lawnmowers are facing a class-
action complaint filed with the U.S. District Court for the
District of New Jersey alleging the companies have lied to
consumers about the machines' horsepower to justify higher
prices, CourtHouse News Service reports.
The defendants named in the suit are:
-- Sears, Roebuck & Co.,
-- Deere & Co.,
-- Tecumaseh Producst Company,
-- Briggs & Stratton Corp.,
-- Kawasaki Motors Corp. USA,
-- MTD Products Inc.,
-- The Toro Co.,
-- American Honda Motor Co., Inc.,
-- Electrolux Home Products, Inc.,
-- The Kohler Co.,
-- Platinum Equity, LLC, and
-- Husqvarna Outdoor Products, Inc.
According to the complaint, for more than a decade, Defendants
have lied to consumers by overstating the horsepower of lawn
mower engines. In advertising and selling their lawn mowers and
lawn mower engines, Defendants have defrauded the public by:
1) misrepresenting and significantly overstating the
horsepower produced by such products;
2) concealing, suppressing and failing to disclose material
information, including the true, significantly lower
horsepower of Defendants' products; and
3) falsely advertising and selling lawn mowers containing
identical engines that produce the same horsepower as
different products with different horsepower labels or
ratings at different prices -- higher prices for falsely
represented higher horsepower -- while concealing,
suppressing and failing to disclose material
information, including the facts that the engines are
identical and the true, significantly lower horsepower
of the lawn mowers.
Plaintiffs assert claims for violations of the New Jersey
Consumer Fraud Act, as well as common law unjust enrichment and
conspiracy.
The defendants sell nearly 6 million lawnmowers a year in the
United States, the complaint states.
The suit claims that the nine defendant manufacturers are all
members of a "Power Labeling Task Force," which provides
Defendants the means, opportunity and cover to meet, discuss,
conspire and further their fraudulent horsepower
misrepresentations. . . .
"In or about 2001, the Power Labeling Task Force members met and
discussed various means by which to conceal horsepower fraud and
misrepresent horsepower to the consuming public. One suggestion
was to put a 'disclaimer' -- a statement containing misleading
information on horsepower issues designed to confuse the
consuming public -- on the Outdoor Power Equipment Institute,
('OPEI,' an otherwise legitimate organization) Web site.
[Parenthetical remarks in complaint.] The disclaimer was titled
'Understanding Horsepower' and includes misleading information
on horsepower issues."
On July 10, 2001, William G. Harley and Patrick W. Curtiss of
the OPEI mailed to Defendants a memorandum listing the uniform
means by which the Power Labeling Task Force members intended to
misrepresent horsepower testing procedures and to conceal
Defendants' fraudulent horsepower labeling practices from
consumers.
The members of the Power Labeling Task Force, which are also
members of the OPEI, voted in favor of the proposal, and the
OPEI created the Web page containing misleading horsepower
information. The Web page continues to be on the OPEI's Web
site.
Defendants' conduct rises above mere fraud. Not only do
Defendants lie about the horsepower of their lawn mowers and
lawn mower engines, Defendants conspired to conceal these lies
and deceive the consuming public by using the Web site of a
legitimate entity.
Plaintiffs claim the defendants created a "labeling standard"
called "SAE J1940" to "conceal horsepower fraud. This labeling
standard was an attempt to give Defendants a purportedly
legitimate reason for labeling their engines with a horsepower
representation different from what their test results achieved."
They claim the SAE standard "allowed for a 'fudge factor' of up
to 15% to be added to horsepower labels."
In 1990, the defendants compounded the fraud by adopting a
"gross horsepower" standard, "SAE J1995," which uses "the
theoretical horsepower than an engine could achieve under ideal
laboratory conditions with all of the legally required
accessories removed from the engine -- such as the air filter
and exhaust mechanism," the complaint states.
Before this, the defendants had used the more honest net
horsepower, it states.
This action is brought on behalf of all persons in New Jersey
who, beginning Jan. 1, 1994, through the present, purchased, for
their own use and not for resale, a lawn mower containing a gas
combustible engine up to 30 horsepower provided that either the
lawn mower or the engine of the lawn mower was manufactured or
sold by a defendant.
They want the court to rule on:
(a) whether defendants misrepresented the horsepower
produced by the engines in the lawn mowers manufactured
or sold by defendants to plaintiffs and members of the
class;
(b) whether defendants concealed, suppressed and failed to
disclose truthful information concerning the horsepower
produced by the engines manufactured or sold by
defendants in lawn mowers sold to plaintiffs and
members of the class;
(c) whether defendants' representations and omissions
regarding the horsepower produced by lawn mowers and
lawn mower engines manufactured or sold by defendants
involved representations and omissions of material
facts;
(d) whether defendants advertised and sold lawn mowers
containing identical engines as different products at
different prices (higher prices for falsely represented
higher horsepower), without disclosing the fact that
the engines contained in such products are identical;
(e) whether defendants' conduct as set forth in the
complaint violates the New Jersey Consumer Fraud Act;
(g) whether defendants' misrepresentations, omissions
and other conduct set forth in the complaint occurred
in the course of trade or commerce and/or in the
conduct of business;
(h) whether defendants conspired to conceal and suppress
truthful information about the actual, significantly
lower-than-represented horsepower of other defendants'
lawn mowers and lawn mower engines;
(i) whether plaintiffs and members of the proposed class
have been injured by defendants' conduct;
(j) whether plaintiffs and the members of the proposed
class are entitled to damages;
(k) whether plaintiffs and the members of the proposed
class are entitled to punitive damages and other
monetary relief as provided under state law;
(l) whether defendants were unjustly enriched as a result
of defendants' conduct set forth in the complaint;
(m) whether defendants conspired to defraud the public and
engaged in the unlawful acts or practices in
furtherance of the conspiracy as set forth in the
complaint;
(n) whether injunctive relief is appropriate; and
(o) whether plaintiffs are entitled to recover costs and
expenses incurred in prosecuting this action and
reasonable attorneys' fees.
Plaintiffs request that the court enter an order:
-- certifying this action as a class action, properly
brought by plaintiffs on behalf of the class; certifying
plaintiffs as representatives of the class; and
appointing plaintiffs' counsel as counsel for the class;
-- declaring that defendants' acts and practices as set
forth in the complaint constitute multiple, separate
violations the New Jersey statutory consumer laws;
-- enjoining defendants from engaging in the unlawful acts
and practices set forth in the complaint and from
further violations of the New Jersey statutory consumer
laws and common law;
-- enjoining defendants from misrepresenting to the
consuming public any power rating regarding their
engines or lawn mowers;
-- awarding plaintiffs and the members of each class,
actual compensatory damages in an amount to be
determined at trial;
-- awarding plaintiffs and members of each class actual,
compensatory damages in an amount to be determined at
trial;
-- awarding plaintiffs and members of the class punitive
damages as provided by law;
-- directing defendants to disgorge to plaintiffs and the
members of the class all monies unjustly received
through defendants' unlawful conduct;
-- awarding restitution to plaintiffs and members of the
class as provided by law;
-- awarding plaintiffs and members of the class pre-
judgment and post-judgment interest as provided by law;
-- awarding plaintiffs and the class costs and reasonable
attorneys' fees as provided by law; and
-- granting plaintiffs and the class such other and further
relief as the court finds just and proper.
The suit is "William Fritz et al. v. Sears, Roebuck & Co. et al,
Case No. 3:33-av-00001," filed before the U.S. District Court
for the District of New Jersey.
Representing the plaintiffs is:
Lisa J. Rodriguez , Esq.
Trujillo Rodriguez & Richards, LLC
8 Kings Highway West
Haddonfield, NJ 08033
Phone: 856-795-9002
SASKATOON CITY: Sued for $18M with United Cab Over Taxi Licenses
----------------------------------------------------------------
An $18-million class-action suit has been launched against the
City of Saskatoon, United Cabs and some of the owners of the
city's taxi licenses, The StarPhoenix reports.
"This lawsuit is for the (taxi drivers) who will never be able
to own their own licenses," Larry Ayers, the lawyer who is
launching the suit on behalf of cab driver James Robinson and
other unnamed drivers, told The StarPhoenix.
Many of the city's 160 taxi licenses are owned by people who do
not own or operate taxis, something Mr. Ayers said is contrary
to the city's bylaw. These license owners then lease their
licenses to the drivers for a fee.
"They're just investors," Mr. Ayers said.
In the statement of claim, Mr. Ayers referred to a bylaw that
says a license "shall be taken out by every person who owns or
keeps for hire or profit a taxicab or taxicabs . . . "
The report relates that about 25 cabbies met with Mr. Ayers for
an information meeting at the Frances Morrison branch of the
Saskatoon Public Library on May 21. Tension ran high at times
during the meeting with cabbies talking over one another. Some
clearly were in favor of the suit while others were not, the
report notes. Some drivers worried about United Cabs
retaliating by not sending them to calls.
However, Mr. Ayers assured them that the courts would not take
lightly to the company acting against those involved in the
lawsuit.
Mr. Ayers recounts that Saskatoon amended its licensing bylaw in
2001 that legalized the transfer of licenses, but the transfer
still had to go to an owner or operator of a cab. Before that,
the city failed to enforce its own bylaw prohibiting license
transfers and allowed some licensees to charge exorbitant fees.
Bill Davern, a solicitor for Saskatoon, said the city has always
allowed the sale and leasing of licenses, The StarPhoenix notes.
In stating that they could not be transferred, the city's intent
was to ensure that the person selling the license registers the
change with the city and pays a $90 transfer fee.
"It's a record-keeping thing for us," Mr. Davern told The
StarPhoenix in an interview. The city, like most in Canada, has
never been involved in regulating taxi license transfers, he
said, adding the marketplace regulates the price of license
sales and leases. "We're not telling people what they can sell
it for, nor are we telling them who they can or cannot sell it
to."
Scott Suppes, president of United Cabs, says there's nothing
unusual or shady about the way taxi licenses are distributed in
Saskatoon. It's a stretch to say anybody unlawfully owns a taxi
license, he said. "They're making a pretty big leap," he said
of the plaintiffs' lawsuit.
According to the report, there are 160 licenses to drive regular
cabs in Saskatoon and five special licenses for wheelchair-
accessible vehicles. Those license owners pay the city $90 a
year to keep them.
"They charge a little bit more than what those costs are but
it's not like they're making tons of money. But they are
charging what they feel is a fair price for the income they can
make on those vehicles," Mr. Suppes said. He also mentioned
that the last price for a license sale was $75,000.
According to Mr. Suppes, the rates drivers pay to lease a
license in Saskatoon are low compared with those in other
cities. "It's not a hardship," he said.
The report notes that United Cabs owns two special licenses.
When a driver comes to work for the company, United interviews
and trains him or her, then refers the new driver to a license
owner. Meanwhile, the city approves new drivers and conducts a
criminal record search.
"I think (the system) works real well," Mr. Suppes further told
The StarPhoenix, adding that "It allows people to own their own
cab." The licenses will always have a market value because the
city limits their number, he said.
On the other hand, Mr. Davern told The StarPhoenix that the city
will likely defend the suit. The award the plaintiffs are
seeking is the largest in recent memory of any suit against the
city, he said.
The next step for the lawsuit is to ask a judge to certify the
lawsuit, which Mr. Ayers expects will happen within the next
week or so, The StarPhoenix says. If the judge certifies it as
a class action, he will also specify the length of time cabbies
will have to decide if they want to join the lawsuit or opt out.
ST. JOSEPH'S: Sued Over Patient Admission and Billing Scheme
------------------------------------------------------------
Saint Joseph's Hospital of Atlanta, Inc., engaged in a
systematic scheme to inappropriately admit and overcharge
thousands of patients, according to the Page Perry, LLC, law
firm, which filed suit against the hospital, seeking class
action status on behalf of thousands of patients overbilled by
the practice.
Former Saint Joseph's patient Steven M. Lamb, of Snellville,
Georgia, alleges that a carotid artery stent procedure he
underwent in 2005 kept him admitted on an "inpatient" basis for
two days -- about twice as long as was medically necessary and
at a more costly rate than an "outpatient visit" which typically
is accomplished in hours, not days.
According to the Complaint, "In order to increase revenues, and
thus profitability, [Saint Joseph's] engaged in a widespread and
systematic scheme to admit to inpatient status patients who did
not otherwise meet inpatient admission criteria and then issue
charges and bills for such inpatient services accordingly. This
scheme was well known to [Saint Joseph's] management,
administration, staff and contractors, if not also its board of
directors. Moreover, [Saint Joseph's] management and
administration actively concealed such practices."
Mr. Lamb is represented by attorneys James M. Evangelista and
David J. Worley, of Page Perry, LLC, of Atlanta, and James A.
Dunlap Jr., of Atlanta. Counsel will seek to have the lawsuit
certified as a class action that includes all patients of the
hospital system between Jan. 1, 2000, and Dec. 21, 2007, who
were improperly admitted to Saint Joseph's under inpatient
status.
In December 2007, the United States Attorney for the Northern
District of Georgia announced a "whistleblower" (qui tam)
settlement in which Saint Joseph's paid $26 million to settle
federal false claims allegations related to thousands of patient
stays between 2000 and 2005 that were billed to the federal
Medicare program. The new lawsuit seeks to recover costs billed
to individual patients.
Attorney James M. Evangelista stated, "Patients came to Saint
Joseph's trusting that they would receive appropriate care, not
expecting to be deliberately overbilled by Saint Joseph's
extending their hospital stay in a pretense of needed care. Mr.
Lamb and many people like him from throughout Georgia and
elsewhere were inappropriately admitted and improperly billed."
The lawsuit -- which alleges breach of contract, breach of
implied contractual duties of good faith and fair dealing,
unjust enrichment, and breach of fiduciary duty -- seeks actual,
exemplary, and punitive damages, and attorneys' fees.
The suit is "Steven M. Lamb, et al., v. Saint Joseph's Hospital
of Atlanta, Inc., and Saint Joseph's Health System, Inc., Case
No. 08-CV-151075," filed before the Superior Court of Fulton
County.
SUTTER HEALTH: Third Suit Over Labor Code Breach Filed in Calif.
----------------------------------------------------------------
Another class-action complaint was filed on May 6, 2008, in the
Sacramento Superior Court against Sutter Health for alleged
Labor Code violations, Kathy Robertson of the Sacramento
Business Journal reports.
The suit is brought on behalf of nurses, surgical technicians
and ancillary staff who worked in the 26-hospital system at any
time since 2004. It accuses Sutter Health of violating state
rules on meal and rest breaks, broadening the number and type of
employees pursuing unpaid wages from the health care giant.
The report says that the recent lawsuit brings the number of
class actions filed against Sutter on the meal and rest breaks
issue to three and suggests the cases could be combined into one
big lawsuit that would address the claims of employees across
the health system.
SYNCOR INT'L: Enters Mediation to Settle Calif. Securities Suit
---------------------------------------------------------------
Syncor International Corp., an acquisition of Cardinal Health,
Inc., has entered into mediation in a bid to settle a
consolidated securities fraud class action suit filed in the
U.S. District Court for the Central District of California,
according to Cardinal Health's May 8, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2008.
Initially, several purported class action complaints were filed
against the company and certain of its officers and directors,
asserting claims under the federal securities laws. These suits
were all filed before the U.S. District Court for the Central
District of California, where they were later consolidated into
a single proceeding referred to as "In re Syncor International
Corp. Securities Litigation."
The federal securities suits purport to be brought on behalf of
all purchasers of Syncor shares during various periods,
beginning as early as March 30, 2000, and ending as late as
Nov. 5, 2002.
The actions allege, among other things, that the defendants
violated Section 10(b) of the U.S. Exchange Act and Rule 10b-5
promulgated thereunder and Section 20(a) of the U.S. Exchange
Act by issuing a series of press releases and public filings
disclosing significant sales growth in Syncor's international
business, but omitting mention of certain allegedly improper
payments to Syncor's foreign customers, thereby artificially
inflating the price of Syncor shares.
The lead plaintiff filed a third amended consolidated complaint
on Dec. 29, 2004. Syncor shortly filed a motion to dismiss this
third amended complaint.
On April 15, 2005, the court granted the company's dismissal
motion with prejudice. The lead plaintiff has appealed this
decision to the U.S. Court of Appeals for the Ninth Circuit.
On June 12, 2007, the Ninth Circuit entered an order reversing,
in part, the District Court's dismissal of the plaintiffs'
claims and remanding the case to the District Court.
Specifically, the order reversed the dismissal of the claims
against Syncor and certain individual defendants, including its
former Chairman and CEO, and affirmed the dismissal of all other
defendants.
Syncor filed a petition for rehearing on June 26, 2007, which
petition was later denied. On Oct. 23, 2007, Syncor filed a
petition for rehearing en banc which was also denied.
On Jan. 17, 2008, the defendants filed an answer to the third
amended consolidated complaint.
The company has recently been engaged in mediation with counsel
for the plaintiffs regarding a possible settlement of this
action.
The suit is "Richard Bowe, et al. v. Syncor Int'l Corp., et al.,
Case No. 2:02-cv-08560-LGB-RC," filed before the U.S. District
Court for the Central District of California, Judge Lourdes G.
Baird, presiding.
Representing the plaintiffs are:
Willie C. Briscoe, Esq.
Provost Umphrey Law Firm
3232 McKinney Ave, Ste. 700
Dallas, TX 75204
Phone: 214-744-3000
Web site: http://www.provostumphrey.com/
- and -
Theodore M. Hess-Mahan, Esq.
Shapiro Grace Haber & Urmy
75 State St.
Boston, MA 02109
Phone: 617-439-3939
Representing the defendants are:
Daniel S. Floyd, Esq. (dfloyd@gibsondunn.com)
Gibson Dunn & Crutcher
333 S. Grand Ave., 45th Fl.
Los Angeles, CA 90071-3197
Phone: 213-229-7000
- and -
Robert F. LeMoine, Esq.
Skadden Arps Slate Meagher & Flom
300 S. Grand Ave., Ste. 3400
Los Angeles, CA 90071-3144
Phone: 213-687-5000
e-mail: lacefax@skadden.com
TOUSA INC: Engle Homeowners Sue Over Dangers Vintage Bombs Pose
---------------------------------------------------------------
Homeowners at an old bombing range in southeast Orange County
(Fla.) filed another lawsuit against Engle Homes alleging fraud
and other actions that have harmed property owners, Wftv.com
reports.
The report relates that more than 260 bombs and more than 14
tons of bomb debris have been found in the area since July 2007.
The suit claims the builders knew there might be unexploded
bombs, bomb debris and contaminated dirt, but didn't tell
homebuyers.
Headquartered in Hollywood, Florida, TOUSA Inc. (Pink Sheets:
TOUS) -- http://www.tousa.com/-- f/k/a Technical Olympic U.S.A.
Inc., d/b/a Technical U.S.A., Inc., Engle Homes, Newmark Homes
L.P., TOUSA Homes Inc. and Newmark Homes Corp., is a leading
homebuilder in the United States, operating in various
metropolitan markets in 10 states located in four major
geographic regions: Florida, the Mid-Atlantic, Texas, and the
West. TOUSA designs, builds, and markets high-quality detached
single-family residences, town homes, and condominiums to a
diverse group of homebuyers, such as "first-time" homebuyers,
"move-up" homebuyers, homebuyers who are relocating to a new
city or state, buyers of second or vacation homes, active-adult
homebuyers, and homebuyers with grown children who want a
smaller home. It also provides financial services to its
homebuyers and to others through its subsidiaries, Preferred
Home Mortgage Company and Universal Land Title Inc.
VARIABLE ANNUITY: Law Firms Sue Over Teacher Retirement
-------------------------------------------------------
Two Charleston law firms have filed a class action lawsuit
claiming the people in the West Virginia Teachers Retirement
System were "bilked" into switching to a new system that has
many of them with little money for retirement, The State Journal
reports.
Bell & Bands and The Webb Law Firm filed the suit in Marshall
County on May 12 against the Variable Annuity Life Insurance
Co., for its role in getting teachers and other school personnel
to switch systems and for allegedly convincing them to "invest
heavily" in a VALIC annuity option available under the new
system.
"Due to a calculated pattern of fraudulent inducements,
teachers, school service personnel and professional staff in the
state of West Virginia have not realized the growth in their
retirement accounts they would have received has they remained
in the 'Old' (system)," the law firms stated in a news release.
The attorneys are seeking actual damage for losses resulting
from the purchase or transfer of retirement funds into the
annuities, and punitive damages against VALIC for its
"fraudulent misrepresentations."
VALIC is now part of AIG Retirement. Company spokesman John
Pluhowski said he could not comment other than to point out that
VALIC was hired by the West Virginia Consolidated Public
Retirement Board to enroll educators in the state's retirement
plan.
"VALIC offered a fixed annuity investment option with a
guaranteed minimum return to the plan," Mr. Pluhowski said in a
written statement. "We are confident that we met the
obligations we were contracted to provide."
According to State Journal, at issue was the decision by state
officials in 1991 to move thousands of teachers and other school
service personnel out of what was then a failing Teachers
Retirement System into the Teachers' Defined Contribution
Retirement System, a 401(k)-like retirement system.
Approximately 19,000 people are currently in the defined
contribution plan, but many of them have not seen much benefit
from the switch. However, many participants did not take full
advantage of the plan and, as a result, have little money on
which to retire.
Recently the state Legislature gave members of the defined
contribution plan the ability to switch back to the Teachers
Retirement System, but only if at least 65 percent of the
participants vote to switch.
In order to receive full benefits under the old system, many
members making the switch will need to pay out-of-pocket what
they would have owed had they remained in the old system, the
report says. The expense may reach to $50,000 in some cases.
The deadline for voting was May 13, although the law firms did
not announce the lawsuit until a couple days afterward.
"We wanted to be very careful that this is not construed as
influencing or trying to influence the vote," said Harry Bell,
Esq., of Bell & Bands.
The two law firms allege that VALIC engaged in a "systematic
scheme" of hiring agents with whom teachers and school personnel
felt they could trust. Those agents then told teachers about
the pitfalls of remaining in the Teachers Retirement System and
about the increased benefits of going with the VALIC option.
The claims by those agents were clearly fraudulent in nature,
the law firms allege. "Teachers have been done a great disserve
on many fronts on what has been done with their retirements,"
Mr. Bell said.
Mr. Bell further said that the lawsuit was filed in Marshall
County because the firms are representing a "very vocal" group
of teachers there, although he didn't give any names.
The firms also are asking for any members in the defined
contribution plan that had contact with VALIC agents to contact
them.
The report says that an independent consulting firm, Arnett and
Foster, is currently tallying the results of the recent vote on
whether to switch retirement systems. The West Virginia
Consolidated Public Retirement Board is scheduled to verify the
results on June 5, 2008.
ZIMMER HOLDINGS: Faces N.Y. Suit Over Pervasive Kickback Scheme
---------------------------------------------------------------
Zimmer Holdings, Inc., and two subsidiaries are facing a class-
action complaint filed before the U.S. District Court for the
Southern District of New York alleging a "pervasive kickback
scheme" by several of the largest manufacturers of hip and knee
replacements, the FDA news reports.
According to the complaint, each of the companies used phony
consulting agreements with orthopedic surgeons and other
financial inducements as disguised kickbacks for choosing a
particular device.
The lawsuit contends that federal investigation found Zimmer and
the other firms maintained an overwhelming market dominance
through an anti-competitive scheme of kickbacks to hip and knee
surgeons. However, the suit names only Zimmer and its
subsidiaries as defendants.
The company said it has yet to be served with the actual lawsuit
so it has not filed any response. It added that the lawsuit is
without merit and, if served, it intends to defend itself
vigorously.
The suit is "Thorpe et al v. Zimmer, Inc. et al., Case Number:
1:2008cv03888," filed before the U.S. District Court for the
Southern District of New York, Judge Colleen McMahon, presiding.
New Securities Fraud Cases
GOLDMAN SACHS: Stull & Brody Files N.Y. Securities Fraud Suit
-------------------------------------------------------------
Stull, Stull & Brody disclosed that a class action has been
commenced in United States District Court for the Southern
District of New York on behalf of a class consisting of all
persons or entities who purchased and repurchased auction rate
securities offered for sale by The Goldman Sachs Group, Inc. and
its principal U.S. broker-dealer, Goldman Sachs & Co. between
March 25, 2003, and February 13, 2008, inclusive.
On April 18, 2008, The New York Times reported that New York
Attorney General Andrew M. Cuomo is investigating how auction
rate securities were marketed to municipalities and public
entities, and his office subpoenaed 18 banks that underwrote and
brokered auction rate securities, including Goldman Sachs Group,
Inc. In addition, securities regulators from nine other states
have formed a task force investigating how banks disclosed the
risks of auction failures to investors, and the Financial
Industry Regulatory Authority, working with the Securities and
Exchange Commission, has initiated an inquiry into sales
practices in the auction rate securities industry.
The Complaint charges Goldman Sachs with violations of federal
securities laws. Among other things, plaintiff claims that
defendants' material omissions and dissemination of materially
false and misleading statements concerning auction rate
securities caused those securities to be overvalued and
artificially inflated, inflicting damages on investors. Goldman
Sachs provides investment banking, securities, and investment
management services to corporations, financial institutions,
governments and high-net worth individuals worldwide.
The Complaint alleges that defendants represented to investors
that auction rate securities (also known as auction rate
preferred stock, variable rate preferred securities, money
market preferred securities, periodic auction rate securities
and auction rate bonds) were equivalent to cash or money market
funds, and highly liquid investments suitable for short-term
investing.
Defendants knew, but failed to disclose to investors, material
facts about auction rate securities. Specifically, the Complaint
alleges that defendants failed to disclose:
(i) the auction rate securities were not cash alternatives,
but actually were complex, long-term financial
instruments with 30-year maturity dates or no maturity
at all;
(ii) that auction rate securities were only liquid at the
time of sale because the auction market was
artificially supported and manipulated by various
broker-dealers to maintain the appearance of liquidity
and stability; and
(iii) that auction rate securities would become illiquid as
soon as the broker-dealers stopped maintaining the
auction market.
On February 13, 2008, approximately 87% of all auctions of
auction rate securities failed when all major broker-dealers
refused to continue to support the auctions. As a result of the
withdrawal of support by all of the major broker-dealers, the
market for auction rate securities collapsed, leaving the
shareholders of these auction rate securities with no
commercially reasonable means of liquidating the investments
defendants offered and sold as a suitable alternative to money
market funds and other short-term cash management vehicles.
On April 9, 2008, in a 10-Q filing with the SEC, Goldman Sachs
acknowledged it has received requests for information from
"various governmental agencies and self-regulatory organizations
relating to certain auction products . . . and the related
recent failure of such auctions."
The New York Attorney General also is investigating how banks
brokered auction rate securities and how they decided to allow
some auctions to fail in February while supporting others.
For more information, contact:
Tzivia Brody, Esq.
Stull, Stull & Brody
6 East 45th Street
New York, NY 10017
Toll-free: 1-800-337-4983
Fax: 212-490-2022
e-mail: SSBNY@aol.com
Web site: http://www.ssbny.com/
MGIC INVESTMENT: Schatz Nobel Commences Michigan Securities Suit
----------------------------------------------------------------
The law firm of Schatz Nobel Izard P.C., which has significant
experience representing investors in prosecuting claims of
securities fraud, commenced a lawsuit seeking class action
status in the United States District Court for the Eastern
District of Michigan on behalf of all persons who purchased the
common stock of MGIC Investment Corporation between February 6,
2007, and February 12, 2008, inclusive.
The Complaint charges that MGIC and certain of its officers and
directors violated federal securities laws by issuing materially
false and misleading statements regarding the Company's business
and financial results. Specifically, it is alleged that
defendants failed to disclose the following:
(i) the Company's investment in Credit-Based Asset
Servicing and Securitization LLC (C-BASS), a joint
venture between MGIC and Radian Group Inc., was
materially impaired as C-BASS was experiencing
increasing margin calls and C-BASS investments were
declining in value at a significant rate;
(ii) the Company was materially overstating its financial
results by failing to properly value its investment in
C-BASS and by failing to write down that investment in
a timely fashion in violation of Generally Accepted
Accounting Principles; and
(iii) MGIC had far greater exposure to anticipated losses and
defaults related to its book of business related to
insurance written in 2005 through most of 2007 than it
had previously disclosed.
On February 13, 2008, MGIC issued a press release announcing its
fourth quarter 2007 results and reporting a net loss for the
quarter of $1.47 billion, including an after-tax charge of
$33 million related to equity losses incurred by C-BASS. As a
result of this news, MGIC's stock fell $1.57 per share to close
at $12.61 per share on February 13, 2008, a one-day decline of
11%. This was the lowest price at which MGIC's stock had traded
in over thirteen years. During the Class Period, MGIC stock
traded as high as $70.09 per share in February 2007.
Interested parties may move the court no later than July 15,
2008, for lead plaintiff appointment.
For more information, contact:
Wayne T. Boulton, Esq.
Nancy A. Kulesa, Esq.
Schatz Nobel Izard P.C.
20 Church Street, Suite 1700
Hartford, CT 06103
Phone: 800-797-5499
e-mail: firm@snilaw.com
Web site: http://www.snilaw.com/
TRM CORP: Coughlin Stoia Files Securities Fraud Suit in Oregon
--------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP filed a class action
lawsuit in the United States District Court for the District of
Oregon on behalf of purchasers of TRM Corporation common stock
during the period between March 16, 2006, and May 22, 2007.
The complaint charges TRM and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
The Company provides convenience ATM services to consumers in
retail environments in the United States.
The complaint alleges that, throughout the Class Period,
defendants issued positive statements about the Company's
financial health and performance. As alleged in the complaint,
these statements were materially false and misleading because
defendants misrepresented and failed to disclose:
(a) that the Company's financial results were artificially
inflated due to the failure to timely write down
certain assets, which were materially overvalued in the
Company's financial statements;
(b) that the Company lacked adequate internal controls and
procedures necessary to ascertain its true financial
condition and worth; and
(c) as a result of the foregoing, the Company's ability to
continue its operations and remain a going-concern was
in serious doubt.
At the end of the Class Period, the Company provided investors
with details about the progress of its restructuring plan and
announced new management positions. Following this disclosure,
shares of the Company's stock declined dramatically.
Plaintiff seeks to recover damages on behalf of all purchasers
of TRM common stock during the Class Period.
For more information, contact:
Samuel H. Rudman, Esq.
David A. Rosenfeld, Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
Phone: 800-449-4900
e-mail: djr@csgrr.com
TRM CORP: Federman & Sherwood Files Oregon Securities Lawsuit
-------------------------------------------------------------
On May 23, 2008, a class action lawsuit was commenced by
Federman & Sherwood in the United States District Court for the
District of Oregon against TRM Corporation .
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations of issuing a series of
material misrepresentations to the market which had the effect
of artificially inflating the market price.
The class period is from March 16, 2006, through May 22, 2007.
Plaintiff seeks to recover damages on behalf of the Class.
Interested parties may move the court no later than July 22,
2008, for lead plaintiff appointment.
For more information, contact:
William B. Federman, Esq. (wfederman@aol.com)
Federman & Sherwood
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Web site: http://www.federmanlaw.com/
*********
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 * * *