/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/080529.mbx C L A S S A C T I O N R E P O R T E R Thursday, May 29, 2008, Vol. 10, No. 106 Headlines ASTORIA FINANCIAL: Opposes Motion in N.Y. "McAnaney" Litigation C-COR INC: Faces Lawsuit in Tennessee Alleging FLSA Violations CFS ENTERPRISE: Faces Kansas Suit Over Bait-and-Switch Tactics EL POLLO: Discovery Ongoing in Assistant Shift Managers' Lawsuit EL POLLO: "Amezcua" Labor Suit in Calif. Stayed While on Appeal ELI LILLY: Admits Wrongdoing in Indianapolis Noose Incident EPL INTERMEDIATE: Limited Discovery Ongoing in Calif. Labor Suit EPL INTERMEDIATE: Court Dismisses FCRA-FACTA Violations Suit GABLE'S RESIDENTIAL: Faces Texas Lawsuit Alleging Racial Bias GENERAL NUTRITION: Mediation Fails to Resolve Andro Lawsuits GENERAL NUTRITION: Court Okays Overtime Wage Suit Settlement GENERAL NUTRITION: Settles Suits Over Third-Party Product Sold GENERAL NUTRITION: Faces Wage, Break Claim Litigation in Calif. GNC FRANCHISING: November 2008 Trial Slated for "Ahussain" Case HEALTH NET: Faces Rescinded Members' Litigation in California HEALTH NET: Court Sets July 24 Hearing for ERISA Suit Settlement HOLLINGER INC: Davidson Kempner Settlement Gets Court Approval INVERNESS MEDICAL: Faces Securities Fraud Litigation in Mass. ISILON SYSTEMS: Faces Wash. Consolidated Securities Fraud Suit ISOLAGEN INC: Pa. Court Sets June 2, 2008 Mediation for Lawsuit JOHN MUIR: EEOC Files Lawsuit Over Discrimination of Nurse Hires KENNETH COLE: Settlement Deal Concludes Calif. SBCCA Lawsuit KOPPERS INC: Plaintiffs in "Batts" Voluntarily Dismiss Pa. Case LOUISIANA: State Faces Lawsuit Over Constitutional Violations NUVELO INC: Seeks Dismissal of Calif. Securities Fraud Complaint OIL COS: Sued Over Employee Exposure to Carcinogenic Materials STEC INC: Settles Calif. Consumer Litigation Over Hard Drives STRATEGIC ENERGY: Faces Pa. Litigation Over Electricity Service TD AMERITRADE: Settlement Discussions Ongoing in "Zigler" Matter TD AMERITRADE: Settlement Discussions Ongoing in "Elvey" Matter UNITED GENERAL: Faces Texas Lawsuit Over Refinancing Fees WEST VIRGINIA UNIVERSITY: Suit Over Heather Bresch Scandal Looms New Securities Fraud Cases DOWNEY FINANCIAL: Charles Johnson Files Calif. Securities Suit TRM CORP: Brower Piven Files Securities Fraud Lawsuit in Oregon ********* ASTORIA FINANCIAL: Opposes Motion in N.Y. "McAnaney" Litigation --------------------------------------------------------------- Astoria Financial Corp. is opposing a motion to intervene or substitute plaintiff filed in a lawsuit against the company over mortgage loan preparation fees that are time-barred. In 2004, David McAnaney and Carolyn McAnaney, individually and on behalf of all others similarly situated, filed the suit against Astoria Financial and other defendants before the U.S. District Court for the Eastern District of New York. The suit is claiming that the company's charging of attorney document preparation fees, recording fees, and facsimile fees for mortgage loans violate state laws. The action, commenced as a punitive class action suit, alleges that in connection with the satisfaction of certain mortgage loans made by Astoria Federal, The Long Island Savings Bank, FSB, which was acquired by Astoria Federal in 1998, and their related entities, customers were charged attorney document preparation fees, recording fees and facsimile fees allegedly in violation of: -- the federal Truth in Lending Act, -- the Real Estate Settlement Procedures Act, -- the Fair Debt Collection Act, and -- the New York State Deceptive Practices Act The suit also alleges unjust enrichment and common law fraud. Astoria Federal previously moved to dismiss the amended complaint, which motion was granted in part and denied in part -- dismissing claims based on violations of RESPA and FDCA. The Court further determined that class certification would be considered prior to considering summary judgment. On Sept. 19, 2006, the court granted the plaintiffs' motion for class certification. Astoria Federal has denied the claims set forth in the complaint. Both the company and the plaintiffs have filed motions for summary judgment. The District Court, on Sept. 12, 2007, granted the company's motion for summary judgment on the basis that all named plaintiffs' Truth in Lending claims are time-barred. All other aspects of the plaintiffs' and the defendant's motions for summary judgment were dismissed without prejudice. The Court found the named plaintiffs to be inadequate class representatives and provided their counsel an opportunity to submit a motion for the substitution or intervention of new named plaintiffs. The plaintiffs' counsel filed a motion with the District Court for partial reconsideration of its decision. The District Court, by order dated Jan. 25, 2008, granted the plaintiffs' motion for partial reconsideration and again determined that all named plaintiffs' Truth in Lending claims are time-barred. The plaintiffs' counsel subsequently submitted a motion to intervene or substitute plaintiff proposing a single substitute plaintiff. On April 18, 2008, the company filed with the District Court its opposition to such motion, according to the company's May 2008 Form 10-Q filing before the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit is "McAnaney et al. v. Astoria Financial Corp. et al., Case No. 2:04-cv-01101-JFB-WDW," filed before the U.S. District Court for the Eastern District of New York, Judge Joseph F. Bianco, presiding. Representing the plaintiffs are: G. Oliver Koppell, Esq. (okoppell@koppellaw.com) 99 Park Avenue, Suite 800 New York, NY 10016 Phone: 212-368-0400 Fax: 212-973-9494 - and - Joseph S. Tusa, Esq. (joseph@whalen-tusa.com) Whalen & Tusa, P.C. 90 Park Avenue New York, NY 10016 Phone: 212-786-7377 Fax: 212-658-9685 Representing the defendants is: Alfred W.J. Marks, Esq. (awjmarks@dbh.com) Day, Berry & Howard, LLP 875 Third Avenue, 28th Floor New York, NY 10022 Phone: 212-829-3634 Fax: 212-829-3601 C-COR INC: Faces Lawsuit in Tennessee Alleging FLSA Violations -------------------------------------------------------------- C-COR, Inc., an acquisition of ARRIS Group, Inc., is facing a purported class action lawsuit in Tennessee, alleging violations of the Fair Labor Standards Act, according to ARRIS Group's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit was filed in the U.S. District Court for the Western District of Tennessee on Feb. 12, 2008. It was filed by Joe Brasfield and 21 other named plaintiffs, all current or former installers or technicians servicing cable TV customers in Memphis, Tennessee, against Source Broadband Services, LLC, and C-COR, alleging that the plaintiffs were not properly paid for overtime. Source Broadband purchased C-COR's installation business in June 2007. The plaintiffs are attempting to have the case certified as a class action. The suit is "Brasfield et al v. Source Broadband Services, LLC et al., Case No. 2:08-cv-02092-JPM-dkv," filed in the U.S. District Court for the Western District of Tennessee, Judge Jon Phipps McCalla presiding. Representing the plaintiffs are: Thomas Franklin Donaldson, Jr., Esq. (tfdonaldson@donaldsonlawfirm.com) Thomas F. Donaldson, Jr., Attorney at Law P.O. Box 949 Marion, AR 72364 Phone: 870-739-4403 - and - Donald A. Donati, Esq. (don@donatilawfirm.com) Donati Law Firm LLP 1545 Union Ave. Memphis, TN 38104 Phone: 901-278-1004 Fax: 901-278-3111 Representing the defendants are: Benjamin D. Briggs, Esq. (benjamin.briggs@troutmansanders.com) Troutman Sanders Bank of America Plaza 600 Peachtree St., N.E. Ste. 5200 Atlanta, GA 30308-2216 Phone: 404-885-3000 - and - Louis P. Britt, III, Esq. (lbritt@fordharrison.com) Ford & Harrison, LLP 795 Ridge Lake Blvd. Ste. 300 Memphis, TN 38120 Phone: 901-291-1500 Fax: 901-291-1501 CFS ENTERPRISE: Faces Kansas Suit Over Bait-and-Switch Tactics -------------------------------------------------------------- CFS Enterprise, Inc., doing business as Chad Franklin Suzuki of Kansas City, is facing a class-action complaint filed in the District Court of Wyasndotte County, Kansas, accusing it of using bait-and-switch tactics to sell autos on unconscionable terms, CourtHouse News Service reports. This is a class action suit seeking redress and relief for deceptive and fraudulent practices relating to the advertising, promotion, financing, sale and performance of obligations pursuant to purchase agreements for Suzuki brand automobiles. This action is brought on behalf of all natural persons who, within the applicable statutes of limitation, purchased cars from defendants pursuant to the program advertised and marketed by defendants. The plaintiffs ask the court for an order: -- declaring this to be a proper class action under RSA Section 60-223(c); -- awarding plaintiffs and the class all actual damages under all counts; -- awarding plaintiffs and the class punitive damages under Count II for fraud; -- awarding plaintiffs all contract damages under Count III for Breach of Contract; -- awarding plaintiffs reasonable attorneys' fees and costs; and -- awarding plaintiffs appropriate equitable relief, such as but not limited to declaration, injunction, rescission, restitution or specific performance. The suit is "Kensey and Sara Russell et al. v. CFS Enterprise, Inc., Case No. 08CV968," filed before the U.S. District Court in the District of Wyandotte County, Kansas. Representing the plaintiffs is: Scott F. Walterbach, Esq. Feldhausen & Schoenlaub PC 10601 N. Ambassador Dr., Suite F Kansas City, MO 64153 Phone: 816-891-2500 Fax: 816-891-2515 EL POLLO: Discovery Ongoing in Assistant Shift Managers' Lawsuit ---------------------------------------------------------------- Written discovery is ongoing in a purported class action lawsuit against El Pollo Loco, Inc. -- a wholly owned subsidiary of EPL Intermediate, Inc. -- that was filed before a state court in Los Angeles County. In April 2007, Dora Santana filed the purported class action complaint on behalf of all "Assistant Shift Managers." The plaintiff alleges wage and hour violations including working off the clock, failure to pay overtime, and meal break violations on behalf of the purported class, currently defined as all Assistant Managers from April 2003 to present. Written discovery has just begun on the limited issue of class certification, according to EPL Intermediate's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 26, 2008. El Pollo Loco Holdings, Inc., -- http://www.elpolloloco.com/-- formerly EPL Holdings, Inc. own, operate and franchise restaurants specializing in marinated, flame-grilled chicken. The Company is a subsidiary of EPL Intermediate, Inc. EL POLLO: "Amezcua" Labor Suit in Calif. Stayed While on Appeal --------------------------------------------------------------- A purported class action suit against El Pollo Loco, Inc. -- a wholly owned subsidiary of EPL Intermediate, Inc. -- filed in the Superior Court of the State of California, County of Los Angeles, is being stayed while it is pending before the Court of Appeal. Generally, the suit alleges violations of California labor laws and the California Business and Professions Code. The plaintiff, Salvador Amezcua, filed the suit on Oct. 18, 2005, on behalf of himself and all others similarly situated, based on, among other things, failure to pay overtime compensation, unlawful deductions from earnings and unfair competition by the company. The suit requested remedies that include compensatory damages, injunctive relief, disgorgement of profits and reasonable attorneys' fees and costs. On Aug. 16, 2006, Carlos Olvera replaced Mr. Amezcua as the named class representative. The court denied EPL's motion to compel arbitration, and the company has appealed that decision. This matter is subject to an automatic stay while it is pending before the Court of Appeal, according to EPL Intermediate's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 26, 2008. El Pollo Loco Holdings, Inc., -- http://www.elpolloloco.com/-- formerly EPL Holdings, Inc. own, operate and franchise restaurants specializing in marinated, flame-grilled chicken. The Company is a subsidiary of EPL Intermediate, Inc. ELI LILLY: Admits Wrongdoing in Indianapolis Noose Incident ----------------------------------------------------------- Eli Lilly now admits that it failed to report a noose found outside its Indianapolis headquarters in February. Lilly did not thoroughly investigate the incident until the Federal Bureau of Investigation launched a federal hate crime investigation in March, based on reports from a concerned member of the NAACP. Bob Reilley, director of global security for Eli Lilly, stated in a company newsletter recently that the corporation's investigation found that on the morning of Feb. 9, 2008, a rope with a knotted loop was observed in a tree outside of the parking garage of the Lilly Corporate Center. Lilly officials admit they began internal investigations in cooperation with the FBI several weeks following the incident, which may have affected the potential for gathering uncompromised evidence from the alleged crime scene. Mr. Reilley expressed regret that an initial incident report was not handled appropriately and that a thorough investigation was not immediately begun after receiving the report. "We regret that this delay occurred," he said. Indianapolis FBI Manager of Investigations Special Agent Mark Mahon could not comment on the details of the Eli Lilly investigation, but did say "the more evidence that is available the better the investigation." He further stated that alleged hate crime investigation has been turned over to the U.S. Department of Justice for further action. The discovery of the noose is the latest in a series of troubling incidents at the pharmaceutical giant. In November 2007, the NAACP joined in a class action lawsuit brought by hundreds of current and former African American employees to end what they describe as pervasive race discrimination in promotions, terminations, pay, retaliation and racially hostile working environments at Eli Lilly, one of the world's largest pharmaceutical companies. That case, known as Welch et. al v Eli Lilly Co. , and is pending in the U.S. District Court for the Southern District of Indiana. "The NAACP views the hanging of a noose as a hate crime and fully supports the investigation by the FBI," said NAACP Greater Indianapolis Branch President Cornell Burris. Dawn Johnson, the security guard who discovered the noose on the Lilly headquarters campus has been terrorized by the experience and referred to the FBI Victims Assistance program for hate crime victims. Securitas, Eli Lilly's contracted security company and Johnson's employer, just earlier this month, moved Johnson's work assignment away from the Lilly campus and retains financially substantial contracts with the drug manufacturer. "We take seriously any report that is suggestive of possible racial, ethnic or religious intolerance," said Bob Armitage, Lilly senior vice president and general counsel. Yet, when plaintiffs in the race discrimination lawsuit requested records from Lilly about the alleged noose incident, Lilly stated (Official Legal Response available/attached): Lilly objects . . . on the grounds that [the request] is [not] relevant to the subject matter of this action . . Lilly further objects to the request on the grounds that it is vague and argumentative, including but not limited to the use of the terms "resembling," hangman's noose," and "noose." Cassandra Welch, the lead plaintiff in the class action suit, reports that in 2004 she found a black doll with a hangman's noose around its neck dangling from her desk at Lilly following her filing a discrimination complaint. "Sounds like the same Lilly pattern of cover up and sweep under the rug," said Ms. Welch. "If Lilly really had intentions to take the [noose] matter seriously and do the right thing it would gladly cooperate and turn over its results." Legal action is expected to force release of Lilly and Securitas records. Given the history of lynching in the United States, a noose today is a powerful symbol of American white supremacy and pure barbarism. The FBI began investigating what are now known as hate crimes as far back as the early 1920s, when they opened their first Ku Klux Klan case. Today, they remain dedicated to working with state and local authorities to prevent these crimes and to bring to justice those who commit them. Mr. Johnson contacted Ms. Welch and is seeking assistance in retaining NAACP and other legal representation in the matter. Her case is under legal review. A national campaign -- http://www.fremeinc.com/-- of awareness is underway to create a public discourse around civil rights violations, inequality in employment and to investigate the emotional toll that discrimination plays on the American workforce. Details of the class action lawsuit can be found at For more information, contact: Rose & Rose PC 1320 19th Street, N.W., Suite 601 Washington, D.C. 20036 Phone: 202-331-8556 Web site: http://www.roselawyers.com/ EPL INTERMEDIATE: Limited Discovery Ongoing in Calif. Labor Suit --------------------------------------------------------------- Limited discovery is ongoing in a purported class action lawsuit against EPL Intermediate, Inc., filed before the Superior Court of the State of California, County of Los Angeles, according to EPL Intermediate's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 26, 2008. On April 16, 2004, former managers Haroldo Elias, Marco Ramirez and Javier Rivera filed the purported class action suit against EPL on behalf of all putative class members -- former and current general managers and restaurant managers from April 2000 to present -- alleging certain violations of California labor laws, including alleged improper classification of general managers and restaurant managers as exempt employees. The requested remedies include compensatory damages for unpaid wages, interest, certain statutory penalties, disgorgement of alleged profits, punitive damages and attorneys' fees and costs as well as certain injunctive relief. The court has lifted the stay on the class action pursuant to a recent California Supreme Court decision. The matter is now proceeding in Superior Court, and the parties are conducting limited discovery on the issue of class certification. El Pollo Loco Holdings, Inc., -- http://www.elpolloloco.com/-- formerly EPL Holdings, Inc. own, operate and franchise restaurants specializing in marinated, flame-grilled chicken. The Company is a subsidiary of EPL Intermediate, Inc. EPL INTERMEDIATE: Court Dismisses FCRA-FACTA Violations Suit ------------------------------------------------------------ The U.S. District Court for the Central District of California dismissed a purported class action lawsuit against EPL Intermediate, Inc., alleging violations of the federal Fair Credit Reporting Act and Fair and Accurate Credit Transactions Act. Veronica Blanco, on behalf of herself and all others similarly situated, filed the suit on Jan. 11, 2007, before the U.S. District Court for the Central District of California. The Court issued an order on Nov. 1, 2007, striking the class allegations on its own motion. This matter was dismissed on March 28, 2008, according to EPL Intermediate's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 26, 2008. The suit is "Blanco v. El Pollo Loco Inc. et al., Case No. 8:07- cv-00054-JVS-RNB," filed in the U.S. District Court for the Central District of California, Judge James V. Selna presiding. Representing the plaintiff is: James Mark Moore, Esq. (mark@spiromoss.com) Spiro Moss Barness 11377 West Olympic Boulevard, 5th Floor Los Angeles, CA 90064 Phone: 310-235-2468 Representing the defendant is: Ralph H. Blakeney, Esq. Pillsbury Winthrop 650 Town Center Dr, 7th Fl. Costa Mesa, CA 92626-7122 Phone: 714-436-6800 Fax: 714-436-2800 GABLE'S RESIDENTIAL: Faces Texas Lawsuit Alleging Racial Bias ------------------------------------------------------------- Gable's Residential Services, which owns and manages residential communities across the United States, is facing a class-action complaint filed before the U.S. District Court for the Southern District of Texas alleging racial discrimination, CourtHouse News Service reports. The complaint states that the company has only one black manager in its more than 200 managerial positions, and that person was hired only after the company was sued for racial discrimination. Named plaintiff Benita Bluford brings this case on behalf of other black employees, former employees and applicants for employment of Gables who have been denied employment, jobs or promotions at Gables. The plaintiff demands: -- judgment declaring that the acts and practices of defendant violate Section 1981 and Title VII; -- judgment awarding plaintiff and the other class members all relief, legal or equitable to which they may be justly entitled including all actual and punitive damages; -- injunctive relief necessary to end defendant's discriminatory practice and remedy its past discriminatory practices; -- costs of suit and reasonable attorneys' fees; -- prejudgment and post-judgment interest as provided by law; and -- such other and further relief, in law and in equity, to which plaintiff and the class may be justly entitled. The suit is "Venita Bluford et al v. Gables Residential Services, Inc.," filed in the U.S. District Court for the Southern District of Texas. Representing the plaintiff is: G. Scott Fiddler, Esq. 9601 Jones Road, Suite 250 Houston, Texas 77065 Phone: 281-897-0070 Fax: 281-897-0078 GENERAL NUTRITION: Mediation Fails to Resolve Andro Lawsuits ------------------------------------------------------------ A mediation session for several lawsuits against General Nutrition Centers, Inc., in connection to Andro Products has failed resolve the matters. The company is currently defending against five lawsuits -- Andro Actions -- relating to the sale by GNC of certain nutritional products alleged to contain the ingredients commonly known as Androstenedione, Androstenediol, Norandrostenedione, and Norandrostenediol (Andro Products). These five lawsuits were filed in California, New Jersey, Pennsylvania, and Florida. In each of the five cases, the plaintiffs have sought, or are seeking, to certify a class and obtain damages on behalf of the class representatives and all those similarly situated who purchased certain nutritional supplements from us alleged to contain one or more Andro Products. On April 17 and 18, 2006, the company filed pleadings seeking to remove each of the Andro Actions to the respective federal district courts in which the respective Andro Actions are pending. At the same time, the company filed motions seeking to transfer each of the Andro Actions to the U.S. District Court for the Southern District of New York based on "related to" bankruptcy jurisdiction, as one of the manufacturers supplying them with Andro Products, and to whom they sought indemnity, MuscleTech Research and Development, Inc., filed bankruptcy. The company was successful in removing the New Jersey, New York, Pennsylvania, and Florida Andro Actions to federal court and transferring these actions to the U.S. District Court for the Southern District of New York based on bankruptcy jurisdiction. The California case was not removed and remains pending in state court. Following the conclusion of the MuscleTech Bankruptcy case, plaintiffs, in September 2007, filed a stipulation dismissing all claims related to the sale of MuscleTech products in the four cases currently pending in the U.S. District Court for the Southern District of New York (New Jersey, New York, Pennsylvania, and Florida cases). Additionally, the plaintiffs filed motions to remand these actions to the respective state courts where they were originally filed, asserting that the federal court is divested of jurisdiction because the MuscleTech bankruptcy action is no longer pending. The motions to remand remain pending before the District Court. A more detailed description, listed by original stated court proceeding and current style, follows: "Harry Rodriguez v. General Nutrition Companies, Inc." The case was previously pending with the Supreme Court of the State of New York, New York County, New York, Index No. 02/126277. Upon its transfer to the U.S. District Court for the Southern District of New York, it was styled, "Harry Rodriguez, individually and on behalf of all others similarly situated, v. General Nutrition Companies, Inc. Case No. 1:06-cv-02987-JSR." The plaintiffs filed this putative class action suit on or about July 25, 2002. The Second Amended Complaint, filed in December 2002, alleged claims for unjust enrichment, violation of General Business Law Section 349 (misleading and deceptive trade practices), and violation of General Business Law Section 350 (false advertising). On July 2, 2003, the court granted part of the GNC motion to dismiss and dismissed the unjust enrichment cause of action. On Jan. 4, 2006, the court conducted a hearing on the GNC motion for summary judgment and plaintiffs' motion for class certification, both of which remain pending. "Everett Abrams v. General Nutrition Companies, Inc." The case was previously pending with the Superior Court of New Jersey, Mercer County, New Jersey, Docket No. L-3789-02. Upon transfer to the U.S. District Court for the Southern District of New York it was styled, "Everett Abrams, individually and on behalf of all others similarly situated, v. General Nutrition Companies, Inc., Case No. 1:06-cv-07881-JSR." The plaintiffs filed this putative class action on July 25, 2002. The Second Amended Complaint, filed in December 2002, alleged claims for false and deceptive marketing and omissions and violations of the New Jersey Consumer Fraud Act. On Nov. 18, 2003, the court signed an order dismissing plaintiff's claims for affirmative misrepresentation and sponsorship with prejudice. The claim for knowing omissions remains pending. "Shawn Brown, Ozan Cirak, Thomas Hannon, and Luke Smith v. General Nutrition Companies, Inc." The case was previously pending with the 15th Judicial Circuit Court, Palm Beach County, Florida, Index. No. CA-02-14221AB. Upon its transfer to the U.S. District Court for the Southern District of New York, it was styled, "Shawn Brown, Ozan Cirak, Thomas Hannon and Like Smith, each individually and on behalf of all others similarly situated v. General Nutrition Companies, Inc., Case No. 1:07-cv-06356-UA." The plaintiffs filed this putative class action on July 25, 2002. The Second Amended Complaint, filed in November 2002, alleged claims for violations of the Florida Deceptive and Unfair Trade Practices Act, unjust enrichment, and violation of Florida Civil Remedies for Criminal Practices Act. These claims remain pending. "Andrew Toth v. General Nutrition Companies, Inc., et al." The case was previously pending with the Common Pleas Court of Philadelphia County, Philadelphia, Class Action No. 02-703886. Upon transfer to the U.S. District Court for the Southern District of New York it was styled, "Andrew Toth and Richard Zatta, each individually and on behalf of all others similarly situated v. Bodyonics, LTD, d/b/a Pinnacle and General Nutrition Companies, Inc., Case No. 1:06-cv-02721-JSR." The plaintiffs filed this putative class action suit on July 25, 2002. The Amended Complaint, filed in April 2003, alleged claims for violations of the Unfair Trade Practices and Consumer Protection Law, and unjust enrichment. The court denied the plaintiffs' motion for class certification, and that order has been affirmed on appeal. The plaintiffs thereafter filed a petition in the Pennsylvania Supreme Court asking that the court consider an appeal of the order denying class certification. The Pennsylvania Supreme Court denied the petition after the case against GNC was removed as described above. The Claims for the violations of the Unfair Trade Practices and Consumer Protection Law and unjust enrichment remain pending. Guzman Litigation The suit "Santiago Guzman, individually, on behalf of all others similarly situated, and on behalf of the general public v. General Nutrition Companies, Inc.," was previously pending with the California Judicial Counsel, Coordination Proceeding No. 4363, Los Angeles County Superior Court. The Plaintiffs filed this putative class action on Feb. 17, 2004. The Second Amended Complaint, filed in November 2006, alleged claims for violations of the Consumers Legal Remedies Act, violation of the Unfair Competition Act, and unjust enrichment. These claims remain pending. Mediation On Jan. 25, 2008, a mediation was held for the Andro Actions and no resolution was reached, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements (VMHS) products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The Company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site at http://www.gnc.com/ The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. GENERAL NUTRITION: Court Okays Overtime Wage Suit Settlement ------------------------------------------------------------ The U.S. District Court for the District of Kansas approved a settlement reached in the purported class action captioned, "Most, et al. v. General Nutrition Centers, Inc., et al., Case No. 2:06-cv-02330-CM-GLR," which was filed primarily against General Nutrition Centers, Inc., according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. On Aug. 11, 2006, Michelle L. Most and Mark A. Kelso sued the company on behalf of themselves and all others similarly situated over unpaid overtime wages. The lawsuit purports to certify a nationwide class of GNC store managers and assistant managers and alleges that GNC failed to pay time and a half for working more than 40 hours per week. The counsel for the plaintiffs contends that the company and General Nutrition Corporation improperly applied fluctuating work week calculations and procedures for docking pay for working less than 40 hours per week under a fluctuating work week. In May 2007, the parties entered in to a settlement of the claims, which is subject to court approval. On or about July 3, 2007, the company sent a notice to all potential claimants, who may then elect to opt in to the settlement. On July 23, 2007, the court approved the settlement of claims as fair, reasonable, and adequate. The total amount paid to the class approximated $0.1 million. The suit is "Most, et al. v. General Nutrition Centers, Inc., et al., Case No. 2:06-cv-02330-CM-GLR," filed in the U.S. District Court for the District of Kansas, Judge Carlos Murguia presiding. Representing the plaintiffs are: Michael F. Brady, Esq. (brady@mbradylaw.com) Law Offices of Michael F. Brady 10901 Lowell Ave., Suite #280 Overland Park, KS 66210 Phone: 913-696-0925 Fax: 913-696-0468 - and - Brendan J. Donelon, Esq. (brendan@donelonpc.com) DONELON, P.C. 802 Broadway, 7th Flr. Kansas City, MO 64105 Phone: 816-221-7100 Fax: 816-472-6805 Representing the defendants is: Erin A. Webber, Esq. (ewebber@littler.com) Littler Mendelson, P.C. 2300 Main, Suite #900 Kansas City, MO 64108 Phone: 816-448-3358, x3561 Fax: 816-817-0735, GENERAL NUTRITION: Settles Suits Over Third-Party Product Sold -------------------------------------------------------------- General Nutrition Centers, Inc., settled several purported class action lawsuits in connection with a third-party product sold by the Company, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. Initially, five class action lawsuits were filed against the company in the state courts of Alabama, California, Illinois, and Texas with respect to claims that the labeling, packaging, and advertising with respect to a third-party product sold by the Company were misleading and deceptive. As a result of mediation, the parties agreed to a national settlement of the lawsuits, which was preliminarily approved by the court. Notice of the proposed settlement was made by national media publication and mail to approximately 2.4 million GNC Gold Card members. Each class member who purchased the third-party product and presented a cash register receipt or original product packaging received a cash reimbursement equal to the retail price paid, net of sales tax. Class members who purchased the product, but did not have a cash register receipt or original product packaging, were given an opportunity to submit a signed affidavit that entitled them to receive one or more coupons. Each coupon had a cash value of $10.00 valid toward any purchase of $25.00 or more at a GNC store. As of Dec. 31, 2007, all coupons had been redeemed or had expired. The settlement did not have a material adverse effect on the company's business or financial condition. General Nutrition Centers, Inc. -- http://www.gnc.com/-- is a holding company that, through its subsidiaries, operates as a global specialty retailer of health and wellness products, including vitamins, minerals and herbal supplements products, sports nutrition products, diet products and other wellness products. Its product mix is sold under its GNC brands, including Mega Men, Ultra Mega, Pro Performance and Preventive Nutrition, and under third-party brands. The Company operates through three business segments: Retail, Franchise and Manufacturing/Wholesale. The Retail segment generates revenues primarily from sales of products to customers at Company-owned stores in the U.S. and Canada, and through GNC's Web site. The Franchise segment consists of the Company's domestic and international franchise operations. The Manufacturing/Wholesale segment consists of GNC's manufacturing operations in South Carolina and its wholesale sales business. GENERAL NUTRITION: Faces Wage, Break Claim Litigation in Calif. --------------------------------------------------------------- General Nutrition Centers, Inc., is facing a wage and break claim litigation filed in the U.S. District Court for the Central District of California, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. On April 24, 2007, Kristin Casarez and Tyler Goodell filed a lawsuit against the company in the Superior Court of the State of California for the County of Orange. The company later removed the lawsuit to the U.S. District Court for the Central District of California. The plaintiffs purport to bring the action on their own behalf, on behalf of a class of all current and former non-exempt employees of GNC throughout the State of California employed on or after Aug. 24, 2004, and as private attorney general on behalf of the general public. They allege that they and the members of the putative class were not provided all of the rest periods and meal periods to which they were entitled under California law, and further allege that GNC failed to pay them split shift and overtime compensation to which they were entitled to under California law. The suit is "Casarez et al v. General Nutrition Centers Inc et al., Case No. 8:2007cv00875," filed in the U.S. District Court for the Central District of California, Judge James V. Selna presiding. Representing the plaintiffs are: Jeffrey P. Spencer, Esq. (jps@spencerlaw.net) Jeffrey P Spencer Law Offices 635 Camino De Los Mares, Ste. 312 San Clemente, CA 92673 Phone: 949-240-8595 - and - Jeffrey N. Wilens, Esq. (jeff@lakeshorelaw.org) Lakeshore Law Center 17476 Yorba Linda Blvd, Ste 221 Yorba Linda, CA 92886 Phone: 714-854-7205 Representing the defendants is: Maria R. Harrington, Esq. (mharrington@littler.com) Littler Mendelson 2050 Main Street Suite 900 Irvine, CA 92614 Phone: 949-705-3000 Fax: 949-724-1201 GNC FRANCHISING: November 2008 Trial Slated for "Ahussain" Case --------------------------------------------------------------- A November 2008 trial is slated for the purported class action "Ahussain v. GNC Franchising LLC, Case No. 8:2006cv01090," which was filed in the U.S. District Court for the Central District of California against units of General Nutrition Centers, Inc. On Nov. 7, 2006, Abdul Ahussain, on behalf of himself and all others similarly situated, sued GNC Franchising, LLC, and General Nutrition Corp. The plaintiffs, who are all current franchisees, filed a putative class action lawsuit seeking to certify a class of current and former California GNCF franchisees. The suit alleges that GNC engages in unfair business practices designed to earn a profit at its franchisees' expense. These alleged practices include: -- requiring its franchises to carry slow moving products, which cannot be returned to GNC after expiration, with the franchise bearing the loss; -- requiring franchised stores to purchase new or experimental products, effectively forcing the franchisees to provide free market research; -- using the Gold Card program to collect information on franchised store customers and then soliciting business from such customers; -- underselling its franchised stores by selling products through the GNC website at prices below or close to the wholesale price, thereby forcing franchises to sell the same products at a loss; and -- manipulating prices at which franchised stores can purchase products from third-party suppliers, so as to maintain GNC's favored position as a product wholesaler. The plaintiffs are seeking damages in an unspecified amount and equitable and injunctive relief. On March 19, 2008, the court certified a class as to only plaintiffs' claim for violation of California Business & Professions Code, Section 17200 et seq. The class consists of all persons or entities who are or were GNC franchisees in the State of California from November 13, 2002, to the date of adjudication. The plaintiffs' other claims remain as individual claims in this lawsuit. A trial is scheduled for November 2008, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit is "Ahussain v. GNC Franchising LLC, Case Number: 8:2006cv01090," filed in the U.S. District Court for the Central District of California, Judge David O. Carter, presiding. Representing the plaintiffs are: Abel E. Aguilera, Esq. (eaguilera@bmkalaw.com) Bohm Matsen Kegel and Aguilera 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 Phone: 714-384-6500 - and - Omar Ahmed Siddiqui, Esq. (osiddiqui@usllp.com) Ulwelling Siddiqui Park Tower 695 Town Center Drive Suite 700 Costa Mesa, CA 92626 Phone: 714-384-6650 Representing the defendants are: Christopher C. Eck, Esq. (chris-eck@gnc-hq.com) General Nutrition Corporation 300 Sixth Avenue Pittsburg, PA 15222 Phone: 412-288-4600 - and - Brad A. Funari, Esq. (bfunari@mcguirewoods.com) McGuire Woods Dominion Tower 625 Liberty Avenue, 23rd - 27th Floors Pittsburg, PA 15222 Phone: 412-667-6000 HEALTH NET: Faces Rescinded Members' Litigation in California ------------------------------------------------------------- Health Net, Inc., is facing a putative class action suit filed in April 2008 before the Los Angeles Superior Court, in which rescinded members allege that the company unlawfully rescinded their coverage, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The lawsuits generally seek to recover the cost of medical services that were not paid for as a result of the rescission, and in some cases they also seek damages for emotional distress, attorney fees and punitive damages. Health Net, Inc. -- https://www.healthnet.com/ -- is an integrated managed care organization that delivers managed healthcare services through health plans and government- sponsored, managed-care plans. The Company operates and conducts its businesses through its subsidiaries. Health Net's health plans and government contracts subsidiaries provide health benefits through its health maintenance organizations, insured preferred provider organizations and point-of-service plans to approximately 6.6 million individuals across the country through group, individual, Medicare, (including the Medicare prescription drug benefit commonly referred to as Part D), Medicaid, TRICARE and Veterans Affairs programs. The Company operates within two segments: Health Plan Services and Government Contracts. HEALTH NET: Court Sets July 24 Hearing for ERISA Suit Settlement ---------------------------------------------------------------- The U.S. District Court for the District of New Jersey set a July 24, 2008 final fairness hearing for the settlement of several purported class action suits against Health Net, Inc., that generally allege violations of the Employee Retirement Income Security Act of 1974. The company was named as a defendant in three lawsuits that are styled as nationwide class actions: 1. "McCoy v. Health Net, Inc. et al.," 2. "Wachtel v. Health Net, Inc., et al.," and 3. "Scharfman, et al v. Health Net, Inc., et al." McCoy & Wachtel Litigation The McCoy and Wachtel cases are pending with the U.S. District Court for the District of New Jersey on behalf of a class of subscribers in a number of the company's large and small employer group plans. The Wachtel complaint initially was filed as a single plaintiff case in New Jersey State court on July 23, 2001. Subsequently, the company removed the Wachtel complaint to federal court, and plaintiffs amended their complaint to assert claims on behalf of a class of subscribers in small employer group plans in New Jersey on Dec. 4, 2001. The McCoy complaint was filed on April 23, 2003, and asserts claims on behalf of a nationwide class of Health Net subscribers. These two cases have been consolidated for purposes of trial. In it the plaintiffs allege that Health Net, Inc., Health Net of the Northeast, Inc. and Health Net of New Jersey, Inc. violated the Employee Retirement Income Security Act of 1974 in connection with various practices related to the reimbursement of claims for services provided by out-of-network providers. The plaintiffs seek relief in the form of payment of additional benefits, injunctive and other equitable relief, and attorneys' fees. In September 2006, the District Court in McCoy/Wachtel certified two nationwide classes of Health Net subscribers who received medical services or supplies from an out-of-network provider and to whom the defendants paid less than the providers billed charges from 1995 through Aug. 31, 2004. Class notices were mailed and published in various newspapers at the beginning of July 2007. Scharfman Litigation On Jan. 13, 2005, counsel for the plaintiffs in the McCoy/Wachtel actions filed a separate class action complaint against Health Net; Health Net of the Northeast, Inc.; Health Net of New York, Inc.; and Health Net Life Insurance Co., captioned, "Scharfman, et al. v. Health Net, Inc., et al., 05- CV-00301 (FSH)(PS)." The suit was filed in the U.S. District Court for the District of New Jersey. On March 12, 2007, the Scharfman complaint was amended to add plaintiffs in "McCoy," and "Wachtel," as named plaintiffs and to add a non-ERISA claim. The Scharfman complaint now alleges both ERISA and Racketeer Influenced and Corrupt Organizations Act claims based on conduct similar to that alleged in the McCoy/Wachtel actions. The alleged claims in "Scharfman" run from Sept. 1, 2004 until the present. The plaintiffs in the Scharfman action seek relief in the form of payment of additional benefits, civil penalties, restitution, compensatory, and consequential damages, treble damages, prejudgment interest and costs, attorney's fees and injunctive and other equitable relief. On April 10, 2007, the company filed a motion to dismiss all counts of that complaint, which is pending. On July 25, 2007, the Magistrate issued her recommendations to the Court on this motion, recommending denying the motion to dismiss with respect to the ERISA claims, granting the motion to dismiss with respect to the State RICO claims, and dismissing the federal RICO claims with leave to file an amended complaint and a direction to file a RICO case statement. McCoy/Wachtel Litigation Developments In the McCoy/Wachtel actions, on August 9, 2005, the plaintiffs filed a motion seeking sanctions against the defendants for a variety of alleged misconduct, discovery abuses and fraud on the District Court. The District Court held 12 days of hearings on the plaintiffs' sanctions motion between October 2005 and March 2006. During the course of the hearings, and in their post-hearings submissions, the plaintiffs also alleged that some of Health Net's witnesses engaged in perjury and obstruction of justice. Health Net denied all such allegations. While the sanctions proceedings were progressing, the District Court and the Magistrate Judge overseeing discovery entered a number of orders relating, inter alia, to production of documents. In an order dated May 5, 2006 (May 5 Order), the District Court ordered the restoration, search and review of backed-up emails of 59 current and former Health Net associates. The restoration process was complex, time consuming and expensive as it involved dealing with over 14 billion pages of documents. Health Net was unable to complete the project by the deadline and the District Court denied additional time to complete the project. The project was completed two months after the deadline. The May 5 Order also set forth certain findings regarding plaintiffs' argument that the "crime-fraud" exception to the attorney-client privilege should be applied to certain documents for which Health Net claimed a privilege. In this ruling, the District Court made preliminary findings that a showing of a possible crime or fraud was made. The review of privileged documents under the "crime-fraud" exception was assigned by the District Court to the Magistrate Judge, who was to review the documents and make a recommendation to the District Court. On Jan. 22, 2007, the Magistrate Judge made a recommendation that the assertion of privilege for a number of the documents was vitiated by the crime-fraud exception. Health Net has appealed this ruling to the District Court. In June 2007, the District Court asked the Magistrate Judge to determine if plaintiffs had established a prima facie case that Health Net had committed a crime or fraud that would vitiate the attorney-client privilege claimed for an additional set of Health Net documents. The Magistrate Judge so found and referred the matter to a Special Master for further review. No determination has yet been made by the Special Master. On Dec. 6, 2006, the District Court issued an opinion and order finding that Health Net's conduct in connection with the discovery process was sanctionable (December 6 Order). The District Court ordered a number of sanctions against Health Net, including, but not limited to: -- striking a number of Health Net's trial exhibits and witnesses; -- deeming a number of facts to be established against Health Net; -- requiring Health Net to pay for a discovery monitor to oversee the completion of discovery in these cases; -- ordering that a monetary sanction be imposed upon Health Net once the District Court reviews Health Net's financial records; -- ordering Health Net to pay plaintiffs' counsel's fees and expenses associated with the sanctions motion and motions to enforce the District Court's discovery orders and re-deposing Health Net witnesses. In connection therewith, on June 19, 2007, the District Court ordered Health Net to pay plaintiffs' counsel fees of $6,723,883, which were paid on July 3, 2007; this amount was accrued for as of June 30, 2007. The District Court has not yet announced what, if any, additional penalties will be imposed. In its December 6 Order, the District Court also ordered that Health Net produce a large number of privileged documents that were first discovered and revealed by Health Net as a result of the e-mail backup tape restoration effort. The company appealed that order to the Third Circuit where it is still pending. Finally, pursuant to the December 6 Order, the District Court appointed a Special Master to determine if the company has complied with all discovery orders. In her Report, the Special Master found, among other things, that: -- "There was no evidence of intentional or deliberate destruction of emails;" -- "There is no evidence of destruction of emails by any individual;" and -- "There was no evidence of intentional, malicious or bad faith conduct." As a result of these findings, plaintiffs requested that the District Court accept the Special Master's Report, but reject the portion containing the above quotes. The company has opposed the request that portions of the Report be expunged. The Court has yet to rule on plaintiffs' request. Settlement Negotiations In August 2007, the company engaged in mediation with the plaintiffs that resulted in an agreement in principle to settle McCoy, Wachtel and Scharfman actions. A final settlement agreement was signed with the plaintiffs on March 13, 2008. The material terms of the company's agreement with the plaintiffs are as follows: -- Health Net will establish a $175 million cash settlement fund which will be utilized to pay class members, plaintiffs' attorneys' fees and expenses and regulatory remediation of claims up to $15 million paid by Health Net to members in New Jersey relating to Health Net's failure to comply with specific New Jersey state laws relating to ONET and certain other claims payment practices; -- Health Net will establish a $40 million prove-up fund to compensate eligible class members who can prove that they paid out of pocket for certain ONET claims or who have received balance bills for such services after May 5, 2005; and -- Health Net will implement various business practice changes relating to its handling of ONET claims, including changes designed to enhance information provided to its members on ONET reimbursements and enhanced reimbursement for certain ONET services. In addition, the parties have agreed to jointly request that the District Court forego the imposition of any further sanctions, penalties or fines against Health Net or its representatives. Due to the length of time it took to negotiate a series of complex settlement terms with plaintiffs, the company agreed with plaintiffs to deposit $160 million into an escrow fund to be used as the cash settlement fund referenced above when a settlement is finally agreed to and approved by the District Court. On Jan. 28, 2008, the $160 million was placed into an escrow account where it will accrue interest until the settlement is approved by the District Court. On April 24, 2008, the District Court conducted a preliminary fairness hearing and subsequently signed an order on that date preliminarily approving the settlement agreement. Notice of the settlement agreement's terms will be provided to class members in May 2008. After class members are given an opportunity to raise any objections to the settlement, the court will conduct a final fairness hearing on July 24, 2008, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. Health Net, Inc. -- https://www.healthnet.com -- is an integrated managed care organization that delivers managed healthcare services through health plans and government- sponsored, managed-care plans. The Company operates and conducts its businesses through its subsidiaries. Health Net's health plans and government contracts subsidiaries provide health benefits through its health maintenance organizations (HMOs), insured preferred provider organizations (PPOs) and point-of-service (POS) plans to approximately 6.6 million individuals across the country through group, individual, Medicare, (including the Medicare prescription drug benefit commonly referred to as Part D), Medicaid, TRICARE and Veterans Affairs programs. The Company operates within two segments: Health Plan Services and Government Contracts. HOLLINGER INC: Davidson Kempner Settlement Gets Court Approval -------------------------------------------------------------- The settlement entered into by Hollinger Inc. with Davidson Kempner Management LLC and certain of its affiliates and Sun- Times Media Group, Inc., has received court approval, The Canadian Press reports. DK is the holder of approximately 42% of the outstanding principal amount of Hollinger's secured notes issued pursuant to indentures dated March 10, 2003, and September 30, 2004. Hollinger holds approximately 70% voting interest and 19.7% equity interest in Sun-Times. Hollinger and its subsidiaries, Sugra Ltd. and 4322525 Canada Inc. are subject to proceedings in Canada under the Companies' Creditors Arrangement Act and in the United States under Chapter 15 of the U.S. Bankruptcy Code. An agreement between Hollinger and Sun-Times was filed by before the Ontario Court on April 10, 2008, in connection with the CCAA proceeding (Class Action Reporter, May 16, 2008). The Settlement replaces the Sun-Times Agreement. The Settlement provides that DK will withdraw its motion seeking the bankruptcies of the Applicants, and that DK will support Court Approval of the Settlement and the other relief sought by the Applicants in their Notice of Motion dated April 10, 2008. The effect of the agreement is that Hollinger Inc. will relinquish its voting control over the last major newspaper operating company in Conrad Black's former business empire. Under the proposed deal, the insolvent Toronto-based company, Davidson Kempner Management LLC of New York will end up controlling Hollinger Inc.'s stake in Sun-Times Media. In return for about 16.5 million class A shares of Sun-Times Media and a $1.5-million fee plus up to $3 million for reasonable legal costs, Davidson Kempner will drop its efforts to push Hollinger into full bankruptcy. Under the multi-stage process in the agreement with Davidson Kempner, the multiple-vote class B shares of Sun-Times Media that Hollinger holds would be exchanged for an equal number of single-vote A shares. Davidson Kempner Management LLC would end up with indirect ownership of about 15 million A shares from Hollinger's holdings and a further 1.5 million A shares from Sun-Times Media. The Settlement provides that John D. Ground, a retired justice of the Ontario Court of Justice (Commercial List), shall be appointed as an officer of the Court to perform the role of litigation trustee of all claims and causes of action in favor of the Applicants on such terms as may be agreed between the Applicants and justice Ground and subject to approval by the Court. An advisory committee shall be established to provide advice and direction to the Litigation Trustee comprised of the Litigation Trustee, one representative of DK and one representative of the Applicants. For more information, contact: G. Wesley Voorheis (wvoorheis@hollingerinc.com) Chief Executive Officer Hollinger Inc. Phone: 416-363-8721 ext. 237 or ext. 262 - and - William E. Aziz (baziz@hollingerinc.com) Chief Financial Officer Hollinger Inc. Phone: 416-363-8721 ext. 237 or ext. 262 INVERNESS MEDICAL: Faces Securities Fraud Litigation in Mass. ------------------------------------------------------------- Inverness Medical Innovations, Inc., is facing a purported class action lawsuit in Massachusetts, alleging that the company's prospectus supplement with respect to its November 2007 public offering was inaccurate and misleading and omitted material facts, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. On April 10, 2008, Pyramid Holdings Inc., individually and on behalf of all others similarly situated, filed a purported federal securities class action lawsuit in the U.S. District Court for the District of Massachusetts against the company; its chief executive officer, Ron Zwanziger; and its chief financial officer, David Teitel. The complaint seeks damages and interest, rescissory damages for class members who have sold their shares, and recovery of reasonable costs and expenses of this litigation. The suit is "Pyramid Holdings Inc. v. Inverness Medical Innovations Inc. et al., Case No. 1:08-cv-10615-JLT," filed before the U.S. District Court for the District of Massachusetts, Judge Joseph L. Tauro presiding. Representing the plaintiffs is: Thomas G. Shapiro, Esq. (tshapiro@shulaw.com) Shapiro Haber & Urmy LLP 53 State Street Boston, MA 02108 Phone: 617-439-3939 Fax: 617-439-0134 Representing the defendants is: Brian E. Pastuszenski, Esq. (BPastuszenski@goodwinprocter.com) Goodwin Procter LLP Exchange Place 53 State Street Boston, MA 02109 Phone: 617-570-1094 Fax: 617-523-1231 ISILON SYSTEMS: Faces Wash. Consolidated Securities Fraud Suit -------------------------------------------------------------- Isilon Systems, Inc., is facing a consolidated securities fraud class action suit filed in the U.S. District Court for the Western District of Washington, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. On Nov. 1, 2007, a putative class-action complaint was filed against the company and certain of its current and former directors and officers. The complaint asserts claims under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated there under, as well as under Sections 11 and 15 of the U.S. Securities Act of 1933. Substantially similar complaints were filed in the same court in December 2007. These cases, which were subsequently consolidated, purport to be brought on behalf of a class of individuals or entities who purchased or acquired the company's stock during the period Dec. 16, 2006, to Oct. 3, 2007. The plaintiffs allege that the defendants violated the federal securities laws during this period of time by, among other things, issuing a false and misleading registration statement and prospectus in connection with the company's Dec. 16, 2006 initial public offering, and by publicly misrepresenting the company's current and prospective business and financial results. The plaintiffs claim that, as a result of these alleged wrongs, the company's stock price was artificially inflated during the purported class period. The plaintiffs are seeking unspecified compensatory damages, interest, an award of attorneys' fees and costs, and injunctive relief. On April 18, 2008, the plaintiffs filed a consolidated amended complaint against the company, certain of its current and former directors and officers, underwriters and venture capital firms. Isilon Systems, Inc. -- http://www.isilon.com/-- is a provider of clustered storage systems for digital content. The Company has designed and developed its clustered storage systems specifically to address the needs of storing and managing digital content. ISOLAGEN INC: Pa. Court Sets June 2, 2008 Mediation for Lawsuit --------------------------------------------------------------- The U.S. District Court for the Eastern District of Pennsylvania set a June 2, 2008 mediation session for the matter, "Isolagen, Inc., Securities & Derivative Litigation, Case No. 2:06-md- 01741-RB." The company and certain of its current and former officers and directors are defendants in class action cases pending in the U.S. District Court for the Eastern District of Pennsylvania. In August 2005 and September 2005, various lawsuits were filed against the company alleging securities fraud and asserting claims on behalf of a putative class of purchasers of publicly traded Isolagen securities between March 3, 2004, and Aug. 1, 2005. These lawsuits were: -- "Elliot Liff v. Isolagen, Inc. et al., C.A. No. H-05- 2887," filed in the U.S. District Court for the Southern District of Texas; -- "Michael Cummiskey v. Isolagen, Inc. et al., C.A. No. 05-cv-03105," filed in the U.S. District Court for the Southern District of Texas; -- "Ronald A. Gargiulo v. Isolagen, Inc. et al., C.A. No. 05-cv-4983," filed in the U.S. District Court for the Eastern District of Pennsylvania," and -- "Gregory J. Newman v. Frank M. DeLape, et al., C.A. No. 05-cv-5090," filed in the U.S. District Court for the Eastern District of Pennsylvania. The Liff and Cummiskey actions were consolidated on Oct. 7, 2005. The Gargiolo and Newman actions were consolidated on Nov. 29, 2005. On Nov. 18, 2005, the company filed a motion with the Judicial Panel on Multidistrict Litigation to transfer the Federal Securities Actions to the U.S. District Court for the Eastern District of Pennsylvania. The Liff and Cummiskey actions were stayed on Nov. 23, 2005, pending resolution of the MDL Motion. The Gargiulo and Newman actions were also stayed on Dec. 7, 2005, pending resolution of the MDL Motion. On Feb. 23, 2006, the MDL Motion was granted and the actions pending with the U.S. District Court for the Southern District of Texas were transferred to the U.S. District Court for the Eastern District of Pennsylvania, where they have been captioned, "In re Isolagen, Inc. Securities & Derivative Litigation, MDL No. 1741." On April 4, 2006, the U.S. District Court for the Eastern District of Pennsylvania appointed Silverback Asset Management, LLC, Silverback Master, Ltd., Silverback Life Sciences Master Fund, Ltd., Context Capital Management, LLC and Michael F. McNulty as Lead Plaintiffs, and the law firms of Bernstein Litowitz Berger & Grossman LLP and Kirby McInerney & Squire LLP as Lead Counsel in the Federal Securities Litigation. On July 14, 2006, the lead plaintiffs filed a consolidated class action complaint in the Federal Securities Litigation on behalf of a putative class of persons or entities who purchased or otherwise acquired Isolagen common stock or convertible debt securities between March 3, 2004, and Aug. 9, 2005. The complaint purports to assert claims for securities fraud in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 against Isolagen and certain of its former officers and directors. The complaint also purports to assert claims for violations of Section 11 and 12 of the U.S. Securities Act of 1933 against the Company and certain of its current and former directors and officers in connection with the registration and sale of certain shares of Isolagen common stock and certain convertible debt securities. The complaint also purports to assert claims against CIBC World Markets Corp., Legg Mason Wood Walker, Inc., Canaccord Adams, Inc. and UBS Securities LLC as underwriters in connection with an April 2004 public offering of Isolagen common stock and a 2005 sale of convertible notes. On Nov. 1, 2006, the defendants moved to dismiss the complaint. On Sept. 26, 2007, the court denied the company's motions to dismiss the complaint. On Nov. 6, 2007, the court entered a scheduling order that provides for discovery to be completed by June 8, 2009. On April 1, 2008, the court entered an order staying the schedule set forth in its Nov. 6, 2007 order for a period of 90 days and directing the parties to participate in mediation before a private mediator. The mediation is currently scheduled for June 2, 2008, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit is "Isolagen, Inc., Securities & Derivative Litigation, Case No. 2:06-md-01741-RB," filed before the U.S. District Court for the Eastern District of Pennsylvania, Judge Ronald L. Buckwalter presiding. Representing the plaintiffs are: Richard Eugene Norman, Esq. Crowley Douglas, et al. 1301 McKinney, Suite 3500 Houston, TX 77010 Phone: 713-651-1771 - and - Andrei V. Rado, Esq. Peter E. Seidman, Esq. Milberg Weiss Bershad & Schulman, LLP One Pennsylvania Plaza New York, NY 10119-0165 Phone: 212-594-5300 Representing the company are: Charles W. Schwartz, Esq. Skadden Arps, et al. 1000 Louisiana St., Suite 6800 Houston, TX 77002 Phone: 713-655-5160 - and - Robert W. Hayes, Esq. (rhayes@cozen.com) Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Phone: 215-665-2094 Fax: 215-665-2013 JOHN MUIR: EEOC Files Lawsuit Over Discrimination of Nurse Hires ---------------------------------------------------------------- The U.S. Equal Employment Opportunity Commission filed a federal class action suit against John Muir Health for discrimination of nurse hires, John Simerman of the Contra Costa Times reports. The suit contends that the local hospital operator illegally yanked job offers from at least seven nurses after a doctor wrongly diagnosed them with severe allergies to latex. Reports of allergic reactions to latex have risen in recent years, especially in health care, according to the U.S. Centers for Disease Control and Prevention. Latex can be found in disposable gloves, blood pressure cuffs, stethoscopes, syringes, catheters and intravenous tubing, among other hospital staples. Allergies to latex can produce skin rashes, hives and itching, eye or sinus symptoms, asthma and, rarely, shock. Estimates of latex allergies vary widely, from 1% to 6% of the population, according to the American Academy of Allergy, Asthma and Immunology. About 220 cases of severe reaction, and about three deaths, are attributable each year to latex allergies. Some hospitals prohibit latex balloons as a precaution. According to EEOC officials, the Walnut Creek-based health organization relied on a doctor who was not an allergist and who failed to confirm results from a blood test known to produce false-positive results. Specialists later determined that some of the nurses had no latex allergies, and others had milder forms, said Marcia Mitchell, lead attorney in the case. The lawsuit contends the organization acted "with malice and/or reckless indifference to (the nurses') federally protected rights." The complaint seeks unspecified back pay, lost wages, punitive damages and compensation for the nurses' emotional distress, pain and suffering. Federal law caps emotional distress, pain and suffering and punitive damages at $300,000 for each party. The hospital did not respond to repeated requests from the Contra Costa Times for comment on the lawsuit. John Muir Health runs namesake medical centers in Walnut Creek and Concord, a Brentwood outpatient facility and many other programs in Contra Costa County. KENNETH COLE: Settlement Deal Concludes Calif. SBCCA Lawsuit ------------------------------------------------------------ The Superior Court for the State of California, County of San Diego, approved a settlement in the purported class action lawsuit against Kenneth Cole Productions, Inc., that alleges the company of violations of the Song-Beverly Credit Card Act, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The class action complaint was filed before the Superior Court for the State of California, County of San Diego, on April 17, 2007, against Kenneth Cole. The suit alleges that the company's policies and practices regarding the request of personal information during credit card purchases violate the Song-Beverly Credit Card Act. The complaint seeks civil penalties, injunctive relief, interest, costs and attorneys' fees. During the quarter ended March 31, 2008, the parties reached an agreement to settle the dispute and the court approved the settlement, which had been accrued at Dec. 31, 2007, and did not have a significant impact on the company's consolidated financial statements. The limitations period to appeal the judgment has expired and the company has honored all of its obligations under the settlement. As such, the matter is considered closed. Kenneth Cole Productions, Inc. -- http://www.kennethcole.com/-- designs, sources and markets a range of fashion footwear and handbags. Through license agreements, the company designs an markets apparel and accessories under its Kenneth Cole New York, Kenneth Cole Reaction, Unlisted and Tribeca brand names. In addition, Kenneth Cole Productions, Inc. through a license agreement has the rights to use the Bongo trademark for footwear, as well as Gentle Souls for footwear under a trademark. KOPPERS INC: Plaintiffs in "Batts" Voluntarily Dismiss Pa. Case --------------------------------------------------------------- The plaintiffs in the matter "Batts et al v. Koppers, Inc., Case No. 2:07-cv-01381-AJS," voluntarily dismissed their case against Koppers, Inc. The company was named as a defendant in a putative class action lawsuit which sought the establishment of a medical monitoring program and the costs of periodic health screening and diagnostic testing for a class of approximately 7,500 people who have lived or currently live in Somerville, but who have not experienced any diseases. The case was filed before the U.S. District Court for the Western District of Pennsylvania in October 2007. The plaintiffs alleged that they had been exposed to harmful levels of various toxic chemicals from the Somerville wood treatment plant. They sought unspecified damages, equitable relief, attorneys' fees and costs. In November 2007, the plaintiffs voluntarily dismissed the case, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. Koppers Inc. -- http://www.koppers.com/-- is an integrated global provider of carbon compounds and commercial wood treatment products. The Company's products are used in various applications in a range of end markets, including the aluminum, railroad, specialty chemical, utility, rubber and steel industries. The Company operates two principal businesses: Carbon Materials and Chemicals, and Railroad and Utility Products. In the Carbon Materials and Chemicals business, Koppers is engaged in distilling coal tar in North America, Australia, the United Kingdom and Scandinavia. In the Railroad and Utility Products business, the Company provides various products and services to railroads, supplies treated wood poles to electric and telephone utilities and provides products to, and performs various wood treating services for, vineyards, construction and other commercial applications. LOUISIANA: State Faces Lawsuit Over Constitutional Violations ------------------------------------------------------------- The State of Louisiana and its 5th Circuit Court of Appeal are facing a class-action complaint filed before the U.S. District Court for the Eastern District of Louisiana alleging that they unconstitutionally treated state prisoners' pro se claims differently from lawsuits filed with assistance of counsel, CourtHouse News Service reports. Named plaintiff Ted Addison claims that "an en banc meeting was held on February 8, 1994, wherein all presiding judges [agreed] that pro se writ applications would be treated differently from writ applications filed by parties who were represented by retained counsel." From then until 2007, "the judges of the Louisiana Fifth Circuit Court of Appeal and their employees have used a process created to dispose of pro se writ applications denying pro se litigants constitutional review," the complaint states. Pro se writs received by the court were forwarded to former Central Staff Director Jerrold "Jerry" Peterson, it states. Rather than assigning the pro se writs a random panel, as is standard with new filings, the class action claims that Peterson reviewed the applications and assigned them rulings himself, which he selected from a typical rulings list. Mr. Peterson's rulings were written on sticky notes that also contained information "such as a particular pair of alphabetical letters, 'W.D.' which the secretary was trained to interpret as an order to deny the writ, or 'writ denied'." When Mr. Peterson was finished with the writs, they were passed along to a Central Staff secretary, who typed the numbered ruling onto the customary court disposition sheet, the complaint states. The secretary was instructed to look at the typical rulings list to get the language for the writ disposition sheet and to change the ruling to conform to information on the sticky note. Once the writ disposition sheet was completed, Mr. Peterson took it to Judge Edward Dufresne for his signature, the complaint states. It adds, "The pro se writ disposition sheets gave the impression that a three-judge panel had ruled on the case because they had the signature of one judge and the typed names of two other judges." This "ghost" panel of three judges was to give the appearance that each ruling complied with the "Louisiana Uniform Rules of Courts of Appeal, Rules 1-5, Louisiana statutory law and the right to judicial review afforded by the state and federal constitutions." The practice ended in May 2007, when Mr. Peterson retired, the complaint states. The class demands judicial review for constitutional violations. The plaintiff asks the court for: -- a declaratory judgment stating that the defendants violated plaintiffs' rights to Due Process, Judicial Review, Equal Protection and Access to the Courts in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1 Sections 1, 2, 3, 19 and 22 of the Louisiana Constitution of 1974; -- compensatory and punitive monetary damages for the deliberate abuse of authority intended to violate plaintiffs' rights to Due Process, Judicial Review, Equal Protection and Access to the Courts in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1 Sections 1, 2, 3, 19 and 22 of the Louisiana Constitution of 1974; -- attorney fees pursuant to 42 USC Section 1988, plus costs; -- injunctive relief ordering full disclosure by defendants and an investigation of defendants; -- injunctive relief ordering full disclosure by defendants and an investigation of defendants; -- injunctive relief ordering re-review of plaintiffs' claims which were not presented to a three-judge panel; and -- certification of the matter as a class action. The suit is "Ted Addison et al. v. The State of Louisiana et al., Case No. 08-3530," filed in the U.S. District Court for the Eastern District of Louisiana. Representing the plaintiff are: Martin E. Regan, Jr. Karla M. Baker, Esq. Martin E. Regan and Associates, PLC 2125 St. Charles Ave. New Orleans, LA 70130 Phone: 504-522-7260 Fax: 504-522-7507 NUVELO INC: Seeks Dismissal of Calif. Securities Fraud Complaint ---------------------------------------------------------------- Nuvelo, Inc., is seeking the dismissal of a consolidated securities fraud complaint filed in the U.S. District Court for the Northern District of California. The company and certain of its former and current officers and directors were named as defendants in the purported securities class action suit, which was filed on Feb. 9, 2007. The suit alleges violations of the U.S. Securities Exchange Act of 1934 related to the clinical trial results of alfimeprase, which the company announced on Dec. 11, 2006. Specifically, the suit alleges that the company misled investors regarding the efficacy of alfimeprase and the drug's likelihood of success. The suit seeks unspecified damages on behalf of purchasers of company's common stock during the period between Jan. 5, 2006 and Dec. 8, 2006. Three additional lawsuits were filed in the Southern District of New York in February and March 2007. On April 18, 2007, the company filed a motion to transfer all four cases to U.S. District Court for the Northern District of California. The transfer motion was granted by the New York Court in July 2007. Separate motions to consolidate the cases, appoint lead plaintiff, and appoint lead plaintiff's counsel were subsequently filed. A consolidated complaint was then filed in the Northern District of California on Nov. 9, 2007. On Dec. 21, 2007, the company filed a motion to dismiss the plaintiffs' consolidated complaint. The plaintiffs opposed this dismissal motion on Feb. 4, 2008. The company's dismissal motion is still pending, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. Nuvelo, Inc. -- http://www.nuvelo.com/-- is a biopharmaceutical company engaged in the discovery, development and commercialization of drugs for acute cardiovascular disease, cancer and other debilitating medical conditions. The Company's development pipeline includes alfimeprase, a direct-acting fibrinolytic in Phase II development for the treatment of thrombotic-related disorders, including acute ischemic stroke and catheter occlusion (CO); NU172, a direct thrombin inhibitor in Phase I development for use as a short-acting anticoagulant during medical or surgical procedures, and preclinical candidate NU206 for the treatment of chemotherapy/radiation therapy- induced mucositis and inflammatory bowel disease. In addition, Nuvelo has research programs in leukemia therapeutic antibodies and Wnt signaling pathway therapeutics to further expand its pipeline and create additional partnering and licensing opportunities. OIL COS: Sued Over Employee Exposure to Carcinogenic Materials -------------------------------------------------------------- Oil companies and pipe maintenance firms are facing a class- action complaint filed before the Civil District Court for the Parish of Orleans, State of Louisiana, accusing them of exposing workers to carcinogenic and radioactive materials, CourtHouse News Service reports. These oil company defendants are: -- ExxonMobil Corp -- Chevron USA, Inc. -- ConocoPhillips Company -- Marathon Oil Company -- Shell Offshore, Inc. -- Shell Oil Company -- American Oil Company -- BP Exploration & Production, Inc. -- Union Oil Company of California -- Maxus Bulgaria, Inc. -- Placid Oil Company -- SWEPI LP -- Humble Inc. -- Alpha Technical Services Inc. -- Thomas Energy Services, Inc. -- French Jordan, Inc. -- OFS, Inc. -- Intracoastal Tubular Services, Inc. The suit is "Cheryl Aucoin, et al. v. ExxonMobil Corp. et al., Case No. 08-5595," filed before the Civil District Court for the Parish of Orleans, State of Louisiana. Representing the plaintiffs are: Jeremiah A. Sprague, Esq. Timothy J. Falcon, Esq. Falcon Law Firm 5044 Lapalco Boulevard Marrero, LA 70072 Phone: 504-341-1234 Fax: 504-341-8115 STEC INC: Settles Calif. Consumer Litigation Over Hard Drives ------------------------------------------------------------- STEC, Inc., settled a purported nationwide class action suit filed before the Superior Court for the State of California, County of Los Angeles, over its hard drive products, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit alleges that the company's description of the capacity of its hard drives constitutes fraudulent, unfair, deceptive and false advertising under California Business and Professions Code Sections 17200 and 17500 and violates the California Consumers Legal Remedies Act. Filed by Boris Brand on Oct. 6, 2006, suit also alleges that the company's description of the storage capacity on its hard drives uses a decimal basis for measuring gigabytes which results in a lower storage capacity when the hard drives are incorporated into an operating system that uses a binary gigabyte basis for measurement. The plaintiff seeks restitution, disgorgement, compensatory damages and injunctive relief and attorneys' fees. Reaching a tentative settlement, the company has agreed to provide qualifying class members the means to claim a rebate of 6% of the purchase price of the storage device for a period of three months from the announcement of the program. In addition, the company will pay a portion of the plaintiff's legal fees as determined by an arbitration proceeding which concluded on March 10, 2008. The terms of the settlement remain subject to court approval. STEC, Inc., -- http://www.stec-inc.com/-- formerly SimpleTech, Inc. designs, develops, manufactures and markets custom memory solutions based on Flash memory and dynamic random access memory (DRAM) technologies. STRATEGIC ENERGY: Faces Pa. Litigation Over Electricity Service --------------------------------------------------------------- Strategic Energy, L.L.C. -- a business segment of Great Plains Energy, Inc. -- is facing a purported class action lawsuit in Pennsylvania, entitled "Tech Met, Inc., et al. v. Strategic Energy," according to Great Plains' May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. On Nov. 21, 2005, a class action complaint for breach of contract was filed against Strategic Energy in the Court of Common Pleas of Allegheny County, Pennsylvania. The five named plaintiffs in the complaint purportedly represent the interests of customers in Pennsylvania who entered into Power Supply Coordination Service Agreements for electricity service. The complaint seeks monetary damages, attorney fees and costs and a declaration that the customers may terminate their Agreements with Strategic Energy. In response to Strategic Energy's preliminary objections, the plaintiffs filed an amended complaint. After additional objections from Strategic Energy, the plaintiffs agreed to file a second amended complaint. The company reporter no further development in the matter in its regulatory SEC filing. Great Plains Energy, Inc. -- http://www.greatplainsenergy.com/ -- is a public utility holding company and does not own or operate any significant assets other than the stock of its subsidiaries. Great Plains Energy has four direct subsidiaries with operations: Kansas City Power & Light Company, KLT Inc., Innovative Energy Consultants Inc. and Great Plains Energy Services Incorporated. KCP&L's sole reportable business segment is KCP&L. Strategic Energy, L.L.C. is the subsidiary of KLT Energy Services. Great Plains Energy, through its direct and indirect subsidiaries, has two business segments: KCP&L and Strategic Energy. KLT, Inc. is an intermediate holding company that primarily holds, directly or indirectly, interests in Strategic Energy, which provides retail electricity supply services in several electricity markets offering retail choice, and holds investments in housing limited partnerships. TD AMERITRADE: Settlement Discussions Ongoing in "Zigler" Matter ---------------------------------------------------------------- The parties in a purported class action lawsuit alleging that TD Ameritrade, Inc., illegally sold e-mail addresses to spammers are engaging in settlement discussions in an effort to resolve the case, which is currently pending with the U.S. District Court for the Northern District of California. The suit was filed by Brad Zigler on Sept. 26, 2007. The factual allegations and the relief sought are substantially the same as those in the matter, entitled, "Elvey v. TD Ameritrade, Inc., Case No. 3:07-cv-02852-BZ." In general, "Elvey" alleges that TD Ameritrade provides spammers with its accountholders' private e-mail addresses, which sent and continue to send unsolicited commercial e-mail (particularly e-mail promoting certain penny stocks or stock spam) to these private e-mail addresses (Class Action Reporter, Jan. 7, 2008). The exposure of its accountholders' e-mail addresses allegedly violated and breached TD Ameritrade's privacy policy. Mr. Zigler's complaint was brought on behalf of a purported nationwide class of accountholders. The parties in the suit are engaged in settlement discussions, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit is "Zigler v. TD Ameritrade, Inc., Case No. 3:07-cv- 04903-MJJ," filed in the U.S. District Court for the Northern District of California, Judge Martin J. Jenkins presiding. Representing the plaintiffs is: David Christopher Parisi, Esq. (dcparisi@msn.com) Parisi & Havens LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Phone: 818-990-1299 Fax: 818-501-7852 Representing the defendants is: Shirish Gupta, Esq. (sgupta@mayerbrown.com) Mayer Brown LLP Two Palo Alto Square, Suite 300, 3000 El Camino Real Palo Alto, CA 94306-2112 Phone: 650-331-2025 Fax: 650-331-2060 TD AMERITRADE: Settlement Discussions Ongoing in "Elvey" Matter --------------------------------------------------------------- The parties in a purported class action lawsuit accusing TD Ameritrade, Inc., of illegally selling e-mail addresses to spammers are engaging in settlement discussions in a bid to resolve the matter, which is pending with the U.S. District Court for the Northern District of California. Named plaintiff Matthew Elvey alleges that TD Ameritrade provides spammers with its accountholders' private e-mail addresses, sending unsolicited commercial e-mail (particularly e-mail promoting certain penny stocks or stock spam) to these private e-mail addresses (Class Action Reporter, Jan. 7, 2008). The exposure of its accountholders' e-mail addresses allegedly violated and breached TD Ameritrade's privacy policy. Mr. Elvey brings the class action on behalf of two classes: -- TD AmeriTrade accountholders residing in California (California Resident Class); and -- Internet access services which received spam sent to TD AmeriTrade accountholder's e-mail addresses which is traceable to TD AmeriTrade's breach of its privacy policy (CAN SPAM Class). The complaint alleges that TD AmeriTrade's provision of its accountholder's e-mail addresses not only facilitated the transmission of spam to its accountholder's e-mail addresses, it did so in violation of express representations in it privacy policy that it would not share its accountholder's personal information with third parties. On behalf of the California Resident Class, Mr. Elvey seeks injunctive relief under California's Consumer Legal Remedies Act, equitable relief under California's Unfair Competition Law, and damages and equitable relief for breach of fiduciary duty. Further, TD AmeriTrade's provision of its accountholder's emails facilitated and initiated the transmission of various stock spam to their Internet facilities, in violation of the CAN SPAM Act of 2003. The plaintiff wants the court to rule on: (a) whether TD AmeriTrade expose or provided e-mail addresses of the California Resident Class members to spammers; (b) whether such exposure violated TD AmeriTrade's Privacy Statement; (c) whether such exposure was intentional or unintentional on TD AmeriTrade's part; (d) whether TD AmeriTrade's Privacy Statement represented that TD AmeriTrade's services have characteristics, uses and benefits, or quantities which they do not have, in violation of Cal. Civ. Code Section 1770(a)(14); (e) whether TD AmeriTrade's Privacy Statement represented that TD AmeriTrade's services confer or involves rights, remedies, obligations which they do not confer or involve, in violation of Cal. Bus. & Prof. Code Section 17200; (f) whether, in light of the exposure and provision of California Resident Class members' e-mail addresses to spammers, TD AmeriTrade's Privacy Statement was deceptive under Cal. Bus. & Prof. Code Section 17200; (g) whether TD AmeriTrade owed California Class members fiduciary duty as their broker; (h) whether TD AmeriTrade owed the California class members a fiduciary duty by dint of its collection of personal information under the Privacy Statement; (i) whether TD AmeriTrade breached such fiduciary duties through the violation of its Privacy Statement; (j) whether TD AmeriTrade failed to fully and accurately disclose the exposure and provision of California Resident Class members' e-mail addresses to spammers and any underlying security breach; (k) whether, in light of Cal. Civ. Code Section 1798.82, TD AmeriTrade's failure to disclose any security breach violated its fiduciary duties to the California Resident Class members; (l) whether, in light of its fiduciary duties, TD AmeriTrade's failure to disclose any security brach violated its fiduciary duties to the California Resident Class members; (m) whether TD AmeriTrade violated the CLRA; (n) whether TD AmeriTrade violated the UCL; and (o) whether plaintiff and the California Resident Class are entitled to relief, and the nature of such relief. The plaintiff prays that court enter judgment: -- certifying the action as a class action and designating plaintiff and his counsel as representatives of the California Resident Class, the CAN SPAM Class; -- with respect to Counts I, II, and III, providing equitable relief for the California Resident Class, including an order for accounting, an order enjoining the misconduct alleged, restitution of property gained by this misconduct and disgorgement of profits obtained while the breach of fiduciary duty was on going, such as commissions on trades; -- with respect to Count III, award of damages in an amount to be determined at trial for the California Resident Class; -- with respect to Count IV, providing an injunction against further violations of CAN SPAM, statutory damages for each Traced Spam to each CAN SPAM class member, and reasonable costs, including reasonable attorneys' fees under the CAN SPAM Act, for the CAN SPAM Class; -- awarding pre- and post-judgment interest; and -- granting such other and further relief as the court may deem just and proper. On July 10, 2007, the plaintiff filed a motion for preliminary injunction. On July 18, 2007, TDA, Inc. filed a motion to dismiss the plaintiff's amended complaint, which request the plaintiff has opposed. Currently, the parties are engaged in settlement discussions, according to the company's May 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2008. The suit is "Elvey v. TD Ameritrade, Inc., Case No. 3:07-cv- 02852-BZ," filed before the U.S. District Court for the Northern District of California, Judge Bernard Zimmerman presiding. Representing the plaintiff are: Alan Himmelfarb, Esq. Law Offices of Himmelfarb & Himmelfarb 2757 Leonis Boulevard Los Angeles, CA 90058 Phone: 323-585-8696 Fax: 323-585-8198 e-mail: Consumerlaw1@earthlink.net Scott A. Kamber, Esq. (skamber@kolaw.com) Kamber & Associates, LLC 11 Broadway, 22nd Floor New York, NY 10004 Phone: 212-920-3072 Fax: 212-202-6364 - and - Ethan Mark Preston, Esq. (preston@kamberedelson.com) KamberEdelson, LLC 11 Broadway, 22nd Floor New York, NY 10004 Phone: 212-920-3072 Fax: 212-920-xxxx UNITED GENERAL: Faces Texas Lawsuit Over Refinancing Fees --------------------------------------------------------- United General Title Insurance Co. is facing a class-action complaint filed before the U.S. District Court for the Western District of Texas alleging that the company charges more for title insurance on refinancings than is permitted by state law, CourtHouse News Service reports. This action is filed on behalf of all borrowers who refinanced their home mortgages in Texas and were charged lender title insurance premiums by Defendant that exceeded the discounted reissue rates mandated by Texas law. The class includes all persons who, within seven years after the date of their existing mortgage on their real property in Texas, refinanced or otherwise replaced their existing mortgage and were charged a premium for a new lender title insurance policy issued by Defendant United General Title Insurance Company that did not include the refinance credit mandated by Texas law. The plaintiffs seek relief under the Real Estate Settlement Procedures Act, 12 USC 5 2607 (b). Accordingly, pursuant to 28 U.S.C. g 1331, this Court has federal question subject matter jurisdiction over this dispute, and has supplemental jurisdiction over the plaintiffs' other claims pursuant to 28 U.S.C. Section 1367. The plaintiffs want the court to rule on: (1) whether the plaintiffs refinanced an existing mortgage within seven years after the closing of the existing mortgage; (2) whether the plaintiffs qualify for mandatory reissue discount in connection with the reissue lender title policy; (3) the dollar amount of the reissue discount required to be applied to the plaintiffs' transaction; (4) whether the defendant split the unearned discounts with its agents; (5) whether the defendant's splitting of the unearned premiums with title agents violated Section 8(b) of RESPA; (6) whether the defendant breached other legal duties to class members failing to give them the discounted reissue premium rates mandated Texas law and retaining those unearned premiums; (7) whether the plaintiffs are entitled to recover three times the amount charged for the reissue lender title insurance policies, pursuant to 12 U.S. C. g 2607(d)(2); and (8) what declaratory or injunctive relief should appropriately be awarded to the Class. The suit is "Archie and Meiling Davis et al. v. United General Title Insurance Company, Case No. A08CA 398LY," filed before the U.S. District Court for the Western District of Texas. WEST VIRGINIA UNIVERSITY: Suit Over Heather Bresch Scandal Looms ---------------------------------------------------------------- Charleston law firm Freeman and Chiartas is looking into the possibility of filing a class-action lawsuit after the Heather Bresch Degree scandal, Amanda Barren writes for WSAZ.com. The WSAZ report recalls that an independent panel determined that the Governor's Daughter, Heather Bresch, did not earn the degree she received. As reported by the Associated Press on May 6, 2008, the independent panel concluded on April 23 that administrators and educators at West Virginia University last fall retroactively gave Governor Joe Manchin's daughter, Heather Bresch, an executive master of business administration degree that the panel said she did not earn. The AP report noted that Ms. Bresch is now chief operating officer of generic drug maker Mylan Inc., which WVU President Mike Garrison, a longtime friend of hers, once represented as a lobbyist. Mylan's chairman, Milan "Mike" Puskar, has given tens of millions to the university, which named its football stadium after him. Greg Chiartas, Esq., a WVU Law graduate himself, told WSAZ.com that his law firm received three phone calls about possibly filing a lawsuit. So they put an ad in the paper to see how much interest was really out there. The West Virginia Record notes that Mr. Chiartas said he is receiving a dozen calls a day, as well as several e-mails from parents, students and faculty interested in the suit or who are concerned about the validity of their degrees. "One person for example was looking to go to grad school and somebody in the admissions office made a snide remark about the degree from WVU," Mr. Chiartas told WSAZ.com. He added that this is not about money but about restoring integrity to his alma matter. "Here is an offer I will make it right here. We've decided if this is a class-action lawsuit, if the University -- the Board of Governors -- will take the appropriate measures and replaces Mike Garrison, we will donate our fee, whatever it is, to the WVU Foundation." WSAZ.com says it will keep checking to see if a class-action suit is filed. Mr. Chiatras told West Virginia Record that they are going to wait until June 6 when Mr. Garrison releases his own report and the Board meets again to determine whether to possibly file a suit. WVU had no comment on the ads or the potential lawsuit, West Virginia Record says. New Securities Fraud Cases DOWNEY FINANCIAL: Charles Johnson Files Calif. Securities Suit -------------------------------------------------------------- Charles H. Johnson & Associates commenced a class action lawsuit before the United States District Court for the Central District of California on behalf of purchasers of Downey Financial Corporation publicly traded securities during the period October 16, 2006, through March 14, 2008. The complaint alleges that Downey and certain of its officers and directors violated federal securities laws by issuing materially false statements regarding the Company's financial results. Specifically, the complaint alleges that the defendants concealed the following: 1) Downey's portfolio of Option ARMs contained millions of dollars worth of impaired and risky securities, many of which were backed by subprime mortgage loans; 2) prior to the Class Period, Downey had seen Countrywide's growth and had started to get more aggressive in acquiring loans from brokers such that the loans were extremely risky; 3) defendants failed to properly account for highly leveraged loans; 4) Downey had very little real underwriting, which led to large numbers of bad loans; and 5) Downey had not adequately reserved for Option ARM loans, which provided that during the initial term of the loan borrowers could pay only as much as they desired with any underpayment being added to the loan balance. On October 10, 2007, Downey announced that it expected to incur an operating loss for the 2007 third quarter due to the continued weakening in the housing market. Then, on March 17, 2008, Downey released its monthly selected financial results for the 13 months ended February 29, 2008, which showed a significant increase in non-performing assets to almost 11% of total assets, up from 1.2% in May 2007. Downey had to restructure debt for many borrowers to avoid having their loans fail. On this news, Downey's stock dropped to close at $18.82 per share on March 17, 2008. Interested parties may move the court no later than July 15, 2008, for lead plaintiff appointment. For more information, contact: Neal Eisenbraun, Esq. (cjohnsonlaw@gmail.com) Charles H. Johnson & Associates 2599 Mississippi Street New Brighton, MN 55112 Phone: 651-633-5685 TRM CORP: Brower Piven Files Securities Fraud Lawsuit in Oregon --------------------------------------------------------------- Brower Piven, A Professional Corporation, disclosed that a class action lawsuit has been commenced in the United States District Court for the for the District of Oregon on behalf of purchasers of TRM Corporation (OTCBB: TRMM) common stock during the period between March 16, 2006, and May 22, 2007. The complaint alleges that, during the Class Period, the Company, and certain of its officers and directors, violated federal securities laws by withholding material facts from the investing public, including: -- that the Company's financial results were artificially inflated due to the failure to timely write down certain materially overvalued assets; -- that the Company lacked adequate internal controls and procedures necessary to ascertain its true financial condition and worth; and that the Company's ability to continue its operations and remain a going-concern was in serious doubt. After the Company provided investors with details about the progress of its restructuring plan and announced new management positions, the price of Company shares continued their decline. Interested parties may move the court no later than July 22, 2008, for lead plaintiff appointment. For more information, contact: Brower Piven, A Professional Corporation The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, Maryland 21202 Phone: 410-332-0030 e-mail: hoffman@browerpiven.com Web site: http://www.browerpiven.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 * * *