/raid1/www/Hosts/bankrupt/CAR_Public/080918.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, September 18, 2008, Vol. 10, No. 186
Headlines
ACCUITY: Accuses Innocent People of Being Terrorists, Suit Says
AMERIGAS INC: Lawsuit Over Propane Leak Still Pending in W.Va.
BANK OF AMERICA: Reaches $4.5-Billion Auction-Rate Settlement
BEAZER HOMES: RESPA Violations Lawsuit Still Pending in N.C.
BEAZER HOMES: Faces California Lawsuit Over RESPA Violations
BEAZER HOMES: N.C. Unfair Trade Practices Lawsuit Now Concluded
BEAZER HOMES: Georgia Court Consolidates ERISA Violations Suits
BEAZER HOMES: Consolidated Securities Fraud suit Pending in Ga.
BELL EXPRESSVU: Judge Says $25 Late Payment Fee is "Illegal"
BEST BUY CO: Cheats On Warranties, Michigan Lawsuit Alleges
BOSTON SCIENTIFIC: TAXUS Claims Dismissal in Mass. Suit Reversed
BOSTON SCIENTIFIC: No Trial Date Set for Mass. ERISA Lawsuit
CAPITAL ONE: Discovery Ongoing in N.Y. Interchange Fees Lawsuits
CAPITAL ONE: Plaintiffs Appeal Dismissal of Late Fees Lawsuit
CAPTARIS INC: No Appeal Filed Over Illinois TCPA Lawsuit Ruling
DEAN FOODS: Consolidated Antitrust Suit Still Pending in Tenn.
GENERAL MOTORS: Calif. Suit Says GTOs Have Bad Suspension System
HOME DEPOT: Cheats On Flooring Service, California Suit Alleges
IMMIGRATION DEPT. (CANADA): Sued for Making Profit on Visas
INFINITY RAZOR: Faces California Lawsuit Over False Advertising
MEMC ELECTRONICS: Undisclosed Facilities Problems Prompt Lawsuit
MUNICIPAL MORTGAGE: Faces N.Y. Suit Over Inflated Share Price
NATIONAL CITY: Securities Fraud Lawsuit Still Pending in Ohio
NATIONAL CITY: Faces Consolidated ERISA Violations Suit in Ohio
NATIONAL CITY: Plaintiffs Won't Drop Pre-2004 Claims in MDL-1720
NATIONAL CITY: Securities Violations Suit Still Pending in Ohio
NVIDIA CORP: California Lawsuit Alleges Graphics Card Breaks
OLD DOMINION: Wants Antitrust Complaint in Georgia Thrown Out
ORACLE CORP: Executives Withheld Evidence in Lawsuit, Court Says
PEOPLESUPPORT INC: Faces Calif. Suit Over Essar Services Merger
SMITH BARNEY: Sued for Improperly Recommending Fannie Mae
STEEL MAKERS: Steel Fabricator Commences Illinois Antitrust Suit
TRIBUNE COMPANY: LA Times Reporters Sue Over Reckless Takeover
U.S. TIRE: 2006 Nitro Tire Fire Suit Settlement Gets Interim OK
VALASSIS COMMS: Court Denies Motion to Dismiss Securities Suit
WELLS FARGO: Faces Calif. Lawsuit Over Flood Insurance Coverage
WEYERHAEUSER CO: Pa. Court Yet to Approve OSB Suit Settlement
WEYERHAEUSER CO: Plans to Appeal $84M Judgment in Alder Lawsuit
New Securities Fraud Cases
BANKUNITED FINANCIAL: Coughlin Stoia Files Fla. Securities Suit
NEXTWAVE WIRELESS: Coughlin Stoia Files Securities Fraud Suit
NOVATEL WIRELESS: Glancy Binkow Files Calif. Securities Lawsuit
NVIDIA CORP: Kantrowitz Goldhamer Files Securities Fraud Lawsuit
*********
ACCUITY: Accuses Innocent People of Being Terrorists, Suit Says
---------------------------------------------------------------
Accuity -- formerly Thomson Financial Publishing -- and
Sourcemedia Inc. are facing a class-action complaint filed in
the U.S. District Court for the Northern District of Illinois
alleging the companies sell a private database that accuses
innocent people of being terrorists, narcotics traffickers and
money launderers, damaging their job chances, their credit and
their lives, CourtHouse News Service reports.
This is a consumer class action suit based on the defendants'
widespread violations of the Fair Credit Reporting Act, 15
U.S.C. Sections 1681-1681x.
"Defendants are Investcorp companies, an investment entity and
hedge fund incorporated in the Kingdom of Bahrain," the
complaint states. "They have taken it upon themselves to
supposedly identify -- for a fee -- terrorists, narcotics
traffickers and money launderers with whom American businesses
must have no dealing. Defendants assemble and maintain a
private database of information purportedly about persons on
certain U.S. government watch lists, including the list of
suspected terrorists, narcotics traffickers and money launderers
promulgated by the U.S. Treasury Department's Office of Foreign
Assets Control (OFAC list). Defendants regularly sell their own
reports purportedly concerning such persons from their private
database to third parties. The reports are used and are
expected to be used in connection with ordinary consumer credit,
employment, insurance and other transactions. Persons whom
defendants identify in their reports as being on the OFAC list
are understood to be legally ineligible to conduct any business
in the United States, cannot be employed, cannot receive any
insurance or extension of credit, and may even be subject to
arrest. Notwithstanding the fact that defendants are in the
business of regularly selling highly critical character and
credit information in their reports to be used in daily consumer
transactions within the United States, defendants fail to assure
the accuracy of this information or to comply with the FCRA in
any respect. As a result, consumers such as plaintiff Sandra
Jean Cortez, who are not actually on the OFAC list or any
government watch list, are routinely misidentified in
defendants' reports as suspected terrorists, money launderers
and narcotics traffickers, and thus are considered ineligible
for credit or for conducting any business in the United States.
Also sued to defendants' noncompliance with the FCRA, innocent
consumers wrongfully identified as being on the OFAC list have
no means of discovering, disputing or correcting the erroneous
information defendants are selling about them."
Lead plaintiff Sandra Jean Cortez says the defendants
misidentified her as a Colombian drug trafficker named Sandra
Cortes Quintero, who is more than 30 years older than her. She
says the false report prevented her from buying a car, from
renting an apartment, and damaged her reputation. She demands
punitive damages.
The plaintiff brings this action on behalf of all persons
residing in the United States of America and its Territories
named Sandra or Sandy Cortez, or any version thereof, who were
misidentified by the defendants as the OFAC list narcotics
trafficker Sandra Cortes Quintero in any report sold by the
defendants to Trans Union, LLC, or any other consumer reporting
agency, creditor, employer, or insurer during the period
beginning five years prior to the filing of the Complaint and
continuing through the date of the resolution of this case.
The plaintiff seeks:
A. a determination that this action may proceed and be
maintained as a class action;
B. statutory damages for willful violations of the FCRA;
C. actual damages;
D. punitive damages;
E. costs and reasonable attorneys fees pursuant to
sections 1681n and 1681o of the FCRA;
F. an order determining that Defendants are covered by the
FCRA and directing Defendants to comply with all
statutory requirements; and
G. such other and further relief as may be necessary, just
and proper.
The suit is "Sandra Jean Cortez et al. v. Accuity et al., Case
No. 05CV5250," filed in the U.S. District Court for the Northern
District of Illinois.
Representing the plaintiff are:
Larry P. Smith, Esq.
Larry P. Smith & Associates, LTD.
120 W. Madison, 10th Floor
Chicago IL 60602
Phone: 312-222-9028
James A. Francis, Esq.
John Soumilas
Francis & Mailman, P.C.
Land Title Building, 19th Floor
100 South Broad Street
Philadelphia, PA 19110
Phone: 215-735-8600
- and -
David A. Searles, Esq.
Donovan Searles, LLC
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Phone: 215-732-6067
AMERIGAS INC: Lawsuit Over Propane Leak Still Pending in W.Va.
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AmeriGas, Inc., continues to face a purported class-action suit
in the Circuit Court of Monongalia County, West Virginia, over a
fire that resulted from a propane leak.
In July 2001, the suit, "Swiger, et al. v. UGI/AmeriGas, Inc. et
al., Civil Action No. 98-C-298," was filed against the company.
The plaintiffs -- Samuel and Brenda Swiger, and their son --
sustained personal injuries and property damage as a result of a
fire that ignited when propane leaked from an underground line.
The suit sought to recover an unspecified amount of compensatory
and punitive damages and attorney's fees, for the plaintiffs and
on behalf of persons in West Virginia for whom the defendants
had installed propane gas lines. The defendants allegedly
failed to install underground propane lines at depths required
by applicable safety standards.
In 2003, the defendants settled the individual personal injury
and property damage claims of the Swigers. Class counsel has
indicated that the class is seeking compensatory damages in
excess of $12 million plus punitive damages, civil penalties,
and attorneys' fees.
In 2004, the court granted the plaintiffs' motion to include
customers acquired from Columbia Propane in August 2001 as
additional potential class members, and the plaintiffs amended
their complaint to name additional parties pursuant to such
ruling.
The class counsel has indicated that the new class is seeking
compensatory damages plus punitive damages, civil penalties and
attorneys' fees.
AmeriGas Partners, L.P. reported no further development
regarding the matter in its Aug. 8, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
AmeriGas Partners, L.P. -- http://www.amerigas.com/-- is a
retail propane distributor in the U.S. As of Sept. 30, 2006,
the Company served approximately 1.3 million residential,
commercial, industrial, agricultural and motor fuel customers
from approximately 600 district locations in 46 states.
BANK OF AMERICA: Reaches $4.5-Billion Auction-Rate Settlement
-------------------------------------------------------------
In a settlement made public last week, Bank of America
Securities LLC will buy back $4.5 billion in auction-rate
securities from customers who purchased the flawed investment
instruments, The Am Law Daily reports.
According to Am Law, the deal, which was announced by
Massachusetts secretary of state William Galvin, settles another
in a series of investigations into various financial services
firms' marketing of what had been touted as a safe investment
bet but proved virtually useless when the market for them
collapsed in February.
The report points out that the settlement's terms call for BofA
to buy the securities back from retail and small business
customers holding up to $10 million worth of these securities
and from charitable organizations holding up to $25 million
worth. The deal follows an earlier deal struck by the bank
three weeks ago in which it agreed to buy back $43 million of
the securities from state and municipal agencies in
Massachusetts.
Mr. Galvin accused the bank of "triggering a flood of complaints
from investors who were shocked to find that they could not
withdraw money from their accounts."
The bank is to begin repurchasing the securities at face value
on October 1, 2008. The bank will also compensate customers who
sold the securities at a loss.
Representing BofA were Howard Heiss, Esq., and Elizabeth Baird,
Esq., partners at O'Melveny & Myers.
Am Law relates that, specifically, the recent BofA settlement
follows a slew of auction-rate deals reached in August between
regulators in other states and Citigroup Inc., UBS AG, JPMorgan
Chase & Co., Merrill Lynch & Co., Goldman Sachs Group Inc.,
Deutsche Bank AG, and Wachovia Corp. Those settlements were
worth a combined $50 billion.
While the buyback resolves the Massachusetts securities
division's investigation, it does not end investigations in
other states of BofA's auction-rate securities practices, the
report clarifies.
According to Am Law, a class action suit filed against the bank
in May in the Northern District of California is also pending.
O'Melveny lawyers Robert Stern, Esq., and Jonathan Rosenberg,
Esq. are representing the bank in that action.
Daniel Girard, Esq., who is the lead plaintiffs counsel in the
class action suit, stresses out that the Massachusetts
settlement did not resolve his clients' claims against BofA.
"We think it's a positive development," Mr. Girard, a partner in
Girard Gibbs in San Francisco, however, tells Am Law with regard
to the Massachusetts settlement. Mr. Girard says he is just
concerned that the deal does not compensate bond owners for the
lost interest on the bonds. He adds that several buyers who
purchased securities underwritten but not sold by BofA would not
be compensated, plus, those who purchased the bank's securities
from regional brokers were left out.
BEAZER HOMES: RESPA Violations Lawsuit Still Pending in N.C.
------------------------------------------------------------
Beazer Homes USA, Inc., and subsidiaries Beazer Homes Corp. and
Beazer Mortgage Corp. continue to face a purported class-action
lawsuit alleging violations of Real Estate Settlement Practices
Act and North Carolina Gen. Stat. Section 75-1.1.
The putative class-action suit was filed on April 8, 2008,
before the U.S. District Court for the Middle District of North
Carolina. The complaint alleges that Beazer violated the Real
Estate Settlement Practices Act and North Carolina Gen. Stat.
Section 75-1.1 by:
-- improperly requiring homebuyers to use Beazer-owned
mortgage and settlement services as part of a down
payment assistance program, and
-- illegally increasing the cost of homes and settlement
services sold by Beazer Homes Corp.
The plaintiff also asserts that Beazer was unjustly enriched by
these alleged actions.
The purported class consists of all residents of North Carolina
who purchased a home from Beazer, using mortgage financing
provided by and through Beazer that included seller-funded down
payment assistance, between Jan. 1, 2000, and Oct. 11, 2007.
The complaint demands an unspecified amount of damages, various
forms of equitable relief, treble damages, attorneys' fees and
litigation expenses.
The defendants moved to dismiss the complaint on June 4, 2008.
On July 25, 2008, in lieu of a response to the dismissal motion,
the plaintiff filed an amended complaint, according to the
company's Aug. 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The company reported no further development regarding the case.
The suit is "Davis v. Beazer Homes U.S.A. Inc., et al., Case No.
1:08-cv-00247-UA-PTS," filed in the U.S. District Court for the
Middle District of North Carolina.
Representing the plaintiffs is:
Daniel Kent Bryson, Esq. (akf@lewis-roberts.com)
Lewis & Roberts, PLLC
POB 17529
Raleigh, NV 27619
Phone: 919-981-0191
Fax: 919-981-0431
Representing the defendants is:
Kenneth D. Bell, Esq. (kbell@hunton.com)
Hunton & Williams
Bank of America Plaza
101 S. Tryon St., Ste. 3500
Charlotte, NC 28280
Phone: 704-378-4834
BEAZER HOMES: Faces California Lawsuit Over RESPA Violations
------------------------------------------------------------
Beazer Homes Holdings Corp., Beazer Homes USA Inc., and Security
Title Insurance Co. are facing a purported class-action suit
alleging violations of Real Estate Settlement Practices Act,
according to the company's Aug. 8, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
The suit was filed on March 12, 2008, in the Superior Court of
the State of California, County of Placer. The complaint was
amended on June 2, 2008.
The purported class is defined as all persons who purchased a
home from the defendants or their affiliates, with the
assistance of a federally related mortgage loan, from March 25,
1999, to the present where Security Title Insurance Co. received
any money as a reinsurer of the transaction.
The complaint alleges that the defendants violated RESPA and
asserts claims under a number of state statutes alleging that
the defendants engaged in a uniform and systematic practice of
giving and accepting fees and kickbacks to affiliated businesses
including affiliated and recommended title insurance companies.
It also alleges a number of common law claims.
The plaintiffs seek an unspecified amount of damages under
RESPA, unspecified statutory, compensatory and punitive damages
and injunctive and declaratory relief, as well as attorneys'
fees and costs. The defendants removed the action to federal
court.
Beazer Homes USA, Inc. -- http://www.beazer.com/-- designs,
sells and builds primarily single-family homes in over 45
markets located in Arizona, California, Colorado, Delaware,
Florida, Georgia, Indiana, Kentucky, Maryland, Nevada, New
Jersey, New Mexico, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Texas, Virginia and
West Virginia. Through Beazer Mortgage Corp., the Company
offered mortgage origination services to its homebuyers. On
Feb. 1, 2008, Beazer effectively exited the mortgage origination
business. In addition, it offers title insurance services to
its homebuyers in many of the Company's markets. Beazer is a
diversified homebuilder with operations in 21 states.
BEAZER HOMES: N.C. Unfair Trade Practices Lawsuit Now Concluded
---------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit dismissed an
appeal in a putative homeowner class-action lawsuit that was
filed against Beazer Homes Corp. and Beazer Mortgage Corp.,
which are both subsidiaries of Beazer Homes USA, Inc.
The putative class-action lawsuit was filed on March 23, 2007,
against the company's subsidiaries before the General Court of
Justice, Superior Court Division, County of Mecklenburg, North
Carolina. The case was later removed to the U.S. District Court
for the Western District of North Carolina.
The purported class is defined as North Carolina residents who
purchased homes in subdivisions in North Carolina containing
homes constructed by the defendants where the foreclosure rate
is allegedly significantly higher than the state-wide average.
The complaint alleged that the defendants utilized unfair trade
practices to allow low-income purchasers to qualify for loans
they allegedly could not afford, resulting in foreclosures that
allegedly diminished the plaintiffs' property values.
The plaintiffs sought an unspecified amount of compensatory
damages and also requested that any damage award be trebled.
On April 25, 2008, the District Court granted the defendants'
motion to dismiss and threw out all causes of action with
prejudice.
The plaintiffs appealed the dismissal to the U.S. Court of
Appeals for the Fourth Circuit. On July 21, 2008, the
plaintiffs filed a consent motion to dismiss the appeal with
prejudice, and the Court of Appeals entered an order of
dismissal and mandate the same day. This case is now concluded,
according to the company's Aug. 8, 2008 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2008.
Beazer Homes USA, Inc. -- http://www.beazer.com/-- designs,
sells and builds primarily single-family homes in over 45
markets located in Arizona, California, Colorado, Delaware,
Florida, Georgia, Indiana, Kentucky, Maryland, Nevada, New
Jersey, New Mexico, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Texas, Virginia and
West Virginia. Through Beazer Mortgage Corp., the Company
offered mortgage origination services to its homebuyers. On
Feb. 1, 2008, Beazer effectively exited the mortgage origination
business. In addition, it offers title insurance services to
its homebuyers in many of the Company's markets. Beazer is a
diversified homebuilder with operations in 21 states.
BEAZER HOMES: Georgia Court Consolidates ERISA Violations Suits
---------------------------------------------------------------
The U.S. District Court for the Northern District of Georgia
consolidated several purported class-action lawsuits filed
against Beazer Homes USA, Inc., alleging violations of the
Employee Retirement Income Security Act of 1974.
On April 30, 2007, a putative class-action complaint was filed
on behalf of a purported class consisting of present and former
participants and beneficiaries of the Beazer Homes 401(k) Plan,
naming Beazer Homes, certain of its current and former officers
and directors and the Benefits Administration Committee as
defendants. The complaint was filed before the U.S. District
Court for the Northern District of Georgia.
The suit alleges breach of fiduciary duties, including those set
forth in ERISA as a result of the investment of retirement
monies held by the 401(k) Plan in common stock of Beazer Homes
at a time when participants were allegedly not provided timely,
accurate and complete information concerning Beazer Homes.
Four additional lawsuits were subsequently filed in May, June
and July 2007 in the U.S. District Court for the Northern
District of Georgia, making similar allegations.
The court consolidated all five lawsuits and, on June 27, 2008,
the plaintiffs filed a consolidated amended complaint.
The company reported no further development regarding the matter
in its Aug. 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The suit is "In re: Beazer Homes USA, Inc. ERISA Litigation,
Case No. 1:07-cv-00952-RWS," filed in the U.S. District Court
for the Northern District of Georgia, Judge Richard W. Story,
presiding.
Representing the plaintiffs are:
Katherine B. Bornstein, Esq. (kbornstein@sbtklaw.com)
Schiffrin, Barroway, Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-676-7706
- and -
Corey Daniel Holzer, Esq. (cholzer@holzerlaw.com)
Holzer, Holzer & Fistel, LLC
1117 Perimeter Center West
Suite E-107
Atlanta, GA 30338
Phone: 770-392-0090
Representing the defendants are:
Richard W. Clary, Esq. (rclary@cravath.com)
Cravath Swaine & Moore
825 Eighth Avenue
Worldwide Plaza
New York, NY 10019-7475
Phone: 212-474-1227
- and -
John J. Dalton, Esq. (john.dalton@troutmansanders.com)
Troutman Sanders, LLP
Suite 5200, Bank of America Plaza
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
Phone: 404-885-3000
BEAZER HOMES: Consolidated Securities Fraud suit Pending in Ga.
---------------------------------------------------------------
Beazer Homes USA, Inc., and certain of its current and former
executive officers are facing a consolidated securities fraud
class-action lawsuit filed in the U.S. District Court for the
Northern District of Georgia, according to the company's Aug. 8,
2008 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
Beazer Homes and certain of its current and former executive
officers are named as defendants in a putative securities class
action suit filed on March 29, 2007, before the U.S. District
Court for the Northern District of Georgia.
The plaintiffs filed this action on behalf of a purported class
of purchasers of Beazer Homes' common stock between July 27,
2006, and March 27, 2007.
The complaint alleges that the defendants violated Sections
10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder by issuing materially false
and misleading statements regarding the company's business and
prospects because the company did not disclose facts related to
alleged improper lending practices in our mortgage origination
business.
The plaintiffs seek an unspecified amount of compensatory
damages.
Two additional lawsuits were subsequently filed on May 18 and
21, 2007, before the same district court, asserting similar
factual allegations and proposing class periods of
July 28, 2005, through March 27, 2007, and March 30, 2005,
through March 27, 2007, respectively.
The three cases were subsequently consolidated by the court and
the court appointed Glickenhaus & Co. and Carpenters Pension
Trust Fund for Northern California as lead plaintiffs.
On June 27, 2008, the lead plaintiffs filed an Amended and
Consolidated Class Action Complaint for Violation of the Federal
Securities Laws, which purports to assert claims on behalf of a
class of persons and entities that purchased or acquired the
securities of Beazer Homes during the period Jan. 27, 2005,
through May 12, 2008.
The Consolidated Complaint asserts a claim against the
defendants under Section 10(b) of the U.S. Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder for allegedly
making materially false and misleading statements regarding the
company business and prospects, including, among other things,
alleged misrepresentations and omissions related to alleged
improper lending practices in the company's mortgage origination
business, alleged misrepresentations and omissions related to
improper revenue recognition and other accounting improprieties
and alleged misrepresentations and omissions concerning the
company's land investments and inventory.
The Consolidated Complaint also asserts claims against the
Individual Defendants under Sections 20(a) and 20A of the U.S.
Exchange Act.
The lead plaintiffs seek a determination that the suit is
properly maintained as a class action, an unspecified amount of
compensatory damages and costs and expenses, including
attorneys' fees.
The suit is "Eugene Kratz, et al. v. Beazer Homes USA, Inc., et
al.," filed in the U.S. District Court for the Northern District
of Georgia, Judge Clarence Cooper, presiding.
Representing the plaintiffs are:
Lori G. Feldman, Esq. (lfeldman@milberg.com)
Milberg LLP
One Pennsylvania Plaza, 49th Floor
New York, NY 10119-0165
Phone: 212-594-5300
Krissi T. Gore, Esq. (KGore@chitwoodlaw.com)
Chitwood Harley Harnes
2300 Promenade II, 1230 Peachtree Street, NE
Atlanta, GA 30309
Phone: 404-873-3900
Fax: 404-876-4476
- and -
Francis P. Karam, Esq. (karam@bernlieb.com)
Bernstein Liebhard & Lifshitz
10 East 40th Street, 22nd Floor
New York, NY 10016
Phone: 212-779-1414
Representing the defendants are:
Richard W. Clary, Esq. (rclary@cravath.com)
Cravath Swaine & Moore
825 Eighth Avenue, Worldwide Plaza
New York, NY 10019-7475
Phone: 212-474-1227
BELL EXPRESSVU: Judge Says $25 Late Payment Fee is "Illegal"
------------------------------------------------------------
Ontario Superior Court Justice Paul Perell has ruled that Bell
ExpressVu's collection of a $25 late payment charge is illegal,
Vittorio Hernandez writes for All Headline News.
According to AHN, Justice Perell released his decision on
Sept. 15 which elated Peter De Wolf, who filed the suit on
behalf of Bell ExpressVu's 1.7 million customers nationwide.
As reported in the Class Action Reporter on Sept. 12, 2008, Bell
ExpressVu subscribers had to wait to learn if their class-action
lawsuit against the company will go ahead. This was because
Justice Perell earlier reserved his decision on whether to
throw out the suit or allow it to proceed.
A CAR story published on Feb. 18, 2008, related that Mr. De Wolf
was charged a $19 administrative fee after he failed to pay his
satellite TV bill on time. He alleges that the fee, coupled
with interest charges, is illegal. Court filings indicate that
about 33,000 ExpressVu customers are charged the administrative
fee, which has then been raised to $25, each month.
Mr. De Wolf argued that a $25 fee charged by the company for
late payment does not comply with Canada's Criminal Code because
it amounts to an annual interest rate greater than the 60%
allowed under anti-usury provisions.
However, Bell ExpressVu lawyer Hugh DesBrisay countered that the
lawsuit should be dismissed because the $25 fee is not an
interest charge as defined by the Criminal Code. Mr. DesBrisay
said the charge is an "administration fee" for "real costs"
associated with a delinquent account.
Mr. De Wolf's lawyer, Kirk Baert, then responded with the
argument that there is no distinction between the administration
fee for late payment and the interest fee the company levies
earlier in the billing cycle. "There is no reason to treat it
different just because Bell ExpressVu calls it something
different," Mr. Baert had told Justice Perell.
Justice Perell had earlier certified the lawsuit as a class
action.
BEST BUY CO: Cheats On Warranties, Michigan Lawsuit Alleges
-----------------------------------------------------------
Best Buy Co. Inc. is facing a class-action complaint filed in
the U.S. District Court for the Eastern District of Michigan
alleging it defrauds customers and breaches contract and
warranties by demanding that customers repay rebates and
discounts when they return defective products for replacement,
CourtHouse News Service reports.
The plaintiffs seek "declaratory relief declaring that payment
of rebates as a condition precedent to honoring the comparable
replacement product portion or original purchase price voucher
of the performance service plans offered by defendants is a
deceptive practice and is null and void retroactively, at
present and for future purchasers."
The plaintiffs allege unjust enrichment, silent fraud, breach of
contract, breach of warranty, and consumer fraud. They seek
disgorgement of unjust profits, specific performance, refunds,
and costs.
The plaintiffs bring this action on behalf of any person who
purchased computers, home office and wireless products from any
Best Buy store located in the State of Michigan for personal,
family, or household purposes and who at the point of such
purchase or immediately thereafter, also purchased either a two
or three year extended warranty/performance service plan for
those products and who, during the time of the extended
warranty/performance service plan, was required to pay rebate or
discount dollars to defendant as a condition precedent to
obtaining comparable replacement products or voucher pursuant to
the extended warranty/performance service plan.
The plaintiffs want the court to rule on:
(a) whether the performance service plan constitutes an
express warranty under Michigan law;
(b) whether the performance service plan is an enforceable
contract;
(c) whether, as a matter of law, the performance service
plan fairly, fully and clearly informs consumer
purchasers of defendant's policy of requiring payment
of rebates as a condition precedent to comparable
replacement of products or an original purchase price
voucher;
(d) whether the defendant can require a consumer who has
purchased a performance service plan to pay all or some
of a rebate to defendant as a condition precedent to
acquiring comparable replacement of products;
(e) what the terms and conditions of the performance
service plan are;
(f) whether defendant is entitled to vary, modify or amend
the terms and conditions of the performance service
plan using pre-printed material contained on the back
of receipts or on other various slips of paper that are
separate from the performance service plan;
(g) whether the separate receipts and other various slips
of paper provided by defendant to consumers at the
point of purchase clearly, legibly and fairly advise a
consumer of his or her rights and obligations with
respect to the performance service plan and the effect
of rebates on the terms and conditions of the
performance service plan;
(h) whether a company policy can vary, modify or amend the
terms and conditions of the performance service plan;
(i) whether the performance service plan violates the
Michigan Consumer Protection Act, including but not
limited to MCLA 445.903(n)(s)(t)(w)(bb) and (cc);
(j) whether failure to prominently and clearly state in the
same document as the preprinted standardized
performance service plan distributed at or near the
point of purchase that rebates must be paid to Best Buy
as a condition precedent to defendant's honoring of the
comparable replacement product and the original price
voucher provision of the performance service plan
constitutes a silent fraud;
(k) whether the requirement that a customer pay any rebate
prior to full comparable replacement of a defective
product or original purchase price voucher under the
performance service plan is a hidden charge and a
deceptive practice;
(l) whether Defendant Best Buy was unjustly enriched as a
result of its collection of rebates prior to its
honoring the comparable replacement product provision
of the performance service plan, and should be required
to provide restitution of any sums collected from
consumers as a result of Defendant Best Buy's practice;
(m) Whether Defendant Best Buy was unjustly enriched and
obtained profits from the practice of requiring
customers to pay any rebates prior to providing to full
comparable replacement of a defective product or an
original purchase price voucher under the performance
service plan and whether those profits should be
disgorged and placed in a constructive trust for class
members; and
(n) whether a permanent injunction should issue enjoining
the practice of requiring payment of rebates prior to
providing replacement of a defective product or an
original purchase price voucher under the performance
service plan, and require that Defendant Best Buy
revise the language and coverage of the performance
service plan so that it clearly discloses in bold print
that rebates earned need not be paid as a condition
precedent to the performance service plan, and clearly
and prominently discloses to customers prior to
purchase of any performance service plan offered by
Defendant Best Buy that any or all rebates provided to
the holder of a performance service plan will have to
be paid to Defendant Best Buy prior to providing full
comparable replacement of a defective product or
original purchase price voucher.
The plaintiffs ask the court for:
-- a full refund or restitution to the plaintiffs of the
amount of any payment that was required prior to
obtaining a comparable replacement product or original
purchase price voucher;
-- disgorgement of any profit to be placed into a
constructive trust on behalf of the plaintiffs;
-- either specific performance or restitution of the price
of the performance improvement plan for any person who
was unable to pay the rebate prior to obtaining a
comparable replacement product or original purchase
price voucher and who, therefore, did not receive a
comparable replacement product or original purchase
price voucher;
-- declaratory relief declaring that payment of rebates as
a condition precedent to providing comparable
replacement product portion or an original purchase
price voucher under the performance service plans
offered by defendants is a breach of express warranty
and is null and void retroactively, at present and for
future purchasers;
-- injunctive or equitable relief enjoining and reforming
the program, practice and policy of requiring payment of
rebates prior to providing full comparable replacement
of a defective product or an original purchase price
voucher; and whatever other equitable and injunctive
relief the court deems appropriate;
-- the costs of providing any notices to the class; and
-- costs and attorney fees to prosecute this action
allowable by law.
The suit is "Bruce Sewell, et al. v. Best Buy Co., Inc., Case
2:08-cv-13956-SFC-MJH," filed in the U.S. District Court for the
Eastern District of Michigan.
Representing the plaintiffs are:
Michelle E. Vocht, Esq. (vocht@rsmv.com)
Lynn H. Shecter, Esq. (shecter@rsmv.com)
Roy, Shecter & Vocht, PC
36700 Woodward Ave., Ste. 205
Bloomfield Hills, MI 48304
Phone: 248-540-7660
BOSTON SCIENTIFIC: TAXUS Claims Dismissal in Mass. Suit Reversed
----------------------------------------------------------------
The U.S. Court of Appeals for the First Circuit reverses the
dismissal by the U.S. District Court for the District of
Massachusetts of a consolidated amended complaint in a
securities fraud class action lawsuit against Boston Scientific
Corp. and certain of its officers.
Srinivasan Shankar filed a purported securities class action
suit on Sept. 23, 2005, in the U.S. District Court for the
District of Massachusetts on behalf of those who purchased or
otherwise acquired the company's securities during the period
March 31, 2003, through Aug. 23, 2005, alleging that the company
and certain of its officers violated certain sections of the
U.S. Securities Exchange Act of 1934.
Jack Yopp, Robert L. Garber, Betty C. Meyer and John Ryan, on
behalf of themselves and all others similarly situated,
separately filed additional purported securities class-action
complaints in the same court on behalf of the same purported
class.
On Feb. 15, 2006, the court ordered that the five class action
suits be consolidated and appointed the Mississippi Public
Employee Retirement System Group as lead plaintiff. A
consolidated amended complaint was filed on April 17, 2006.
The consolidated amended complaint alleges that the company made
material misstatements and omissions by failing to disclose the
supposed merit of the litigation between the company and
Medinol, Ltd., the company's stent supplier, and a Department of
Justice investigation relating to the 1998 NIR ON Ranger with
Sox stent recall, problems with the TAXUS drug-eluting coronary
stent systems that led to product recalls, and the company's
ability to satisfy U.S. Food and Drug Administration regulations
concerning medical device quality.
The consolidated amended complaint seeks unspecified damages,
interest, and attorneys' fees.
The defendants filed a motion to dismiss the consolidated
amended complaint on June 8, 2006, which request was granted by
the court on March 30, 2007.
The court's dismissal order was appealed on April 27, 2007, by
the Mississippi Public Employee Retirement System Group.
On April 16, 2008, the U.S. Court of Appeals for the First
Circuit only reversed the dismissal of the plaintiffs' TAXUS
stent recall related claims and remanded the matter for further
proceedings, according to Boston Scientific Corp.'s Aug. 8, 2008
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
The suit is "Shankar v. Boston Scientific Corp., et al., Case
No. 1:05-cv- 11934-JLT," filed in the U.S. District Court for
the District of Massachusetts, Judge Joseph L. Tauro, presiding.
Representing the plaintiffs are:
Carolyn G. Anderson, Esq. (cga@zimmreed.com)
Zimmerman Reed, PLLP, Suite 501, 651 Nicollet Mall
Minneapolis, MN 55402
Phone: 612-341-0400
Fax: 612-341-0844
- and -
Gregg M. Fishbein, Esq. (gmfishbein@locklaw.com)
Lockridge Grindal Nauen, P.L.L.P.
Suite 2200, 100 Washington Avenue South
Minneapolis, MN 55401
Phone: 612-339-6900
Fax: 612-339-0981
Representing the defendants are:
Miranda Hooker, Esq. (miranda.hooker@wilmerhale.com)
William H. Paine, Esq. (william.paine@wilmerhale.com)
Monika A. Wirtz, Esq. (monika.wirtz@wilmerhale.com)
Wilmer Cutler Pickering Hale and Dorr, LLP
60 State Street
Boston, MA 02115
Phone: 617-526-6000
617-526-6896
Fax: 617-526-5000
617-526-5000
- and -
Timothy J. Perla, Esq. (timothy.perla@wilmerhale.com)
U.S. District Court, 1 Courthouse Way
Boston, MA 02210
Phone: 617-526-6696
Fax: 617-526-6000
BOSTON SCIENTIFIC: No Trial Date Set for Mass. ERISA Lawsuit
------------------------------------------------------------
The U.S. District Court for the District of Massachusetts has
yet to set a trial date for the consolidated lawsuit against
Boston Scientific Corp. that alleges violations of the Employee
Retirement Income Security Act of 1974
On Jan. 19, 2006, George Larson, on behalf of himself and all
others similarly situated, filed a purported class-action
complaint in the U.S. District Court for the District of
Massachusetts on behalf of participants and beneficiaries of the
company's 401(k) Retirement Savings Plan (401(k) Plan) and
Global Employee Stock Ownership Plan.
The plaintiff alleges that the company and certain of the
company's officers and employees violated certain provisions
under the ERISA and Department of Labor Regulations.
Robert Hochstadt, Jeff Klunke, Kirk Harvey, Michael Lowe and
Douglas Fletcher, on behalf of themselves and others similarly
situated, filed separate purported class action complaints early
in 2006 in the same Massachusetts court on behalf of the
participants and beneficiaries in the company's Plans alleging
similar misconduct and seeking similar relief as in the Larson
lawsuit.
On April 3, 2006, the court issued an order consolidating the
lawsuits and appointing Jeffrey Klunke and Michael Lowe as
interim lead plaintiffs.
On Aug. 23, 2006, the plaintiffs filed a consolidated complaint
that purports to bring a class action suit on behalf of all
participants and beneficiaries of the company's 401(k) Plan
during the period May 7, 2004, through Jan. 26, 2006, alleging
that the company, its 401(k) Administrative and Investment
Committee, members of the Committee, and certain directors
violated certain provisions of ERISA.
The consolidated complaint alleges, among other things, that the
defendants breached their fiduciary duties to the 401(k) Plan's
participants. It seeks equitable and monetary relief. The
defendants filed a motion to dismiss the consolidated suit on
Oct. 10, 2006, which request was denied by the Court on Aug. 27,
2007.
On March 7, 2008, the plaintiffs filed a motion for class
certification. The defendants filed their opposition to the
plaintiffs' class certification motion on May 28, 2008, and
plaintiffs' reply is due Aug. 8, 2008.
On June 30, 2008, Robert Hochstadt (who previously had withdrawn
as an interim lead plaintiff) filed a motion to intervene to
serve as a proposed class representative. The defendants filed
their opposition to Mr. Hochstadt's intervention motion on July
14, 2008. A trial has not yet been scheduled, according to
Boston Scientific Corp.'s Aug. 8, 2008 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
June 30, 2008.
The suit is "In re: Boston Scientific Corp. ERISA Litigation,
Case No. 1:06-cv-10105-JLT," filed in the U.S. District Court
for the District of Massachusetts, Judge Joseph L. Tauro,
presiding.
Representing plaintiff Jeff Klunke are:
Milberg, Weiss, Bershad & Schulman LLP
One Pennsylvania Plaza
New York, NY 10119
Phone: 212-594-5300
Fax: 212-868-1229
e-mail: lfeldman@milbergweiss.com
- and -
Nancy F. Gans, Esq. (nfgans@gmail.com)
Moulton & Gans, P.C.
55 Cleveland Road
Wellesley, MA 02481
Phone: 781-235-2246
Fax: 781-239-0353
Representing the defendants is:
Stuart J. Baskin, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Phone: 212-848-4000
Fax: 212-848-7179
CAPITAL ONE: Discovery Ongoing in N.Y. Interchange Fees Lawsuits
----------------------------------------------------------------
Discovery is ongoing in several purported class-action lawsuits
in New York over "interchange fees," which name Capital One
Financial Corp. as a defendant.
The company is involved in antitrust class-action suits brought
by retail merchants against MasterCard and Visa and several
member banks, including the company and its subsidiaries,
alleging, among other things, that the defendants conspired to
fix the level of interchange fees. The complaints seek
injunctive relief and civil monetary damages, which could be
trebled.
Separately, a number of large merchants have asserted similar
claims against Visa and MasterCard only.
In October 2005, the class and merchant Interchange lawsuits
were consolidated before the U.S. District Court for the Eastern
District of New York for certain purposes, including discovery.
Discovery is proceeding in these cases, according the company's
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
Capital One Financial Corp. -- http://www.capitalone.com/-- is
a diversified banking company focused primarily on consumer and
commercial lending and deposit origination. Its principal
business segments are Local Banking and National Lending. Local
Banking includes consumer, small business and commercial
deposits, and lending conducted within its branch network. The
National Lending segment consists of three sub-segments: the
U.S. Card sub-segment, which consists of domestic consumer
credit and debit card activities; the Auto Finance sub-segment,
which includes automobile and other motor vehicle financing
activities, and the Global Financial Services sub-segment
consisting of international lending activities, small business
lending, installment loans, home loans, healthcare financing and
other diversified activities.
CAPITAL ONE: Plaintiffs Appeal Dismissal of Late Fees Lawsuit
-------------------------------------------------------------
The plaintiffs in several purported class-action lawsuits over
"late fees," which were filed in the U.S. District Court for the
Northern District of California against Capital One Financial
Corp., are appealing the dismissal of the cases.
During the second quarter of 2008, the company has remained
involved in antitrust class-action lawsuits brought by
individual plaintiffs in the U.S. District Court for the
Northern District of California against several issuing banks,
including the company.
These suits, collectively known as "In Re Late Fees Litigation,"
allege, among other things, that the defendants conspired to fix
the level of late fees and over-limit fees charged to
cardholders, and that these fees are excessive.
In May 2007, the cases were consolidated for all purposes and a
consolidated amended complaint was filed alleging violations of
federal statutes and state law. The amended complaint requests
civil monetary damages, which could be trebled.
In November 2007, the federal court dismissed the amended
complaint. The plaintiffs have appealed that order, according
the company's Aug. 8, 2008 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
June 30, 2008.
Capital One Financial Corp. -- http://www.capitalone.com/-- is
a diversified banking company focused primarily on consumer and
commercial lending and deposit origination. Its principal
business segments are Local Banking and National Lending. Local
Banking includes consumer, small business and commercial
deposits, and lending conducted within its branch network. The
National Lending segment consists of three sub-segments: the
U.S. Card sub-segment, which consists of domestic consumer
credit and debit card activities; the Auto Finance sub-segment,
which includes automobile and other motor vehicle financing
activities, and the Global Financial Services sub-segment
consisting of international lending activities, small business
lending, installment loans, home loans, healthcare financing and
other diversified activities.
CAPTARIS INC: No Appeal Filed Over Illinois TCPA Lawsuit Ruling
---------------------------------------------------------------
Captaris, Inc., has yet to file a Petition for Leave to Appeal
in connection with a recent decision in an ongoing lawsuit
against a subsidiary of the company, according the company's
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The lawsuit was filed in the Circuit Court in Cook County,
Illinois by Travel 100 Group, Inc., against Mediterranean
Shipping Co. The complaint alleges violations of the Telephone
Consumer Protection Act in connection with the receipt of
facsimile advertisements that were transmitted by MediaTel
Corp., a wholly owned subsidiary of Captaris, on behalf of
travel service providers, including Mediterranean.
All of the assets of MediaTel were sold to a subsidiary of PTEK
Holdings, Inc., on Sept. 1, 2003.
The Travel 100 complaint sought injunctive relief and
unspecified damages and certification as a class action on
behalf of Travel 100 and others similarly situated throughout
the U.S. that received the facsimile advertisements.
Mediterranean named Captaris as a third-party defendant and
asserted that Captaris should be liable under theories of
indemnification, contribution or breach of contract for any
damages suffered by Mediterranean.
Both Captaris and MediaTel have denied any liability in the
cases because, among other facts and defenses, MediaTel
understood that the database and lists of travel agent
recipients to whom faxes were sent had authorized that
information could be sent to them by fax.
On Sept. 29, 2006, the court in the Mediterranean case granted
summary judgment in favor of Mediterranean and Captaris and
dismissed the case.
In granting summary judgment, the court ruled that Travel 100
had invited the facsimile advertisements and there was no
violation of the Telephone Consumer Protection Act. Travel 100
filed a motion for reconsideration, which the court denied.
Travel 100 then filed a notice of appeal on Dec. 29, 2006. On
May 30, 2008, the Illinois Appellate Court affirmed the trial
court's summary judgment order against Travel 100. Travel 100
had until July 7, 2008, to file a Petition for Leave to Appeal
to the Illinois Supreme Court. Instead of filing its Petition,
Travel 100 filed a motion requesting until Aug. 11, 2008, to
file its Petition for Leave to Appeal. The court granted the
requested extension of time to file the Petition.
Captaris, Inc. -- http://www.captaris.com/-- develops software
products that automate business processes, manage documents
electronically and provide efficient information delivery. With
a comprehensive suite of software and services, Captaris
specializes in automating the slow and inefficient unstructured
and paper-based document processes that are found in every
organization. Its products and services address business needs
in the fax server and electronic document delivery market; the
workflow and business process automation market, and the
enterprise content management market. The company's products
run on off-the-shelf personal computer servers and Microsoft
software platforms, including Microsoft Windows NT, Windows
2000, Windows 2003 and Windows XP. Captaris utilizes
Microsoft.NET development tools in its suite of products and
integrate with a variety of hardware equipment and enterprise
software products.
DEAN FOODS: Consolidated Antitrust Suit Still Pending in Tenn.
--------------------------------------------------------------
Dean Foods Co. and others in the milk industry continue to face
a consolidated lawsuit in the U.S. District Court for the
Eastern District of Tennessee that accuses the defendants of
working together to limit the price the Southeastern dairy
farmers are paid for their raw milk and to deny these farmers
access to fluid Grade A milk processing facilities.
The company was named, among several defendants, in two
purported class-action antitrust complaints filed on July 5,
2007. The complaints were filed in the U.S. District Court for
the Middle District of Tennessee, and allege generally that the
company and others in the milk industry conspired against the
dairy farmers.
A third purported class-action antitrust complaint, known as a
retailer action, was filed on Aug. 9, 2007, in the U.S. District
Court for the Eastern District of Tennessee. The complaint in
the retailer action was amended on March 28, 2008. The amended
complaint alleges generally that the company, either acting
alone or in conjunction with others in the milk industry,
lessened competition in the Southeastern U.S. for the sale of
processed fluid Grade A milk to retail outlets and other
customers, and that the defendants' conduct also artificially
inflated retail prices for direct milk purchasers.
Four additional purported class-action complaints were filed on
Aug. 27, 2007, Oct. 3, 2007, Nov. 15, 2007, and Feb. 13, 2008,
in the U.S. District Court for the Eastern District of
Tennessee. The allegations in these complaints are similar to
those in the dairy farmer actions.
On Jan. 7, 2008, the U.S. MDL Panel ordered the consolidation of
all of the pending cases in the U.S. District Court for the
Eastern District of Tennessee.
On April 1, 2008, the court ordered the consolidation of the six
dairy farmer actions, and ordered the retailer action to be
administratively consolidated with the coordinated dairy farmer
actions.
A motion by the defendants to dismiss the dairy farmer actions
was denied on May 20, 2008, and an amended consolidated
complaint was filed by the dairy farmer plaintiffs on June 20,
2008. A motion to dismiss the retailer action is currently
pending.
These cases are currently in discovery and the company intend to
vigorously defend them, according the company's Aug. 7, 2008
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2008.
Dean Foods Co. -- http://www.deanfoods.com/-- is a food and
beverage company. The company has two segments: the Dairy Group
and WhiteWave Foods Co. The Dairy Group manufactures and sells
its products under a variety of local and regional brand names
and under private labels. The company WhiteWave Foods Co.
develops, manufactures, markets and sells a variety of
nationally branded soy, dairy and dairy-related products, such
as Silk soymilk and cultured soy products, Horizon Organic dairy
products, International Delight coffee creamers, LAND O'LAKES
creamers and fluid dairy products, and Rachel’s Organic dairy
products.
GENERAL MOTORS: Calif. Suit Says GTOs Have Bad Suspension System
----------------------------------------------------------------
General Motors Corporation is facing a class-action complaint
filed in the U.S. District Court for the Eastern District of
California alleging tires on 2004-2006 Pontiac GTOs wear
unevenly and fail because of an improperly designed suspension
system, the CourtHouse News Service reports.
This class action is brought for the benefit and protection of
all current and former owners and lessees of model year 2004,
2005 and 2006 Pontiac GTOs purchased or leased in the United
States, excluding the states of Florida and California, to
obtain damages and restitution and injunctive and other relief.
The plaintiff wants the court to rule on:
(a) whether the vehicles are defective;
(b) whether GM's conduct violated the Magnuson-Moss
Warranty Act;
(c) whether GM's conduct violated the Ohio Consumer Sales
Practices Act, Ohio Rev. Code. Section 1345.01 et seq.;
(d) whether GM breached its express warranty;
(e) whether GM concealed the defect from plaintiff and
class members;
(f) whether, by its conduct, GM has been unjustly enriched;
and
(g) whether, as a result of GM's misconduct, plaintiff and
the class members are entitled to damages, restitution,
and equitable relief, and other damages or relief,
and, if so, the amount of such relief.
The plaintiff asks the court for:
-- an order certifying this case as a class action and
appointing plaintiff and his counsel to represent the
class;
-- restitution and disgorgement to the extent permitted by
applicable law, together with interest thereon from the
date of payment, to the victims of such violations;
-- actual damages for injuries suffered by plaintiff, the
class;
-- civil penalties to the extent permitted by applicable
law;
-- to the extent that GM has continued to market and sell
the vehicles in the manner challenged in this action, an
order requiring GM to immediately cease its wrongful
conduct as set forth, as well as enjoining GM from
continuing to conduct business via the unlawful and
unfair business acts and practices complained of;
-- an order requiring GM to engage in a corrective notice
campaign;
-- an order requiring GM to refund to plaintiffs and all
members of the class the funds paid to GM for the
defective product;
-- reasonable attorneys' fees and the costs of prosecuting
this action;
-- statutory pre-judgment and post-judgment interest; and
-- such other and additional relief as the court may deem
just and proper.
The suit is "Sidner v. General Motors Corporation, Case Number:
2:2008at01070," filed in the U.S. District Court for the Eastern
District of California.
Representing the plaintiff are:
Mark F. Anderson, Esq. (mark@kabolaw.com)
Matthew Da Vega, Esq. (matthew@kabolaw.com)
Kemnitzer, Anderson, Barron, Ogilvie & Brewer LLP
445 Bush Street, 6th Floor
San Francisco, CA 94108
Phone: 415-861-2265
HOME DEPOT: Cheats On Flooring Service, California Suit Alleges
---------------------------------------------------------------
Home Depot is facing a class-action complaint filed in Los
Angeles Superior Court accusing it of cheating customers by
inducing them to order 110% of the material needed for flooring
jobs, then charging for installing all of it, though not all of
it is installed, the CourtHouse News Service reports.
CourtHouse reported no further detail regarding the lawsuit.
Representing the plaintiffs is:
John M. Boyko, Esq.
3655 Torrance Blvd., Ste. 240
Torrance, CA 90274
Phone: 310-316-9797
IMMIGRATION DEPT. (CANADA): Sued for Making Profit on Visas
-----------------------------------------------------------
A Canadian federal judge has ruled that a class action lawsuit
against the immigration department alleging profit-making on
visas can proceed, United Press International reports.
According to UPI, the $700-million lawsuit was initiated by a
couple in British Columbia in 2003. The suit still remains
pending as immigration lawyers challenged its legality.
The report notes that the Financial Administration Act bans
federal departments from turning a profit. However, one of the
original plaintiffs, Alan Hinton, claims that he paid $75 to
apply to sponsor his wife into Canada. He says internal
documents show the actual cost of processing the application was
$36.69, meaning the department made a profit of $38.31.
The three lawyers handling the suit said that as many as 100
million visa applications were filed and paid for between 1994
and 2005.
Daniela Mandachescu, of Richmond Hill, north of Toronto, told
the Toronto Star that she signed on to the suit after problems
sponsoring her mother from Romania began in 2005. "I received
very little service from immigration and I hope others don't
have to go through what I did," she said. "I don't like the way
so many others are treated."
INFINITY RAZOR: Faces California Lawsuit Over False Advertising
---------------------------------------------------------------
Infinity Razor is facing a class-action complaint filed in the
Superior Court of the State of California for the County of San
Diego alleging it sells its razors by falsely advertising that
they provide "smooth, comfortable shaves infinitely," CourtHouse
News Service reports.
Also sued are BDA Industries and Concept Media Corp., doing
business as InfoWorx.
The plaintiff says that the civil consumer protection
representative action is brought to remedy violations by
defendants of state consumer protection, false advertising and
unfair competition statutes in connection with the defendants'
course of conduct over the last four years in the manufacture,
sale and marketing and distributing of their "Infinity Razor"
product to consumers.
The complaint alleges that the defendants employ misleading
representations and have failed to disclose material information
for its claims associated with the use of its product, wherein
it is represented that such product provides smooth, comfortable
shaves infinitely. Such claims are untrue, the suit contends.
The plaintiff brings this action on behalf of all individuals
who purchased one or more Infinity Razors from Jan. 1, 2004, to
the present.
The plaintiff wants the court to rule on:
(a) whether defendants' business acts or practices violated
the Unfair Competition law, Section 17200 et seq. of
the California Business and Professions Code (UCL);
(b) whether defendants' conduct violated the False
Advertising Law, Section 17500 et seq. of the
California Business and Professions Code (FAL);
(c) whether defendants' conduct violated the Consumers
Legal Remedies Act, Section 1750 et seq. of the
California Civil Code (CLRA);
(d) the class-wide nature of defendants' course of conduct;
(e) the amount of additional revenues and profits obtained
by defendants attributable to its unlawful conduct;
(f) the appropriate nature of class-wide equitable relief
including corrective and remedial action;
(g) whether the members of the plaintiff class are entitled
to restitution as a result of defendants' conduct and,
if so, what the proper measure and appropriate formula
to be applied in determining such restitution is;
(h) whether the members of the plaintiff class have
sustained damages as a result of defendants' conduct,
and, if so, what the proper measure and appropriate
formula to be applied in determining such restitution
is; and
(i) whether the members of the plaintiff class are entitled
to punitive and exemplary damages as a result of
defendants' acts of fraud, malice and oppression or in
conscious disregard of the right of plaintiff and the
plaintiff class, and, if so, what the proper amount of
such punitive and exemplary damages is.
The plaintiff asks the court:
-- for an order requiring defendants to identify each
purchaser of one or more Infinity Razor(s) and to
directly refund to that purchaser the price paid, plus
any and all related costs associated with said purchase
such as taxes, shipping and handling;
-- for other injunctive and equitable relief under
California statutory law, including but not limited to,
restitution and disgorgement, as alleged;
-- for compensatory and punitive damages against
defendants for violation of the CLRA if defendants do
not comply with the CLRA demand letter in a timely
fashion in an amount according to proof of trial;
-- for compensation, punitive and exemplary damages
against defendants in an amount according to proof at
trial and sufficient to punish defendants and to deter
others from similar wrongdoing;
-- that the plaintiff and other class members recover
their costs of suit, including reasonable attorneys'
fees; and
-- for such other and further relief as the court may deem
just and proper.
The suit is "James Atkinson, et al. v. Infinity Razor, et al.,
Case No. 37-2008-00058029-CU-BT-NC," filed in the Superior Court
of the State of California for the County of San Diego.
Representing the plaintiff are:
Alexander M. Schack, Esq.
Lee T. Patajo, Esq.
Law Offices of Alexander M. Schack
16870 West Bernardo Drive, Suite 400
San Diego, CA 92127
Phone: 858-485-6535
Fax: 858-485-0608
MEMC ELECTRONICS: Undisclosed Facilities Problems Prompt Lawsuit
----------------------------------------------------------------
Kaplan Fox & Kilsheimer LLP has filed a class action suit in the
United States District Court for the Eastern District of
Missouri against MEMC Electronic Materials, Inc. (NYSE: WFR) and
its chief executive officer over alleged violations of the
Securities Exchange Act of 1934 on behalf of purchasers of MEMC
common stock during the period between June 13, 2008, through
July 23, 2008, inclusive.
The Complaint alleges that the defendants failed to disclose
problems MEMC was encountering at its production facilities in
Italy and Texas and that because of such production issues, the
Company's financial results for the quarter ended June 30, 2008,
would be below target.
In fact, as alleged in the Complaint, on July 23, 2008, the
Company first disclosed that in early June 2008 there was a
premature failure of a relatively new heat-exchanger at the
Company's Merano, Italy facility which caused second quarter
polysilicon output to be reduced by approximately 5%.
As further alleged, at approximately the same time, on June 13,
2008, the Company's Pasadena, Texas production facility had to
be significantly shut down for approximately a week because of a
fire.
However, as alleged, defendants failed to disclose these
material production problems to investors and the impact they
would have on the Company's financial results until July 23,
2008. And, upon these revelations, it is alleged the price of
MEMC shares declined 22%, from $53.80 per share to $42.23 per
share on much heavier than usual trading volume.
Interested parties may move the court no later than November 17,
2008, for lead plaintiff appointment.
For more information, contact:
Frederic S. Fox, Esq.
Joel B. Strauss, Esq.
Jeffrey P. Campisi, Esq.
Kaplan Fox & Kilsheimer LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Phone: 800-290-1952
212-687-1980
Fax: 212-687-7714
e-mail: mail@kaplanfox.com
- and -
Laurence D. King, Esq.
Kaplan Fox & Kilsheimer LLP
350 Sansome Street, Suite 400
San Francisco, CA 94104
Phone: 415-772-4700
Fax: 415-772-4707
e-mail: mail@kaplanfox.com
MUNICIPAL MORTGAGE: Faces N.Y. Suit Over Inflated Share Price
-------------------------------------------------------------
Municipal Mortgage and Equity (MuniMae) and its directors are
facing a class-action complaint filed in the U.S. District Court
for the Southern District of New York alleging it inflated share
price through false and misleading statements, CourtHouse News
Service reports.
This is a federal securities class action suit on behalf of
purchasers of the securities of MuniMae between May 3, 2004, and
January 28, 2008, inclusive, seeking to pursue remedies under
the Securities Exchange Act of 1934.
The claims asserted herein arise under and pursuant to Sections
10(b) and 20(a) of the Exchange Act [15 U.S.C. Sections 78j(b)
and 78t(a)] and Rule 10b-5 promulgated thereunder by the SEC
[17 C.F.R. Section 240.10b-5].
The plaintiff brings this suit as a class action pursuant to
Federal Rule of Civil Procedure 23(a) and (b)(3) on behalf of a
class consisting of all those who purchased or otherwise
acquired the securities of MuniMae during the Class Period and
who were damaged thereby.
The plaintiff wants the court to rule on:
(a) whether the federal securities laws were violated by
defendants' acts, as alleged;
(b) whether statements made by defendants to the investing
public during the Class Period misrepresented material
facts about the business, operations and management of
MuniMae; and
(c) to what extent the members of the Class have sustained
damages and the proper measure of damages.
The plaintiff asks the court to enter an order:
A. determining that this action is a proper class action,
designating Plaintiff as Lead Plaintiff and certifying
Plaintiff as a class representative under Rule 23 of
the Federal Rules of Civil Procedure and the
plaintiff's counsel as lead counsel;
B. awarding compensatory damages in favor of the plaintiff
and the other class members against all defendants,
jointly and severally, for all damages sustained as a
result of the defendants' wrongdoing, in an amount to
be proven at trial, including interest thereon;
C. awarding the plaintiff and the class their reasonable
costs and expenses incurred in this action, including
counsel fees and expert fees; and
D. such other and further relief as the Court may deem
just and proper.
The suit is "Jules Rothas, et al. v. Municipal Mortgage & Equity
LLC, et al., Civil Action No. 08-cv-01120," filed in the U.S.
District Court for the Southern District of New York.
Representing the plaintiff are:
Samuel H. Rudman, Esq.
David A. Rosenfeld, Esq.
Mario Alba, Jr., Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
NATIONAL CITY: Securities Fraud Lawsuit Still Pending in Ohio
-------------------------------------------------------------
National City Corp. continues to face a purported securities
fraud class-action lawsuit before the U.S. District Court for
the Northern District of Ohio.
The putative class-action lawsuit was filed on Jan. 24, 2008,
against National City and certain current and former officers
and directors of the corporation. It alleges breach of federal
securities laws regarding public statements and disclosures.
The plaintiff seeks unspecified damages and equitable relief on
behalf of purchasers of the corporation's stock during the
period April 30, 2007, to Jan. 2, 2008.
The company reported no development regarding the matter in its
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Casey v. National City Corporation, et al., Case
No. 1:08-cv-00209-PAG," filed in the U.S. District Court for the
Northern District of Ohio, Judge Patricia A. Gaughan, presiding.
Representing the plaintiffs is:
Henry R. Rosen, Esq. (henryr@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins
Ste. 1900, 655 West Broadway
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
Representing the defendants is:
Adrienne M. Ferraro, Esq. (amferraro@jonesday.com)
Jones Day - Cleveland
901 Lakeside Avenue
Cleveland, OH 44114
Phone: 216-586-7370
Fax: 216-579-0212
NATIONAL CITY: Faces Consolidated ERISA Violations Suit in Ohio
---------------------------------------------------------------
National City Corp. is facing a consolidated lawsuit in the U.S.
District Court for the Northern District of Ohio, alleging
violations of the Employee Retirement Income Security Act.
Starting Jan. 10, 2008, a series of seven substantially similar
putative class action complaints were filed before the U.S.
District Court for the Northern District of Ohio against
National City Corp., the Administrative Committee for the
National City Savings and Investment Plan, and certain current
and former officers and directors of the corporation.
The complaints allege breach of fiduciary duty relating to
National City stock being offered as an investment alternative
in the Savings and Investment Plan. They seek unspecified money
damages and equitable relief.
One of the complaints also contains a second class, the
Allegiant Funds Class, and alleges that these fund choices were
not appropriate for plan participants.
These complaints have been consolidated, according to the
company's Aug. 8, 2008 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The suit is "Elsinghorst v. National City Corporation, et al.,
Case No. 1:08-cv-00061-PAG," filed in the U.S. District Court
for the Northern District of Ohio, Judge Patricia A. Gaughan,
presiding.
Representing the plaintiffs are:
Michael J. Klein, Esq. (mklein@ssbny.com)
Stull, Stull & Brody
6 East 45 Street
New York, NY 10017
Phone: 212-687-7230
Fax: 212-490-2022
James E. Arnold, Esq. (jarnold@arnlaw.com)
Law Office of James E. Arnold
Ste. 1400, 471 East Broad Street
Columbus, OH 43215
Phone: 614-460-1600
Fax: 614-469-1066
- and -
Edward W. Ciolko, Esq. (eciolko@sbtklaw.com)
Schiffrin Barroway Topaz & Kessler
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-667-7706
Fax: 610-667-7056
Representing the defendants is:
Adrienne M. Ferraro, Esq. (amferraro@jonesday.com)
Jones Day
901 Lakeside Avenue
Cleveland, OH 44114
Phone: 216-586-7370
Fax: 216-579-0212
NATIONAL CITY: Plaintiffs Won't Drop Pre-2004 Claims in MDL-1720
----------------------------------------------------------------
The plaintiffs in the matter captioned "In re Payment Card
Interchange Fee and Merchant Discount Antitrust Litigation, MDL-
1720, Case No. 1:05- md-01720- JG-JO" are opposing a
recommendation by the Magistrate Judge of the U.S. District
Court for the Eastern District of New York to dismiss their pre-
2004 claims in the case, which names National City Corp. as a
defendant.
Beginning June 22, 2005, a series of antitrust class action
lawsuits were filed against Visa, MasterCard, and several major
financial institutions, including eight cases naming the company
and its subsidiary, National City Bank of Kentucky -- since it
merged into National City Bank. The suits were in relation to
"interchange fees" (Class Action Reporter, June 17, 2008).
The plaintiffs -- merchants operating commercial businesses
throughout the U.S. and trade associations -- claim that the
interchange fees charged by card-issuing banks are unreasonable
and seek injunctive relief and unspecified damages.
The cases have been consolidated for pretrial proceedings in the
U.S. District Court for the Eastern District of New York under
the caption, "In re Payment Card Interchange Fee and Merchant
Discount Antitrust Litigation, MDL-1720, Case No. 1:05-md-01720-
JG-JO."
On July 1, 2007, the company and National City Bank entered into
a Judgment Sharing Agreement with respect to the lawsuit.
On Sept. 7, 2007, the Magistrate Judge recommended to the
District Court that all claims that predate Jan. 1, 2004, should
be dismissed.
The class plaintiffs have filed their objection to that
recommendation.
The company reported no further development regarding the matter
in its Aug. 8, 2008 Form 10-Q Filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2008.
The suit is "In re Payment Card Interchange Fee and Merchant
Discount Antitrust Litigation, MDL-1720, Case No. 1:05-md-01720-
JG-JO," filed in the U.S. District Court for the Eastern
District of New York, Judge John Gleeson, presiding.
Representing some of the plaintiffs are:
Darla Jo Boggs, Esq. (djboggs@locklaw.com)
Lockridge Grindal Nauen, P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Phone: 612-339-6900
Fax: 612-339-0981
Christopher M. Burke, Esq. (chrisb@lerachlaw.com)
Lerach Coughlin Stoia Geller Rudman & Robbins
655 W. Broadway, Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
- and -
Jason S. Cowart, Esq. (jasoncowart@yahoo.com)
Pomerantz Haudek Block Grossman & Gross, LLP
100 Park Avenue, 26th Floor
New York, NY 10017
Phone: 212-661-1100
Fax: 212-661-8665
Representing the defendants is:
John M. Majoras, Esq. (jmmajoras@jonesday.com)
Jones Day
51 Louisiana Ave., NW
Washington, DC 20001
Phone: 202-879-3939
Fax: 202-626-1700
NATIONAL CITY: Securities Violations Suit Still Pending in Ohio
---------------------------------------------------------------
National City Corp. continues to face a purported class-action
lawsuit before the Common Pleas Court for Cuyahoga County, Ohio,
alleging violations of the federal securities laws.
The putative class action suit was filed on April 21, 2008,
against National City and certain current and former officers
and directors of the corporation.
The complaint, which is brought on behalf of all current and
former National City employees who acquired stock pursuant to a
Dec. 1, 2006 registration statement and who were participants in
the Harbor Bank Employees Stock Ownership Plan and the Harbor
Bank Stock Incentive Plan, alleges that the registration
statement contained misleading statements and omissions in
violation of the federal securities laws.
The company reported no development regarding the matter in its
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
National City Corp. -- https://www.nationalcity.com/ -- is a
financial holding company. The Company's core businesses
include commercial and retail banking, mortgage financing and
servicing, consumer finance and asset management.
NVIDIA CORP: California Lawsuit Alleges Graphics Card Breaks
------------------------------------------------------------
NVIDIA Corp., the world's second-largest producer of computer
graphics processing units, is facing a class-action complaint
filed in the U.S. District Court for the Northern District of
California alleging it sells defective GeForce 8M Series GPUs in
laptops, CourtHouse News Service reports.
The plaintiffs say NVIDIA, which controls 31.4% of the GPU
market, concealed the defect it has known about since 2007.
Lead plaintiff Steven Nakash says "the NVIDIA GPUs are
defectively designed because they are not capable of
withstanding normal operations and prematurely cease to function
properly."
The plaintiff brings this action on behalf of all others who
purchased a laptop computer equipped with an NVIDIA GeForce 8m
Series graphics processing unit.
The plaintiff wants the court to rule on:
(a) whether defendant has breached the implied warranty of
merchantability to the class;
(b) whether the computers are merchantable as a result of
the design defect in the NVIDIA GPU;
(c) whether defendant was unjustly enriched by the
retention of the non-gratuitous benefits conferred by
plaintiff and members of the class;
(d) whether defendant violated New Jersey's Consumer Fraud
Act codified under NJ Stat. Ann. Section 56:8-1 et
seq.;
(e) whether the computers are defective because they are
equipped with NVIDIA GPUs composed from a weak material
set of die/package combination;
(f) whether defendant knew, or was reckless in not knowing,
that the computers are defective; and
(g) whether, as a result of defendant's misconduct,
plaintiff and the class are entitled to damages,
restitution, equitable relief or other relief, and the
amount and nature of such relief.
The plaintiff requests that the court:
-- certify this action as a class action under Rule 23;
-- order defendant to pay plaintiff and members of the
class an amount of actual damages to be determined at
trial;
-- issue an injunction preventing defendant from
manufacturing and selling the NVIDIA GPUs;
-- issue an order granting plaintiff reasonable costs and
attorney's fees; and
-- grant such other relief as may be just and proper.
The suit is "Steven Nakash, et al. v. NVIDIA Corporation, Case
No. C 08 4312," filed in the U.S. District Court for the
Northern District of California.
Representing the plaintiff is:
Paul R. Kiesel, Esq.
Kiesel Boucher Larson
8648 Wilshire Boulevard
Beverly Hills, CA 90211
Phone: 310-854-4444
Fax: 310-854-0812
OLD DOMINION: Wants Antitrust Complaint in Georgia Thrown Out
-------------------------------------------------------------
Old Dominion Freight Line, Inc., and other less-than-truckload
carriers are seeking for the dismissal of a consolidated amended
complaint in the purported class-action suit "Farm Water
Technological Services, Inc. et al. v. Arkansas Best Corporation
et al., Case No. 1:08-cv-00660-WSD," which accuses defendants of
conspiring throughout four years or more to fix fuel surcharges
on LTL shipments, according to the company's Aug. 8, 2008 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2008.
On July 30, 2007, Farm Water Technological Services, Inc. (d/b/a
Water Tech) and C.B.J.T. (d/b/a Agricultural Supply), on behalf
of themselves and other plaintiffs, filed the putative class-
action lawsuit against the company and other companies engaged
in the LTL trucking business. The suit was filed before the
U.S. District Court for the Southern District of California
(Class Action Reporter, May 19, 2008).
Specifically, the other named defendants in the complaint are:
1. Arkansas Best Corp.,
2. Averitt Express,
3. Con-Way, Inc.,
4. Fedex Corp.,
5. Jevic Transportation, Inc.,
6. Sun Capital Partners IV, LLC,
7. New England Motor Freight, Inc.,
8. R+L Carriers, Inc.,
9. Saia, Inc.,
10. United Parcel Service, Inc.,
11. YRC Worldwide Inc.,
12. Old Dominion Motor Freight, Inc.
Farm Water and its subsidiary, C.B.J.T., contend that the
practice dates back to 2003 (Class Action Reporter, Aug. 29,
2007). They assert that the carriers agreed to impose identical
or nearly identical surcharges by linking them to diesel fuel
prices published by the U.S. Department of Energy and by listing
surcharges on their websites to communicate pricing.
The plaintiffs bring the action on behalf of all persons or
entities who purchased LTL service directly to defendants or
their unnamed co-conspirators from July 30, 2003, through the
conclusion of the trial in this matter (Class Action Reporter,
Aug. 2, 2007).
The plaintiffs want the court to rule on:
(a) whether defendants and their co-conspirators engaged in
a combination and conspiracy among themselves to fix,
raise, maintain or stabilize fuel surcharges imposed
for LTL services sold in the United States;
(b) the identity of participants in the conspiracy;
(c) the duration of the conspiracy alleged in this
complaint and the nature and character of the acts
performed by defendants and their co-conspirators in
furtherance of the conspiracy;
(d) whether the alleged conspiracy violated Section of the
Sherman Act;
(e) whether the conduct of defendants and their co-
conspirators, as alleged in the complaint, caused
injury to the business and property plaintiffs and
other members of the classes;
(f) the effect of defendants' conspiracy on the prices of
LTL services sold in the United States during the class
period; and
(g) the appropriate measure of damages sustained by
plaintiffs and other members of the damages class.
The plaintiffs ask the court:
-- to determine that this action may be maintained
as a class action under Rule 23 of the Federal Rules of
Civil Procedure;
-- to determine that the contract, combination or
conspiracy, and the acts done in furtherance thereof by
the defendants and their co-conspirators, have been in
violation of Section 1 of the Sherman Act, 15 U.S.C.
Section 1;
-- to award the plaintiffs and members of the damages class
three times the amount of damages they sustained, as
allowed by law, together with the costs of this action,
including reasonable attorneys' fees; and
-- to permanently enjoin and restrain the defendants and
their affiliates, successors, transferees, assignees,
and the officers, directors, partners, agents and
employees, and all other persons acting or claiming to
act on their behalf, from:
* continuing, maintaining or renewing the contract,
combination or conspiracy alleged, or from engaging
in any other contract, combination or conspiracy
having a similar purpose or effect, and from
adopting or following any practice, plan, program
or device having a similar purpose or effect; and
* communicating or causing to be communicated to any
other person engaged in the manufacture,
distribution or sale of any product except to the
extent necessary in connection with a bona fide
sales transaction between the parties to such
communications.
Subsequent to this original complaint, similar complaints have
been filed against the defendants and other LTL motor carriers,
each with the same allegation of conspiracy to fix fuel
surcharge rates.
On Dec. 20, 2007, these lawsuits were consolidated in the U.S.
District Court for the Northern District of Georgia and are now
in the process of being transferred to that court.
On May 23, 2008, the plaintiffs filed a consolidated amended
complaint naming the company and eight other defendants. The
defendants moved to dismiss the consolidated amended complaint
and the parties recently concluded briefing on the motion to
dismiss. No oral argument on the motion to dismiss is currently
scheduled.
The suit is "Farm Water Technological Services, Inc. et al. v.
Arkansas Best Corporation et al., Case No. 1:08-cv-00660-WSD,"
filed in the U.S. District Court for the Northern District of
Georgia, Judge William S. Duffey, Jr., presiding.
Representing the plaintiffs is:
Christopher M. Burke, Esq. (chrisb@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins, LLP
655 W. Broadway, Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7423
Representing the defendants are:
Jacqueline Bos, Esq. (jbos@mofo.com)
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
Phone: 415-268-6240
W. Perry Brandt, Esq. (perry.brandt@bryancave.com)
Bryan Cave, LLP
Suite 3500, One Kansas City Place
1200 Main Street
Kansas City, MO 64105
Phone: 816-374-3206
Fax: 816-374-3300
Thomas F. Cullen, Jr., Esq. (tfcullen@jonesday.com)
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
Phone: 202-879-3939
- and -
Joel S. Sanders, Esq. (jsanders@gibsondunn.com)
Gibson, Dunn & Crutcher, LLP
One Montgomery Street, 31st Floor
San Francisco, CA 94104
Phone: 415-393-8268
ORACLE CORP: Executives Withheld Evidence in Lawsuit, Court Says
----------------------------------------------------------------
U.S. District Judge Susan Illston has ruled that Oracle Corp.
executives either destroyed or knowingly failed to preserve
evidence sought in a class-action lawsuit in which CEO Larry
Ellison is accused of misleading investors and trading on inside
knowledge, The San Jose Mercury News reports.
The lawsuit alleges that the company made false statements about
its financial condition in the second quarter of 2001 and about
its Suite 11i business management software.
A Class Action Reporter story published on Nov. 1, 2007, said
that the plaintiffs alleged hundreds of e-mails and financial
records, and even audio interviews with CEO Ellison, vanished or
were improperly withheld from the plaintiffs. These audio
interviews were done by British writer Matthew Symonds, who co-
authored a book about CEO Ellison called "Softwar." Mr. Symonds
allegedly lost or destroyed the audiotaped interviews and
transcripts of his talks with CEO Ellison, made during the class
period in the securities suit.
According to InfoWorld, Oracle produced only 15 e-mail messages
sent or received by CEO Ellison from his files, but more than
1,600 Ellison e-mails were found on the computers of other
company employees.
Lawyers for Oracle have strongly denied these accusations by the
plaintiffs.
IT Business Edge relates in an update that Judge Illston said
she will infer that the evidence was incriminating and will
instruct a jury to do likewise if the case goes to trial.
Oracle, Business Edge notes, has earlier filed a motion to
dismiss the case. The case is scheduled to go to trial on
March 30.
The suit is "Local 144 Nursing Home Pension Fund v. Oracle
Corp., No. C01-988MJJ," filed in the U.S. District Court for the
Northern District of California.
PEOPLESUPPORT INC: Faces Calif. Suit Over Essar Services Merger
---------------------------------------------------------------
Levi & Korsinsky commenced a class action lawsuit in the
Superior Court of the State of California challenging the
proposed acquisition of PeopleSupport, Inc.
The Complaint arises out of the August 4, 2008 announcement by
PeopleSupport stating that it had entered into a definitive
merger agreement with Essar Services, Mauritius, a company
organized under the laws of Mauritius, and Easter Merger Sub,
Inc., a Delaware corporation and wholly owned subsidiary of
Essar.
Under the terms of the proposal, PeopleSupport's shareholders
would receive $12.25 per share in cash or $250 million.
The Complaint alleges that PeopleSupport has failed to disclose
all material information to the Company's shareholders,
including the key financial valuation information relied on by
the Board of the Company.
The transaction is subject to customary conditions and
regulatory approvals. Upon closing, PeopleSupport will no
longer be publicly traded.
For more information, contact:
Eduard Korsinsky, Esq.
Juan E. Monteverde, Esq.
Levi & Korsinsky, LLP
39 Broadway, Suite 1601
New York, NY 10006
Phone: 212-363-7500
Fax: 212-363-7171
Web site: http://www.zlk.com/
SMITH BARNEY: Sued for Improperly Recommending Fannie Mae
---------------------------------------------------------
The Law Offices of Aronberg & Aronberg has filed a class action
lawsuit in Palm Beach County, Florida, on September 15, 2008, on
behalf of all Florida customers of Citigroup/Smith Barney
brokerage who were improperly placed into Fannie Mae stock in
2008.
The law firm believes that Smith Barney placed thousands of its
customers into Fannie stock this past Spring and even into the
Summer months of 2008 when Smith Barney should have realized
that Fannie was on the verge of collapse.
Smith Barney, a holder of millions of shares of Fannie,
misrepresented the true risks associated with Fannie stock.
The firm has seen numerous complaints that Smith Barney stock
brokers told customers that the risks of Fannie were
minimal/non-existent and that they were both "safe" and "secure"
investments.
Many of the firm's clients are elderly persons, not familiar
with the inherent risks of Fannie, who should never have been
convinced by their brokers to invest in this stock. Being
elderly, they needed investments that would protect their
principal investment. Clearly, Fannie stock was not such a
product. In one case, the Florida investor was told by a Smith
Barney broker that Fannie was "no risk at all." One month after
that same investor bought Fannie on advice of her Smith Barney
broker, the same broker told her to buy more.
Smith Barney customers were also misinformed that, in the
unlikely event Fannie or Freddie went under, the government
would step in and protect their investments. While this may be
true with bond holders, this obviously was not the case with
purchasers of Fannie/Freddie stock.
The firm believes that these types of misrepresentations are
clearly violations of Florida's Unfair and Deceptive Trade
Practices Act which prevents unfair or deceptive acts or
practices in conducting of any trade or commerce.
For more information, contact:
David T. Aronberg, Esq. (daronberg@aronberglaw.com)
Aronberg & Aronberg
2160 West Atlantic Avenue
Delray Beach, FL 33445
Phone: 561-266-9191
1-877-795-2993
STEEL MAKERS: Steel Fabricator Commences Illinois Antitrust Suit
----------------------------------------------------------------
ArcelorMittal, United States Steel Corp., Nucor Corp., and five
other producers of metal for the U.S. market have for three
years plotted to fix prices by limiting production, a direct
buyer claimed in an antitrust lawsuit, Andrew Harris writes for
Bloomberg News.
Bloomberg relates that steel fabricator Standard Iron Works
claimed in its complaint that the steel companies conspired to
"restrict output and to fix, raise, stabilize and maintain at
artificially high levels the prices they charged for steel
products in the U.S."
According to SteelGuru.com, the other defendants named in the
suit are:
1. Gerdau Ameristeel,
2. Steel Dynamics Inc.,
3. AK Steel Holding,
4. SSAB Swedish Steel, and
5. Commercial Metals.
The lawsuit, filed on Sept. 12, 2008, in Chicago federal court,
seeks class action status for anybody who has bought steel from
the firms since January 2005, together with unspecified money
damages.
Bloomberg notes that ArcelorMittal is the world's largest steel
producer. Citing rising demand and record raw materials costs,
the Luxembourg-based steel maker has sought to impose surcharges
on U.S. and European customers this year. Meanwhile, Charlotte,
North Carolina-based Nucor is the biggest U.S. steelmaker by
market value.
U.S. Steel spokesman John Armstrong told Bloomberg that the
company will fight the allegations in the suit. U.S. Steel
"conducts its business unilaterally and in keeping with all
applicable laws," he said.
Nucor General Counsel Douglas Gunson said through a spokesman
that the suit was without merit and that the firm will contest
the allegations.
The case is "Standard Iron Works v. ArcelorMittal, Case No.
08cv5214," filed in the U.S. District Court for the Northern
District of Illinois (Chicago).
TRIBUNE COMPANY: LA Times Reporters Sue Over Reckless Takeover
--------------------------------------------------------------
A group of current and former reporters at The Los Angeles Times
sued the owner, Samuel Zell, accusing him of recklessness in the
takeover and management of the newspaper's parent, the Tribune
Company, New York Times reports.
According to the report, Mr. Zell, the chairman and chief
executive officer of Tribune, took control of the company in
December 2007 in an $8.2-billion deal that took it private but
tripled its debt at a time of falling revenue. Since then, the
company has eliminated more than 1,000 jobs, and sold assets to
raise capital and meet debt payments. NY Times relates that the
Tribune's credit has also been downgraded.
The complaint was filed in Federal District Court in Los Angeles
and seeks class-action status to represent employees across the
company. NY Times says that the plaintiffs include some of the
best-known L.A. Times writers of the last generation, including
Pulitzer Prize-winning automotive writer Dan Neil; former
Washington bureau chief, Jack Nelson; and longtime legal affairs
reporter Henry Weinstein.
Aside from Mr. Zell, the suit also named as defendants the
company as well as current and former members of its board. It
accused the former management of profiting from a deal that it
knew would cripple the company.
The report also notes that the unusual takeover turned Tribune's
stock over to an employee stock ownership plan, or ESOP, so the
employees technically became the owners. But those employees
were given no say on the deal, no seats on the board and no
ability to sell shares for years to come.
"By orchestrating what was clearly an imprudent transaction,"
the lawsuit states, Mr. Zell and the former Tribune management
"breached their fiduciary duties to the employee-owners."
The complaint adds that Mr. Zell and his aides have compounded
that breach in the way they have run the company, and by using
money from the employees' pension fund to pay for buyouts and
severance. The complaint seeks unspecific monetary damages and
the removal of Mr. Zell and other board members.
The suit further claims that contrary to public statements, Mr.
Zell planned all along to sell Tribune assets and has acted
without regard to the long-term health of the company or the
interests of its owners, the employees.
"His statements have not matched his actions," Mr. Neil said.
NY Times recounts that Tribune announced the deal with Mr. Zell
in March 2007. Mr. Zell eventually put up $315 million of his
own money to take control of Tribune, which owns, along with The
LA Times, The Chicago Tribune, The Baltimore Sun and a dozen
other papers, 23 broadcast television stations and other assets.
Several analysts have said the price paid for Tribune was too
high, and it left the company too heavily leveraged, NY Times
writes.
According to NY Times, Tribune spokesman Gary Weitman declined
to comment regarding the case, saying that they "have not read
the lawsuit."
U.S. TIRE: 2006 Nitro Tire Fire Suit Settlement Gets Interim OK
---------------------------------------------------------------
Kanawha Circuit Judge Paul Zakaib recently approved a
preliminary settlement in a class action lawsuit brought against
U.S. Tire Recovery in connection with a massive tire fire at the
company's warehouse that affected St. Albans and Nitro residents
in 2006, Veronica Nett writes for Charleston Gazette.
The report says that pursuant to the settlement, every St.
Albans and Nitro area household forced to shelter in place
during the tire fire is eligible for up to $291 in damages.
However, Charleston Gazette relates that the plaintiff who filed
the suit, Marietta Angel, is not happy with the results. "It's
not going to replace what I had to throw out," she said. "I'm
still mopping up soot, and when it rains [soot] still comes up."
Ms. Angel estimated the soot and smoke from the fire cost a
minimum of $1,000 in damages to her Nitro home.
The report recounts that Ms. Angel filed the lawsuit against
U.S. Tire Recovery and Chemvalley in 2006 following the smoky
fire that burned for almost 24 hours and summoned more than 150
firefighters from 32 companies.
As part of the settlement, U.S. Tire Recovery and Chemvalley
Properties will pay an aggregate of $1.175 million to a trust
that will be distributed to residents and business owners in the
Nitro and St. Albans area that were put under a shelter-in-place
during the fire.
Each household is eligible to receive $14 to $15 for each hour
they were under shelter, Alex McLaughlin, Esq., counsel for the
plaintiffs, said. This means that residents could receive
anywhere from $68 to $291 depending on how long they were put
under shelter. Nitro was under shelter for about 19 hours and
St. Albans for about five hours, he said.
Mr. McLaughlin, of the Calwell Practice, also told Charleston
Gazette that about 6,000 residents of Nitro and St. Albans are
eligible to the settlement funds. Compensation is also open to
those who have moved since the fire.
After distribution of the funds, any remaining money will be
donated to the St. Albans and Nitro fire departments, Mr.
McLaughlin said.
The settlement, however, does not cover personal injury or
medical conditions related to the fire, Mr. McLaughlin
clarified. The suit covers only property damage, and the
"annoyance and inconvenience" of being placed under shelter, he
added.
Eligible residents will receive notification of the settlement
in the mail within 30 days, the report says.
VALASSIS COMMS: Court Denies Motion to Dismiss Securities Suit
--------------------------------------------------------------
The U.S. District Court for the District of Connecticut denied a
motion by Valassis Communications, Inc., that sought the
dismissal of a consolidated securities fraud lawsuit filed
against the company.
Upon the company's completion of the acquisition of ADVO, Inc.,
it assumed responsibility for ADVO's pending securities class
actions.
In September 2006, three securities class actions were filed:
-- "Robert Kelleher v. ADVO, Inc., et al.,"
-- "Jorge Cornet v. ADVO, Inc., et al.,"
-- "Richard L. Field v. ADVO, Inc., et al.,"
The lawsuits were filed against ADVO and certain of its officers
with the U.S. District Court for the District of Connecticut by
certain ADVO shareholders seeking to certify a class of all
persons who purchased ADVO stock between July 6, 2006, and
Aug. 30, 2006.
These complaints generally allege ADVO violated federal
securities law by making a series of materially false and
misleading statements concerning ADVO's business and financial
results in connection with the proposed merger with Valassis
and, as a result, the price of ADVO's stock was allegedly
inflated.
On Dec. 12, 2006, the Kelleher plaintiffs filed a Motion to
Partially Lift Discovery Stay, in response to which the
defendants filed an opposition on Jan. 16, 2007. The presiding
judge denied the plaintiff's motion to lift the stay on
discovery.
In addition, the court ordered the matters consolidated under a
single action, entitled "Robert Kelleher et al. v. ADVO, Inc.,
et al., Case No. 3:06CV01422(AVC)."
A revised, consolidated complaint was filed by the plaintiffs on
June 8, 2007. On Aug. 24, 2007, the defendants filed a motion
to dismiss the plaintiffs' consolidated complaint and, in April
2008, this dismissal request was denied.
The company reported no further development in the matter in its
Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2008.
The suit is "Robert Kelleher et al. v. ADVO, Inc., et al., Case
No. 3:06CV01422(AVC)," filed in the U.S. District Court for the
District of Connecticut, Judge Alfred V. Covello, presiding.
Representing the plaintiffs are:
Jennifer L. Gmitro, Esq. (JGmitro@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
Fax: 619-231-7243
- and -
Ari J. Hoffman, Esq. (ahoffman@cohenandwolf.com)
Cohen & Wolf, P.C.
1115 Broad St., Po Box 1821
Bridgeport, CT 06604
Phone: 203-368-0211
Fax: 203-394-9901
Representing the defendants are:
Sharleen Joy Davis, Esq. (sharleen.davis@klgates.com)
Kirkpatrick & Lockhart Preston Gates Ellis, LLP
State Street Financial Center
One Lincoln Street
Boston, MA 02111
Phone: 617-261-3255
Fax: 617-261-3175
- and -
Shawn M. Harpen, Esq. (sharpen@mwe.com)
McDermott Will & Emery, LLP
18191 Von Karman Avenue
Suite 500
Irvine, CA 92612
Phone: 949-757-6061
Fax: 949-851-9348
WELLS FARGO: Faces Calif. Lawsuit Over Flood Insurance Coverage
---------------------------------------------------------------
Wells Fargo & Company is facing a class-action complaint filed
in the U.S. District Court for the Eastern District of
California alleging it threatened to foreclose on a homeowner
unless he bought $250,000 in flood insurance coverage, which is
not legally required and which exceeds the unpaid balance of the
mortgage, CourtHouse News Service reports.
The plaintiff seeks to obtain judgment for damages and
compensatory restitution and injunctive and declaratory relief
for the defendant's wrongful and illegal actions.
The plaintiff wants the court to rule on:
(a) whether federal law requires class members obtain and
maintain flood hazard insurance coverage in excess of
their respective unpaid mortgage loan balance;
(b) whether defendant may enforce against class members
defendant's policy that class members maintain flood
hazard insurance coverage on their homes in the amount
of $250,000 where the unpaid balance of the loan and
mortgage held or serviced by defendant is less than
$250,000;
(c) whether defendant misrepresented to members of the
class that applicable federal law requires class
members to obtain $250,000 of flood hazard insurance
coverage regardless of the unpaid balance of the
mortgage loan held or serviced by defendant;
(d) whether defendant's misrepresentation to class members
of the amount of flood hazard insurance required by
federal law was negligent, reckless or intentional
behavior;
(e) whether defendant's misconduct respecting imposition of
flood hazard insurance coverage in excess of the
respective loan balance of class members caused
substantial economic damage to class members;
(f) whether defendant knew or should have known that is
conduct complained of was directed to one or more
senior citizens and disabled persons;
(g) whether defendant knew or should have known that its
conduct complained of caused one or more senior
citizens and disable persons to suffer loss or
encumberance of a primary residence;
(h) whether the loan and mortgage documents executed by
class members held by defendant are substantially
identical with respect to the provisions relevant to
the matters complained of;
(i) whether defendant's correspondence and written demands
to class members imposing excessive flood hazard
insurance coverage are substantially the same, if not
identical, and expressive of a common policy and plan
of defendant; and
(j) whether all or substantially all witnesses having
knowledge of defendant's policy, practices and actions
relating to imposition of excess flood hazard insurance
upon class members are the same with respect to all
class members.
The plaintiff prays:
-- that the court certify this case as a class action;
-- that the court issue an order defining plaintiff's and
defendant's respective rights and duties with respect to
the maximum monetary amount of flood hazard insurance
defendant may require of plaintiff under the mortgage;
-- that the court enjoin defendant engaging in the
unlawful, unfair and fraudulent acts and practices
alleged;
-- for compensatory damages according to proof of trial;
-- for damages and restitution pursuant to Business and
Professions Code Section 17206.1;
-- for reasonable attorneys' fees and expenses;
-- for pre-judgment interest on all sums collected;
-- for costs of suit incurred; and
-- for such other and further relief as the court may deem
proper.
The suit is "Blake v. Wells Fargo & Company, Case Number:
2:2008cv02169," filed in the U.S. District Court for the Eastern
District of California, Magistrate Judge Edmund F. Brennan,
presiding.
Representing the plaintiff is:
C. Brooks Cutter, Esq.
Kershaw, Cutter & Ratinoff, LLP
401 Watt Avenue
Sacramento, CA 958654
Phone: 916-448-9800
Fax: 916-669-4499
WEYERHAEUSER CO: Pa. Court Yet to Approve OSB Suit Settlement
-------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
has yet to give final approval to a proposed settlement in a
consolidated antitrust class-action lawsuit with regard to
Oriented Strand Boards, which names Weyerhaeuser Co. as a
defendant, according to the company's Aug. 8, 2008 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 29, 2008.
In 2006, a series of suits that had been filed against the
company were consolidated into one case in the U.S. District
Court for the Eastern District of Pennsylvania. The cases were
brought on behalf of persons and entities who directly or
indirectly purchased OSB between June 2002 and February 2006
from the company or from Louisiana-Pacific, Georgia-Pacific,
Potlatch, Ainsworth Lumber, Tolko Forest Products, Grant Forest
Products, Norbord or J.M. Huber Corp.
The consolidated lawsuit alleges that:
-- the defendants conspired to fix and raise OSB prices
in the U.S. during the class period, and
-- the plaintiffs paid artificially inflated prices for
OSB during that period.
No specific damages were alleged, but the direct and indirect
plaintiffs have estimated total damages from all defendants,
with trebling, of $4.9 billion. This amount is lower than
previously reported because the plaintiffs' experts have
modified their opinions and because the class period ending is
now February 2006 rather than "to the present."
The U.S. District Court for the Eastern District of Pennsylvania
has issued a number of rulings approving class action status for
various classes of direct and indirect purchasers for the period
from June 2002 through February 2006.
J.M. Huber, Georgia-Pacific and Ainsworth have reached
settlement with the direct and indirect purchasers.
A June 2008 trial has been scheduled and motions for summary
judgment have been filed on behalf of the remaining defendants,
including the company.
In March 2008, the company reached a settlement with the direct
purchasers for $18 million and recognizes a charge of
$18 million in the first quarter of 2008.
In April 2008, the company also reached a settlement with the
indirect purchasers for approximately $1 million.
A notice to the class will be mailed to give direct and indirect
plaintiffs a chance to opt out of the settlements and contest
the fairness of the settlement at a hearing which will be set by
the court at a later date.
The court conducted a hearing on Weyerhaeuser's settlement with
direct purchaser plaintiffs on Aug. 5, 2008, but has not
announced its decision.
The suit is "In re OSB Antitrust Litigation, Case No. 2:06-cv-
00826-PD," filed in the U.S. District Court for the Eastern
District of Pennsylvania, Judge Paul S. Diamond, presiding.
Representing the defendants are:
William P. Butterfield, Esq. (wbutterfield@cmht.com)
Cohen, Milstein, Hausfeld & Toll
1100 New York Avenue
N.W. West Tower, Suite 500
Washington, DC 20005
Phone: 202-408-4600
- and
Jeffrey J. Corrigan, Esq. (jcorrigan@srk-law.com)
Spector Roseman and Kodroff
1818 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: 215-496-0300
Representing the defendants are:
Barack S. Echols, Esq. (bechols@kirkland.com)
James Howard Mutchnik, Esq. (jmutchnik@kirkland.com)
James H. Schink, Esq. (kschink@kirkland.com)
Kirkland & Ellis, LLP
200 East Randolph Drive, Suite 7500
Chicago, IL 60601
Phone: 312-861-3144
312-861-2350
- and -
Sherry A. Swirsky, Esq. (sswirsky@schnader.com)
Schnader Harrison Segal & Lewis, LLP
1600 Market St., Ste. 3600
Philadelphia, PA 19103
Phone: 215-751-2000
Fax: 215-972-7475
WEYERHAEUSER CO: Plans to Appeal $84M Judgment in Alder Lawsuit
--------------------------------------------------------------
Weyerhaeuser Co. plans to appeal the $84 million judgment in a
purported antitrust class-action suit over alder logs and
lumber, according to the company's Aug. 8, 2008 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 29, 2008.
The suit was filed in 2004 before U.S. District Court for the
District of Oregon. It claims that as a result of the company's
alleged monopolization of what was claimed to be the alder
sawlog market in the Pacific Northwest, the company also had
monopolized or controlled an alleged market for finished alder
and charged monopoly prices for finished alder lumber.
In 2004, the judge issued an order certifying the plaintiff as
class representative for all U.S. purchasers of finished alder
lumber between April 28, 2000, and March 31, 2004, for purpose
of awarding monetary damages.
In 2005, the class counsel notified the court that 5% of the
class members opted out of the class-action lawsuit.
In 2007, the court granted the plaintiffs' motion to file a
second amended complaint, extended the claims period to Dec. 31,
2006, and scheduled trial on the matter for April 2008. In the
same year, the court denied the company's motion to decertify
the class.
Also, in 2007, the court granted the plaintiffs' request to file
a third amended complaint, which eliminated all allegations of
overbidding and overbuying of alder sawlogs as a mechanism to
affect the price of alder lumber. In turn, the company filed a
motion for summary judgment.
In April 2008, a jury found in favor of the class and imposed
trebled damages of $84 million. There are currently several
post-trial motions pending before the trial court.
The company believes that multiple errors occurred during the
trial and it intends to appeal the judgment once the post-trial
motions are decided.
Weyerhaeuser Co. -- http://www.weyerhaeuser.com/-- is an
integrated forest products company. The company's business
segments are Timberlands, which includes logs, chips and timber;
Wood Products, which includes softwood lumber, engineered
lumber, structural panels, hardwood lumber, and building
materials distribution; Cellulose Fibers, which comprises pulp
and liquid packaging board; Real Estate, which comprises real
estate development, construction and sales, and Corporate and
Other. The Company grows and harvests trees, builds homes, and
makes wood and paper products. It has operations in 13
countries and has customers worldwide. The company manages 22
million acres of forests.
New Securities Fraud Cases
BANKUNITED FINANCIAL: Coughlin Stoia Files Fla. Securities Suit
---------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP commenced a class
action lawsuit on behalf of an institutional investor in the
United States District Court for the Southern District of
Florida on behalf of purchasers of BankUnited Financial
Corporation common stock during the period between April 18,
2006, and June 18, 2008.
The complaint charges BankUnited and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
BankUnited is the holding company for BankUnited, FSB, which
provides consumer and commercial banking products and services
to consumers and businesses located primarily in Florida.
The complaint alleges that during the Class Period, defendants
made false and misleading statements about BankUnited.
Specifically, defendants misrepresented:
(a) the losses the Company was likely to suffer due to
BankUnited's poor underwriting standards, which losses
would occur once interest rates reset on the billions
of dollars of pay-option arms (adjustable rate
mortgages where borrowers had the ability to choose
their payment amount during the initial period of the
loan);
(b) BankUnited's sketchy appraisal process, which permitted
borrowers to obtain mortgages in excess of their
ability to pay and in excess of the value of the
underlying property; and
(c) BankUnited's policies with regard to "piggy-back"
loans, which are essentially second mortgages made at
the time a home is purchased to fund a down payment.
The suit relates that when the truth began to come to light,
BankUnited's stock price plunged, damaging innocent investors.
The plaintiff seeks to recover damages on behalf of all
purchasers of BankUnited common stock during the Class Period.
For more information, contact:
Darren Robbins, Esq. (djr@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 800-449-4900
619-231-1058
NEXTWAVE WIRELESS: Coughlin Stoia Files Securities Fraud Suit
-------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP filed a class action
suit in the United States District Court for the Southern
District of California on behalf of purchasers of NextWave
Wireless Inc. common stock during the period between March 30,
2007, and August 7, 2008.
The complaint charges NextWave and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
NextWave is a mobile broadband and multimedia technology company
that develops, produces and markets mobile multimedia and
wireless broadband products.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. As a result of
defendants' false statements, NextWave stock traded at
artificially inflated prices during the Class Period, reaching
as high as $10.10 per share in June 2007.
On August 7, 2008, after the market closed, Nextwave issued its
second quarter 2008 financial results, announcing it only had
$71.1 million in cash and similar instruments available as of
June 30, 2008, and, unless it raised money, its cash would run
out at the beginning of October 2008. As a result, the Company
was seeking financing that would give the Company enough money
to operate through June 2009. On this news, NextWave's stock
fell $1.90 per share to close at $0.95 per share, a one-day
decline of 67%.
According to the complaint, the true facts, which were known by
the defendants but concealed from the investing public during
the Class Period, were as follows:
(a) NextWave did not have adequate sources of liquidity to
continue operations as it executed its growth strategy
and continued making aggressive worldwide acquisitions;
(b) defendants had no reasonable basis to make favorable
statements that the Company's WiMAX semiconductor
products would be available for commercial sale in the
first half of 2008;
(c) NextWave's growth and acquisition strategy was not
financially successful and did not provide the basis
for continued growth or financial success because it
was straining NextWave's fragile liquidity position and
NextWave did not have the financial resources to
continue to operate its world-wide operations through
the end of 2008;
(d) NextWave failed to timely disclose that it had invested
all of its marketable securities in extremely high-risk
and illiquid auction rate securities; and
(e) NextWave's ability to continue as a going concern was
seriously in question by reason of the alleged facts.
The plaintiff seeks to recover damages on behalf of all
purchasers of NextWave common stock during the Class Period.
For more information, contact:
Darren Robbins, Esq. (djr@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 800-449-4900
619-231-1058
NOVATEL WIRELESS: Glancy Binkow Files Calif. Securities Lawsuit
---------------------------------------------------------------
Glancy Binkow & Goldberg LLP filed a class action lawsuit in the
United States District Court for the Southern District of
California on behalf of a class consisting of all persons or
entities who purchased or otherwise acquired the securities of
Novatel Wireless, Inc., between February 5, 2007, and August 19,
2008, inclusive.
The Complaint charges Novatel and certain of the Company's
executive officers with violations of federal securities laws.
Among other things, plaintiff claims that defendants' material
omissions and dissemination of materially false and misleading
statements concerning the Company's financial performance and
prospects caused Novatel's stock price to become artificially
inflated, inflicting damages on investors.
Novatel Wireless provides wireless broadband access solutions
for the mobile communications market worldwide.
The Complaint alleges that throughout the Class Period
defendants knew or recklessly disregarded that their public
statements concerning Novatel's financial performance were
materially false and misleading. Specifically, the Complaint
alleges that defendants' public statements failed to disclose or
indicate the following:
(1) that the Company improperly recognized revenue in
violation of its own revenue cut-off procedures;
(2) that, as a result of this improper revenue recognition,
the Company misstated its financial results during the
Class Period;
(3) that the Company's financial results were not prepared
in accordance with Generally Accepted Accounting
Principles;
(4) that the Company lacked adequate internal and financial
controls; and
(5) as a result of the foregoing, the Company's financial
statements were materially false and misleading at all
relevant times.
Throughout most of the Class Period, defendants issued favorable
revenue guidance and touted the Company's financial performance
and prospects. For example, on February 20, 2008, Novatel
provided revenue guidance of approximately $110 million for
first quarter 2008, based in part on "expectations of strong
demand for the Company's products, particularly its USB
products, as well as assumptions about industry wide supply
constraints on certain components."
On May 20, 2008, however, Novatel filed a Form 8-K with the SEC
stating that the Company "will notify the Nasdaq Stock Market
that it did not timely file its Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 2008," and that "the
Company and its Audit Committee have undertaken an expanded
enhanced review of the Company's revenue cut off procedures and
internal controls related to certain customer contracts, which
review is ongoing."
Then, on August 19, 2008, following the close of trading Novatel
shocked investors when it issued a press release which revealed
that the Audit Committee of the Company's board of directors had
reviewed the accounting for six transactions and made a
preliminary determination to move approximately $3.4 million of
revenues from the first quarter of 2008 to the second quarter of
2008. Moreover, Novatel disclosed for the first time that this
was not a minor accounting issue and that there was a
possibility that the Company may have to restate its audited
financial statements for the 2007 fiscal year. As a result of
this news, shares of Novatel declined $2.11 per share, more than
25%, to close on August 20, 2008, at $6.29 per share, on
unusually heavy volume.
The plaintiff seeks to recover damages on behalf of class
members.
Interested parties may move the court no later than November 17,
2008, for lead plaintiff appointment.
For more information, contact:
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Glancy Binkow & Goldberg LLP
1801 Ave. of the Stars, Suite 311
Los Angeles, CA 90067
Phone: 310-201-9150
888-773-9224
e-mail: info@glancylaw.com
Web site: http://www.glancylaw.com/
NVIDIA CORP: Kantrowitz Goldhamer Files Securities Fraud Lawsuit
----------------------------------------------------------------
Kantrowitz, Goldhamer & Graifman, P.C., filed a class action
lawsuit in the U.S. District Court for the Northern District of
California on behalf of plaintiffs and a proposed class of
purchasers of securities of Nvidia Corp. during the period
November 8, 2007, through July 2, 2008, inclusive.
The Complaint alleges that Nvidia and certain officers and
directors violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 by making false and misleading statements
and omissions concerning the undisclosed fact that Nvidia's
graphic cards, which have been distributed by the Company, were
defective and that the defect would have a material negative
impact on the Company's financial condition, financial
statements and future business prospects. Moreover, by failing
to make the required adjustments to the Company's reported
financial results, Defendants underestimated Nvidia's expenses
and overstated the Company's revenue and income. Thus, the
Company's financial statements, including its Form 10-K filings,
for the period from November 8, 2007, to July 2, 2008, were
materially false and misleading.
The plaintiff seeks to recover damages on his own behalf and on
behalf of the Class.
Interested parties may move the court no later than 60 days from
September 9, 2008.
For more information, contact:
Gary S. Graifman, Esq. (ggraifman@kgglaw.com)
Kantrowitz, Goldhamer & Graifman P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Toll-free: 800-660-7843
*********
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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.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2008. All rights reserved. ISSN 1525-2272.
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