/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090324.mbx C L A S S A C T I O N R E P O R T E R Tuesday, March 24, 2009, Vol. 11, No. 58 Headlines ADVANCE AMERICA: Ark. Court Allows "McGinnis" Case to Proceed AMERICAN INT'L: Michigan Named Lead Plaintiff in Holders' Case AMGEN INC: April 27 Fairness Hearing Set for AWP Suit Settlement AMGEN INC: Motion v. Certification in Securities Suit Due April AMGEN INC: "Swanston" Case Over AWP Claims Pending in Arizona CHRYSLER LLC: Panel Transfers W.Va. Sludge Suits to New Jersey CIRCUIT CITY: Faces Suit in Virginia Alleging WARN Violations COLUMBIA GRAIN: Faces Montana Suit Claiming Contract Violations CON-WAY INC: Ruling on WARN Act Violations Suit v. EWA Pending DIEBOLD INC: Appeal to Dismissal of Ohio Securities Suit Pending DIEBOLD INC: Consolidated ERISA Violations Suit Pending in Ohio FEDEX KINKO: Ninth Circuit Reinstates Calif. Overtime Pay Case MAYO CLINIC: Ariz. Judge Denies Dismissal Motion in Nurses' Suit NPS PHARMACEUTICALS: Settles Utah Securities Fraud Suit For $15M OMNICOM GROUP: No Argument Date Yet for Appeal to Dismissed Suit SCHERING-PLOUGH: Continues to Face Third-Party Payors' Lawsuits SCHERING-PLOUGH: Remanded N.J. Lawsuit Over Savings Plan Ongoing SCHERING-PLOUGH: June 1 Trial Set for N.J. Securities Suit Deal SCHERING-PLOUGH: K-DUR Suits Recommended for Dismissal in Feb. SCHERING-PLOUGH: VYTORIN, ZETIA and ENHANCE Suits Still Pending VOYAGER LEARNING: Approval Sought For $20M Deal in Mich. Lawsuit WILLIAMS PRODUCTION: Pays $4.7M to Settle Colo. Royalties Suit New Securities Fraud Cases DEUTSCHE BANK: Murray Frank Files Securities Fraud Suit in N.Y. LEVEL 3 COMMS: Alfred G. Yates Files Securities Fraud Lawsuit STEEL DYNAMICS: Brualdi Law Firm Announces Stock Lawsuit Filing ********* ADVANCE AMERICA: Ark. Court Allows "McGinnis" Case to Proceed ------------------------------------------------------------- The Arkansas Supreme Court allowed a purported class-action suit, entitled, Brenda McGinnis v. Advance America Servicing of Arkansas, Inc. et al.," to proceed with its current lead plaintiff as the class representative, the Arkansas Democrat Gazette reports. In essence, the court rejected defendant Advance America's appeal of Circuit Judge John Alexander Thomas' April 15, 2008, order, which certified as a class a group of people "who have engaged in check cashing or deferred presentment transactions with the Defendants in Arkansas since Feb. 27, 2002, up through and including the date of the entry of judgment in this case," according to the Arkansas Democrat Gazette report. Linda Satter of The Arkansas Democrat Gazette reported that Judge Thomas allowed plaintiff to be the designated class representative. In doing so, he rejected arguments from Advance America that the plaintiff wasn't qualified because she admittedly suffers from mental illness and allegedly has conflicts of interest with other class members. In an opinion written by Chief Justice Jim Hannah, the Supreme Court said that although the plaintiffs have admitted being diagnosed with schizophrenia and having hallucinations, she has counsel, and that "Courts have recognized that persons with limited intellect or mental handicaps can serve as representative plaintiffs in class actions," reports the Arkansas Democrat Gazette. Judge Hannah noted that the circuit court determined that the plaintiff understood the essential facts of the case, showed a serious interest in the case and shared the same overall complaint -- being charged a usurious interest rate -- as the other class members. The putative class-action lawsuit was filed on Feb. 27, 2007 in the Circuit Court of Clark County, Arkansas by Brenda McGinnis. It alleges violations of the Arkansas usury law, the Arkansas Deceptive Trade Practices Act and a 2001 class action settlement agreement entered into by the company's prior subsidiary in Arkansas. The complaint also alleges that the company's current subsidiary made usurious loans under the Arkansas Check Cashers Act beginning on May 15, 2001. It seeks compensatory damages in amount equal to twice the interest paid on the loans, a declaration that the contracts are void, enforcement of the 2001 class action settlement agreement, attorneys fees and costs. The trial court has denied the company's motion to compel arbitration and the class was certified on April 22, 2008. The company appealed both decisions. The Appellate Court has issued a stay of proceedings in the trial court pending outcome of the company's appeal of the arbitration issue, according to Advance America's Aug. 8, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2008. South Carolina-based Advance America, Cash Advance Centers, Inc. -- http://www.advanceamericacash.com/-- is a provider of payday cash advance services in the U.S. Advance America Servicing of Arkansas, Inc., is a subsidiary of Advance America, Cash Advance. AMERICAN INT'L: Michigan Named Lead Plaintiff in Holders' Case -------------------------------------------------------------- Michigan has been named the lead plaintiff in a national class- action lawsuit against insurance giant American International Group, Inc., Dawson Bell of the Detroit Free Press reports. A judge determines who will be the lead plaintiff. Among Michigan's claims is that it had the most victims -- roughly 574,000 -- who lost money in pension funds, according to the Detroit Free Press report. Michigan Treasurer Robert Kleine said in a press statement, "Our decision to pursue lead-plaintiff status sends a clear message that we will take every step necessary to recover lost funds and ensure our investments do not fall victim to fraudulent activity." Together, Mr. Kleine and Attorney General Mike Cox said if the case goes to trial, they will lead all strategy decisions. They will fight on behalf of AIG stock and bondholders and negotiate settlement terms, reports the Detroit Free Press. AMGEN INC: April 27 Fairness Hearing Set for AWP Suit Settlement ---------------------------------------------------------------- A fairness hearing on the tentative class settlement of the lawsuit captioned, "In Re: Pharmaceutical Industry Average Wholesale Price Litigation," involving Amgen Inc., is scheduled for April 27, 2009. Amgen and Immunex are named as defendants, either separately or together, in numerous civil actions broadly alleging that they, together with many other pharmaceutical manufacturers, reported prices for certain products in a manner that allegedly inflated reimbursement under Medicare and/or Medicaid programs and commercial insurance plans, including co-payments paid to providers who prescribe and administer the products. The complaints generally assert varying claims under the Medicare and Medicaid statutes, as well as state law claims for deceptive trade practices, common law fraud and various related state law claims. The complaints seek an undetermined amount of damages, as well as other relief, including declaratory and injunctive relief. The AWP litigation was commenced against Amgen and Immunex on Dec. 19, 2001, with the filing of "Citizens for Consumer Justice, et al. v. Abbott Laboratories, Inc., et al." Additional cases have been filed since that time. Most of these actions have been consolidated, or are in the process of being consolidated, in a federal Multi-District Litigation proceeding ("the MDL Proceeding"), captioned In Re: Pharmaceutical Industry Average Wholesale Price Litigation MDL No. 1456 and pending in the Massachusetts District Court. In the MDL Proceeding, the Massachusetts District Court has set various deadlines relating to motions to dismiss the complaints, discovery, class certification, summary judgment and other pre- trial issues. For the private class action cases, the Massachusetts District Court has divided the defendant companies into a Track I group and a Track II group. On Jan. 30, 2006, the Massachusetts District Court certified three classes (one nationwide class and two Massachusetts only classes) with respect to the Track I group. Both Amgen and Immunex are in the Track II group. On March 2, 2006, plaintiffs filed a fourth amended master consolidated complaint, which did not include their motion for class certification as to the Track II group. On Nov. 6, 2006, the Massachusetts District Court commenced the Track I trial as to the two Massachusetts only classes certified. Closing arguments in that case were held on Jan. 26, 2007. On March 7, 2008, the Track II defendants reached a tentative class settlement of the MDL Proceeding, which was subsequently amended on April 3, 2008. The tentative Track II settlement relates to claims against numerous defendants, including Amgen Inc. and Immunex Corporation. On July 2, 2008, the Massachusetts District Court issued an order of preliminary approval of the Track II defendants' class settlement and scheduled a fairness hearing for Dec. 16, 2008. According to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008, at that hearing, the District Court was not satisfied with several notice requirements the plaintiffs were to have completed prior to the hearing and rescheduled the fairness hearing for April 27, 2009. Amgen Inc. -- http://www.amgen.com/-- is a biotechnology company that discovers, develops, manufactures and markets human therapeutics-based on advances in cellular and molecular biology. The company operates in human therapeutics. It markets human therapeutic products in the areas of supportive cancer care, nephrology and inflammation. Its principal products include Aranesp (darbepoetin alfa), EPOGEN (Epoetin alfa), Neulasta (pegfilgrastim), NEUPOGEN (Filgrastim) and Enbrel (etanercept). AMGEN INC: Motion v. Certification in Securities Suit Due April --------------------------------------------------------------- Amgen's response in opposition to the plaintiffs' motion for class certification in a consolidated action captioned, "In re Amgen Inc. Securities Litigation is due in April 2009." Six federal class-action shareholder complaints filed against Amgen Inc., Kevin W. Sharer, Richard D. Nanula, Dennis M. Fenton, Roger M. Perlmutter, Brian M. McNamee, George J. Morrow, Edward V. Fritzky, Gilbert S. Omenn and Franklin P. Johnson, Jr., (the "Federal Defendants") in the U.S. District Court for the Central District of California (the "California Central District Court") were consolidated by the California Central District Court into one action captioned In re Amgen Inc. Securities Litigation. The six lawsuits were "Kairalla v. Amgen Inc., et al.," "Mendall v. Amgen Inc., et al.," "Jaffe v. Amgen Inc., et al.," "Eldon v. Amgen Inc., et al.," "Rosenfield v. Amgen Inc., et al.," and "Public Employees' Retirement Association of Colorado v. Amgen Inc., et al." The consolidated complaint was filed with the California Central District Court on Oct. 2, 2007. The consolidated complaint alleges that Amgen and these officers and directors made false statements that resulted in: (i) deceiving the investing public regarding Amgen's prospects and business; (ii) artificially inflating the prices of Amgen's publicly traded securities and (iii) causing plaintiff and other members of the class to purchase Amgen publicly traded securities at inflated prices. The complaint also makes off-label marketing allegations that, throughout the class period, the Federal Defendants improperly marketed Aranesp(R) and EPOGEN(R) for off-label uses while aware that there were alleged safety signals with these products. The plaintiffs seek class certification, compensatory damages, legal fees and other relief deemed proper. The Federal Defendants filed a motion to dismiss on Nov. 8, 2007. On Feb. 4, 2008, the California Central District Court granted in part, and denied in part, the Federal Defendants' motion to dismiss the consolidated amended complaint. Specifically, the California Central District Court granted the Federal Defendants' motion to dismiss as to individual defendants Fritzky, Omenn, Johnson, Fenton and McNamee, but denied the Federal Defendants' motion to dismiss as to individual defendants Sharer, Nanula, Perlmutter and Morrow. The California Central District Court granted plaintiffs leave to amend the complaint. Parties in the case are conducting class certification discovery. Plaintiff's motion for class certification is due before the California Central District Court on March 4, 2009, and Amgen's response in opposition is due 45 days later. The California Central District Court has not set a date for the hearing on the motion for class certification, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Amgen Inc. -- http://www.amgen.com/-- is a biotechnology company that discovers, develops, manufactures and markets human therapeutics-based on advances in cellular and molecular biology. The company operates in human therapeutics. It markets human therapeutic products in the areas of supportive cancer care, nephrology and inflammation. Its principal products include Aranesp (darbepoetin alfa), EPOGEN (Epoetin alfa), Neulasta (pegfilgrastim), NEUPOGEN (Filgrastim) and Enbrel (etanercept). AMGEN INC: "Swanston" Case Over AWP Claims Pending in Arizona ------------------------------------------------------------- Amgen Inc. continues to face an action over average wholesale price tagged Robert J. Swanston v. TAP Pharmaceutical Products, Inc., et al., according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The Arizona state class action was filed against Amgen and Immunex on Dec. 20, 2002, in the Maricopa County, Arizona Superior Court. The Maricopa County, Arizona Superior Court set a hearing on plaintiffs' motion to certify a statewide class for May 13, 2005; however, the state court stayed the case in March 10, 2005. The case remains stayed and another status conference was held on March 17, 2008. On Aug. 6, 2008, Defendants filed a motion for summary judgment. The hearing on defendants' motion for summary judgment was postponed due to need for assignment of a new judge. On Oct. 20, 2008, the Track II defendants in the multi-district litigation proceeding captioned, "In Re: Pharmaceutical Industry Average Wholesale Price Litigation," filed a motion to stay all proceedings. Amgen Inc. -- http://www.amgen.com/-- is a biotechnology company that discovers, develops, manufactures and markets human therapeutics-based on advances in cellular and molecular biology. The company operates in human therapeutics. It markets human therapeutic products in the areas of supportive cancer care, nephrology and inflammation. Its principal products include Aranesp (darbepoetin alfa), EPOGEN (Epoetin alfa), Neulasta (pegfilgrastim), NEUPOGEN (Filgrastim) and Enbrel (etanercept). CHRYSLER LLC: Panel Transfers W.Va. Sludge Suits to New Jersey -------------------------------------------------------------- The Judicial Panel on Multidistrict Litigation transferred a West Virginia class-action suit against automaker Chrysler LLC and five similar suits to a New Jersey court, Steve Korris of The West Virginia Record reports. The panel assigned all six suits to Judge Faith Hochberg of the U.S. District Court for the District of New Jersey. The transfer to New Jersey took effect on March 10, 2009, according to The West Virginia Record report. In general, the lawsuits allege that oil sludge accumulated in 2.7-liter Chrysler engines, creating a risk of overheating, reports The West Virginia Record. In the West Virginia case, Robert Trezza and Susan Trezza proposed to lead a class-action suit in federal court claiming Chrysler owes West Virginians at least $5 million. The West Virginia Record reported that attorney Rodney Miller, Esq. of Birmingham, Ala., identified his clients as Ohio residents who formerly lived in Parkersburg. The first page of their complaint stated that they bought a 1999 Dodge Intrepid. The fourth page stated that they bought a 1999 Chrysler Sebring. The plaintiffs claimed Chrysler built a million defective engines from 1998 to 2004. Mr. Miller wrote, "Chrysler received hundreds of complaints of engine failure with the 2.7L engine, and was on notice that these engines were defective and would fail prematurely even with proper maintenance." Chrysler equipped engines with five quart oil pumps when Chrysler knew the engines needed six quart pumps, he wrote, reports The West Virginia Record. CIRCUIT CITY: Faces Suit in Virginia Alleging WARN Violations ------------------------------------------------------------- Washington, D.C. (PRWEB) March 20, 2009 -- Kantrowitz Goldhamer & Graifman and The Mason Law Firm, L.L.P., have filed a class action lawsuit in the United States Bankruptcy Court for the Eastern District of Virginia, "Mondragon v. Circuit City Stores, Inc., et al., Civil Action No. 09-03073-KRH," on behalf of several hundred employees who were laid off by Circuit City in November 2008 and thereafter without receiving prior notice. Circuit City, the country's largest consumer electronics retailer, filed for Chapter 11 bankruptcy protection on January 16, 2009. The Worker Adjustment and Retraining Notification Act (the "WARN Act") provides that employers must give sixty days notice to employees prior to a plant closing or mass layoff. The lawsuit seeks sixty days wages and benefits in lieu of the notice. The lead plaintiff, Marlon Mondragon, was employed by Circuit City at its retail outlet located in the Palisades Mall, West Nyack, New York. Mondragon filed this lawsuit on behalf of all employees who were part of the layoffs. "The WARN Act provides for sixty days advance notice of plant closings and mass layoffs to affected employees" said Gary Graifman of Kantrowitz Goldhamer & Graifman, P.C., an attorney for the plaintiffs. "Although the Bankruptcy Court has authorized WARN Act payments to terminated employees in an estimated amount of $8 to $10 million, Circuit City has not made any payments at all." Co-Counsel Gary E. Mason of The Mason Law Firm, L.L.P., added that the lawsuit seeks compliance with the federal laws passed by Congress to protect employees from being abruptly terminated without notice. For more details, contact: Gary S. Graifman, Esq. Kantrowitz Goldhamer & Graifman, P.C. Phone: 845-356-2570 - and - Gary E. Mason, Esq. The Mason Law Firm, L.L.P. Phone: 202-429-2290 COLUMBIA GRAIN: Faces Montana Suit Claiming Contract Violations --------------------------------------------------------------- Columbia Grain faces a purported class-action lawsuit by Great Falls, Montana farmers who accuse the company of arbitrarily raising the dockage rates, or penalty for grain defects, beyond those specified in a contract, Peter Johnson of the Great Falls Tribune reports. In a recently filed amended complaint, attorneys Gary Zadick, Esq., Roger Witt, Esq., and Channing Hartelius, Esq., stated that they are seeking a class-action lawsuit involving 70 or 80 farmers. Listed as representative plaintiffs were Cline Farms Inc., John Diekhans, Klimas Farm Inc. and Missouri River Breaks Ranch Inc., reports the Great Falls Tribune. The farmers' lawsuit -- filed in state District Court -- states that many area farmers entered into a contract before July 1, 2008, to sell their grain to the Columbia Grain elevator. The contract included a particular discount for dockage, a penalty the elevator can claim for a load of grain that has such flaws as cracked kernels or foreign material, according to the suit, a copy of which was obtained by the Great Falls Tribune. The plaintiffs say Columbia Grain charged a higher dockage rate for grain presold to the company under the contract before July 1, but delivered afterward. The suit states that Columbia Grain was notified of its failure to follow the dockage rate listed in the contract, but it did not properly compensate the farmers, reports the Great Falls Tribune. It contends that Columbia breached the terms of the contract by charging higher dockage fees and should be required to pay exemplary or punitive damages for fraudulent misrepresentation, according to the Great Falls Tribune CON-WAY INC: Ruling on WARN Act Violations Suit v. EWA Pending -------------------------------------------------------------- The U.S. District Court for the Southern District of Ohio's decision in a class action lawsuit filed against Con-way Inc.'s former subsidiary, Emery Worldwide Airlines, Inc. ("EWA"), alleging violations of the Worker Adjustment and Retraining Notification Act (the "WARN Act") is pending. In February 2002, a lawsuit was filed against EWA in the District Court for the Southern District of Ohio, under the WARN Act, in connection with employee layoffs and ultimate terminations due to the August 2001 grounding of EWA's airline operations and the shutdown of the airline operations in December 2001. The court subsequently certified the lawsuit as a class action on behalf of affected employees laid off between August 11 and August 15, 2001. The WARN Act generally requires employers to give 60-days notice, or 60-days pay and benefits in lieu of notice, of any shutdown of operations or mass layoff at a site of employment. The estimated range for potential loss on this matter is zero to approximately $9 million, including accrued interest. The lawsuit was tried in early January 2009, and the parties are awaiting a decision from the court, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Con-way Inc. -- http://www.con-way.com/-- provides transportation, logistics and supply-chain management services for a range of manufacturing, industrial and retail customers. Con-way's principal business units operate in regional and transcontinental less-than-truckload (LTL) and full-truckload freight transportation, contract logistics and supply-chain management, truckload brokerage, and trailer manufacturing. Con-way Inc. is divided into five segments: Freight, Logistics, Truckload, Vector, and Other. DIEBOLD INC: Appeal to Dismissal of Ohio Securities Suit Pending ---------------------------------------------------------------- The plaintiffs' appeal to the dismissal of the matter, "In re: Diebold Securities Litigation, Case No. 5:2005cv02873," remains pending with the U.S. Court of Appeals for the Sixth Circuit. Initially, several purported class-action suits were filed in the U.S. District Court for the Northern District of Ohio against Diebold, Inc., and certain of its current and former officers and directors, alleging violations of the federal securities laws. These complaints seek compensatory damages in an unspecific amount, fees and expenses related to such lawsuits and the granting of extraordinary equitable and/or injunctive relief. The lawsuits are: -- "Konkol v. Diebold Inc., et al., No. 5:05CV2873 (N.D. Ohio, filed Dec. 13, 2005)." -- "Ziolkowski v. Diebold Inc., et al., No. 5:05CV2912 (N.D. Ohio, filed Dec. 16, 2005)." -- "New Jersey Carpenter's Pension Fund v. Diebold, Inc., No. 5:06CV40 (N.D. Ohio, filed Jan. 6, 2006)." -- "Rein v. Diebold, Inc., et al., No. 5:06CV296 (N.D. Ohio, filed Feb. 9, 2006)." -- "Graham v. Diebold, Inc., et al., No.5:05CV2997 (N.D. Ohio, filed Dec. 30, 2005)." The Konkol, Ziolkowski, New Jersey Carpenter's Pension Fund, Rein and Graham cases, which allege violations of the federal securities laws, have been consolidated into a single proceeding. On Aug. 22, 2008, the court dismissed the consolidated amended complaint in the consolidated securities litigation and entered a judgment in favor of the defendants. On Sept. 16, 2008, the plaintiffs in the consolidated securities litigation filed a notice of appeal with the U.S. Court of Appeals for the Sixth Circuit (Class Action Reporter, Oct. 14, 2008). No further updates were provided in the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "In re: Diebold Securities Litigation, Case No. 5:2005-cv-02873," filed in the U.S. District Court for the Northern District of Ohio, Judge Peter C. Economus, presiding. Representing the plaintiff are: Lauren S. Antonino, Esq. Chitwood Harley Harnes 2300 Promenade II 1230 Peachtree Street, NE Atlanta, GA 30309 Phone: 404-873-3900 Fax: 404-876-4476 Lauren Block, Esq. (lblock@milbergweiss.com) Milberg, Weiss & Bershad One Pennsylvania Plaza New York, NY 10119 Phone: 212-631-8630 Fax: 212-868-1229 - and - John R. Climaco, Esq. Climaco, Lefkowitz, Peca, Wilcox & Garofoli Ste. 1950 55 Public Square Cleveland, OH 44113 Phone: 216-621-8484 Fax: 216-771-1632 e-mail: jrclim@climacolaw.com Representing the defendants is: John M. Newman, Jr., Esq. Jones Day 901 Lakeside Avenue Cleveland, OH 44114 Phone: 216-586-7207 Fax: 216-579-0212 e-mail: jmnewman@jonesday.com DIEBOLD INC: Consolidated ERISA Violations Suit Pending in Ohio --------------------------------------------------------------- Diebold, Inc. continues to face a consolidated class-action suit in the U.S. District Court for the Northern District of Ohio, alleging violations of the Employee Retirement Income Security Act of 1974. Initially, several purported class-action lawsuits were filed against the company and certain of its current and former officers and directors, by shareholders and participants in the company's 401(k) savings plan, alleging breaches of fiduciary duties with respect to the 401(k) plan. These complaints seek compensatory damages in an unspecific amount, fees and expenses related to such lawsuits and the granting of extraordinary equitable and/or injunctive relief. The suits are: -- "McDermott v. Diebold, Inc., et al., No. 5:06CV170 (N.D. Ohio, filed Jan. 24, 2006)." -- "Barnett v. Diebold, Inc., et al., No. 5:06CV361 (N.D. Ohio, filed Feb. 15, 2006)." -- "Farrell v. Diebold, Inc., et al., No. 5:06CV307 (N.D. Ohio, filed Feb. 8, 2006)." -- "Forbes v. Diebold, Inc., et al., No. 5:06CV324 (N.D. Ohio, filed Feb. 10, 2006)." -- "Gromek v. Diebold, Inc., et al., No. 5:06CV579 (N.D. Ohio, filed March 14, 2006)." The McDermott, Barnett, Farrell, Forbes and Gromek cases, which allege breaches of fiduciary duties under the Employee Retirement Income Security Act of 1974 with respect to the 401(k) plan, have been consolidated into a single proceeding (Class Action Reporter, Oct. 14, 2008). The company did not disclose further developments regarding the case in its Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "In re: Diebold ERISA Litigation, Case No. 5:06-cv- 00170-PCE," filed in the U.S. District Court for the Northern District of Ohio, Judge Peter C. Economus, presiding. Representing the plaintiffs are: John R. Climaco, Esq. (jrclim@climacolaw.com) Climaco, Lefkowitz, Peca, Wilcox & Garofoli Ste. 1950 55 Public Square Cleveland, OH 44113 Phone: 216-621-8484 Fax: 216-771-1632 - and - Mark K. Gyandoh, Esq. (mgyandoh@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 are: Donald L. Havermann, Esq. (dhavermann@morganlewis.com) Morgan, Lewis & Bockius 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5072 Fax: 202-739-3001 - and - John M. Newman, Jr., Esq. (jmnewman@jonesday.com) Jones Day 901 Lakeside Avenue Cleveland, OH 44114 Phone: 216-586-7207 Fax: 216-579-0212 FEDEX KINKO: Ninth Circuit Reinstates Calif. Overtime Pay Case -------------------------------------------------------------- U.S. Circuit Court of Appeals for the Ninth Circuit reinstated a class-action lawsuit in which several hundred FedEx Kinko's center managers in California are seeking overtime pay, CBS 5 reports. In its ruling, a three-judge panel of the Ninth Circuit stated that Judge Saundra Armstrong of the U.S. District Court for the Northern District of California used the wrong standard in when she ruled in 2007 that the managers could not pursue their case as a group or class, according to the CBS 5 report. The panel sent the lawsuit, filed against FedEx Kinko's Office and Print Services in 2005, back to Judge Armstrong's court for further consideration. CBS 5 reported that the issue in the case is whether the center managers are executive employees who are exempt from overtime pay. The appeals court said preliminary evidence submitted by the plaintiffs had established "a genuine issue" as to whether the employees spent more than half their time on executive tasks and were therefore exempt from overtime pay, reports CBS 5. MAYO CLINIC: Ariz. Judge Denies Dismissal Motion in Nurses' Suit ---------------------------------------------------------------- Judge Susan R. Bolton of the U.S. District Court for the District of Arizona denied three hospitals' motion for dismissal from a class-action suit brought by nurses in Arizona who accused a state health care association and participating hospitals of operating a cartel and suppressing wages, but tossed the plaintiffs' state law claims for interference with business expectancy and unfair competition, Law360 reports. In a ruling issued o March 19, 2009, Judge Bolton denied the majority of a motion to dismiss filed by Mayo Clinic Arizona, one of the defendants in the case, according to the Law360 report. NPS PHARMACEUTICALS: Settles Utah Securities Fraud Suit For $15M ---------------------------------------------------------------- NPS Pharmaceuticals, Inc. settled consolidated securities fraud class-action lawsuit that was pending with the U.S. District Court for the District of Utah, Steven Oberbeck of The Salt Lake Tribune reports. Under the terms of the settlement agreement filed in the U.S. District Court for the District of Utah, investors who purchased NPS stock between August 7, 2001, and May 2, 2006, will share in a $15 million fund to be set up by the company, according to The Salt Lake Tribune report. In 20006, NPS Pharmaceuticals and certain of its officers were named as defendants in several purported securities fraud class- action lawsuit (Class Action Reporter, Jan. 12, 2009). The suits were: -- "Roffe v. NPS Pharmaceuticals, Inc., et al.;" -- "Baird v. NPS Pharmaceuticals, Inc., et al.;" -- "McCormick v. NPS Pharmaceuticals, Inc. et al.;" and -- "Skubella v. NPS Pharmaceuticals, Inc. et al." All lawsuits contain substantially identical allegations and allege that between August 2005 and May 2006, the defendants made false and misleading statements concerning the company's market prospects for its proprietary drug, PREOS(R), in violation of federal securities laws. PREOS is for the treatment of osteoporosis. By order dated Sept. 14, 2006, the court consolidated the four separately filed lawsuits into one action. By order dated Nov. 17, 2006, the court appointed lead plaintiff and counsel for the proposed class. On Jan. 16, 2007, the lead plaintiff and its counsel filed a consolidated amended complaint asserting two federal securities claims on behalf of lead plaintiff and all other shareholders of the company who purchased publicly traded shares of company between Aug. 7, 2001, and May 2, 2006. The consolidated complaint asserts two claims: -- a claim founded upon Section 10(b) of the U.S. Securities Exchange Act of 1934, or the 1934 Act, and -- SEC Rule 10b-5 promulgated thereunder, which is asserted against all defendants, and a claim founded upon Section 20(a) of the 1934 Act, which is asserted against the individual defendants. Both claims are based on the allegations that, during the class period, the company and the individual defendants made false and misleading statements to the investing public concerning PREOS. The consolidated complaint alleges that false and misleading statements were made during the class period concerning the efficacy of PREOS as a treatment for post-menopausal osteoporosis, the potential market for PREOS, the dangers of hypercalcemic toxicity as a side effect of injectable PREOS, and the prospects of U.S. Food and Drug Administration approval of NPS's New Drug Application for injectable PREOS. The complaint also alleges claims of option backdating and insider trading of stock during the class period. The consolidated complaint seeks compensatory damages in an unspecified amount, unspecified equitable or injunctive relief, and an award of an unspecified amount for plaintiff's costs and attorneys' fees. On March 19, 2007, the defendants filed a motion to dismiss the consolidated complaint, which the court denied on July 3, 2007. On Aug. 1, 2007, the court entered a scheduling order setting a trial date for the action on April 20, 2009. On Nov. 1, 2007, the lead plaintiff filed its motion to certify the class of shareholders that it seeks to represent in the action. On Jan. 30, 2008, the defendants filed an opposition to this motion, and it is currently pending before the court. On Feb. 29, 2008, lead plaintiff filed its reply brief in support of the motion for class certification. On March 20, 2008, the court entered a stipulation by the parties staying the action pending mediation commencing on June 3, 2008. Following mediation, the parties reached an agreement to settle this matter and entered into a Memorandum of Understanding (MOU) with respect to the same. The MOU memorializes the terms pursuant to which the plaintiffs and the defendants intend to settle the case, subject to court approval. Under the terms of the MOU, the defendants' directors' and officers' liability insurers will pay $15 million in resolution of the matter and all claims asserted against the company, and the other named defendants will be dismissed with prejudice with no admission or finding of wrongdoing on the part of any defendant. The company has recorded $15.0 million as Litigation receivable and Litigation payable on its balance sheet as of Sept. 30, 2008. The settlement is subject to negotiation of definitive settlement documents and preliminary and final court approvals following notices to shareholders and members of the class, according to the company's Nov. 5, 2008 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit is "Roffe v. NPS Pharmaceutical, et al., Case No. 2:06- cv-00570-PGC," filed in the U.S. District Court for the District of Utah, Judge Paul G. Cassell, presiding. Representing the plaintiffs are: Jeffrey S. Abraham, Esq. Jack G. Fruchter, Esq. Abraham Fruchter & Twersky, LLP One Penn Plaza, Ste. 2805 New York City, NY 10119 Phone: 212-279-5050 - and - Scott A. Call, Esq. (scall@aklawfirm.com) Anderson & Karrenberg 50 W. Broadway, Ste. 700 Salt Lake City, UT 84101 Phone: 801-534-1700 OMNICOM GROUP: No Argument Date Yet for Appeal to Dismissed Suit ---------------------------------------------------------------- An oral argument date has yet to be set for the plaintiffs' appeal from the dismissal of their consolidated securities fraud class-action lawsuit filed against Omnicom Group, Inc., and certain of its senior executives. Beginning on June 13, 2002, several putative class action complaints were filed. The actions have been consolidated in the U.S. District Court for the Southern District of New York under the caption, "In re Omnicom Group Inc. Securities Litigation, No. 02-CV-4483 (RCC)," on behalf of a proposed class of purchasers of the company's common stock between Feb. 20, 2001, and June 11, 2002. The consolidated complaint alleged, among other things, that the company's public filings and other public statements during that period contained false and misleading statements or omitted to state material information relating to: -- the company's calculation of the organic growth component of period-to-period revenue growth; -- the company's valuation of and accounting for certain Internet investments made by its Communicade Group, which it contributed to Seneca Investments LLC in 2001; and -- the existence and amount of certain contingent future obligations in respect of acquisitions. The complaint sought an unspecified amount of compensatory damages plus costs and attorneys fees. The defendants moved to dismiss the complaint and, on March 28, 2005, the court dismissed certain portions of the complaint. The court's decision denying the defendants' motion to dismiss the remainder of the complaint did not address the ultimate merits of the case, but only the sufficiency of the pleading. Discovery was then concluded in the second quarter of 2007. On April 30, 2007, the court granted the plaintiffs' request for class certification. In the third quarter of 2007, the defendants filed a motion for summary judgment on the plaintiffs' remaining claim. Subsequently, on Jan. 28, 2008, the court granted the defendants' motion in its entirety, dismissing all claims and closing the case. On Feb. 4, 2008, the plaintiffs filed a notice of intent to appeal the district court's decision to the U.S. Court of Appeals for the Second Circuit. The appeal has been fully briefed. The parties await a date for oral argument before the Court of Appeals, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. The suit is "In Re: Omnicom Group, Inc. Securities Litigation," filed in the U.S. District Court for the Southern District of New York, Judge John Keenan presiding. Representing the plaintiffs are: Max W. Berger, Esq. (mwb@blbglaw.com) Bernstein, Litowitz, Berger & Grossmann, L.L.P. 1285 Avenue of the Americas New York, NY 10019 Phone: 212-554-1403 Fax: 212-554-1444 - and - David Avi Rosenfeld, Esq. (drosenfeld@lerachlaw.com) Samuel Howard Rudman, Esq. (srudman@lerachlaw.com) Lerach, Coughlin, Stoia, Geller, Rudman & Robbins LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631-367-7100 631-367-1173 Representing the defendants are: David Harold Braff, Esq. (braffd@sullcrom.com) Stacey Rubin Friedman, Esq. (friedmans@sullcrom.com) Sullivan and Cromwell, LLP 125 Broad Street New York, NY 10007 Phone: 212-558-4705 212-558-4000 Fax: 212-558-3333 212-558-3588 SCHERING-PLOUGH: Continues to Face Third-Party Payors' Lawsuits --------------------------------------------------------------- Purported class-action lawsuits filed on behalf of third-party payors against Schering-Plough Corp. remain pending, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. During the nine months ended Sept. 30, 2007, Schering-Plough made cash payments of US$435 million for the settlement of the investigation by the U.S. Attorney's Office for the District of Massachusetts involving certain of the Company's sales, marketing and clinical trial practices and programs, cash payments of US$9 million of employee termination costs related to the 2006 manufacturing streamlining and US$6 million related to integration planning. Several purported class action litigations were filed following the announcement of the settlement of the Massachusetts Investigation. The plaintiffs in these actions seek damages on behalf of third- party payors resulting from the allegations of off-label promotion and improper payments to physicians that were at issue in the Massachusetts Investigation (Class Action Reporter, Nov. 6, 2008). Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. SCHERING-PLOUGH: Remanded N.J. Lawsuit Over Savings Plan Ongoing ---------------------------------------------------------------- A remanded putative class-action complaint filed against Schering-Plough Corp. for breach of fiduciary duties under the Company's Employee Savings Plan (Plan) is ongoing in the U.S. District Court for the District of New Jersey. On March 31, 2003, the Company was served with a putative class- action complaint filed in the U.S. District Court for the District of New Jersey alleging that Schering-Plough, retired Chairman, CEO and President Richard Jay Kogan, its Plan administrator, several current and former directors, and certain former corporate officers breached their fiduciary obligations to certain participants in the Plan. The complaint seeks damages in the amount of losses allegedly suffered by the Plan. The complaint was dismissed on June 29, 2004. The plaintiffs appealed. On Aug. 19, 2005 the U.S. Court of Appeals for the Third Circuit reversed the dismissal by the District Court. The matter has been remanded back to the District Court for further proceedings (Class Action Reporter, Nov. 6, 2008). No further updates were reported in the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008 Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. SCHERING-PLOUGH: June 1 Trial Set for N.J. Securities Suit Deal --------------------------------------------------------------- The proposed settlement agreement in the federal securities litigation filed by a purported class of Schering-Plough Corp. shareholders is scheduled to be presented for final approval at a hearing on June 1, 2009. Following Schering-Plough's announcement that the U.S. Food and Drug Administration (FDA) had been conducting inspections of its manufacturing facilities in New Jersey and Puerto Rico and had issued reports citing deficiencies concerning compliance with current Good Manufacturing Practices, several lawsuits were filed against the Company and certain named officers. These lawsuits allege that the defendants violated the federal securities law by allegedly failing to disclose material information and making material misstatements. Specifically, they allege that Schering-Plough failed to disclose an alleged serious risk that a new drug application for CLARINEX would be delayed as a result of these manufacturing issues, and they allege that the Company failed to disclose the alleged depth and severity of its manufacturing issues. These complaints were consolidated into one action in the U.S. District Court for the District of New Jersey, and a consolidated amended complaint was filed on Oct. 11, 2001, purporting to represent a class of shareholders who purchased shares of Schering-Plough stock from May 9, 2000 through Feb. 15, 2001. The complaint seeks compensatory damages on behalf of the class. The Court certified the shareholder class on Oct. 10, 2003. Notice of pendency of the class action was sent to members of that class in July 2007. Discovery has been completed, and motions for summary judgment have been briefed (Class Action Reporter, Nov. 6, 2008). On Feb. 18, 2009, the Court signed an order preliminarily approving a settlement agreement. The proposed settlement agreement is scheduled to be presented for final approval at a hearing on June 1, 2009, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008 Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. SCHERING-PLOUGH: K-DUR Suits Recommended for Dismissal in Feb. ---------------------------------------------------------------- A special master recommended in February 2009, that the U.S. District Court for the District of New Jersey dismiss the purported antitrust class-action suits against Schering-Plough Corp. with regards to the drug K-DUR on summary judgment. The company reported that during the quarterly period ended Sept. 30, 2008, discovery has been completed in several purported antitrust class-action suits filed before the federal and state courts against the Company with regards to the drug K- DUR. Schering-Plough Corp. had settled patent litigation with Upsher- Smith, Inc. and ESI Lederle, Inc. relating to generic versions of K-DUR, the company's long-acting potassium chloride product supplement used by cardiac patients, for which Lederle and Upsher Smith had filed Abbreviated New Drug Applications. Following the commencement of an Federal Trade Commission administrative proceeding alleging anti-competitive effects from those settlements, which has been resolved in Schering-Plough's favor, alleged class action suits were filed in federal and state courts on behalf of direct and indirect purchasers of K- DUR against Schering-Plough, Upsher-Smith and Lederle. These suits claim violations of federal and state antitrust laws, as well as other state statutory and common law causes of action. These suits seek unspecified damages (Class Action Reporter, Nov. 6, 2008). In February 2009, a special master recommended that the U.S. District Court for the District of New Jersey dismiss the class action lawsuits on summary judgment, according to the company's Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. SCHERING-PLOUGH: VYTORIN, ZETIA and ENHANCE Suits Still Pending --------------------------------------------------------------- Several purported class-action suits in connection with the sale and promotion of Schering-Plough Corp.'s VYTORIN, ZETIA, and ENHANCE products remain pending. Since mid-January 2008, Schering-Plough has become aware of or been served with litigation, including: -- civil class-action lawsuits alleging common law and state consumer fraud claims in connection with Schering-Plough's sale and promotion of the Merck & Co., Inc./Schering-Plough joint-venture products' VYTORIN and ZETIA; -- several putative shareholder securities class action lawsuits (where several officers are also named defendants) alleging false and misleading statements and omissions by Schering-Plough and its representatives related to the timing of disclosures concerning the ENHANCE results, allegedly in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934; -- a putative shareholder securities class action lawsuit (where several officers and directors are also named), alleging material misstatements and omissions related to the ENHANCE results in the offering documents in connection with Schering- Plough's 2007 securities offerings, allegedly in violation of the Securities Act of 1933, including Section 11; and -- several putative class action suits alleging that Schering-Plough and certain officers and directors breached their fiduciary duties under ERISA and seeking damages in the amount of losses allegedly suffered by the Plans (Class Action Reporter, Nov. 6, 2008). The company reported no development in the matter in its Feb. 27, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2008. Schering-Plough Corp. -- http://www.schering-plough.com-- is an innovation-driven, science-centered global health care company. Through its own biopharmaceutical research and collaborations with partners, Schering-Plough creates therapies that help save and improve lives around the world. The company applies its research-and-development platform to human prescription and consumer products as well as to animal health products. VOYAGER LEARNING: Approval Sought For $20M Deal in Mich. Lawsuit ---------------------------------------------------------------- The plaintiffs in a purported shareholder class-action lawsuit against Voyager Learning Co., formerly known as ProQuest Co., are seeking court approval for a $20 million settlement resolving claims stemming from an accounting fraud scandal from 2001 to 2006, Law360 reports. In a motion filed on March 19, 2009 asked the U.S. District Court for the Eastern District of Michigan to approve the proposed deal, according to the Law360 report. The settlement in the matter, "In Re: ProQuest Company Securities Litigation, Case No. 2:06-cv-10619-AC-MKM," which was filed against Voyager Learning Co., formerly known as ProQuest Co., remains subject to final approval by the U.S. District Court for the Eastern District of Michigan (Class Action Reporter, Jan. 23, 2009). Between February and April 2006, four putative securities class- action complaints, now consolidated and designated as "In re ProQuest Company Securities Litigation," were filed in the U.S. District Court for the Eastern District of Michigan against the company and certain of its former and then-current officers and directors (Class Action Reporter, Oct. 15, 2008). Each of these substantially similar lawsuits alleged that the defendants violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, as amended, as well as the associated Rule 10b-5, in connection with the company's proposed restatement. On May 2, 2006, the court consolidated the four cases and appointed lead plaintiffs and lead plaintiffs' counsel. By stipulation of the parties, the consolidated lawsuit was stayed pending restatement of the company's financial statements. The lead plaintiffs subsequently asked the Court to lift the stay of proceedings to enable them to file a consolidated complaint, which they did on July 17, 2006. The defendants then filed motions for sanctions under Federal Rule of Civil Procedure 11 and to dismiss the Consolidated Complaint. Rather than respond to these motions, the lead plaintiffs moved to reinstate the stay of proceedings, which was granted. On Dec. 4, 2006, the Court again lifted the stay of proceedings and ordered the lead plaintiffs to either respond to the previously filed motions to dismiss and for sanctions, or to file an Amended Consolidated Complaint. On Jan. 24, 2007, the lead plaintiffs filed their Amended Consolidated Complaint, which the defendants moved to dismiss on March 15, 2007. On July 22, 2008, Voyager Learning Co. reached an agreement in principle to settle the consolidated shareholder securities class-action lawsuit. The settlement will be funded largely by insurance. Under the terms of the agreement, the company would pay approximately $5 million in fees and settlement amounts to settle the class action with remaining amounts to be paid by the insurers. A Stipulation and Agreement of Settlement was signed by the parties and the Court granted preliminary approval of such agreement. The company paid $4.0 million into an escrow account on Jan. 9, 2009. The final settlement is subject to final Court approval and the participation of a sufficient percentage of the putative class, according to the company's Jan. 9, 2009 Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2008. The suit is "In Re: ProQuest Company Securities Litigation, Case No. 2:06-cv-10619-AC-MKM," filed in the U.S. District Court for the Eastern District of Michigan, Judge Avern Cohn, presiding. Representing the plaintiffs are: Frederic S. Fox, Esq. (ffox@kaplanfox.com) Kaplan Fox & Kilsheimer LLP 850 Third Avenue, 14th Floor NY, NY 10022 Phone: 800-290-1952 or 212-687-1980 Fax: 212-687-7714 Web site: http://www.kaplanfox.com/ - and - Michael K. Yarnoff, Esq. Barroway Topaz Kessler Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667.7706 Fax: (610) 667.7056 Web site: http://www.sbtklaw.com/ Representing the defendants are: Michael J. Faris, Esq. (michael.faris@lw.com) Latham & Watkins 233 S. Wacker Drive, Suite 5800 Chicago, IL 60606-6401 Phone: 312-876-7700 Fax: 312-993-9767 - and - George B. Donnini, Esq. (donnini@butzel.com) Butzel Long 150 W. Jefferson, Suite 100 Detroit, MI 48226-4430 Phone: 313-225-7000 Fax: 313-225-7080 WILLIAMS PRODUCTION: Pays $4.7M to Settle Colo. Royalties Suit -------------------------------------------------------------- Williams Production RMT will pay about $4.7 million under a partial settlement approved on March 20, 2009 in a class-action lawsuit involving about 1,200 oil and gas royalty owners in Garfield County, The Associated Press reports. The settlement will help the company resolve litigation over how it calculates payments to owners of mineral interests in the county, according to the AP report. The AP reported that Judge Denise Lynch credited attorneys on both sides for coming up with what she called a "very, very fair settlement" of some of the issues raised in the case, including alleged accounting errors. John Gardner of Citizen Telegram previously reported that Williams Production RMT is offering about $5 million in back royalty payments as part of a proposed partial settlement of a purported class-action suit by mineral rights owners (Class Action Reporter, Feb. 23, 2009). The Daily Sentinel previously reported that Grand Junction attorney Nate Keever, Esq. filed a class-action suit in Garfield County District Court against Williams Production, in an attempt to recover unpaid royalties from the company (Class Action Reporter, Oct. 13, 2006). Named plaintiffs in the suit -- Sid Lindauer, his wife, Ruth, and his brother, Ivo -- said they decided to act after two other Garfield County mineral owners, the late Bill Clough and Joan Savage, won millions of dollars from Williams over underpaid royalties. Diamond Minerals LLC is also listed as a plaintiff in the suit. Mr. Lindauer said they resisted leasing to Williams for some time, but when faced with the prospect of the company "pooling" the family mineral rights with others and getting their gas from adjacent property, they relented. Citizen Telegram reported that the plaintiffs filed the action on Sept. 20, 2006, against Williams alleging that Williams was underpaying royalties and had failed to refund amounts withheld from royalty payments for ad valorem taxes in Garfield County in excess of the tax that Williams actually paid to the county on behalf of such royalty owners, reads a statement on the Fleeson, Gooing, Coulson & Kitch LLC website, the law firm handling the class-action portion of the case. According to plaintiffs' attorney Nate Keever, Esq., Williams withheld money, like a real estate ESCROW account, to pay taxes on the royalty payments for the owners. However, the suit alleges Williams did not refund any leftover funds. The suit also alleges that Williams underpaid owners for other hydrocarbons extracted, Mr. Keever tells Citizen Telegram. Traditionally, production companies pay 12.5 percent of the profits from a well to the mineral rights owners, reports Citizen Telegram. According to a preliminary payment schedule provided by Williams, a total allocation of $5,222,085 are to be disbursed to more than 1,000 mineral rights owners in Garfield County with payments ranging from as low as $0.03 to upward of $402,000 for individual mineral rights owners or groups, Citizen Telegram reported. The amounts are gross payments before reductions for attorney's fees, expenses and administrative expenses, but include interest up to May 19, 2009, the anticipated date of distribution, the document reads. A fairness hearing is set for March 20, 2009 in Garfield County District Court in Glenwood Springs at which time any objections from the plaintiffs would be heard, according to the Citizen Telegram report. For more details, contact: Nate Keever, Esq. Dufford Waldeck Milburn & Krohn LLP 744 Horizon Court, Suite 300 Grand Junction, Colorado 81506 Phone: (970) 241-5500 Fax: (970) 243-7738 Web site: http://www.dwmk.com/ New Securities Fraud Cases DEUTSCHE BANK: Murray Frank Files Securities Fraud Suit in N.Y. --------------------------------------------------------------- NEW YORK, March 20, 2009 (BUSINESS WIRE) -- Murray, Frank & Sailer LLP has filed a class action complaint, in the United States District Court for the Southern District of New York (No. 09-cv-2556), against Deutsche Bank AG ("DB" or the "Company"), certain of its subsidiaries, certain of its officers and directors, and its underwriters, on behalf of a class of: 1) purchasers or acquirers of the 6.625% Noncumulative Trust Preferred Securities of Deutsche Bank Capital Funding Trust IX (NYSE: DTT: 10.63, 0, 0%) pursuant to the public offering in July 2007, and/or 2) purchasers or acquirers of the 7.35% Noncumulative Trust Preferred Securities of Deutsche Bank Capital Funding Trust X (NYSE: DCE) pursuant to the public offering in November 2007. The complaint alleges that defendants violated Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 by issuing a materially false and misleading registration statement, prospectuses, and other documents. These documents failed to disclose risks that: -- The Company failed to properly record provisions for credit losses, residential mortgage-backed securities, commercial real estate loans, and exposure to monoline insurers; -- The Company's internal controls were inadequate to prevent it from improperly recording provisions for credit losses, residential mortgage-backed securities, commercial real estate loans, and the Company's exposure to monoline insurers; -- The Company's internal risk management systems were inadequate to limit the Company's exposure to credit trading, equity derivatives, and proprietary equity trading; and -- The Company was not as well-capitalized as represented, and, notwithstanding the billions of dollars raised in the Offerings, the Company would have to raise an additional EUR 10 billion by selling equity in the Company to the German government. Plaintiffs seek to recover damages on behalf of class members. For more information, contact: Murray, Frank & Sailer LLP 275 Madison Ave., Suite 801 New York, NY 10016-1101 Phone: 212-682-1818 800-497-8076 e-mail: newcase@murrayfrank.com Web site: http://www.murrayfrank.com/ LEVEL 3 COMMS: Alfred G. Yates Files Securities Fraud Lawsuit ------------------------------------------------------------- PITTSBURGH, Mar 20, 2009 (BUSINESS WIRE) -- Notice is hereby given that the Law Office of Alfred G. Yates Jr., PC has filed a class action lawsuit in the United States District Court for the District of Colorado on behalf of a class consisting of all persons or entities who purchased or otherwise acquired the securities of Level 3 Communications, Inc. ("Level 3" or the "Company")(Nasdaq: LVLT) between October 24, 2006 and October 23, 2007, inclusive (the expanded "Class Period"). The Complaint charges Level 3 and certain of the Company's executive officers with violations of federal securities laws. Level 3 engages in the communications business in North America and Europe. The Company's network and Internet services include transport services, high speed Internet protocol services, dedicated Internet access, virtual private network services, colocation services and dark fiber services. Between December 2005 and January 2007, Level 3 also acquired several companies. The Complaint alleges that throughout the Class Period defendants knew or recklessly disregarded that their public statements concerning Level 3's business, operations and prospects were materially false and misleading. Specifically, the Complaint alleges that defendants' public statements were false and misleading or failed to disclose or indicate that: -- the Company's efforts to integrate the numerous acquired companies were not going well; -- specifically, the Company was experiencing an increase in service activation times, which was negatively impacting the Company's service installation intervals and rate of revenue growth; -- the Company was also experiencing challenges in its service management processes that were resulting in longer response times to resolve customers' network service issues; -- steps taken by the Company to remedy the problems were not working, and actually were further complicating the issues and making them worse; -- as a result of the above, the Company did not have adequate provisioning capability to convert its increasing sales, or signed orders, into revenue generating service; -- the Company lacked adequate internal controls; and -- as a result of the above, the statements made by the Company and management during the Class Period lacked a reasonable basis. On October 23, 2007, Level 3 shocked the market when it revealed that the Company was having extensive difficulties integrating the systems and customer-service processes of the numerous companies it had acquired, and these difficulties were causing an increase in service activation times. Moreover, Level 3 revised downward the Company's previously issued guidance for fourth quarter 2007 and full year 2008. On this news, shares of Level 3 declined $1.04 per share, or approximately 24%, to close on October 23, 2007 at $3.28 per share, on unusually heavy trading volume. Plaintiff seeks to recover damages on behalf of all purchasers of Level 3 securities during the Class Period (the "Class"). For more information, contact: Alfred G. Yates, Jr., Esq. (yateslaw@aol.com) Law Office of Alfred G. Yates Jr., PC, Pittsburgh Phone: 800-391-5164 or 412-391-5164 Fax: 412-471-1033 STEEL DYNAMICS: Brualdi Law Firm Announces Stock Lawsuit Filing --------------------------------------------------------------- NEW YORK, March 20, 2009 (GlobeNewswire via COMTEX) -- The Brualdi Law Firm, P.C. announces that a lawsuit has been commenced in the United States District Court for the Northern District of Indiana on behalf of common stock purchasers of Steel Dynamics, Inc. ("STLD" or the "Company") between January 26, 2009 and March 11, 2009, inclusive (the "Class Period"), for violations of the federal securities laws. The complaint charges STLD and certain of its officers and directors with violations of the federal securities laws by making false and misleading statements regarding the Company's business and financial results. Defendants failed to disclose that: -- demand for STLD's products showed continuing weakness in Q1 2009; -- STLD's inventories in its Flat Roll Division were at excessive levels and were materially impaired by approximately $70 million; -- given the continuing weakness in demand for STLD's products in Q1 2009, and in the absence of any existing facts to indicate or exhibit a reversal in that adverse trend, as well as the impaired value of inventories in STLD's Flat Roll Division, defendants lacked a reasonable basis in fact for their earnings guidance for Q1 2009; and -- Defendant Bates engaged in unusual insider selling and realized proceeds of in excess of $30 million. When defendants disclosed the truth to the market on March 11, 2009, the price of STLD's common stocked dropped 15% to close at $7.25, on volume of more than 33 million shares, many times the average trading day volume for STLD common stock. No class has yet been certified in the above action. For more details, contact: Sue Lee, Esq. (slee@brualdilawfirm.com) The Brualdi Law Firm, P.C. 29 Broadway, Suite 2400 New York, New York 10006 Phone: (877) 495-1187 or (212) 952-0602 Web site: http://www.brualdilawfirm.com ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent research, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D. Canilao, and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *