/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090401.mbx C L A S S A C T I O N R E P O R T E R Wednesday, April 1, 2009, Vol. 11, No. 64 Headlines AMERICAN EXPRESS: N.Y. Court Denies Class Certification Motion AMYLIN PHARMACEUTICALS: Eastbourne Capital Comments on Del. Suit BANK OF BERMUDA: Faces N.Y. Litigation Over Bernard Madoff Fraud COMCAST OF OREGON: Court Certifies Class in Late Fees Lawsuit CONNECTICUT: Attorneys Sue Governor, State Officials Over CSF ELRON ELECTRONIC: Plaintiffs Appeal Dismissal of 1999 Lawsuit EXIDE TECHNOLOGIES: Settles N.J. Securities Fraud Suit For $13M FOUR SEASONS: Lawsuit on Tipping Goes to Hawaii Supreme Court GEORGIA: Federal Judge Allows Sex Offenders' Suit to Proceed HILLENBRAND INC: Judge Denies Class Status for Antitrust Suits KNAUF PLASTERBOARD: Faces Suit in Fla. Over Defective Drywalls MERCK & CO: Briefing on Appeal to Certification Ruling Complete MERCK & CO: Certification Bid in "Martin-Kleinman" SuitPending MERCK & CO: Securities & ERISA Multidistrict Litigation Ongoing MERCK & CO: Several Vioxx Product Liability Suits Still Pending MERCK & CO: Suit Over Medicaid Expenditures for Vioxx Pending MERCK & CO: To Seek Dismissal of Amended Complaint in Vioxx Suit MERCK & CO: Vioxx-Related Class Lawsuit in Calif. Still Pending MERCK FROSST: Canadian Court Overturns VIOXX Class Certification OKLAHOMA: Hearing in Lawsuit v. DHS Postponed until May 5, 2009 ST. JOHN HEALTH: Reaches $13.6M Settlement in Nurses' Litigation TORONTO HYDRO: Evacuated Residents File Suit Over Explosion UBS AG: New York Federal Court Dismisses Securities Fraud Suits New Securities Fraud Cases CITIGROUP INC: Dostart Clapp Files Calif. Securities Fraud Suit DEUTSCHE BANK: Coughlin Stoia Files N.Y. Securities Fraud Suit ING GROEP: Wolf Haldenstein Files Securities Fraud Suit in N.Y. INSIGHT ENTERPRISES: Brower Piven Announces Stock Lawsuit Filing OPPENHEIMER ROCHESTER: Kantrowitz Goldhamer Files Colo. Lawsuit ********* AMERICAN EXPRESS: N.Y. Court Denies Class Certification Motion -------------------------------------------------------------- The U.S. District Court for the Southern District of New York denied a motion for class certification in a suit over alleged illegal tying and anti-competitive pricing by American Express Co., though the court left the door open for the issue to be renewed after a motion for summary judgment by AmEx is resolved, Law360 reports. The suit is entitled, "The Marcus Corp. v. American Express Co., et al., Case No. 1:04-cv-05432-GBD-THK," which was filed in July 2004. The plaintiffs in the case seek injunctive relief and an unspecified amount of damages. AmEx filed a motion to dismiss the litigation. The court denied that motion in July 2005 (Class Action Reporter, March 26, 2009). On Oct. 1, 2007, The Marcus Corp., a Milwaukee-based movie theater and hotel chain that filed the proposed class-action case, filed a motion seeking class certification. The company has opposed plaintiffs' motion for class certification. In addition, each of the company and the plaintiffs have moved for summary judgment in their favor. A decision on the class certification motion and the summary judgment motions is 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. AMYLIN PHARMACEUTICALS: Eastbourne Capital Comments on Del. Suit ---------------------------------------------------------------- Eastbourne Capital Management, L.L.C. commented on the class action lawsuit filed late last week in Delaware's Court of Chancery against Amylin Pharmaceuticals, Inc. (NASDAQ: AMLN) and its entire Board of Directors by Amylin shareholder, San Antonio Fire & Police Pension Fund, seeking to invalidate "poison put" provisions in Amylin's credit agreements and to require the Amylin Board to remove the obstacle posed by those provisions to the election of directors nominated separately by Eastbourne and by funds affiliated with Carl Icahn. Eastbourne has notified Amylin of its intention to seek the election of five nominees to Amylin's Board of Directors. Eastbourne currently owns approximately 12.5% of Amylin's outstanding shares. Rick Barry, Eastbourne Founder and Portfolio Manager said, "We applaud San Antonio Fire & Police Pension Fund and are encouraged that another thoughtful institutional shareholder has come forward and taken the initiative to seek to enforce the legal rights of all Amylin shareholders. We believe the lawsuit, which has enormous merit and raises important issues beyond this contest, serves the best interests of all shareholders. "As should be clear from our last letter to Amylin's Board, we believe that, since this year there are two separate shareholder slates, the Company's 'poison puts,' unless they are neutralized, threaten to tilt the electoral playing field in favor of the incumbent board by effectively precluding not merely the election of a new majority on the Board, which Eastbourne is not seeking, but, as a practical matter, the election of any shareholder-nominated directors at all. "Intentionally or not, these type of provisions, which are agreed to by management without shareholder approval, embedded in voluminous credit agreements and often not otherwise disclosed, deprive shareholders of the substantive right to freely nominate directors; essentially subjecting that right to board approval or delegating it altogether to creditors. We think that any board's fiduciary duties, particularly its duty of loyalty, would lead it to use all of its powers to lift this constraint on a basic shareholder right, and not to condone its operation to stifle an open election and protect the continued reign of incumbent directors. We cannot imagine what rationale directors could advance to support such a failure to act other than to preserve themselves in office. "We had hoped that the Amylin Board would come to a similar conclusion and respond positively to our request that they take action to dispel the cloud cast by the Company's "poison puts" and that resorting to the courts would not be necessary. We believe that the Board's failure to do so will be viewed by our fellow shareholders as stark evidence of the current Amylin Board's approach to corporate governance. We encourage other shareholders to continue to speak out and support change on the Board." Eastbourne Capital -- https://www.eastbournecapital.com -- is a West Coast-based registered investment advisor that employs an investment philosophy based on intensive research, a long-term outlook and a belief in working alongside portfolio companies to enhance shareholder value. BANK OF BERMUDA: Faces N.Y. Litigation Over Bernard Madoff Fraud ---------------------------------------------------------------- The Bank of Bermuda is among several offshore companies and individuals that face a purported securities fraud class-action lawsuit that has been filed on behalf of investors in four hedge funds who allegedly lost more than $3 billion in the Bernard Madoff fraud, The Royal Gazette reports. The suit is captioned, "Perrone et al v. Benbassat et al., Case No. 1:09-cv-02558-UA," and was filed on March 19, 2009 in the U.S. District Court for the Southern District of New York by Fabian Perrone, a resident of Argentina, and Chia-Hung Kao, a resident of Taiwan. The bank's subsidiaries in the Cayman Islands and Luxembourg (Bank of Bermuda (Cayman) Ltd., described as the administrator and registrar of the Primeo Fund; Bank of Bermuda (Luxembourg) SA, described as the custodian of the Primeo Fund for a portion of the Class Period), along with two Cayman-domiciled hedge funds - Primeo Fund and Herald Fund; James E O'Neill, a former managing director of Bank Austria (Cayman Islands) (now UniCredit Bank); Cayman Islands resident Michael Wheaton, and British Virgin Islands-domiciled investment adviser BA Worldwide Fund Management Ltd. were all listed as defendants in the case, The Royal Gazette reported. In addition, the lawsuit also named as defendants Ernst & Young, whose Cayman office allegedly audited one of the funds, and PricewaterhouseCoopers, according to The Royal Gazette report. Representing the plaintiffs are: Francis A. Bottini, Jr., Esq. Johnson Bottini, LLP 655 West Broadway Suite 1400 San Diego, CA 92101 Phone: (619) 230-0063 Fax: (619) 233-5535 - and - Brian Philip Murray, Esq. (bmurray@murrayfrank.com) Murray, Frank & Sailer, LLP 275 Madison Avenue, Ste. 801 New York, NY 10016-1101 Phone: 212-681-1818 Fax: 212-682-1892 COMCAST OF OREGON: Court Certifies Class in Late Fees Lawsuit ------------------------------------------------------------- Judge Richard Baldwin of Multnomah County Circuit Court granted class-action status to a consumer fraud lawsuit against Comcast of Oregon, Inc. for its practice of billing late fees in Oregon. The suit captioned, "Martin v. Comcast, Case No. 0407-07245," was filed in 2004 and claims that Comcast illegally charged TV cable service late fees in Oregon. According to attorney David Sugerman, Esq., who is representing the plaintiffs, each consumer was hit for only a $6.00 late fee. But those $6.00 late fees add up when you hit hundreds of thousands of consumers over the years. Under Oregon's Unlawful Trade Practices Act, the class can recover the money, together with interest and attorney fees. A copy of the class certification order is available at: http://researcharchives.com/t/s?3aec For more details, contact: Paul & Sugerman, PC 520 SW 6th Ave. Portland, OR 97204 Phone: 503.224.6602 Fax: 503.224.2764 e-mail: contact@pspc.com Web site: http://www.pspc.com/ CONNECTICUT: Attorneys Sue Governor, State Officials Over CSF ------------------------------------------------------------- Several prominent Connecticut lawyers filed a purported class- action lawsuit that seeks to prevent Gov. M. Jodi Rell, the state treasurer and comptroller, from seizing $2 million from the legal profession's Client Security Fund, Thomas B. Scheffey of the Connecticut Law Tribune reports. The plaintiffs charge that it would violate the constitutional separation of powers between the branches of government if the cash-strapped state took money that's supposed to compensate clients victimized by dishonest lawyers. The suit states that the fund transfer is expected on April 1, 2009. It is supported with legal opinions from former acting Supreme Court Chief Justice David M. Borden and Peter Costas, a former president of the Connecticut Bar Association, reports the Connecticut Law Tribune. The legal relief is needed, according to a complaint filed on March 30, 2009 in Hartford Superior Court, "to prevent the Illegal Expropriation by Defendants." The Connecticut Law Tribune reported that named as defendants in the case are Republican Gov. Rell and two Democrats, state Treasurer Denise L. Nappier and Comptroller Nancy Wyman. The Client Security Fund is administered by a volunteer group of judges, lawyers and lay people, and money for the fund comes from a fee paid by each licensed Connecticut attorney and judge. More than $13 million has been paid out since the Judicial Branch took over administration of the fund in 1999. The purported class bringing the action consists of about 30,000 lawyers and judges, magistrates and trial referees who have paid into the fund, which has a $110 annual assessment for all those admitted to practice in the state, The Connecticut Law Tribune reported. The four-count complaint alleges the budget "mitigation" move is a violation of separation of powers. The fund is entirely under the control of the Judicial Branch, and any attempt to confiscate it is unconstitutional as an intrusion of the Executive Branch that would cause irreparable harm, according to the lawsuit, reports the Connecticut Law Tribune. The process is also a violation of due process, and, as to the state treasurer, a breach of trust and a breach of a bailment, according to the suit, a copy of which was obtained by the Connecticut Law Tribune. The complaint was drafted by Stamford lawyer Ernest Teitell, of Silver, Golub & Teitell. The plaintiffs are a veritable who's who of top Connecticut practitioners: Jacob D. Zeldes, William R. Davis, Charles A. Deluca, William F. Dow III, Kathryn Emmett, William F. Gallagher, Hugh F. Keefe, Kathleen L. Nastri, Hubert J. Santos, Hope C. Seeley, Matthew Shafner and Frederic S. Ury, according to Connecticut Law Tribune report. ELRON ELECTRONIC: Plaintiffs Appeal Dismissal of 1999 Lawsuit ------------------------------------------------------------- Elron Electronic Industries Ltd. (NASDAQ:ELRN) (TASE:ELRN), announced that, further to its announcement on January 25, 2009 regarding the dismissal by the District Court of Haifa of an application to certify a purported claim as a class action filed in November 1999 against, among others, Elron and certain of its officers, including former officers, the plaintiffs filed an appeal with the Supreme Court in Jerusalem against the District Court of Haifa's dismissal decision. The allegations raised in the purported class action relate to the period prior to the sale of Elron's holdings in Elbit Imaging Ltd., (formerly known as Elbit Medical Imaging Ltd.) (the parent company of Elscint and formerly an affiliated company) in 1999. The plaintiffs are claiming compensation for damages sustained due to an alleged failure of Elbit Imaging to effect a tender offer for Elscint shares, as well as due to other allegations. Elron Electronic Industries Ltd. -- http://www.elron.com� a member of the IDB Holding group, is a leading Israel-based technology holding company directly involved in the long-term performance of its group companies. Elron identifies potential technologies, creates strategic partnerships, secures financing, and recruits highly qualified management teams. Elron's group companies currently comprise a diverse range of publicly-traded and privately held companies primarily in the fields of medical devices, information & communications technology, clean technology and semiconductors. EXIDE TECHNOLOGIES: Settles N.J. Securities Fraud Suit For $13M --------------------------------------------------------------- Exide Technologies, Inc. agreed to pay $13.7 million to settle a consolidated securities fraud class-action lawsuit alleging the company deceived investors with sanguine reports shortly after emerging from bankruptcy in 2004, Law360 reports. The settlement, submitted on March 27, 2009 for approval by Judge Mary L. Cooper of the U.S. District Court for the District of New Jersey, creates a $13.7 million settlement fund to resolve the case, according to the Law360 report. Case Background In June 2005, the company received notice that two former stockholders, Aviva Partners LLC and Robert Jarman, separately filed purported class action complaints against the company and certain of its current and former officers, alleging violations of certain federal securities laws (Class Action Reporter, Feb. 11, 2009). The cases were filed in the U.S. District Court for the District of New Jersey purportedly on behalf of those who purchased the company's stock between Nov. 16, 2004, and May 17, 2005. The complaints allege that the named officers violated Sections 10(b) and 20 (a) of the U.S. Securities Exchange Act and SEC Rule 10b-5 in connection with certain allegedly false and misleading public statements made during this period by the company and its officers. The complaints did not specify an amount of damages sought. On Aug. 29, 2005, Judge Mary L. Cooper consolidated the Aviva Partners and Jarman cases under the caption "Aviva Partners v. Exide Technologies, Inc. Case No. 05-3098 (MLC)." On March 24, 2006, Judge Cooper appointed as co-lead plaintiffs: * the Alaska Hotel & Restaurant Employees Pension Trust Fund, and * Lakeway Capital Management. The judge also appointed the law firms of Lerach Coughlin Stoja Geller Rudman & Robbins LLP and Schatz & Nobel, P.C. as co-lead counsel for the putative class. On May 8, 2006 co-lead plaintiffs filed their consolidated amended complaint in which they reiterated their original claims but purported to state a claim on behalf of those who purchased the company's stock between May 5, 2004, and May 17, 2005. On June 22, 2006, the defendants filed their motion to dismiss plaintiffs' consolidated amended complaints. The court has granted this request but permitted the plaintiffs to file an amended complaint, which they did. The defendants again moved to dismiss the amended complaint, but this time, the Court denied this request. Discovery in the lawsuit is proceeding and is expected to continue throughout the remainder of 2008. No trial date has been set in this matter. On Jan. 8, 2009, the Company and Plaintiffs' Court-appointed representatives (Lead Plaintiffs) reached an agreement in principle to settle this litigation (Proposed Settlement). Any payment under the Proposed Settlement would be made by the Company's insurers and would have no material impact on the Company's financial statements or results of operations. The Proposed Settlement is subject to execution of a definitive agreement between the Company and Lead Plaintiffs and approval by Lead Plaintiffs' Board of Trustees. The Proposed Settlement is also subject to Court approval, and the Court has ordered Plaintiffs to file their motion for preliminary approval of the Proposed Settlement on or before Feb. 27, 2009. Assuming preliminary Court approval is obtained, notice to members of the class would be issued, and the company anticipates that a final approval hearing would take place in the latter half of calendar 2009. Upon final approval of the Proposed Settlement by the Court this litigation will be dismissed in its entirety, with prejudice. Under the terms of the Proposed Settlement, the company and the former officers continue to deny the allegations in Plaintiffs' complaints, according to its Feb. 4, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended Dec. 31, 2008. The suit is "Aviva Partners LLC v. Exide Technologies, et al., Case No. 3:05-cv-03098-MLC-JJH," filed in the U.S. District Court for the District of New Jersey, Judge Mary L. Cooper, presiding. Representing the plaintiffs is: Patrick Louis Rocco, Esq. (procco@lawssb.com) Shalov Stone & Bonner, LLP 163 Madison Avenue, P.O. Box 1277 Morristown, NJ 07962-1277 Phone: 973-775-8997 Representing the defendants is: Edward T. Kole, Esq. (ekole@wilentz.com) Wilentz, Goldman & Spitzer, Esqs. 90 Woodbridge Center Drive, Suite 900 - Box 10 Woodbridge, NJ 07095-0958 Phone: 732-636-8000 FOUR SEASONS: Lawsuit on Tipping Goes to Hawaii Supreme Court ------------------------------------------------------------- A purported class-action lawsuit against Four Seasons Hotel Ltd. that tests a fairly new Hawaii law attempting to prevent hotels and restaurants from keeping gratuities intended for workers is going to the Hawaii Supreme Court, Andrew Gomes of The Honolulu Advertiser reports. Judge Helen Gillmor of the U.S. District Court for the District of Hawaii recently heard arguments in the lawsuit, "Davis et al v. Four Seasons Hotel Limited, Case No. 1:2008-cv-00525." The lawsuit was filed on Nov. 21, 2008 by banquet workers Daryl Dean Davis, Mark Apana, Elizabeth Valdez Kyne and Earl Tanaka. It seeks class-action status to represent all employees affected by service charge practices at the hotels. It is one of at least nine similar lawsuits against major hotel companies in Hawaii attempting to recover gratuities for hundreds of employees under a nine-year-old state law, reports The Honolulu Advertiser. However, defense lawyers for Four Seasons argued that employees can't sue under the law because legislators placed the act within an area of consumer protection statutes as opposed to labor and wage statutes. The law was enacted in 2000 from legislation titled A Bill for an Act Relating to Wages and Tips of Employees. As initially drafted, the purpose of House Bill 2123 was to strengthen Hawaii's wage and hour law to protect employees from having gratuities withheld by or credited to their employers, according to The Honolulu Advertiser report. The House Committee on Labor and Public Employment though concluded that language in the bill would confuse employees and employers by redefining gratuity rules so they no longer match federal law, so the focus of the bill was shifted to more of a consumer protection measure. The Honolulu Advertiser reported that the law as enacted requires that hotels and restaurants distribute service charges for food or beverage service to employees, or clearly disclose to customers if the service charges don't entirely go to employees. It was included as a miscellaneous provision in a section of statutes on unfair and deceptive trade practices. Four Seasons argued that employees can't sue under an unfair competition statute, and said doing so would be an improper and unprecedented expansion of this part of state law not directed by the Legislature. The Boston law firm representing the plaintiff, Pyle Rome Lichten Ehrenberg & Liss-Riordan, said the Four Seasons argument is incredible because the statute was enacted with a clear aim of protecting employees, reports The Honolulu Advertiser. Wayne Yoshigai, Esq., a local attorney representing Four Seasons, said the law as written is vague about who -- customers or employees -- should receive proceeds from any violation of the law. Mr. Yoshigai added that even if employees are granted standing to sue under the law, Four Seasons plans to defend against the suit on other merits, The Honolulu Advertiser reported. Four Seasons had asked Judge Gillmor to dismiss the case on grounds that employees can't sue under the law, but the judge instead referred the case to the state's highest court. Judge Gillmor ruled that it is more appropriate for the Hawaii Supreme Court to rule on the issue of interpretation of state law, according to The Honolulu Advertiser report. GEORGIA: Federal Judge Allows Sex Offenders' Suit to Proceed ------------------------------------------------------------ Judge Clarence Cooper of the U.S. District Court for the Northern District of Georgia has allowed a class-action lawsuit, on behalf of 16,000 registered sex offenders challenging Georgia's restrictions on them, to proceed, The Associated Press reports. In addition, Judge Cooper on March 30, 2009, also issued a preliminary injunction barring enforcement of a provision to prevent offenders from volunteering at churches, according to the AP report. The Associated Press reported that the state wanted the judge to declare the class-action suit unmanageable. However, Judge Cooper allowed it to proceed in "subclasses." The subclasses include offenders seeking to overturn a provision against them living within 1,000 feet of a school bus stop; those who want to volunteer at places of worship; and those who were convicted before the July 1, 2006 law but were put on the sex offender registry, reports The Associated Press. HILLENBRAND INC: Judge Denies Class Status for Antitrust Suits -------------------------------------------------------------- On March 26, 2009, Kenneth M. Hoyt, United States District Judge in the Southern District of Texas (Houston), ruled in support of the memoranda and recommendations of U.S. Magistrate Judge Calvin Botley, and denied class certification in two previously disclosed antitrust lawsuits against Batesville Casket Company, Inc., a wholly owned subsidiary of Hillenbrand, Inc. As previously reported, a self-styled consumer advocacy group, the Funeral Consumers Alliance, and several consumers who had purchased Batesville caskets had filed a purported class- action lawsuit against Batesville Casket Company, Hill-Rom Holdings and three of Batesville's funeral home customers, alleging that the defendants violated antitrust laws. A related lawsuit was filed by four current and former independent casket retailers, alleging similar violations. "We are pleased with the rulings in these lawsuits, which are a major step forward in the court's recognizing the legitimacy of our century-old policy of selling only through licensed funeral homes," said Kenneth A. Camp, Hillenbrand's president and chief executive officer. The plaintiffs in both cases now have the option to petition the United States Court of Appeals for the Fifth Circuit no later than April 9, 2009, for leave to appeal Judge Hoyt's decision. Hillenbrand, Inc. -- http://www.HillenbrandInc.com-- is the holding company for Batesville Casket Co., a leader in the North American death care industry through the sale of funeral services products, including burial caskets, cremation caskets, containers and urns, selection room display fixturing and other personalization and memorialization products. KNAUF PLASTERBOARD: Faces Suit in Fla. Over Defective Drywalls -------------------------------------------------------------- Knauf Plasterboard Tianjin Co. Ltd., along with several other firms, is facing a purported class-action lawsuit in Florida alleging defective drywall manufactured in China has caused damage to potentially thousands of homeowners across the country, Tara E. McLaughlin of The Naples Daily News. The suit captioned, "Morris-Chin et al v. Knauf Plasterboard Tianjin Co. Ltd. et al., Case No. 1:09-cv-20796-JLK," was filed on March 27, 2009 in the U.S. District Court for the Southern District of Florida by Miami residents Janet Morris-Chin and Dajan Green. It alleged Knauf Plasterboard (Tianjin) Co., several other Knauf companies (Knauf Gips KG, Knauf Plasterboard (WUHU) Co. Ltd., and Knauf Plasterboard (Dongguan) Co. Ltd.), and Knauf Tianjin's distributor, Rothchilt Int'l, Ltd. should be held responsible for defective drywall that made its way into a dozen or more states -- enough to build 60,000 homes, reports The Naples Daily News. The suit says homes are rendered uninhabitable because of noxious gases escaping from the drywall. The gases appear to corrode home electronics and other fixtures, according to The Naples Daily News report. The Naples Daily News reported that the Florida Department of Health has said that testing identified several sulfur-based gases emanating from Knauf Tianjin drywall and two other Chinese manufacturers although they are not yet prepared to make a health risk determination. The department has logged more than 150 complaints from southern Florida residents, dozens of whom live in Lee and Collier counties, who said their homes reek of rotten eggs, copper fixtures and electrical wiring corroded and air conditioning coils failed repeatedly. Some have also complained of allergy- like symptoms that fade when they leave their homes, reports The Naples Daily News. The suit is "Morris-Chin et al v. Knauf Plasterboard Tianjin Co. Ltd. et al., Case No. 1:09-cv-20796-JLK," filed in the U.S. District Court for the Southern District of Florida, Judge James Lawrence King, presiding. Representing the plaintiffs are: Mark Blumstein, Esq. (mark@blumsteinlaw.com) The Blumstein Law Firm 18305 Biscayne Boulevard Suite 402 Aventura, FL 33160 Phone: 305-356-7547 Fax: 305-356-7539 Victor Manuel Diaz, Jr., Esq. (Vdiaz@podhurst.com) Podhurst Orseck, P.A. City National Bank Building 25 W Flagler Street Suite 800 Miami, FL 33130-1780 Phone: 305-358-2800 Fax: 305-358-2382 Jacob Joseph Givner, Esq. (jgivner@hlglawyers.com) Givner & Jaroslawicz 1177 Kane Concourse Suite 232 Bay Harbor Islands, FL 33154 Phone: 305-867-6470 Fax: 305-867-6474 (fax) - and - David Henry Lichter, Esq. (dlichter@hlglawyers.com) Higer Lichter & Givner LLP 18305 Biscayne Boulevard Suite 402 Aventura, FL 33160 Phone: 305-933-9970 Fax: 305-933-0998 MERCK & CO: Briefing on Appeal to Certification Ruling Complete ---------------------------------------------------------------- Briefing on Merck & Co., Inc.'s appeal from the class certification decision in the lawsuit purportedly brought on behalf of individual purchasers or users of Vioxx claiming reimbursement of alleged economic loss is complete. On June 12, 2008, a Missouri state court certified a class of Missouri plaintiffs, seeking reimbursement for out-of-pocket costs relating to Vioxx. The plaintiffs do not allege any personal injuries from taking Vioxx. The company filed a petition for interlocutory review on June 23, 2008, which was granted on July 30, 2008. (Class Action Reporter, Oct. 3, 2008). During the pendency of the appeal, discovery is proceeding in the lower 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Certification Bid in "Martin-Kleinman" SuitPending -------------------------------------------------------------- A motion for class certification in the putative consumer class action styled, "Martin-Kleinman v. Merck," remains pending. On July 29, 2005, a New Jersey state trial court certified a nationwide class of third-party payors (such as unions and health insurance plans) that paid in whole or in part for the Vioxx used by their plan members or insureds. The named plaintiff in that case sought recovery of certain Vioxx purchase costs (plus penalties) based on allegations that the purported class members paid more for Vioxx than they would have had they known of the product's alleged risks. On March 31, 2006, the New Jersey Superior Court, Appellate Division, affirmed the class certification order. On Sept. 6, 2007, the New Jersey Supreme Court reversed the certification of a nationwide class action of third-party payors, finding that the suit does not meet the requirements for a class action. Claims of certain individual third-party payors remain pending in the New Jersey court, and counsel purporting to represent a large number of third-party payors have filed additional such actions. Judge Higbee lifted the stay in these cases and the cases are currently in the discovery phase. A status conference with the court took place in January 2009 to discuss scheduling issues in these cases, including the selection of early trial pool cases. The New Jersey Superior Court heard argument on plaintiffs' motion for class certification in Martin-Kleinman v. Merck, which is a putative consumer class action, on Dec. 5, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Securities & ERISA Multidistrict Litigation Ongoing --------------------------------------------------------------- The multidistrict litigation captioned "Merck & Co., Inc., Securities Derivative and ERISA Litigation (MDL No. 1658), Case No. 3:05-cv-01151-SRC-TJB," is ongoing. Initially, various putative class-action lawsuits were filed in federal court under the Employee Retirement Income Security Act against the company and certain current and former officers and directors. The suits have been transferred to the multidistrict litigation in the U.S. District Court for the District of New Jersey, under the caption "Merck & Co., Inc., Securities Derivative and ERISA Litigation, Case No. 3:05-cv-01151-SRC-TJB," and consolidated there for all purposes. The consolidated complaint asserts claims on behalf of certain of the company's current and former employees who are participants in certain of its retirement plans for breach of fiduciary duty. On July 11, 2006, Judge Stanley R. Chesler granted in part and denied in part the defendants' motion to dismiss the ERISA complaint. In October 2007, the plaintiffs moved for certification of a class of individuals who were participants in and beneficiaries of the company's retirement savings plans at any time between Oct. 1, 1998, and Sept. 30, 2004, and whose plan accounts included investments in the Merck Common Stock Fund and Merck common stock. That motion is pending. On April 16, 2008, the plaintiffs filed a Motion for Leave to Supplement the Amended Complaint to add allegations relating to Vytorin and seeking to add additional defendants, including Richard T. Clark and additional members of the Board of Directors. The court denied the motion in May 2008 (Class Action Reporter, Oct. 3, 2008). On Feb. 9, 2009, the Court denied the October 2007 motion for certification of a class as to one count and granted the motion as to the remaining counts. The Court also limited the class to those individuals who were participants in and beneficiaries of the company's retirement savings plans who suffered a loss due to their investments in Merck stock through the plans and who did not execute a settlement releasing their claims, 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 "Merck & Co., Inc., Securities Derivative and ERISA Litigation, (MDL No. 1658) Case No. 3:05-cv-01151-SRC-TJB," filed in the U.S. District Court for the District of New Jersey, Judge Stanley R. Chesler, presiding. Representing the plaintiffs are: Paul B. Brickfield, Esq. (pbrickfield@bricdonlaw.com) Brickfield & Donahue 70 Grand Avenue River Edge, NJ 07661 Phone: 201-488-7707 - and - Irma Lois Bradley-Klein, Esq. Lemmon Law Firm, LLC 650 Poydras St. Suite 2335 New Orleans, LA 70130 Phone: 985-783-6789 Fax: 985-783-1333 Representing the defendants are: Edward Cerasia II, Esq. (ecerasia@proskauer.com) Proskauer Rose LLP One Newark Center, 18th floor Newark, NJ 07102-5211 Phone: 973-274-3200 - and - John N. Poulous, Esq. (poulos@hugheshubbard.com) Hughes Hubbard & Reed LLP 101 Hudson St. Suite 3601 Jersey City, NJ 07302-3918 Phone: 201-536-9220 MERCK & CO: Several Vioxx Product Liability Suits Still Pending --------------------------------------------------------------- Merck & Co., Inc., continues to face several purported class- action lawsuits, alleging personal injury and economic loss with respect to the purchase or use of Vioxx. Initially, several individual and putative class-action suits were filed against the company in state and federal courts. All such actions filed in federal court are coordinated in a multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana before Judge Eldon E. Fallon. A number of such actions filed in state court are coordinated in separate coordinated proceedings in state courts in New Jersey, California and Texas, and the counties of Philadelphia, Pennsylvania and Washoe and Clark Counties, Nevada (Class Action Reporter, Oct. 3, 2008). As of Dec. 31, 2008, the company had been served or was aware that it had been named as a defendant in approximately 10,800 lawsuits, which include approximately 26,800 plaintiff groups, alleging personal injuries resulting from the use of Vioxx, and in approximately 242 putative class actions alleging personal injuries and/or economic loss. Of these lawsuits, approximately 8,850 lawsuits representing approximately 22,050 plaintiff groups are or are slated to be in the federal multidistrict litigation and approximately 165 lawsuits representing approximately 165 plaintiff groups are included in a coordinated proceeding in New Jersey Superior Court before Judge Carol E. Higbee. On Feb. 3, 2009, Judge Fallon dismissed the master personal injury/wrongful death class action master complaint and the medical monitoring class action master complaint in the MDL, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Suit Over Medicaid Expenditures for Vioxx Pending ------------------------------------------------------------- Merck & Co. Inc. continues to face a purported class-action suit containing similar allegations to suits filed by (or on behalf of) governmental entities that were seeking the reimbursement of alleged Medicaid expenditures for Vioxx or statutory penalties tied to such expenditures, 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 purported class-action suit was filed by Santa Clara County, California, on behalf of all similarly situated California counties. It has been transferred to the multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana before Judge Eldon E. Fallon, and has not experienced significant activity to date (Class Action Reporter, Oct. 3, 2008). The actions alleges that the company misrepresented the safety of Vioxx and seek: (i) recovery of the cost of Vioxx purchased or reimbursed by the state and its agencies; (ii) reimbursement of all sums paid by the state and its agencies for medical services for the treatment of persons injured by Vioxx; (iii) damages under various common law theories; and/or (iv) remedies under various state statutory theories, including state consumer fraud and/or fair business practices or Medicaid fraud statutes, including civil penalties. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: To Seek Dismissal of Amended Complaint in Vioxx Suit ---------------------------------------------------------------- Merck & Co., Inc. expects to file a motion to dismiss the fifth amended class action complaint in the consolidated Vioxx securities lawsuits, 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 company and various current and former officers and directors are defendants in various putative class actions and individual lawsuits under the federal securities laws and state securities laws ("Vioxx Securities Lawsuits"). All of the Vioxx Securities Lawsuits pending in federal court have been transferred by the Judicial Panel on Multidistrict Litigation ("JPML") to the U.S. District Court for the District of New Jersey before District Judge Stanley R. Chesler for inclusion in a nationwide MDL ("Shareholder MDL"). Judge Chesler has consolidated the Vioxx Securities Lawsuits for all purposes. The putative class action, which requested damages on behalf of purchasers of cmpany stock between May 21, 1999 and Oct. 29, 2004, alleged that the defendants made false and misleading statements regarding Vioxx in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and sought unspecified compensatory damages and the costs of suit, including attorneys' fees. The complaint also asserted claims under Section 20A of the Securities and Exchange Act against certain defendants relating to their sales of Merck stock and under Sections 11, 12 and 15 of the Securities Act of 1933 against certain defendants based on statements in a registration statement and certain prospectuses filed in connection with the Merck Stock Investment Plan, a dividend reinvestment plan. On April 12, 2007, Judge Chesler granted defendants' motion to dismiss the complaint with prejudice. Plaintiffs appealed Judge Chesler's decision to the U.S. Court of Appeals for the Third Circuit. On Sept. 9, 2008, the Third Circuit issued an opinion reversing Judge Chesler's order and remanding the case to the District Court. On Sept. 23, 2008, Merck filed a petition seeking rehearing en banc, which was denied. The case was remanded to the District Court in October 2008, and plaintiffs have filed their Consolidated and Fifth Amended Class Action Complaint. Merck filed a petition for a writ of certiorari with the U.S. Supreme Court on Jan. 15, 2009. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK & CO: Vioxx-Related Class Lawsuit in Calif. Still Pending --------------------------------------------------------------- A purported Vioxx-related class-action lawsuit that was brought on behalf of California third-party payors and end-users against Merck & Co., Inc., remains pending. The purported class-action lawsuit was filed in California state court. It is seeking class certification of California third- party payors and end-users. The parties are engaged in class certification discovery and briefing (Class Action Reporter, Oct. 3, 2008). The court heard oral argument on the class certification issue on Feb. 19, 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. Merck & Co., Inc. -- http://www.merck.com/-- is a global research-driven pharmaceutical company that discovers, develops, manufactures and markets a range of products to improve human and animal health. The company's operations are principally managed on a products basis and comprises of two business segments: the Pharmaceutical segment and the Vaccines segment. The Pharmaceutical segment includes human health pharmaceutical products marketed either directly or through joint ventures. Merck sells these human health pharmaceutical products primarily to drug wholesalers and retailers, hospitals, government agencies and managed health care providers, such as health maintenance organizations, pharmacy benefit managers and other institutions. The Vaccines segment includes human health vaccine products marketed either directly or through a joint venture. These products consist of preventative pediatric, adolescent and adult vaccines, primarily administered at physician offices. MERCK FROSST: Canadian Court Overturns VIOXX Class Certification ---------------------------------------------------------------- Merck Frosst Canada Ltd. has learned that the Court of Appeal for Saskatchewan has issued a decision allowing Merck's appeal and quashing an order of the Court of Queen's Bench that had certified a class proceeding on behalf of Canadian residents of all provinces except Quebec who purchased or ingested VIOXX. The three-Justice panel of the Court of Appeal concluded unanimously that the lower court had erred in finding that the plaintiffs had established an identifiable class, in defining common issues, and in holding that a class action represents the preferable procedure for resolving the claims. In her opinion for the Court, Madam Justice Smith concluded, "It is my view that this action vastly over-reaches what is reasonably manageable in a class action in a fair and efficient way." "In short," wrote Madam Justice Smith, "the diversity of claims sought to be asserted, combined with the lack of clarity of what facts are alleged in relation to each, present insurmountable challenges, in my view, to the identification of issues which are common to all claims and therefore to all members of the class." "We are pleased that the Court of Appeal agreed with us that the court below erred in certifying this action as a class," said Maurice Laprairie, Q.C. of MacPherson, Leslie & Tyerman LLP, Saskatchewan counsel for Merck Frosst and Merck & Co., Inc. "We argued against the creation, and later expansion, of a class, because each plaintiff's case is unique and depends on an individual set of facts." "The Company intends to defend these cases vigorously over the coming years, and we are confident that the courts will decide these cases based on sound science," said Neil Finkelstein, of Blake, Cassels & Graydon LLP, Canadian national counsel for Merck Frosst and Merck & Co., Inc. The evidence will show that Merck acted responsibly - from researching VIOXX prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine in September 2004. Merck Frosst Canada, Ltd. -- http://www.merckfrosst.com-- is a research-driven pharmaceutical company. Merck Frosst discovers, develops and markets a broad range of innovative medicines to improve human health. The Merck Frosst Centre for Therapeutic Research, one of the largest biomedical research facilities in Canada, has the mandate to discover new therapies for the treatment of respiratory diseases, inflammatory diseases, diabetes and osteoporosis. OKLAHOMA: Hearing in Lawsuit v. DHS Postponed until May 5, 2009 --------------------------------------------------------------- A hearing that had been scheduled for March 30, 2009 in a purported class-action lawsuit which seeks reform of the Oklahoma's child-welfare system has been postponed until May 5, 2009, David Harper of The Tulsa World reports. Judge Gregory K. Frizzell of the U.S. District Court for the Northern District of Oklahoma made the scheduling change for the hearing, which was scheduled for the court to hear arguments on whether to permit class-action status for the case, according to The Tulsa World report. The Tulsa World reported that the postponement occurred after an unopposed motion was filed explaining that one of the key attorneys in the case is dealing with a family medical crisis. The Daily Oklahoman previously reported that Children's Rights, a New York-based child advocacy organization, joined several prominent Oklahoma law firms and an international firm in filing a class-action suit against Oklahoma's Department of Human Services (Class Action Reporter, March 11, 2009). The suit accuses DHS of repeatedly subjecting children in state custody to extreme abuse and neglect. It asks the judge to impose far-reaching reforms on the state system. "Oklahoma has long maintained one of the most dangerous and badly mismanaged child welfare systems in the nation, and thousands of children have suffered under nightmarish conditions for years as a result," said Marcia Robinson Lowry, executive director of Children's Rights. "It is disgraceful that we have to seek a federal court order to force the state to begin fixing problems that it should have addressed many years ago. But it is clear that this is the only way to protect Oklahoma's abused and neglected children � and that is what this lawsuit is about." Children's Rights is asking the judge to declare the lawsuit a class action so the attorneys can represent all of the more than 10,000 children in state care. For more details, contact: Marcia Robinson Lowry Children's Rights 330 Seventh Avenue New York, NY 10001 ST. JOHN HEALTH: Reaches $13.6M Settlement in Nurses' Litigation ---------------------------------------------------------------- St. John Health System, a seven-hospital system based in Warren, Mich., agreed to settle a class-action lawsuit for $13.6 million that alleged hospitals in Detroit conspired to keep wages for nurses artificially low, Jay Greene of Crain's Detroit Business reports. The settlement is subject to approval by the U.S. District Court for the Eastern District of Michigan, according to the Crain's Detroit Business report. "St. John Health believes it acted appropriately and lawfully, and strongly denies the allegations in the lawsuit, including the allegation that nurse wages have been adversely affected," said St. John in a statement issued on March 30, 2009, Crain's Detroit Business reported. The St. John statement added that the settlement is intended "to avoid further expense, inconvenience, and the distraction of burdensome and protracted litigation," according to Crain's Detroit Business. Crain's Detroit Business reported that other local hospital systems that are part of the lawsuit and have not settled include Detroit Medical Center, Henry Ford Health System, Oakwood Healthcare System, Trinity Health and William Beaumont Hospitals. Case Background In 2006, the law firms of Cohen, Milstein, Hausfeld & Toll and James & Hoffman have filed a federal class action on behalf of nurses against six Detroit, Mich.-area hospitals for alleged conspiracy to suppress wages (Class Action Reporter, Dec. 21, 2006). The hospital systems are: -- Bon Secours/Cottage Health Services, -- Detroit Medical Center, -- Henry Ford Health System, -- McLaren Health Care Corp, -- Oakwood Healthcare, and -- Saint John Health Partners. Defendants are accused of deliberately, secretly and systematically exchanging information about the wages they pay their nurses, in violation of federal antitrust laws. Plaintiffs named in the suit, filed in the U.S. District Court for the Eastern District of Michigan, are Pat Cason-Merendo, who works at the Detroit Medical Center's Rehabilitation Institute of Michigan in Detroit, and Jeffrey Suhre of the St. John system's Providence Hospital and Medical Center in Southfield. They seek compensation for lost wages and damages. An estimated $340 million is allegedly owed for 16,800 registered nurses working full-time since 2002 at the six hospitals. The suit is "Cason-Merendo et al. v. Detroit Medical Center et al., Case No. 2:06-cv-15601-GER-MKM," filed in the U.S. District Court for the Eastern District of Michigan under Judge Gerald E. Rosen with referral to Judge Mona K. Majzoub. Representing the plaintiffs is: Stephen F. Wasinger, Esq. (sfw@sfwlaw.com) Stephen F. Wasinger (Royal Oak) 26862 Woodward Avenue, Suite 100 Royal Oak, MI 48067-0958 Phone: 248-414-9942 TORONTO HYDRO: Evacuated Residents File Suit Over Explosion ----------------------------------------------------------- Residents of an east Toronto building that was evacuated after an electrical explosion in March have filed a class-action lawsuit against Toronto Hydro, Josh Wingrove of Globe and Mail reports. The Globe and Mail reported that a pair of explosions at 3650 Kingston Road on March 19, 2009 forced out residents of the building. Emergency crews at the time said there were no injuries. However, four residents filed a statement of claim against Toronto Hydro, which owns the transformer where the explosion occurred, saying smoke from the explosion damaged some tenants' lungs, reports the Globe and Mail. It alleges Toronto Hydro failed to operate its equipment safely, and is claiming $30-million in total damages. The allegations though haven't been proven in court, according to the Globe and Mail report. UBS AG: New York Federal Court Dismisses Securities Fraud Suits --------------------------------------------------------------- The U.S. District Court for the Southern District of New York dismissed putative class-action lawsuits seeking damages against UBS AG over allegations of securities fraud in the auction rate securities market, Grant McCool of Reuters reports. According to a ruling issued by Judge Lawrence McKenna, the plaintiffs had no claim because they were part of agreements with state and federal regulators and law enforcement in August 2008 in which UBS agreed to buy back the ARS, a type of risky debt whose market collapsed in February 2008, according to the Reuters report. The first lawsuit was filed in March 2008 after the market froze and before UBS agreed to buy back the auction rate securities, reports Reuters. Judge McKenna wrote, "Given that plaintiffs have availed themselves of the relief provided in the Regulatory Agreement, plaintiffs cannot now allege out of pocket damages." The judge added, "When plaintiffs elected to have UBS buyback their ARS at par value, they received a full refund of the purchase price." Reuters reported that auction rate securities are long-term debts whose rates are set at periodic auctions. The credit crisis of 2007 put increasing pressure on the ARS market and by February 2008 the market froze after UBS and other brokerages stopped supporting the auctions. Plaintiffs were left holding ARS that were illiquid. They paid $25,000 per share and have been paid back $25,000 per share plus interest or dividends on the securities, the judge noted, reports Reuters. Several lawsuits were filed against UBS in New York and consolidated. The ruling grants a UBS request to the court to dismiss them all. The judge said the plaintiffs may plead within 20 days, according to the Reuters report. The case is "In Re UBS Auction Rate Securities Litigation 08- 2967, 08-3082, 08-4353, 08-5251" in the U.S. District Court for the Southern District of New York (Manhattan), Reuters reports. New Securities Fraud Cases CITIGROUP INC: Dostart Clapp Files Calif. Securities Fraud Suit --------------------------------------------------------------- On March 24, 2009, Dostart Clapp Gordon & Coveney, LLP filed a class action lawsuit in the United States District Court, Southern District of California, on behalf of all persons who participated in the Voluntary FA Capital Accumulation Program (FA CAP) of Citigroup, Inc. and its subsidiary, Citigroup Global Markets, Inc. d/b/a Smith Barney against Citigroup, certain directors of Citigroup, the administrator of the FA CAP, and John Does 1-30 alleging fraud pursuant to Sections 12(a)(2) of the Securities Act [15 U.S.C. 771(a)(2)] and 10(b) of the Exchange Act [15 U.S.C. 78j(b) and 78t(a)], Rule 10b-5 promulgated thereunder by the SEC [17 C.F.R. 240.10b- 5], Sections 201-204 and 221-222 of the California Labor Code, Sections 16600 and 17200 et seq. of the California Business & Professions Code, and the California common law (the "Class"). The case name is styled, "Brecher and Short v. Citigroup, Inc., et al." Under the FA CAP, participants used their earned wages to acquire restricted or deferred common stock (CAP Shares) or a stock option ("CAP Option" and, collectively with CAP Shares, the "Securities") of Citigroup pursuant to a prospectus. As detailed in the Complaint, Citigroup sold the Securities to employees in order to allow employees to have a percentage of their annual compensation paid in the form of awards of restricted common stock. The Offering Documents incorporated Citigroup's annual financial results as well as any future filings made with the SEC under Section 13(a), 13(c), 14 and 15(d). The Complaint alleges that the Offering Documents, however, included untrue statements of material fact and omitted material information, namely, that: -- the Company's assets, including loans and mortgage- related securities, were impaired to a much larger extent than the Company had disclosed; -- the Company failed to properly record losses for impaired assets; -- the Company's internal controls were inadequate to prevent the Company from properly reporting the value of its assets; -- Citigroup was not as well capitalized as represented and would have to raise additional billions by selling equity in the Company to the U.S. government in order to prevent its total collapse; and -- the Company caused its structured investment vehicles to imprudently issue billions of dollars worth of commercial paper and short term notes based on false and misleading statements. For more details, contact: James F. Clapp, Esq. (jclapp@sdlaw.com) Marita Murphy Lauinger, Esq. (mlauinger@sdlaw.com) Dostart Clapp Gordon & Coveney, LLP 4370 La Jolla Village Drive, Suite 970 San Diego, California 92122 Phone: (858) 623-4200 DEUTSCHE BANK: Coughlin Stoia Files N.Y. Securities Fraud Suit -------------------------------------------------------------- Coughlin Stoia Geller Rudman & Robbins LLP announced that a class action has been commenced in the United States District Court for the Southern District of New York on behalf of persons who acquired the 7.60% Trust Preferred Securities of Deutsche Bank Contingent Capital Trust III (NYSE:DTK) pursuant or traceable to a materially false and misleading registration statement and prospectus issued in connection with the February 2008 offering of the Securities. The complaint charges Deutsche Bank AG, certain of its subsidiaries, its senior insiders, its auditors and the investment banks that underwrote the Offering with violations of the Securities Act of 1933. DB is an investment bank headquartered in Frankfurt am Main, Germany, and has offices in the United States. The complaint alleges that in February of 2008, DB consummated the Offering pursuant to the false and misleading Registration Statement, selling 70 million shares of the Securities at $25 per share for proceeds of $1.75 billion. The Registration Statement incorporated DB's financial results for 2007 and statements in the Company's 2006 Annual Report on Form 20-F filed with the SEC. After the Offering, on January 14, 2009, DB issued a press release announcing disappointing fourth quarter 2008 financial results, including a loss after taxes of EUR4.8 billion, reflecting market conditions that severely impacted results in the sales and trading businesses, "most notably in Credit Trading including its proprietary trading business, Equity Derivatives and Equities Proprietary Trading." As a result of this disclosure, the price of the Securities fell dramatically. According to the complaint, the true facts which were omitted from the Registration Statement were: -- 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. Plaintiff seeks to recover damages on behalf of all persons who acquired the Securities pursuant or traceable to the Registration Statement issued in connection with the Offering. For more details, contact: David A. Rosenfeld, Esq. (djr@csgrr.com) Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800-449-4900 or 619-231-1058 Web site: http://www.csgrr.com/ ING GROEP: Wolf Haldenstein Files Securities Fraud Suit in N.Y. --------------------------------------------------------------- Wolf Haldenstein Adler Freeman & Herz LLP and Kohn, Swift, & Graf, P.C. filed a class action lawsuit in the United States District Court, Southern District of New York, on behalf of all persons who acquired the 8.5% ING Perpetual Hybrid Capital Securities of ING Groep N.V. [NYSE:IGK] pursuant to a registration statement and June 2008 Prospectus issued in connection with the Company's June 2008 offering of the Securities against ING, its senior insiders, the investment banks that underwrote the Offering and ING's auditor pursuant to 11, 12(a)(2) and 15 of the Securities Act of 1933 [15 U.S.C. 77k, 77l(a)(2) and 77o]. The case name is styled, "Emery v. ING Groep N.V., et al." As detailed in the Complaint, ING sold the Securities at $25 per share for proceeds of approximately $1.7 billion. The Offering Documents incorporated ING's financial results for 2007 as well as quarterly reports through March 2008. The Complaint alleges that the Offering Documents, however, omitted material information, namely, that: -- Defendants' assets, including loans and mortgage- related securities, were impaired to a much larger extent than the Company had disclosed; -- Defendants failed to properly record losses for impaired assets; -- the Company's internal controls were inadequate and prevented the Company from properly reporting the value of its assets; and -- ING was not as well capitalized as represented, and, notwithstanding the billions of dollars raised in the Offering, the Company would have to raise an additional EUR10 billion by selling equity in the Company to the Dutch government in order to prevent ING's total collapse. After the Offering, ING announced EUR2 billion in impairment charges associated with its exposure to bad loans, mortgage-related securities and other "pressurized" assets, causing the price of the Securities issued in the Offering to decline. As a direct and proximate result of the conduct engaged in by each of the defendants in issuing materially false and misleading Offering documents, plaintiff and the other members of the Class have sustained substantial damage in connection with the purchase of the securities issued pursuant to or traceable to the Offering Documents. For more details, contact: Gregory M. Nespole, Esq. Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, New York 10016 Phone: 800-575-0735 e-mail: classmember@whafh.com Web site: http://www.whafh.com/ INSIGHT ENTERPRISES: Brower Piven Announces Stock Lawsuit Filing ---------------------------------------------------------------- Brower Piven, A Professional Corporation, announces that a class action lawsuit has been commenced in the United States District Court for the District of Arizona on behalf of purchasers of the securities of Insight Enterprises, Inc. during the period between January 30, 2007 and February 6, 2009, inclusive. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the Company's failure to disclose during the Class Period that it had misstated its financial results during the Class Period due to its having improperly accounted for trade credits. According to the complaint, on February 9, 2009, after the Company revealed that it expects to restate financial statements included in the Company's most recently filed Annual Report on Form 10-K, for the year ended December 31, 2007, and in the Quarterly Reports on Form 10-Q for the first three quarters of fiscal year 2008, the value of Insight's stock declined significantly. No class has yet been certified in the above action. For more details, contact: Charles J. Piven, Esq. (hoffman@browerpiven.com) Brower Piven The World Trade Center-Baltimore 401 East Pratt Street, Suite 2525 Baltimore, Maryland 21202 Phone: 410/332-0030 Web site: http://www.browerpiven.com OPPENHEIMER ROCHESTER: Kantrowitz Goldhamer Files Colo. Lawsuit --------------------------------------------------------------- The law firm of Kantrowitz, Goldhamer & Graifman, P.C., filed a class action complaint in the U.S. District Court for the District of Colorado against Oppenheimer Rochester National Municipals Fund (NASDAQ: ORNAX) (NASDAQ: ORNBX) (NASDAQ: ORNCX) on behalf of all persons who purchased Class A and/or Class B and/or Class C shares of the Fund pursuant to various Registration Statements and Prospectuses issued by the Fund beginning with the registration statement and prospectus issued on or about September 27, 2006 and through disclosure of the truth about the Fund on October 21, 2008, inclusive. The complaint alleges that the Fund and certain of its trustees and officers and also Oppenheimer Funds, Inc., and Oppenheimer Funds Distributor, Inc. violated sections of the Securities Act of 1933, which prohibits materially false and misleading statements in registration statements and prospectuses of the kind used to sell shares in The Fund. According to the complaint, during the Class Period the Fund concealed various risks in the way the Fund's investments, including, but not limited to, risks associated with the Fund's use of derivative type instruments called "inverse floaters" and the Fund's over concentration of investments in illiquid securities in violation of its cap of 15% in such securities by investing an inordinate amount of its portfolio in illiquid tobacco bonds and ordinary municipal bonds/notes that could turn illiquid quickly. According to the Fund's registration statement and prospectuses, the Fund would invest no more than 15% of its assets in illiquid securities, which are securities that do not trade in any active market and are riskier because the Fund may not be able to sell the securities at the desired price, if at all. The complaint alleges that contrary to its representations, the Fund invested 25% of its holdings in illiquid tobacco bonds. In addition, the Fund failed to disclose that as much as 20% of its assets were invested in derivative instruments known as "inverse floaters" which, under certain conditions, could (and did) effectively force the Fund to sell securities from its portfolio regardless of market conditions. In or around October 2008, the Fund filed a prospectus supplement alerting investors of the true risks of its investments -- the same risks that existed in 2006, 2007, and throughout 2008. By October 2008, however, those risks had already manifested, dealing substantial losses to investors. As a result of the Funds disclosures in October 2008, the Fund lost approximately 40% of its net asset value. The Fund was crowned "The Biggest Loser in its Category last year" by Fund analyst Morningstar, Inc., as reported in a January 29, 2009 article by Thompson Reuters PLC, after losing 49% percent of its value in 2008 due to, among other reasons, its investment in tobacco bonds. For more information, contact: Gary S. Graifman, Esq. (ggraifman@kgglaw.com) Kantrowitz, Goldhamer & Graifman P.C. 747 Chestnut Ridge Road Chestnut Ridge, NY 10977 Phone: 800-660-7843 or 845-356-2570 ********* 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. 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