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C L A S S A C T I O N R E P O R T E R
Wednesday, September 16, 2009, Vol. 11, No. 183
Headlines
ACADEMY AT IVY RIDGE: 2nd Circuit Affirms No Class Certification
ALLSTATE INSURANCE: Settles Age Bias Class Action for $4.5 Mil.
BANK OF AMERICA: Judge Rakoff Rejects $33 Million SEC Settlement
BANK OF AMERICA: Suit Says Latinos Targeted for "Joke" Insurance
BLUE CROSS BLUE SHIELD: Chiropractors Sue Over Improper Payments
CBEYOND INC: Inks $2.3 Million Securities Fraud Settlement
CITIGROUP INC: Borrower Complains About Credit Line Contraction
CITIGROUP INC: "Brecher" Case Sent to S.D.N.Y. & Counsel Named
CVS PHARMACY: Charged with Unreasonably Charging for Drug Records
ENCANA OIL: Second Group Sues for Unpaid Royalties
JRHBW REALTY: N.D. Ala. Certifies Mortgage Loan Borrower Class
MDL NO. 1899: Discovery & Dairy Class Certification Arguments
OCCAM NETWORKS: Inks $12.66 Mil. Settlement of Stockholder Suit
PROFESSIONAL INVESTMENT: Aussie Regulator Settles Class Action
SERVICE CORPORATION: Charged with Mishandling Jewish Remains
SNAPPLE BEVERAGE: 3rd Cir. Revives High Fructose Corn Syrup Suit
TEVA PHARMACEUTICALS: Budeprion XL Ad Claims Come Under Fire
New Securities Fraud Cases
ANIXTER INTERNATIONAL: Coughlin Stoia Files Suit in N.D. Ill.
BEAR STEARNS: Certificateholder Complaints Filed in S.D.N.Y.
BUILDERS FIRSTSOURCE: Shareholder Complaint Filed in Del. Ch. Ct.
STRUCTURED ASSET: Certificateholder Complaints Filed in S.D.N.Y.
UCBH HOLDINGS: Rosen Law Firm Files Complaint in N.D. Calif.
*********
ACADEMY AT IVY RIDGE: 2nd Circuit Affirms No Class Certification
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Brian Kelly at the Watertown Daily Times reports that a federal
appellate court has upheld a lower court's decision not to grant
class-action certification to a group of parents of former
Academy at Ivy Ridge students suing the now-closed school for
issuing what the parents allege were "worthless" diplomas.
The U.S. Court of Appeals for the Second Circuit affirmed a July
2008 decision made in U.S. District Court for the Northern
District of New York that denied the parents' request to have
their motion for class-action certification reconsidered.
Senior U.S. District Court Judge Thomas J. McAvoy had rejected a
federal magistrate judge's recommendation that the parents be
granted the certification in a $100 million lawsuit against the
school for troubled teens, saying that class-action certification
was not warranted.
The judge wrote in his May 2008 decision that "Most, if not all,
of the common issues in this case can be resolved just as
expeditiously through joinder," which would allow common issues
of fact or law to be heard as if part of a single case, but could
allow for separate trials and potentially varying damage awards.
The parents filed a motion that month to have the decision
reconsidered, but Judge McAvoy denied the motion. The parents
appealed that decision in October.
According to documents filed Thursday in district court, the
appellate court reviews a district court's denial of class
certification "for abuse of discretion." Particularly, it
reviewed Judge McAvoy's ruling that severing various elements of
the parents' claims for class-action adjudication, while leaving
the remainder of the claims for individualized adjudication,
"would not meaningfully reduce the range of issues in dispute and
promote judicial economy."
"In this case, the district court did not abuse its discretion in
reaching this conclusion," the circuit judges wrote in their
decision.
The parents brought suit -- Dungan, et al. v. The Academy at Ivy
Ridge, et al., Case No. 06-cv-00908 (N.D.N.Y.) -- against the
school on July 25, 2006, claiming that credits and diplomas
awarded by Ivy Ridge were worthless because the school was not
accredited. The parents sought class certification on behalf of
all parents of Ivy Ridge students who enrolled their children
there under the apparent belief it was a fully accredited school.
School officials announced in March that it would be closing for
several months to "restructure" its operations, Mr. Kelly
relates.
ALLSTATE INSURANCE: Settles Age Bias Class Action for $4.5 Mil.
---------------------------------------------------------------
Judy Greenwald at Business Insurance reports that Allstate
Insurance Co. has agreed to pay $4.5 million to about 90 former
employees to settle an age discrimination class action lawsuit,
according to the the U.S. Equal Employment Opportunity
Commission.
The litigation with the EEOC, which was filed in 2004, stems from
the Northbrook, Ill.-based insurer's efforts in 2000 to convert
its 15,000-member agent workforce to independent contractors from
regular employees.
The EEOC said Allstate had adopted a hiring moratorium for a
period of one year, or while severance benefits were being
received, that had a disproportionate impact on workers over age
40 because more than 90% of the agents subjected to it were in
that age group. Allstate has denied that its hiring moratorium
violated the Age Discrimination in Employment Act of 1967.
An Allstate spokesman said in a statement obtained by Ms.
Greenwald that "while confident that we acted appropriately," the
insurer decided to settle the dispute "to avoid the burden and
considerable expense of continued litigation for everyone
involved." The spokesman said Allstate believes "its position is
correct and that it would have ultimately prevailed in this case.
The court has indicated, and the EEOC acknowledges, that the
dispute is centered on a point of law over which there is
substantial ground for difference of opinion."
BANK OF AMERICA: Judge Rakoff Rejects $33 Million SEC Settlement
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The Wall Street Journal's Law Blog Newsletter reports that
Manhattan federal judge Jed Rakoff has rejected the proposed $33
million settlement in Securities and Exchange Commission v. Bank
of America Corporation, Case No. 09-cv-6829 (S.D.N.Y.) -- the
case in which the SEC had alleged that BofA "materially lied" in
shareholder communications last year about bonuses to Merrill
Lynch employees.
The SEC and Bank of America had sought the judge's approval of a
consent decree to resolve charges that the bank concealed an
agreement to pay up to $5.8 billion in bonuses to Merrill
executives. But, in an unusual move, the judge said no. On
Monday, he set a Feb. 1 trial date on the allegations in his New
York courtroom.
A copy of Judge Rakoff's Mmeorandum Order is available at:
http://online.wsj.com/public/resources/documents/bofaorder914.pdf
For starters, Rakoff found the proposed settlement unfair:
It is not fair, first and foremost, because it does not
comport with the most elementary notions of justice and
morality, in that it proposes that the shareholders who were
the victims of the Bank's alleged misconduct now pay the
penalty for that misconduct. . . . [T]he notion that Bank of
America shareholders, having been lied to blatantly in
connection with the multi-billion-dollar purchase of a huge,
nearly-bankrupt company, need to lose another $33 million of
their money in order to "better assess the quality and
performance of management" is absurd.
Rakoff also questions why, while maintaining its innocence, BofA
is agreeing to pay $33 million to settle. He says:
If the Bank is innocent of lying to its shareholders, why is
it prepared to pay $33 million of its shareholders' money as
a penalty for lying to them? All the Bank offers in response
to this obvious question is the statement in the last
footnote of its Reply Memorandum that "Because of the SEC's
decision to bring charges, Bank of America would have to
spend corporate funds whether or not it settled" . . . --
the implication being the payment was simply an exercise of
business judgment as which alternative would cost more:
litigating or settling. . . .
But, quite aside from the fact that it is difficult to
believe that litigating this simple case would cost anything
like $33 million, it does not appear, so far as one can tell
from this single sentence in a footnote, that this decision
was made by disinterested parties. It is one thing for
management to exercise its business judgment to determine
how much of its shareholders money should be used to settle
a case brought by former shareholders or third parties. It
is quite something else for the very management that is
accused of having lied to its shareholders to determine how
much of those victims' money should be used to make the case
against the management go away.
Lastly, Rakoff, a Swarthmore College English major, makes
reference to a great Irish wit before finishing, with a flourish:
Oscar Wilde once famously said that a cynic is someone "who
knows the price of everything and the value of nothing."
Oscar Wilde, Lady Windermere's Fan (1892). The proposed
Consent Judgment in this case suggests a rather cynical
relationship between the parties: the S.E.C. gets to claim
that it is exposing wrongdoing on the part of the Bank of
America in a high-profile merger; the Bank's management gets
to claim that they have been coerced into an onerous
settlement by overzealous regulators. And all this is done
at the expense, not only of the shareholders, but also of
the truth.
BANK OF AMERICA: Suit Says Latinos Targeted for "Joke" Insurance
----------------------------------------------------------------
Bridget Freeland at Courthouse News Service reports that Bank of
America conspired with "predatory expert" Intersections Inc. and
AIG to make tens of millions of dollars by coercing poor,
Hispanic depositors to authorize automated withdrawals for
purported insurance policies, whose benefits are so paltry they
are "almost a joke," and whose real purpose is to fatten the
bank's coffers, according to a RICO class action in Houston
Federal Court.
The insurance coverage provided is "a pitiful excuse for
insurance protection," and the "amounts that supposedly will be
paid are small, and the conditions to their being paid at all are
highly unlikely to ever occur," according to the complaint.
The class claims that since 2006 Bank of America has profiled its
customer-victims, disclosed their confidential information to
Intersections, and in turn received "almost $45 million out of
the checking account deposits of its poorest customers."
Lead plaintiff Jorge Gonzalez, a native of Mexico who has limited
education and English language skills, says he was a typical
victim of the scam.
The class claims that when someone who fits Gonzalez's profile
opens a Bank of America checking account, the bank sends the
customer profile and deposit information to Intersections, "a
predatory expert" whose main goal is to "increase the (bank's)
bottom line."
Intersections hires a telemarketing company with native Spanish
speakers, who call the BofA customers, claiming to represent the
bank, to persuade them "to authorize, over the phone, the
purchase of some form of insurance, usually ... accidental death
or disability," the complaint states.
Once the telemarketer receives an OK from the customer,
Intersections begins taking a "so-called 'premium'" out of their
checking account, under the name "Smart Step," according to the
complaint.
"Most of those withdrawals are divided among Bank of America,
Intersections, and the telemarketing firm that made the first
call," and a small amount goes toward an insurance premium, the
complaint states.
Intersections "derived over $236 million in revenues in 2007 and
over $361 million in revenues in 2008," which does not include
what was paid to AIG or its subsidiary, according to the
complaint.
The class claims that the insurance customers get is "almost a
joke." The "victims are not even direct beneficiaries of any
insurance policy," and the policy is terminable if the customer
closes their BofA account, the class claims.
Bank of America's "privacy" policy deceptively states that it
does not share customers' confidential information with
marketers, but that it will share information with companies that
work for Bank of America, in order to better meet customers'
needs, according to the complaint.
The entire scheme "is structured so the victims can never figure
out what is going on," the complaint states.
Defendants include Bank of America, Bank of America Insurance
Services, BA Insurance Services, Intersections, Intersections
Insurance Services, Loeb Holding, Global Contact Services,
American International Group, and National Union Fire Insurance
Company of Pittsburgh.
The class seeks punitive damages for fraud, breach of contract,
unjust enrichment and breach of fiduciary duties. Its lead
counsel is Kenneth Wynne.
A copy of the Complaint in Gonzalez v. Bank of America, N.A., et
al., Case No. 09-cv-02946 (S.D. Tex.), is available at:
http://www.courthousenews.com/2009/09/14/BofAUseless.pdf
Mr. Gonzalez is represented by:
Kenneth R. Wynne, Esq.
WYNNE & WYNNE LLP
Pennzoil Place, South Tower
711 Louisiana, Suite 2010
Houston, TX 77002
Telephone: (713) 227-8835
Facsimile: (713) 227-6205
E-mail: kwynne@wynne-law.com
- and -
John F. Sullivan, III, Esq.
1800 Pennzoil Place - South Tower
711 Louisiana, Street
Houston, TX 77002
Telephone: (713) 650-8100
Facsimile: (713) 650-8141
BLUE CROSS BLUE SHIELD: Chiropractors Sue Over Improper Payments
----------------------------------------------------------------
Pomerantz Haudek Grossman & Gross LLP and its co-counsel
Buttaci & Leardi, LLC filed a class action lawsuit against the
Blue Cross Blue Shield Association and 22 leading BCBS insurers
across the country on behalf of a putative nationwide class of
health care providers, as well as the Pennsylvania Chiropractic
Association, the New York Chiropractic Council, and the
Association of New Jersey Chiropractors. The suit challenges the
Defendants' abusive practices in using post-payment audits and
reviews, and improper repayment demands, to pressure providers to
repay substantial sums that have previously properly been paid as
health insurance benefits for services provided to BCBS
subscribers.
The case is Pennsylvania Chiropractic Association, et al. vs.
Blue Cross Blue Shield Association, et al., Case No. 09-cv-05619
(N.D. Ill.) (Kennelly, J.). The 24 named defendants are:
-- Blue Cross Blue Shield Association
-- Blue Cross Blue Shield of Rhode Island
-- Blue Cross and Blue Shield of Alabama
-- Arkansas Blue Cross and Blue Shield
-- Blue Shield of California
-- Blue Cross and Blue Shield of Georgia, Inc.
-- Blue Cross and Blue Shield of Florida
-- Health Care Services Corporation
-- Blue Cross and Blue Shield of Kansas
-- CareFirst, Inc.
-- Blue Cross and Blue Shield of Massachusetts, Inc.
-- Blue Cross and Blue Shield of Minnesota
-- Blue Cross and Blue Shield of Kansas City
-- Horizon Blue Cross and Blue Shield of New Jersey
-- Excellus Blue Cross and Blue Shield
-- Blue Cross and Blue Shield of North Carolina
-- Independence Blue Cross
-- Highmark, Inc.
-- Blue Cross and Blue Shield of South Carolina
-- Blue Cross and Blue Shield of Tennessee
-- Premera Blue Cross
-- The Regence Group
-- Wellmark, Inc.
-- WellPoint, Inc.
The action alleges that the post-payment audit and review process
as applied by the various named BCBS Entities violates the
Employee Retirement Income Security Act of 1974, in that its
repayment demands are retroactive determinations that particular
services are not covered under the terms of the BCBS health care
plans, but without proper appeal or other protections otherwise
available under ERISA for both self-funded and fully insured
health care plans offered through private employers. The
complaint further alleges that the post-payment audit and review
process, as well as the forced withholds of unrelated benefit
payments to offset alleged prior overpayments, violate the
Racketeer Influenced and Corrupt Organizations Act.
The PCA, the Council and the ANJC are participating in the action
in an associational capacity on behalf of their members, while
fourteen individual chiropractors and one occupational therapist,
located around the country, have sued as the class
representatives of the putative class. According to Gene Veno,
Executive Director of the PCA, "we met on numerous occasions with
Blues Senior Management in an effort to establish a fair and
balance approach to conducting post-payment reviews, but to no
avail." As a result, he added, "the PCA elected to join this
action to ensure that the rights of our members are protected."
Four of the 15 named individual plaintiffs are Pennsylvania
chiropractors. Dr. John LaMonica, Chair of the Insurance
Committee for the Council, states that "this action is an
important step by the chiropractic profession to fight back
against the egregious actions being taken by Blue Cross Blue
Shield companies against our members and other providers
nationwide." The Council and the ANJC had previously joined in a
class action recently filed against Aetna, Inc. for similar post-
payment audit practices.
In the complaint, Plaintiffs allege that, as a means to maximize
its profits, the BCBS Entities use their post-payment audit and
review process to make retroactive adverse benefit determinations
whereby they demand that providers repay funds they had
previously received for providing services to BCBS subscribers.
Moreover, the BCBS Entities frequently withhold new benefit
payments for unrelated services to apply toward the alleged
overpayments, even where there has been no valid appeal process
or validation that any sums are in fact owed by the providers.
"In essence," says Plaintiffs' counsel Dr. Brian Hufford of
Pomerantz Haudek, "the BCBS Entities simply state there are
overpayments and then just take the money from providers, without
valid due process protections. We believe this is a blatant
violation of law."
The Complaint further alleges that the BCBSA is coordinating the
recoupment efforts with its state BCBS licensees on a nationwide
basis. Plaintiffs seek to enjoin the BCBS Entities from
continuing to engage in impermissible audit and recovery
practices and to compel them to return the funds they have
improperly withheld.
The amount of funds that are at issue in the lawsuit are
substantial. On June 30, 2009, the BCBSA announced that its
National Anti-Fraud Department had "recovered nearly $350 million
as a result of the anti-fraud investigations in 2008."
Plaintiffs' co-counsel Vincent N. Buttaci of Buttaci & Leardi
states that "we believe a substantial portion of this 'recovery'
falls within the improper practices we are challenging in this
action."
Pomerantz Haudek, which has offices in New York, Chicago,
Washington, D.C., Columbus, Ohio and the San Francisco Bay area,
is acknowledged as one of the premier plaintiff class action
firms, and, in particular, has been a leader in the industry in
health care class actions on behalf of providers and patients.
Recently, the Pomerantz firm was designated to be Chair of the
Plaintiffs' Executive Committee in a multidistrict litigation
pending against Aetna in the District of New Jersey on behalf of
both providers and subscribers, challenging how Aetna determines
usual, customary and reasonable rates for out-of-network health
care services. In making the appointment, the Court stressed the
significant role Pomerantz had played in a $249 million
settlement of its UCR class action against Health Net, stating
that the Court had "similarly appointed Pomerantz to be
Plaintiffs' spokesman to the Court in the Health Net litigation
because the Court found D. Brian Hufford, Esq. to be the
attorney most capable of presenting Plaintiffs' position in a
clear and concise manner." In re Aetna UCR Litig., 2009 Dist.
LEXIS 66853, *8 n.4 (D.N.J. July 31, 2009).
Founded by the late Abraham L. Pomerantz, known as the dean of
the class action bar, Pomerantz Haudek pioneered the field of
securities class actions. Today, more than 70 years later,
Pomerantz Haudek continues in the tradition he established,
fighting for the rights of the victims of fraud, breaches of
fiduciary duty, and corporate misconduct. The Firm has recovered
numerous multimillion-dollar damages awards on behalf of class
members.
Buttaci & Leardi, based in Princeton, New Jersey, has a dynamic
national health care practice, representing licensed health care
providers, group practices and other provider-related entities
throughout the country. It has extensive experience representing
providers in challenging post-payment audits and retroactive
recoupments, including those pursued by numerous Blue Cross Blue
Shield licensees, and has obtained tremendous success on behalf
of its clients.
Counsel for plaintiffs are continuing to investigate these
claims, and other related claims that may be added to the
litigation.If you have any questions, please contact:
D. Brian Hufford, Esq.
Pomerantz Haudek Grossman & Gross LLP
1900 Polaris Parkway, Suite 450
Columbus, OH 43240
Telephone: 614-410-6501
E-mail: dbhufford@pomlaw.com
- and -
Vincent N. Buttaci, Esq.
Buttaci & Leardi, LLC,
212 Carnegie Center, Suite 206
Princeton, NJ 08540
Telephone: 609-919-6312
E-mail: vnbuttaci@buttacilaw.com
CBEYOND INC: Inks $2.3 Million Securities Fraud Settlement
----------------------------------------------------------
The parties in Weisberg v. Cbeyond, Inc., et al., Civil Action
No. 08-CV-1666 (N.D. Ga.) (Cooper, J.), have filed papers seeking
preliminary approval of the settlement this securities class
action lawsuit filed on May 6, 2008.
Although Cbeyond continues to deny plaintiffs' allegations, the
Company believes it is in the best interests of its stockholders
to focus its attention on its business and put the matter behind
it. The settlement is subject to approval by the Court, and the
settlement amount of $2.3 million will be paid by the Company's
D&O insurance coverage, with no impact to Cbeyond's financial
statements.
The Class Action Reporter's latest update about this litigation
appeared on August 20, 2009.
Representing the plaintiff are:
Martin D. Chitwood, Esq.
Chitwood Harley Harnes
2300 Promenade II
1230 Peachtree Street, NE
Atlanta, GA 30309
Phone: 404-873-3900
Fax: 404-876-4476
E-mail: mchitwood@chitwoodlaw.com
- and -
Mark C. Gardy, Esq.
Gardy & Notis, LLP
440 Sylvan Avenue, Suite 110
Englewood Cliffs, NJ 07632
Phone: 201-567-7377
Fax: 201-567-7337
Representing the defendants are:
Scott P. Hilsen, Esq.
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
Phone: 404-881-7000
E-mail: shilsen@alston.com
- and -
David A. Becker, Esq.
Latham & Watkins
555 Eleventh Street, N.W., Suite 1000
Washington, DC 20004-1304
Phone: 202-637-2174
Cbeyond, Inc. (NASDAQ: CBEY) -- http://www.cbeyond.net/-- is a
leading provider of IT and communications services to more than
46,000 small businesses throughout the United States. Recently
named as the sixth fastest growing technology company by Forbes
magazine, and added to Standard & Poor's Small Cap S&P 600 Index,
Cbeyond offers more than 30 productivity-enhancing applications
including local and long-distance voice, broadband Internet,
mobile, BlackBerry(R), broadband laptop access, voicemail, email,
web hosting, fax-to-email, data backup, file-sharing and virtual
private networking. Cbeyond delivers these services over a 100
percent private all IP network.
CITIGROUP INC: Borrower Complains About Credit Line Contraction
---------------------------------------------------------------
Courthouse News Service reports that Citigroup reduced home
equity credit lines by claiming a decline in home values, without
informing customers of "the present value of (their) home, the
amount by which the home supposedly declined, or the methods used
to compute that amount," a class action claims in San Diego
Federal Court.
A copy of the Complaint in Winkler v. Citigroup, Inc., et al.,
Case No. 09-cv-1999 (S.D. Calif.), is available at:
http://www.courthousenews.com/2009/09/14/BankCitiHEq.pdf
The plaintiff is represented by:
James R. Patterson, Esq.
Alisa A. Martin, Esq.
HARRISON PATTERSON O'CONNOR & KINKEAD LLP
402 West Broadway, 29th Floor
San Diego, CA 92101
Telephone: (619) 756-6990
- and -
Gene J. Stonebarger, Esq.
LINDSAY & STONEBARGER
620 Coolidge Drive, Suite 225
Folsom, CA 95630
Telephone: (916) 294-0002
CITIGROUP INC: "Brecher" Case Sent to S.D.N.Y. & Counsel Named
--------------------------------------------------------------
The class action lawsuit on behalf of Citigroup's financial
advisors whose earned wages were used to purchase stock or
options in the Voluntary FA Capital Accumulation Program (FA
CAP), Brecher et al. v. Citigroup, Inc., et al., Case No.
09-cv-606 (S.D. Calif.), has been transferred to the United
States District Court in the Southern District of New York and is
now docketed as Case No. 09-cv-07359.
Prior to the transfer, Zamansky & Associates, LLC, was appointed
one of the co-lead counsels for the class of Citigroup employees
whose earned wages were used to purchase FA CAP stock and options
from November 2006 to November 2008. Co-lead counsels now expect
to file an amended complaint in this action by October 8, 2009,
in the Southern District of New York.
The class action lawsuit alleges, among other things, that
Citigroup made misrepresentations about its financial condition
and subprime-related holdings which resulted in damages to FA CAP
stock and options, and that the vesting and forfeiture provisions
of FA CAP stock and options may be unlawful under local state
laws which protect earned wages.
If you are a current or former Citigroup employee whose earned
wages were used to purchase FA CAP stock or options from November
2006 to November 2008, and you wish to contact us in order to
evaluate your rights or to participate in the class action
lawsuit, Zamansky urges you to do so at your earliest
convenience.
To contact Zamansky & Associates LLC, visit the Firm's Web site
at http://www.zamansky.com/or call (212) 742-1414. Based in New
York City, Zamansky & Associates LLC represents institutional and
individual investors as well as employees of securities firms and
brokerages. The firm has represented a wide array of securities
industry clients and the firm's cases have set major precedents
and spurred industry-wide reform.
Prior reporting about the Brecher lawsuit appeared in the Class
Action Reporter on April 1, 2009.
CVS PHARMACY: Charged with Unreasonably Charging for Drug Records
-----------------------------------------------------------------
Courthouse News Service reports that CVS Caremark pharmacies
charge excessive, arbitrary and unreasonable fees to customers
who request their prescription records, a class action claims in
Los Angeles Federal Court. The named plaintiff says she paid
$35.
A copy of the Complaint in Ortiz v. CVS Pharmacy, Inc., et al.,
Case No. 09-cv-1050 (C.D. Calif.), is available at:
http://www.courthousenews.com/2009/09/14/CCACVS.pdf
The Plaintiff is represented by:
David Smith, Esq.
Stuart C. Talley, Esq.
KERSHAW, CUTTER & RATINOFF LLP
401 Watt Ave.
Sacramento, CA 95864
Telephone: (916) 669-9800
- and -
Mark J. Tamblyn, Esq.
WEXLER WALLACE LLP
455 Capitol Mall, Suite 231
Sacramento, CA 95814
Telephone: (916) 568-1100
ENCANA OIL: Second Group Sues for Unpaid Royalties
--------------------------------------------------
Dennis Webb at The Grand Junction Daily Sentinel reports that
some 45 royalty owners who opted out of a class-action lawsuit
against EnCana Oil & Gas (USA) Inc. have filed a separate suit
against the company in Garfield County, contending they are owed
more in royalties than they have been paid.
The plaintiffs are being represented by:
Nathan A. Keever, Esq.
744 Horizon Court, Suite 300
Grand Junction, CO 81506
Phone: (970) 241-5500
Fax: (970) 243-7738
Mr. Keever has had success bringing similar royalty lawsuits
against Williams Production RMT in connection with its Garfield
County operations.
Mr. Keever also is representing two participants in the EnCana
class-action suit who have appealed to the Colorado Supreme
Court, saying a $40 million settlement EnCana has agreed to is
insufficient. An appeals court upheld that settlement earlier
this year, and the Supreme Court has yet to decide whether to
consider the appeal.
Among the issues in the EnCana litigation are royalty deductions
it imposed for costs such as delivering gas to market. EnCana
says its practices are proper but that it agreed to the class-
action settlement to avoid the cost and uncertainty of protracted
litigation.
Mr. Keever tells Mr. Webb the appeal involves parties who opted
in as class-action participants without being able to know what
the settlement amount would be. The new suit involves others who
opted out because they didn't want to be bound by the
settlement's terms, he said.
Mr. Keever said a class-action settlement he negotiated with
Williams allowed royalty owners to consider the settlement amount
before deciding whether to opt in. Williams agreed earlier this
year to pay about $4.7 million under a partial settlement of a
suit involving some 1,200 royalty owners in Garfield County.
The new suit against EnCana involves royalty owners who include
many Garfield County residents. Keever said the class-action suit
involves wells in other parts of Colorado and those who opted out
of it believed they were not going to be adequately represented
by legal counsel from elsewhere "when their interests lie over
here."
George Barton, Esq., who helped bring the class-action suit, said
he doesn't agree that the Garfield County royalty owners'
circumstances are different, and he thinks the settlement was a
good one.
The new suit accuses EnCana of practices such as excluding and
undervaluing proceeds from sales of liquids extracted from
natural gas, and failing to refund royalty owners for tax
withholdings that exceeded taxes owed.
EnCana spokesman Doug Hock said the claims are without merit,
"and we'll defend our position vigorously in court."
JRHBW REALTY: N.D. Ala. Certifies Mortgage Loan Borrower Class
--------------------------------------------------------------
The U.S. District Court for the Northern District of Alabama
issued an opinion last week upholding the certification of a
consumer class action against RealtySouth. The lawsuit alleges
that RealtySouth charged consumers an administrative brokerage
commission (or ABC fee) at closing for which no service was
provided. The Court's decision will allow the case to proceed
toward notifying the class members and setting the case for
trial.
The class includes more than 25,000 people who were charged $149
by RealtySouth at their real estate closing for the so-called
"ABC Fee." Class attorneys Scott Powell, Esq., Don McKenna,
Esq., Jamie Moncus, Esq., and Bruce McKee, Esq., of Birmingham
firm Hare, Wynn, Newell & Newton LLP say that RealtySouth
implemented the ABC fee in 2003 and included it as a separate
line item fee on the HUD-1 settlement statement. The suit
alleges that RealtySouth performed no specific service for the
fee in violation of the Real Estate Settlement Procedures Act
known as "RESPA." RESPA was enacted to protect consumers from
unnecessarily high settlement charges caused by abusive
settlement practices. The Act specifically prohibits charging a
fee for which no service is provided.
Former RealtySouth CEO Tommy Brigham has already given sworn
deposition testimony that no specific service is provided in
exchange for the ABC fee. Current RealtySouth CEO, Ty Dodge has
given an affidavit in a related case stating that the ABC Fee was
not intended to cover any specific service. Former RealtySouth
agents have also testified that no service was performed for the
ABC Fee and that the ABC Fee was a "junk fee." Now that the
Court has ruled the case may proceed as a class action, notice
will sent to the class members and the case will be prepared for
trial. The class action lawyers at Hare, Wynn say that "this
case is a textbook example of the proper use of the class action
mechanism to protect consumers. The dollars at stake for any
individual consumer are less than the filing fee for an
individual lawsuit, effectively preventing individual suits."
Under RESPA, RealtySouth may be liable for up to three times the
actual ABC Fees charged to over 25,000 consumers.
When written notice of the certified class action lawsuit is
approved by the Court, it will be mailed to individuals who paid
the fee and will also be posted on class counsels' Web site at
http://www.hwnn.com/
The case is styled Vicki V. Busby v. JRHBW Realty, Inc. d/b/a
RealtySouth, Case No. 04-CV-2799 (N.D. Ala.).
This decision from the District Court favording class
certification follows remand from an appeal to the U.S. Court of
Appeals for the Eleventh Circuit, as related in the April 24,
2009, edition of the Class Action Reporter.
HARE, WYNN, NEWELL & NEWTON, LLP -- http://www.hwnn.com/-- is
the oldest existing plaintiff's law firm in the State of Alabama.
In 1991, the firm entered its second century of practice. The
firm's philosophy is based upon a dedication to protecting and
preserving the dignity and rights of all individuals.
Representing the rights of all citizens with the same degree of
service previously available only to the corporate community, the
firm stands today as an enduring testament to the original vision
and ideals of its founder in providing quality representation for
individuals and businesses requiring legal services. The firm
specializes in representing plaintiffs in commercial and business
litigation, as well as handling more traditional cases involving
catastrophic personal injury and wrongful death.
Vicki V. Busby, the named Plaintiff, is represented by:
Bruce J. McKee, Esq.
Donald P. McKenna, Jr, Esq.
James R. Moncus, III, Esq.
Scott A. Powell, Esq.
HARE WYNN NEWELL & NEWTON
Massey Building, Suite 800
2025 3rd Avenue, North
Birmingham, AL 35203-3331
Telephone: 205-328-5330
E-mail: Bruce@hwnn.com
Don@hwnn.com
jamie@hwnn.com
scott@hwnn.com
JRHBW Realty, Inc., is represented by:
Jay N Varon, Esq.
FOLEY & LARDNER LLP
3000 K Street NW
Washington, DC 20007
Telephone: 202-672-5380
Fax: 202-672-5399 (fax)
E-mail: jvaron@foley.com
- and -
Michael D. Leffel, Esq.
FOLEY & LARDNER LLP
150 E. Gilman St.
Madison, WI 53703
Telephone: 608-258-4216
Fax: 608-258-4258
E-mail: mleffel@foley.com
- and -
Robert J. Campbell, Esq.
James W. Gewin, Esq.
Michael R. Pennington, Esq.
BRADLEY ARANT BOULT CUMMINGS LLP
One Federal Place
1819 Fifth Avenue N, Seventh Floor
PO Box 830709
Birmingham, AL 35283-0709
Telephone: 205-521-8000
Fax 205-521-8800
E-mail: rjcampbell@babc.com
jgewin@babc.com
mpennington@babc.com
- and -
C. Lee Reeves, Esq.
SIROTE AND PERMUTT PC
2311 Highland Avenue South
PO Box 55727
Birmingham, AL 35255-5727
Telephone: 205-930-5100
Fax: 205-930-5335
E-mail: lreeves@sirote.com
MDL NO. 1899: Discovery & Dairy Class Certification Arguments
-------------------------------------------------------------
Hugh Willett, a freelance contributor to the News Sentinel,
reports that dairy industry officials and farmers from across the
Southeast piled into the Honorable J. Ronnie Greer's courtroom in
In re: Southeastern Milk Antitrust Litigation, MDL No. 1899;
Master Docket No. 08-MD-1000 (E.D. Tenn.), last week to argue
claims of price-fixing and supply-and-demand pressures in an
antitrust case with nationwide implications on the way
agriculture products are bought and sold.
Judge Greer heard arguments in the case, first filed in February
2006, and updated with more plaintiffs in July 2007, from some 40
lawyers representing the plaintiff dairy farmers and the
defendants, mostly dairy co-ops including Kansas City-based Dairy
Farmers of America and Dean Foods Co. of Dallas, which is the
parent company of Mayfield Dairy. The plaintiffs are seeking
class-action status, structural change in the market and
financial restitution.
"We came to see justice done," Tonya Kuny of Wellsland Dairy in
Clinton, Ark., told Mr. Willett. The 60-year-old dairy recently
went out of business after losing $3 million in the last year,
she said.
Issues debated last week were related to the disclosure of
confidential information and granting class-action status to
plaintiffs in the case, Mr. Willett relates. Lawyers also were
present representing witnesses subpoenaed in the case and the
media, including the New York Times and National Public Radio.
Paul Friedman, Esq., lead attorney for the defendants, said his
goal was not to try the case in secret but to prevent competitive
information from being released to the public during the trial.
Some of the data are highly confidential, Mr. Friedman said,
including an offer by the defendants to settle the case.
Plaintiff lawyer Gregory Commins, Jr., Esq., said it is necessary
to share confidential information with plaintiffs because they
are experts in the dairy industry whose guidance is needed to try
the case, Mr. Commins said.
Judge Greer said the burden to show the information is sensitive
would be upon the defendants. "I have a strong bias toward doing
the public's business in public view," he said.
Attorneys for the plaintiffs argued for class-action status
because a large number of plaintiffs have common complaints. The
defense argued that individual contracts are in question and that
market forces have determined the pricing structure.
Class-action status could involve as many as 4,500 dairy farmers
across the South, Julie Walker at AgriVoice Enterprises, a
marketing firm representing dairy farmers, told Mr. Willett.
"Although filed in the Southeast, the suit has national
implications on many levels and is being watched closely by many
sectors in the farm-to-consumer chain," Ms. Walker said.
Judge Greer set a Dec. 10 date to continue hearing arguments in
the case.
The attorneys-of-record involved in this MDL proceeding are:
Robert G. Abrams, Esq.
Howrey LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20016
Telephone: (202) 783-0800
Fax: (202) 318-8399
E-mail: abramsr@howrey.com
- and -
Tanya S. Chutkan, Esq.
Boies, Schiller & Flexner, LLP
5301 Wisconsin Avenue NW, Suite 800
Washington, DC 20015
Telephone: 202-237-2727
Fax: 202-237-6131
E-mail: tchutkan@bsfllp.com
- and -
Carey S. Busen, Esq.
Howrey LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20016
Telephone: (202) 783-0800
Fax: (202) 318-8399
E-mail: busenc@howrey.com
- and -
Robert L. Arrington, Esq.
Wilson Worley Moore Gamble & Stout, PC
P.O. Box 88
Kingsport, TN 37662
Telephone: 423-723-0400
Fax: 423-723-0429
E-mail: rarrington@wwmgs.com
- and -
Gordon Ball, Esq.
Ball & Scott Law Offices
Bank of America Center
550 Main Street, Suite 601
Knoxville, TN 37902
Telephone: 865-525-7028
Fax: 865-525-4679
E-mail: filings@ballandscott.com
- and -
Kay Lynn Brumbaugh, Esq.
Andrews Kurth, LLP
1717 Main Street, Suite 3700
Dallas, TX 75201
Telephone: 214-659-4520
Fax: 214-659-4778
E-mail: kaylynnbrumbaugh@andrewskurth.com
- and -
Jerry L. Beane, Esq.
Andrews Kurth, LLP
1717 Main Street, Suite 3700
Dallas, TX 75201
Telephone: 214-659-4520
Fax: 214-659-4778
E-mail: jerrybeane@andrewskurth.com
- and -
Brandon J.B. Boulware, Esq.
Rouse Hendricks German May PC
1010 Walnut Street, Suite 400
Kansas City, MO 64106
Telephone: 816-471-7700
Fax: 816-471-2221
E-mail: brandonb@rhgm.com
- and -
Edward T. Brading, Esq.
Herndon, Coleman, Brading & McKee
P.O. Box 1160
Johnson City, TN 37605-1160
Telephone: 423-434-4700
Fax: 423-434-4738
E-mail: ebrading@lawyerfirm.com
- and -
William C. Bovender, Esq.
Hunter, Smith & Davis
1212 N. Eastman Road
P.O. Box 3740
Kingsport, TN 37664
Telephone: 423-378-8800
Fax: 423-378-8801
E-mail: bovender@hsdlaw.com
- and -
Daniel K. Bryson, Esq.
Lewis & Roberts, PLLC
P.O. Box 17529
Raleigh, NC 27619
Telephone: 919-981-0191
Fax: 919-981-0199
E-mail: dkb@lewis-roberts.com
- and -
Shayne R. Clinton, Esq.
Bass, Berry & Sims, PLC
900 South Gay Street, Suite 1700
Knoxville, TN 37902
Telephone: 865-521-6200
Fax: 865-521-6234
E-mail: sclinton@bassberry.com
- and -
H. Buckley Cole, Esq.
Greenebaum Doll & McDonald, PLLC
Regions Center
315 Deaderick Street, Suite 1425
Nashville, TN 37238
Telephone: 615-760-7130
Fax: 615-760-7300
- and -
Daniel D. Crabtree, Esq.
Stinson Morrison Hecker LLP
12 Corporate Woods
10975 Benson, Suite 550
Overland Park, KS 66210
Telephone: 913-451-8600
Fax: 913-344-6796
E-mail: dcrabtree@stinson.com
- and -
Mark S. Dessauer, Esq.
Hunter, Smith & Davis
1212 N. Eastman Road
P.O. Box 3740
Kingsport, TN 37664
Telephone: 423-378-8800
Fax: 423-378-8801
E-mail: dessauer@hsdlaw.com
- and -
David E. Everson, Esq.
Stinson Morrison Hecker LLP
1201 Walnut, Suite 2900
Kansas City, MO 64106
Telephone: 816-842-8600
Fax: 816-691-3495
E-mail: deverson@stinson.com
- and -
Kenneth P. Ewing, Esq.
Steptoe & Johnson
1330 Connecticut Avenue NW
Washington, DC 20036
Telephone: 202-429-6264
Fax: 202-429-3902
E-mail: kewing@steptoe.com
- and -
Carolyn H. Feeney, Esq.
Dechert LLP
2929 Arch Street
Philadelphia, PA 19104-2808
Telephone: 215-994-2247
Fax: 215-994-2222
E-mail: carolyn.feeney@dechert.com
- and -
Paul D. Frangie, Esq.
Dechert, LLP
1775 I Street, NW
Washington, DC 20006-2401
Telephone: 202-261-3426
E-mail: paul.frangie@dechert.com
- and -
Paul H. Friedman, Esq.
Dechert, LLP (DC)
1775 I Street, NW
Washington, DC 20006-2401
Telephone: 202-261-3398
Fax: 202-261-3333
E-mail: paul.friedman@dechert.com
- and -
Craig V. Gabbert, Jr., Esq,
Harwell, Howard, Hyne, Gabbert & Manner, PC
315 Deaderick Street
Suite 1800 AmSouth Center
Nashville, TN 37238
Telephone: 615-256-0500
Fax: 615-251-1058
E-mail: cvg@h3gm.com
- and -
G. P. Gaby, Esq.
Milligan & Coleman
P O Box 1060
Greeneville, TN 37744-1060
Telephone: 423-639-6811
Fax: 423-639-0278
E-mail: sweems@milligancoleman.com
- and -
Thomas J. Garland, Jr., Esq.
Milligan & Coleman
P.O. Box 1060
Greeneville, TN 37744-1060
Telephone: 423-639-6811
Fax: 423-639-2078
E-mail: tgarland@milligancoleman.com
- and -
Besrat J. Gebrewold, Esq.
Cohen Milstein Sellers & Toll, PLLC
1100 New York Avenue, N.W., Suite 500
Washington, DC 20005
Telephone: 202-408-4600
Fax: 202-408-4699
E-mail: bgebrewold@cohenmilstein.com
- and -
Charles W. German, Esq.
Rouse Hendricks German May PC
1010 Walnut Street, Suite 400
Kansas City, MO 64106
Telephone: 816-471-7700
Fax: 816-471-221
E-mail: charleyg@rhgm.com
- and -
Jacob P. Goldstein, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue
Eighteenth Floor
New York, NY 10018
Telephone: 212-556-5188
Fax: 212-556-1009
E-mail: jacob.goldstein@nytimes.com
- and -
Bradley E. Griffith, Esq.
Herndon, Coleman, Brading & McKee
P.O. Box 1160
Johnson City, TN 37605-1160
Telephone: 423-434-4700
Fax: 423-434-4738
E-mail: bgriffith@lawyerfirm.com
- and -
Thomas M. Hale, Esq.
Kramer, Rayson, Leake, Rodgers & Morgan, LLP
P.O. Box 629
Knoxville, TN 37901-0629
Telephone: 865-525-5134
E-mail: tomhale@kramer-rayson.com
- and -
Kevin Hardy, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
Telephone: 202-434-5000
Fax: 202-434-5029
E-mail: khardy@wc.com
- and -
William A. Isaacson, Esq.
Boies, Schiller & Flexner, LLP
5301 Wisconsin Avenue NW, Suite 800
Washington, DC 20015
Telephone: 202-237-2727
Fax: 202-237-6131
E-mail: wisaacson@bsfllp.com
- and -
Thomas C. Jessee, Esq.
Jessee & Jessee
P.O. Box 997
Johnson City, TN 37605
Telephone: 423-928-7175
423-928-9650
E-mail: jjlaw@jesseeandjessee.com
- and -
Steven E. Kramer
Kramer Rayson, LLP
P.O. Box 629
Knoxville, TN 37901-0629
Telephone: 865-525-5134
Fax: 865-522-5723
E-mail: skramer@kramer-rayson.com
- and -
Steven R. Kuney, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
Telephone: 202-434-5843
Fax: 202-434-5842
E-mail: skuney@wc.com
- and -
Simon A. Latcovich, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
E-mail: slatcovich@wc.com
- and -
Monica B. Lateef, Esq.
Howrey LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20016
Telephone: 202-783-0800
Fax: 202-383-6610
E-mail: lateefm@howrey.com
- and -
Joanne Lichtman, Esq.
Howrey LLP
550 South Hope Street, Suite 1100
Los Angeles, CA 90071
Telephone: 213-892-1800
Fax: 213-892-2300
E-mail: lichtmanj@howrey.com
- and -
Gary E. Mason, Esq.
Mason LLP
1625 Massachusetts Avenue, NW, Suite 605
Washington, DC 20036
Telephone: 202-429-2290
Fax: 202-429-2294
E-mail: gmason@masonlawdc.com
- and -
J. David McDowell, Esq.
Harwell, Howard, Hyne, Gabbert & Manner, PC
315 Deaderick Street
Suite 1800 AmSouth Center
Nashville, TN 37238
Telephone: (615) 251-1075
E-mail: jdm@h3gm.com
- and -
Melinda Meador, Esq.
Winchester, Sellers, Foster & Steele, PC
P.O. Box 2428
Knoxville, TN 37901-0001
Telephone: 865-637-1980
Fax: 865-637-4489
E-mail: mmeador@wsfs-law.com
- and -
Carl R Metz, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
E-mail: cmetz@wc.com
- and -
Jennifer Milici, Esq.
Boies, Schiller & Flexner, LLP
5301 Wisconsin Avenue NW, Suite 800
Washington, DC 20015
Telephone: 202-237-2727
E-mail: jmilici@bsfllp.com
- and -
W. Todd Miller, Esq.
Baker & Miller PLLC
2401 Pennsylvania Ave, NW, Suite 300
Washington, DC 20037
Telephone: 202-663-7820
Fax: 202-663-7849
E-mail: tmiller@bakerandmiller.com
- and -
Robert P. Murrian, Esq.
Reeves, Herbert & Murrian P.A.
Tyson Place, Suite 130
2607 Kingston Pike
Knoxville, TN 37919
Telephone: 865-540-1977
Fax: 865-540-1988
E-mail: rmurrian@arclaw.net
- and -
Richard W. Pectol, Esq.
Richard W. Pectol & Associates, PC
202 East Unaka Avenue
Johnson City, TN 37601-4664
Telephone: 423-928-6106
E-mail: rwpectol@earthlink.net
- and -
Kit A. Pierson, Esq.
Cohen, Milstein, Hausfeld & Toll
1100 New York Avenue NW, Suite 500 West Tower
Washington, DC 20005-3934
Telephone: 202-408-4600
Fax: 202-408-4699
E-mail: kpierson@cohenmilstein.com
- and -
Thomas K. Potter, III, Esq.
Burr & Forman LLP
700 Two American Center
3102 West End Ave.
Nashville, TN 37203
Telephone: (615) 724-3231
E-mail: tpotter@burr.com
- and -
Kari M. Rollins, Esq.
Winston & Strawn, LLP
35 West Wacker Drive
Chicago, IL 60601-9703
Telephone: 312-558-5600
Fax: 312-558-5700
E-mail: karollins@winston.com
- and -
Richard T. Rossier, Esq.
McLeod, Watkinson & Miller
One Massachusetts Avenue, NW, Suite 800
Washington, DC 20001
Telephone: 202-842-2345
Fax: 202-408-7763
E-mail: rrossier@mwmlaw.com
- and -
John E. Schmidtlein, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
Telephone: 202-434-5901
Fax: 202-434-5029
E-mail: jschmidtlein@wc.com
- and -
David J. Stanoch, Esq.
Dechert LLP
2929 Arch Street
Philadelphia, PA 19104-2808
Telephone: 215-994-2812
Fax: 215-655-2812
E-mail: david.stanoch@dechert.com
- and -
Stephanie A. Stroup, Esq.
Howrey LLP
550 South Hope Street, Suite 1100
Los Angeles, CA 90071
Telephone: 213-892-1800
Fax: 213-892-2300
E-mail: stroups@howrey.com
- and -
Kelly B. Tidwell, Esq.
Patton, Tidwell & Schroeder, LLP
4605 Texas Boulevard
Texarkana, TX 75503
Telephone: 903-792-5859
Fax: 903-792-8233
E-mail: kbt@texarkanalaw.com
- and -
Andrew T. Wampler, Esq.
Wilson Worley Moore Gamble & Stout, PC
P.O. Box 88
Kingsport, TN 37662
Telephone: 423-723-0400
Fax: 423-723-0429
E-mail: awampler@wwmgs.com
- and -
Shelley J. Webb, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street NW
Washington, DC 20005
E-mail: swebb@wc.com
- and -
Robert J. Wozniak, Esq.
Freed Kanner London & Miller, LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Telephone: 224-632-4500
Fax: 224-632-4521
E-mail: rwozniak@fklmlaw.com
- and -
Richard L. Wyatt, Jr., Esq.
Hunton & Williams
1900 K Street, NW
Washington, DC 20006
Telephone: 202-419-2162
Fax: 202-778-7438
E-mail: rwyatt@hunton.com
- and -
W. Michael Cody, Esq.
Burch, Porter & Johnson
130 North Court Avenue
Memphis, TN 38103
Telephone: 901-524-5124
Fax: 901-524-5024
E-mail: mcody@bpjlaw.com
OCCAM NETWORKS: Inks $12.66 Mil. Settlement of Stockholder Suit
---------------------------------------------------------------
Occam Networks(R), Inc. (NASDAQ:OCNW) has agreed to settle and
resolve a stockholder class action lawsuit initially filed on
April 26, 2007, against Occam, certain of its current and former
officers and directors, Occam's current and former outside
auditors, and the lead underwriter of Occam's November 2006
secondary public offering.
The litigation -- Batwin, et al. v. Occam Networks, Inc., et al.,
Case No. 07-CV-02750 (C.D. Calif.) (Snyder, J.) -- relates to a
restatement of Occam's historical financial statements that was
announced and completed during 2007.
The settling parties have entered into a memorandum of
understanding and will sign and submit a formal, binding
stipulation of settlement to the court in the coming weeks. The
settlement will resolve this matter as to all defendants other
than Occam's current outside auditor who is not part of this
settlement.
The settlement provides for a payment to the class of $12.66
million, of which Occam has agreed to contribute $1.7 million and
the balance of which will come from Occam's insurers and another
settling defendant. Occam expects to incur a $1.7 million charge
in the quarter ended September 30, 2009 associated with the
settlement.
The class action settlement is subject to preliminary and,
following notice to class members, final approval by the United
States District Court for the Central District of California.
Final approval of this settlement would mark the end of
stockholder litigation involving Occam related to the financial
restatement announced in October 2007.
The plaintiffs lawyers are:
Lori S. Brody, Esq.
Kaplan Fox and Kilsheimer
1801 Century Park East, Suite 1460
Los Angeles, CA 90067
Phone: 310-785-0800
E-mail: lbrody@kaplanfox.com
- and -
Matthew Isaac Alpert, Esq.
Coughlin Stoia Geller Rudman and Robbins LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 619-231-1058
E-mail: malpert@csgrr.com
The defendants lawyers are:
Jerome F. Birn, Jr., Esq.
Wilson Sonsini Goodrich and Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Phone: 650-493-9300
E-mail: jbirn@wsgr.com
- and -
Philip T. Besirof, Esq.
Morrison and Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
Phone: 415-268-6091
E-mail: pbesirof@mofo.com
Occam Networks, Inc. -- http://www.occamnetworks.com/ -- is a
leading broadband access supplier offering multiservice access
platform solutions based on pure packet technologies. Occam
Networks' broadband access solutions empower service providers to
offer new voice, data, and video services over copper and fiber.
Occam systems deliver flexibility and scalability in a Triple
Play world. Over 2 million BLC 6000 ports are currently deployed
at over 300 service providers worldwide.
PROFESSIONAL INVESTMENT: Aussie Regulator Settles Class Action
--------------------------------------------------------------
The Business Spectator reports that the Australian Investment and
Securities Commission has agreed to settle a class action it
initiated against Queensland-based financial services firm
Professional Investment Services Pty Ltd, relating to advice
given to clients who invested in the failed Westpoint Group.
The ASIC said settlement of the action, which was lodged in the
Federal Court, would result in PIS paying compensation to clients
and was reached without any admission of liability by the firm.
ASIC had alleged that PIS was negligent and breached the
conditions of its financial services license.
The decision to settle follows a global mediation process
undertaken by ASIC on behalf of Westpoint investors, with the
process having since been adjourned.
"The collapse of the Westpoint Group involved many distinct
Westpoint funds, a large number of financial planners and
advisers, different classes of investors, receivers and
liquidators in a complex network of legal claims and rights,"
ASIC chairman Tony D'Aloisio said in a statement.
"Confidentiality obligations prevent further information being
released at this stage but ASIC expects to make further
announcements in the near future."
ASIC said it had filed an application with the Federal Court in
Brisbane to identify the PIS clients eligible for compensation,
which is due to be heard on September 15.
If approved by the Federal Court, the Spectator relates, the
settlement will be ASIC's second on behalf of Westpoint investors
against an Australian financial services licensee.
Last November, ASIC settled a claim on behalf of investors
against Masu Financial Management Pty Ltd, with the terms of the
settlement remaining confidential.
ASIC commenced action against PIS in December 2007, the Spectator
notes.
SERVICE CORPORATION: Charged with Mishandling Jewish Remains
------------------------------------------------------------
Eagan O'Malley & Avenatti, LLP, a Southern California-based law
firm, has filed a Class Action Lawsuit in the Superior Court of
California, County of Los Angeles, alleging morally despicable,
fraudulent and unlawful business practices at Eden Memorial Park,
one of the largest Jewish cemeteries in the United States. The
Complaint names Eden Memorial Park and Service Corporation
International as defendants.
The Complaint alleges that Eden Memorial Park and its management
engaged in an ongoing practice of secretly desecrating the
remains of the deceased. It is further alleged that the
Defendants plotted and sold interment plots at Eden
Memorial Park without sufficient space to ensure that the burial
vaults did not encroach on an adjacent plot.
In particular, the lawsuit claims that rather than go through the
necessary steps to move an adjacent vault, Defendants'
groundskeepers were repeatedly instructed by management at the
cemetery to secretly break concrete vaults with a backhoe and
remove, dump and/or discard the human remains, including human
skulls, to make room for new interments. According to the
Complaint, the Defendants took considerable steps to conceal
their fraudulent actions by threatening employees and witnesses
with retaliation and the loss of their jobs.
This is not the first time that Defendant SCI, the largest owner
of cemeteries and funeral homes in the United States, has come
under fire for similar conduct. In 2003, the State of Florida
brought criminal charges against the company after groundskeepers
at Menorah Gardens, another SCI owned and operated Jewish
cemetery, testified to the accuracy of similar allegations. SCI
later paid tens of millions of dollars to settle civil lawsuits
brought by Edward M. Ricci, Esq., in connection with the case.
Mr. Ricci, of Palm Beach County, Florida, is co-counsel in the
Class Action filed last week.
"We have every reason to believe that these morally despicable
and fraudulent business practices were committed intentionally
and have been ongoing for many years," said lead attorney Michael
Avenatti, Esq., of Eagan O'Malley & Avenatti, LLP, the law firm
representing the Plaintiffs. "These unconscionable acts have
caused the families to suffer tremendously, and we look forward
to bringing this case before a jury. Whether it takes a month, a
year or five years, we will not rest until this matter is
resolved -- these families deserve peace." Jason M. Frank, Esq.,
a partner at Eagan O'Malley & Avenatti, LLP, added: "As a member
of the Jewish community, I am particularly outraged."
A copy of the 23-page Complaint initiating Sands v. Service
Corporation International, et al., Case No. BC421528 (Calif.
Super. Ct., Los Angeles Cty.), is available at:
http://www.edenclaims.com/COMPLAINT%20-%20CONFORMED.PDF
And additional information about the lawsuit is available at
http://www.edenclaims.com/
The plaintiff is represented by:
Michael J. Avenatti, Esq.
Michael Q. Eagan, Esq.
John C. O'Malley, Esq.
Jason M. Frank, Esq.
Scott H. Sims, Esq.
Eagan O'Malley & Avenatti, LLP
450 Newport Center Drive, Second Floor
Newport Beach, CA 92660
Telephone: (949) 706-7000
E-mail: info@eoalaw.com
- and -
Edward M. Ricci, Esq.
303 Banyan Blvd., Suite 400
West Palm Beac, FL 33401
Telephone: (561) 842-2820
Michael J. Avenatti, Esq. is a founding partner of Eagan O'Malley
& Avenatti, LLP, a firm of trial attorneys that specialize in
litigating a variety of high profile legal disputes in courts
throughout the United States. Messrs. Avenatti and Frank and
their firm are consistently ranked among the best attorneys in
America. Most recently, the firm won a nearly $40 million jury
verdict after a five week jury trial in New Jersey.
SNAPPLE BEVERAGE: 3rd Cir. Revives High Fructose Corn Syrup Suit
----------------------------------------------------------------
Keith Loria at PublicNuisanceWire.com reports that in what could
be a big blow for consumer product companies, the U.S. Court of
Appeals for the Third Circuit has revived a New Jersey statewide
class action suit against Snapple, finding that federal
regulation does not preempt consumer fraud claims involving
Snapple's "All Natural" labeling.
The class action was initiated by New Jersey resident Stacy Holk,
who allegedly bought two bottles of Snapple in May of 2007 at a
"premium price" of $1.09 each. Ms. Holk was apparently surprised
and distressed to discover that her Snapple contained high-
fructose corn syrup, despite having the words "all natural" on
the label. Represented by Wilentz, Goldman & Spitzer and Tunney
& Halbfish, Holk filed a class action in New Jersey state court,
alleging consumer fraud and breach of warranty.
Snapple's lawyers at Baker Botts had the case removed to federal
court, where Trenton Federal District Court Judge Mary Cooper
dismissed it, ruling that Holk's claims were preempted by FDA
regulation of food and beverage labeling.
"Snapple has always followed FDA labeling rules and this is no
different," said Van H. Beckwith, Esq., at Baker Botts, LLP.
"Last July, the FDA specifically spoke to the issue and said that
it would not object to labeling HFCS as natural. This makes
perfect sense, considering it follows 15 years of FDA
pronouncements and the sweetener has the same basic ingredients
as table sugar-glucose and fructose."
However, in its 30-page ruling, the Third Circuit disagreed. The
appellate court found that FDA policy (and legal precedent) left
room for state regulation in food and beverage labeling. It also
concluded that the FDA's informal policy on the use of the phrase
"all natural" did not preempt Holk's claims.
"It's not so much they are saying there's any validity to the
actual claim that this woman made, but they were interpreting the
FDA's label authority in whether or not it permitted a lawsuit in
state court," Hans von Spakovsky, senior legal fellow at the
Heritage Foundation tells Mr. Loria. "Based on their
interpretation of the law, the court is saying the action of the
state court is not preemptive. They are sending it back down to
courts so the case can go forward and, at that point, Snapple
will hopefully prevail by showing they didn't in any way violate
the labeling on the product."
The suit seeks disgorgement of Snapple's profits from its
allegedly false labeling.
"I'm afraid that what it means is that this will encourage the
plaintiff's bar to file lots more frivolous lawsuits against
makers of consumer products," Mr. von Spakovsky told Mr. Loria.
"Let's face it, 99 percent of us don't pay any attention to
what's on a label when we go in and buy something like this. And
for someone to sue is the kind of frivolous lawsuit that causes
the price of consumer goods to go up, because the companies have
to deal with them."
Since the charges, Mr. Loria relates, Snapple has revised its
formula, replacing high fructose corn syrup with sugar, although
the company doesn't believe it has done anything wrong.
"Snapple's labels tell the individual consumer everything he or
she needs to know in making an individual buying decision and
fully discloses all of the beverage's ingredients," Mr. Beckwith
said.
A copy of the Third Circuit's Opinion in Holk v. Snapple Beverage
Corp., No. 08-3060 (3d Cir.), is available at:
http://www.ca3.uscourts.gov/opinarch/083060p.pdf
The proceeding in the lower court is Holk v. Snapple Beverage
Corp., Case No. 07-cv-03018 (D. N.J.) (Cooper, J.).
Ms. Holk is represented by:
Lynne M. Kizis, Esq.
Daniel Lapinski, Esq.
Philip A. Tortoreti, Esq.
Wilentz, Goldman & Spitzer
90 Woodbridge Center Drive, Suite 900, Box 10
Woodbridge, NJ 07095
- and -
Michael D. Halbfish, Esq.
Tunney & Halfbish
245 Main St.
Woodbridge, NJ 07095
Snapple's lawyers are:
Van H. Beckwith, Esq.
Jeffrey A. Lamken, Esq.
Michael G. Pattillo, Jr., Esq.
Martin V. Totaro, Esq.
Baker Botts
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004
TEVA PHARMACEUTICALS: Budeprion XL Ad Claims Come Under Fire
------------------------------------------------------------
Courthouse News Service reports that a class action claims Teva
Pharmaceuticals advertises its antidepressant Budeprion XL as
equivalent to Wellbutrin XL, though it releases the drug more
quickly, does not work as well or for as long a time, and
increases users' risk of harmful side effects, in Columbus, Ohio,
Federal Court.
A copy of the Complaint in Latvala, et al. v. Teva
Pharmaceuticals Industries Ltd., et al., Case No. 09-cv-795 (S.D.
Ohio) (Sargus, J.), is available at:
http://www.courthousenews.com/2009/09/11/Prescrip.pdf
The Plaintiffs are represented by:
Jack Landskroner, Esq.
Paul Grieco, Esq.
Drew Legando, Esq.
LANDSKRONER * GRIECO * MADDEN, LLC
1360 West 9th Street, Suite 200
Cleveland, Ohio 44113
Telephone: 216/522-9000
Fax: 216/522-9007
E-mail: jack@lgmlegal.com
paul@lgmlegal.com
drew@lgmlegal.com
- and -
Allan Kanner, Esq.
Conlee S. Whiteley, Esq.
M. Ryan Casey, Esq.
KANNER & WHITELEY, LLC
701 Camp Street
New Orleans, Louisiana 70130
Telephone: 504/524-5777
Fax: 504/524-5763
E-mail: a.kanner@kanner-law.com
c.whiteley@kanner-law.com
r.casey@kanner-law.com
- and -
Wayne S. Kreger, Esq.
Gillian L. Wade, Esq.
MILSTEIN, ADELMAN & KREGER, LLP
2800 Donald Douglas Loop North
Santa Monica, California 90405
Telephone: 310/396-9600
Fax: 310/396-9634
New Securities Fraud Cases
ANIXTER INTERNATIONAL: Coughlin Stoia Files Suit in N.D. Ill.
-------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP --
http://www.csgrr.com/cases/anixter/-- filed a class action
lawsuit on behalf of an institutional investor in the United
States District Court for the Northern District of Illinois on
behalf of purchasers of the common stock of Anixter International
Inc. (NYSE: AXE) between January 29, 2008, and October 20, 2008,
inclusive, seeking to pursue remedies under the Securities
Exchange Act of 1934.
If you wish to serve as lead plaintiff, you must move the Court
no later than 60 days from today. If you wish to discuss this
action or have any questions concerning this notice or your
rights or interests, please contact plaintiff's counsel, Samuel
H. Rudman, Esq., or David A. Rosenfeld, Esq., of Coughlin Stoia
at 800/449-4900 or 619/231-1058, or via e-mail at djr@csgrr.com.
If you are a member of this Class, you can view a copy of the
complaint as filed or join this class action online at
http://www.csgrr.com/cases/anixter/. Any member of the putative
class may move the Court to serve as lead plaintiff through
counsel of their choice, or may choose to do nothing and remain
an absent class member.
The complaint charges Anixter and certain of its executives with
violations of the Exchange Act. Anixter, together with its
subsidiaries, distributes communications products, specialty wire
and cable products, fasteners, and small parts. The Company is a
global supplier of communications products used to connect voice,
video, data and security systems. It provides electrical and
electronic wire and cable, fasteners, and other small components
to build, repair and maintain a variety of systems and equipment.
The complaint alleges that, throughout the Class Period,
defendants made numerous positive statements regarding the
Company's financial condition, business and prospects. The
complaint further alleges that these statements were materially
false and misleading because defendants failed to disclose the
following adverse facts, among others: (i) that the Company was
in a pricing dispute with one of its Original Equipment
Manufacturer ("OEM") customers, which would cost the Company
approximately $3 million; (ii) that the Company was experiencing
a decrease in sales in the European and Asian markets due to
decreased demand for the Company's products; (iii) that the
Company was experiencing operating margin pressure due to slower
sales in its OEM supply business, which traditionally produce
higher operating margins; and (iv) as a result of the foregoing,
defendants lacked a reasonable basis for their positive
statements about the Company and its prospects.
On October 21, 2008, Anixter announced its financial results for
the third quarter of 2008, the period ending September 26, 2008.
For the quarter, the Company reported sales of $1.59 billion and
net income of $61.7 million, or $1.58 per diluted share. In
response to this announcement, the price of Anixter common stock
fell $18.76 per share, or approximately 40%, over the next five
trading days, to close at $29.06 per share, on October 27, 2008,
on heavy trading volume.
Plaintiff seeks to recover damages on behalf of all purchasers of
Anixter common stock during the Class Period. The plaintiff is
represented by Coughlin Stoia, which has expertise in prosecuting
investor class actions and extensive experience in actions
involving financial fraud.
Coughlin Stoia -- http://www.csgrr.com/-- is a 190-lawyer firm
with offices in San Diego, San Francisco, Los Angeles, New York,
Boca Raton, Washington, D.C., Philadelphia and Atlanta, is active
in major litigations pending in federal and state courts
throughout the United States and has taken a leading role in many
important actions on behalf of defrauded investors, consumers,
and companies, as well as victims of human rights violations.
BEAR STEARNS: Certificateholder Complaints Filed in S.D.N.Y.
------------------------------------------------------------
MortgageOrg.com reports that the law firms of Cohen Milstein
Sellers & Toll PLLC and Coughlin Stoia Geller Rudman & Robbins
LLP have filed two class action lawsuits on behalf of purchasers
of mortgage pass-through certificates issued by Structured Asset
Mortgage Investments II Inc. (SAMI) and/or Bear Stearns Asset-
Backed Securities I LLC (BSABSI).
The suits allege the issuers prepared and distributed false and
misleading registration statements and prospectus supplements
issued between March 2006 and September 2007.
The actions are:
-- New Jersey Carpenters Health Fund v. Bear Stearns Mortgage
Funding Trust 2006-AR1, et al., Case No. 08-cv-8093-LTS
(S.D.N.Y.), filed on August 20, 2008; and
-- Pension Trust Fund for Operating Engineers v. Structured
Asset Mortgage Investments II Inc., et al, Case No.
09-cv-6172-LTS (S.D.N.Y.), filed July 9, 2009.
Cohen Milstein is representing the plaintiffs in the former
action, and Coughlin Stoia is representing plaintiffs in the
latter. The actions are pending in the Southern District of New
York.
The actions allege that the registration statements and
prospectuses contained material misstatements and omissions in
violation of Sections 11, 12 and 15 of the Securities Act of
1933.
The certificates were supported by large pools of mortgage loans
generally secured by first liens on residential properties,
including conventional, adjustable-rate and negative-amortization
mortgage loans.
According to the complaints filed in the actions, the
registration statements included false statements and/or
omissions about the underwriting standards purportedly used in
connection with the origination of the underlying mortgage loans,
the maximum loan-to-value ratios used to qualify borrowers,
property appraisals and the debt-to-income ratios permitted on
the loans.
BUILDERS FIRSTSOURCE: Shareholder Complaint Filed in Del. Ch. Ct.
-----------------------------------------------------------------
Courthouse News Service reports that Builders FirstSource
recapitalization diluted the value of its stock and cost it
nearly half its value, shareholders claim in Delaware Chancery
Court.
A copy of the complaint in Pinto v. Levy, et al., Case No. 4884
(Del. Ch. Ct.), is available at:
http://www.courthousenews.com/2009/09/14/SCABuilders.pdf
The plaintiff is represented by:
Daniel E. Bacine, Esq.
Jeffrey W. Golan, Esq.
Julie B. Palley, Esq.
BARRACK, RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19130
Telephone: (215) 963-0600
- and -
Alexander Arnold Gershon, Esq.
Gloria Kui Melwani, Esq.
BARRACK, RODOS & BACINE
1350 Broadway, Suite 1001
New York, NY 10018
Telephone: (212) 688-0782
- and -
Pamela S. Tikellis, Esq.
Robert J. Kriner, Esq.
A. Zachary Naylor, Esq.
Meghan A. Adams, Esq.
CHIMICLES & TIKELLIS LLP
222 Delaware Ave.
P.O. Box 1035
Wilmington, DE 19899
Telephone (302) 656-2500
STRUCTURED ASSET: Certificateholder Complaints Filed in S.D.N.Y.
----------------------------------------------------------------
MortgageOrg.com reports that the law firms of Cohen Milstein
Sellers & Toll PLLC and Coughlin Stoia Geller Rudman & Robbins
LLP have filed two class action lawsuits on behalf of purchasers
of mortgage pass-through certificates issued by Structured Asset
Mortgage Investments II Inc. (SAMI) and/or Bear Stearns Asset-
Backed Securities I LLC (BSABSI).
The suits allege the issuers prepared and distributed false and
misleading registration statements and prospectus supplements
issued between March 2006 and September 2007.
The actions are:
-- New Jersey Carpenters Health Fund v. Bear Stearns Mortgage
Funding Trust 2006-AR1, et al., Case No. 08-cv-8093-LTS
(S.D.N.Y.), filed on August 20, 2008; and
-- Pension Trust Fund for Operating Engineers v. Structured
Asset Mortgage Investments II Inc., et al, Case No.
09-cv-6172-LTS (S.D.N.Y.), filed July 9, 2009.
Cohen Milstein is representing the plaintiffs in the former
action, and Coughlin Stoia is representing plaintiffs in the
latter. The actions are pending in the Southern District of New
York.
The actions allege that the registration statements and
prospectuses contained material misstatements and omissions in
violation of Sections 11, 12 and 15 of the Securities Act of
1933.
The certificates were supported by large pools of mortgage loans
generally secured by first liens on residential properties,
including conventional, adjustable-rate and negative-amortization
mortgage loans.
According to the complaints filed in the actions, the
registration statements included false statements and/or
omissions about the underwriting standards purportedly used in
connection with the origination of the underlying mortgage loans,
the maximum loan-to-value ratios used to qualify borrowers,
property appraisals and the debt-to-income ratios permitted on
the loans.
UCBH HOLDINGS: Rosen Law Firm Files Complaint in N.D. Calif.
------------------------------------------------------------
The Rosen Law Firm today announced that it has filed a class action
lawsuit on behalf of all purchasers of UCBH Holdings, Inc. (NASDAQ:
UCBH) common stock during the period April 24, 2008, through and
including September 8, 2009.
To join the UCBH class action, go to the Web site at
http://rosenlegal.com/or call Laurence Rosen, Esq., or Phillip Kim,
Esq., toll-free at 866-767-3653 or email lrosen@rosenlegal.com or
pkim@rosenlegal.com for information on the class action.
The case is pending in the United States District Court for the
Northern District of California as Case No. 09-4208. You can obtain a
copy of the complaint from the clerk of court or you may contact
counsel for plaintiffs Laurence Rosen, Esq., or Phillip Kim, Esq.,
toll-free at 866-767-3653 or email lrosen@rosenlegal.com or
pkim@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS
CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE.
YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER. YOU MAY ALSO RETAIN COUNSEL
OF YOUR CHOICE.
The complaint charges UCBH, its former CEO and Chairman, Thomas Wu, and
its former Chief Credit Officer, Ebrahim Shabudin, with violating
federal securities by issuing materially inaccurate financial
statements to the investing public. The Complaint alleges that UCBH
knowingly falsified its financial statements by concealing the rising
level of loan losses and non-performing loans through a series of
improper accounting tricks and outright deception of regulators and
auditors. On September 8, 2009, UCBH announced that its Chairman and
CEO, Thomas Wu, and its Chief Credit Officer, Ebrahim Shabudin, were
resigning following the results of an investigation of the improper
loan accounting. As a result of the accounting improprieties, UCBH must
restate its financial statements for each quarter and the full fiscal
year of 2008. News of the accounting fraud and the pending restatement
caused UCBH's stock price to fall significantly, damaging investors.
A class action lawsuit has already been filed on behalf of UCBH
shareholders. If you wish to serve as lead plaintiff, you must move the
Court no later than 60 days from today. If you wish to join the
litigation or to discuss your rights or interests regarding this class
action, please contact plaintiffs' counsel, Laurence Rosen, Esq., or
Phillip Kim, Esq., of The Rosen Law Firm toll free at 866-767-3653 or
via e-mail at lrosen@rosenlegal.com or pkim@rosenlegal.com.
The Rosen Law Firm represents investors throughout the world,
concentrating its practice in securities class actions and shareholder
derivative litigation.
Contact: Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm P.A.
350 5th Avenue, Suite 5508
New York, New York 10118
Tel: (212) 686-1060
Weekends Tel: (917) 797-4425
Toll Free: 1-866-767-3653
Fax: (212) 202-3827
http://www.rosenlegal.com/
*********
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
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Copyright 2009. All rights reserved. ISSN 1525-2272.
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