/raid1/www/Hosts/bankrupt/CAR_Public/100216.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 16, 2010, Vol. 12, No. 32
Headlines
1-800-FLOWERS.COM: Final Settlement Hearing Set for March 29
ARROWHEAD INVESTMENTS: Payday Lender Settles Wisconsin Litigation
ARVINMERITOR INC: Still Faces Lawsuits by Auto Filter Purchasers
AWB LTD: Shareholder Suit Settles for $39.5 Mil. Mid-Trial
BEAZER HOMES: Wants ERISA Violations Suit in Georgia Dismissed
BEAZER HOMES: Pursues Dismissal of RESPA Violations Suit in N.C.
BEAZER HOMES: Wants RESPA Violations Suit in Calif. Dismissed
BURGER KING: Wants National Franchisee Suit in Florida Dismissed
CORVEL CORP: Defends Lawsuit by Illinois Health Care Providers
FACEBOOK INC: Plaintiffs Argue Beacon Objections Have No Merit
FREESCALE SEMICON: Plaintiffs' Appeal in Motorola Suit Pending
GT SOLAR: Continues to Defend "Braun" Suit in New Hampshire
GT SOLAR: Continues to Defend IPO-Related "Hamel" Lawsuit
ICO INC: Hearing on Plaintiff's Motion Scheduled on February 19
INTEGRATED DEVICE: Continues to Defend SRAM Antitrust Suit
ISILON SYSTEMS: March 5 Hearing Set for Settlement Approval
JDS UNIPHASE: Hearing to Approve Settlement Set for April 22
KNOX COUNTY: Employees Say County Mishandled Pension Funds
MATRIXX INITIATIVES: Continues to Defend Suits Over Zicam
MATRIXX INITIATIVES: Motion for Lead Plaintiff Remains Pending
MATRIXX INITIATIVES: Files Petition for Review with High Court
MAXIM INTEGRATED: Class Certification Motion Pending in Calif.
NATHAN'S FAMOUS: Motion to Dismiss Consumer Fraud Suit Pending
PARKER-HANNIFIN: Court Okays Settlement in Price-Fixing Suit
PILGRIMS PRIDE: Unable to Resolve ERISA Lawsuit in Mediation
PILGRIMS PRIDE: Response Deadline in "Simmons" Suit Extended
PILGRIMS PRIDE: No Decision Yet on Motion to Dismiss Complaint
PILGRIMS PRIDE: Enters Settlement Pact in "Unpaid Wages" Suit
PILGRIMS PRIDE: Court Okays Settlement in "Benbow" Suit
QUIXOTE CORP: Awaiting Court Approval of Settlement Agreement
RAPTOR PHARMA: Plaintiffs' Appeal on Suit Dismissal Pending
RHODE ISLAND: R.I. Towns Sue State to Recover Automobile Taxes
SARA LEE: N.D. Ill. Dismisses Consolidated Securities Suit
SHORETEL INC: Defends Amended Consolidated Securities Complaint
SONIC SOLUTIONS: Hearing for Settlement Approval Set in April 8
SPONGETECH DELIVERY: Hires Greenberg Traurig for Defense Work
TD AMERITRADE: Case Conference in "Holders" Suit Set for Feb. 25
TD AMERITRADE: Wants New York Court to Dismiss "Ross" Suit
TOYOTA MOTOR: Agrees to Settle Reese-Levering Violations Suit
UGI CORP: Unit Continues to Face 2 Suits by The Swigers in W.Va.
UGI CORP: Units Continue to Face Suits Over Propane Cylinders
UNION PACIFIC: Plaintiffs' Appeal on Court Ruling Still Pending
WILLIAMS CONTROLS: No Trial Date Yet in Cuesta v. Ford Suit
ZILOG INC: Wants Amended "Garcia" Suit in California Dismissed
ZILOG INC: Delaware Court Dismisses "Reppa" Suit
*********
1-800-FLOWERS.COM: Final Settlement Hearing Set for March 29
------------------------------------------------------------
The Hon. Zaven V. Sinanian of the Los Angeles County Superior
Court, has set a hearing on March 29, 2010, to determine whether
the proposed settlement in a putative class suit against 1-800-
FLOWERS.COM, Inc., is fair, reasonable and adequate and should be
finally approved, according to the company's Feb. 5, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Dec. 27, 2009.
On Dec. 21, 2007, Plaintiff Thomas Molnar, on behalf of himself
and a putative class, filed suit against the company claiming
false advertising, unfair business practices, and unjust
enrichment seeking unspecified monetary damages.
The company has admitted no wrongdoing with respect to this
matter, but has chosen to enter into a settlement agreement with
the parties to this matter in order to avoid protracted
litigation.
Judge Sinanian has given preliminary approval to the settlement,
and the company has sent out the applicable notices to the class
members. As a result, the Company has accrued for the estimated
cost of the settlement of approximately $900,000 within its
general and administrative expenses during the three months ended
Dec. 27, 2009.
1-800-FLOWERS.COM, Inc. -- http://www.1800flowers.com/-- is
engaged in providing flowers and plants, gift baskets, gourmet
foods, confections, balloons and plush stuffed animals.
ARROWHEAD INVESTMENTS: Payday Lender Settles Wisconsin Litigation
-----------------------------------------------------------------
The Associated Press reports that an Internet payday loan company
will pay $180,000 and forgive debts owed by customers who took
out loans under a class action settlement with the state of
Wisconsin.
Dane County Circuit Court Judge Maryann Sumi on Friday approved
the settlement with Arrowhead Investments, LLC.
The Consumer Law Litigation Clinic at University of Wisconsin-
Madison filed the class action lawsuit, which was later joined by
the Wisconsin Department of Justice. The complaint alleged
Arrowhead's loan contracts violated certain provisions of the
Wisconsin Consumer Act.
Under the settlement, Arrowhead will pay $180,000 and forgive
loans, costs and fees owed by customers totaling $432,000. The
company has agreed not to give loans to any person residing in
Wisconsin for five years.
ARVINMERITOR INC: Still Faces Lawsuits by Auto Filter Purchasers
----------------------------------------------------------------
ArvinMeritor, Inc., continues to face claims raised in several
purported class-actions filed on behalf of purchasers of filters.
On March 31, 2008, S&E Quick Lube, a filter distributor, filed
suit in U.S. District Court for the District of Connecticut
alleging that 12 filter manufacturers, including a prior
subsidiary of the company, engaged in a conspiracy to fix prices,
rig bids and allocate U.S. customers for aftermarket automotive
filters.
This suit is a purported class-action on behalf of direct
purchasers of filters from the defendants.
Several parallel purported class actions, including on behalf of
indirect purchasers of filters, have been filed by other
plaintiffs in a variety of jurisdictions in the United States and
Canada.
On April 16, 2009, the Attorney General of the State of Florida
filed a complaint with the U.S. District Court for the Northern
District of Illinois based on these same allegations.
No further updates were reported in the company's Feb. 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for quarter ended Jan. 3, 2010.
ArvinMeritor, Inc. -- http://www.arvinmeritor.com/-- is a global
supplier of a range of integrated systems, modules and components
serving commercial truck, light vehicle, trailer and specialty
original equipment manufacturers (OEMs) and certain aftermarkets.
ArvinMeritor serves a range of OEM customers worldwide, including
truck OEMs, light vehicle OEMs, trailer producers and specialty
vehicle manufacturers, and certain aftermarkets. The company
operated 82 manufacturing facilities in 22 countries worldwide as
of Sept. 30, 2008, including facilities operated by joint
ventures, in which it has interests. Sales from continuing
operations outside North America accounted for approximately 59%
of total sales from continuing operations in fiscal 2008.
AWB LTD: Shareholder Suit Settles for $39.5 Mil. Mid-Trial
----------------------------------------------------------
Sundeep Matharu at TopNews.us reports that shareholders of AWB
Ltd. have reached an agreement to settle a class action against
the agribusiness firm looking for compensation for its failure to
take the wraps off Iraqi kickbacks.
As AWB was getting ready to begin its defense in the Federal
Court on Monday, John Sheahan, SC, an attorney acting on part of
the AWB shareholders, informed the court that the parties have
managed to reach an in-principle-agreement to settle the suit.
"The settlement won't break down", Mr. Sheahan told the court.
Following the announcement, the court was adjourned until
sometime later this week.
Ben Slade, AWB shareholders' solicitor informed that the
settlement figure reached at was $39.5 million, which included
interest and cost.
"The company is pleased to put this matter behind it as this is
the final legal matter directed against the company in Australia
arising out of activities under the United Nations Oil For Food
Program", said AWB Chairman Peter Polson.
The Class Action Reporter noted last week that this was the first
shareholder class action proceeding to reach a trial in Australia
because settlements between parties are the usual outcome.
BEAZER HOMES: Wants ERISA Violations Suit in Georgia Dismissed
--------------------------------------------------------------
Beazer Homes USA, Inc., continues to pursue the dismissal of a
consolidated amended complaint alleging violations of the
Employee Retirement Income Security Act.
On April 30, 2007, a putative class action complaint was filed on
behalf of a purported class consisting of present and former
participants and beneficiaries of the Beazer Homes USA, Inc.
401(k) Plan.
The complaint was filed in the U.S. District Court for the
Northern District of Georgia.
The complaint alleges breach of fiduciary duties, including those
set forth in the ERISA, as a result of the investment of
retirement monies held by the 401(k) Plan in common stock of
Beazer Homes at a time when participants were allegedly not
provided timely, accurate and complete information concerning
Beazer Homes.
Four additional lawsuits were filed subsequently making similar
allegations and the court consolidated these five lawsuits.
The consolidated amended complaint names as defendants Beazer
Homes, the company's chief executive officer, certain current and
former directors of the Company, including the members of the
Compensation Committee of the Board of Directors, and certain
employees of the company who acted as members of the company's
401(k) Committee.
On Oct. 10, 2008, the company and the other defendants filed a
motion to dismiss the consolidated amended complaint.
Briefing of the motion was completed in January 2009.
No further updates were reported in the company's Feb. 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Dec. 31, 2009.
Beazer Homes USA, Inc. -- http://www.beazer.com/-- is a
diversified homebuilder. The company designs, sells and builds
single-family and multi-family homes. The Company acts as the
general contractor for the construction of its home communities.
Beazer's project development operations are controlled by its
operating divisions. The company also offers title insurance
services to its homebuyers in several of its markets.
BEAZER HOMES: Pursues Dismissal of RESPA Violations Suit in N.C.
----------------------------------------------------------------
Beazer Homes USA, Inc., and subsidiaries Beazer Homes Corp. and
Beazer Mortgage Corp., continue to pursue the dismissal of an
amended complaint alleging violations of Real Estate Settlement
Practices Act and North Carolina Gen. Stat. Section 75-1.1.,
according to the company's Feb. 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 31, 2009.
The putative class-action suit was filed on April 8, 2008, before
the U.S. District Court for the Middle District of North
Carolina. The complaint alleges that Beazer violated the Real
Estate Settlement Practices Act and North Carolina Gen. Stat.
Section 75-1.1 by:
-- improperly requiring homebuyers to use Beazer-owned
mortgage and settlement services as part of a down
payment assistance program, and
-- illegally increasing the cost of homes and settlement
services sold by Beazer Homes Corp.
The plaintiff also asserts that Beazer was unjustly enriched by
these alleged actions.
The purported class consists of all residents of North Carolina
who purchased a home from Beazer, using mortgage financing
provided by and through Beazer that included seller-funded down
payment assistance, between Jan. 1, 2000, and Oct. 11, 2007.
The complaint demands an unspecified amount of damages, various
forms of equitable relief, treble damages, attorneys' fees and
litigation expenses.
The defendants moved to dismiss the complaint on June 4, 2008.
On July 25, 2008, in lieu of a response to the motion to dismiss,
plaintiff filed an amended complaint which the company moved to
dismiss.
The magistrate judge recommended that the district court grant
the defendants' motion to dismiss the RESPA claim but deny the
motion to dismiss the Section 75-1.1 claim.
While the plaintiffs did not object to the magistrate judge's
recommendation with respect to the RESPA claim, the defendants
filed an objection to the magistrate judge's recommendation with
respect to the Section 75-1.1 claim, which objection is now
before the district court.
The suit is "Davis v. Beazer Homes U.S.A. Inc., et al., Case No.
08-00247," filed in the U.S. District Court for the Middle
District of North Carolina.
Representing the plaintiffs is:
Daniel Kent Bryson, Esq.
Lewis & Roberts, PLLC
POB 17529
Raleigh, NV 27619
Phone: 919-981-0191
Fax: 919-981-0431
E-mail: akf@lewis-roberts.com
Representing the defendants is:
Kenneth D. Bell, Esq.
Hunton & Williams
Bank of America Plaza
101 S. Tryon St., Ste. 3500
Charlotte, NC 28280
Phone: 704-378-4834
E-mail: kbell@hunton.com
BEAZER HOMES: Wants RESPA Violations Suit in Calif. Dismissed
-------------------------------------------------------------
Beazer Homes USA, Inc.'s motion to dismiss a complaint alleging
violations of the Real Estate Settlement Practices Act remains
pending, according to the company's Feb. 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2009.
Beazer Homes and several subsidiaries were named as defendants in
a putative class action lawsuit originally filed on March 12,
2008, in the Superior Court of the State of California, County of
Placer.
The purported class is defined as all persons who purchased a
home from the defendants or their affiliates, with the assistance
of a federally related mortgage loan, from March 25, 1999, to the
present where Security Title Insurance Company received any money
as a reinsurer of the transaction.
The complaint alleges that the defendants violated RESPA and
asserts claims under a number of state statutes alleging that
defendants engaged in a uniform and systematic practice of giving
and/or accepting fees and kickbacks to affiliated businesses
including affiliated and/or recommended title insurance
companies. The complaint also alleges a number of common law
claims.
Plaintiffs seek an unspecified amount of damages under RESPA,
unspecified statutory, compensatory and punitive damages and
injunctive and declaratory relief, as well as attorneys' fees and
costs.
Defendants removed the action to federal court and plaintiffs
filed a Second Amended Complaint which substituted new named-
plaintiffs.
The company filed a motion to dismiss the Second Amended
Complaint, which the federal court granted in part.
The federal court dismissed the sole federal claim, declined to
rule on the state law claims, and remanded the case to the
Superior Court of Placer County.
The company filed a supplemental motion to dismiss/demurrer
regarding the remaining state law claims in the Second Amended
Complaint and the state court sustained defendants' demurrer but
granted the plaintiffs leave to amend their claims.
Plaintiffs thereafter filed a Third Amended Complaint which
defendants removed to federal court based on the presence of a
federal question and pursuant to the Class Action Fairness Act
and thereafter moved to dismiss or, in the alternative, for
summary judgment.
Plaintiffs have filed a motion to remand the case to the Superior
Court of Placer County.
The motion to dismiss is fully briefed.
Beazer Homes USA, Inc. -- http://www.beazer.com/-- is a
diversified homebuilder. The company designs, sells and builds
single-family and multi-family homes. The Company acts as the
general contractor for the construction of its home communities.
Beazer's project development operations are controlled by its
operating divisions. The company also offers title insurance
services to its homebuyers in several of its markets.
BURGER KING: Wants National Franchisee Suit in Florida Dismissed
----------------------------------------------------------------
Burger King Holdings, Inc., filed a motion with the U.S. District
Court for the Southern District of Florida to dismiss a class
action lawsuit captioned National Franchisee Association v.
Burger King Corporation, Case No. 09-CIV-23435.
On Nov. 10, 2009, the National Franchisee Association filed a
class action lawsuit, claiming to represent Burger King
franchisees and seeking a judicial declaration that the franchise
agreements between BKC and its franchisees do not obligate the
franchisees to comply with maximum price points set by BKC for
products on the BK(R) Value Menu sold by the franchisees.
The company filed a motion to dismiss the complaint on Dec. 4,
2009.
The company says that it has the right to mandate maximum price
points on its value menu, according to the company's Feb. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
Burger King Holdings, Inc. -- http://www.bk.com/-- is a fast
food hamburger restaurant. As of June 30, 2009, the company
owned or franchised a total of 11,925 restaurants in 73 countries
and United States territories, of which 1,429 restaurants were
company restaurants and 10,496 were owned by its franchisees. Of
these restaurants, 7,233 or 61% were located in the United States
and 4,692 or 39% were located in its international markets. BKH's
restaurants feature flame-broiled hamburgers, chicken and other
specialty sandwiches, french fries, soft drinks and other food
items. The company generates revenues from three sources: retail
sales at company restaurants; franchise revenues, and property
income from restaurants that BKH leases or subleases to
franchisees. The company operates in three reportable segments:
the United States and Canada; Europe, the Middle East, Africa and
Asia Pacific (EMEA/APAC), and Latin America.
CORVEL CORP: Defends Lawsuit by Illinois Health Care Providers
--------------------------------------------------------------
CorVel Corp. continues to pursue all available legal remedies
including defending the putative class-action lawsuit filed by
Kathleen Roche, D.C.
In February 2005, Kathleen Roche, D.C., as plaintiff, filed a
putative class action in Circuit Court for the 20th Judicial
District, St. Clair County, Illinois, against the company.
The case seeks unspecified damages based on the company's alleged
failure to steer patients to medical providers who are
members of the CorVel CorCare PPO network and also alleges that
the company used biased and arbitrary computer software to review
medical providers' bills.
In December 2007, the court certified a class in this case of all
Illinois health care providers with CorVel PPO agreements,
excluding hospitals.
In January 2008, CorVel filed with the Illinois Appellate Court a
petition for interlocutory appeal of the trial court's class
certification order which was denied in April 2008.
In May 2008, the company appealed the appellate court's denial of
its petition for interlocutory appeal, which appeal was also
denied by the Illinois Supreme Court in September 2008.
No further updates were reported in the company's Feb. 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
CorVel Corporation -- http://www.corvel.com/-- is an independent
nationwide provider of medical cost containment and
managed care services designed to manage the medical costs of
workers' compensation and other healthcare benefits, primarily
for coverage under group health and auto insurance policies. The
company's services are sold as separate services directed
toward managing claims, care, networks, reimbursements and
settlements. They include automated medical fee auditing,
preferred provider networks, out-of-network/line-item bill
negotiation and repricing, utilization review and management,
medical case management, vocational rehabilitation services,
early intervention, Medicare set-asides and life-care planning,
and a variety of directed care services, including independent
medical examinations, diagnostic imaging, transportation and
translation, and durable medical equipment. Such services are
provided to insurance companies, third-party administrators
(TPAs) and self-administered employers.
FACEBOOK INC: Plaintiffs Argue Beacon Objections Have No Merit
--------------------------------------------------------------
Zusha Elinson at The Recorder reports that lawyers pushing a
Facebook privacy settlement are trying to fend off critics by
suggesting in a Motion for Final Approval of Class Action
Settlement and Memorandum of Law filed last week that privacy
organizations are raising objections because they didn't get a
piece of the action.
A copy of the filing in available at:
http://pdfserver.amlaw.com/ca/motion_for_approval.pdf
Facebook settled a class action in September over its
controversial Beacon advertising program that broadcast to
friends what movies its users were renting online, among other
personal details. Facebook agreed to stop the program and give
$9.5 million to a new organization that would study online
privacy.
Six privacy groups, including the Electronic Privacy Information
Center, sent a letter -- see http://is.gd/8oIZm-- to Northern
District of California Judge Richard Seeborg raising concerns
that the new organization won't be independent. They claim that
Internet users would be better served if the money was used to
fund existing nonprofits already fighting the good fight.
An attorney who works at EPIC, Ginger McCall, filed an official
objection Feb. 1 as a member of the class and a Facebook user.
"The settlement provides no damages or other relief for class
members other than Facebook's promise to disband a program that
it voluntarily shut down long ago," McCall's objection says.
"Rather than providing actual relief, the settlement would create
an unneeded foundation over which Facebook retains unwarranted
influence."
Objectors -- of which there are four total -- have also taken
issue with the lawyers' fee requests. Scott Kamber, attorney for
the plaintiffs, and a handful of other law firms that worked on
the case are asking for nearly $3 million.
Kamber tried to squash those concerns in the motion to approve
the settlement, which will be heard by Seeborg on Feb. 26. Kamber
writes that EPIC's president and Georgetown University law
professor Marc Rotenberg called him in September, a week after
the sides filed for preliminary approval.
Rotenberg "pointedly stated that the settlement fund[s] should go
to EPIC," according to Kamber's declaration -- see
http://is.gd/8oJ8S-- and stated that "consumer privacy interests
could only be effectively served only by giving control of the
settlement fund to him, as executive director of EPIC."
Kamber also calls into question McCall's objection because she's
a lawyer at EPIC.
"At the bottom line, Ms. McCall's objection and EPIC's letter
offer no useful information as to the character of the settlement
and most appropriately should be considered in the factual
context of Mr. Kamber's conversation with [Marc] Rotenberg of
EPIC, in which Mr. Rotenberg was quite plain about the interests
he sought to promote," writes Kamber.
Kamber, Rotenberg and Michael Rhodes, a Cooley Godward Kronish
partner representing Facebook, all declined to comment publicly.
The new privacy organization would have three directors: Larry
Magid, an Internet safety advocate; Chris Hoofnagle, a Berkeley
law professor; and Facebook executive Tim Sparapani. Kamber and
Rhodes would be on the legal advisory board.
In the privacy groups' letter to the court, EPIC claims the new
organization will likely become a "public relations organization
for Facebook" and not protect Internet users.
Another privacy organization, the Center for Democracy and
Technology, filed a letter with the court this week supporting
the settlement.
FREESCALE SEMICON: Plaintiffs' Appeal in Motorola Suit Pending
--------------------------------------------------------------
The appeal of the plaintiffs in the purported class-action suit,
"Howell v. Motorola, Inc., et al.," remains pending, according to
Freescale Semiconductor, Inc.'s Feb. 5, 2010, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended Dec. 31, 2009.
A purported class action, Howell v. Motorola, Inc., et al., was
filed against Motorola and certain of its directors, officers and
employees in the United States District Court for the Northern
District of Illinois on July 21, 2003, alleging breach of
fiduciary duty and violations of the Employment Retirement Income
Security Act.
The complaint alleged that the defendants had improperly
permitted participants in the Motorola 401(k) Plan to purchase or
hold shares of common stock of Motorola because the price of
Motorola's stock was artificially inflated by a failure to
disclose vendor financing to Telsim in connection with the sale
of telecommunications equipment by Motorola.
The plaintiff sought to represent a class of participants in the
Plan for whose individual accounts the Plan purchased or held
shares of common stock of Motorola from "May 16, 2000 to the
present," and sought an unspecified amount of damages.
On Sept. 30, 2005, the Illinois District Court dismissed the
second amended complaint filed on Oct. 15, 2004.
Plaintiff filed an appeal to the dismissal on Oct. 27, 2005.
On March 19, 2007, the appeals court dismissed the appeal.
Three new purported lead plaintiffs intervened in the case, and
filed a motion for class certification seeking to represent Plan
participants for whose individual accounts the Plan purchased
and/or held shares of Motorola common stock from May 16, 2000
through Dec. 31, 2002.
On Sept. 28, 2007, the Illinois District Court granted the motion
for class certification but narrowed the requested scope of the
class.
Motorola has sought leave to appeal in the appellate court and
reconsideration in the Illinois District Court of certain aspects
of the class certification order.
On Oct. 25, 2007, the Illinois District Court modified the scope
of the class, granted summary judgment dismissing two of the
individually-named defendants in light of the narrowed class, and
ruled that the judgment as to the original named plaintiff,
Howell, would be immediately appealable.
The class as certified includes all Plan participants for whose
individual accounts the Plan purchased and/or held shares of
Motorola common stock from May 16, 2000 through May 14, 2001 with
certain exclusions.
On Feb. 15, 2008, Motorola and its codefendants filed motions for
summary judgment on all claims asserted by the class.
On Oct. 23, 2008, the United States Court of Appeals for the
Seventh Circuit heard Motorola's interlocutory appeal of the
District Court's order certifying the class.
On June 17, 2009, the district court granted defendants' motions
for summary judgment on all claims. This ruling rendered moot the
interlocutory appeals current before the Seventh Circuit.
The plaintiffs appealed the June 17, 2009 ruling of the district
court and that appeal has been consolidated with the class
certification appeal.
Both Plaintiffs (Appellants) and Defendants (Appellees) have
filed their principal briefs regarding the summary judgment
appeal, and briefing is complete in the class certification
appeal.
As a result of the terms of its separation from Motorola, it is
possible that Freescale could be held responsible to Motorola for
a portion of any judgment or settlement in this matter.
Freescale Semiconductor, Inc. -- http://www.freescale.com/--
designs, develops, manufactures and markets a range of
semiconductor products that are based on its core capabilities in
embedded processing. The Company's product portfolio are
Microcontroller Solutions; Networking and Multimedia; Cellular
Products, and Radio Frequency, Analog and Sensors.
GT SOLAR: Continues to Defend "Braun" Suit in New Hampshire
-----------------------------------------------------------
GT Solar International, Inc., continues to defend an amended
consolidated complaint in Braun et al v. GT Solar International,
Inc., et al., Case No. 08-cv-00312 (New Hampshire) (Laplante,
J.), according to the company's Feb. 5, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Dec. 26, 2009.
Beginning on Aug. 1, 2008, seven putative securities class-action
lawsuits were commenced in the U.S. District Court for the
District of New Hampshire, against the company, certain of its
officers and directors, certain underwriters of the company's
July 24, 2008 initial public offering and others, including
certain investors in the company.
On Oct. 3, 2008, the Court entered an order consolidating the
federal class actions into a single action captioned Braun et al.
v. GT Solar International, Inc., et al.
The Court selected the lead plaintiff and lead plaintiff's
counsel in the consolidated matter on Oct. 29, 2008.
The lead plaintiff filed an amended consolidated complaint on
Dec. 22, 2008.
The lead plaintiff asserts claims under various sections of the
Securities Act.
The amended consolidated complaint alleges, among other things,
that the defendants made false and materially misleading
statements and failed to disclose material information in certain
SEC filings, including the registration statement and
Prospectus for the company's July 24, 2008 initial public
offering, and other public statements, regarding the company's
business relationship with LDK Solar, Ltd., one of the company's
customers, JYT Corporation, one of the company's competitors, and
certain of the company's products, including its DSS furnaces.
Among other relief, the amended consolidated complaint seeks
class certification, unspecified compensatory damages,
rescission, interest, attorneys' fees, costs and such other
relief as the Court should deem just and proper.
The defendants moved to dismiss the amended consolidated
complaint on Feb. 5, 2009.
On Sept. 22, 2009, the Court denied the defendants' motion.
Following the Court's denial of the motion, the parties submitted
a proposed joint case management order, which the Court approved
on Nov. 16, 2009.
The parties have exchanged initial discovery requests.
The case management order provides for discovery to close on May
25, 2011.
Representing the plaintiffs are:
Christopher Cole, Esq.
Sheehan Phinney Bass & Green
1000 Elm St.
P.O. Box 3701
Manchester, NH 03105-3701
Phone: 603-668-0300
E-mail: ccole@sheehan.com
- and -
Michelle H. Blauner, Esq.
Shapiro Haber & Urmy
53 State St, 13th Flr.
Boston, MA 02109
Phone: 617-439-3939
E-mail: mblauner@shulaw.com
Representing the defendants are:
W. Daniel Deane, Esq.
Nixon Peabody LLP
900 Elm St, 14th Flr
Manchester, NH 03101-2031
Phone: 603-628-4047
E-mail: ddeane@nixonpeabody.com
- and -
William H. Paine, Esq.
Wilmer Cutler Pickering Hale & Dorr LLP
60 State St.
Boston, MA 02109
Phone: 617-526-6000
E-mail: william.paine@wilmerhale.com
GT SOLAR: Continues to Defend IPO-Related "Hamel" Lawsuit
---------------------------------------------------------
GT Solar International, Inc., continues to defend a putative
securities class-action suit captioned, Hamel v. GT Solar
International, Inc., et al., according to the company's Feb. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 26, 2009.
On Sept. 18, 2008, a putative securities class-action suit was
filed in New Hampshire State Court, under the caption, "Hamel v.
GT Solar International, Inc., et al.," against the company,
certain of its officers and directors and certain underwriters of
the company's July 24, 2008 initial public offering.
The company removed the state class action to the U.S. District
Court for the District of New Hampshire on Oct. 22, 2008.
The state class-action suit was consolidated with the federal
class actions on Nov. 25, 2008.
On Feb. 2, 2009, the federal Court granted the plaintiff's motion
to remand the state class action to New Hampshire State
Court.
The state class action plaintiff asserts claims under various
sections of the Securities Act.
The state class-action complaint alleges, among other things,
that the defendants made false and materially misleading
statements and failed to disclose material information in certain
SEC filings, including the registration statement for the
company's July 24, 2008 initial public offering, and other public
statements, regarding the company's business relationship with
LDK Solar, Ltd., one of the company's customers, JYT Corporation,
one of the company's competitors, and certain of the company's
products, including its DSS furnaces.
Among other relief, the state class action complaint seeks class
certification, unspecified compensatory damages, rescission,
interest, attorneys' fees, costs and such other relief as the
State Court should deem just and proper.
On May 4, 2009, the parties agreed to a stay of the state class
action, pending resolution of the motion to dismiss in the
consolidated federal case.
At a case structuring conference on June 3, 2009, the state court
endorsed the proposed joint case management order filed by the
parties which requires coordination of any discovery to be taken
in the state class action with that taken in the federal class
action.
With the denial of the motion to dismiss the federal action, the
parties submitted a proposed joint case management order to the
State Court on Nov. 6, 2009.
On Jan. 12, 2010, the State Court granted a joint motion of the
parties to transfer the state class action to the State Court's
Business and Commercial Dispute Docket.
The state class action plaintiff asserts claims under various
sections of the Securities Act of 1933, as amended. The state
class action complaint alleges, among other things, that the
defendants made false and materially misleading statements and
failed to disclose material information in certain SEC filings,
including the registration statement for the company's July 24,
2008 initial public offering, and other public statements,
regarding our business relationship with LDK Solar, Ltd., one of
our customers, JYT Corporation, one of our competitors, and
certain of our products, including our DSS furnaces.
Among other relief, the state class action complaint seeks class
certification, unspecified compensatory damages, rescission,
interest, attorneys' fees, costs and such other relief as the
State Court should deem just and proper.
GT Solar International, Inc. -- http://www.gtsolar.com/-- is
provider of manufacturing equipment and turnkey manufacturing
solutions to the photovoltaic (PV) industry. The company's
products and solutions are used for production of solar grade
polysilicon, manufacturing of multicrystalline silicon wafers,
production of solar cells and assembly of complete modules. GT
Solar International, Inc. provides facility and process design
and integration know-how with its equipment. The company offers
its products and services to PV product manufacturers on a
worldwide basis, and a substantial percentage of its sales are to
customers outside the United States. Effective Jan. 1, 2006, GT
Solar Holdings, LLC acquired the company.
ICO INC: Hearing on Plaintiff's Motion Scheduled on February 19
---------------------------------------------------------------
The oral hearing for the plaintiff's motion for expedited
proceedings and discovery is scheduled for Feb. 19, 2010,
according to the company's Feb. 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission got the quarter ended
Dec. 31, 2009.
Following the announcement of the proposed sale of the company to
A. Schulman, the lawsuit captioned Fred Wilebski v. Gregory T.
Barmore, et al., Cause No. 2009-77782, was filed in the 152nd
Judicial District Court of Harris County, Texas.
On Dec. 7, 2009, plaintiff filed this suit against the company,
all of its directors and A. Schulman as a class action on behalf
of all the company's shareholders except those affiliated with
any of the defendants.
On Jan. 12, 2010, plaintiff filed an amended petition, which
purports to bring claims derivatively on behalf of the company.
Plaintiff alleges that the director defendants breached their
fiduciary duties, including duties of loyalty, due care,
independence, good faith and fair dealing, and wasted the
company's assets.
Plaintiff claims that the:
-- consideration to be paid to the company's shareholders
under the merger agreement is unfair and inadequate;
-- termination fee and deal protection provisions of the
merger agreement are unfair, unreasonable, and/or
improper; and
-- directors failed to ensure a fair and proper process to
maximize value for all the company's shareholders and
wasted corporate assets.
Plaintiff further maintains that the Form S-4 Registration
Statement filed by A. Schulman with the SEC in connection with
the Merger fails to provide the company's shareholders with
material information and/or provides them with materially
misleading information.
Plaintiff brings additional claims for aiding and abetting
against the defendants and A. Schulman. Plaintiff generally
seeks:
-- to enjoin the defendants from effectuating the Merger
or, in the event that the transaction is consummated, to
rescind it or award rescissory damages;
-- monetary damages on behalf of the Company against the
defendants for all losses and/or damages suffered by the
company; and
-- attorney's fees and expert fees.
On Jan. 14, 2010, counsel for Mr. Wilebski filed a motion seeking
expedited proceedings and discovery. The referenced motion is
currently scheduled for oral hearing on Feb. 19, 2010.
On Jan. 19, 2010, the defendants answered the lawsuit.
On Jan. 20, 2010, a Special Litigation Committee, was formed,
composed of three disinterested, independent directors, to
investigate, analyze and evaluate the allegations and claims
asserted in Wilebski's lawsuit and the stockholder demand letters
referenced below, and with respect to any related, amended or
other demand letters or lawsuits containing similar or related
claims that may be filed or made in the future.
The members of the Special Litigation Committee are Eric O.
English, David E. K. Frischkorn, Jr., and Daniel R. Gaubert, with
Mr. English serving as Chairman. The Special Litigation
Committee will determine, after reasonable inquiry, whether it is
in the best interests of the company for any such claims to be
pursued.
On Jan. 25, 2010, the Company filed a statement pursuant to
section 21.555(b) of the Texas Business Organizations Code
advising the Court, plaintiff, and all interested parties that it
had established a Special Litigation Committee and commenced an
inquiry into the allegations asserted in Mr. Wilebski's amended
petition to determine what actions, if any, the Company should
take.
On the same day, the company filed a motion to stay proceedings
in this action pursuant to the mandatory and automatic stay
provision under section 21.555 of the TBOC.
ICO, Inc. -- http://www.icopolymers.com/-- manufactures
specialty resins and concentrates and provides specialized
polymer processing services. The specialty resins manufactured
by the company are produced into a powder form. Concentrates
produced by the Company are mixed by customers with base polymer
film resins to give plastic films desired characteristics. The
company also provides toll processing services, including ambient
grinding, jet milling, compounding and ancillary services for
resins produced in pellet form, as well as other material. These
products and services are provided through its 20 operating
facilities located in nine countries in the Americas, Europe and
Asia Pacific. The company's customers include chemical
companies, polymer production affiliates of oil exploration and
production companies, and manufacturers of plastic products. It
operates in five business segments: ICO Polymers North America,
ICO Brazil, Bayshore Industrial, ICO Europe and ICO Asia Pacific.
INTEGRATED DEVICE: Continues to Defend SRAM Antitrust Suit
----------------------------------------------------------
Integrated Device Technology, Inc., continues to defend a
consolidated case captioned In re Static Random Access Memory
(SRAM) Antitrust Litigation, according to the company's Feb. 4,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 27, 2009.
On Oct. 24, 2006, the company was served with a civil antitrust
complaint filed by Reclaim Center, Inc., as plaintiffs in the
U.S. District Court for the Northern District of California
against the company and 37 other entities on behalf of a
purported class of indirect purchasers of Static Random Access
Memory (SRAM) products.
The Complaint alleges that the company and other defendants
conspired to raise the prices of SRAM, in violation of Section 1
of the Sherman Act, the California Cartwright Act, and several
other states' antitrust, unfair competition, and consumer
protection statutes.
Shortly thereafter, a number of other plaintiffs filed similar
complaints. Given the similarity of the complaints, the
Judicial Panel on Multidistrict Litigation transferred the cases
to a single judge in the Northern District of California and
consolidated the cases for pretrial proceedings in February 2007.
The consolidated cases are captioned In re Static
Random Access Memory (SRAM) Antitrust Litigation.
In August 2007, direct purchasers of SRAM and indirect purchasers
of SRAM filed separate Consolidated Amended Complaints. The
company was not named as a defendant in either complaint.
Pursuant to tolling agreements with the indirect and direct
purchaser plaintiffs, the statute of limitations was tolled
until Jan. 10, 2009 as to potential claims against the company.
The tolling agreements have now expired and the statute of
limitations is running on potential claims against the company.
Discovery has closed in both cases.
Integrated Device Technology, Inc. -- http://www.idt.com/--
designs, develops, manufactures and markets a range of
semiconductor solutions for the advanced communications and
computing industries. The company operates in three business
segments: Networking, Timing and Memory Interface, and Standard
Products and Other. The Networking segment includes network
search engines (NSEs), switching solutions, integrated
communications processors, flow-control management (FCM)
devices, first-in/first out (FIFOs), and multi-ports. The Timing
and Memory Interface segment includes clock management,
dual in-line memory modules (DIMM) support and other timing
solution products. The Standard Products and Other segment
include high-speed static random access memory (SRAM), military
applications, digital logic products, telecommunications and
video products. On July 31, 2006, the company acquired the PC
Audio business from SigmaTel, Inc.
ISILON SYSTEMS: March 5 Hearing Set for Settlement Approval
-----------------------------------------------------------
A March 5, 2010, hearing has been set by the U.S. District Court
for the Western District of Washington to consider final approval
of a settlement agreement in a putative class action complaint
against Isilon Systems, Inc., according to the company's Feb. 5,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended Dec. 31, 2009.
On Nov. 1, 2007, a putative class action complaint was filed in
the U.S. District Court for the Western District of Washington
against Isilon and certain of its current and former directors
and officers.
The complaint asserts claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder, as well as under Sections 11, 12 and 15
of the Securities Act of 1933. Substantially similar complaints
were filed later in the same court and all of these cases were
subsequently consolidated.
On April 18, 2008, lead plaintiffs filed a consolidated amended
complaint against Isilon, certain of its current and former
directors and officers, underwriters, and venture capital firms.
The consolidated complaint purports to be brought on behalf of a
class of persons who purchased or otherwise acquired the
company's stock during the period Dec. 16, 2006 to Oct. 3, 2007.
Plaintiffs allege that defendants violated the federal securities
laws by issuing a false and misleading registration statement and
prospectus in connection with the company's Dec. 16, 2006 initial
public offering and by thereafter misrepresenting our current and
prospective business and financial results, thereby causing the
company's stock price to be artificially inflated during the
purported class period. Plaintiffs seek unspecified compensatory
damages, interest, attorneys' fees and costs, and injunctive
relief.
On Sept. 30, 2008, Isilon and the other defendants moved to
dismiss the consolidated amended complaint.
On Dec. 29, 2008, the court granted in part and denied in part
the motions. All claims against defendants Sequoia Capital (and
related entities), Atlas Venture (and related entities) and
Madrona Venture Group LLC were dismissed.
The Section 12 claims were dismissed as against defendants
Isilon, its former CEO Steven Goldman, and its former CFO Stuart
Fuhlendorf, as were the Section 10(b) claims against Isilon
directors William Ruckelshaus and Matthew McIlwain.
The Court denied the remainder of the defendants' motions. All
remaining defendants answered the complaint on Jan. 30, 2009.
On Oct. 24, 2009, the company filed a stipulation of settlement
providing for the settlement and dismissal of the class action.
On Nov. 2, 2009, the Court granted preliminary approval of the
settlement. The settlement provides for a payment to the
plaintiff class of $15.0 million, of which Isilon contributed
$2.0 million and the balance was contributed by the company's
insurers in December 2009.
The amounts were paid into an escrow fund pending final court
approval.
The class action settlement is subject to final approval by the
Court at a hearing scheduled for March 5, 2010.
Isilon Systems, Inc. -- http://www.isilon.com/-- is the proven
leader in scale-out NAS. The company's clustered storage and
data management solutions drive unique business and economic
value for customers by maximizing the performance of their
mission-critical applications, workflows and processes. Isilon
enables enterprises and research organizations world-wide to
manage large and rapidly growing amounts of file-based data in a
highly-scalable, easy-to-manage, and cost-effective way.
JDS UNIPHASE: Hearing to Approve Settlement Set for April 22
------------------------------------------------------------
The U.S. District Court for the Northern District of California
has set a fairness hearing on April 22, 2010, to consider final
approval of the settlement agreement in the consolidated action
entitled In re JDS Uniphase Corporation ERISA Litigation, Case
No. C-03-4743, according to the company's Feb. 5, 2010,
Form 10-Q Filing with the U.S. Securities and Exchange Commission
for the quarter ended Jan. 2, 2010.
On Oct. 31, 2005, Plaintiffs filed an amended complaint. The
amended complaint alleges that Defendants violated the Employee
Retirement Income Security Act by breaching their fiduciary
duties to the Plans and the Plans' participants. The amended
complaint alleges a purported class period from Feb. 4, 2000, to
the present and seeks an unspecified amount of damages,
restitution, a constructive trust, and other equitable remedies.
Certain individual Defendants' motion to dismiss portions of the
amended complaint was granted with prejudice on June 15, 2006.
Plaintiffs filed a second amended complaint on June 30, 2006.
Defendants answered the complaint on July 6, 2006, and JDSU
asserted counterclaims for breach of contract. The Court
dismissed those counterclaims on Sept. 11, 2006.
On Dec. 15, 2006, defendants moved for summary judgment on the
ground that the named plaintiffs lacked standing. On the same
day, plaintiffs moved for class certification.
On April 24, 2007, the Court denied defendants' motion for
summary judgment as to plaintiff Douglas Pettit, deferred ruling
on the motion for summary judgment as to plaintiff Eric Carey,
and deferred ruling on plaintiffs' motion for class
certification.
Both sides have taken discovery.
Following the verdict for defendants in In re JDS Uniphase
Corporation Securities Litigation, the court in the ERISA
action vacated all existing deadlines, set a schedule for
briefing a summary judgment motion based on collateral estoppel
issues, and stayed discovery pending resolution of that motion.
By Order dated April 17, 2008, the Court modified the briefing
schedule for JDSU's summary judgment motion and ordered the
parties to engage in mediation. Defendants moved for summary
judgment on collateral estoppel issues on May 2, 2008. The
parties participated in mediation on Oct. 10, 2008, and reached
an agreement in principle to resolve all claims.
On March 3, 2009, the parties signed a Memorandum of
Understanding reflecting the terms of their agreement.
On Sept. 15, 2009, the parties executed a settlement agreement
resolving all claims, subject to the Court's approval.
In light of the settlement agreement, the Court denied JDSU's
summary judgment motion without prejudice.
On Oct. 15, 2009, plaintiffs moved for preliminary approval of
the proposed settlement.
On Nov. 17, 2009, the Court granted that motion, preliminarily
certified a settlement class, ordered plaintiffs to publish and
mail notice of the proposed settlement to class members by Feb.
21, 2010, ordered plaintiffs to move for final approval of the
proposed settlement by April 15, 2010, and scheduled a fairness
hearing on the proposed settlement for April 22, 2010.
JDS Uniphase Corp. -- http://www.jdsu.com/-- is a provider of
communications test and measurement solutions and optical
products for telecommunications service providers, cable
operators, and network equipment manufacturers. In addition,
the Company's optical coatings are used in visual display and
decorative product differentiation applications. It has four
segments: Optical Communications, Communications Test and
Measurement, Advanced Optical Technologies, and Commercial
Lasers.
KNOX COUNTY: Employees Say County Mishandled Pension Funds
----------------------------------------------------------
Scott Barker at the Knoxville News Sentinel reports that a
lawsuit alleging Knox County improperly made money by holding on
to employees' pension contributions for weeks at a time could
become a class action suit with thousands of potential
plaintiffs.
Lawyers for the plaintiffs in Cook v. Knox County Tennessee and
Knox County Retirement & Pension Board, Civ. Action No. 173942-1
(Tenn. Ch. Ct., Knox Cty.), asked Knox County Chancellor Daryl
Fansler at a hearing last week to allow all current and former
county employees to join in the lawsuit if they participated in
any of the retirement plans.
The lawsuit was filed in December 2008 by Barbara Cook, who works
in the county's Purchasing Department. Two former employees,
Charles McKinnon and James Gray, have since joined her and they
want the class expanded to include former employees and retirees.
Attorneys for the county and the Knox County Pension Board oppose
class action status for Cook's complaint, arguing that the county
did nothing wrong and that the potential class of plaintiffs is
now overly broad.
The total amount each plaintiff could claim would be relatively
small, both sides agree, but with thousands of potential
claimants the overall cost could soar.
Ms. Cook and Messrs. McKinnon and Gray allege the county dragged
its heels in sending employees' contributions to the various
pension plans for three to six weeks and improperly kept the
interest generated by the money while it remained in a county
account.
Their lawyer:
Nichole D. Bass, Esq.
LAW OFFICES OF NICHOLE D. BASS
1405 Magnolia Ave.
Knoxville, TN 37917
said the county owes all its employees every penny of interest it
earned with their funds.
"They should be working toward reimbursing pension money withheld
longer than it should have been," Ms. Bass said.
Outside pension counsel for Knox County:
Al Holifield, Esq.
HOLIFIELD & ASSOCIATES, P.C.
8531 East Walker Springs Lane, Suite 303
Knoxville, TN 37923
Telephone: 865-566-0115
said the county acted properly and said if the plaintiffs prevail
it would be complex - and costly - to find out what each one
would receive. Mr. Holifield noted that the county has 13
payroll systems and five retirement plans, including two -- for
uniformed officers and teachers -- that aren't managed by the
county's Pension Board.
"The cost of what it would take to figure (damages) out far
exceeds what they would get," Mr. Holifield said.
He also read from a deposition taken from Trustee Fred Sisk, who
said it would be "next to impossible" to calculate the interest
earned by the account because it fluctuated daily.
"In Knox County's opinion, you'd open Pandora's Box" by making
the lawsuit a class action, he told Chancellor Fansler.
Ms. Bass argued that all employees, including retirees and those
who have otherwise left county employment, should be allowed to
seek damages.
"No matter whose face you hold up before the court, the injury is
the same," she said.
Chancellor Fansler seemed more interested in the nuts and bolts
of the case, like how to determine damages for each plaintiff
should they prevail on the merits. He grew impatient with Ms.
Bass and her co-counsel:
William A. Hotz, Esq.
BILL HOTZ & ASSOCIATES, P.C.
6004 Walden Dr.
Knoxville, TN 37919
Telephone: 865-637-8282
for not having a plan in place to manage the case.
"I don't have the first offer from y'all about how to prove your
damages," Chancellor Fansler told them.
Chancellor Fansler didn't issue a ruling Thursday, saying he
would take the matter under advisement and release his decision
soon.
The Defendants are also represented by:
William S. Lockett, Esq.
Joseph G. Jarret, Esq.
Knox County Law Director
400 Main Street, Suite 612
Knoxville, TN 37902
Telephone: 865-215-2327
- and -
Joseph M. Viglione, Esq.
Kelly P. Mann, Esq.
HOLIFIELD & ASSOCIATES, P.C.
8531 East Walker Springs Lane, Suite 303
Knoxville, TN 37923
Telephone: 865-566-0115
- and -
William E. Mason, Esq.
313 North Forest Park Blvd.
P.O. Box 11181
Knoxville, TN 37939-1181
- and -
Richard T. Beeler, Esq.
Stephanie D. Coleman, Esq.
ROBERTSON, OVERBEY, WILSON & BEELER
703 Riverview Tower
Knoxville, TN 37902-1823
MATRIXX INITIATIVES: Continues to Defend Suits Over Zicam
---------------------------------------------------------
Matrixx Initiatives, Inc., continues to defend a number of
putative class actions over its Zicam Cold Remedy nasal gel
products, according to the company's Feb. 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2009.
Since 2003, many lawsuits have been filed against the company
alleging that its Zicam Cold Remedy nasal gel products have
caused the permanent loss or diminishment of the sense of smell
or smell and taste. Prior to the company's receipt of the U.S.
Food and Drug Administration's June 16, 2009 warning letter, the
number of lawsuits filed against the company was steadily
declining; in fact, the numbers of pending lawsuits, plaintiffs,
new lawsuits and potential claimants were at their lowest levels
since early 2004.
Since the Company's receipt of the FDA warning letter, numerous
product liability lawsuits have been filed against the company,
many of which cite the FDA warning letter as support for their
claims.
The lawsuits principally fall into two categories of product
liability claims:
(i) those seeking compensation for the loss or diminishment
of the plaintiff's sense of smell or smell and taste,
alleged to have been caused by the use of Zicam Cold
Remedy nasal gel products (i.e., personal injury
claims) and
(ii) those seeking compensation for the purchase price of
the Zicam Cold Remedy nasal gel products or various
forms of equitable relief such as disgorgement of
profits, restitution and injunctive relief based on
allegations that the company misrepresented the safety
and/or efficacy of such products to consumers (i.e.,
consumer fraud claims).
All of the consumer fraud lawsuits have been filed as class
actions but none of the classes have been certified to date.
On Oct. 9, 2009, a judicial panel ordered the centralization and
transfer of a number of consumer fraud and personal injury
actions pending in federal court to a federal court in the
District of Arizona pursuant to federal multidistrict litigation
procedures.
Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/--
develops, produces, markets and sells over-the-counter (OTC)
healthcare products with an emphasis on those that utilize
delivery systems that provide consumers with Better Ways to Get
Better. Through its subsidiary, Zicam, LLC, the company markets
and sells products under the Zicam brand. The company's product
offerings consist of four product classes within the cough and
cold category: Cold Remedy; Allergy/Sinus; Cough and Multi-
Symptom relief, and other cough/cold. In addition, the company
had sold products under the Nasal Comfort and Xcid brand names.
Its Zicam products are marketed in the cough and cold market
category. During the fiscal year ended March 31, 2009 (fiscal
2009), the company's top 15 customers accounted for more than 80%
of its net sales and three customers each accounted for more than
10% of the company's net sales. In May 2008, the company formed
Zicam Canada, Inc. to commercialize sales of Zicam products in
Canada.
MATRIXX INITIATIVES: Motion for Lead Plaintiff Remains Pending
--------------------------------------------------------------
The motion for lead plaintiff and approval of lead counsel in a
putative class action against Matrixx Initiatives, Inc., remains
pending, according to the company's Feb. 5, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2009.
A putative class action was filed on July 17, 2009 against:
-- the company;
-- William J. Hemelt, President and Chief Executive Officer
(previously Acting President, Chief Financial Office and
Chief Operating Officer);
-- Samuel C. Cowley, Vice President of Business
Development, General Counsel and Secretary;
-- Timothy L. Clarot, Vice President of Research &
Development; and
-- Carl J. Johnson, former President and Chief Executive
Officer;
alleging violations of federal securities laws.
The suit is Shapiro et al. vs. Matrixx Initiatives, Inc. et al.,
filed in the U.S. District Court, District of Arizona, Case No.
2:09-cv-01479-ECV.
The lawsuit alleges that the company and the named officers
failed to disclose to the Food and Drug Administration and to the
public information about adverse events regarding the Zicam Cold
Remedy nasal gel products and that the company and such officers
made false and misleading statements regarding the company's
compliance with FDA regulations.
Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/--
develops, produces, markets and sells over-the-counter (OTC)
healthcare products with an emphasis on those that utilize
delivery systems that provide consumers with Better Ways to Get
Better. Through its subsidiary, Zicam, LLC, the company markets
and sells products under the Zicam brand. The company's product
offerings consist of four product classes within the cough and
cold category: Cold Remedy; Allergy/Sinus; Cough and Multi-
Symptom relief, and other cough/cold. In addition, the company
had sold products under the Nasal Comfort and Xcid brand names.
Its Zicam products are marketed in the cough and cold market
category. During the fiscal year ended March 31, 2009 (fiscal
2009), the company's top 15 customers accounted for more than 80%
of its net sales and three customers each accounted for more than
10% of the company's net sales. In May 2008, the company formed
Zicam Canada, Inc. to commercialize sales of Zicam products in
Canada.
MATRIXX INITIATIVES: Files Petition for Review with High Court
--------------------------------------------------------------
Matrixx Initiatives, Inc., has filed a petition with the U.S.
Supreme Court for certiorari review after the U.S. District Court
of Appeals, Ninth Circuit, reversed the ruling dismissing a
consolidated class action, according to the company's Feb. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
Two class action lawsuits were filed in April and May 2004
against the company, its previous President and Chief Executive
Officer, Carl J. Johnson, and William J. Hemelt its Acting
President, Chief Operating Officer, and Chief Financial Officer,
alleging violations of federal securities laws.
On Jan. 18, 2005, the cases were consolidated and the court
appointed James V. Sircusano as lead plaintiff. The amended
complaint also includes the company's Vice President of Research
and Development, Timothy L. Clarot, as a defendant and was filed
March 4, 2005.
The consolidated case is Sircusano, et al. vs. Matrixx
Initiatives, Inc., et al., in the United States District Court,
District of Arizona, Case No. CV04-0886 PHX DKD.
Among other things, the lawsuit alleges that between October 2003
and February 2004, the company made materially false and
misleading statements regarding its Zicam Cold Remedy products,
including failing to adequately disclose to the public the
details of allegations that its products caused damage to the
sense of smell and of certain of the product liability lawsuits.
The company filed a motion to dismiss this lawsuit and, on March
8, 2006, the company received an Order dated December 15, 2005
granting the motion to dismiss the case, without prejudice.
On April 3, 2006, the plaintiff appealed the Order to the United
States District Court of Appeals, Ninth Circuit, Case No. 2:04-
CV-886, and the parties made oral arguments to the Ninth Circuit
Court on June 9, 2009.
On Oct. 28, 2009, the Ninth Circuit Court issued its opinion.
The Ninth Circuit reversed the decision of the United States
District Court, District of Arizona, which had dismissed the
case.
On Dec. 23, 2009, the Ninth Circuit denied the company's petition
for rehearing.
On Jan. 15, 2010, the Ninth Circuit granted Matrixx's request to
stay the issuance of a mandate while the company petitions the
U.S. Supreme Court for certiorari review.
Matrixx Initiatives, Inc. -- http://www.matrixxinc.com/--
develops, produces, markets and sells over-the-counter (OTC)
healthcare products with an emphasis on those that utilize
delivery systems that provide consumers with Better Ways to Get
Better. Through its subsidiary, Zicam, LLC, the company markets
and sells products under the Zicam brand. The company's product
offerings consist of four product classes within the cough and
cold category: Cold Remedy; Allergy/Sinus; Cough and Multi-
Symptom relief, and other cough/cold. In addition, the company
had sold products under the Nasal Comfort and Xcid brand names.
Its Zicam products are marketed in the cough and cold market
category. During the fiscal year ended March 31, 2009 (fiscal
2009), the company's top 15 customers accounted for more than 80%
of its net sales and three customers each accounted for more than
10% of the company's net sales. In May 2008, the company formed
Zicam Canada, Inc. to commercialize sales of Zicam products in
Canada.
MAXIM INTEGRATED: Class Certification Motion Pending in Calif.
--------------------------------------------------------------
The motion of the plaintiffs for class certification in a
putative class action complaint was filed against Maxim
Integrated Products, Inc., remains pending in the U.S. District
Court for the Northern District of California, according to the
company's Feb. 4, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Dec. 26, 2009.
On Feb. 6, 2008, a putative class action complaint was filed
against the company, its former chief executive officer, now
deceased, and its former chief financial officer.
The complaint, brought on behalf of a putative class of Maxim
stockholders who purchased or otherwise acquired their shares
between April 29, 2003 and Jan. 17, 2008, asserted claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
in connection with alleged misrepresentations and omissions
concerning the company's stock option accounting practices.
On May 15, 2008, the Court appointed the Cobb County Government
Employees Pension Plan, the DeKalb County Pension Plan and the
Mississippi Public Employees Retirement System as co-lead
plaintiffs and Bernstein Litowitz Berger & Grossman LLP and
Chitwood Harley Harnes LLP as co-lead counsel.
On Nov. 14, 2008, Lead Plaintiffs filed a Consolidated Class
Action Complaint, which continues to assert claims under Sections
10(b) and 20(a) of the Exchange Act and names the company, its
former chief executive officer, its former chief financial
officer and its former treasurer as defendants. The Consolidated
Class Action Complaint seeks damages in an unspecified amount, as
well as interest, costs and expenses, including attorneys' fees.
On Jan. 30, 2009, the Company moved to dismiss the Consolidated
Class Action Complaint, which motion, on July 16, 2009, was
granted in part and denied in part by the Court.
On Aug. 28, 2009, the company answered the Consolidated Class
Action Complaint after which discovery commenced.
On Dec. 11, 2009, lead Plaintiffs filed a motion for class
certification, which motion is currently pending before the
court.
Maxim Integrated Products, Inc. -- http://www.maxim-ic.com/--
designs, develops, manufactures and markets a range of linear and
mixed-signal integrated circuits, referred to as analog circuits,
for a large number of customers in diverse geographical
locations. The company also provides a range of high-frequency
process technologies and capabilities for use in custom designs.
The major end markets in which the Company sells its products are
the industrial, communications, consumer and computing markets.
NATHAN'S FAMOUS: Motion to Dismiss Consumer Fraud Suit Pending
--------------------------------------------------------------
Nathan's Famous, Inc.'s motion to dismiss a class action
complaint alleging violations of the New Jersey Consumer Fraud
Act remains pending, according to the company's Feb. 4, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Dec. 27, 2009.
On July 31, 2009, the company was served with a class action
complaint filed in the Superior Court of the State of New Jersey,
Essex County.
In addition to Nathan's Famous, Inc., the Complaint names as
defendants Kraft Foods, Sara Lee Corporation, ConAgra Foods,
Inc., and Marathon Enterprises, Inc.
The named class plaintiffs purport to represent consumers who
have purchased processed meat products that were distributed and
sold in New Jersey from July 22, 2003 through July 22, 2009.
The Complaint alleges, among other things, that Defendants
violated the New Jersey Consumer Fraud Act (N.J.S.A. 56:8-2) by
omitting material information about their respective processed
meat products for the purpose of inducing consumers to purchase
the products.
The Complaint seeks injunctive relief, attorneys' fees and costs
incurred in bringing the lawsuit.
The named plaintiffs are further seeking combined damages in the
amount of $900. If a violation of the Act is found to have
occurred, named plaintiffs are entitled to trebled damages in the
combined amount of $2,700.00.
The company, along with all of the defendants made a motion to
dismiss this complaint on Oct. 9, 2009 and is awaiting a
decision.
Nathan's Famous, Inc. -- http://www.nathansfamous.com/-- is
engaged primarily in the marketing of the Nathan's Famous brand
and the sale of products bearing the Nathan's Famous trademarks
through several different channels of distribution. It is
engaged in the operation and franchising of quick service
restaurant units featuring Nathan's Famous Beef Hot Dogs,
crinkle-cut, French-fried potatoes, and a variety of other menu
offerings. In addition to its company owned and franchised
traditional restaurant operations, Nathan's introduced its
Branded Menu Program. The company and certain authorized third
parties also sell Nathan's Famous Beef Hot Dogs to foodservice
operators outside of the realm of a traditional franchise
relationship. As of March 29, 2009, its Nathan's Famous
restaurant system consisted of 249 franchised or licensed units
and five company-owned units (including one seasonal unit)
located in 25 states and four countries.
PARKER-HANNIFIN: Court Okays Settlement in Price-Fixing Suit
------------------------------------------------------------
The U.S. District Court for the Southern District of Florida
approved the proposed settlement in an amended consolidated
class-action suit accusing Parker-Hannifin Corp. and its
subsidiary, Parker ITR SLR of "conspiring to fix, raise, maintain
and stabilize prices of Marine Hose."
Marine Hose is a flexible rubber hose used to transport oil
between ships, terminals, buoys and tanks.
Four purported class-action lawsuits were filed in the U.S.
District Court for the Southern District of Florida:
-- Shipyard Supply LLC v. Bridgestone Corporation, et
al., filed May 17, 2007;
-- Expro Gulf Limited v. Bridgestone Corporation, et
al., filed June 6, 2007;
-- Bayside Rubber & Products, Inc. v. Trelleborg
Industrie S.A., et al., filed June 25, 2007;
-- Bayside Rubber & Products, Inc. v. Caleca, et al.,
filed July 12, 2007; and
One suit -- Weeks Marine, Inc. v. Bridgestone Corporation, et al.
-- was filed in the Southern District of New York on
July 27, 2007.
The company is named as a defendant in one case and it filed an
answer in that matter. Parker ITR filed a motion to dismiss
each of the four cases in which it is a defendant. However,
these dismissal motions were denied as moot after all five cases
were consolidated in the Southern District of Florida as 08-MDL-
1888.
On March 24, 2008, the plaintiffs filed a consolidated class-
action complaint that alleges that the defendants, for a period
of approximately 21 years, conspired with competitors in
unreasonable restraint of trade to artificially raise, fix,
maintain or stabilize prices, rig bids and allocate markets and
customers for marine oil and gas hose in the U.S.
On Sept. 12, 2008, the plaintiffs filed an amended consolidated
class action complaint that alleges that the defendants, for a
period of approximately 21 years, conspired with competitors in
unreasonable restraint of trade to artificially raise, fix,
maintain or stabilize prices, rig bids and allocate markets and
customers for marine oil and gas hose in the United States.
The plaintiffs generally seek treble damages, a permanent
injunction, attorneys' fees, and pre-judgment and post-judgment
interest.
The company and Parker ITR reached a settlement of the class
action litigation in the United States.
According to the company's Feb. 4, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 31, 2009, the Court granted final approval of that
settlement on Jan. 13, 2010.
Parker-Hannifin Corp. -- http://www.parker.com/-- is a full-line
diversified manufacturer of motion control products,
including fluid power systems, electromechanical controls and
related components. In addition to motion control products, the
company also is a producer of fluid purification, fluid and fuel
control, process instrumentation, air conditioning,
refrigeration, electromagnetic shielding and thermal management
products and systems. Its manufacturing, service, distribution
and administrative facilities are located in 35 states and in 42
foreign countries. Its motion control technology is used in the
products of its three principal business segments: Industrial,
Aerospace, and Climate & Industrial Controls. The products are
sold as original and replacement equipment through product and
distribution centers worldwide. Parker products are supplied to
over 427,000 customers in manufacturing, transportation and
processing industry.
PILGRIMS PRIDE: Unable to Resolve ERISA Lawsuit in Mediation
------------------------------------------------------------
The parties in the consolidated action captioned In re Pilgrim's
Pride Stock Investment Plan ERISA Litigation, No. 2:08-
cv-472-TJW, were unable to resolve the matter at the mediation,
according to Pilgrim's Pride Corp.'s Feb. 4, 2010, Form 10-QT
filing with the U.S. Securities and Exchange Commission for the
transition period from Sept. 27, 2009 to Dec. 27, 2009.
Patterson Action
On Dec. 17, 2008, Kenneth Patterson filed suit in the U.S.
District Court for the Eastern District of Texas, Marshall
Division, against Lonnie "Bo" Pilgrim, Lonnie "Ken" Pilgrim,
Clifford E. Butler, J. Clinton Rivers, Richard A. Cogdill, Renee
N. DeBar, Pilgrim's Pride Compensation Committee and other
unnamed defendants.
The complaint, brought pursuant to section 502 of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. Section 1132,
alleges that the individual defendants breached fiduciary duties
to participants and beneficiaries of the Pilgrim's Pride Stock
Investment Plan, as administered through the Pilgrim's Pride
Retirement Savings Plan, and the To-Ricos, Inc. Employee Savings
and Retirement Plan (collectively with the Plan and the RSP, the
"Plans").
The allegations in the complaint are similar to the allegations
made in the case filed by Ronald Acaldo in the same court.
Patterson further alleges that he purports to represent a class
of all persons or entities who were participants in or
beneficiaries of the Plans at any time between May 5, 2008,
through the present and whose accounts held the company's common
stock or units in the company's common stock.
The complaint seeks actual damages in the amount of any losses
the Plans suffered, to be allocated among the participants'
individual accounts as benefits due in proportion to the
accounts' diminution in value, attorneys' fees, an order for
equitable restitution and the imposition of constructive trust,
and a declaration that each of the defendants have breached their
fiduciary duties to the Plans' participants.
Although the company is not a named defendant in this action, its
bylaws require the company to indemnify its current and former
directors and officers from any liabilities and expenses incurred
by them in connection with actions they took in good faith while
serving as an officer or director.
The likelihood of an unfavorable outcome or the amount or range
of any possible loss to the company cannot be determined at this
time.
On Jan. 23, 2009, Patterson filed a motion to consolidate the
subsequently filed, similar to the case filed by Denise M. Smalls
case, into this action. The defendants filed a dispositive
motion seeking to dismiss the Patterson complaint on April 16,
2009.
Mr. Patterson filed a response brief in opposition to the motion
on May 15, 2009, and the defendants filed a reply in support of
their motion on June 1, 2009.
Smalls Action
On Jan. 2, 2009, Denise M. Smalls filed suit in the U.S. District
Court for the Eastern District of Texas, Marshall Division,
against Lonnie "Bo" Pilgrim, Lonnie Ken Pilgrim, Clifford E.
Butler, J. Clinton Rivers, Richard A. Cogdill, Renee N. DeBar,
Pilgrim's Pride Compensation Committee and other unnamed
defendants.
The complaint and the allegations are similar to those filed in
the Patterson case.
Smalls alleges that she purports to represent a class of all
persons or entities who were participants in or beneficiaries of
the Plans at any time between May 5, 2008, through the present
and whose accounts held the company's common stock or units in
the company's common stock.
The complaint seeks actual damages in the amount of any losses
the Plans suffered, to be allocated among the participants'
individual accounts as benefits due in proportion to the
accounts' diminution in value, attorneys' fees; an order for
equitable restitution and the imposition of constructive trust;
and a declaration that each of the defendants have breached their
fiduciary duties to the Plans' participants.
Although the company is not a named defendant in the action, its
bylaws require it to indemnify its current and former directors
and officers from any liabilities and expenses incurred by them
in connection with actions they took in good faith while serving
as an officer or director. The likelihood of an unfavorable
outcome or the amount or range of any possible loss to the
Company cannot be determined at this time.
On July 9, 2009, the defendants filed a dispositive motion
seeking to dismiss the complaint.
Consolidated Action
On July 20, 2009, the Court entered an order consolidating the
Smalls action and the Patterson action and set the consolidated
action for a scheduling conference on July 30, 2009.
On Aug. 12, 2009, following the Scheduling Conference, the Court
ordered that the case will proceed under the caption In re
Pilgrim's Pride Stock Investment Plan ERISA Litigation, No. 2:08-
cv-472-TJW.
Plaintiffs were granted leave to file an Amended (consolidated)
Complaint by or on Sept. 25, 2009.
On Sept. 28, 2009, the Court ordered that deadlines in the
consolidated action be adjourned until Jan. 15, 2010 to allow the
parties to pursue mediation.
The parties mediated on Nov. 20, 2009, but were unable to resolve
this matter at the mediation.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people
and operates chicken processing plants and prepared-foods
facilities in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: Response Deadline in "Simmons" Suit Extended
------------------------------------------------------------
The parties in a putative class action styled Simmons et al v.
Pilgrim, et al., have stipulated to extend the deadline for the
filing of a responsive pleading to the amended complaint until
Feb. 23, 2010, according to Pilgrim's Pride Corp.'s Feb. 4, 2010,
Form 10-QT filing with the U.S. Securities and Exchange
Commission for the transition period from Sept. 27, 2009 to Dec.
27, 2009.
On Oct. 9, 2009, David Simmons, Carla Simmons, Patty L.
Funkhouser, and Dickie L. Funkhouser filed a putative class
action, styled Simmons et al v. Pilgrim, et al., Action No. 2:09-
CV-121, against Lonnie A. Pilgrim, Lonnie Ken Pilgrim, Clifford
Butler, O.B. Goolsby, Richard A. Cogdill, S. Key Coker, Blake D.
Lovette, Vance C. Miller, James G. Vetter, Donald L. Wass,
Charles L. Black, Linda Chavez, J. Clinton Rivers, Keith W.
Hughes, Don Jackson, the Administrative Committee of the
Pilgrim's Pride Retirement Savings Plan, Renee DeBar, Jane
Brookshire, Gerry Evenwel, the Prudential Retirement Insurance
and Annuity Company, and other unnamed defendants.
The case was filed in the U.S. District Court for the Northern
District of West Virginia.
The action alleges that the fiduciaries breached their duties to
the participants and beneficiaries by, among other things:
-- amending the Pilgrim's Pride Retirement Savings Plan
(RSP),
-- allowing imprudent investments in the company's common
stock,
-- failing to collect the company's delinquent employer
contributions and
-- failing to file unsecured and priority claims on behalf
of the RSP or otherwise protect the rights of RSP
participants in the Bankruptcy Court.
Before the defendants were required to respond to the complaint,
an amended complaint was filed on Dec. 14, 2009, which, among
other things, named additional defendants and amended certain
allegations.
More specifically, Dickie L. Funkhouser is no longer a named
plaintiff. Gerry Evenwel and Prudential Retirement Insurance and
Annuity Company are no longer named defendants.
Plaintiffs have added the RSP as a named defendant, as well as
Prudential Bank & Trust, FSB, Prudential Financial, and
Prudential Insurance of America.
Plaintiffs have withdrawn their allegations relating to imprudent
investments in the common stock of the company.
Plaintiffs allege that the defendants breached fiduciary duties
by having adhered to invalid RSP amendments, failed to enforce
the valid terms of the RSP, failed to pursue the RSP's right to
delinquent employer contributions, failed to file a proof of
claim relating to the delinquent contributions in the bankruptcy
proceedings, and by their actions in relation to the vote on the
confirmation of the Company's Plan of Reorganization. It is
anticipated that plaintiffs will seek certification of a class of
persons or entities who were participants or beneficiaries in the
RSP from Oct. 3, 2002 to the present (excluding individually
named defendants and their immediate family members), and will
seek a determination that the defendants breached their fiduciary
and co-fiduciary duties to the RSP and the participants and
beneficiaries, a fiduciary accounting, restoration to the RSP and
the participants and beneficiaries of the losses sustained by the
RSP and the participants and beneficiaries, imposition of a
constructive trust, prejudgment interest, attorneys' fees, costs,
and expenses, and further legal, equitable or remedial relief.
On Jan. 14, 2010, the Bankruptcy Court entered an Order
addressing, in part, release provisions and injunctive clauses
contained in the company's Plan of Reorganization. In order to
allow the parties the opportunity to consider and discuss the
potential impact of the Bankruptcy Court's Order on the Simmons
case, the parties have stipulated to extend the deadline for the
filing of a responsive pleading to the amended complaint until
February 23, 2010.
The liability insurer has been notified of the amended complaint
in the Simmons case, but has not yet provided its coverage
position, as far as we are aware. Although the company is not a
named defendant in this action, our bylaws require us to
indemnify our current and former directors and officers from any
liabilities and expenses incurred by them in connection with
actions they took in good faith while serving as an officer or
director. The likelihood of an unfavorable outcome or the amount
or range of any possible loss to the Company cannot be determined
at this time.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people
and operates chicken processing plants and prepared-foods
facilities in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: No Decision Yet on Motion to Dismiss Complaint
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Texas,
Marshall Division, has yet to rule on the Motion to Dismiss the
Consolidated Complaint styled In re: Pilgrim's Pride Corporation
Securities Litigation, according to Pilgrim's Pride Corp.'s Feb.
4, 2010, Form 10-QT filing with the U.S. Securities and Exchange
Commission for the transition period from Sept. 27, 2009 to Dec.
27, 2009.
Acaldo Action
On Oct. 29, 2008, Ronald Acaldo filed suit in the U.S. District
Court for the Eastern District of Texas, Marshall Division,
against the company and individual defendants Lonnie "Bo"
Pilgrim, Lonnie Ken Pilgrim, J. Clinton Rivers, Richard A.
Cogdill and Clifford E. Butler.
The complaint alleged that the company and the individual
defendants violated sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder, by allegedly failing to disclose that:
(a) the company's hedges to protect it from adverse changes
in costs were not working and in fact were harming the
company's results more than helping;
(b) the company's inability to continue to use illegal
workers would adversely affect its margins;
(c) the company's financial results were continuing to
deteriorate rather than improve, such that the
company's capital structure was threatened;
(d) the company was in a much worse position than its
competitors due to its inability to raise prices for
consumers sufficient to offset cost increases, whereas
it competitors were able to raise prices to offset
higher costs affecting the industry; and
(e) the company had not made sufficient changes to its
business to succeed in the more difficult industry
conditions.
Mr. Acaldo further alleged that he purports to represent a class
of all persons or entities who acquired the common stock of the
company from May 5, 2008 through Sept. 24, 2008. The complaint
sought unspecified injunctive relief and an unspecified amount of
damages.
On Nov. 21, 2008, defendants filed a Motion to Dismiss and Brief
in Support Thereof, asserting that plaintiff failed to identify
any misleading statements, failed to adequately plead scienter
against any defendants, failed to adequately plead loss
causation, failed to adequately plead controlling person
liability and, as to the omissions that plaintiff alleged
defendants did not make, defendants alleged that the omissions
were, in fact, disclosed.
Howes Action
On Nov. 13, 2008, Chad Howes filed suit in the U.S. District
Court for the Eastern District of Texas, Marshall Division,
against the company and individual defendants Lonnie "Bo"
Pilgrim, Lonnie Ken Pilgrim, J. Clinton Rivers, Richard A.
Cogdill and Clifford E. Butler.
The allegations in the Howes Complaint are identical to those in
the Acaldo Complaint, as are the class allegations and relief
sought. The defendants were never served with the Howes
Complaint.
Consolidated Action
On May 14, 2009, the Court consolidated the Acaldo and Howes
cases and renamed the style of the case, In re: Pilgrim's Pride
Corporation Securities Litigation.
On May 21, 2009, the Court granted the Pennsylvania Public Fund
Group's Motion for Appointment of Lead Plaintiff. Thereafter, on
June 26, 2009, the lead plaintiff filed a Consolidated (and
amended) Complaint.
The Consolidated Complaint dismissed the company and Clifford E.
Butler as Defendants.
In addition, the Consolidated Complaint added the following
directors as Defendants:
-- Charles L. Black,
-- S. Key Coker,
-- Blake D. Lovette,
-- Vance C. Miller,
-- James G. Vetter, Jr.,
-- Donald L. Wass,
-- Linda Chavez, and
-- Keith W. Hughes.
The Consolidated Complaint alleges four causes of action
violations of Sections 10(b) and 20(a) of the Securities and
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder solely against Lonnie "Bo" Pilgrim, Clint Rivers, and
Rick Cogdill ("Officer Defendants").
Those claims assert that, during the Class Period of May 5, 2008
through Oct. 28, 2008, the Defendants, through various financial
statements, press releases and conference calls, made material
misstatements of fact and/or omitted to disclose material facts
by purportedly failing to completely impair the goodwill
associated with the Gold Kist acquisition.
The Consolidated Complaint also asserts claims under Section 11
of the Securities Act of 1933 against all Defendants, asserting
that, statements made in a Registration Statement in connection
with the May 14, 2008 secondary offering of the company's common
stock were materially false and misleading for their failure to
completely impair the goodwill associated with the Gold Kist
acquisition.
Finally, the Consolidated Complaint asserts a violation of
Section 15 of the Securities Act of 1933 against the Officer
Defendants only, claiming that the Officer Defendants were
controlling persons of the company and the other Defendants in
connection with the Section 11 violation.
By the Consolidated Complaint, the lead plaintiff seeks
certification of the Class, undisclosed damages, and costs and
attorneys' fees.
On July 27, 2009, Defendants filed a Motion to Dismiss the
Consolidated Complaint for its failure to adequately plead, as to
the Sections 10(b) and 20(a) claims, scienter and loss causation
and, as to the Sections 11 and 15 claims, for its failure to
adequately plead misrepresentations and omissions.
Defendants requested that the Consolidated Complaint be dismissed
with prejudice.
The Plaintiffs filed an Opposition to the Motion to Dismiss on
Aug. 27, 2009.
Defendants filed a Reply Brief on Sept. 10, 2009, and Plaintiffs
filed a Sur-Reply on Sept. 24, 2009.
The Court has not yet ruled on the Motion to Dismiss.
No discovery has commenced in the consolidated case, and the case
has not been set for trial.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people
and operates chicken processing plants and prepared-foods
facilities in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: Enters Settlement Pact in "Unpaid Wages" Suit
-------------------------------------------------------------
The parties in a consolidated action against Pilgrim's Pride
Corp. entered into a settlement agreement resulting in the entry
of a Consent Judgment on Feb. 1, 2010, according to Pilgrim's
Pride Corp.'s Feb. 4, 2010, Form 10-QT filing with the U.S.
Securities and Exchange Commission for the transition period from
Sept. 27, 2009 to Dec. 27, 2009.
The Wage and Hour Division of the U.S. Department of Labor
conducted an industry-wide investigation to ascertain compliance
with various wage and hour issues, including the compensation of
employees for the time spent on activities such as donning and
doffing clothing and personal protective equipment.
Due, in part, to the government investigation and the recent U.S.
Supreme Court decision in IBP, Inc. v. Alvarez, employees have
brought claims against the company.
The claims filed against the company as of Sept. 26, 2009,
include:
-- "Juan Garcia, et al. v. Pilgrim's Pride Corporation,
a/k/a Wampler Foods, Inc.", filed in Pennsylvania state
court on Jan. 27, 2006, and subsequently removed to the
U.S. District Court for the Eastern District of
Pennsylvania;
-- "Esperanza Moya, et al. v. Pilgrim's Pride Corporation
and Maxi Staff, LLC", filed March 23, 2006, in the
Eastern District of Pennsylvania;
-- "Barry Antee, et al. v. Pilgrim's Pride Corporation"
filed April 20, 2006, in the Eastern District of Texas;
-- "Stephania Aaron, et al. v. Pilgrim's Pride Corporation"
filed Aug. 22, 2006, in the Western District of
Arkansas;
-- "Salvador Aguilar, et al. v. Pilgrim's Pride
Corporation" filed Aug. 23, 2006, in the Northern
District of Alabama;
-- "Benford v. Pilgrim's Pride Corporation" filed
Nov. 2, 2006, in the Northern District of Alabama;
-- "Porter v. Pilgrim's Pride Corporation" filed
Dec. 7, 2006, in the Eastern District of Tennessee;
-- "Freida Brown, et al v. Pilgrim's Pride Corporation"
filed March 14, 2007, in the Middle District of Georgia,
Athens Division;
-- "Roy Menser, et al v. Pilgrim's Pride Corporation" filed
Feb. 28, 2007, in the Western District of Paducah,
Kentucky;
-- "Victor Manuel Hernandez v. Pilgrim's Pride Corporation"
filed January 30, 2007, in the Northern District of
Georgia, Rome Division;
-- "Angela Allen et al v. Pilgrim's Pride Corporation"
filed March 27, 2007, in U.S. District Court, Middle
District of Georgia, Athens Division;
-- Daisy Hammond and Felicia Pope v. Pilgrim's Pride
Corporation, in the Gainesville Division, Northern
District of Georgia, filed on June 6, 2007;
-- Gary Price v. Pilgrim's Pride Corporation, in the U.S.
District Court for the Northern District of Georgia,
Atlanta Division, filed on May 21, 2007;
-- Kristin Roebuck et al v. Pilgrim's Pride Corporation, in
the U.S. District Court, Athens, Georgia, Middle
District, filed on May 23, 2007; and
-- Elaine Chao v. Pilgrim's Pride Corporation, in the U.S.
District Court, Dallas, Texas, Northern District, filed
on Aug. 6, 2007.
The plaintiffs generally purport to bring a collective action for
unpaid wages, unpaid overtime wages, liquidated damages, costs,
attorneys' fees, and declaratory and/or injunctive relief and
generally allege that they are not paid for the time it takes to
either clear security, walk to their respective workstations, don
and doff protective clothing, and/or sanitize clothing and
equipment. The presiding judge in the consolidated action in El
Dorado issued an initial Case Management order on July 9, 2007.
Plaintiffs' counsel filed a Consolidated Amended Complaint and
the parties filed a Joint Rule 26(f) Report.
On March 13, 2008, the Court issued an opinion and order finding
that plaintiffs and potential class members are similarly
situated and conditionally certifying the class for a collective
action. The opt-in period is now closed. Approximately 11,000
plaintiffs have opted into the class.
The parties in the action entered into a settlement agreement
resulting in the entry of a Consent Judgment on Feb. 1, 2010, in
the action.
Under the terms of the Consent Judgment, the company, without
admitting it has violated any provision of the Fair Labor
Standards Act, agreed to entry of the Consent Judgment without
contest. The terms of that Consent Judgment generally provide
that the company will, within 24 months of entry of the Consent
Judgment, record and compensate as hours worked the donning,
doffing, and sanitizing of any clothing or equipment that is
required for processing employees who work on the production line
by law, the employer, or the nature of the work, and not merely a
convenience to the employee and not directly related to the
specific work. During the interim period, the company agreed to
pay $1.0 million to the named Plaintiffs as overtime
compensation.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people
and operates chicken processing plants and prepared-foods
facilities in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
PILGRIMS PRIDE: Court Okays Settlement in "Benbow" Suit
-------------------------------------------------------
The U.S. Bankruptcy Court for the Northern District of Texas,
gave its preliminary approval for the settlement of the action
captioned Randolph Benbow, et al. v. Gold Kist, according to
Pilgrim's Pride Corp.'s Feb. 4, 2010, Form 10-QT filing with the
U.S. Securities and Exchange Commission for the transition period
from Sept. 27, 2009 to Dec. 27, 2009.
The company is a defendant in two collective actions brought by
employees or former employees for unpaid wages, unpaid overtime
wages, liquidated damages, costs and attorneys' fees, based on
time spent donning and doffing uniforms and protective gear.
The actions are Randolph Benbow et al v. Gold Kist, pending in
the U.S. District Court for the District of South Carolina, and
MDL 1832 Pilgrim's Pride Fair Labor Standards Act Litigation,
pending in the U.S. District Court for the Western District of
Arkansas.
Following the filing of these actions, a similar suit was filed
as an adversary proceeding in the bankruptcy court, entitled Anna
Atkinson, et al. v. Pilgrim's Pride Corporation, Gold Kist, Inc.,
which was subsequently consolidated into the Benbow Action.
Collectively, these actions include approximately 13,900
employees.
Class proofs of claim were filed on behalf of the plaintiffs in
the MDL Action for at least $45 million and for the plaintiffs in
the Benbow Action for at least $11 million.
The parties recently executed a settlement agreement and mutual
release of the Benbow case and the Atkinson Action in exchange
for a settlement payment of $1.75 million to the plaintiffs.
On Nov. 17, 2009, the company filed a motion with the Bankruptcy
Court for authorization to enter into and approval of the
settlement agreement reached in the Benbow case and the Atkinson
Action. The Bankruptcy Court has given preliminary approval for
the settlement, and permitted the plaintiffs to go forward with
the solicitation of additional class members who would be subject
to the settlement.
The parties have entered into active settlement negotiations with
the plaintiffs in the MDL Action.
Headquartered in Pittsburgh, Texas, Pilgrim's Pride Corp. --
http://www.pilgrimspride.com/-- employs roughly 41,000 people
and operates chicken processing plants and prepared-foods
facilities in 14 states, Puerto Rico and Mexico. The company's
primary distribution is through retailers and foodservice
distributors.
QUIXOTE CORP: Awaiting Court Approval of Settlement Agreement
-------------------------------------------------------------
Quixote Corp., is still awaiting approval from the Circuit Court
of Cook County, Illinois, Chancery Division of the memorandums of
understanding to settle two purported class action lawsuits that
were filed following the announcement of the pending offer made
by Trinity Industries, Inc. and its wholly-owned subsidiary THP
Merger Co., to acquire the company's outstanding common stock at
$6.38 per share to be followed by a back-end merger.
Two lawsuits were filed against the company, its directors and
Trinity following the announcement of the pending Trinity
Acquisition. The lawsuits are:
(1) Superior Partners, on Behalf of Itself and All Others
Similarly Situated vs. Leslie J. Jezuit, Bruce Reimer,
Daniel P. Gorey, Robert D. van Roijen, Lawrence C.
McQuade, Duane M. Tyler, Clifford D. Nastas, Quixote
Corporation and Trinity Industries, Inc.
(Case No. 10 CH 0613) filed on Jan. 13, 2010 in the
Circuit Court of Cook County, Illinois, Chancery
Division; and
(2) Ralph A. Ardito, Individually and on Behalf of All
Others Similarly Situated vs. Bruce Reimer, Leslie J.
Jezuit, Daniel P. Gorey, Robert D. van Roijen,
Lawrence C. McQuade, Duane M. Tyler, Clifford D.
Nastas, Quixote Corporation, Trinity Industries, Inc.
and THP Merger Co. (Case No. 10 CH 2544) filed on
Jan. 20, 2010 in the same Court.
Trinity has been dismissed without prejudice as a defendant in
the lawsuits.
On Jan. 28, 2010, the company entered into memorandums of
understanding with plaintiffs' counsel and the other remaining
named defendants to settle the Lawsuits. Under the terms of the
memorandums of understanding, the company, the other remaining
named defendants and the plaintiffs have agreed to settle the
Superior Partners lawsuit and dismiss of the Ardito lawsuit as
moot, subject to court approval.
As part of the settlement, the remaining defendants deny all
allegations of wrongdoing and deny that the previous disclosures
were inadequate but the company agreed to make available certain
additional information to its stockholders.
The memorandums of understanding further contemplate that the
parties will enter into a stipulation of settlement. The
stipulation of settlement will be subject to customary
conditions, including court approval following notice to members
of the proposed settlement class.
If finally approved by the court, the settlement will resolve all
of the claims that were or could have been brought on behalf of
the proposed settlement class in the action being settled,
including all claims relating to the pending tender offer, the
merger, the Agreement, the adequacy of the merger consideration,
the negotiations preceding the Agreement, the adequacy and
completeness of the disclosures made in connection with the
tender offer and the merger and any actions of the remaining
individual defendants in connection with the tender offer, the
merger or the Agreement, including any alleged breaches of the
fiduciary duties of any of the remaining defendants, or the
aiding and abetting thereof. If the court does approve of the
settlement after a notice period, then all public stockholders
who did not elect to opt out of such settlement will be bound
thereby.
In addition, in connection with the settlement and as provided in
the memorandums of understanding, and subject to approval by the
court, the remaining named defendants or their insurers will pay
to plaintiffs' counsel in the Superior Partner action for their
fees and expenses an amount not to exceed $431,000, and the
remaining named defendants or their insurers will pay to
plaintiff's counsel in the Ardito action an amount not to exceed
$169,000 and, per the settlement with the plaintiff in the Ardito
action, the settlement of the Superior Partners action moots the
Ardito action.
Neither payment will affect the amount of consideration to be
paid to stockholders of the Company in connection with the tender
offer and the subsequent merger. Furthermore, any payment is also
conditioned on the tender offer being consummated so the
company's stockholders will not indirectly bear such payment.
The lawsuits were tendered to the company's insurance carrier and
we are subject to a $250,000 deductible.
Under the terms of the Agreement, the settlement is subject to
the approval of Trinity, which may not be unreasonably withheld
or delayed. Trinity has given its approval to the settlement
described by the memorandums of understanding.
The company and the other remaining defendants maintain that the
lawsuits are completely without merit. Nevertheless, in order to
avoid costly litigation and eliminate the risk of any delay to
the closing of the tender offer and subsequent merger, and
because the only effect of the settlement on the stockholders is
to provide additional disclosure, the remaining defendants have
agreed to the settlement contemplated in the memorandum of
understanding, according to the company's eb. 4, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 31, 2009.
Quixote Corp. -- http://www.quixotecorp.com/-- through its
subsidiaries, develops, manufactures and markets highway and
transportation safety products to protect, direct and inform
motorists and road workers in both domestic and international
markets. As of June 30, 2009, the company operated in two
segments: Protect and Direct segment, and Inform segment.
RAPTOR PHARMA: Plaintiffs' Appeal on Suit Dismissal Pending
-----------------------------------------------------------
The plaintiffs' appeal on the dismissal of their consolidated
amended complaint against Raptor Pharmaceutical Corp. remains
pending before the U.S. Court of Appeals for the Second Circuit.
According to the company's Feb. 5, 2010, Form 8-K filing with the
U.S. Securities and Exchange Commission, several lawsuits were
filed against the company (as TorreyPines) in February 2005 in
the U.S. District Court for the Southern District of New York
asserting claims under Sections 10(b) and 20(a) of the Exchange
Act and Rule 10b-5 thereunder on behalf of a class of purchasers
of the company's common stock during the period from June 26,
2003, through and including Feb. 4, 2005, referred to as the
class period.
Dr. Marvin S. Hausman, M.D., a former director and a former Chief
Executive Officer, and Dr. Gosse B. Bruinsma, M.D., also a former
director and a former Chief Executive Officer, were also named as
defendants in the lawsuits.
These actions were consolidated into a single class action
lawsuit in January 2006.
On April 10, 2006, the class action plaintiffs filed an amended
consolidated complaint.
The company filed its answer to that complaint on May 26, 2006.
The company's motion to dismiss the consolidated amended
complaint was filed on May 26, 2006 and was submitted to the
court for a decision in September 2006.
On March 31, 2009 the U.S. District Court for the Southern
District of New York dismissed the proceedings.
On April 24, 2009, an appeal was filed with the U.S. Court of
Appeals for the Second Circuit by the class action plaintiffs.
The company's response to the appeal was filed on Oct. 23, 2009.
The Second Circuit heard the plaintiffs' appeal of the order
dismissing the complaint on Jan. 14, 2010.
Raptor Pharmaceutical Corp. -- http://www.raptorpharma.com/-- is
dedicated to speeding the delivery of new treatment options to
patients by working to improve existing therapeutics through the
application of highly specialized drug targeting platforms and
formulation expertise.
RHODE ISLAND: R.I. Towns Sue State to Recover Automobile Taxes
--------------------------------------------------------------
Derek Vital at the Herald Hews reports that a class action
lawsuit has been filed this week against Rhode Island Gov. Donald
Carcieri for withholding automobile excise tax money communities
were supposed to receive earlier this month.
Town administrator James Goncalo confirmed that Tiverton is among
the 13 cities and towns that are included in the lawsuit. The
other municipalities listed in the suit include Cranston, Warren,
Providence, West Warwick, North Kingstown, East Providence,
Warwick, Pawtucket, Richmond, Barrington, Middletown and
Hopkinton.
According to Mr. Goncalo, Tiverton stands to lose $353,000 by not
receiving the third quarter automobile excise tax.
"Not receiving this money will have a severe impact on our fiscal
budget," said Mr. Goncalo. Mr. Goncalo did not specify how the
town would deal with the loss of revenue, but said they are
working on a contingency plan should they not receive these
funds.
Mr. Goncalo said that he began to hear rumors in December that
the state's supplemental budget did not contain a third quarter
excise tax payment. Those rumors proved to be correct, and
Tiverton decided to join the lawsuit.
According to Mr. Goncalo, the suit was filed in Providence County
Superior Court, and the hearing is scheduled for Feb. 23.
SARA LEE: N.D. Ill. Dismisses Consolidated Securities Suit
----------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
granted final approval of the settlement and dismissed the
consolidated securities fraud class-action lawsuit filed against
Sara Lee Corp., according to the company's Feb. 4, 2010, Form 10-
Q filing with the U.S. Securities and Exchange Commission for the
quarter ended Dec. 26, 2009.
Initially, John Gallo, a purported company stockholder, filed the
putative class-action lawsuit on May 13, 2003, in the U.S.
District Court for the Northern District of Illinois on behalf of
purchasers of the company common stock between and including Aug.
1, 2002, and April 24, 2003.
The complaint named the company, C. Steven McMillan, former
chairman, president and chief executive officer of the company,
and Lambertus M. de Kool, executive vice president and chief
financial and administrative officer of the company, as
defendants.
The suit seeks, among other things, class action certification,
compensatory damages in an unspecified amount, and an award of
costs and expenses, including counsel fees.
Seven other putative class-action suits were filed in the U.S.
District Court for the Northern District of Illinois, naming the
same defendants. The allegations in each of those complaints are
substantially similar to the allegations asserted in the first
lawsuit.
Each of the foregoing actions was later consolidated in a single
proceeding captioned "In re Sara Lee Corp. Securities
Litigation."
The consolidated amended complaint filed by the plaintiffs
contains similar allegations that the defendants violated
Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder by allegedly
misstating or omitting material adverse facts regarding the
company's business, operations, management and financial
statements, and the value of the company common stock, which
allegedly enabled the company to complete securities offerings,
enabled the individual defendants to increase their bonus
compensation and caused the purported class to purchase the
company common stock at artificially inflated prices. The
consolidated amended complaint, however, omitted the previous
allegations that the individual defendants or other insiders sold
their personally held company stock to the public at
artificially inflated prices.
On March 5, 2004, the company filed a motion to dismiss the
consolidated amended complaint. The motion was denied by the
court. On Oct. 19, 2005, the company filed a motion for judgment
on the pleadings based on the plaintiffs' failure to
adequately plead loss causation. The motion was fully briefed at
the end of November 2005.
On July 10, 2006, the motion was granted and the case has been
dismissed. The court found that the plaintiffs failed to allege
and prove that the defendants' misrepresentations and other
fraudulent conduct proximately caused plaintiffs' economic
losses.
On July 24, 2006, plaintiffs moved for relief from final judgment
and for leave to amend the consolidated amended complaint under
Federal Rules 15(a), 59(e), and 60(b). Briefing on plaintiffs'
motion was completed on Oct. 13, 2006, and the
company is awaiting the court's ruling.
Sara Lee received a settlement demand and the parties are
negotiating a settlement.
A mediation was held on June 10, 2009, at which time an agreement
in principle to settle the action was reached by the parties.
The total settlement amount is $4.25 million.
The bulk of the settlement will come from insurance proceeds; no
settlement amounts will come from any individual director or
officer of Sara Lee. The settlement requires that Sara Lee
implement and maintain a number of corporate governance
enhancements directed toward promoting the continued best
practices and high standards of corporate operations and
financial reporting, and ensure the ongoing education and
independence of Board members. The settlement expressly provides
that there is no finding or admission of any wrongdoing
whatsoever by Sara Lee or any of the individual defendants.
The court granted final approval of the parties' settlement
documents and dismissed the suit on Jan. 26, 2010.
The suit is In Re: Sara Lee Corp. Securities Litigation, Case No.
03-CV-3202 (N.D. Ill.) (Norgle, J.).
Representing the plaintiffs are:
Milberg Weiss Bershad & Schulman, LLP
One Pennsylvania Plaza, 49th Floor
New York, NY, 10119
Phone: 212-594-5300
Fax: 212-868-1229
E-mail: info@milbergweiss.com
- and -
Miller, Faucher & Cafferty, LLP
30 North LaSalle Street, Suite 3200
Chicago, IL 60602
Phone: 312-782-4880
- and -
Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C.
200 N. LaSalle St., Ste. 2100
Chicago, IL 60601
Phone: 312-346-3100
- and -
Schiffrin & Barroway, LLP
3 Bala Plaza E
Bala Cynwyd, PA 19004
Phone: 610-667-7706
Fax: 610-667-7056
E-mail: info@sbclasslaw.com
SHORETEL INC: Defends Amended Consolidated Securities Complaint
---------------------------------------------------------------
ShoreTel, Inc. continues to defend the consolidated class-action
suit, In Re ShoreTel, Inc. Securities Litigation, according to
the company's Feb. 5, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Dec. 31,
2009.
On Jan. 16, 2008, a purported stockholder class action lawsuit,
captioned Watkins v. ShoreTel, Inc., et al., was filed in the
U.S. District Court for the Northern District of California
against ShoreTel, certain of its officers and directors, and the
underwriters of its initial public offering.
On Jan. 29, 2008, a second purported stockholder class-action
complaint, captioned, Kelley v. ShoreTel, Inc., et al., was filed
in the U.S. District Court for the Northern District of
California against the same defendants.
Both complaints purport to bring suit on behalf of those who
purchased the company's common stock pursuant to its initial
public offering on July 3, 2007. Both complaints purport to
allege claims for violations of the federal securities laws and
seek unspecified compensatory damages and other relief.
The lawsuits were consolidated, and a consolidated amended class
action complaint, captioned In Re ShoreTel, Inc. Securities
Litigation, was filed on June 27, 2008. The consolidated
complaint purports to bring suit on behalf of those who purchased
the company's common stock pursuant to the initial public
offering on July 3, 2007 and purports to allege claims for
violations of the federal securities laws. The consolidated
complaint seeks unspecified compensatory damages and other
relief.
On Feb. 2, 2009, the Court issued an order granting the company's
motion to dismiss the complaint but granted the Plaintiffs 30
days to file an amended complaint.
A second consolidated amended class action complaint was
subsequently filed on March 2, 2009.
The consolidated action is purportedly brought on behalf of those
who purchased the company's common stock pursuant to the initial
public offering on July 3, 2007, purports to allege claims for
violations of the federal securities laws, and seeks unspecified
compensatory damages and other relief.
ShoreTel, Inc. -- http://www.shoretel.com/-- is a provider of
Internet protocol telecommunications systems for enterprises.
The Company's systems are based on its distributed software
architecture and switch-based hardware platform, which enable
multi-site enterprises to be served by a single
telecommunications system. ShoreTel's solution consists of
ShoreGear switches, ShorePhone IP telephones and ShoreWare
software applications. It provides its systems to enterprises
across all industries, including to small, medium and large
companies, and public institutions. Its enterprise customers
include multi-site Fortune 500 companies. As of June 30, 2007,
ShoreTel had sold its IP telecommunications systems to over
5,000 enterprise customers, including CNET Networks, Robert Half
International, SEGA, Wedbush Morgan Securities, and the City of
Oakland, California.
SONIC SOLUTIONS: Hearing for Settlement Approval Set in April 8
---------------------------------------------------------------
The U.S. District Court for the Northern District of California
has an April 8, 2010, hearing to consider final approval of the
settlement agreement in a putative shareholder class action
against Sonic Solutions, according to the company's Feb. 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Dec. 31, 2009.
On Oct. 4, 2007, a putative shareholder class action was filed
against the company and various of its executive officers and
directors, premised on allegations concerning the granting of
stock options by the company and the alleged filing of false and
misleading financial statements.
On March 21, 2008, plaintiffs filed a consolidated amended
complaint on behalf of a proposed class of plaintiffs comprised
of persons that purchased the company's shares between Oct. 23,
2002 and May 17, 2007.
On May 27, 2008, plaintiffs filed a "corrected" consolidated
amended complaint which alleges various violations of the
Securities Exchange Act of 1934 and the rules thereunder.
The company filed a motion to dismiss on November 25, 2008 and on
April 6, 2009, the judge issued an order granting in part and
denying in part the company's motion to dismiss, with leave to
amend.
On May 8, 2009, plaintiffs filed a first amended class action
complaint, alleging violations of Sections 10(b), 14(a), 20(a),
and 20A of the Securities Exchange Act.
In July 2009, the parties reached an agreement in principle to
settle this action.
On Oct. 15, 2009, the parties executed a stipulation of
settlement providing for the creation of a settlement fund of $5
million to satisfy claims submitted by class members and to pay
any attorneys fees awarded by the Court.
As part of the settlement, the company's Directors and Officers
liability insurers agreed to fund the settlement amount.
On Dec. 2, 2009, the court preliminarily approved the settlement
and set a final approval hearing date of April 8, 2010.
Sonic Solutions -- http://www.sonic.com/-- is a developer of
products and services that enable the creation, management and
enjoyment of digital media content across a variety of technology
platforms. The company's products and services offers
technologies to consumers, original equipment manufacturers
(OEMs), enterprises, high-end professional digital versatile disc
(DVD) authoring experts and developers. The company distributes
its products and services through retailers and distributors,
personal computer (PC) and consumer electronics (CE) OEMs,
Internet Websites, including http://www.roxio.com/and other
channels. The company operates in two segments: Roxio Consumer
Products and Premium Content.
SPONGETECH DELIVERY: Hires Greenberg Traurig for Defense Work
-------------------------------------------------------------
SpongeTech Delivery Systems, Inc., hired Greenberg Traurig, LLP
on December 30, 2009 to handle a pending SEC investigation and
class action suits. Greenberg Traurig replaces Brown Rudnick
LLP.
SpongeTech also says that it is working diligently to complete
its financial reports required to file with the U.S. Securities
and Exchange Commission. SpongeTech has retained James Reilly as
an internal consultant to assist in these efforts. Robison &
Hill remains as the company's public accounting firm. Mr. Reilly
is a licensed Certified Public Accountant (CPA) who spent 8 years
with Ernst & Young LLP providing audit, accounting and tax
services to publicly and privately held companies and more
recently has served as CFO and/or Controller of medium sized
private and public companies.
SpongeTech(R) Delivery Systems is a company which designs,
produces, and markets unique lines of reusable cleaning products
for Car Care, Child Care, Home Care and Pet Care usages. These
sponge-like products utilize SpongeTech's proprietary, patent
(and patent-pending) technologies and other technologies
involving hydrophilic (liquid absorbing) foam, polyurethane
matrices or other ingredients. The Company's sponge-like products
are pre-loaded with specially formulated ingredients such as
soap, conditioner and/or wax that are released when the sponge is
soaked and applied to a surface with minimal pressure. SpongeTech
is currently exploring additional applications for its technology
in the health, beauty, and medical markets. SpongeTech(R)
Delivery Systems, Inc. intends to globally brand its products as
The Smarter Sponge(TM).
TD AMERITRADE: Case Conference in "Holders" Suit Set for Feb. 25
----------------------------------------------------------------
A Feb. 25, 2010, hearing has been set for a case conference in
the consolidated class action captioned In re TD Ameritrade
Accountholders Litigation, according to the company's Feb. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
A purported class action, Elvey v. TD Ameritrade, Inc., Case No.
07-cv-_____ (N.D. Calif.), was filed on May 31, 2007, alleging
that there was a breach in TDA Inc.'s systems that allowed access
to e-mail addresses and other personal information of account
holders, and that as a result account holders received
unsolicited e-mail from spammers promoting certain stocks and
have been subjected to an increased risk of identity theft. The
complaint requests unspecified damages and injunctive and other
equitable relief.
A second lawsuit, Zigler v. TD Ameritrade, Inc., Case No.
07-cv-______, (N.D. Calif.), was filed on Sept. 26, 2007, on
behalf of a purported nationwide class of account holders. The
factual allegations of the complaint and the relief sought are
substantially the same as those in Elvey.
The cases were consolidated under the caption In re TD Ameritrade
Accountholders Litigation.
The company hired an independent consultant to investigate
whether identity theft occurred as a result of the breach. The
consultant has conducted four investigations since August 2007,
and reported that it found no evidence of identity theft.
The parties entered into an agreement to settle the lawsuits on a
class basis subject to court approval. On May 1, 2009, the Court
granted preliminary approval of the proposed settlement, which
had been revised, and set a hearing on final approval for Sept.
10, 2009.
Some class members have filed objections and opt-outs.
On May 1, 2009, the Court granted preliminary approval of the
proposed settlement, which had been revised. Some class members
filed objections and opt-outs.
The court denied final approval of the proposed settlement on
Oct. 23, 2009. The court ruled that the asserted benefits of the
settlement to the class were not sufficient to warrant approval
and that the proposed settlement was not fair, reasonable and
adequate.
TD AMERITRADE Holding Corp. -- http://www.amtd.com/-- is engaged
in providing securities brokerage services and technology-based
financial services to retail investors and business partners,
predominantly through the Internet, a
national branch network and relationships with independent
registered investment advisors. The company offers touch-tone
trading, trading over the Internet, unlimited, streaming, free
real-time quotes, extended trading hour, direct access and
commitment on the speed of execution to its customers. As of
Jan. 24, 2006, the company acquired the U.S. brokerage business
of TD Waterhouse Group, Inc.. The client offerings include TD
AMERITRADE, TD AMERITRADE Institutional, TD AMERITRADE Izone,
Amerivest, TDAX Independence ETFs and TD AMERITRADE Corporate
Services. The products available to the clients include common
and preferred stock, exchange-traded funds, option trades, mutual
funds, fixed income, margin lending and cash management services.
TD AMERITRADE: Wants New York Court to Dismiss "Ross" Suit
----------------------------------------------------------
TD AMERITRADE Holding Corp. has submitted motions with the U.S.
District Court for the Southern District of New York to dismiss a
purported class action lawsuit captioned Ross v. Reserve
Management Company, Inc. et al., according to the company's Feb.
5, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
In November and December 2008, two purported class action
lawsuits were filed with respect to the Reserve Yield Plus Fund.
The lawsuits are captioned:
-- Ross v. Reserve Management Company, Inc. et al.,
Case No. 08-cv-_____ (S.D.N.Y.); and
-- Hamilton v. TD Ameritrade, Inc. et al.,
Case No. 08-cv-_____ (N.D. Ga.).
The plaintiff in the Hamilton case dismissed his complaint
without prejudice on March 2, 2009.
The Ross lawsuit is on behalf of persons who purchased shares of
Reserve Yield Plus Fund. The complaint names as defendants a
number of entities and individuals related to The Reserve. The
company is also named as a defendant.
On Nov. 20, 2009, the plaintiffs filed a first amended complaint
naming as defendants the Fund's advisor, certain of its
affiliates and the company and certain of its directors, officers
and shareholders as alleged control persons.
The complaint alleges claims of violations of the federal
securities laws and other claims based on allegations that false
and misleading statements and omissions were made in the Reserve
Yield Plus Fund prospectus and in other statements regarding the
Fund.
The complaint seeks an unspecified amount of compensatory damages
including interest, attorneys' fees, rescission, exemplary
damages and equitable relief.
On Jan. 19, 2010, the defendants submitted motions to dismiss the
complaint.
TD AMERITRADE Holding Corp. -- http://www.amtd.com/-- is engaged
in providing securities brokerage services and technology-based
financial services to retail investors and business partners,
predominantly through the Internet, a
national branch network and relationships with independent
registered investment advisors. The company offers touch-tone
trading, trading over the Internet, unlimited, streaming, free
real-time quotes, extended trading hour, direct access and
commitment on the speed of execution to its customers. As of
Jan. 24, 2006, the company acquired the U.S. brokerage business
of TD Waterhouse Group, Inc.. The client offerings include TD
AMERITRADE, TD AMERITRADE Institutional, TD AMERITRADE Izone,
Amerivest, TDAX Independence ETFs and TD AMERITRADE Corporate
Services. The products available to the clients include common
and preferred stock, exchange-traded funds, option trades, mutual
funds, fixed income, margin lending and cash management services.
TOYOTA MOTOR: Agrees to Settle Reese-Levering Violations Suit
-------------------------------------------------------------
As the result of a January 2010 mediation, the parties in a
consolidated class-action suit against Toyota Motor Credit Corp.
have agreed to settle matter, according to the company's Feb. 5,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Dec. 31, 2009.
Initially two separate lawsuits were filed. The first lawsuit,
"Garcia v. Toyota Motor Credit Corporation," is a cross-
complaint, alleging a class action, filed on January 2007 in the
Superior Court of California Stanilaus County. It claims that
the company's post-repossession notice failed to comply with the
Reese-Levering Automobile Sales Finance Act of California.
The second cross-complaint was filed in the Superior Court of
California San Francisco County, alleging a class action. The
suit, "Aquilar and Smith v. Toyota Motor Credit Corporation," was
filed in February 2008 and contains similar allegations
claiming that the company's post-repossession notices failed to
comply with Reese-Levering.
The plaintiffs in the Aguilar matter are seeking injunctive
relief, restitution and disgorgement, as well as damages.
The company has filed a petition to consolidate these cases as
they present nearly identical questions of law and fact. The
cases have been consolidated in Stanislaus County as they present
nearly identical questions of law and fact.
A complaint alleging a class action in the Superior Court of
California San Diego County, "McNess v. Toyota Motor Credit
Corporation," filed in September 2008, contains similar
allegations claiming that the company's post-repossession notice
failed to comply with Reese-Levering.
An additional complaint alleging a class-action suit in the
Superior Court of California, Los Angeles County, "Smith v.
Toyota Motor Credit Corporation," filed in December 2008, also
contains similar allegations claiming that the Company's post
repossession notice failed to comply with Reese-Levering.
The plaintiffs in the McNess and Smith cases are seeking
injunctive relief and restitution.
The McNess and Smith cases were consolidated with the Garcia
Cases in November 2008 and January 2009, respectively, as they
present nearly identical questions of law and fact.
A First Amended Cross-Complaint and Complaint was subsequently
filed in the Superior Court of California Stanislaus County in
February 2009.
As the result of a mediation in January 2010, the parties agreed
to settle all of the foregoing matters. The proposed settlement,
for which the company has adequately reserved, is subject to
final court approval.
Toyota Motor Credit Corp. -- http://www.toyotafinancial.com/--
provides a range of finance and insurance products to authorized
Toyota and Lexus vehicle dealers and, to a lesser extent, other
domestic and import franchise dealers and their customers in the
U.S. and Puerto Rico. It also provides finance products to
commercial and industrial equipment dealers (industrial equipment
dealers) and their customers. TMCC provides a range of finance
products, including retail financing, leasing, and dealer
financing to vehicle and industrial equipment dealers and their
customers. It also provides marketing, underwriting, and claims
administration related to covering certain risks of vehicle
dealers and their customers. TMCC also provide coverage and
related administrative services to its affiliates. The company
is wholly owned by Toyota Financial Services Americas Corp.
UGI CORP: Unit Continues to Face 2 Suits by The Swigers in W.Va.
----------------------------------------------------------------
UGI Corp.'s subsidiary, AmeriGas Propane, L.P., faces two
purported class action lawsuits filed by Samuel and Brenda Swiger
and their son in West Virginia.
The Swigers sustained personal injuries and property damage as a
result of a fire that occurred when propane that leaked from an
underground line ignited.
In July 1998, the Swigers filed a class action lawsuit against
AmeriGas Propane, L.P. (named incorrectly as "UGI/AmeriGas,
Inc."), in the Circuit Court of Monongalia County, West Virginia,
in which they sought to recover an unspecified amount
of compensatory and punitive damages and attorney's fees, for
themselves and on behalf of persons in West Virginia for whom
the defendants had installed propane gas lines, resulting from
the defendants' alleged failure to install underground propane
lines at depths required by applicable safety standards.
In 2003, AmeriGas OLP settled the individual personal injury and
property damage claims of the Swigers.
In 2004, the court granted the plaintiffs' motion to include
customers acquired from Columbia Propane in August 2001 as
additional potential class members and the plaintiffs amended
their complaint to name additional parties pursuant to such
ruling.
Subsequently, in March 2005, AmeriGas OLP filed a crossclaim
against CEG, former owner of Columbia Propane, seeking
indemnification for conduct undertaken by Columbia Propane prior
to AmeriGas OLP's acquisition. Class counsel has indicated that
the class is seeking compensatory damages in excess of $12
million plus punitive damages, civil penalties and attorneys'
fees.
In 2005, the Swigers filed what purports to be a class action in
the Circuit Court of Harrison County, West Virginia against UGI,
an insurance subsidiary of UGI, certain officers of UGI and the
General Partner, and their insurance carriers and insurance
adjusters.
In the Harrison County lawsuit, the Swigers are seeking
compensatory and punitive damages on behalf of the putative
class for violations of the West Virginia Insurance Unfair Trade
Practice Act, negligence, intentional misconduct, and civil
conspiracy.
The Swigers have also requested that the Court rule that
insurance coverage exists under the policies issued by the
defendant insurance companies for damages sustained by the
members of the class in the Monongalia County lawsuit.
The Circuit Court of Harrison County has not certified the class
in the Harrison County lawsuit at this time and, in October
2008, stayed that lawsuit pending resolution of the class action
lawsuit in Monongalia County.
No further updates were reported in the company's Feb. 5, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Dec. 31, 2009.
UGI Corp. -- http://www.ugicorp.com/-- is a holding company,
which through its subsidiaries and joint venture affiliates,
distributes and markets energy products and related services.
The company is a domestic and international retail distributor of
propane and butane; a provider of natural gas and electric
service through regulated local distribution utilities; a
generator of electricity; a regional marketer of energy
commodities; and a regional provider of heating, ventilation, air
conditioning, refrigeration and electrical contracting services.
The segments of the company include AmeriGas Propane,
International Propane, Gas Utility, Electric Utility and Energy
Services. The company conducts the international liquefied
petroleum gas (LPG) distribution business in Europe through its
wholly owned subsidiaries, Antargaz and Flaga.
UGI CORP: Units Continue to Face Suits Over Propane Cylinders
-------------------------------------------------------------
Various subsidiaries of UGI Corp. continues to defend lawsuits
over its portable propane grill cylinders, according to the
company's Feb. 5, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Dec. 31, 2009.
On May 27, 2009, AmeriGas Propane, Inc., was named as a defendant
in a purported class action lawsuit in the Superior Court of the
State of California in which plaintiffs are challenging AmeriGas
Propane, L.P.'s weight disclosure with regard to its portable
propane grill cylinders. The complaint purports to be brought on
behalf of a class of all consumers in the state of California
during the four years prior to the date of the California
complaint, who exchanged an empty cylinder and were provided with
what is alleged to be only a partially-filled cylinder. The
plaintiffs seek restitution, injunctive relief, interest, costs,
attorneys' fees and other appropriate relief.
Since that initial suit, various AmeriGas entities have been
named in more than a dozen similar suits that have been filed in
various courts throughout the United States. These complaints
purport to be brought on behalf of nationwide classes, which are
loosely defined as including all purchasers of liquefied propane
gas cylinders marketed or sold by AmeriGas OLP and another
unaffiliated entity nationwide.
The complaints claim that defendants' conduct constituted unfair
and deceptive practices that injured consumers and violated the
consumer protection statutes of at least thirty-seven states and
the District of Columbia, thereby entitling the class to damages,
restitution, disgorgement, injunctive relief, costs and
attorneys' fees. Some of the complaints also allege violation of
state "slack filling" laws.
Additionally, the complaints allege that defendants were unjustly
enriched by their conduct and they seek restitution of any unjust
benefits received, punitive or treble damages, and pre-judgment
and post-judgment interest.
A motion to consolidate the purported class action lawsuits was
heard by the Multidistrict Litigation Panel on Sept. 24, 2009 in
the U.S. District Court for the District of Kansas.
By Order, dated Oct. 6, 2009, the MDL Panel transferred the
pending cases to the U.S. District Court for the Western District
of Missouri.
UGI Corp. -- http://www.ugicorp.com/-- is a holding company,
which through its subsidiaries and joint venture affiliates,
distributes and markets energy products and related services.
The company is a domestic and international retail distributor of
propane and butane; a provider of natural gas and electric
service through regulated local distribution utilities; a
generator of electricity; a regional marketer of energy
commodities; and a regional provider of heating, ventilation, air
conditioning, refrigeration and electrical contracting services.
The segments of the company include AmeriGas Propane,
International Propane, Gas Utility, Electric Utility and Energy
Services. The company conducts the international liquefied
petroleum gas (LPG) distribution business in Europe through its
wholly owned subsidiaries, Antargaz and Flaga.
UNION PACIFIC: Plaintiffs' Appeal on Court Ruling Still Pending
---------------------------------------------------------------
The appeal of the plaintiffs on the decision of the U.S. District
Court for the District of Columbia that they can proceed with
their claim for injunctive relief under the federal antitrust
laws against Union Pacific Corp. remains pending, according to
the company's Feb. 5, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended Dec. 31,
2009.
Twenty small rail shippers, many of whom are represented by the
same law firms, filed virtually identical antitrust lawsuits in
various federal district courts against the company and four
other Class I railroads in the U.S. The original plaintiff filed
the first of these claims in the U.S. District Court in New
Jersey on May 14, 2007, and the additional plaintiffs filed
claims in district courts in various states, including Florida,
Illinois, Alabama, Pennsylvania, and the District of Columbia.
These suits allege that the named railroads engaged in price-
fixing by establishing common fuel surcharges for certain rail
traffic.
The company received additional complaints following the initial
claim, increasing the total number of complaints to 30.
In addition to suits filed by direct purchasers of rail
transportation, a few of the suits involve plaintiffs alleging
that they are or were indirect purchasers of rail transportation
and seek to represent a purported class of indirect purchasers of
rail transportation that paid fuel surcharges.
These complaints have added allegations under state antitrust and
consumer protection laws.
On Nov. 6, 2007, the Judicial Panel on Multidistrict Litigation
ordered that all of the rail fuel surcharge cases be transferred
to Judge Paul Friedman of the U.S. District Court in the District
of Columbia for coordinated or consolidated pretrial proceedings.
Subsequently, the direct purchaser plaintiffs and the indirect
purchaser plaintiffs filed Consolidated Amended Class Action
Complaints against Union Pacific Railroad Company and three other
Class I railroads.
One additional shipper filed a separate anti-trust suit during
2008. Subsequently, the shipper voluntarily dismissed the action
without prejudice.
On Oct. 10, 2008, Judge Friedman heard oral arguments with
respect to the defendant railroads' motions to dismiss. In a
ruling on Nov. 7, 2008, Judge Friedman denied the motion with
respect to the direct purchasers' complaint, and, therefore, that
case has moved into discovery.
On Dec. 31, 2008, Judge Friedman ruled that the allegations of
the indirect purchasers based upon state antitrust, consumer
protection and unjust enrichment laws must be dismissed. He also
ruled, however, that the plaintiffs can proceed with their claim
for injunctive relief under the federal antitrust laws, which is
identical to a claim by the direct purchaser plaintiffs. The
indirect purchasers are appealing Judge Friedman's ruling to the
U.S. Court of Appeals for the District of Columbia.
Union Pacific Corporation -- http://www.up.com/-- is engaged in
the transportation business. The Company's operating company,
Union Pacific Railroad Company (UPRR), links 23 states in the
western two-thirds of the United States. Union Pacific Railroad
Company's business mix includes agricultural products,
automotive, chemicals, energy, industrial products and
intermodal. UPRR has approximately 32,094 route miles, linking
Pacific Coast and Gulf Coast ports with the Midwest and eastern
United States gateways and providing several corridors to Mexican
gateways. The freight traffic consists of bulk, manifest and
premium business. Bulk traffic consists of coal, grain, rock, or
soda ash in unit trains. Manifest traffic is individual carload
or less than train-load business, including commodities, such as
lumber, steel, paper and food. The transportation of finished
vehicles and intermodal containers is part of the premium
business.
WILLIAMS CONTROLS: No Trial Date Yet in Cuesta v. Ford Suit
-----------------------------------------------------------
A trial has yet to be set in the matter, Cuesta v. Ford, et al.,
according to the company's Feb. 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 31, 2009.
On Oct. 1, 2004, the company was named as a co-defendant in a
product liability case styled Cuesta v. Ford, et al., brought in
the Oklahoma State District Court located in Bryant, Oklahoma.
The complaint seeks an unspecified amount of damages on behalf of
the class based on allegations that certain of our products, as
incorporated into certain models of Ford motor vehicles, are in
some way defective.
Following a number of procedural and appellate actions, the court
has certified a class action, but no trial date has yet been set.
Williams Controls, Inc. -- http://www.wmco.com/-- designs,
manufactures and sells electronic throttle and pneumatic control
systems for heavy trucks, transit busses and off-road equipment.
Electronic throttle controls send a signal proportional to
throttle position to adjust the speed of electronically
controlled engines. The company's active subsidiaries include
Williams Controls Industries, Inc. (Williams), Williams (Suzhou)
Controls Co. Ltd. (Williams Controls Asia), Williams Controls
Europe GmbH (Williams Controls Europe) and Williams Controls
India Private Limited (Williams Controls India).
ZILOG INC: Wants Amended "Garcia" Suit in California Dismissed
--------------------------------------------------------------
ZiLOG, Inc., has filed a motion to strike a second amended
complaint and to dismiss the first amended complaint filed
against the company over its planned merger with IXYS Corp.,
according to the company's Feb. 5, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Dec. 26, 2009.
The company and IXYS signed a merger agreement on Dec. 5, 2009
whereby IXYS agreed to acquire the company and its outstanding
shares for $3.5858 per share in cash with a total value of
approximately $62 million, subject to customary closing
conditions.
On Dec. 22, 2009, a plaintiff filed a putative class action
entitled Louise Garcia v. Darin Billerbeck et al., Case No. 1-09-
CV-159955, in the Superior Court of the State of California,
Santa Clara County.
The defendants are ZiLOG, and the members of the company's board
of directors, IXYS, and Merger Sub.
This action alleges that the individual defendants breached their
fiduciary duties to the company's stockholders in connection with
the merger agreement and the transactions contemplated thereby.
Specifically, the complaint alleges, among other things, that the
proposed transaction arises out of a flawed process, that the
individual defendants failed to maximize shareholder value and
that the consideration offered in the merger is inadequate and
does not fairly reflect the company's true value. The plaintiff
also alleges that the individual defendants agreed to no-
solicitation and termination provisions in the merger agreement
in order to prevent any potential suitors from making competing
proposals.
The suit further alleges that the company and the IXYS Defendants
aided and abetted the individual defendants' breaches of
fiduciary duties.
The plaintiff seeks, among other things, an order enjoining the
ZiLOG Defendants and the IXYS Defendants from consummating the
merger, damages in the event the merger is consummated prior to
the court's entry of a final judgment, and attorneys' fees.
On Dec. 30, 2009, the plaintiff in this suit filed a first
amended complaint, repeating the allegations in her original
complaint and adding allegations that the individual defendants
are engaged in self-dealing in connection with the merger because
they will receive accelerated vesting of certain benefits and/or
have change-of-control agreements that will be triggered upon
consummation of the merger. The plaintiff also alleges that the
preliminary proxy statement filed by the company on Schedule 14A
on Dec. 29, 2009 contains misleading disclosures and/or omits
material information.
On Jan. 19, 2010, the defendants removed the action to the U.S.
District Court for the Northern District of California.
On Jan. 27, 2010, the plaintiff filed a second amended complaint,
repeating the allegations of her earlier two complaints and
adding a claim that the individual defendants violated Section
14(a) of the Securities Exchange Act of 1934 and Rule 14a-9
promulgated thereunder by issuing an allegedly misleading
preliminary proxy statement.
On Jan. 28, 2010, the plaintiff filed a purported "ex parte"
application for expedited discovery and for an order shortening
time to be heard on a motion for a preliminary injunction to stop
the shareholder vote on the proposed merger.
On Feb. 1, 2010, the Court advised plaintiff that her application
did not comply with the court's rules and directed plaintiff to
submit her request for relief in the proper form. Later that
day, plaintiff filed a motion for expedited discovery and
proceedings.
Concurrently with the filing of her motion for expedited
discovery and proceedings, plaintiff filed a motion for an order
shortening time. The motion for an order shortening time asks
the Court to hear plaintiff's motion for expedited discovery and
request for a preliminary injunction before the Feb. 17, 2010
vote of shareholders on the proposed merger.
Defendants' responses to plaintiff's motions for an order
shortening time and for expedited discovery and proceedings are
not yet due.
Also on Feb. 1, 2010, the ZiLOG Defendants filed a motion to
strike plaintiff's second amended complaint and to dismiss her
first amended complaint.
ZiLOG, Inc. -- http://www.zilog.com/-- is a fabless
semiconductor supplier of microprocessor and microcontroller
semiconductor products. A microcontroller includes a central
processing unit, non-volatile program memory, random access
memory for data storage and various peripheral capabilities. The
microcontroller is offered as a complete solution because it
incorporates application-specific software provided by the
customer and may include specialized peripheral device
controllers and internal or external non-volatile memory
components to enable the storage and access of additional program
software. The company designs, develops, tests and markets a
portfolio of devices for a variety of applications used in
consumer electronics, home appliances, security systems, point-
of-sale terminals, personal computer peripherals, personal health
and medical products.
ZILOG INC: Delaware Court Dismisses "Reppa" Suit
------------------------------------------------
The Court of Chancery of the State of Delaware has entered an
ordered dismiss a putative class action against ZiLOG, Inc., over
its planned merger with IXYS Corp., according to the company's
Feb. 5, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Dec. 26, 2009.
The company and IXYS signed a merger agreement on Dec. 5, 2009
whereby IXYS agreed to acquire the company and its outstanding
shares for $3.5858 per share in cash with a total value of
approximately $62 million, subject to customary closing
conditions.
On Jan. 4, 2010, a putative class action entitled Mark C. Reppa
v. ZiLOG, Inc. et al., Case No. 5186-VCL was filed in the Court
of Chancery of the State of Delaware against ZiLOG, and the
members of the company's board of directors, IXYS, and Merger
Sub.
This action alleges that the individual defendants breached their
fiduciary duties to the company's stockholders in connection with
the merger. Specifically, the complaint alleges, among other
things, that the proposed transaction arises out of a flawed
process, that the individual defendants failed to maximize
shareholder value and that the consideration offered in the
merger is inadequate and does not fairly reflect the true value
of the company.
The plaintiff also alleges that the individual defendants agreed
to no-solicitation and termination provisions in the merger
agreement and entered into support agreements, pursuant to which
they have agreed to vote in favor of the merger, in order to
prevent any potential suitors from making competing proposals.
The suit further alleges that the company and the IXYS Defendants
aided and abetted the individual defendants' breaches of
fiduciary duties.
The plaintiff seeks, among other things, an order enjoining the
ZiLOG Defendants and the IXYS Defendants from consummating the
merger, damages in the event the merger is consummated prior to
the court's entry of a final judgment, and attorneys' fees.
On Jan. 11, 2010, the ZiLOG Defendants filed a motion for
judgment on the pleadings and a brief in support, seeking to
dismiss this action in its entirety.
On Jan. 21, 2010, the court directed the parties to confer on a
schedule for completion of briefing and hearing on the ZiLOG
Defendants' motion.
On Jan. 27, 2010, the IXYS Defendants filed a notice of motion to
dismiss the action.
Thereafter, plaintiff agreed to voluntarily dismiss the action,
and the parties submitted a stipulation and proposed order
dismissing the action with prejudice to the named plaintiff and
without prejudice to the putative class.
On Feb. 2, the court entered the order dismissing the case.
ZiLOG, Inc. -- http://www.zilog.com/-- is a fabless
semiconductor supplier of microprocessor and microcontroller
semiconductor products. A microcontroller includes a central
processing unit, non-volatile program memory, random access
memory for data storage and various peripheral capabilities. The
microcontroller is offered as a complete solution because it
incorporates application-specific software provided by the
customer and may include specialized peripheral device
controllers and internal or external non-volatile memory
components to enable the storage and access of additional program
software. The company designs, develops, tests and markets a
portfolio of devices for a variety of applications used in
consumer electronics, home appliances, security systems, point-
of-sale terminals, personal computer peripherals, personal health
and medical products.
*********
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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USA. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman,
Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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