/raid1/www/Hosts/bankrupt/CAR_Public/020312.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 12, 2002, Vol. 4, No. 50
Headlines
LOCKE-OBER RESTAURANT: Waiters File Suit Over Tip "Skimming" Practices
MONSANTO COMPANY: Sued On Behalf of Minor Children Exposed To PCBS
MONSANTO COMPANY: Sued For Pollution of Waterways Near Anniston Plant
MONSANTO COMPANY: Environmental Dep't Affirms Court Ruling in PCB Suit
PIONEER NATURAL: Oral Arguments in Satanta Royalty Suit Set For April
TEXAS: Houston Restaurants Sued Over Taxes On Bottled Water, Coffee
WILLIAMS COMPANIES: Ruling on Royalties Suit Dismissal Pending
WILLIAMS ENERGY: Faces Suit for Antitrust Violations In CA Power Rates
Securities Fraud
ADVANCED SWITCHING: Shapiro Haber Lodges Securities Suit in E.D. VA
AT HOME: Brian Felgoise Commences Securities Fraud Suit in S.D. NY
BIOPURE CORPORATION: Schiffrin Barroway Files Securities Suit in MA
COMPUTER ASSOCIATES: Wechsler Harwood Commences Securities Suit in NY
COMPUTER ASSOCIATES: Marc Henzel Initiates Securities Suit in E.D. NY
CORNELL COMPANIES: Levy Levy Commences Securities Suit in S.D. Texas
CORNELL COMPANIES: Cauley Geller Commences Securities Suit in S.D. TX
CORNELL COMPANIES: Charles Piven Commences Securities Suit in S.D. TX
CORNELL COMPANIES: Schiffrin Barroway Files Securities Suit in S.D. TX
CORNING INC.: No Word on Summary Judgment Ruling as Discovery Continues
CORNING INC.: Stull Stull Commences Securities Suit in W.D. New York
ELAN CORPORATION: Harvey Greenfield Commences Securities Suit in NY
ELAN CORPORATION: Stull Stull Initiates Securities Suit in S.D. NY
ELAN CORPORATION: Pomerantz Haudek Commences Securities Suit in S.D. NY
ELAN CORPORATION: Berman DeValerio Commences Securities Suit in S.D. NY
ELAN CORPORATION: Finkelstein Thompson Lodges Securities Suit in NY
ELAN CORPORATION: Lovell Stewart Commences Securities Suit in S.D. NY
ENGAGE INC.: Plaintiffs Denied Hearing, Expedited Discovery in DE
HUB GROUP: Brian Felgoise Commences Securities Suit in N.D. Illinois
JP MORGAN: Weiss Yourman Commences Securities Fraud Suit in S.D. NY
JP MORGAN: Stull Stull Commences Securities Fraud Suit in S.D. New York
JUNIPER NETWORKS: Schiffrin Barroway Commences Securities Suit in CA
KMART CORPORATION: Wechsler Harwood Lodges Securities Suit in E.D. MI
KMART CORPORATION: Ademi O'Reilly Initiates Securities Suit in E.D. MI
MEDI-HUT CO.: Abbey Gardy Commences Securities Fraud Suit in New Jersey
NATIONAL GOLF: Schiffrin Barroway Commences Securities Suit in C.D. CA
NEWPOWER HOLDINGS: Schiffrin Barroway Lodges Securities Suit in S.D. NY
PNC FINANCIAL: Berman DeValerio Initiates Securities Suit in W.D. PA
REDBACK NETWORKS: NY District Court Dismisses Securities Fraud Suit
WILLIAMS COMPANIES: Sued For Securities Act Violations in N.D. Oklahoma
WILLIAMS COMPANIES: Berman DeValerio Lodges Securities Suit in N.D. OK
*********
LOCKE-OBER RESTAURANT: Waiters File Suit Over Tip "Skimming" Practices
----------------------------------------------------------------------
Waiters at Boston's Locke-Ober restaurant filed a class action against
the restaurant, alleging it violated state laws by "skimming" tips.
Tips left in cash or on credit cards are pooled and divided among
servers, bartenders, busboys, food runners, and some managers, whose
cut can run as high as 25% percent, Associated Press reports.
Samantha Smith, one of the restaurants former employees, told AP, "It's
the industry's dirty little secret." The restaurant allegedly made its
waitstaff kick back a portion of its tips to management. Staff and
servers who complained about the practice were also reportedly fired.
Skimming allows restaurant owners to pay managers less because the tips
make up the difference, said Dan Field, an Assistant State Attorney
General in an AP interview. However, Peter Christie, President of the
Massachusetts Restaurant Association, conceded there were "gray areas"
on who is part of the waitstaff, but dismissed the complaining servers
as "probably just disgruntled former employees."
MONSANTO COMPANY: Sued On Behalf of Minor Children Exposed To PCBS
------------------------------------------------------------------
Monsanto Company and its spin-off company, Solutia, Inc., faces a class
action filed in the United States District Court for the Northern
District of Alabama on behalf of a total of 1,116 plaintiffs, who
claimed to be "minor children or persons under the age of twenty-one
years" who resided in "poor areas" near the Anniston plant.
The plaintiffs allege they were exposed to polychlorinated biphenyls
(PCBs) and suffer from unspecified physical injuries and emotional
distress, and seek compensatory and punitive damages in unspecified
amounts and request medical testing, monitoring and treatment, as well
as unspecified injunctive relief.
On January 28, 2002, plaintiffs filed an amended complaint that added
approximately 14,000 plaintiffs, bringing the total number of
plaintiffs in this case to approximately 15,000. Approximately 2,000 of
the 14,000 newly-added plaintiffs were previously plaintiffs in a case
filed against both Companies in United States District Court for the
Northern District of Mississippi in July 2001. That action was
voluntarily dismissed in December 2001.
The plaintiffs in the dismissed Mississippi action claimed to be
parents or other relatives of the 1,116 plaintiffs in the action in the
Northern District of Alabama.
The Company believes that there are meritorious defenses to all these
matters, including lack of any physical injury or property damage to
plaintiffs, lack of any imminent or substantial endangerment to
health or the environment and lack of negligence or improper conduct
on the part of both companies. The Company is vigorously defending
these actions.
MONSANTO COMPANY: Sued For Pollution of Waterways Near Anniston Plant
---------------------------------------------------------------------
Monsanto Company faces several class actions in various Alabama State
Courts over the pollution of waterways near the Anniston plant. The
Company has settled two of the cases, while another is still pending.
The first two suits were filed in the Circuit Court for Talladega
County, Alabama, and in Circuit Court for St. Clair County, Alabama, on
behalf of 107 plaintiffs who are owners of property along waterways
near the Anniston plant. The plaintiffs alleged fear of toxic
contamination, mental and emotional distress, increased risk of disease
and fear of cancer as well as diminished value of their properties. In
November 2001, an agreement to settle these cases was reached.
Another suit is pending in the Circuit Court in Shelby County, Alabama
on behalf of property owners farther downstream along waterways near
the plant. The plaintiffs seek compensatory and punitive damages in an
unspecified amount for an alleged increased risk of physical injury or
illness, emotional distress caused by fear of future injury or illness,
medical monitoring and diminishment in the value of their properties
and their riparian rights.
On October 5, 1999, the Court granted the Company's motion for summary
judgment, holding that plaintiffs had, in an action not involving
Monsanto or Solutia, recovered for the damages they claim in this
action. In addition, the Court found that plaintiffs' claims were
barred by the statute of limitations. Plaintiffs timely filed their
appeal with the Alabama Supreme Court.
On May 4, 2001, the Alabama Supreme Court issued an opinion affirming
in part and reversing in part the order the trial Court. The Alabama
Supreme Court held that summary judgment was properly granted with
respect to claims relating to the period up to the date of settlement
of the previous action. However, the Alabama Supreme Court held that
plaintiffs were permitted to maintain the claims relating to the period
from the settlement of the prior action until the filing of the instant
action.
The Company believes it has meritorious defenses to the pending suit
and will continue to defend against it vigorously.
MONSANTO COMPANY: Environmental Dep't Affirms Court Ruling in PCB Suit
----------------------------------------------------------------------
The Alabama Department of Environmental Management supported an Alabama
State court's decision finding Monsanto Company and its spin-off,
Solutia, Inc. liable of negligence and suppression in a class action
over polychlorinated biphenyls (PCB) exposure due to their Anniston,
Alabama plant.
The suit arose from fifteen different cases commenced in the Circuit
Court in Calhoun County, Alabama and in the United States District
Court for the Northern District of Alabama on behalf of:
(1) 3,536 individuals who own or rent homes, own or operate
businesses, attend churches, or who have otherwise resided or
visited in neighborhoods near the Anniston plant; and
(2) four commercial entities which own property near the Anniston
plant or have conducted business on and near property owned by
the plant.
(3) one of the cases pending in Circuit Court in Calhoun County
was brought on behalf of all Alabama residents who have been
exposed to PCBs or other materials allegedly released from the
Anniston plant.
The individual plaintiffs claim to have suffered permanent adverse
health effects and fear future disease. They assert the need for
medical monitoring, diminution in the value of their properties in the
case of residential and commercial property owners and commercial
losses in the case of business owners.
Because of significant pretrial publicity in Calhoun County, venue in
four of these cases, brought on behalf of 3,501 plaintiffs, has been
transferred to circuit court in Etowah County, Alabama. These cases,
sometimes referred to as Abernathy vs. Monsanto or Bowie vs. Monsanto,
have been consolidated for trial. Because of the number of plaintiffs
in the consolidated action, trial is proceeding in phases.
Sixteen individual plaintiffs and one business entity were selected by
plaintiffs to participate in a "Phase I" trial, which began with jury
selection on January 7, 2002. On February 22, 2002, the jury returned a
verdict finding defendants liable on six legal theories:
(i) negligence,
(ii) wantonness,
(iii) suppression,
(iv) nuisance,
(v) trespass and
(vi) outrage
The Company anticipates that the issue of compensatory damages for the
seventeen Phase I plaintiffs will be submitted to the jury on March 5,
2002, and that the jury's verdict will be sealed.
On February 25, 2002, the Court asked the jury to determine whether the
circumstances in Anniston constitute a public nuisance. The jury
answered that question affirmatively. The day after, the Attorney
General of Alabama and the district attorneys of Calhoun, Shelby, St.
Clair and Talladega Counties filed a motion to intervene in this case.
The Attorney General and the District Attorneys are seeking an order
directing defendants to fund an investigation of the extent of the
impact of PCBs in those counties, and setting a schedule and procedures
for a cleanup.
On February 28, 2002, the Alabama Department of Environmental
Management intervened in this action, to assure that decisions reached
by the Court have a sound scientific basis. Venue in two additional
cases brought of behalf of four plaintiffs in Calhoun County has been
transferred to Circuit Court in Jefferson County, Alabama. Venue in one
additional action brought on behalf of two plaintiffs in Calhoun County
has been transferred to Circuit Court in Dekalb County, Alabama.
PIONEER NATURAL: Oral Arguments in Satanta Royalty Suit Set For April
---------------------------------------------------------------------
Pioneer Natural Resources, Inc. faces a class action filed in 1993 in
The 26th Judicial District Court of Stevens County, Kansas by two
classes of royalty owners, one for each of the Company's gathering
systems connected to its Satanta gas plant. The suit remained inactive
for seven years until it was amended in 2000.
The amended suit has two material claims:
(1) the expenses related to the field compression are a "cost of
production" for which plaintiffs cannot be charged their
proportionate share under the applicable oil and gas leases;
and
(2) the plaintiffs claim they are entitled to 100% of the value of
the helium extracted at the Company's Satanta gas plant.
If the plaintiffs prevail on the above two claims in their entirety, it
is possible that the Company's liability could reach $25 million, plus
prejudgment interest. However, the Company believes it has valid
defenses to the claims, has paid the plaintiffs properly under their
respective oil and gas leases, and intends to vigorously defend itself.
Additionally, the Company believes the cost of the field compression is
not a "cost of production," but is rather an expense of transporting
the gas to its Satanta gas plant for processing, where valuable
hydrocarbon liquids and helium are extracted from the gas. The
plaintiffs benefit from such extractions and the Company believes that
charging the plaintiffs with their proportionate share of such
transportation and processing expenses is consistent with Kansas law.
The Company has also vigorously defended against plaintiffs' claims to
100 percent of the value of the helium extracted, and believes that in
accordance with applicable law, it has properly accounted to the
plaintiffs for their fractional royalty share of the helium under the
specified royalty clauses of the respective oil and gas leases.
The factual evidence in the case was presented to the Court without a
jury in December 2001. No judgment or findings have been entered, and
the Court has set the matter for oral arguments in April 2002.
Judgment could be entered anytime after April 2002.
The Company strongly denies the existence of any material underpayment
to plaintiffs and believes it presented strong evidence at trial to
support its positions. The Company has not yet determined the amount of
damages, if any, that would be payable if the lawsuit was determined
adversely to the Company. However, the amount of any resulting
liability could have a material adverse effect on the Company's results
of operations for the period in which such liability is recorded, but
the Company does not expect that any such liability will have a
material adverse effect on its consolidated financial position as a
whole or on its liquidity, capital resources or future results of
operations.
TEXAS: Houston Restaurants Sued Over Taxes On Bottled Water, Coffee
-------------------------------------------------------------------
Several Houston restaurants faces a class action filed by a Houston
taxpayer, challenging its practice of collecting sales tax from bottled
water and coffee sales when state law exempts these items from sales
tax. The suit names as defendants:
(1) Starbucks Corporation,
(2) Outback Steakhouse,
(3) Pappas Restaurants,
(4) Olive Garden,
(5) Saltgrass Steakhouse,
(6) Boston Market Corporation,
(7) Cafe Express and
(8) James Coney Island
The suit accuses these restaurants of unjust enrichment, fraud and
unfair business practices. Attorneys for the plaintiff Michael
Weinberg and Scott Scheinthal, told Hotel Online the state tax code
chapter 151.314 and 151.315 exempts water and raw coffee products such
as coffee beans from sales tax. "This is the kind of mass repetitive
wrong the class-action vehicle is designed to correct," Mr. Weinberg
said. However, he acknowledged that the exemption may be an "obscure
law."
State Comptroller spokeswoman, Sheila Clancy, told Hotel Online that
the tax code exempts bottled water and raw coffee products from sales
tax, 8.25 percent in Houston. "If the restaurants are mistakenly
charging taxes and pay the tax amounts to the State, that's an honest
mistake," she said. "But if they're charging sales tax and keeping the
money, that's tax fraud."
Outback Vice President, Joe Kadow, told Hotel Online it was the first
time he heard of the suit, and promised that he will look into it.
".If there is a sales tax being charged, it's being forwarded to the
State.The Outback would not be cheating our customers," he added.
WILLIAMS COMPANIES: Ruling on Royalties Suit Dismissal Pending
---------------------------------------------------------------
Fourteen Williams Companies, Inc. subsidiaries were named as defendants
in a nationwide class action commenced in June 2001 alleging several
pipeline and gathering companies engaged in mismeasurement techniques
that distort the heating content of natural gas, resulting in an
alleged underpayment of royalties to the class of producer plaintiffs.
In September 2001, the plaintiffs voluntarily dismissed two of the
14 Company entities. In November 2001, the Company, along with other
coordinating defendants, filed a motion to dismiss under Rules 9b and
12b of the Kansas Rules of Civil Procedure.
In January 2002, most of the Williams defendants, along with a group of
coordinating defendants, filed a motion to dismiss for lack of personal
jurisdiction. The Court has not yet ruled on these motions. In the next
several months, the Williams entities will join with other defendants
in contesting certification of the plaintiff class.
WILLIAMS ENERGY: Faces Suit for Antitrust Violations In CA Power Rates
----------------------------------------------------------------------
Williams Energy Marketing and Trading Company, a Williams Companies
subsidiary, faces a consolidated class action in the San Diego County
Superior Court in California, on behalf of San Diego ratepayers against
California power generators and traders
The suit arose from several class actions filed in November 2000
through May 2001, concerning the increase in power prices in California
during the summer of 2000 through the winter of 2000 to 2001. The suits
claim that the defendants acted to manipulate prices in violation of
the California antitrust and business practice statutes and other state
and federal laws.
Numerous other state and federal investigations regarding California
power prices are also underway involving the Company. However, the
Company is confident that the pending litigation will not have a
material effect on its operations or financial position.
Securities Fraud
ADVANCED SWITCHING: Shapiro Haber Lodges Securities Suit in E.D. VA
-------------------------------------------------------------------
Shapiro Haber and Urmy filed a securities class action in the United
States District Court for the Eastern District of Virginia against
Advanced Switching Communications, Inc. (NASDAQ:ASCX), certain of its
officers and directors, and underwriters of its initial public
offering, on behalf of all persons who purchased the Company's common
stock in, or traceable to, its IPO on October 5, 2000.
The suit alleges that the defendants violated Sections 11, 12(2), and
15 of the Securities Act of 1933 by issuing false and misleading
statements and omitting material facts concerning problems with certain
of its products and customers in the Company's registration statement
and prospectus in connection with its IPO.
The suit charges that the prospectus failed to disclose, among other
things, that:
(i) AccessLan was not planning to purchase any new products from
the Company;
(ii) Broadband Office was having serious problems with the
Company's A-1240 products and would need them replaced;
(iii) the true value of its contract with Qwest was not $24 million
as represented; and
(iv) Urban Media was on the verge of bankruptcy
For more information, contact Ted Hess-Mahan or Liz Hutton by Mail: 75
State Street, Boston, MA 02109 by Phone: 800-287-8119 by Fax:
617-439-0134 or by E-mail: cases@shulaw.com.
AT HOME: Brian Felgoise Commences Securities Fraud Suit in S.D. NY
------------------------------------------------------------------
The Law Offices of Brian M. Felgoise, PC initiated a securities class
action on behalf of shareholders who acquired At Home Corporation
(OTCBB:ATHMQ) securities between April 17, 2001 and August 28, 2001,
inclusive, in the United States District Court for the Southern
District of New York, against the Company and certain key officers and
directors.
The suit charges that defendants violated the federal securities laws
by issuing a series of materially false and misleading statements to
the market throughout the class period which statements had the effect
of artificially inflating the market price of the Company's securities.
For more information, contact Brian M. Felgoise by Mail: 230 South
Broad Street, Suite 404, Philadelphia, Pennsylvania, 19102 by Phone:
215-735-6810 or by E-mail: BrianFLaw@yahoo.com
BIOPURE CORPORATION: Schiffrin Barroway Files Securities Suit in MA
-------------------------------------------------------------------
Schiffrin & Barroway, LLP initiated a securities class action in the
United States District Court for the District of Massachusetts on
behalf of all purchasers of the common stock of Biopure Corporation
(Nasdaq:BPUR) from May 8, 2001 through December 6, 2001, inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statements concerning its business
and financial condition. The suit alleges that the Company, a leading
developer, manufacturer and marketer of a new class of pharmaceuticals
it calls "oxygen therapeutics," and the Company's Chairman and Chief
Executive Officer, violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 by issuing materially false and misleading
statements concerning the likely timing of the Company's filing with
the US Food and Drug Administration (FDA) of its Biologic License
Application (BLA) to market Hemopure, the Company's experimental blood
substitute for patients undergoing elective surgery. In particular,
defendants led investors to believe that the BLA was on track to be
filed by year-end 2001.
As alleged in the suit, these statements were materially false and
misleading because, by commencement of the class period, defendants
knew or recklessly ignored the fact that the data collected from the
Hemopure trial (which had been completed in August 2000) was
significantly deficient and failed to demonstrate that the trial had
been conducted in an "adequate and well-controlled" manner.
As such, plaintiff asserts that the data lacked reliability, thereby
making any application unlikely to be accepted for filing, much less
approved, by the FDA. It is further alleged that defendants also knew
that the FDA would not allow a BLA to be filed where the data lacked
"prima facie" reliability.
On December 6, 2001, the Company announced that it would not file the
Hemopure application until mid-2002, contrary to repeated prior
assertions that the BLA would be filed in 2001. Biopure blamed the
delay on "additional facility and process validation requirements" for
its Cambridge, Massachusetts manufacturing plant.
The suit contends that this was merely a pretext for the delay, which
in fact was occasioned by the data deficiencies that had arisen during
the clinical trial. As a result of the postponement, the price of
Company stock fell to less than $15 per share, well below the $20
plateau above which the stock traded throughout most of the class
period.
For more details, contact Marc A. Topaz or Stuart L. Berman by Phone:
888-299-7706 (toll free) or 610-667-7706 or by E-mail:
info@sbclasslaw.com
COMPUTER ASSOCIATES: Wechsler Harwood Commences Securities Suit in NY
---------------------------------------------------------------------
Wechsler Harwood Halebian & Feffer LLP initiated a securities class
action in the United States District Court for the Eastern District of
New York on behalf of purchasers of Computer Associates, Inc. (NYSE:CA)
securities between May 28, 1999, and February 25, 2002.
The suit alleges that defendants violated sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, by issuing materially false and misleading statements to
the market.
Specifically, beginning prior to May 1999, CAI falsely indicated that
it had penetrated the distributed systems market when, in fact, it was
giving away its distributed system software for free, or at nominal
additional cost, to customers who were also extending mainframe
software licenses, and attributed large portions of the resulting
revenue to the non-mainframe products.
Also, beginning prior to May, 1999, and ending in October, 2000, when
the Company extended a license during its term, it recognized revenue
for the entire new license. Until June, 2000, when the Company began
using new auditors, it did not "back out" the revenue from the
unexpired portion of the old license, double-counting this revenue.
After June 2000, the Company began backing out this figure in an
obscure line item - but never disclosed that this caused revenue to be
overstated by more than one hundred million dollars each quarter prior
June, 2000.
In order to hide a severe drop in revenue as measured by generally
accepted accounting principles (GAAP), defendants announced a "new
business model," which they represented involved offering more flexible
licensing terms to customers.
However, the "new business model" was allegedly a cover to institute
new, non-GAAP compliant accounting, which the CAI called "pro forma,
pro rata", and to obscure the fact that the switch from long-term
licenses to flexible subscriptions was not a pro-active move, but a
symptom of the obsolescence of the Company's main product line.
While the stated goal of the "new business model" was to provide
customers more flexible terms, the real purpose was to cover up the
fact that the Company could no longer get many of their mainframe
customers to purchase the long-term mainframe software licenses which
have been its mainstay. After the announcement of the "new business
model" in October 2000, the Company issued press releases heralding
moderate growth, though the GAAP figures showed a revenue decrease of
nearly sixty percent.
The "pro forma, pro rata" method counted revenue from old license sales
in current and future periods, using old revenues to buttress the
current, deteriorating sales. Defendants attempted to have their cake
and eat it, too: in a strong economy, the Company recognized all the
revenue from its sales immediately, even double-counting some revenue,
showing impressive numbers. In a sagging economy, they obscured the
real loss of sales by changing to a method of accounting so back-loaded
that it does not conform to GAAP.
The "pro forma, pro rata" method also did not make the distinctions
between product and service revenue required by GAAP, obscuring the
distinction and further hiding the deterioration in sales.
The Company has continued to report its GAAP figures, as it is required
by the Securities and Exchange Commission to do. Incredibly, defendants
have falsely stated that the GAAP figures are not reflective of the
Company's financial position, and that the "pro forma, pro rata"
figures do accurately reflect the Company's financial position.
CAI's true condition, however, is shown by the conduct of defendants
during the class period. After announcing the "new business model" but
before reporting under it for the first time, and contrary to the
Company's representations that the rosy picture created by the "pro
forma, pro rata" figures was an accurate portrayal of the Company's
position, the defendants engineered a clandestine, firm-wide layoff,
hiding the terminations as individual performance-based firings. They
fired possibly as many as a thousand employees with no severance
package, and continue to deny that the firings were a layoff, even
though executives involved in the layoff confirmed it to the New York
Times, as reported on March 20, 2001.
More recently, the Company was forced to withdraw a planned debt
offering after Moody's questioned the quality of the Company's credit.
As a result, it admits, it was forced to draw down $600 million on one
credit line to pay another.
The desperate cost-cutting by secret layoff, use of its new
unrecognized accounting just when its revenue dropped sharply, and the
use of credit lines to service existing debt, demonstrate defendants
are keenly aware of the precarious financial condition of the Company,
and have deliberately misled the investing public.
The misleading picture CAI has presented has not gone unquestioned. On
February 22, 2002, the Company confirmed it was aware that both the SEC
and FBI were investigating the Company's accounting for civil, and in
the case of the FBI, criminal violations. News of the criminal and
civil probes, which began to surface on February 20, caused investors
to flee the stock, which fell from a February 19 closing price of
$25.31 to a February 22 close of $15.99, a drop of 36.8%.
For further details, contact Patricia Gutieau by Mail: 488 Madison
Avenue, New York, New York 10022, toll free 877-935-7400, or by E-mail:
pguiteau@whhf.com.
COMPUTER ASSOCIATES: Marc Henzel Initiates Securities Suit in E.D. NY
---------------------------------------------------------------------
The Law Offices of Marc S. Henzel commenced a securities class action
in the United States District Court for the Eastern District of New
York on behalf of purchasers of Computer Associates International, Inc.
(NYSE: CA) securities between May 28, 1999, and February 25, 2002.
The suit alleges that defendants violated sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, by issuing materially false and misleading statements to
the market.
Specifically, beginning prior to May 1999, CAI falsely indicated that
it had penetrated the distributed systems market when, in fact, it was
giving away its distributed system software for free, or at nominal
additional cost, to customers who were also extending mainframe
software licenses, and attributed large portions of the resulting
revenue to the non-mainframe products.
Also, beginning prior to May, 1999, and ending in October, 2000, when
the Company extended a license during its term, it recognized revenue
for the entire new license. Until June, 2000, when the Company began
using new auditors, it did not "back out" the revenue from the
unexpired portion of the old license, double-counting this revenue.
After June 2000, the Company began backing out this figure in an
obscure line item, but never disclosed that this caused revenue to be
overstated by more than one hundred million dollars each quarter prior
June, 2000.
Defendants in order to hide a severe drop in revenue as measured by
generally accepted accounting principles (GAAP), announced a "new
business model," which they represented involved offering more flexible
licensing terms to customers. Allegedly, however, the "new business
model" was a cover to institute new, non-GAAP compliant accounting,
which CAI called "pro forma, pro rata", and to obscure the fact that
the switch from long-term licenses to flexible subscriptions was not a
pro-active move, but a symptom of the obsolescence of its main product
line.
While the stated goal of the "new business model" was to provide
customers more flexible terms, allegedly the real purpose was to cover
up the fact that the Company could no longer get many of their
mainframe customers to purchase the long-term licenses of mainframe
software which was its mainstay. After the announcement of the "new
business model" in October 2000, the Company issued press releases
heralding moderate growth, though the GAAP figures showed a revenue
decrease of nearly 60 percent.
The "pro forma, pro rata" method counted revenue from old license sales
in current and future periods, using old revenues to buttress the
current, deteriorating sales. Defendants have attempted to have their
cake and eat it, too: in a strong economy, CAI recognized all the
revenue from its sales immediately, even double-counting some revenue,
showing impressive numbers. Now, in a sagging economy, they have
obscured the real loss of sales by changing to a method of accounting
so back-loaded that it does not conform to GAAP. The "pro forma, pro
rata" method also did not make the distinctions between product and
service revenue required by GAAP, obscuring the distinction and further
hiding the deterioration in sales.
The Company has continued to report its GAAP figures, as it is required
by the Securities and Exchange Commission to do. Incredibly, defendants
have falsely stated that the GAAP figures are not reflective of the
Company's financial position, and that the "pro forma, pro rata"
figures do accurately reflect the Company's financial position.
The Company's true condition, however, is shown by the conduct of
defendants during the class period. After announcing the "new business
model" but before reporting under it for the first time, and contrary
to its representations that the rosy picture created by the "pro forma,
pro rata" figures was an accurate portrayal of the Company's position,
the defendants engineered a clandestine, firm-wide layoff, hiding the
terminations as individual performance-based firings. They fired
possibly as many as a thousand employees with no severance package, and
continue to deny that the firings were a layoff, even though executives
involved in the layoff have confirmed it to the New York Times (as
reported on March 20, 2001).
More recently, CAI was forced to withdraw a planned debt offering after
Moody's questioned the quality of the Company's credit. As a result,
the Company admits, it was forced to draw down $600 million on one
credit line to pay another.
The desperate cost-cutting by secret layoff, use of its new
unrecognized accounting just when its revenue has dropped sharply, and
the use of credit lines to service existing debt, demonstrate that
defendants are keenly aware of the precarious financial condition of
the Company, and have deliberately mislead the investing public.
The misleading picture the Company has presented has not gone
unquestioned. On February 22, 2002, the Company confirmed that it was
aware that both the Securities Exchange Commission and the Federal
Bureau of Investigation were investigating the Company's accounting for
civil, and in the case of the FBI, criminal violations.
News of the criminal and civil probes, which began to surface on
February 20, caused investors to flee the stock, which fell from a
February 19 closing price of $25.31 to a February 22 close of $15.99, a
drop of 36.8%.
For more details, contact Marc S. Henzel by Mail: 273 Montgomery Ave.,
Suite 202 Bala Cynwyd, PA 19004-2808 by Phone: 888-643-6735 or
610-660-8000 by Fax: 610-660-8080 by E-mail: Mhenzel182@aol.com or
visit the firm's Web site: http://members.aol.com/mhenzel182.
CORNELL COMPANIES: Levy Levy Commences Securities Suit in S.D. Texas
--------------------------------------------------------------------
Levy and Levy PC initiated a securities class action in the United
States District Court for the Southern District of Texas on behalf of
purchasers of Cornell Companies, Inc. (NYSE: CRN) common stock during
the period between March 6, 2001 and March 5, 2002.
The suit charges the Company and certain of its officers and directors
with violations of the Securities Exchange Act of 1934. The suit
alleges that during the class period, defendants issued favorable but
false financial statements and made false and misleading statements
about the Company's business.
As a result of these false statements, Cornell Cos.' stock traded as
high as $18.40. Defendants took advantage of this artificial inflation,
selling 3.4 million shares of Company stock for proceeds of over $48
million in a November 2001 secondary offering.
On February 6, 2002, Bloomberg ran an article on the Company which
stated in part, "Cornell Cos., which operates 69 prisons in 13 states
and the District of Columbia, said it will review the accounting of an
August real estate transaction involving 11 properties. Its shares fell
as much as 63 percent. The company received a letter Thursday from
auditor Arthur Andersen LLP that raised concern about the transaction,
said Larry Stein of FRB Weber Shandwick, a firm that handles public
relations for Cornell. The Andersen review was part of a year-end
audit." Upon these disclosures, Company stock dropped to as low as
$6.50 before closing at $9.96 on February 6, 2002, some 45% below the
class period high of $18.40.
On March 6, 2002, the Company issued a press release entitled, "Cornell
Companies Inc. to Restate Its Financials for Year Ended December 31,
2000 and Subsequent Quarters." On this news, the Company's shares
plummeted once again by more than 10%.
For more information, contact Stephen G. Levy by Mail: One Stamford
Plaza, 263 Tresser Blvd., 9th Floor, Stamford, CT 06901 by Phone:
866-338-3674 (toll free) or 203-564-1920 or by E-mail: LLNYCT@aol.com
CORNELL COMPANIES: Cauley Geller Commences Securities Suit in S.D. TX
---------------------------------------------------------------------
Cauley Geller Bowman & Coates, LLP initiated a securities class action
in the United States District Court for the Southern District of Texas
on behalf of purchasers of Cornell Companies, Inc. (NYSE:CRN) common
stock during the period between March 6, 2001 and March 5, 2002,
inclusive.
The suit charges the Company and certain of its officers and directors
with violations of the Securities Exchange Act of 1934, and alleges
that during the class period, defendants issued favorable but false
financial statements and made false and misleading statements about the
Cornell Cos.' business.
As a result of these false statements, the Company's stock traded as
high as $18.40. Defendants took advantage of this artificial inflation,
selling 3.4 million shares of Company stock for proceeds of over $48
million in a November 2001 secondary offering.
On February 6, 2002, Bloomberg ran an article on the Company which
stated in part, "Cornell Cos., which operates 69 prisons in 13 states
and the District of Columbia, said it will review the accounting of an
August real estate transaction involving 11 properties. Its shares fell
as much as 63 percent. The company received a letter Thursday from
auditor Arthur Andersen LLP that raised concern about the transaction,
said Larry Stein of FRB Weber Shandwick, a firm that handles public
relations for Cornell. The Andersen review was part of a year-end
audit." Upon these disclosures, Company stock dropped to as low as
$6.50 before closing at $9.96 on February 6, 2002, some 45% below the
class period high of $18.40.
On March 6, 2002, the Company issued a press release entitled, "Cornell
Companies Inc. to Restate Financials for Year Ended December 31, 2000
and Subsequent Quarters." On this news, the Company's shares plummeted
once again by more than 10%.
For more information, contact Jackie Addison, Sue Null or Shelly
Nicholson by Mail: P.O. Box 25438 Little Rock, AR 72221-5438 by Phone:
888-551-9944 by E-mail: info@classlawyer.com
CORNELL COMPANIES: Charles Piven Commences Securities Suit in S.D. TX
---------------------------------------------------------------------
The Law Offices Of Charles J. Piven, PA initiated a securities class
action on behalf of shareholders who acquired Cornell Companies, Inc.
(NYSE:CRN) securities between March 6, 2001 and March 5, 2002,
inclusive, in the United States District Court for the Southern
District of Texas, against the Company and certain of its officers
and/or directors.
The suit charges that defendants violated the federal securities laws
by issuing a series of materially false and misleading statements to
the market throughout the class period which statements had the effect
of artificially inflating the market price of the Company's securities.
For more details, contact Charles J. Piven by Mail: The World Trade
Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore,
Maryland 21202 by E-mail: hoffman@pivenlaw.com or by Phone:
410-332-0030.
CORNELL COMPANIES: Schiffrin Barroway Files Securities Suit in S.D. TX
----------------------------------------------------------------------
Schiffrin & Barroway, LLP lodged a securities class action in the
United States District Court for the Southern District of Texas on
behalf of all purchasers of the common stock of Cornell Companies, Inc.
(NYSE:CRN) common stock during the period between March 6, 2001 and
March 5, 2002, inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statements concerning its business
and financial condition. Specifically, the complaint alleges that as a
result of these false statements, the Company's stock traded as high as
$18.40. Defendants took advantage of this artificial inflation, selling
3.4 million shares of Company stock for proceeds of over $48 million in
a November 2001 secondary offering.
On February 6, 2002, Bloomberg ran an article on the Company which
stated in part, "Cornell Cos., which operates 69 prisons in 13 states
and the District of Columbia, said it will review the accounting of an
August real estate transaction involving 11 properties. Its shares fell
as much as 63 percent. The company received a letter Thursday from
auditor Arthur Andersen LLP that raised concern about the transaction,
said Larry Stein of FRB Weber Shandwick, a firm that handles public
relations for Cornell. The Andersen review was part of a year-end
audit." Upon these disclosures, Company stock dropped to as low as
$6.50 before closing at $9.96 on February 6, 2002, some 45% below the
class period high of $18.40.
On March 6, 2002, the Company issued a press release entitled, "Cornell
Companies Inc. to Restate Its Financials for Year Ended December 31,
2000 and Subsequent Quarters." On this news, the Company's shares
plummeted once again by more than 10%.
For more information, contact Marc A. Topaz or Stuart L. Berman by
Phone: 888-299-7706 (toll free) or 610-822-2221 or by E-mail:
info@sbclasslaw.com
CORNING INC.: No Word on Summary Judgment Ruling as Discovery Continues
-----------------------------------------------------------------------
Discovery is proceeding in the securities class action pending against
Corning, Inc. in the US District Court for the Southern District of New
York. The suit was filed on behalf of purchasers of the Company's
stock who allege misrepresentations and omissions of material facts
relative to the silicone gel breast implant business conducted by Dow
Corning.
The suit was originally filed against the Company and several of its
officers on behalf of purchasers of the Company's stock from June 14,
1989 to January 13, 1992, who allegedly purchased at inflated prices
due to the non-disclosure or concealment of material information and
were damaged when the Company's stock price declined in January 1992
after the Food and Drug Administration (FDA) requested a moratorium on
Dow Corning's sale of silicone gel implants.
In 1997, the Court dismissed the individual defendants from the case.
In December 1998, the Company filed a motion for summary judgment
requesting that all claims against it be dismissed. Plaintiffs
requested the opportunity to take depositions before responding to the
motion for summary judgment.
The Court has set no schedule to address the still-pending summary
judgment motion. The Company intends to continue to defend this action
vigorously. Based upon the information developed to date and
recognizing that the outcome of litigation is uncertain, management
believes that the likelihood of a materially adverse verdict is remote.
CORNING INC.: Stull Stull Commences Securities Suit in W.D. New York
--------------------------------------------------------------------
Stull Stull and Brody initiated a securities class action in the United
States District Court for the Western District of New York, against
Corning, Inc. (NYSE:GLW) on behalf of purchasers of the Company's
securities between September 27, 2000 and July 10, 2001, inclusive,
against the Company and:
(1) Roger G. Ackerman,
(2) Katherine A. Asbeck,
(3) James B. Flaws
The complaint asserts claims against the defendants for violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC
Rule 10b-5 promulgated thereunder. The complaint alleges that
defendants issued false and misleading statements, which artificially
inflated the stock.
For more information, contact Tzivia Brody by Mail: 6 East, 45th
Street, New York NY 10017 by Phone: 800-337-4983 by Fax: 212-490-2022
or by E-mail: SSBNY@aol.com
ELAN CORPORATION: Harvey Greenfield Commences Securities Suit in NY
-------------------------------------------------------------------
The Law Firm of Harvey Greenfield initiated a securities class action
on behalf of purchasers of the securities of Elan Corporatin PLC.
(NYSE: ELN) between April 23, 2001 and February 8, 2002, inclusive.
The suit is pending in the United States District Court, Southern
District of New York against the Company and:
(1) Donald J. Geaney, Chairman and CEO,
(2) Shane M. Cooke, Executive Vice Chairman, and
(3) Thomas G. Lynch, Executive Vice President and CFO
The suit alleges violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.
The complaint alleges that the Company materially overstated revenues
by nearly 40% through the creation and manipulation of joint ventures.
According to the suit, the Company invested monies into these joint
ventures which then used the proceeds to fund purchases from the
Company, which it then reported as revenues. The price of Company
stock was artificially inflated as a result of these sham revenues.
For further details, contact Harvey Greenfield by Mail: 60 East 42nd
Street, Suite 2001, New York, NY, 10165 by Phone: 212-949-5500 by Fax:
212-949-0049 or by E-mail: harvey.greenfield@verizon.net.
ELAN CORPORATION: Stull Stull Initiates Securities Suit in S.D. NY
------------------------------------------------------------------
Stull Stull and Brody commenced a securities class action in the United
States District Court for the Southern District of New York, against
Elan Corporation, PLC (NYSE:ELN) on behalf of purchasers of Elan
securities between April 30, 1999 and February 1, 2002, inclusive.
The suit charges the Company and certain of its officers and directors
with violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and SEC Rule 10b-5 promulgated thereunder. The complaint
alleges, among other things, that defendants issued a series of false
and misleading statements regarding the Company's financial condition.
The suit alleges that as part of their effort to boost the price of
Elan securities, defendants materially overstated the Company's
revenues by creating entities that were essentially controlled by the
Company for research and development. The Company immediately took
back its investment in the form of a license fee, which it recorded as
revenue. In some instances the joint ventures had no money left for the
development of drugs and the Company ended up lending money to the
entity.
After the market closed on January 29, 2002, The Wall Street Journal
described the Company's accounting as a "charade" and quoted a former
SEC accountant as stating that it is like "taking money out of one
pocket and putting it in another." On February 1, 2002, the Company
announced that earnings for the fourth quarter 2001 would drop 84% and
that its profits for fiscal year 2001 would fall well short of
estimates. On this news, Company ADRs fell $15.10 per share from $29.95
per share to $14.85 per share, a loss of more than 50% of their value
in a single day.
For more information, contact Tzivia Brody by Mail: 6 East 45th Street,
New York NY 10017 by Phone: 800-337-4983 by Fax: 212-490-2022 or by E-
mail: SSBNY@aol.com
ELAN CORPORATION: Pomerantz Haudek Commences Securities Suit in S.D. NY
-----------------------------------------------------------------------
Pomerantz Haudek Block Grossman and Gross LLP initiated a securities
class action against Elan Corporation PLC (NYSE:ELN), on behalf of all
persons or entities who purchased the Company's American Depository
Shares (ADRs) during the period between April 23, 2001 through February
4, 2002, inclusive. The suit is pending in the United States District
Court, Southern District of New York.
The suit charges that the Company and three of its senior officials
issued materially false and misleading statements to the market
concerning its revenues and earnings prospects. In particular, it is
alleged that during the class period, defendants improperly reported
favorable financial results for the Company, which were artificially
inflated.
The Company allegedly manipulated its results by improperly accounting
for joint ventures that it entered into with other companies, the
primary purpose of which was to create the appearance of income growth
for the Company. Elan invested in these joint ventures, which then used
the proceeds to fund purchases from the Company, which it then reported
as revenues.
In an article published in the Wall Street Journal on January 30, 2002,
former Securities and Exchange Commission Chief Accountant Lynn Turner
reportedly questioned the propriety of the Company's accounting
practices. Following this article, the price of Company ADRs fell from
$35.20 to $29.25.
Thereafter, on February 4, 2002, the Company shocked the market by
issuing a press release, which detailed its 2001 financial results and
effectively acknowledged its misleading accounting for "off-balance
sheet arrangements." The press release stated that the Company had two
QSPEs, which it had not consolidated in its financial results as
presented under generally accepted accounting principles (GAAP).
The Company further revealed that if these QSPEs had been consolidated,
2001 profit under GAAP would have been $211.4 million, or $0.59 per
share, instead of the reported $347.7 million, or $0.94 per share as
was originally reported. Furthermore, if these QSPEs were included,
Elan's total debt would have been almost $3 billion, approximately $1
billion more than originally reported.
As a result of this news, Company ADRs fell, closing at $14.85 a share,
a total decline of over 50% from the pre-revelation price.
For more information, contact Andrew G. Tolan by Phone: 888-476-6529 or
888-4-POMLAW) by E-mail: agtolan@pomlaw.com or visit the firm's Web
site: http://www.pomerantzlaw.com. Those who inquire by e-mail are
encouraged to include their mailing address and telephone number.
ELAN CORPORATION: Berman DeValerio Commences Securities Suit in S.D. NY
-----------------------------------------------------------------------
Berman DeValerio Pease Tabacco Burt and Pucillo initiated a securities
class action against Elan Corporation, PLC (NYSE: ELN), after the
Company used dozens of joint ventures to hide research-and-development
costs and overstate its revenues. The suit is pending in the US
District Court for the Northern District of Georgia, on behalf of all
investors who bought Elan American Depository Receipts (ADRs) from
April 23, 2001 through January 29, 2002
The complaint charges Elan, an Irish pharmaceutical company, and its
three top officers, with issuing a series of false and misleading
statements to the investing public. These news releases and financial
statements, contrary to what the Company said, failed to comply with
generally accepted accounting principles (GAAP).
Specifically, the lawsuit accuses the Company of using more than 50
sham joint ventures to keep research-and-development costs off its
books, pump up earnings and artificially inflate its stock price.
According to the complaint, the Company actually funded these purported
joint ventures itself then signed licensing deals that, in effect, paid
itself money that it then booked as revenue. In addition, Elan listed
its "investments" in the joint ventures as balance-sheet assets, the
complaint says.
News of the Company's accounting practices sent its stock reeling.
After The Wall Street Journal published an article exposing the ploys
on January 30, 2002, the price of ADRs fell 16%, from $35.20 the
previous day to $29.95. When Elan announced a few days later that its
earnings for the fourth quarter of 2001 would drop 84%, its ADRs fell a
whopping $15.10 per share, a 50% decline in a single day of trading.
On February 7, 2002, the Company revealed it is under investigation by
the U.S. Securities and Exchange Commission.
For more information, contact Chauncey D. Steele IV by Mail: One
Liberty Square, Boston, MA 02109 by Phone: 800-516-9926 by E-mail:
law@bermanesq.com or visit the firm's Website:
http://www.bermanesq.com.
ELAN CORPORATION: Finkelstein Thompson Lodges Securities Suit in NY
-------------------------------------------------------------------
Finkelstein, Thompson & Loughran filed a securities fraud class action
lawsuit in the United States District Court for the Southern District
of New York, on behalf of purchasers of Elan Corporation, PLC (NYSE:
ELN) securities between December 21, 2000 and February 1, 2002,
inclusive, against the Company and certain of its officers and
directors.
The suit charges defendants with violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder. The suit alleges that throughout the class period
defendants knowingly or recklessly disseminated materially false and
misleading statements regarding the Company's financial condition,
causing the price of Company securities to be artificially inflated.
For further details, contact Conor R. Crowley by Phone: 866-592-1960 or
202-337-8000 or by E-mail: crc@ftllaw.com
ELAN CORPORATION: Lovell Stewart Commences Securities Suit in S.D. NY
---------------------------------------------------------------------
Lovell & Stewart, LLP initiated a securities class action on behalf of
all persons who purchased or otherwise acquired the common stock of
Elan Corporation (NYSE:ELN), between April 23, 2001 and March 7, 2002,
in the United States District Court for the Southern District of New
York.
The suit alleges that defendants violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, by issuing a series of material misrepresentations to the
market during the class period, thereby artificially inflating the
price of the Company's common stock.
The complaint alleges that the Company's representations were rendered
false and misleading by:
(1) concealing expenses through joint ventures,
(2) recognizing income from companies in which the Company had
invested (round-trip revenue), and
(3) concealing material related-party transactions.
As a result of these material misrepresentations and omissions, Company
stock traded as high as $65.00 per share during the class period.
The complaint further alleges that to overstate the Company's net
income and EPS during the class period, the individual defendants and
the Company caused the Company to violate GAAP and SEC rules by
recording revenue from transactions with investors and by failing to
disclose material related-party transactions. The Company's results
were inflated by its manipulation of joint ventures, including with
Incara Pharmaceuticals in the 1st Quarter 2001 and with Generex
Biotechnology in the 2nd Quarter 2001.
The Company's 3rd Quarter 2001 results included $47.5 million in
revenues from selling an asset (a drug called Permax) to a company
(Amarin) of which it owned 43%. Between April 2001 and March 2002,
Company stock fell by more than 40 percent.
For more information, contact Christopher Lovell or Victor E. Stewart
by Phone: 212-608-1900 or by E-mail: sklovell@aol.com
ENGAGE INC.: Plaintiffs Denied Hearing, Expedited Discovery in DE
------------------------------------------------------------------
Engage, Inc. faces a class action filed on February 26, 2002, against
the Company, CMGI, Inc. and each member of its Board of Directors who
is nominated for election at the annual meeting of the Company's
stockholders.
The suit alleges that CMGI, as the Company's majority stockholder, has
unfairly manipulated the Company to enter into transactions that
unfairly favor CMGI and that CMGI and the Company's Board of Directors
have breached their fiduciary duties to the Company and its minority
stockholders by:
(1) approving and entering into the secured convertible notes that
the Company issued to CMGI in October 2001 on terms that were
"grossly unfair" to the Company and the minority stockholders,
(2) approving and recommending to the Company's stockholders the
approval of the proposal in the proxy statement relating to
the issuance of the Company's Common Stock in connection with
conversion of the Notes and
(3) approving and recommending to the Company's stockholders the
approval of the proposals in the proxy statement relating to a
potential reverse stock split of the Company's common stock in
order to avoid delisting of the Company's common stock from
Nasdaq.
The suit also alleges that the disclosure in the proxy statement with
respect to the above proposals was materially misleading and
incomplete.
The Company and CMGI both believe there is no merit to the complaint.
On February 28, 2002, the Delaware Court of Chancery denied a request
by the plaintiffs for a preliminary injunction hearing and denied a
request to allow expedited discovery in the lawsuit prior to the annual
stockholders meeting.
HUB GROUP: Brian Felgoise Commences Securities Suit in N.D. Illinois
--------------------------------------------------------------------
The Law Offices of Brian M. Felgoise, PC initiated a securities class
action on behalf of shareholders who acquired Hub Group, Inc.
(Nasdaq:HUBGE) securities between April 21, 1999 and February 12, 2002,
inclusive, in the United States District Court for the Northern
District of Illinois, Eastern Division, against the Company and certain
key officers and directors.
The suit charges that defendants violated the federal securities laws
by issuing a series of materially false and misleading statements to
the market throughout the class period which statements had the effect
of artificially inflating the market price of the Company's securities.
For further details, contact Brian M. Felgoise by Mail: 230 South Broad
Street, Suite 404, Philadelphia, Pennsylvania, 19102 by Phone:
215-735-6810 or by E-mail: BrianFLaw@yahoo.com
JP MORGAN: Weiss Yourman Commences Securities Fraud Suit in S.D. NY
-------------------------------------------------------------------
Weiss and Yourman initiated a securities class action in the United
States District Court for the Southern District of New York on behalf
of:
(1) purchasers of Chase Manhattan Bank USA (NYSE:CMB) securities
between March 1, 2000 and December 31, 2000,
(2) Chase shareholders who converted their Chase shares into
shares of JP Morgan Chase & Co. (NYSE:JPM) in connection with
the merger of the companies, and/or
(3) purchasers of JP Morgan securities between December 31, 2000
and February 1, 2002.
The suit names as defendants the Company and William B. Harrison, Jr.
The suit charges the defendants with violations of the Securities
Exchange Act of 1934. The complaint alleges that defendants issued
false and misleading statements, which artificially inflated the stock.
For further details, contact James E. Tullman, Jack I. Zwick and/or
David C. Katz by Mail: The French Building, 551 Fifth Avenue, Suite
1600, New York NY 10176 by Phone: 888-593-4771 or 212-682-3025 or by E-
mail: info@wynyc.com
JP MORGAN: Stull Stull Commences Securities Fraud Suit in S.D. New York
-----------------------------------------------------------------------
Stull Stull and Brody initiated a securities class action in the United
States District Court for the Southern District of New York, on behalf
of all persons and entities who purchased, converted, exchanged or
otherwise acquired the securities of Chase Manhattan Bank USA during
the period March 1, 2000 through December 31, 2000 and on behalf of all
persons and entities who purchased, converted, exchanged, or otherwise
acquired the securities of JP Morgan Chase & Co. (NYSE:JPM) during the
period December 31, 2000 and February 1, 2002. Chase merged into JP
Morgan, Inc. on December 31, 2000 to become JP Morgan Chase & Co. Chase
shareholders exchanged Chase shares for shares in the new entity JP
Morgan Chase & Co.
The complaint asserts claims against the Company and its president
William B. Harrison, Jr. under of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and SEC Rule 10b-5 promulgated
thereunder.
The suit alleges that defendants violated the federal securities laws
by failing to disclose material risks of the Company's business in its
filings with the Securities and Exchange Commission and its press
releases during the class period.
Specifically, the Company's business involved making commodities loans,
derivative loans, and other transactions that were designed to be "off
the books" financing of its borrowers. These creative transactions
were, in essence, loan transactions but were dressed up as other types
of transactions as part of a fraudulent scheme to disguise loans as
assets and to obtain surety bonds guaranteeing payment in violation of
governing New York law. These transactions subjected the Company to
large credit risks, large risks of refusal to make repayment or to
insure performance, and even large risks of liability to the debtor and
third parties.
All of these risks were material to the Company and rendered false and
misleading the positive statements and risk disclosures that it made
during the class period. On November 21, 2001, the Company issued a
public statement to the effect that its total exposure to Enron
Corporation was approximately $900 million.
However, this figure failed to include the Company's true exposure to
Enron because it omitted to include its exposure to Enron resulting
from its systematic practices alleged above. Only later in the class
period did the Company claim that its total Enron-related exposure risk
was approximately $2.6 billion due to the risks from the practices
alleged above.
As a result of even the partial disclosure by the Company of one
portion of its undisclosed risks previously alleged, Company stock
price has fallen by 40% and federal examiners are now assessing the
true extent of the Company's undisclosed risks to see whether the 2.86
times increase in its originally understated exposure to Enron
resembles the amount of its understated exposure to the other companies
to which it has made loans disguised as commodity or derivative
transactions.
For further details, contact Tzivia Brody by Mail: 6 East 45th Street,
New York, NY 10017 by Phone: 800-337-4983 by Fax: 212-490-2022 or by E-
mail: SSBNY@aol.com
JUNIPER NETWORKS: Schiffrin Barroway Commences Securities Suit in CA
--------------------------------------------------------------------
Schiffrin & Barroway, LLP initiated a securities class action in the US
District Court for the Northern District of California, against Juniper
Networks, Inc. (Nasdaq:JNPR), alleging it misled shareholders about its
business and financial condition.
The suit alleges violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 on behalf of all investors who bought
the Company's securities between April 12, 2001 through June 7, 2001.
The suit charges the Company and certain of its officers and directors
with violations of the Securities Exchange Act of 1934. Specifically,
the complaint alleges that during the class period, defendants stated
that the Company was on track to have 2nd Quarter 2001 revenues of
$330+ million and earnings per share (EPS) of $0.25, and that deferred
revenue (i.e., revenue not yet recognized because customers had not yet
accepted products) had declined because customer acceptance cycles were
shorter than in the past.
Defendants also represented Juniper was on track to report 2001 EPS of
$0.90-$1.00, pro forma, causing its stock to trade as high as $69.50.
Defendants took advantage of this inflation selling 747,463 shares, for
proceeds of $42.9 million.
Then, on June 8, 2001, the Company disclosed that its 2nd Quarter 2001
revenues would be much lower than previously represented and earnings
would be less than half of prior estimates. Defendants also admitted
that customer acceptance cycles were in fact much longer than in the
past, stretching from days to months. One analyst noted that the
Company's announcement was matched in "severity by its tardiness."
On this news, Company shares dropped to $38.02, or more than 46% lower
than the class period high of $69.50. Ultimately, the Company reported
a loss for 2001 and pro forma EPS of just $0.50, half what defendants
represented, and its stock has declined to $13.
For further details, contact Marc A. Topaz or Stuart L. Berman by
Phone: 888-299-7706 (toll free) or 610-667-7706 or by E-mail:
info@sbclasslaw.com
KMART CORPORATION: Wechsler Harwood Lodges Securities Suit in E.D. MI
---------------------------------------------------------------------
Wechsler Harwood Halebian & Feffer LLP initiated a securities class
action in the United States District Court for the for the Eastern
District of Michigan on behalf of all purchasers of the common stock of
Kmart Corporation (NYSE:KM) from May 17, 2001 through January 22, 2002,
inclusive.
The suit alleges that defendant violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, by issuing a series of material misrepresentations to the
market between May 17, 2001 and January 22, 2002, thereby artificially
inflating the price of Company securities.
Prior to and throughout the class period, as alleged in the complaint,
Kmart and one of its officers represented that it was engaged in a
comprehensive restructuring of its operations, which was revitalizing
the Company and its sales. The suit alleges that these representations
were materially false and misleading because they failed to disclose
and misrepresented these adverse material facts:
(1) that the Company's purported revitalization was a complete
failure as it was continuing to lose market share to
competitors and its purported efforts to reverse this trend
were not meeting with success;
(2) that the Company's supply chain management was extremely
problematic as its distribution centers were outdated and
inefficient and its supply chain software was plagued by bugs
and glitches, which were causing the Company to experience
inventory problems. As a result of these supply chain
management issues, the Company was experiencing difficulties
routing inventory to stores, thereby negatively impacting its
sales; and
(3) that the Company was experiencing substantial liquidity
problems which would necessitate a major restructuring of its
operations and possibly a bankruptcy filing, which ultimately
happened.
On January 22, 2002, Kmart issued a press release announcing that it
had filed a voluntary petition for reorganization under Chapter 11 of
the US Bankruptcy Code. According to the press release, the Company's
decision to seek "judicial reorganization" was based on a "combination
of factors, including a rapid decline in its liquidity resulting from
Kmart's below-plan sales and earnings performance in the fourth
quarter."
Following this announcement, the price of Company common stock dropped
from $1.74 per share to $0.70 per share, a one-day decline of 59%, on
extremely heavy trading volume.
For more information, contact Patricia Gutieau by Mail: 488 Madison
Avenue, 8th Floor New York, New York 10022 by Phone: 877-935-7400 or by
E-mail: pguiteau@whhf.com
KMART CORPORATION: Ademi O'Reilly Initiates Securities Suit in E.D. MI
----------------------------------------------------------------------
Ademi & O'Reilly, LLP commenced a securities class action on behalf of
purchasers of the securities of Kmart Corporation (NYSE:KM) between May
17, 2001 and January 25, 2002, inclusive, in the United States District
Court, Eastern District of Michigan against defendant Charles Conaway.
The suit alleges that defendant violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, by issuing a series of material misrepresentations to the
market between May 17, 2001 and January 25, 2002, thereby artificially
inflating the price of Kmart securities.
Prior to and throughout the class period, as alleged in the complaint,
the Company and Mr. Conaway represented that the Company was engaged in
a comprehensive restructuring of its operations which were revitalizing
the Company and its sales. The complaint alleges that these
representations were materially false and misleading because they
failed to disclose and misrepresented:
(1) that the Company's purported revitalization was a complete
failure as it was continuing to lose market share to
competitors and its purported efforts to reverse this trend
were not meeting with success;
(2) that the Company's supply chain management was extremely
problematic as its distribution centers were outdated and
inefficient and its supply chain software was plagued by bugs
and glitches, which were causing it to experience inventory
problems. As a result of these supply chain management issues,
the Company was experiencing difficulties routing inventory to
stores, thereby negatively impacting the Company's sales; and
(3) that the Company was experiencing substantial liquidity
problems which would necessitate a major restructuring of its
operations and possibly a bankruptcy filing, which ultimately
happened.
For more details, contact Robert O'Reilly by Phone: 866-264-3995 or by
E-mail: Kmart@AdemiLaw.com
MEDI-HUT CO.: Abbey Gardy Commences Securities Fraud Suit in New Jersey
-----------------------------------------------------------------------
Abbey Gardy, LLP initiated a securities class action against Medi-Hut
Co. (Nasdaq:MHUT) and certain of its officers and directors in the
United States District Court for the District of New Jersey, on behalf
of all persons or entities who purchased the Company's common stock
during the period from April 4, 2000 through February 4, 2002.
The complaint seeks damages for violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder. The defendants are the Company and:
(1) Joseph A. Sanpietro, President and Chief Executive Officer,
(2) Laurence M. Simon, Chief Financial Officer,
(3) Robert Russo, Treasurer,
(4) Vincent Sanpietro, Secretary,
(5) James G. Aaron, director, and
(6) James S. Vacarro, director
The suit alleges that defendants knowingly and recklessly disseminated
materially false and misleading statements and omissions that
misrepresented the Company's business, operations and financial
performance. The suit alleges among other things that the Company
misled the investing public by failing to disclose that a Medi-Hut Vice
President, Lawrence Marasco had a controlling interest in Larval
Corporation, the Company's largest customer. During fiscal year 2001,
sales to Larval accounted for 62% of the Company's revenues.
Because Mr. Marasco had a controlling interest in one of the Company's
customers, generally accepted accounting principles (GAAP) dictate that
the Company identify sales to that customer as related party
transactions. The Company, however, failed to disclose the true nature
of its sales to Larval.
The complaint further alleges that as a result of the
misrepresentations and omissions by Medi-Hut, its stock traded at
artificially inflated prices throughout the class period.
On February 4, 2002, the nature of the relationship between the
Company, Mr. Marasco and Larval Corp. was revealed to the market. The
investing public, recognizing that a majority of the Company's revenues
in fiscal year 2001 were generated via sales to a related party,
reacted swiftly and severely. By the close of business on February 4,
shares of the Company had lost 51% of their value, falling $3.41 per
share to $3.29 in unusually heavy trading. Four days later, Grant
Thornton LLP resigned its position as the Company's independent
auditor.
For more details, contact Nancy Kaboolian or Jennifer Haas by Phone:
800-889-3701 or by E-mail: JHaas@abbeygardy.com or
Nkaboolian@abbeygardy.com
NATIONAL GOLF: Schiffrin Barroway Commences Securities Suit in C.D. CA
----------------------------------------------------------------------
Schiffrin and Barroway LLP initiated a securities class action against
National Golf Properties, Inc. (NYSE:TEE) claiming that the Company
misled investors about its business and financial condition, in the US
District Court for the Central District of California. The suit seeks
damages for violations of federal securities laws on behalf of all
investors who bought the Company's securities between April 1, 1999
through November 14, 2001, including all purchases in or pursuant to
the Company's May 17, 2001 secondary offering.
The suit charges National Golf and certain of its officers and
directors with issuing false and misleading statements concerning its
business and financial condition. The complaint alleges that David G.
Price misappropriated funds from a publicly traded company and funneled
them to himself via a scheme of complicated financial dealings
involving the Company and a variety of Price-controlled entities.
Price-controlled entities conduct substantial business with the
Company, to the detriment of its shareholders. Mr. Price's plan
culminated in a May 2001 secondary offering that generated over $31
million from plaintiff and other class members, which went to a Price-
controlled entity, Oaks Christian High School.
Defendants allegedly violated the Securities Act of 1933 by issuing a
false and misleading registration statement and prospectus, which
became effective May 17, 2001, and included materially false and
misleading financial statements, and other false and misleading
statements, pursuant to which 1.175 million shares of National Golf
common stock were sold to the plaintiff and other members of the class.
Defendants allegedly violated the Securities Exchange Act of 1934 by
making a series of materially false and misleading statements
concerning the business and financial operations of the Company with
the intent and having the effect of substantially inflating the trading
price of its common stock.
For more information, contact the Shareholder Relations Manager by
Phone: 888-299-7706 (toll free) or 610-822-2221 by E-mail:
info@sbclasslaw.com or visit the firm's Web site:
http://www.sbclasslaw.com
NEWPOWER HOLDINGS: Schiffrin Barroway Lodges Securities Suit in S.D. NY
-----------------------------------------------------------------------
Schiffrin & Barroway, LLP commenced a securities class action in the
United States District Court for the Southern District of New York on
behalf of all purchasers of the common stock of NewPower Holdings
(NYSE:NPW) during the period between October 5, 2000 and December 5,
2001, inclusive.
The suit charges the Company and certain of its officers and directors
with issuing false and misleading statement concerning its business and
financial condition. Specifically, the suit alleges that the
registration statement and prospectus for the Company's public offering
on October 5, 2000, were false and misleading in several ways,
including misrepresentations and omissions concerning the adequacy of
risk management systems put in place in conjunction with Company
affiliate, Enron Energy Services, Inc. (EES), and the true nature and
purpose of certain related party transactions, including transactions
pursuant to which Enron attempted to hedge its investment in Company
through use of a partnership known as "Raptor III," which was conceived
and designed by Enron CFO, Andrew Fastow.
Claims regarding these misrepresentations and omissions have been
asserted under Section 11 of the Securities Act against the
underwriters of the October 5, 2000 initial public offering and against
those persons who were directors (or about to become directors) of the
Company at the time of that offering, including the Company's top
executives, CEO H. Eugene Lockhart, Chairman Lou L. Pai and CFO William
I. Jacobs.
The complaint alleges in this regard that the Company and certain of
its officers and directors misrepresented or failed to disclose:
(1) that the Company had not adopted effective and appropriate
hedging strategies against volatility of commodity prices;
(2) that the Company was on course to achieve its financial goals
and had sufficient liquidity to do so; and
(3) that certain forward contracts with EES posed little risk of
loss when in truth and in fact they were driving the Company
toward insolvency, and were largely structured to protect and
enrich Enron, the Company's controlling shareholder.
For more information, contact Marc A. Topaz or Stuart L. Berman by
Phone: 888-299-7706 (toll free) or 610-822-2221 by E-mail:
info@sbclasslaw.com or visit the firm's Web site:
http://www.sbclasslaw.com
PNC FINANCIAL: Berman DeValerio Initiates Securities Suit in W.D. PA
--------------------------------------------------------------------
Berman DeValerio Pease Tabacco Burt and Pucillo commenced a securities
class action against the PNC Financial Services Group, Inc. (NYSE:PNC),
two of its top officers and its auditor charging them with using
improper accounting to inflate earnings. The suit is pending in the US
District Court for the Western District of Pennsylvania on behalf of
all investors who bought Company stock from July 19, 2001 through
January 28, 2002.
The suit accuses the Company, a Pittsburgh-based financial services
company, of using improper accounting methods to inflate earnings
reports and subsequently releasing those figures to the public. The
complaint also names two top officers and its auditor, Ernst & Young,
as defendants.
On January 29, 2002, PNC revealed that the Federal Reserve Board had
ordered the company to restate its financial results for the second and
third quarters of 2001 and revise its fourth quarter 2001 numbers.
According to the complaint, the board ordered the restatement because
of the Company's apparent failure to comply with generally accepted
accounting principles during the class period by failing to consolidate
into its financial reports three financial firms in which the Company
had interests.
The suit said the restatements inflated the Company's net income during
the class period by $155 million, or 27%, and reduced the Company's
earnings by that amount for the year ended December 31, 2001. PNC
stock quickly fell 12% the day after it announced the restatement, the
suit added.
For more information, contact Chauncey D. Steele IV by Mail: One
Liberty Square, Boston, MA 02109 by Phone: 800-516-9926 by E-mail:
law@bermanesq.com or visit the firm's Website:
http://www.bermanesq.com.
REDBACK NETWORKS: NY District Court Dismisses Securities Fraud Suit
-------------------------------------------------------------------
The United States District Court for the Southern District of New York
has dismissed, without prejudice, the consolidated securities class
action against Redback Networks, Inc and its former officers.
The complaint alleged violations of Sections 11, 12(a)(2) and 15 of the
Securities Act of 1933 and Section 10(b) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder. In May 1999, the
Company commenced an initial public offering of 2,500,000 of its shares
of common stock at an offering price of $23 per share. In connection
therewith, the Company filed a registration statement, which
incorporated a prospectus with the SEC.
The complaint further alleged that the prospectus was materially false
and misleading because it failed to disclose, among other things, that:
(i) the underwriters had solicited and received excessive and
undisclosed commissions from certain investors in exchange for
which the underwriters allocated to those investors material
portions of the restricted number of shares issued in
connection with the IPO; and
(ii) the underwriters had entered into agreements with customers
whereby the underwriters agreed to allocate shares to those
customers in the IPO in exchange for which the customers
agreed to purchase additional shares in the aftermarket at
pre-determined prices.
WILLIAMS COMPANIES: Sued For Securities Act Violations in N.D. Oklahoma
-----------------------------------------------------------------------
Williams Companies, Inc. faces multiple securities class actions
commenced since January 29, 2002 in the United States District Court
for the Northern District of Oklahoma, alleging that the Company, co-
defendant Williams Communications Group and certain corporate officers,
have acted jointly and separately to inflate the stock price of both
companies.
Other suits allege similar causes of action related to a public
offering in early January 2002, known as the FELINE PACS offering. This
case was filed against the Company, certain corporate officers, all
members of the Company's Board of Directors and all of its
underwriters.
In addition, class action suits have been filed against the Company and
the members of its Board of Directors under the Employee Retirement
Income Security Act by participants in Williams' 401(k) plan, based on
similar allegations.
The Company does not believe that the ultimate resolution of the suits,
taken as a whole and after consideration of amounts accrued, insurance
coverage, recovery from customers or other indemnification
arrangements, will have a materially adverse effect upon the Company's
future financial position, results of operations or cash flow
requirements.
WILLIAMS COMPANIES: Berman DeValerio Lodges Securities Suit in N.D. OK
----------------------------------------------------------------------
Berman DeValerio Pease Tabacco Burt and Pucillo initiated a securities
class action against Williams Companies, Inc. (NYSE:WMB), its top
officers and its underwriters alleges the company withheld information
of significant liabilities during its offering of FELINE PACS. The
suit is pending in the US District Court for the Northern District of
Oklahoma on behalf of investors who bought WMB notes in or traceable to
the Company's January 7, 2002 offering. These notes were convertible
into common stock and known as FELINE PACS (NYSE:WMB). Unlike other
recent class actions filed against WMB, this lawsuit focuses narrowly
on the January 7 offering.
The suit alleges that documents filed by the Company in connection with
its offering failed to adequately disclose more than $2.4 billion in
credit, support and lease obligations that the Company had at the time
of the offering. The complaint also says that those documents
incorporated by reference previous financial filings with the
Securities and Exchange Commission that had not properly accounted for
these obligations.
Specifically, the complaint said that the Company had provided credit
support and lease guarantees for certain debt and obligations of
Williams Communications Group, Inc. (WCG), a former subsidiary spun off
in March 2001. Although the offering documents including the prospectus
and prospectus supplement, disclosed those contingent obligations, they
misleadingly described them as a "risk," when it was clear by the time
of the offering that WCG could not meet its obligations, would default
on its debt and that the Company would be responsible for $2.15
billion, plus $250 million in other expenses omitted from the
prospectus. The Company also failed to account for these obligations
in its earlier financial reports, which were incorporated by reference
into the offering documents, the complaint says.
On January 29, 2002, just three weeks after the offering, the complaint
says, the Company stunned investors by announcing that it was delaying
the release of its fiscal 2001 financial results to account for the
$2.4 billion obligation, which included $250 million in costs that were
not even mentioned in the offering documents. The disclosure devastated
the Company's stock prices and hence the value of its FELINE PACS,
which were tied to the price of that stock.
For more information, contact Steven Morris by Mail: One Liberty
Square, Boston, MA 02109 by Phone: 800-516-9926 by E-mail:
law@bermanesq.com or visit the firm's Website:
http://www.bermanesq.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Trenton, New Jersey, and
Beard Group, Inc., Washington, D.C. Enid Sterling, Aurora Fatima
Antonio and Lyndsey Resnick, Editors.
Copyright 2002. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic re-
mailing and photocopying) is strictly prohibited without prior written
permission of the publishers.
Information contained herein is obtained from sources believed to be
reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via e-mail.
Additional e-mail subscriptions for members of the same firm for the
term of the initial subscription or balance thereof are $25 each. For
subscription information, contact Christopher Beard at 240/629-3300.
* * * End of Transmission * * *