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C L A S S A C T I O N R E P O R T E R
Wednesday, November 27, 2002, Vol. 4, No. 235
Headlines
AIRSPAN NETWORKS: NY Court Dismisses Officers From Securities Lawsuit
ARCH CHEMICALS: Faces Lawsuits Over Manufacture of CCA-Treated Products
AUDIBLE INC.: NY Court Dismisses Current, Former Officers From Lawsuit
COCA-COLA COMPANY: Files Motion For Reconsideration of GA Court Ruling
COLORADO: Police Group Seeks Temporary Halt To Race Discrimination Suit
DIGITAS INC.: Court Dismisses Officers, Directors From Securities Suit
DUPONT COMPANY: EPA Gears Up To Study Allegedly Hazardous Chemical C8
EIFS LITIGATION: 48 Denver Area Homeowners File Suit Over Finish Work
FORD MOTOR: Dallas City Attorney Threatens Lawsuit Over Crown Victorias
HIGH SPEED: Discovery Completed in Settlement For Securities Fraud Suit
HIGH SPEED: NY Court Dismisses Individual Defendants From Stock Lawsuit
IOWA: Des Moines Bar Owners Accept Discrimination Lawsuit Settlement
KRAFT FOODS: Settles Several Milk Antitrust Lawsuits On Non-Class Basis
LOUISIANA: Plan Awards About $86M For Persons, Businesses In 1983 Flood
MOBILE PHONES: 911-Related Cellular Phone Charges Placed Under Scrutiny
NET PERCEPTIONS: Asks NY Court To Dismiss Consolidated Securities Suit
NETWORK COMMERCE: WA Court Dismisses Consolidated Securities Fraud Suit
NEW FOCUS: NY Court Dismisses Officers, Directors From Securities Suit
OCCAM NETWORKS: CA Court Dismisses 1934 Act Claims in Securities Suit
OPUS360 CORPORATION: To Ask NY Court To Dismiss Securities Fraud Suit
PHARMACEUTICAL INDUSTRY: Judge Strikes Rules On Pharmaceutical Tests
RAFFLES TOWN: Judge Dismisses Club Members Breach of Contract Lawsuit
RUBIO'S RESTAURANTS: CA Court Disqualifies Counsel in Overtime Lawsuit
SIRENZA MICRODEVICES: NY Court Dismisses Officers, Directors From Suit
SONUS NETWORKS: Asks NY Court To Dismiss Consolidated Securities Suit
STAMPS.COM: NY Court Dismisses Officers From Securities Fraud Lawsuit
STORAGENETWORKS INC.: NY Court Dismisses Officers From Securities Suit
UNITED STATES: Forest Service Faces Several Sexual Harassment Claims
VIXEL CORPORATION: NY Court Dismisses Officers, Directors From Lawsuit
WIRELESS FACILITIES: Officers, Directors Dismissed From Securities Suit
*United Kingdom Gets Ready To Adopt US Class Action Style Of Litigation
New Securities Fraud Cases
ALLEGHENY ENERGY: Glancy & Binkow Lodges Securities Fraud Suit in NY
ASIA GLOBAL: Green & Jigarjian Commences Securities Fraud Suit in CA
CREDIT SUISSE: Rabin & Peckel Commences Securities Fraud Suit in S.D. NY
DPL INC.: Bernstein Liebhard Commences Securities Fraud Suit in S.D. OH
ENDOCARE INC.: Weiss & Yourman Commences Securities Fraud Suit in CA
MERRILL LYNCH: Rabin & Peckel Commences Securities Fraud Suit in S.D. NY
QUADRAMED CORP.: Bernstein Liebhard Launches Securities Suit in N.D. CA
RELIANT ENERGY: Abbey Gardy Commences Securities Fraud Suit in S.D. NY
SCHERING PLOUGH: Bernstein Liebhard Lodges Securities Suit in NJ Court
SMARTFORCE PLC: Cauley Geller Commences Securities Lawsuit in NH Court
SMARTFORCE PLC: Charles Piven Lodges Securities Fraud Suit in NH Court
SYNCOR INTERNATIONAL: Stull Stull Commences Securities Suit in C.D. CA
TENET HEALTHCARE: Wolf Haldenstein Commences Securities Suit in C.D. CA
TXU CORPORATION: Pomerantz Haudek Commences Securities Suit in N.D. TX
*********
AIRSPAN NETWORKS: NY Court Dismisses Officers From Securities Lawsuit
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The United States District Court for the Southern District of New York
dismissed Airspan Networks, Inc.'s officers as defendants in the
consolidated securities class action filed against them, the Company and
the underwriters of the Company's initial public offering.
The suit originally named as defendants the company and:
(1) Eric D. Stonestrom (President and Chief Executive Officer),
(2) Joseph J. Caffarelli (former Senior Vice President and Chief
Financial Officer),
(3) Matthew Desch (Chairman),
(4) Jonathan Paget (Executive Vice President and Chief Operating
Officer), and
(5) certain underwriters of the Company's July 2000 initial public
offering.
The complaint alleges violations of the Securities Act of 1933 and the
Securities Exchange Act of 1934 for issuing a Registration Statement and
Prospectus that contained materially false and misleading information
and failed to disclose material information.
In particular, plaintiffs allege that the underwriter-defendants agreed
to allocate stock in the Company's initial public offering to certain
investors in exchange for excessive and undisclosed commissions and
agreements by those investors to make additional purchases of stock in
the aftermarket at pre-determined prices.
Plaintiffs allege that the Registration Statement and Prospectus for the
Company's initial public offering were false and misleading in violation
of the securities laws because they did not disclose these arrangements.
The actions seek damages in an unspecified amount.
The action is being coordinated with over three hundred other nearly
identical actions. On July 15, 2002, the Company and the individual
defendants moved to dismiss all claims against them. The court has not
ruled on this motion.
On October 9, 2002, the court dismissed the individual defendants from
the case without prejudice based upon Stipulations of Dismissal filed by
the plaintiffs and the individual defendants.
ARCH CHEMICALS: Faces Lawsuits Over Manufacture of CCA-Treated Products
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Arch Chemical, Inc. and its subsidiary Arch Wood Protection, Inc. faces
three remaining putative class actions filed in various state and
federal courts against several chromated copper arsenate (CCA)
manufacturers, including several CCA customers and various retailers
regarding the marketing and use of CCA-treated wood.
Initially, five suits were filed on behalf of persons who purchased,
possess or own CCA-treated wood products or properties upon which CCA-
treated wood products were stored or installed. None of the putative
class actions currently alleges personal injury.
One case has been dismissed at the plaintiffs' request. One other case
has been denied class action status as a result of plaintiffs' failure
to timely request class certification and has been subsequently
dismissed without prejudice. In none of the other three cases has a
class been certified by the court.
These putative class action lawsuits variously allege:
(1) conspiracy,
(2) breach of contract,
(3) breach of implied warranties,
(4) violation of consumer protection and/or unfair trade practices
statutes,
(5) unjust enrichment,
(6) strict liability,
(7) nuisance,
(8) negligence and
(9)
These lawsuits are in their early stages of discovery. The Company
denies the material allegations of all the various CCA-related claims.
Based on the information currently available to the Company, however,
the Company does not believe the resolution of these cases is likely to
have a material adverse effect on its consolidated financial condition,
cash flow or results of operations.
AUDIBLE INC.: NY Court Dismisses Current, Former Officers From Lawsuit
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The United States District Court for the Southern District of New York
dismissed Audible, Inc.'s former and current officers and directors as
defendants in the securities class action relating to its initial public
offering (IPO) in July 1999. The lawsuits also named certain of the
underwriters of the IPO as defendants, including:
(1) Credit Suisse First Boston Corporation,
(2) J.P. Morgan Chase & Co.,
(3) Volpe Brown Whelan & Co., LLC, and
(4) Wit Capital Corporation
Approximately 300 other issuers and their underwriters have had similar
suits filed against them, all of which are included in a single
coordinated proceeding in the Southern District of New York.
The suit alleges that the prospectus and the registration statement for
the IPO failed to disclose that the underwriters allegedly solicited and
received "excessive" commissions from investors and that some investors
in the IPO allegedly agreed with the underwriters to buy additional
shares in the aftermarket in order to inflate the price of the Company's
stock.
The Company and certain officers, directors and former directors are
named in the suits pursuant to Section 11 of the Securities Act of 1933.
The complaints seek unspecified damages, attorney and expert fees, and
other unspecified litigation costs.
On July 1, 2002, the underwriter defendants in the consolidated actions
moved to dismiss all of the IPO Litigations, including the action
involving the Company. On July 15, 2002, the Company, along with other
non-underwriter defendants in the coordinated cases, also moved to
dismiss the litigation. Those motions were fully briefed on September
13 and September 27, 2002, respectively. Those motions have not yet
been decided.
In addition, the individual defendants in the IPO Litigation signed a
tolling agreement and were dismissed from the action without prejudice
on October 9, 2002.
Due to the inherent uncertainties of litigation and because the
litigation is at a preliminary stage, the Company cannot accurately
predict the ultimate outcome of the motions.
COCA-COLA COMPANY: Files Motion For Reconsideration of GA Court Ruling
----------------------------------------------------------------------
The Coca-Cola Company filed a motion for reconsideration of the United
States District Court for the Northern District of Georgia's ruling
denying in part the Company's motion to dismiss the securities class
action pending against the Company and:
(1) M. Douglas Ivester,
(2) Jack L. Stahl,
(3) James E. Chestnut, and
(4) Douglas Daft
The suit alleges that the defendants violated anti-fraud provisions of
the federal securities laws by making misrepresentations or material
omissions relating to the Company's financial condition and prospects in
late 1999 and early 2000. The suit allege that the Company and
the individual named officers:
(1) forced certain Coca-Cola system bottlers to accept "excessive,
unwanted and unneeded" sales of concentrate during the third
and fourth quarters of 1999, thus creating a misleading sense
of improvement in the Company's performance in those quarters;
(2) failed to write down the value of impaired assets in Russia,
Japan and elsewhere on a timely basis, again resulting in the
presentation of misleading interim financial results in the
third and fourth quarters of 1999; and
(3) misrepresented the reasons for Mr. Ivester's departure from
the Company and then misleadingly reassured the financial
community that there would be no changes in the Company's core
business strategy or financial outlook following that
departure.
In September 2001, the defendants filed a motion to dismiss all counts
of the consolidated suit. On August 20, 2002, the court granted in part
and denied in part the defendants' motion to dismiss. The court also
granted the plaintiffs motion for leave to amend the suit.
On September 5, 2002, the defendants filed a motion for partial
reconsideration of the Court's August 20, 2002 ruling. This motion is
currently under consideration by the court.
The Company believes it has meritorious legal and factual defenses
against the consolidated action.
COLORADO: Police Group Seeks Temporary Halt To Race Discrimination Suit
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The Tulsa Fraternal Order of Police (FOP) recently asked an appeals
court to stop temporarily all proceedings in the lawsuit filed by black
police officers alleging they are victims of race discrimination by the
Tulsa Police Department, the Tulsa World newspaper reports.
The FOP's emergency motion asks the Tenth U.S. Circuit Court of Appeals
not to allow the trial judge in Tulsa to conduct any more proceedings
until the appeals court decides whether to remove him from the case.
"Until there is a decision by the Tenth Circuit on whether to remove
U.S. District Judge Sven Erik Holmes from the case, any future decision
by him on any substantive issue or significant procedural issue may be
suspect in the eyes of the public, not to mention the approximately 900
officers of the Tulsa Police Department, causing them to doubt the
neutrality of our judicial system," the motion states.
The FOP, in its 24-page filing, claims that Judge Holmes has set
"unrealistic" pretrial deadlines for motions and other matters" and that
those deadlines "are eviscerating the ability of the FOP to even prepare
for the January 21 trial."
Just one day before the FOP's request for a stay of all proceedings,
Judge Holmes had granted a request by all parties to the case - the
black officers, the city and the FOP - to schedule a settlement
conference.
The city administration on September 24, and the FOP on September 5,
petitioned the appeals court to remove Judge Holmes from the case. The
FOP claims that Judge Holmes has given the appearance of being biased.
There has been no indication from the higher court regardi8ng when the
judges will decide that issue or when they will rule.
The FOP is the bargaining unit for Tulsa police officers and was allowed
this year to intervene in the case. The 1994 lawsuit, now a class
action, alleges that the Police Department discriminates against black
officers in promotion and hiring practices.
The FOP has told the appellate judges that the lower court judge "has
been making important scheduling decisions, and is in the process of
making additional, crucial procedural and substantive decisions, which
will unalterably affect the scope of the trial, the position of the FOP
at trial and the ability of the FOP to defend its members' rights."
The FOP lawyers also explained to the appeals court some of the reasons
they "cannot effectively prepare for trial:"
(1) because they have had to spend "large number of hours
explaining in court to Judge Holmes how they have been
preparing for trial and recounting prior statements in the
context of the FOP's motion to intervene" in the case;
(2) there have been unfair cut-off dates for pretrial matters; and
(3) unless Judge Holmes requires the parties to submit realistic
witness lists, the FOP will not be able to prepare cross-
examination of those witnesses.
DIGITAS INC.: Court Dismisses Officers, Directors From Securities Suit
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed Digitas, Inc.'s officers and directors as defendants in the
consolidated securities class action pending against them, the Compnay
and five underwriters of its initial public offering.
The suit, filed on behalf of purchasers of the Company's common stock
since March 13, 2000, the date of the offering, alleges, among other
things, that the Company's prospectus, incorporated in the Registration
Statement on Form S-1 filed with the Securities and Exchange Commission,
was materially false and misleading because it failed to disclose that
the underwriters had engaged in conduct designed to result in
undisclosed and excessive underwriters' compensation in the form of
increased brokerage commissions and also that this alleged conduct of
the underwriters artificially inflated the Company's stock price in the
period after the offering.
The plaintiffs claim violations of Sections 11, 12 and 15 of the
Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the
Securities and Exchange Commission and seek, among other things,
damages, statutory compensation and costs of litigation.
Effective October 9, 2002, the claims against the Company's officers and
directors were dismissed without prejudice. The Company believes that
the claims against it are without merit and intends to defend them
vigorously. Management currently believes that resolving these matters
will not have a material adverse impact on the Company's financial
position or its results of operations. However, litigation is
inherently uncertain and there can be no assurances as to the ultimate
outcome or effect of these actions.
DUPONT COMPANY: EPA Gears Up To Study Allegedly Hazardous Chemical C8
---------------------------------------------------------------------
Federal regulators have launched a rare "priority review" of new data
that connects the DuPont Company's chemical C8 to significant health
problems, the Charleston Gazette reports. The issue of C8's
contamination potential may still be under review, but in the
neighborhood of the DuPont plant in West Virginia, it is a different
story. DuPont is defending itself against a class action brought on
behalf of thousands of the plant's neighbors.
In late September, the US Environmental Protection Agency's (EPA) Office
of Pollution Prevention and Toxics started the investigation. Agency
officials also asked the EPA's Science Advisory Board to review a draft
government estimate of the risks of C8 exposure.C8 is another name for
ammonium perfluorooctanoate.
In ordering the reviews, EPA officials expressed concern about studies
that link C8 exposure to a variety of serious health problems.
"Toxicological studies in rodents and primates have shown that exposure
to C8 can result in a variety of effects, including
developmental/reproductive toxicity, liver toxicity and cancer," said an
EPA Science Advisory Board review proposal.
The EPA said that C8 is highly persistent in the environment and in
humans. The agency said that the chemical is present in the general US
population and the wildlife. "At present, the sources and pathways
of exposure are unknown," the EPA stated.
At its Washington Works Plant in Wood County, West Virginia, DuPont has
used C8 since 1951 to make polymers that are used in the production of
Teflon. C8, and DuPont's C8 emissions, have been basically unregulated.
However, in the past few years, C8 pollution from the plant has come
under increasing scrutiny. The Company has settled at least one lawsuit
over C8 contamination for an undisclosed amount of money.
In November 2001, the administration of Governor Wise in West Virginia,
agreed to form a team, including DuPont representatives, to study C8 and
decide how much exposure is safe. Since then, the Department of
Environmental Protection (DEP) for the state has issued a series of
reports that found current levels of C8 exposure from the Washington
Works plant are not harmful.
Lawyers for plant neighbors have complained that the DEP wrongly
underestimated the chemical's dangers. They have provided stacks of
documents to back up their complaints. The DEP mostly has ignored those
complaints, they said.
Enter another player, the Environmental Working Group, a Washington,
D.C.-based research organization, which recently published its own
critique of the DEP's work on the C8 issue. The Group said that DEP
officials who studied C8 ignored existing studies of its toxicity,
misapplied formulas for determining safe levels of chemicals and misled
the public about the process.
"Overall, in every important matter of scientific assessment and
regulatory judgment, the DEP appears consistently to have come down on
the side of being less protective of human health and the environment in
Wood County, and highly favorable to the polluting company, DuPont,"
said Richard Wiles, the Group's senior vice president, in a letter to
DEP Secretary Michael Callaghan.
In a draft report issued in February, the EPA linked C8 to "potential
systemic toxicity and carcinogenicity, and observed that blood
monitoring data suggested widespread exposure to the general population,
albeit at low levels."
Since then, EPA has received "considerable additional data," suggesting
that a potential for reproductive/developmental toxicity, and additional
blood sample analysis data indicate low-level exposures to the general
public at this time. EPA has said that it hopes to complete the current
review by the end of November.
Mr. Wiles wrote in his letter to DEP Secretary Callaghan, that "the
studies that instigated EPA's priority review were available to DEP well
in advance of your agency's public presentations earlier this year. A
perfunctory review of industry documents on file with the agency would
have yielded facts and scientific conclusions very much at odds with the
'science behind DEP's work' on C8."
In a recent prepared statement, Mr. Callaghan defended his agency's
handling of C8 issues. "DEP had 10 toxicologists with over 200 years of
combined experience analyzing the potential effects of C8 on Wood County
residents," Mr. Callaghan said. "DEP's own toxicologist has worked for
over a year almost exclusively on the C8 issue. DEP is committed to
protecting human health and safety, ande this is no exception."
Secretary Callaghan also promised to review and address the Working
Group's criticisms.
EIFS LITIGATION: 48 Denver Area Homeowners File Suit Over Finish Work
---------------------------------------------------------------------
The owners of 48 high-end town homes in Cherry Creek, in the Denver
area, are suing their developer, alleging shoddy workmanship has left
them with molding walls, rotting decks and other construction defects,
the Denver Post reports. The problems are partly the result of Exterior
Insulation and Finish Systems (EIFS), according to engineers who
recently examined the homes.
EIFS is a synthetic stucco used on homes and commercial buildings. It
is touted as a maintenance-free, weather-resistant siding and is most
often used on high-end houses. It is so airtight, however, that any
water that seeps in gets trapped, say the experts. That can cause the
inside walls of the home to get moldy and rot.
Ed Fronapfel of Professional Investigative Engineers recently examined
the homes with work crews who bored inside the walls, revealing water
stains and leaks. Mr. Fronapfel estimates that 20,000 to 40,000 homes
in the Denver area have EIFS siding. Of the homes he is called to
examine, roughly 90 percent of them have substantial damage that
warrants major repairs, he said.
Representatives from the EIFS industry call those numbers a gross
exaggeration. "If that were the case, the EIFS industry would be out of
business," said Bernard Allmayer, spokesman for the EIFS Industry
Members Association. EIFS is not prone to problems unless water is
allowed to enter through improperly sealed windows or other openings,
said Mr. Allmayer. He added, that EIFS products created in the past few
years include a drainage system that allows any water that gets in to
escape.
While industry representatives say the problems are not widespread,
class actions have been filed against EIFS manufacturers. One of the
biggest makers of EIFS, Dryvit Systems Inc., has settled a class action
brought by homeowners who used its product.
FORD MOTOR: Dallas City Attorney Threatens Lawsuit Over Crown Victorias
-----------------------------------------------------------------------
Dallas, Texas City Attorney Madeleine Johnson insists that Ford Motor
Company produce comprehensive safety reports on its Crown Victoria
police cars, and agree to do it by December 2 or be sued, The Fort Worth
Star-Telegram reports.
Ms. Johnson's demands were during a news conference and stemmed from the
event when Officer Patrick Metzler, 31, died when his Crown Victoria
Police Interceptor burst into flames after a Jeep Wrangler hit it in a
rear collision on US 75. Ms. Johnson said city officials need the
Company's data on rear-end crashes with the Crown Victoria police cars
to help decide whether the vehicles are safe patrol cars for Dallas
officers to keep driving.
"We are hoping Ford will cooperate with us, but if not, we will take
legal action to get the information we need," Ms. Johnson said. "We
will do everything we can to protect our officers."
Ms. Johnson said she wants the information delivered through "sworn
Testimony" because some test results obtained by the city do not clearly
state whether the cars' gas tanks are adequately protected. Ms. Johnson
added that the city also demands that the Company provide additional
safety upgrades to the nearly 1,000 Crown Victorias operated
by the city.
The Company announced on September 27 that it would put shields around
gas tanks on 350,000 police vehicles across the nation. By the time of
Officer Metzler's death, nearly a month later, the city had not yet
received its shields.
After the accident, however, the Company began rushing the upgrade kits
to Dallas. Police Chief Terrell Bolton said Friday that about 120
shields have been installed, and the rest ought to be completed by
year's end.
Ms. Johnson stated Officer Metzler died from burns over 98 percent of
his body and smoke inhalation. "He had no broken bones, so death was
not caused by trauma," Ms. Johnson said. "In other words, Officer
Metzler probably would have walked away from the accident if it had not
been for fire."
Company spokeswoman Kristen Kinley said that the company's position is
"that the Crown Victoria is a safe vehicle, and the recommendations we
made in September will help improve the safety of police officers."
Several class actions from across the country were recently centralized
through a federal court ruling in Cleveland, said attorney David Perry
of Corpus Christi, who was hired to advise the city about Crown Victoria
legal issues.
Mr. Perry said, after the Friday news conference, that he sits on the
executive committee of the class action plaintiffs. He said that 13
people have died in Crown Victoria explosions. Four cases already have
been settled with Ford, but he could not discuss those settlements
because they are confidential.
"The bottom line is that Ford needs to make these vehicles safe so that
an officer involved in an accident does not burn alive," said Mr. Perry.
Philip Metzler, the officer's father, said he had not talked to city
officials about their findings or actions. He said relatives have not
yet decided what, if any, legal actions they will take, adding that he
was waiting to talk to representatives who were involved with the city's
review.
HIGH SPEED: Discovery Completed in Settlement For Securities Fraud Suit
-----------------------------------------------------------------------
Confirmatory discovery has already been completed in settlement
proceedings in the securities class actions pending against High Speed
Access Corporation, certain of its current and former directors, Charter
Communications and Paul Allen in the Court of Chancery of the
State of Delaware.
Four lawsuits were initially commenced, which allege breach of fiduciary
duty by the individual defendants and Charter. The complaints in the
first three lawsuits allege, among other things, that the cash purchase
price initially proposed by Charter, $73.0 million, was grossly
inadequate and that "(t)he purpose of the proposed acquisition is to
enable Charter and Allen to acquire (the Company's) valuable assets for
their own benefit at the expense of (the Company's) public
stockholders."
The fourth lawsuit, Krim v. Allen, alleges that the $81.1 million
purchase price under the Asset Purchase Agreement was "grossly
inadequate," and that Charter and Paul Allen acted in a manner
calculated to benefit themselves at the expense of the Company's public
shareholders.
The plaintiffs ask to represent the interests of all common stockholders
of the Company and seek (except in the case of Krim v. Allen) injunctive
relief preventing the Company from consummating the Asset Sale. All
four lawsuits seek to rescind the transaction and seek unspecified
monetary damages.
The Company believes these lawsuits are entirely without merit.
Nevertheless, lawyers for the defendants in these lawsuits have had
discussions with attorneys representing the plaintiffs in the first
three lawsuits concerning, among other topics, financial and other
changes to the terms of the draft Asset Purchase Agreement that
addressed the matters raised by the plaintiffs.
As a result of these discussions, a tentative agreement was reached to
settle the first three lawsuits subject to the completion of
confirmatory discovery. The tentative settlement is embodied in a
Memorandum of Understanding (MOU), dated as of January 10, 2002,
executed by counsel to all parties to the first three lawsuits.
The MOU provides, among other things, that the settlement is premised
upon defendants' acknowledgment that the prosecution of the first three
litigations was a "substantial causal factor" underlying defendants'
decision to condition the Asset Sale on the public stockholder majority
vote and was "one of the causal factors" underlying Charter's decision
to increase the consideration to be paid to the Company in connection
with the Asset Sale.
The MOU further provides that defendants shall, upon court approval, pay
up to $390,000, which amount will be allocated among the defendants, to
reimburse plaintiffs' counsel for the fees and expenses incurred in
pursuit of these litigations.
The settlement is subject to final documentation and approval of the
Delaware Chancery Court following notice to class members. The claims
asserted in the fourth lawsuit, Krim v. Allen, will be covered by the
settlement if it is ultimately approved by the court.
HIGH SPEED: NY Court Dismisses Individual Defendants From Stock Lawsuit
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The United States District Court for the Southern District of New York
dismissed the individual defendants in the consolidated securities class
action pending against High Speed Access Corporation. The suit
originally named as defendants the Company and:
(1) George E. Willett, President and Chief Financial Officer,
(2) Ron Pitcock, former president,
(3) Lehman Brothers, Inc.,
(4) J.P. Morgan Securities, Inc.,
(5) CIBC World Markets Corp., and
(6) Banc of America Securities, Inc.
The lawsuit alleges that the Company's Registration Statement, dated
June 3, 1999, and Prospectus, dated June 4, 1999, for the issuance and
initial public offering of 13,000,000 shares of the Company's common
stock to investors contained material misrepresentations and/or
omissions, alleging that the Company's four underwriters engaged in a
pattern of conduct to surreptitiously extract inflated commissions
greater than those disclosed in the offering materials, among other acts
of misconduct.
The allegations against Mr. Willett and Mr. Pitcock were dismissed
without prejudice on October 11, 2002 pursuant to a Reservation of
Rights and Tolling Agreement dated as of July 20, 2002.
With respect to allegations against the Company, the Company believes
this lawsuit is without merit and intends to vigorously defend against
the claims made therein. The Company does not believe that the results
of the above-noted legal proceedings will have a material adverse effect
on its financial condition or cash flows.
IOWA: Des Moines Bar Owners Accept Discrimination Lawsuit Settlement
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The owners of three Des Moines area bars, two of which are now defunct,
have agreed to accept settlement of a class action discrimination
lawsuit filed over the existence of a dress code policy that was
discriminatory. The case, filed two years ago, after a black man's
fatal scuffle with bouncers at the former Graffiti's nightclub, is
scheduled to end after a December 19 court hearing.
Court papers say that under the terms of settlement, owners of the three
bars have agreed to carefully monitor employees in all bars they own now
and in the future, and they have agreed to fire anyone who discriminates
on the basis of race.
Court papers say also that the settlement, which will apply to each and
every nightclub now owned by any defendant, would ban discrimination "in
terms of admission, surveillance or ejection. Three of the owners
acknowledge as part of the deal "that discrimination occurred." The
fourth defendant owner meanwhile would acknowledge only the existence of
facts, which could allow a finding that discrimination has occurred.
The four owners also will pay an undisclosed amount to the two black men
who challenged the legality of bar dress codes in a class action after
the February 2000 death of Charles Lovelady.
Employees at one of the three bars, Graffiti's, said the dispute with
Mr. Lovelady, 26, on February 16, 2000, began over a violation of the
club's dress code policy against hooded sweat shirts. Relatives and
community activists later charged that the policy, which banned some
clothing popular among blacks, singled out Mr. Lovelady because of his
race.
KRAFT FOODS: Settles Several Milk Antitrust Lawsuits On Non-Class Basis
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Kraft Foods, Inc. settled several antitrust lawsuits pending in the
United States District Court for the Central District of California, on
an individual (non-class) basis.
Since 1996, seven putative class actions have been filed by various
dairy farmers alleging that the Company and others engaged in a
conspiracy to fix and depress the prices of milk through their trading
activity on the National Cheese Exchange. Plaintiffs sought injunctive
and equitable relief and unspecified treble damages.
Two of the actions were voluntarily dismissed by plaintiffs after class
certification was denied. Three cases were consolidated in state court
in Wisconsin, and, in November 1999, the court granted the Company's
motion for summary judgment.
In June 2001, the Wisconsin Court of Appeals affirmed the trial court's
ruling dismissing the cases. In April 2002, the Wisconsin Supreme Court
affirmed the intermediate appellate court's ruling. Plaintiffs in that
case have filed a petition for certiorari to the United States Supreme
Court, which is pending.
In April 2002, the Company's motion for summary judgment dismissing the
case was granted in a case pending in the United States District Court
for the Central District of California. In June 2002, the parties
settled the California case on an individual (non-class) basis, and
plaintiffs dismissed their appeal. A case in Illinois state court has
been settled and dismissed.
LOUISIANA: Plan Awards About $86M For Persons, Businesses In 1983 Flood
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A special master recommended awarding more than $86 million to about
1,300 individuals and businesses affected by the 1983 flood in parts of
Tangipahoa Parish, The Baton Rouge Advocate reports.
Last year, the Louisiana Supreme Court affirmed the state Department of
Transportation and Development's (DOTD) liability in the class action,
filed in 1984, and traveling about in the courts since then.
The plaintiffs contended in their lawsuit that the DOTD constricted
natural drainage in parts of Tangipahoa Parish when it constructed
Interstate 12 prior to the April 1983 flood. The plaintiffs alleged
that those changes in natural drainage caused their property to flood.
Attorneys from both sides will meet with Special Master Thomas Tanner
next month before Mr. Tanner makes his recommendation to Judge Ray Chutz
of 21st Judicial District Court, said W. Luther Wilson, the attorney
representing DOTD in the case.
Mr. Wilson said last Tuesday that his client, the DOTD, has some solid
objections to the recommended damages. Mr. Wilson is the latest in a
string of attorneys who have represented DOTD in the complex case. Mr.
Wilson said that probably the plaintiffs will have some objections as
well, about which they feel strongly. Therefore, said Mr. Wilson, Mr.
Tanner could make changes in his recommendation before presenting the
plan to Judge Chutz.
Plaintiffs' attorney Jean-Paul Layrisson said that he is "a little
disappointed" in the special master's tentative findings of damages.
However, the attorney also said he is happy that his clients are close
to the relief for which they have "waited a long time."
Once Special Master Tanner makes any final changes or adjustments to his
recommendation, he will present it to Judge Chutz, who is not likely to
alter it, barring a procedural problem. Special Master Tanner, in his
written recommendation, given to the attorneys, said the average award
to plaintiffs for mental anguish will be $32,552 each.
Together, the plaintiffs also will receive $22 million in special
damages, in accordance with Mr. Tanner's recommendation. He also
recommends lost wage damages averaging $2,400 to 211 claimants.
The Special Master also recommends that property owners receive $21
million in devaluation of their real estate. He also wrote that the
people experienced dangers in the flood and evacuation, and returned to
homes "full of mud, bugs, snakes and stench of decaying matter."
Each trial claimant's testimony "reiterated the terrible circumstances
they incurred." Mr. Tanner wrote that they all experienced "fear,
horror, loss from leaving their homes while the flood waters rose."
MOBILE PHONES: 911-Related Cellular Phone Charges Placed Under Scrutiny
-----------------------------------------------------------------------
On the heels of a class action questioning some monthly charges on
cellular telephone bills, Missouri's top law enforcer has begun
investigating whether the bills are illegally deceptive, the Associated
Press Newswires reports. At issue is whether cell phone customers are
being forced to pay for a 911-related cell phone service they are not
getting.
"We are not really challenging their rates," said Timothy Van Ronzelen,
a Jefferson City attorney behind the class action. "We are challenging
a billing practice, especially the way it is placed on a customer's
bill, under all these federal and state taxes. It makes a person think
it is a tax, when it is not."
The issue basically stems from the federal government wanting your
location and cell phone number to pop on a computer screen at the local
911 emergency center. Calls for help on corded phones have had that
ability for years. Cell phones require different technology, just now
being implemented.
To accomplish this, local public safety departments and cell companies
are spending millions of dollars on new equipment. In Missouri, voters
rejected for the second time a referendum to pay for the changes with a
50-cent-per-month fee on cell phone bills. Also, in Missouri, three
companies, Nextel, Alltel and Sprint, have added separate charges on
monthly customer bills for the 911 update.
However, none of the three companies offers the emergency 911 service
yet, meaning that emergency dispatchers cannot tell where someone is
when he or she calls for help on a cell phone, according to R.D. Porter,
the Missouri state 911 coordinator.
"They are telling customers they have the service when in reality, it is
not available," Mr. Porter said. Mr. Porter added that because of
funding problems, the service will not be available for months or
perhaps years.
Consumer fraud lawyers in the state attorney general's office also are
probing whether they have jurisdiction and whether any laws have been
broken, said spokesman Scott Holste.
Missouri's unfair merchandising law bars deception, misrepresentation,
concealment, omission of facts or other unfair practices. Nextel calls
the charge "federal-programs cost recovery" and lists it along with
federal, state and local taxes, under the heading "taxes, fees and
assessments" on customers' bills. Nextel kept increasing the charge
until the monthly fee was $1.55 monthly, or more than $180 million a
year.
After learning about the Nextel fee in August, St. Louis County personal
trainer James Sanders joined with his acquaintance and attorney Timothy
Van Ronzelen, and they enlisted two other lawyers and a second client
and filed a class action in Jackson County Circuit Court in Kansas City.
NET PERCEPTIONS: Asks NY Court To Dismiss Consolidated Securities Suit
----------------------------------------------------------------------
Net Perceptions, Inc. asked the United States District Court for the
Southern District of New York to dismiss the consolidated securities
class action filed against it and:
(1) FleetBoston Robertson Stephens, Inc., the lead underwriter of
the Company's April 1999 initial public offering,
(2) several other underwriters who participated in the Company's
initial public offering,
(3) Steven J. Snyder, the Company's then president and chief
executive officer, and
(4) Thomas M. Donnelly, the Company's chief operating officer and
chief financial officer
The suit relates to the Company's initial public offering and its March
2000 follow-on public offering in addition to those relating to the
Company's initial public offering. The amended complaint generally
alleges that the defendants violated federal securities laws by not
disclosing certain actions taken by the underwriter defendants in
connection with the initial public offering and the follow-on public
offering.
The amended complaint alleges specifically that the underwriter
defendants, with the Company's direct participation and agreement and
without disclosure thereof, conspired to and did raise and increase
their underwriters' compensation and the market prices of the Company's
common stock following the initial public offering and in the follow-on
public offering by requiring their customers, in exchange for receiving
allocations of shares of the Company's common stock sold in the initial
public offering, to:
(1) pay excessive commissions on transactions in other securities,
(2) purchase additional shares of the Company's common stock in
the initial public offering aftermarket at pre-determined
prices above the initial public offering price, and
(3) purchase shares of the Company's common stock in the follow-on
public offering.
The amended complaint seeks unspecified monetary damages and
certification of a plaintiff class consisting of all persons who
acquired the Company's common stock between April 22, 1999 through
December 6, 2000.
The plaintiffs have since agreed to dismiss the claims against Mr.
Snyder and Mr. Donnelly without prejudice, in return for their agreement
to toll any statute of limitations applicable to those claims and those
claims have been dismissed without prejudice. On July 15, 2002, all of
the issuer defendants filed a joint motion to dismiss the plaintiffs'
claims in all of the related cases. The court has not ruled on this
motion.
The Company believes that the allegations are without merit, but as this
litigation is in an initial stage, the Company is unable to predict its
outcome or its ultimate effect, if any, on it's financial condition.
NETWORK COMMERCE: WA Court Dismisses Consolidated Securities Fraud Suit
-----------------------------------------------------------------------
The United States District Court for the Western District of Washington
in Seattle dismissed the consolidated securities class action filed
against Network Commerce, Inc. and:
(1) Dwayne M. Walker,
(2) Dain Rauscher Inc.,
(3) US Bancorp Piper Jaffray,
(4) SoundView Technology Group, Inc.,
(5) J.P. Morgan Chase & Co.,
(6) CIBC World Markets Corp. and
(7) PaineWebber, Inc.
The consolidated suit purports to allege claims on behalf of all persons
who purchased the Company's common stock during the period that begins
on September 28, 1999 and ends on April 16, 2001. The consolidated suit
alleges violations of the federal securities laws based on alleged
misrepresentations and omissions made by defendants to the market.
In January 2002, the Company and Mr. Walker filed a motion to dismiss
the lawsuit for failure to state a claim on which legal relief can be
granted. On September 24, 2002, Judge Laznik entered an order
dismissing the consolidated lawsuit with prejudice, and without
permitting the plaintiffs to amend the consolidated complaint. No
appeal of that order has yet been filed.
If an appeal is filed, the Company and Mr. Walker intend to vigorously
defend the appeal, but unfavorable resolution of these suits could have
a material adverse effect on the Company in one or more future periods.
A judgment was entered dismissing the case on October 15, 2002. The
deadline for the appeal was November 15, 2002.
NEW FOCUS: NY Court Dismisses Officers, Directors From Securities Suit
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed New Focus, Inc.'s officers and directors as defendants in the
consolidated securities suit pending against them, the Company and:
(1) Credit Suisse First Boston Corporation,
(2) Chase Securities, Inc.,
(3) U.S. Bancorp Piper Jaffray, Inc. and
(4) CIBC World Markets Corporation
The complaint alleged various violations of the Securities Act of 1933
and the Securities Exchange Act of 1934 against the defendants, and
sought unspecified damages on behalf of a purported class of purchasers
of the Company's common stock between May 18, 2000 and December 6, 2000.
Various plaintiffs have filed similar actions in the United States
District Court for the Southern District of New York asserting virtually
identical allegations against more than 400 other issuers. These cases
have all been assigned to the Hon. Shira A. Scheindlin for coordination
and decisions on pretrial motions, discovery, and related matters other
than trial.
In July 2002, an omnibus motion to dismiss was filed in the coordinated
proceedings by the issuer defendant, of which the Company and the
individual defendants are a part, on common pleadings issues. That
motion was heard before the court on October 29, 2002.
In October 2002, the court entered as an order a stipulation dismissing
the individual officers and directors from the litigation without
prejudice. The Company believes that it has meritorious defenses to
these lawsuits. However, an unfavorable resolution of any of the
foregoing lawsuits could have a material adverse effect on the business,
results of operations or financial condition of the Company.
OCCAM NETWORKS: CA Court Dismisses 1934 Act Claims in Securities Suit
---------------------------------------------------------------------
The United States District Court for the Central District of California
dismissed the claims based on the Securities Exchange Act of 1934 in the
securities class action filed against Occam Networks, Inc.
Following the Company's April 17, 2001 announcement that it would
restate its financial results, seven putative securities lawsuits were
filed against the Company and certain of its current and former officers
and directors. The cases were later consolidated in a court order dated
June 15, 2001.
The amended complaint generally alleges:
(1) the defendants made materially false and/or misleading
statements regarding the Company's financial condition and
prospects during the period of June 22, 2000 through April 17,
2001 in violation of Sections 10(b) and 20(a) and Rule 10b-5
of the Securities Exchange Act of 1934; and
(2) the registration statement and prospectus issued by defendants
in connection with the Company's June 23, 2000 initial public
offering contained untrue statements of material fact and
omitted to state material facts in violation of Sections 11,
12(a)(2) and 15 of the 1933 Act.
The Company filed a motion to dismiss the amended complaint, and a
hearing on the motion took place on April 22, 2002. At the hearing, the
Court granted the motion as to plaintiffs' 1934 Act claims, and denied
the motion as to plaintiffs' 1933 Act claims. Plaintiffs were given 30
days leave to amend their 1934 Act claims.
Plaintiffs filed their second amended complaint and the Company filed a
motion to dismiss the second amended complaint. A hearing took place on
October 9, 2002. At that hearing, the court granted the motion to
dismiss as to the 1934 Act claims. Plaintiffs were given 30 days leave
to amend their 1934 Act claims.
OPUS360 CORPORATION: To Ask NY Court To Dismiss Securities Fraud Suit
---------------------------------------------------------------------
Opus360 Corporation intends to ask the United States District Court for
the Southern District of New York to dismiss the second amended
consolidated securities class action filed against it, ten of its
current and former officers and directors, the underwriters of its
initial public offering (IPO) and two shareholders who sold stock in a
secondary offering concurrent with the IPO.
The first lawsuit was commenced in April 2001 on behalf of all persons
who acquired securities of the Company between April 7, 2000 and March
20, 2001. The suit alleged that, among other things, the plaintiff and
members of the proposed class were damaged when they acquired securities
of the Company because false and misleading information and material
omissions in the registration statement relating to the IPO and the
secondary offering caused the prices of the Company's securities to be
inflated artificially. It asserted violations of Section 11, 12(a)(2),
and 15 of the Securities Act of 1933. The suit was later amended.
In October 2001, the Company and all other defendants filed motions to
dismiss the amended complaint, which the court granted. The court,
however, gave plaintiffs leave to serve a second consolidated amended
class action. On October 30, 2002, plaintiffs served their second
amended complaint, which contains allegations similar to those in the
first suit.
PHARMACEUTICAL INDUSTRY: Judge Strikes Rules On Pharmaceutical Tests
--------------------------------------------------------------------
A federal judge has struck down rules that required drug companies to
test their products in children, reports The New York Times. The rules
were intended to result in doctors and parents having more information
about both drugs' safety and the proper dosage for children. A group of
conservative organizations brought the lawsuit, challenging whether the
FDA rules were within the scope of that agency's statutory authority.
"The pediatric rule exceeds the Food and Drug Administration's statutory
authority and is therefore invalid," said Judge Henry H. Kennedy Jr. of
the Federal District Court in Washington, D.C. In his ruling, Judge
Kennedy said that the food and drug agency was overreaching, just as
when it tried to regulate tobacco products. In both cases, he said, the
agency's rules were inconsistent with the statutory framework
established by Congress.
The Clinton Administration proposed the drug rules in 1997 and issued
them in final form in 1998. The Bush Administration said in March that
it planned to suspend the rules, but reversed itself a month later after
an outcry from pediatricians and some members of Congress. Hilary
Rodham Clinton is now the chief Senate sponsor of a bill to write the
testing requirements into law. The bill has been approved by a Senate
committee.
Most drugs prescribed for children have been tested only in adults, with
the assumption that the drugs' effects in children would be similar.
However, the FDA has said, in issuing the rules, that "correct pediatric
dosing cannot necessarily be extrapolated from adult dosing
information."
The plaintiffs who brought the lawsuit challenging the FDA rules are
conservative or libertarian organizations: the Association of American
Physicians and Surgeons, the Competitive Enterprise Institute and
Consumer Alert.
Dr. Jane M. Orient, executive director of the Association, said it was
inappropriate to "use kids as guinea pigs." The drug industry was not a
plaintiff, having initially objected to the rules, but learned to live
with them.
Judge Kennedy said the rules also were incompatible with two laws that
encourage, but do not mandate, the study of prescription drugs in
children: the FDA Modernization Act of 1997 and the Best
Pharmaceuticals for Children Act, signed in January by President Bush.
In those laws, Congress created financial incentives for drug companies
to test their products in children. By contrast, said Judge Kennedy,
"the FDA adopted a command-and-control approach."
Under the statutes, the incentive approach is used. If a company
voluntarily conducts pediatric studies of a new drug, the product may be
shielded from competition for an additional six months. Under the
rules, for example, the FDA could have ordered drug companies to develop
pediatric formulations of some adult medicines.
The court did not assess the merits of the rules as health policy. "The
pediatric rule may well be a better policy tool than the one
enacted by Congress," Judge Kennedy said. "It might reflect the most
thoughtful, reasoned, balanced solution to a vexing public health
problem. The issue here is not the rule's wisdom. The issue is the
rule's statutory authority, and it is this that the court finds
lacking."
RAFFLES TOWN: Judge Dismisses Club Members Breach of Contract Lawsuit
---------------------------------------------------------------------
Raffles Town Club (RTC) members, who sued their club for
misrepresentation and breach of contract in the biggest class action in
Singapore, have lost their case, the Business News (Singapore) reported.
The lawsuit, which generated considerable publicity, was dismissed by
the High Court yesterday, with the plaintiffs having to pay legal costs
that are said to be "quite substantial." The High Court ruling by
Justice S. Rajendran caps nearly a year of legal wrangles that started
last November, when 10 named plaintiffs together with 4,885 other RTC
founder members filed a suit against RTC. The plaintiffs now have a
month to decide whether they will appeal against the ruling.
The proprietary club said in a statement last night, "If the plaintiffs'
action had succeeded, that would have resulted in a loss to all members.
The club recognizes that a number of members are unhappy, which resulted
in this litigation. The club will continue to seek ways to address
their concerns."
The founder members claimed that they were misled into joining what they
thought was to be an exclusive club for 5,000 to 7,000 members. They
sought to recover the $28,000 they each paid as joining fee, and to
rescind the contractual agreement they signed with the club, in addition
to other damages or remedies. If they had succeeded, they could have
recovered a total of $137 million in membership fees.
In his 52-page ruling, Justice Rajendran noted that RTC had not
suggested that "there would be a cap on membership numbers at 19,000 or
at any other specified figure As there was no specific representation
as to the number of members, it would follow that there was no specific
contractual term precluding the defendants from accepting 19,000
members."
Still, Justice Rajendran said he had toured RTC to see its facilities at
the invitation of the parties. "The club was spacious and its
facilities were certainly up-market. While the decor of the club may
not be to everyone's taste, there can be no doubt that the physical
facilities and ambience matched the adjectives 'opulent' and 'lavish' as
used in the promotional material."
The Justice said in an aside, however, that his advice to the
defendants, if they wish to preserve their club as one of premier
status, would be that they should not admit more members, because the
membership of the club is just about at the maximum permissible to
sustain the club as a premier club.
As to the glossy marketing brochure, the Justice said, "Eulogistic
commendations by a salesman of the wares that he touts is a common and
expected feature of the market place. Courts are therefore reluctant to
rescind contracts of sale merely on account of the exuberant and
exaggerated language employed by the salesmen. This reluctance is
reflected in the maxim 'caveat emptor' or 'buyer beware.'"
RUBIO'S RESTAURANTS: CA Court Disqualifies Counsel in Overtime Lawsuit
----------------------------------------------------------------------
Orange County, California Superior Court granted a motion disqualifying
Rubio's Restaurants, Inc.'s counsel in a consolidated class action filed
by former employees, who worked in the positions of general manager and
assistant managers in their restaurants, whom the Company classified as
exempt.
The former employees each purport to represent a class of former and
current employees who are allegedly similarly situated. These cases
currently involve the issue of whether employees and former employees in
the general and assistant manager positions who worked in the California
restaurants during specified time periods were misclassified as exempt
and deprived of overtime pay. In addition to unpaid overtime, these
cases seek to recover:
(1) waiting time penalties,
(2) interest,
(3) attorneys' fees, and
(4) other types of relief on behalf of the current and former
employees that these former employees purport to represent
The Company believes these cases are without merit and intends to
vigorously defend against the related claims. These cases are in the
early stages of discovery and the status of the class action
certification is yet to be determined for both suits.
The court granted a motion to disqualify the Company's counsel. The
proceeding has been stayed pending appeal of that disqualification. The
Company continues to evaluate results in similar proceedings and to
consult with advisors with specialized expertise. The Company is
presently unable to predict the probable outcome of this matter or the
amounts of any potential damages at issue.
SIRENZA MICRODEVICES: NY Court Dismisses Officers, Directors From Suit
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed Sirenza Microdevices, Inc.'s officers and directors from the
consolidated securities class action pending against them, the Company,
and certain underwriters of the Company's initial public offering (IPO)
of securities.
The suit alleges that various underwriters engaged in improper and
undisclosed activities related to the allocation of shares in the
Company's initial public offering, including obtaining commitments from
investors to purchase shares in the aftermarket at pre-arranged prices.
Similar lawsuits concerning more than 300 other companies' initial
public offerings were filed during 2001, and this lawsuit is being
coordinated with those actions.
In July 2002, an omnibus motion to dismiss was filed in the coordinated
litigation on behalf of the issuer defendants, of which the Company
and its named officers and directors are a part, on common pleadings
issues. On October 8, 2002, pursuant to stipulation by the parties, the
court dismissed the officer defendants from the action without
prejudice.
The Company believes that the allegations against it are without merit.
However, there can be no assurance as to the ultimate outcome of this
lawsuit and an adverse outcome to this litigation could have a material
adverse effect on the Company's consolidated balance sheet, statement of
operations or cash flows. Even if the Company is entirely successful in
defending this lawsuit, it may incur significant legal expenses and its
management may expend significant time in the defense.
SONUS NETWORKS: Asks NY Court To Dismiss Consolidated Securities Suit
---------------------------------------------------------------------
Sonus Networks, Inc. asked the United States District Court for the
Southern District of New York to dismiss the consolidated securities
class action pending against it, two of its officers and the lead
underwriters alleging violations of the federal securities laws in
connection with the Company's initial public offering (IPO) and seeking
unspecified monetary damages.
The suit, filed on behalf of purchasers of the Company's common stock
between the IPO on May 24, 2000 and December 6, 2000, alleges that the
Company's registration statement contained false or misleading
information or omitted to state material facts concerning the alleged
receipt of undisclosed compensation by the underwriters and the
existence of undisclosed arrangements between underwriters and certain
purchasers to make additional purchases in the aftermarket.
The claims against the Company are asserted under Section 11 of the
Securities Act of 1933 and against the individual defendants under
Sections 11 and 15 of that Act.
Other plaintiffs have filed substantially similar class action cases
against approximately 300 other publicly traded companies and their IPO
underwriters which, along with the actions against the Company, have
been transferred to a single federal judge for purposes of coordinated
case management.
On July 15, 2002, the Company, together with the other issuers named as
defendants in these coordinated proceedings, filed a collective motion
to dismiss the consolidated amended complaints on various legal grounds
common to all or most of the issuer defendants. The plaintiffs have
opposed the motion which is presently pending before the court.
The outcome of the motion and the litigation remain uncertain, but the
Company intends to continue to vigorously defend this action.
STAMPS.COM: NY Court Dismisses Officers From Securities Fraud Lawsuit
---------------------------------------------------------------------
The United States District Court for the Southern District of New York
agreed to dismiss Stamps.com, Inc.'s current and former board members
and officers from the consolidated securities class action pending
against them, the Company and the underwriters of the Company's initial
and secondary public offering.
The suit alleges violations of the Securities Act of 1933 and the
Securities Exchange Act of 1934 in connection with the Company's initial
public offering and secondary offering.
The lawsuits allege that the underwriters engaged in improper commission
practices and stock price manipulations in connection with the sale of
the Company's common stock. The lawsuits also allege that the Company
and/or certain of its officers or directors knew of or recklessly
disregarded these practices by the underwriter defendants, and failed to
disclose them in the Company's public filings.
In July 2002, the Company moved to dismiss the consolidated complaint,
but the court has not yet ruled on this motion. In October 2002,
pursuant to a stipulation and tolling agreement with plaintiffs, the
Company's current and former board members and/or officers were
dismissed without prejudice. The Company believes that the claims
against it and its officers and directors are without merit.
In addition to the lawsuits against the Company, over 1,000 similar
lawsuits have also been brought against over 250 companies which issued
stock to the public in 1998, 1999, and 2000, and their underwriters.
These lawsuits (including those naming the Company) followed publicized
reports that the SEC was investigating the practice of certain
underwriters in connection with initial public offerings. All of these
lawsuits have been consolidated for pretrial purposes before United
States District Court Judge Shira Scheindlin of the Southern District of
New York.
STORAGENETWORKS INC.: NY Court Dismisses Officers From Securities Suit
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed StorageNetworks, Inc.'s officers as defendants in the
consolidated securities class action filed on behalf of purchasers of
the Company's common stock between June 30,2000 and December 6,2000.
The suit, which also names as defendants the Company and the
underwriters of the Company's initial public offering of common stock in
June 2000, alleges violations of the Securities Act of 1933 and the
Securities Exchange Act of 1934, each as amended, primarily based on
allegations that the Company, the underwriters and the other named
defendants made material false and misleading statements concerning fees
paid by purchasers of the Company's common stock to the underwriters in
the prospectus that was part of the registration statement on Form S-1
that was filed in connection with the Company's initial public offering.
The allegations in the complaint are generally related to the alleged
receipt of excessive and undisclosed commissions by the underwriters and
alleged prohibited after-market transactions by the underwriters. The
complaint alleges that the underwriters obtained excessive commissions
and inflated transactions fees from their customers, and allegedly
entered into agreements with their customers pursuant to which the
customers, in return for being allocated shares in the initial public
offering, agreed to purchase additional shares on the open market at
specified increased prices.
In April 2002, the complaint was amended to add allegations,
substantially similar to those described above, concerning the Company's
secondary public offering of stock. In October, 2002, the individual
defendants were dismissed without prejudice from this lawsuit pursuant
to tolling agreements entered into with the plaintiffs.
Although the Company believes that these claims are without merit, it is
not presently able to reasonably estimate potential losses, if any,
related to this matter.
UNITED STATES: Forest Service Faces Several Sexual Harassment Claims
--------------------------------------------------------------------
Photos of scantily clad women found plastered on the inside of a
firefighter crew carrier near Santa Barbara are the centerpiece of a
USDA Forest Service sexual harassment controversy, the Inter Press
Service reports.
Women at the Forest Service say the photos are just the latest example
of a longstanding culture where supervisors systematically ignore
discrimination and harassment complaints and penalize those who file
such complaints. Complaints about the photos were filed anonymously
after being discovered in a "crew buggy" in the 1.7 million acre Los
Padres National Forest near Santa Barbara.
Elite firefighters, called hotshot crews, travel through the forest in
the metal crew buggies for weeks at a time. The Los Padres crew consists
of 19 men and one woman. Complaints about the photos did not come from
these crewmembers.
The Forest Service expressed its concern about the photos and sexual
harassment through a statement by Dave Reider, spokesman for the USDA
Forest Service, Pacific Southwest Region Five, encompassing all of
California. Mr. Reider said the department is conducting an
investigation into the photo montage and is requiring employees to
attend "stand down" training, where employees simultaneously put down
their work for at least an hour to attend a session on sexual
harassment.
Some current and former female employees say sexual harassment remains
rampant in the forest service, despite lawsuits and official complaints.
One female worker Lisa Donnelly says she was denied promotions because
of her gender and was repeatedly harassed by male workers.
"What is happening in California, is just a microcosm of the abuses
happening around the country within the Forest Service," said Lawrence
Lucas, President of the US Department of Agriculture Coalition of
Minority Employees, which spearheads complaints by women and minorities
against the Forest Service.
Today, more than 190 discrimination and sexual harassment complaints are
under investigation in the California region. African American and
Asian American workers have filed discrimination class actions, saying
they have been denied promotions because of race.
The public also is harmed in its contacts with the Forest Service.
Janine McFarland, an archeologist leading preservation efforts of
Ancient Native American rock art, filed 15 complaints against the Forest
Service. She says that in addition to being sexually harassed, she has
been run off the road and threatened with violence by male Forest
Service employees.
Ms. McFarland says male Forest Service employees made lewd sexual
remarks to her Native American volunteers. Eventually, much of her
volunteer staff left, and much of the art, without care and supervision,
was vandalized. Ms. McFarland says that as a result of her filing
complaints, she was punished by being reassigned to a three-month detail
at the Bureau of Land Management.
VIXEL CORPORATION: NY Court Dismisses Officers, Directors From Lawsuit
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed Vixel Corporation's officers and directors from the securities
class action pending against them, the Company and certain underwriters
who participated in the Company's initial public offering in late 1999.
The complaint alleges violations under Section 10(b) of the Securities
Exchange Act of 1934 and Section 11 of the Securities Act of 1933 and
seeks unspecified damages on behalf of persons who purchased our stock
during the period October 1, 1999 through December 6, 2000.
The Company's officers and directors were dismissed from the suit
without prejudice, pursuant to an agreement extending the statute of
limitations until September 30, 2003. The Company believes this suit is
without merit.
WIRELESS FACILITIES: Officers, Directors Dismissed From Securities Suit
-----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed Wireless Facilities, Inc.'s officers and directors as
defendants in the consolidated securities class action filed on behalf
of purchasers of the Company's common stock at various times on or after
November 4,1999.
The suit alleges that the registration statement and prospectus dated
November 4, 1999, issued by the Company in connection with the public
offering of the Company's common stock, contained untrue statements of
material fact or omissions of material fact in violation of securities
laws because the registration statement and prospectus allegedly failed
to disclose that the offering's underwriters had:
(1) solicited and received additional and excessive compensation
and benefits from their customers beyond what was listed in
the registration statement and prospectus; and
(2) entered into tie-in or other arrangements with certain of
their customers which were allegedly designed to maintain,
distort and/or inflate the market price of the Company's
common stock in the aftermarket.
In August 2001, the suit was consolidated for pretrial purposes with
similar lawsuits filed against hundreds of other initial public offering
issuers and their underwriters. An initial case management conference
was also held for the litigation, at which time the court ordered that
the time for all defendants to respond to any complaint be postponed
until further notice of the court.
On July 15, 2002, a joint motion to dismiss was filed on behalf of all
the issuers and their officers and directors in In re IPO Securities
Litigation (including the Company and its officers and directors). On
October 9, 2002, the court signed stipulations and orders of dismissal,
which dismissed each of the Company's individual officers and directors
from the action, without prejudice. The Company remains a defendant in
the litigation.
The Court heard the joint motion to dismiss on November 1, 2002, but a
decision on the motion is not expected until late 2002 or early 2003.
The Company believes this litigation is without merit and intends to
vigorously defend against it. It is impossible at this time to assess
whether or not the outcome of these proceedings will or will not have a
materially adverse effect on the Company.
*United Kingdom Gets Ready To Adopt US Class Action Style Of Litigation
-----------------------------------------------------------------------
When John Tiner, managing director of the UK's Financial Services
Authority, branded some of its critics "ambulance-chasing lawyers," it
became clear that the City of London's watchdog had lost its cool. Mr.
Tiner's exasperation, which erupted in the wake of last month's
parliamentary hearing into the UK's split capital investment trust
debacle, was the latest sign of growing unease over the arrival of US
style class actions on the British shores, the Financial Times reports.
It also pointed to the mounting tension between regulators and
litigators, as they compete to defend the interests of 'downtrodden'
investors. Stephen Alexander, the lawyer who found himself at the
receiving end of Mr. Tiner's tirade, says, "It was an ignorant,
uneducated comment, and it shows people's fears of the unknown."
Mr. Alexander, who represents about five percent of the 25,000 investors
who suffered heavy losses in supposedly "safe" split capital trusts, is
to start proceedings against more than 100 firms, including fund
managers, stock brokers and financial advisers. Similar actions are
also under way on behalf of aggrieved policyholders in Equitable Life,
the embattled UK insurance company. These come after shareholders
launched collective attacks on Railtrack, the UK rail company.
Yet, for all this seemingly spirited activity, it still may take many
months, if not years, writes the Financial Times, for any class action
to be successful. "Class-action lawsuits have arrived in the UK, but
the securities market is taking a wait-and-see approach," says Timothy
Maloney, head of litigation at Eversheds, a corporate law firm.
UK investors have been able to seek collective redress for investment
losses since the beginning of 2000, when a US-style "group action" law
came into effect. So far, there have been about two dozen cases, mostly
involving personal injury and product liability litigation.
Critics within the City of London fear that the UK could follow the
United States, where shareholders appear to place more trust in
litigation than regulation.
Mark Salomon, a partner at Milberg Weiss Bershad Hynes & Lerach, the San
Diego-based firm that has emerged as the most powerful force behind US
class actions, says, "We see ourselves as a necessary adjunct to the
SEC, which is out-manned and out-gunned by lawyers from the big Wall
Street firms."
Last year, Milberg Weiss handled, and financed, more than half of the
securities class actions filed in the US. Over 25 years, the firm
claims to have recovered more than $30 billion for investors.
Typically, it pockets up to 30 percent of the settlement, a large part
of which is then reinvested in new cases.
Mr. Salomon admits that he and his colleagues have been well hated
amongst corporate America, and sometimes called "economic terrorists,"
by individuals within the corporate community. However, says Mr.
Salomon the tables have turned now that investors struggle to make sense
of the kind of world in which Enrons can operate, flourish and fall
apart.
Conspicuous among Mr. Salomon's new supporters are the multi-billion-
dollar pension funds and endowments. The University of California, for
example, has hired the firm to recover $144 million in losses from
Enron.
The latest idea from Milberg Weiss is to use the support from
institutions to push through a radical shareholder rights agenda. To
this end, the law firm teamed up with Robert Monks, one of the best-
known corporate governance activists in the United States. Mr. Monks
believes that conventional shareholder weapons have failed. He hopes to
extract from companies not only damages, but also agreements about
improved corporate governance.
Early evidence suggests that UK institutions will be skeptical about
these new ideas that may accompany the class-action style of litigation
into the UK. The institutions abhor the idea of litigation. William
MacDougall, chief investment officer of the $3 billion UK pension fund
of TRW, a US engineering group, concedes that institutions could, in
theory, be obliged to take part in litigation now that the class action
has arrived.
However, he insists that there are other options that are "more likely
to improve shareholder value. You can talk to the company behind the
scenes, you can vote against the management at the annual meeting, or
you can simply sell the shares."
The economic case for UK class action is further undermined by
comparatively low pay-outs. Typically, shareholder litigation is aimed
at recovering assets from insurance companies that provide liability
cover for company directors. In the UK, liability cover rarely even
approaches the hundreds of millions of dollars that back up US
directors. Nevertheless, the advocates of class action insist that the
phenomenon is in the UK to stay, according to the report by the
Financial Times.
New Securities Fraud Cases
ALLEGHENY ENERGY: Glancy & Binkow Lodges Securities Fraud Suit in NY
--------------------------------------------------------------------
Glancy & Binkow LLP commenced a securities class action lawsuit in the
United States District Court for the Southern District of New York on
behalf of all persons who purchased securities of Allegheny Energy, Inc.
(NYSE:AYE) between April 23, 2001 and October 8, 2002, inclusive.
The suit charges Allegheny and certain of its officers and directors
with violations of federal securities laws. Among other things,
plaintiff claims that defendants' material omissions and the
dissemination of materially false and misleading statements regarding
the nature of Allegheny's business operations and financial performance
caused Allegheny's stock price to become artificially inflated,
inflicting damages on investors.
The complaint alleges that defendants overstated the company's revenue,
trading volume and growth rate through the use of deceptive "round-trip"
or "wash" energy trades associated with Allegheny's acquisition of
Global Energy Markets, the company's energy marketing and trading arm,
from Merrill Lynch.
Revelations about defendants' alleged material misrepresentations and
omissions came to light on September 25, 2002, when the company
announced that it had filed suit against Merrill Lynch, setting a chain
of events in motion which resulted in Allegheny's stock plummeting from
a high of $12.85 on September 25, 2002, to $3.80 on October 8, 2002, a
drop of 70%.
For more details, contact Michael Goldberg by Mail: 1801 Avenue of the
Stars, Suite 311, Los Angeles, California 90067, by Phone: 310-201-9161
or 888-773-9224 or by E-mail: info@glancylaw.com.
ASIA GLOBAL: Green & Jigarjian Commences Securities Fraud Suit in CA
---------------------------------------------------------------------
Green & Jigarjian LLP initiated a securities class action in the United
States district Court for the Central District of California, Western
Division on behalf of purchasers of Asia Global Crossing Ltd. (ASGXF)
common stock from October 6, 2000 through January 28, 2002. The
corrected notice reads as follows:
The suit alleges that the managers of Asia Global Crossing Ltd. and
Global Crossing Ltd. hid the declining financial conditions of both of
the jointly managed companies from Asia Global Crossing's investors.
The suit alleges that defendants falsely represented to the investing
public that Global Crossing would be able to provide its subsidiary Asia
Global Crossing with a $400 million dollar line of credit, and that the
value of Asia Global's hard assets, primarily composed of its cable
lines and transmission equipment, had not been significantly affected by
the worldwide glut of fiberoptic capacity.
For more details, contact Robert S. Green by Phone: 415-477-6700 by E-
mail: gj@classcounsel.com or visit the firm's Website:
http://www.classcounsel.com
CREDIT SUISSE: Rabin & Peckel Commences Securities Fraud Suit in S.D. NY
------------------------------------------------------------------------
Rabin & Peckel LLP initiated a securities class action in the United
States District Court for the Southern District of New York, on behalf
of all persons or entities who purchased or otherwise acquired Agilent
Technologies, Inc. securities (NYSE:A) between December 13, 1999 and
September 9, 2002, both dates inclusive. Credit Suisse First Boston and
Elliot Rogers are named as defendants in the complaint.
The complaint alleges that the defendants violated section 10(b) the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
the Securities and Exchange Commission. In particular, the complaint
alleges that defendants:
(1) issued and maintained "Buy" and "Hold" recommendations on
Agilent securities without any rational economic basis;
(2) failed to disclose that they were issuing and maintaining
these recommendations to obtain investment banking business;
and
(3) concealed significant, material conflicts of interest that
prevented them from providing independent objective analysis.
The complaint alleges that as a result of these false and misleading
statements and omissions of material fact, the price of Company
securities were artificially inflated throughout the class period
causing plaintiff and the other members of the class to suffer damages.
For more details, contact Eric J. Belfi or Sharon Lee by Mail: 275
Madison Avenue, New York, NY 10016 by Phone: 800-497-8076 or
212-682-1818 by Fax: 212-682-1892, by E-mail: email@rabinlaw.com or
visit the firm's Website: http://www.rabinlaw.com.
DPL INC.: Bernstein Liebhard Commences Securities Fraud Suit in S.D. OH
-----------------------------------------------------------------------
Bernstein Liebhard & Lifshitz, LLP initiated a securities class action
in the United States District Court for the Southern District of Ohio,
Western Division, on behalf of all persons who purchased or acquired
DPL, Inc. (NYSE: DPL) common stock between March 30, 1999 and August 14,
2002, inclusive.
The complaint 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, during the class period, defendants falsely represented that the
Company's portfolio of financial assets, comprising approximately 25% of
DPL's assets, were "highly diversified both in terms of geography and
industry," were carried (if public securities) at market or (if private
securities) at conditions approximating market, and were a hedge against
the Company's energy business.
Defendants failed to disclose that DPL's investment portfolio was highly
concentrated in Argentinian debt securities that were highly risky.
After the close of regular trading on July 1, 2002, DPL issued a press
release announcing that it was revising its estimate of earnings for the
full year 2002, largely as a result of a $110 million, or $0.92 per
share, write-down of its financial assets. The write-down related
primarily to investments in Latin America. Full year 2002 net income,
which had been projected to be at least $1.87 per share, was now being
projected at only $0.72 per share.
DPL's announcement of a $0.95 per share reduction in projected year 2002
earnings caused DPL common stock to plummet to a closing price of $21.57
per share on July 2, 2002, down $4.68 per share, or 22%, from its
closing price of $26.25 per share on July 1, 2002.
DPL's actual operating results for the second quarter of 2002 were
subsequently reported on July 29, 2002, precipitating a review of DPL's
debt for possible downgrading, and a continuing decline in the market
price of DPL common stock.
For more details, contact Ms. Linda Flood by Mail: 10 East 40th Street,
New York, New York 10016, by Phone: 800-217-1522 or 212-779-1414 or by
E-mail: DPL@bernlieb.com or visit the firm's Website:
http://www.bernlieb.com.
ENDOCARE INC.: Weiss & Yourman Commences Securities Fraud Suit in CA
---------------------------------------------------------------------
Weiss & Yourman initiated a securities class action in the United States
District Court for the Central District of California on behalf of
purchasers of Endocare, Inc. (Nasdaq: ENDOE) common stock between
October 23, 2001 and October 30, 2002, inclusive.
Endocare is a medical device company focused on the development of
urological healthcare technologies. The suit charges that defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10-b(5) by artificially inflating the price of Company stock
through the issuance of false and misleading financial statements
throughout the class period.
The complaint alleges that as a result of this inflation, the Company
was able to complete a public offering of 4 million shares, raising
proceeds of $68 million. When the Company finally announced that it
would have to delay the release of its third quarter results until after
it completed an internal review, the stock dropped significantly,
causing massive damages to those shareholders who purchased their stock
during the class period.
For more details, contact Weiss & Yourman - Los Angeles by Phone:
800-437-7918 by E-mail: info@wyca.com or visit the firm's Website:
http://www.wyca.com
MERRILL LYNCH: Rabin & Peckel Commences Securities Fraud Suit in S.D. NY
------------------------------------------------------------------------
Rabin & Peckel LLP initiated a securities class action in the United
States District Court for the Southern District of New York, on behalf
of all persons or entities who purchased or otherwise acquired
LookSmart, Ltd. securities (Nasdaq:LOOK) between May 25, 2000 and June
25, 2001, both dates inclusive. Merrill Lynch & Co., Inc. and Henry
Blodget are named as defendants in the complaint.
The complaint charges defendants Merrill Lynch and Mr. Blodget with
violations of the Securities Exchange Act of 1934. The complaint
alleges that defendants issued analyst reports concerning LookSmart that
recommended the purchase of LookSmart common stock and that set price
targets for LookSmart common stock, which were materially false and
misleading and lacked any reasonable factual basis.
In particular, it is alleged that defendants failed to disclose
significant material conflicts of interest which resulted from the use
by defendant Merrill Lynch of Mr. Blodget's reputation and ability to
issue favorable analyst reports, to obtain investment banking business
for Merrill Lynch.
It is also alleged that defendants, in issuing their LookSmart analyst
reports, in which they recommended the purchase of LookSmart securities,
failed to disclose material, non-public, adverse information which they
possessed about LookSmart.
Throughout the class period, defendants maintained an "Accumulate/Buy"
or "Neutral/Buy" recommendation on LookSmart stock in order to obtain
and support lucrative financial deals for Merrill Lynch.
For more details, contact Eric J. Belfi or Sharon Lee by Mail: 275
Madison Avenue, New York, NY 10016, by Phone: 800-497-8076 or
212-682-1818, by Fax: 212-682-1892, by E-mail: email@rabinlaw.com or
visit the firm's Website: http://www.rabinlaw.com
QUADRAMED CORP.: Bernstein Liebhard Launches Securities Suit in N.D. CA
-----------------------------------------------------------------------
Bernstein, Liebhard & Lifshitz LLP initiated a securities class action
on behalf of all persons who acquired the securities of QuadraMed, Corp.
(NASDAQ: QMDCE) during the period from May 11, 2000 to August 11, 2002,
in the United States District Court for the Northern District of
California against the Company, Lawrence P. English, and Mark N. Thomas.
The complaint charges that QuadraMed and certain of its officers and
directors 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 QuadraMed securities.
After misrepresenting the Company's financial statements throughout the
class period, on August 12, 2002, QuadraMed issued a press release
entitled, "QuadraMed to File For Extension For Form 10-Q." The press
release stated in part: "QuadraMed Corporation announced today that it
will file with the U.S. Securities and Exchange Commission for an
automatic 5-day extension of the deadline for submitting its second
quarter 2002 Quarterly Report on Form 10-Q.
The Company will use the additional five calendar days to complete a
restatement of its consolidated financial statements for the fiscal
years ended December 31, 2000, 2001, and for the interim period ended
March 31, 2002." On this news, QuadraMed's stock dropped to $3.09 per
share.
For more details, contact Ms. Linda Flood, Director of Shareholder
Relations by Mail: 10 East 40th Street, New York, New York 10016 by
Phone: 800-217-1522 or 212-779-1414 by E-mail: QMDCE@bernlieb.com or
visit the firm's Website: http://www.bernlieb.com.
RELIANT ENERGY: Abbey Gardy Commences Securities Fraud Suit in S.D. NY
----------------------------------------------------------------------
Abbey Gardy, LLP commenced a securities class action in the United
States District Court for the Southern District of New York on behalf of
all persons who purchased Reliant Energy Corp. 2.0% Zero-Premium
Exchangeable Subordinated Notes due 2029 (ZENS) (Registration No. 333-
86403) between October 17, 2001 and July 18, 2002,inclusive.
The complaint names as defendants:
(1) AOL Time Warner, Inc.,
(2) Stephen M. Case,
(3) Wayne H. Pace,
(4) Robert W. Pittman,
(5) David M. Colburn and
(6) J. Michael Kelly
The complaint, filed on November 22, 2002, 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 both AOL-TW securities and
Reliant's ZENS.
According to the complaint, Reliant owned a substantial number of shares
of Time Warner, Inc. common stock. In an effort to monetize its
investment in Time Warner, Reliant issued ZENS and tied their value to
the stock performance of AOL-TW.
The complaint alleges that AOL-TW issued materially false and misleading
statements regarding, among other things, the revenue derived from its
online advertising division. The complaint alleges that these
statements were materially false and misleading because they failed to
disclose that:
(i) the Company was experiencing declining advertising revenues;
(ii) much of the revenue AOL-TW was booking was derived from
unconventional non-advertising deals disguised to look like
advertising revenue;
(iii) much of the Company's revenue was recognized in violation of
Generally Accepted Accounting Principles and would ultimately
have to be restated, and
(iv) that the Company had failed to properly write down the value
of more than $50 billion of goodwill. AOL-TW's materially
false and misleading statements artificially inflated the
price of AOL-TW securities and the ZENS.
On July 18, 2002, the last day of the class period, The Washington Post
revealed that according to its own internal investigation of AOL-TW, the
Company had misstated its advertising revenue and had engaged in a
variety of questionable transactions, which called into question the
validity of its financial results.
Following this announcement, AOL-TW's stock price dropped almost 55%
from it's high of $25.99 at the beginning of the Class Period to an
intraday low of $11.75, and ultimately closed at $12.45, .76 lower than
the previous day's close of $13.11. The ZENS, which had an exchange
value of $25.99 at the beginning of the Class Period, fell to $12.45 at
the end of the Class Period.
For more details, contact Nancy Kaboolian or Mark C. Gardy by Phone:
800-889-3701 or by E-mail: Nkaboolian@abbeygardy.com or
Mgardy@abbeygardy.com.
SCHERING PLOUGH: Bernstein Liebhard Lodges Securities Suit in NJ Court
----------------------------------------------------------------------
Bernstein Liebhard & Lifshitz LLP initiated a securities class action in
the United States District Court for the District of New Jersey, on
behalf of all persons who purchased or acquired Schering Plough
Corporation (NYSE:SGP) common stock (the "Class") between October 1,
2002 and October 3, 2002, inclusive.
The complaint alleges that the Company, Richard Jay Kogan, its Chairman,
Chief Executive Officer and President, and Putnam Investment Management,
LLC violated the anti-fraud provisions of the Securities Exchange Act of
1934.
Defendants' wrongdoing is alleged to be the result of Mr. Kogan
selectively providing non-public material information about Schering's
adverse projected earnings to Putnam management at a luncheon meeting on
October 1, 2002. It was not until approximately 11:00 p.m. on October
3, 2002 that Schering publicly announced that its 2003 and 2004 earnings
would be far below analysts expectations.
As a result of the selective disclosure by Mr. Kogan of this adverse,
material, non-public information to Putnam and others, Putnam and the
other defendants were able to sell enormous amounts of Schering shares
before the general public received such information, thereby enabling
these portfolio managers to benefit from the receipt of their inside
information to the detriment of plaintiff and the class.
From the time defendant Putnam first learned of the material inside
information through the close of the market on October 4, 2002, Schering
stock plunged from $21.80 per share to as low as $16.10 per share, a
drop of over 25%.
For more details, contact Ms. Linda Flood, Director of Shareholder
Relations by Mail: 10 East 40th Street, New York, New York 10016 by
Phone: (800) 217-1522 or (212) 779-1414 by E-mail: SGP@bernlieb.com or
visit the firm's Website: http://www.bernlieb.com.
SMARTFORCE PLC: Cauley Geller Commences Securities Lawsuit in NH Court
----------------------------------------------------------------------
Cauley Geller Bowman & Coates, LLP initiated a securities class action
in the United States District Court for the District of New Hampshire
against defendants SmartForce PLC d/b/a SkillSoft (Nasdaq: SKIL), and
executives William McCabe and Gregory Priest, on November 22, on behalf
of all persons who purchased and/or acquired American Depository Shares
(ADSs) of SmartForce PLC d/b/a SkillSoft between October 19, 1999
through and including November 18, 2002 to recover damages caused by the
defendants' violation of federal securities laws.
Specifically, this class period includes the following members:
(1) all purchasers of SmartForce PLC's ADSs from October 19, 1999
through September 6, 2002, trading under the ticker symbol
SMTF;
(2) all persons who acquired shares of SmartForce PLC's ADSs as
part of the merger between SmartForce PLC and SkillSoft
Corporation completed on or around September 6, 2002;
(3) all purchasers of SmartForce PLC's ADSs after September 6,
2002 when it began doing business as "SkillSoft" trading under
the ticker symbols (Nasdaq: SKILD) and then (Nasdaq: SKIL).
The complaint charges that during the class period, the defendants and
its predecessors issued and/or failed to correct false and misleading
financial statements and press releases concerning the Company's
publicly reported revenues and earnings directed to the investing
public. Specifically:
(i) SmartForce improperly recognized revenue under a reseller
arrangement, resulting in the booking of revenue before it was
received from the resellers;
(ii) SmartForce recognized revenue for software sales upon
shipment, even though the payment schedules for those
contracts extended over several years;
(iii) SmartForce recognized revenue in connection with other
customer contracts upon execution of those contracts, even
though the terms were four to five years in length;
(iv) lastly, SmartForce improperly accounted for bad debt, causing
an increase in its reserve.
On November 19, 2002, SmartForce shocked the market by announcing that
it intended to restate the historical financial statements of SmartForce
for 1999, 2000, 2001 and the first two quarters of 2002. In the process
of preparing the closing balance sheet of SmartForce as of September 6,
2002, SmartForce identified several accounting issues that required the
pre-merger SmartForce financial statements to be restated. In response
to this announcement, the market reacted sharply and swiftly. The
shares of SmartForce dropped 33.7% to close at $3.07.
As a result of the restatement, SmartForce was forced to delay the
release of its operating results for the quarter ended October 31, 2002.
SmartForce stated that it could not currently determine when it would be
in a position to file the Form 8-K amendment and report its third
quarter results.
For more details, contact Jackie Addison, Heather Gann or Sue Null by
Mail: P.O. Box 25438, Little Rock, AR 72221-5438 by Phone: 888-551-9944
by E-mail: info@cauleygeller.com or visit the firm's Website:
http://www.cauleygeller.com
SMARTFORCE PLC: Charles Piven Lodges Securities Fraud Suit in NH Court
----------------------------------------------------------------------
The Law Offices Of Charles J. Piven, PA initiated a securities class
action on behalf of all persons who purchased and/or acquired American
Depository Shares (ADSs) of SmartForce plc d/b/a SkillSoft between
October 19, 1999 through and including November 18, 2002, to recover
damages caused by the defendants' violation of federal securities laws.
Specifically, this class period includes the following members:
(1) all purchasers of SmartForce plc's ADSs from October 19, 1999
through September 6, 2002, trading under the ticker symbol
SMTF;
(2) all persons who acquired shares of SmartForce plc's ADSs as
part of the merger between SmartForce plc and SkillSoft
Corporation completed on or around September 6, 2002;
(3) all purchasers of SmartForce plc's ADSs after September 6,
2002 when it began doing business as "SkillSoft" trading under
the ticker symbols (Nasdaq:SKILD) and then (Nasdaq:SKIL).
The case is pending in the United States District Court for the District
of New Hampshire against defendants SmartForce plc d/b/a SkillSoft and
executives William McCabe and Gregory Priest.
The action charges that defendants violated 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, PA by Mail: The World Trade
Center-Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland
21202 by Phone: 410-986-0036 or by E-mail: hoffman@pivenlaw.com
SYNCOR INTERNATIONAL: Stull Stull Commences Securities Suit in C.D. CA
----------------------------------------------------------------------
Stull, Stull & Brody initiated a securities class action against Syncor
International Corp., on behalf of shareholders who purchased Syncor
stock between March 30, 2000 through and including November 5, 2002
in the United States District Court for the Central District of
California.
The suit charges that defendants violated Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10-b(5). The action arises
from damages incurred by the class as a result of a scheme and common
course of conduct by defendants, which operated as a fraud and deceit on
the class during the class period.
Syncor claims to be a leading provider of high technology health care
services. The complaint alleges that throughout the Class Period, the
Company's Chairman of the Board and the director of its Asian division
were making illegal payments to Syncor's overseas customers. Before the
market opened on November 6, 2002, the Company announced that it was
conducting an internal investigation into illegal payments to its
overseas customers and had contacted the Justice Department and the
Securities Exchange Commission, and that its previously announced
acquisition by Cardinal Health, Inc. was in doubt.
As a result of this news, Syncor's stock price plummeted from $22.50 per
share to $13.42 per share. NASDAQ halted trading of Syncor's stock
pending a satisfactory response to its request for additional
information from the Company.
For more details, contact Michael D. Braun or Marc L. Godino by Phone:
888-388-4605 by E-mail: info@secfraud.com or visit the firm's Website:
http://www.secfraud.com.
TENET HEALTHCARE: Wolf Haldenstein Commences Securities Suit in C.D. CA
-----------------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class
action in the United States District Court for the Central District of
California, Western Division, on behalf of purchasers of the securities
of Tenet Healthcare Corp. (NYSE: THC) between October 3, 2001 and
October 31, 2002, inclusive against the Company and certain of its
officers and directors.
During the class period, defendants represented that the Company's
"terrific" financial results were due to operational improvements and
its commitment to quality and cost-effective care. Throughout the class
period, defendants repeatedly stated that Tenet's impressive financial
results were the result of management's intense focus on creating
outstanding hospitals with financial resources to reinvest and
continually improve its state-of-the-art facilities and high-quality
patient care. One of Tenet's competitive advantages was the depth of
expertise in their management team.
However, the complaint alleges that Tenet and its top managers actually
knew or should have known that Tenet's 42% increase in earnings per
share for fiscal year 2002 was inflated by, among other things,
wrongfully inducing patients into undergoing unnecessary and invasive
surgeries and by aggressive pricing strategies which improperly
increased their outlier payments under Medicare.
Tenet's aggressive growth in high acuity areas had a very significant
impact on its revenues. In fiscal 2002, sub-acute days at Tenet
hospitals declined but its highest acuity services, ICU and CCU, grew
7%.
Unfortunately, these increased revenues were driven by defendants
knowingly engaging in a scheme to cause patients to undergo unnecessary
invasive coronary procedures including heart catheterization, stent
placement, and angioplasty. Two of Tenet's doctors at their Redding
Medical Center in Redding, California are currently under investigation
by the U.S. Attorney's Office in California for unnecessary invasive
coronary procedures, including coronary artery bypass surgery and heart
valve replacement surgery. California is one of Tenet's largest
markets.
In addition to these unnecessary procedures, Tenet also engaged in
aggressive pricing strategies which resulted in increased outlier
payments from Medicare, which was Tenet's second largest payer and
accounted for approximately 32% of its net revenues. Tenet receives a
higher than average amount of outlier payments, making this element of
reimbursement a significant portion of the Company's total Medicare
payments. Such aggressive pricing strategies were used nationwide at
Tenet facilities.
For more details, contact Fred Taylor Isquith, Michael Miske, George
Peters or Derek Behnke by Mail: 270 Madison Avenue, New York, New York
10016, by Phone: 800-575-0735 by E-mail: classmember@whafh.com or visit
the firm's Website: http://www.whafh.com. All e-mail correspondence
should make reference to Tenet.
TXU CORPORATION: Pomerantz Haudek Commences Securities Suit in N.D. TX
----------------------------------------------------------------------
Pomerantz Haudek Block Grossman & Gross, LLP initiated a securities
class action in the United States District Court for the Northern
District of Texas against TXU Corp. (NYSE:TXU) and two of the Company's
senior officers, on behalf of investors who purchased or otherwise
acquired the Company's securities during the period from April 25, 2002
and October 11, 2002.
The complaint alleges that, throughout the class period:
(1) defendants represented that the Company was on track to earn
$4.35 to $4.45 per share for 2002 and $4.80 to $4.90 per share
for 2003;
(2) despite difficult conditions in its British operations, the
Company was positioning itself for future growth in the U.K.
energy trading and retail markets; and
(3) the Company's $0.60 quarterly dividend was safe
Defendants made these representations despite having no reasonable basis
to do so in that the Company lacked adequate internal controls and had
deficiencies in its planning and budgeting systems, rendering it
incapable of ascertaining the true extent of the deteriorating condition
of its operations in the U.K.
As a result of these misrepresentations, the market price of the
Company's securities was artificially inflated during the class period.
Due to this, defendants were allegedly able to take advantage of the
artificial inflation in the price of the Company's securities by selling
over $1 billion of common stock and equity-like securities known as
FELINE PRIDES.
Before the market opened on October 4, 2002, TXU issued a statement
disclosing the seriousness of the problems in the U.K. business,
including customer attrition and lower wholesale electricity prices, and
significantly lowering its earnings guidance for 2002 and 2003. On this
news, the Company's stock price declined to $27 per share, from more
than $40 per share the prior week.
However, the Company's stock continued to trade at artificially inflated
prices as defendants concealed the severe liquidity and credit problems
it was experiencing due to the U.K. situation. Defendants even assured
the market that the Company was strong financially and that its dividend
was "secure."
Then, on October 14, 2002, before the market opened, TXU announced that
it was slashing its dividend by 80%, to $0.125 per share and would no
longer support its European operations. The Company's stock price
plunged $5.81, or 31%, to close at $12.94 on volume of 39 million
shares.
For more details, contact Andrew G. Tolan by Phone: 888-476-6529 or
888 4-POMLAW by E-mail: agtolan@pomlaw.com or visit the firm's Website:
http://www.pomerantzlaw.com
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Copyright 2002. All rights reserved. ISSN 1525-2272.
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