/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/030408.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 8, 2003, Vol. 5, No. 69 Headlines AG-BAG INTERNATIONAL: Court Refuses Appeal of Suit Certification Denial AMERICAN COMMERCIAL: IN Court Dismisses Lawsuit Over Painting Emissions AMERICAN SKANDIA: Labels "Without Merit" Securities Lawsuit in S.D. NY AOL TIME: UC Says Stock Inflation, Collapse Caused by Securities Fraud BODY SOLUTIONS: Parent Mark Nutritionals Ordered Into Ch. 7 Liquidation CATHOLIC CHURCH: Trooper Claims Sexual Abuse by Catholic School Teacher CITGO PETROLEUM: $5M Settlement Approved With Refinery Area Residents COSI INC.: Faces Several Suits For Securities Act Violations in S.D. NY CREDIT REPORTERS: Reach Settlement In Suit Over Faulty Credit Reports DELTATHREE INC.: NY Court Dismisses in Part Securities Fraud Lawsuit DELTRATHREE INC.: Labels "Without Merit" Suit Over Atarey Acquisition DOMINICK'S FINER: Plaintiffs Should Appeal Suit Dismissal By March 2003 ERIE INSURANCE: Reaches Settlement in Suit Over Non-OEM Repairs in PA HEALTHSOUTH CORPORATION: Chubb Seeking To Rescind Execs' D&O Policies IBP INC.: IL Cattle Producers Allege Firm Restricted Price Competition INDIAN FUNDS: Confirmation Of Special Trustee Ross Swimmer Hits Delay INSIGHT ENTERPRISES: Asks AZ Court To Dismiss Securities Fraud Lawsuit JOHN HANCOCK: Death Benefit Period For Plaintiffs Began February 2003 MEDIA ARTS: MI Gallery Owners Sue Art Distributor Over Creating "Glut" METASOLV SOFTWARE: NY Court Dismisses Consolidated Securities Lawsuit MSC INDUSTRIAL: Asks NY Court To Dismiss Consolidated Securities Suit ORCHID BIOSCIENCES: NY Court Dismisses Consolidated Securities Lawsuit PHILIP MORRIS: Refusal To Lower Bond Would Violate "Due Process Rights" SAWTEK INC.: Faces Several Suits For Securities Violations in M.D. FL STEVEN MADDEN: Reaches Agreement To Settle Consolidated Securities Suit STILLWATER MINING: Asks Court To Dismiss Consolidated Securities Suit SUNRISE POWER: Named As Defendant in CA Energy Market Antitrust Lawsuit TERADYNE INC.: Asks MA Court To Dismiss Consolidated Securities Lawsuit TIME-WARNER ENTERTAINMENT: Moves For Writ of Certiorari For GA Lawsuit TRANSMETA CORPORATION: Court Approves $5.5M Securities Suit Settlement TOBACCO INDUSTRY: Former Tobacco Whistleblower Lectures About Smoking TOBACCO INDUSTRY: Two Cigarette-Makers Sue CA To Halt "Bad-Guy" TV Ads TOBACCO LITIGATION: IL Senate Committee Refuses To Excuse Philip Morris WASHINGTON MUTUAL: Sued for Electronic Payment Withdrawal Overcharges New Securities Fraud Cases COSI INC.: Bernstein Liebhard Commences Securities Lawsuit in S.D. NY VOICEFLASH NETWORKS: Bernstein Liebhard Files Securities Lawsuit in FL ********* AG-BAG INTERNATIONAL: Court Refuses Appeal of Suit Certification Denial ----------------------------------------------------------------------- The United States District Court for the District of Minnesota refused to overturn its denial of class certification for a lawsuit filed against Ag-Bag International Ltd., and two other defendants, alleging conspiracy to fix prices and sales quotas involving silage bag manufacturers and vendors. Two suits were initially filed against the Company and the other defendants, labeled "S&S Forage & Equipment Co., Inc. v. Up North Plastics, et al.," filed February 5, 1998, and "Mr. and Mrs. Donald L. Steward v. Up North Plastics, Inc. et al.," filed September 29, 1999. Class certification has been denied in the S&S Forage case. The defendants briefed and argued motions for summary judgment in both cases, which the court denied under both cases. In June 2002, the court dismissed, in its entirety, the Mr. and Mrs. Donald L. Steward v. Up North Plastics, Inc. et al. case based upon the plaintiffs' request to the court. Furthermore, the plaintiffs in the remaining S&S Forage individual claim filed a motion before the court appealing the May 2000 denial of class certification. The defendants responded accordingly to the court. In November 2002, the court denied the plaintiffs' motion. If the plaintiffs were to obtain a judgment against the three companies, the Company could be held jointly and severally liable. The Company believes that the remaining plaintiffs' individual claim has no merit. The Company continues to believe that the outcome of the litigation will not have a material adverse impact on its financial condition or results of operations. AMERICAN COMMERCIAL: IN Court Dismisses Lawsuit Over Painting Emissions ----------------------------------------------------------------------- The Clark Circuit Court in Indiana dismissed a class action filed against American Commercial Lines LLC and several of its subsidiaries by two Jeffersonville, Indiana residents purporting to represent a class of individuals affected by alleged fugitive emissions from the Company's painting activity. The named plaintiffs, seeking actual and punitive damages, claim that fugitive paint emissions have diminished the value of their automobiles and other property, and seek redress under a variety of theories, including negligence and trespass. AMERICAN SKANDIA: Labels "Without Merit" Securities Lawsuit in S.D. NY ---------------------------------------------------------------------- American Skandia Life Assurance Corporation faces a securities class action filed in the United States District Court for the Southern District of New York on behalf of all those who purchased an individual tax-deferred variable annuity contract or who received a certificate to a group deferred variable annuity contract, issued, underwritten, marketed or sold, by one of the defendants, which was used to fund a contributory (not defined benefit) retirement plan or arrangement qualified for favorable income tax treatment pursuant to the Internal Revenue Code, including but not limited to an IRA, rollover IRA, Keogh account or 401(k). The lawsuit was brought on behalf of all persons who purchased or received American Skandia variable annuity contracts for their contributory, qualified retirement arrangements (as defined above) during the class period - those who purchased or received such contracts beginning on December 13, 1997, with the class period ending (and including): (1) those who received the variable annuity with an Issue Date no later than October 22, 2000, inclusive, or (2) those who received or purchased the variable annuity whose applications were dated no later than October 22, 2000, inclusive, or if and only if the application was undated then that application was received by any defendant or any agent for defendant (for example, received by the financial institution, unaffiliated with any defendant, which sold the annuity to the Class Member) no later than October 22, 2000, inclusive. The lawsuit alleges that the defendants committed violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder; Sections 11, 12 and 15 of the Securities Act of 1933, and the Investment Company Act of 1940, an earlier Class Action Reporter story states. The suit also names as defendants American Skandia Marketing, Inc. and other American Skandia affiliates. This litigation is in the preliminary stages. The Company believes this action is without merit, and intends to vigorously defend against this action. AOL TIME: UC Says Stock Inflation, Collapse Caused by Securities Fraud ---------------------------------------------------------------------- The University of California's (UC) Board of Regents recently authorized UC to file an action against AOL Time Warner, Associated Press Newswires reports. The UC plans to file an action in California state court against the company, its directors and officers, its auditor, Ernst & Young LLP and the financial officers involved in the 2001 AOL Time Warner merger: Citigroup, Salomon Smith Barney and Morgan Stanley Inc. The UC charges, in short, that AOL's fraudulent misstatements of its financial condition caused an inflation of the stock price at the time of the merger, causing the share price of the new merged company to be inflated as well, and resulting ultimately in a collapse of stock prices of the new merged company when true facts became known. The university's complaint will allege that AOL materially misrepresented its revenues and number of subscribers during the period prior to and immediately after its January 2001 merger with Time Warner Inc., using such impermissible techniques as "round trip exchanges" in which it swapped advertising with other Internet companies and counted these transactions as revenues. Since AOL's misstatements of its financial condition had artificially inflated its stock price at the time of merger, it caused the share price of the new merged company to be inflated as well. Therefore, Time Warner shareholders were forced to exchange their shares for the artificially inflated shares in the merged company. These shareholders were damaged when the AOL Time Warner share price fell as the true facts about AOL's financial condition became known. AOL Time Warner's stock price has dropped substantially, from $48 per share at the time of the merger to approximately $11 per share. "Under the law, a company issuing new stock, as the merged AOL Time Warner did in January 2001, is liable to the purchasers of that stock for the material misstatements that inflate the stock's value, James E. Holst, UC's general counsel. "We believe that AOL Time Warner and its investment advisers must be held responsible for the admitted misstatement of AOL's financial condition." At the time of the merger, UC owned more than 11.3 million shares of Time Warner stock worth approximately $800 million, and no shares of AOL. The reduction in the value of UC's investment as a result of the subsequent decline in AOL Time Warner's share price is in excess of $450 million. BODY SOLUTIONS: Parent Mark Nutritionals Ordered Into Ch. 7 Liquidation ----------------------------------------------------------------------- Texas Attorney General Mark Abbott successfully brought suit in US Bankruptcy Court in San Antonio, Texas, against Mark Nutritionals, the parent company which made and sold the Body Solution products, the San Antonio Express-News reports. Mr. Abbott and the federal bankruptcy trustee overseeing the case recently moved the court to order the conversion of Mark Nutritionals from a Chapter 11 reorganization to a Chapter 7 liquidation, a motion in which the Federal Trade Commission and the states of Illinois and Pennsylvania joined. The bankruptcy court granted the motion, in which Mr. Abbott argued that the state of Texas is suing to stop the company from making fraudulent weight-loss claims; that it appeared, under the weight of the evidence, "that this company (Mark Nutritionals) could only operate profitably by engaging in myriad unlawful practices, and that cannot be tolerated." Mark Nutritionals' attorney, William Oliver, said the company, which is profitable, wanted to reorganize under Chapter 11 of the bankruptcy code so it could continue operating and paying off its debts. Mr. Oliver added that "it did not make sense, however, for us to spend the money it would take to fight that (the motion for liquidation)." Initially, Body Solutions enjoyed great success. However, the Federal Trade Commission and Texas officials last year ordered the company to remove weight-loss claims from the packaging and advertising of Body Solution products, after several complaints and lawsuits by dissatisfied customers. Revenue slacked off considerably without the millions of dollars of advertising using the disc jockeys and radio talk show hosts to pitch the products around the country. The bankruptcy trustee estimates that all the class actions filed against the company in several states amount to claims of about $190 million. Other claims, about 182 of them, have been filed with the court and total $224.8 million. Mark Nutritionals already sold off about $2.5 million in assets, including a corporate jet and its headquarters building, Mr. Oliver said. It could raise another $500,000 to $1 million selling its remaining property. It may take up to a year to account for the assets and divide up the proceeds, Mr. Oliver added. CATHOLIC CHURCH: Trooper Claims Sexual Abuse by Catholic School Teacher ----------------------------------------------------------------------- A state trooper, Sgt. Philip Jepson, said he was molested by Brother Leon Cyr at the Bishop Guertin High School in Nashua, New Hampshire, in the 1980s, Associated Press Newswires reports. Sgt. Jepson's lawyer, Peter Hutchins, has filed a class action against the school and the Brothers of the Sacred Heart, a Rhode Island-based religious order, which runs a number of schools, including the Guertin High School where Sgt Jepson attended. So far, said Mr. Hutchins, 14 men have joined the lawsuit. "It has now become clear to us one year into this that this is not a problem of things that happened long ago, involving only one or two bad apples," said Mr. Hutchins. "To the contrary, it was and remains a system of secrecy and deceit." Four other Bishop Guertin teachers have been accused of molesting minors during the past year, including two who admitted to more than 30 assaults between them. Mr. Jepson said he knows of other victims at Bishop Guertin. He said his primary motivation for coming forward is his hope that by doing so he will give others the courage to do so. Mr. Jepson said that for years he told no one about the alleged assault. He said it became increasingly difficult to keep silent, in part because as a state trooper he handles many sexual assault cases. Mr. Jepson said he had hoped Bishop Guertin would take responsibility for the more than a dozen accusations made against teachers at the Nashua school during the past year. Mr. Jepson said Brother Leon Cyr sexually assaulted him when he was a junior, around 1981 or 1982, in the Brother's bedroom. The Brother was not his teacher, but the two met through after-school activities. Brother Cyr, who taught history at the school from the 1970s until the mid-1990s, and was in charge of alumni activities, denied the accusation and said he would call Sgt. Jepson. CITGO PETROLEUM: $5M Settlement Approved With Refinery Area Residents --------------------------------------------------------------------- Judge Nanette Hasette approved a class action settlement between Citgo Petroleum Corporation and some 3,000 residents near the north side refineries in Corpus Christi, Texas, whose 10-year-old class action alleged that the refineries were liable for air and ground contamination, as well as damage to the residents' properties, Associated Press Newswires reports. Citgo Petroleum was the last remaining company to reach agreement with the plaintiffs, in a lawsuit that has involved buyouts of residences in the refinery area. This is not the first time Judge Hasette has approved the $5 million out-of-court settlement involving Citgo. The judge approved one in January 2001, but later decided that the company had breached the settlement terms. The settlement will mean thousands of dollars for some and a few cents for others. Judge Hasette also approved $700,000 separately for plaintiffs' lawyers. Attorneys for both the company and residents said the money would not be distributed until all possible appeals have been exhausted. An attorney for Citgo said the lawsuit should not have existed as a class action. COSI INC.: Faces Several Suits For Securities Act Violations in S.D. NY ----------------------------------------------------------------------- Cosi, Inc. faces several securities class actions filed in the United States District Court for the Southern District of New York. On February 5, 2003, a shareholder class action was filed, alleging that the Company and various of its officers and directors and the Underwriter violated Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended, by misstating, and by failing to disclose, certain financial and other business information. At least six additional class action complaints with similar allegations were later filed. The suits are brought on behalf of a purported class of purchasers of the Company's stock allegedly traceable to its November 22, 2002 initial public offering. The suits generally claim that: (1) at the time of the IPO, the Company's offering materials failed to disclose that the funds raised through the IPO would be insufficient to implement the Company's expansion plan; (2) it was improbable that the Company would be able to open 53 to 59 new stores in 2003; (3) at the time of the IPO, Cosi had negative working capital and therefore did not have available working capital to repay certain debts; and (4) the principal purpose for going forward with the IPO was to repay certain existing shareholders and members of the Board of Directors for certain debts and to operate the Company's existing restaurants. On February 21, 2003, a purported shareholder class action complaint was filed in the same court alleging that the Company and certain of its officers and directors violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10-b promulgated thereunder, by issuing a series of material misrepresentations to the market between November 22, 2002 and February 4, 2003. The emphasis of the allegations in this suit is that the defendants knowingly or recklessly caused misrepresentations and omissions to be made regarding the Company's operating condition and future business prospects. Among other things, plaintiffs allege that: (i) defendants failed to disclose that the funds raised by the IPO would be insufficient to implement the Company's expansion plan; (ii) at the time of the IPO, defendants should have known that the costs of expansion would be greater than the cash available to the Company, making it improbable that the Company would be able to successfully continue to open new stores at the pace announced by the Company; and (iii) defendants failed to disclose that a reduction in the offering price of the IPO would result in the Company being forced to abandon its growth strategy. The plaintiffs in the suits generally seek to recover compensatory damages, expert fees, attorneys' fees, costs of court and pre- and post-judgment interest. The suits are at a preliminary stage, and the Company expects that these related lawsuits will be consolidated into a single action. The Company believes that it has meritorious defenses to these claims. CREDIT REPORTERS: Reach Settlement In Suit Over Faulty Credit Reports --------------------------------------------------------------------- US District Court Judge Margaret B. Seymour in Spartansburg, South Carolina, has given preliminary approval to a class action settlement that requires the three big credit-reporting companies to refine their bankruptcy-reporting processes, in order to make it clear who has filed for bankruptcy and who has not, according to a report by The Atlanta Journal-Constitution. Judge Seymour expects to hold a final hearing on the settlement in late September. Lead plaintiff Franklin Clark of South Carolina discovered that a bankruptcy notation can show up on an individual's credit report even if he/she has never filed, resulting in being denied a loan or being charged a higher interest rate even if the loan is approved. "Bankruptcy is the most significant black mark you can get on your credit report," said Brad Scriber of the Consumer Federation of America. The settlement does not eliminate all the concerns about the accuracy or completeness of credit reports, said Mr.Scriber; but "it sounds like the settlement improves a dimension of both these concerns." The next step is for Experian, TransUnion and Atlanta-based Equifax, the three big credit-reporting companies, to search their files for consumers who have not filed for bankruptcy but who have a bankruptcy notation on their reports. Attorneys in the case estimate that could include two million to three million people. Those people will be contacted and given the choice of accepting the settlement or seeking damages on their own if they wish. Individuals who accept the settlement will see the bankruptcy notation removed, or possibly an explanation added that it applies to someone else. These same individuals also will be offered a free copy of their credit report, which carries a bill-paying history. Lead plaintiff Franklin Clark will receive an $1,000 award for assuming that role, and the five-member plaintiffs' legal team will get $15 million. Because the credit-reporting companies will change their computer systems to clarify the bankruptcy issue, "it will affect all consumers." DELTATHREE INC.: NY Court Dismisses in Part Securities Fraud Lawsuit -------------------------------------------------------------------- The United States District Court for the Southern District of New York dismissed in part the consolidated securities class action filed against Deltathree, Inc. and certain of its former officers and directors, arising out of the Company's initial public offering in November 1999. Various underwriters of the IPO also are named as defendants in the suit. The suit alleges, among other things, that the registration statement and prospectus filed with the Securities and Exchange Commission for purposes of the IPO were false and misleading because they failed to disclose that the underwriters allegedly: (i) solicited and received commissions from certain investors in exchange for allocating to them shares of Company stock in connection with the IPO; and (ii) entered into agreements with their customers to allocate such stock to those customers in exchange for the customers agreeing to purchase additional shares in the aftermarket at predetermined prices. On August 8, 2001, the court ordered that the suit, along with hundreds of IPO allocation cases against other issuers, be transferred to Judge Shira Scheindlin for coordinated pre-trial proceedings. In July 2002, omnibus motions to dismiss the complaints based on common legal issues were filed on behalf of all issuers and underwriters. On February 19, 2003, the court issued an opinion granting in part and denying in part those motions to dismiss. These cases remain at a preliminary stage and no discovery proceedings have taken place. The Company believes that the claims asserted against it are without merit. DELTRATHREE INC.: Labels "Without Merit" Suit Over Atarey Acquisition --------------------------------------------------------------------- Deltathree, Inc., its officers and directors and its majority stockholder Atarey Hasharon Chevra Lepituach Vehaskaot Benadlan (1991) Ltd. faces four lawsuits filed in connection with the Company's formation of the special committee to evaluate the proposal by Atarey to purchase all of its outstanding shares of common stock not held by Atarey and its affiliates. The lawsuits purport to be class actions on behalf of our public stockholders. The plaintiffs in these actions have asserted a variety of claims, including allegations that Atarey's proposed tender offer price for our publicly held shares is unfair and grossly inadequate and that the Company's officers and directors have breached their fiduciary duties to the public stockholders. Each of the lawsuits has been filed in the Delaware Court of Chancery in and for New Castle County. The Company does not believe that these lawsuits state valid claims against it or any of its officers or directors. DOMINICK'S FINER: Plaintiffs Should Appeal Suit Dismissal By March 2003 ----------------------------------------------------------------------- Plaintiffs have until March 27, 2003 to appeal the dismissal of a class action filed in the Circuit Court of Cook County, Illinois, against Dominick's Finer Foods, Inc. (predecessor of Dominick's Finer Foods, LLC), and Jewel Food Stores, a subsidiary of Albertson's, Inc. The complaint alleged, among other things, that Dominick's and Jewel conspired to fix the retail price of milk in nine Illinois counties in the Chicago area, in violation of the Illinois Antitrust Act. The court certified the lawsuit as a class action on behalf of all persons residing in the nine-county area who purchased milk from the defendants' retail stores in these counties during August 1996 to August 2000. Plaintiffs' expert has calculated damages against both defendants in several ways, ranging from $51 million to $126 million. If damages were to be awarded, they may be trebled under the applicable statute. Plaintiffs also seek an injunction enjoining the defendants from acts in restraint of trade. On February 25, 2003, after three weeks of trial, the trial judge, sitting without a jury, dismissed the action at the end of plaintiffs' case, and entered judgment in favor of defendants. The Company believes that the plaintiffs have no meritorious grounds for an appeal and, if there is an appeal, expects the judgment to be affirmed. ERIE INSURANCE: Reaches Settlement in Suit Over Non-OEM Repairs in PA --------------------------------------------------------------------- Erie Insurance Company and Erie Insurance Exchange reached a settlement for a class action filed against them in February 2000 in the Court of Common Pleas of Philadelphia County, Pennsylvania. Erie Insurance Exchange issued an automobile insurance policy to the plaintiff. The suit alleges that the plaintiff was involved in an accident and that her insured vehicle was damaged in the accident. The complaint alleges that the defendants acted improperly when it used non-original equipment manufacturer (non-OEM) parts in repairing the damage to the plaintiff's vehicle. In March 2002, the courts granted the plaintiff's revised motion for class certification. The Company attempted to appeal the court order granting certification of the class, and filed a Petition for Review with the Pennsylvania Superior Court. In August 2002, the Superior Court denied the defendant's petition for review. The Company then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. On November 27, 2002, the Supreme Court denied the defendant's petition. The defendants then filed a class certification joinder complaint against several individuals and/or entities that are the manufacturers and/or distributors of non-OEM crash parts. The joinder Complaint asserts causes of action against the manufacturers and/or distributors of the non-OEM crash parts. In January 2003, the Companies and the plaintiffs reached an agreement, in principle, to settle this litigation. The settlement would result in the dismissal of all claims against the Companies. The parties are in the process of drafting the appropriate settlement documents. After the documents are drafted and executed by the parties, a motion for approval will be filed with the court. Although the parties have reached an agreement in principle to settle the case, it is still possible that the settlement will not be finalized and/or approved by the court. It is still too early to assess the probable outcome or the amount of damages of this civil class action lawsuit if the settlement is not finalized or approved by the court. The Company believes it has meritorious legal and factual defenses to this lawsuit and these defenses will be pursued vigorously if the case is not resolved through settlement. HEALTHSOUTH CORPORATION: Chubb Seeking To Rescind Execs' D&O Policies --------------------------------------------------------------------- Insurance companies that provide the officers at HealthSouth Corporation with executive protection insurance in their defense against investor lawsuits, have asked a Delaware court to rescind the policies, Dow Jones Business News reports. HealthSourth Corporation is a rehabilitation hospital operator which has been accused by its shareholders of accounting fraud. Two of Chubb Corporation's units, Federal Insurance Co. and Executive Risk Indemnity Inc., recently filed suit in Delaware Superior Court, seeking permission to rescind policies that would help HealthSouth executives defend against investor lawsuits. The insurance providers claim that statements and information they relied upon when issuing and renewing the policies since September 1998, were false and misleading. Unknown to them at the time, say the insurers, former Chairman and Chief Executive Richard Scrushy and other company executives were engaged in "a massive scheme to defraud the public" by falsifying public financial statements, according to court documents filed in Delaware Superor Court. Nearly two weeks ago, the US Securities and Exchange Commission (SEC) filed a civil complaint that accused HealthSouth and Mr. Scrushy of overstating earning by $1.4 billion since 1999. SEC officials contend the alleged fraud goes back to shortly after the company went public in 1986. From the SEC probe and complaint, it was but a short step to a "heads up" alert for the insurance providers. In their court documents filed in Delaware, Federal Insurance and Executive Risk Indemnity said they notified HealthSouth, Mr. Scrushy and former Chief Financial Officer Weston Smith that they were rescinding the policies and returning the premiums paid by HealthSouth. The isurers also said in their court documents that they are now asking the court to either rescind the policies or declare that the policies do not cover any lawsuits or other legal proceedings stemming from the alleged fraudulent schemes. According to the two insurance providers, HealthSouth sought coverage under their policies for state and federal securities class action and derivative lawsuits filed in 1998, as well as lawsuits filed last year. An ever-widening criminal investigation also has commenced, and two former Health South chief financial officers and a former assistant controller have entered plea-bargain agreements with the US attorney in Birmingham, Alabama, in which all three have pleaded guilty to a variety of federal charges and have agreed to cooperate with the criminal investigation. IBP INC.: IL Cattle Producers Allege Firm Restricted Price Competition ---------------------------------------------------------------------- Illinois cattle producers filed a class action (Pickett et al v. IBP Inc.) in US District Court in Alabama, alleging that IBP unlawfully restricted price competition for cattle, resulting in cattle producers receiving lower prices for their animals than they otherwise would have gotten, The Pantagraph (Bloomington, IL) reports. Illinois cattle producers who sold beef to IBP Inc. on a cash basis from February 1994, through October 31, 2002, the class period, could receive money through a pending class action. Dave Domina, an Omaha, Nebraska attorney in charge of the case, said the case could affect 30,726 cattle producers across the nation, including 2,134 in Illinois. "I am not at liberty to discuss a settlement amount because of a confidentiality agreement. IBP kills about nine to 10 million cattle per year," said Mr. Domina, who has represented cattlemen on a variety of legal matters. Cattle producers wanting to be part of the suit do not need to take any action now. However, cattle producers who do not want to be part of the lawsuit must submit a written statement by June 20, to Office of the Clerk, US District Court, P.O. Box 711, Montgomer, Ala. 36101-0711. If a settlement occurs, participating cattle producers will be asked to provide proof of their sales in the form of invoices and other records. The trial is not expected to begin until January. INDIAN FUNDS: Confirmation Of Special Trustee Ross Swimmer Hits Delay --------------------------------------------------------------------- Although backers of Cherokee Nation Chief Ross Swimmer say it is but a matter of time before Mr. Swimmer is confirmed as the nation's next special trustee to handle the American Indian Trust Fund, there are others who believe there is a real opposition to his nomination, Associated Press Newswires reports. Critics believe that the position in which Mr. Swimmer has been serving, director of the Office of Indian Trust Transition, would make it impossible for him to be independent enough to represent the best interests of the tribes and individual member on trust fund matters. The Senate Indian Affairs Committee approved Mr. Swimmer's nomination in early March, one week after one member of the panel issued a technical challenge. Opposition now appears to be limited to a handful of Democratic senators who represent western states with large tribal populations. Senator Timothy Johnson, D-S.D., sat that at least some of the opposition may be coming from the frustration over the lack of settlement of the many trust fund issues. For example, a class action was filed several years ago by some 30,000 Indians claiming the mismanagement, squander, theft of, or even failure to collect, the royalties owing the Indian owners of the lands that have been leased to third parties for such purposes as oil drilling, mining, timber harvesting, grazing and more. The plaintiffs charge that billions of dollars have not been accounted for, nor has a better method of handling the trust fund accounts and the monies from the leases been developed even though Washington, D.C. District Court Judge Royce C. Lambeth has ordered a number of Secretaries of the Interior to make such accounting and develop a better accounting system. Judge Lamberth has held Secretaries in contempt for their failures to meet these orders or even come up with results that could be discussed and taken back to the drawing board for improvement. Secretary Gail Norton is appealing the most recent contempt order. Confidence by the American Indians holding trust fund accounts is minimal; they would consider the nomination of someone already within the Interior Department with some question. Meanwhile, Secretary Norton, according to Interior Department spokesman Daniel DuBray, said that the Secretary believes "Ross Swimmer is a superb choice for the position of special trustee and is working closely with the Senate to secure his confirmation." In the Senate, Brook Simmons, spokesman of US Senator Don Nickles, R- Okla., said, "We have been working closely with senators who have concerns, and we are cautiously optimistic that Ross Swimmer will be confirmed by the U.S. Senate in rather short order." INSIGHT ENTERPRISES: Asks AZ Court To Dismiss Securities Fraud Lawsuit ---------------------------------------------------------------------- Insight Enterprises, Inc. asked the United States District Court, District of Arizona to dismiss the consolidated securities suit filed against it and: (1) Eric J. Crown, the Chairman of the Board of Directors, (2) Timothy A. Crown, Chief Executive Officer and a director, and (3) Stanley Laybourne, a director and Executive Vice President, Chief Financial Officer and Treasurer The suit alleges violations of Section 10(b) of the Securities Exchange Act of 1934, and SEC Rule 10b-5. The plaintiff in this action alleges the Company and certain of its officers made false and misleading statements pertaining to its business, operations and management in an effort to inflate the price of the Company's common stock. The suit seeks class action status to represent all buyers of the Company's common stock from September 3, 2001 through July 17, 2002. JOHN HANCOCK: Death Benefit Period For Plaintiffs Began February 2003 --------------------------------------------------------------------- The settlement death benefit period in the class action filed against John Hancock Life Insurance Company has commenced on February 19,2003. The suit, filed in New Mexico state court, alleged that the Company failed to adequately notify policyholders of additional costs tied to premium payments made periodically rather than on an annual basis, according to an earlier Class Action Reporter story. In July 2002, the Company entered into a settlement agreement with policyholders who paid premiums on a monthly, quarterly or semiannual basis, rather than annually. Under the settlement, class members will receive an extra $800, $1,000 or $1,400 on top of whatever benefits their policies provide at the time of death. As a result of the settlement, the Company established a $30.0 million reserve ($19.5 million after taxes) as of June 30, 2002 to provide for economic relief in the form of a Settlement Death Benefit to the approximately 1.5 million class members who purchased various insurance products from the Company and paid on a monthly, quarterly or semi- annual basis. The reserve also provides for the legal and administrative costs associated with the settlement. In entering into the settlement, the Company specifically denied any wrongdoing. The Settlement Death Benefit Period began on February 19, 2003 and extends for either nine or twelve months, depending upon the age of the class member. Although some uncertainty remains as to the final cost of the settlement, it is expected that it will not differ materially from the amounts presently provided for by the Company. MEDIA ARTS: MI Gallery Owners Sue Art Distributor Over Creating "Glut" ---------------------------------------------------------------------- Three lawsuits filed by current and former Michigan art gallery owners against Media Arts Inc., accuse the company of saturating the market with the work of Thomas Kinkade. Norman Yatooma, the attorney who is representing the three gallery owners, is asking the court to certify the claims of the three plaintiffs, and others, as a nationwide class action, the Associated Press Newswires reports. The lawsuits have been filed in Wayne County Circuit Court, and allege that a glut of Kinkade works left the galleries with overstock and consequent debts, The Detroit News reported in a recent story. David and Nancy White of Bloomfield Hills filed the first Michigan suit, followed by Brian and Andrea Wittman of Kalamazoo. Both couples have closed their galleries. Birmingham gallery owner James Cote also filed a lawsuit against Media Arts, which, in turn, contends it moved to terminate its contract with Mr. Cote first. The lawsuits of the three gallery owners claim that Media Arts flooded retail outlets with cheap versions of Thomas Kinkade's paintings - meaning a painting on paper which could be sold for $200 or less, while a limited-edition canvas lithograph would be priced in the thousands at their galleries. Brian Wittman said he saw the same books, throws and pillows he sold in his Kalamazoo gallery for much lower prices at discount retailers, while Media Arts did not allow galleries to discount their merchandise. "That's when we knew it was over," said Mr. Wittman. The plaintiffs also contend that Media Arts approved too many gallery openings in a limited area. The Whites estimated they lost $2.4 million over the four years they owned galleries, and the Wittmans said they accumulated $100,000 in debt during the past two years. Media Arts says the Michigan suits and a few others in California and Texas, involve less than a dozen out of nearly 300 gallery owners. Morgan Hill, California-based Media Arts said a small minority of its gallery partners got into financial trouble and want the distributor to bail them out. "We want our partners to be successful," said Media Arts' Chief Operating Officer Steven Paszkiewicz. "We don't want to have saturation in any part of the country." He said Media Arts has about 3,000 distribution partners, including 267 independently owned Signature Galleries. Thomas Kinkade's art, and the way it is produced, has drawn both praise and criticism. The warehouse where "master highlighters" add brush strokes to mass-produced lithographs has been described by critics as an art factory. However, defenders point to its popularity, and Julie McBride, who co-owns a Signature Gallery in Wyandotte with her husband Mark, pointed out that "Tom has made fine art accessible to may people who in the past either could not identify with the artist or afford original art." METASOLV SOFTWARE: NY Court Dismisses Consolidated Securities Lawsuit --------------------------------------------------------------------- The United States District Court for the Southern District of New York dismissed the consolidated securities class action pending against MetaSolv Software, Inc. and: (1) James P. Janicki, (2) Glenn A. Etherington, (3) Morgan Stanley Dean Witter, Inc., (4) BancBoston Robertson Stephens, Inc., and (5) Jeffries & Company, Inc. It alleged violations of Section 11 of the Securities Act of 1933 against all the defendants, violations of Section 15 of the Securities Act of 1933 against James P. Janicki and Glenn A. Etherington, and violations of Section 12(a)(2) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against Morgan Stanley Dean Witter, Inc., BancBoston Robertson Stephens, Inc., and Jeffries & Company, Inc. On April 19, 2002, the plaintiffs filed an amended complaint that added a claim against the Company under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and a claim under Section 20(a) of the Securities Exchange Act of 1934 against James P. Janicki and Glenn A. Etherington. On October 9, 2002, the court dismissed the claims against Mr. Janicki and Mr. Etherington from the case without prejudice based upon Stipulations of Dismissal filed by the plaintiffs and the two individual defendants. On February 19, 2003, the court dismissed the Section 10(b) claim against the Company without prejudice and with leave to re-plead and dismissed all other remaining claims against the Company. Plaintiffs have indicated that they do not intend to re-plead the Section 10(b) claim against the Company and did not replead the Section 10(b) claim by the deadline imposed by the court. As a result, the Company and its officers are no longer defendants in the above legal proceeding. MSC INDUSTRIAL: Asks NY Court To Dismiss Consolidated Securities Suit --------------------------------------------------------------------- MSC Industrial Direct Co., Inc. asked the United States District Court for the Eastern District of New York to dismiss the consolidated class action filed against it, its directors and certain of its officers, on behalf of a class of the Company's stockholders. The suit seeks unspecified damages based on allegations arising from the Company's announcement that it would restate its consolidated financial statements for fiscal years 1999 through 2001 and the first three quarters of fiscal 2002. Plaintiff alleges that during the periods affected by the restatement, the Company, its directors and certain of its officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by materially misleading the investing public by making false statements in order to inflate the price of the Company's common stock. The dismissal motion is currently being briefed. ORCHID BIOSCIENCES: NY Court Dismisses Consolidated Securities Lawsuit ---------------------------------------------------------------------- The United States District Court for the Southern District of New York dismissed the consolidated securities class action pending against Orchid Biosciences, Inc. on behalf of persons purchasing the Company's stock between May 4, 2000 and December 6, 2000. The suit alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended, and Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The complaint alleged that, in connection with the Company's May 5, 2000 initial public offering, the defendants failed to disclose additional and excessive commissions purportedly solicited by and paid to the underwriter defendants in exchange for allocating shares of the Company's stock to preferred customers and alleged agreements among the underwriter defendants and preferred customers tying the allocation of IPO shares to agreements to make additional aftermarket purchases at pre-determined prices. Plaintiffs claim that the failure to disclose these alleged arrangements made the Company's registration statement on Form S-1 filed with the SEC in May 2000 and the prospectus, a part of the registration statement, materially false and misleading. On February 19, 2003, the court dismissed the suit. There is currently a draft settlement agreement in review by defendant issuers. The Company has not reserved any amount related to this case as it believes that the allegations are without merit and intends to vigorously defend against the plaintiffs' claims. PHILIP MORRIS: Refusal To Lower Bond Would Violate "Due Process Rights" ----------------------------------------------------------------------- Philip Morris USA asked Madison County Circuit Court Judge Nicholas Byron to reduce the $12 billion appeal bond required in order to appeal the $10.1 billion Price class action verdict (formerly known as the Miles case). The cigarette-maker asked Judge Byron to reduce the bond to $1.2 billion, and no more than $1.5 billion, in order to allow the appeal to proceed in an orderly fashion, the Associated Press Newswires reports. "We are asking only to be given the opportunity guaranteed by the United States and Illinois constitutions to have our appeal heard without being forced to post a bankrupting bond. In order to accomplish that, it is imperative that the trial court lower the bond to an amount that the company can satisfy or, alternatively, extend the stay of execution pending appellate review," said William S. Ohlemeyer, Philip Morris USA vice president and general counsel. "All we are seeking is the right guaranteed to any defendant who receives an adverse verdict to have that decision reviewed by appellate courts. Basic fairness, and the law, demands that we receive such an opportunity in this case," Mr. Ohlemeyer said. Under rules adopted by the Illinois Supreme Court, Judge Byron has the authority to reduce the amount of the bond that must be posted in order to stay execution of the judgment and allow the company to proceed with its appeal. The right to appeal an adverse verdict is guaranteed by the US Constitution and the Illinois Constitution. "Philip Morris USA is not the only one concerned about its constitutionally-guaranteed due process rights. Numerous other groups, including some of the nation's most respected media, have questioned why the company should be required to post a potentially bankrupting bond," said Mr. Ohlemeyer. Philip Morris also is continuing to encourage Illinois' state Legislature to pass a law capping the amount of the bond a defendant would be required to post in order to appeal a verdict. Thus far, the Legislature has declined to do so. In another argument, Mr. Ohlemeyer pointed out that specific damages have been determined only for the two class representatives; therefore, he said judgment cannot be considered final. Even Judge Byron, continued Mr. Ohlemeyer, has acknowledged that the process of who will be entitled to damages is "complex" and cannot begin unless the judgment is affirmed on appeal. Accordingly, Philip Morris claims that it actually should only be required to post a bond of slightly more than $35,000, an amount that covers the damages awarded by Judge Byron to two class representatives, plus an additional 20 percent for interest and costs during an appeal. "We believe this case was fatally flawed from the start when the trial court decided that it should be tried as a class action. The resulting verdict ignored the law, the facts and common sense," said Mr. Ohlemeyer. "The court awarded an outrageous amount of money to a group of smokers who claim no injury, smoked cigarettes that were always labeled with government health warnings and many of whom continue to purchase Marlboro Lights despite the claims in the case. "We want to appeal the court's decision, as well as the class certification order that preceded it; because both decisions are clearly wrong on the facts and the law," Mr. Ohlemeyer said. "The issues that the Madison county court attempted to decide are national in scope and governed by federal laws and regulations. It is not appropriate for a state judge to substitute his judgment for those of the Congress and the US Federal Trade Commission." "We believe that, once this case is reviewed by an appellate court, this verdict will be overturned because of the errors that occurred during trial," Mr. Ohlemeyer said. SAWTEK INC.: Faces Several Suits For Securities Violations in M.D. FL --------------------------------------------------------------------- Sawtek, Inc. and certain of its current and former officers face several securities class actions filed in the United States District Court for the Middle District of Florida, on behalf of purchasers of the Company's stock between January 2000 and May 23 or May 24, 2001. All of the complaints allege that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act, as well as Securities and Exchange Commission Rule10b-5, by making false and misleading statements and/or omissions to inflate the Company's stock price and conceal the downward trend in revenues disclosed in the Company's May 23, 2001 press release. At least one complaint alleges a third cause of action for breach of fiduciary duty to the shareholders. The complaints do not specify the amount of monetary damages sought. The Company denies deny the allegations contained in these complaints. STEVEN MADDEN: Reaches Agreement To Settle Consolidated Securities Suit ----------------------------------------------------------------------- Steven Madden, Ltd. reached an agreement to settle the consolidated securities class action filed in the United States District Court for the Eastern District of New York against it, Steven Madden, Rhonda J. Brown (the former President and a former director of the Company) and Arvind Dharia. The suit principally alleges that the Company and the individual defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated under the 1934 Act by issuing false and misleading statements, and failing to disclose material adverse information, generally relating to matters arising from Mr. Madden's June 2000 indictment. The plaintiffs seek an unspecified amount of damages, costs and expenses on behalf of themselves and all other purchasers of the Company's common stock during the period June 21, 1997 through June 20, 2000. On November 30, 2001, all of the defendants served motions to dismiss the consolidated suit. The motions were fully briefed on January 14, 2002. Since that time, a settlement in principle of the suit has been reached, subject to execution of definitive settlement documentation, notices to class members, a hearing and approval by the court. The tentative settlement is within the limits of the Company's insurance coverage. STILLWATER MINING: Asks Court To Dismiss Consolidated Securities Suit --------------------------------------------------------------------- Stillwater Mining Company asked the United States District Court for the Southern District of New York to dismiss the consolidated securities class action filed against it and certain of its senior officers. The suit was filed on behalf of all persons who purchased or otherwise acquired common stock of the company between April 20, 2001 through and including April1, 2002. The suit asserts claims against the company and certain of its officers under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Plaintiffs challenge the accuracy of certain public disclosures made by the company regarding its financial performance, and in particular, its accounting for probable ore reserves. In October 2002 defendants moved to dismiss the complaint and to transfer the case to federal district court in Montana. The motions are pending. On June24, 2002, a stockholder derivative lawsuit was filed against the company and its directors in state court in Delaware. It arises out of allegations similar to the class actions for the period from April 20, 2001 through and including April 20, 2002 and seeks damages allegedly on behalf of the Company's stockholders for breach of fiduciary duties by the directors. The Company considers the lawsuits without merit. SUNRISE POWER: Named As Defendant in CA Energy Market Antitrust Lawsuit ----------------------------------------------------------------------- Sunrise Power Company was named as a defendant in the class action filed in the Superior Court of the State of California, City and County of San Francisco, "on behalf of the general public and as a representative taxpayer suit" against sellers of long-term power to the California Department of Water Resources. The lawsuit alleges that the defendants, including the Company, engaged in unfair and fraudulent business practices by knowingly taking advantage of a manipulated power market to obtain unfair contract terms. The lawsuit seeks to enjoin enforcement of the "unfair and oppressive terms and conditions" in the contracts, as well as restitution by the defendants of excessive monies obtained by the defendants. Plaintiffs in several other class action lawsuits pending in Northern California have filed petitions seeking to have the lawsuit consolidated with their lawsuits. The defendants in the lawsuit and other class actions removed all the lawsuits to the US District Court, Northern District of California, and filed a motion to stay all proceedings pending final resolution of the jurisdictional issue. Various plaintiffs have filed pleadings opposing the removal and requesting that the matters be remanded to state court. The motions are still pending. TERADYNE INC.: Asks MA Court To Dismiss Consolidated Securities Lawsuit ----------------------------------------------------------------------- Teradyne, Inc. asked the United States District Court for the Boston, Massachusetts to dismiss the consolidated securities class action pending against it and two of its executive officers. The complaint alleges, among other things, that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, by making, during the period from July 14, 2000 until October 17, 2000, material misrepresentations and omissions to the investing public regarding Teradyne's business operations and future prospects. The complaint seeks unspecified damages, including compensatory damages and recovery of reasonable attorneys' fees and costs. The Company's motion has not yet been heard. The Company believes it has meritorious defenses to the claims. Management does not believe that the outcome of these claims will have a material adverse effect on Teradyne's financial position or results of operations but there can be no assurance that any such claims would not have a material adverse effect on Teradyne's financial position or results of operations. TIME-WARNER ENTERTAINMENT: Moves For Writ of Certiorari For GA Lawsuit ---------------------------------------------------------------------- Time-Warner Entertainment Company filed a petition for writ of certiorari in the United States Supreme Court relating to the suit pending against it and other defendants, claiming that, they violated their fiduciary duties in operating the Six Flags Over Georgia theme park. The suit was originally filed in the Superior Court of Gwinnett County, Georgia. On December 18, 1998, following a trial, a jury returned a verdict in favor of plaintiffs. The total awarded to plaintiffs was approximately $454 million in compensatory and punitive damages. The case was appealed to the Georgia Court of Appeals, which affirmed the trial court's judgment, and denied reconsideration. The Supreme Court of Georgia denied certiorari in January 2001. In February 2001, the compensatory damages portion of the award plus accrued interest was paid to plaintiffs. In March 2001, the United States Supreme Court granted a stay as to payment of the punitive damages part of the jury's original award, pending the resolution of a petition for certiorari to be filed by the Company, which was filed on June 15, 2001. On October 1, 2001, the United States Supreme Court granted certiorari, vacated the opinion of the Georgia Court of Appeals and remanded the case for further consideration as to punitive damages. In March 2002, the Georgia Court of Appeals affirmed and reinstated its earlier decision regarding the punitive damage award. On April 18, 2002, the Company filed a petition for certiorari to the Georgia Supreme Court seeking review of the decision of the Georgia Court of Appeals, which was denied on September 16, 2002. The Georgia Supreme Court subsequently denied the Company's motion for reconsideration of its September 16th ruling. Plaintiffs have agreed not to pursue payment of the punitive damages award and accrued interest until the resolution of the Company's petition for writ of certiorari to the United States Supreme Court. The petition is pending. TRANSMETA CORPORATION: Court Approves $5.5M Securities Suit Settlement ---------------------------------------------------------------------- The United States District Court for the Northern District of California granted final approval to the US$5.5 million settlement proposed by Transmeta Corporation for the consolidated securities class action filed against it, its directors, and certain of its officers. The consolidated amended complaints purported to allege a class action on behalf of all persons, other than the individual defendants and the other officers of the Company, who purchased or acquired the Company's common stock during the period from November 7, 2000 to July 19, 2001. The consolidated amended complaints alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder, and Sections 11 and 15 of the Securities Act of 1933, as amended. In March 2002, the court granted in part and denied in part defendants' motions to dismiss the consolidated amended complaint. In May 2002, the court granted in part and denied in part defendants' motion to dismiss the second amended complaint, and denied plaintiffs' motion for leave to file a third amended complaint. In June 2002, defendants answered the second amended complaint as to the only surviving claim. In July 2002, defendants filed a motion for summary judgment relating to that claim. Plaintiffs moved for class certification, and the court was scheduled to hear defendants' motion for summary judgment and plaintiffs' motion for class certification in December 2002. The Company believes that the allegations in the second amended complaint and the antecedent complaints are without merit and has defended the consolidated action vigorously. Notwithstanding this belief, and in order to avoid any additional waste of management time and expense, the Company and the individual defendants entered into an agreement with plaintiffs; counsel to settle this action for approximately $5.5 million, all of which monies have been paid by the defendants' directors and officers liability insurance. In December 2002, the court granted preliminary approval to the proposed settlement agreement. In March 2003, the court granted final approval of the settlement agreement. TOBACCO INDUSTRY: Former Tobacco Whistleblower Lectures About Smoking --------------------------------------------------------------------- A former tobacco industry researcher, who turned whistleblower, and whose story inspired the 1999 film, The Insider, has become a lecturer, and will meet with Vermont middle school students later this month as part of his efforts to prevent children from starting smoking, Associated Press Newswires reports. Jeffrey Wigand once worked for Brown & Williamson Tobacco Corporation, and was fired in 1992. Three years later he went to the CBS television news program 60 Minutes with claims of perjury and other wrongdoing by the tobacco industry. Mr. Wigand's inside information about operations within the industry helped push the tobacco industry to settle a class action; namely, the 1998 Master Settlement Agreement, in which the tobacco companies agreed to pay 46 states $206 billion over 25 years to settle their lawsuits. The four remaining states later settled separately for a total of $40 billion. Mr. Wigand will be meeting with middle school students in Bennington and Brattleboro, Vermont, as part of his efforts to prevent children from starting to smoke. Elaine Harwood, coordinator for Bennington's Stamp Out Tobacco Coalition, said Mr. Wigand is particularly persuasive on the industry's use of advertising to target children, women and minorities. Ms. Harwood said her students in a smoking cessation class at Mount Anthony Union High School are typically outraged when they realize how they are manipulated by cigarette ads. "They don't like that," she said. "They don't like being used." Mr. Wigand's $5,000 speaking fee for his two days in Vermont is being paid out of the tobacco settlement money. TOBACCO INDUSTRY: Two Cigarette-Makers Sue CA To Halt "Bad-Guy" TV Ads ---------------------------------------------------------------------- Two cigarette-makers are suing the state of California, claiming that state is portraying tobacco executives as bad guys and seeking a court order forcing the anti-smoking ads off the television screen, The San Francisco Chronicle reports. According to the recently filed lawsuit, brought by R.J. Reynolds and Lorillard Tobacco Co., in a federal district court in Sacramento, the commercials show tobacco employees as "loathsome persons motivated by cynicism, greed and malevolence." Such commercials, says the plaintiffs' lawsuit, are a misuse of public money and taint juries who might have to rule on future legal actions. The companies, both big players in an industry that has been the defendant for at least a decade in smoking-related cases, name California and the state's department of health services as defendants. The plaintiff tobacco companies allege as their major argument that the ad campaign violates the tobacco companies' right to a fair trial by tainting future juries with the idea that the "tobacco industry is a very powerful, deceptive and dangerous enemy of the public's health." Legal experts expressed doubt that the companies could convince a judge that advertising was poisoning their shot at fair trials, an idea, as indicated above, that seems to be the chief argument of plaintiffs' lawsuit. "The notion that you can silence a certain group based on a potential lawsuit is certainly intriguing," said Ruth Jones, a former prosecutor and associate professor at the McGeorge School of Law in Sacramento. After all, said Professor Jones and Fred Galves, another McGeorge law professor, the defendants have the right to remove potential jurists if they think they are biased. Professor Galves also said the companies could sue the state for slander or libel if the commercials were untrue. The companies are also seeking an injunction to prevent California from running commercials or funding billboards that vilify the tobacco industry. Central to the lawsuit are several state-sponsored commercials, such as a spot portraying tobacco executives giving false testimony to Congress, and one in which cigarettes rain down on a schoolyard full of children. "If big tobacco wants a fight, I say bring it on," said Governor Gray Davis at a news conference he called to publicize the suit. The governor, according to The San Francisco Chronicle, likes an opportunity to battle the tobacco industry almost as much as he likes to take on the energy companies. The companies and the governor agree on one thing: The state's aggressive ad campaign has worked. The ads are designed to shift public opinion about smoking and tobacco. According to the lawsuit, "a super-majority of California residents now believes that the tobacco companies, having lied to consumers in the past, bear the burden of proving that they are telling the truth." The tobacco industry also is facing declining business in California: About 16 percent of the state's adults smoked in 2002, down from 22 percent in 1988, according to Governor Davis. This lawsuit comes after two recent major legal setbacks to cigarette companies, including one in California. Last year, a Los Angeles jury awarded a smoker with lung cancer $28 billion after the smoker sued Philip Morris. The amount was later reduced to $28 million. Earlier this month, an Illinois judge ruled against Philip Morris for deceptive ads that suggest low-tar cigarettes are safer - a line of legal reasoning that may open the door to a new set of class-action lawsuits. TOBACCO LITIGATION: IL Senate Committee Refuses To Excuse Philip Morris ----------------------------------------------------------------------- An Illinois Senate Committee recently rejected a plan to excuse cigarette-maker Philip Morris USA from paying a $12 billion bond before it can appeal a court judgment, Associated Press Newswires reports. A number of interested states have intervened into the matter of lowering the appeal bond, saying it could jeopardize the annual installment payments made to the 46 states that were parties with the tobacco industry in 1997, 1998, to a Master Settlement Agreement. Philip Morris, which pays more than half the total payment due the 46 states annually, warned that it would probably have to enter into Chapter 11 bankruptcy if it posted the $12 billion appeal bond. The Senate Committee's vote stops the appeal bond measure, which earlier passed the House, from reaching the full Senate. The measure would have made it easier for Philip Morris to get the bond lowered to $1.2 billion, since then the proposed legislation for a lower appeal bond cap could have proceeded to the full Senate for a vote. Opponents of the bill said that they feared it would let Philip Morris off the hook for the Illinois lawsuit while it struggles with other judgments across the nation, including $74 billion in damages in Florida. Proponents for lowering the cap say they can't find the logic in this reasoning. "This case and the crisis atmosphere it has created could lead to some bad law," said Ann Spillane, chief of staff to Illinois Attorney General Lisa Madigan. On the other hand, Attorney General Christine Gregoire, who negotiated the 1998 settlement, said her goal is to make sure all 46 states involved in receiving payments from the settlement get the money they are owed. Among the things Philip Morris has said is that it cannot post the $12 billion appeal bond and still afford to pay the $2.6 billion it owes the states for the April 15 settlement payment. WASHINGTON MUTUAL: Sued for Electronic Payment Withdrawal Overcharges --------------------------------------------------------------------- Class action lawyers recently filed a lawsuit against Washington Mutual Bank in Los Angeles County Superior Court, alleging that the Seattle- based savings and loan overcharged California customers when the bank electronically withdrew mortgage payments from the customers' accounts, the Los Angeles Times reports. Lead plaintiff Manish Harpalani of Sunnyvale, claims that over several days in January 2002, the bank withdrew four times the amount needed to cover his mortgage payment. The lawsuit was filed by the law firm Masry & Vititoe, in Westlake Village, in conjunction with the Tampa, Florida, law firm of James, Hoyer, Newcomer & Smiljanich. The law firms are seeking class action status, which would allow other individuals with similar complaints to be included as plaintiffs. Another lawsuit against Washington Mutual Bank also was filed in a federal district court in Minneapolis, alleging prepayment penalty overcharges and unauthorized payoff statement and tax fees. A Washington Mutual spokesman said the company does not comment on the specifics of pending litigation. New Securities Fraud Cases COSI INC.: Bernstein Liebhard Commences Securities Lawsuit in S.D. NY --------------------------------------------------------------------- Bernstein Liebhard & Lifshitz initiated a securities class action on behalf of all persons who acquired the common stock of Cosi, Inc. (NASDAQ: COSI) traceable to the Initial Public Offering (IPO) of Cosi common stock, which was completed by Cosi on or about November 22, 2002 through February 3, 2003. The case is pending in the United States District Court for the Southern District of New York, against the Company and: (1) Andrew M. Stenzler, (2) Jonathan M. Wainwright, Jr., (3) Kenneth S. Betuker, and (4) William Blair & Company, L.L.C. The complaint charges that Defendants violated Sections 11, 12, and 15 of the Securities Act of 1933 by issuing a series of material misrepresentations in connection with the IPO Registration Statement and Prospectus. Specifically the Complaint alleges that the Offering Materials were false and misleading and failed to disclose: (i) that the funds raised by the IPO would be insufficient to implement the Company's expansion plan, contrary to the representations repeatedly made in the Company's Offering Materials; (ii) that at the time of the IPO, Defendants should have known that the costs of expansion would be greater than the cash available to the Company (which included working capital and proceeds from the IPO), making it highly improbable that the Company would be able to successfully continue to open numerous new stores at such a rapid pace; and (iii) that a reduction in the price of the IPO would result in the Company being forced to abandon its growth strategy. As a result of the materially false and misleading Offering Materials, the Company sold 5.55 million shares at inflated prices, and netted proceeds of $36.2 million. 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: COSI@bernlieb.com or visit the firm's Website: http://www.bernlieb.com. VOICEFLASH NETWORKS: Bernstein Liebhard Files Securities Lawsuit in FL ---------------------------------------------------------------------- Bernstein Liebhard & Lifshitz LLP initiated a securities class action in the United States District Court for the Southern District of Florida, on behalf of all persons who purchased or acquired VoiceFlash Networks, Inc. (OTC BB: VFNX) securities between March 15, 2002 and January 24, 2003, inclusive. Plaintiff alleges that defendants violated the Securities Exchange Act of 1934 by issuing materially false and misleading statements concerning the Company's financial results during the class period. In particular, plaintiff alleges that Defendants improperly accounted for reserves and improperly recognized certain revenues and income at its wholly owned subsidiary, United Capturdyne Technologies, Inc. Plaintiff further alleges that as a result of these false and misleading statements, the price of VoiceFlash securities was artificially inflated throughout the class period, causing plaintiff and the other members of the Class to suffer damages. 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: VFNX@bernlieb.com or visit the firm's Website: http://www.bernlieb.com. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Trenton, New Jersey, and Beard Group, Inc., Washington, D.C. Enid Sterling, Aurora Fatima Antonio and Lyndsey Resnick, Editors. Copyright 2002. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re- mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *