/raid1/www/Hosts/bankrupt/CAR_Public/030410.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 10, 2003, Vol. 5, No. 71
Headlines
AIRSPAN NETWORKS: Faces Suit For Securities Act Violations in FL Court
AOL TIME: 30 Lawsuits For Securities Violations Consolidated in S.D. NY
AOL TIME: Asks NY Supreme Court To Dismiss Shareholder Derivative Suits
AOL TIME: Plan Participants Launch ERISA Violations Lawsuit in S.D. NY
AOL TIME: Staro Asset Management Files Securities Fraud Suit in S.D. NY
AOL TIME: CA Court Dismisses With Prejudice Suit Over Homestore Stock
ARMKEL LLC: Faces Consumer Suit Over Condoms With N-9 Spermicide in NJ
ARMKEL LLC: Consumers Commence Fraud Suit For Ovulation Test Kits in NJ
ART TECHNOLOGY: Plaintiffs Oppose Motion To Dismiss Securities Lawsuit
AVENTIS INC.: Reaches Agreement To Settle Methionine Antitrust Lawsuits
AVICI SYSTEMS: NY Dismisses In Part Consolidated Securities Fraud Suits
CENTRA SOFTWARE: NY Court Refuses To Dismiss Securities Fraud Lawsuit
CITIZENS INC.: Appeals Court Hears Appeal of TX Lawsuit Certification
COMMERCE INSURANCE: Court Hears Oral Arguments in Diminished Value Suit
DJ ORTHOPEDICS: CA Court Dismisses in Part Consolidated Securities Suit
DURATEK INC.: Oral Arguments on Appeal of Suit Dismissal Set May 2003
ENTERASYS NETWORKS: Appeals Court Reverses Dismissal of NH Stock Suit
ENTERASYS NETWORKS: Asks NH Court To Dismiss Securities Fraud Lawsuit
HANGER ORTHOPEDIC: Plaintiffs Appeal Securities Lawsuit Dismissal in MD
HEALTHSOUTH: Workers Assert Fraud Damaged Stock, Probe Back To Founding
INRANGE TECHNOLOGIES: NY Court Dismisses Securities Fraud Suit in Part
JUPITERMEDIA CORPORATION: DE Court Refuses To Dismiss Mecklermedia Suit
MPOWER HOLDING: Negotiating For Settlement of Securities Fraud Lawsuit
MQ ASSOCIATES: Faces Suit Over Purchase Service Agreements in GA Court
NEOFORMA INC.: NY Court Refuses To Dismiss Consolidated Securities Suit
PEC SOLUTIONS: Labels "Without Merit" Securities Fraud Suits in E.D. VA
SONIC INNOVATIONS: UT Court Refuses To Dismiss Securities Fraud Lawsuit
SWITCHBOARD INC.: Asks MA Court To Dismiss Envenue Stock Purchase Suit
SWITCHBOARD INC.: NY Court Dismisses in Part Securities Fraud Lawsuit
TOBACCO LITIGATION: Draws Record Legal Fees in Philip Morris IL Lawsuit
TOBACCO LITIGATION: Attorneys General Ask Court To Reduce Appeal Bond
TRIARC COMPANIES: Plaintiff Withdraws Appeal of NY Lawsuit Dismissal
UICI: TX Court Confirms Settlement of Consolidated Securities Lawsuit
VERITAS SOFTWARE: Shareholders Lodge Securities Fraud Suits in N.D. CA
New Securities Fraud Cases
ADC TELECOMMUNICATIONS: Marc Henzel Lodges Securities Suit in MN Court
AFC ENTERPRISES: Abbey Gardy Commences Securities Fraud Suit in N.D. GA
CERNER CORPORATION: Chitwood & Harley Lodges Securities Suit in W.D. MO
CERNER CORPORATION: Brian Felgoise Launches Securities Suit in W.D. MO
CERNER CORPORATION: Milberg Weiss Commences Securities Suit in W.D. MO
CERNER CORPORATION: Charles Piven Commences Securities Suit in W.D. MO
HEALTHSOUTH CORPORATION: Wolf Haldenstein Lodges Stock Suit in N.D. AL
HEALTHSOUTH REHABILITATION: Keller Rohrback Files ESOP Fraud Suit in AL
INTERCEPT INC.: Hoffman & Edelson Commences Securities Suit in N.D. GA
PEC SOLUTIONS: Marc Henzel Commences Securities Fraud Suit in E.D. VA
ROBERTSON STEPHENS: Weiss & Yourman Lodges Securities Suit in N.D. CA
*********
AIRSPAN NETWORKS: Faces Suit For Securities Act Violations in FL Court
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Airspan Networks, Inc. faces a securities class action filed in the
United States District Court for the Southern District of Florida,
along with officers Eric D. Stonestrom, Joseph J. Caffarelli, Credit
Suisse First Boston (CFSB), an underwriter of the Company's July 2000
initial public offering, various CFSB related entities and various CFSB
employees.
The complaint alleges claims against the Company, Mr. Stonestrom and
Mr. Caffarelli for violations of Section 10(b) of the Exchange Act,
Rule 10b-5 thereunder, and Florida's Blue Sky laws as well as claims
based on common law theories of fraud and negligent misrepresentation
for allegedly issuing a Registration Statement and Prospectus that
contained materially false and misleading information and that failed
to disclose material information.
In particular, plaintiffs allege that the Company and the Executive
Defendants misrepresented the accuracy of its initial public offering
price, its financial condition, and its future revenue prospects to
create the illusion of unpredictable revenue growth.
The plaintiffs further allege that the effect of the purported fraud
was to manipulate the Company's stock price so that it, along with the
underwriter-defendants, could profit from the manipulation. The
actions seek damages, interest, reasonable attorneys' and experts'
witness fees, disgorgement of profits, restitution and rescission, and
other costs in an unspecified amount.
The complaint also alleges that, pursuant to Section 20(a) and Section
10(b) of the Exchange Act and certain common law theories, the Company
and the Executive Defendants are each jointly and severally liable for
each other's alleged violations of Section 10(b) of the Exchange Act.
The Company has not yet responded to this complaint.
AOL TIME: 30 Lawsuits For Securities Violations Consolidated in S.D. NY
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The thirty securities class actions filed against AOL Time Warner,
Inc., certain current and former executives of the Company and, in
several instances, America Online, Inc. have been consolidated in the
United States District Court for the Southern District of New York.
The suits were initially filed in the United States District Courts
for the Southern District of New York, the Eastern District of
Virginia and the Eastern District of Texas. The complaints purport to
be made on behalf of certain shareholders of the Company and allege
that the Company made material misrepresentations and/or omissions of
material fact in violation of Section 10(b) of the Securities Exchange
Act of 1934, Rule 10b-5 promulgated thereunder, and Section 20(a) of
the Exchange Act.
Plaintiffs claim that the Company failed to disclose America Online's
declining advertising revenues and that the Company and America Online
inappropriately inflated advertising revenues in a series of
transactions.
Certain of the lawsuits also allege that certain of the individual
defendants and other insiders at the Company improperly sold their
personal holdings of AOL Time Warner stock, that the Company failed to
disclose that the merger was not generating the synergies anticipated
at the time of the announcement of the merger and, further, that the
Company inappropriately delayed writing down more than $50 billion of
goodwill. The lawsuits seek an unspecified amount in compensatory
damages.
All of these lawsuits have been centralized in New York federal court
for coordinated or consolidated pretrial proceedings (along with the
federal derivative lawsuits and certain lawsuits brought under the
Employee Retirement Income Security Act). The Minnesota State Board of
Investment has been designated lead plaintiff for the consolidated
securities actions.
The Company is unable to predict the outcome of these suits or
reasonably estimate a range of possible loss.
AOL TIME: Asks NY Supreme Court To Dismiss Shareholder Derivative Suits
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AOL Time Warner, Inc. asked the New York State Supreme Court for the
County of New York to dismiss three shareholder derivative suits
pending against it (as a nominal defendant, and certain of its current
and former directors and offices.
Five shareholder derivative suits remain pending against the Company,
one in the US District Court for the Southern District of New York and
four in the Court of Chancery of the State of Delaware for New Castle
County. These suits name certain current and former directors and
officers of the Company as defendants, as well as the Company as a
nominal defendant.
The complaints allege that defendants breached their fiduciary duties
by causing the Company to issue corporate statements that did not
accurately represent that America Online had declining advertising
revenues, that the merger was not generating the synergies anticipated
at the time of the announcement of the merger, and that the Company
inappropriately delayed writing down more than $50 billion of goodwill,
thereby exposing the Company to potential liability for alleged
violations of federal securities laws.
The lawsuits further allege that certain of the defendants improperly
sold their personal holdings of AOL Time Warner securities. The
lawsuits request that these be returned to the Company:
(1) all proceeds from defendants' sales of AOL Time Warner common
stock,
(2) all expenses incurred by the Company as a result of the
defense of the federal shareholder class actions and
(3) any improper salaries or payments
The four lawsuits filed in the Court of Chancery for the State of
Delaware for New Castle County have been consolidated under the
caption, In re AOL Time Warner Inc. Derivative Litigation. A
consolidated complaint was filed on March 7, 2003.
On December 9, 2002, the Company moved to dismiss the three lawsuits
filed in New York State Supreme Court on forum non conveniens grounds.
Those motions to dismiss were heard on February 11, 2003 and the
decision is pending.
In addition, these three lawsuits have been consolidated under the
caption, In re AOL Time Warner Inc. Derivative Actions. The lawsuit
filed in the US District Court for the Southern District of New York
has been centralized for coordinated or consolidated pre-trial
proceedings with the federal securities and ERISA actions pending
against the Company.
The parties to the federal derivative suit have agreed that all
proceedings in that matter should be stayed pending resolution of any
motion to dismiss in the federal securities class action. The Company
is unable to predict the outcome of these suits or reasonably estimate
a range of possible loss.
AOL TIME: Plan Participants Launch ERISA Violations Lawsuit in S.D. NY
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AOL Time Warner, Inc. faces three class actions filed on behalf of
current and former participants of the The AOL Time Warner Savings
Plan, the AOL Time Warner Thrift Plan and/or the Time Warner Cable
Savings Plan in the United States District Court for the Southern
District of New York.
The suit alleges violations of the Employee Retirement Income Security
Act (ERISA). Collectively, these lawsuits name as defendants the
Company, certain current and former directors and officers of the
Company and members of the Administrative Committees of the Plans. The
lawsuits allege that the Company and other defendants breached certain
fiduciary duties to plan participants by, inter alia, continuing to
offer AOL Time Warner stock as an investment under the Plans, and by
failing to disclose, among other things, that the Company was
experiencing declining advertising revenues and that the Company was
inappropriately inflating advertising revenues through various
transactions.
The complaints seek unspecified damages and unspecified equitable
relief. The ERISA actions have been, or will be, centralized for
coordinated or consolidated pre-trial proceedings as part of the In re
AOL Time Warner Inc. Securities and "ERISA" Litigation in the Southern
District of New York.
The Company is unable to predict the outcome of these cases or
reasonably estimate a range of possible loss.
AOL TIME: Staro Asset Management Files Securities Fraud Suit in S.D. NY
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AOL Time Warner, Inc. faces a class action filed by Staro Asset
Management, LLC in the US District Court for the Southern District of
New York on behalf of all purchasers between October 11, 2001 and
July 18, 2002, of Reliant 2.0% Zero-Premium Exchangeable Subordinated
Notes due 2029, for alleged violations of the federal securities laws.
The Plaintiff is a purchaser of subordinated notes, the price of which
was purportedly tied to the market value of the Company's stock. The
Plaintiff alleges that the Company made misstatements and/or omissions
of material fact that artificially inflated the value of AOL Time
Warner stock and directly affected the price of the notes. Plaintiff
seeks compensatory damages and/or rescission.
The Company has not yet responded to this complaint. Due to the
preliminary status of this matter, the Company is unable to predict the
outcome of this suit or reasonably estimate a range of possible loss.
AOL TIME: CA Court Dismisses With Prejudice Suit Over Homestore Stock
---------------------------------------------------------------------
The United States District Court for the Central District of California
dismissed with prejudice the class action filed against AOL Time
Warner, Inc. by the California State Teachers' Retirement System
(CALSTeRS).
The suit, filed on behalf of a putative class of purchasers of stock
in Homestore.com, Inc., alleged that Homestore engaged in a scheme to
defraud its shareholders in violation of Section10(b) of the Exchange
Act. The Company and two former employees of its AOL division were
named as defendants in the amended consolidated complaint because of
their alleged participation in the scheme through certain advertising
transactions entered into with Homestore.
Motions to dismiss filed by the Company and the two former employees
were granted on March 7, 2003. The Company is unable to predict if an
appeal will be taken or the outcome of any such appeal.
ARMKEL LLC: Faces Consumer Suit Over Condoms With N-9 Spermicide in NJ
----------------------------------------------------------------------
Armkel, LLC faces a class action filed in the Superior Court of New
Jersey over condoms lubricated with the spermicide nonoxynol-9 (N-9).
The suit also names two other condom manufacturers.
The World Health Organization and other interested groups have issued
reports suggesting that N-9 should not be used rectally or for multiple
daily acts of vaginal intercourse, given the ingredient's potential to
cause irritation to human membranes. The lawsuit alleges that condoms
lubricated with N-9 are being marketed in a misleading manner because
the makers of such condoms claim they aid in the prevention of sexually
transmitted diseases whereas, according to the plaintiffs, public
health organizations have found that N-9 usage can under some
circumstances increase the risk of transmission of disease.
Condoms with N-9 have been marketed for many years as a cleared medical
device under applicable FDA regulations, the Company stated in a
disclosure to the United States Securities and Exchange Commission.
However, the Company cannot predict the outcome of this litigation.
ARMKEL LLC: Consumers Commence Fraud Suit For Ovulation Test Kits in NJ
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Armkel LLC faces a class action filed in the Superior Court of New
Jersey, alleging that the Company's ovulation test kits (OTK) are being
marketed in a misleading manner because they do not advise women with
certain ovarian conditions that test results may be inaccurate. The
suit also names as defendants Church & Dwight Co., Inc.
The plaintiffs seek monetary damages as well as injunctive relief
against the OTK's - marketing materials. The products in question have
been cleared for marketing as medical devices under applicable FDA
regulations. If the Company is not successful in defending against a
claim, the Company could be liable for substantial damages or may be
prevented from offering some of the Company's products. These events
could harm the Company's financial condition and results of operations.
ART TECHNOLOGY: Plaintiffs Oppose Motion To Dismiss Securities Lawsuit
----------------------------------------------------------------------
Plaintiffs in the consolidated securities class action filed against
Art Technology Group, Inc. opposed the Company's motion to dismiss the
suit, pending in the United States District Court for the District of
Massachusetts. The suit also names as defendants certain of the
Company's officers and directors.
The suit alleges that the defendants violated Sections 10(b) and 20(a)
of the Securities Exchange Act and SEC Rule 10b-5, which generally may
subject issuers of securities and persons controlling those issuers to
civil liabilities for fraudulent actions or defects in the public
disclosure required by securities laws.
In April 2002, the Company filed a motion to dismiss the case. While
management believes the claims against it are without merit and intends
to defend the action vigorously, the litigation is in the preliminary
stage.
AVENTIS INC.: Reaches Agreement To Settle Methionine Antitrust Lawsuits
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Aventis reached an agreement to settle lawsuits pending in certain US
District Courts alleging that Rhone-Poulenc Animal Nutrition, the
former animal nutrition business of Aventis, and other companies
engaged in concerted pricing practices in the market for the animal
feed methionine in violation of federal antitrust laws.
The plaintiffs are approximately 60 companies that had purchased
methionine directly from Rhone-Poulenc Animal Nutrition and other
defendants in the US from 1985-2000. The plaintiff companies had opted
out of a class action settlement that had been reached between the
class plaintiffs and the defendants in 2002. The settlement agreement
provides for payments from Aventis to the plaintiffs aggregating
approximately $178 million.
Aventis does not expect this settlement to affect its current earnings,
as the amount had been previously provisioned. The cash outflow
related to this settlement had been anticipated in the expected cash
flow for 2003 related to the non-core businesses. On a full-year
basis, the cash outflow related to anticipated non-core litigation
settlements is expected to be more than offset by cash proceeds from
divestitures of remaining non-core businesses.
This settlement will resolve all remaining claims against Aventis and
Rhone-Poulenc Animal Nutrition by direct purchasers of methionine in
the US that were subject to lawsuits pending in the US. By settling,
neither Aventis nor Rhone-Poulenc Animal Nutrition admitted any
liability.
AVICI SYSTEMS: NY Dismisses In Part Consolidated Securities Fraud Suits
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The United States District Court for the Southern District of New York
dismissed in part the consolidated class action filed against Avici
Systems, Inc., one or more of the Company's underwriters in its initial
public offering, and certain officers and directors of the Company.
The suit alleges federal securities law violations, and asserts, among
other things, that the underwriters of the Company's initial public
offering (IPO) improperly required their customers to pay the
underwriters excessive commissions and to agree to buy additional
shares of the Company's stock in the aftermarket as conditions of
receiving shares in the Company's IPO.
The lawsuits further claim that these supposed practices of the
underwriters should have been disclosed in the Company's IPO prospectus
and registration statement. In addition to the cases against the
Company, various other plaintiffs have filed approximately 1,000 other,
substantially similar class action cases against approximately 300
other publicly traded companies and their IPO underwriters in New York
City, which along with the cases against Avici have all been
transferred to a single federal district judge for purposes of case
management.
The Company and its officers and directors believe that the claims
against them lack merit, and intend to defend the litigation
vigorously. In that regard, 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 against them on various legal grounds common to all
or most of the issuer defendants.
In October 2002, the court dismissed without prejudice all claims
against the individual current and former officers and directors who
were named as defendants in the litigation, and they are no longer
parties to the lawsuit.
On February 19, 2003, the court issued its ruling on the motions to
dismiss filed by the underwriter and issuer defendants. In that ruling
the court granted in part and denied in part those motions. As to the
claims brought against the Company under the antifraud provisions of
the securities laws, the court dismissed all of these claims with
prejudice, and refused to allow the plaintiffs an opportunity to re-
plead these claims against the Company. As to the claims brought under
the registration provisions of the securities laws, which do not
require that intent to defraud be pleaded, the court denied the motion
to dismiss these claims as to the Company and as to substantially all
of the other issuer defendants as well. The court also denied the
underwriter defendants' motion to dismiss in all respects.
While the Company can make no promises or guarantees as to the outcome
of these proceedings, it believes that the final result of these
actions will have no material effect on its consolidated financial
condition, results of operations or cash flows.
CENTRA SOFTWARE: NY Court Refuses To Dismiss Securities Fraud Lawsuit
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The United States District Court for the Southern District of New York
refused to dismiss the consolidated securities class action filed
against Centra Software, Inc., certain of its officers and directors
and the managing underwriters of Centra's initial public offering.
The suit is purportedly brought on behalf of the class of persons who
purchased the Company's common stock between February 3, 2000 and
December 6, 2000. The complaint asserts claims under Sections 11 and
15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
The complaint alleges that, in connection with the Company's initial
public offering in February 2000, the underwriters received undisclosed
commissions from certain investors in exchange for allocating shares to
them and also agreed to allocate shares to certain customers in
exchange for the agreement of those customers to purchase additional
shares in the after-market at pre-determined prices.
The complaint asserts that the Company's registration statement and
prospectus for the offering were materially false and misleading due to
their failure to disclose these alleged arrangements. The complaint
seeks damages in an unspecified amount against the Company and the
named individuals.
The underwriter defendants and the Company defendants joined in motions
to dismiss the suit on July 3 and July 15, 2002, respectively. On
October 9, 2002, the plaintiffs dismissed, without prejudice, the
claims against the named Company officers and directors in the above-
referenced action.
The Company believes the allegations lack merit.
CITIZENS INC.: Appeals Court Hears Appeal of TX Lawsuit Certification
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The Third Circuit Court of Appeals in Austin, Texas heard oral
arguments for the appeal of the certification of a class action filed
against Citizens, Inc. in Travis County, Texas district court.
The suit also names as defendants:
(1) Citizens Insurance Company of America,
(2) Negocios Savoy, S.A.,
(3) Harold E. Riley, and
(4) Mark A. Oliver
The suit alleges that life insurance policies sold to certain non-U.S.
residents by CICA are securities and were sold in violation of the
registration provisions of the Texas securities laws. The suit was
filed on behalf of all non-U.S. residents who made premium payments
since August 1996 and assigned policy dividends to a trust for the
purchase of the Company's Class A common stock. The remedy sought is
rescission of the insurance premium payments.
A ruling from the appellate court is expected by mid 2003. The Company
believes the Plaintiff's claim under the Texas Securities Act is not
appropriate for class certification and does not meet the legal
requirements for class action treatment under Texas law. Should the
Third Court of Appeals rule against the Company, the case would be
further appealed to the Texas Supreme Court.
Recent decisions from the Texas Supreme Court indicate a more defense-
oriented approach to class certification cases, especially in class
action cases encompassing claimants from more than one state or
jurisdiction.
The Company expects the Texas appellate courts will ultimately rule in
its favor, decertify the class and remand the matter to district court
for further action. It is the Company's intention to vigorously defend
the request for class certification, as well as to vigorously defend
against the individual claims. During the time of the appeal, the
district court proceedings will be stayed.
COMMERCE INSURANCE: Court Hears Oral Arguments in Diminished Value Suit
-----------------------------------------------------------------------
The Supreme Judicial Court in Massachusetts held oral arguments in
pending class action filed against The Commerce Insurance Company,
alleging damages as a result of the alleged inherent diminished value
to vehicles that are involved in accidents. The suit was initially
filed in Massachusetts state court.
In April 2002, the trial judge in that case entered partial summary
judgment for the plaintiff on the issue of whether the Massachusetts
automobile policy covers her claim, ruling that the plaintiff would be
entitled to reimbursement under the policy if the plaintiff were able
both to prove that her vehicle suffered "inherent diminished value" in
the accident and to quantify the amount of such diminution in value.
Subsequently the Massachusetts Division of Insurance issued an Advisory
ruling in which it stated, among other things, its position that the
policy does not cover claims for "inherent diminished value." In July
of 2002, the trial judge, stayed the trial and granted the Company's
motion to have the appellate court review the issue of whether the
Massachusetts automobile policy provides coverage for inherent
diminished value.
During the third quarter of 2002, the Company applied for direct
appellate review of this issue by the Supreme Judicial Court of
Massachusetts (SJC), and this application was granted. Another
Superior Court judge in Massachusetts ruled, in a similar case brought
by the same plaintiff counsel against another insurer, that claims for
diminution of value are not covered by the Massachusetts automobile
insurance policy.
The Company's and the other insurer's cases have been paired and oral
arguments were heard at the SJC on March 4, 2003. A decision is
expected within 120 days of the oral argument. If the SJC agrees
with the trial judge's interpretation of the Massachusetts personal
automobile insurance policy, then the case will be remanded to the
trial court, where the Company would vigorously oppose class
certification.
DJ ORTHOPEDICS: CA Court Dismisses in Part Consolidated Securities Suit
-----------------------------------------------------------------------
The United States District Court for the Southern District of
California dismissed in part the consolidated securities class action
filed against dj Orthopedics, Inc. and:
(1) Leslie H. Cross, President and Chief Executive Officer,
(2) Cyril Talbot III, former Senior Vice President, Finance, Chief
Financial Officer, and Secretary,
(3) Charles T. Orsatti, former Chairman of the Board of Directors,
and
(4) the underwriters of our initial public offering
Several suits were initially filed in the United States District Courts
for the Southern District of New York and for the Southern District of
California on behalf of purchasers of the Company's common stock
alleging violations of the federal securities laws in connection with
the Company's November 15, 2001 initial public offering.
The complaints sought unspecified damages and alleged that defendants
violated Sections 11, 12, and 15 of the Securities Act of 1933 by,
among other things, misrepresenting and/or failing to disclose material
facts in connection with the Company's registration statement and
prospectus for the initial public offering.
In February 2002, plaintiffs agreed to dismiss the New York actions
without prejudice. On February 28, 2002, a federal district court
judge consolidated the Southern District of California actions into a
single action and appointed Oracle Partners, LP as lead plaintiff.
In May 2002, the lead plaintiff filed its consolidated amended
complaint, which alleges the same causes of action and adds as
defendants the Company's outside directors:
(1) Mitchell J. Blutt, M.D.,
(2) Kirby L. Cramer, and
(3) Damion E. Wicker, M.D
On June 17, 2002, the Company and the other defendants filed a motion
to dismiss the consolidated complaint. The court granted in part and
denied in part the motion to dismiss. The court dismissed several
categories of the misstatements and omissions alleged by plaintiffs.
The remaining allegation pertains to a purported failure to disclose
material intra-quarterly sales data in the registration statement and
prospectus.
The Company believes the claims are without merit. However, there can
be no assurance that it will succeed in defending or settling this
action. Additionally, the Company cannot give any assurance that the
action will not have a material adverse effect on its business,
financial condition and results of operations.
DURATEK INC.: Oral Arguments on Appeal of Suit Dismissal Set May 2003
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Oral arguments on plaintiffs' appeal of the dismissal of a securities
class action filed against Duratek, Inc. and two of its executive is
set for May 2003 in the United States District Court in Baltimore,
Maryland.
The suit alleges that certain statements and information included in
the Company's press releases and in the periodic reports filed by it
with the Securities and Exchange Commission contained materially false
and misleading information in violation of the federal securities laws.
The Company filed a motion to dismiss the complaint. In response, the
plaintiff filed an amended complaint which mooted the Company's motion
to dismiss. The Company then filed a motion to dismiss the amended
complaint, which the plaintiff opposed. In orders dated April 26,
2002, the court granted the motion to dismiss in its entirety and
entered judgment in favor of the Company and the executive officers.
In May 2002, the plaintiff filed a notice of appeal.
The appeal is currently pending in the United States Court of Appeals
for the Fourth Circuit. The parties have completed their briefing and
oral arguments are expected soon.
ENTERASYS NETWORKS: Appeals Court Reverses Dismissal of NH Stock Suit
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The United States Fifth Circuit Court of Appeal reversed the dismissal
of a consolidated securities class action filed against Enterasys
Networks, Inc. and certain of its officers and directors in the United
States District Court for the District of New Hampshire.
The complaint alleges that the Company and several of its officers and
directors disseminated materially false and misleading information
about the Company's operations and acted in violation of Section 10(b)
and Rule 10b-5 of the Exchange Act during the period between March 3,
1997 and December 2, 1997. The complaint further alleges that certain
officers and directors profited from the dissemination of such
misleading information by selling shares of the Company's common stock
during this period. The complaint does not specify the amount of
damages sought on behalf of the class.
In a ruling dated May 23, 2001, the district court dismissed this
complaint with prejudice. The plaintiffs appealed that ruling and the
appeals court reversed and remanded the case to the district court for
further proceedings.
The defendants filed an answer denying all material allegations of the
complaint. If plaintiffs prevail on the merits of the case, the
Company could be required to pay substantial damages.
ENTERASYS NETWORKS: Asks NH Court To Dismiss Securities Fraud Lawsuit
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Enterasys Networks, Inc. asked the United States District Court for the
District of New Hampshire to dismiss the consolidated securities class
action filed against it and:
(1) former chairman and chief executive officer Enrique Fiallo,
(2) former chief financial officer Robert Gagalis,
(3) Piyush Patel, former chief executive officer of Cabletron
Systems, Inc. and
(4) David Kirkpatrick, former chief financial officer of
Cabletron
The complaint alleges violations of Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 thereunder. Specifically, plaintiffs
allege that during periods spanning from June 28, 2000 and August 3,
2001 and in the period between August 6, 2001 and February 1, 2002,
defendants issued materially false and misleading financial statements
and press releases that overstated the Company's revenues, income, and
cash, and understated its net losses, because the Company purportedly
recognized revenue in violation of Generally Accepted Accounting
Principles (GAAP) and its own accounting policies in connection with
various sales and/or investment transactions.
On February 10, 2003, the Company filed a motion to dismiss the amended
complaint. On March 7, 2003 each of the individual defendants filed
motions to dismiss the amended suit. If plaintiffs prevail on the
merits of the case, the Company could be required to pay substantial
damages.
HANGER ORTHOPEDIC: Plaintiffs Appeal Securities Lawsuit Dismissal in MD
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Plaintiffs appealed the dismissal of a securities class action filed
against Hanger Orthopedic Group, Inc., Ivan R. Sabel and Richard A.
Stein in the United States District Court for the District of Maryland
on behalf of all purchasers of the Company's common stock from November
8, 1999 through and including January 6, 2000.
The complaint alleges that during the above period of time, the
defendants violated Section 10(b) and 20(a) of the Securities Exchange
Act of 1934 by, among other things, knowingly or recklessly making
material misrepresentations concerning the Company's financial results
for the quarter ended September 30, 1999, and the progress of its
efforts to integrate the recently-acquired operations of NovaCare O&P.
The complaint further alleges that by making those material
misrepresentations, the defendants artificially inflated the price of
the Company's common stock. The plaintiff seeks to recover damages on
behalf of all of the class members.
The plaintiff's appeal is still pending in the United States Court of
Appeals for the Fourth Circuit. The Company believes that the
allegations have no merit. Additionally, it believes that it is remote
that any claims would result from this action and therefore, no related
liabilities have been recorded.
HEALTHSOUTH: Workers Assert Fraud Damaged Stock, Probe Back To Founding
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Five HealthSouth employees recently filed a lawsuit against the
company, claiming the alleged fraud being investigated by federal
authorities made the company stock a poor investment for their
investment plan, the Associated Press Newswires reports. The workers'
attorney, Steve Berman, said he expects "several thousand" additional
plaintiffs if the court grants the lawsuit class action status. The
lawsuit names as defendants ousted chief executive and chairman,
Richard Scrushy, as well as two other trustees of the employee stock
ownership plan.
Federal authorities investigating allegations of accounting fraud at
HealthSouth have gone all the way back to the company's infancy in the
search for clues. Court documents filed by Richard Scrushy show the
government has subpoenaed records dating back to 1984, the year Mr.
Scrushy founded HealthSouth as a medical rehabilitation company. Mr.
Scrushy and HealthSouth are accused in court documents of overstating
earnings by some $2.5 billion since 1997, to make it appear the company
was meeting Wall Street expectations. Today, HealthSouth has 16
rehabilitation centers in the Denver area.
Court records also show that the government has sought personal
financial information about Mr. Scrushy from AmSouth Bank, First
Commercial Bank, UBS PaineWebber and Marin Inc., a private corporation
Mr. Scrushy controls. Although Mr. Scrushy tried to block
investigators from getting the documents they are seeking, a judge
recently ruled that he must turn over materials since 1986, the year
HealthSouth went public.
Meanwhile, prosecutors said additional criminal charges were being
filed in the probe, which already has resulted in a number of guilty
pleas from HealthSouth officers. A federal judge, as the next step,
will be holding a hearing to determine whether to freeze Mr. Scrushy's
personal assets for the duration of the investigation into allegations
of a massive accounting fraud at the Birmingham-based HealthSouth.
The Securities and Exchange Commission has filed a civil suit against
the company, and Mr. Scrushy and eight former HealthSouth executives
have pleaded guilty to criminal charges of fraud and submitting fake
financial statements.
HealthSouth has been suspended from the New York Stock Exchange.
HealthSouth stock sold over the counter on Monday for about 13 1/2
cents a share. The company's stock traded above $30 a share five years
ago.
INRANGE TECHNOLOGIES: NY Court Dismisses Securities Fraud Suit in Part
----------------------------------------------------------------------
The United States District Court for the Southern District of New York
dismissed in part the consolidated securities class action filed
against Inrange Technologies Corporation and certain of its officers,
seeking recovery of damages caused by alleged violation of securities
laws.
The complaint, which was also filed against the various underwriters
that participated in the Company's initial public offering (IPO), is
identical to hundreds of shareholder class actions pending in this
Court in connection with other recent IPOs and is generally referred to
as In re Initial Public Offering Securities Litigation. The complaint
alleges, in essence that the underwriters combined and conspired to
increase their respective compensation in connection with the IPO by:
(1) receiving excessive, undisclosed commissions in exchange for
lucrative allocations of IPO shares, and
(2) trading in the Company's stock after creating artificially
high prices for the stock post-IPO through "tie-in" or
"laddering" arrangements (whereby recipients of allocations of
IPO shares agreed to purchase shares in the aftermarket for
more than the public offering price for Inrange shares) and
dissemination of misleading market analysis on our prospects
The suit further alleges that the Company violated federal securities
laws by not disclosing these underwriting arrangements in its
prospectus. The defense has been tendered to the carriers of the
Company's director and officer liability insurance, and a request for
indemnification has been made to the various underwriters in the IPO,
but at this point the insurers have refused coverage and the
underwriters have refused indemnification.
The court has granted the Company's motion to dismiss claims under
Section 10(b) of the Securities Exchange Act of 1934 because of the
absence of a pleading of intent to defraud with leave to replead.
However, the court has denied the motion to dismiss claims under
Section 11 of the Securities Act of 1933 because no pleading of fraud
is required. The court has also dismissed the Company's individual
officers without prejudice.
The parties are also working on settlement proposals for this action.
At this point, it is too early to form a definitive opinion concerning
the ultimate outcome. Management believes, after consultation with
legal counsel, that none of these contingencies will have a material
adverse effect on the Company's financial condition or results of
operations.
JUPITERMEDIA CORPORATION: DE Court Refuses To Dismiss Mecklermedia Suit
-----------------------------------------------------------------------
The Delaware Chancery Court refused to dismiss the shareholder class
action filed against Jupitermedia Corporation's executive officers and
drirectors relating to their role as executive officers and directors
of Mecklermedia Corporation prior to its acquisition by Penton Media in
November 1998. The suit specifically names as defendants:
(1) Alan M. Meckler,
(2) Christopher S. Cardell,
(3) Gilbert F. Bach and
(4) Michael J. Davies
The suit, filed by a former stockholder of Mecklermedia Corporation,
alleged that the defendants, as well as the other directors of
Mecklermedia Corporation, breached their fiduciary duties of care,
candor and loyalty in connection with the approval of the sale of
Mecklermedia Corporation to Penton Media at the price paid by Penton
Media and the related sale of 80.1% of the Internet business of
Mecklermedia Corporation to Mr. Meckler at the price paid by Mr.
Meckler.
Among other things, this plaintiff has alleged that the price paid by
Penton Media for the purchase of Mecklermedia Corporation, and the
price paid by Mr. Meckler for an 80.1% stake in the Internet business
of Mecklermedia Corporation, were inadequate. The suit asserted claims
for unspecified damages.
The plaintiff also named Jupitermedia Corporation as a defendant
seeking that a constructive trust be established consisting of any
benefits derived by the defendants in respect of the allegations set
forth in the complaint.
In November 2000, defendants were served with an amended complaint,
which named three additional plaintiffs. In October 2001, with leave
of the Delaware Chancery court, plaintiffs filed a second amended suit.
The suit adds allegations concerning defendants' alleged failure to
disclose certain facts concerning Mr. Meckler's role in the
transactions, his role in negotiations with a third party, and the
valuation of the assets at issue.
Defendants filed a motion to dismiss the suit in April 2002. The court
later issued an opinion denying the defendants' motion. All of the
defendants, including the Company, later served an answer to the suit
generally denying the allegations therein, denying that the directors
of Mecklermedia breached any fiduciary duties, and asserting certain
affirmative defenses.
MPOWER HOLDING: Negotiating For Settlement of Securities Fraud Lawsuit
----------------------------------------------------------------------
Mpower Holding Corporation is working towards the settlement of a
securities class action filed against it alleging violations of the
Securities Exchange Act of 1934 and rule 10(b)-5 thereunder and Section
11 of the Securities Act of 1933, in the United States District Court
for the Western District of New York.
In February 2002, the Company entered its decision and order dismissing
the lawsuit, which the plaintiffs appealed to the United States Court
of Appeals for the Second Circuit. In April 2002, the Company filed a
petition for a relief under Chapter 11 of the Bankruptcy Code. As of
the effective date of the Company's First Amended Joint Plan of
Reorganization (July 30, 2002), the Company was discharged and released
from any "Claim, Debt and Interest," except as otherwise stated in the
Plan, as set forth in the final Confirmation Order entered by the
United States Bankruptcy Court for the District of Delaware on July 17,
2002.
Although the Company is no longer a defendant in the class action and
can have no direct liability to the plaintiffs, the Company
nevertheless remains obligated to indemnify the remaining individual
defendants in the event of an adverse decision against them in the
lawsuit.
The plaintiffs and the remaining individual defendants have entered
into a tentative settlement of the lawsuit, and have submitted a
preliminary approval order to the court, seeking approval of the
settlement in accordance with a stipulation of settlement dated
February 6, 2003. If approved, the settlement would dismiss the action
with prejudice.
All settlement payments and remaining attorneys fees and other legal
expenses incurred by the defendants are to be paid by the Company's
insurance carrier. A hearing is scheduled for October 1, 2003 to
determine whether the proposed settlement of the action on the terms
and conditions provided for in the stipulation is fair, reasonable and
adequate and should be approved by the court.
While the Company believes the remaining individual defendants
anticipate that the proposed settlement will be approved, will continue
to deny any wrongdoing and will vigorously contest the suit if not
settled. Any judgment which it must indemnify the remaining defendants
for that is significantly larger than its available insurance coverage
could have a material adverse effect on its results of operations
and/or financial condition.
MQ ASSOCIATES: Faces Suit Over Purchase Service Agreements in GA Court
----------------------------------------------------------------------
MQ Associates, Inc. faces a class action filed in the State Court of
Fulton County in the State of Georgia. The suit also names as
defendants the Company's subsidiaries, its officers and directors, as
well as various physician groups with whom the Company conducts
business.
The suit raises questions concerning the legality of the purchase
service agreements, which are otherwise the subject of the request for
a declaratory statement from Georgia's Composite State Board of Medical
Examiners (CME).
Due to the preliminary state of the suit and the fact that the
complaint does not allege damages with any specificity, the Company is
unable at this time to assess the probable outcome of the suit or the
materiality of the risk of loss.
However, the Company believes that these agreements neither violate the
Georgia Act nor are improper under Georgia law and will vigorously
defend the suit. However, the Company can give no assurances of the
ultimate impact on its business or operations as a result of this legal
proceeding.
NEOFORMA INC.: NY Court Refuses To Dismiss Consolidated Securities Suit
-----------------------------------------------------------------------
The United States District Court for the Southern District of New York
refused to dismiss the consolidated securities class action filed
against Neoforma, Inc., and:
(1) Robert J. Zollars, chairman and Chief Executive Officer,
(2) Frederick Ruegsegger, former Chief Financial Officer,
(3) Merrill Lynch, Pierce, Fenner & Smith,
(4) Bear Stearns and
(5) FleetBoston Robertson Stephens
The suit was filed on behalf of those who purchased the Company's
common stock from January 24, 2000 to December 6, 2000. The suit
alleges that the underwriter defendants solicited and received
"undisclosed compensation" from investors in exchange for allocations
of stock in the IPO, and that some investors in the IPO agreed with the
underwriter defendants to buy additional shares in the aftermarket to
artificially inflate the price of the Company's stock.
The Company and the individual defendants are named in the suits
pursuant to Section 11 of the Securities Act of 1933 and Section 10(b)
of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder, for allegedly failing to disclose in the Company's IPO
registration statement and prospectus that the underwriter defendants
had entered into the arrangements described above. The amended
complaint seeks unspecified damages.
Similar suits against approximately 300 other issuers and their
underwriters have been consolidated into a single coordinated
proceeding in the Southern District of New York, or the IPO Allocation
Litigation. On October 9, 2002, the individual defendants were
dismissed from the action without prejudice.
The underwriter defendants also moved to dismiss all of the IPO
Allocation Litigation complaints against them, including the action
involving the Company. The Company and the individual defendants,
along with the other non-underwriter defendants in the coordinated
cases, also moved to dismiss the litigation. On February 19, 2003, the
court denied those motions on all issues relevant to the Company.
Discovery in the litigation, which had been stayed pending a ruling on
the motions to dismiss, has commenced, and the Company is continuing to
defend against the action vigorously. Because of the inherent
uncertainties of litigation, the Company cannot accurately predict the
ultimate outcome of the litigation.
PEC SOLUTIONS: Labels "Without Merit" Securities Fraud Suits in E.D. VA
-----------------------------------------------------------------------
PEC Solutions, Inc. faces several securities class actions filed in the
United States District Court for the Eastern District of Virginia, on
behalf of all persons who purchased or otherwise acquired the its
securities between October 23, 2002 and March 14, 2003, inclusive, an
earlier Class Action Reporter story states. The suit also names
certain officers of the Company as defendants.
During the class period, defendants issued statements, press releases,
and filed reports with the SEC describing the Company's business
operations and financial condition. The complaint alleges that these
representations were materially false and misleading because they
failed to disclose that:
(1) throughout the class period, the Company was experiencing
declining demand for its products and services as the failure
of Congress to approve a budget for 2003 was causing
governmental agencies to delay projects;
(2) the Company was experiencing material problems with certain of
its biometric identification contracts and would not be
generating the revenue that it had projected from those
contracts; and
(3) as a result, PEC Solutions was materially overstating the
strength of its pipeline of projects and its prospects.
The Company believes that the plaintiffs' claims are without merit.
SONIC INNOVATIONS: UT Court Refuses To Dismiss Securities Fraud Lawsuit
-----------------------------------------------------------------------
The United States District Court in Utah refused to dismiss the
securities class action filed against Sonic Innovations, Inc. and
certain of its officers and directors, alleging violations of federal
securities laws.
The suit, filed on behalf of purchasers of the Company's common stock
from May 2, 2000 to October 24, 2000, alleges the defendants violated
federal securities laws by providing materially false and misleading
information, or concealing information, about the Company's
relationship with Starkey Laboratories, Inc.
The complaint alleges that as a result of false statements or
omissions, the Company was able to complete its IPO, artificially
inflate its projections and results and have its stock trade at
inflated levels.
There has been no discovery to date, no class has been certified and no
trial date has been scheduled. The Company denies the allegations in
this action and will defend ourselves vigorously; however, litigation
is inherently uncertain and there can be no assurance that we will not
be materially affected.
SWITCHBOARD INC.: Asks MA Court To Dismiss Envenue Stock Purchase Suit
----------------------------------------------------------------------
Switchboard, Inc. asked the Superior Court of Suffolk County,
Massachusetts to dismiss the lawsuit filed by former stockholders of
Envenue, Inc., from whom the Company purchased all of the stock of
Envenue in November 2000.
The suit alleges that the Company breached its agreement with the
plaintiffs by failing to pay the purchase price of the Envenue stock
when it became due on May 24, 2002. The Company paid $400,000, plus
interest of $10,060, representing a portion of the purchase price, to
the plaintiffs. The suit seeks payment of $1.6 million, representing
the balance of the purchase price, plus additional unquantified damages
including treble damages under Mass. Gen. Laws c. 93A.
The Company filed a motion to dismiss the first suit, which the court
granted in part in November 2002. The plaintiffs subsequently amended
their complaint. The Company is awaiting the court's ruling on their
dismissal motion.
SWITCHBOARD 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 Switchboard, Inc., the managing underwriters of the Company's
initial public offering and:
(1) Douglas J. Greenlaw,
(2) Dean Polnerow, and
(3) John P. Jewett
In July 2002, the defendants joined in an omnibus motion to dismiss
which challenges the legal sufficiency of plaintiffs' claims. The
motion was filed on behalf of hundreds of issuers and individual
defendants named in similar lawsuits. The plaintiffs opposed the
motion.
In September 2002, the lawsuit against Mr. Greenlaw, Mr. Polnerow and
Mr. Jewett was dismissed without prejudice. The court heard oral
argument on the motion in November 2002. On February 19, 2003, the
court issued its decision on the defendants' motion to dismiss,
denying it in large part, but granting portions of it. In doing so,
the court dismissed the plaintiffs' claims under Section 10b-5 of the
Securities Act of 1933 against certain defendants, including the
Company.
TOBACCO LITIGATION: Draws Record Legal Fees in Philip Morris IL Lawsuit
-----------------------------------------------------------------------
While the $10.1 billion judgment issued against Philip Morris in the
recent Illinois class action seemed to be a kind of record, that record
was surpassed by an award of nearly $1.8 billion in legal fees. The
fees average out to about $13,100 per person per hour, based on 135,000
hours of work that the plaintiffs' lawyers said they and their team
spent on the case over the last three years, the St. Louis Post -
Dispatch reports.
Fees of such magnitude raise the question of whether lawyers can ever
be awarded too much money, given the enormous size of some modern class
action verdicts upon which the amount of the legal fees are calculated.
It is a question that Charles W. Chapman, a retired Illinois appellate
court judge who testified in support of the $1.8 billion fees for the
plaintiffs' attorneys, seemed to raise, however, when he admitted that
these number were getting into the eyebrow-raising territory.
It is anyone's guess when, and whether, the class counsel from Korein
Tillery LLC of St. Louis and Richardson, Patrick, Westbrook & Brickman
of South Carolina will collect their money. Philip Morris continues
to threaten an appeal of the $10.1 billion verdict issued March 21 by
Circuit Judge Nicholas G. Byron of Madison County, Illinois, yet still
argues that it does not have the money to post the $12 billion appeal
bond.
On Friday, last week, Philip Morris requested the court to cut the bond
to $1.5 billion. Plaintiffs' lawyer Stephen Tillery estimated that an
appeal could take at least three years to move through the legal
system.
However, Judge Chapman said in an interview that it is these risks,
associated with a groundbreaking case, that justify the fees, even if
that reward constitutes 25 percent of the damages rewarded in the case.
The judge said that it was not his duty to verify the hours the Tillery
firm, for example, worked.
"It is basically an honor system," Judge Chapman said. "I don't have
any way of knowing if he worked those hours."
Lester Brickman, a law professor and legal ethicist who has studied
Madison County's circuit court for years, said legal fee arrangements
are not likely to change because the system is run by judges and
lawyers who are supposed to regulate themselves. Professor Brickman,
who teaches at the Benjamin N. Cardozo School of Law at Yeshiva
University in New York, describes Madison County as a judicial system
"run amok," an artificial environment that plaintiffs' lawyers have
transformed into one of the "leading centers for wealth transfer" in
the country.
"Any self-regulatory system is susceptible to the criticism that it is
putting the foxes in charge of the henhouse," Professor Brickman said.
"When you couple that with the enormous amount of money at statke in
class actions, the results are inevitable: The regulatory system
becomes captured by those who it would purport to regulate."
Stephen Tillery said the question of legal fees cannot be considered
without looking at the context in which a case is filed. He observed
that in February 2000, when the class action alleging that Philip
Morris defrauded smokers of light cigarettes, the tobacco industry was
seen as nearly invincible.
That was five months before a Florida jury ordered the tobacco industry
to pay $144.8 billion in punitive damages to sick Florida smokers,
setting a nationwide record. The Madison County case also was filed
before an Oregon jury awarded $150 million in a wrongful death suit
filed against Philip Morris by the family of a 55-year-old woman who
developed lung cancer and died after switching to the company's low-tar
cigarettes.
The Madison County case, said Mr. Tillery, was the first class action
in the country to get to trial based on the idea that Philip Morris had
committed consumer fraud by marketing Marlboro Lights and Cambridge
Lights as lower in tar and nicotine than regular cigarettes.
"If it is the very first lawsuit of that type, what law firm is going
to take them on with their history of scorched-earth tactics and
dragging things out?" Mr. Tillery said. "Other firms were not willing
to risk years of attorney and staff time and millions of dollars."
During the seven-week trial, said Mr. Tillery, a team of 17 lawyers and
30 staff members worked seven days a week, usually for 18 hours a day,
including the time they spent in the courtroom.
Edward L. Sweda Jr. of the Tobacco Products Liability Project at
Northeastern University's Law School in Boston, agreed that the fees
awarded in such massive cases tend to draw criticism. That criticism
does not take into account the lawyers who lose, especially against a
well-funded corporation, said Mr. Sweda.
"Until the last several years, going up against the tobacco industry
was David versus Goliath," Mr. Sweda said. "You were going up against
the most talented lawyers you could imagine . But (plaintiffs') lawyers
don't always win their cases; it is always easier after the fact to
look at a settlement or verdict and say, 'Those people are overpaid.' "
The Philip Morris case was the first class action to ever go to trial
in circuit court in Madison County. Every other case in that county
that has yielded a monetary award has done so as the result of a
settlement. This was a first, as were the grounds on which the light
cigarettes case was brought.
Then there is the question of what the plaintiffs will get. One lead
plaintiff, Sharon Price of East Alton, was awarded about $11,400, and
the other lead plaintiff, Mike Fruth of Edwardsville, got about
$17,800.
Stephen Tillery said that other class members -- the heaviest smokers
of light cigarettes -- could qualify for as much as $50,000. The
entire class consists of 1.1 million Illinois residents, who the suit
said smoked light cigarettes.
TOBACCO LITIGATION: Attorneys General Ask Court To Reduce Appeal Bond
---------------------------------------------------------------------
Attorneys general from 37 states and US territories asked an Illinois
judge to reduce the $12 billion bond that cigarette-manufacturer Philip
Morris USA must pay before appealing the March 21 verdict issued by
Illinois Circuit Judge Nicholas Byron, in which he ordered the tobacco
company to pay $10.1 billion for deceiving smokers into believing light
cigarettes are less harmful than regular brands, the Associated Press
Newswires reports. Philip Morris has said it would appeal, but state
law requires it to post the appeal bond by April 21 to cover the
verdict, court costs and interest.
Philip Morris has said that a bond in the amount of $12 billion would
drive it to bankruptcy, and certainly does not leave room for the
company to pay the annual installment it is obliged to pay to 46 states
under the terms of the 1998 Master Tobacco Settlement of $206 billion.
The annual installment of the settlement payment will become payable on
April 15.
"We are asking the court to . be cognizant of the fiscal problems of
sister states that may be affected" if Philip Morris must pay a large
bond, said Oklahoma Attorney General Drew Edmonson, is also president
of the National Association of Attorneys General. Mr. Edmonson hopes
the friend-of-the-court brief filed Monday will persuade the judge to
reduce the bond to protect the settlement monies delivered by Philip
Morris each year, an amount equivalent to more than one-half the total
annual installment delivered to the 46 states by the five tobacco
companies that are party to the settlement.
Attorney General Edmonson pointed out that much of the settlement money
is used to fund health-related programs. The brief which the attorney
general filed seeks to protect "the interests of innocent third
parties, including young people, who are the beneficiaries of the state
programs supported by the payments," according to the brief.
Charles Price, spokesman for Mr. Edmonson, said many of the states
counted on that money when writing their budgets. Philip Morris owes
Oklahoma alone $27 million on April 15, he said.
Illinois is among 13 states whose attorney general did not sign the
brief. The non-signers include, among others, California, Texas, New
York and Florida. Illinois Attorney General Lisa Madigan is fighting
Philip Morris on the issue of punitive damages. In last month's
lawsuit, Judge Byron also ordered the tobacco company to pay its entire
punitive damage award of $3 billion to Illinois. However, Philip
Morris has filed a motion to strike that order, saying that Illinois
gave up its right to further damage awards when it signed onto the 1998
tobacco agreement. Ms. Madigan's lawyers are arguing against the
motion.
TRIARC COMPANIES: Plaintiff Withdraws Appeal of NY Lawsuit Dismissal
---------------------------------------------------------------------
A Plaintiff withdrew his appeal of the dismissal of a class action
filed against Triarc Companies, Inc. in the United States District
Court for the Southern District of New York. The suit also names as
defendants Nelson Peltz and Peter May.
The suit asserts a claim for alleged violation of Section 14(e) of the
Securities Exchange Act of 1934, as amended, on behalf of all persons
who held the Company's stock as of March 10, 1999. The amended
complaint alleged that the Company's tender offer statement in
connection with the 1999 'Dutch Auction' self-tender offer was
materially false and misleading in that, among other things, it failed
to disclose alleged recent valuations of the Company. The amended
complaint sought damages in an amount to be determined, together with
prejudgment interest, the costs of suit, including attorneys' fees, an
order permitting all shareholders who tendered their shares in the
Dutch Auction Tender Offer to rescind the transaction, and unspecified
other relief.
On November 16, 2001, the defendants moved for summary judgment
dismissing the action in its entirety, and the plaintiff moved to
certify a class consisting of all persons or entities who held stock in
Triarc as of March 10, 1999 and allegedly suffered damages thereby. On
October 17, 2002, the court denied the plaintiff's motion for class
certification and granted the defendants' motion for summary judgment,
and subsequently entered judgment dismissing the case. On November 21,
2002, plaintiff filed a notice of appeal to the United States Court of
Appeals for the Second Circuit. On February 28, 2003, the plaintiff
withdrew his appeal.
In October 1998, various class actions were brought on behalf of our
stockholders in the Court of Chancery of the State of Delaware. These
class actions name Triarc, Mr. Peltz, Mr. May and directors of Triarc
as defendants. On March 26, 1999, four of the plaintiffs in these
actions filed an amended complaint making allegations substantially
similar to those asserted in the case described above. In October
2000, the plaintiffs agreed to stay these actions pending determination
of the above action.
The Company believes that the outcome of any of the matters described
above or any of the other matters that have arisen in the ordinary
course of its business (including those arising in the ordinary course
of the operation of its company-owned restaurants) will not have a
material adverse effect on its consolidated financial condition or
results of operations.
UICI: TX Court Confirms Settlement of Consolidated Securities Lawsuit
---------------------------------------------------------------------
The United States District Court for the Northern District of Texas
confirmed the terms of the settlement of the consolidated securities
class action pending against UICI and certain of its executive
officers.
The suit alleges, among other things, that the Company's periodic
filings with the SEC contained untrue statements of material facts
and/or failed to disclose all material facts relating to the condition
of the Company's credit card business, in violation of Section 10(b) of
the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.
Plaintiffs purport to represent a class of persons who purchased the
Company's common stock from February 10, 1999 through December 9, 1999.
Following a mediation held on May 23, 2002, the parties entered into a
definitive settlement agreement on July 3, 2002 pursuant to which the
parties have agreed, without admitting or denying liability and
provided that certain conditions are satisfied, to fully and finally
resolve the litigation. The Company believes that the terms of the
settlement as contemplated by the settlement agreement will not have a
material adverse effect upon the financial condition or results of
operations of the Company. Funding of the settlement amount was
completed on July 15, 2002.
On December 12, 2002, the court issued an order preliminarily approving
the settlement and providing for notice to prospective class members.
At a fairness hearing held on March 3, 2003, the court confirmed terms
of the settlement.
VERITAS SOFTWARE: Shareholders Lodge Securities Fraud Suits in N.D. CA
----------------------------------------------------------------------
Veritas Software Corporation faces several securities class actions
filed in the United States District Court for the Northern District of
California following its January 2003 announcement that it would
restate financial results as a result of transactions entered into with
America Online in September 2000.
The suit was filed on behalf of purchasers of the Company's publicly
traded securities during the period between January 24, 2001 and
January 16, 2003, according to an earlier Class Action Reporter story.
The complaint charges VERITAS and certain of its officers and directors
with violations of the Securities Exchange Act of 1934. VERITAS is a
software storage company that provides data protection, storage
management and disaster recovery software. The complaint alleges that
on January 17, 2003, the Company announced the restatement of its 2000
and 2001 financial statements as a result of its improper accounting
for transactions with AOL Time Warner in 2000. The release stated in
part: "(t)he transactions involved in a $50 million software purchase
by AOL and a $20 million advertising services purchase from AOL."
In addition, several complaints purporting to be derivative actions
have been filed in California state court against some of the Company's
directors and officers. These complaints are based on the same facts
and circumstances as the class actions and generally allege that the
named directors and officers breached their fiduciary duties by failing
to oversee adequately the Company's financial reporting.
All of the complaints generally seek an unspecified amount of damages.
The cases are still in the preliminary stages, and it is not possible
for the Company to quantify the extent of its potential liability, if
any. An unfavorable outcome in any of these cases could have a
material adverse effect on the Company's business, financial condition,
results of operations and cash flow. In addition, defending any
litigation may be costly and divert management's attention from the
day-to-day operations of the Company's business.
New Securities Fraud Cases
ADC TELECOMMUNICATIONS: Marc Henzel Lodges Securities Suit in MN Court
----------------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a securities class action
in the United States District Court for the District of Minnesota, on
behalf of all persons who purchased the common stock of ADC
Telecommunications, Inc. (Nasdaq:ADCT) between November 28, 2000 and
March 28, 2001, inclusive, against the Company and certain officers of
the Company.
The complaint charges ADC with violations of federal securities laws.
Among other things, plaintiff claims that defendants' material
omissions and the dissemination of materially false and misleading
statements concerning ADC's financial prospects caused ADC's stock
price to become artificially inflated, inflicting damages on investors.
ADC is a supplier of broadband-network equipment, software and services
that enable communications service providers to deliver high-speed
Internet, data, and voice services across the so-called ``last mile'
connecting providers' offices to end-users homes and businesses.
The complaint alleges that during the class period, defendants
repeatedly represented that ADC would continue to achieve significant
growth and would not be affected by widely known reductions in capital
spending on the telecommunications infrastructure by communications
service providers.
On March 28, 2001, defendants shocked the market by announcing that the
Company would lower its fiscal 2001 earnings guidance, which defendants
had issued only four weeks earlier, cut as many as 4,000 jobs and close
facilities in the face of canceled orders and declining revenues caused
by the reductions in spending on equipment by telecommunications
service providers.
The market reacted swiftly to this news, pushing the price of ADC
Telecommunications stock down over 22% in extremely heavy trading
volume.
For more details, contact Marc S. Henzel by Mail: 273 Montgomery Ave,
Suite 202 Bala Cynwyd, PA 19004-2808, by Phone: (888) 643-6735 or
(610) 660-8000, by Fax: (610) 660-8080, by E-mail: Mhenzel182@aol.com
or visit the firm's Website: http://members.aol.com/mhenzel182.
AFC ENTERPRISES: Abbey Gardy Commences Securities Fraud Suit in N.D. GA
-----------------------------------------------------------------------
Abbey Gardy, LLP initiated a securities class action in the United
States District Court for the Northern District of Georgia on behalf of
all persons or entities who purchased securities of AFC Enterprises,
Inc. (Nasdaq:AFCE) between March 2, 2001 and March 24, 2003, inclusive.
The complaint 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 AFC securities. The complaint names as the Company, Frank J.
Belati (CEO) and Gerald J. Wilkins (CFO).
On March 24, 2003, after the market closed, AFC shocked the market by
announcing that it would be restating its financial statements for
fiscal year 2001 and the first three quarters of 2002. In response to
this negative announcement the price of AFC common stock dropped by
over 20% on extremely heavy trading volume.
For more details, contact Nancy Kaboolian by Phone: (800) 889-3701 or
(212) 889-3700 or by E-mail: Nkaboolian@abbeygardy.com
CERNER CORPORATION: Chitwood & Harley Lodges Securities Suit in W.D. MO
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Chitwood & Harley LLP initiated a securities class action in the United
States District Court for the Western District of Missouri, against
Cerner Corporation, (Nasdaq:CERN). The suit was filed on behalf of
purchasers of the Company's publicly traded securities between January
23, 2003 and April 2, 2003, inclusive.
The complaint 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 between January 23, 2003 and April 2, 2003, thereby artificially
inflating the price of Cerner common stock. The complaint alleges that
these statements were materially false and misleading because they
failed to disclose and misrepresented the following adverse facts,
among others:
(1) that the Company was experiencing an increased level of
competition as competitors slashed prices in order to take
business from the Company. As a result, the Company was
losing a material amount of sales to competitors;
(2) that certain of the Company's clients were delaying or
deferring the purchase of products from the Company or
determining not to proceed with those purchases at all;
(3) that the Company had reorganized its sales force and that the
reorganization was negatively impacting the ability of the
Company to close certain sales; and
(4) as a result of the foregoing, defendants' earnings projections
were lacking in a reasonable basis at all times and were
materially false and misleading.
On April 3, 2003, Cerner shocked the market by announcing that "it
expects its first quarter 2003 revenue and earnings to be below
expectations because of a lower level of new business bookings in the
quarter." The press release further revealed that the Company expected
bookings for the first quarter of 2003 to be between $145 and $150
million and that earnings would be between $0.13 to $0.15 per share as
compared to analysts' earnings estimates of $0.38 per share.
The market reacted swiftly to this news, pushing the price of Cerner
common stock down over 45%, to close at $17.63 on extremely heavy
trading volume.
For more details, contact Jennifer Morris by Mail: 1230 Peachtree
Street, Suite 2300, Atlanta, Georgia 30309 by Phone: 1-888-873-3999
(toll-free), by E-mail: jlm@classlaw.com or visit the firm's Website:
http://www.classlaw.com
CERNER CORPORATION: Brian Felgoise Launches Securities Suit in W.D. MO
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The Law Offices of Brian M. Felgoise, PC initiated a securities class
action on behalf of shareholders who acquired Cerner Corporation
(Nasdaq:CERN) securities between January 23, 2003 and April 2, 2003,
inclusive, in the United States District Court for the Western District
of Missouri, against the Company and certain key officers and
directors.
The action charges that defendants violated the federal securities laws
by issuing a series of materially false and misleading statements to
the market throughout the class period which statements had the effect
of artificially inflating the market price of the Company's securities.
For more details, contact Brian M. Felgoise by Mail: 261 Old York Road,
Suite 423, Jenkintown, Pennsylvania, 19046, by Phone: 215-886-1900 or
by E-mail: FelgoiseLaw@aol.com
CERNER CORPORATION: Milberg Weiss Commences Securities Suit in W.D. MO
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Milberg Weiss Bershad Hynes & Lerach LLP initiated a securities class
action on behalf of purchasers of the securities of Cerner Corporation
(Nasdaq: CERN) between July 17, 2002 and April 2, 2003 inclusive who
have been damaged thereby. The action is pending in the United States
District Court for the Western District of Missouri against the Company
and:
(1) Neal L. Patterson (CEO),
(2) Earl H. Devanny (President),
(3) Clifford W. Illig (Vice Chairman),
(4) Marc G. Naughton (CFO) and
(5) Glenn P. Tobin (COO)
The complaint 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 between July 17, 2002 and April 2, 2003, thereby artificially
inflating the price of Cerner securities. Cerner is a supplier of
clinical and management information and knowledge systems to health
care organizations worldwide.
The complaint alleges that on July 17, 2002 the Company providing
initial guidance for fiscal year 2003, stating that "it was comfortable
with analyst earnings per share estimates in the range of $1.75 to
$1.80 and revenue estimates in the range of $850 to $870 million." The
Company subsequently stated that it was comfortable with analyst
earnings per share estimates for the first quarter of 2003 of $0.38 and
full-year estimates of between $1.80 and $1.84.
Unbeknownst to investors, many of the Company's clients were delaying
the purchase of products from the Company and others were canceling
their purchases altogether, the Company was losing business to its
competitors and its attempt to change the organizational structure of
the Company had created confusion and hindered the Company's
operations. Defendants knew or recklessly disregarded these facts
throughout the class period but did not disclose them.
Instead, a Company insider took advantage of the artificial inflation
of Cerner stock caused by defendants' materially false and misleading
statements to sell more than 113,000 shares of Cerner common stock for
proceeds of more than $4.1 million.
On the morning of April 3, 2003, the Company shocked the market. The
Company issued a press release announcing that it was lowering revenue
and earnings guidance for the first quarter of fiscal year 2003 to
between $0.13 to $0.15 per share compared to analyst estimates of
$0.38. In addition, the Company announced that first quarter revenue
was expected to be between $189 and $192 million as opposed to previous
estimates of $205 to $210 million.
On this news, Cerner's share price plummeted on extremely heavy trading
volume: Cerner closed the day on April 2, 2003 at $32.09 per share,
opened the next day, April 3, 2003, after the Company's announcement,
at $18.55 per share, and closed on April 3, 2003 at $17.67 per share, a
one day drop of 44% on trading of more than 38 times the daily average.
For more details, contact Steven G. Schulman by Mail: One Pennsylvania
Plaza, 49th fl., New York, NY, 10119-0165 by Phone: (800) 320-5081 by
E-mail: cerncase@milbergNY.com or visit the firm's Website:
http://www.milberg.com
CERNER CORPORATION: Charles Piven Commences Securities Suit in W.D. MO
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The Law Offices Of Charles J. Piven, PA initiated a securities class
action on behalf of shareholders who purchased, converted, exchanged or
otherwise acquired the common stock of Cerner Corporation (Nasdaq:CERN)
between July 17, 2002 and April 2, 2003, inclusive. The case is
pending in the United States District Court for the Western District of
Missouri against the Company and certain of its officers and directors.
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 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
HEALTHSOUTH CORPORATION: Wolf Haldenstein Lodges Stock Suit in N.D. AL
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Wolf Haldenstein Adler Freeman & Herz LLP initiated a securities class
action in the United States District Court for the Northern District of
Alabama, on behalf of all persons who purchased the securities of
HealthSouth Corporation (OTC: HLSH.PK) between August 28, 2002 and
March 19, 2003, inclusive, against the Company and certain officers of
the Company.
The complaint alleges that during the class period, after attempting to
assuage investor fears of misconduct, HealthSouth continued to mislead
its investors. On August 27, 2002, days before the Company was sued by
numerous shareholder class action lawsuits, HealthSouth announced a
major reorganization where Mr. Scrushy resigned as chief executive but
remained as Chairman. The Company also announced that it would soon
spin off of its highly profitable surgery centers into a new company.
Thirdly, HealthSouth lowered its earnings estimates by $175 million.
The complaint alleges that the three proposals by the Company were
deceptive towards the investing public and truly meant to secure
outstanding credit facilities. On March 19, 2003, prior to the
market's opening, the Company announced that agents from the Federal
Bureau of Investigation served a search warrant at HealthSouth's
headquarters. Also, on March 19, 2003, the SEC issued notice that
trading in the Company had been suspended.
For more details, contact Fred Taylor Isquith, Michael Miske, Gustavo
Bruckner, 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 HealthSouth.
HEALTHSOUTH REHABILITATION: Keller Rohrback Files ESOP Fraud Suit in AL
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Keller Rohrback LLP has filed a complaint on behalf of HealthSouth
Rehabilitation Corporation (HLSH.PK) and Subsidiaries Employee Stock
Benefit Plan (ESOP Plan) in the United States District Court in the
Northern District of Alabama.
The plaintiffs allege that from January 1, 1997 to the present, the
"Class Period," the fiduciaries of the ESOP violated their fiduciary
obligations to the ESOP under ERISA ss. 404 and 405, 29 U.S.C. ss. 1104
and 1105, by, among other things:
(1) failing to prudently manage the assets of the ESOP by
continuing to acquire and maintain shares of HealthSouth stock
for the ESOP under circumstances in which Defendants
reasonably could not have believed that continued adherence to
the ESOP's direction to invest in HealthSouth stock was in
keeping with how a prudent fiduciary would operate;
(2) negligently failing to properly monitor the ESOP and its
fiduciaries; and
(3) negligently failing to provide participants with complete and
accurate information regarding HealthSouth stock, such that
they could make informed decisions regarding the shares of the
stock allocated to them under the ESOP.
HealthSouth's business and accounting practices have been under
investigation by the Securities Exchange Commission (SEC) and on March
19, 2003, the SEC filed accounting fraud against HealthSouth accusing
it of overstating earnings by at least $1.4 billion since 1999 in order
to meet or exceed Wall Street earnings expectations. Following the
announcement by the SEC, the New York Stock Exchange suspended trading
in HealthSouth shares and wants to delist the company.
Recently, the company's stock traded at about 8 cents a share in over-
the-counter trading, down from a high of more than $30 a share five
years ago.
For more details, contact Jennifer Tuato'o, Derek Loeser, Erin Riley or
Lynn Sarko by Phone: 800/776-6044, or by E-mail:
investor@kellerrohrback.com.
INTERCEPT INC.: Hoffman & Edelson Commences Securities Suit in N.D. GA
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Hoffman & Edelson, LLC initiated a securities class action in the
United States District Court for the Northern District of Georgia on
behalf of purchasers of the securities of InterCept, Inc. (Nasdaq:ICPT)
during the period from September 16, 2002 through January 9, 2003,
inclusive and who suffered damages thereby, against the Company and
certain of its officers and directors.
The complaint alleges that defendants violated the federal securities
laws by issuing a series of materially false and misleading statements
and/or by omitting to make material disclosures throughout the class
period thereby artificially inflating the marketplace of the Company's
securities.
For more details, contact Jerold B. Hoffman by Mail: 45 W. Court
Street, Doylestown, PA 18901 by Phone: 877-537-6532 (toll free) by Fax:
215-230-8735 or by E-mail: jhoffman@hofedlaw.com.
PEC SOLUTIONS: Marc Henzel Commences Securities Fraud Suit in E.D. VA
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The Law Offices of Marc S. Henzel initiated a securities class action
in the United States District Court for the Eastern District of
Virginia on behalf of all purchasers of the common stock of PEC
Solutions Inc. (NASDAQ:PECS) from October 22, 2002 through March 14,
2003, inclusive.
Throughout the class period, as alleged in the complaint, defendants
issued a series of materially false and misleading statements
concerning the Company's business, operations and prospects. The
complaint alleges that these statements were materially false and
misleading when made as they failed to disclose and misrepresented the
following adverse facts, among others:
(1) that the Company was experiencing declining demand for its
products and services as the failure of Congress to approve a
budget for 2003 was causing governmental agencies to delay
projects;
(2) that the Company was experiencing material problems with
certain of its biometric identification contracts and would
not be generating the revenue that it had anticipated from
those contracts; and
(3) as a result of the foregoing, the Company was materially
overstating the strength of its pipeline of projects and its
prospects.
On March 14, 2003, after the close of the market, as alleged in the
complaint, PEC Solutions shocked the market when it issued a press
release announcing that it was revising its guidance for the first
quarter 2003 and for the year ending December 31, 2003. In response to
this announcement, the price of PEC Solutions common stock declined
precipitously falling from $15.80 per share to $9.81 per share, a
decline of more than 37%, on extremely heavy trading volume.
During the class period, prior to the disclosure of the true facts, the
Individual Defendants and other PEC Solutions insiders sold their
personally-held shares of PEC Solutions common stock to the
unsuspecting public reaping proceeds of more than $13 million
For more details, contact Marc S. Henzel by Mail: 273 Montgomery Ave,
Suite 202 Bala Cynwyd, PA 19004-2808, by Phone: 888/643-6735 or
610/660-8000, by Fax: 610/660-8080, by E-mail: Mhenzel182@aol.com or
visit the firm's Website: http://members.aol.com/mhenzel182
ROBERTSON STEPHENS: Weiss & Yourman Lodges Securities Suit in N.D. CA
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Weiss & Yourman initiated a securities class action in the United
States District Court for the Northern District of California against
Robertson Stephens, Inc. on behalf of purchasers of Redback Networks,
Inc. (Nasdaq: RBAK) securities between June 14, 1999 through March 8,
2000, inclusive.
The complaint charges that Robertson Stephens and its analyst Paul
Johnson issued materially false and misleading public statements,
research reports and "Buy" recommendations on Redback and praised the
acquisition of Siara Systems, Inc. by Redback while failing to disclose
that Johnson owned Siara stock and that the acquisition would result in
a multimillion windfall for Johnson.
The complaint alleges that, based on defendants' recommendations and
failure to disclose defendant Johnson's conflicts of interest, Redback
securities sold at artificially inflated prices during the class
period. As a result, Plaintiff and the rest of the class purchased
their Redback shares at prices that were artificially inflated and were
damaged thereby.
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
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Beard Group, Inc., Washington, D.C. Enid Sterling, Aurora Fatima
Antonio and Lyndsey Resnick, Editors.
Copyright 2002. All rights reserved. ISSN 1525-2272.
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