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C L A S S A C T I O N R E P O R T E R
Friday, November 21, 2003, Vol. 5, No. 231
Headlines
ABERCROMBIE & FITCH: Faces Second Suit For Race Discrimination
ADVANCEPCS: Court Certifies Limited Class in NJ ERISA Fraud Suit
ANDRX CORPORATION: FL Court Strikes Insider Trading From Lawsuit
ANDRX CORPORATION: Plaintiffs File Consolidated Securities Suit
ANDRX CORPORATION: To Seek Review of Unfavorable Court Decision
AON CORPORATION: Reaches Settlement For Securities Lawsuit in IL
BLACK HILLS: Cornerstone Propane Lodges CEA Violations Lawsuit
CANADA: Third Ontario Hospital Admits Using Unsterilized Tools
CINCINNATI INSURANCE: IN Court Decertifies Part of Class in Suit
CITIZENS INC.: TX Court Requests Detailed Brief in Stock Lawsuit
CORILLIAN CORPORATION: Plaintiffs Seeking To Amend CSFB Lawsuit
COSINE COMMUNICATIONS: Reaches Settlement For NY Securities Suit
COVENTRY HEALTH: Opposes Certification for FL Managed Care Suit
COVERDELL & COMPANY: Seek Leave To Appeal MI Suit Certification
CRITICAL PATH: Reaches Settlement For NY Securities Fraud Suit
DECODE GENETICS: Board Conditionally Approves NY Suit Settlement
DIGITAL RIVER: Reaches Settlement For Consolidated NY Stock Suit
FIFTH THIRD: Shareholders File Securities Fraud Suits in S.D. OH
GEVITY HR: FL Court Approves Settlement of Shareholder Lawsuit
HANOVER COMPRESSION: Reaches Settlement for TX Securities Suits
HEALTHTRONICS SURGICAL: Shareholders File Securities Suits in GA
HERBALIFE INTERNATIONAL: Remand of Suit to WV State Court Sought
IMPERIAL PARKING: Former Employees File Overtime Wage Suit in WA
LEXENT INC.: Reaches Settlement For DE Shareholder Fraud Lawsuit
LEXENT INC.: Reaches Settlement For NY Securities Fraud Lawsuit
MEMBERWORKS INC.: Florida AG Launches Consumer Fraud Complaint
MICROSOFT CORPORATION: Reaches Settlement For North Dakota Suit
MIDWAY GAMES: Scheduling For Securities Suits Set Nov. 25, 2003
MICHIGAN: Residents From 12 Cities Launch Suit Over Cable Bills
MICROSOFT CORPORATION: Stanford Students Qualify For $1.1B Pact
MPOWER HOLDING: NY Court Dismisses Securities Lawsuit in W.D. NY
NATIONAL COMMERCE: Pays Cash Portion of Consumer Suit Settlement
NEBRASKA: Woman To Get Share of $20M Insurance Suit Settlement
NEW VALLEY: DE Court Dismisses Six Claims in Shareholder Lawsuit
NRG ENERGY: Plaintiffs Appeal CA Power Market Lawsuit Dismissal
NRG ENERGY: Notifies CA Court of Bankruptcy Filing in Power Suit
PEABODY ENERGY: Subsidiary Named in Lead Exposure Lawsuit in OK
PENNSYLVANIA: Officials Clear Chi-Chi Workers As Hepa A Source
RADIO ONE: Reaches Settlement For NY Consolidated Stock Lawsuit
REAL ESTATE: Fairness Hearing For Suit Settlement Set Nov. 2003
SLM CORPORATION: Borrowers Launch CA Unfair Trade Practices Suit
TORCH OFFSHORE: Oral Arguments on Stock Suit Dismissal Completed
UNITED STATES: Vaccinations May Have Caused Army Medic's Death
VITALWORKS INC.: Plaintiffs File Consolidated CT Securities Suit
WEBMETHODS INC.: Reaches Settlement For NY Securities Fraud Suit
WISCONSIN: Suit V. Milwaukee Schools Granted Class Certification
VITRIA TECHNOLOGY: Reaches Settlement For Stock Fraud Suit in NY
WEST COAST: Plaintiffs Commence Amended CA Energy Market Lawsuit
WEST COAST: Plaintiffs Launch Amended CA Energy Market Lawsuit
Asbestos Alert
ASBESTOS LITIGATION: Fortune Brands Unit Faces Asbestos Lawuits
ASBESTOS LITIGATION: Watts Faces 100 Asbestos-Related Actions
ASBESTOS ALERT: Rogers Reveals Asbestos-Related Liabilities
ASBESTOS LITIGATION: Rohm & Haas Gets Asbestos Premises Cases
ASBESTOS LITIGATION: Boss Continues to Face Asbestos Lawsuits
ASBESTOS LITIGATION: OI Eyes $450M Additional Asbestos Charge
ASBESTOS LITIGATION: Oglebay Faces 73,019 Asbestos-Related Cases
ASBESTOS LITIGATION: S&P Affirms Sealed Air Corp's BBB Rating
ASBESTOS LITIGATION: Bowater Gets 19 More Asbestos Suits
ASBESTOS LITIGATION: Court Moves ABB Asbestos Hearing
ASBESTOS LITIGATION: Boise Cascade Battles Asbestos Suits
ASBESTOS ALERT: Olin Reveals Asbestos-Related Liabilities
New Securities Fraud Cases
AMERICAN PHARMACEUTICAL: Goodkind Labaton Files Stock Suit in IL
CLEAN HARBORS: Lasky & Rifkind Files Securities Law Suit in MA
FRIEDMAN'S INC: Holzer Holzer Lodges Securities Suit in S.D. GA
*********
ABERCROMBIE & FITCH: Faces Second Suit For Race Discrimination
--------------------------------------------------------------
Clothing store Abercrombie & Fitch has been sued for a second
time for allegedly discriminating against minorities who want
jobs at the clothing retailer, AP news reports.
The latest suit, filed Wednesday in U.S. District Court in
Camden, claims the company recruits and hires white college
students for its sales positions, but tends to hire minorities
only for jobs behind the scenes, such as overnight shifts and
stockroom work. The lawsuit is similar to one filed in June in
a federal court in San Francisco and seeks class-action status.
A spokeswoman for Abercrombie, which has about 600 stores and
22,000 employees nationwide, told AP the company had not been
served with the New Jersey lawsuit and would not make any
additional comment. In the California case, the company has
denied the claims and said it wants a diverse work force.
According to the claim filed Wednesday, lead plaintiff Brandy
Hawk applied for a job at the Abercrombie & Fitch store in the
Cherry Hill Mall in May. She is a college student and a varsity
athlete -- some of the characteristics the New Albany, Ohio,
retailer says it's looking for in a recruiting brochure, AP
reports.
Ms. Hawk was initially told by an assistant manager that she
would be recommended for the job, but was later rejected. In
the complaint, Ms. Hawk said she was told she did not fit the
image the retailer wanted to project.
ADVANCEPCS: Court Certifies Limited Class in NJ ERISA Fraud Suit
----------------------------------------------------------------
The United States District Court of the District of New Jersey
certified a limited class in the lawsuit filed against PCS
Health Systems, Inc., styled "Mulder v. PCS Health Systems,
Inc., case number 98-1003."
This action alleges that the Company is a fiduciary, as that
term is defined in the Employee Retirement Income Security Act
(ERISA), and that the Company has breached its fiduciary
obligations under ERISA in connection with its development and
implementation of formularies, preferred drug listings and
intervention programs for its sponsors of ERISA health plans.
In particular, the plaintiff alleges that the Company's
therapeutic interchange programs and negotiation of formulary
rebates and discounts from pharmaceutical manufacturers violate
fiduciary obligations. The plaintiff is seeking injunctive
relief and monetary damages in an unspecified amount.
The Company believes that it does not assume any of the plan
fiduciary responsibilities that would subject it to regulation
under ERISA as alleged in the complaint, has denied all
allegations of wrongdoing and is vigorously defending this suit.
The plaintiff purported to represent a nation-wide class
consisting of all members of all ERISA plans for which the
Company provided PBM services during the class period. The
Company opposed certification of this class, but the court later
entered an order certifying a more limited class comprised only
of members of those ERISA plans for which PCS provided services
under its contract with a single plan administrator.
The Company will continue to fight this suit. Although the
ultimate outcome is uncertain, an adverse determination could
potentially cause the Company to change its business practices
with respect to formularies, preferred drug listings,
intervention programs, and rebates, potentially reducing its
profitability and growth prospects.
ANDRX CORPORATION: FL Court Strikes Insider Trading From Lawsuit
----------------------------------------------------------------
The United States District Court for the Southern District of
Florida granted Andrx Corporation's motion to strike all insider
trading claims in the consolidated class action filed against it
and certain of its officers and directors.
The suit alleges the defendants engaged in securities fraud
and/or made material misrepresentations regarding the regulatory
status of the Company's ANDA for a bioequivalent version of
Tiazac. The amended class action complaint sought a class
period for those persons or institutions that acquired Company's
Common Stock from April 30, 2001, through February 21, 2002.
In November 2002, the court granted in part Andrx's motion to
dismiss the amended consolidated class action complaint and
determined that all but one of the statements allegedly made in
violation of the federal securities laws should be dismissed as
a matter of law. The court's decision reduced the class period
to the six week period commencing January 9, 2002, and ending
February 21, 2002.
Though the Company believes that the plaintiffs are unlikely to
prevail in their claims, an adverse judgment could have a
material adverse effect on the Company's business and
consolidated financial statements.
ANDRX CORPORATION: Plaintiffs File Consolidated Securities Suit
---------------------------------------------------------------
Plaintiffs filed a consolidated securities class action against
Andrx Corporation and certain of its officers and directors in
the United States District Court for the Southern District of
Florida.
The suit alleged violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5, on
behalf of holders of the Company's common stock from March 1,
2002 through March 4, 2003. The complaint generally alleges
that, during the class period, the Company made a series of
misrepresentations and/or positive statements regarding FDA
approval of its generic Wellbutrin SR/Zyban product and failed
to disclose dating issues with respect to its product and
product inventory.
Though the Company is not in a position to determine the
ultimate outcome of this litigation, an adverse judgment could
have a material adverse effect on the Company's business and
consolidated financial statements.
ANDRX CORPORATION: To Seek Review of Unfavorable Court Decision
---------------------------------------------------------------
Andrx Corporation is considering asking the United States
Supreme Court for a legal review of a lower court decision
stating that the Company was in violation of federal antitrust
law.
Beginning in August 1998, several putative class actions were
filed against the Company and Aventis arising from a 1997
stipulation (the "1997 Stipulation") entered into between Andrx
and Aventis S.A. (Aventis) in connection with a patent
infringement suit brought by Aventis with regard to its
product, Cardizem CD. The actions pending in federal court were
later consolidated for multidistrict litigation purposes in the
U.S. District Court for the Eastern District of Michigan.
The complaint in each action alleges that the Company and
Aventis, by way of the 1997 Stipulation, have engaged in state
antitrust and other statutory and common law violations that
allegedly gave Aventis and the Company a near monopoly in the
U.S. market for Cardizem CD and a bioequivalent version of that
pharmaceutical product.
According to the complaints, the monopoly possessed by the
defendants enables Aventis to perpetuate its ability to fix the
price of Cardizem CD at an artificially high price, free from
generic competition, with the result that direct purchasers
such as pharmacies, as well as indirect purchasers such as
medical patients who have been issued prescriptions for Cardizem
CD are forced to overpay for the drug.
Each complaint seeks compensatory damages on behalf of each
class member in an unspecified amount and, in some cases, treble
damages, as well as costs and counsel fees, disgorgement,
injunctive relief and other remedies.
In June 2000, the District Court granted summary judgment to
plaintiffs finding that the 1997 Stipulation was a per se
violation of antitrust laws. On June 13, 2003, the
US Court of Appeals for the Sixth Circuit affirmed the district
court's opinion finding that the 1997 Stipulation was a per se
violation of the federal antitrust laws.
AON CORPORATION: Reaches Settlement For Securities Lawsuit in IL
----------------------------------------------------------------
Aon Corporation reached a settlement for the consolidated
securities class action filed in the United States District
Court for the Northern District of Illinois, on behalf of
purchasers of its Common Stock between May 4, 1999 and August 6,
2002.
On August 8, 2002, Daniel & Raizel Taubenfeld, purported Company
stockholders, filed a putative class action against the Company,
Patrick G. Ryan, Chairman and Chief Executive Officer, and
Harvey N. Medvin, Aon's then Executive Vice President and Chief
Financial Officer. The suit contains allegations of violations
of Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934 and Rule10b-5 promulgated under such Act relating to
Aon's press release issued on August 7, 2002. The plaintiff
seeks, among other things, class action certification,
compensatory damages in an unspecified amount and an award of
costs and expenses, including counsel fees.
On January 17, 2003, the lead plaintiff filed a "Consolidated
Amended Complaint" against the same defendants, which alleged
violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated under such Act.
There have been nine other putative class action lawsuits filed
against the Company and certain of its officers and directors in
the United States District Court for the Northern District of
Illinois, and each is substantially similar to the initial
lawsuit. All of these actions have been consolidated with the
Taubenfeld action and a lead plaintiff has been appointed by the
court.
The Company has also received a complaint which purports to be a
shareholder's derivative action against Aon and each of Aon's
directors. This complaint, which is styled "Bernard Stern v.
Patrick Ryan, et al." was filed in the Circuit Court of Cook
County, Illinois on September 13, 2002. This lawsuit makes
allegations which are substantially similar to the original
Taubenfeld lawsuit.
In the third quarter of 2003, Aon and attorneys representing
plaintiffs in the purported shareholder and derivative actions
agreed to settle these actions. The memorandum of understanding
memorializing the settlement calls for Aon to pay a total of
$7.25million and to take certain steps relating to Aon's
corporate governance, certain of which had already been
undertaken by Aon. The settlement is subject to a process that
includes notice to putative class members and final court
approval.
BLACK HILLS: Cornerstone Propane Lodges CEA Violations Lawsuit
--------------------------------------------------------------
Black Hills Corporation, Enserco Energy, Inc. and 38 other firms
face a class action filed by Cornerstone Propane Partners, LP in
the U.S. District Court for the Southern District of New York.
The suit alleges, among other things, that the defendants
engaged in manipulation in violation of the Commodities Exchange
Act (CEA) and that the defendants aided and abetted violations
of Section 22 of the CEA. The plaintiff is requesting, among
other things, certification of the matter as a class action,
damages and attorney's fees.
The Company has just received a copy of the complaint and is
analyzing its contents, but it is unable to assess what
implications, financial or otherwise, the suit may have on the
Company, it revealed in a disclosure to the Securities and
Exchange Commission.
CANADA: Third Ontario Hospital Admits Using Unsterilized Tools
--------------------------------------------------------------
A third Ontario hospital in the past month has admitted to using
improperly sterilized equipment on patients, Health Minister
George Smitherman said on Wednesday, the Canadian Press reports.
The hospital was in the process of contacting patients Wednesday
who were examined or treated with the equipment, Mr. Smitherman
said, refusing to name the facility. "There is at least one
more hospital in Ontario that will soon be going forward with
some information that highlights some concerns that they've
had," he told the Canadian Press.
Mr. Smitherman wouldn't give the hospital's name or its
location, insisting that the facility first has to match all the
patient names to its files and that it would likely go public
with the information later Wednesday.
"It's important that the people that are actually impacted are
informed at exactly the same time so as to not create any
hysteria or concern of that nature," the Health Minister said.
Mr. Smitherman is also to release new protocols later Wednesday
so all Ontario hospitals move quickly to inform the public about
similar hygiene concerns.
On Monday, letters were sent to 861 male patients at Sunnybrook
and Women's College Health Sciences Centre after equipment used
for prostate biopsies was improperly sterilized and then used in
their assessments, a hospital spokeswoman said. The biopsies
were conducted between December 1999 and August 2003. The
letters informed the men that Sunnybrook skipped an important
step in the sterilization process because the manufacturer's
instructions were unclear.
In fact, Dr. Bob Lester, the hospital's executive vice president
of medical and academic affairs, suggested yesterday that the
company that supplies the tool, B-K Medical Systems Inc., should
consider rewriting its instructions to prevent similar
incidents. However, Bill Gregory, president of the
Massachusetts-based medical firm, countered that the company has
an impeccable safety record over 20 years and the hospital has
no one to blame but itself.
The hygiene breach is similar to an incident last month
involving Lakeridge Health Centre in Oshawa just east of
Toronto. At that hospital, 118 patients were exposed to
unsterilized medical equipment in two separate incidents.
In the most far-reaching breach there, 114 patients were
examined between October 27 and 30 with endoscopes that were
cleaned but not disinfected. On October 27, an empty bottle of
disinfectant in a cleaner was replaced with a bottle of soap,
Lakeridge has said. The mistake wasn't discovered until October
30 when the bottle ran dry. The second incident involved a
dental mirror that may have been used on one patient October 27
and 28. Three other patients were also contacted.
The patients were urged to get tested for hepatitis and HIV,
although officials stressed it's "exceedingly unlikely'' they've
been infected. Two class actions have been filed against
Lakeridge. The hospital apologized last week to the patients,
admitting "human error."
The lapse at Sunnybrook and at Lakeridge has prompted George
Smitherman, Ontario's Health Minister, to order all the
province's hospitals to review infection control procedures and
report to him by January 9.
CINCINNATI INSURANCE: IN Court Decertifies Part of Class in Suit
----------------------------------------------------------------
The United States District Court in Southern Indiana decertified
the Title VII class in the class action filed against The
Cincinnati Insurance Company, styled "Rochlin et al v. The
Cincinnati Insurance Company."
The suit was filed on behalf of certain female employees in
three departments of the company alleging employment-related
gender discrimination in promotions and pay. The complaint
seeks unspecified monetary damages and injunctive relief.
The court decertified the Title VII claims but left in place
conditional certification of the collective action filed under
the Equal Pay Act.
CITIZENS INC.: TX Court Requests Detailed Brief in Stock Lawsuit
----------------------------------------------------------------
The Texas Supreme Court requested a more detailed brief on the
merits of a class action filed against Citizens, Inc. in the
Travis County, Texas District Court, styled "Delia Bolanos
Andrade, et. al. v. Citizens Insurance Company of America,
Citizens, Inc., Negocios Savoy, S.A., Harold E. Riley, and Mark
A. Oliver, Case Number 99-09099."
The suit alleges that life insurance policies offered to certain
non-U.S. residents by one of the Company's insurance
subsidiaries, Citizens Insurance Company of America, are
actually "securities" that were offered or sold in Texas by
unregistered dealers in violation of the registration provisions
of the Texas securities laws.
The suit seeks class action status naming as a class all non-
U.S. residents who purchased insurance policies or made premium
payments since August 1996 and assigned policy dividends to an
overseas trust for the purchase of the Company's Class A common
stock. The remedy sought is rescission of the insurance premium
payments.
On April 24, 2003, the Court of Appeals for the Third District
of Texas affirmed in part and modified in part, a July 31, 2002,
class action certification which was granted by the court to the
plaintiffs. The Company intends to file a petition with the
Texas Supreme Court in the near future for review of the
decision of the Court of Appeals. Review by the Texas Supreme
Court is discretionary.
The Company believes the Plaintiff's claim under the Texas
securities laws is not valid and that the class defined is not
appropriate for class certification and does not meet the legal
requirements for class action treatment under Texas law. 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 stated in a filing with the
Securities and Exchange Commission. The Supreme Court of Texas
requested that the plaintiffs file a response to the Company's
petition.
The Company expects the Texas Supreme Court will grant its
petition for review and 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 defend
vigorously against the request for class certification, as well
as to defend vigorously against the individual claims. During
the time of the Company's appeal to the Texas Supreme Court,
there will be no further district court proceedings in the case.
CORILLIAN CORPORATION: Plaintiffs Seeking To Amend CSFB Lawsuit
---------------------------------------------------------------
Plaintiffs asked the United States District Court for the
Southern District of Florida for leave to amend the class action
filed against Corillian Corporation, styled "Amy Liu v.
Credit Suisse First Boston Corporation, et al., Case Number
03-20459."
In the lawsuit, the plaintiffs alleged that the Company and
various other issuers conspired with Credit Suisse First Boston
to defraud public investors by issuing misleading statements and
supporting misleading analyst reports for the purpose of causing
the share prices of the respective issuers to increase rapidly
upon the release of actual financial results that were much
better than anticipated in the allegedly misleading statements
and reports.
The plaintiffs have moved to amend their complaint and remove
the Company as a defendant, but the court has yet to decide on
the matter.
COSINE COMMUNICATIONS: Reaches Settlement For NY Securities Suit
----------------------------------------------------------------
CoSine Communications, Inc. reached a settlement for the
securities class action filed against it and certain of its
officers and directors the United States District Court,
Southern District of New York.
The complaint generally alleges that various investment bank
underwriters engaged in improper and undisclosed activities
related to the allocation of shares in CoSine's initial public
offering. The complaint brings claims for the violation of
several provisions of the federal securities laws against those
underwriters, and also against the Company and each of the
directors and officers who signed the registration statement
relating to the initial public offering.
Various plaintiffs have filed similar actions asserting
virtually identical allegations against more than 250 other
companies. The lawsuit and all other "IPO allocation"
securities class actions currently pending in the Southern
District of New York have been assigned to Judge Shira A.
Scheindlin for coordinated pretrial proceedings.
In October 2002, the individual defendants were dismissed
without prejudice pursuant to a stipulation. The issuer
defendants filed a coordinated motion to dismiss on common
pleading issues, which the Court granted in part and denied in
part in an order dated February 19, 2002. The Court's order
dismissed the Section 10(b) and Rule 10b-5 claims against the
Company but did not dismiss the Section 11 claims against the
Company.
In June 2003, the plaintiffs in all of the cases presented a
settlement proposal to all of the issuer defendants. Under the
proposed settlement, the plaintiffs will dismiss and release all
claims against participating issuer defendants in exchange for a
contingent payment guaranty by the insurance companies
collectively responsible for insuring the issuer defendants in
all of the related cases, and the assignment or surrender to the
plaintiffs of certain claims the issuer defendants may have
against the underwriters.
The Company will not be required to make any cash payments under
the settlement, unless the Company's insurer is required to pay
on the Company's behalf an amount that exceeds the Company's
insurance coverage. The Company does not believe that this
circumstance will occur.
In July 2003, a special committee of the Company's Board of
Directors approved the proposed settlement. The settlement is
subject to acceptance by a substantial majority of the issuer
defendants, and execution of a definitive settlement agreement.
The settlement is also subject to approval of the court, which
cannot be assured.
COVENTRY HEALTH: Opposes Certification for FL Managed Care Suit
---------------------------------------------------------------
Coventry Health Care, Inc. opposed the motion for class
certification of the managed care litigation filed against it
and other managed care companies in the United States District
Court for the Southern District of Florida, Miami Division, MDL
No. 1334, styled "in re: Humana, Inc., Charles B. Shane, MD, et
al. vs. Humana, Inc., et al."
This action was filed by a group of physicians as a class action
against the Company and twelve other companies in the managed
care field. In its fourth amended complaint, the plaintiffs
have alleged violations of the federal racketeering act,
Racketeer Influenced and Corrupt Organizations (RICO),
conspiracy to violate RICO and aiding and abetting a scheme to
violate RICO. In addition to these RICO claims, the complaint
includes counts for breach of contract, violations of various
state prompt payment laws and equitable claims for unjust
enrichment and quantum meruit.
The Company has filed a motion to dismiss each of these claims
because they fail to state a cause of action or, in the
alternative, to compel arbitration pursuant to the arbitration
provisions which exist in the Company's physician contracts.
The trial court has certified various subclasses of physicians;
however, the Company was not subject to the class certification
order because the motion to certify was filed before Coventry
was joined as a defendant.
The plaintiffs have now filed a motion to certify a class as to
Coventry, and Coventry has filed its opposition to that motion.
The trial court has not yet issued a ruling on the motion. The
defendants who were subject to the certification order filed an
appeal to the 11th Circuit which has been argued. The appeals
court has not yet issued its decision.
Subsequent to this appeal, two companies have entered into
settlement agreements with the plaintiffs. Both settlement
agreements have been filed with the Court, with one now having
received final approval. Although Coventry can not predict the
outcome, management believes that the claims asserted in this
lawsuit are without merit and the Company intends to defend its
position.
COVERDELL & COMPANY: Seek Leave To Appeal MI Suit Certification
---------------------------------------------------------------
Coverdell & Company and other defendants asked the United States
District Court for the Eastern District of Michigan, Southern
Division for leave to appeal class certification for a lawsuit
filed by plaintiff Teresa McClain against them.
The suit, which seeks unspecified monetary damages, alleges that
the Company and the other defendants violated the Michigan
Consumer Protection Act and other applicable Michigan laws in
connection with the marketing of Monumental Life Insurance
Company insurance products. The complaint includes a claim that
the suit should be certified as a class action and the plaintiff
has filed a motion for class certification to which all of the
defendants have filed opposing papers regarding the same. The
court certified a class of Michigan residents.
The Company believes that the claims made against it are
unfounded.
CRITICAL PATH: Reaches Settlement For NY Securities Fraud Suit
--------------------------------------------------------------
Critical Path, Inc. reached a settlement for the consolidated
securities class action filed against it and certain of its
former officers and directors and underwriters connected with
its initial public offering of common stock in the United States
District Court for the Southern District of New York (In re
Initial Public Offering Sec. Litig.).
The purported class action was filed by individuals who allege
that they purchased common stock at the initial and secondary
public offerings between March 29, 1999 and December 6, 2000.
The complaints allege generally that the Prospectus under which
such securities were sold contained false and misleading
statements with respect to discounts and excess commissions
received by the underwriters as well as allegations of
"laddering" whereby underwriters required their customers to
purchase additional shares in the aftermarket in exchange for an
allocation of IPO shares. The complaints seek an unspecified
amount in damages on behalf of persons who purchased the
Company's stock during the specified period.
Similar complaints have been filed against 55 underwriters and
more than 300 other companies and other individuals. The over
1,000 complaints have been consolidated into a single action.
The Company has reached an agreement in principle with the
plaintiffs to resolve the cases. The proposed settlement
involves no monetary payment by the Company and no admission of
liability. However it is subject to approval by the Court.
DECODE GENETICS: Board Conditionally Approves NY Suit Settlement
----------------------------------------------------------------
deCODE genetics, Inc.'s Board of Directors conditionally
approved the partial settlement of a consolidated securities
class action filed in the United States District Court for the
Southern District of New York, captioned "In re deCODE genetics,
Inc. Initial Public Offering Securities Litigation (01 Civ.
11219(SAS))."
The suit alleges violations of federal securities laws filed in
on behalf of certain purchasers of the Company's common stock.
The complaint names the Company, two of its current executive
officers and the two lead underwriters for the Company's initial
public offering in July 2000 as defendants.
In the amended pleading, the plaintiff alleges violations of
Section 11 of the Securities Act of 1933 and violations of
Section 10(b) of the Securities Exchange Act of 1934 (and Rule
10b-5 promulgated thereunder) against the Company, the
Individual Defendants and the Underwriter Defendants. In
addition, the amended complaint alleges violations of Section 15
of the Securities Act of 1933, and Section 20(a) of the
Securities Exchange Act of 1934 against the Individual
Defendants.
Generally, the amended complaint alleges that the Underwriter
Defendants:
(1) solicited and received excessive and undisclosed
commissions from certain investors in exchange for
which the Underwriter Defendants allocated to those
investors material portions of the shares of our stock
sold in the IPO;
(2) entered into agreements with customers whereby the
Underwriter Defendants agreed to allocate shares of
Company stock sold in the IPO to those customers in
exchange for which the customers agreed to purchase
additional shares of the Company's stock in the
aftermarket at pre-determined prices; and
(3) improperly used their analysts, who purportedly
suffered from conflicts of interest, to manipulate the
market.
The amended complaint further alleges that the prospectus
incorporated into the registration statement for the IPO was
materially false and misleading in that it failed to disclose
these arrangements. The amended complaint also alleges that the
Company and the Individual Defendants had numerous interactions
and contacts with the Underwriters from which the Company and
the Individual Defendants either knew of, or recklessly
disregarded, the Underwriters' purported wrongful acts.
The suit seeks unspecified monetary and rescissionary damages
and certification of a plaintiff class consisting of all persons
who purchased shares of the Company's common stock from July 17,
2000 to December 6, 2000.
The Company is aware that similar allegations have been made in
hundreds of other lawsuits filed (many by some of the same
plaintiff law firms) against numerous underwriter defendants and
issuer companies (and certain of their current and former
officers) in connection with various public offerings conducted
in recent years. All of the lawsuits that have been filed in
the Southern District of New York have been consolidated for
pretrial purposes before Honorable Judge Shira Scheindlin.
Pursuant to the underwriting agreement executed in connection
with the Company IPO, the Company has demanded indemnification
from the Underwriter Defendants. The Underwriter Defendants
have asserted that the Company's request for indemnification
is premature.
Pursuant to an agreement the Individual Defendants have been
dismissed from the case without prejudice. Along with numerous
other issuers, the Company moved to dismiss the complaint for
failure to state a claim. On February 19, 2003, Judge
Scheindlin granted the Company's motion with respect to the
Section 10(b) claims and denied the motion with respect to the
Section 11 claims.
On July 31, 2003, the Company's Board of Directors conditionally
approved a proposed partial settlement with the plaintiffs in
this matter. The settlement would provide, among other things,
a release of deCODE and of the Individual Defendants for the
conduct alleged in the amended complaint to be wrongful.
The Company would agree to undertake other responsibilities
under the partial settlement, including agreeing to assign away,
and not assert or release, certain potential claims the Company
may have against its underwriters. Any direct financial impact
of the proposed settlement is expected to be borne by the
Company's insurers.
The Board agreed to approve the settlement subject to a number
of conditions, including the participation of a substantial
number of other issuer defendants in the proposed settlement,
the consent of the Company's insurers to the settlement, and the
completion of acceptable final settlement documentation.
Furthermore, the settlement is subject to a hearing on fairness
and approval by the Court overseeing the litigation.
DIGITAL RIVER: Reaches Settlement For Consolidated NY Stock Suit
----------------------------------------------------------------
Digital River, Inc. reached a settlement for the consolidated
securities class action filed against it and certain of the
Company's officers and directors in the United States District
Court for the Southern District of New York, now consolidated
as "In re Digital River, Inc. Initial Public Offering Securities
Litigation, Case No. 01-CV-7355."
In the consolidated amended complaint, the plaintiffs allege
that the Company, certain of the Company's officers and
directors and the underwriters of the Company's initial public
offering, or IPO, violated Section 11 of the Securities Act of
1933 based on allegations that the Company's IPO registration
statement and prospectus failed to disclose material facts
regarding the compensation to be received by, and the stock
allocation practices of, the IPO underwriters.
The complaint also contains a claim for violation of Section
10(b) of the Securities Exchange Act of 1934 based on
allegations that this omission constituted a deceit on
investors. The plaintiffs seek unspecified monetary damages and
other relief.
Similar complaints, referred to here as the IPO Lawsuits,
were filed in the same court against hundreds of other public
companies who conducted IPOs between 1998 and 2000. The
companies sued in the IPO Lawsuits, including the Company, are
collectively referred to here as the Issuers.
On August 8, 2001, the IPO Lawsuits were consolidated for
pretrial purposes before United States Judge Shira Scheindlin of
the Southern District of New York. Judge Scheindlin held an
initial case management conference on September 7, 2001, at
which time she ordered, among other things, that the time for
all defendants in the IPO Lawsuits to respond to any complaint
be postponed until further order of the court. Thus, the
Company has not been required to answer any of the complaints,
and no discovery has been served on the Company.
On July 15, 2002, the Company joined in a global motion to
dismiss the IPO Lawsuits filed by all Issuers (among others).
On October 9, 2002, the court entered an order dismissing the
Company's named officers and directors from the IPO Lawsuits
without prejudice, pursuant to an agreement tolling the statute
of limitations with respect to these officers and directors
until September 30, 2003.
On February 19, 2003, the court issued a decision denying the
motion to dismiss the Section 11 claims against the Company and
almost all of the other Issuers and denying the motion to
dismiss the Section 10(b) claims against the Company and many of
the other Issuers.
On September 26, 2003, the plaintiffs in the IPO Lawsuits
announced a proposed settlement with the Company and the other
Issuers. The proposed settlement provides that the insurers of
all settling Issuers will guarantee that the plaintiffs recover
$1 billion from the investment banks who acted as underwriters
in the Issuers' IPOs.
In the event that the plaintiffs do not recover $1 billion, the
insurers for the settling Issuers will make up the difference.
In September2003, in connection with the possible settlement,
those officers and directors of the Company who had entered
tolling agreements with plaintiffs agreed to extend those
agreements so that they would not expire prior to any settlement
being finalized. It is possible that the parties may not reach
agreement on the final settlement documents or that the Federal
District Court may not approve the settlement in whole or part.
FIFTH THIRD: Shareholders File Securities Fraud Suits in S.D. OH
----------------------------------------------------------------
Fifth Third Bancorp and certain of its officers face eight
putative class actions filed in the United States District Court
for the Southern District of Ohio, alleging violations of
federal securities laws related to disclosures made by the
Registrant regarding its integration of Old Kent and its effect
on the Company's infrastructure, including internal
controls, and prospects and related matters. The complaints
seek unquantified damages on behalf of putative classes of
persons who purchased the Company's common stock, attorneys'
fees and other expenses.
Management believes there are substantial defenses to these
lawsuits. The impact of the final disposition of these lawsuits
cannot be assessed at this time, the Company revealed in a
disclosure to the Securities and Exchange Commission.
GEVITY HR: FL Court Approves Settlement of Shareholder Lawsuit
--------------------------------------------------------------
The Circuit Court of the Twelfth Judicial Circuit in and for
Manatee County, Florida approved the settlement of the
shareholder class action against Gevity HR Corporation and
certain of its directors alleging that the directors and senior
officers of the Company breached their fiduciary duty to
shareholders by failing to pursue a proposal from Paribas
Principal Partners to acquire the Company in order to entrench
themselves in the management of the Company.
The terms of the settlement include no admission of liability or
wrongdoing on the part of the Company or the individual
defendants, and call for payment in the total amount of $1.8
million to the class members who make a claim and do not request
exclusion, inclusive of attorneys' fees and costs. The
settlement will be paid out of insurance proceeds, therefore
resulting in no financial impact on the Company.
HANOVER COMPRESSION: Reaches Settlement for TX Securities Suits
---------------------------------------------------------------
Hanover Compression LP reached a settlement for the securities
class actions and shareholder derivative suits filed in Texas
state and federal courts.
In February 2002, approximately 15 putative securities class
action lawsuits were filed against the Company and certain of
its current and former officers and directors in the United
States District Court for the Southern District of Texas. These
class actions (together with subsequently filed actions) were
consolidated into one case, styled "Pirelli Armstrong Tire
Corporation Retiree Medical Benefits Trust, On Behalf of Itself
and All Others Similarly Situated, Civil Action No. H-02-0410,"
naming as defendants the Company and:
(1) Mr. Michael J. McGhan,
(2) Mr. William S. Goldberg and
(3) Mr. Michael A. O'Connor
The complaints asserted various claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and sought
unspecified amounts of compensatory damages, interest and
costs, including legal fees. The court entered an order
appointing Pirelli Armstrong Tire Corporation Retiree Medical
Benefits Trust and others as lead plaintiffs on January 7, 2003
and appointed Milberg, Weiss, Bershad, Hynes & Lerach LLP as
lead counsel.
On September 5, 2003, lead plaintiffs filed an amended complaint
in which they continued to seek relief under Sections 10(b) and
20(a) of the Securities Exchange Act against the Company,
certain former officers and directors and its auditor,
PricewaterhouseCoopers LLP, on behalf of themselves and the
class of persons who purchased Hanover securities between May 4,
1999 and December 23, 2002.
Commencing in February 2002, four derivative lawsuits were filed
in the United States District Court for the Southern District of
Texas, two derivative lawsuits were filed in state district
court for Harris County, Texas (one of which was non-suited and
the second of which was removed to Federal District Court for
the Southern District of Texas) and one derivative lawsuit was
filed in the Court of Chancery for the State of Delaware in and
for New Castle County.
These derivative lawsuits, which were filed by certain of the
Company's shareholders purportedly on behalf of the Company,
alleged, among other things, that Company directors breached
their fiduciary duties to shareholders and sought unspecified
amounts of damages, interest and costs, including legal fees.
The derivative lawsuits in the United States District Court for
the Southern District of Texas were consolidated on August 19
and August 26, 2002 into the Harbor Finance Partners derivative
lawsuit. With that consolidation, the pending derivative
lawsuits were:
(i) Harbor Finance Partners v. Hanover Compressor Company,
Michael J. McGhan, William S. Goldberg, Ted Collins,
Jr., Robert R. Furgason, Melvyn N. Klein, Michael A.
O'Connor, and Alvin V. Shoemaker, Defendants and
Hanover Compressor Company, Nominal Defendant, Case No.
H-02-0761, filed in the United States District Court
for the Southern District of Texas;
(ii) Coffelt Family, LLC, derivatively on behalf of Hanover
Compressor Company v. Michael A. O'Connor, Michael J.
McGhan, William S. Goldberg, Ted Collins, Jr., Melvyn
N. Klein, Alvin V. Shoemaker, and Robert R. Furgason,
Defendants and Hanover Compressor Company, Nominal
Defendant, Case No. 19410-NC, in the Court of Chancery
for the State of Delaware State Court in New Castle
County;
On October 2, 2003, the Harbor Finance Partners derivative
lawsuit was consolidated into the Pirelli Armstrong Tire
Corporation Retiree Medical Benefits Trust securities class
action.
On March 26, 2003, three plaintiffs filed separate putative
class actions against the Company, certain named individuals and
other purportedly unknown defendants, in the United States
District Court for the Southern District of Texas. The alleged
class is comprised of persons who participated in or were
beneficiaries of The Hanover Companies Retirement and
Savings Plan, which was established by Hanover pursuant to
Section 401(k) of the United States Internal Revenue Code of
1986, as amended.
The purported class action seeks relief under the Employee
Retirement Income Security Act (ERISA) based upon the Company's
and the individual defendants' alleged mishandling of the
Company's 401(k) Plan. The three ERISA putative class actions
are entitled: "Kirkley v. Hanover, Case No. H-03-1155;"
"Angleopoulos v. Hanover, Case No. H-03-1064;" and "Freeman v.
Hanover, Case No. H-03-1095."
On August 1, 2003, the three ERISA class actions were
consolidated into the Pirelli Armstrong Tire Corporation Retiree
Medical Benefits Trust federal securities class action. On
October 9, 2003, a consolidated amended complaint was filed by
the plaintiffs in the ERISA class action against the Company,
Michael McGhan, Michael O'Connor and William Goldberg , which
included the same allegations as indicated above, and was filed
on behalf of themselves and a class of persons who purchased or
held Hanover securities in their 401(k) Plan between May 4, 1999
and December 23, 2002.
On May 12, 2002, the Company reached an agreement, subject to
court approval, to settle the claims underlying the securities
class actions, the ERISA class actions and the shareholder
derivative actions described above. The terms of the proposed
settlement provide for Hanover to:
(a) make a cash payment of approximately $30 million (of
which $26.7 million was funded by payments from its
directors and officers insurance carriers),
(b) issue 2.5 million shares of Hanover’s common
stock, and
(c) issue a contingent note with a principal amount of $6.7
million.
The note is payable, together with accrued interest, on March
31, 2007 but can be extinguished (with no monies owing under it)
if Hanover's common stock trades at or above the average price
of $12.25 per share for 15 consecutive days at any time between
March 31, 2004 and March 31, 2007.
As part of the settlement, Hanover has also agreed to implement
corporate governance enhancements, including allowing large
shareholders to participate in the process to appoint two
independent directors to Hanover's Board. Hanover's and HCLP's
auditor, PricewaterhouseCoopers LLP, is not a party to the
settlement and will continue to be a defendant in the
consolidated securities class action.
GKH Investments, L.P. and GKH Private Limited which together own
approximately ten percent of Hanover's outstanding common stock
and which sold shares in Hanover's March 2001 secondary offering
of common stock, are parties to the proposed settlement and have
agreed to settle claims against them that arise out of that
offering as well as other potential securities, ERISA, and
derivative claims. The terms of the proposed settlement provide
for GKH to transfer 2.5 million shares of Hanover common stock
from their holdings or from other sources.
On July 18, 2003, the parties entered into an Amended Memorandum
of Understanding which did not alter the aggregate amount to be
paid under the settlement described above, but in which the
counsel for the named plaintiffs in the Angleopoulos and the
Freeman ERISA class actions agreed to become parties to the
settlement. As partial consideration therefore, it was agreed
that an additional $0.8 million (for a total of $1.8 million)
from the settlement fund that was previously designated for
relief for the securities class actions would be reallocated to
provide relief in connection with the ERISA class actions.
On October 13, 2003, the parties entered into a Second Amended
and Restated Memorandum of Understanding that included an
additional $225,000 contribution to the settlement (to
be funded equally by Hanover and GKH) and by which counsel in
the Harbor Finance derivative action became a party to the
settlement. As part of this arrangement, Hanover agreed to
certain additional governance procedures including certain
enhancements to its code of conduct.
On October 23, 2003, the parties to the Second Amended and
Restated Memorandum of Understanding entered into a Stipulation
of Settlement which, subject to court approval, will fully and
finally resolve all of the securities class actions, ERISA class
actions and shareholder derivative actions filed against Hanover
and certain other individuals.
PricewaterhouseCoopers LLP is not a party to the Stipulation of
Settlement and will remain a defendant in the federal securities
class action. On October 24, 2003, the parties moved the court
for preliminary approval of the proposed settlement and sought
permission to provide notice to the potentially affected persons
and to set a date for a final hearing to approve the proposed
settlement. The settlement, therefore, remains subject to court
approval and could be the subject of an objection by potentially
affected persons.
HEALTHTRONICS SURGICAL: Shareholders File Securities Suits in GA
----------------------------------------------------------------
Healthtronics Surgical Services, Inc. and certain of its current
directors and officers face several securities class actions
filed beginning in September 2003, in the United
States District Court for the Northern District of Georgia by
its shareholders.
Plaintiffs seek unspecified damages for alleged violations of
the Securities Exchange Act of 1934, and generally allege that
the Company, through some of its current directors and officers,
made false or misleading statements during periods beginning
January 4, 2000 and continuing until July 25, 2003 concerning
the efficacy, testing, and market acceptance for the Company's
OssaTron product, and the impact thereof on the Company's
business and financial condition.
The Company believes these suits to be without merit, it stated
in a filing with the Securities and Exchange Commission.
HERBALIFE INTERNATIONAL: Remand of Suit to WV State Court Sought
----------------------------------------------------------------
Plaintiffs are seeking the remand of the class action filed
against Herbalife International, Inc. and certain of its
distributors to the Circuit Court of Ohio County, in the State
of West Virginia. The suit, styled "Mey v. Herbalife
International, Inc., et al." is currently pending in the United
States District Court in West Virginia.
The complaint alleges that certain telemarketing practices of
certain Herbalife distributors violate the Telephone Consumer
Protection Act and seeks to hold the Company liable for the
practices of its distributors.
IMPERIAL PARKING: Former Employees File Overtime Wage Suit in WA
----------------------------------------------------------------
Imperial Parking (US), Inc. faces a class action filed by three
of its former employees in Seattle, Washington in respect of
alleged violations of the Washington Industrial Welfare Act.
The plaintiffs are seeking to have the lawsuit certified as a
class action on behalf of all current and former parking
attendants of the Company in Seattle.
The plaintiffs allege that the Company, during the three year
period prior to the lawsuit and continuing to date, failed to
provide attendants with one ten-minute paid rest break for each
four hours of work, and failed to pay overtime pay to
attendants. The plaintiffs seek monetary damages, statutory
penalties and injunctive relief on behalf of the class. The
total damages claimed by the plaintiffs are unspecified at this
time and are stated to be proven at trial.
The lawsuit is in pre-trial proceedings. No trial date has
been set. The Company believes that the plaintiffs' allegations
are without merit, the lawsuit should not be certified as a
class action, and that the actual damages suffered by the
plaintiffs, if any, are minimal.
LEXENT INC.: Reaches Settlement For DE Shareholder Fraud Lawsuit
----------------------------------------------------------------
The Delaware Court of Chancery granted approval to the
settlement of the class action filed against Lexent, Inc. in
response to the announcement by the Company of its receipt of an
offer from Hugh J. O'Kane, Jr., the Company's Chairman, and
Kevin M. O'Kane, the Company's Chief Executive Officer and Vice
Chairman, to purchase all outstanding shares of common stock
of the Company (other than those owned by Hugh J. O'Kane, Jr.
and Kevin M. O'Kane) at $1.25 per share. The suit named as
defendants the Company and:
(1) Hugh J. O'Kane, Jr., and
(2) Kevin M. O'Kane
The suit alleged, inter alia, that the offer was unfair and
inadequate, the buying group had engaged in self-dealing and had
not acted in good faith, and that the Company and its Board of
Directors, present and former, had breached their fiduciary duty
to shareholders.
The suit, styled "In re Lexent Inc. Shareholders Litigation,
Cons. C.A. No. 20177." The plaintiffs seek various forms of
relief, including but not limited to, damages and enjoining the
Company and the Purchaser Stockholders from proceeding with,
consummating or closing the proposed merger.
On June 17, 2003, the Company publicly announced an agreement in
principle among the defendants and the plaintiffs named in the
suit. Under the proposed terms of the settlement, the Purchaser
Stockholders agreed, among other things, to raise the per share
merger consideration to $1.50 per share. On August 6, 2003, the
parties in the suit filed a Stipulation of Settlement with the
Court of Chancery of the State of Delaware, which was later
amended.
Pursuant to the settlement, the plaintiffs (on their own behalf
and on behalf of a class of holders of Lexent common stock)
agreed to dismiss the litigation and release the defendants from
all related claims. In exchange, as previously announced, the
defendants, without admitting any liability, agreed to, among
other things:
(i) raise the consideration to be paid in the proposed
merger to $1.50 per share and
(ii) condition the approval of the proposed merger on the
receipt of the vote of a majority of shares of Lexent
common stock actually voted with respect to the
adoption and approval of the merger agreement and the
proposed merger (other than shares held by Purchaser
and the Purchaser Stockholders).
On October 15, 2003, the Court of Chancery of the State of
Delaware issued an order determining that the settlement is
fair, reasonable, and adequate to the holders of Lexent common
stock (other than Purchaser and the Purchaser Shareholders).
The Court of Chancery of the State of Delaware further awarded
plaintiffs' attorneys fees and expenses in the aggregate amount
of $500,000. In the event that the stockholders of the Company
approve the proposed Merger and the proposed Merger is
completed, plaintiffs' court-approved attorneys' fees and
expenses will be paid by the Company.
LEXENT INC.: Reaches Settlement For NY Securities Fraud Lawsuit
---------------------------------------------------------------
Lexent, Inc. reached a settlement for the securities class
action filed in the United States District Court for the
Southern District of New York, against the Company, certain of
its present and former senior executives and its underwriters,
styled "Labansky, et al. v. Lexent Inc. et al."
The complaint alleged that the registration statement and
prospectus relating to the Company's initial public offering
contained material misrepresentations and/or omissions in that
those documents did not disclose that:
(1) certain underwriters had solicited and received
undisclosed fees and commissions and other economic
benefits from some investors in connection with the
distribution of the Company's stock in the initial
public offering; and
(2) certain underwriters had entered into arrangements with
some investors that were designed to distort and/or
inflate the market price for the Company's stock in the
aftermarket following the initial public offering.
The suit against the Company was one of a number of initial
public offering securities claims against approximately 308
other issuers and underwriters. For the purpose of
coordination, the suits were consolidated as "In re Initial
Public Offering Securities Litigation, 21 MC 92 (SAS)."
In July 2003, the Company joined in a global motion, filed by
the Issuers, to dismiss the IPO Lawsuits. In October 2002, the
Court entered an order dismissing the Company's named officers
and directors from the IPO Lawsuits without prejudice, pursuant
to an agreement tolling the statute of limitations with respect
to Radio One's officers and directors until September 30, 2003.
In February 2003, the Court issued a decision denying the motion
to dismiss the Section 11 and Section 10(b) claims against Radio
One and most of the Issuers. In July 2003, a Special Litigation
Committee of Radio One's Board of Directors approved in
principle a settlement proposal with the plaintiffs that is
anticipated to include most of the Issuers.
The proposed settlement would result in the dismissal with
prejudice of all claims against the participating Issuers and
their officers and directors as well as a guarantee of payment
to the plaintiffs in the lawsuits and assignment of certain
claims against the underwriters to the plaintiffs.
In September 2003, in connection with the proposed settlement,
the Company's named officers and directors extended the tolling
agreement so that it would not expire prior to any settlement
being finalized. Although the Company has approved this
settlement proposal in principle, it remains subject to a number
of procedural conditions, as well as formal approval by the
Court.
MEMBERWORKS INC.: Florida AG Launches Consumer Fraud Complaint
--------------------------------------------------------------
Memberworks, Inc. faces a civil complaint filed by the Florida
Attorney General's Office based upon concerns that some of its
past marketing practices may have violated various consumer
laws.
The Company believes that any legitimate concerns have
previously been fully addressed, including its implementation of
industry-leading Best Marketing Practices and voluntary
agreements incorporating those practices, such as the nationwide
assurance agreement that the Company entered into with the State
of Nebraska in 2001.
The Company believes that the allegations of the complaint are
unfounded. The Company further believes that the potential
liability represented by the lawsuit and the final resolution of
this matter will not be material to the Company.
MICROSOFT CORPORATION: Reaches Settlement For North Dakota Suit
---------------------------------------------------------------
The law firms of Heins, Mills & Olson PLC and Milberg, Weiss,
Bershad, Hynes & Lerach LLP, counsel for a proposed class of
North Dakota consumers, and Microsoft Corporation jointly
announced that a settlement has been reached in a class action
lawsuit alleging that Microsoft violated North Dakota's
antitrust and unfair competition laws.
The settlement, which received preliminary approval on Wednesday
from the District Court for the County of Grand Forks, North
Dakota, will make vouchers available to class members that may
be used to buy any manufacturer's desktop, laptop and tablet
computers; any software available for sale to the general public
and used with those computer products; and specified peripheral
devices for use with computers. The total amount of vouchers
issued will depend on the number of class members who claim
vouchers, and the maximum value of the vouchers that may be
issued to class members will be $9 million.
Under the terms of the settlement agreement, Microsoft will
provide one-half of the difference between $9 million and the
value of vouchers issued to class members to North Dakota's
public school districts in the form of vouchers that may be used
by the school districts to purchase a broad range of hardware
products, Microsoftr and non-Microsoft software, and
professional development services. The vouchers will be made
available to public school districts in which 50 percent or more
of the students are eligible for reduced-fee or free meals under
the National School Lunch Program. Approximately 43 of North
Dakota's 201 school districts will be eligible to receive
assistance.
"We're pleased with the judges decision, and think it's a great
settlement for the class and for needy North Dakota schools,"
said Vince Esades, attorney for the plaintiffs. "We're pleased
that the case now moves forward to final resolution."
North Dakota Superintendent of Public Instruction Wayne Sanstead
expressed his support of the court's adoption of the settlement
proposed by the parties. "This settlement will be of benefit to
North Dakota schools and the children who attend them," he said.
"We're pleased by the opportunity to help schools all across
North Dakota get the computers and software they need," said
Brad Smith, general counsel for Microsoft. "This settlement
allows us to focus on the future and building great software,
and avoids the cost and uncertainty of litigation."
Details of the settlement are set forth in a settlement
agreement filed in the District Court for the County of Grand
Forks, North Dakota. Under the settlement, consumers who,
between May 18, 1994, and December 31, 2002, resided in North
Dakota and indirectly purchased certain Microsoft operating
system, productivity suite, spreadsheet or word processing
software for use in North Dakota and not for resale will be
eligible to apply for the vouchers.
MIDWAY GAMES: Scheduling For Securities Suits Set Nov. 25, 2003
---------------------------------------------------------------
Scheduling conference for four securities class actions filed
against Midway Games, Inc. is set for November 25,2003 in the
United States District Court for the Northern District of
Illinois. Four suits were filed, namely:
(1) Allen Ehrlich, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. Midway Games, Inc.,
Neil D. Nicastro, Thomas E. Powell, and Kenneth J.
Fedesna, Defendants, Case No.03 C 6821, filed September
29, 2003;
(2) Denise R. McVey, Individually and On Behalf of All
Others Similarly Situated, Plaintiff, v. Midway Games,
Inc., Neil D. Nicastro, Thomas E. Powell, and Kenneth
J. Fedesna, Defendants, Case No.03 C 7008, filed
October 6, 2003;
(3) Ezra Birnbaum, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. Midway Games, Inc.,
Neil D. Nicastro, Thomas E. Powell, Kenneth J. Fedesna,
UBS Warburg LLC, Gerard Klauer Mattison & Co., Inc.,
and Jefferies & Company, Inc., Defendants, Case No.03 C
7095, filed October 7, 2003; and
(4) Bennett Cin, Individually and as Trustee of the Cin &
Wagner Profit Sharing Plan, and On Behalf of All Others
Similarly Situated, Plaintiff, v. Midway Games, Inc.,
Neil D. Nicastro, Thomas E. Powell and Kenneth J.
Fedesna, Defendants, Case No.03 C 7632, filed October
29, 2003.
The complaints seek damages for a class consisting of persons
who purchased our securities between December 11, 2001 and July
30, 2003. Plaintiffs allege that during this time, the
defendants concealed facts concerning expected release dates for
our major new game titles, our ability to develop new game
titles in a timely manner, and a decrease in consumer demand for
our released products.
Plaintiffs claim that, as a result, defendants lacked a
reasonable basis for the Company's earnings projections, which
plaintiffs allege were materially false and misleading.
Plaintiffs Ehrlich, McVey and Cin allege violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934.
Birnbaum alleges the same, as well as violations of Sections 11,
12(a)(2), and 15 of the Securities Act of 1933.
On October 23, 2003, the District Court Judge entered a finding
of relatedness for the three cases that had been filed as of
that date and, in accordance with the District Court's
local rules, recommended to the Court's Executive Committee that
all the cases should be assigned to one judge. Interested
parties have a deadline of November 25, 2003 to move for
appointment of lead plaintiff and lead counsel.
At this time, defendants have not responded to the complaints,
and the Court has not yet imposed a deadline for such response.
The Company anticipates that it will respond to one consolidated
complaint after the Court has appointed a lead plaintiff. The
Company believes the cases lack merit.
MICHIGAN: Residents From 12 Cities Launch Suit Over Cable Bills
---------------------------------------------------------------
Residents of a dozen Michigan cities are accusing the
communities of charging illegal fees to cable television
customers, and have filed suits claiming that monthly franchise
fees tacked onto each cable bill violate the state's Headlee tax
limitation amendment, AP news reports.
The 12 cities are Warren, Saint Clair Shores, Troy, Royal Oak,
Canton, Plymouth, Midland, Muskegon, Grand Rapids, Ann Arbor,
Livonia and Westland. The lawsuits were filed on behalf of a
handful of residents in each city. Their lawyer, Jason
Thompson, says he will seek class-action status for all 700,000
cable subscribers in the areas.
MICROSOFT CORPORATION: Stanford Students Qualify For $1.1B Pact
---------------------------------------------------------------
Stanford students are among many college students in California
who are encouraged to collect part of a $1.1 billion settlement
with Microsoft that was reached earlier this year - the largest
class action in state history, the Stanford Daily reports.
"We encourage all students to take advantage of this
Opportunity," Richard Grossman, a San Francisco lawyer from
Townsend & Townsend & Crew, the firm that brought the class-
action case, told the Stanford Daily. "The money is available,
you're entitled to it, go get it."
Students do not need to be California residents to qualify for
the settlement, which was announced on January 10, about a month
and a half before the trial was set to begin in San Francisco's
Superior Court. An individual must only have purchased
applicable Microsoft software or hardware within the state
between February 18, 1995 and December 15, 2001 to collect
reimbursements.
Items challenged for violating California's antitrust and unfair
competition laws include certain Microsoft applications
software, operating systems and computers with pre-installed
Microsoft programs. The operating systems include MS-DOS or
Windows, and eligible applications software includes Microsoft
Office, Word, Excel, Works Suite and Home Essentials 97 or 98.
Software upgrades will also be considered.
Specific cash rewards include $16 for any computer operating
Windows or MS-DOS, $29 for every copy of Office software, $26
for Excel, and $5 for Word, Home Essentials or Works Suite.
"This settlement represents a significant portion of the amount
that Californians paid to Microsoft for its operating system and
key applications software over a seven-year period. It is a
tremendous result for California's businesses and consumers,"
Mr. Grossman said.
Microsoft General Counsel Brad Smith pointed out that the
litigation will not discourage progress and that he believes
that the settlement helped avoid a burdensome hearing. "This
settlement allows us to focus on the future and building great
software and avoids the cost and uncertainty of a lengthy
trial," Mr. Smith said.
All that's needed to apply for a voucher for up to five product
purchases and for up to $100 is to list the products purchased
on the claim form. The claimant does not need any receipts,
serial numbers, or other documents to make claims at these
limits. Vouchers can then be used to buy new software or
computer hardware such as desktops, laptops, printers, scanners,
monitors and keyboards. The vouchers will be valid for products
from any manufacturer, not just Microsoft.
Senior Albert Chen is not very enthusiastic about the prospect
of collecting on the settlement. "It's good in theory, but I
don't know if the money is actually going to get back into my
hands," Mr. Chen told the Stanford Daily. He argued that the
forms are not only aggravating to fill out, but that they will
take a long time, probably at least a year, to be processed.
Mr. Chen believes that "for a couple dollars, it's just not
worth it.
MPOWER HOLDING: NY Court Dismisses Securities Lawsuit in W.D. NY
----------------------------------------------------------------
The United States District Court for the Western District of New
York dismissed the class action filed against MPower Holding
Corporation's officers and directors with prejudice, after the
United States Court of Appeals for the Second Circuit upheld the
lower court's earlier dismissal.
The suit alleges violations of the Securities Exchange Act of
1934 and rule 10b-5 thereunder and Section 11 of the Securities
Act of 1933.
In February 2002, the United States District Court for the
Western District of New York entered its Decision and Order
dismissing the lawsuit, which the plaintiffs appealed. An Order
was entered on October 1, 2003, dismissing the suit with
prejudice. There are no further claims that can be asserted
against the Company with respect to the class action suit.
NATIONAL COMMERCE: Pays Cash Portion of Consumer Suit Settlement
----------------------------------------------------------------
National Commerce Finance Corporation has paid the cash portion
of the settlement of a purported class action filed in December
2002 against it, its subsidiaries First Mercantile Trust Company
(First Mercantile), National Bank of Commerce (a subsidiary of
First Mercantile), and two officers of First Mercantile.
The suit was filed in the United States District Court for the
Western District of Tennessee and alleges, among other things,
that fees collected by First Mercantile on investments held in
common trust funds were improperly charged.
The settlement agreement has been approved by the federal court
and all appeal periods have expired. The settlement agreement
as approved by the court includes no admission of liability or
wrongdoing by the Company or other defendants and, assuming all
conditions are met, will fully resolve the lawsuit.
Under the settlement, the plaintiff class will receive a total
benefit with an estimated value of approximately $18 million,
payable $11 million in cash and $7 million in go-forward fee
reductions.
The Company is pursuing recovery of a portion of the settlement
and its legal fees with its corporate insurance carriers;
however, the amount of recovery, if any, cannot be determined at
this time.
NEBRASKA: Woman To Get Share of $20M Insurance Suit Settlement
--------------------------------------------------------------
Janice Durflinger will soon be getting a check for $3,783.76 -
her share of a nearly $20 million settlement against a Nebraska
insurance company for underpayment of claims, the Lincoln
Journal Star reports.
Ms. Durflinger is part of a multi-state class action suit
against the Central States Health and Life Co. of Omaha for
underpaying policyholders who underwent cancer chemotherapy and
radiation treatment, according to court documents. Ms.
Durflinger was surprised to receive a letter about the class
action over a supplemental cancer insurance policy that paid
some expenses during her husband's illness.
"I never even thought about whether they were paying me enough,"
Ms. Durflinger told the Journal Star. She was too busy worrying
about caring for her husband, John, who died in January 2000,
she said.
"When you are going through that, the last thing on your mind is
whether they are paying correctly or not," she said. In
addition, the couple had coverage through Blue Cross Blue
Shield, which picked up much of the costs.
The settlement, approved Tuesday by a federal judge in Sioux
Falls, S.D., provides $7.5 million to about 1,200 policyholders
or their estates in 29 states for back payments. In addition,
about $9.6 million in benefits will be paid over the next 10
years to policyholders. The three law firms that brought the
suit will get about $2.5 million in legal fees. More than three
dozen Nebraskans or Nebraska estates are listed in the suit,
including a payment for more than $100,000 to a York woman's
estate.
The suit was filed on behalf of a South Dakota woman as a way to
get the company to reimburse policyholders for underpayment of
claims, said Mike Abourezk, a Rapid City, S.D., attorney who
began investigating the company when his sister was dying from
cancer.
With the help of an oncology nurse, Mr. Abourezk discovered the
company was paying only for the toxic chemotherapy drugs that
killed cancerous cells. It was refusing to pay for supplies
used in administering the drugs, like needles, syringes,
catheters or tubing, or for anti-nausea drugs and drugs used to
make chemotherapy safe. The company also was paying only for
delivering the radiation treatment but not related costs,
according to court documents.
Company officials could not be reached Tuesday afternoon for
comment, the Journal Star reports.
In an earlier case, brought on behalf of four policyholders,
U.S. District Judge Lawrence Piersol ruled that because the
policy's language involving treatment was ambiguous, it had to
be interpreted in favor of policyholders.
NEW VALLEY: DE Court Dismisses Six Claims in Shareholder Lawsuit
----------------------------------------------------------------
The Delaware Chancery Court dismissed six plaintiffs' claims in
the purported class action filed against New Valley Corporation,
Brooke Group Holding and certain of its directors and officers
on behalf of the Company's former Class B preferred
shareholders.
The complaint alleges that the recapitalization, approved by a
majority of each class of the Company's stockholders in May
1999, was fundamentally unfair to the Class B preferred
shareholders, the proxy statement relating to the
recapitalization was materially deficient and the defendants
breached their fiduciary duties to the Class B preferred
shareholders in approving the transaction. The plaintiffs seek
class certification of the action and an award of compensatory
damages as well as all costs and fees.
The court has dismissed six of plaintiff's nine claims alleging
inadequate disclosure in the proxy statement. Brooke Group
Holding and the Company believe that the remaining allegations
are without merit and recently filed a motion for summary
judgment on the remaining three claims.
NRG ENERGY: Plaintiffs Appeal CA Power Market Lawsuit Dismissal
---------------------------------------------------------------
Plaintiffs appealed the dismissal of the class action filed
against NRG Energy, Inc. and several other California energy
market participants in the United States District Court for the
Southern District of California, styled "Public Utility District
of Snohomish County v. Dynegy Power Marketing, Inc et al., Case
No.02-CV-1993 RHW."
The complaint alleges violations of the California Business &
Professions Code 16720 (the Cartwright Act) and Business &
Professions Code 17200. The basic claims are price fixing and
restriction of supply, and other market "gaming" activities.
All defendants filed motions to dismiss and to strike in the
fall of 2002. In an Order dated January 6, 2003, the Honorable
Robert Whaley, a federal judge from Spokane sitting in the
United States District Court in San Diego, pursuant to the Order
of the multi-district litigation (MDL) Panel, granted the
motions to dismiss on the grounds of federal preemption and
filed-rate doctrine. The plaintiffs have filed a notice of
appeal, and the appeal is pending.
NRG ENERGY: Notifies CA Court of Bankruptcy Filing in Power Suit
----------------------------------------------------------------
NRG Energy, Inc. filed a "notice of bankruptcy filing" in the
class action filed against it and other California power market
participants in the United States District Court for the
Southern District of California, styled "In re: Wholesale
Electricity Antitrust Litigation, MDL 1405."
The suit is pending before Honorable Robert H. Whaley. The
cases included in this proceeding are:
(1) Pamela R Gordon, on Behalf of Herself and All Others
Similarly Situated v Reliant Energy, Inc. et al., Case
No. 758487, Superior Court of the State of California,
County of San Diego (filed on November 27, 2000);
(2) Ruth Hendricks, On Behalf of Herself and All Others
Similarly Situated and On Behalf of the General Public
v. Dynegy Power Marketing, Inc. et al., Case No.758565,
Superior Court of the State of California, County of
San Diego (filed November 29, 2000);
(3) The People of the State of California, by and through
San Francisco City Attorney Louise H. Renne v. Dynegy
Power Marketing, Inc. et al., Case No. 318189, Superior
Court of California, San Francisco County (filed
January 18, 2001);
(4) Pier 23 Restaurant, A California Partnership, On Behalf
of Itself and All Others Similarly Situated v PG&E
Energy Trading et al., Case No.318343, Superior Court
of California, San Francisco County (filed January 24,
2001);
(5) Sweetwater Authority, et al. v. Dynegy Inc. et al.,
Case No.760743, Superior Court of California, San Diego
County (filed January 16, 2001); and
(6) Cruz M Bustamante, individually, and Barbara Matthews,
individually, and on behalf of the general public and
as a representative taxpayer suit, v. Dynegy Inc. et
al., inclusive. Case No.BC249705, Superior Court of
California, Los Angeles County (filed May 2, 2001).
These cases were all filed in late 2000 and 2001 in various
state courts throughout California. They allege unfair
competition, market manipulation, and price fixing. All the
cases were removed to the appropriate United States District
Courts, and were thereafter made the subject of a petition to
the MultiDistrict Litigation Panel (Case No. MDL 1405).
The cases were ultimately assigned to Judge Whaley. Judge
Whaley entered an order in 2001 remanding the cases to state
court, and thereafter the cases were coordinated pursuant to
state court coordination proceedings before a single judge in
San Diego Superior Court. Thereafter, Reliant Energy and Duke
Energy filed cross-complaints naming various Canadian, Mexican
and United States government entities. Some of these defendants
once again removed the cases to federal court, where they were
again assigned to Judge Whaley.
The defendants filed motions to dismiss and to strike under the
filed-rate and federal preemption theories, and the plaintiffs
challenged the district court's jurisdiction and sought to have
the cases remanded to state court. In December 2002, Judge
Whaley issued an opinion finding that federal jurisdiction was
absent in the district court, and remanding the cases to state
court. Duke Energy and Reliant Energy then filed a notice of
appeal with the Ninth Circuit, and also sought a stay of the
remand pending appeal. The stay request was denied by Judge
Whaley. On February 20, 2003, however, the Ninth Circuit stayed
the remand order and accepted jurisdiction to hear the appeal of
Reliant Energy and Duke Energy on the remand order.
The Company anticipates that filed-rate/federal preemption
pleading challenges will be renewed once the remand appeal is
decided. A "Notice of Bankruptcy Filing" respecting the Company
has also been filed in this action. The Company is not active
in the appeal, which remains pending.
PEABODY ENERGY: Subsidiary Named in Lead Exposure Lawsuit in OK
---------------------------------------------------------------
Peabody Energy Co.'s subsidiary Gold Fields faces, along with
five other companies, a class action filed in the United States
District Court for the Northern District of Oklahoma.
The plaintiffs have asserted nuisance and trespass claims
predicated on allegations of intentional lead exposure by the
defendants, including Gold Fields, and are seeking compensatory
damages for diminution of property value, punitive damages and
the implementation of medical monitoring and relocation programs
for the affected individuals.
A predecessor of Gold Fields formerly operated two lead mills
near Picher, Oklahoma prior to the 1950's. The plaintiff
classes include all persons who have lived in the vicinity of
Picher within a specified time period. Gold Fields has agreed
to indemnify one of the other defendants, which is a former
subsidiary of the company.
Gold Fields is also a defendant, along with other companies, in
17 individual lawsuits arising out of the same lead mill
operations involved in the class action. Plaintiffs in these
actions are seeking compensatory and punitive damages for
alleged personal injuries from lead exposure. Four of those
lawsuits have been consolidated for a trial set for November 17,
2003 in the US District Court for the Northern District of
Oklahoma.
While the outcome of litigation is subject to uncertainties,
based on the Company's preliminary evaluation of the issues and
their potential impact on the Company, the Company believes this
matter will be resolved without a material adverse effect on the
Company's financial condition, results of operations or cash
flows.
PENNSYLVANIA: Officials Clear Chi-Chi Workers As Hepa A Source
--------------------------------------------------------------
Pennsylvania health investigators on Tuesday said that they
don't think any of the 12 employees at the Chi-Chi's restaurant
in the Beaver Valley Mall infected with hepatitis A is the
source of the outbreak that has killed three and infected 517
others, the timesonline.com reports.
Furthermore, existing evidence highly suggests that the current
outbreak has links to a hepatitis A outbreak nearly two months
ago in three states that was blamed on contaminated green
onions, investigators said.
Joel Hersh, director of epidemiology for the state health
department, said the hepatitis outbreak grew Tuesday to 520
confirmed cases, with 360 of those Beaver County residents and
60 out of state. Those infected so far have only been people
who ate at that restaurant. Mr. Hersh said that since
restaurant employees were infected at the same time as the
customers, none of the employees could have spread it to
patrons.
Mr. Hersh told the timesonline that while he's hopeful that the
small increases in the number of cases in recent days could mean
the worst of the biggest outbreak in U.S. history is over, it's
still too soon to tell. He said molecular testing on blood
samples for three hepatitis A patients from the Beaver County
outbreak showed that they were infected with the same strain of
virus. He added that the strain was "very similar, but not
exact" to a hepatitis strain identified as sickening 280 people
in Georgia, North Carolina and Tennessee in September.
Based on laboratory data received Monday, Mr. Hersh said, "It
suggests it could be (linked to the other outbreaks), but we're
not ready to say it is." He added that more scientific data
collected over the next few days could give an even clearer
picture, but that a single food item has not been identified as
the source of the hepatitis, the timesonline reports.
Health officials said earlier that the Southern states'
outbreaks spurred the Food and Drug Administration to advise
those who have recently eaten green onions to monitor their
health, and to encourage consumers to cook green onions before
they eat them. Chi-Chi's removed green onions from its other
stores last week, and the Beaver County store will remain closed
until at least early January.
If tainted onions are responsible for the Beaver County
outbreak, it would be difficult to pinpoint exactly where the
vegetables were contaminated because produce typically passes
through many hands during the harvesting, packing and trucking
processes necessary for them to get from a farm to the table,
health officials said. Mr. Hersh said that FDA officials are
working to track where the green onions used by the Chi-Chi's in
Center Township came from.
State agriculture officials said that the Center Chi-Chi's
bought its green onions from distributors in Arlington, Texas;
Salinas, Calif.; and Newport, Ky. Officials said the California
and Texas companies grow their own scallions, while it was
unclear where the Kentucky company gets its supply.
Seattle lawyer William Marler, who is representing 50 of those
infected here, cautioned in a news release that investigators
shouldn't assume that green onions are the source of the virus
because there is "no clear indication" the onions are to blame.
"This outbreak has been a horrible experience for the entire
Beaver Valley community, but avoiding green onions might not be
the answer," the news release quoted Marler as saying.
Mr. Marler also called on Chi-Chi's to pay damages to hepatitis
victims and to the thousands who might have been exposed to the
virus. He also wants Chi-Chi's to reimburse state and federal
officials for the cost of inoculations and the investigation.
Andy Weisbecker, Mr. Marler's partner, said that in past
outbreaks, the law firm has filed a class-action lawsuit on
behalf of those who have been screened and received the
inoculations, with those people receiving between $200 and $400
for lost wages and other expenses.
In Beaver County, 9,757 people have been screened for the
disease, and 8,992 were inoculated as of Tuesday. Three people
have died from liver failure brought on by the virus: Jeffrey
Cook, 46, of Aliquippa on November 7; Dineen Wieczorek, 51, of
Hopewell Township on November 12; and John Spratt, 46, of
Aliquippa on Friday. Ms. Wieczorek had diabetes, family members
said, but Mr. Spratt and Mr. Cook had no underlying medical
conditions. One person remained in critical condition Tuesday
evening at UPMC Presbyterian, officials there said, with two
patients in fair condition.
RADIO ONE: Reaches Settlement For NY Consolidated Stock Lawsuit
---------------------------------------------------------------
Radio One, Inc. reached a settlement for the consolidated
securities class action filed against it and certain of its
officers and directors in the United States District Court for
the Southern District of New York captioned, "In re Radio One,
Inc. Initial Public Offering Securities Litigation, Case No. 01-
CV-10160."
Similar complaints were filed in the same court against hundreds
of other public companies that conducted initial public
offerings of their common stock in the late 1990s. In the
complaint filed against the Company (as amended), the plaintiffs
claim that the Company, certain of its officers and directors,
and the underwriters of certain of its public offerings violated
Section 11 of the Securities Act of 1933 based on allegations
that its registration statement and prospectus failed to
disclose material facts regarding the compensation to be
received by, and the stock allocation practices of, the
underwriters.
The complaint also contains a claim for violation of Section
10(b) of the Securities Exchange Act of 1934 based on
allegations that this omission constituted a deceit on
investors. The plaintiffs seek unspecified monetary damages and
other relief.
In July 2002, the Company joined in a global motion, filed by
the Issuers, to dismiss the IPO Lawsuits. In October 2002, the
Court entered an order dismissing the Company's named officers
and directors from the IPO Lawsuits without prejudice, pursuant
to an agreement tolling the statute of limitations with respect
to Radio One's officers and directors until September 30, 2003.
In February 2003, the Court issued a decision denying the motion
to dismiss the Section 11 and Section 10(b) claims against Radio
One and most of the Issuers. In July 2003, a Special Litigation
Committee of Radio One's Board of Directors approved in
principle a settlement proposal with the plaintiffs that is
anticipated to include most of the Issuers.
The proposed settlement would result in the dismissal with
prejudice of all claims against the participating Issuers and
their officers and directors as well as a guarantee of payment
to the plaintiffs in the lawsuits and assignment of certain
claims against the underwriters to the plaintiffs.
In September 2003, in connection with the proposed settlement,
the Company's named officers and directors extended the tolling
agreement so that it would not expire prior to any settlement
being finalized. Although the Company has approved this
settlement proposal in principle, it remains subject to a number
of procedural conditions, as well as formal approval by the
Court.
REAL ESTATE: Fairness Hearing For Suit Settlement Set Nov. 2003
---------------------------------------------------------------
Hearing for the final approval of the settlement proposed by
Real Estate Associates Limited III for the class action filed
against it, its corporate general partner National Partnership
Investments Corporation (NAPICO), and certain other defendants
is set for November 24,2003.
On August 27, 1998, two investors holding an aggregate of eight
units of limited partnership interests in the Partnership, an
affiliated partnership in which NAPICO is the corporate general
partner, and two investors holding an aggregate of five units of
limited partnership interests in Real Estate Associates Limited
VI (another affiliated partnership in which NAPICO is the
corporate general partner) commenced an action in the United
States District Court for the Central District of California
against the Partnership, NAPICO and certain other defendants.
The complaint alleged that the defendants breached their
fiduciary duty to the limited partners of certain NAPICO managed
partnerships and violated securities laws by making materially
false and misleading statements in the consent solicitation
statements sent to the limited partners of such partnerships
relating to approval of the transfer of partnership interests in
limited partnerships, owning certain of the properties, to
affiliates of Casden Properties Inc., organized by an affiliate
of NAPICO. The plaintiffs sought equitable relief, as well as
compensatory damages and litigation related costs.
On August 4, 1999, one investor holding one unit of limited
partnership interest in Housing Programs Limited (another
affiliated partnership in which NAPICO is the corporate general
partner) commenced a virtually identical action in the United
States District Court for the Central District of California
against the Partnership, NAPICO and certain other entities. The
second action was subsumed in the first action, and was
certified as a class action. On August 21, 2001, plaintiffs
filed a supplemental complaint, which added new claims,
including a rescission of the transfer of partnership interests
and an accounting.
In November 2002, the jury returned special verdicts against
NAPICO and certain other defendants in the amount of
approximately $25.2 million for violations of securities laws
and against NAPICO for approximately $67.3 million for breaches
of fiduciary duty. In addition, the jury awarded the plaintiffs
punitive damages against NAPICO of approximately $92.5 million.
On April 29, 2003, the Court entered judgment against NAPICO and
certain other defendants in the amount of $25.2 million for
violations of securities laws and against NAPICO for $67.3
million for breaches of fiduciary duty, both amounts plus
interest of $25.6 million, and for punitive damages against
NAPICO in the amount of $2.6 million.
On August 11, 2003, NAPICO entered into a Stipulation of
Settlement with the plaintiff class and their counsel relating
to the settlement of the litigation. On August 25, 2003, the
court granted preliminary approval of the Stipulation of
Settlement. Pursuant to the Stipulation of Settlement, Alan I.
Casden, on behalf of himself, NAPICO and other defendants in the
litigation, caused $29 million to be deposited into an escrow
account for the benefit of the Plaintiffs. The Stipulation of
Settlement remains subject to the final approval of the court,
as well as the approval of the Plaintiffs.
Upon final court approval, approval by the Plaintiffs and the
lapse of any time to appeal the court approval of the
settlement, the following shall occur:
(1) Alan I. Casden, on behalf of himself, NAPICO and other
defendants in the litigation, will transfer to an agent
for the Plaintiffs shares of common stock ("Class A
Common Stock") of AIMCO owned by certain affiliates of
Alan I. Casden with an aggregate market value of $19
million, subject to certain transfer restrictions, or
at Alan I. Casden's option, $19 million in cash;
(2) NAPICO will issue an aggregate of $35 million in
promissory notes for the benefit of the Plaintiffs. An
aggregate of $7 million of notes are to be paid each
year. The notes will bear interest based on applicable
rates of U.S. Treasury bills with similar maturities.
The notes will be guaranteed by AIMCO Properties, L.P.,
an affiliate of AIMCO;
(3) The parties to the Stipulation of Settlement will
release each other and related parties from any and all
claims associated with the litigation and the
Plaintiffs' investment in the Partnership and the other
affiliated partnerships.
(4) The $29 million in the escrow account established by
Alan I. Casden will be released to the Plaintiffs.
Pursuant to the Stipulation of Settlement, upon final approval
of the settlement by the court, the parties shall jointly
request that a new judgment be entered in the litigation that
will, among other things, expunge the judgment originally
entered against NAPICO and the other defendants on April 29,
2003.
On September 24, 2003, Battle Fowler, LLP filed a request to
intervene to challenge the portion of the Stipulation of
Settlement that would lead to expungement of the judgment
originally entered on April 29, 2003 against NAPICO and the
other defendants. All parties to the Stipulation of Settlement
have opposed this request to intervene. A hearing regarding the
request occurred November 10, 2003; however, the court has not
yet ruled on the matter.
SLM CORPORATION: Borrowers Launch CA Unfair Trade Practices Suit
----------------------------------------------------------------
SLM Corporation and certain of its affiliates faces a class
action filed in California State Court on behalf of its
borrowers affected by the Company's monthly payment calculation.
The complaint asserts claims under the California Business and
Professions Code and other California statutory sections. The
complaint further seeks certain injunctive relief and
restitution. The Company believes that this action is without
merit, it revealed in a filing with the Securities and Exchange
Commission.
TORCH OFFSHORE: Oral Arguments on Stock Suit Dismissal Completed
----------------------------------------------------------------
Oral arguments on plaintiff's appeal of the dismissal of the
securities class action filed against Torch Offshore, Inc. have
been conducted in the United States District Court for the
Eastern District of Louisiana.
The suit, styled "Karl L. Kapps, et. al. v. Torch Offshore, Inc.
et. al., No. 02-00582," was dismissed on December 19, 2002 for
failure to state a claim upon which relief could be granted.
The plaintiffs appealed to the United States Court of Appeals
for the Fifth Circuit.
The Company is awaiting a decision of the court. The Company
believes the allegations in this lawsuit are without merit and
continues to fight this lawsuit. Even so, an adverse outcome in
this class action litigation could have a material adverse
effect on the Company's financial condition or results of
operations.
UNITED STATES: Vaccinations May Have Caused Army Medic's Death
--------------------------------------------------------------
The Pentagon on Wednesday said that vaccinations may have caused
the death of 22-year-old Rachel A. Lacy of suburban Chicago, an
Army medic who succumbed a month after receiving a combination
of five shots, AP news reports. The conclusion was reached by
two panels that studied the death of Ms. Lacy and the illnesses
of three others, Defense Department officials said.
As is common practice inside and outside of the military, Ms.
Lacy received several vaccinations in one day - for anthrax,
smallpox, typhoid, hepatitis B and measles-mumps-rubella. The
reservist got the shots March 2 at Ft. McCoy, Wis., and died a
month later.
Two panels were convened at the Pentagon's request under the
Health and Human Services Department. One reported last week
that it tended to think, but couldn't conclusively prove, the
vaccinations caused Ms. Lacy's death. Members on the second
panel differed, with three members saying it was "possible" the
vaccinations were the cause and two saying it was "probable."
The panels found the illnesses of the other three people were
not associated with the vaccinations, defense officials said.
Officials said Ms. Lacy's death was extremely rare and would not
alter the Pentagon's vaccination program.
More than 900,000 service members have received the anthrax shot
and more than 500,000 the smallpox shot - among the millions of
doses of vaccines administered annually to protect troops
against disease and bioterror threats. Ms. Lacy, of Lynwood,
Ill., was a nursing student before being called to active duty
with the 452nd Combat Surgical Hospital Unit of Milwaukee. One
of the hospitals that treated Lacy diagnosed her with lupus, an
autoimmune disorder.
Members of the two panels that studied the cases were all
civilian physicians and academics who advise the government.
VITALWORKS INC.: Plaintiffs File Consolidated CT Securities Suit
----------------------------------------------------------------
Plaintiffs filed a consolidated securities class action against
Vitalworks, Inc. and three of its executive officers in the
United States District Court for the District of Connecticut.
The action was brought by plaintiff Bernard Frazier, on behalf
of purchasers of securities of the Company between April 24,
2002 and October 23, 2002. The complaint alleges, among other
things, violations of Section 10(b) of the Securities Exchange
Act of 1934, Rule 10b-5 promulgated thereunder and breach of
fiduciary duties.
The complaint alleges that the defendants made misleading
statements and omissions regarding the Company's business and
operations, principally in press releases and public conference
calls in April 2002 and July 2002, which allegedly had the
effect of artificially inflating the market price of the
Company's common stock during the class period, and that six
officers of the Company, including the defendant officers, sold
shares of Company common stock during the class period. The
plaintiff seeks recovery of an unstated amount of compensatory
damages, attorneys' fees and costs.
WEBMETHODS INC.: Reaches Settlement For NY Securities Fraud Suit
----------------------------------------------------------------
webMethods, Inc. reached a settlement for the consolidated
securities class action filed in the United States District
Court for the Southern District of New York. The suit also
names as defendants several of its executive officers at the
time of its initial public offering and the managing
underwriters of its initial public offering as defendants.
The amended complaint alleges, among other things, that
webMethods' initial public offering registration statement and
final prospectus contained material misrepresentations and
omissions related in part to certain commissions allegedly
solicited and received by the underwriters, and tie-in
arrangements allegedly demanded by the underwriters, in
connection with their allocation of shares in our initial public
offering, and that those commissions and arrangements were not
disclosed to the public after webMethods' initial public
offering.
The amended complaint also alleges that false analysts' reports
were issued. The amended complaint seeks unspecified damages on
behalf of a purported class of purchasers of the Company's
common stock between February 10, 2000 and December 6, 2000.
This case has been consolidated as part of "In Re Initial Public
Offering Securities Litigation (SDNY)."
The Company has considered and agreed to enter into a proposed
settlement offer with representatives of the plaintiffs in the
consolidated proceeding, and believe that any liability on
behalf of the Company that may accrue under that settlement
offer would be covered by the Company's insurance policies.
WISCONSIN: Suit V. Milwaukee Schools Granted Class Certification
----------------------------------------------------------------
Magistrate Judge Aaron Goodstein has ruled that a special-
education lawsuit brought by the Wisconsin Coalition for
Advocacy in 2001, against Milwaukee Public Schools (MPS) will
proceed as a class action case, the Milwaukee Journal Sentinel
reports. The move means that the Coalition could represent
hundreds of city schoolchildren, instead of merely the seven
original plaintiffs. Both sides learned of the ruling this
week.
The suit alleges that MPS systematically violated laws governing
the treatment of students with disabilities. It accuses the
district of failing to draw up individual learning plans for
students, for instance, a requirement of special education law.
The victory is a nebulous one, though, because the judge did not
grant as broad a definition of class action as coalition lawyers
had hoped. Originally, lawyers had asked to represent all
school-age children living in the district's boundaries.
However, the decision includes only students who are eligible
for special education services and have been "denied or delayed
entry" to initial services.
Coalition lawyers estimate that this definition could include up
to a couple thousand students, but MPS officials say they do not
know how large the group is. "It's hard to predict what the
number will be," Patricia Yahle, the director of special
education for the district, told the Journal Sentinel.
In his decision, Judge Goodstein writes that "well over" 40
students will probably meet the definition, the minimum number
required to justify a class action. A class action designation
significantly raises the stakes for defendants because they
could wind up paying damages to a much larger group of people.
"We certainly are glad to have this class certified," Monica
Murphy, a lawyer for the coalition, told the Journal Sentinel.
"We're hoping that move at least prompts MPS toward some
meaningful bargaining or mediation to improve special
education."
However, Ms. Murphy added that the decision has potential
drawbacks for her side. "When it was just a regular lawsuit on
behalf of those seven plaintiffs, in some ways it would have
been broader and covered more issues," she said. "Now, we have
many more kids, but it could cover fewer issues."
The reason is that plaintiffs whose complaints do not meet the
definition of "class" laid down by the judge might have to be
dropped from the lawsuit. "I would have wished that we did not
have a class certification and could have all of our efforts
focused on our programs and the development of programs," Ms.
Yahle said. "I think the district has a history of doing a
really good job informing parents about their rights" under
special education law, she added.
The complaints in the original lawsuit range widely. One
alleges that Maiysha Y., then 13, should have been pulled out of
class four times a week for help with her learning disabilities
and wasn't. Another alleges that Lamont A., who was 17 when the
suit was filed, should have been trained in the "activities of
daily living," but spent his time coloring and watching
television.
Mediation between the two sides in the case ended in spring
2001, and lawyers for both sides say there has been no fresh
movement for talks.
VITRIA TECHNOLOGY: Reaches Settlement For Stock Fraud Suit in NY
----------------------------------------------------------------
Vitria Technology, Inc. reached a settlement for the securities
class action filed against it and certain of its officers and
directors in the United States District Court for the Southern
District of New York, captioned "Kideys, et al., v. Vitria
Technology, Inc., et al., Case No. 01-CV-10092."
The plaintiffs allege that the Company, certain of its officers
and directors and the underwriters of its initial public
offering (IPO), violated federal securities laws because the
Company's IPO registration statement and prospectus contained
untrue statements of material fact or omitted material facts
regarding the compensation to be received by, and the stock
allocation practices of, the IPO underwriters. The plaintiffs
seek unspecified monetary damages and other relief.
Similar complaints were filed in the same court beginning in
January 2001 against numerous public companies that first sold
their common stock since the mid-1990s. All of these IPO-
related lawsuits were consolidated for pretrial purposes before
United States Judge Shira Scheindlin of the Southern District of
New York.
Defendants filed a global motion to dismiss the IPO-related
lawsuits on July 15, 2002. On February 19, 2003, Judge
Scheindlin issued a decision denying the motion to dismiss the
Section 11 and Section 10(b) claims against Radio One and most
of the Issuers. In July 2003, a Special Litigation Committee of
Radio One's Board of Directors approved in principle a
settlement proposal with the plaintiffs that is anticipated to
include most of the Issuers.
The proposed settlement would result in the dismissal with
prejudice of all claims against the participating Issuers and
their officers and directors as well as a guarantee of payment
to the plaintiffs in the lawsuits and assignment of certain
claims against the underwriters to the plaintiffs.
In September 2003, in connection with the proposed settlement,
the Company's named officers and directors extended the tolling
agreement so that it would not expire prior to any settlement
being finalized. Although the Company has approved this
settlement proposal in principle, it remains subject to a number
of procedural conditions, as well as formal approval by the
Court.
WEST COAST: Plaintiffs Commence Amended CA Energy Market Lawsuit
----------------------------------------------------------------
Plaintiffs filed an amended class action against West Coast
Power LLC and several of its related entities in the United
States District Court for the Southern District of California.
It was initially filed in the Superior Court of California, San
Diego County.
The suit, styled "Jerry Egger, et al. v. Dynegy Inc., et al.,
Case No.809822," alleges violations of California’s
Antitrust Law, Business and Professional Code, and unlawful and
unfair business practices. The named defendants include:
(1) Cabrillo II,
(2) El Segundo Power, and
(3) Long Beach Generation.
Plaintiffs have stated an intention to file a motion to remand
to state court. Plaintiffs filed the amended complaint in
October 2003.
WEST COAST: Plaintiffs Launch Amended CA Energy Market Lawsuit
--------------------------------------------------------------
Plaintiffs filed an amended class action against several West
Coast Power LLC-related entities and numerous California energy
industry participants, in the California Superior Court for Los
Angeles County, styled "Bustamante v. McGraw-Hill Companies
Inc., et al., No. BC 235598."
The complaint generally alleges that the defendants attempted to
manipulate gas indexes by reporting false and fraudulent trades.
Named defendants in the suit are the LLCs established by the
Company for each of its four plants:
(1) El Segundo Power, LLC;
(2) Long Beach Generation, LLC;
(3) Cabrillo Power I LLC; and
(4) Cabrillo Power II LLC
The complaint seeks restitution and disgorgement of "ill-gotten
gains," civil fines, compensatory and punitive damages,
attorneys' fees, and declaratory and injunctive relief.
Asbestos Alert
ASBESTOS LITIGATION: Fortune Brands Unit Faces Asbestos Lawuits
---------------------------------------------------------------
Fortune Brands reports that its subsidiary, Moen Incorporated,
has been named as a defendant, with 75 others, in around 160
cases claiming personal injury from asbestos. There is an
increasing volume of asbestos-related personal injury litigation
in the United States generally.
Fortune Brands declares that it is not possible to predict the
outcome of the pending litigation, and, as with any litigation,
it is possible that some of these actions could be decided
unfavorably. The company believes it has a strong case and that
these actions will not have a material adverse effect upon the
results of its operations, cash flows or financial condition.
ASBESTOS LITIGATION: Watts Faces 100 Asbestos-Related Actions
-------------------------------------------------------------
Watts Water Technologies reports that as of September 30, the
company was a defendant in around 100 asbestos-related actions
filed in Mississippi and New Jersey state courts.
The actions allege injury or death as a result of exposure to
asbestos, according to its latest regulatory filing with the
Securities and Exchange Commission. These actions typically
name many defendants, and are filed on behalf of many
plaintiffs. According to the filing, the claimants do not
identify any particular product of the Company as a source of
asbestos exposure.
Watts Water is confident that the ultimate outcome of these
cases will not have a material adverse effect on its liquidity,
financial condition or results of operations.
ASBESTOS ALERT: Rogers Reveals Asbestos-Related Liabilities
-----------------------------------------------------------
Rogers Corporation reveals in its latest regulatory filing with
the Securities and Exchange Commission, that it is named,
together with many other industrial companies, as a defendant in
some asbestos-related lawsuits.
There recently has been a significant increase in certain U.S.
states in asbestos-related product liability claims against
numerous industrial companies.
Rogers does not specify in its filing the number of claims
against it but it strongly believes it has valid defenses to
these claims and intends to defend itself vigorously. The
company is confident that it has sufficient insurance to cover
all costs associated with these claims. Based upon past claims
experience and available insurance coverage, management believes
these matters will not have a material adverse effect on the
financial position, results of operations, or cash flows of the
Company.
ASBESTOS LITIGATION: Rohm & Haas Gets Asbestos Premises Cases
-------------------------------------------------------------
Rohm & Haas Co reports that it is named as one of the peripheral
defendants in asbestos-related cases, according to its latest
regulatory filing with the Securities and Exchange Commission.
There has been increased publicity about asbestos liabilities
faced by manufacturing companies. In the past, virtually all
companies with manufacturing facilities had asbestos on their
premises. As a result of the bankruptcy of asbestos producers,
plaintiffs' attorneys are increasing their focus on peripheral
defendants, including the Company, which had asbestos on its
premises, according to the filing.
The premises cases filed against the company have been dismissed
or settled for minimal amounts because of the minimal likelihood
of exposure at our facilities. As the asbestos producers have
sought bankruptcy protection, the demands against peripheral
players like Rohm and Haas with manufacturing facilities in the
United States are increasing.
The company declares that it reserved amounts for premises
asbestos cases that it currently believes are probable and
estimable; it cannot reasonably estimate what its asbestos costs
will be if the current situation deteriorates and there is no
tort reform, according to the filing.
There are also pending lawsuits filed against Morton related to
employee exposure to asbestos at a manufacturing facility in
Weeks Island, Louisiana with additional lawsuits expected. Rohm
and Haas expects that most of these cases will be dismissed
because they are barred under worker's compensation laws. The
cases involving asbestos-caused malignancies, however, may not
be barred under Louisiana law. Subsequent to the Morton
acquisition, the company commissioned medical studies to
estimate possible future claims and recorded accruals based on
the results.
Morton has also been sued in connection with the former Friction
Division of the former Thiokol Corporation, which merged with
Morton in 1982. Settlement amounts to date have been minimal and
many cases have closed with no payment. The company estimates
that all costs associated with future claims, including defense
costs, will be well below its insurance limits.
ASBESTOS LITIGATION: Boss Continues to Face Asbestos Lawsuits
-------------------------------------------------------------
Boss Holdings reports in its latest regulatory filing that it
continues to be a party to various lawsuits alleging past
exposure to asbestos contained in gloves manufactured or sold by
one of the Company's predecessors-in-interest.
According to its filing with the Securities and Exchange
Commission, these lawsuits primarily involve claims for damages
arising out of commercial disputes.
Boss Holdings claims that one or more of the Company's products
liability insurers are defending all the actions. The Company
believes that the ultimate disposition of these matters should
not materially impact the Company's consolidated financial
position or liquidity.
ASBESTOS LITIGATION: OI Eyes $450M Additional Asbestos Charge
-------------------------------------------------------------
Owens-Illinois Inc. reports in its latest regulatory filing that
it expects that an additional charge needed to bolster its
asbestos reserves won't exceed $450,000,000.
According to the company's latest quarterly filing with the
Securities and Exchange Commission, Owens-Illinois expects to
complete a comprehensive review of its asbestos-related
liabilities and costs in connection with finalizing and
reporting its results for 2003 and each following year unless
significant evens warrant an earlier review.
Owens-Illinois said that if the results of the annual review
indicate that the existing amount of the accrued liability isn't
enough to cover the company's estimated liabilities, it would
record an appropriate charge to increase the accrual.
According to the filing, while the amount of any such increase
in the accrual has not yet been determined, at the present time,
the company believes that charge would not exceed $450,000,000
however, a lesser amount would result from the passage of
proposed federal legislation that would fund all asbestos claims
through a mandatory trust arrangement.
Owens-Illinois established a liability of $975,000,000 to cover
asbestos-related lawsuits and claims in 1993, an additional
liability of $250,000,000 was established in 1998 and
$550,000,000 more was added to the liability, in 2000.
Based on the company's experience with these claims, it has
determined that an additional charge of $475,000,000 would be
appropriate.
ASBESTOS LITIGATION: Oglebay Faces 73,019 Asbestos-Related Cases
----------------------------------------------------------------
Oglebay Norton Co. reports that as of Sept. 30, Oglebay Norton
was a co-defendant in asbestos-related cases with about 73,019
claimants, according to its latest regulatory filing.
The company said it agreed to fund a settlement insurance trust
to cover a portion of settlement and defense costs arising from
asbestos litigation, according to a quarterly report filed with
the Securities and Exchange Commission.
According to the filing, under the trust, Oglebay Norton may use
up to $4,000,000 to cover the cost of any other insurable or
insurance-related expense.
Oglebay Norton didn't specify how much money the company was
contributing to the trust but it said that it will have access
to trust funds to cover settlements and defense costs and then
won't have the obligation to cover those costs from its own
funds.
ASBESTOS LITIGATION: S&P Affirms Sealed Air Corp's BBB Rating
-------------------------------------------------------------
Standard & Poor's Ratings Services recently affirmed its
existing 'BBB/Negative/--' ratings on Saddle Brook, N.J.-based
packaging manufacturer Sealed Air Corp., and removed them from
CreditWatch.
"This action follows the company's recent announcement that it
has completed and signed a definitive settlement agreement with
the Committee of Asbestos Personal Injury Claimants and the
Committee of Asbestos Property Damage Claimants in the W.R.
Grace bankruptcy proceeding," said Standard & Poor's credit
analyst Paul Vastola. The definitive settlement agreement is
consistent with the terms of the agreement that was announced in
November 2002, and is important in that it removes a material
uncertainty related to the credit quality of Sealed Air.
Under the terms of the settlement agreement, all payments by
Sealed Air, including $512,000,000 in cash (which accrues at 5%
per annum) and nine million shares of its common stock, are to
be made in full on the effective date of the W. R. Grace plan of
reorganization (which is undetermined at this time). The
settlement and all payments remain contingent upon court
approval in the W. R. Grace bankruptcy proceeding and Sealed Air
and its affiliates receiving the full benefit of an injunction
under the U.S. Bankruptcy Code. The injunction is a key factor
in the ratings affirmation as it includes protection to Sealed
Air against all current and future W. R. Grace-related asbestos
claims and fraudulent transfer claims made against it in
connection with the 1998 transaction in which Sealed Air
acquired the Cryovac packaging business from W. R. Grace. The
affirmation also includes expectations that Sealed Air will use
its cash balances (totaling $511,000,000 at Sept. 30, 2003) and
its free cash flow to pay the cash component of the agreement
and thus preclude any increase in its debt levels. Moreover, as
a result of the signing of the agreement, the company is
expected to take additional steps soon to bolster its liquidity,
including obtaining a new bank facility.
Sealed Air had about $2,500,000,000 in debt outstanding as of
September 30. The outlook is negative.
The ratings on Sealed Air Corporation reflect the company's
above-average business risk profile and its consistent
generation of free cash flows, which are partially offset by its
somewhat aggressive financial management.
ASBESTOS LITIGATION: Bowater Gets 19 More Asbestos Suits
--------------------------------------------------------
Bowater reports that there are around 19 asbestos-related cases
filed against the company this year, according to its latest
regulatory filing with the Securities and Exchange Commission.
According to the filing, Bowater, several other paper companies,
and 120 other companies were named as defendants in asbestos
personal injury actions based on product liability claims. These
actions generally allege occupational exposure to numerous
products.
Bowater has denied the allegations and no specific product of
Bowater has been identified by the plaintiffs in any of the
actions as having caused or contributed to any individual
plaintiff's alleged asbestos-related injury, said the filing.
These suits have been filed by around 874 claimants who sought
monetary damages in civil actions pending in state courts in
Illinois, Mississippi, Missouri, New York and Texas. An estimate
of 731 of these claims has been dismissed, either voluntarily or
by summary judgment, and around 143 claims remain. All claims in
Missouri have been dismissed, and plaintiffs' counsel in
Illinois and Missouri has agreed not to file similar cases.
ASBESTOS LITIGATION: Court Moves ABB Asbestos Hearing
-----------------------------------------------------
Swedish firm ABB recently said a U.S. appeals court has delayed
a hearing into its $1,200,000,000 asbestos claim settlement
until next year, knocking its shares just as it drums up
interest in a bond launch, according to a Reuters report.
The settlement was necessary for ABB's multi-billion dollar
recapitalization plan to proceed. It caps potentially ruinous
liability claims and already has been approved by lower U.S.
courts, Reuter reports.
"This is obviously a disappointment. The whole process is going
to take a long time and will probably end up in the Supreme
Court,'' one analyst told Reuters. "On the other hand, people
are more interested in the financing package.''
"The change in schedule is of no significance for the outcome of
the [asbestos] hearing. There is no change in our position that
we are confident that our plan will be confirmed,'' ABB said
told Reuters.
The settlement centers on ABB's Combustion Engineering unit,
which made industrial boilers insulated with asbestos, a
potentially deadly material.
Reuters reports that ABB almost collapsed last year as demand
for its products such as industrial robots and power
transmission systems soured in an economic downturn and it
grappled with heavy debts and an unwieldy structure caused by an
over-ambitious acquisition strategy.
ASBESTOS LITIGATION: Boise Cascade Battles Asbestos Suits
---------------------------------------------------------
Boise Cascade Corporation reports that over the past several
years and continuing into 2003, it has been named a defendant in
a number of cases where the plaintiffs allege asbestos-related
injuries from exposure to asbestos products or exposure to
asbestos while working at job sites, according to its latest
regulatory filing.
Its latest filing with the Securities and Exchange Commission
says, the claims vary widely and often are not specific about
the plaintiffs' contacts with it or with its facilities. None
of the claims seeks damages from it individually, and it is
generally one of numerous defendants. Many of the cases filed
against it have been voluntarily dismissed, although it has
settled some cases.
"The settlements we have paid have been covered mostly by
insurance, and we believe any future settlements or judgments of
these cases would be similarly covered. To date, no asbestos
case against us has gone to trial, and the nature of these cases
makes any prediction as to the outcome of pending litigation
inherently subjective. At this time, however, we believe our
involvement in asbestos litigation is not material to either our
financial position or results of operations," Boise said.
ASBESTOS ALERT: Olin Reveals Asbestos-Related Liabilities
---------------------------------------------------------
Olin Corporation reports that it is a defendant in various
lawsuits including exposures to asbestos and other hazardous
substances.
In its latest regulatory filing with the Securities and Exchange
Commission, the company and its subsidiaries disclosed that they
are defendants in various legal actions (including proceedings
based on alleged exposures to asbestos, perchlorate and vinyl
chloride) incidental to its past and current business
activities.
Olin does not specify the number of cases filed against them.
Since the company is new to the asbestos-related litigation
scenario, it cannot determine its impact to its finances but it
believes that none of these legal actions will materially
adversely affect its financial position.
New Securities Fraud Cases
AMERICAN PHARMACEUTICAL: Goodkind Labaton Files Stock Suit in IL
----------------------------------------------------------------
Goodkind Labaton Rudoff & Sucharow LLP initiated a class action
lawsuit in the United States District Court for the Northern
District of Illinois, on behalf of persons who purchased or
otherwise acquired publicly traded securities of American
Pharmaceutical Partners Inc. between February 19, 2002 and
September 24, 2003, inclusive, against defendants:
(1) American Pharmaceuticals,
(2) Patrick Soon-Shiong,
(3) Derek J. Brown,
(4) Jeffrey M. Yourdon,
(5) Nicole S. Williams, and,
(6) American Bioscience Inc.
The complaint alleges that Defendants made materially false and
misleading statements with respect to the drug Abraxane, which
is a reformulated version of Taxol, which in turn is used for
the treatment of breast cancer. Throughout the class period,
Defendants touted that Abraxane was a safer and more effective
alternative to Taxol. Defendants indicated clinical studies
showed that Abraxane could be administered without Cremophor, a
toxic substance, and without steroid premedication.
On September 24, 2003, the Defendants issued positive statements
with respect to the preliminary results of Phase III testing of
Abraxane. However, the underlying trial results lacked the
utilization of a double blind testing procedure and the company
indicated that it needed to be administered with steroid
premedication. The shares of the American Pharmaceuticals
reacted negatively to the news, falling 32% from a Class Period
high of $44.14 on September 24, 2003 to a closing price of
$29.59 on September 26, 2003.
For more information, contact: Christopher Keller, Esq., of
Goodkind Labaton Rudoff & Sucharow LLP, by Phone: 800-321-0476,
or by E-mail: investorrelations@glrslaw.com.
CLEAN HARBORS: Lasky & Rifkind Files Securities Law Suit in MA
--------------------------------------------------------------
Lasky & Rifkind, Ltd., initiated a class action lawsuit in the
United States District Court for the District of Massachusetts
against Clean Harbors and certain officers and directors, on
behalf of persons who purchased or otherwise acquired publicly
traded securities of Clean Harbors Inc. between November 19,
2002 and August 14, 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. Specifically the complaint alleges that
unknown to investors, Clean harbors was experiencing
difficulties integrating the operations of Safety-Kleen Corp,'s
Chemical Services Division, which it had just acquired.
Notwithstanding these difficulties, throughout the Class Period,
the Defendants projected increasing revenues and earnings for
the company, which in turn caused a dramatic increase in the
price of Clean harbors common stock.
On May 14, 2003, Clean Harbors surprised the market when it
announced that its EBITDA for the first quarter was below the
minimum required by certain of its debt covenants. In reaction
to this news, Clean Harbors a share price plummeted from $12.89
to $10.90 per share. Then on August 14, 2003, Clean Harbors
announced it would miss its earnings targets for 2003 and that
it was being negatively impacted by a variety of factors.
Following this announcement, shares of Clean Harbors sunk
to$6.23 per share.
For more information, contact: (800) 495-1868 to speak with an
advisor.
FRIEDMAN'S INC: Holzer Holzer Lodges Securities Suit in S.D. GA
----------------------------------------------------------------
The Law Firm of Holzer Holzer & Cannon, LLC initiated a class
action lawsuit in the United States District Court for the
Southern District of Georgia, on behalf of persons who purchased
or otherwise acquired publicly traded securities of Friedman's
Inc. during the period between December 20, 2002 and November
11, 2003, inclusive, against:
(1) Friedman's Inc.,
(2) Victor M. Suglia and,
(3) Bradley J. Stinn.
The complaint alleges that Defendants issued false and
misleading statements with respect to the Company's results and
business model, resulting in the Company materially overstating
its earnings for the fiscal years 2000 through 2002 and the
first three quarters of 2003.
Specifically the complaint alleges that the Company's allowance
for doubtful accounts was inadequate, that the Company's credit
losses were significantly higher than its reserves and higher
than the Company represented, and that the Company failed to
properly write off uncollectable receivables.
On November 11, 2003, Friedman's stunned the market by warning
about its future performance, and the material adverse impact of
"increasing its allowance for doubtful accounts." The Company
also revealed that it placed its Chief Financial Officer, Victor
Suglia on administrative leave. Shares of Friedman's fell
approximately 40% on very heavy volume.
For more information, contact: Michael I. Fistel, Jr., Esq., of
Holzer Holzer & Cannon, LLC, by Mail: 1117 Perimeter Center
West, Suite E-107, Atlanta, Georgia 30338, by Phone:
(888) 508-6832, or by E-mail: mfistel@holzerlaw.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities. The Asbestos Defendant Profiles is backed by an
online database created to respond to custom searches. Go to
http://litigationdatasource.com/asbestos_defendant_profiles.html
*********
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., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Roberto Amor, Aurora Fatima Antonio and Lyndsey Resnick,
Editors.
Copyright 2003. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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