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C L A S S A C T I O N R E P O R T E R
Thursday, June 2, 2005, Vol. 7, No. 108
Headlines
AES CORPORATION: Plaintiffs Moves For Discovery in IN Lawsuit
ALLIED WASTE: Plaintiffs File Amended Securities Lawsuit in AZ
ALPHARMA INC.: Appeals Court Affirms NJ Stock Lawsuit Dismissal
BELLSOUTH CORPORATION: African-American Employees File Bias Suit
BELLSOUTH CORPORATION: GA Court Dismisses Securities Suit Claims
BELLSOUTH CORPORATION: Faces ERISA Violations Lawsuit in N.D. GA
BELLSOUTH CORPORATION: Court Mulls Appeal of NY Suit Dismissal
CANADA: Government's Decision to Fight Suit Frustrates Parents
CALIFORNIA: Variable Annuity Suit Plaintiffs Opt For Arbitration
CATERPILLAR INC.: IL Appeals Court Allows EEOC Case to Proceed
CONCORD EFS: Discovery Proceeds in TN Securities Fraud Lawsuit
COUNTRYWIDE HOME: Pays $30M To Settle Account Executives' Suit
CZECH REPUBLIC: OSMD Launches $2.207M Suit Over Regulated Rents
DHL: CA Drivers Launch Suit Over Independent Contractor Status
DIGI INTERNATIONAL: NY Court Preliminarily OKs Suit Settlement
ECHOSTAR COMMUNICATIONS: CO Securities Fraud Lawsuit Dismissed
ECHOSTAR COMMUNICATIONS: Denial of Suit Certification Appealed
ECHOSTAR COMMUNICATIONS: Court Hears Discovery Motions in Suit
FIRST DATA: Fully Resolves Consumer Fraud Suit Filed in E.D. NY
FIRST DATA: TN Court Hears Motion To Dismiss Concord Stock Suit
FIRST DATA: Consumer Antitrust Lawsuits Transferred To N.D. CA
HITACHI CABLE: Recalls 1.7M Network Cables Due To Fire Hazard
HOME INTERIORS: Recalls 300T Candle Tins Due To Fire Hazard
KIA MOTORS: PA Sephia Vehicle Owners To Receive Settlement Money
MADISON MUTUAL: Seeks Dismissal From Godfrey Resident's Lawsuit
MERCK & CO.: Firm Seeks Dismissal of Madison County Vioxx Suit
MERCK & CO.: Kenneth B. Moll Lodges First Vioxx Suit in England
MISSION-ITECH: Recalls 5T Hockey Equipment Due To Injury Hazard
NORTH MISSISSIPPI: Judge Dismisses Uninsured Patients' Lawsuit
QUESTAR EXPLORATION: Indemnification Claim Dismissal Appealed
SELFWORX.COM: Forges Settlement With FTC For Bogus Weight Claims
SIEBEL SYSTEMS: Plaintiffs File Second Amended Securities Suit
SOUTH KOREA: Seoul YMCA Plans Lawsuit V. KT, Hanaro Telecom
STAR GAS: CT Court Orders Securities Fraud Suits Consolidated
STILLWATER MINING: MT Court To Hear Suit Dismissal in June 2005
UNIPROP MANUFACTURED: Old Dutch Farm Community Launches MI Suit
UNOCAL CORPORATION: Investors Sue V. ChevronTexaco Merger in CA
UST INC.: Smokeless Tobacco Injury Lawsuits Filed in FL, CA, CT
UST INC.: Working To Settle Tobacco Purchasers Antitrust Suits
XTO ENERGY: KS Court Mulls Certification For Gas Royalties Suit
XTO ENERGY: Reaches Settlement For CO Natural Gas Royalties Suit
New Securities Fraud Cases
CRAY INC.: Marc S. Henzel Lodges Securities Fraud Lawsuit in WA
DORAL FINANCIAL: Lerach Coughlin Lodges Securities Suit in NY
FRIEDMAN BILLINGS: Strauss & Troy Lodges Securities Suit in NY
TIBCO SOFTWARE: Marc S. Henzel Files Securities Fraud Suit in CA
TIBCO SOFTWARE: Schiffrin & Barroway Files Securities Suit in CA
*********
AES CORPORATION: Plaintiffs Moves For Discovery in IN Lawsuit
-------------------------------------------------------------
Plaintiffs served their first discovery requests in the
consolidated securities class action filed against AES
Corporation, Dennis W. Bakke, Roger W. Sant, and Barry J. Sharp
in the United States District Court for the Southern District of
Indiana.
In September 2002, three virtually identical complaints were
filed against the same defendants in the same court. All three
lawsuits purport to be filed on behalf of a class of all persons
who exchanged their shares of IPALCO Enterprises, Inc. common
stock for shares of the Company's common stock issued pursuant
to a registration statement dated and filed with the SEC on
August 16, 2000. The complaints purport to allege violations of
Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 based
on statements in or omissions from the registration statement
concerning certain secured equity-linked loans by Company
subsidiaries; the supposedly volatile nature of Company stock,
as well as its allegedly unhedged operations in the United
Kingdom at that time, and the alleged effect of the New
Electrical Trading Agreements (NETA) on the Company's United
Kingdom operations.
On April 14, 2003, lead plaintiffs filed an amended and
consolidated complaint, which added former IPALCO directors and
officers John R. Hodowal, Ramon L. Humke and John R. Brehm as
defendants and, in addition to the purported claims in the
original complaint, purports to allege against the newly added
defendants violations of Sections 10(b) and 14(a) of the
Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9
promulgated thereunder. The amended complaint also purports to
add a claim based on alleged misstatements or omissions
concerning an alleged breach by the Company of alleged
obligations the Company owed to Williams Energy Services Co.
(Williams) under an agreement between the two companies in
connection with the California energy market.
On September 26, 2003, defendants filed a motion to dismiss the
amended and consolidated complaint. By Order dated November 17,
2004, the Court dismissed all of the claims asserted in the
amended and consolidated complaint against all defendants with
one exception. The exception consists of claims against Mr.
Bakke, Mr. Sant, Mr. Sharp and the Company (the "AES
Defendants"), under Sections 11, 12 and 15 of the Securities Act
of 1933, 15 U.S.C. Sections 77k, 77l and 77o, based on the
alleged failure of the Registration Statement and Prospectus
disseminated to the IPALCO stockholders for purposes of the
Share Exchange to disclose the Company's purported temporary
default on its contract with Williams.
On December 15, 2004, the AES Defendants filed a motion for
judgment on the pleadings dismissing the remaining claims. In
April 2005, plaintiffs served their first discovery requests to
defendants.
ALLIED WASTE: Plaintiffs File Amended Securities Lawsuit in AZ
--------------------------------------------------------------
Plaintiffs filed an amended consolidated securities class action
against Allied Waste Industries, Inc. and five of its current
and former officers in the United States District Court for the
District of Arizona. The amended complaint consolidates three
lawsuits previously filed on August 9, 2004, August 27, 2004,
and September 30, 2004.
The amended complaint asserts claims against all defendants
under Section 10(b) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder and claims against the
officers under Section 20(a) of the Securities Exchange Act. The
complaint alleges that from February 10, 2004, to September 13,
2004, the defendants caused false and misleading statements to
be issued in the Company's public filings and public statements
regarding its anticipated results for fiscal year 2004. The
lawsuits seek an unspecified amount of damages.
The first identified complaint in this litigation is styled
"Steven Zack, et al. v. Allied Waste Industries, Inc., et al.,"
filed in the United States District Court for the District of
Arizona. The plaintiff firms in this litigation are:
(1) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala
Cynwyd, PA, 19004, Phone: 610.668.7987, Fax:
610.660.0450, E-mail: esmith@Brodsky-Smith.com
(2) Charles J. Piven, World Trade Center-Baltimore, 401
East Pratt Suite 2525, Baltimore, MD, 21202, Phone:
410.332.0030, E-mail: pivenlaw@erols.com
(3) Murray, Frank & Sailer LLP, 275 Madison Ave 34th Flr,
New York, NY, 10016, Phone: 212.682.1818, Fax:
212.682.1892, E-mail: email@rabinlaw.com
(4) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax; 610.667.7056, E-
mail: info@sbclasslaw.com
ALPHARMA INC.: Appeals Court Affirms NJ Stock Lawsuit Dismissal
---------------------------------------------------------------
The United States Third Circuit Court of Appeals affirmed the
dismissal of the securities class action filed against Alpharma,
Inc., two of its board members, one of whom is an officer, and
two of its former officers.
The suit was filed in the United States District Court for the
District of New Jersey on behalf of all persons who acquired the
Company's securities between April 28, 1999 and October 30,
2000. The class action complaint alleged that, among other
things, the plaintiffs were damaged when they acquired the
Company's securities because, as a result of:
(1) alleged irregularities in the Company's Animal Health
business in Brazil,
(2) allegedly improper revenue recognition practices and
(3) the October 2000 revision of its financial results for
1999 and 2000, the Company's previously issued
financial statements were materially false and
misleading, thereby artificially inflating the price of
the Company's securities.
The complaint alleged violations of Sections 10(b), 20(a) and
Rule 10b-5 of the Securities and Exchange Act of 1934. The
plaintiffs sought damages in unspecified amounts.
The Court granted the Company's motion to dismiss with prejudice
as to all defendants and the Third Circuit Court of Appeals has
affirmed this ruling. This ruling terminates this lawsuit
subject to the plaintiff's right to request a hearing before the
United States Supreme Court.
The suit is styled "KOLLANDER v. ALPHARMA INC., et al., case no.
2:00-cv-05508-JAG," filed in the United States District Court in
New Jersey, under Judge Joseph A. Greenaway, Jr. Representing
the plaintiffs is Janette S. Levey, 1485 Teaneck Road, Suite
300, Teaneck NJ 07666, Phone: (201) 837-1090.
BELLSOUTH CORPORATION: African-American Employees File Bias Suit
----------------------------------------------------------------
BellSouth Corporation faces a putative class action lawsuit,
captioned "Gladys Jenkins et al. v. BellSouth Corporation,"
filed in the United States District Court for the Northern
District of Alabama.
The complaint alleges that the Company discriminated against
current and former African-American employees with respect to
compensation and promotions in violation of Title VII of the
Civil Rights Act of 1964 and 42 USC. Section 1981. Plaintiffs
purport to bring the claims on behalf of two classes - a class
of all African-American hourly workers employed by BellSouth
Telecommunications at any time since April 29, 1998, and a class
of all African- American salaried workers employed by BellSouth
Telecommunications at any time since April 29, 1998 in
management positions at or below Job Grade 59/Level C. The
plaintiffs are seeking unspecified amounts of back pay,
benefits, punitive damages and attorneys' fees and costs, as
well as injunctive relief.
The suit is styled "Jenkins, et al v. Bellsouth Corporation,
case no. 2:02-cv-01057-VEH," filed in the United States District
Court for the Northern District of Alabama, under Judge Virginia
Emerson Hopkins. Representing the Company are:
(1) Anne M. Brafford, Morgan, Lewis & Bocklius LLP, 300
South Grand Avenue, Los Angeles, CA 90071 Phone: 213-
612-7335, Fax: 213-612-2501, E-mail:
abrafford@morganlewis.com
(2) Michael S. Burkhardt and George A. Stohner, MORGAN
LEWIS & BOCKIUS, 1701 Market Street, Philadelphia, PA
19103-2921, Phone: 1-215-963-5000, Fax: 1-215-963-5001,
E-mail: mburkhardt@morganlewis.com, or
gstohner@morganlewis.com
(3) Jeffrey A. Lee, MAYNARD COOPER & GALE PC, AmSouth
Harbert Plaza, Suite 2400, 1901 6th Avenue North,
Birmingham, AL 35203-2618, Phone: 254-1000, Fax: 254-
1999, E-mail: jlee@maynardcooper.com
(4) Samuel S. Shaulson, MORGAN LEWIS & BOCKIUS LLP, 101
Park Avenue, New York, NY 10178, Phone: 212-309-6718,
Fax: 212-309-6001, E-mail: sshaulson@morganlewis.com
(5) Grace E. Speights, MORGAN LEWIS & BOCKIUS, 1111
Pennsylvania Avenue, NW, Washington, DC 20036, Phone:
1-202-739-3000, Fax: 1-202-739-3001, E-mail:
gspeights@morganlewis.com
Representing the plaintiffs are:
(i) Lisa M. Bornstein, Cyrus Mehri and Steven Skalet, MEHRI
& SKALET PLLC, 1300 19th Street NW, Suite 400,
Washington, DC 20036, Phone: 202-822-5100, Fax: 202-
822-4997, E-mail: lbornstein@findjustice.com,
cmehri@findjustice.com or sskalet@findjustice.com;
(ii) Roderick T. Cooks, WIGGINS CHILDS QUINN & PANTAZIS, The
Kress Building, 301 19th Street, North Birmingham, AL
35203-3204, Phone: 328-0640, Fax: 254-1500, E-mail:
rtc@wcqp.com
(iii) Angela J Mason, Hezekiah Sistrunk, Jr., C. Gregory
Stewart, COCHRAN CHERRY GIVENS & SMITH PC, 163 West
Main Street, PO Box 927, Dothan, AL 36302, Phone: 1-
334-793-1555, Fax: 1-334-793-8280, E-mail:
angelamason@cochranfirm.com, hez@sistrunklaw.com,
gstewart@cochranfirm.com
(iii) Byron R. Perkins, PERKINS & ASSOCIATES LLC, 1205 North
19th Street, Birmingham, AL 35243, Phone: 205-322-1114,
Fax: 205-322-2832, E-mail: bperkinsatty@bellsouth.net
(iv) Joseph M. Sellers, Christine E. Weber, Jenny R. Yang,
COHEN MILSTEIN HAUSFELD & TOLL PLLC, West Tower, Suite
500, 1100 New York Avenue, NW, Washington, DC 20005-
3934, Phone: 1-410-408-4604, Fax: 1-410-408-4699, E-
mail: jsellers@cmht.com, cwebber@cmht.com, or
jyang@cmht.com
BELLSOUTH CORPORATION: GA Court Dismisses Securities Suit Claims
----------------------------------------------------------------
The United States District Court for the Northern District of
Georgia dismissed several claims in the consolidated securities
class action filed against BellSouth Corporation and three of
its senior officers, alleging violations of the federal
securities law.
From August through October 2002, several individual
shareholders filed substantially identical class action
lawsuits. The cases have been consolidated and are captioned
"In re BellSouth Securities Litigation." Pursuant to the
provisions of the Private Securities Litigation Reform Act of
1995, the court has appointed a Lead Plaintiff. The Lead
Plaintiff filed a Consolidated and Amended Class Action
Complaint in July 2003 on behalf of two putative classes:
purchasers of BellSouth stock during the period November 7, 2000
through February 19, 2003 (the class period) for alleged
violations of Sections 10(b) and 20 of the Securities Exchange
Act of 1934; and participants in BellSouth's Direct Investment
Plan during the class period for alleged violations of Sections
11, 12 and 15 of the Securities Act of 1933.
Four outside directors were named as additional defendants. The
Consolidated and Amended Class Action Complaint alleged that
during the class period the Company:
(1) overstated the unbilled receivables balance of its
Advertising & Publishing subsidiary;
(2) failed to properly implement SAB 101 with regard to its
recognition of Advertising & Publishing revenues;
(3) improperly billed competitive local exchange carriers
(CLEC) to inflate revenues;
(4) failed to take a reserve for refunds that ultimately
came due following litigation over late payment
charges; and
(5) failed to properly write down goodwill of its Latin
American operations
On February 8, 2005, the district court dismissed the Exchange
Act claims, except for those relating to the writedown of Latin
American goodwill. On that date, the district court also
dismissed the Securities Act claims, except for those relating
to the writedown of Latin American goodwill, the allegations
relating to unbilled receivables of the Company's Advertising &
Publishing subsidiary, the implementation of SAB 101 regarding
recognition of Advertising & Publishing revenues and alleged
improper billing of CLECs. The plaintiffs are seeking an
unspecified amount of damages, as well as attorneys' fees and
costs.
In February 2003, a similar complaint was filed in the Superior
Court of Fulton County, Georgia on behalf of participants in
BellSouth's Direct Investment Plan alleging violations of
Section 11 of the Securities Act. Defendants removed this
action to federal court pursuant to the provisions of the
Securities Litigation Uniform Standards Act of 1998. In July
2003, the federal court issued a ruling that the case should be
remanded to Fulton County Superior Court. The Fulton County
Superior Court has stayed the case pending resolution of the
federal case. The plaintiffs are seeking an unspecified amount
of damages, as well as attorneys' fees and costs.
The suit is styled "In RE BellSouth Corporation Securities
Litigation, case no. 1:02-cv-02142-WSD," filed in the United
States District Court for the Northern District of Georgia,
under Judge William S. Duffey, Jr. Representing the Company are
Peter Quirk Bassett, Theresa Thebaut Bonder, John H. Goselin II,
John Ludlow Latham of Alston & Bird, 1201 West Peachtree Street,
One Atlantic Center, Atlanta, GA 30309-3424, Phone:
404-881-7000, E-mail: pbassett@alston.com, tbonder@alston.com,
jgoselin@alston.com and jlatham@alston.com; and Andrew J.
Morris, Michele L. Odorizzi, Alan N. Saltpeter of Mayer Brown
Rowe & Maw, 1909 K Street, N.W. Washington, DC 20006-1101,
Phone: 202-263-3000, E-mail: amorris@mayerbrownrowe.com,
modorizzi@mayerbrownrowe.com, asalpeter@mayerbrownrowe.com.
Representing the plaintiffs are:
(i) Aaron L. Brody, Stull Stull & Brody, 6 East 45th
Street, New York, NY 10017, Phone: 212-687-7230
(ii) Nichole Tara Browning, Martin D. Chitwood, Krissi T.
Gore, Chitwood Harley Harnes, LLP, 1230 Peachtree
Street, N.E. 2300 Promenade II Atlanta, GA 30309,
Phone: 404-873-3900, E-mail: nba@classlaw.com,
mdc@classlaw.com, ktg@classlaw.com
(iii) Francis P. Karam and Andrea H. Williams, Bernstein
Liebhard & Lifshitz, 10 East 40th Street, 22nd Floor
New York, NY 10016, Phone: 212-779-1414
(iv) James E. Tullman, Weiss & Yourman, 551 Fifth Avenue
1600 The French Building, New York, NY 10176, Phone:
212-682-3025
BELLSOUTH CORPORATION: Faces ERISA Violations Lawsuit in N.D. GA
----------------------------------------------------------------
BellSouth Corporation, its directors, three of its senior
officers and other individuals face a consolidated class action
filed in the United States District Court for the Northern
District of Georgia, alleging violations of the Employee
Retirement Income Security Act (ERISA).
In September and October 2002, three substantially identical
class action lawsuits were filed. The cases have been
consolidated and on April 21, 2003, a Consolidated Complaint was
filed. The plaintiffs, who seek to represent a putative class of
participants and beneficiaries of the Company's 401(k) plans
(the Plans), allege in the Consolidated Complaint that the
company and the individual defendants breached their fiduciary
duties in violation of ERISA, by among other things:
(1) failing to provide accurate information to the Plans'
participants and beneficiaries;
(2) failing to ensure that the Plans' assets were invested
properly;
(3) failing to monitor the Plans' fiduciaries;
(4) failing to disregard Plan directives that the
defendants knew or should have known were imprudent and
(5) failing to avoid conflicts of interest by hiring
independent fiduciaries to make investment decisions.
The plaintiffs are seeking an unspecified amount of damages,
injunctive relief, attorneys' fees and costs. Certain
underlying factual allegations regarding BellSouth's Advertising
& Publishing subsidiary and its former Latin American operation
are substantially similar to the allegations in the putative
securities class action captioned "In re BellSouth Securities
Litigation."
The suit is styled "In re BellSouth Corporation ERISA
Litigation, case no. 1:02-cv-02440-JOF," filed in the United
States District Court for the Northern District of Georgia,
under Judge J. Owen Forrester. Representing the Company are
Patrick Connors DiCarlo, Howard Douglas Hinson, Alston & Bird,
1201 West Peachtree Street, One Atlantic Center, Atlanta, GA
30309-3424, Phone: 404-881-4512, E-mail: pdicarlo@alston.com or
dhinson@alston.com. Representing the plaintiffs are:
(i) Scott L. Adkins, Lerach Coughlin Stoia Geller Rudman &
Robbins, Suite 200 197 South Federal Hwy., Boca Raton,
FL 33432, Phone: 561-750-3000
(ii) Katherine B. Bornstein, Edward W. Ciolko, Joseph H.
Meltzer, Richard S. Schiffrin, Schiffrin & Barroway,
280 King of Prussia Road, Radnor, PA 19087, Phone: 610-
676-7706, E-mail: kbornstein@sbclasslaw.com,
eciolko@sbclasslaw.com, jmeltzer@sbclasslaw.com
(iii) Christi A. Cannon, Michael Fistel, Holzer Holzer &
Cannon, 1117 Perimeter Center West, Suite E-107
Atlanta, GA 30338, Phone: 770-392-0090, E-mail:
mfistel@holzerlaw.com
(iv) S. Gene Cauley, Cauley Geller Bowman & Coates, 11001
Executive Center Drive, Suite 200, Little Rock, AR
72211, Phone: 501-312-8500
(v) Ron Kilgard, Elizabeth A. Leland, Lynn Lincoln Sarko,
Keller Rohrback, 3101 North Central Avenue, Suite 900
Phoenix, AZ 85012-2600, Phone: 602-230-6322, E-mail:
bleland@kellerrohrback.com
(vi) Steven A. Owings, Cauley Geller Bowman & Coates, 11001
Executive Center Drive, Suite 200 Little Rock, AR
72211, Phone: 501-312-8500
BELLSOUTH CORPORATION: Court Mulls Appeal of NY Suit Dismissal
--------------------------------------------------------------
The United States Eleventh Circuit Court of Appeals has yet to
rule on the appeal of the dismissal of a consumer class action
filed against BellSouth Corporation and other communications
firms, but allowed several claims to proceed.
In December 2002, a consumer class action alleging antitrust
violations of Section 1 of the Sherman Antitrust Act was filed
against the Comapny, Verizon, SBC and Qwest, captioned "William
Twombley, et al v. Bell Atlantic Corp., et al," in the United
States District Court in the Southern District of New York. The
complaint alleged that defendants conspired to restrain
competition by "agreeing not to compete with one another and
otherwise allocating customers and markets to one another." The
plaintiffs are seeking an unspecified amount of treble damages
and injunctive relief, as well as attorneys' fees and expenses.
In October 2003, the district court dismissed the complaint for
failure to state a claim and the case is now on appeal.
CANADA: Government's Decision to Fight Suit Frustrates Parents
--------------------------------------------------------------
Canadian parents of disabled children expressed frustration at
the Ontario provincial government's inaction on reforms on how
care for the children are financed, the Canadian Press reports.
Ann Larcade, the woman leading the battle to change provincial
rules told the Canadian Press the provincial government is
forsaking disabled children in Ontario as it tries to skirt
reforms to how their care is financed. Mrs. Larcade, a mother
who helmed a movement that seeks to force the province to pay
for costly treatment without requiring parents to make their
children wards of the state, said that she is frustrated that
the government is fighting court action that would improve the
system.
Her comments came after the Attorney General's office filed a
notice that it wants to appeal a class action lawsuit on grounds
the parents have no right to sue the province for negligence.
According to Mrs. Larcade, whose mentally disabled son Alexandre
was temporarily put in the custody of Children's Aid six years
ago, "I can't believe, with the heightened public outcry, that
they're appealing this decision that has taken us years to move
through the court." She also adds, "We were told they were
wanting to settle this and they did a complete about-face."
Mrs. Larcade told the Canadian Press that only wards of the
province are automatically entitled to have expensive treatment
programs paid for. She believes though that hundreds of families
have been forced to surrender custody, but the Children's Aid
Society does not keep statistics.
Ontario's Child Advocate, Judy Finlay, told the Canadian Press
that she knows of 200 cases that involve children who are either
about to enter provincial care or recently entered provincial
care in order to receive treatment.
Under intense public pressure and on the heels of a scathing
report by the Ontario ombudsman, Youth Services Minister Marie
Bountrogianni suddenly announced that the government would begin
restoring parental rights within this week.
However, because the issue is now the subject of a class action,
the deadline may not be met. Douglas Elliott, Mrs. Larcade's
lawyer pointed out that the government couldn't negotiate with
parents without first getting approval from a judge. He also
said, "There's the potential for class members being confused,
being misled and having their rights affected."
Mr. Elliot also told the Canadian Press that he has begun
discussions with government lawyers to develop a joint proposal
that they can put before a judge by the deadline. Attorney
General Michael Bryant said if these talks fail to yield an
agreement by then, the government will put forward a motion
seeking direction from the judge. "If we can't resolve it we'll
ask the court to resolve it for us," he said.
Frustrated by continued delays, Mrs. Larcade called on the
province to resurrect the so-called Special Needs Agreements,
which maintained parental rights while also paying for
specialized care.
The current Liberal government though has refused to reinstate
that program, which fell out of use under Mike Harris' former
Tory government.
Regardless, Premier Dalton McGuinty said Minister Bountrogianni
was eager to restore parental rights. He adds, "We're going to
proceed to remedy that unfairness that has been around for some
time now and we'll do it as quickly as possible."
This is the province's third attempt to discredit the validity
of the lawsuit. The government fought certification efforts last
June, winning support from a Superior Court judge who ruled that
individual suits would be better. But the Divisional Court
overturned that ruling May 16, saying it made much more sense to
put the hundreds of claims together in a single class action.
As previously reported in the May 18, 2005 edition of the Class
Action Reporter, Ontario parents of disabled children launched a
massive class action lawsuit against the Ontario government
seeking damages of half a billion dollars for negligence.
The parents in the case lost custody of their children after
being informed that the provincial government could not provide
any further funding for their severely disabled children unless
the kids were made legal wards of the society.
Anne Larcade, who was one of those parents affected, is the lead
plaintiff in the lawsuit. In August, 2000, she was informed that
her local Children's Aid Society couldn't pay for the 24-hour
care her 15-year-old disabled son Alexandre required unless he
were made a legal ward.
The plaintiffs allege that they are the victims of Mike Harris'
former Conservative government's cost-cutting measures
introduced in the mid-90s. They also alleged that the government
stopped using legislation designed to provide a safety net for
vulnerable children and their families. That legislation had
been passed in the early 1980s and required special-needs
agreements be signed to support children whose needs are greater
than can be met by their parents.
To that extent the plaintiffs allege the province illegally
stopped entering into these agreements with parents shortly
after Mr. Harris assumed office, in an effort to try to save
money.
As Mr. Harris assumed office, the plaintiffs allege that instead
of changing the legislation, the government simply pulled
funding for special-needs agreements. The Harris government,
according to them, did not want to change the legislation itself
because that would have required a debate and they were in a
hurry to cut costs.
Just recently, the families were given the green light to go
ahead with their suit against the government, which according to
Mr. Elliot set a record for being the first time that a court in
Canada has certified a class action over a government's improper
cancellation of a benefits program.
CALIFORNIA: Variable Annuity Suit Plaintiffs Opt For Arbitration
----------------------------------------------------------------
As a result of the plaintiffs and defendants agreement to submit
legal matters to arbitration, two federal class action lawsuits
filed early this year by North County residents, and a third by
a Santee woman, against financial services firms and insurance
companies were dismissed, The North County Times reports.
The plaintiffs, William Dornon of Vista, Kathleen Mitton of
Oceanside and Jane Westbrook of Santee, had alleged that they
were the victims of elder abuse because of the sales practices
of the firms, which they say sold them a variety of annuities
that were inappropriate for persons of their ages.
Additionally, all of the suits involved claims that the
securities firms, which sold the annuities to the plaintiffs
received undisclosed fees from the issuing insurance companies
for guiding their clients to the insurance companies' products.
Mr. Dornon's suit against financial services giant Morgan
Stanley was the first filed, and was the only one preceded by
the filing of an arbitration claim with the National Association
of Securities Dealers.
Ms. Mitton on the other hand sued A.G. Edwards because she had
been sold a product called a variable annuity, which her suit
claims was inappropriate for a person her age since it required
that her money be left untouched for a long period of time or
pay large penalties to gain access to her money ahead of
schedule. Variable annuities were also the product sold to Mr.
Dornon, and to Ms. Westbrook, who sued Merrill Lynch & Co. Inc.
San Diego attorney Ronald Marron, who said the cases were
"voluntarily dismissed without prejudice," meaning that they
could be reinstated, represented all three plaintiffs. Mr.
Marron told the Times, "My clients would prefer to be in court,"
where they could tell their stories and where the public could
be made aware of the dangers of elderly consumers buying
variable annuities, but "in these variable annuities cases, they
have a better chance of recovering through the arbitration
process." The sale of variable annuities to the elderly "is
almost indefensible in arbitration," Mr. Marron adds. He also
pointed out that the arbitration process is confidential, so no
additional information could be made available.
CATERPILLAR INC.: IL Appeals Court Allows EEOC Case to Proceed
--------------------------------------------------------------
The Seventh Circuit U.S. Court of Appeals in Chicago rejected
Caterpillar Inc.'s attempt to block the Equal Employment
Opportunity Commission from pursuing a class action lawsuit on
behalf of women at the company's Aurora plant who were allegedly
subjected to sexual harassment, The Crain's Chicago Business
reports.
Arguing that the commission's investigation failed to yield
sufficient evidence to warrant a class action lawsuit, the
Peoria-based equipment maker therefore wanted the case limited
to the woman who filed the initial complaint about a supervisor
at the plant.
Though the trial court judge in the case originally sided with
Caterpillar, she later reversed her decision. Later, the federal
appeals court agreed to hear an appeal in the middle of the
case, but the court upheld the judge's ruling and decided that
the EEOC can proceed with a class action suit.
Writing on behalf of the appeals court, Circuit Judge Richard
Posner explained, "The existence of probable cause to sue is
generally, and in this instance, not judicially reviewable."
According to EEOC Regional Attorney John Hendrickson, the ruling
will allow the commission to pursue the type of wide-ranging
investigation at the Aurora plant that uncovered a pattern of
sexual harassment at Mitsubishi Motors' assembly plant in
downstate Bloomington during 1990s. In that case, the company
would eventually pay $34 million in 1998 to settle it. "This
was a slam dunk for the EEOC," Mr. Hendrickson said about the
appeals court decision in the Caterpillar case, Crain's Chicago
reports.
Court documents reveal that EEOC sued Caterpillar in August
2003, alleging that a supervisor at the plant subjected a safety
industrial hygiene supervisor and other women at the Aurora
plant to offensive propositions and comments and inappropriate
touching. The suit contends that when the women complained they
were fired.
Mr. Hendrickson predicted that the commission would be able to
locate more women for the case now that Caterpillar can no
longer thwart an investigation with court appeals.
A spokesman for the company declined to comment on the ruling,
but said the company is planning a vigorous defense, Crain's
Chicago states. In a written statement, the company did state
though, "There is no merit to these allegations. Caterpillar has
long standing policies prohibiting harassment. We take all
reports of harassment seriously, investigate thoroughly and take
remedial action where necessary."
CONCORD EFS: Discovery Proceeds in TN Securities Fraud Lawsuit
--------------------------------------------------------------
Discovery is proceeding in the consolidated securities class
action filed against Concord EFS, Inc. and its directors in the
United States District Court for the Western District of
Tennessee, styled "In re Concord EFS, Inc. Securities
Litigation."
The lead plaintiffs in the action have filed a Consolidated
Amended Complaint on February 17, 2003, in which they allege,
among other items, that the Company's financial statements were
materially misleading because they failed to disclose "related
party transactions" with H& F Card Services, Inc. (H&F). The
Consolidated Amended Complaint seeks class certification, an
unspecified amount of compensatory damages, including interest
thereon, attorney fees and other costs and expenses on behalf of
the plaintiffs and members of the putative class, and other
relief the Court may deem just and proper.
The suit is styled "In re Concord EFS, Inc. Securities
Litigation, case no. 2:02-cv-02697-SHM," filed in the United
States District Court for the Western District of Tennessee,
under Judge Samuel H. Mays, Jr. Representing the plaintiffs
are:
(1) Andrew J. Brown, LERACH COUGHLIN STOIA & ROBBINS, LLP,
401 B St., Ste. 1700 San Diego, CA 92101, Phone: 619-
231-1058
(2) David B. Kahn, Mark E. King, DAVID B. KAHN &
ASSOCIATES, LTD., One Northfield Plaza, Suite 100
Northfield, IL 60093, Phone: 847-501-5083
(3) Henry Rosen, MILBERG WEISS BERSHAD HYNES & LERACH, LLP,
600 West Broadway, Ste. 1800, San Diego, CA 92101,
Phone: 619-231-1058
(4) Paulette S. Fox and Peter C. Harrar, WOLF HALDENSTEIN
ADLER FREEMAN & HERZ LLP, 270 Madison Ave., New York,
NY 10016, Phone: 212-545-4600
Representing the Company are David F. Graham, Gerard D. Kelly,
Rachel M. Blum, and William F. Conlon of SIDLEY AUSTIN BROWN &
WOOD, Bank One Plaza, 10 S. Dearborn St., Chicago, IL 60603,
Phone: 312-853-7000, Fax: 853-7036; and Jef Feibelman, Nathan A.
Bicks, Scott J. Crosby, W.J. Michael Cody, BURCH PORTER &
JOHNSON, 130 N. Court Avenue, Memphis, TN 38103, Phone:
901-524-5000, Fax: 524-5024.
COUNTRYWIDE HOME: Pays $30M To Settle Account Executives' Suit
--------------------------------------------------------------
The parties in a class action lawsuit against Countrywide Home
Loans Inc. concerning overtime pay, meal breaks and other wage
and hour claims have reached a settlement, the Whittier Daily
News reports.
Under the settlement Countrywide will be required to pay $30
million to settle the claims of a class of approximately 400
account executives who worked at firm's California call center
in Rosemead, during a seven-year period. It will covers claims
for unpaid overtime wages, reimbursement of wage deductions,
compensation for on-duty meal periods, attorneys' fees and
related items. Additionally, the Company agreed to reclassify
all of its California call center account executives as non-
exempt from state and federal overtime and other wage and hour
laws.
Countrywide Home Loans is a provider of residential mortgages.
The account executives, who are represented by the law firm of
Goldstein, Demchak, Baller, Borgen and Dardarian, respond to
consumer telephone inquiries about home loan products and help
them to select and apply for the most appropriate product.
Linda M. Dardarian, a partner at law firm and lead counsel for
the class in this case told Whittier Daily News, "Countrywide
has done the right thing by agreeing to provide significant back
pay relief to this group of California call center employees and
reclassify them so the workers receive overtime and meal breaks
on a going forward basis."
She also added, "This settlement shows Countrywide's commitment
to the important family values embodied in the overtime laws,
which are designed to protect the health and welfare of workers
and their families."
Countrywide spokeswoman Susan Martin told Whittier Daily News
that the Company's consistent policy has been to classify
employees as required by law. She also adds, "While the company
continues to believe that its original classification of account
executives was lawful and that it would have been upheld at
trial, it decided to settle in order to avoid the expense and
uncertainty of litigation, this settlement permits both its
account executives and managers to focus on their primary
concern, providing the best service to the consumer."
The settlement agreement received preliminary approval from
Judge Victor H. Person of the Los Angeles County Superior Court.
Once the court grants final approval after an additional
hearing, the settlement will go into effect.
CZECH REPUBLIC: OSMD Launches $2.207M Suit Over Regulated Rents
---------------------------------------------------------------
The Association of House Owners (OSMD) initiated a class action
lawsuit in Strasbourg against the Czech Republic over regulated
rents with the European Human Rights Court, according to TV
Nova, The Prague Daily Monitor reports.
According to Tomislav Simecek, the association's chairman, "The
first wave will consist of 1,600 complainants, and overall 2,200
have already registered," adding that OSMD will be suing the
Czech Republic for damage already caused and worth some CZK
(Czech Republic Koruny) 50 billion ($2.027 million).
This is not the first complaint over regulated rents in the
Czech Republic. More than 200 building owners have already filed
complaints at the Strasbourg court. Court documents show that
the owners want monthly rents to be raised at least to CZK 49
per square metre, a price set in an expert appraisal by the
Ustav soudniho inzenyrstvi institute. This, according to Nova is
a price at which owners do not make a profit but also do not
sustain a loss.
Local Development Minister Radko Martinek, who wants rents to be
partly deregulated in the coming years, told Nova that the
complaint was not a priority for him.
Nova reports that the owners have a chance of winning in
Strasbourg, since some time ago the court ordered the Polish
government to deregulate rents after Polish building owners
complained.
Rents in the Czech Republic are regulated in some 750,000 flats,
of which around 300,000 are in houses with private owners and
the rest are municipality-owned.
DHL: CA Drivers Launch Suit Over Independent Contractor Status
--------------------------------------------------------------
Three drivers for package delivery service DHL launched a class
action lawsuit in Sacramento Superior Court against the company,
challenging the illegal classification of many of its drivers as
independent contractors.
The unlawful job status has allowed the company to avoid paying
overtime wages and to require workers to bankroll the cost of
their delivery vans, gas, vehicle maintenance and repair,
payroll services and many other expenses. The Sacramento
drivers are among hundreds of DHL workers nationwide who have
chosen Teamster union representation in the past several months.
"We want to be treated right and have our employer bear its fair
share of these expenses. With Teamster representation, we now
have a voice in the workplace," said Sara Shook, a former DHL
driver in Sacramento.
Under California law, employers are required to pay all
necessary employee expenses. They are also required to pay non-
exempt employees a rate of time- and-a-half for work exceeding
eight hours a day and 40 hours a week.
"It's a disgrace that right here in Sacramento, this $40-billion
corporation makes its employees supply their own van and buy
their own gas while paying them poverty wages," said the
drivers' attorney, Jason Rabinowitz of the labor law firm
Beeson, Tayer & Bodine.
DHL, a German-based company, is the largest package delivery
company in the world, although it does not yet have substantial
market share in the United States.
"DHL ads say their drivers are 'lean and hungry,' and it's quite
literally true," said Pilar Barton, Organizing Director for
Local 150. "DHL drivers average between $7 and $9 per hour with
no medical benefits, no retirement and no paid sick leave,
vacation or holidays. DHL's business plan to compete with UPS is
poverty wages, high turnover, and vicious Union-busting," Barton
said.
The lawsuit demands payment of back wages and employee expenses
going back four years. It is filed as a class action on behalf
of all current and former DHL drivers throughout California who
were improperly classified as "independent contractors."
DHL does not hire its drivers directly, but uses contractor
companies to retain them. The lawsuit also names one such
contractor, DNM Delivery Solutions, and its owner, Dewey
McDaniel.
DIGI INTERNATIONAL: NY Court Preliminarily OKs Suit Settlement
--------------------------------------------------------------
The United States District Court for the Southern District of
New York granted preliminary approval to the settlement of the
consolidated securities class action filed against Digi
International, Inc., NetSilicon, certain of its officers and
certain underwriters involved in NetSilicon's initial public
offering (IPO).
On April 19, 2002, a consolidated amended class action complaint
was filed asserting claims relating to NetSilicon's IPO and
approximately 300 other public companies. The complaint asserts,
among other things, that NetSilicon's IPO prospectus and
registration statement violated federal securities laws because
they contained material misrepresentations and/or omissions
regarding the conduct of NetSilicon's IPO underwriters in
allocating shares in NetSilicon's IPO to the underwriters'
customers.
Pursuant to a stipulation between the parties, the two named
officers were dismissed from the lawsuit, without prejudice, on
October 9, 2002.
In June 2003, the Company elected to participate in a proposed
settlement agreement with the plaintiffs in this litigation. If
ultimately approved by the Court, this proposed settlement would
result in a dismissal, with prejudice, of all claims in the
litigation against the Company and against any of the other
issuer defendants who elect to participate in the proposed
settlement, together with the current or former officers and
directors of participating issuers who were named as individual
defendants.
Consummation of the proposed settlement remains conditioned upon
obtaining both preliminary and final approval by the Court.
Formal settlement documents were filed with the Court in June
2004, together with a motion asking the Court to preliminarily
approve the form of settlement. Certain underwriters who were
named as defendants in the settling cases, and who are not
parties to the proposed settlement, opposed preliminary approval
of the proposed settlement of those cases. On February 15,
2005, the Court issued an order preliminarily approving the
proposed settlement in all respects but one. The plaintiffs and
the issuer defendants are in the process of assessing whether to
proceed with the proposed settlement, as modified by the Court.
If the plaintiffs and the issuer defendants elect to proceed
with the proposed settlement, as modified by the Court, they
will submit revised settlement documents to the Court. The
underwriter defendants may then have an opportunity to object to
the revised settlement documents. If the Court approves the
revised settlement documents, it will direct that notice of the
terms of the proposed settlement be published in a newspaper and
on the internet, mailed to all proposed class members, and will
schedule a fairness hearing, at which objections to the proposed
settlement will be heard. Thereafter, the Court will determine
whether to grant final approval to the proposed settlement.
The suit is styled "In re Digi International, Inc. Initial
Public Offering Securities Litigation," filed in relation to "IN
RE INITIAL PUBLIC OFFERING SECURITIES LITIGATION, Master File
No. 21 MC 92 (SAS)," both pending in the United States District
Court for the Southern District of New York, under Judge Shira
N. Scheindlin. The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
ECHOSTAR COMMUNICATIONS: CO Securities Fraud Lawsuit Dismissed
--------------------------------------------------------------
The securities class action filed against Echostar
Communications Corporation and certain of its current and former
officers in the United States District Court for the District of
Colorado on behalf of purchasers of DISH securities during the
period between August 10, 2004 and March 9, 2005, styled "Dowdy
v. EchoStar Communications Corporation et al, case no. 1:05-cv-
00448-RPM," has been dismissed.
A similar class action is still pending in the same court,
namely "Hesabi-Cartwright v. EchoStar Communications
Corporation, case no. 1:05-cv-00044-EWN-OES"
The complaints allege, among other things, that the Company made
material misstatements and omissions by issuing financial
statements and "reports on operations" that were not in
accordance with generally accepted accounting principles (GAAP),
through inadequate internal controls, failure to disclose
related party transactions and improperly booking certain
transactions, resulting in violations of several federal
securities law provisions. The suits specifically allege that
the Company lacked internal controls adequate to ensure that the
information contained in the Company's financial reports fairly
presented in all material respects, the financial condition and
results of operations of the Company and the Company improperly
booked certain transactions with vendors and engaged in improper
accounting, an earlier Class Action Reporter story (March
17,2005) states.
Two suits are pending in the United States District Court in
Colorado, namely "Hesabi-Cartwright v. EchoStar Communications
Corporation, case no. 1:05-cv-00044-EWN-OES" filed 01/10/05; and
"Dowdy v. EchoStar Communications Corporation et al, case no.
1:05-cv-00448-RPM" filed 03/11/05. The plaintiff firms in this
litigation are:
(1) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala
Cynwyd, PA, 19004, Phone: 610.668.7987, Fax:
610.660.0450, E-mail: esmith@Brodsky-Smith.com;
(2) Charles J. Piven, World Trade Center-Baltimore, 401
East Pratt Suite 2525, Baltimore, MD, 21202, Phone:
410.332.0030, E-mail: pivenlaw@erols.com;
(3) Chitwood & Harley, 7945 East Paces Ferry Road, 1400
Resurgens Plaza, Atlanta, GA, 30326 Phone:
404.266.1650;
(4) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290,
sn06106@AOL.com
ECHOSTAR COMMUNICATIONS: Denial of Suit Certification Appealed
--------------------------------------------------------------
Plaintiffs appealed the California Superior Court for the County
of Los Angeles' denial of class certification for the lawsuit
filed against Echostar Communications Corporation, relating to
the use of terms such as "crystal clear digital video," "CD-
quality audio," and "on-screen program guide," and with respect
to the number of channels available in various of its
programming packages.
David Pritikin and Consumer Advocates, a nonprofit
unincorporated association, filed the suit in 1999, alleging
breach of express warranty and violation of the California
Consumer Legal Remedies Act, Civil Code Sections 1750, et seq.,
and the California Business & Professions Code Sections 17500 &
17200.
A hearing on the plaintiffs' motion for class certification and
the Company's motion for summary judgment was held during 2002.
At the hearing, the Court issued a preliminary ruling denying
the plaintiffs' motion for class certification. However, before
issuing a final ruling on class certification, the Court granted
the Company's motion for summary judgment with respect to all of
the plaintiffs' claims. Subsequently, the Company filed a motion
for attorneys' fees, which was denied by the Court. The
plaintiffs filed a notice of appeal of the court's granting of
the Company's motion for summary judgment and the Company cross-
appealed the Court's ruling on its motion for attorneys' fees.
During December 2003, the Court of Appeals affirmed in part; and
reversed in part, the lower court's decision granting summary
judgment in the Company's favor. Specifically, the Court found
there were triable issues of fact whether the Company may have
violated the alleged consumer statutes "with representations
concerning the number of channels and the program schedule."
However, the Court found no triable issue of fact as to whether
the representations "crystal clear digital video" or "CD quality
audio" constituted a cause of action. Moreover, the Court
affirmed that the "reasonable consumer" standard was applicable
to each of the alleged consumer statutes. Plaintiff argued the
standard should be the "least sophisticated" consumer. The Court
also affirmed the dismissal of Plaintiffs' breach of warranty
claim. Plaintiff filed a Petition for Review with the California
Supreme Court and the Company responded.
During March 2004, the California Supreme Court denied
Plaintiff's Petition for Review. Therefore, the action has been
remanded to the trial court pursuant to the instructions of the
Court of Appeals. Hearings on class certification were conducted
on December 21, 2004 and on February 7, 2005. The Court denied
Plaintiff's motion for class certification on February 10, 2005.
The Plaintiff has appealed this decision.
ECHOSTAR COMMUNICATIONS: Court Hears Discovery Motions in Suit
--------------------------------------------------------------
The Arapahoe County District Court in the State of Colorado is
hearing discovery motions in the consumer class action filed
against Echostar Communications Corporation on behalf of its
satellite hardware retailers.
During October 2000, two separate lawsuits were filed by
retailers in the Arapahoe County District Court in the State of
Colorado and the United States District Court for the District
of Colorado, respectively, by Air Communication & Satellite,
Inc. and John DeJong, et al. on behalf of themselves and a class
of persons similarly situated. The plaintiffs are attempting to
certify nationwide classes on behalf of certain of the Company's
satellite hardware retailers. The plaintiffs are requesting the
Courts to declare certain provisions of, and changes to, alleged
agreements between the Company and the retailers invalid and
unenforceable, and to award damages for lost incentives and
payments, charge backs, and other compensation.
The United States District Court for the District of Colorado
stayed the Federal Court action to allow the parties to pursue a
comprehensive adjudication of their dispute in the Arapahoe
County State Court. John DeJong, d/b/a Nexwave, and Joseph
Kelley, d/b/a Keltronics, subsequently intervened in the
Arapahoe County Court action as plaintiffs and proposed class
representatives.
The Company has filed a motion for summary judgment on all
counts and against all plaintiffs. The plaintiffs filed a motion
for additional time to conduct discovery to enable them to
respond to our motion. The Court granted a limited discovery
period, which ended November 15, 2004. The Court is hearing
discovery-related motions and the Company expects the Court to
follow with a briefing schedule for the motion for summary
judgment.
FIRST DATA: Fully Resolves Consumer Fraud Suit Filed in E.D. NY
---------------------------------------------------------------
The consolidated class action filed against First Data
Corporation and its subsidiary Western Union Financial Services,
Inc. is considered resolved, after the United States District
Court for the Eastern District of New York entered final
judgment in the litigation.
In 2001, two putative class actions based on similar factual
allegations were filed, asserting claims on behalf of a putative
worldwide class (excluding members of the settlement class of
similar actions previously filed against the Company and its
subsidiaries). These actions were consolidated into a single
action.
The plaintiffs claimed that the Company, Western Union and
Orlandi Valuta imposed an undisclosed "charge" when they
transmitted consumers' money by wire either from the United
States to international locations or from international
locations to the United States, in that the exchange rate used
in these transactions was less favorable than the exchange rate
that Western Union and Orlandi Valuta received when they traded
currency in the international money market. Plaintiffs further
asserted that Western Union's failure to disclose this "charge"
in the transactions violated 18 U.S.C. section 1961 et seq. and
state deceptive trade practices statutes, and also asserted
claims for civil conspiracy. The plaintiffs sought injunctive
relief, compensatory damages in an amount to be proven at trial,
treble damages, punitive damages, attorneys' fees, and costs of
suit. The parties to this action reached a proposed settlement
of all claims that included the following:
(1) Western Union (and, with respect to money transfer
transactions from the U.S. other than California to
Mexico, Orlandi Valuta) will issue coupons for
discounts on future international money transfer
transactions to customers who transferred money from
the U.S. to certain countries other than Mexico
between January 1, 1995 and approximately March 31,
2000 (for certain services, Western Union will issue
coupons for transactions conducted as late as December
31, 2001), from anywhere in the U.S. other than
California to Mexico between September 1, 1999 and
March 31, 2000 (again, for certain services, Western
Union will issue coupons for transactions conducted as
late as December 31, 2001), from countries other than
Canada to the U.S. between January 1, 1995 and March
31, 2000, and from Canada to the U.S. between January
1, 1995 and approximately July 31, 2002;
(2) injunctive relief requiring Western Union and Orlandi
Valuta to make additional disclosures regarding their
foreign exchange practices; and
(3) reasonable attorneys' fees, expenses and costs as well
as the costs of settlement notice and administration.
A small number of class members filed objections to or requests
for exclusion from the proposed settlement. The Court held a
fairness hearing on April 9, 2004 and granted final approval of
the settlement on October 19, 2004. On February 7, 2005, the
Court approved the application of plaintiffs, made pursuant to
the terms of the settlement, for an award of attorney's fees and
a payment to the class representatives. Also on February 7,
2005, the Court entered a final judgment in the action, which
became final after the time for appeal lapsed.
FIRST DATA: TN Court Hears Motion To Dismiss Concord Stock Suit
---------------------------------------------------------------
The Shelby County Circuit Court for the State of Tennessee heard
plaintiffs motion to amend and First Data Corporation's motion
to dismiss the consolidated class action filed against it, its
subsidiary Concord EFS, Inc. and certain of Concord's current
and former officers and directors.
On April 3 and 4, 2003 two purported class action complaints
were filed on behalf of the public holders of Concord's common
stock (excluding shareholders related to or affiliated with the
individual defendants). The defendants in those actions were
certain current and former officers and directors of Concord.
The complaints generally alleged breaches of the defendants'
duty of loyalty and due care in connection with the defendants'
alleged attempt to sell Concord without maximizing the value to
shareholders in order to advance the defendants' alleged
individual interests in obtaining indemnification agreements
related to the securities litigation discussed above and other
derivative litigation. The complaints sought class
certification, injunctive relief directing the defendants'
conduct in connection with an alleged sale or auction of
Concord, reasonable attorneys' fees, experts' fees and other
costs and relief the Court deems just and proper.
On April 2, 2003 an additional purported class action complaint
was filed by Barton K. O'Brien. The defendants were Concord,
certain of its current and former officers and directors, and
the Company. The Company subsequently was dismissed from the
action. This complaint contained allegations regarding the
individual defendants' alleged insider trading and alleged
violations of securities and other laws and asserted that this
alleged misconduct reduced the consideration offered to Concord
shareholders in the proposed merger between Concord and a
subsidiary of the Company.
The complaint sought class certification, attorneys' fees,
experts' fees, costs and other relief the Court deems just and
proper. Moreover, the complaint also sought an order enjoining
consummation of the merger, rescinding the merger if it is
consummated and setting it aside or awarding rescissory damages
to members of the putative class, and directing the defendants
to account to the putative class members for unspecified
damages.
These complaints were consolidated in a second amended
consolidated complaint filed September 19, 2003 into one action,
styled "In re Concord EFS, Inc. Shareholder Litigation," in the
Shelby County Circuit for the State of Tennessee. On October
15, 2003, the plaintiffs moved for leave to file a third amended
consolidated complaint similar to the previous complaints but
also alleging that the proxy statement disclosures relating to
the antitrust regulatory approval process were inadequate.
On October 17, 2003, the plaintiffs filed a motion for
preliminary injunction to enjoin the shareholder vote on the
proposed merger and/or the merger itself. The Court denied the
plaintiffs' motion on October 20, 2003 but ordered deposition
discovery on an expedited basis. On October 27, 2003 the
plaintiffs filed a renewed motion to enjoin the shareholder
vote, which was denied by the Court the same day. A motion to
dismiss was filed on June 22, 2004 alleging that the claims
should be denied and are moot since the merger has occurred.
FIRST DATA: Consumer Antitrust Lawsuits Transferred To N.D. CA
--------------------------------------------------------------
The class actions filed against First Data Corporation, its
subsidiary Concord EFS, Inc. and various financial institutions
have been transferred to the United States District Court for
the Northern District of California and assigned to a single
judge.
On July 2, 2004, Pamela Brennan, Terry Crayton, and Darla
Martinez filed a class action complaint on behalf of themselves
and all others similarly situated, alleging that the defendants
have violated antitrust laws by conspiring to artificially
inflate foreign ATM fees that were ultimately charged to ATM
cardholders. Plaintiffs seek a declaratory judgment, injunctive
relief, compensatory damages, attorneys' fees, costs and such
other relief as the nature of the case may require or as may
seem just and proper to the court.
Five similar suits were filed and served in July, August and
October 2004, two in the Central District of California (Los
Angeles), two in the Southern District of New York, and one in
the Western District of Washington (Seattle). The Plaintiffs
sought to have all of the cases consolidated by the
MultiDistrict Litigation panel. The Panel denied the request on
December 16, 2004. All cases other than Brennan have been
stayed. In Brennan, the defendants' motions to dismiss were
argued on March 31, 2005 and the Company awaits the Court's
ruling.
HITACHI CABLE: Recalls 1.7M Network Cables Due To Fire Hazard
-------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Hitachi Cable Manchester (HCM), Inc. of Manchester, N.H.
is voluntarily recalling about 1,700,000 units of network
communication cables that are used to connect computer and
electronic equipment, typically in data centers. These are 25-
and 50-pair, category 5 and 5e, CMP cables.
The recalled cables do not meet the fire resistance standards
for cable used in plenum applications. Plenum is the space
typically used for air circulation in heating and air
conditioning systems. If the cables were exposed to a fire
source, smoke or fire could spread more quickly than permitted
by the standard for this type of cable. This recall is only for
certain CMP cables used in plenum (air duct) applications. CMP
cables used in riser (non-plenum) applications are not included
in this recall.
The recalled cables typically were installed in data centers and
other commercial applications. The part numbers for the recalled
cables are 39419-50 (25-pair, category 5e); 30171-100 (50-pair,
category 5e); and 30105-50 (25-pair, category 5). Only HCM brand
cables with the following lot numbers are affected by this
recall: AE589 and A4309 through A5551. The part number and lot
number are printed on the jacket of the cables.
Manufactured in Manchester, New Hampshire, the cables were sold
at all authorized electrical or data communication distributors
from about June 2003 through December 2004.
Cables installed in a plenum application will be removed and
replaced. Users should contact HCM to coordinate this work among
HCM, the property owner and an installer. Because these products
were constructed in compliance with HCM's new listing with UL
for CMR (riser) cables, they may remain in place if they have
already been installed in riser applications. HCM is directly
notifying known purchasers about this recall. The 25-pair
version of the recalled cable also was manufactured by HCM under
a private label arrangement for Superior Essex Inc. Superior
Essex has already contacted all affected customers who purchased
this cable.
Contact: Contact HCM toll-free at (800) 772-0116, Ext. 229,
between 8 a.m. and 5 p.m. ET Monday through Friday.
HOME INTERIORS: Recalls 300T Candle Tins Due To Fire Hazard
-----------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Home Interiors & Gifts Inc., of Carrollton, Texas is
voluntarily recalling about 300,000 units of Home Interiors
Fundraising Candle Tin Series.
The candle flames could flare up out of the tin container during
use, posing a fire and burn hazard. There have been ten reports
of candles flaring up. Some surfaces where candle tins were
placed were scorched by these candles. No injuries have been
reported.
The recall includes 6.5 ounce, individually packaged candle tins
that are 3-1/4 inches wide and 2 inches tall with an approximate
burn time of 35 hours. The lidded tins are silver with fragrance
name labels on the side. Fragrances include Sandalwood, Suede,
Mulberry, Seaside Breeze, Hawaiian Delight, Carrot Cake, Fresh
Peach, Baked Apple Pie, Vanilla CrŠme and Lemon Torte.
Manufactured in the United States, the tin containers were sold
by Home Interiors' fundraising programs and through direct sales
associates from April 2005 through May 3, 2005 for $8.
Consumers should stop using the recalled candles immediately.
Consumers with the recalled candles should go to the firm's Web
site at http://www.homeinteriors.comand click on the candle tin
recall for instructions on how to return the candle tins free of
charge. Consumers without Internet access can call the firm
directly at the toll free number listed below. Information will
be available as of Friday, May 27, 2005 via the Home Interiors'
website and the toll free number. For every candle tin returned,
consumers will receive a replacement Home Interiors Candle Tin
of the same fragrance and also one of Home Interiors' fragranced
body care products.
Consumer Contact: For additional information, contact Home
Interiors at (877) 707-8842 between 9 a.m. and 5 p.m. CT Monday
through Friday, or visit the Web site:
http://www.homeinteriors.com.
KIA MOTORS: PA Sephia Vehicle Owners To Receive Settlement Money
----------------------------------------------------------------
Approximately 10,000 former and current Kia Sephia owners in
Pennsylvania are set to receive some money that stems from a
class action lawsuit involving the vehicles, The NBC10.com
reports.
A jury has awarded $5.6 million for a lawsuit that was brought
on behalf of the owners of Kia Sephia model years 1997 through
2000. Under the settlement, each owner should receive about $600
for out of pocket expenses.
As previously reported in the November 22, 2004 edition of the
Class Action Reporter, the law firm of Donovan Searles, LLC,
revealed that the Philadelphia Court of Common Pleas, in the
case of Samuel-Bassett v. Kia Motors America, Inc., No. 2199,
Jan. Term 2001, ordered that Notice of Pendency of Class Action
be provided to all residents of the Commonwealth of Pennsylvania
who purchased or leased a model year 1997, 1998, 1999 or 2000
Kia Sephia between January 17, 1997 and January 17, 2001.
In the suit, Plaintiff claims the Sephia 1997, 1998, 1999, and
2000 model automobiles have defects in their braking system.
Plaintiff claims this is a breach of warranty and a violation of
the Magnuson-Moss Warranty Improvement Act. Plaintiff seeks to
recover money damages from Defendant, which may include the
costs of repairs and compensation for the reduction in vehicle
value.
The certified Class Representative is the Plaintiff, Shamell
Samuel-Bassett, who represented by class counsels Michael D.
Donovan, Esq. of the law firm of Donovan Searles, LLC, and James
A. Francis, Esq. of the law firm of Francis & Mailman, P.C.
For more details, contact James A. Francis, Esq. of FRANCIS &
MAILMAN, P.C. by Phone: 215-735-8600 OR Michael D. Donovan, Esq.
of DONOVAN SEARLES, LLC by Phone: 215-732-6067 or 800-619-1677.
MADISON MUTUAL: Seeks Dismissal From Godfrey Resident's Lawsuit
---------------------------------------------------------------
Madison Mutual Insurance is seeking to be dismissed from a class
action lawsuit that was filed on March 11 in Madison County
Circuit Court by Godfrey resident Kyle Stark, The Madison County
Record reports.
The suit claims the insurance company unfairly sought repayment
of $5,000 in medical services rendered after an August 14, 2002,
auto accident. Court documents show that Mr. Stark was a
passenger in a car driven by Madison Mutual insured David
Kallal. His vehicle collided with Jennifer Gibson's, who was
insured by Allstate.
According to Madison Mutual attorney Dale Bode of Walker and
Williams of Belleville, Mr. Stark failed to state a cause of
action under a fraudulent misrepresentation or tortious
interference with a contract theory. He argued that when Mr.
Stark accepted payment, Madison became entitled to a subrogation
lien against the injury claims. Mr. Bode also claims, "It has
been clearly established in Illinois case law in the Fifth
District that an insurance company has a contractual right to be
reimbursed for medical payments made on behalf of an insured
under the policy."
Additionally, Mr. Bode is asking the court to award legal fees
and other costs to his firm seeking sanctions against Mr.
Stark's attorney Terrance O'Leary of Granite City. In his plea,
Mr. Bode wrote, "The egregious allegations made without any
basis whatsoever are compounded by the fact that there is an
attempt to certify this case as a class action."
Circuit Judge Daniel Stack will hold the motion hearing next
week at 9 a.m. in courtroom 311.
Mr. Stark's complaint stated that he hired attorney Joseph
Hoefert to represent him in a cause of action against Ms.
Gibson. He claims that Mr. Hoefert began settlement talks in
early 2003 when a subrogation specialist with Madison notified
him that they were asserting a lien against any settlement
proceeds he received. The complaint revealed that Mr. Hoefert's
firm made a check payable to Madison Mutual for $3,333.33 on
April 22, 2003, for full repayment of its subrogation claim.
Mr. Stark points out that Madison Mutual relies upon its generic
contract as its sole justification for its claim of a
subrogation lien against third parties. He thus claims that
based upon its expertise in the field of insurance, Madison
Mutual knew that plaintiff's were not parties to its contract
which it based its claims, and that these contracts can not form
a legal basis for such claims and that its claims of entitlement
to lien's were false.
Currently, Mr. Stark is seeking a court order that would force
Madison Mutual to establish a fund subject to the jurisdiction
of the court until the amount of those sums improperly collected
by Madison is reached, order punitive damages to prevent similar
conduct and order preliminary and final relief as the law and
facts require to protect the interests of the class.
MERCK & CO.: Firm Seeks Dismissal of Madison County Vioxx Suit
--------------------------------------------------------------
In an upcoming hearing, an attorney for Merck & Co. will attempt
to persuade Madison County Circuit Court Judge George Moran to
dismiss a Vioxx class action complaint launched by Myrna Amisch
of Granite City, The Madison County Record reports.
Court documents revealed that Ms. Amisch, who is represented by
the Edwardsville firm Goldenberg, Miller, Heller & Antognoli,
filed suit just one week after Merck removed its arthritis pain
medication from the market for safety reasons on September 30.
The third and last one filed in Madison County, Ms. Amisch's
class action complaint alleges that the drug maker deceived
consumers into believing Vioxx was a superior product over
others and that it hid the drug's dangerous side effects.
Dan Ball of Bryan Cave in St. Louis will argue for Merck that a
dismissal or stay is warranted because Ms. Amisch, whose suit
seeks to recover no more than $75,000 minus costs and interest
per class member, can seek relief in other pending cases against
Merck.
In his motion to dismiss, Mr. Ball wrote, "Merck should be
protected from facing identical allegations in multiple
jurisdictions, as it would be manifestly unfair for Merck to
answer the same allegations in multiple courts and repeat the
discovery process multiple times."
In addition, Mr. Ball claims that allowing Ms. Amisch's suit to
proceed would encourage others to file lawsuits to circumvent
adverse rulings or force settlements. He also adds, "There is no
relief that Ms. Amisch can obtain here that she cannot also
obtain in other class action lawsuits."
Mr. Ball is claiming that Merck will suffer substantial
prejudice if it is forced to simultaneously litigate identical
claims in multiple courts by facing the risk of inconsistent
rulings and judgments.
MERCK & CO.: Kenneth B. Moll Lodges First Vioxx Suit in England
---------------------------------------------------------------
The law firm of Kenneth B. Moll & Associates initiated the first
class action lawsuit on behalf of all citizens of England who
allegedly died or were seriously injured by the pain medication
Vioxx.
The suit accuses United States pharmaceutical giant Merck & Co.
of failing to properly research the known risks of Vioxx and
warn English consumers of potentially fatal side effects. "Vioxx
should never have been marketed in the first place, in light of
the known risks of Cox-2 inhibitors," said Kenneth B. Moll,
whose firm filed the first worldwide class action regarding
Vioxx last fall.
On September 30, 2004, Merck withdrew Vioxx from all worldwide
markets after studies showed a three-fold risk of heart attack
and stroke. "Merck's decision to withdraw Vioxx from the market
came years after the company first learned of the health risks,"
said Mr. Moll. "Countless individuals in England and around the
world have suffered severe and fatal injuries which could have
been avoided if Merck had acted responsibly." The lawsuit seeks
the establishment of a medical monitoring fund to pay for the
testing of English consumers for dangerous side effects of
Vioxx.
For more details, contact Kenneth B. Moll & Associates, Ltd. by
Mail: Three First National Plaza, 50th Floor, Chicago, Illinois
60602 by Phone: 312-558-6444 or 888-882-3453 by Fax:
312-558-1112 or by E-mail: lawyers@kbmoll.com or visit their Web
site: http://www.kbmoll.com.
MISSION-ITECH: Recalls 5T Hockey Equipment Due To Injury Hazard
---------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Mission-ITECH Hockey, of Kirkland, Quebec, Canada is
voluntarily recalling about 5,000 units of ITECH Profile 2100,
1100 and 8.0 hockey goalie masks and ITECH RP607 and RP609
goalie mask replacement wires.
The metal wire on these products could break at or near a weld
point, exposing a hockey goalie to facial injuries. ITECH
received three reports of injuries sustained from the wire
breaking at or near a weld point. The injuries included
superficial facial and eye injuries.
The recalled hockey goalie masks and replacement wires are non-
certified models with a cat-eye design and have the word "ITECH"
printed on the sides and front of the mask. The ITECH Profile
2100, 1100 and 8.0 goalie masks came in black or white. A label
identifying the model and size (medium or large) is affixed to
the rear crown of the helmet. In addition, the back of the
helmet has a large red triangular warning label. The ITECH RP607
and RP609 replacement wires are black, white and chrome and
include a unique side attachment design - they are attached to
the helmet/mask by four screws and posts without the use of any
additional clips.
Manufactured in Canada, the hockey equipment were sold by
sporting goods and hockey specialty stores between January 1999
and September 2004 for about $250 for the mask and about $60 for
the replacement wire.
Consumers should stop using the masks and replacement wires
immediately and return them to the company for a free
replacement unit.
Consumer Contact: Call ITECH toll-free at (877) 832-3366 or send
an e-mail to recall@itech.com OR Randy Burns at (514) 697-9900.
NORTH MISSISSIPPI: Judge Dismisses Uninsured Patients' Lawsuit
--------------------------------------------------------------
U.S. District Judge Michael P. Mills dismissed a lawsuit filed
against North Mississippi Health Services by a plaintiffs
attorneys group led by Oxford lawyer Richard Scruggs, The
Associated Press reports.
The federal judge, who issued the dismissal order, just
recently, said that the case is identical to "dozens of other
actions filed in federal district courts nationwide against non-
profit hospitals." The lawsuits claim uninsured patients paid
higher rates than others.
Additionally, in the 10-page order, Judge Mills stated that he
does not have jurisdiction to hear the case.
In August, NMHS entered a memorandum of understanding after
class action lawsuits had been launched against 40 hospitals and
health care systems across the United States. The suits, many of
which have also been dismissed by the courts, claimed that the
hospitals have failed to fulfill their charitable mission by not
providing discounted health care to uninsured patients.
NMHS agreed to the memorandum of understanding as a framework to
develop a settlement to avoid the distraction and cost
associated with a lawsuit.
In September, Judge Mills ordered NMHS and the uninsured clients
represented by the Scruggs firm to put more substantial and
effective conflicts of interest policies into the agreement and
that's when settlement talks broke down.
Officials with NMHS told AP that as part of their voluntary
commitment to the memorandum of understanding, its board of
directors approved a revised conflict of interest policy. The
hospital also said that it would implement an enhanced charity
policy to provide uninsured patients with the same discount
provided under its average managed care contracts.
The Scruggs firm has repeatedly said that the conflict-of-
interest policy is part of the overall issue. It also contends
that hospital board members, relatives and people who do
business with them benefit by receiving better rates on medical
care than the uninsured plaintiffs represented by Scruggs.
NMHS is the parent corporation for North Mississippi Medical
Center, a 650-bed hospital in Tupelo and five smaller community
hospitals in Northeast Mississippi and Northwest Alabama.
QUESTAR EXPLORATION: Indemnification Claim Dismissal Appealed
-------------------------------------------------------------
Kaiser-Francis Oil Co. appealed the dismissal of its
indemnification claim against Questar Exploration and
Production, styled "Kaiser-Francis Oil v. Anadarko Petroleum
Corporation, Case No. CJ-2003-66518," filed in the United States
District Court in Oklahoma.
Kaiser-Francis was the Company's co-defendant in a prior
Oklahoma case, styled "Bridenstine v. Kaiser-Francis Oil Co."
The original lawsuit was a class action alleging improper
royalty payments for wells connected to the Beaver Gas Pipeline
System in western Oklahoma. The Company and Anadarko Petroleum
Corporation (as the successor to another company) settled the
lawsuit in December 2000 by agreeing to pay a total sum of $22.5
million, of which $16.5 million was allocated to the Company.
Kaiser-Francis chose not to settle and was assessed damages,
including punitive damages, by a jury. Kaiser-Francis ultimately
settled for $82.5 million, plus interest. As part of the
settlement, Kaiser-Francis and the plaintiff class agreed to
entry of a "superseding judgment" purporting to vacate the
punitive damages award against Kaiser-Francis after the Oklahoma
Supreme Court had affirmed that award and issued its mandate.
The Company and Anadarko have appealed the entry of the
superseding judgment to the Oklahoma Supreme Court.
Kaiser-Francis' current lawsuit claims that the Company and
Anadarko were obligated by express and implied indemnities to
pay for a portion of the damages assessed in the jury trial and
for its legal-defense costs. In dismissing the lawsuit for
failure to state a claim, the district judge noted that the jury
determined that Kaiser-Francis was involved in a conspiracy to
commit fraud and was therefore barred by a doctrine similar to
"unclean hands" from seeking indemnity for the judgment. On
appeal, Kaiser-Francis contends that it should be allowed to
amend its petition to argue that the superseding judgment
shields it from the jury's findings of wrongdoing. In
dismissing the case, the trial judge found that the superseding
judgment made no difference.
SELFWORX.COM: Forges Settlement With FTC For Bogus Weight Claims
----------------------------------------------------------------
Scarborough, Maine-based defendants are barred from making false
or unsubstantiated claims about any weight-loss product or
program, dietary supplement, food, or drug, and have agreed to
pay $100,000 in consumer redress to settle Federal Trade
Commission charges that they made bogus claims about two weight-
loss products: gel thin, a topical gel, and Ultra LipoLean, a
dietary supplement tablet that purports to block fat.
The FTC alleged that the defendants used one or more of the
seven bogus "Red Flag" weight-loss claims. The FTC's ongoing
"Red Flag" education campaign provides guidance to assist media
outlets and others on spotting false claims in weight-loss ads.
In November 2004, the FTC filed its complaint against
Selfworx.com LLC, Iworx, and Jeffrey V. Kral as part of
"Operation Big Fat Lie" - an initiative targeting bogus weight-
loss claims. The FTC amended its complaint to include Bernard
Willimann, an owner and active participant in the operation of
the corporate defendants, and Shawn P. Lyden as a relief
defendant. The complaint alleged that the defendants claimed
that gel thin, when rubbed into the skin, caused substantial
weight loss; dissolved fat deposits in days; and dissolved and
removed cellulite from the body. The complaint further alleged
that the defendants falsely claimed that clinical studies showed
that gel thin reduced fat and cellulite deposits on contact. In
addition, the complaint alleged that the defendants made false
and unsubstantiated claims that Ultra LipoLean caused rapid and
substantial weight loss, as much as four pounds per week,
without the need to diet, and that only two tablets absorb 20 to
30 grams of fat from a meal. The challenged ads ran in
nationally-known publications such as Cosmopolitan and Complete
Woman, and Sunday newspaper supplements, including Cleveland,
Ohio, Sun Newspapers.
The stipulated final judgment announced today bars the
defendants from making claims that any weight-loss product:
(1) causes rapid or substantial weight loss without the
need for diet or exercise, or
(2) causes substantial weight loss or eliminates fat or
cellulite when rubbed into the skin.
The settlement further bars the defendants from making false or
unsubstantiated claims about any weight-loss product or program,
dietary supplement, food, or drug. In addition, the settlement
prohibits the defendants from misrepresenting the existence,
validity, or results of any tests or studies.
The settlement requires the defendants to pay $100,000 in
consumer redress. The settlement contains a $20 million
avalanche clause for the defendants and a $400,000 avalanche
clause for the relief defendant Shawn Lyden, if it is found that
they misrepresented their financial status. Finally, the
settlement contains various record keeping requirements to
assist the FTC in monitoring the defendants' compliance.
The Commission vote authorizing staff to file the amended
complaint and the stipulated final judgment was 5-0. The amended
complaint and the stipulated final judgment were filed in the
U.S. District Court, District of Maine, on May 19, 2005, and the
judge has signed the stipulated final judgment.
Copies of the amended complaint and the stipulated final
judgment are available from the FTC's Web site at
http://www.ftc.govand also from the FTC's Consumer Response
Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington,
D.C. 20580. The FTC works for the consumer to prevent
fraudulent, deceptive, and unfair business practices in the
marketplace and to provide information to help consumers spot,
stop, and avoid them. To file a complaint in English or Spanish
(bilingual counselors are available to take complaints), or to
get free information on any of 150 consumer topics, call toll-
free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form
at http://www.ftc.gov.The FTC enters Internet, telemarketing,
identity theft, and other fraud-related complaints into Consumer
Sentinel, a secure, online database available to hundreds of
civil and criminal law enforcement agencies in the U.S. and
abroad. For more details, contact Brenda Mack, Office of Public
Affairs by Phone: 202-326-2182 or contact John Mendenhall or
Brinley Williams, FTC's East Central Region - Cleveland by
Phone: 216-263-3455 or visit the Website:
http://www.ftc.gov/opa/2005/05/selfworx.htm.
SIEBEL SYSTEMS: Plaintiffs File Second Amended Securities Suit
--------------------------------------------------------------
Plaintiffs filed a second amended class action against Siebel
Systems, Inc. and certain of its officers in the United States
District Court for the Northern District of California.
On March 10, 2004, William Wollrab, on behalf of himself and
purportedly on behalf of a class of the Company's stockholders,
filed the suit, alleging claims in connection with various
public statements made by the Company and seeking damages
together with interest and reimbursement of costs and expenses
of litigation.
This complaint was consolidated and amended on August 27, 2004,
with the Policemen's Annuity and Benefit Fund of Chicago being
appointed to serve as lead plaintiff. In October 2004, the
Company filed a motion for dismissal of this case, which was
granted on January 28, 2005. Plaintiffs in this case filed a
second amended complaint on February 28, 2005, and the Company
intends to file a motion to dismiss as soon as practical.
SOUTH KOREA: Seoul YMCA Plans Lawsuit V. KT, Hanaro Telecom
-----------------------------------------------------------
The Seoul YMCA plans to launch a class action lawsuits against
KT and Hanaro Telecom for conspiring to fix local phone call
rates, a week after the Fair Trade Commission imposed record
fines on the two companies for the same reason, The JoongAng
Daily reports.
At the YMCA building in northern Seoul, a citizens' relay group
within the YMCA told the Daily that price-fixing is a "grave
matter that severely undermines consumers' rights."
The suit would be seeking up to 1 million won ($992) per
plaintiff in damages. The YMCA will accept plaintiffs for 10
days with anyone who paid the higher rates or who applied for
phone service from the two companies from August 2003 to August
2004 eligible to join.
On Wednesday, KT, the largest fixed-line phone service provider
in Korea, was fined 116 billion won by the Fair Trade
Commission, while Hanaro Telecom, the second largest phone
company, was fined 2.8 billion won.
According to the antitrust agency, KT and Hanaro raised their
rates for local calls in the summer of 2003 on the condition
that KT give 1 to 2 percent of its market share to Hanaro. KT
denied wrongdoing and said it would appeal.
Both KT and the Information Ministry agreed that the ministry
ordered phone service providers to impose higher rates because
the companies had been cutting them below the break-even point
to attract customers. For this reason, the YMCA also told the
Daily that the Information Ministry is a potential defendant.
STAR GAS: CT Court Orders Securities Fraud Suits Consolidated
-------------------------------------------------------------
The United States District Court for the District of Connecticut
ordered consolidated the securities class actions filed against
Star Gas Partners, L.P., various of its subsidiaries and
officers and directors, styled:
(1) Carter v. Star Gas Partners, L.P., et al, No 3:04-cv-
01766-IBA, et. al
(2) Feit v. Star Gas, et al, Civil Action No. 04-1832
(filed on 10/29/2004),
(3) Lila Gold v. Star Gas, et al, Civil Action No. 04-1791
(filed on 10/22/2004),
(4) Jagerman v. Star Gas, et al, Civil Action No. 04-1855
(filed on 11/3/2004),
(5) McCole, et al v. Star Gas, et al, Civil Action No. 04-
1859 (filed on 11/3/2004),
(6) Prokop v. Star Gas, et al, Civil Action No. 04-1785
(filed on 10/22/2004),
(7) Seigle v. Star Gas, et al, Civil Action No. 04-1803
(filed on 10/25/3004),
(8) Strunk v. Star Gas, et al, Civil Action No. 04-1815
(filed on 10/27/2004),
(9) Harriette S. & Charles L. Tabas Foundation v. Star
Gas, et al, Civil Action No. 04-1857 (filed on
11/3/2004),
(10) Weiss v. Star Gas, et al, Civil Action No. 04-1807
(filed on 10/26/2004),
(11) White v. Star Gas, et al, Civil Action No. 04-1837
(filed on 10/9/2004),
(12) Wood v. Star Gas, et al, Civil Action No. 04-1856
(filed on 11/3/2004)
(13) Yopp v. Star Gas, et al, Civil Action No. 04-1865
(filed on 11/3/2004),
(14) Kiser v. Star Gas, et al, Civil Action No. 04-1884
(filed on 11/9/2004),
(15) Lederman v. Star Gas, et al, Civil Action No. 04-1873
(filed on 11/5/2004),
(16) Dinkes v. Star Gas, et al, Civil Action No.04-1979
(filed 11/22/04) and
(17) Gould v. Star Gas, et al, Civil Action No. 04-2133
(filed on 12/17/2004)
The Class Action plaintiffs generally allege that the
Partnership violated Section 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Securities and Exchange
Commission Rule 10b-5 promulgated thereunder, by purportedly
failing to disclose, among other things:
(i) problems with the restructuring of the Company's
dispatch system and customer attrition related thereto;
(ii) that the Company's heating oil division's business
process improvement program was not generating the
benefits allegedly claimed;
(iii) that Star Gas was struggling to maintain its profit
margins in its heating oil division;
(iv) that Star Gas' second quarter 2004 profit margins were
not representative of its ability to pass on heating
oil price increases; and
(v) that Star Gas was facing an inability to pay its debts
and that, as a result, its credit rating and ability to
obtain future financing was in jeopardy.
The Class Action plaintiffs seek an unspecified amount of
compensatory damages including interest against the defendants
jointly and severally and an award of reasonable costs and
expenses.
On February 23, 2005, the Court consolidated the Class Action
Complaints and heard argument on motions for the appointment of
Lead Plaintiff. On April 8, 2005, the Court appointed the Lead
Plaintiff and granted until June 8, 2005 for the Lead Plaintiff
to file a Consolidated Amended Complaint.
STILLWATER MINING: MT Court To Hear Suit Dismissal in June 2005
---------------------------------------------------------------
The United States District Court for the District of Montana
will continue to hear Stillwater Mining Co.'s motion to dismiss
the consolidated securities class action filed against it and
certain of its senior officers on June 24,2005.
In 2002, nine lawsuits were filed on behalf of a class of all
persons who purchased or otherwise acquired common stock of the
Company from April 20, 2001 through and including April 1, 2002.
They assert claims against the Company and certain of its
officers under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934. Plaintiffs challenge the accuracy of
certain public disclosures made by the Company regarding its
financial performance and, in particular, its accounting for
probable ore reserves.
In July 2002, the court consolidated these actions, and in May
2003, the case was transferred to federal district court in
Montana. In May 2004, defendants filed a motion to dismiss
plaintiffs' second amended complaint, and in June 2004,
plaintiffs filed their opposition and defendants filed their
reply.
Defendants have reached an agreement in principle with
plaintiffs to settle the federal class action subject to
documentation and court approval. Under the proposed agreement,
any settlement amount will be paid by the Company's insurance
carrier and will not involve any out-of-pocket payment by the
Company or the individual defendants. In light of the proposed
settlement, the parties requested and the court has ordered that
the hearing on defendants' motion to dismiss be continued from
April 22, 2005 to June 24, 2005.
UNIPROP MANUFACTURED: Old Dutch Farm Community Launches MI Suit
---------------------------------------------------------------
Uniprop Manufactured Housing Communities Income Fund, and its
general partner P.I. Associates Limited Partnership faces a
class action lawsuit in the Circuit Court of Oakland County,
Michigan, claiming that the Old Dutch Farms community did not
honor its obligations with respect to operating various aspects
of the community. The complaint requests damages, costs and
injunctive relief.
Counsel for the Partnership is presently reviewing and preparing
an answer to the complaint on behalf of the Partnership. While
the discovery process has not yet begun, the Partnership intends
to vigorously defend against this claim, the Company said in a
disclosure to the Securities and Exchange Commission. The amount
of potential liability, if any is indeterminable at the time.
UNOCAL CORPORATION: Investors Sue V. ChevronTexaco Merger in CA
---------------------------------------------------------------
Unocal Corporation and its ten directors face two putative class
action lawsuits challenging the Company's acquisition by
ChevronTexaco. Each complaint was brought by an individual
Company stockholder in April 2005 in the Superior Court of
California in Los Angeles.
The complaints are substantially similar in alleging that the
Company and its directors breached their fiduciary duties by:
(1) failing to maximize stockholder value;
(2) securing benefits for certain officers and directors of
the Company at the expense of its stockholders; and
(3) improperly favoring ChevronTexaco over other potential
bidders by tailoring the merger agreement to
ChevronTexaco and erecting obstacles to deter other
interested bidders.
In general terms, the plaintiffs challenge the acquisition
price, officer compensation, and the size of the termination fee
contained in the ChevronTexaco merger agreement. Both lawsuits
bring a single claim of breach of fiduciary duties. The first
lawsuit, "Lieb v. Unocal et al.," seeks only equitable relief by
way of an injunction against the ChevronTexaco merger and an
order directing the Company to obtain a transaction more
favorable to the Company's stockholders, as well as attorney's
fees. The second lawsuit, "Callan v. Unocal et al.," seeks
similar equitable relief and fees, as well as an unspecified
amount of damages to the Company's stockholders sustained as a
result of the ChevronTexaco merger.
UST INC.: Smokeless Tobacco Injury Lawsuits Filed in FL, CA, CT
---------------------------------------------------------------
UST Inc. faces several personal injury lawsuits filed in various
courts, related to its smokeless tobacco products.
The Company is named in a purported class action in Florida
brought by six plaintiffs "on behalf of themselves and all
others similarly situated" against various smokeless tobacco
manufacturers including the Company and other organizations for
personal injuries, including cancers of the mouth and larynx,
oral lesions, leukoplakia, facial disfigurement, gum and tooth
loss, fear of cancer, death and depression and other injuries
allegedly resulting from the use of the Company's smokeless
tobacco products. Plaintiffs also claim nicotine "addiction"
and seek unspecified compensatory damages and certain equitable
and other relief, including but not limited to, medical
monitoring.
The Company is named in an action in Idaho brought on behalf of
a minor child alleging that his father died of "cancer of the
throat" as a result of his use of the Company's smokeless
tobacco product. Plaintiff also alleges "addiction" to nicotine
and seeks unspecified compensatory damages and other relief.
The Company has been named in an action in Connecticut brought
by a plaintiff individually, as executrix and fiduciary of her
deceased husband's estate and on behalf of their minor children
for injuries, including "squamous cell carcinoma of the tongue,"
allegedly sustained by decedent as a result of his use of the
Company's smokeless tobacco products. The Complaint also alleges
"addiction" to smokeless tobacco. The Complaint seeks
compensatory and punitive damages in excess of $15,000 and other
relief.
The Company believes, and has been so advised by counsel
handling these cases, that it has a number of meritorious
defenses to all such pending litigation. Except as to the
Company's willingness to consider alternative solutions for
resolving certain regulatory and litigation issues, all such
cases are, and will continue to be, vigorously defended, the
Company said in a disclosure to the Securities and Exchange
Commission.
UST INC.: Working To Settle Tobacco Purchasers Antitrust Suits
--------------------------------------------------------------
UST Inc. is working to resolve a number of purported class
actions brought by direct purchasers (wholesalers and
distributors), and indirect purchasers (consumers and retailers)
and class actions brought by indirect purchasers of its moist
smokeless tobacco products in the states of California, Kansas
and Massachusetts.
As direct purchasers of the Company's smokeless tobacco products
during the period January 1, 1990 to the present, plaintiffs in
those consolidated actions allege individually and on behalf of
a putative class of wholesalers and distributors that the
Company violated the federal antitrust laws and has engaged in
this conduct unilaterally and in concert with "its co-
conspirators." Plaintiffs seek to recover unspecified statutory
damages, before trebling, and certain equitable and other
relief.
The Company has reached a settlement with more than 550 of its
direct purchasing customers (wholesalers and distributors) who
are potential class members in this putative class action and
who represent more than 88 percent of the Company's sales volume
based on 2002 sales revenue. For those direct purchasing
customers who agreed to settle the lawsuit and release all
claims against the Company, the Company agreed to delay a
planned reduction of its prompt-payment discount terms. The
effect of this settlement delayed cost savings planned for 2003.
In January 2004, the Company made a second settlement offer to
those direct purchasers that chose not to settle the litigation
in 2003. Direct purchasers that settled the first and second
settlement offers represented over 93 percent of the Company's
sales volume, based on 2002 sales revenues. In November 2004,
the Company entered into a Settlement Agreement with the
remaining direct purchasers, which was approved by the U.S.
District Court for the District of Columbia on April 22, 2005.
As indirect purchasers of the Company's smokeless tobacco
products during various periods of time ranging from January
1990 to the date of certification or potential certification of
the proposed class, plaintiffs in those actions allege,
individually and on behalf of putative class members in a
particular state or individually and on behalf of class members
in the states of California, Kansas and Massachusetts, that the
Company has violated the antitrust laws, unfair and deceptive
trade practices statutes and/or common law of those states.
Plaintiffs seek to recover compensatory and statutory damages in
an amount not to exceed $75,000 per class member or per putative
class member, and certain other relief. The indirect purchaser
actions are similar in all material respects.
The Company reached a settlement, which has been approved by the
court, to resolve a significant number of the indirect purchaser
actions. The jurisdictions covered by the settlement are
identified in the Company's Quarterly Report on Form 10-Q for
the period ended June 30, 2004. Pursuant to the approved
Settlement, adult consumers will receive coupons redeemable on
future purchases of the Company's moist smokeless tobacco
products. The Company will pay all administrative costs of the
settlement and plaintiffs' attorneys' fees.
The Company also intends to pursue settlement of other indirect
purchaser actions not covered by the Settlement on substantially
similar terms. In this regard, the Company continues to make
progress. The Company has resolved indirect purchaser actions
in approximately 70 percent of the states in which they were
filed.
XTO ENERGY: KS Court Mulls Certification For Gas Royalties Suit
---------------------------------------------------------------
The District Court of Stevens County, Kansas held an evidentiary
hearing on whether class certification should be granted to the
amended lawsuit filed against XTO Energy, Inc., one of its
subsidiaries and over 200 natural gas transmission companies,
producers, gatherers and processors of natural gas, styled
"Price, et al. v. Gas Pipelines, et al." (formerly "Quinque"
case).
The plaintiffs seek to represent a class of plaintiffs
consisting of all similarly situated gas working interest
owners, overriding royalty owners and royalty owners either from
whom the defendants had purchased natural gas or who received
economic benefit from the sale of such gas since January 1,
1974. The case broadens the claims to cover all oil and gas
leases (other than the federal and Native American leases that
are the subject of the "Grynberg" case). The complaint alleges
that the defendants have mis-measured both the volume and
heating content of natural gas delivered into their pipelines,
resulting in underpayments to the plaintiffs. The plaintiffs
assert a breach of contract claim, negligent or intentional
misrepresentation, civil conspiracy, common carrier liability,
conversion, violation of a variety of Kansas statutes and other
common law causes of action. The amount of damages was not
specified in the complaint.
In February 2002, the Company, along with one of its
subsidiaries, was dismissed from the suit and another subsidiary
of the Company was added. A hearing was held in January 2003,
and the court held that a class should not be certified. The
plaintiffs' counsel has filed an amended class action petition,
which reduces the proposed class to only royalty owners, reduces
the claims to mis-measurement of volume only, conspiracy, unjust
enrichment and accounting, and only applies to gas measured in
Kansas, Colorado and Wyoming. The court held an evidentiary
hearing in April 2005 to determine whether the amended class
should be certified, and the Company is awaiting the decision of
the court.
On August 5, 2003, the "Price" plaintiffs served one of the
Company's subsidiaries with a new original class action petition
styled "Price, et al. v. Gas Pipelines, et al." The action was
filed in the District Court of Stevens County, Kansas, against
natural gas pipeline owners and operators. The plaintiffs seek
to represent a class of plaintiffs consisting of all similarly
situated gas royalty owners either from whom the defendants had
purchased natural gas or measured natural gas since January 1,
1974 to the present.
The new petition alleges the same improper analysis of gas
heating content that had previously been alleged in the "Price"
case discussed above until it was removed from the case by the
filing of the amended class action petition. In all other
respects, the new petition appears to be identical to the
amended class action petition in that it has a proposed class of
only royalty owners, alleges conspiracy, unjust enrichment and
accounting, and only applies to gas measured in Kansas, Colorado
and Wyoming. The court held an evidentiary hearing in April 2005
to determine whether the amended class should be certified, and
the Company is awaiting the decision of the court.
XTO ENERGY: Reaches Settlement For CO Natural Gas Royalties Suit
----------------------------------------------------------------
XTO Energy, Inc. reached a tentative settlement for the class
action filed in the District Court of La Plata County, Colorado,
styled "Burkett, et al. v. J.M. Huber Corp. and XTO Energy Inc."
The suit also names J.M. Huber Corporation as defendant.
The plaintiffs allege that the defendants have deducted in their
calculation of royalty payments expenses of compression,
gathering, treatment, dehydration, or other costs to place the
natural gas produced in a marketable condition at a marketable
location. The plaintiffs seek to represent a class consisting of
all lessors and their successors in interest who own or have
owned mineral interests located in La Plata County, Colorado and
that are leased to or operated by Huber or the Company, except
to the extent that the lessors or their successors have
expressly authorized deduction of post-production expenses from
royalties. The Company acquired the interests of Huber in
producing properties in La Plata County effective October 1,
2002, and have assumed the responsibility for certain
liabilities of Huber prior to the effective date, which may
include liability for post-production deductions made by Huber.
As of December 31, 2004, based on an evaluation of available
information, the Company accrued a $3.1 million estimated
liability for this claim in its consolidated financial
statements. On February 17, 2005, the Company agreed to a
tentative settlement of approximately $5.1 million, resulting in
an additional loss of approximately $2 million that has been
recorded in its consolidated income statement for the three
months ended March 31, 2005.
New Securities Fraud Cases
CRAY INC.: Marc S. Henzel Lodges Securities Fraud Lawsuit in WA
---------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a action lawsuit in
the United States District Court for the United States District
Court for the District of Washington on behalf of the purchasers
of Cray Inc. (Nasdaq: CRAYE) securities between July 31, 2003
and May 12, 2005, inclusive (the "Class Period").
Plaintiff alleges that during the Class Period, Cray failed to
disclose and misrepresented material adverse facts known to
defendants or recklessly disregarded by them, including:
(1) that business metrics having a direct bearing on
revenue recognition, including the speed and costs of
on-site acceptance testing or improved processes for
building machines in accordance with customer
requirements, were increasingly unfavorable and
unlikely to improve anytime soon
(2) manufacturing processes internal controls and testing
were flawed and ineffective;
(3) Cray's own auditors and Audit Committee knew of the
flawed and ineffective internal controls;
(4) delays in inventory recognition realization and revenue
were a recurring and unpredictable feature of Cray's
business model; and
(5) Cray was losing money or breaking even on certain
customer orders.
On May 9, 2005, Cray revealed that it had failed to include an
auditor's opinion on management's assessment of internal control
over financial reporting. Moreover, Cray continued to report
revenue results adversely impacted by faulty internal controls
and past quarter practices. In response, Cray's stock price fell
$0.74 per share over a three-day period ending May 12, 2005 --
an astonishing 35.6% loss -- to close at $1.34 on 9.5 million
shares combined volume.
For more details, contact the Law Offices of Marc S. Henzel by
Mail: 273 Montgomery Ave., Suite 202, Bala Cynwyd, PA 19004 by
Phone: 610-660-8000 or 888-643-6735 by Fax: 610-660-8080 or by
E-Mail: mhenzel182@aol.com.
DORAL FINANCIAL: Lerach Coughlin Lodges Securities Suit in NY
-------------------------------------------------------------
The law firm of Lerach Coughlin Stoia Geller Rudman & Robbins
LLP ("Lerach Coughlin") initiated a class action in the United
States District Court for the Southern District of New York on
behalf of purchasers of Doral Financial Corp. ("Doral")
(NYSE:DRL) publicly traded securities during the period between
May 15, 2000 and May 26, 2005 (the "Class Period").
The complaint charges Doral and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. Doral is a diversified financial services company engaged
in mortgage banking, commercial banking, institutional broker-
dealer activities and insurance agency activities.
The complaint alleges that during the Class Period, defendants
made materially false and misleading statements regarding the
Company's business and prospects. On January 19, 2005, the
company reported fourth quarter earnings and for the first time
warned of potential trouble with its hedging strategy against
interest rate changes through its use of a derivative portfolio
of interest-only strips ("IO Strips"). Doral was forced to
record a $97.5 million pretax impairment charge on its
derivative portfolio of IO Strips. On March 15, 2005, Doral
filed its Annual Report on Form 10-K with the Securities and
Exchange Commission ("SEC"). In its 2004 Annual Report the
Company disclosed for the first time its use of overly
aggressive assumptions in valuing its derivatives portfolio of
IO Strips. In a matter of days Doral stock plummeted from $38.29
per share to $21.50 per share in extremely heavy volume of more
than ten times the daily average.
Then on April 19, 2005, the Company announced that it had
determined that "it is appropriate to correct the methodology
used to calculate the fair value of its portfolio of floating
rate interest only strips ("IOs"). The Company's preliminary
estimate is that this correction will result in a decrease in
the fair value of its floating rate IOs of between $400 million
to $600 million as of December 31, 2004." On May 26, 2005, the
Company filed an 8-K with the SEC providing operational data and
updating its restatement process. Then, on May 27, 2005, the
Company issued a press release in which it stated that "the
change in our valuation model will result in a reduction in the
recorded fair value of our floating rate interest only strips
(IOs) of approximately $600 million."
According to the complaint, the true facts, which were known by
each of the defendants but concealed from the investing public
during the Class Period, were as follows:
(1) the Company was using overly aggressive and unrealistic
assumptions to value its derivative portfolio of IO
Strips used to hedge its mortgage portfolio against
interest rate fluctuations;
(2) the Company was using fraudulent accounting practices
and materially overstated its net income, net gain on
mortgage loan sales and net capital; and
(3) the Company was using ineffective risk management and
hedging strategies against the increasing risk of
rising interest rates.
As a result of these false statements, Doral's stock price
traded at inflated levels during the Class Period, increasing to
as high as $49.45 per share on January 18, 2005. The Company
sold $740 million worth of notes and $345 million worth of
preferred stock during the Class Period. However, after the
truth was revealed in Doral's press release on May 27, 2005, the
Company's shares fell to below $12 per share.
For more details, contact William Lerach or Darren Robbins of
Lerach Coughlin by Phone: 800/449-4900 or 619/231-1058 by E-
mail: wsl@lerachlaw.com or visit their Web site:
http://www.lerachlaw.com/cases/doral/.
FRIEDMAN BILLINGS: Strauss & Troy Lodges Securities Suit in NY
--------------------------------------------------------------
The law firm of Strauss & Troy and Abbey Gardy, LLP initiated a
class action suit on behalf of all persons who purchased the
common stock of Friedman, Billings, Ramsey Group, Inc. ("FBR" or
the "Company") (NYSE: FBR - News) between January 29, 2003 and
April 25, 2005, inclusive (the "Class Period") and who suffered
damages thereby.
The action, case number 05CV5090, Steven A. Ettinger vs.
Friedman, Billings, Ramsey Group, Inc., et al., is pending in
the United States District Court for the Southern District of
New York, and has been assigned to Judge Castel.
The Complaint alleges that during the Class Period, FBR, Eric F.
Billings, Emanuel J. Friedman and Kurt R. Harrington (the
"Defendants") violated the Securities Exchange Act of 1934 by
failing to disclose and misrepresenting adverse facts that were
known or recklessly disregarded by Defendants. Specifically, the
Complaint alleges that FBR did not properly disclose the adverse
effect of an SEC and NASD investigation into FBR's role in 2001
as a placement agent for an issuer in a private investment in a
public equity ("PIPE") transaction. On November 9, 2004, FBR
filed its third quarter 2004 Form 10-Q in which it disclosed the
SEC and NASD investigation. On this news, FBR's stock dropped to
$16.93 per share. On April 5, 2005, Emanuel J. Friedman, FBR's
CEO, resigned. Then, on April 25, 2005, FBR announced
disappointing preliminary results for the first quarter 2005,
including a charge for its liability in the PIPE transaction. On
this news, FBR's stock dropped to $12.52 on volume of 7.5
million shares.
For more details, contact Richard S. Wayne, Esq. or Matthew
Chasar, Esq. of Strauss & Troy by Mail: 150 East Fourth Street,
Cincinnati, Ohio 45202 by Phone: 800-669-9341 or (513) 621-2120
or by E-mail: rswayne@strauss-troy.com or visit their Web Site:
http://wwwstrausstroy.com.
TIBCO SOFTWARE: Marc S. Henzel Files Securities Fraud Suit in CA
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a action lawsuit in
the United States District Court for the United States District
Court for the Northern District of California on behalf of
purchasers of the securities of TIBCO Software, Inc. (Nasdaq:
TIBX) between September 21, 2004 and March 1, 2005, inclusive
(the "Class Period"), seeking to pursue remedies under the
Securities Exchange Act of 1934 (the "Exchange Act").
The action is pending against defendants TIBCO, Vivek Y.
Ranadive (CEO, Pres., Chairman), Christopher G. O'Meara (Chief
Financial Officer), Sydney Carey (Controller, Chief Accounting
Officer), Rajesh U. Mashruwala (COO).
The complaint alleges that defendants' Class Period
representations regarding TIBCO were materially false and
misleading when made for the following reasons:
(1) TIBCO's integration of the Staffware PLC acquisition
was not proceeding as well as defendants represented;
(2) that Staffware was performing well below expectations;
and
(3) TIBCO did not maintain an adequate system of internal
financial, operational or disclosure controls so as to
reasonably assure the accuracy, completeness and
veracity of the Company's public statements and
representations to investors.
On March 1, 2005, defendants announced that TIBCO's results for
1Q:F05 were well below guidance. In fact, shares of TIBCO were
halted in after-market trading after the Company revealed that
preliminary data showed that Q1:F05 revenues would reach well
below the FirstCall consensus mean estimates. While defendants
had previously stated that the Staffware acquisition was
substantially completed and that the integration was proceeding
according to plan, defendants now revealed that this was not
true and that weakness in Europe and delays in closing deals
would result in non-GAAP earnings per share well between
consensus mean estimates. During TIBCO's 1Q:F05 conference call,
defendant Ranadive revealed that Staffware not only remained
unintegrated, but because of integration-related problems,
European sales had been paralyzed.
The following day, as shares of TIBCO resumed trading, the
Company's stock price declined precipitously, falling from a
close of $8.90 per share in regular trading on March 1, 2005, to
below $7.00 the following day, on very high trading volume of
over 52 million shares. Market commentators stated that the
decline would have been worse had TIBCO stock not evidenced an
uncharacteristic trading pattern in the days immediately prior
to defendants' belated disclosure, which indicated that the
negative news may have been leaked to certain investors.
For more details, contact the Law Offices of Marc S. Henzel by
Mail: 273 Montgomery Ave., Suite 202, Bala Cynwyd, PA 19004 by
Phone: 610-660-8000 or 888-643-6735 by Fax: 610-660-8080 or by
E-Mail: mhenzel182@aol.com.
TIBCO SOFTWARE: Schiffrin & Barroway Files Securities Suit in CA
----------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP initiated a class
action lawsuit in the United States District Court for the
Northern District of California on behalf of all purchasers of
the common stock of TIBCO Software, Inc. ("TIBCO" or the
"Company") (Nasdaq: TIBX - News) from September 21, 2004 through
March 1, 2005, inclusive (the "Class Period").
The complaint charges TIBCO and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. TIBCO engages in the development and marketing of software
solutions for the integration of business information,
processes, and applications in various industries outside the
financial services market. More specifically, the Complaint
alleges that the Company failed to disclose and misrepresented
the following material adverse facts, known to defendants or
recklessly disregarded by them:
(1) that the Staffware PLC ("Staffware") integration was
not yet complete;
(2) that the failed integration of Staffware was causing
material disruptions for the Company;
(3) that the failed Staffware integration caused a
paralysis of leadership in the Company's European
management, which resulted in a lack of execution in
all European markets for the Company;
(4) as such, the Company was unable to close any licensing
deals that resulted in revenue of more than $5 million;
and
(5) that TIBCO did not maintain an adequate system of
internal financial, operational or disclosure controls
so as to reasonably assure the accuracy, completeness
and veracity of the Company's public statements and
representations to investors.
On March 1, 2005, defendants announced that TIBCO's results for
the first quarter of fiscal year 2005 were well below guidance.
Even worse, during TIBCO's first quarter of fiscal year 2005
conference call, defendants revealed that Staffware not only
remained unintegrated, but because of integration- related
problems, European sales had been paralyzed. News of this
shocked the market. Shares of TIBCO fell $1.86 per share, or
20.9 percent, to close at $7.04 per share on unusually heavy
trading volume.
For more details, contact Marc A. Topaz, Esq. or Darren J.
Check, Esq. of Schiffrin & Barroway, LLP by Mail: 280 King of
Prussia Road, Radnor, PA 19087 by Phone: 1-888-299-7706 or
1-610-667-7706 or by E-mail: info@sbclasslaw.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.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Resnick, Editors.
Copyright 2004. All rights reserved. ISSN 1525-2272.
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