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C L A S S A C T I O N R E P O R T E R
Thursday, August 25, 2005, Vol. 7, No. 168
Headlines
ADOLOR CORPORATION: Asks PA Court To Dismiss Securities Lawsuit
ALLIANCE CAPITAL: Asks NY Court To Dismiss Consolidated Lawsuit
ALLIED MUTUAL: Lawsuit Settlement Hearing Set October 7, 2005
AMERISOURCEBERGEN CORPORATION: HI Court Okays Fraud Settlement
AUGUST TECHNOLOGY: Investors File Suit V. Rudolph Merger in MN
AVICI SYSTEMS: Parties Working on Revised NY Lawsuit Settlement
BINGHAM CAPITAL: SEC Sues Firm, Institutes Proceedings V. Trader
CANADA: Ontario Judge Allows SARS Suit V. Province to Proceed
CENTERPLATE INC.: Parties To Enter Mediation in CA Overtime Suit
COOPER TIRE: Recalls 48,949 Tires Due to Defect, Crash Hazard
eFUNDS CORPORATION: Reaches Settlement For AZ Securities Lawsuit
FLORIDA: Residents to Get Windfall From Incinerator Suit
GENERAL REINSURANCE: Asks TN Court To Dismiss Lawsuits V. ROA
GENERAL REINSURANCE: Asks AL Court To Dismiss Conspiracy Lawsuit
GENERAL REINSURANCE: Faces Consolidated Amended Securities Suit
GIRARDIN MINIBUS: Recalls Buses For FMVSS No. 221 Noncompliance
GUAM: Mike Phillips Says $60M EITC Settlement Still in Effect
HOMESTORE INC.: CA Court Approves Overtime Wage Suit Settlement
HOMESTORE INC.: Asks NY Court To Dismiss AOL Securities Lawsuit
HONOLULU FORD: Settles HI Suit Over License, Documentation Fees
KMART CORPORATION: SEC Files Financial Fraud Suit V. Ex-CEO, CFO
LAMPLIGHT FARMS: Recalls Torches, Canisters Due to Fire Hazard
LEADIS TECHNOLOGY: CA Court Consolidates Securities Fraud Suit
LIONBRIDGE TECHNOLOGIES: Parties Submit Revised Suit Settlement
MACATAWA BANK: Faces Several Suits V. Trade Partners Viaticals
MERCK & CO.: 20 New Zealanders Plan to Join Lawsuit Over Vioxx
MICROSOFT CORPORATION: SD High Court to Hear Legal Fees Dispute
NICOR GAS: Reaches Settlement For IL Mercury Injury Litigation
NICOR GAS: IL Property Owners Launch Suit V. Oak Park Facility
NICOR INC.: Consumers Lodge Unfair Trade Practices Lawsuit in IL
OREGON: Archdiocese of Portland Notifies Parishioners of Lawsuit
PACER INTERNATIONAL: Inks Settlement For CA Fiduciary Duty Suit
PROGRESS ENERGY: NY Court Dismisses Securities Fraud Lawsuit
RUBIO'S RESTAURANTS: Faces Consolidated Overtime Wage Suit in CA
RUBIO'S RESTAURANTS: Consumers Launch CA Suit For Fake Lobster
SINGAPORE: Lawsuit V. Raffles Town Club Ends With $15M Award
TRANSACTION SYSTEMS: NE Court Certifies Desert Orchid Lawsuit
ZOLOWEAR INC.: Recalls Infant Carriers/Slings Due to Fall Hazard
New Securities Fraud Cases
ATI TECHNOLOGIES: Bernard M. Gross Lodges Securities Suit in PA
ATI TECHNOLOGIES: Brian M. Felgoise Lodges Securities Suit in PA
ATI TECHNOLOGIES: Schiffrin & Barroway Lodges Stock Suit in PA
RED ROBIN: Lerach Coughlin Lodges Securities Fraud Suit in CO
SYMBOL TECHNOLOGIES: Schatz & Nobel Lodges Securities Suit in NY
*********
ADOLOR CORPORATION: Asks PA Court To Dismiss Securities Lawsuit
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Adolor Corporation asked the United States District Court for
the Eastern District of Pennsylvania to dismiss the consolidated
securities class action filed against it, one of its directors
and certain of its officers.
On April 21,2004, a lawsuit was filed, seeking unspecified
damages on behalf of a putative class of persons who purchased
Company common stock between September 23, 2003 and January 14,
2004. The complaint alleges violations of Section 10(b) and
Section 20(a) of the Securities Exchange Act of 1934 in
connection with the announcement of the results of certain
studies in the Company's Phase III clinical trials for Entereg,
which allegedly had the effect of artificially inflating the
price of the Company's common stock.
This suit has been consolidated with three subsequent actions
asserting similar claims under the caption: "In re Adolor
Corporation Securities Litigation, No. 2:04-cv-01728." On
December 29, 2004, the district court issued an order appointing
the Greater Pennsylvania Carpenters' Pension Fund as Lead
Plaintiff. The appointed Lead Plaintiff filed a consolidated
amended complaint on February 28, 2005. That Complaint purported
to extend the class period, so as to bring claims on behalf of a
putative class of Company shareholders who purchased stock
between September 23, 2003 and December 22, 2004. The Complaint
also adds as defendants the Company's Board of Directors
asserting claims against them and the other defendants for
violation of Section 11 and Section 15 of the Securities Act of
1933 in connection with the Company's public offering of stock
in November 2003.
The Company and the management and director defendants moved to
dismiss the Complaint on April 29, 2005. The plaintiffs
responded to the motion to dismiss on June 28, 2005, and the
defendants' reply is due on August 12, 2005.
The suit is styled "Greater Pennsylvania Carpenters Pension Fund
v. Adolor Corporation, et al., case no. 2:04-cv-01728-RBS,"
filed in the United States District Court for the Eastern
District of Pennsylvania, under Judge R. Barclay Surrick.
Representing the defendants are:
(1) Michael S. Doluisio, Jeffrey G. Weil, DECHERT, PRICE &
RHOADS, 1717 Arch Street, 4000 Bell Atlantic Tower,
Philadelphia PA 19103-2793, Phone: 215-994-2749, Fax:
215-994-2222, E-mail: michael.doluisio@dechert.com
(2) John A. Ducoff, Allan E. Kraus, Jason Rockwell, Laurie
B. Smilan, LATHAM & WATKINS LLP, One Newark Center 16th
floor, Newark, NJ 07101-3174, Phone: 973-639-1234
Representing the plaintiffs are:
(i) Ramzi Abadou, Laura Andracchio, Nicholas J. Licato,
Scott Saham, LERACH COUGHLIN STOIA & ROBBINS LLP, 401 B
St., STE 1700, San Diego CA, 92101, Phone:
619-231-1058, E-mail: ramzia@lcsr.com
(ii) Marc S. Henzel, LAW OFFICES OF MARC S. HENZEL, 273
Montgomery Avenue, Suite 202, Bala Cynwyd PA 19004,
Phone: 610-660-8000, E-mail: mhenzel182@aol.com
ALLIANCE CAPITAL: Asks NY Court To Dismiss Consolidated Lawsuit
---------------------------------------------------------------
Alliance Capital Management LP asked the United States District
Court for the Southern District of New York to dismiss the
consolidated securities class action filed against it, styled
"Aucoin, et al. v. Alliance Capital Management L.P., et al."
The suit also names as defendants:
(1) Alliance Capital Management Holding L.P.,
(2) Alliance Capital Management Corporation,
(3) AXA Financial Corporation,
(4) Alliance Bernstein Investment Research and Management,
Inc. (ABIRM),
(5) certain current and former directors of the
AllianceBernstein Funds, and
(6) unnamed Doe defendants
The first suit filed names the AllianceBernstein Funds as
nominal defendants. The Complaint was filed by an alleged
shareholder of the AllianceBernstein Growth & Income Fund. The
Aucoin Complaint alleges, among other things:
(i) that certain of the defendants improperly authorized
the payment of excessive commissions and other fees
from AllianceBernstein Fund assets to broker-dealers in
exchange for preferential marketing services,
(ii) that certain of the defendants misrepresented and
omitted from registration statements and other reports
material facts concerning such payments, and
(iii) that certain defendants caused such conduct as control
persons of other defendants.
The Complaint asserts claims for violation of Sections 34(b),
36(b) and 48(a) of the Investment Company Act, Sections 206 and
215 of the Advisers Act, breach of common law fiduciary duties,
and aiding and abetting breaches of common law fiduciary duties.
Plaintiffs seek an unspecified amount of compensatory damages
and punitive damages, rescission of their contracts with
Alliance Capital, including recovery of all fees paid to
Alliance Capital pursuant to such contracts, an accounting of
all AllianceBernstein Fund-related fees, commissions and soft
dollar payments, and restitution of all unlawfully or
discriminatorily obtained fees and expenses.
Since June 22, 2004, nine additional lawsuits making factual
allegations substantially similar to those in the first suit
were filed against the Company and certain other defendants. All
nine of the lawsuits were brought as class actions filed in the
United States District Court for the Southern District of New
York, assert claims substantially identical to the Aucoin
Complaint, and are brought on behalf of shareholders of
AllianceBernstein Funds.
On February 2, 2005, plaintiffs filed a consolidated amended
class action complaint that asserts claims substantially similar
to the lawsuits referenced above. On April 14, 2005, defendants
moved to dismiss the Aucoin Consolidated Amended Complaint.
That motion is pending.
ALLIED MUTUAL: Lawsuit Settlement Hearing Set October 7, 2005
-------------------------------------------------------------
A fairness hearing will be held for the class action case, Mary
M. Rieff and Terrence A. Kilburg vs. John E. Evans, et al., No.
CE35780, Polk County, Iowa District Court, on behalf of all
persons who owned an insurance policy issued by Allied Mutual
Insurance Company and held that policy on February 18, 1993.
The Court will hold the at 9:00 a.m. on October 7, 2005, at the
Polk County Courthouse, 500 Mulberry Street, Des Moines, IA,
50309.
The Plaintiffs and the class are represented by the law firms of
Adkins, Kelston & Zavez, P.C., in Boston, Massachusetts; Lane &
Waterman, LLP, in Davenport, Iowa; Barrack, Rodos & Bacine in
Philadelphia, Pennsylvania; and Brady & O'Shea, P.C., in Cedar
Rapids, Iowa.
The suit is styled, Mary M. Rieff and Terrence A. Kilburg vs.
John E. Evans, et al., No. CE35780, and is pending in the
District Court for Polk County. Thomas D. Waterman of LANE &
WATERMAN, LLP, 220 N. Main St., Suite 600, Davenport, IA, 52801-
1987 is representing the Plaintiff/s. Harold N. Schneebeck of
BROWN, WINICK, GRAVES, GROSS, BASKERVILLE & SCHOENEBAUM, P.L.C.,
666 Grand Ave., Suite 2000 Des Moines, IA, 50309-2510 and Kent
M. Forney of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,
801 Grand Ave., Suite 3700, Des Moines, IA 50309-2727, are
representing the Defendant/s.
For more details, on the settlement, call 1-800-589-7679 or
TDD/TTY: 1-866-411-6976, Web site:
http://www.alliedmutualsettlement.com.
AMERISOURCEBERGEN CORPORATION: HI Court Okays Fraud Settlement
--------------------------------------------------------------
The Hawaii Circuit Court granted final approval of the
settlement of the class action filed against AmeriSourceBergen
Corporation's subsidiary PharMerica, Inc. on behalf of consumers
who allegedly received recycled medications prior to February
2000 from a PharMerica institutional pharmacy in Honolulu,
Hawaii.
The plaintiffs alleged that it was a deceptive trade practice
under Hawaii law to sell recycled medications (i.e., medications
that had previously been dispensed and then returned to the
pharmacy) without disclosing that the medications were recycled.
There were no allegations of physical harm to any patient and
the law in Hawaii has subsequently changed to permit the use of
recycled medications under certain conditions.
In December 2004, PharMerica reached a tentative settlement of
this matter. The settlement has become final with the Hawaii
Circuit Court having approved the agreed-upon terms.
AUGUST TECHNOLOGY: Investors File Suit V. Rudolph Merger in MN
--------------------------------------------------------------
August Technology Corporation faces a class action filed in
Minnesota Superior Court, opposing its proposed merger with
Nanometrics Inc. and Rudolph Technologies, Inc. The suits also
name each of the Company's board of directors as defendants:
(1) Jeff O'Dell,
(2) James Bernards,
(3) Roger Gower,
(4) Michael Wright and
(5) Linda Hall Whitman
Two separate lawsuits that purported to be class action claims
were initially filed on February 4, 2005 and February 14,2005 on
behalf of the Company's shareholders. Both lawsuits were
brought in Minnesota State Court and claimed that the directors
had breached their fiduciary duties to the Company's
shareholders in connection with their actions in agreeing to the
proposed merger with Nanometrics Incorporated. The plaintiffs
in both actions sought various forms of injunctive relief
including an order enjoining the Company and its board of
directors from consummating the merger with Nanometrics.
The two proceedings were consolidated and heard as one case. On
April 19, 2005, the Court issued a 30-day stay of all
proceedings. On April 27, 2005, the plaintiffs scheduled a
hearing on a motion to amend the complaint. The hearing was
scheduled for June 9, 2005. On May 10, 2005 the Court issued an
order dismissing the complaint for asserting derivative claims
without complying with the rules governing derivative actions.
Thereafter the Court removed the hearing from the calendar.
On July 18, 2005, a purported shareholder class action lawsuit
asserting derivative claims was filed in Minnesota state court
against the Company and the individual members of the board
named above as well as Lynn J. Davis, who joined the board on
March 30, 2005 (the "Board"). The lawsuit claims the directors
have breached their fiduciary duties to the Company's
shareholders in connection with their actions in approving the
merger agreement with Nanometrics, Inc. and subsequently
terminating that merger agreement and entering into a new merger
agreement with Rudolph Technologies, Inc. The plaintiff seeks
various forms of injunctive relief including an order enjoining
the Company and the Board from consummating the proposed merger
with Rudolph.
The plaintiff in the lawsuit filed on July 18, 2005 is Robert
Etem, the owner of 4,200 shares of the Company's common stock.
Mr. Etem was also a plaintiff in the lawsuit described above
filed on February 14, 2005.
AVICI SYSTEMS: Parties Working on Revised NY Lawsuit Settlement
---------------------------------------------------------------
Parties submitted to the United States District Court for the
Southern District of New York documents for a revised settlement
of the securities class action filed against Avici Systems,
Inc., one or more of its underwriters of its initial public
offering (IPO) and certain of its officers and directors.
Twelve purported securities class action lawsuits were initially
filed, alleging violations of the federal securities laws,
namely:
(1) Felzen, et al. v. Avici Systems Inc., et al., C.A. No.
01-CV-3363;
(2) Lefkowitz, et al. v. Avici Systems Inc., et al., C.A.
No. 01-CV-3541;
(3) Lewis, et al. v. Avici Systems Inc., et al., C.A. No.
01-CV-3698;
(4) Mandel, et. al v. Avici Systems Inc., et al., C.A. No.
01-CV-3713;
(5) Minai, et al. v. Avici Systems Inc., et al., C.A. No.
01-CV-3870;
(6) Steinberg, et al. v. Avici Systems Inc., et al., C.A.
No. 01-CV-3983;
(7) Pelissier, et al. v. Avici Systems Inc., et al., C.A.
No. 01-CV-4204;
(8) Esther, et al. v. Avici Systems Inc., et al., C.A. No.
01-CV-4352;
(9) Zhous, et al. v. Avici Systems Inc. et al., C.A. No.
01-CV-4494;
(10) Mammen, et al. v. Avici Systems Inc., et. al., C.A. No.
01-CV-5722;
(11) Lin, et al. v. Avici Systems Inc., et al., C.A. No. 01-
CV-5674; and
(12) Shives, et al. v. Banc of America Securities, et al.,
C.A. No. 01-CV-4956.
On April 19, 2002, a consolidated amended class action
complaint, which superseded these twelve purported securities
class action lawsuits, was filed in the Court. The Complaint is
captioned "In re Avici Systems, Inc. Initial Public Offering
Securities Litigation (21 MC 92, 01 Civ. 3363 (SAS)" and names
as defendants the Company, certain of the underwriters of its
initial public offering, and certain of its officers and
directors.
The Complaint, which seeks unspecified damages, alleges
violations of the federal securities laws, including among other
things, that the underwriters of the Company's initial public
offering improperly required their customers to pay the
underwriters excessive commissions and to agree to buy
additional shares of Company stock in the aftermarket as
conditions of receiving shares in the Company's IPO. The
Complaint further claims that these supposed practices of the
underwriters should have been disclosed in the IPO prospectus
and registration statement.
In addition to the Complaint against the Company, various other
plaintiffs have filed other substantially similar class action
cases against approximately 300 other publicly traded companies
and their IPO underwriters in New York City, which along with
the case against the Company have all been transferred to a
single federal district judge for purposes of case management.
On July 15, 2002, the Company, together with the other issuers
named as defendants in these coordinated proceedings, filed a
collective motion to dismiss the consolidated amended complaints
against them on various legal grounds common to all or most of
the issuer defendants. On October 9, 2002, the Court dismissed
without prejudice all claims against the individual current and
former officers and directors who were named as defendants in
the Company litigation, and they are no longer parties to the
lawsuit. On February 19, 2003, the Court issued its ruling on
the motions to dismiss filed by the issuer defendants and
separate motions to dismiss filed by the underwriter defendants.
In that ruling, the Court granted in part and denied in part
those motions.
As to the claims brought against Avici under the antifraud
provisions of the securities laws, the Court dismissed all of
these claims with prejudice, and refused to allow the plaintiffs
an opportunity to re-plead these claims against the Company. As
to the claims brought under the registration provisions of the
securities laws, which do not require that intent to defraud be
pleaded, the Court denied the motion to dismiss these claims as
to the Company and as to substantially all of the other issuer
defendants as well. The Court also denied the underwriter
defendants' motion to dismiss in all respects.
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 the 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. The proposed settlement does not provide for the
resolution of any claims against the underwriter defendants, and
the litigation as against those defendants is continuing. The
proposed settlement provides that the class members in the class
action cases brought against the participating issuer defendants
will be guaranteed a recovery of $1 billion by insurers of the
participating issuer defendants. If recoveries totaling $1
billion or more are obtained by the class members from the
underwriter defendants, however, the monetary obligations to the
class members under the proposed settlement will be satisfied.
In addition, the Company and any other participating issuer
defendants will be required to assign to the class members
certain claims that they may have against the underwriters of
their IPOs.
The proposed settlement contemplates that any amounts necessary
to fund the settlement or settlement-related expenses would come
from participating issuers' directors and officers liability
insurance policy proceeds as opposed to funds of the
participating issuer defendants themselves. A participating
issuer defendant could be required to contribute to the costs of
the settlement if that issuer's insurance coverage were
insufficient to pay that issuer's allocable share of the
settlement costs.
Consummation of the proposed settlement is conditioned upon
obtaining both preliminary and final approval by the Court.
Formal settlement documents were submitted to 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. In response to
this order, the plaintiffs and the issuer defendants are in the
process of submitting revised settlement documents to the Court.
The underwriter defendants may 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 and mailed to all proposed class members. It will also
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.
BINGHAM CAPITAL: SEC Sues Firm, Institutes Proceedings V. Trader
----------------------------------------------------------------
The Securities and Exchange Commission filed a complaint in the
United States District Court for the Northern District of
Georgia against Barry Alan Bingham and Bingham Capital
Management Corporation.
The Commission's complaint alleges that, from approximately
April 2001 to approximately November 2002, Mr. Bingham used
misrepresentations and omissions of material fact to defraud at
least 22 investors in Bingham Growth Partners, L.P. (Growth
Partners), a hedge fund that Mr. Bingham created and managed
through Capital Management, an unregistered investment adviser.
The complaint further alleges that, over the lifetime of Growth
Partners, Mr. Bingham offered and sold at least $1,826,218 worth
of shares in the Fund, at least $459,483 worth of which were
offered and sold on the basis of Mr. Bingham's representations
to investors about the Fund's past returns. Additionally, the
complaint alleges that, between July 2001 and November 2002, Mr.
Bingham misappropriated approximately $141,637 of Growth
Partners' assets, including as much as $34,638 in client assets
as "soft dollar credits" generated from Growth Partners' trading
commissions. The complaint alleges that, by November 2002, the
assets of Growth Partners had been wholly depleted by a
combination of Mr. Bingham's trading losses and his
misappropriations.
The Commission charged Mr. Bingham and Capital Management with
violating of Section 17(a) of the Securities Act of 1933 and
Section 10(b) of the Securities Exchange Act of 1934 and Rule
10b-5 thereunder, and Sections 206(1) and (2) of the Investment
Advisers Act. The Commission seeks against Mr. Bingham and
Capital Management permanent injunctive relief from future
violations, disgorgement of ill-gotten gains with prejudgment
interest, and civil penalties.
Also, on August 23, the Commission announced the issuance of an
Order Instituting Administrative Proceedings Pursuant to Section
15(b) of the Securities Exchange Act of 1934 and Section 203(f)
of the Investment Advisers Act of 1940 against Bingham based on
his criminal conviction in U.S. v. Barry Bingham, 1:05-CR-0184-
BBM (N.D. Ga.).
In the Order, the SEC's Division of Enforcement alleges that, on
April 28, 2005, Bingham entered a plea of guilty to a single
count of felony securities fraud in violation of Title 15 of the
United States Code, Sections 78j(b) and 78j(ff). The criminal
information to which Mr. Bingham pled guilty alleged that, from
in or about September 2001 through in or about August 2002,
Bingham fraudulently induced various individuals to invest in
Growth Partners. On June 30, 2005, Mr. Bingham was sentenced to
12 months and one day in prison followed by three years of
supervised release, fined $1,000, and ordered to pay criminal
restitution of $105,572.00.
The Division of Enforcement further alleges that, during a
portion of his misconduct, from approximately August 2000
through November 2002, Mr. Bingham, individually and acting
through Capital Management, engaged for compensation in the
business of advising clients on investing in securities.
Bingham was also associated with a broker-dealer registered with
the Commission from approximately April 2002 through at least
November 2002.
A hearing will be scheduled before an administrative law judge
to determine whether the allegations contained in the Order are
true, to provide Mr. Bingham an opportunity to respond to these
allegations, and to determine what sanctions, if any, are
appropriate in the public interest. The Order requires the
Administrative Law Judge to issue an initial decision no later
that 210 days from the date of service of this Order, pursuant
to Rule 360(a)(2) of the Commission's Rules of Practice. (In the
Matter of Barry Alan Bingham - Rel. 34-52318; File No. 3-12015)
The suit is styled, SEC v. Barry Alan Bingham and Bingham
Capital Management Corporation, Civil Action No. 1:05-CV-2187,
NDGA Aug. 23, 2005. (LR-19345)
CANADA: Ontario Judge Allows SARS Suit V. Province to Proceed
-------------------------------------------------------------
An Ontario judge recently ruled that two lawsuits launched over
Ontario's handling of the SARS crisis two years ago could
proceed, The CBC News reports. Court papers reveal that both
lawsuits charge that the government put the province's economic
interests ahead of the safety of its nurses.
One of the suits is a $600 million class action by Andrea
Williams, a nurse who became infected with SARS on the verge of
a second outbreak in May 2003. Ms. Williams was exposed to
severe acute respiratory syndrome (SARS) while undergoing a
surgical procedure at North York General Hospital in Toronto.
In that suit, Ms. Williams seeks compensation from the city of
Toronto, the province of Ontario and the Canadian federal
government alleging that health officials prematurely declared
an end to the deadly disease in early May. Specifically, the
suit charges the defendants with negligence, as hundreds of
people were allegedly exposed to the disease during what Ms.
Williams' lawyers have dubbed "SARS 2" - the period between
April 20 and July 31, 2003, an earlier Class Action Reporter
story (February 25, 2004) reports. Ms Williams is seeking up to
$449 million, in compensation, which is the equivalent of 600
million Canadian dollars.
Patricia LeFebour, one Ms. William's attorneys, said that her
client wore a mask when admitted to the hospital, but alleges
that in the recovery room, she wasn't given one. "Because of her
training as a registered practical nurse, she was concerned that
certain protocols weren't followed by other medical staff, most
notably the wearing of masks," Ms. LeFebour told the Globe and
Mail.
The other lawsuit is a $12 million suit brought by the family of
nurse Nelia Laroza, who died in June. Ms. Laroza was an
orthopedic nurse at the same hospital. Like Ms Williams, Ms.
Laroza became infected during a second wave of the disease.
CENTERPLATE INC.: Parties To Enter Mediation in CA Overtime Suit
----------------------------------------------------------------
Parties in the class action filed against Centerplate, Inc. in
the California Superior Court for Orange County, styled "Holden
v. Volume Services America, Inc. et al." agreed to enter
mediation for the suit.
A former employee at one of the California stadiums the Company
serves initially filed the suit in California state court,
alleging violations of local rules relating to overtime wage,
rest and meal period and related laws with respect to this
employee and others purportedly similarly situated at any and
all of the facilities the Company serves in California. The
Company had removed the case to the United States District Court
for the Central District of California, but in November 2003 the
court remanded the case back to the California Superior Court.
The purported class action seeks compensatory, special and
punitive damages in unspecified amounts, penalties under the
applicable local laws and injunctions against the alleged
illegal acts.
The parties have agreed to non-binding mediation in September
2005. The Company believes its business practices are, and were
during the period alleged, in compliance with the law.
In August 2004, a second purported class action, Perez v. Volume
Services Inc, d/b/a Centerplate," was filed in the Superior
Court for Yolo County, California. "Perez" makes substantially
identical allegations to those in "Holden." Consequently, the
Company demurred and the case was stayed on November 9, 2004
pending the resolution of "Holden." As in "Holden," the Company
believes that its business practices are, and were during the
period alleged in "Perez," in compliance with the law.
COOPER TIRE: Recalls 48,949 Tires Due to Defect, Crash Hazard
-------------------------------------------------------------
Cooper Tire & Rubber Co. in cooperation with the National
Highway Traffic Safety Administration's Office of Defects
Investigation (ODI) is voluntarily recalling about 48,949 units
of Dean Alpha 365 A/S, Mastercraft A/S IV, Starfire Flite-Line
IV, Trensetter SE tires due to defect and crash hazard. NHTSA
CAMPAIGN ID Number: 05T015000.
According to the ODI, certain of the tires specifically on sizes
P195/70R14 and P185/65R14, manufactured between November 21,
2004 and May 14, 2005, can lose air pressure causing the tires
to run under-inflated. An under-inflated condition will cause
the tire to wear prematurely and result in an early failure.
Should the tire fail while the vehicle is in use, a vehicle
crash could occur.
As a remedy Cooper tire will replace the affected tires free of
charge. The recall is expected to begin during August 2005.
For more details, contact NHTSA Auto Safety Hotline:
1-888-327-4236 or (TTY) 1-800-424-9153, Web site:
http://www.safecar.gov.
eFUNDS CORPORATION: Reaches Settlement For AZ Securities Lawsuit
----------------------------------------------------------------
eFunds Corporation reached a settlement for the consolidated
securities class action filed against it, its former chief
executive and two of its former chief financial officers in the
U.S. District Court for the District of Arizona.
The Consolidated Amended Complaint (Complaint) filed in this
Action alleged, among other things, that during the period from
July 21, 2000 through October 24, 2002 the defendants made false
and misleading statements and omissions of material facts and
that the plaintiff and other members of a putative class of
shareholders suffered damages as a result.
This Complaint was dismissed by order of the Court in July 2004.
The plaintiffs appealed this order of dismissal to the Ninth
Circuit Court of Appeals in August 2004. At the request of the
parties, the Court vacated the original briefing schedule of
this appeal and the Court has not established a new briefing
schedule. The plaintiffs and the defendants in this action have
reached a tentative settlement of this matter under which the
defendants would pay the purported class $2.55 million. The
tentative settlement is subject to initial documentation,
confirmatory discovery, final documentation and approval by the
Court.
FLORIDA: Residents to Get Windfall From Incinerator Suit
--------------------------------------------------------
Nora Williams will soon get a payout from the city to move away
from the Northwest Jacksonville home she's lived in for 30
years, a home that's right next to Brown's Dump, where toxic ash
from the city's old incinerators is buried.
Mrs. Williams along with her six children have all had health
problems and she estimates she's lost a dozen pets due to the
alleged contamination. She told First Coast News, "At one point
I was believing that someone was poisoning the animals. And in a
sense they were being poisoned."
Court documents revealed that the payout is part of the $75
million settlement the city struck with some 4,500 residents who
are part of a class action lawsuit claiming they were exposed to
toxic ash from Jacksonville's now-demolished incinerators.
Under the proposed settlement, the Families would receive about
$17,000 each on average, however money will be awarded on a
points system, based on length of exposure to the toxins, among
other factors. City Council too still needs to approve the
settlement plan before any payout is made.
GENERAL REINSURANCE: Asks TN Court To Dismiss Lawsuits V. ROA
-------------------------------------------------------------
General Reinsurance Corporation asked the United States District
Court for the Western District of Tennessee to dismiss the ten
lawsuits filed against it by doctors, hospitals and lawyers that
purchased insurance through Reciprocal of America (ROA) or
certain of its Tennessee-based risk retention groups. These
complaints seek compensatory, treble, and punitive damages in an
amount plaintiffs contend is just and reasonable.
Seven complaints were initially filed. The Company is also
subject to actions brought by the Virginia Commissioner of
Insurance, as Deputy Receiver of ROA, the Tennessee Commissioner
of Insurance, as Liquidator for three Tennessee risk retention
groups, and a federal lawsuit filed by a Missouri-based hospital
group.
The first of these actions was filed in March 2003 and
additional actions were filed in April 2003 through July 2004.
In the action filed by the Virginia Commissioner of Insurance,
the Commissioner asserts in several of its claims that the
alleged damages being sought exceed $200 million in the
aggregate as against all defendants. These ten cases are
collectively assigned to the U.S. District Court for the Western
District of Tennessee for pretrial proceedings. The Company has
filed motions to dismiss all of the claims against it in these
ten cases and the court has not yet ruled on these motions. No
discovery has been initiated in these cases.
The suit is styled "In Re Reciprocal of America (ROA) Sales
Practices Litigation, case no. 2:04-md-01551-JDB," filed in the
United States District Court for the Western District of
Tennessee under Judge J. Daniel Breen. Representing the
plaintiffs are:
(1) Jere L. Beasley, BEASLEY ALLEN CROW METHVIN PORTIS &
MILES, P.O. Box 4160, Montgomery, AL 36103-4160, Phone:
334-269-2343
(2) Patrick H. Cantilo, CANTILO & BENNETT LLP, 7501-C North
Capital Of Texas Highway, Ste. 200, Austin, TX 78731,
Phone: 512-478-6000, Fax: 512-404-6550, E-mail:
phcantilo@cb-firm.com
(3) William H. Farmer, FARMER & LUNA, 333 Union St., Ste.
300, Nashville, TN 37201, Phone: 615-254-9146, Fax:
615-254-7123, E-mail: bfarmer@farmerluna.com
(4) Jef Feibelman, BURCH PORTER & JOHNSON, 130 N. Court
Avenue, Memphis, TN 38103, Phone: 901-524-5000, Fax:
901-524-5024
(5) Jonathan P. Lakey, PIETRANGELO COOK, 6410 Poplar
Ste. 190, Memphis, TN 38119, Phone: 901-685-2662, Fax:
901-685-6122, E-mail: jlakey@pietrangelocook.com
(6) Robert G. Methvin, Jr., MCCALLUM & METHVIN, PC, The
Highland Building, 2201 Arlington Ave., S. Birmingham,
AL 35205, Phone: 205-939-0199, Fax: 205-939-0399, E-
mail: rgm@mmlaw.net
(7) B. J. Wade, GLASSMAN EDWARDS WADE & WYATT, P.C., 26 N.
Second Street, Memphis, TN 38103, Phone: 901-527-4673,
Fax: 901-521-0940,
GENERAL REINSURANCE: Asks AL Court To Dismiss Conspiracy Lawsuit
----------------------------------------------------------------
General Reinsurance Corporation asked the Circuit Court of
Montgomery County Alabama to dismiss the consolidated class
action filed against it by a group of Alabama hospitals.
Two suits were initially filed against the Company. The first
suit was filed in the Circuit Court of Montgomery County by a
group of Alabama hospitals that are former members of the
Alabama Hospital Association Trust (AHAT). This suit alleged
violations of the Alabama Securities Act, conspiracy, fraud,
suppression, unjust enrichment and breach of contract against
the Company and virtually all of the defendants in the federal
suits based on an alleged business combination between AHAT and
Reciprocal of America (ROA) in 2001 and subsequent capital
contributions to ROA in 2002 by the Alabama hospitals. The
allegations of the AHA Action are largely identical to those set
forth in the complaint filed by the Virginia receiver for ROA.
The Company previously filed a motion to dismiss all of the
claims in the AHA Action. The motion was granted in part by an
order in March 2005, which dismissed the Alabama Securities Act
claim against the Company and ordered plaintiffs to amend their
allegations of fraud and suppression.
Plaintiffs in the AHA Action filed their Amended and Restated
Complaint in April 2005, alleging claims of conspiracy, fraud,
suppression and aiding and abetting breach of fiduciary duty
against the Company. The Company filed a motion to dismiss all
counts of the Amended and Restated Complaint in May 2005. The
Special Master appointed by the court heard arguments on July
13, 2005 and recommended denial of the motion on July 22, 2005.
The second suit, also filed in the Circuit Court of Montgomery
County, was initiated by Baptist Health Systems, Inc., a former
member of AHAT, and alleged claims identical to those in the
initial AHA Complaint, plus claims for breach of fiduciary duty
and wantonness. These cases have been consolidated for pretrial
purposes. Baptist filed its First Amended Complaint in April
2005, alleging violations of the Alabama Securities Act,
conspiracy, fraud, suppression, breach of fiduciary duty,
wantonness and unjust enrichment against the Company.
The Company filed a motion to dismiss all counts of the Amended
and Restated Complaint in May 2005. The Special Master heard
arguments on July 13, 2005 and on July 22, 2005, recommended
dismissal of the claim under the Alabama Securities Act, but
recommended denial of the motion to dismiss the remaining
claims. The AHA Action and the Baptist action claim damages in
excess of $60 million in the aggregate as against all
defendants.
GENERAL REINSURANCE: Faces Consolidated Amended Securities Suit
---------------------------------------------------------------
General Reinsurance Corporation faces a consolidated amended
class action filed in the United States District Court for the
Southern District of New York, styled "In re American
International Group Securities Litigation, Case No. 04-CV-8141-
(LTS)."
The suit is a putative class action asserted on behalf of
investors who purchased publicly-traded securities of American
International Group (AIG) between October 1999 and March 2005.
The Company and its former Chief Executive Officer Ronald
Ferguson are identified as defendants in this matter. The
Complaint alleges that AIG and certain other defendants violated
federal securities laws, but does not assert any causes of
action against the Company or Mr. Ferguson. Plaintiffs' counsel
in this action have filed a motion for leave to amend their
Complaint.
On June 7, 2005, the Company received a second Summons and Class
Action Complaint in a putative class action asserted on behalf
of investors who purchased AIG securities between October 1999
and March 2005, captioned "San Francisco Employees' Retirement
System, et al. vs. American International Group, Inc., et al.,
Case No. 05-CV-4270," United States District Court, Southern
District of New York. The Complaint alleges that AIG and
certain other defendants violated federal securities laws, and
that the Company aided and abetted securities fraud or conspired
to violate federal securities laws.
Both actions have been assigned to the same judge. At a July
2005 conference, the court ruled that the plaintiffs in case no.
04-CV-8141 would be lead plaintiffs. The court has not yet ruled
on those plaintiffs' motion for leave to amend their complaint,
nor has the court established a schedule for responses to the
complaint or any other further proceedings.
The suit is styled "IN RE American International Group, Inc
Securities Litigation, case no. 1:04-cv-08141-JES," filed in the
United States District Court for the Southern District of New
York, under Judge John E. Sprizzo. Representing the plaintiffs
are Thomas A. Dubbs of Goodkind Labaton Rudoff & Sucharow LLP,
100 Park Avenue, New York, NY 10017, Phone: 212-907-0700, Fax:
212-818-0477, E-mail: tdubbs@glrslaw.com; and Louis Gottlieb,
Goldman Gruder & Wood, 200 Connecticut Avenue, Norwalk, CT
06854, Phone: (212) 907-0872, Fax: (212) 883-7072, E-mail:
lgottlieb@glrslaw.com. Representing the Company are Steven Ian
Froot of Boies, Schiller & Flexner, LLP, 570 Lexington Avenue,
New York, NY 10022, Phone: (212)-446-2300, Fax: (212)-446-2350,
E-mail: sfroot@bsfllp.com; and George Abraham Zimmerman,
Skaddden, Arps, Slate, Meagher & Flom LLP (NYC), Four Times
Square, New York, NY 10036, Phone: (212) 735-2000 x2047, Fax:
(212)735-2000, E-mail: gzimmerm@skadden.com.
GIRARDIN MINIBUS: Recalls Buses For FMVSS No. 221 Noncompliance
-------------------------------------------------------------
Girardin Minibus Inc. in cooperation with the National Highway
Traffic Safety Administration's Office of Defects Investigation
(ODI) is voluntarily recalling about 10 units of 2003-05 MB II
and 2003-05 MB IV buses due to crash hazard. NHTSA CAMPAIGN ID
Number: 05V365000.
According to ODI, on certain 2003 through 2004 school buses that
were manufactured between August 17 and October 29, 2004, The
amount of adhesive applied to the roof seams is inadequate for
the type of adhesives used which fails to comply with the
requirements of Federal Motor Vehicle Safety Standard No. 221,
"School Bus Body Joint Strength."
For more details, contact NHTSA Auto Safety Hotline:
1-888-327-4236 or (TTY) 1-800-424-9153, Web site:
http://www.safecar.gov.
GUAM: Mike Phillips Says $60M EITC Settlement Still in Effect
-------------------------------------------------------------
A $60 million tax settlement agreed upon last year remains in
effect until a renegotiated $90 million settlement is approved
in federal court, attorney Mike Phillips told Attorney General
Douglas Moylan recently, The Pacific Daily News reports.
Mr. Phillips responded to an ultimatum by A.G. Moylan, who
wanted to know which agreement he intends to follow, since Mr.
Phillips signed both. Delaying the payments will cost the
government more money, according to A.G. Moylan. Mr. Phillips
represents low-income taxpayer Julie Santos and others in a
class action lawsuit to force the government to pay the Earned
Income Tax Credit to eligible taxpayers. Taxpayers have been
unable to claim the tax credit, which is for the working poor,
for more than a decade after the Carl Gutierrez administration
determined it was an un-funded federal mandate.
Though the policy of denying the tax credit continued into the
current administration, Lieutenant Governor Kaleo Moylan and the
attorney general signed a $60 million settlement with Mr.
Phillips last year. It would pay taxpayers about half what they
are owed and allow them to claim the tax credit from now on.
However, Gov. Felix Camacho objected to the terms of the
agreement and negotiated a new $90 million deal with Mr.
Phillips in June that includes two additional tax years and
which names a specific funding source, 15 percent of the money
set aside for tax refunds each year. Mr. Phillips previously
stated that the new agreement provides full compensation for
recent tax years and reduced compensation for past tax years.
The attorney general though objected to the higher settlement
saying that it places a greater financial burden on the
government.
Two federal court judges decided that the governor, and not the
attorney general, has the authority to administer territorial
tax issues. Mr. Phillips thus noted those decisions in his
recent response to A.G. Moylan. Specifically, Mr. Philips wrote,
"In light of the district court's recent decisions and orders, I
am not sure of your authority to now demand the earlier
settlement agreement govern. Instead of threatening the EITC
class, you should address your concerns to the governor."
Julie Babauta Santos, represented by Mr. Phillips, filed a class
action lawsuit in February 2004 to force the government to pay
up and to resume yearly payments of the ETIC, which was
suspended by the government since 1998, an earlier Class Action
Reporter story (July 20, 2004) reports.
The government then agreed to a settlement and promised to pay
about half of what is currently owed over the next nine years
and by agreeing to pay the tax credits in full from now on. The
tax credit, which was created in 1973, is an incentive for the
working poor. The settlement would pay about $60 million, about
half of the estimated $120 million owed to taxpayers.
Gov. Camacho had originally filed documents in the District
Court of Guam opposing the settlement with concerns that making
a payment commitment would violate the Illegal Expenditures Act.
However, Magistrate Judge Joaquin Manibusan recently signed an
order approving the request by the parties to enter mediation.
HOMESTORE INC.: CA Court Approves Overtime Wage Suit Settlement
---------------------------------------------------------------
The Los Angeles Superior Court in California granted preliminary
approval to the settlement of the class action field against
Homestore, Inc., alleging that the Company misclassified account
executives as exempt from overtime wage requirements in
violation of California law.
In September 2004, Elizabeth Hathaway filed a class action
lawsuit on behalf of herself and all current and former account
executives employed by the Company, seeking back wages, interest
and attorneys' fees.
On March 11, 2005, Ms. Hathaway and the Company reached a
settlement for an additional $1.4 million. The court
preliminarily approved the settlement on June 23, 2005. The
settlement is subject to final court approval and certain
conditions, such as a cap on the number of class members who may
elect to opt out.
HOMESTORE INC.: Asks NY Court To Dismiss AOL Securities Lawsuit
---------------------------------------------------------------
Homestore, Inc. asked the United States District Court for the
Southern District of New York to dismiss it from the class
action styled "Stichting Pensioenfonds ABP v. AOL Time Warner.
et. al."
The case was originally filed in July 2003 in the United States
District Court for the Southern District of New York against
Time Warner (formerly, AOL Time Warner), current and former
officers and directors of Time Warner and America Online, Inc.
(AOL), and Time Warner's outside auditor alleging that Time
Warner and AOL made material misrepresentations and/or omissions
of material fact in connection with the business of AOL both
before and after the merger of AOL and Time Warner in violation
of federal securities laws and constituting common law fraud and
negligent misrepresentation.
In adding the Company as a defendant, the plaintiff, a Dutch
pension fund, alleges that the Company and four other third
parties with whom AOL did business and who are also named as
defendants, aided and abetted the alleged common law fraud and
themselves engaged in common law fraud as part of a civil
conspiracy. The allegations against the Company, which are based
on the factual allegations in the first amended consolidated
class action complaint and other filings in the Company's
Securities Class Action Lawsuit, are that certain former
officers of the Company knew of the alleged fraud at AOL and
knowingly participated in and substantially assisted that
alleged fraud by negotiating, structuring and participating in
numerous "triangular" round trip transactions with AOL and
others. The plaintiff seeks an unspecified amount of
compensatory and punitive damages.
HONOLULU FORD: Settles HI Suit Over License, Documentation Fees
---------------------------------------------------------------
Honolulu Ford Inc. could provide as much as $1.6 million in in-
kind services to settle a class action lawsuit involving license
and documentation fees that the auto dealership charged
thousands of customers, according to a proposed settlement, The
Honolulu Star-Bulletin reports.
Though still requiring approval by state Circuit Judge Sabrina
McKenna, the settlement would provide certificates redeemable
for about $117 in maintenance services to as many as 14,100
customers who bought cars and trucks from the dealership between
1999 and 2005.
The settlement came after Judge McKenna rejected several
allegations made under plaintiff Candy Silva's overarching claim
that the dealership's license and documentation fees were unfair
and deceptive. In addition to rejecting several of the
allegations, the judge also eliminated class action status for
most of the case, thus other customers seeking to make those
claims would have had to sue individually.
Judge McKenna's earlier rulings left intact a specific claim
that the two fees are unfair and deceptive because they are
duplicative. The judge's rulings also left standing allegations
that Honolulu Ford never studied the paperwork-processing costs
that the documentation fee supposedly covered and unfairly
deceived customers into thinking the documentation fee was
mandatory when it was not.
Under the proposed settlement, customers will receive
certificates redeemable for: a free oil change, tire rotation,
brake inspection and safety inspection. The certificates though
are redeemable only for new vehicles bought from the dealership.
Honolulu Ford's attorney, Gary Grimmer told Honolulu Star-
Bulletin that the dealership agreed to settle the suit since it
would cost less than continuing to fight the lawsuit and that
the dealership wanted to assure customers of its commitment to
honesty and quality service.
Judge McKenna recently gave preliminary approval to the
settlement with a hearing for final approval is scheduled for
next month. Customers who want to opt out of the settlement
have until early September to contact plaintiffs' attorneys
George Van Buren and Paul Alston.
KMART CORPORATION: SEC Files Financial Fraud Suit V. Ex-CEO, CFO
----------------------------------------------------------------
The Securities and Exchange Commission filed charges against two
former top Kmart executives for misleading investors about
Kmart's financial condition in the months preceding the
company's bankruptcy. According to the Commission's complaint,
former Chief Executive Officer Charles C. Conaway and former
Chief Financial Officer John T. McDonald are responsible for
material misrepresentations and omissions about the company's
liquidity and related matters in the Management's Discussion and
Analysis (MD&A) section of Kmart Corporation's Form 10-Q for the
third quarter and nine months ended October 31, 2001, and in an
earnings conference call with analysts and investors.
The Commission alleges that, in the MD&A section, Mr. Conaway
and Mr. McDonald failed to disclose the reasons for a massive
inventory overbuy in the summer of 2001 and the impact it had on
the company's liquidity. For example, the MD&A disclosure
attributed increases in inventory to "seasonal inventory
fluctuations and actions taken to improve our overall in-stock
position." The Commission alleges that this disclosure was
materially misleading because, in reality, a significant portion
of the inventory buildup was caused by a Kmart officer's
reckless and unilateral purchase of $850 million of excess
inventory. According to the complaint, the defendants dealt with
Kmart's liquidity problems by slowing down payments owed
vendors, thereby effectively borrowing $570 million from them by
the end of the third quarter. According to the complaint, Mr.
Conaway and Mr. McDonald lied about why vendors were not being
paid on time and misrepresented the impact that Kmart's
liquidity problems had on the company's relationship with its
vendors, many of whom stopped shipping product to Kmart during
the fall of 2001. Kmart filed for bankruptcy on January 22,
2002.
The Commission's complaint, which was filed in the United States
District Court for the Eastern District of Michigan, charges Mr.
Conaway and Mr. McDonald with violating Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and
aiding and abetting violations of Sections 10(b) and 13(a) of
the Exchange Act and Rules 10b-5, 13a-13, and 12b-20 thereunder
by Kmart, and seeks as relief permanent injunctions,
disgorgement with prejudgment interest, civil penalties and
officer and director bars.
The Commission acknowledges the assistance of the United States
Attorney's Office for the Eastern District of Michigan and the
Federal Bureau of Investigation. The SEC's Kmart investigation
is continuing. The suit is styled, SEC v. Charles C. Conaway
and John T. McDonald, Jr., 05 Civ. 40263, P. Gadola, J., E.D.
Michigan, filed August 23, 2005. (LR-19344; AAER-2295)
LAMPLIGHT FARMS: Recalls Torches, Canisters Due to Fire Hazard
--------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), Lamplight Farms Inc., of Menomonee Falls, Wisconsin is
voluntarily recalling about 963,000 units of Tikir Bamboo
Torches and about 18,000 Replacement Fuel Canisters.
The surface coating of some flame guards on these bamboo torches
and replacement canisters can absorb the fuel and ignite. This
can cause the torch and nearby combustibles to catch on fire,
posing a risk of burn injuries and property damage. Lamplight
Farms has received 33 reports of torches catching on fire. There
were six reports of minor injuries and nine reports of minor
property damage.
These 5-foot-tall Tikir bamboo torches consist of a bamboo pole
with a weaved basket at the top and a metal flame guard, which
is a circular black piece that holds the wick in place and
attaches to the fuel canister. The recall includes the Tikir
Beachcomber, Seagrass and Sandpiper model torches. The recall
also involves replacement canisters that have the metal flame
guards. Recalled units have the following UPC numbers:
086861010372 (Beachcomber), 086861013335 (Seagrass),
086861010457 (Sandpiper) and 076354995262 (Replacement
Canister). The UPC number and the model name are written on the
packaging or attached tag.
Manufactured in China, the torches and replacement canisters
were sold at Wal-Mart, The Home Depot, Lowe's and other home and
hardware stores nationwide from December 2004 through July 2005
for between $5 and $6. The replacement canisters were sold for
about $1.40.
Consumers should immediately stop using these torches and
contact Lamplight Farms to determine if they are included in the
recall. If so, they will receive free replacement flame guards.
Consumer Contact: Call Lamplight Farms toll-free at
(866) 239-6664 anytime, Web site: http://www.lamplightfarms.com.
LEADIS TECHNOLOGY: CA Court Consolidates Securities Fraud Suit
--------------------------------------------------------------
The United States District Court for the Northern District of
California consolidated the securities class actions filed
against Leadis Technology, Inc., certain of its officers and its
directors.
On March 2, 2005, a purported securities class action suit was
filed, alleging the defendants violated Sections 11 and 15 of
the Securities Exchange Act of 1933 by making allegedly false
and misleading statements in the company's registration
statement and prospectus filed on June 16, 2004 for the
Company's initial public offering. The complaint seeks
unspecified damages on behalf of a class of purchasers that
acquired shares of the Company's common stock pursuant to the
Company's registration statement and prospectus. The claims
appear to be based on allegations that at the time of the IPO
demand for the company's OLED (color organic light-emitting
diodes) products was already slowing and that the company failed
to disclose that it was engaging in overshipments of its OLED
product. A similar additional action was filed on March 11,
2005.
LIONBRIDGE TECHNOLOGIES: Parties Submit Revised Suit Settlement
---------------------------------------------------------------
Parties in the securities class action filed against Lionbridge
Technologies, Inc. are revising the settlement for the suit,
which is pending in the United States District Court for the
Southern District of New York and is styled "Samet v. Lionbridge
Technologies, Inc. et al." (01-CV-6770)."
The suit also names as defendants certain of its officers and
directors, and certain underwriters involved in the Company's
initial public offering. The complaint in this action asserted,
among other things, that the Company's initial public offering
registration statement contained misstatements and/or omissions
regarding the underwriters' alleged conduct in allocating shares
in the Company's initial public offering to the underwriters'
customers. In March 2002, the United States District Court for
the Southern District of New York entered an order dismissing
without prejudice the claims against the Company and its
officers and directors (the case remained pending against the
underwriter defendants).
On April 19, 2002, the plaintiffs filed an amended complaint
naming as defendants not only the underwriter defendants but
also the Company and certain of its officers and directors. The
amended complaint asserts claims under both the registration and
antifraud provisions of the federal securities laws relating to,
among other allegations, the underwriters' alleged conduct in
allocating shares in the Company's initial public offering and
the disclosures contained in the Company's registration
statement.
The Company understands that various plaintiffs have filed
approximately 1,000 lawsuits making substantially similar
allegations against approximately 300 other publicly traded
companies in connection with the underwriting of their public
offerings. On July 15, 2002, the Company together with the
other issuers named as defendants in these coordinated
proceedings, filed a collective motion to dismiss the complaint
on various legal grounds common to all or most of the issuer
defendants. In October 2002, the claims against officers and
directors were dismissed without prejudice.
In February 2003, the Court issued its ruling on the motion to
dismiss, ruling that the claims under the antifraud provisions
of the securities laws could proceed against the Company and a
majority of the other issuer defendants. 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 other of the 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.
The proposed settlement does not provide for the resolution of
any claims against underwriter defendants, and the litigation as
against those defendants is continuing. The proposed settlement
provides that the class members in the class action cases
brought against the participating issuer defendants will be
guaranteed a recovery of $1 billion by insurers of the
participating issuer defendants. If recoveries totaling $1
billion or more are obtained by the class members from the
underwriter defendants, however, the monetary obligations to the
class members under the proposed settlement will be satisfied.
In addition, Lionbridge and any other participating issuer
defendants will be required to assign to the class members
certain claims that they may have against the underwriters of
their IPOs. The proposed settlement contemplates that any
amounts necessary to fund the settlement or settlement-related
expenses would come from participating issuers' directors and
officers liability insurance policy proceeds as opposed to funds
of the participating issuer defendants themselves. A
participating issuer defendant could be required to contribute
to the costs of the settlement if that issuer's insurance
coverage were insufficient to pay that issuer's allocable share
of the settlement costs.
Consummation of the proposed settlement is conditioned upon
obtaining both preliminary and final approval by the Court.
Formal settlement documents were submitted to 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, have filed an opposition to
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. In
response to this order, the plaintiffs and the issuer defendants
are in the process of submitting revised settlement documents to
the Court. The underwriter defendants may 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 and mailed to all proposed class members. It will also
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 "Samet v. Lionbridge Technologies, Inc. et
al. (01-CV-6770)," related to "In re Initial Public Offering
Securities Litigation, 21-MC-92 (Sas)," filed in the United
States District Court for the Southern District of New York,
under Judge Shira A. 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, 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, newyork@whafh.com
MACATAWA BANK: Faces Several Suits V. Trade Partners Viaticals
--------------------------------------------------------------
Macatawa Bank Corporation faces several class actions related to
its acquisition of Trade Partners, Inc. of the former Grand
Bank, which is involved in purchasing and selling interests in
viaticals which are interests in life insurance policies of the
terminally ill or elderly.
A lawsuit was filed in April 2003 by John and Kathryn Brand in
Oklahoma state court against Grand Bank, the Company, Trade
Partners and certain individuals and entities associated with
Trade Partners. The complaint seeks damages for the asserted
breach of certain escrow agreements for which Grand Bank served
as custodian and escrow agent. The Company and Grand Bank have
answered this complaint, denying the material allegations and
raising certain affirmative defenses. The trial court had
entered an order in February 2005 staying this case, but the
stay order was reversed on appeal in May 2005. No trial date has
yet been set.
In May 2003, a purported class action complaint was filed by
Forrest W. Jenkins and Russell S. Vail against the Company and
against LaSalle Bank Corporation in the United States District
Court for the District of Western Michigan. The purported class
included investors who invested in limited liability companies
formed by Trade Partners. On November 6, 2003, the court
permitted the plaintiffs to amend their complaint to expand the
purported class to include all individuals who invested in Trade
Partners viatical investments. The class has not been
certified. The court had stayed this action to avoid
interference with the process of the receivership proceedings,
but the stay was lifted in July 2005. The plaintiffs allege
that Grand Bank breached certain escrow agreements, breached its
fiduciary duties, acted negligently or grossly negligently with
respect to the plaintiff's investments and violated the Michigan
Uniform Securities Act. The amended complaint seeks
certification of the action as a class action, unspecified
damages and other relief.
In late July 2005 counsel to the Trade Partners Receiver filed
another purported class action on behalf of Kelly Priest and
certain trusts controlled by Gary Towle and his wife, making
substantially the same allegations as in the Jenkins complaint
but on behalf of a class which is asserted to comprise all
investors who are holders of allowed claims in the Trade
Partners receivership.
MERCK & CO.: 20 New Zealanders Plan to Join Lawsuit Over Vioxx
--------------------------------------------------------------
At least 20 New Zealanders who took the now recalled painkiller
Vioxx are planning to sue its United States manufacturer, Merck
& Co. after a multi-million dollar payout in a Texas case, The
Seven.com.au reports.
The Kiwis are joining hundreds of Australians pursuing legal
action against the arthritis drug maker, which was ordered
through a ruling by a Texas jury to pay about $253 million to
the widow of a man who died from heart problems after taking the
drug.
The Texas case involves, Texan Carol Ernst, who is seeking
compensation for the death of her husband Robert, allegedly of
arrhythmia, in 2001. Mr. Ernst, a produce manager at a Wal-Mart
near Fort Worth who ran marathons and worked as a personal
trainer, took Vioxx for eight months to alleviate pain in his
hands until he died in his sleep, an earlier Class Action
Reporter story (July 27, 2005) reports.
Mrs. Ernst's lawsuit alleges that Merck & Co. knew of the
dangers of using Vioxx years before it recalled the drug.
However, the Company allegedly ignored those concerns in favor
of aggressive marketing for a multibillion-dollar seller, an
earlier Class Action Reporter story (July 27, 2005) reports.
The case was the first of 4,200 other suits that have been filed
in the United States and thousands more from other countries
that are being prepared to reach trial after the drug's
withdrawal last September. Introduced in 1999 and part of the
Cox-2 inhibitor class of anti-inflammatory painkillers, Vioxx
was taken by hundreds of thousands of people, including about
15,000 in New Zealand.
One Australian law firm representing about 170 people (including
20 New Zealanders) was expecting to file their claims in a
United States court within the next two months. Spokesman
Damian Scattini told the New Zealand Herald that the Texas
decision was encouraging. According to him, "It does mean a jury
of ordinary citizens has looked at the behavior of Merck and
found it wanting."
Wellington lawyer John Miller, an expert on Accident
Compensation Corporation (ACC) legislation, told Seven.com.au
that anyone injured by medical treatment was entitled to claim
ACC and to ask ACC to help him or her sue overseas companies. He
pointed out, "There is provision in the legislation for that ...
certainly if ACC ends up paying out millions and millions of
dollars in compensation, they might encourage someone to take a
case against the manufacturer and get some of their money back."
MICROSOFT CORPORATION: SD High Court to Hear Legal Fees Dispute
---------------------------------------------------------------
Approximately two years ago, Microsoft Corporation agreed to pay
millions of dollars to settle class action antitrust lawsuits in
South Dakota, however the company continues to argue that a
circuit judge awarded excessive legal fees to its opponents in
the case, The Associated Press reports.
Thus, on August 31, 2005, the South Dakota Supreme Court will
hear arguments in Microsoft's attempt to throw out the nearly
$2.3 million in legal fees and expenses awarded to the lawyers
who represented consumers in the cases. The software giant
argues that the lawyers should get no more than $389,000 in fees
and about $22,000 in expenses. Additionally, Microsoft contends
that the legal fees were excessive and unreasonable, since
lawyers used information from cases in other states to negotiate
a settlement nearly identical to those from other states. The
company also pointed out that the legal fees are also equal to
about half the total settlement Microsoft will pay to customers
and schools.
In its written arguments to the high court, Microsoft claims,
"This was a tagalong action in every sense and at every stage.
It broke no new ground, but merely applied to South Dakota a
template cut by other lawyers in other states."
However, in a response to Microsoft's allegations that they
merely followed precedents set in cases from other states,
attorneys who won the legal fees countered that the amount
approved by the circuit judge is reasonable and justified by the
work they did in the cases. One attorney even said, "Nothing
could be further from the truth."
A number of cases stemming from a federal court ruling that
Microsoft abused its power to maintain its monopoly on the
Windows operating system were filed around the nation claiming
that the software giant violated state antitrust laws and laws
against unfair competition. One South Dakota case was
consolidated with others from around the nation in federal
court, while three were consolidated in state court.
In an agreement that settled the three class action antitrust
lawsuits in South Dakota court along with similar lawsuits in
several other states, Microsoft agreed in October 2003 to give
vouchers worth millions of dollars to customers who had bought
its operating software from March 1996 through December 2002.
The vouchers, each worth $5 or $12 depending on the product a
customer had purchased, was to be used for buying hardware,
operating systems, software and computer gear from various
vendors, including Microsoft. Under the settlement's
stipulations half the unused vouchers were to be given to
schools to help needy children.
In South Dakota, the maximum amount that could be claimed was
$9.3 million, however officials expected only a fraction of the
eligible customers would file claims. Court documents indicate
only an estimated $466,500 would be paid in vouchers to South
Dakota customers, with more than $4.4 million to be given to
schools.
After the settlement, Circuit Judge Lori Wilbur of Pierre
awarded the lawyers who brought the case fees and expenses of
more than $1 million, which she later doubled to more than $2
million. With expenses added, the total award to the lawyers was
nearly $2.3 million. In awarding the fees, Judge Wilbur said
that it was justified by that fact that the lawyers' efforts led
to a substantial success, took nearly five years, involved
contested hearings and appeals, involved a risk because there
was no guarantee of compensation, and involved a lengthy delay
in payment for their services.
Various attorneys from South Dakota and other states were
involved in the case, however two of the lead lawyers were Mark
Moreno of Pierre and Ben Barnow, a Chicago lawyer who took part
in similar lawsuits in a number of states. Court documents filed
by Microsoft indicate Mr. Moreno would be compensated at $600 an
hour, while Mr. Barnow would get $1,000 an hour.
Microsoft argues that that the fee awards were excessive because
they far surpassed the $150 to $175 an hour typical in central
South Dakota. In addition, the company pointed out that the
award is also excessive because it would amount to five times
the $466,500 in vouchers that customers were expected to claim
or 47 percent of the entire $4.9 million settlement if payments
to schools are included. Attorneys for the software giant even
contend in their written arguments, "The $2.3 million award to
the lawyers threatens to cause the public to think poorly of our
courts and is contrary to public policy."
Attorneys who filed the class action lawsuits though argued that
the award of fees and expenses is reasonable because Microsoft
has agreed to large enhancements in legal fees in antitrust
lawsuits settled in other states. The lawyers also argued that
the award is just 27 percent of total benefits received by South
Dakotans if payments to schools and the legal fees themselves
are counted as part of those benefits. Finally, the attorneys
also pointed out that the hourly fees were proper because of the
complexity of the case, the challenge of establishing
Microsoft's liability and damages, and the fact that Microsoft
paid its own lawyers high fees.
NICOR GAS: Reaches Settlement For IL Mercury Injury Litigation
--------------------------------------------------------------
Nicor Gas Company reached a settlement for lawsuits filed
against it, related to its historical use of mercury in various
kinds of company equipment.
The Company is a defendant in several private lawsuits, all in
the Circuit Court of Cook County, Illinois, seeking a variety of
unquantified damages (including bodily injury, property and
punitive damages) allegedly caused by mercury-containing
regulators.
Under the terms of a class action settlement agreement, the
Company will continue, until 2007, to provide medical screening
to persons exposed to mercury from its equipment, and will use
its best efforts to replace any remaining inside residential
mercury regulators by 2006. The class action settlement
permitted class members to "opt out" of the settlement and
pursue their claims individually. The Company is currently
defending claims brought by 28 households.
NICOR GAS: IL Property Owners Launch Suit V. Oak Park Facility
--------------------------------------------------------------
Nicor Gas Company continues to face class actions filed in the
Circuit Court of Cook County, Illinois, alleging among other
things, that the ongoing cleanup of a former manufactured gas
plant site in Oak Park, Illinois is inadequate.
In December 2001, a purported class action lawsuit was filed
against Exelon Corporation, Commonwealth Edison Company and the
Company. Since then, additional lawsuits have been filed
related to this same former manufactured gas plant site. These
lawsuits seek, in part, unspecified damages for property damage,
nuisance, and various personal injuries that allegedly resulted
from exposure to contaminants allegedly emanating from the site,
and punitive damages.
NICOR INC.: Consumers Lodge Unfair Trade Practices Lawsuit in IL
----------------------------------------------------------------
Nicor, Inc., Nicor Gas and Nicor Services faces a consumer class
action was filed in the Circuit Court of Cook County, Illinois,
entitled "Rivera v. Nicor Inc., Nicor Gas and Nicor Services."
The plaintiff alleges deceptive practices relating to the
marketing and sale of the Gas Line ComfortGuard service offered
by Nicor Services. The plaintiff also alleges violations of the
Illinois Consumer Fraud and Deceptive Business Practices Act and
unjust enrichment. The plaintiff is seeking damages in an amount
equal to the total Gas Line ComfortGuard charges paid by the
plaintiff and the putative class members, punitive damages, and
attorney's fees and costs.
OREGON: Archdiocese of Portland Notifies Parishioners of Lawsuit
----------------------------------------------------------------
The United States Bankruptcy Court for the District of Oregon
issued a notice to potential defendants in a bankruptcy case
that is referred to as In re ROMAN CATHOLIC ARCHBISHOP OF
PORTLAND IN OREGON, and successors, a corporation sole, dba the
ARCHDIOCESE OF PORTLAND IN OREGON, Debtor, Case No. 04-37154-
elp11.
According to the notice, if you are or were a member of a parish
or if you have made gifts, donations, and/or tithes to or for
the benefit of any Catholic parish in Western Oregon that is
part of the ARCHDIOCESE OF PORTLAND IN OREGON, your rights may
be affected by the bankruptcy case, which is currently pending
in the United States Bankruptcy Court for the District of
Oregon.
The notice further states that in the Bankruptcy Case, a lawsuit
(Adversary Proceeding No. 04-03292-elp (the "Lawsuit") has been
filed in the form of a Defendant Class Action Lawsuit. On July
22, 2005, the Court entered an order in the Lawsuit certifying a
class of defendants that may include you.
Additionally, the notice stated that the Bankruptcy Court has
scheduled a hearing in the Lawsuit for October 11, 2005, at 9:30
a.m. at the United States Bankruptcy Court, 1001 S.W. Fifth
Avenue, 7th Floor, Portland, OR, 97204, to consider requests by
Class members to exclude themselves from the Class, to intervene
and other questions pertaining to class certification. Requests
to be excluded must be submitted in writing to Class Counsel and
postmarked no later than October 3, 2005. The notice further
states that any objections requests to intervene or other
submissions pertaining to the Class must be filed with the
Bankruptcy Court at the above address no later than October 3,
2005.
The suit is styled, Tort Claimants Committee v. Roman Catholic
Archbishop of Portland, OR, et al., Case No.: 04-03292-elp, Case
type: ap Related bankruptcy: 04-37154-elp11, Judge Elizabeth L.
Perris presiding. ALBERT N. KENNEDY, 888 SW 5TH AVE., #1600,
PORTLAND, OR, 97204, Phone: (503) 221-1440, represents the
Plaintiff/s, Tort Claimants Committee. L. MARTIN NUSSBAUM, 90 S.
Cascade Ave., #1100 Colorado Springs, CO, 80903-1662, Phone:
(719) 386-3000 and HOWARD M. LEVINE and THOMAS W. STILLEY, 1000
SW BROADWAY, #1400 PORTLAND, OR, 97205, Phone: (503) 227-1111.
For more details, contact Steven M. Hedberg, Douglas R. Pahl and
Michael H. Simon of Perkins Coie LLP, 1120 N.W. Couch Street,
Tenth Floor, Portland, OR, 97209-4128, Phone: (503) 727-2121,
Fax: (503) 727-2222, E-mail: parishclass@perkinscoie.com, Web
sites: http://www.archdpdx.org/bankruptcy,
http://www.parishionerscommittee.orgor
http://www.perkinscoie.com.
PACER INTERNATIONAL: Inks Settlement For CA Fiduciary Duty Suit
---------------------------------------------------------------
Pacer International, Inc. reached a settlement for the class
action filed against two of its subsidiaries engaged in local
cartage and harbor drayage operations, Interstate Consolidation,
Inc., which was subsequently merged into Pacer Cartage, Inc.,
and Intermodal Container Service, Inc., in the State of
California, Los Angeles Superior Court, Central District (the
"Albillo" case).
The suit alleges, among other things, breach of fiduciary duty,
unfair business practices, conversion and money had and received
in connection with monies (including insurance premium costs)
allegedly wrongfully deducted from truck drivers' earnings.
The plaintiffs and defendants entered into a Judge Pro Tempore
Submission Agreement in October 1998, pursuant to which they
waived their rights to a jury trial, stipulated to a certified
class, and agreed to a minimum judgment of $250,000 and a
maximum judgment of $1.75 million. In August 2000, the trial
court ruled in the Company's favor on all issues except one,
namely that in 1998 the Company's subsidiaries failed to issue
to the owner-operators new certificates of insurance disclosing
a change in the Company's subsidiaries' liability insurance
retention amount, and ordered that restitution of $488,978 be
paid for this omission. Plaintiffs' counsel then appealed all
issues except one (the independent contractor status of the
drivers), and the Company's subsidiaries appealed the insurance
retention disclosure issue.
In December 2003, the appellate court affirmed the trial court's
decision as to all but one issue, reversed the trial court's
decision that the owner-operators could be charged for the
workers compensation insurance coverage that they elected to
obtain through the Company's subsidiaries, and remanded back to
the trial court the question of whether the collection of
workers compensation insurance charges from the owner-operators
violated California's Business and Professions Code and, if so,
to determine an appropriate remedy. The Company sought review
at the California Supreme Court of this workers compensation
issue, and the plaintiffs sought review only of whether the
Company's subsidiaries' providing insurance for the owner-
operators constituted engaging in the insurance business without
a license under California law. In March 2004, the Supreme
Court of California denied both parties' petitions for appeal,
thus ending all further appellate review.
As a result, the Company successfully defended and prevailed
over the plaintiffs' challenges to core operating practices of
the Company, establishing that the owner-operators were
independent contractors and not employees of the Company and the
Company may charge the owner-operators for liability insurance
coverage purchased by the Company. Following the California
Supreme Court's decision, the only remaining issue is whether
the Company's subsidiaries' collection of workers compensation
insurance charges from the owner-operators violated California's
Business and Professions Code and, if so, what restitution, if
any, should be paid to the owner-operator class. This issue was
remanded back to the same trial court that heard the original
case in 1998.
In the fourth quarter of 2004, the trial court set the schedule
for the remand trial and ordered each of the parties to present
its case to the court by way of written submissions of the
affidavits, records and other documentary evidence and the legal
arguments upon which such party would rely in the remand trial.
Following these submissions, the court would then determine
whether to schedule and hear oral testimony and argument. During
the second quarter of 2005, and following extensions of filing
deadlines, the parties delivered their respective evidentiary
submissions and initial briefs to the court. The court extended
into the third quarter the deadlines for filing final response
and reply briefs.
During the second quarter of 2005 the Company also engaged in
earnest discussions with the plaintiffs in an attempt to
structure a potential settlement of the case within the original
$1.75 million cap but on a claims-made basis that would return
to the Company any settlement funds not claimed by members of
the plaintiff class. The Company believes that the ongoing cost
of litigating the final issue in the case (including defending
appeals that the plaintiffs' counsel has assured would occur if
the Company were to prevail in the remand trial), taken together
with the original $488,978 restitution award for the Company's
failure to disclose the change in its liability insurance
retention amount, would exceed the net liability to the Company
of a final settlement on a claims-made basis within the cap of
$1.75 million.
During the discussions that occurred during the second quarter,
the Company reached an agreement in principle with the
plaintiffs to settle the litigation on a claims-made basis
within the cap of $1.75 million. The settlement agreement is
subject to signing of definitive documents and approval of the
court.
The same law firm prosecuting the "Albillo" case has filed a
separate class action lawsuit in the same jurisdiction on behalf
of a putative class of owner-operators (the "Renteria" class
action) who are purportedly not included in the "Albillo" class.
The claims in the "Renteria" case, which is being stayed pending
full and final disposition of the remaining issue in "Albillo,"
mirror those in "Albillo," specifically, that the Company's
subsidiaries' providing insurance for their owner-operators
constitutes engaging in the insurance business without a license
in violation of California law and that charging the putative
class of owner-operators in "Renteria" for workers compensation
insurance that they elected to obtain through the Company's
subsidiaries violated California's Business and Professions
Code. The Company believes that the final disposition of the
insurance issue in "Albillo" in the Company's favor precludes
the plaintiffs from re-litigating this issue in "Renteria."
PROGRESS ENERGY: NY Court Dismisses Securities Fraud Lawsuit
------------------------------------------------------------
The United States District Court for the Southern District of
New York dismissed with prejudice the consolidated securities
class action filed against Progress Energy, Inc. on November
15,2004.
On February 3, 2004, the Company was served with a class action
complaint alleging violations of federal security laws in
connection with the Company's issuance of Contingent Value
Obligations (CVOs). The action was filed by Gerber Asset
Management LLC and names the Company and its former Chairman
William Cavanaugh III as defendants. The Complaint alleges that
the Company failed to timely disclose the impact of the
Alternative Minimum Tax required under Sections 55-59 of the
Internal Revenue Code (Code) on the value of certain CVOs issued
in connection with the Florida Progress Corporation merger. The
suit seeks unspecified compensatory damages, as well as
attorneys' fees and litigation costs.
On March 31, 2004, a second class action complaint was filed by
Stanley Fried, Raymond X. Talamantes and Jacquelin Talamantes
against William Cavanaugh III and the Company alleging
violations of federal securities laws arising out of the
Company's issuance of CVOs nearly identical to those alleged in
the February 3, 2004 Gerber Asset Management complaint. On
April 29, 2004, the Honorable John E. Sprizzo ordered among
other things that the two class action cases be consolidated,
Peak6 Capital Management LLC shall serve as the lead plaintiff
in the consolidated action, and the lead plaintiff shall file a
consolidated amended complaint on or before June 15, 2004.
The lead plaintiff filed a consolidated amended complaint on
June 15, 2004. In addition to the allegations asserted in the
Gerber Asset Management and Fried complaints, the consolidated
amended complaint alleges that the Company failed to disclose
that excess fuel credits could not be carried over from one tax
year into later years. On July 30, 2004, the Company filed
a motion to dismiss the complaint; plaintiff submitted its
opposition brief on September 14, 2004. The Court heard oral
argument on the Company's motion to dismiss on November 15,
2004.
RUBIO'S RESTAURANTS: Faces Consolidated Overtime Wage Suit in CA
----------------------------------------------------------------
Rubio's Restaurants, Inc. faces a consolidated employee class
action filed in the Orange County Superior Court in California,
alleging violations of the state's labor laws.
On June 28, 2001, a class action complaint was filed against the
Company in Orange County, California Superior Court by a former
employee, who worked in the position of general manager. A
second similar class action complaint was filed in Orange
County, California Superior Court on December 21, 2001, on
behalf of another former employee who worked in the positions of
general manager and assistant manager. On May 16, 2002, these
two cases were consolidated into one action.
These cases currently involve the issue of whether employees and
former employees in the general and assistant manager positions
who worked in the California units during specified time periods
were misclassified as exempt and deprived of overtime pay. In
addition to unpaid overtime, the claimants in these cases seek
to recover waiting time penalties, interest, attorneys' fees and
other types of relief.
RUBIO'S RESTAURANTS: Consumers Launch CA Suit For Fake Lobster
--------------------------------------------------------------
Rubio's Restaurants, Inc. faces a class action filed in the
Superior Court of California, County of Los Angeles, on behalf
of consumers who claim that the Company inappropriately named
some of its lobster menu items.
The suit, filed by consumer fraud lawyer Ray E. Gallo, alleges
that the lobster in the restaurant's "lobster burrito" is
instead "langostino," a small crayfish-or-shrimp-like creature
caught mainly off the coast of Chile, commonly called Red or
Yellow Prawns, an earlier Class Action Reporter story (July
1,2005) reports. The claimants in this case are seeking damages
in an unspecified amount to reimburse purchases of lobster menu
items.
SINGAPORE: Lawsuit V. Raffles Town Club Ends With $15M Award
------------------------------------------------------------
The Raffles Town Club saga concluded on a high note for some
5,000 members with the Court of Appeal awarding $15 million to
them, which translates to $3,000 per member, The TODAYonline,
Singapore reports.
In order to fight the $5 million in damages it was ordered to
pay to its members earlier this year, the Raffles Town Club
recently went before the Court of Appeal. The award stems from a
class action lawsuit, which is the first of its kind in
Singapore that was brought by club members in November 2001, an
earlier Class Action Reporter story (July 22, 2005) reports.
Six months ago, the members were awarded $1,000 each for the
loss of use and enjoyment of the club, after it was found to
have 17,000 members, instead of 7,000 as claimed. However, both
sides decided to appeal the ruling, an earlier Class Action
Reporter story (July 22, 2005) reports.
In court last month, lawyers acting for the club conceded it did
breach its contract to provide a premier club, however they
argued that having more members actually benefited the rest as
it prevented the club from going bankrupt, a situation prevalent
on similar clubs during that period. This did not go down well
with the judges who, in the 23-page written judgment, said the
club should not be permitted to shift its responsibilities. The
judges pointed out that the issue of the club going under was
immaterial. The court increased the compensation based on a
formula proposed by the members' lawyers.
Approximately 4,895 founding members served a writ of summons to
the High Court and the club's lawyers, demanding a full refund
of the $28,000 they each paid as joining fees. The plaintiffs
had sued the club on the grounds of misrepresentation and/or
breach of contract, an earlier Class Action Reporter story
(November 20, 2001) reports. According to court documents, in
November 1996, the Company sent out a prospectus inviting some
members of the public to join the club. The prospectus
comprised a letter of invitation, a document giving general
information and a brochure.
The plaintiffs base their claims on representations made in
these documents, including representations, among others, that:
(1) the club would be without peer in terms of size of
facilities and sheer opulence;
(2) the club's exclusive and limited memberships would be
fully transferable;
(3) there would be two classes of individual members - a
limited number of exclusive transferable founder
members at $28,000, and a second class of members who
would pay $40,000 for their membership.
The suit argues that these representations became part of the
contractual terms between members and the Company.
The plaintiffs, led by public relations consultant Alan Lee,
claim they were misled into joining what they thought was an
"exclusive" club for 5,000 to 7,000 members. During the recent
highly publicized court battle between former Company directors,
however, for control of the proprietary club, the members
discovered they are part of a crowd of 19,000 persons.
Company director Robert Lai said "If you had told us in November
1996 that there would be 19,000 members, and we joined the club
with that knowledge, we would not be unhappy." Mr. Lai was one
of the members who led the class action, but has since dropped
out, since he bought his membership on the open market and does
not qualify as a founding member.
The plaintiffs stand to recover $137 million in joining fees,
which is the biggest claim against a local private club and thus
making the lawsuit the largest class action of its kind in
Singapore.
TRANSACTION SYSTEMS: NE Court Certifies Desert Orchid Lawsuit
-------------------------------------------------------------
The United States District Court for the District of Nebraska
certified as a class action suit the case, Desert Orchid
Partners, LLC, et al. V. Transaction Systems Architects, Inc.,
et al., No. 02 CV 553, No. 02 CV 561. The case was filed on
behalf of all persons who purchased the common stock or other
securities of TSA between January 21, 1999 and November 18,
2002.
In a release by Goodkind Labaton Rudoff & Sucharow LLP, the
Summary Notice of Pendency of Class Action, on March 22, 2005,
the Court issued an Order certifying the case to proceed as a
class action pursuant to Rules 23(a) and (b)(3) of the Federal
Rules of Civil Procedure. The Class certified by the Court is
defined as all persons or entities that purchased TSA securities
from January 21, 1999 through and including November 18, 2002.
The suit is styled, Desert Orchid Partners, LLC, et al. V.
Transaction Systems Architects, Inc., et al., 8:02-cv-00553-JFB-
TDT, which is pending in United States District Court for the
District of Nebraska with the Honorable Joseph F. Bataillon
presiding. The following represents the Plaintiff/s:
(1) Emily C. Komlossy, Esq., Goodkind Labaton Rudoff &
Sucharow LLP, Maiberg Professional Center, 3595
Sheridan St., Suite 206, Hollywood, FL, 33021, Phone:
(954) 630-1000, Fax: (954) 565-1312, E-mail:
ekomlossy@glrslaw.com;
(2) J. Allen Carney, Esq., Cauley Bowman Carney & Williams,
PLLC, 11311 Arcade Drive, Suite 200, Little Rock,
AR, 72212; and
(3) David W. Rowe, Esq., Kinsey Ridenour Becker & Kistler,
LLP, P.O. Box 85778, 121 South 13th St., Suite 601,
Lincoln, NE, 68501, Phone: (402) 438-1313, Fax:
(402)438-1654, E-mail: drowe@krbklaw.com.
The Defendant/s are represented by Joel Held and Elizabeth L.
Yingling of BAKER, MCKENZIE LAW FIRM - DALLAS, 2001 Ross Ave.,
Suite 2300, Dallas, TX, 75201, Phone: (214) 978-3090 and
(214) 978-3000, Fax: (214) 978-3099 and (214) 978-3099, E-mail:
joel.held@bakernet.com and elizabeth.l.yingling@bakernet.com.
For more details, contact TSA Class Action Notices, c/o Complete
Claim Solutions, Inc., P.O. Box 24751, West Palm Beach, FL,
33416, Phone: (877) 290-3683, E-mail:
TSAinfo@CompleteClaimSolutions.com.
ZOLOWEAR INC.: Recalls Infant Carriers/Slings Due to Fall Hazard
----------------------------------------------------------------
In cooperation with the U.S. Consumer Product Safety Commission
(CPSC), ZoloWear Inc., of Austin, Texas is voluntarily recalling
about 177 units of ZoloWear Infant Carriers/Slings.
The stitching that attaches the webbing to the carrier/sling can
break, posing a fall hazard to young children. ZoloWear has
received one report of the webbing coming apart from the sling,
but the baby was not in the sling at the time. The company has
not received any reports of falls or injuries.
The recalled slings are made of 100-percent cotton fabric or 97
percent cotton/ 3 percent Lycra with two pieces of webbing
holding the rings to the fabric. Solid natural color and five
prints (Splash, Pink and Black Stripe, Pink and Brown Stripe,
Pink Punch and The Hamptons) make up the lots included in the
recall. A large white label sewn on the pocket of the slings
reads "Zolo." ZoloWear slings should have three rows of
stitching securing the webbing and fabric together. Some of the
slings in these lots have short webbing, so only one row of
stitching holds the webbing in place.
Manufactured in the United States, the infant carrier/slings
were sold at the ZoloWear.com Web site, individual distributors,
and five children's boutiques in California, Hawaii and Texas
sold these slings from May 2005 through August 2005 for between
$70 and $90.
Consumers should stop using these carriers/slings immediately
and call ZoloWear for instructions on having the carriers/slings
repaired.
Consumer Contact: For additional information, contact ZoloWear,
Inc. at (888) 285-0044 between 9 a.m. and 5 p.m. CT Monday
through Friday, or e-mail the firm at recall@zolowear.com, or go
to the firm's Web site at www.zolowear.com/recall.
New Securities Fraud Cases
ATI TECHNOLOGIES: Bernard M. Gross Lodges Securities Suit in PA
---------------------------------------------------------------
The Law Offices Bernard M. Gross initiated a class action suit,
numbered 05-4414, in the United States District Court for the
Eastern District of Pennsylvania before the Honorable Thomas N.
O'Neill, Jr. against defendants ATI Technologies, Inc. (Nasdaq:
ATYT), Kwok Yuen Ho, Chairman of the Board of ATI; David E.
Orton, President and Chief Executive Officer; and Patrick G.
Crowley, Chief Financial Officer and Senior Vice President-
Finance, on behalf of all persons who purchased the securities
of ATI Technologies, Inc.(Nasdaq: ATYT) between October 7, 2004
and June 23, 2005.
The complaint charges ATI Technologies, Kwok Yuen Ho, David E.
Orton and Patrick G. Crowley with violations of the Securities
Exchange Act of 1934. More specifically, the Complaint alleges
that the Company failed to disclose and misrepresented these
material adverse facts:
(1) the Company was selling desktop and notebook products
with lower and lower profit margins;
(2) ATI's gross margins were being weakened by high sales
of its IGP (integrated graphics processor) products,
which have profit margins well below the corporate
average;
(3) the Company was earning lower-than-anticipated yields
on certain products due to operational issues in its
own packaging and test areas of its manufacturing
process;
(4) the Company was experiencing production/design/yield
issues with its R520 chip, the release of which was six
months behind schedule;
(5) the Company was losing market share to arch-rivals
Nvidia Corp. and Intel Corp. causing downward pressure
on ATI's prices;
(6) ATI lost market share to Nvidia in the enthusiast and
mainstream markets following the launch of Nvidia's SLI
(scalable link interface) chipset in early 2005. The
SLI chipset enables the use of two graphics cards
instead of one in a desktop computer, allowing desktop
users to upgrade graphics at cheaper prices, a product
ATI will not have on the market until early August
2005;
(7) ATI lost market share to Intel in the notebook
computer market, traditionally an area of strength for
ATI, because as would later be revealed, Intel's Alviso
chipset offers "more than-adequate" graphics
performance for many notebook computer users; and
(8) despite defendants' previous statements to the
contrary, a fire at one of the Company's primary
suppliers in Taiwan was preventing the Company from
receiving necessary supplies.
As a result of defendants' false and misleading Class Period
statements and omissions, ATI's stock traded at inflated levels,
increasing to as high as $20.66 per share on December 3, 2004,
allowing the Company's top officers and directors to sell or
otherwise dispose of more than $54 million worth of their own
shares during November and December 2004 at inflated prices of
between $18 and $20 per share. However, after the true status of
the Company's business performance and financial status were
unveiled in June 2005, the Company's shares plummeted, erasing
over $2.2 billion in market capitalization.
For more details, contact Susan R. Gross, Esq. or Deborah R.
Gross, Esq. of the Law Offices Bernard M. Gross, P.C., 1515
Locust Street, Suite 200, Philadelphia, PA, 19102, Phone:
866-561-3600 or 215-561-3600, E-mail: susang@bernardmgross.com
or debbie@bernardmgross.com, Web site:
http://www.bernardmgross.com.
ATI TECHNOLOGIES: Brian M. Felgoise Lodges Securities Suit in PA
----------------------------------------------------------------
The Law Offices of Brian M. Felgoise, P.C. files a securities
class action on behalf of shareholders who acquired ATI
Technologies, Inc. (NASDAQ: ATYT) securities between October 7,
2004 and June 23, 2005, inclusive (the Class Period).
The case is pending in the United States District Court for the
Eastern District of Pennsylvania, against the company and
certain key officers and directors.
The action charges that defendants violated the federal
securities laws by issuing a series of materially false and
misleading statements to the market throughout the Class Period
which statements had the effect of artificially inflating the
market price of the Company's securities. No class has yet been
certified in the above action.
For more details, contact Brian M. Felgoise, Esq. of the Law
Offices of Brian M. Felgoise, P.C., 261 Old York Road, Suite
423, Jenkintown, PA, 19046, Phone: (215) 886-1900 E-mail:
FelgoiseLaw@verizon.net.
ATI TECHNOLOGIES: Schiffrin & Barroway Lodges Stock Suit in PA
--------------------------------------------------------------
The law firm of Schiffrin & Barroway, LLP initiated a class
action lawsuit in the United States District Court for the
Eastern District of Pennsylvania on behalf of all securities
purchasers of ATI Technologies, Inc. (Nasdaq: ATYT) ("ATI" or
the "Company") between October 7, 2004 and June 23, 2005,
inclusive (the "Class Period").
The complaint charges ATI, Kwok Yuen Ho, David E. Orton and
Patrick G. Crowley with violations of the Securities Exchange
Act of 1934. More specifically, the Complaint alleges that the
Company failed to disclose and misrepresented the following
material adverse facts, which were known to defendants or
recklessly disregarded by them:
(1) that the Company substantially relied on its high-end
offerings to fund other parts of its business;
(2) that the Company's high-end offerings failed to offset
the negative impact of weak gross margins and declining
average sales prices in consumer electronics;
(3) that the Company, due to production and design issues,
was late to the market with its R520 chip, thereby
losing market share to both Nvidia Corp. and Intel
Corp., which caused downward pricing pressure for ATI;
(4) that the Company's inventory levels were at a historic
high, while current sales levels were insufficient to
support the existing cost base; and
(5) that the defendants' positive statements about the
Company's progress and future growth lacked in all
reasonable basis.
On June 6, 2005, ATI announced that it expected its revenue for
the third quarter 2005 to be well below previously forecasted
results. On this news, shares of ATI fell $1.58 per share, or
10.35 percent, on June 6, 2005, to close at $13.68 per share. On
June 23, 2005, ATI issued its results for the third quarter 2005
and again lowered its forecast. On this news, shares of ATI fell
$0.98 per share, or 7.67 percent, on June 23, 2005, to close at
$11.80 per share.
For more details, contact Darren J. Check, Esq. or Richard A.
Maniskas, Esq. of Schiffrin & Barroway, LLP, 280 King of Prussia
Road, Radnor, PA, 19087, Phone: 1-888-299-7706 or
1-610-667-7706, E-mail: info@sbclasslaw.com, Web site:
http://www.sbclasslaw.com.
RED ROBIN: Lerach Coughlin Lodges Securities Fraud Suit in CO
-------------------------------------------------------------
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 District of Colorado on behalf of
purchasers of Red Robin Gourmet Burgers, Inc. ("Red Robin")
(NASDAQ:RRGB) common stock during the period between November 8,
2004 and August 11, 2005 (the "Class Period").
The complaint charges Red Robin and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. Red Robin, together with its subsidiaries, operates a
casual dining restaurant chain that serves gourmet burgers in
the United States and Canada.
The complaint alleges that during the Class Period, defendants
caused Red Robin's shares to trade at artificially inflated
levels by issuing a series of materially false and misleading
statements regarding the Company's business and prospects and by
concealing improper self dealing by the Company's CEO. This
caused the Company's stock to trade as high as $62.38 per share.
Defendants took advantage of this inflation, selling or
otherwise disposing of 320,000 shares of their Red Robin stock
then valued at more than $17 million. On August 11, 2005, Red
Robin reported that Q2 2005 results would be worse than
expectations due to charges and adjustments to various accounts
and that its Chairman, President and CEO had resigned in light
of an investigation into his personal use of Company assets. On
this news, Red Robin's stock collapsed to as low as $44.13 per
share before closing at $45.55 per share on volume of 9.8
million shares.
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 lacked requisite internal controls and
corporate governance procedures to safeguard the
Company from abuse by the CEO of his position at the
Company;
(2) contrary to defendants' claims of fiscal 2005 growth
and profitability, the Company was actually on track
for lower results than represented;
(3) the Company lacked the necessary personnel to issue
accurate financial reports and projections; and
(4) as a result of (a)-(c) above, the Company's projections
for fiscal year 2005 were grossly inflated.
Plaintiff seeks to recover damages on behalf of all purchasers
of Red Robin common stock during the Class Period (the "Class").
The plaintiff is represented by Lerach Coughlin, which has
expertise in prosecuting investor class actions and extensive
experience in actions involving financial fraud.
For more details, contact William Lerach or Darren Robbins of
Lerach Coughlin, Phone: 800/449-4900 or 619/231-1058, E-mail:
wsl@lerachlaw.com, Web site:
http://www.lerachlaw.com/cases/redrobin/.
SYMBOL TECHNOLOGIES: Schatz & Nobel Lodges Securities Suit in NY
----------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., initiated lawsuit seeking
class action status in the United States District Court for the
Eastern District of New York on behalf of all persons who
purchased the securities of Symbol Technologies, Inc. (NYSE:
SBL) ("Symbol") between May 10, 2004 and August 1, 2005,
inclusive (the "Class Period"). Also included are all those who
acquired Symbol's shares through its acquisition of Matrics,
Inc.
The Complaint alleges that Symbol, and certain of its officers
and directors, violated federal securities laws by issuing
misleading public statements. Specifically, throughout the Class
Period, defendants issued numerous positive statements about the
Company's performance and future prospects. The complaint
alleges that defendants failed to disclose and/or misrepresented
the following adverse facts:
(1) that Symbol had inadequate and deficient internal and
financial controls;
(2) that Symbol's reported expenses were understated;
(3) that Symbol had massive overcapacity, inefficient
operations and obsolete assets;
(4) that Symbol was experiencing declining demand for its
products; and
(5) as a result of the foregoing, defendants' statements
concerning the Company's financial prospects were
lacking in a reasonable basis at all relevant times.
For more details, contact Justin S. Kudler, Wayne T. Boulton or
Nancy A. Kulesa of Schatz & Nobel, P.C., Phone: (800) 797-5499,
E-mail: sn06106@aol.com, Web site: http://www.snlaw.net.
*********
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*********
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Copyright 2005. All rights reserved. ISSN 1525-2272.
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