/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/051101.mbx C L A S S A C T I O N R E P O R T E R Tuesday, November 1, 2005, Vol. 7, No. 215 Headlines ABBOT LABS: Judge Sets Certification Hearing For Oxycontin Suit AETNA INC.: NY Court Approves Securities Fraud Suit Settlement AG EDWARDS: Continues To Face Employees' Wage Lawsuit in S.D. CA BEELMAN RIVER: IL Judge Dismisses Nash Case For Lack of Movement COCA-COLA CO.: Plaintiffs Launch Amended Securities Suit in GA COCA-COLA CO.: Plaintiffs Launch Amended ERISA Suits in N.D. GA COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in AL Court COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in PA Court COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in IL Court COMMUNITY HEALTH: Faces Uninsured Patients Lawsuit in IL Court DECKER COLLEGE: Former Employee Files Suit in KY Over Lay Offs EMCOR GROUP: CT Securities Fraud Suit Dismissal Deemed Final ESTEE LAUDER: Subsidiaries Face Amended Consumer Lawsuit in CA ESTEE LAUDER: Asks FL Court To Dismiss Nationwide Fraud Lawsuit IBM: TX Court Extends Claims Period in Deskstar 75GXP Settlement ILLINOIS FARMERS: High Court Cans Madison County Judge's Order ILLINOIS: Oak Forest Officials Settle Suit Over Cell Phone Fees INTRABIOTICS PHARMACEUTICALS: CA Court Mulls Lawsuit Dismissal KINROSS GOLD: NV Court Certifies Breach of Contract Lawsuit METALS USA: Inks Settlement For DE Suit V. Flag Holdings Merger MICROTUNE INC.: Suit Settlement Fairness Hearing Set April 2006 NEW YORK: Judge Faults State in Oneonta Racial Profiling Lawsuit RAYTHEON CO.: MA Court Yet To Rule on ERISA Fraud Suit Dismissal SEMPRA ENERGY: Firm's EVP Comments Continental Forge Settlement SOUTH CAROLINA: Allen Suit Was Filed Too Late, Defense Argues TALISMAN ENERGY: NY Judge Limits Scope of Church of Sudan's Suit UNITED SERVICES: IL Judge Gives Final OK to Bemis Settlement UNUMPROVIDENT CORPORATION: Policyholders Sue Over Denied Claims New Securities Fraud Cases BOSTON SCIENTIFIC: Brodsky & Smith Lodges Securities Suit in MA DHB INDUSTRIES: Brodsky & Smith Files Securities Suit in S.D. NY LIPMAN ELECTRONIC: Stull Stull Lodges Securities Suit in S.D. NY PIXAR ANIMATION: Brodsky & Smith Lodges Securities Suit in CA REFCO INC.: Brodsky & Smith Lodges Securities Fraud Suit in NY TAG-IT PACIFIC: Smith & Smith Lodges Securities Fraud Suit in CA TEMPUR-PEDIC INTERNATIONAL: Brodsky & Smith Lodges Suit in NY ********* ABBOT LABS: Judge Sets Certification Hearing For Oxycontin Suit --------------------------------------------------------------- Madison County, Illinois Judge Ralph Mendelsohn set a June 28, 2006 certification hearing for a lawsuit filed against Abbot Labs for its OxyContin drug, The Madison County Record reports. Plaintiff Connie Mester claims that the Company and its affiliates violated state consumer fraud law in marketing OxyContin. Her attorney, James Rosemergy of Carey and Danis in St. Louis, wrote that, "In their quest to sell the addictive and dangerous drug, defendants used highly misleading and improper tactics, misrepresented the appropriate use of OxyContin, and failed to disclose and discuss the safety issues and potential adverse effects of OxyContin." In addition, Mr. Rosemergy wrote that the misrepresentations resulted in "excessive, inappropriate and unnecessary prescriptions." The suit started in 2002 with Mary Renner moving to represent a plaintiff class. Later in 2004, she dismissed her claims, and thus Ms. Mester stepped in to replace her as lead plaintiff in the case. Ms. Mester though has not moved to represent the class. Judge Mendelsohn, in an October 13 order, set a January 13, 2006 deadline for her motion. Judge Mendelsohn also set deadlines of March 15 for Abbott Labs to oppose the motion, April 14 for Ms. Mester to reply, and May 1 for Abbott Labs to rebut. AETNA INC.: NY Court Approves Securities Fraud Suit Settlement -------------------------------------------------------------- The United States District Court for the Southern District of New York approved the settlement of the consolidated securities class action filed against Aetna, Inc. and two of its current and former officers and directors. Laborers Tri-County Pension Fund, Goldplate Investment Partners Ltd. and Sheila Shafran filed the suit, alleging that the Company and two of its current or former officers and directors, William H. Donaldson and John W. Rowe, M.D., violated federal securities laws. Plaintiffs allege misrepresentations and omissions regarding, among other things, the Company's ability to manage and control medical costs and the appropriate reserve for medical costs as of December 31, 2000, for which they seek unspecified damages, among other remedies. On October 15, 2002, the court heard argument on defendants' motion to dismiss the Securities Complaint. Effective February 2005, the parties agreed to dismiss Mr. Donaldson and Dr. Rowe from the action, and the Company and class representatives entered into an agreement to settle the Securities Complaint. The court approved the Securities Settlement Agreement on September 12, 2005. The settlement amount was not material to the Company. AG EDWARDS: Continues To Face Employees' Wage Lawsuit in S.D. CA ---------------------------------------------------------------- AG Edwards, Inc. continues to face a class action filed in the United States District Court for the Southern District of California on behalf of all financial consultants and trainees who worked for the Company in California after June 30, 2000. The action, among other relief, seeks overtime pay for financial consultants, including trainees, on the basis that the financial consultants should be classified as non-exempt employees under California law, restitution of amounts that were deducted from commissions owed to financial consultants to repay advances made in prior months, payment for meal rest breaks to which financial consultants are claimed to be entitled, and reimbursement for certain alleged business-related expenses paid by financial consultants. Several other financial services firms have been sued in California in similar actions, the Company said in a disclosure to the Securities and Exchange Commission. The suit is styled "Mitchell v. AG Edwards and Sons, et al., case no. 3:02cv2218," filed in the United States District Court for the Southern District of California (San Diego), under Judge Barry Ted Moskowitz. Representing the plaintiffs is Joshua D. Gruenberg of Larabee and Gruenberg, 2169 First Avenue, San Diego, CA 92101, Phone: (619)230-1234. Representing the Company is Daryl Steven Landy of Steefel Levitt and Weiss, One Embarcadero Center, Suite 3000, San Francisco, CA 94111-3600, Phone: (415)788-0900. BEELMAN RIVER: IL Judge Dismisses Nash Case For Lack of Movement ---------------------------------------------------------------- Madison County, Illinois Judge George Moran recently dismissed a 10 month old class action, styled "Nash vs. Beelman River Terminals," for want of prosecution, The Madison County Record reports. Court records show that Ronald Nash, of Edwardsville, Illinois sued last December 9, 2004, claiming that workers at Beelman, in Venice, did not receive time and a half after 40 hours a week. He moved to represent a class of all who worked more than 40 hours in a week since November 2001. Plaintiff attorney Elizabeth Heller of Goldenberg, Miller, Heller and Antognoli of Edwardsville signed the complaint. Later on January 7, Defense attorney Stephen Wigginton of Belleville answered. Neither offered any motions and Judge Moran set case management conferences throughout the year. However, the parties continued them by agreement. Ms. Heller and Mr. Wigginton showed up in Judge Moran's courtroom on September 28, among a throng that the judge had summoned. Judge Moran had set 116 cases for that day. Ms. Heller anticipated another rollover, however she did not get it, since over her objection, Judge Moran dismissed the case. COCA-COLA CO.: Plaintiffs Launch Amended Securities Suit in GA -------------------------------------------------------------- Plaintiff filed an amended securities class action against The Coca-Cola Compnay and its former Chairmain of the board and chief executive officer Douglas N. Daft, in the United States District Court for the Northern District of Georgia. On May 9, 2005, a putative class action lawsuit, styled "Selbst v. The Coca-Cola Company and Douglas N. Daft," was filed, alleging violations of antifraud provisions of the securities laws by the Company and Mr. Daft, former Chairman of the Board and Chief Executive Officer of the Company. The purported class consists of persons, except the defendants, who purchased Company stock between January 30, 2003 and September 15, 2004 and were damaged thereby. The complaint alleges, among other things, that during the class period the Company and Mr. Daft made false and misleading statements concerning the financial condition of the Company and its business outlook, strategy, business model and relationship with key bottlers in internal corporate memoranda, analysts' conference calls, press releases and Securities and Exchange Commission filings. The plaintiffs, on behalf of the putative class, seek compensatory damages in an amount to be proved at trial, extraordinary, equitable and/or injunctive relief as permitted by law to assure that the class has an effective remedy, award of reasonable costs and expenses, including counsel and expert fees, and such other further relief as the Court may deem just and proper. On July 8, 2005, a putative class action lawsuit, styled "Amalgamated Bank, et al. v. The Coca-Cola Company, et al." was filed in the United States District Court for the Northern District of Georgia against the Company, Douglas N. Daft, E. Neville Isdell, Steven J. Heyer and Gary P. Fayard alleging violations of antifraud provisions of the federal securities laws. The purported class consists of persons, except the defendants, who purchased Company stock between January 30, 2003 and September 15, 2004 and were damaged thereby. The complaint alleges, among other things, that during the class period the defendants made false and misleading statements about: (1) the Company's new business strategy/model, (2) the Company's execution of its new business strategy/model, (3) the state of the Company's critical bottler relationships, (4) the Company's North American business, (5) the Company's European operations, with a particular emphasis on Germany, (6) the Company's marketing and introduction of new products, particularly Coca-Cola C2, and (7) the Company's forecast for growth going forward The plaintiffs claim that as a result of these allegedly false and misleading statements, the price of the Company stock increased dramatically during the purported class period. The complaint also alleges that in September and November 2004, the Company and E. Neville Isdell acknowledged that the Company's performance had been below expectations, that various corrective actions were needed, that the Company was lowering its forecasts, and that there would be no quick fixes. In addition, the complaint alleges that the charge announced by the Company in November 2004 should have been taken early in 2003 and that, as a result, the Company's financial statements were materially misstated during 2003 and the first three quarters of 2004. The plaintiffs, on behalf of the putative class, seek compensatory damages in an amount to be proved at trial, extraordinary, equitable and/or injunctive relief as permitted by law to assure that the class has an effective remedy, award of reasonable costs and expenses, including counsel and expert fees, and such other further relief as the Court may deem just and proper. In September 2005, the plaintiff filed an amended consolidated complaint providing, among other things, additional details concerning the original complaint's allegations about disclosures regarding the Company's operations in Germany. COCA-COLA CO.: Plaintiffs Launch Amended ERISA Suits in N.D. GA --------------------------------------------------------------- Plaintiffs filed amended class actions against The Coca-Cola Company, certain of its current and former executive officers and its benefits committee, alleging violations of the Employee Retirement Income Security Act (ERISA). During May, June and July 2005 three similar putative class action lawsuits, styled "Pedraza v. The Coca-Cola Company, et al.," "Shamery, et al. v. The Coca-Cola Company, et al." and "Jackson v. The Coca-Cola Company, et al."), were filed in the United States District Court for the Northern District of Georgia by participants in the Company's Thrift & Investment Plan (the "Plan"). The suits allege breach of fiduciary duties under the ERISA by the Company, certain current and former executive officers, and the Company's benefits committee. The purported class in each of these cases consists of the Plan and persons who were participants in or beneficiaries of the Plan between May 13, 1997 and April 18, 2005 and whose accounts included investments in Company stock. The complaints allege that, among other things, the defendants failed to exercise the required care, skill, prudence and diligence in managing the Plan and its assets, take steps to eliminate or reduce the amount of Company stock in the Plan, adequately diversify the Plan's investments in Company stock, appoint qualified administrators and properly monitor their and the Plan's performance and disclose accurate information about the Company. The plaintiffs, on behalf of the putative class, seek, among other things, declaratory relief, damages for Plan losses and lost profits, imposition of constructive trust as a remedy for unjust enrichment, injunctive relief, costs and attorneys' fees, equitable restitution and other appropriate equitable and monetary relief. By order of the Court, the plaintiffs in these cases filed amended complaints in September 2005 supplementing the allegations in the original complaints and naming the specific individuals who served on the Benefits Committee and the Asset Management Committee as defendants. COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in AL Court --------------------------------------------------------------- Community Health Systems, Inc. faces a class action filed in the Circuit Court of Barbour County, Alabama, (Eufaula Division), styled "Arleana Lawrence and Robert Hollins v Lakeview Community Hospital and Community Health Systems, Inc." This alleged class action was brought by the plaintiffs on behalf of themselves and as the representatives of similarly situated uninsured individuals who were treated at the Company's Lakeview Hospital or any of the Company's other Alabama hospitals. The plaintiffs allege that uninsured patients who do not qualify for Medicaid, Medicare or charity care are charged unreasonably high rates for services and materials and that we use unconscionable methods to collect bills. The plaintiffs seek restitution of overpayment, compensatory and other allowable damages and injunctive relief. COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in PA Court --------------------------------------------------------------- Community Health Systems, Inc. faces a class action filed in the Court of Common Pleas, Montgomery County, Pennsylvania, styled "James Monroe v Pottstown Memorial Hospital and Community Health Systems, Inc." This alleged class action was brought by the plaintiff on behalf of himself and as the representative of similarly situated uninsured individuals who were treated at the Company's Pottstown Memorial Hospital or any of its other Pennsylvania hospitals. The plaintiff alleges that uninsured patients who do not qualify for Medicaid, Medicare or charity care are charged unreasonably high rates for services and materials and that the Company use unconscionable methods to collect bills. The plaintiff seeks recovery under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, restitution of overpayment, compensatory and other allowable damages and injunctive relief. COMMUNITY HEALTH: Faces Uninsured Patients' Lawsuit in IL Court --------------------------------------------------------------- Community Health Systems, Inc. faces a class action filed in the Circuit Court of Madison County, Illinois, styled "Chronister, et al. vs. Granite City Illinois Hospital Company, LLC d/b/a Gateway Regional Medical Center." The complaint seeks class action status on behalf of the uninsured patients treated at Gateway Regional Medical Center and alleges statutory, common law, and consumer fraud in the manner in which the hospital bills and collects for the services rendered to uninsured patients. The plaintiff seeks compensatory and punitive damages and declaratory and injunctive relief. COMMUNITY HEALTH: Faces Uninsured Patients Lawsuit in IL Court -------------------------------------------------------------- Community Health Systems, Inc. faces a class action filed in the Circuit Court of Williamson County, Illinois, styled "Sheri Rix v. Heartland Regional Medical Center and Health Care Systems, Inc." This alleged class action was brought by the plaintiff on behalf of herself and as the representative of similarly situated uninsured individuals who were treated at the Company's Heartland Regional Medical Center. The plaintiff alleges that uninsured patients who do not qualify for Medicaid, Medicare or charity care are charged unreasonably high rates for services and materials and that the Company uses unconscionable methods to collect bills. The plaintiff seeks recovery for breach of contract and the covenant of good faith and fair dealing, violation of the Illinois Consumer Fraud and Deceptive Practices Act, restitution of overpayment, and for unjust enrichment. The plaintiff class seeks compensatory and other damages and equitable relief. DECKER COLLEGE: Former Employee Files Suit in KY Over Lay Offs -------------------------------------------------------------- Lisa Totten, a laid-off financial aid officer of Decker College, initiated a lawsuit seeking class action status against her former employer claiming that it owes her $2,000 for work performed and benefits. According to Ms. Totten, 26, of Louisville, she has borrowed more than $600 from her parents since being laid off September 6 then sold possessions at a yard sale to repay them. In an interview with The Associated Press, "It's hard. You spend so much time at a company and devote numerous hours to getting something done and all of a sudden it's, 'Thanks, but no thanks.'" Just recently, the school, which is already under federal and state investigation, announced on its Web site that it is "temporarily closed, effective immediately." Ms. Totten's suit names the private, for-profit trade school along with five executives as defendants. Among those defendants is William Weld, a former governor of Massachusetts who now runs a New York investment firm, who until recently was the school's chief executive officer. The suit accuses the school and five executives of breach of contract, violation of the state's wage and hour laws and "unjust enrichment" by laying-off employees without paying for work previously performed. Currently, Decker has acknowledged laying-off about 500 employees in Louisville and elsewhere around the country. Decker's parent company, Compass Educational Holdings, and two affiliated companies are also named in the suit. Besides Mr. Weld, the lawsuit also names Gerald Woodcox and Jeffrey Woodcox as defendants. A Decker official describes that the Woodcoxes, of Louisville, as primary owners of the school, and Mr. Weld as a part owner. Decker is currently under investigation by the FBI and the U.S. Department of Education's Office of Inspector General for possible violations of federal law, including student loan fraud, wire fraud, conspiracy to commit fraud, and making false statements to the federal government. In addition, Decker is also under investigation by Attorney General Greg Stumbo's office and the Kentucky Board for Proprietary Education. EMCOR GROUP: CT Securities Fraud Suit Dismissal Deemed Final ------------------------------------------------------------ The United States District Court for the District of Connecticut's dismissal of the consolidated class action filed against EMCOR Group, Inc. is deemed final after plaintiffs failed to appeal the court's decision. The suit, entitled "In re EMCOR Group, Inc. Securities Litigation," also names as defendants: (1) Chairman of the Board and Chief Executive Officer Frank T. MacInnis, (2) Executive Vice President and Chief Financial Officer Leicle E. Chesser, and (3) Senior Vice President-Chief Accounting Officer and Treasurer Mark A. Pompa The individual defendants were later dismissed. The plaintiff purported to represent a class composed of all persons who purchased or otherwise acquired Company common stock and/or other securities between April 9, 2003 and October 2, 2003, inclusive. The complaint alleged violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder and of Section 20(A) of the Securities Exchange Act, relating to alleged misstatements and omissions in certain of the Company's filings with the Securities and Exchange Commission, press releases and other public statements between April 9 and October 2, 2003 and sought damages on behalf of the purported class in unspecified amounts. On August 2, 2005, the judge's order of dismissal was entered by the court and the time for the plaintiff to appeal the judge's decision expired thirty days thereafter. The suit is styled "In re: EMCOR GROUP, INC. SECURITIES LITIGATION, case no. 3:04-cv-00531-JCH," filed in the United States District Court for the District of Connecticut, under Judge Janet C. Hall. Representing the Company are: (i) David A. Becker, Erica P. McFarquhar, Latham & Watkins - DC, 555 11th St., NW, Suite 1000, Washington, DC 20004, Phone: 202-627-2200, Fax: 202-637-2201, E-mail: david.becker@lw.com or Erica.McFarquhar@lw.com (ii) Michele E. Rose or Laurie B. Smilan of Latham & Watkins, LLP - VA, Two Freedom Sq. 11955 Freedom Dr., Suite 500, Reston, VA 20190, Phone: 703-456-1000, Fax: 703-456-1001, E-mail: Michele.Rose@lw.com (iii) Jeffrey J. Vita or Heidi Zapp, Saxe, Doernberger & Vita, PC, 1952 Whitney Ave., Hamden, CT 06517, Phone: 203-287-8890, E-mail: jjv@sdvlaw.com or hhz@sdvlaw.com The plaintiff firms in this litigation are: (a) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala Cynwyd, PA, 19004, Phone: 610.668.7987, Fax: 610.660.0450, E-mail: esmith@Brodsky-Smith.com (b) Cauley Geller Bowman Coates & Rudman LLP (Little Rock, AR), P.O. Box 25438, Little Rock, AR, 72221-5438, Phone: 501.312.8500, Fax: 501.312.8505, (c) Charles J. Piven, World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com (d) Chitwood & Harley, 1230 Peachtree Street, N.E., 2900 Promenade II, Atlanta, GA, 30309, Phone: 888.873.3999, (e) Federman & Sherwood, 120 North Robinson, Suite 2720, Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail: wfederman@aol.com (f) Landskroner - Grieco, Ltd., 1360 West 9th St., Suite 200, Cleveland, OH, 44113-1904, Phone: 866.522.9500, E- mail: jack@landskronerlaw.com (g) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com (h) Shepherd, Finkelman, Miller & Shah, LLC, Phone: 877.891.9880, E-mail: jshah@classactioncounsel.com ESTEE LAUDER: Subsidiaries Face Amended Consumer Lawsuit in CA -------------------------------------------------------------- Plaintiffs filed an amended nationwide class action against two of Estee Lauder Companies, Inc.'s subsidiaries in the Superior Court of California for the County of San Diego. The complaint names approximately 25 other defendants, including manufacturers and retailers The plaintiff is seeking injunctive relief, restitution, and general, special and punitive damages for alleged violations of the California Unfair Competition Law, the California False Advertising Law, and for negligent and intentional misrepresentation. The purported class includes individuals "who have purchased skin care products from defendants that have been falsely advertised to have an 'anti-aging' or youth inducing benefit or effect." In September 2005, the court dismissed, with leave to replead, all of the plaintiff's claims in a matter originally brought in December 2004 by the plaintiff purporting to represent a nationwide class. In October 2005, the plaintiff filed a second amended complaint which states the same allegations and requests for relief, but only names one of the Company's subsidiaries and two retailers as defendants. ESTEE LAUDER: Asks FL Court To Dismiss Nationwide Fraud Lawsuit --------------------------------------------------------------- Estee Lauder Companies, Inc. asked the United States District Court for the Southern District of Florida to dismiss the amended nationwide class action filed against its subsidiaries and two of its department store customers. The plaintiff, purporting to represent a nationwide class of individuals "who have purchased skin care products from Defendant that have been falsely advertised to have an 'anti- aging' or youth-inducing benefit or effect," seeks injunctive relief as well as compensatory and punitive damages for alleged breach of express and implied warranties, negligent misrepresentation, and false advertising and unfair business practices. In September 2005, the Company moved to dismiss the complaint. IBM: TX Court Extends Claims Period in Deskstar 75GXP Settlement ---------------------------------------------------------------- Berdon Claims Administration, LLC, reports that District Court for Burleson County Texas, 21st District, ordered that the claims period be extended in the class action settlement styled Daugherity, et. al. v. International Business Machines, Corporation, (IBM), No. 23, 162. The Court's Order reopens the claims period for the filing of additional claims until November 30, 2005. Under the Court's previous Order granting final approval to the settlement, the claims period expired on August 29, 2005. The class action lawsuit alleges that a family of hard disk drives manufactured by IBM - known as a "Deskstar 75GXP" - suffer from a defect or defects that negatively affect the reliability of these hard disk drives. IBM denies plaintiffs' allegations and admits no wrongdoing. Under the terms of the settlement, eligible class members may be able to obtain various benefits. For more details, contact Claims Administrator, Marlene Hurwitz of Berdon Claims Administration, LLC, Phone: (866) 206-6428, Web site: http://www.ibmdeskstar75gxplitigation.com/. ILLINOIS FARMERS: High Court Cans Madison County Judge's Order -------------------------------------------------------------- Just three weeks before Madison County Circuit Judge Phillip Kardis retired, the Illinois Supreme Court threw out an order he entered in favor of plaintiffs in a class action, The Madison County Record reports. In an August 5 order, the Supreme Court remanded Austin v. Illinois Farmers Insurance with instructions to dismiss. Following the duty of obedience, Circuit Judge Nicholas Byron, who has been handling procedural items in former Judge Kardis cases, dismissed the suit on September 28. Court records show that Ola Austin claimed in 2002 that Farmers improperly reduced payouts under "medpay" provisions of its auto insurance policy and moved to represent a plaintiff class. Farmers moved in 2003 to compel arbitration. Attorney Troy Bozarth of Edwardsville argued that the policy required arbitration. In a memorandum, Mr. Bozarth described the response of plaintiff attorney Jeffrey Millar to the motion as "an all-out assault on the very concept of arbitration." Writing by hand, in block letters, in a couple of lines, Judge Kardis denied the motion in August 2003 though. In September 2003, Farmers filed notice of appeal at the Fifth Circuit in Mt. Vernon. In October 2003, Mr. Austin moved to serve subpoenas in Maryland. Judge Kardis granted that motion, ordering Montgomery County, Maryland to commission subpoenas. The appellate court, however, upheld Judge Kardis last year and Farmers appealed to the Supreme Court in September 2004, which vacated the Fifth District decision. ILLINOIS: Oak Forest Officials Settle Suit Over Cell Phone Fees ---------------------------------------------------------------- Officials for the city of Oak Forest, Illinois agreed to settle a class action lawsuit over cell phone fees for a little more than $66,000, The Star Newspapers reports. Reached recently, the settlement includes more than $7,000 in legal fees and almost $59,000 in other fees, which will be placed into a fund that may generate grants for future 911 system upgrades. The lawsuit named more that 100 municipalities in Illinois and was filed by PrimeCo Personal Communications over infrastructure maintenance fees, which were billed to the carrier and passed on to customers from 1998 to 2002. It challenged a state law that allowed municipalities to impose an infrastructure maintenance fee on wireless companies who utilize the airways for transmission instead of underground cables. The Municipal Infrastructure Maintenance Fee Act, the law that was challenged by the suit, allowed municipalities to recoup 1 percent of total charges on telecommunications bills. PrimeCo argued that municipalities could not charge the infrastructure fee because wireless companies did not use any of the rights-of- way or underground wires used by traditional telecommunications companies. Though the law was terminated in 2002 when a simplified act was signed into law, the class action settlement still required municipalities to refund 70 percent of any fees it collected before the law was simplified. In Oak Forest, that amounted to almost $59,000. The city was able to prove exactly how much it collected in cell phone fees. Municipalities could not show that what they collected was charged based on population. Steven Jones, the city's administrator told The Star Newspapers, "This could have cost us $118,000. Our financial department had records of all the cell revenue we collected during the period." The city council unanimously approved the settlement, as well as a move to adjust the fiscal year 2006 budget to accommodate the payment. INTRABIOTICS PHARMACEUTICALS: CA Court Mulls Lawsuit Dismissal -------------------------------------------------------------- The United States District Court for the Northern District of California has yet to rule on Intrabiotics Pharmaceuticals, Inc.'s motion to dismiss the consolidated securities class action filed against it and certain of its officers. Beginning on July 2, 2004, three purported class action shareholder complaints were filed in the United States District Court for the Northern of California against the Company and several of its officers. The actions were consolidated and a consolidated amended complaint has been filed, purportedly brought on behalf of purchasers of the Company's common stock between September 5, 2003 and June 22, 2004. The amended complaint generally alleges that the Company and several of its officers and directors made false or misleading statements concerning the clinical trial of iseganan. The plaintiffs seek unspecified monetary damages. On February 28, 2005, the Company and the individual defendants filed a motion to dismiss the amended complaint. A hearing on the motion to dismiss was held on June 17, 2005 and a ruling on the motion is pending. The suit is styled "In Re: IntraBiotics Pharmaceuticals, Inc. Securities Litigation, case no. 04-CV-2675," filed in the United States District Court for the Northern District of California, under Judge Jeffrey S. White. Lawyers for the Company are Boris Feldman, Cheryl W. Foung, Kassra Powell Nassiri and Ignacio E. Salceda of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304-1050, Phone: 650-493-9300, Fax: 650-565-5100, E-mail: boris.feldman@wsgr.com, cfoung@wsgr.com, knassiri@wsgr.com, isalceda@wsgr.com. 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) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala Cynwyd, PA, 19004, Phone: 610.668.7987, Fax: 610.660.0450, E-mail: esmith@Brodsky-Smith.com (3) Bruce G. Murphy, 265 Llwyds Lane, Vero Beach La, FL, 32963, Phone: 561.231.4202, (4) Charles J. Piven, World Trade Center-Baltimore, 401 East Pratt Suite 2525, Baltimore, MD, 21202, Phone: 410.332.0030, E-mail: pivenlaw@erols.com (5) Green & Jigarjian LLP, 235 Pine Street, 15th Floor, San Francisco, CA, 94104, Phone: 415.477.6700, Fax: 415.477.6710, (6) Milberg Weiss Bershad & Schulman LLP (Los Angeles), 355 South Grand Avenue, Suite 4170, Los Angeles, CA, 90071, Phone: 213.617.9007, Fax: 213.617.9185, E-mail: info@milbergweiss.com (7) Milberg Weiss Bershad & Schulman LLP (New York), One Pennsylvania Plaza, 49th Floor, New York, NY, 10119, Phone: 212.594.5300, Fax: 212.868.1229, E-mail: info@milbergweiss.com (8) Murray, Frank & Sailer LLP, 275 Madison Ave 34th Flr, New York, NY, 10016, Phone: 212.682.1818, Fax: 212.682.1892, E-mail: email@rabinlaw.com (9) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT, 06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail: sn06106@AOL.com (10) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com KINROSS GOLD: NV Court Certifies Breach of Contract Lawsuit ----------------------------------------------------------- The United States District Court for the District of Nevada granted class action status to the matter: Brown v. Kinross Gold U.S.A., Inc. et al., on behalf of all Persons and Entities who Tendered Shares of the $3.75 Series B Convertible Preferred Stock of Kinam Gold Inc. ("Kinam") to Kinross Gold Corporation ("Kinross") Pursuant to the February 20, 2002, Cash Tender Offer (As Amended February 22, 2002 Made by Kinross; and/or (2) Continue to Hold Shares of the $3.75 Series B Convertible Preferred Stock of Kinam; and/or Did Not Tender Shares of the $3.75 Series B Convertible Preferred Stock of Kinam to the February 20, 2002, Cash Tender Offer (As Amended February 22, 2002) Made by Kinross but Have since Sold Such Shares Directly to Kinross, Kinam or Kinross Gold U.S.A. Inc. ("Kinross U.S.A."). The lawsuit asserts claims against Kinross, Kinross U.S.A. Inc., Kinam and Robert M. Buchan for breach of contract (e.g., breach of the terms of the Preferred) and breach of fiduciary duties. The defendants have denied all allegations of wrongdoing asserted against them and have asserted affirmative defenses. For more details, contact Brown v. Kinross, c/o Heffler, Radetich & Saitta L.L.P., 1515 Market Street, Suite 1700, Philadelphia, PA 19102, Phone: (800) 528-7199; and Merrill G. Davidoff, Esq. or Michael Dell'Angelo, Esq. of Berger & Montague, P.C., Phone: +1-215-875-3000. METALS USA: Inks Settlement For DE Suit V. Flag Holdings Merger --------------------------------------------------------------- Metals USA, Inc. and each of its directors face a consolidated class action filed in the Delaware Court of Chancery, related to the merger it entered into with Flag Holdings Corporation in March 2005. Two suits were initially filed, "Robert I. Mawinney v. James E. Bolin, et al., C.A. No. 1367-N," filed on May 20, 2005 and "Taam Associates, Inc. v. James E. Bolin, et al., C. A. No. 1383-N," filed on May 26, 2005. The suits were later consolidated and a Consolidated Amended Class Action Complaint was filed on July 22, 2005. The amended complaint alleges, among other things, that the merger consideration to be paid to the Company's stockholders is "grossly unfair, inadequate and substantially below the fair or inherent value of the Company." In addition, the amended complaint alleges that the Company's directors violated their fiduciary duties by, among other things, agreeing to the merger price in order to benefit themselves personally and financially and by failing to engage in a fair sales process and invite other bidders, and failing to conduct an active market check of the Company's value. The amended complaint further alleges that the proxy statement fails to disclose material information regarding the proposed transaction. The amended complaint seeks, among other things, certification of the lawsuit as a class action, a declaration that the defendants have breached their fiduciary duties, an injunction preventing completion of the merger (or rescinding the merger if it is completed prior to the receipt of such relief), and ordering the board of directors to permit a stockholders' committee to ensure a fair procedure and adequate safeguards in connection with any transaction for the Company's shares, compensatory damages to the class, and attorneys' fees and expenses, along with such other relief as the court might find just and proper. On October 11, 2005, the Company agreed in principle to resolve the suit. Under the proposed settlement, among other things, plaintiffs' claims will be extinguished and Flag Holdings and Flag Acquisition will agree to waive, under certain circumstances, their right to receive any portion of the termination fee payable under the Merger Agreement in excess of $13.6 million (representing a reduction of approximately 20% of the termination fee). In a filing before the Securities and Exchange Commission, the company said it that it continues ". to deny that we engaged in any wrongful acts and entered into this settlement solely for the purpose of eliminating the burden and expense of future litigation." The proposed settlement is subject to, among other things, final approval of the Court and consummation of the Merger. Upon approval of the proposed settlement by the Court, plaintiffs' attorneys are expected to apply for an award of attorneys' fees and expenses. MICROTUNE INC.: Suit Settlement Fairness Hearing Set April 2006 --------------------------------------------------------------- Final fairness hearing for the settlement of the consolidated securities class action filed against Microtune, Inc., Douglas J. Bartek, former Chairman and Chief Executive Officer; Everett Rogers, former Chief Financial Officer and Vice President of Finance and Administration and several investment banking firms that served as underwriters of the Company's initial public offering, is set for April 24,2006 in the United States District Court for the Southern District of New York. Starting on July 11, 2001, multiple purported securities fraud class action complaints were filed in the United States District Court for the Southern District of New York. The Company is aware of at least three such complaints: "Berger v. Goldman, Sachs & Co., Inc. et al.;" "Atlas v. Microtune et al.;" and "Ellis Investments Ltd. v. Goldman, Sachs & Co., Inc. et al." The complaints are brought purportedly on behalf of all persons who purchased the Company's common stock from August 4, 2000 through December 6, 2000 and are related to "In re Initial Public Offering Securities Litigation" (IPO cases). The Company, Mr. Bartek and Mr. Rogers were served with notice of the Atlas complaint on August 22, 2001, however, they have not been served regarding the other referenced complaints. The Berger and Ellis Investment Ltd. complaints assert claims against the underwriters only. The complaints were consolidated and amended on May 29, 2002. The amended complaint alleges liability under Sections 11 and 15 of the Securities Act of 1933, as amended (1933 Act Claims) and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (1934 Act Claims), on the grounds that the registration statement for our initial public offering did not disclose that: (1) the underwriters had agreed to allow certain of their customers to purchase shares in the offering in exchange for excess commissions paid to the underwriters, and (2) the underwriters had arranged for certain of their customers to purchase additional shares in the aftermarket at pre-determined prices. The amended complaint also alleges that false analyst reports were issued. No specific amount of damages is claimed. The Company is aware that similar allegations have been made in other lawsuits filed in the Southern District of New York challenging over 300 other initial public offerings and secondary offerings conducted in 1998, 1999 and 2000. Those cases have been consolidated for pretrial purposes before the Honorable Shira A. Scheindlin. On February 19, 2003, the Court ruled on all defendants' motions to dismiss. The Court denied the motions to dismiss the 1933 Act Claims. The Court did not dismiss the 1934 Act Claims against the Company and other issuers and underwriters. The Company has accepted a settlement proposal presented to all issuer defendants. Under the settlement, plaintiffs will dismiss and release all claims against the Microtune defendants. The insurance companies collectively responsible for insuring the issuer defendants in all of the IPO cases will guarantee plaintiffs a recovery of $1 billion, an amount that covers all of the IPO cases. Under this guarantee, the insurers will pay the difference, if any, between $1 billion and the amount collected by the plaintiffs from the underwriter defendants in all of the IPO cases. The Microtune defendants will not be required to pay any money in the settlement. However, any payment made by the insurers will be charged to the respective insurance policies covering each issuer's case on a "pro rata" basis (that is, the total insurance company payments will be divided by the number of cases that settle). If the "pro rata" charge exceeds the amount of insurance coverage for an issuer, that issuer would be responsible for additional payments. The proposal also provides that the insurers will pay for the company's legal fees going forward. The settlement will require approval of the Court, which cannot be assured. On February 15, 2005, the Court issued an order providing preliminary approval of the settlement except to the extent the settlement would have cut off contractual indemnification claims that underwriters may have against securities issuers, such as Microtune. The Court set a hearing to consider final approval of the settlement for January 9, 2006. On September 1, 2005, the Court finalized its preliminary approval of the settlement and rescheduled the hearing to consider final approval of the settlement for April 24, 2006. NEW YORK: Judge Faults State in Oneonta Racial Profiling Lawsuit ---------------------------------------------------------------- New York Court of Claims Judge Thomas McNamara ruled that state police violated a black woman's rights against unlawful searches when she was stopped during a 1992 hunt for a knife-wielding assailant who authorities believed was a black man, The Associated Press reports. In his ruling, Judge McNamara found that the state was liable for damages to Sheryl Champen, the only female claimant in the class action case. The judge is expected to issue a written ruling within the next three months on whether the rights of 28 black men in Oneonta, New York, were likewise violated in September 1992. The lawsuit claims violations by authorities of the plaintiffs' rights to equal protection, as well as their rights against unlawful search and seizure and seeks more than $3 million in damages on behalf of 60 black people, most of whom were male students at the State University College at Oneonta. As the trial ended last week, Judge McNamara reserved decision on other parts of the suit. A hearing still has to be held regarding Ms. Champen's damages, according to Robert Foley, the judge's clerk. Court records show that Ms. Champen was assistant admissions director at the college when a 76-year-old white woman was attacked at a home a half-mile (0.8 kilometers) away. The victim identified her attacker as a black male, and a blood trail indicated he had been cut. Using a list of black students at the school, police systematically questioned them and black residents of the small upstate city. Ms. Champen was stopped by two troopers and asked for her identification and to show her forearms as she stood in a line to board a bus in Oneonta, according to the claimants' attorney Scott Fein. Black men in line were also questioned. Mr. Fein told The Associated Press, "Her situation was so egregious. She's willing to forgo damages in exchange for a comprehensive state policy against race profiling. The state maintains they have a policy. ... But they need training and accountability." In defending the police, Assistant Attorney General Michael Rizzo insisted there was no racial profiling pointing out that their policy of pursing possible suspects based on a victim's description is "race neutral." The case started when a 77-year-old woman said she was attacked in her home near the State University of New York campus in Oneonta in September 1992. The woman identified her assailant as a black male who may have cut himself, an earlier Class Action Reporter (October 25, 2005) story reports. At the request of state police, Oneonta State school administrators produced a list of black, male students. Police then systematically questioned nearly 100 students and examined their hands and arms for wounds. Authorities also made so-called "street sweeps" in the city, stopping another 200 black men and at least one woman. No arrest was ever made though, an earlier Class Action Reporter (October 25, 2005) story reports. The Oneonta State official who turned over the list of names was temporarily demoted. Former Gov. Mario Cuomo, the state police and Oneonta State officials have all apologized for the searches, an earlier Class Action Reporter (October 25, 2005) story reports. However, after the searches, a group of students, townspeople and others sued in federal court in 1993 claiming local police, state police, the city, state and college unconstitutionally targeted them. In 1995, a federal judge dismissed their claim. Later, the 2nd U.S. Circuit Court of Appeals in New York agreed in part, ruling that the searches did not violate the Constitution's "equal protection" guarantee. The appeals court though did not address the plaintiffs' claim that police violated their Fourth Amendment protections against unreasonable searches or stops. In 2001, the U.S. Supreme Court refused to hear the case. In the meantime, the case slowly progressed through state courts, an earlier Class Action Reporter (October 25, 2005) story reports. The state Court of Claims initially said it did not have the authority to consider claims for monetary damages against the state based on alleged constitutional violations. But, in 1996, the state's highest court, the Court of Appeals, ruled that New Yorkers could seek monetary damages if state government violated their constitutional rights. That ruling upheld the students' claim of alleged state constitutional violations of being discriminated against because of their race and against illegal searches by police. In addition, the court also found that the students might have a valid claim against the state for failure to properly train its personnel. Thus, the Court of Claims was ordered to reconsider the students' case on those points, an earlier Class Action Reporter (October 25, 2005) story reports. RAYTHEON CO.: MA Court Yet To Rule on ERISA Fraud Suit Dismissal ---------------------------------------------------------------- The United States District Court for the District of Massachusetts refused Raytheon Co.'s motion to dismiss the consolidated class action filed against it, alleging violations of the Employee Retirement Income Security Act (ERISA). In May 2003, two purported class action lawsuits were filed on behalf of participants in the Company's savings and investment plans who invested in the Company's stock between August 19, 1999 and May 27, 2003. Both lawsuits are substantially similar and have been consolidated into a single action. In April 2004, a second consolidated amended complaint was filed on behalf of participants and beneficiaries in the Company's savings and investment plans who invested in the Company's stock since October 7, 1998. The Second Consolidated Amended ERISA Complaint alleges that the Company, its Pension and Investment Group, and its Investment Committee breached ERISA fiduciary duties by failing to: (1) prudently and loyally manage plan assets, (2) monitor the Pension and Investment Group and the Investment Committee and provide them with accurate information, (3) provide complete and accurate information to plan participants and beneficiaries, and (4) avoid conflicts of interest. In October 2004, the defendants filed a motion to dismiss the Second Consolidated Amended ERISA Complaint. In September 2005, the court denied the motion to dismiss without prejudice to re- file the motion after the completion of further discovery conducted by the parties. The suit is styled "Wall v. Raytheon CO. et al., 1:03-cv-10940- RGS," filed in the United States District Court in Massachusetts, under Judge Richard G. Stearns. Representing the plaintiffs is Peter H. LeVan, Jr., Hangley Aronchick Segal & Pudlin, One Logan Square, 27th Floor, Philadephia, PA 19103-6933 US, Phone: 215-496-7071, Fax: 215-585-0300. Representing the Company are Rebecca Ruby Anzidei, James P. Gillespie, Nicole Goldstein, Kirkland & Ellis LLP, Suite 1200, 655 Fifteenth St.,N.W., Washington, DC 20005, Phone: 202-879-5046, E-mail: ranzidei@kirkland.com or jgillespie@kirkland.com. SEMPRA ENERGY: Firm's EVP Comments Continental Forge Settlement --------------------------------------------------------------- Javade Chaudhri, executive vice president and general counsel of Sempra Energy (NYSE:SRE), issued the following statement regarding a settlement agreement by Sempra Energy, Southern California Gas Co. and San Diego Gas & Electric with the County of Los Angeles and 11 other individual plaintiffs in the Continental Forge case. Terms of the agreement were not disclosed. "Our companies are pleased to have reached a mutually agreeable settlement for a fraction of these particular plaintiffs' claims. These individual plaintiffs were part of the consolidated case, but not part of the initial class of Ventura County natural gas customers and Southern California Edison customers currently being heard in San Diego Superior Court. "The allegations involved in this case are simply false and, as part of this agreement, Sempra Energy and our affiliate companies expressly deny any wrongdoing." The Continental Forge class-action trial began Oct. 24, 2005, and is expected to continue for three to five months. In addition to the County of Los Angeles, the plaintiffs included in this settlement are: the City of Burbank, City of Culver City, City of Glendale, City of Upland, City of Vernon, County of San Bernardino, Edgington Oil, Imperial Irrigation District, World Oil Corporation, Demenno-Kerdoon and Lunday-Thaggard Company. For more details, contact Doug Kline, Sempra Energy and Stephanie Donovan, Sempra utilities, Phone: (877) 866-2066, E- mail: http://www.sempra.com. SOUTH CAROLINA: Allen Suit Was Filed Too Late, Defense Argues ------------------------------------------------------------- The civil-rights lawsuit brought against city of York, South Carolina and five of its former police officers for a black woman's murder in 1969 was filed too late, according to the defendants' attorneys, The York Daily Record reports. In a request to dismiss the civil-rights allegations, defense attorneys argue that the family of Lillie Belle Allen failed to file the suit within the two-year statute of limitations. Court records show that the 27-year-old South Carolina woman was shot and killed on North Newberry Street when race riots gripped the city in the summer of 1969. Her family filed a civil-rights lawsuit in U.S. Middle District Court on January 29, 2003. That lawsuit contends that she was killed after white police officers had provided city gangs with ammunition and incited them to violence against minorities. It maintains that the ensuing murder investigation was mishandled and that police and city officials conspired to conceal evidence that could have resulted in the timely prosecution of her killers. Instead, according to the suit, Ms. Allen's murder remained unsolved until two men were convicted of second-degree murder in an October 2002 trial. Robert N. Messersmith, 56, is serving a nine-to-19-year prison sentence and Gregory H. Neff, 57, is serving 4� to 10 years. One of the civil suit defendants though, former city police officer and ex-Mayor Charlie Robertson, was acquitted of criminal charges in that same trial. In a recent 80-page filing, defense attorneys point out that the suit could have been filed as early as July 21, 1971, which was exactly two years after Ms. Allen was killed, and as late as October 2002. According to them, the family missed six separate opportunities to file their suit and remain within a two-year statute of limitations each time: (1) A class-action suit brought in 1970 against then-Mayor Eli Eichelberger and city officials alleging unreasonable search and seizure, excessive force and summary punishment and the use of illegal police tactics during the riots. The family should have filed by 1972. (2) Retrospective media coverage in 1974, 1979, 1984, 1989 and 1999 of the riots and Allen's death. The family should have filed within two years of each event. (3) The convening of an investigative grand jury in 2000 that resulted in the arrests of Mr. Messersmith, Mr. Neff, Mr. Robertson and six other men. The family should have filed by 2002. (4) A letter written on August 28, 2000, by Jennie Settles, Ms. Allen's sister, to the Department of Justice alleging her sister's civil rights were violated. The family should have filed by 2002. (5) An October 22, 2000, article read by Ms. Allen's sister, Secina Toole, where witnesses alleged police provoked racial violence. The family should have filed by October 22, 2002. (6) An undated 2000 meeting at the crime scene where "the District Attorney" told family members "Mr. Robertson was likely involved in the death of Ms. Allen," according to the defense's motion. The family should have filed by 2002. In addition, defense attorneys noted in their filing that the family's attorney, Harold Goodman, in a letter dated January 9, 2002, offered to defer filing the lawsuit while the city tried to determine if the civil-rights claim was covered by its insurance. In response, assistant city solicitor Don Hoyt warned Mr. Goodman "your decision to file or not file" would not stop the defense from arguing that the statute of limitation had expired. Ms. Allen's family is expected to respond to the motion to dismiss before a November 4 conference scheduled by Judge Yvette Kane. TALISMAN ENERGY: NY Judge Limits Scope of Church of Sudan's Suit ---------------------------------------------------------------- Judge Denise Cote recently limited the scope of the 2001 lawsuit brought by the Presbyterian Church of Sudan against Calgary- based Talisman Energy Inc. (TSX: TLM) (NYSE: TLM) in U.S. District Court in Manhattan by refusing to grant class action status, The New York Newsday reports. With the Judge Cote's ruling, it will now be up to the 2nd U.S. Circuit Court of Appeals to decide by the end of this year whether to consider the class action issue before the case goes to trial in January 2007. According to the plaintiffs, class action status is crucial to set the stage for a potential large payout to Sudanese victims and to set a precedent for U.S. courts to aid suffering people worldwide who cannot find relief in their own courts. Beth Van Schaack, assistant professor at the Santa Clara University School of Law, who submitted court papers on behalf of human rights groups and activists asking the appeals court to hear the issue, argues that without it, "thousands of victims will be effectively denied any opportunity to pursue legal redress for acts of genocide, crimes against humanity and war crimes." The lawsuit, which was filed by a U.S. anti-slavery group, alleges that the Company conspired with, or aided and abetted, the Government of Sudan to commit violations of international law in connection with the Company's now disposed-of interest in oil operations in Sudan, an earlier Class Action Reporter story (August 1, 2005) reports. The American Anti-Slavery Group charges the Company with violating "international law for participating in the ethnic cleansing of black and non-Muslim Minorities in southern Sudan," an earlier Class Action Reporter story (August 1, 2005) reports. The suit also alleges, "Talisman, in an effort to protect its oil fields in Sudan, aided and abetted the fundamentalist Islamic government in its ongoing and self-proclaimed `jihad' - a campaign that has resulted in massive civilian displacement; the burning of villages, churches and crops; and the murder and enslavement of innocent civilians," an earlier Class Action Reporter story (August 1, 2005) reports. Board member and attorney Carey D'Avino, and another lawyer, Stephen Whinston filed the suit on behalf of plaintiffs that include the Presbyterian Church of Sudan and two individuals, an earlier Class Action Reporter story (August 1, 2005) reports. Last month, Judge Denise Cote ruled that the case cannot proceed as a class action because issues concerning individual plaintiffs were distinct and could not be decided as a class. Ms. Van Schaack though argues that victims of genocide are left with nowhere else to turn if U.S. courts force them to seek justice in the country where they are oppressed. In a telephone interview, Ms. Van Schaack told The New York Newsday that winning class action status for the case might in the future "force companies to think twice before they let the host government provide security or workers who might be subject to forced labor." Among the groups that Ms. Van Schaack represents in the case is the Center for Constitutional Rights, a non-profit organization that has litigated significant international human rights cases for 25 years. She also represents the Allard K. Lowenstein International Human Rights Clinic at Yale Law School, which conducts research for international tribunals. Carey R. D'Avino, a lawyer for the plaintiffs, said in court papers that denial of class certification "may sound the `death knell' for 95 percent of class members," or tens of thousands of people. "This bell tolls most chillingly for all human rights victims against whom the district court's published decision, albeit unintentionally, imposes a new and unjustified procedural barrier," according to him. In court papers filed before Judge Cote ruled, attorneys for Talisman urged her not to certify a class. They wrote, "The truth is that a class action proceeding in a United States court is the wrong mechanism to untangle the human tragedy of a decades-long civil war in Sudan." Talisman also pointed out that a suggestion by plaintiffs that tens of thousands of class members could travel to Kenya for videotaped depositions was impractical. In addition, the company also stated in court documents that the plaintiffs "falsely assert" that Talisman upgraded airstrips at two locations for "security" purposes when they actually had "nothing to do with accommodating military activity." According to the Company, "Plaintiffs similarly paint a grossly misleading portrait that the government of Sudan's use of the airstrips for offensive purposes was routine, and that Talisman Energy knew and gave its approval for the government of Sudan to carry out attacks on civilians." The suit is styled, "The Presbyterian, et al v. Talisman Energy, et al, Case No. 1:01-cv-09882-DLC-HBP," filed in the United States District Court for the Southern District of New York, under Judge Denise L. Cote. Representing the Plaintiff/s are: (1) Carey R. D'Avino of Carey R. D'Avino, P.C., 1251 Avenue of the Americas, 42nd Floor, New York, NY 10020, Phone: (212) 278-1382; (2) Steven E. Fineman and Rachel Geman of Lieff Cabraser Heimann & Bernstein, LLP, 780 Third Ave., 48th Floor, New York, NY 10017, Phone: 212-355-9500, Fax: 212-355- 9592, E-mail: sfineman@lchb.com; (3) Linda Gerstel and Lawrence A. Kill of Anderson, Kill, Olick & Oshinsky P.C., 1251 Avenue of the Americas, New York, NY 10020, Phone: (212) 278-1000, Fax: (212) 278- 1733, E-mail: lgerstel@andersonkill.com and lkill@andersonkill.com; and (4) Keino R. Robinson and Stephen A. Whinston of Berger & Montague, 1622 Locust St., Philadelphia, PA 19103, Phone: (215)-875-4655 and (215) 875-3097, Fax: (215)- 875-4604 and (215) 875-4604, E-mail: krobinson@bm.net and swhinston@bm.net. Representing the Defendant is Darcy Lynne O'Loughlin and Marc Joel Gottridge of Lovells, 900 Third Avenue, 16th Floor, New York, NY 10022, Phone: (212)-367-8381 and (212) 909-0600, Fax: (212)-909-0666 and (212) 909-0666, E-mail: darcy.o'loughlin@lovells.com and marc.gottridge@lovells.com. UNITED SERVICES: IL Judge Gives Final OK to Bemis Settlement ------------------------------------------------------------ Plaintiff attorneys in a class action suit will receive $7 million thanks to a settlement in the case, Bemis vs. United Services Automobile Association (USAA), which Madison County Circuit Judge Nicholas Byron granted final approval to on October 21, The Madison County Record reports. Represented by Richard Burke of the Lakin Law firm in Wood River, Illinois, Chiropractor Gerald Bemis and other plaintiffs claimed in a 2001 suit that USAA improperly reduced payouts under "medpay" provisions of its policies. After the parties settled, they hired Rust Consulting of Faribault, Minnesota to administer claims. Rust Consulting eventually mailed 269,100 notices. Previously, Colorado residents tried to postpone final approval of the settlement with their attorney Timothy Scott of Denver writing to Judge Byron that Colorado law offered better remedies than the settlement. Mt. Scott, however, did not send a filing fee and Judge Byron ignored the document. Rust Consulting received 1,347 responses from potential class members who "opted out," preserving the right to file their own claims. Though the settlement agreement announced the legal fee, it did not disclose the amount that USAA will distribute to the class through Rust Consulting. Mr. Burke and the other attorney of record, Jeffrey Millar of the Lakin firm, will spread a little of the $7 million pot around. Each plaintiff who testified by deposition will receive a $10,000 "incentive," while other named plaintiffs will get $3,000. UNUMPROVIDENT CORPORATION: Policyholders Sue Over Denied Claims --------------------------------------------------------------- Policyholders initiated a lawsuit seeking class action status against UnumProvident Corporation, alleging that it systematically sought ways to avoid paying claims to millions of California customers, The MaineToday.com reports. Filed in California Superior Court the suit comes less than a month after the nation's largest disability insurer was ordered to pay an $8 million fine to settle similar charges against the company by state insurance regulators. UnumProvident was created through the 1999 merger of Provident Cos. of Chattanooga, Tennessee, and Unum Corporation of Portland, Maine. It employs about 12,000, including 3,600 in Maine, and last year paid more than $6 billion in benefits. The California lawsuit seeks billions of dollars in premium refunds and damages for denied claims. It also names UnumProvident subsidiary Paul Revere Life Insurance Co. as one of the defendants. The lead plaintiff in the case is former Berkeley chiropractor Joan Hangarter, who won a unanimous $7.7 million federal jury award after she became disabled by tendonitis and Paul Revere denied her benefits. Attorney Ray Bourhis told MaineToday.com that he expects the settlement with state officials to boost his case against the Chattanooga-based insurer, which settled similar allegations with 48 other states last year. However, UnumProvident spokesperson Mary Clarke Guenther pointed out that the previous California settlement should foreclose the new claims. She also told MaineToday.com "We find his latest complaint completely without merit and believe the recent settlement with California makes Mr. Bourhis' charges moot." New Securities Fraud Cases BOSTON SCIENTIFIC: Brodsky & Smith Lodges Securities Suit in MA ---------------------------------------------------------------- The Law offices of Brodsky & Smith, LLC, initiated a securities class action lawsuit on behalf of shareholders who purchased the common stock and other securities of Boston Scientific Corporation. (NYSE: BSX) ("BSX" or the "Company") between March 31, 2003 and August 23, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the District of Massachusetts. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period, thereby artificially inflating the price of BSX securities. For more details, contact Evan J. Smith, Esq. or Marc L. Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail: clients@brodsky-smith.com. DHB INDUSTRIES: Brodsky & Smith Files Securities Suit in S.D. NY ---------------------------------------------------------------- The Law offices of Brodsky & Smith, LLC, initiated a securities class action lawsuit on behalf of shareholders who purchased the common stock and other securities of DHB Industries, Inc. (AMEX: DHB) ("DHB" or the "Company") between April 21, 2004 and August 29, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the Southern District of New York. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period, thereby artificially inflating the price of DHB securities. For more details, contact Evan J. Smith, Esq. or Marc L. Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail: clients@brodsky-smith.com. LIPMAN ELECTRONIC: Stull Stull Lodges Securities Suit in S.D. NY ---------------------------------------------------------------- The law firm of Stull, Stull & Brody initiated a class action lawsuit in the United States District Court for the Eastern District of New York, on behalf of all persons who purchased the publicly traded securities of Lipman Electronic Engineering, Ltd. ("Lipman " or the "Company") (NYSE:LPMA) between October 4, 2004 and September 27, 2005 (the "Class Period"). The complaint alleges that Lipman violated federal securities laws by making materially false or misleading public statements concerning its acquisition of Dione, Plc. On September 28, 2005, Lipman admitted that the "weaker than expected performance of Dione" caused Lipman to lower its 2005 earnings guidance from $1.39 - $1.42 per share, to $0.88 - $0.98 per share. Lipman also announced that it had terminated the employment of Dione CEO Shaun Gray and that it anticipated it would take a non-cash impairment charge relating to goodwill and other intangible assets in 2005. On this news, Lipman stock fell from a close of $26.19 per share on September 27, 2005, to close at $20.48 per share on September 28, 2005. For more details, contact Tzivia Brody, Esq. of Stull, Stull & Brody, 6 East 45th Street, New York, NY 10017, Phone: 1-800-337-4983, Fax: 212/490-2022, E-mail: SSBNY@aol.com, Web site: http://www.ssbny.com. PIXAR ANIMATION: Brodsky & Smith Lodges Securities Suit in CA ------------------------------------------------------------- The Law offices of Brodsky & Smith, LLC, initiated a securities class action lawsuit on behalf of shareholders who purchased the common stock and other securities of Pixar Animation Studios (NASDAQ: PIXR) ("Pixar" or the "Company") between January 18, 2005 and June 30, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the Northern District of California. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period, thereby artificially inflating the price of Pixar securities. For more details, contact Evan J. Smith, Esq. or Marc L. Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail: clients@brodsky-smith.com. REFCO INC.: Brodsky & Smith Lodges Securities Fraud Suit in NY -------------------------------------------------------------- The Law offices of Brodsky & Smith, LLC, initiated a securities class action lawsuit on behalf of shareholders who purchased the common stock and other securities of Refco, Inc. (OTC: RFXCQ) ("Refco" or the "Company"), between August 10, 2005 and October 13, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the Southern District of New York. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period, thereby artificially inflating the price of Refco securities. For more details, contact Evan J. Smith, Esq. or Marc L. Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail: clients@brodsky-smith.com. TAG-IT PACIFIC: Smith & Smith Lodges Securities Fraud Suit in CA ---------------------------------------------------------------- The law firm of Smith & Smith, LLP, initiated a securities class action lawsuit on behalf of shareholders who purchased securities of Tag-It Pacific, Inc. ("Tag-It Pacific" or the "Company") (AMEX:TAG), between November 14, 2003 and August 12, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the Central District of California. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period concerning the Company's financial performance, thereby artificially inflating the price of Tag-It Pacific securities. For more details, Howard Smith of Smith & Smith, LLP, 3070 Bristol Pike, Suite 112, Bensalem, PA 19020, Phone: (866) 759-2275, E-mail: howardsmithlaw@hotmail.com. TEMPUR-PEDIC INTERNATIONAL: Brodsky & Smith Lodges Suit in NY ------------------------------------------------------------- The Law offices of Brodsky & Smith, LLC, initiated a securities class action lawsuit on behalf of shareholders who purchased the common stock and other securities of Tempur-Pedic International, Inc. (NASDAQ: TPX) ("Temper-Pedic" or the "Company") between April 22, 2005 and September 19, 2005, inclusive (the "Class Period"). The class action lawsuit was filed in the United States District Court for the Eastern District of Kentucky. The Complaint alleges that defendants violated federal securities laws by issuing a series of material misrepresentations to the market during the Class Period, thereby artificially inflating the price of Temper-Pedic securities. For more details, contact Evan J. Smith, Esq. or Marc L. Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite 602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail: clients@brodsky-smith.com. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Aurora Fatima Antonio and Lyndsey Resnick, Editors. Copyright 2005. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *