/raid1/www/Hosts/bankrupt/CAR_Public/051226.mbx
C L A S S A C T I O N R E P O R T E R
Monday, December 26, 2005, Vol. 7, No. 255
Headlines
7-ELEVEN INC.: TX Court Consolidates Shareholder Fraud Lawsuits
AVALONBAY COMMUNITIES: Inks Settlement For CA Homeowners' Suit
AVALONBAY COMMUNITIES: Disabled Files ADA Violations Suit in MD
BUSINESS OBJECTS: CA Court Dismisses Securities Fraud Lawsuit
CALPINE CORPORATION: Working to Settle CA Securities Fraud Suit
CALPINE CORPORATION: CA Fraud Suit Conference Set January 2006
CALPINE CORPORATION: TX Workers File Unfair Labor Practices Suit
CALPINE CORPORATION: CA Court Mulls ERISA Fraud Suit Dismissal
CALPINE ENERGY: Forges Settlement For CA Overtime Wage Lawsuit
CALPINE ENERGY: Energy Antitrust Lawsuits Dismissed, Resolved
CONAGRA FOODS: Expands Meat Recall Due To Listeria Contamination
COUNTERFEIT DRUGS: Many Imported Drugs Fake, Likely Unsafe
FAKE VACCINES: FDA Warns Firms Selling Fake Avian Flu Vaccines
MARVEL ENTERPRISES: NY Retailer Suit Settlement Deemed Final
MBI DISTRIBUTING: Agrees To Halt Production For FDA Violations
MCKESSON CORPORATION: CA Fairness Hearing Set For January 2006
MCLEODUSA INC.: Continues to Face IA Securities Fraud Lawsuit
MOTIENT CORPORATION: Shareholders Launch Suit V. Exchange Offer
PEMSTAR INC.: Reaches Settlement For Securities Suit in MN Court
PSS WORLD: FL Court Mulls Approval of Securities Suit Settlement
QUALITY DISTRIBUTION: Pays For FL Securities Lawsuit Settlement
RECREATIONAL EQUIPMENT: Recalls Bicycles For Injury, Crash Risk
RENAISSANCERE HOLDINGS: Shareholders File Fraud Suits in S.D. NY
SOURCECORP INC.: Continues To Face Securities Fraud Suit in TX
SPANISH BROADCASTING: Suit Fairness Hearing Set April 2006 in NY
SPRINT NEXTEL: Shareholders Launch Securities Fraud Suit in KS
TEDCO INC.: FDA Warns V. Using Miracle II Neutralizer Products
TRANSKARYOTIC THERAPIES: MA Court Yet To Rule on Certification
TRIPOS INC.: MO Court Refuses To Dismiss Securities Fraud Suit
VIRBAC CORPORATION: TX Court Approves Securities Suit Settlement
WAVE SYSTEMS: Faces Consolidated Securities Fraud Lawsuit in MA
New Securities Fraud Cases
BIO ONE: Berman DeValerio Launches Securities Suit in M.D. FL
GENERAL MOTORS: Lerach Coughlin Files Securities Suit in E.D. MI
SERACARE LIFE: Lerach Coughlin Files Securities Suit in S.D. CA
STONE ENERGY: Cohen Milstein Launches Securities Suit in W.D. LA
WELLS FARGO: Stull Stull Commences Securities Lawsuit in N.D. CA
*********
7-ELEVEN INC.: TX Court Consolidates Shareholder Fraud Lawsuits
---------------------------------------------------------------
The 298th District Court of Dallas, Texas consolidated six
lawsuits filed against 7-Eleven, Inc., Seven-Eleven Japan Co.,
Ltd. (SEJ) and members of their Boards of Directors since
September 1, 2005, the date that SEJ announced its intention to
make a tender offer to purchase all of the issued and
outstanding common stock of the Company at a price of $37.50 per
share.
The petitions initiating the lawsuits generally alleged, among
other things, that the defendants breached fiduciary duties owed
to the Company's shareholders other than SEJ and its subsidiary
IYG Holding Company 9IYG) in connection with the Offer; that the
Offer Price is inadequate; and that a majority of the defendants
have conflicts of interest with respect to the Offer. All of the
petitions requested that the consummation of the Offer be
enjoined, which did not occur. In addition, the petitions
generally sought an award of damages, or the imposition of a
constructive trust, upon consummation of the Offer.
On September 30, 2005, the 298th District Court of Dallas
County, Texas ordered that the following shareholder class
action lawsuits be transferred to the 298th District Court and
consolidated for all purposes under the caption "In re 7-Eleven,
Inc. Shareholders Litigation, (Consolidated Cause No. 05-08944-
M):
(1) Kaufman v. Suzuki et al., Case No. 05-09450-C (As
amended, filed in the 68th District Court, Dallas
County, Texas on September 16, 2005)
(2) Casden v. 7-Eleven, Inc., et al., No. 05-08944-M (As
amended, filed in 298th District Court, Dallas County,
Texas on September 19, 2005)
(3) Green Meadows Partners L.P. v. Devening, et al., No.
05-11507-A (As amended, filed in County Court at Law
No. 1, Dallas County, Texas on September 8, 2005)
(4) Siebels et al. v. Suzuki et al., No. 05-09600-G (Filed
in 134th District Court, Dallas County, Texas on
September 13, 2005)
AVALONBAY COMMUNITIES: Inks Settlement For CA Homeowners' Suit
--------------------------------------------------------------
AvalonBay Communities, Inc. reached a settlement for the
California class action lawsuit filed against it, styled "Julie
E. Ko v. AvalonBay Communities, Inc. and Does 1 through 100."
The suit, filed in the Los Angeles County Superior Court in
California, purports to be brought on behalf of all of the
Company's former California residents who, during the four-year
period prior to the filing of the suit, paid a security deposit
to the Company for the rental of residential property in
California and had a portion of the deposit withheld by the
Company in excess of the damages actually sustained by the
Company. The plaintiff seeks compensatory and statutory damages
in unspecified amounts as well as injunctive relief,
restitution, and an award of attorneys' fees, expenses and costs
of suit. The complaint seeking class certification was amended
in March 2004 and the Company responded to the amended complaint
on May 3, 2004. The Company has agreed with the plaintiff on
the terms of a settlement with the purported class, and the
Company expects the settlement terms to be submitted for court
approval during the fourth quarter of 2005.
AVALONBAY COMMUNITIES: Disabled Files ADA Violations Suit in MD
---------------------------------------------------------------
AvalonBay Communities, Inc. faces a class action filed in the
United States District Court for the District of Maryland,
styled "Equal Rights Center v. AvalonBay Communities, Inc."
The suit was filed on September 23, 2005 on behalf of disabled
individuals. This case alleges various violations of the Fair
Housing Act and the Americans with Disabilities Act at 100
properties currently or formerly owned by the Company. The
plaintiff seeks compensatory and punitive damages in unspecified
amounts as well as injunctive relief, and an award of attorneys'
fees, expenses and costs of suit.
The suit is styled `The Equal Rights Center v Avalonbay
Communities, Inc., case no. 8:05-cv-02626-AW', filed in the
United States District Court for the District of Maryland, under
Judge Alexander Williams Jr. Representing the Company is Peter
L Winik, Latham and Watkins LLP, 555 11th St NW Ste 1000,
Washington, DC 20004-1304, Phone: 12026372224, Fax: 12026372201,
E-mail: peterwnik@lw.com. Representing the plaintiffs is Gary
S. Thompson, Gilbert Heintz and Randolph LLP, 1100 New York Ave
NW Ste 700, Washington, DC 20005-3324, Phone: 12027722291, Fax:
12027722293, E-mail: thompsong@ghrdc.com.
BUSINESS OBJECTS: CA Court Dismisses Securities Fraud Lawsuit
-------------------------------------------------------------
The United States District Court for the Northern District of
California granted Business Objects S.A.'s motion to dismiss the
consolidated securities class action filed against it and
certain of its current and former officers and directors.
Between June 2 and July 1, 2004, four purported class action
complaints were filed, alleging violations of the Exchange Act,
and Rule 10b-5 promulgated thereunder. The plaintiffs seek to
represent a putative class of investors in the Company's
American Depositary Shares (ADSs) who purchased ADSs between
April 23, 2003 and May 5, 2004.
A consolidated amended complaint has been filed. The complaints
generally alleged that, during that Class Period, the Company
and the individual defendants made false or misleading
statements in press releases and SEC filings regarding, among
other things, the Company's acquisition of Crystal Decisions,
its Enterprise 6 product and its forecasts and financial results
for the three months ended March 31, 2004.
On July 27, 2005, the Court granted defendants' motion to
dismiss and granted plaintiffs 30 days to file an amended
complaint. On September 8, 2005, the Court, pursuant to the
parties' stipulation, entered an order dismissing the action
with prejudice and the matter was concluded.
The suits are styled:
(1) Rosenbaum Partners LP v. Business Objects S. A. et al.,
3:04-cv-02863-MJJ, under Judge Martin J. Jenkins,
(2) Judkins et al v. Business Objects S. A. et al., 5:04-
cv-03103-JW, under Judge James Ware
(3) City of Pontiac Policemen and Firemen Retirement System
v. Business Objects S.A. et al., 3:04-cv-02401-MJJ,
under Judge Martin J. Jenkins,
(4) Campagnuola v. Business Objects S.A., et al, 5:04-cv-
03085-JW, under Judge James Ware
The plaintiff firms in this litigation are:
(i) 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
(ii) Charles J. Piven, World Trade Center-Baltimore,401 East
Pratt Suite 2525, Baltimore, MD, 21202, Phone:
410.332.0030, W-mail: pivenlaw@erols.com
(iii) Geller Rudman, PLLC, 197 South Federal Highway, Suite
200, Boca Raton, FL, 33432, Phone: 561.750.3000, Fax:
888.262.3131, E-mail: info@geller-rudman.com
(iv) Lerach Coughlin Stoia Geller Rudman & Robbins (Los
Angeles), 355 S. Grand Avenue, Suite 4170, Los Angeles,
CA, 90071, Phone: 213.617.9007, E-mail: 213.617.9185,
E-mail: info@lerachlaw.com
(v) Lerach Coughlin Stoia Geller Rudman & Robbins (San
Diego), 401 B Street, Suite 1700, San Diego, CA, 92101,
Phone: 619.231.1058, Fax: 619.231.7423, E-mail:
info@lerachlaw.com
(vi) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, e-mail:
sn06106@AOL.com
(vii) Spector, Roseman & Kodroff (Philadelphia), 1818 Market
Street; Suite 2500, Philadelphia, PA, 19103, Phone:
215.496.0300, Fax: 215.496.6610, e-mail:
classaction@srk-law.com
CALPINE CORPORATION: Working to Settle CA Securities Fraud Suit
---------------------------------------------------------------
Calpine Corporation forged a settlement for the securities class
action filed against it and certain of its employees, officers
and directors in the United States District Court for the
Northern District of California.
Beginning on March 11, 2002, fifteen securities class action
complaints were filed in the U.S. District Court for the
Northern District of California. All of these actions were
ultimately assigned to Judge Saundra Brown Armstrong, and Judge
Armstrong ordered the actions consolidated for all purposes on
August 16, 2002, as "In re Calpine Corp. Securities Litigation,
Master File No. C 02-1200 SBA." There is currently only one
claim remaining from the consolidated actions: a claim for
violation of Section 11 of the Securities Act of 1933. The
Court has dismissed all of the claims brought under Section
10(b) of the Securities Exchange Act of 1934 with prejudice.
On October 17, 2003, plaintiffs filed their third amended
complaint (TAC), which alleges violations of Section 11 of the
Securities Act by the Company, Peter Cartwright, Ann B. Curtis
and Charles B. Clark, Jr. The suit alleges that the
registration statement and prospectuses for the Company's 2011
Notes contained materially false or misleading statements about
the factors that caused the power shortages in California in
2000-2001 and the resulting increase in wholesale energy prices.
The suit alleges that the true but undisclosed cause of the
energy crisis is that the Company and other power producers were
engaging in physical withholding of electricity.
In discovery, plaintiff has argued that the suit is not based
solely on allegedly concealed physical withholding, but instead
is based on alleged undisclosed market manipulation in the form
of physical withholding, economic withholding, and trading
strategies. The suit defines the potential class to include all
purchasers of the Notes pursuant to the registration statement
and prospectuses on or before January 27, 2003. The Court has
not yet certified the class, although class certification
hearing was held on May 3, 2005.
On April 15, 2004, The Policemen and Firemen Retirement
System of the City of Detroit (the "Detroit Fund") filed a
request to be appointed as lead plaintiff in the case. The
Court granted the Detroit Fund's request for appointment as lead
plaintiff on May 7, 2004. The Court also approved the Detroit
Fund's choice of Kohn, Swift & Graf, P.C. (Philadelphia) as lead
counsel for the class.
At the Court's invitation, defendants subsequently moved for
summary judgment on grounds that the Section 11 claim was barred
by the statute of limitations. On November 2, 2004, the Court
denied the motion on grounds that defendants had not established
as a matter of law that plaintiff was on notice of the alleged
misstatement prior to January 27, 2002, one year before
plaintiff first alleged that the Company had misrepresented the
causes of the energy crisis.
On June 10, 2005, the Court held a hearing on the motion for
class certification, and denied the motion without prejudice.
Lead plaintiff asked for, and received, leave to file a brief on
June 24, 2005 to attempt to demonstrate why a class should be
certified, and what its parameters should be. Defendant
responded to that brief on July 8, 2005. Judge Saundra Brown
Armstrong denied the motion for class certification on August
10, 2005. The settlement amount is being paid by insurance.
The Company currently expects the settlement to be finalized
before the end of 2005.
The suit is styled "In re Calpine Corp. Securities Litigation,
Master File No. C 02-1200 SBA" filed in the United States
District Court for the Northern District of California under
Judge Saundra Brown Armstrong. Representing lead plaintiff The
Policemen and Firemen Retirement System of the City of Detroit
is Joseph C. Kohn of Kohn Swift & Graf P.C., One South Broad
Street, Suite 2100 Philadelphia, PA 19107 Phone: 215-238-1700.
Representing the Company is D. Anthony Rodriguez of Morrison &
Foerster LLP, 425 Market Street San Francisco, CA 94105-2482
Phone: (415) 268-6685 Fax: (415) 268-7522 E-mail:
drodriguez@mofo.com.
CALPINE CORPORATION: CA Fraud Suit Conference Set January 2006
--------------------------------------------------------------
The California Superior Court for Santa Clara County held a case
management conference for the class action filed against Calpine
Corporation on July 5,2005. The suit is styled "Hawaii
Structural Ironworkers Pension Fund v. Calpine, et al."
This case is a Section 11 case brought as a class action on
behalf of purchasers in the Company's April, 2002 stock
offering. This case was filed in San Diego County Superior Court
on March 11, 2003, but defendants won a motion to transfer the
case to Santa Clara County. The suit also names as defendants:
(1) Peter Cartwright, its Chairman, President and Chief
Executive Officer,
(2) Ann B. Curtis, director
(3) John Wilson,
(4) Kenneth Derr,
(5) George Stathakis,
(6) Credit Suisse First Boston (CSFB),
(7) Banc of America Securities,
(8) Deutsche Bank Securities, and
(9) Goldman, Sachs & Co.
Plaintiff is the Hawaii Structural Ironworkers Pension Trust
Fund. The Hawaii Fund alleges that the prospectus and
registration statement for the April 2002 offering had false or
misleading statements regarding:
(i) the Company's actual financial results for 2000 and
2001;
(ii) its projected financial results for 2002;
(iii) Mr. Cartwright's agreement not to sell or purchase
shares within 90 days of the offering; and
(iv) the Company's alleged involvement in "wash trades."
The core allegation of the complaint is that a March 2003
restatement (concerning two sales-leaseback transactions)
revealed that the Company had misrepresented its financial
results in the prospectus/registration statement for the April
2002 offering.
There is no discovery cut off date or trial date in this action.
The next scheduled court hearing will be a case management
conference on January 10,2006, at which time the court may set a
discovery deadline and trial date.
CALPINE CORPORATION: TX Workers File Unfair Labor Practices Suit
----------------------------------------------------------------
Calpine Corporation faces a complaint filed with the United
States Equal Employment Opportunity Commission (EEOC), alleging
claims of racial discrimination, retaliation, slander, a hostile
work environment and constructive discharge.
On September 13, 2005, the Company received a letter from an
attorney representing one current and six former employees
located in the Houston, Texas office. The seven individuals
have also filed Notices of Charge of Discrimination with the
U.S. Equal Employment Opportunity Commission.
The complaint is styled `Scott, et al. v. Calpine Corporation.'
Outside counsel has been retained and has investigated the
claims in anticipation of threatened litigation, the Company
said in a disclosure to the Securities and Exchange Commission.
CALPINE CORPORATION: CA Court Mulls ERISA Fraud Suit Dismissal
--------------------------------------------------------------
The United States District Court for the Northern District of
California heard Calpine Corporation's motion to dismiss the
amended consolidated class action filed against it, alleging
violations of the Employee Retirement Income Security Act
(ERISA). The court has yet to release a ruling.
On April 17, 2003, James Phelps filed a complaint, styled
"Phelps v. Calpine Corporation, et al., alleging claims under
ERISA. On May 19, 2003, Lenette Poor-Herena filed a nearly
identical class action complaint in the Northern District. The
parties agreed to have both of the ERISA actions assigned to
Judge Saundra Brown Armstrong. On August 20, 2003, pursuant to
an agreement between the parties, Judge Armstrong ordered that
the two ERISA actions be consolidated under the caption, "In re
Calpine Corporation ERISA Litig., Master File No. C 03-1685
SBA." Plaintiff James Phelps filed a consolidated ERISA
complaint on January 20, 2004. Ms. Poor-Herena is not
identified as a plaintiff in the Consolidated Complaint.
The Consolidated Complaint defines the class as all participants
in, and beneficiaries of, the Calpine Corporation Retirement
Savings Plan (the "Plan") for whose accounts investments were
made in Company stock during the period from January 5, 2001 to
the present. The Consolidated Complaint names as defendants the
Company, the members of its Board of Directors, the Plan's
Advisory Committee and its members (Kati Miller, Lisa
Bodensteiner, Rick Barraza, Tom Glymph, Patrick Price, Trevor
Thor, Bob McCaffrey, and Bryan Bertacchi), signatories of the
Plan's Annual Return/ Report of Employee Benefit Plan Forms 5500
for 2001 and 2002 (Pamela J. Norley and Marybeth Kramer-Johnson,
respectively), an employee of a consulting firm hired by the
Plan (Scott Farris), and unidentified fiduciary defendants.
The Consolidated Complaint alleges that defendants breached
their fiduciary duties involving the Plan, in violation of
ERISA, by misrepresenting the Company's actual financial results
and earnings projections, failing to disclose certain
transactions between the Company and Enron that allegedly
inflated revenues, failing to disclose that the shortage of
power in California during 2000-2001 was due to withholding of
capacity by certain power companies, failing to investigate
whether the Company's common stock was an appropriate investment
for the Plan, and failing to take appropriate actions to prevent
losses to the Plan. In addition, the consolidated ERISA
complaint alleges that certain of the individual defendants
suffered from conflicts of interest due to their sales of
Company stock during the class period.
Defendants moved to dismiss the consolidated complaint. At a
February 11, 2005 hearing, Judge Armstrong granted the motion
and dismissed three of the four claims with prejudice. The
fourth claim was dismissed with leave to amend. This claim was
based, in part, on the same statements that are at issue in the
Section 11 bond class action. Plan participants did not receive
the prospectus supplements that are at issue in the Section 11
bond class action, but plaintiffs' counsel told Judge Armstrong
that these statements appeared in documents that were given to
Plan participants. Relying on assurances by plaintiffs' counsel
that misstatements about the California energy crisis appeared
in documents that were given to Plan participants (or that were
incorporated by reference into documents given to participants),
the Court granted leave to re-plead this claim. Defendants have
filed motions to dismiss the Amended Consolidated Complaint,
which the court heard on December 6, 2005.
The suit is styled "In re Calpine Corporation ERISA Litig.,
Master File No. C 03-1685 SBA," filed in the United States
District Court for the Northern District of California, under
Judge Saundra Brown Armstrong. Representing the Company is
Robert L. McKague of Morrison & Foerster LLP, 755 Page Mill Road
Palo Alto, CA 94304 Phone: 650/813-5835 Fax: 650-494-0792 E-
mail: rmckague@mofo.com. Representing the plaintiffs are:
(1) Edward W. Ciolko, F. Andre Delfi, and Joseph H.
Meltzer, Schiffrin & Barroway, LLP, 280 King of Prussia
Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056
E-mail: jmeltzer@sbclasslaw.com;
(2) Robert S. Green and Robert A. Jigarjian, Green Welling
LLP, 235 Pine Street 15th Floor San Francisco, CA 94104
Phone: 415/477-6700 Fax: 415-477-6710 E-mail:
CAND.USCOURTS@CLASSCOUNSEL.COM
CALPINE ENERGY: Forges Settlement For CA Overtime Wage Lawsuit
--------------------------------------------------------------
Calpine Corporation reached a preliminary settlement for the
class action filed in the Santa Clara County Superior Court in
California, styled "Hulsey, et al. v. Calpine Corporation."
On September 20, 2004, Virgil D. Hulsey, Jr. (a current
employee) and Ray Wesley (a former employee) filed a class
action wage and hour lawsuit against the Company and certain of
its affiliates. The complaint alleges that the purported class
members were entitled to overtime pay and the Company failed to
pay the purported class members at legally required overtime
rates.
The Company filed an answer on January 7, 2005, denying
plaintiffs' claims. The parties engaged in settlement
discussions as an alternative to litigation and reached a
tentative settlement. The settlement is still subject to court
approval.
CALPINE ENERGY: Energy Antitrust Lawsuits Dismissed, Resolved
-------------------------------------------------------------
The United States Ninth Circuit Court of Appeals upheld the
dismissal of the class action filed against Calpine Energy
Services, Inc. and other energy traders and energy companies,
alleging violations of the California Business & Professions
Code Section 17200.
The lead case is T&E Pastorino Nursery v. Duke Energy Trading
and Marketing, L.L.C., et al. This purported class action
complaint filed in May 2002 alleges that defendants exercised
market power and manipulated prices in violation of California
Business & Professions Code. The suit seeks injunctive relief,
restitution, and attorneys' fees. The Company also has been
named in eight other similar complaints for violations of
Section 17200. All eight cases were removed from the various
state courts in which they were originally filed to the United
States District Court in California for pretrial proceedings
with other cases in which the Company is not named as a
defendant.
The Company considers the allegations to be without merit, and
filed a motion to dismiss on August 28, 2003. The court granted
the motion, and plaintiffs have appealed. The Ninth Circuit has
issued a decision affirming the dismissal of the Pastorino group
of cases.
Prior to the motion to dismiss being granted, one of the
actions, captioned Millar v. Allegheny Energy Supply Co., LLP,
et al., was remanded to state superior court of Alameda County,
California. On January 12, 2004, the Company was added as a
defendant in Millar. This action includes similar allegations
to the other Section 17200 cases, but also seeks rescission of
the long-term power contracts with the California Department of
Water Resources. Upon motion from another newly added
defendant, Millar was recently removed to federal court, but has
now been remanded back to State Superior Court for handling.
Hearings on multiple demurrers were held on September 7, 2005,
at which time, the Judge dismissed the case without leave to
amend. Millar did not attempt to appeal the dismissal ruling.
Thus, the entire case is now resolved.
CONAGRA FOODS: Expands Meat Recall Due To Listeria Contamination
----------------------------------------------------------------
ConAgra Foods, a Marshall, Mo., firm, is voluntarily expanding
its December 1 recall of approximately 9,550 pounds of various
bologna, ham and turkey lunch meal products to a total of 2.8
million pounds due to possible contamination after cheese
provided by its supplier tested positive for Listeria
monocytogenes, the U.S. Department of Agriculture's Food Safety
and Inspection Service announced today.
The products subject to recall are:
(1) 2.6-ounce packages of "ARMOUR, Lunch Makersr, CRACKER
CRUNCHERS, Cooked Ham, Contains a Nestler Crunchr Bar."
Each package bears the establishment number "Est. 1059"
inside the USDA seal of inspection, the product code
"4660003427" and the sell by date, "JAN 01, 2006," "JAN
06, 2006," "JAN 08, 2006," "JAN 12, 2006," "JAN 19,
2006," "JAN 20, 2006," "JAN 21, 2006," "JAN 22, 2006,"
"JAN 23, 2006," "JAN 26, 2006," "JAN 27, 2006," "JAN
30, 2006," "FEB 02, 2006," "FEB 03, 2006," "FEB 04,
2006," "FEB 05, 2006," "FEB 06, 2006," "FEB 07, 2006,"
"FEB 08, 2006, "FEB 09, 2006," "FEB 10, 2006," "FEB 11,
2006" or "FEB 20, 2006.
(2) 2.6-ounce packages of "ARMOUR, Lunch Makersr, CRACKER
CRUNCHERS, Bologna, Contains a Nestler Butterfingerr
Bar." Each package bears the establishment number "P-9"
inside the USDA seal of inspection, the product code
"4660003384" and the sell by date, "JAN 07, 2006," "JAN
12, 2006," "JAN 13, 2006," "JAN 19, 2006," "JAN 20,
2006," "JAN 30, 2006," "FEB 04, 2006," "FEB 05, 2006,"
"FEB, 07, 2006," "FEB 16, 2006" or "FEB 17, 2006."
(3) 2.6-ounce packages of "ARMOUR, Lunch Makersr, CRACKER
CRUNCHERS, Turkey, Contains a Nestler Butterfingerr
Bar." Each package bears the establishment number "P-9"
inside the USDA seal of inspection, the product code
"4660003428 and the sell by date, "JAN 01, 2006," "JAN
07, 2006," "JAN 09,2006," "JAN 13, 2006," "JAN 21,
2006," "JAN 22, 2006," "JAN 26,2006," "FEB 02, 2006,"
"FEB 03, 2006," "FEB 04, 2006," "FEB 05, 2006," "FEB
06, 2006, "FEB 08, 2006," "FEB 09, 2006," "FEB 10,
2006," "FEB 16, 2006," "FEB, 17, 2006," "FEB 18, 2006,"
"FEB 19, 2006" or "FEB 20, 2006."
(4) 2.6-ounce and 8-fluid ounce packages of "ARMOUR, Lunch
Makersr Bologna Fun Kit, CRACKER CRUNCHERS, Bologna."
The package also contains a Nestler Crunchr Bar and
Hawaiian Punchr fruit drink. Each package bears the
establishment number "P-9" inside the USDA seal of
inspection, the product code "4660002263" and the sell
by date, "JAN 02, 2006," "JAN 22, 2006," "JAN 26,
2006," "FEB 04, 2006," "FEB 11, 2006" or "FEB 17,
2006."
(5) 2.6-ounce and 8-fluid ounce packages of "ARMOUR, Lunch
Makersr Ham Fun Kit, CRACKER CRUNCHERS, Cooked Ham."
The package also contains a Nestler Butterfingerr Bar
and Hawaiian Punchr fruit drink. Each package bears the
establishment number "Est. 1059" inside the USDA seal
of inspection, the product code "4660002262" and the
sell by date, "JAN 12, 2006," "JAN 13, 2006" "JAN 16,
2006," "JAN 19, 2006," "JAN 23, 2006," "JAN 26, 2006,"
"JAN 27, 2006," "JAN 28, 2006," "FEB 10, 2006," "FEB
11, 2006," "FEB 18, 2006" or "FEB 19, 2006."
(6) 2.6-ounce and 8-fluid ounce packages of "ARMOUR, Lunch
Makersr Turkey Fun Kit, CRACKER CRUNCHERS, Turkey." The
package also contains a Nestler Crunchr Bar and
Hawaiian Punchr fruit drink. Each package bears the
establishment number "P-9" inside the USDA seal of
inspection, the product code "4660002261" and the sell
by date, "JAN 07, 2006," "JAN 12, 2006," "JAN 16,
2006," "JAN 21, 2006," "JAN 22, 2006," "JAN 23, 2006,"
"JAN 27, 2006," "JAN 28, 2006," "FEB 04, 2006," "FEB
10, 2006," "FEB 16, 2006" or "FEB 17, 2006."
(7) 2.6-ounce packages of "ARMOUR, Lunch Makersr, CRACKER
CRUNCHERS, Chicken, Contains a Nestler Crunchr Bar."
Each package bears the establishment number "P-9"
inside the USDA seal of inspection, the product code
"4660003383" and the sell by date, "JAN 01, 2006," "JAN
02, 2006," "JAN 09, 20006," JAN 16, 2006," "JAN 23,
2006," "JAN 30, 2006," "FEB 06, 2006," "FEB 07, 2006,"
"FEB 16, 2006," "FEB 17, 2006," "FEB 18, 2006," "FEB
19, 2006," "FEB 20, 2006" or "FEB 21, 2006."
The ham, bologna, turkey and chicken lunch meal products were
produced on various dates between October 13 and December 3 and
were distributed to retail establishments nationwide.
The problem was discovered through the company's internal
investigation to identify the root cause of the December 1
voluntary recall. FSIS has received no reports of illnesses
associated with consumption of these products.
Consumption of food contaminated with Listeria monocytogenes can
cause listeriosis, an uncommon but potentially fatal disease.
Healthy people rarely contract listeriosis. However, listeriosis
can cause high fever, severe headache, neck stiffness and
nausea. Listeriosis can also cause miscarriages and stillbirths,
as well as serious and sometimes fatal infections in those with
weakened immune systems, such as infants, the elderly and
persons with HIV infection or undergoing chemotherapy.
Media with questions about the recall should contact company
Public Affairs Director, Tania Graves at (402) 595-6258.
Consumers with questions about the recall should call the Lunch
Makers consumer information line at (800) 414-7500.
Consumers with food safety questions can call the toll-free USDA
Meat and Poultry Hotline at (888) 674-6854. The hotline is
available in English and Spanish and can be reached from l0 a.m.
to 4 p.m. (Eastern Time) Monday through Friday. Recorded food
safety messages are available 24 hours a day.
COUNTERFEIT DRUGS: Many Imported Drugs Fake, Likely Unsafe
----------------------------------------------------------
An FDA operation found that nearly half of the imported drugs
FDA intercepted from four selected countries were shipped to
fill orders that consumers believed they were placing with
"Canadian" pharmacies. Of the drugs being promoted as
"Canadian," based on accompanying documentation, 85 percent
actually came from 27 countries around the globe. A number of
these products also were found to be counterfeit.
"This operation suggests that drugs ordered from so-called
`Canadian' Internet sites are not drugs of known safety and
efficacy," said Dr. Andrew von Eschenbach, Acting FDA
Commissioner. "These results make clear there are Internet sites
that claim to be "Canadian" that, in fact, are peddling drugs of
dubious origin, safety, and efficacy. We believe that these
`bait and switch' tactics-offering patients one thing and then
giving them something else- are misleading to patients and
potentially harmful to the public health."
FDA conducted its operation, named "Operation Bait and Switch,"
over a few days in August 2005 at JFK Airport in New York City,
Miami International Airport, and Los Angeles International
Airport. FDA examined all mail parcels suspected of containing
pharmaceuticals sent from four countries-India, Israel, Costa
Rica, and Vanuatu-that FDA had previously noticed were sources
of drugs apparently ordered from pharmacies alleged to be
Canadian in origin. Out of nearly 4,000 parcels examined, almost
1,700 or about 43 percent had been ordered from "Canadian"
Internet pharmacies and were represented as being of Canadian
origin.
However, only 15 percent of the "Canadian" drugs in the parcels
examined actually originated in Canada. The remaining 85 percent
were manufactured in 27 different countries. In addition to
having been falsely promoted as being of Canadian origin, many
of these drugs were not adequately labeled in English to help
assure safe and effective use.
Thirty-two of the pharmaceuticals sampled, representing three
distinct drug products, have been determined to be counterfeit.
FDA is working closely with the Canadian drug regulatory and law
enforcement authorities on this matter. FDA will take
appropriate action to keep these counterfeit products out of the
U.S. drug supply and pursue actions against those responsible
for attempting to defraud the American public.
FAKE VACCINES: FDA Warns Firms Selling Fake Avian Flu Vaccines
--------------------------------------------------------------
The U.S. Food and Drug Administration (FDA) issued warning
letters recently to nine companies marketing bogus flu products
behind claims that their products could be effective against
preventing the avian flu or other forms of influenza. FDA is not
aware of any scientific evidence that demonstrates the safety or
effectiveness of these products for treating or preventing avian
flu and the agency is concerned that the use of these products
could harm consumers or interfere with conventional treatments.
"There are initiatives in place to deter counterfeiters and
those who sell fraudulent or phony products to prevent or treat
avian flu," said Andrew von Eschenbach, MD, Acting FDA
Commissioner. "The use of unproven flu cures and treatments
increases the risk of catching and spreading the flu rather than
lessening it because people assume they are protected and safe
and they aren't. I consider it a public health hazard when
people are lured into using bogus treatments based on deceptive
or fraudulent medical claims."
FDA issued Warning Letters to nine firms marketing products
making unproven claims that they treat or prevent avian flu or
other forms of influenza. Eight of the products purported to be
dietary supplements. Examples of the unproven claims cited in
the Warning Letters include: "prevents avian flu," "a natural
virus shield," "kills the virus," and "treats the avian flu."
These alternative therapies are promoted as "natural" or "safer"
treatments that can be used in place of an approved treatment or
preventative medical product.
In the Warning Letters, FDA advises the firms that it considers
their products to be drugs because they claim to treat or
prevent disease. The Warning Letters further state that FDA
considers these products to be "new drugs" that require FDA
approval before marketing. The letters also note that the claims
regarding avian flu are false and misleading because there is no
scientific basis for concluding that the products are effective
to treat or prevent avian flu. The companies have 15 days to
respond to FDA.
Consumers who believe that they have seen a fraudulent product
can report it to the FDA at
http://www.fda.gov/oc/buyonline/buyonlineform.htm.
For information on helping prevent flu, see the Centers for
Disease Control and Prevention
http://www.cdc.gov/flu/protect/preventing.htm.
FDA Warning Letters were issued to:
Sacred Mountain Management Inc.
http://www.fda.gov/foi/warning_letters/g5630d.pdf
http://www.fda.gov/foi/warning_letters/g5630d.htm
BODeSTORE.com
http://www.fda.gov/foi/warning_letters/g5632d.pdf
http://www.fda.gov/foi/warning_letters/g5632d.htm
Melvin Williams
http://www.fda.gov/foi/warning_letters/g5634d.pdf
http://www.fda.gov/foi/warning_letters/g5634d.htm
Iceland Health Inc.
http://www.fda.gov/foi/warning_letters/g5636d.pdf
http://www.fda.gov/foi/warning_letters/g5636d.htm
PolyCil Health Inc.
http://www.fda.gov/foi/warning_letters/g5629d.pdf
http://www.fda.gov/foi/warning_letters/g5629d.htm
PRB Pharmaceuticals Inc.
http://www.fda.gov/foi/warning_letters/g5628d.pdf
http://www.fda.gov/foi/warning_letters/g5628d.htm
Chozyn, LLC
http://www.fda.gov/foi/warning_letters/g5631d.pdf
http://www.fda.gov/foi/warning_letters/g5631d.htm
Vitacost.com
http://www.fda.gov/foi/warning_letters/g5633d.pdf
http://www.fda.gov/foi/warning_letters/g5633d.htm
Healthworks 2000
http://www.fda.gov/foi/warning_letters/g5635d.pdf
http://www.fda.gov/foi/warning_letters/g5635d.htm
MARVEL ENTERPRISES: NY Retailer Suit Settlement Deemed Final
------------------------------------------------------------
The settlement of the comic book retailer class action filed
againt Marvel Enterprises, Inc., styled "Brian Hibbs, d/b/a
Comix Experience v. Marvel" in New York State Supreme Court, New
York County, is deemed final.
Mr. Hibbs filed the suit on May 6, 2002, alleging that the
Company breached its own Terms of Sale Agreement to comic book
retailers and resellers, breached its obligation of good faith
and fair dealing, fraudulently induced plaintiff and other
members of the purported class to buy comics and unjustly
enriched itself. Mr. Hibbs sought certification of the putative
class and his designation as its representative, compensatory
damages of $8 million on each cause of action and punitive
damages in an amount to be determined at trial.
The parties have reached a proposed settlement in which the
retailers and resellers would receive a credit to their account
with the Company's exclusive distributor, depending on their
prior purchases of certain comic book issues. The parties
tendered that settlement to the Court for approval, but it was
rejected on technical grounds. On June 21, 2005, the Appellate
Division reversed the trial court, holding that its rejection of
the settlement was an abuse of its discretion. The action has
been reassigned to a new judge and the parties have resubmitted
the proposed settlement for approval.
On August 9, 2005, the court certified the class for settlement
purposes and approved the parties' settlement as fair,
reasonable and adequate. As the Court's order was entered on
August 25, 2005, and the time for any class member to appeal has
elapsed, the settlement is currently being administered and
class members are receiving their agreed upon credits pursuant
to the settlement. The Company believes this matter is now
concluded.
MBI DISTRIBUTING: Agrees To Halt Production For FDA Violations
--------------------------------------------------------------
MBI Distributing, Inc. (MBI), also known as Molecular Biologics,
an OTC drug manufacturer of eye drops and other products, has
signed a consent decree that requires it to cease manufacturing
and distributing drugs until it corrects manufacturing
deficiencies and other violations at its Benicia, California
facility, the U.S. Food and Drug Administration (FDA) announced
in a statement. The consent decree was submitted to the U.S.
District Court for the Eastern District of California by the
Department of Justice on behalf of FDA and is subject to
approval by the court.
MBI's product line includes eye drops sold under the brand names
Oxydrops, Bright Eyes, Bright Eyes II, Clarity Vision for Life,
Visitein, and Can-C, as well as several OTC pain relieving
drugs. These products are sold by retailers nationwide.
This action is a result of FDA having determined that the firm
has been manufacturing eye drops in a manner that does not
conform to FDA's current good manufacturing practice
requirements. The firm has not corrected violations noted during
inspections, despite Agency efforts to have the company achieve
compliance. Among other things, at FDA's most recent inspection,
the firm lacked manufacturing controls to ensure that its eye
drops were sterile.
FDA has also determined that two of the firm's eye drop brands,
Visitein and Clarity Vision for Life, are unapproved drugs. In
addition, three of the firm's OTC pain relieving drugs,
Biogesic, Bio-Ice, and Bio-Heat, do not provide adequate
warnings for their safe use.
Under the terms of the consent decree, MBI is enjoined from
producing and distributing drugs until the firm corrects the
manufacturing violations for its eye drops and its violations of
the marketing approval and labeling requirements of the Federal
Food, Drug, and Cosmetic Act.
The firm's poor manufacturing conditions have called into
question the safety of its eye drops, and the lack of necessary
warnings could undermine the ability of a consumer to safely use
the firm's pain relieving drugs listed above. FDA therefore
recommends that consumers, health care providers, and caregivers
dispose of the Oxydrops, Bright Eyes, Bright Eyes II, Clarity
Vision for Life, Visitein, and Can-C brands of eye drops and the
Biogesic, Bio-Ice, and Bio-Heat pain relieving drugs and report
any adverse events related to these products to MedWatch, the
FDA's voluntary reporting program at 1-800-FDA-1088; by FAX at
1-800-FDA-0178; by mail to MedWatch, Food and Drug
Administration, 5600 Fishers Lane, Rockville, MD, 20857-9787; or
online at www.fda.gov/medwatch/report.htm.
MCKESSON CORPORATION: CA Fairness Hearing Set For January 2006
--------------------------------------------------------------
Final fairness hearing for the settlement of the consolidated
securities class action filed against McKesson Corporation is
set for January 27,2006 in the United States District Court for
the Northern District of California.
The Company is seeking preliminary approval for the settlement.
In a regulatory filing, the Company said that it believes that
the documents address and resolve the Court's objections;
however the Court has not yet ruled on this renewed request for
preliminary approval.
The suit arises out of a merger between McKesson Corporation
("McKesson") and HBO & Company ("HBOC") resulting in an entity
called McKesson HBOC, Inc. ("McKesson HBOC"). Beginning on June
29, 1999, 53 purported class actions were commenced in the
United States District Court for the Northern District of
California. These actions were subsequently consolidated, and
the plaintiffs proceeded to file a series of amended complaints.
On February 15, 2002, plaintiffs filed their third amended
consolidated complaint, which alleges that Bear Stearns violated
Sections 10(b) and 14(a) of the Exchange Act in connection with
allegedly false and misleading disclosures contained in a joint
proxy statement/prospectus that was issued with respect to the
McKesson/HBOC merger.
Plaintiffs purport to represent a class consisting of all
persons who either acquired publicly traded securities of HBOC
between January 20, 1997 and January 12, 1999, or acquired
publicly traded securities of McKesson or McKesson HBOC between
October 18, 1998 and April 27, 1999, and who held McKesson
securities on November 27, 1998 and January 22, 1999. Named
defendants include McKesson HBOC, certain present and former
directors and/or officers of McKesson HBOC, McKesson and/or
HBOC, Bear Stearns and Arthur Andersen LLP. Compensatory damages
in an unspecified amount are sought.
On January 12, 2005, McKesson HBOC announced that it had reached
a settlement with the plaintiff class, which settlement must be
approved by the Court. Bear Stearns's engagement letter with
McKesson in connection with the merger of McKesson and HBOC
provides that McKesson cannot settle any litigation without Bear
Stearns's written consent unless McKesson obtains an
unconditional written release for Bear Stearns and, under
certain circumstances, is required to provide indemnification to
Bear Stearns.
In his order, Judge Ronald M. Whyte denied "without prejudice"
the motion for preliminary approval of the settlement. The
order expressed the court's objection to two non-monetary
provisions of the settlement.
The previously-reported actions pending in California Superior
Court captioned "Utah and Colorado State Retirement Boards v.
McKesson HBOC, Inc. et al. (Case No. 311269)" and "Minnesota
State Board of Investment v. McKesson HBOC, Inc. et al., (Case
No. 311747)" were settled in July 2005. The remaining actions
consolidated in California Superior Court, "Yurick v. McKesson
HBOC, Inc. et al. (Case No. 303857)," "The State of Oregon by
and through the Oregon Public Employees Retirement Board v.
McKesson HBOC, Inc. et al. (Case No. 307619)" and "Merrill Lynch
Fundamental Growth Fund et al. v. McKesson HBOC, Inc. et al.
(Case No. CGC-02-405792)," have been assigned a revised trial
date of October 31, 2005. The "Merrill Lynch" plaintiffs have
moved for summary adjudication on their common law fraud claim,
and the hearing on that motion was continued from July 1, 2005,
to September 22, 2005.
Two previously-reported actions that were pending in Georgia
state courts, "Suffolk Partners Limited Partnership et al. v.
McKesson HBOC, Inc. et al. (Georgia State Court, Fulton County,
Case No. 00VS010469A)" and "Curran Partners, L.P. v. McKesson
HBOC, Inc. et al. (Georgia State Court, Fulton County, Case No.
00 VS 010801)," were settled in June 2005.
By order dated September 26, 2005, the Honorable Ronald M. Whyte
granted preliminary approval to the settlement agreement. The
settlement remains subject to final approval by the United
States District Court. A hearing before Judge Whyte to determine
whether to grant final approval to the settlement is currently
scheduled for January 27, 2006.
The suit is styled "In Re McKesson HBOC, Inc. Securities
Litigation, case no. 99-CV-20743," filed in the United States
District Court for the Northern District of California, under
Judge Ronald M. Whyte. Representing the Company are James E.
Lyons, Jonathan J. Lerner of Skadden Arps Slate Meagher & Flom,
Four Embarcadero Ctr, Ste 3800, San Francisco, CA 94111, Phone:
(415) 984-6400. Representing the plaintiffs are:
(1) Barrack, Rodos & Bacine (New York), 170 E. 61st Street,
Second Floor, New York, NY, 10021, Phone: 212.688.0782,
Fax: 212.688.0783, E-mail: info@barrack.com
(2) Barrack, Rodos & Bacine (San Diego), 402 West Broadway,
San Diego, CA, 92101, Phone: 619.230.0800, Fax:
619.230.1874, E-mail: info@barrack.com
(3) Bernstein Litowitz Berger & Grossmann LLP (New York,
NY), 1285 Avenue of the Americas, 33rd Floor, New York,
NY, 10019, Phone: 212.554.1400, Fax: 212.554.1444, E-
mail: blbg@blbglaw.com
(4) Bernstein Litowitz Berger & Grossmann LLP (San Diego,
CA), 12544 High Bluff Drive, Suite 150, San Diego, CA,
92130, Phone: 858.793.0070, Fax: 858.793.0323, E-mail:
blbg@blbglaw.com
MCLEODUSA INC.: Continues to Face IA Securities Fraud Lawsuit
-------------------------------------------------------------
McLeodUSA, Inc.'s officers continue to face the consolidated
securities class action filed against them in the United States
District Court for the Northern District of Iowa. The suit
specifically name as defendants:
(1) Former Chairman Clark E. McLeod,
(2) President Stephen C. Gray (then also Chief Executive
Officer),
(3) Chairman and Chief Executive Officer Chris A. Davis
(then Chief Operating and Financial Officer) and
(4) former Chief Financial and Accounting Officer J. Lyle
Patrick
The suit is styled "In Re McLeodUSA Incorporated Securities
Litigation, Civil Action No. C02-0001 (N.D. Iowa)." The suit
alleged the defendants misled investors about the company's
financial performance and that the Company routinely backdated
contracts and booked non-existent orders to meet revenue
forecasts, according to an earlier Class Action Reporter story
(May 7,2003).
The Individual Defendants filed a motion to dismiss the amended
consolidated complaint in the Iowa Class Action, which was
denied by the district judge.
One of the putative class plaintiffs, New Millennium Growth Fund
LLC, also filed proofs of claim against the Company in its 2002
Chapter 11 Case, seeking at least $104,650 on its own behalf and
no less than approximately $300 million (plus interest, costs
and attorneys' fees as allowed) on behalf of all class
claimants in the Iowa Class Action (the "Bankruptcy Claims" and,
together with the Iowa Class Action, the "Securities
Claims"). The Bankruptcy Claims were transferred from the
bankruptcy court in Delaware to the Iowa court, and consolidated
with the Iowa Class Action on February 1, 2005.
With respect to the Bankruptcy Claims, on May 2, 2002, the
Delaware Bankruptcy Court issued an order establishing a
disputed claims reserve of 18,000,000 shares of Reorganized
McLeodUSA Class A Common Stock. Any recovery from the Bankruptcy
Claims would be limited to those shares of stock. Therefore,
the effect of the restructuring may be to eliminate McLeodUSA as
a party to the Bankruptcy Claims. The Individual Defendants
would remain parties to the Iowa Class Action.
The suit is styled "New Millenium Fund, et al v. McLeodUSA Inc,
et al., Case No. 1:02-cv-00001-MWB," filed in the United States
District Court for the Northern District of Iowa, under Judge
Mark W. Bennett.
Lawyers for the plaintiffs are:
(1) Andrew L Barroway, Schiffrin & Barroway, LLP, Three
Bala Plaza East, Suite 400, Bala Cynwyd, PA 19004,
Phone: 610 667 7706, Fax: 667 7056
(2) David L Phipps, Whitfield & Eddy, PLC, 317 Sixth Avenue
Suite 1200, Des Moines, IA 50309-4110, Phone: 515 288
6041, fax: 246 1474, E-mail: phipps@whitfieldlaw.com
(3) Peter C. Riley and Tom J. Riley, Tom Riley Law Firm,
4040 First Avenue NE, PO Box 998, Cedar Rapids, IA
52406-0998, Phone: 319 363 4040, fax: 363 9789, E-mail:
peterr@trlf.com or rtom@trlf.com
(4) Steven G Schulman of Milberg Weiss Bershad Hynes &
Lerach, LLP, One Pennsylvania Plaza, New York, NY
10119-0165, Phone: 212 594 5300 Fax: 868 1229
(5) Joseph H Weiss, Weiss & Yourman, 551 Fifth Avenue, New
York, NY 10176, Phone: 212 682 3025, Fax: 682 3010
Lawyers for the defendants are:
(i) Kevin H Collins, Richard S. Fry, Diane Kutzko of
Shuttleworth & Ingersoll, 115 Third Street, SE, PO Box
2107 Suite 500, Cedar Rapids, IA 52406-2107, Phone: 319
365 9461, Fax: 365 8443, E-mail:
khc@shuttleworthlaw.com or rsf@shuttleworthlaw.com or
dhk@shuttleworthlaw.com
(ii) Samuel A. Gunsburg, David B. Hennes, Sherita M. Perry,
Mark J. Stein, Fried, Frank, Harris, Shriver & Jacobson
LLP, One New York Plaza New York, NY 10004, Phone: 212
859 8674, Fax: 212 859 8584, E-mail:
David.Hennes@friedfrank.com or
Sherita.Perry@friedfrank.com or steinma@ffhsj.com
MOTIENT CORPORATION: Shareholders Launch Suit V. Exchange Offer
---------------------------------------------------------------
Motient Corporation and each of its directors face a class
action filed in the Court of Chancery of the State of Delaware,
by Highland Equity Focus Fund, L.P., Highland Crusader Offshore
Partners, L.P., Highland Capital Management Services, Inc. and
Highland Capital Management, L.P on behalf of themselves and all
those similarly situated.
On October 27, 2005, the Company completed an exchange offer in
which it allowed each holder of Series A Preferred the
opportunity to exchange their shares of Series A Preferred and a
release of any claims relating to the issuance of the Series A
Preferred for shares of Series B Preferred, which will have
rights, preferences and privileges substantially identical to
the Series A Preferred, except that upon the accumulation of
accrued and unpaid dividends on the outstanding shares of Series
B Preferred for two or more six month periods, whether or not
consecutive; the failure of Motient to properly redeem the
Series B Preferred Stock, or the failure of Motient to comply
with any of the other covenants or agreements set forth in the
Certificate of Designations for the Series B Preferred Stock,
and the continuance of such failure for 30 consecutive days or
more after receipt of notice of such failure from the holders of
at least 25% of the Series B Preferred then outstanding, then
the holders of at least a majority of the then-outstanding
shares of Series B Preferred, with the holders of shares of any
parity securities upon which like voting rights have been
conferred and are exercisable, voting as a single class, will be
entitled to elect a majority of the members of the Company's
Board of Directors for successive one-year terms until such
defect listed above has been cured. All of the holders of the
Series A Preferred except for those affiliated with Highland
Capital Management exchanged their shares in this offer.
Accordingly, approximately $318.5 million in face amount of
Series A Preferred shares were exchanged for Series B Preferred
shares of the same face amount, and only $90 million in face
amount of Series A Preferred shares remain outstanding.
The suit, filed in October 2005, alleges that the Company has
provided inadequate information to the holders of Series A
Preferred relating to the Exchange Offer for the Series A
Preferred, and that the Exchange Offer is coercive. These
parties have also requested that the court enjoin the Exchange
Offer. The Exchange Offer closed on October 26, 2005, and
accordingly, the Company has requested that this suit be
dismissed as moot.
PEMSTAR INC.: Reaches Settlement For Securities Suit in MN Court
----------------------------------------------------------------
PEMSTAR, Inc. reached a settlement for the consolidated
securities class action filed against it in the United States
District Court for the District of Minnesota, styled "In re
PEMSTAR Securities Litigation." The suit also names as
defendants certain of the Company's officers and directors.
The suit alleges violations of Section 10(b) and Section 20(a)
of the Securities Exchange Act of 1934 and Sections 11 and 12 of
the Securities Act of 1933. The lawsuit is a consolidation of
several lawsuits, the first of which was commenced in United
States District Court for the District of Minnesota on July 24,
2002. The plaintiffs, several individual shareholders, allege,
in essence, that the defendants defrauded the shareholders by
making optimistic statements during a time when they should have
known that business prospects were less promising and allege
that the registration statement filed by the Company in
connection with a secondary offering contained false, material
misrepresentations. An Amended Consolidated Complaint was filed
January 9, 2003.
The suit is styled "In re PEMSTAR, Inc. Securities Litigation,"
pending in the United States District Court in Minnesota. 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) Mark McNair, 1919 Pennsylvania Avenue, NW, Suite 800,
Washington, DC, 20006, Phone: 703.273.3070, E-mail:
wmmcnair@justice4investors.com
(3) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300,
(4) Rabin & Peckel LLP, 275 Madison Avenue, 34th Floor, New
York, NY, 10016, Phone: 212.682.1818, Fax:
212.682.1892, E-mail: email@rabinlaw.com
(5) Reinhardt, Wendorf & Blanchfield Attorneys at Law, E-
1000 First National Bank Building, 332 Minnesota
Street, St. Paul, MN, 55101, Phone: 800.465.1592, Fax:
651.297.6543, E-mail: info@ralawfirm.com
PSS WORLD: FL Court Mulls Approval of Securities Suit Settlement
----------------------------------------------------------------
The United States District Court for the Middle District of
Florida, Jacksonville Division held a fairness hearing for the
settlement of the securities class action filed against PSS
World Medical, Inc. and certain of its current and former
officers and directors on December 20,2005. The court has yet
to issue a ruling.
The suit, styled "Jack Hirsch v. PSS World Medical, Inc., et
al., Civil Action No. 3:98-CV 502-J-32TEM, was filed on behalf
of a purported class of similarly situated stockholders who
purchased the Company's stock between December 23, 1997 and May
8, 1998. The suit alleged that the defendants engaged in
violations of certain provisions of the Securities Exchange Act,
and Rule 10b-5 promulgated thereunder. The allegations
reference a decline in the Company's stock price following an
announcement by the Company in May 1998 regarding the Gulf South
Medical Supply, Inc. merger, which resulted in earnings below
analysts' expectations.
In December 2002, the Court granted the Company's motion to
dismiss the plaintiff's second amended complaint with prejudice
with respect to the Section 10(b) claims. The plaintiffs filed
their third amended complaint in January 2003 alleging claims
under Sections 14(a) and 20(a) of the Exchange Act on behalf of
a putative class of all persons who were shareholders of the
Company as of March 26, 1998. In May 2003, the Court denied the
defendants' motion to dismiss. By order dated February 18,
2004, the Court granted plaintiffs' motion for class
certification.
Court ordered mediation occurred on June 10, 2004 and April 6,
2005, during which the parties were not able to resolve their
dispute. The parties all served motions for summary judgment
and motions in limine to strike the opposing experts on May 11,
2005. The company later reached a settlement for the suit.
Under the settlement, the Company will establish a pre-tax
reserve of $16.5 million to settle the litigation, of which
$13.2 million will be recovered through existing insurance
policies. The Company had previously established a $2.6 million
pre-tax reserve to cover potential uninsured losses relating to
this matter, an earlier Class Action Reporter story (September
14,2005) states.
The suit, styled "Hirsch v. PSS World Medical, et al, 3:98-cv-
00502-TJC-TEM," filed in the United States District Court for
the Middle District of Florida, Jacksonville Division, under
Judge Timothy J. Corrigan. Law firms for the defendants are:
(1) Peter Bassett, John A. Jordak, Jr., Alston & Bird, LLP,
1201 W. Peachtree St., N.E., Atlanta, GA 30309-3424,
Phone: 404/881-7000, E-mail: jjordak@alston.com
(2) Robert Eric Bilik, McGuireWoods LLP, 50 N. Laura St.,
Suite 3300, Jacksonville, FL 32202-3661, Phone:
904/798-3200, E-mail: ebilik@mcguirewoods.com
(3) Darlene DeMelo, Inez H. Friedman-Boyce, Gary M.
Grossman, Jordan D. Hershman, Testa, Hurwitz &
Thibeault, High Street Tower, 125 High Street, Boston,
MA 02110, Phone: 617/248-7000, E-mail: demelod@tht.com
or friedman@tht.com
(4) Robert Bruce George, Liles, Gavin, Costantino & Murphy
225 Water St., Suite 1500, Jacksonville, FL 32202,
Phone: 904/634-1100, Fax: 904/634-1234, E-mail:
rgeorge@lgcmlaw.com
Law firms for the plaintiffs are:
(i) Lee G. Kellison, J Michael Lindell, Lindell & Kellison,
P.A., 12276 San Jose Blvd., Suite 126, Jacksonville, FL
32223-8630, Phone: 904/880-4000, fax: 904-880-4013, E-
mail: lkellison@lindellkellison.com or
mlindel@lindelkellison.com
(ii) Seth R. Klein, Jeffrey S. Nobel, Andrew Schatz, Schatz
& Nobel, P.C., One Corporate Center, 20 Church St.,
Hartford, CT 06103, E-mail: sklein@snlaw.net
(iii) Richard B. Margolies, Abbey & Gardy, LLP, 2l2 E. 39th
St., New York, NY 10016, Phone: 212/889-3700, Fax:
212/684-5191
(iv) James Notis, Lee Squitieri, Abbey & Gardy, LLP
2l2 E. 39th St., New York, NY 10016, Phone: 212/889-
3700, E-mail: jnotis@abbeygardy.com
QUALITY DISTRIBUTION: Pays For FL Securities Lawsuit Settlement
---------------------------------------------------------------
Quality Distribution, Inc. has fully paid for the settlement for
two shareholder class actions and a shareholder derivative
demand stemming from the Company's disclosure of irregularities
at Power Purchasing, Inc. (PPI), a non-core subsidiary.
On February 24, 2004, a putative class action lawsuit titled,
"Meigs v. Quality Distribution, Inc., et al.," was filed in the
United States District Court for the Middle District of Florida,
Tampa Division, against the Company, Thomas L. Finkbiner, its
President, Chief Executive Officer and Chairman of the Board,
and Samuel M. Hensley, its former Senior Vice President and
Chief Financial Officer.
The plaintiff purports to represent a class of purchasers of the
Company's common stock traceable to its November 2003 initial
public offering. The complaint alleges that, in connection with
the IPO, the Company filed a registration statement with the SEC
that incorporated a materially false or misleading prospectus.
Specifically, the complaint alleges that the prospectus
materially overstated the Company's financial results for the
years ended December 31, 2001, December 31, 2002, and the nine
months ended September 30, 2003. In addition, the complaint
alleges that these financial statements were not prepared
consistently with generally accepted accounting principles.
Accordingly, it asserts claims (and seeks unspecified damages)
against all defendants based on the alleged violations of
Section 11 of the Securities Act of 1933 and against Mr.
Finkbiner and Mr. Hensley as "control persons," under the
Securities Act's Section 15 by virtue of their positions at the
Company.
On May 11, 2004, the Court consolidated "Meigs" with a
substantially identical action titled "Cochran v. Quality
Distribution, Inc.," also pending in the United States District
Court for the Middle District of Florida. On June 28, 2004, the
Court appointed Jemmco Investment Management LLC as lead
plaintiff under the Private Securities Litigation Reform Act of
1995.
A second suit, styled "Steamfitters Local 449 Pension &
Retirement Security Funds v. Quality Distribution, Inc., et
al.," was filed in the Circuit Court for the Thirteenth Judicial
Circuit in and for Hillsborough County, Florida, on March 26,
2004. In addition to the Company, Mr. Finkbiner and Mr.
Hensley, the suit names as defendants the other signatories to
the registration statement, namely directors Anthony R.
Ignaczak, Joshua J. Harris, Michael D. Weiner, Marc J. Rowan,
Marc E. Becker, and Donald C. Orris, and three of the Company's
IPO underwriters, Credit Suisse First Boston LLC, Bear, Stearns
& Co. Inc., and Deutsche Bank Securities Inc. The
"Steamfitters" complaint alleges substantially identical facts
to those in the "Meigs" complaint and also includes the same
claims, plus an additional claim for rescission or damages based
on an alleged violation of Section 12 of the Securities Act.
In exchange for broad releases from all claims that were or
could have been asserted by shareholders in respect of QDI
shares, and to eliminate the burden and expense of further
litigation, the Company and its primary directors' and officers'
liability insurer, on behalf of all defendants, have agreed to
pay the class $8,150,000, of which $5,875,000 would be paid
directly by the insurer and the balance of $2,275,000 would be
paid by the Company. The Company has also agreed to pay the
State Action Plaintiffs' attorneys' fees and expenses in an
amount not to exceed $600,000. The Company will record a pre-tax
charge of $2.875 million in the fourth quarter for these
settlements.
The settlements are contingent on several factors, including
approval by both the state and federal courts. No aspect of the
settlements constitutes an admission or finding of wrongful
conduct, acts or omissions.
No aspect of the settlements constitutes an admission or finding
of wrongful conduct, acts, or omissions. In exchange for broad
releases from all claims that were or could have been asserted
by shareholders in respect of QDI shares, and to eliminate the
burden and expense of further litigation, the Company and its
primary Directors' and officers' liability insurer, on behalf of
all defendants, agreed to pay the class $8,150,000, of which
$5,875,000 was paid directly by the insurer and the balance of
$2,275,000 was paid by the Company. The Company also agreed to
pay the state action plaintiffs' attorneys' fees and expenses in
an amount not to exceed $600,000. The Company paid $2,275,000 to
the United States District Court in the second quarter of 2005.
The company expects to pay the remaining $600,000 for
plaintiffs' attorney fees and expenses before the end of the
fourth quarter of 2005.
RECREATIONAL EQUIPMENT: Recalls Bicycles For Injury, Crash Risk
---------------------------------------------------------------
Recreational Equipment, Inc. is cooperating with the Consumer
Product Safety Commission (CPSC) by voluntarily recalling about
2,800 Novara Dirt Rider 20-inch 5-Speed and 6-Speed Bicycles.
The alloy frame used for these bicycles can be prone to fatigue
failure. Frame failure results in the separation of the fork,
head tube, and handlebar away from the rest of the bike causing
a loss of control and crash, and posing a risk of serious injury
to the rider.
The Company has received four reports of frames failing. All
four failures resulted in crashes with one child sustaining a
minor injury. The Novara Dirt Rider 20-inch 5-speed and 6-speed
bicycles are children's bicycles with 20-inch wheels, an
aluminum frame, and multiple speeds. 2003-2004 model year
bicycles were red/black or silver/blue frost in color; 2005-2006
model year bicycles were black/gravel or white/powder blue in
color.
REI stores sold these items from October 2002 through November
2005 for between $200 and $210 (depending on model year) full
price and may have been sold as low as $125 on sale.
Consumers should immediately stop using these bicycles and
return them to the nearest REI store for a full refund or
credit. For additional information contact REI at (800) 426-
4840 between 4 a.m. and 11 p.m. PT seven days a week, or visit
REI online at www.rei.com or contact your local REI store.
RENAISSANCERE HOLDINGS: Shareholders File Fraud Suits in S.D. NY
----------------------------------------------------------------
Renaissancere Holdings Ltd. faces at least seven putative class
action lawsuits filed in the United States District Court for
the Southern District of New York by purchasers of the Company's
common stock naming the Company and certain of its present and
former executive officers and directors as defendants.
The complaints allege that the Company and the other defendants
violated the U.S. federal securities laws by making material
misstatements and failing to state material facts about the
Company's business and financial condition, among other things,
in U.S. Exchange Act filings and public statements. Plaintiffs
seek damages in an unspecified amount to compensate an alleged
class of persons who purchased the Company's stock between
January 24, 2002 and July 25, 2005 (one suit purports to be
filed on behalf of purchasers between October 21, 2003 and July
25, 2005). One of the actions also includes claims on behalf of
purchasers of the Company's 6.08% Series C perpetual preference
shares. No class has been certified in these actions, and the
Company has not been served with the complaints.
SOURCECORP INC.: Continues To Face Securities Fraud Suit in TX
--------------------------------------------------------------
Sourcecorp, Inc. continues to face a consolidated shareholder
fraud class action filed in the United States District Court for
the Northern District of Texas, Dallas Division, styled "In re
Sourcecorp, Inc. Securities Litigation." The suit also names as
defendants the Company's chief executive officer and its chief
financial officer.
Several putative securities class actions were initially filed,
in response to the Company's press releases dated October 27,
2004, in which the Company disclosed that its financial
statements for certain prior periods should no longer be relied
upon, and also provided updated financial guidance. The
complaints were filed in the United States District Court for
the Northern District of Texas, Dallas Division, with the first
action being filed November 1, 2004.
The Actions are putative shareholder class action lawsuits
alleging violations of Federal Securities Laws, including
alleged violations of Sections 10(b) and 20(a), and Rule 10b-5
of the Securities Exchange Act of 1934, as amended. The four
Actions have been transferred to a single judge in the Northern
District of Texas, Dallas Division and consolidated. A lead
plaintiff has also been appointed. The consolidated Action is
purportedly on behalf of all persons who purchased the Company's
s common stock during the period between May 3, 2001, and
October 27, 2004, and seeks unspecified damages.
SPANISH BROADCASTING: Suit Fairness Hearing Set April 2006 in NY
----------------------------------------------------------------
Final fairness hearing for the settlement of the consolidated
securities class action filed against Spanish Broadcasting
System, Inc. and certain of its officers and directors is set
for April 24,2006 in the United States District Court for the
Southern District of New York.
The amended complaint alleges that the named plaintiff, Mitchell
Wolf, purchased shares of the Company's Class A common stock
pursuant to the October 27, 1999 prospectus and registration
statement relating to the Company's initial public offering
which closed on November 2, 1999. The complaint was brought on
behalf of Mr. Wolf and an alleged class of similarly situated
purchasers, against the Company, eight underwriters and/or their
successors-in-interest who led or otherwise participated in its
initial public offering, two members of its senior management
team, one of whom is its Chairman of the Board, and an
additional director, referred to collectively as the individual
defendants. To date, the complaint, while served upon the
Company, has not been served upon the individual defendants, and
no counsel has appeared for them.
This case is one of more than 300 similar cases brought by
similar counsel against more than 300 issuers, 40 underwriter
defendants, and 1,000 individuals alleging, in general,
violations of federal securities laws in connection with initial
public offerings, in particular, failing to disclose that the
underwriter defendants allegedly solicited and received
additional, excessive and undisclosed commissions from certain
investors in exchange for which they allocated to those
investors material portions of the restricted shares issued in
connection with each offering. All of these cases, including the
one involving the Company, have been assigned for consolidated
pretrial purposes to one judge of the Southern District of New
York. One of the claims against the individual defendants,
specifically the Section 10b-5 claim, has been dismissed.
In June of 2003, after lengthy negotiations, a settlement
proposal was embodied in a memorandum of understanding among the
investors in the plaintiff class, the issuer defendants and the
issuer defendants' insurance carriers. On July 23, 2003, the
Company's Board of Directors approved both the memorandum of
understanding and an agreement between the issuer defendants and
the insurers. The principal components of the settlement
include:
(1) a release of all claims against the issuer defendants
and their directors, officers and certain other related
parties arising out of the alleged wrongful conduct in
the amended complaint;
(2) the assignment to the plaintiffs of certain of the
issuer defendants' potential claims against the
underwriter defendants; and
(3) a guarantee by the insurers to the plaintiffs of the
difference between $1.0 billion and any lesser amount
recovered by the plaintiffs against the underwriter
defendants.
The payments will be charged to each issuer defendant's
insurance policy on a pro rata basis.
On February 15, 2005, the Southern District of New York granted
preliminary approval to the proposed settlement agreement,
subject to a narrowing of the proposed bar on underwriter and
non-settling defendant claims against the issuer defendants to
cover only contribution claims. The Court directed the parties
to submit revised settlement documents consistent with its
Opinion and scheduled a conference for March 18, 2005 in order
to make final determinations as to the form, substance and
program of notice, and schedule a Rule 23 fairness hearing.
Pursuant to the Court's request, on May 2, 2005 the parties
submitted an Amendment to Stipulation and Agreement of
Settlement with Defendant Issuers and Individuals. The
Company's Board of Directors approved the Amendment on May 4,
2005 and it has since received unanimous approval from all the
non-bankrupt issuers.
On July 25, 2005, anticipating that a notice of pendency of
class action would be required by Court Order in the near future
and in order to facilitate the mailing of such notice, the
Company authorized its transfer agent, First Union National
Bank, to release the identities of all its transferees and
record holders during the class period to the Notice
Administrator, The Garden City Group, Inc. On August 31, 2005,
the Court entered an Order confirming preliminary approval of
the Issuers' Settlement, with only minor modifications, setting
March 24, 2006, as the deadline for submission of any objections
or requests for exclusion from the Settlement, scheduling a
Settlement Fairness Hearing for April 24, 2006, to determine
whether the Settlement should be finally approved, and, as
anticipated, requiring the Notice Administrator to provide
notice of pendency of class action.
SPRINT NEXTEL: Shareholders Launch Securities Fraud Suit in KS
--------------------------------------------------------------
Sprint Nextel Corporation faces a class action filed in the
United States District Court for the District of Kansas,
alleging that the Company's 2001 and 2002 proxy statements were
false and misleading in violation of federal securities laws to
the extent they described new employment agreements with senior
executives without disclosing that, according to the
allegations, replacement of those executives was inevitable.
These allegations, made in an amended complaint in a lawsuit
originally filed in 2003, are asserted against the Company and
certain current and former officers and directors, and seek to
recover any decline in the value of FON and PCS common stock
during the class period. The parties have stipulated that the
case can proceed as a class action. Allegations in the original
complaint, which asserted claims against the same defendants and
the Company's former independent auditor, were dismissed by the
court in April 2004.
The suit is styled "State of New Jersey And Its Division of
Investment, et al v. Sprint Corporation et al, Case No.
2:03cv2071-JWL," filed in the United States District of Kansas,
under Judge John W. Lungstrum. Representing the Company are
Francis P. Barron, David M. Greenwald, Michael A. Paskin, Ronald
S. Rolfe, Cravath, Swaine & Moore LLP, Worldwide Plaza, 825
Eighth Avenue, New York, NY 10019-7475, Phone: 212-474-1000,
Fax: 212-474-3700, E-mail: fbarron@cravath.com,
dgreenwald@cravath.com, mpaskin@cravath.com, rrolfe@cravath.com;
and Mark A. Thornhill, Spencer Fane Britt & Browne-- Kansas City
1000 Walnut, Suite 1400, Kansas City, MO 64106, Phone:
816-474-8100, Fax: 816-474-3216, E-mail:
mthornhill@spencerfane.com. Representing the plaintiffs are:
(1) Thomas R. Buchanan, Linda C. McFee, McDowell, Rice,
Smith & Buchanan, PC -- Kansas City 605 West 47th
Street, Suite 350 Kansas City, MO 64112, Phone: 816-
753-5400/960-7388, Fax: 816-753-9996, E-mail:
tbuchanan@mrsg.com or lmcfee@mcdowellrice.com
(2) Gregory M. Castaldo, Jacob A. Goldberg, Sean M.
Handler, Christopher L. Nelson, Karen E. Reilly,
Richard Schiffrin, Schiffrin & Barroway LLC, 280 King
of Prussia Road Radnor, PA 19087, Phone: 610-667-7706,
Fax: 610-667-7056, E-mail: gcastaldo@sbclasslaw.com,
jgoldberg@sbclasslaw.com, shandler@sbclasslaw.com,
cnelson@sbclasslaw.com, kreilly@sbclasslaw.com,
rschiffrin@sbclasslaw.com
(3) Joseph J. DePalma, Anne M. Dooley, Bruce D. Greenberg,
Allyn Z. Lite, Mary Jean Pizza, Susan Pontoriero, Lite,
DePalma, Greenberg & Rivas LLC, Two Gateway Center -
12th Floor, Newark, NJ 07102, Phone: 973-623-3000, Fax:
973-623-0858, E-mail: jdepalma@ldgrlaw.com,
adooley@ldgrlaw.com, bgreenberg@ldgrlaw.com,
alite@ldgrlaw.com, spontoriero@ldgrlaw.com
TEDCO INC.: FDA Warns V. Using Miracle II Neutralizer Products
--------------------------------------------------------------
The Food and Drug Administration (FDA) is advising consumers not
to use Miracle II Neutralizer and Miracle II Neutralizer Gel
products manufactured by Tedco, Inc., in West Monroe, Louisiana
because the products are bacterially contaminated and have not
been proven to be safe and effective. Use of these products
could pose a risk of serious adverse events such as infections,
particularly in children, the elderly, and individuals with
weakened immune systems who are particularly susceptible to
illness.
"We will not tolerate the marketing of products that use
deceptive and untruthful claims to lure consumers into
potentially dangerous situations," said Margaret O'K. Glavin,
FDA's Associate Commissioner for Regulatory Affairs. "We
consider it a significant public health hazard when consumers
are deliberately deceived into using potentially dangerous
products that promise health benefits but deliver only risk of
harm."
Tedco, Inc., promotes Miracle II Neutralizer for ophthalmic use
(in the eyes), including treatment of cataracts and pink eye,
and as an eyewash. FDA requires that all ophthalmic products be
sterile. Due to the substantial risk posed by non-sterility,
Miracle II Neutralizer should never be applied to the eyes.
Tedco, Inc., also markets Miracle II Neutralizer for other
unapproved uses, including treatment of AIDS, cancer, Crohn's
Disease, dermatitis, diaper rash, diabetes, ear ache,
hemorrhoids, hives, gout, herpes, mouth ulcers, psoriasis, skin
cancer, and yeast infection. The firm sells Miracle II
Neutralizer Gel for many of the same unapproved uses, including
diaper rash, diabetes, gout, psoriasis, and skin cancer.
Tedco, Inc., promotes its Miracle II products with claims such
as, "Supreme technology has made possible for a perfect soap
cleaner, deodorizer, natural insecticide and antibacterial
product to be put on the market. This is the only product that
is made in the world that can wash a newborn baby or clean up an
oil spill and everything in between." Contrary to such claims,
recent FDA testing of Miracle II Neutralizer and Miracle II
Neutralizer Gel revealed bacterial contamination and poor
manufacturing conditions.
Although Tedco, Inc., has been advised by FDA of the
contamination found in its Miracle II Neutralizer and Miracle II
Neutralizer Gel products, the firm has declined to voluntarily
remove the products from the market.
A number of stores sell Miracle II Neutralizer and Miracle II
Neutralizer Gel, and the products are distributed and sold
worldwide and sold via the Internet. The products are packaged
in 8 oz, 22 oz, and one-gallon size containers.
FDA urges consumers, health care providers, and caregivers to
cease using and dispose of these products and report any adverse
events related to these products to MedWatch, the FDA's
voluntary reporting program at 1-800-FDA-1088; by FAX at
1-800-FDA-0178; by mail to MedWatch, Food and Drug
Administration, 5600 Fishers Lane, Rockville, MD, 20857-9787; or
online at www.fda.gov/medwatch/report.htm.
TRANSKARYOTIC THERAPIES: MA Court Yet To Rule on Certification
--------------------------------------------------------------
The United States District Court for the District of
Massachusetts has yet to rule on motions seeking class
certification for the consolidated securities class action field
against Transkaryotic Therapies, Inc. and certain of its
officers.
In January and February 2003, various parties filed purported
class action lawsuits against the Company and Richard Selden,
its former Chief Executive Officer. The complaints generally
allege securities fraud during the period from January 2001
through January 2003. Each of the complaints asserts claims
under Section 10(b) of the Securities Exchange Act of 1934,
Rule 10b-5 promulgated thereunder, and Section 20(a) of the
Exchange Act, and alleges that the Company and its officers made
false and misleading statements and failed to disclose material
information concerning the status and progress for obtaining
United States marketing approval of the Company's Replagal
product to treat Fabry disease during that period.
In March 2003, various plaintiffs filed motions to consolidate,
to appoint lead plaintiff, and to approve plaintiff's selections
of lead plaintiffs' counsel. In April 2003, various plaintiffs
filed a Joint Stipulation and Proposed Order of Lead Plaintiff
Applicants to Consolidate Actions, To Appoint Lead Plaintiffs
and to Approve Lead Plaintiffs' Selection of Lead Counsel,
Executive Committee and Liaison Counsel. In April 2003, the
Court endorsed the Proposed Order, thereby consolidating the
various matters under one matter: "In re Transkaryotic
Therapies, Inc., Securities Litigation, C.A. No. 03-10165-RWZ."
In July 2003, the plaintiffs filed a Consolidated and Amended
Class Action Complaint against the Company; Dr. Selden; Daniel
Geffken, its former Chief Financial Officer; Walter Gilbert,
Jonathan S. Leff, Rodman W. Moorhead, III, and Wayne P. Yetter,
members of the Company's board of directors; William R. Miller
and James E. Thomas, former members of the Company's board of
directors; and SG Cowen Securities Corporation, Deutsche Bank
Securities Inc., Pacific Growth Equities, Inc. and Leerink Swann
& Company, underwriters of the Company's common stock in prior
public offerings.
The Amended Complaint alleges securities fraud during the period
from January 4, 2001 through January 10, 2003. The Amended
Complaint alleges that the defendants made false and misleading
statements and failed to disclose material information
concerning the status and progress for obtaining United States
marketing approval of Replagal during that period. The Amended
Complaint asserts claims against Dr. Selden and the Company
under Section 10(b) of the Exchange Act and Rule 10b-5
promulgated thereunder; and against Dr. Selden under Section
20(a) of the Exchange Act. The Amended Complaint also asserts
claims based on the Company's public offerings of June 29, 2001,
December 18, 2001 and December 26, 2001 against each of the
defendants under Section 11 of the Securities Act of 1933 and
against Dr. Selden under Section 15 of the Securities Act;
against SG Cowen Securities Corporation, Deutsche Bank
Securities, Pacific Growth Equities, Inc., and Leerink Swann &
Company under Section 12(a)(2) of the Securities Act. The
plaintiffs seek equitable and monetary relief, an unspecified
amount of damages, with interest, and attorney's fees and costs.
In September 2003, the Company filed a motion to dismiss the
Amended Complaint. In May 2004, the United States District Court
for the District of Massachusetts issued a Memorandum of
Decision and Order denying in part and granting in part the
Company's motion to dismiss the purported class action lawsuit.
In the Memorandum, the Court found several allegations against
the Company arose out of forward-looking statements protected by
the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995 (PSLRA). The Court dismissed those
statements as falling within the PSLRA's safe harbor provisions.
The Court also dismissed claims based on the public offerings of
June 29, 2001 and December 18, 2001 because no plaintiff had
standing to bring such claims. The Court allowed all other
allegations to remain.
In July 2004, the plaintiffs voluntarily dismissed all claims
based on the December 26, 2001 offering because no plaintiff had
standing to bring such claims. The plaintiffs subsequently
filed a motion seeking permission to notify certain TKT
investors of the dismissal of the claims based on the offerings,
and to inform those investors of their opportunity to intervene
in the lawsuit. TKT filed an opposition to this motion in July
2004. The Court has not yet ruled on this motion. The Company
filed an answer to the Amended Complaint in July 2004. The
plaintiffs then filed a motion for class certification in July
2004. The Company expects to file an opposition to this motion
in March 2005. A hearing on class certification was held in
April 2005. Following that hearing, the Company filed a
supplemental brief in opposition to the motion for class
certification and the plaintiffs filed a supplemental brief in
support of the motion. The court has not yet ruled on this
motion.
TRIPOS INC.: MO Court Refuses To Dismiss Securities Fraud Suit
--------------------------------------------------------------
The United States District Court in St. Louis, Missouri has yet
refused to dismiss Tripos, Inc. as a defendant in the second
amended class action filed against the Company and two of its
executive officers, Dr. John P. McAlister and Mr. B. James
Rubin, on behalf of purchasers of the Company's common stock
during the first half of 2002. The court however, granted Ernst
& Young's motion seeking dismissal from the suit.
The consolidated class action complaint alleged that statements
made by the Company in press releases and other public
disclosures contained materially false and misleading
information in violation of the federal securities laws. The
suit, filed on behalf of purchasers of the Company's common
stock between February 9, 2000 and July 1, 2002, generally
alleges that, during the Class Period, defendants made false or
misleading statements of material fact about the Company's
prospects and failed to follow generally accepted accounting
principles in violation of the federal securities laws. The
second amended complaint also names Ernst & Young LLP as a co-
defendant. The amount of damages being sought is unspecified at
this time.
The Company and the individual defendants and Ernst & Young
filed motions to dismiss the second amended complaint. On
September 30, 2005, the Company was informed that its motion to
dismiss was denied, however, the motion to dismiss filed by
Ernst & Young was granted. The amount of damages being sought is
unspecified at this time.
The suit is styled "Montalvo v. Tripos, Inc., et al., case no.
4:03-cv-00995-SNL," filed in the United States District Court
for the Eastern District of Missouri, under Judge Stephen N.
Limbaugh. Representing the plaintiffs is Don R. Lolli of DYSART
AND TAYLOR, 4420 Madison Avenue, Suite 200, Kansas City, MO
64111, Phone: 816-931-2700, Fax: 816-931-7377, E-mail:
dlolli@dysarttaylor.com. Representing the Company is Cheryl W.
Foung, Steven M. Schatz, Diane M. Walters and Lloyd Winawer,
WILSON AND SONSINI, 650 Page Mill Road, Palo Alto, CA 94304-
1050, Phone: 650-493-9300, Fax: 650-565-5100, E-mail:
cfoung@wsgr.com, sschatz@wsgr.com, dwalters@wsgr.com,
lwinawer@wsgr.com.
VIRBAC CORPORATION: TX Court Approves Securities Suit Settlement
----------------------------------------------------------------
The United States District Court for the Northern District of
Texas, Fort Worth Division granted preliminary approval to the
settlement of the consolidated securities class action filed
against Virbac Corporation and certain of its officers and
directors.
On December 15, 2003, Martine Williams, a Company stockholder,
filed a putative securities class action lawsuit against the
Company and:
(1) Virbac S.A. (VBSA),
(2) Thomas L. Bell (the Company's former President, Chief
Executive Officer and member of the Company's Board of
Directors),
(3) Joseph A. Rougraff (the Company's former Vice
President, Chief Financial Officer and Secretary), and
(4) Pascal Boissy (the Chairman of the Board of Directors)
The complaint asserted claims against the Company and the
individual defendants based on securities fraud under Section
10(b) of the Securities Exchange Act of 1934, as amended and
Rule 10b-5 of the Exchange Act and claims against VBSA and the
individual defendants based on "control person" liability under
Section 20(a) of the Exchange Act.
On May 19, 2004, the "Williams v. Virbac et al." lawsuit was
consolidated with a separate lawsuit filed by John Otley, which
contained virtually identical allegations to those claimed by
Martine Williams, and the court appointed lead counsel for the
plaintiffs. On September 10, 2004, plaintiffs filed a
consolidated amended class action complaint, asserting claims
against the Company and the individual defendants based on
securities fraud under Section 10(b) under the Exchange Act and
Rule 10b-5, and asserting claims against VBSA and the individual
defendants for violation of Section 20(a) of the Exchange Act as
alleged "control persons" of the Company.
Plaintiffs generally allege in the Amended Complaint that the
defendants caused the Company to recognize and record revenue
that it had not earned; that the Company thereupon issued
financial statements, press releases and other public statements
that were false and materially misleading; that these false and
misleading statements operated as a "fraud on the market,"
inflating the price of the Company's publicly traded stock; and
that when accurate information about the Company's actual
revenue and earnings emerged, the price of the Company's Common
Stock sharply declined, allegedly damaging plaintiffs.
Plaintiffs seek to recover monetary compensation for all damages
sustained as a result of the defendants' alleged wrongdoing, in
an amount to be determined at trial (including pre-judgment and
post-judgment interest thereon), costs and expenses incurred in
connection with the lawsuit (including attorneys' fees and
expert witnesses' fees), and such other and further relief as
the court may deem just and proper.
The Company filed a motion to dismiss the Amended Complaint on
December 10, 2004, as did defendants Bell and Rougraff.
Defendants VBSA and Boissy filed a joint motion to dismiss on
December 14, 2004. On February 11, 2005, plaintiffs filed a
consolidated opposition against all defendants' motions to
dismiss. On March 11, 2005, the Company, Mr. Bell, and Mr.
Rougraff each filed separate replies to plaintiffs' consolidated
opposition. Defendants VBSA and Boissy filed a joint reply on
March 11, 2005.
In May 2005, the parties agreed to submit to mediation in an
effort to resolve the action. On May 23, 2005, the Court stayed
the action to allow the parties to mediate. On June 27, 2005,
the parties engaged in a mediation session and reached a
settlement in principle. On September 15, 2005, the parties
entered into a Stipulation and Agreement of Compromise,
Settlement and Release formalizing the terms of the settlement.
On September 16, 2005, the parties filed an agreed motion
requesting the Court to, among other things, certify the
Securities Class Action for settlement purposes and to
preliminarily approve the settlement. On October 4, 2005, the
Court issued an Order certifying the Class (as defined below)
for settlement purposes and granting preliminary approval of the
settlement as set forth in the Settlement Agreement and the
proposed plan of allocation.
Under the terms of the settlement preliminarily approved by the
Court, persons who purchased or otherwise acquired Virbac common
stock from May 3, 2001 to November 12, 2003, inclusive, may be
eligible to participate in the settlement. The terms of the
settlement and the proposed plan of allocation will be described
in a notice that will be sent to all members of the Class in
accordance with the procedures set forth in the Preliminary
Approval Order. The Notice will also describe the steps that
members of the Class must take to pursue any potential recovery
under the settlement, to object to the fairness, reasonableness,
and adequacy of the settlement, and/or to opt out of the
settlement. The Court has scheduled a hearing for Thursday,
December 1, 2005. At the Settlement Fairness Hearing, the Court
will consider various matters, including whether to grant final
approval of the settlement, whether judgment should be entered
dismissing the Securities Class Action with prejudice, and class
counsel's applications for attorneys' fees and the reimbursement
of expenses. Separately, the Company has entered into an
agreement with its insurance carriers, which provides that the
Insurers will fund in full the settlement amount set forth in
the Settlement Agreement.
WAVE SYSTEMS: Faces Consolidated Securities Fraud Lawsuit in MA
---------------------------------------------------------------
Wave Systems Corporation continues to face a consolidated
amended class action complaint in the United States District
Court for the District of Massachusetts, against Wave Systems
Corporation, its Chief Executive Officer and its Chief Financial
Officer, styled "Brumbaugh et al. v. Wave Systems Corp. et al.,
Civ. No. 04-30022 (MAP)."
The purported class action has been filed by alleged purchasers
of the Company's Class A Common Stock during the purported class
period July 31, 2003 through February 2, 2004. The complaint
claims that the Company and the named individuals violated
Section 10(b) of the Securities Exchange Act of 1934, Rule
10(b)-5 promulgated thereunder and Section 20(a) of the 1934 Act
by publicly disseminating materially false and misleading
statements, relating to the Company's agreements with Intel and
IBM. The complaint does not specify the amount of alleged
damages plaintiffs seek to recover.
The suit is styled "Brumbaugh v. Wave Systems Corporation et
al., case no. 3:04-cv-30022-MAP," filed in the United States
District Court for the District of Massachusetts, under Judge
Michael A. Ponsor. Representing the Company are Michael D.
Blanchard and Robert A. Buhlman of Bingham McCutchen LLP -
Hartford, One State Street, Hartford, CT 06103, Phone:
860-240-2700, Fax: 860-240-2818, E-mail:
michael.blanchard@bingham.com or robert.buhlman@bingham.com; and
Eunice E. Lee and Raquel J. Webster, Bingham McCutchen LLP, 150
Federal Street, Boston, MA 02110, Phone: 617-951-8000, Fax:
617-951-8736, E-mail: eunice.lee@bingham.com or
raquel.webster@bingham.com. Representing the plaintiffs are:
(1) Stuart L. Berman and Darren Check of Schiffrin &
Barroway LLP, Three Bala Plaza East, Suite 400, Bala
Cynwyd, PA 19004, Phone: 610-667-7706
(2) David Pastor, Gilman and Pastor, LLP, 60 State Street,
37th Floor, Boston, MA 02109, Phone: 617-742-9700, Fax:
617-742-9701, E-mail: dpastor@gilmanpastor.com
(3) John C. Martland, Martland & Brooks LLP, Stonehill
Corporate Center, Suite 500, 999 Broadway, Saugus, MA
01906, Phone: 617-742-9700, Fax: 617-742-9701, E-mail:
jcmartland@gilmanpastor.com
(4) Karen Reilly and Marc I. Willner, Schiffrin & Barroway,
LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone:
610-667-7706, Fax: 610-667-7056
New Securities Fraud Cases
BIO ONE: Berman DeValerio Launches Securities Suit in M.D. FL
-------------------------------------------------------------
An investor has sued Bio-One Corporation ("Bio-One" or the
"Company") in federal court, accusing the nutritional supplement
company of issuing materially false and misleading statements to
the public, Berman DeValerio Pease Tabacco Burt & Pucillo
announced in a press release.
Berman DeValerio (http://www.bermanesq.com)filed the class
action December 16, 2005 in the U.S. District Court for the
Middle District of Florida, Case No. 05-cv-1859. The complaint
seeks damages for violations of federal securities laws on
behalf of all investors who purchased Bio-One common stock
between February 4, 2004 and May 9, 2005, inclusive (the "Class
Period").
The lawsuit claims that Bio-One and a number of individual
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. section 78j(b)
and 78t, and SEC Rule 10b-5, 17 C.F.R. section 240.10b-5
promulgated thereunder.
According to the complaint, Bio-One filed false and misleading
financial reports with the U.S. Securities and Exchange
Commission (the "SEC") during the Class Period. Plaintiffs claim
these reports failed to disclose that Bio-One did not have the
capital, expertise, or personnel to succeed with its business
plan of acquiring multiple nutritional supplement companies and
had defaulted on a promissory note in connection with its
acquisition of Interactive Nutritional International ("INI").
Plaintiffs further claim that Bio-One's former CEO, Armand
Dauplaise, used the Company's bank accounts as if they were his
own and that the Company failed to disclose the fact that
Dauplaise's son was acting as its de facto treasurer.
The complaint focuses on Bio-One's March 31, 2004 acquisition of
INI, for which the Company pledged to pay $30 million
(Canadian), half in cash and half through a promissory note.
Though the Company pledged to begin making monthly installments
on the $15 million (Canadian) note July 1, 2004, it never made a
single payment, the complaint said. Bio-One did not disclose its
failure to make payments on the promissory note, the complaint
alleges, even though the Company signed two forbearance
agreements and was notified on December 13, 2004 that the note
holder planned to seize INI's assets as a result.
The Company belatedly disclosed to the SEC that it had defaulted
on the INI promissory note. Following the February announcement,
shares of Bio-One began to significantly decline in price. A
week later, the Company announced it had fired Dauplaise. The
Company, which had traded on the OTC Bulletin Board under the
symbol BICO, has since been delisted.
For more details, contact Michael J. Pucillo, Esq., Kyle G.
DeValerio, Esq., Esperante Building, 222 Lakeview Avenue, Suite
900, West Palm Beach, FL 33401, Phone: (561) 835-9400, E-mail:
lawfla@bermanesq.com
GENERAL MOTORS: Lerach Coughlin Files Securities Suit in E.D. MI
----------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins LLP filed a
securities class action in the United States District Court for
the Eastern District of Michigan on behalf of purchasers of
General Motors Corp. ("General Motors") (NYSE:GM) securities
during the period between April 18, 2001 and November 9, 2005
(the "Class Period").
The complaint charges General Motors and certain of its officers
and directors with violations of the Securities Exchange Act of
1934. Defendant GM engages in the design, manufacture, and
marketing of cars and light trucks worldwide.
The Complaint alleges that, throughout the Class Period,
defendants issued numerous positive statements and filed
quarterly and annual reports with the SEC which described the
Company's financial performance. As alleged in the Complaint,
these statements were materially false and misleading because
they failed to disclose and misrepresented the following adverse
facts, among others that defendants had engaged in improper
accounting practices. As detailed in the Complaint, GM has
admitted that its financial reports for 2001 are materially
false and misleading as it announced that it is going to restate
its results for that period and possibly subsequent periods.
The suit further alleged that the Company had improperly booked
certain credits from suppliers; that the Company lacked adequate
internal controls and was therefore unable to ascertain its true
financial condition; and that as a result of the foregoing, the
values of the Company's earnings were materially overstated by
as much as $300 million to $400 million at all relevant times.
Upon this shocking news, shares of the Company's stock fell
$1.26 per share, or almost 5%, to close at $24.63 per share,
their lowest level since November 1992, on unusually heavy
trading volume.
For more details, contact William Lerach, Samuel H. Rudman,
David A. Rosenfeld, Lerach Coughlin Stoia Geller Rudman &
Robbins LLP by Phone: 800-449-4900 or by e-mail:
wsl@lerachlaw.com.
SERACARE LIFE: Lerach Coughlin Files Securities Suit in S.D. CA
---------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins LLP filed a
securities class action filed in the United States District
Court for the Southern District of California on behalf of
purchasers of SeraCare Life Sciences, Inc. (NASDAQ:SRLS) common
stock during the period between May 3, 2005 and December 19,
2005.
The complaint charges SeraCare and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. SeraCare engages in the manufacture and provision of
biological products and services for diagnostic, therapeutic,
drug discovery and research organizations worldwide.
The complaint alleges that throughout the Class Period
defendants directly participated in an accounting fraud which
materially overstated the Company's financial results in
violation of Generally Accepted Accounting Principles ("GAAP").
Specifically, the complaint charges that throughout the Class
Period, defendants orchestrated and actively participated in the
following improper accounting practices in direct violation of
GAAP:
(1) defendants used improper revenue recognition policies
and practices;
(2) defendants failed to properly account for and value
inventory;
(3) defendants failed to prevent certain Board members from
exerting undue influence on the financial reporting
process of the audit process; and
(4) defendants failed to maintain adequate internal
controls and were, therefore, unable to ascertain the
true financial condition of the Company.
Defendants engaged in these improper accounting practices in
order to bolster the Company's stock price, which enabled the
Company to complete a secondary offering of stock in May 2005,
raising $42 million for the Company, and allowed certain of the
defendants to take advantage of the artificially inflated prices
during the Class Period and sell 606,000 shares of their
SeraCare stock for total proceeds of over $7.8 million.
On December 20, 2005, before the market opened, the Company
announced that "the chairman of the Company's audit committee
has received a letter from Mayer Hoffman McCann P.C. (MHM), the
Company's independent auditors, in which MHM raised concerns
with respect to the Company's financial statements, accounting
documentation and the ability of MHM to rely on representations
of the Company's management." On this news, SeraCare shares fell
as much as 62% before closing down $9.26 per share on volume of
5.8 million shares, 116 times the daily average volume for
SeraCare.
For more details, contact William Lerach, Darren Robbins of
Lerach Coughlin Stoia Geller Rudman & Robbins LLP William
Lerach/Darren Robbins by Phone: 800-449-4900 or 619-231-1058 or
by E-mail: wsl@lerachlaw.com.
STONE ENERGY: Cohen Milstein Launches Securities Suit in W.D. LA
----------------------------------------------------------------
Cohen, Milstein, Hausfeld & Toll, P.L.L.C. has filed a lawsuit
on behalf of its client and on behalf of other similarly
situated purchasers of the securities of Stone Energy
Corporation (NYSE:SGY) ("Stone Energy") between June 17, 2005
and October 6, 2005, inclusive (the "Class Period"), in the
United States District Court for the Western District of
Louisiana.
The Complaint charges Stone Energy and certain executive
officers of Stone Energy with violations of the Securities
Exchange Act of 1934. Among other things, the Complaint alleges
that defendants violated accounting rules and guidelines related
to the valuation of oil reserves. Stone Energy is a Louisiana-
based company which engages in "the acquisition and subsequent
exploration, development, operation and production of oil and
gas properties." Accurate and reliable information on oil and
gas reserves and the expected future cash flows generated from
these reserves is a key factor in determining the value of Stone
Energy. During the Class Period, defendants reported Stone
Energy's proved reserves in SEC filings and press releases
assuring investors that these reserves were reported in
accordance with SEC guidelines. In response, the stock traded at
over $62 per share during September, 2005. However, on October
6, 2005, defendants revealed for the first time that an internal
reserve review conducted during the third quarter showed that
Stone Energy would need to take significant downward revisions
to the Company's previously reported reserves. In response to
the news, Stone Energy's stock price fell from $56.07 to $48.14
on unusually high trading volumes of over 4.1 million shares,
far greater than the average trading volume of around 560,000
shares.
On November 8, 2005, defendants announced that Stone Energy will
restate results from 2001 through the second quarter of 2005.
The Company revealed that an outside investigation concluded
that Stone Energy may have violated regulatory requirements for
reserve booking. The investigation also found that management
set a "tone of optimism and aggressiveness" regarding reserves.
Two days later, the Company announced that the SEC commenced an
informal inquiry into the reserve revision. On December 5, 2005,
defendants admitted that the Company did not follow SEC
guidelines with respect to reserves and revealed that Stone
Energy received an inquiry from the Philadelphia Stock Exchange
about trading activity before its reserve estimate revision in
October 2005. As a result of defendants' alleged fraud,
investors have sustained significant losses. In fact, the full
extent of investors' losses has not yet been revealed, as the
magnitude of the restatement has not yet been disclosed.
For more details, contact Steven J. Toll, Esq., Robert Smits,
Cohen, Milstein, Hausfeld & Toll, P.L.L.C. by Mail: 1100 New
York Avenue, N.W., West Tower -- Suite 500, Washington, D.C.
20005, Phone: 888-240-0775 or 202-408-4600, E-mail:
stoll@cmht.com or rsmits@cmht.com.
WELLS FARGO: Stull Stull Commences Securities Lawsuit in N.D. CA
----------------------------------------------------------------
Stull, Stull & Brody filed a securities class action in the
United States District Court for the Northern District of
California against Wells Fargo & Company and certain of its
affiliates, on behalf of those who purchased Pioneer mutual
funds from Wells Fargo Investments, LLC ("Wells Fargo
Investments") during the period between June 30, 2000 and June
8, 2005, inclusive (the "Class Period").
The Pioneer mutual funds and their respective symbols are as
follows:
Pioneer (NASDAQ: PIODX) (NASDAQ: PBODX) (NASDAQ: PCODX)
(NASDAQ: PFIOX) (NASDAQ: PIORX) (NASDAQ: PYODX)
Pioneer America Income Trust (NASDAQ: PUSGX) (NASDAQ: PBUSX)
(NASDAQ: PCUSX) (NASDAQ: PUSIX)
Pioneer AmPac Growth (NASDAQ: PAPRX) (NASDAQ: PRABX)
(NASDAQ: PRRCX) (NASDAQ: PRFRX)
Pioneer Balanced (NASDAQ: MOMIX) (NASDAQ: PBMIX)
(NASDAQ: PCMPX) (NASDAQ: MOIIX)
Pioneer Bond (NASDAQ: PIOBX) (NASDAQ: PBOBX) (NASDAQ: PCYBX)
(NASDAQ: BFIOX) (NASDAQ: PBFRX) (NASDAQ: PICYX)
Pioneer CA Tax Free Income (NASDAQ: CATAX) (NASDAQ: CATBX)
(NASDAQ: CATCX) (NASDAQ: CATIX)
Pioneer Cullen Value (NASDAQ: CVFCX) (NASDAQ: CVFBX)
(NASDAQ: CVCFX) (NASDAQ: CVFYX)
Pioneer Emerging Markets (NASDAQ: PEMFX) (NASDAQ: PBEFX)
(NASDAQ: PCEFX) (NASDAQ: PYEFX)
Pioneer Equity Opportunity (NASDAQ: PEOFX) (NASDAQ: PEOBX)
(NASDAQ: PEOCX)
Pioneer Equity-Income (NASDAQ: PEQIX) (NASDAQ: PBEQX)
(NASDAQ: PCEQX) (NASDAQ: PQIRX) (NASDAQ: PYEQX)
Pioneer Europe Select Equity (NASDAQ: PERAX) (NASDAQ: PERBX)
(NASDAQ: PERCX)
Pioneer Global High Yield (NASDAQ: PGHYX) (NASDAQ: PGHBX)
(NASDAQ: PGYCX)
Pioneer Growth (NASDAQ: MOMGX) (NASDAQ: PBMGX) (NASDAQ: PCMGX)
(NASDAQ: MOIGX) (NASDAQ: PGRRX) (NASDAQ: PYMGX)
Pioneer Growth Leaders (NASDAQ: LRPSX) (NASDAQ: LRPBX)
(NASDAQ: LRPCX) (NASDAQ: LRPRX)
Pioneer Growth Opportunities (NASDAQ: PGOFX) (NASDAQ: GOFBX)
(NASDAQ: GOFCX) (NASDAQ: PGIFX)
Pioneer High Yield (NASDAQ: TAHYX) (NASDAQ: TBHYX) (NASDAQ:
PYICX)
(NASDAQ: TAHIX) (NASDAQ: TYHRX) (NASDAQ: TYHYX)
Pioneer Ibbotson Aggressive Allocation (NASDAQ: PIAAX) (NASDAQ:
IALBX)
(NASDAQ: IALCX)
Pioneer Ibbotson Conservative Alloc (NASDAQ: PIAVX) (NASDAQ:
PIBVX)
(NASDAQ: PICVX)
Pioneer Ibbotson Growth Allocation (NASDAQ: GRAAX) (NASDAQ:
GRABX)
(NASDAQ: GRACX)
Pioneer Ibbotson Moderate Allocation (NASDAQ: PIALX) (NASDAQ:
PIBLX)
(NASDAQ: PIDCX)
Pioneer Independence (NASDAQ: PINDX)
Pioneer International Equity (NASDAQ: PIWEX) (NASDAQ: PBWEX)
(NASDAQ: PCWEX) (NASDAQ: IEIPX) (NASDAQ: PIEYX)
Pioneer International Value (NASDAQ: PIIFX) (NASDAQ: PBIFX)
(NASDAQ: PCITX)
Pioneer Mid-Cap Growth (NASDAQ: PITHX) (NASDAQ: PBMDX)
(NASDAQ: PCMCX) (NASDAQ: PMCYX)
Pioneer Mid-Cap Value (NASDAQ: PCGRX) (NASDAQ: PBCGX)
(NASDAQ: PCCGX) (NASDAQ: PGCIX) (NASDAQ: PCMRX) (NASDAQ: PYCGX)
Pioneer Municipal Bond (NASDAQ: PBMFX) (NASDAQ: PBMUX)
(NASDAQ: MNBCX) (NASDAQ: PBIMX)
Pioneer Oak Ridge Large Cap Growth (NASDAQ: ORILX) (NASDAQ:
ORLBX)
(NASDAQ: ORLCX) (NASDAQ: ORLRX) (NASDAQ: PORYX)
Pioneer Oak Ridge Small Cap Growth (NASDAQ: ORIGX) (NASDAQ:
ORIBX)
(NASDAQ: ORICX)
Pioneer Protected Principal Plus (NASDAQ: PPPAX) (NASDAQ: PPPBX)
(NASDAQ: PPPCX)
Pioneer Protected Principal Plus II (NASDAQ: PPFAX) (NASDAQ:
PPFBX)
(NASDAQ: PPFCX)
Pioneer Real Estate (NASDAQ: PWREX) (NASDAQ: PBREX) (NASDAQ:
PCREX)
(NASDAQ: PYREX)
Pioneer Research (NASDAQ: PATMX) (NASDAQ: PBTMX) (NASDAQ: PCTMX)
(NASDAQ: PRFYX)
Pioneer Short Term Income (NASDAQ: STABX) (NASDAQ: STBBX)
(NASDAQ: PSHCX)
(NASDAQ: PSHYX)
Pioneer Small and Mid Cap Growth (NASDAQ: PAPPX) (NASDAQ: MCSBX)
(NASDAQ: CGCPX) (NASDAQ: CGCRX)
Pioneer Small Cap Value (NASDAQ: PIMCX) (NASDAQ: PBMOX) (NASDAQ:
PSVCX)
(NASDAQ: CALLX) (NASDAQ: PSVRX) (NASDAQ: PCAYX)
Pioneer Small Company (NASDAQ: PSCFX) (NASDAQ: PBSCX)
(NASDAQ: PCSCX)
Pioneer Strategic Growth (NASDAQ: PAAFX) (NASDAQ: PIABX)
(NASDAQ: PAGCX)
Pioneer Strategic Income (NASDAQ: PSRAX) (NASDAQ: PSRBX)
(NASDAQ: PSRCX)
(NASDAQ: STIRX) (NASDAQ: STRYX)
Pioneer Tax Free Income (NASDAQ: MOMTX) (NASDAQ: PBMTX) (NASDAQ:
PCMTX)
(NASDAQ: MOITX) (NASDAQ: PYMTX)
Pioneer Value (NASDAQ: PIOTX) (NASDAQ: PBOTX) (NASDAQ: PCOTX)
(NASDAQ: PIOIX) (NASDAQ: PVFRX) (NASDAQ: PVFYX)
The Wells Fargo Preferred Funds include mutual funds in the
following mutual fund families: Franklin Templeton Investments,
Putnam Investments, MFS Investment Management, Fidelity
Investments, Evergreen Investments, Alliance Bernstein
Investment Research and Management, Van Kampen Investments, AIM
Distributors, Inc., Oppenheimer Funds, Inc., Eaton Vance Managed
Investments, ING Funds Distributors, LLC, Allianz Global
Investors Distributors, LLC, Federated, The Hartford Mutual
Funds, Dreyfus Service Corporation, Delaware Investments,
Pioneer Investment Management, Inc., Scudder Investments, and
Wells Fargo Mutual Funds.
The H.D. Vest Preferred Funds include mutual funds in the
following mutual fund families: Oppenheimer Funds, Putnam
Investments, Scudder Investments, MFS Investment Management, Van
Kampen Investments, Lincoln Financial Distributors, AIM
Investments, Phoenix Investment Partners, John Hancock Funds,
Wells Fargo Funds, American Funds, and Franklin Templeton
Investments.
The action is pending in the United States District Court for
the Northern District of California against defendant Wells
Fargo & Company and certain of its affiliated entities. The
complaint alleges that during the Class Period, defendants
served as financial advisors who purportedly provided unbiased
and honest investment advice to their clients. Unbeknownst to
investors, defendants, in clear contravention of their
disclosure obligations and fiduciary responsibilities, failed to
properly disclose that they had engaged in a scheme to
aggressively push Wells Fargo Investments and H.D. Vest sales
personnel to steer clients into purchasing certain Wells Fargo
Funds and Wells Fargo and H.D. Vest Preferred Funds
(collectively, "Shelf Space Funds") that provided financial
incentives and rewards to Wells Fargo and H.D. Vest and their
personnel based on sales. The complaint alleges that defendants'
undisclosed sales practices created an insurmountable conflict
of interest by providing substantial monetary incentives to sell
Shelf-Space Funds to their clients, even though such investments
were not in the clients' best interest. Wells Fargo Investments
and H.D. Vest's failure to disclose the incentives constituted
violations of federal securities laws.
The action also includes a subclass of persons who held any
shares of Wells Fargo Mutual Funds. The complaint additionally
alleges that the investment advisor subsidiary of Wells Fargo,
Wells Fargo Funds Management, created further undisclosed
material conflicts of interest by entering into revenue sharing
agreements with brokers at Wells Fargo Investments and H.D. Vest
to push investors into Wells Fargo Funds, regardless of whether
such investments were in the investors' best interests. The
investment advisors financed these arrangements by illegally
charging excessive and improper fees to the fund that should
have been invested in the underlying portfolio. In doing so they
breached their fiduciary duties to investors under the
Investment Company Act and state law and decreased shareholders'
investment returns.
The action includes a second subclass of persons who purchased a
Wells Fargo Financial Plan that held Wells Fargo Funds. The
Wells Fargo Financial Plans include, but are not limited to Full
Service Brokerage Accounts, Wells Asset Management accounts,
WellsChoice account, and WellsSelect account.
For more details, contact Tzivia Brody, by Mail: 6 East 45th
Street, New York, NY 10017 by Phone: 1-800-337-4983 by Fax:
212-490-2022, or visit the Website: http://www.ssbny.com.
*********
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Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Copyright 2005. All rights reserved. ISSN 1525-2272.
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