/raid1/www/Hosts/bankrupt/CAR_Public/060111.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, January 11, 2006, Vol. 8, No. 8
Headlines
AARON BROTHERS: Employees Launch Wage Law Violations Suit in CA
ALBERTSON'S INC.: Continues To Face Overtime Wage Suits in CA
ALBERTSON'S INC.: Continues To Face WARN Violations Suit in CA
ALBERTSON'S INC.: Plaintiffs Appeal CA Suit Certification Denial
AMERIDEBT INC.: Founder Enters Fraud Suit Settlement With FTC
ANNTAYLOR RETAIL: CA Court Consolidates Overtime Wage Lawsuits
ANNTAYLOR RETAIL: Former CA Employees File FLSA Violations Suit
APPLE COMPUTER: CA Consumers File Wireless Products Fraud Suit
APPLE COMPUTER: CA Court Dismisses Lawsuit For Consumer Fraud
APPLE COMPUTER: Reaches Settlement For CA False Advertising Suit
APPLE COMPUTER: Consumers Launch Powerbook G4 Fraud Suit in CA
APPLE COMPUTER: CA Consumer Lawsuit Against Rebates Still Stayed
APPLE COMPUTER: CA Court Mulls Lawsuit Settlement Final Approval
APPLE COMPUTER: CA iPod Lawsuit Settlement Approval Appealed
APPLE COMPUTER: CA Court Junks Appeal on Suit Dismissal, Counsel
APPLE COMPUTER: Plaintiffs File New Amended CA Hard Drive Suit
APPLE COMPUTER: CA Court Dismisses in Part Antitrust Fraud Suit
APPLE COMPUTER: Plaintiffs Drop Consumer Fraud Lawsuit in CA
APPLE COMPUTER: Plaintiffs To File Amended Consumer Fraud Suit
APPLE COMPUTER: Continues To Face French Consumer Group Lawsuit
APPLE COMPUTER: Faces iPod Nano Consumer Lawsuits in CA, Canada
BLUE CROSS: AL Dental Group Files Suit For Unpaid Reimbursements
CANADA: Expert Says Sony Deal Could be Blueprint For New Laws
CANADA: Residents Mull Property-Damage Suit V. City of Hamilton
CASUAL MALE: CA Court Preliminarily OKs Employees' Wage Lawsuit
COMMUNITY FINANCIAL: NC, GA Court Rulings Affect Payday Lenders
DRESDNER KLEINWORT: Employees File $1.4B Sexual Bias Suit in NY
FLORIDA: Litigation V. School District Has Potential to Expand
GYMBOREE OPERATIONS: Reaches Settlement For CA Overtime Lawsuit
HEALTHSOUTH CORPORATION: Enters Mediation For AL Securities Suit
HEALTHSOUTH CORPORATION: Working To Settle AL Securities Lawsuit
HEALTHSOUTH CORPORATION: FL Court Yet To Approve ADA Settlement
INSTALOANS FINANCIAL: Reaches Deal, To Pay Back Loan Customers
IOWA: Judge Declares City's Special Fee on Utility Bills Illegal
LORILLARD TOBACCO: Analyst Says FL Ruling a Big Boost to Firm
LOUISIANA: Judge Blocks Eviction of Katrina Victims From Hotel
MAYTAG COPORATION: Settles Age Discrimination Suit For $334,500
MICHAELS STORES: Former Canadian Employees File Overtime Lawsuit
MICHAELS STORES: Faces Wage Law Violations Lawsuit in CA Court
NETFLIX INC.: Law Firm Targets CA DVD Consumer Fraud Settlement
PATHMARK STORES: Asks DE Court To Dismiss Securities Fraud Suit
ROYAL DUTCH: Fund Takes Lead Plaintiff Status in NJ Fraud Case
ROYAL OASIS: Bahamas Resort Time-Share Owners Consider Suit
UNITED STATES: Supreme Court Agrees to Hear Mutual Funds Case
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
New Security Fraud Cases
CIPHERGEN BIOSYSTEMS: Schneider & Wallace Files Fraud Suit in CA
*********
AARON BROTHERS: Employees Launch Wage Law Violations Suit in CA
---------------------------------------------------------------
Aaron Brothers, Inc. faces a class action filed in the Superior
Court of California, County of San Diego, alleging that it
failed to pay overtime wages, reimburse the plaintiff for
necessary expenses (including the cost of gas used in driving
his car for business purposes), and provide adequate meal and
rest breaks (or compensation in lieu thereof).
On November 16, 2005, Geoffrey Morris, a former Company employee
in San Diego, California, commenced a proposed class action
proceeding on behalf of himself and current and former Company
employees in California from November 16, 2001 to the present.
The suit also alleges that this conduct was in breach of
California's unfair competition law. With the exception of the
meal and rest breaks claim, the claims are asserted on behalf of
the putative class. The plaintiff seeks injunctive relief,
damages for unpaid overtime pay, meal break penalties, waiting
time penalties, interest, and attorneys' fees and costs.
ALBERTSON'S INC.: Continues To Face Overtime Wage Suits in CA
-------------------------------------------------------------
Albertson's, Inc. continues to face class actions filed in the
Superior Court for the County of Los Angeles, California. The
suit also names as defendants American Stores Company, American
Drug Stores, Inc., Sav-on Drug Stores, Inc. and Lucky Stores,
Inc., wholly owned subsidiaries of the Company.
Assistant managers filed the first suit, styled "styled
"Gardner, et al. v. American Stores Company, et al.," in April
2000 seeking recovery of overtime pay based upon plaintiffs'
allegation that they were improperly classified as exempt under
California law. In May 2001 a class action with respect to Sav-
on Drug Stores assistant managers was certified by the court. A
case with very similar claims, involving the Sav-on Drug Stores
assistant managers and operating managers, was also filed in
April 2000 against the Company's subsidiary Sav-on Drug Stores,
Inc. in the Superior Court for the County of Los Angeles,
California, styled "Rocher, Dahlin, et al. v. Sav-on Drug
Stores, Inc." and was also certified as a class action.
In April 2002 the Court of Appeal of the State of California
Second Appellate District reversed the Rocher class
certification, leaving only two plaintiffs, however, on August
26, 2004, the California Supreme Court reversed this decision
and remanded the case to the trial court.
ALBERTSON'S INC.: Continues To Face WARN Violations Suit in CA
--------------------------------------------------------------
Albertson's Inc. continues to face a class action filed in the
Los Angeles County Superior Court in California, styled "Joanne
Kay Ward et al. v. Albertsons, Inc. et al."
The suit alleges that the Company and its subsidiaries, Lucky
Stores and Sav-on Drug Stores, paid terminating employees their
final paychecks in an untimely manner. The lawsuit seeks
statutory penalties. On January 4, 2005, the case was certified
as a class action.
ALBERTSON'S INC.: Plaintiffs Appeal CA Suit Certification Denial
----------------------------------------------------------------
Plaintiffs appealed the Superior Court of California for Alabama
County's ruling refusing class certification to the lawsuit
filed against Albertson's, Inc., styled "Dunbar v. Albertson's,
Inc."
A grocery manager filed the suit, seeking recovery including
overtime pay based upon plaintiff's allegation that he and other
grocery managers were improperly classified as exempt under
California law. Class certification was denied in June 2005 and
plaintiffs have appealed.
AMERIDEBT INC.: Founder Enters Fraud Suit Settlement With FTC
-------------------------------------------------------------
The Federal Trade Commission put a successful end to the largest
case against deceptive credit counseling and debt management
brought by the agency. The FTC announced in a statement a
settlement with Andris Pukke, founder of AmeriDebt, Inc., and
with a related company owned by Pukke, DebtWorks, Inc. The
agreement, if approved by a federal court in Maryland, will
require Mr. Pukke to give up virtually all of his assets for a
consumer redress program for victims of the deception, a fund
that ultimately could total as much as $35 million.
The agreement also bars Mr. Pukke permanently from engaging in
credit counseling, debt management, and credit education
activities, prohibits him from violating the Telemarketing Sales
Rule, and prohibits him from engaging in other conduct in
connection with telemarketing.
"Our case alleges that these defendants used their credit
counseling business to deceive nearly 300,000 consumers about
the services they provide, the fees they charged, and their
status as a non-profit company," said Lydia B. Parnes, director
of the FTC's Bureau of Consumer Protection. "This settlement
bans the defendants from the credit counseling business
permanently and requires them to give up the money they made
from this scheme."
The settlement ends more than two years of litigation against
Mr. Pukke, effectively securing virtually all of his personal
assets, including homes in Miami Beach and Southern California,
for use as consumer redress. This settlement is part of a global
settlement that also settles the claims of a nationwide class
action, Polacsek et al. v. Debticated, et al., No. 04-0631 (D.
Md), which had been consolidated for trial with the FTC's case.
A receiver, appointed by the court in April 2005, to identify
and maintain Mr. Pukke's assets, has collected property worth
millions of dollars, and the order authorizes him to continue
his efforts to locate additional assets. Any amounts the
receiver collects, up to $35 million, would go into the redress
fund under the settlement. If the receiver collects assets worth
more than $35 million, the excess would go into the bankruptcy
estate that was created when Mr. Pukke filed for bankruptcy last
July.
In a complaint filed in November 2003, the FTC charged that
AmeriDebt, Inc.; DebtWorks, Inc.; and Andris Pukke deceived
consumers with claims that AmeriDebt was a nonprofit
organization and that it provided counseling services to
consumers seeking to get out of debt. The FTC charged that,
rather than operating for charitable purposes as advertised,
AmeriDebt funneled profits to affiliated for-profit entities and
individuals, including DebtWorks and Mr. Pukke. The complaint
also charged that the defendants did not provide counseling
services, but simply enrolled every customer in a debt
management plan (DMP). According to the FTC, AmeriDebt also
deceived customers when it claimed that it did not charge an up-
front fee. Instead, the complaint alleged, AmeriDebt kept its
clients' first payment under their DMPs as its own fee, rather
than disbursing the money to consumers' creditors as promised.
The complaint charged these practices were deceptive in
violation of the Federal Trade Commission Act.
In June 2004, AmeriDebt filed for bankruptcy relief. At the
request of the FTC and others, the bankruptcy court removed
existing management and appointed a trustee to oversee
AmeriDebt. In March 2005, AmeriDebt settled the FTC's charges
by, among other things, agreeing to shut down its debt-
management operations. In April 2005, at the FTC's request, the
court froze the assets of Mr. Pukke and DebtWorks, and appointed
a receiver to locate and marshal their assets. Andris Pukke
filed for bankruptcy in July 2005, and subsequently the District
of Maryland court stayed the bankruptcy case pending the outcome
of the FTC trial. Pamela Pukke, Andris Pukke's estranged wife,
was charged as a relief defendant in the case and settled with
the Commission in December 2005, by releasing her claims to
certain assets and by agreeing to cooperate with the Commission
regarding its ongoing actions involving Andris Pukke and
DebtWorks.
The settlement imposes a $172 million suspended judgment against
the defendants, which will be triggered if they do not comply
with the order. In addition, the monetary judgment is based on
financial statements provided to the Commission by the
defendants; the order requires them to turn over the value of
any asset omitted from either financial statement. Further, the
order contains the defendants' agreement that the assets
collected will be held in a constructive trust for consumer
victims and used for consumer redress. The Commission, in
consultation with the lawyers for the class action, will
determine how to set up and implement the redress program. In
the event that the money collected instead must go into Mr.
Pukke's bankruptcy estate, the FTC will hold a $172 million
claim against the bankruptcy estate.
The order allows him to receive some funds to pay specified
legal fees and living expenses incurred since April 2005. The
order requires Mr. Pukke to cooperate with the Commission in
connection with this action and with his pending bankruptcy
case. The order also requires him to cooperate with the receiver
in the ongoing effort to locate all receivership assets, and
maintains the asset freeze in place against the defendants.
Finally, it contains standard monitoring and record-keeping
requirements to allow the FTC to monitor the defendants'
compliance with its terms.
For updates to the case, the FTC consumer hotline number for
AmeriDebt is: 1-877-862-0886.
The Commission vote approving the stipulated final judgment and
order was 3-0, with Chairman Deborah Platt Majoras and
Commissioner William E. Kovacic not participating. The judgment
and order were filed in the U.S. District Court for the District
of Maryland on January 9, 2006, and settle the FTC's charges
against defendants Andris Pukke and DebtWorks, Inc.
Copies of the consent order in settlement of the court action
are available from the FTC's Web site at http://www.ftc.govand
also from the FTC's Consumer Response Center, Room 130, 600
Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works
for the consumer to prevent fraudulent, deceptive, and unfair
business practices in the marketplace and to provide information
to help consumers spot, stop, and avoid them. To file a
complaint in English or Spanish (bilingual counselors are
available to take complaints), or to get free information on any
of 150 consumer topics, call toll-free, 1-877-FTC-HELP
(1-877-382-4357), or use the complaint form at
http://www.ftc.gov.The FTC enters Internet, telemarketing,
identity theft, and other fraud-related complaints into Consumer
Sentinel, a secure, online database available to hundreds of
civil and criminal law enforcement agencies in the U.S. and
abroad. For more details, contact Mitchell J. Katz, Office of
Public Affairs, by Phone: 202-326-2161 or contact Lucy Morris,
Bureau of Consumer Protection by Phone: 202-326-3224, or visit
the Website: http://www.ftc.gov/opa/2006/01/andrispukke.htm.
ANNTAYLOR RETAIL: CA Court Consolidates Overtime Wage Lawsuits
--------------------------------------------------------------
The California Superior Court for Los Angeles County
consolidated two similar class actions filed against AnnTaylor
Retail, Inc., alleging violations of the state's overtime law.
On February 15, 2005, two former managers of the Company's
California stores filed a purported class action in Los Angeles
County Superior Court alleging that the Company misclassified
its store managers and assistant store managers as exempt from
California overtime wage and hour laws, thereby depriving them
of overtime pay. On May 5, 2005, a second purported class
action was filed, although not yet served, against the Company
in San Francisco County Superior Court by a former manager of
one of the Company's stores in California alleging violations of
California labor laws with respect to overtime pay as well as
adequate meal and rest periods.
These actions are similar to numerous suits filed against
retailers and others with operations in California. The class
members in both actions seek recovery in an unstated dollar
amount of unpaid wages, statutory penalties, attorneys' fees and
costs and injunctive relief. The action filed in San Francisco
County Superior Court was transferred to Los Angeles Superior
Court to be coordinated with the earlier action filed in that
court.
The putative class members in the coordinated actions seek
recovery in an unstated dollar amount of unpaid wages and other
relief, including waiting time penalties. These actions are at a
preliminary stage and, accordingly, it is too early to evaluate
the outcome. The Company intends to vigorously defend these
actions. A non-binding mediation was scheduled to take place in
early December 2005.
ANNTAYLOR RETAIL: Former CA Employees File FLSA Violations Suit
---------------------------------------------------------------
AnnTaylor Retail, Inc. faces a class action filed in the Santa
Clara County Superior Court in California, alleging that the
Company denies its California employees earned vacation pay
through its allegedly unlawful policies related to the accrual,
use and forfeiture of vacation, personal days and holidays.
A former employee of one of the Company's California retail
stores filed the suit on October 3, 2005. The putative class
members seek recovery in an unstated dollar amount of unpaid
vacation wages and other relief, including waiting time
penalties. This action is at a very preliminary stage and,
accordingly, it is too early to evaluate the outcome. The
Company intends to vigorously defend this action.
APPLE COMPUTER: CA Consumers File Wireless Products Fraud Suit
--------------------------------------------------------------
Apple Computer, Inc. faces a consumer class action filed in the
California Superior Court for Los Angeles County, styled
"Baghdasarian, et al. v. Apple Computer, Inc."
Plaintiffs filed this action on October 31, 2005, on behalf of a
purported nationwide class of all purchasers of all Apple
wireless products (router, modem, or adaptor) sold at any time.
The complaint alleges that the Company misrepresented the
transmission rates of these products. The complaint alleges
causes of action for breach of express warranty and for
violations of the Consumer Legal Remedies Act, California
Business & Professions Code Section 17200 (unfair competition)
and California Business & Professions Code Section 17500 (false
advertising). The complaint seeks damages and equitable
remedies.
APPLE COMPUTER: CA Court Dismisses Lawsuit For Consumer Fraud
-------------------------------------------------------------
The Santa Clara Superior Court in California dismissed the
amended class action filed against Apple Computer, Inc.,
alleging violations of the state's trade laws.
The suit, styled "Branning, et al. v. Apple Computer, Inc.," was
initially filed in the San Francisco Superior Court in
California on February 17, 2005. The complaint alleges
violations of California Business & Professions Code section
17200 (unfair competition) regarding a variety of purportedly
unfair and unlawful conduct including, but not limited to,
allegedly selling used computers as new, failing to honor
warranties, misappropriating trade secrets and breach of
contract. Plaintiffs request unspecified damages and other
relief.
The Company received service of the complaint on March 12, 2005
and on March 13, 2005 the Company filed a motion to transfer the
case to Santa Clara County Superior Court. On May 9, 2005, the
Court granted the motion and transferred the case to Santa Clara
County Superior Court. On May 2, 2005, Plaintiffs filed an
amended complaint adding two new named Plaintiffs and three new
causes of action including a claim for treble damages under the
Cartwright Act (California Business and Professions Code 16700
et seq.) The Company filed a demurrer to the amended complaint,
which the Court sustained in its entirety on November 10, 2005.
The Court granted Plaintiffs leave to amend their complaint.
APPLE COMPUTER: Reaches Settlement For CA False Advertising Suit
----------------------------------------------------------------
Apple Computer, Inc. reached a settlement for the class action
filed in the Orange County Superior Court in California, styled
"Burrow v. Apple Computer, Inc."
The suit, filed on February 17, 2005, alleges false advertising
regarding the copy protection capabilities of DVD Studio Pro.
The Complaint alleges violations of California Business &
Professions Code section 17200 (unfair competition) and Code
section 17500 (false advertising) and negligent
misrepresentation. Plaintiff requests unspecified damages and
other relief.
The Company filed an answer on April 7, 2005 denying all
allegations and asserting numerous affirmative defenses, the
Company said in a disclosure to the Securities and Exchange
Commission. Settlement of this matter did not have a material
effect on the Company's financial position or results of
operation.
APPLE COMPUTER: Consumers Launch Powerbook G4 Fraud Suit in CA
--------------------------------------------------------------
Apple Computer, Inc. faces a class action filed in the United
States District Court for the Northern District of California,
styled "Butzer, et al., v. Apple Computer, Inc."
Plaintiffs filed this action on August 23, 2005 on behalf of a
purported nationwide class of all purchasers of the Company's
PowerBook G4 portable computers. The complaint alleges defects
in the memory of the computers. The complaint alleges that this
purported defect extends to other series of the Company's
portables and states that plaintiffs reserve the right to amend
the complaint to include these other series. Plaintiffs assert
claims for alleged violations of California Business &
Professions Code Section 17200 (unfair competition), California
Business & Professions Code Section 17500 (false advertising),
the Consumer Legal Remedies Act and the Song-Beverly Consumer
Warranty Act. The complaint seeks remedies including
restitution and/or damages and injunctive relief.
The suit is styled "Butzer et al v. Apple Computer, Inc., case
no. 5:05-cv-03414-RMW," filed in the United States District
Court for the Northern District of California under Judge Ronald
M. Whyte. Representing the Company is Penelope A. Preovolos of
Morrison & Foerster LLP, 425 Market Street, San Francisco, CA
94105, Phone: 415-268-7187, E-mail: ppreovolos@mofo.com.
Representing the plaintiffs is Blake M. Harper of Hulett Harper
LLP, 550 West C Street, Suite 1600, San Diego, CA 92101, Phone:
619-338-1133, Fax: 619-338-1139, E-mail:
office@hulettharper.com.
APPLE COMPUTER: CA Consumer Lawsuit Against Rebates Still Stayed
----------------------------------------------------------------
The class action filed against Apple Computer, Inc. in the Los
Angeles Superior Court in California, styled "Cagney v. Apple
Computer, Inc." remains stayed.
The class action was originally filed on January 9, 2004,
alleging improper collection of sales tax in transactions
involving mail-in rebates. The complaint alleges violations of
California Business and Professions Code Section 17200 (unfair
competition) and seeks restitution and other relief.
The Company filed an answer on February 20, 2004, denying all
allegations and asserting numerous affirmative defenses The
Company filed a motion to disqualify Plaintiff's counsel, which
the Court denied. The Company filed a petition for a writ of
mandate with respect to this ruling and the Court of Appeal
issued an order to show cause as to why the writ should not
issue. Plaintiff's lead counsel subsequently withdrew.
On February 17, 2005, the Court ruled that the trial court
abused its discretion in failing to grant the Company's motion
to disqualify and ordered the trial court to disqualify both of
Plaintiff's law firms upon remand. The opinion was designated
for publication and Plaintiff has asked the Court to de-publish
it. The Company has opposed that request. The trial court
issued the disqualification order on May 12, 2005. On May 9,
2005, Plaintiff substituted new counsel. The Company has
obtained an opinion on the tax issue from the State Board of
Equalization. Discovery is stayed.
APPLE COMPUTER: CA Court Mulls Lawsuit Settlement Final Approval
----------------------------------------------------------------
The Santa Clara Superior Court in California granted preliminary
approval to the settlement of the class action filed against
Apple Computer, Inc., styled "Clark v Apple Computer, Inc."
Plaintiff filed this purported class action, alleging defects in
the Company's "yo-yo" power adapters. Plaintiffs request
unspecified damages and other relief.
The parties have reached a tentative settlement in this matter.
The Court granted preliminary approval of the settlement on
April 19, 2005. On November 29, 2005, the Court continued the
hearing on final settlement approval until January 10, 2006,
when all claims will have been received and completely processed
and relevant claim information has been reported to the Court.
Settlement of this matter on the terms preliminarily approved by
the Court will not have a material effect on the Company's
financial position or results of operation.
APPLE COMPUTER: CA iPod Lawsuit Settlement Approval Appealed
------------------------------------------------------------
Parties appealed the San Mateo Superior Court for the State of
California's ruling granting final approval to the settlement of
the consolidated securities class action filed against Apple
Computer, Inc., over alleged misrepresentations by the Company
over the battery life of its popular iPod mp3 player.
Eight suits were initially filed, entitled:
(1) Craft v. Apple Computer, Inc., (filed December 23,
2003, Santa Clara County Superior Court);
(2) Chin v. Apple Computer, Inc., (filed December 23, 2003,
San Mateo County Superior Court);
(3) Hughes v. Apple Computer, Inc., (filed December 23,
2003, Santa Clara County Superior Court);
(4) Westley v. Apple Computer, Inc., (filed December 26,
2003, San Francisco County Superior Court);
(5) Keegan v. Apple Computer, Inc., (filed December 30,
2003, Alameda County Superior Court);
(6) Wagya v. Apple Computer, Inc., (filed February 19,
2004, Alameda County Superior Court);
(7) Yamin v. Apple Computer, Inc., (filed February 24,
2004, Los Angeles County Superior Court);
(8) Kieta v. Apple Computer, Inc., (filed July 8, 2004,
Alameda County Superior Court)
Eight separate plaintiffs filed purported class action cases in
various California courts alleging misrepresentations by the
Company relative to iPod battery life. The complaints include
causes of action for violation of California Business and
Professions Code Section 17200 (unfair competition), the
Consumer Legal Remedies Action (CLRA) and claims for false
advertising, fraudulent concealment and breach of warranty. The
complaints seek unspecified damages and other relief.
The cases were consolidated in San Mateo County and Plaintiffs
thereafter filed a consolidated complaint. On August 25, 2004,
the Company filed an answer denying all allegations and
asserting numerous affirmative defenses. The parties have
reached a tentative settlement and the Court granted preliminary
approval of the settlement on May 20, 2005. The trial court
entered an order granting final approval to the settlement on
August 25, 2005. An appeal challenging the trial court's
approval of the settlement was filed on October 24, 2005; the
appeal is pending.
A similar complaint relative to iPod battery life, styled
"Mosley v. Apple Computer, Inc.," was filed in Westchester
County, New York on June 23, 2004 alleging violations of New
York General Business Law Sections 349 (unfair competition) and
350 (false advertising). The Company removed the case to Federal
Court and Plaintiff filed a motion for remand, which the Court
has not yet decided. This case is stayed and is part of the
tentative settlement referred to above.
A similar complaint relative to iPod battery life, styled "Lenzi
v. Apple Canada, Inc." was filed in Montreal, Quebec, Canada on
June 7, 2005, seeking authorization to institute a class action
on behalf of Generations 1, 2 and 3 iPod owners in Quebec. A
class certification hearing has been scheduled for January 12,
2006.
Two similar complaints relative to iPod battery life, styled
"Wolfe v. Apple" and "Hirst v. Apple," were filed in Toronto,
Ontario, Canada on August 15, 2005 and September 12, 2005,
respectively. Both actions define the class as a national class
consisting of all persons in Canada who have purchased or who
own an iPod. A motion for certification of the class proceeding
has been scheduled for the Spring of 2006.
APPLE COMPUTER: CA Court Junks Appeal on Suit Dismissal, Counsel
----------------------------------------------------------------
The California Court of Appeals denied Apple Computer, Inc.'s
appeal of the San Francisco County Superior Court in
California's ruling refusing to dismiss the general public
claims in the class action filed against the Company, styled
"Davis v. Apple Computer, Inc."
Plaintiff filed this purported class action, alleging that the
Company engaged in unfair and deceptive business practices
relating to its AppleCare Extended Service and Warranty Plan.
Plaintiff asserts causes of action for violation of the
California Business and Professions Code Sections 17200 and
17500, breach of the Song-Beverly Warranty Act, intentional
misrepresentation and concealment. Plaintiff requests
unspecified damages and other relief.
The Company filed a demurrer and motion to strike which were
granted, in part, and Plaintiff filed an amended complaint. The
Company filed an answer on April 17, 2003 denying all
allegations and asserting numerous affirmative defenses.
Plaintiff subsequently amended its complaint. On October 29,
2003, the Company filed a motion to disqualify Plaintiff's
counsel in his role as counsel to the purported class and to the
general public. The Court granted the motion but allowed
Plaintiff to retain substitute counsel. Plaintiff did engage new
counsel for the general public, but not for the class.
The Company then moved to disqualify Plaintiff's new counsel and
to have the Court dismiss the general public claims for
equitable relief. The Court declined to disqualify Plaintiff's
new counsel or to dismiss the equitable claims, but did confirm
that the class action claims are dismissed. The Company
appealed the ruling and the case is stayed pending the outcome
of the appeal.
The Court heard oral argument on July 12, 2005. The Court of
Appeal denied the appeal on August 17, 2005, affirming the trial
court's decision. The Company filed a Petition for review with
the California Supreme Court, which was denied on November 23,
2005.
APPLE COMPUTER: Plaintiffs File New Amended CA Hard Drive Suit
--------------------------------------------------------------
Plaintiffs filed a new amended class action in the Los Angeles
Superior Court in California against Apple Computer, Inc. and
other members of the computer industry, styled "Goldberg, et al.
v. Apple Computer, Inc., et al. (formerly known as "Dan v. Apple
Computer, Inc.")
Plaintiffs filed this purported class action on September 22,
2003 on behalf of an alleged nationwide class of purchasers of
certain computer hard drives. The case alleges violations of
California Business and Professions Code Section 17200 (unfair
competition), the Consumer Legal Remedies Act (CLRA) and false
advertising related to the size of the drives. Plaintiffs allege
that calculation of hard drive size using the decimal method
misrepresents the actual size of the drive. The complaint seeks
restitution and other relief.
Plaintiff filed an amended complaint on March 30, 2004 and the
Company filed an answer on September 23, 2004, denying all
allegations and asserting numerous affirmative defenses.
Defendants filed a motion to strike portions of the complaint
based on sales by resellers and filed a motion for judgment on
the pleadings based upon Proposition 64. The Court granted both
motions at a hearing on April 6, 2005. Plaintiff filed an
amended complaint on May 6, 2005. The Defendants filed a
demurrer on June 6, 2005, which will be heard on August 22,
2005. The Court granted the demurrer in part and denied it in
part. Plaintiff filed an amended complaint.
APPLE COMPUTER: CA Court Dismisses in Part Antitrust Fraud Suit
---------------------------------------------------------------
The United States District Court for the Northern District of
California dismissed in part the class action filed against
Apple Computer, Inc., styled "Slattery v. Apple Computer, Inc."
Plaintiff filed this purported class action on January 3, 2005
alleging various claims including alleged unlawful tying of
music purchased on the iTunes Music Store with the purchase of
iPods and vice versa and unlawful acquisition or maintenance of
monopoly market power. Plaintiff's complaint alleges violations
of Sections 1 and 2 of the Sherman Act (15 U.S.C. Sections 1 and
2), California Business and Professions Code Section 16700 et
seq. (the Cartwright Act), California Business and Professions
Code Section 17200 (unfair competition), common law unjust
enrichment and common law monopolization. Plaintiff seeks
unspecified damages and other relief.
The Company filed a motion to dismiss on February 10, 2005. A
hearing on the motion took place on June 6, 2005. On September
9, 2005, the Court denied the motion in part and granted it in
part. Plaintiff filed an amended complaint on September 23, 2005
and the Company filed an answer on October 11, 2005. The case is
in discovery.
The suit is styled "Slattery v. Apple Computer, Inc., case no.
5:05-cv-00037-JW," filed in the United States District Court for
the Northern District of California, under Judge James Ware.
Lawyer for the Company is Adam Richard Sand, Esq. of Jones Day,
555 California Street, 26th Floor, San Francisco, CA 94104,
Phone: 415-875-5716, E-mail: arsand@JonesDay.com. Lawyers for
the class are:
(1) Eric J. Belfi, Murray, Frank & Sailer LLP, 275 Madison
Avenue, Suite 801, New York, NY 10016, Phone: 212-682-
1818, Fax: 212-682-1892, E-mail: ebelfi@murrayfrank.com
(2) Michael David Braun and Marc L. Godino, BRAUN LAW
GROUP, P.C., 12400 Wilshire Boulevard, Suite 920, Los
Angeles, CA 90025, Phone: 310-442-7755, Fax: (310) 442-
7756, E-mail: mdb@braunlawgroup.com or
service@braunlawgroup.com
(3) Roy A. Katriel, The Katriel Law Firm, P.L.L.C., 1101
30th Street, NW Suite 500, Washington, D.C. 20007,
Phone: 202-625-4342, Fax: 202-625-6774
(4) Jacqueline Sailer, Rabin & Peckel LLP, 275 Madison
Avenue, New York, NY 10016, Phone: 212-682-1818, Fax:
212-682-1892
APPLE COMPUTER: Plaintiffs Drop Consumer Fraud Lawsuit in CA
------------------------------------------------------------
Plaintiffs voluntarily withdrew a class action filed against
Apple Computer, Inc. in the Circuit Court of Cook County,
Illinois, alleging that a defect in Apple's 17" Studio Display
monitors results in dimming of half of the screen and constant
blinking of the power light.
The suit is styled "Stamm v. Apple Computer, Inc." This suit
was filed on November 12, 2004, in the Circuit Court, Cook
County, Illinois. The Company removed the case to federal court
on December 22, 2004. The Court remanded it to State Court on
March 22, 2005 on Plaintiff's motion. The Company had filed a
motion to dismiss on January 27, 2005, which is now off calendar
due to the remand. Plaintiff Stamm dismissed the case on
September 2, 2005.
APPLE COMPUTER: Plaintiffs To File Amended Consumer Fraud Suit
--------------------------------------------------------------
The Los Angeles Superior Court in California ordered plaintiffs
to file an amended consumer class action against Apple Computer,
Inc. in the Los Angeles Superior Court in California, styled "
"Allen v. Apple Computer, Inc."
The suit initially alleged that a defect in the Company's 17"
Studio Display monitors results in dimming of half of the screen
and constant blinking of the power light. An amended complaint
in the Allen case was filed on October 24, 2005, adding
additional named plaintiffs and expanding the alleged class to
include purchasers of the 20-inch Apple Cinema Display and the
23-inch Apple Cinema HD Display. The amended complaint alleges
that the displays have a purported defect that causes dimming of
one-half of the screen, and that the Company misrepresented the
quality of the displays and/or concealed the purported defect.
Plaintiffs assert claims under California Business & Professions
Code Section 17200 (unfair competition); California Business &
Professions Code Section 17500 (false advertising) and the
Consumer Legal Remedies Act. The amended complaint seeks
remedies including damages and equitable relief.
On November 14, 2005, the Company filed an answer to the amended
complaint as to the allegations regarding the 17-inch display
and a demurrer/motion to strike as to the allegations regarding
the 20-inch and 23-inch displays on the ground that plaintiffs
failed to allege that they purchased those displays. At a status
conference on November 21, 2005, the Court ordered Plaintiffs to
amend their complaint. The Company's demurrer is off calendar
pending this amendment.
APPLE COMPUTER: Continues To Face French Consumer Group Lawsuit
---------------------------------------------------------------
Apple Computer, Inc. continues to face a complaint filed in
France, styled `Union Federale des Consummateurs - Que Choisir v
Apple Computer France S.A.R.L. and iTunes S.A.R.L."
Plaintiff, a consumer association in France, filed this
complaint on February 9, 2005, alleging that the entities above
are violating consumer law by omitting to mention that the iPod
is allegedly not compatible with music from online music
services other than the iTunes Music Store and that the music
from the iTunes Music Store is only with the iPod and tying the
sales of iPods to the iTunes Music Store and vice versa.
Plaintiff seeks damages, injunctive relief and other relief.
The first hearing on the case took place on May 24, 2005. The
Company's response to the complaint was served on November 8,
2005.
APPLE COMPUTER: Faces iPod Nano Consumer Lawsuits in CA, Canada
---------------------------------------------------------------
Apple Computer, Inc. faces several class actions filed in
California state and federal courts, alleging that the Company's
iPod nano was defectively designed so that it scratches
excessively during normal use which renders the screen
unreadable.
The suits are styled:
(1) Wimmer v. Apple Computer, Inc., filed as Tomczak v.
Apple Computer, Inc. on October 19, 2005 in the United
States District Court for the Northern District of
California, San Jose Division; amended complaint filed
October 26, 2005;
(2) Moschella, et al., v. Apple Computer, Inc., filed
October 26, 2005 United States District Court for the
Northern District of California, San Jose Division;
(3) Calado, et al. v. Apple Computer, Inc., filed October
26, 2005, Los Angeles County Superior Court;
(4) Kahan, et al., v. Apple Computer, Inc., filed October
31, 2005, United States District Court for the Southern
District of New York;
(5) Jennings, et al., v. Apple Computer, Inc., filed
November 4, 2005, United States District Court for the
Northern District of California, San Jose Division
The Wimmer and Moschella actions were brought on behalf of
purported nationwide classes of iPod nano purchasers, with the
exception of California purchasers, and allege violations of the
consumer protection, express and implied warranty statutes of
each state covered by the putative class definition, as well as
negligent misrepresentation and unjust enrichment under the
common laws of these jurisdictions. The Calado action was
brought on behalf of a purported California class of iPod nano
purchasers and asserts claims for alleged violation of
California Business & Professions Code Section 17200 (unfair
competition), California Business & Professions Code Section
17500 (false advertising), the Consumer Legal Remedies Act,
breaches of express and implied warranties, negligent
misrepresentation and unjust enrichment. The Jennings action was
filed on behalf of a purported class of all iPod nano purchasers
outside of the United States, based upon alleged violations of
the same California statutes as in the Calado complaint. The
Kahan action was brought on behalf of a purported New York class
of iPod nano purchasers and alleges claims under the New York
unfair competition law, breach of express warranty and unjust
enrichment. The complaints seek damages and various other
remedies.
Two similar complaints, styled "Carpentier v. Apple Canada,
Inc.," and "Royer- Brennan v. Apple Computer, Inc. and Apple
Canada, Inc.," were filed in Montreal, Quebec, Canada, on
October 27, 2005 and November 9, 2005, respectively, seeking
authorization to institute a class action on behalf of iPod nano
purchasers in Quebec.
BLUE CROSS: AL Dental Group Files Suit For Unpaid Reimbursements
----------------------------------------------------------------
The Alabama Dental Association commenced a lawsuit against Blue
Cross and Blue Shield of Alabama, claiming that the insurance
Company defrauded roughly 1,600 dentists out of more than $100
million in reimbursements, The Montgomery Advertiser reports.
Filed in a U.S. District Court, the suit alleges that Blue Cross
pays dentists in an untimely manner, and often only a fraction
of the agreed-upon reimbursement. Jere Beasley, a lawyer
representing the association told The Montgomery Advertiser,
"They have a practice set up by design to systematically deny,
delay and diminish payments to dentists."
The Company denied the allegations. "We obviously don't feel
there's any merit to this lawsuit," Grey Till Jr., general
counsel for Blue Cross told The Montgomery Advertiser.
Wayne McMahan, the director of the Alabama Dental Association
told The Montgomery Advertiser that the Company has been
breaking contracts with association members for more than a
decade. According to him, "Blue Cross tends to operate as they
see fit until they are successfully challenged." He also told
The Montgomery Advertiser that the association tried repeatedly
to reach an agreement with Blue Cross before deciding to file
the lawsuit.
Mr. McMahan told The Montgomery Advertiser that the suit alleges
three types of wrongdoing by the Company:
(1) The company uses an automated system to substitute
dental codes into a computer so dentists receive less
for their services than they should. For example, Blue
Cross reimburses dentists for composite (clear)
fillings at the cost of amalgam (silver) fillings,
which are 10 percent to 15 percent cheaper.
(2) The company sometimes refuses to pay for two of the
same dental procedures if both procedures are presented
on the same bill. For example, dentists who work on two
cavities on the same tooth are only paid for working on
one of the cavities.
(3) The company often doesn't reimburse dentists within 30
days, as is required by law. It can take months for
dentists to receive insurance payments.
CANADA: Expert Says Sony Deal Could be Blueprint For New Laws
-------------------------------------------------------------
University of Ottawa law professor and Internet copyright guru
Michael Geist says Canadian legislators could use a settlement
given preliminary approval by a judge in a U.S. class action
suit as a blueprint for laws protecting consumers' privacy and
rights to use digital music, The Ottawa Sun reports.
The suit, which was launched against Sony BMG back in November
2005, concerns the Company's distribution of music CDs
containing digital rights management (DRM) software programs
called MediaMax and XCP. Plaintiffs in the case alleged the
programs, which would install themselves on computers playing
the CDs, compromise the security of the machines and, in the
case of XCP, could be used to track the listening habits of
customers. MediaMax Version 5 came under fire because it would
install even before a pop up appeared on the screen asking users
for permission.
Under the proposed settlement, the Company will stop
manufacturing CDs with both First4Internet XCP and SunnComm
MediaMax software. For individuals who already purchased the
flawed CDs, they will be offered the same music without digital
rights management (DRM), and some will also receive downloads of
other Sony BMG music from several different services, including
iTunes. In addition, the deal would also waive several
restrictive end user license agreement (EULA) terms and commit
the Company to a detailed security review process prior to
including any DRM on future CDs, as well as providing for
adequate pre-sale notice to consumers in the future, an earlier
Class Action Reporter story (January 10, 2006) reports.
Consumers can exchange CDs with XCP software for clean CDs now,
however, the rest of the settlement benefits will not be
available until an official notice to the class is issued. The
court ordered that the notice via: newspaper ads, Google ads,
email and other means must occur by February 15. Once that
happens, consumers can begin submitting claims for settlement
benefits and should get those benefits within 6-8 weeks of
submitting the proof of claim form, an earlier Class Action
Reporter story (January 10, 2006) reports.
While such programs are touted as a means of preventing online
piracy, Mr. Geist told The Ottawa Sun that the programs make it
difficult for consumers to use and listen to their music on the
machines they want. He adds that some of the programs used by
Sony made it difficult for people to use iTunes, a Sony
competitor.
Mr. Geist noted that the current privacy legislation only
governs how firms can use private information and consumers are
often left only with the choice of allowing their information to
be used or not using a company's services.
"Why does this industry insist on treating its best consumers
like criminals?" Mr. Geist asked.
DRM-enabled CDs, according to him, only affect people who buy
music in a store. He told The Ottawa Sun that the programs used
by Sony actually did nothing to stop people from uploading the
music on the Internet.
CANADA: Residents Mull Property-Damage Suit V. City of Hamilton
---------------------------------------------------------------
An Ontario Court of Appeal decision allowing 8,000 Port Colborne
residents to sue Inco, Ltd. could set the stage for a class
action property-damage suit by hundreds of homeowners along the
Lincoln Alexander and Red Hill Valley parkways against the City
of Hamilton, Ontario, Canada, The Hamilton Spectator reports.
Previously, attorney Eric Gillespie persuaded the appeal court
to let Port Colborne residents proceed with their class action
against the Company, which was begun back in 2001. The
homeowners seek to recover damages for alleged environmental
contamination. Between 1918 and 1984, Inco operated a refinery
in Port Colborne that processed nickel. During that 66-year
period, the refinery deposited tons of nickel oxide into the
surrounding environment. The homeowners allege that this nickel
oxide contaminated the Port Colborne area, in particular, a low-
income area adjacent to and downwind from the Company's refinery
known as Rodney Street. In September 2000, the Ontario Ministry
of Environment released a report stating that the Company had
discharged contaminants into the natural environment, which
posed a risk both to the environment and to human health for
some Port Colborne residents. The release of the Ministry's
report had a significant impact upon property values in the Port
Colborne area, an earlier Class Action Reporter story (November
22, 2005) reports.
Homeowners claim that the nickel oxide emitted in the
environment by the refinery is toxic and has affected the
physical and emotional health and well being of the residents of
Port Colborne. The nickel oxide is alleged to have caused
widespread damage to the lands, homes and businesses in Port
Colborne, an earlier Class Action Reporter story (November 22,
2005) reports.
The lowers courts had refused to allow the case to proceed. The
Ontario Court of Appeal, Ontario's highest court, decided that
the lower courts erred in refusing to allow the case to proceed
as a class action, ordering that it should be certified as a
class action and permitted to proceed to trial. The court
certified claims for negligence, public nuisance and trespass.
The court held that dealing with all of the facts and issues
raised in the case should be dealt with in one trial because it
would result in a substantial savings of time and expense. The
court further found that access to justice would be greatly
enhanced by a class action. The evidence before the court was
that many of the homeowners are the most vulnerable, being
elderly, on fixed incomes, persons with disability or recipients
of social assistance. Ultimately, the court held that the
homeowners could not afford to bring individual actions and that
a class action was the best way by which to ensure that they had
access to justice and a real possibility of redress, an earlier
Class Action Reporter story (November 22, 2005) reports.
The homeowners claim more than $750 million in damages against
Inco. The law firms of Cunningham Gillespie LLP and Koskie
Minsky LLP, a leading Canadian class action law firm, represent
the plaintiffs/homeowners, an earlier Class Action Reporter
story (November 22, 2005) reports.
Mr. Gillespie told The Hamilton Spectator if the Supreme Court
of Canada upholds the Inco ruling he will file a similar suit on
behalf of people facing noise and air pollution from the
Hamilton's expressway project. He already represents about 500
members of the Red Hill Valley Neighborhoods Association who
want up to $60 million to compensate for predicted impacts of
the valley highway.
The Company has applied for leave to appeal to the Supreme
Court, which could turn down the application or agree to hear
the case. Either way, Mr. Gillespie expects the issue to be
settled soon. He told The Hamilton Spectator that the Port
Colborne and Hamilton situations are similar enough that, if the
Inco ruling stands, "it's clear it will be possible to bring a
class action against the municipality."
However, the attorney notes, "My clients are more than willing
to try to have a dialogue with the city to see if there is a way
to improve things so there isn't a drop in property values." He
thinks cash compensation would satisfy some people, others might
want the city to buy homes that can't be protected from noise
and vehicle exhaust.
At a news conference last July hosted by Gillespie, American
official told Hamilton reporters by phone how the Sierra Club
had won a court injunction to stop construction of an interstate
highway in Nevada.
Mr. Gillespie told The Hamilton Spectator, "That was at about
the same point as this one (the Red Hill), so there's a
precedent that, if mitigation is not going to work very well,
the court can intervene. If you can bring a class action, it is
going to be more efficient and more effective for the court and
all the parties as well." In the Red Hill case, he said, "you
will have overreaching air contamination, air quality problems,
that can be more effectively and efficiently litigated if you
can bring an action on behalf of people up and down the
corridor."
Despite the possible filing of a class action suit, the city is
offering noise walls or double-paned windows, plantings and air
conditioning to 101 or 102 homeowners it says need to be
protected from noise. Ward 5 Councilor Chad Collins told The
Hamilton Spectator that more than 90 of the affected homeowners
have submitted price quotes for noise-protection measures and
the city staff is calculating what it might cost to expand the
program. He considers Hamilton a pioneer in offering to do more
than build noise walls, which would be difficult or impossible
to install behind some homes at the top of the valley slope.
CASUAL MALE: CA Court Preliminarily OKs Employees' Wage Lawsuit
---------------------------------------------------------------
The United States District Court for the Northern District of
California granted preliminary approval to the settlement of the
class action filed against Casual Male Retail Group, Inc.,
alleging violations of the state's labor laws.
In October 2003, a class action lawsuit was filed against the
Company in California Superior Court. The complaint alleged,
among other things, that the Company failed to pay overtime
compensation and to provide meal and rest breaks to the
Company's California store managers for the period May 14, 2002
through the present.
Subsequently, in a lawsuit filed in United States District
Court, Northern District of California, the case was expanded to
include all Casual Male managers nationwide. The lawsuit seeks
unpaid overtime, meal and rest period penalties, waiting time
penalties and injunctive relief under the Fair Labor Standards
Act (FLSA) and the California Labor Code.
The California claims were consolidated into the federal court
action and the state court lawsuit was dismissed. No class has
been certified, and the parties are currently conducting initial
discovery and preparing for mediation. The Company hopes to
resolve this case at mediation.
In the second quarter of fiscal 2005, the Company reached
agreement with plaintiffs' counsel to comprehensively settle
this matter, which settlement has been preliminary approved by
the Court. Absent successful challenge by putative class members
to the fairness of the agreement, which is unlikely, the
settlement will enter as a final order in February 2006.
The suit is styled "Tucker v. Casual Male Retail Group, Inc.,
case no. 4:04-cv-01841-SBA," filed in the United States District
Court for the Northern District of California, under Judge
Saundra Brown Armstrong. Representing the Company are David C.
Casey, Michael Mankes and Nancy Pritikin of Littler Mendelson,
P.C., One International Place, Suite 2700, Boston, MA 02110,
Phone: 617-378-6001, E-mail: MMankes@littler.com,
npritikin@littler.com; and Michelle Lee Flores, Greenberg
Traurig LLP, 2450 Colorado Avenue, Suite 400 E, Santa Monica, CA
90404, Phone: 310-586-7760, E-mail: floresm@gtlaw.com.
Representing the plaintiffs are Matthew Roland Bainer, Clyde
Hobbs Charlton, Scott Edward Cole, Scott Cole & Associates, APC,
1970 Broadway Suite 950, Oakland, CA 94612, Phone: 510-891-9800,
Fax: 510-891-7030, E-mail: mrbainer@scalaw.com,
ccharlton@scalaw.com, scole@scalaw.com.
COMMUNITY FINANCIAL: NC, GA Court Rulings Affect Payday Lenders
---------------------------------------------------------------
Courts in North Carolina and Georgia recently announced two
separate decisions in cases involving the payday advance
industry, according to the Community Financial Services
Association of America (CFSA).
A North Carolina trial court ruled that the Arbitration
Agreements written into payday advance contracts are legal and
valid under North Carolina Law. The plaintiff's motion for class
action status was denied, based on the upholding of the
arbitration clause. CFSA supports arbitration as long as the
agreement is fair and equal to all parties involved.
In Georgia, the U.S. Court of Appeals for the 11th Circuit
granted a rehearing in the BankWest, Inc. case challenging
Georgia's payday lending law. The opinion of the three-judge
panel will be vacated and the case will be reheard by the court
en banc, allowing the full bench of the 11th Circuit the
opportunity to decide the case.
For many years, CFSA has worked with state legislators and
responsible consumer groups to enact tough, consumer-friendly
laws and regulations governing the payday advance industry.
Thirty-seven states and the District of Columbia now have laws
in place regulating the industry.
DRESDNER KLEINWORT: Employees File $1.4B Sexual Bias Suit in NY
---------------------------------------------------------------
Current and former female employees of the German investment
bank Dresdner Kleinwort Wasserstein Securities, LLC, initiated a
$1.4 billion lawsuit claiming that the Company discriminates
against women, preventing advancement and fair treatment, The
Cay Compass reports.
Filed in the U.S. District Court in Manhattan, the suit offered
a slew of statistics to back up their claims, noting for
instance that only four of 258 women in the Company's Capital
Markets Division are managing directors, positions held by 15
percent of men. The suit further alleges, "Although we live in
2006, the 'glass ceiling' is alive and well at this German
investment bank where women are treated as second class citizens
with respect to all of the terms and conditions of their
employment." It goes on to state, "This class action seeks to
put an end to these intolerable and discriminatory practices."
According to the six women, who were named as plaintiffs in the
lawsuit, they sought for an end to the unlawful denial of
promotions as well as compensation equal to male employees and
equality in other conditions of employment. They alleged in
their suit that women couldn't advance to senior levels at the
company. The women also claims that in addition to barriers to
advancement to the highest executive level, managing director,
there also were barriers at the lower levels.
As of May 2005, women comprised only 99, or less than 15
percent, of 775 positions as directors, the second highest
executive level in the company's Capital Markets Division,
according to the lawsuit. It said that 20 percent of the 500
female employees in the Capital Markets Division were directors
compared to 40 percent of their male colleagues.
In addition, the suit pointed out that about 300, or 60 percent,
of the 500 women in the department were associates while only
379, or 22 percent, of the 1,700 male employees in the division
were associates. It notes that the statistics reveal "a telling
picture ... in which women are subjected to the lowest pay and
rank." The suit also pointed out that the results were similar
in the Company's other divisions, leaving "a remarkable lack of
women in the highest executive levels" throughout the Company.
FLORIDA: Litigation V. School District Has Potential to Expand
--------------------------------------------------------------
The Marco Island attorney representing the plaintiff in a
lawsuit against the Collier County School District in Florida
said that he would decide later this month whether to file a
class action against the district, The Marco Island Sun Times
reports.
The Kramer Gold firm represents plaintiff Richard Betancourt,
the head custodian at Tommie Barfield Elementary School (TBE),
who filed the lawsuit in U.S. District Court. Mr. Betancourt is
asking for a jury trial and compensatory damages, attorney's
fees and court costs. The suit claims that Mr. Betancourt, who
is of Cuban descent, has suffered damages including "harassment,
racial intolerance and discriminatory practices."
Richard Withers, the attorney for the school district, told The
Marco Island Sun Times that that Superintendent Ray Baker has
been served with the complaint. According to him, if Mr.
Betancourt was asking for damages, the school district's
insurance company would appoint a lead attorney that he would
work with.
Attorney Samuel Gold told The Marco Island Sun Times that a
class action lawsuit would include Mr. Betancourt, those named
in the suit and perhaps other school district employees. He
noted, "They all pertain to Tommie Barfield at this time. It may
grow beyond that, however." Mr. Gold also told The Marco Island
Sun Times that other individuals named in the complaint have
also been victimized and have filed charges with the Equal
Employment Opportunity Commission (EEOC) and the Florida Human
Relations Commission. Both commissions are investigating the
allegations and he expects to have their findings in about three
months. To file a federal suit against the district, a plaintiff
must receive permission from the EEOC.
In February 2005, Betancourt, along with three other TBE
employees, filed a formal grievance with Superintendent Ray
Baker, according to the suit. It further states that Mr.
Betancourt has applied to be promoted to plant operator nine
times since January 2005, but all those requests were denied.
Mr. Gold pointed out, "Our major contention is that, in the
Collier County School District, there is an environment of
animosity towards individuals of Cuban heritage." He told The
Marco Island Sun Times, "Richard Betancourt fell victim to
that."
Mr. Betancourt said that his supervisor, plant operator John
Shea, repeatedly referred to him as a "stupid Cuban" and that
speaking in Spanish would not be tolerated. According to the
suit, Mr. Betancourt and custodial staff member Teresita
Rodriguez met with TBE principal Dr. Jory Westberry in August
2004. Ms. Rodriguez told the principal that Mr. Shea touched her
buttocks "in a sexually harassing way." She also reported to the
principal that Mr. Shea reprimanded her because she didn't
report to work following a work-related injury.
In 2004, Mr. Betancourt said he told the TBE principal that Mr.
Shea used profane language to the staff. Mr. Shea then filed a
written reprimand of Mr. Betancourt, who denied the allegations.
In January 2005, Mr. Betancourt said Mr. Shea arrived at TBE
intoxicated and called him a name. Mr. Betancourt also said that
he reported the incidents to Mr. Westberry, but no actions were
taken. According to him, Mr. Westberry requested that he refrain
from reporting any incidents to the administration.
Allan Hamblett, the school district's executive director for
human resources, issued a memorandum on April 27. Mr. Hamblett
said that there was no evidence that Mr. Westberry covered up
the allegations against Mr. Shea or acted inappropriately. In
addition, the memo also stated that there was no evidence to
support Ms. Rodriguez's allegations of sexual harassment and
reprimand for not reporting to work following the injury.
However, Mr. Hamblett did say that there was evidence that Mr.
Shea is "insensitive to Hispanics" and his leadership and
interaction with employees "does not support a cooperative
working environment." He therefore recommended that Mr. Shea be
transferred to a non-supervisory position.
"There is one strange aspect about this case," according to Mr.
Withers. "I don't know to what degree that Mr. Betancourt's
union activities are involved in this case." He noted that the
plaintiff is a vice president with the Collier Support Personnel
Union. "This is just the start of it," Mr. Withers added.
GYMBOREE OPERATIONS: Reaches Settlement For CA Overtime Lawsuit
---------------------------------------------------------------
Gymboree Operations, Inc. reached a settlement for the class
action filed in the Superior court of Riverside County,
California, alleging violations of the state's overtime wage
laws.
The suit was filed on April 21,2005 on behalf of the manager of
a Gymboree store in Temecula, California, alleging that the
Company failed to pay overtime wages and provide meal breaks.
The plaintiff seeks unspecified damages, including interest and
penalties, under the California Labor Code and other statutes.
The complaint also seeks class action status on behalf of the
plaintiff and other managers of Company stores in California. On
May 20, 2005, the Company filed an answer generally denying the
plaintiff's allegations.
As a result of mediation proceedings, the Company entered into a
binding Memorandum of Understanding on November 18, 2005 to
fully resolve all claims related to the lawsuit. The Memorandum
of Understanding provides for a settlement in the total amount
of up to approximately $2.3 million, payable on a claims-made
basis. Court hearings to review the fairness of the terms of the
settlement are expected to be held in the first quarter of
fiscal 2006.
HEALTHSOUTH CORPORATION: Enters Mediation For AL Securities Suit
----------------------------------------------------------------
HealthSouth Corporation entered mediation for the consolidated
securities class action filed against it and certain of its
officers and directors in the United States District Court for
the Northern District of Alabama.
On June 24, 2003, the court consolidated a number of separate
securities lawsuits filed against the Company under the caption
"In re HealthSouth Corp. Securities Litigation, Master
Consolidation File No. CV-03-BE-1500-S." The consolidated suit
included two prior consolidated cases, styled "In re HealthSouth
Corp. Securities Litigation, CV-98-J-2634-S" and "In re
HealthSouth Corp. 2002 Securities Litigation, Consolidated File
No. CV-02-BE-2105-S," as well as six lawsuits filed in 2003.
Including the cases previously consolidated, the Consolidated
Securities Action comprised over 40 separate lawsuits.
The court divided the Consolidated Securities Action into two
subclasses. Complaints based on purchases of the Company's
common stock were grouped under the caption "In re HealthSouth
Corp. Stockholder Litigation, Consolidated Case No. CV-03-BE-
1501-S," which was further divided into complaints based on
purchases of the Company's common stock in the open market
(grouped under the caption "In re HealthSouth Corp. Stockholder
Litigation, Consolidated Case No. CV-03-BE-1501-S") and claims
based on the receipt of our common stock in mergers (grouped
under the caption "HealthSouth Merger Cases, Consolidated Case
No. CV-98-2777-S"). Although the plaintiffs in the
"HealthSouth Merger Cases" have separate counsel and have filed
separate claims, the "HealthSouth Merger Cases" are otherwise
consolidated with the Stockholder Securities Action for all
purposes. Complaints based on purchases of our debt securities
were grouped under the caption "In re HealthSouth Corp.
Bondholder Litigation, Consolidated Case No. CV-03-BE-1502-S."
On January 8, 2004, the plaintiffs in the Consolidated
Securities Action filed a consolidated class action complaint.
The complaint names the Company as a defendant, as well as more
than 30 of its current and former employees, officers and
directors, the underwriters of its debt securities, and its
former auditor. The complaint alleges, among other things:
(1) that the Company misrepresented or failed to disclose
certain material facts concerning its business and
financial condition and the impact of the Balanced
Budget Act of 1997 on its operations in order to
artificially inflate the price of its common stock,
(2) that from January 14, 2002 through August 27, 2002, we
misrepresented or failed to disclose certain material
facts concerning the Company's business and financial
condition and the impact of the changes in Medicare
reimbursement for outpatient therapy services on its
operations in order to artificially inflate the price
of its common stock, and that some of the individual
defendants sold shares of such stock during the
purported class period, and
(3) that Richard M. Scrushy instructed certain former
senior officers and accounting personnel to materially
inflate the Company's earnings to match Wall Street
analysts' expectations, and that senior officers of
HealthSouth and other members of a self-described
"family" held meetings to discuss the means by which
the Company's earnings could be inflated and that some
of the individual defendants sold shares of the
Company's common stock during the purported class
period.
The consolidated class action complaint asserts claims under
Sections 11, 12(a)(2) and 15 of the Securities Act, and claims
under Sections 10(b), 14(a), 20(a) and 20A of the Exchange Act.
The Company has moved to dismiss in part the claims against it,
continues discussions with the parties to this litigation and
awaits a ruling on the identity of the lead plaintiff and lead
counsel in the Stockholder Securities Action.
The Company moved to dismiss in part the claims against it. The
Company also continued discussions with the parties to this
litigation. On August 30, 2005, the court ordered the parties to
resume mediation. Representatives of the Company met with
representatives of the plaintiffs in October 2005 to explore
various issues relating to a potential settlement. The court-
appointed mediators have also held a number of individual
meetings with various parties. In addition, the mediators have
scheduled a joint meeting with representatives of many of the
parties to take place on December 2, 2005. The court has
directed the parties to submit a joint status report on the
progress of the mediation by December 15, 2005.
The suit is styled "In re HealthSouth Corporation Litigation v.
Master Case Docket, et al, case no. 03-cv-01500-KOB," filed in
the United States District Court for the Northern District of
Alabama, under Judge Karon O. Bowdre. Representing the
plaintiffs are:
(i) Richard Bemporad, Vincent Briganti, Neil L. Selinger,
LOWEY DANNENBERG BEMPORAD & SELINGER, One North
Lexington Avenue, Floor 11, White Plains, NY 10601-
1714, Phone: 1-914-997-0500, E-mail:
rbemporad@ldbs.com, vbriganti@ldbs.com,
nselinger@ldbs.com;
(ii) Max W. Berger, John P. Coffey, BERNSTEIN LITOWITZ
BERGER & GROSSMAN LLP, 1285 Avenue of the Americas, New
York, NY 10019, Phone: 1-212-554-1400, Fax: 1-212-554-
1444, E-mail: mwb@blbglaw.com, sean@blbglaw.com;
(iii) Patrick J Coughlin, LERACH COUGHLIN STOIA & ROBBINS
LLP, 100 Pine Street, Suite 2600, San Francisco, CA
94111, Phone: 1-415-288-4545, Fax: 1-415-288-4534, E-
mail: PatC@Lerachlaw.com;
(iv) John T. Crowder, Jr, Richard T. Dorman, CUNNINGHAM
BOUNDS YANCE CROWDER & BROWN, PO Box 66705, Mobile, AL
36660, Phone: 1-251-471-6191, Fax: 1-251-479-1031, E-
mail: jtc@cbycb.com, rtd@cbycb.com;
(v) Edward P Dietrich, Kathleen A. Herkenhoff, William S.
Lerach, Valerie McLaughlin, Debra J. Wyman, LERACH
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP, 401 B
Street, Suite 1700, San Diego, CA 92101, Phone: 1-619-
231-1058, Fax: 1-619-231-7423, E-mail:
EdD@Lerachlaw.com, KathyH@Lerachlaw.com,
BillL@Lerachlaw.com, ValerieM@Lerachlaw.com,
debraw@lerachlaw.com;
(vi) David R Donaldson, David J. Guin, Tammy McClendon
Stokes, DONALDSON & GUIN LLC, Two North Twentieth
Building, 2 North 20th Street, Suite 1100, Birmingham,
AL 35203, Phone: (205) 226-2282, Fax: (205) 226-2357,
E-mail: DavidD@dglawfirm.com, davidg@dglawfirm.com,
tstokes@dglawfirm.com;
(vii) Russell Jackson Drake, G. Douglas Jones, Othni J.
Latham, Joe R. Whatley, WHATLEY DRAKE LLC, 2323 Second
Avenue North, Post Office Box 10647, Birmingham, AL
35202-0647, Phone: 205-328-9576, E-mail:
ecf@whatleydrake.com, jwhatley@whatleydrake.com,
(viii) M. Clay Ragsdale, IV, RAGDSDALE LLC, Concord Center,
Suite 820, 2100 Third Avenue North, Birmingham, AL
35203, Phone: 205-251-4775, Fax: 205-251-4777, E-mail:
clay@ragsdalellc.com;
(ix) Andrew M. Schatz, SCHATZ & NOBEL PC, One Corporate
Center, 20 Church Street, Suite 1700, Hartford, CT
06106-1851, Phone: 1-860-493-6292, Fax: 1-860-493-6290,
E-mail: aschatz@snlaw.net;
Representing the Company are:
(a) W. Michael Atchison, Anthony C. Harlow, STARNES &
ATCHISON LLP, PO Box 598512, Birmingham, AL 35259-8512
205-868-6000, E-mail: wma@starneslaw.com,
ach@starneslaw.com;
(b) Patrick J Ballard, BALLARD LAW OFFICE, 2214 2nd Avenue
North, Suite 100, Birmingham, AL 35203, Phone: 205-321-
9600, Fax: 205-323-9805, E-mail:
pjballard@ballardlawoffice.com;
(c) H. L. Ferguson, Jr., FERGUSON FROST & DODSON LLP, 2500
Acton Road, Suite 200, PO Box 430189, Birmingham, AL
35243-0189, Phone: 205-879-8722, E-mail:
hlf@ffdlaw.com;
(d) James L Goyer, III, MAYNARD COOPER & GALE PC, AmSouth
Harbert Plaza, Suite 2400, 1901 6th Avenue North,
Birmingham, AL 35203-2618, Phone: 205-254-1000, E-mail:
jgoyer@maynardcooper.com;
(e) M Kay Kelley, MESTRE & KELLEY LLC, The Massey Building,
2025 Third Avenue, North, Suite 500, Birmingham, AL
35203, Phone: 205-251-1248, fax: 205-251-1211, E-mail:
kaykelley@mindspring.com;
HEALTHSOUTH CORPORATION: Working To Settle AL Securities Lawsuit
----------------------------------------------------------------
HealthSouth Corporation is working to settle the consolidated
class action filed against it and certain of its current and
former officers and directors in the United States District
Court for the Northern District of Alabama.
In 2003, six lawsuits were filed, alleging breaches of fiduciary
duties in connection with the administration of the Company's
Employee Stock Benefit Plan (the "ESOP"). These lawsuits have
been consolidated under the caption "In re HealthSouth Corp.
ERISA Litigation, Consolidated Case No. CV-03-BE-1700-S."
The plaintiffs filed a consolidated complaint on December 19,
2003 that alleges, generally, the fiduciaries to the ESOP
breached their duties to loyally and prudently manage and
administer the ESOP and its assets in violation of sections 404
and 405 of the Employee Retirement Income Security Act of 1974,
29 U.S.C. Section 1001 et seq. (ERISA), by:
(1) failing to monitor the administration of the ESOP,
(2) failing to diversify the portfolio held by the ESOP,
and
(3) failing to provide other fiduciaries with material
information about the ESOP.
The plaintiffs seek actual damages including losses suffered by
the plan, imposition of a constructive trust, equitable and
injunctive relief against further alleged violations of ERISA,
costs pursuant to 29 U.S.C. Sec. 1132(g), and attorneys' fees.
The plaintiffs also seek damages related to losses under the
plan as a result of alleged imprudent investment of plan assets,
restoration of any profits made by the defendants through use of
plan assets, and restoration of profits that the plan would have
made if the defendants had fulfilled their fiduciary
obligations.
The parties to this litigation actively participated in
settlement negotiations. The Company has agreed to a settlement
of the plaintiffs' claims against it. The terms of the partial
settlement do not include a release of claims against Mr.
Scrushy, Mr. Beam, Mr. Martin, and Mr. Owens. On August 10,
2005, plaintiffs filed the settlement with the court, which must
approve it before it becomes effective. The court has postponed
considering the settlement, pending further negotiations
involving the plaintiffs, these four individuals, and the
Company.
The suit is styled "In Re: HealthSouth ERISA, et al v. Master
Docket, et al, case no. 2:03-cv-01700-KOB," filed in the United
States District Court for the Northern District of Alabaman,
under Judge Karon O. Bowdre. Representing the Company are
Robert S. Saunders, SKADDEN ARPS SLATE MEAGHER & FLOM, One
Rodney Square, 7th Floor, PO Box 636, Wilmington, DE 19899,
Phone: 1-302-651-3170, E-mail: rsaunder@skadden.com; and Kile T.
Turner, NORMAN WOOD KENDRICK & TURNER, Financial Center, Suite
1600, 1600 Financial Center, 505 North 20th Street, Birmingham,
AL 35203, Phone: 205-328-6643, E-mail: kturner@nwkt.com.
Representing the plaintiffs are Derek W. Loeser, Lynn Lincoln
Sarko, KELLER ROHRBACK LLP, 1201 Third Avenue, Suite 3200,
Seattle, WA 98101-3052, Phone: 1-206-623-1900, Fax:
1-206-623-3384, E-mail: dloeser@kellerrohrback.com or
lsarko@kellerrohrback.com; and Richard R. Rosenthal, LAW OFFICES
OF RICHARD R ROSENTHAL PC, 200 Title Building, 300 Richard
Arrington Jr Blvd, North Birmingham, AL 35203, Phone: 205-252-
1146, Fax: 205-252-4907, E-mail: rosenthallaw@bellsouth.net.
HEALTHSOUTH CORPORATION: FL Court Yet To Approve ADA Settlement
---------------------------------------------------------------
HealthSouth Corporation awaits the United States District Court
for the Middle District of Florida's approval of the settlement
of a nationwide class action filed against it, styled "Michael
Yelapi, et al. v. St. Petersburg Surgery Center, et al., Case
No:8:01-CV-787-T-17EAJ."
On April 19, 2001 a nationwide class action was filed, alleging
violations of the Americans with Disabilities Act, 42 U.S.C.
Section 12181, et seq. (ADA) and the Rehabilitation Act of 1973,
92 U.S.C. Section 792 et seq. (the "Rehabilitation Act") at the
Company's facilities. The complaint alleges violations of the
ADA and Rehabilitation Act for the purported failure to remove
barriers and provide accessibility to the Company's facilities,
including reception and admitting areas, signage, restrooms,
phones, paths of access, elevators, treatment and changing
rooms, parking, and door hardware. As a result of these alleged
violations, the plaintiffs are seeking an injunction ordering
that we make necessary modifications to achieve compliance with
the ADA and the Rehabilitation Act, as well as attorneys' fees.
The Company entered into a settlement agreement with the
plaintiffs that would require it to correct any deficiencies
under the ADA and the Rehabilitation Act at all of its
facilities.
The suit is styled "Access Now, Inc., et al v. St. Pete Surgery,
et al., case no. 8:01-cv-00787-EAK-EAJ," filed in the United
States District Court for the Middle District of Florida, under
Judge Elizabeth A. Kovachevich. Representing the plaintiffs
Access Now, Inc. are Bruce D. Fischman, Fischman, Harvey &
Dutton, PA, 3050 Biscayne Blvd., Suite 600, Miami, FL 33137,
Phone: 305/576-5522, Fax: 305/576-7079, E-mail:
bruce@fhdlaw.com; and Kip P. Roth, Law Office of Kip Roth, P.A.,
601 N. Ashley Dr., Suite 210, Tampa, FL 33602, phone: 813/221-
8383 or Fax: 813/2241-8363, E-mail: roth@frlawgroup.com.
Representing the Company is Miguel Manuel de la O, de la O &
Marko, 3001 S.W. 3rd Ave., Miami, FL 33129, Phone: 305/285-2000,
Fax: 305/285-5555, E-mail: delao@delao-marko.com.
INSTALOANS FINANCIAL: Reaches Deal, To Pay Back Loan Customers
---------------------------------------------------------------
Individuals who paid exorbitant interest rates to a payday loan
company could be in for a refund worth hundreds of dollars after
a class action lawsuit was settled between Instaloans Financial
Solution Centres (Alberta) Ltd. and its clients, The CBC
Manitoba reports.
The Company has put aside $1.28 million to pay clients who paid
more than 60 per cent in interest and fees to it on loans taken
out over the past eight years. Those affected by the settlement
are customers in Ontario, Manitoba and Saskatchewan, who took
out payday loans between January 1, 1998 and April 21, 2005.
However, they can only be eligible for the settlement, if their
loan meets certain requirements. Jamie Cuming, one of the
lawyers involved in the case, explains, "There were application
fees and administration fees and interest fees, and when you
added up all of these fees, quite often they were in excess of
1,000 per cent, particularly if people paid them back within a
two- or three-week period."
Under the deal, customers will get back a minimum of 15 per cent
interest over the 60 per cent annual rate allowed by federal
law. According to Calgary lawyer Bill McNally, who is
representing the customers in the suit, about 75,000 potential
claimants live in Ontario, Manitoba and Saskatchewan, and he
estimated that only 10 to 20 per cent would join the class
action, an earlier Class Action Reporter story (December 28,
2005) reports.
The settlement came as good news to Frank Dippolito, one of
thousands of Canadians who may now be eligible to receive some
money back through the lawsuit, which was the first of its kind
in Canada. Mr. Dippolito became involved with several payday
loan companies to feed a gambling problem. He says he took out
many short-term loans over a period of several years. "I'd lose
that money, and go borrow more money. And the next two weeks, I
would not pay them back, and then I'd let it slip and go on and
on, and the next place would be the next hit. It's just like
robbing a bank," he said.
The Criminal Code forbids charging interest rates over 60 per
cent per year. Even though higher rates are illegal, cases like
this are usually settled in civil court, in part because they
are difficult to prosecute criminally, and partly because any
level of government does not yet regulate the industry.
"[Payday loan companies] provide a service to people who are
unable to get credit services from banks or credit unions," says
Don Slough with Manitoba Justice. He told The CBC Manitoba,
"There has to be consideration of whether or not the service
that they provide justifies the interest rate they provide."
In 2003, 40 payday loan companies formed an association to offer
customer protection and drew up a code of business practices for
members to follow, but it's not mandatory. The current owners of
the Instaloan brand are not involved in the settlement. They
bought the real estate in April 2004, but are not involved in
the lawsuit as well.
The money for the settlement was actually set aside by
Instaloans' former owners. Attorneys involved in the class
action suit told The CBC Manitoba that they have already heard
from 6,000 people who qualify for a settlement.
For more details, contact the McNally Cuming Raymaker law firm,
Pone: 1-866-577-8709 or 1-866-662-3452, Web site:
http://www.mcnallycuming.com.
IOWA: Judge Declares City's Special Fee on Utility Bills Illegal
----------------------------------------------------------------
Polk County District Court Judge Michael Huppert recently ruled
that a special fee on utility bills that officials of the city
of Des Moines, Iowa used to lower property tax rates this year
is illegal, The DesMoinesRegister.com reports.
According to Judge Huppert, the so-called franchise fee should
be abolished. His ruling though does not address whether those
who've paid the fee should get refunds.
It would take further action by Judge Huppert to turn the case
into a class action that would pave the way for refunds. Never
the less, city leaders had hoped to collect $15.1 million in
fees this year due to the spike in energy bills. The estimated
windfall allowed them to cut the property tax rate this year by
about 50 cents.
Attorney Brad Schroeder in June 2004 sued the city, saying that
the franchise fee is illegal because it amounts to a tax that
isn't specifically spelled out in Iowa law. His lawsuit, which
was filed on behalf of a 34-year-old Des Moines woman "and all
others similarly situated," sought to block the city from
collecting the fee and demanded a full refund of all money
collected over the last five years.
Des Moines and several smaller cities have raised a special fee
collected on electricity and gas consumption. The idea was to
shift some of the budget's burden from property owners to energy
consumers.
Des Moines increased the franchise fees as the state eliminated
a 5 percent sales tax on utility bills, as a way to help low-
income families. State lawmakers expressed disappointment with
Des Moines' decision to basically replace the tax they phased
out. In 2004, the Des Moines City Council increased the fee from
1 percent to 3 percent of every gas and electric bill.
Mayor Frank Cownie told The DesMoinesRegister.com that the money
collected last year helped repair streets, hire more police
officers and firefighters, and reopen libraries on Sundays. The
fees also get credit for the city's now-lower tax rate, which
dropped 53 cents, to $16.52 per $1,000 of value, which saved the
average homeowner $30.
However, the problem, according to Mr. Schroeder, is that Des
Moines has no right to tax public utilities. Any fee, he
contends, must be tied to a specific cost of dealing with the
utility in question.
LORILLARD TOBACCO: Analyst Says FL Ruling a Big Boost to Firm
-------------------------------------------------------------
Prudential Equity Group analyst Robert T. Campagnino says a key
court ruling in Florida should free up nearly a billion dollars
in cash on Lorillard Tobacco Co.'s balance sheet, creating
opportunities for the Company to strengthen its financials, The
Business Journal of the Greater Triad Area reports.
The Wall Street tobacco analyst raised his rating on Carolina
Group stock (NYSE: CG) from neutral to overweight, and boosted
his price target for the stock from $43 to $56. Monday morning
the stock was trading at $46.35; it opened the day at $46.50, up
$1.40 from its Friday close of $44.95.
In a note to investors, Mr. Campagnino said that he expected the
Florida Supreme Court to uphold the de-certification of the
Engle class action. If that happens, according to Mr.
Campagnino, the Company will be able to "regain" $921 million in
cash that it had been required to maintain as part of a bonding
agreement with the Florida courts. Mr. Campagnino also told
investors that the money could be used for a number of purposes,
including paying off debt, repurchasing shares or boosting
dividends.
The case involves a July 2000 punitive damages award of $145
billion that was granted by a Miami-Dade Circuit Court jury to
an estimated 700,000 sick smokers. It was the first class action
of its kind to go to trial, and the biggest civil judgment in US
history.
The plaintiffs' lawyers, Susan and Stanley Rosenblatt, told the
appeals court, the Third District Court of Appeal, that it
should let the award stand so that Florida's ailing smokers, who
have been victims of a continuing fraud for decades, can collect
the money.
However, the appellate court disagreed. In its 68-page opinion
issued on May 21, 2003 the Court set forth in considerable
detail why the Engle case failed to meet virtually every legal
requirement for class certification; it also reversed the $145
billion punitive-damages award in favor of the now-decertified
class and the compensatory-damage awards totaling $12.7 million
in favor of three individual plaintiffs whose claims were tried
in the second phase of the trial, an earlier Class Action
Reporter story (September 18, 2003) reports.
The Engle case was filed in 1994 as a nationwide class action
consisting of smokers who had contracted diseases associated
with smoking. In 1996, Florida's Third District Court of Appeal
allowed the case to proceed as a statewide class action.
However, the Court reversed the verdicts and ordered the class
decertified after reviewing the results of the trial and other
developments since its 1996 decision, an earlier Class Action
Reporter story (September 18, 2003) reports.
The case was conducted in two phases, with a third phase
envisioned by Miami Circuit Court Judge Robert P. Kaye if there
were plaintiffs' verdicts in the earlier phases. Phase One
began on October 19, 1998, and ended on July 7, 1999, when a
six-person jury found that smoking could cause more than 20
diseases or medical conditions; that cigarettes are addictive or
dependence producing; and that tobacco companies could be
assessed punitive damages. Phase Two began on November 1, 1999,
and focused on whether the tobacco companies were liable to
three individual smokers who had cancer, an earlier Class Action
Reporter story (September 18, 2003) reports.
On April 7, 2000, the six-person jury found in favor of
plaintiffs Mary Farnan, Frank Amodeo and the estate of Angie
Della Vecchia and awarded a total of $12.7 million in
compensatory damages, setting the stage for the punitive damages
phase. Plaintiff Frank Amodeo was also found by the jury to have
sued too late. The same six-person jury on July 14, 2000,
returned a plaintiffs' verdict assessing punitive damages of
nearly $145 billion against the cigarette makers, an earlier
Class Action Reporter story (September 18, 2003) reports.
Judge Kaye subsequently entered an order of final judgment
against the companies despite his own ruling that each of the
estimated 700,000 class members would require individual trials,
setting the stage for the appeal to Florida's Third District
Court of Appeal, an earlier Class Action Reporter story
(September 18, 2003) reports.
When the appeals court rejected the case, plaintiffs' attorneys
Stanley and Susan Rosenblatt appealed the decision to the
Florida Supreme Court, which agreed to hear the case, an earlier
Class Action Reporter story (July 19, 2004) reports.
In their brief to the Supreme Court, the companies said "the
Third District's ruling vindicates bedrock principles of
substantive law and due process that were systematically
violated in the trial court" and that "the trial confirmed that
plaintiffs' claims were inherently individualized and had been
improperly forced into the class action mold," an earlier Class
Action Reporter story (July 19, 2004) reports.
In addition, plaintiffs' counsel, who deliberately incited jury
nullification of the law through incendiary racial appeals and
other unprofessional conduct, irreparably tainted the trial. The
result was an astronomical punitive award that lacked any
discernible relationship to anyone's actual damages and was
bankrupting on its face. Now, joined by their amici (friends of
the court briefs), plaintiffs continue their campaign of legal
nullification. They ask this Court to ignore the law and a
myriad of trial errors because tobacco companies sell a
dangerous product and therefore deserve to be punished by any
means, regardless of the law," an earlier Class Action Reporter
story (July 19, 2004) reports.
In their appeal, "plaintiffs seek to override legal and
constitutional rules that are fundamental to all 50 states" and
the companies ask Florida Supreme Court to "reaffirm the
principle that in Florida all litigants - including tobacco
companies - are entitled to due process and a fair trial," an
earlier Class Action Reporter story (July 19, 2004) reports.
Lorillard is a subsidiary of conglomerate Loews Corporation;
Carolina Group is a tracking stock that represents Lorillard's
business. Though shareholders don't have traditional voting
rights, they are entitled to dividends the company pays.
LOUISIANA: Judge Blocks Eviction of Katrina Victims From Hotel
--------------------------------------------------------------
A Louisiana judge blocked the eviction of about 100 people from
a New Orleans hotel, which had ordered tenants displaced by
Hurricane Katrina to move out to make room for new guests, The
Associated Press reports.
Orleans Parish Civil District Court Judge Michael Bagneris
issued a restraining order and ruled that the hurricane victims
be allowed to return, according to Bill Quigley, head of the
Loyola Law Clinic who sought the order. Some tenants said they
got their eviction notices on January 9, the day the Federal
Emergency Management Agency announced it would continue to pay
for hotel rooms housing hurricane victims while it ironed out
issues arising from a class action lawsuit.
Previously, the Maison St. Charles manager Emily Wright told The
Times-Picayune that the hotel had planned on the Katrina victims
leaving by the initial federal cut-off of January 7, and it
needed to make room for guests who had reserved rooms months
earlier. "I feel like we have to honor those contracts," she
said.
Hotels' participation in housing hurricane victims is voluntary,
according to FEMA spokesman James McIntyre. He notes, "We have
no legal authority to have the hotel discontinue its standard
business practices," and adds, "We will work to assist people
who have been evicted."
The Red Cross began the hotel program in September. FEMA funded
the program from its inception and took over its operation from
the Red Cross in October. As of mid-December, FEMA was footing
the bill for an estimated 41,000 rooms, and the program had cost
the agency about $350 million, an earlier Class Action Reporter
story (January 4, 2006) reports.
According to court papers filed last week by government lawyers,
the main issue to iron out: The Federal Emergency Management
Agency (FEMA), which inherited the program, still does not have
up-to-date records on the identities of evacuees in the hotel
program or where they are staying, an earlier Class Action
Reporter story (January 4, 2006) reports.
Under a federal judge's ruling, FEMA is required to keep the
hotel program running until February 7, 2006. However, U.S.
District Judge Stanwood Duval said FEMA could stop paying for
hotel rooms beginning January 7, 2006 for evacuees who have been
approved or disapproved for other FEMA housing aid, such as
trailer or rental assistance, an earlier Class Action Reporter
story (January 4, 2006) reports.
Now, however, the January 7 date no longer holds, according to a
flier being distributed to hotels in the program. The flier
states, "The program will continue for all evacuees in all
states until further notice pending the resolution of certain
issues now in litigation," an earlier Class Action Reporter
story (January 4, 2006) reports.
Some confusion about the judge's December 12 order, which was
issued in a class action lawsuit filed in November on behalf of
thousands of Katrina evacuees, was the primary motivating factor
to extend the program beyond the January deadline. In the recent
court filings, government attorneys specifically pointed out
that Judge Duval's order is unclear as to whether it covers
evacuees who have failed to apply yet for FEMA assistance, and
whether FEMA can require evacuees who are staying in the hotels
to identify themselves by registering, an earlier Class Action
Reporter story (January 4, 2006) reports.
As government lawyers sought a clarification from the judge,
attorneys for evacuees expressed concern that amid the
uncertainty, some people who are entitled to stay in the hotel
program might be evicted. Danny Greenberg, one of the attorneys
pressing the lawsuit, previously told The Associated Press, "If
you can't be certain who's in the hotel, it's indicative of the
fact that you may be evicting some of our clients," an earlier
Class Action Reporter story (January 4, 2006) reports.
FEMA spokeswoman Nicol Andrews told The Associated Press, "We've
always said we're not going to put anyone on the street." She
stresses that FEMA does not intend to stop funding for any
evacuee whose eligibility for further assistance had not been
determined, an earlier Class Action Reporter story (January 4,
2006) reports.
The class action lawsuit, the first filed against FEMA in
relation to its response to Hurricane Katrina, says that the
agency has violated and continues to violate Federal law by
failing to discharge its obligations as the federal agency
chartered to care for victims of natural disasters. In addition
to preserving the hotel program, the suit, which was filed in
United States District Court for the Eastern District of
Louisiana, seeks a court order to require FEMA to make it easier
for victims to apply for temporary housing assistance, to
improve the agency's outreach and accessibility and immediately
to provide trailers or other alternatives to replace shelters,
tents and other makeshift arrangements. The suit also asks the
court to force FEMA to establish application guidelines under
which victims can obtain continued financial assistance beyond a
three-month period and receive adjustments based on family size
and other factors. The plaintiffs also request that the court
order FEMA to eliminate certain rules regarding the use of funds
victims have already received and to cease a policy whereby FEMA
makes room for its housing by evicting and destroying the homes
of residents of trailer parks, an earlier Class Action Reporter
story (November 14, 2005) reports.
The legal action was brought by 14 named plaintiffs on their own
behalf and on the behalf of a class of people who lived in
Louisiana, Mississippi or Alabama on August 29, 2005 in areas
that were subsequently declared Federal Disaster Areas, were
displaced by Hurricane Katrina and have or will apply for
disaster housing assistance under the Stafford Act, an earlier
Class Action Reporter story (November 14, 2005) reports.
The suit is styled, "McWaters et al v. Federal Emergency
Management Agency et al., Case No. 2:05-cv-05488-SRD-DEK," filed
in the United States District Court for the Eastern District of
Louisiana, under Judge Stanwood R. Duval Jr. Representing the
Plaintiff/s are, John K. Pierre of John K. Pierre, Attorney at
Law, 2900 Westfork Dr., Suite 200, Baton Rouge, LA 70816, Phone:
225-295-5638; and Margaret Ann Pierre of Louisiana Department of
Justice, Litigation Division, 601 Poydras St., Suite 1725, New
Orleans, LA 70130, Phone: (504) 599-1200. Representing the
Defendant/s is Michael Sitcov of U.S. Department of Justice
Civil Division, Room 7210, P.O. Box 883, Washington, DC 20044,
Phone: (202) 514-3495.
MAYTAG COPORATION: Settles Age Discrimination Suit For $334,500
---------------------------------------------------------------
The U.S. Equal Employment Opportunity Commission (EEOC) said
that Magistrate Judge Nan Nolan of the United States District
Court in Chicago entered a $334,500 consent decree resolving a
class action lawsuit by the agency against Maytag Corporation on
behalf of older managers who were demoted due to age
discrimination during a 1999 restructuring, The hr.cch.com
reports.
Filed by the EEOC in July 2004, the suit arose from a charge of
discrimination filed by Matthew Max, a long-time Company sales
manager, who alleged that he was demoted in violation of the Age
Discrimination in Employment Act (ADEA). The suit alleged that
other employees over the age of 50 were also downgraded from
their positions as regional sales managers due to their age.
Specifically, the suit claims that when the Newton, Iowa-based
appliance maker restored many of the sales positions in 2001,
none of the older managers were reinstated to their former posts
despite their continuing successes. According to the EEOC suit,
in eliminating 13 of its 22 regional sales manager positions in
1999, eight of those demoted were over 50. Only one regional
sales manager over 50 kept his post, and Mr. Max's suit
suggested that the manager wasn't demoted even though he had
fallen short of sales quotas because he was a close friend of a
Maytag executive, an earlier Class Action Reporter story (July
20, 2004) reports.
The suit also alleged that a 33-year-old man named to the newly
created post of manager of field operations for the Chicago
region and an even younger consultant made "negative age-based
comments." It alleges that the field operations manager
expressed concern that one demoted manager who was nearly 60
would have a problem because of his age with new sales
procedures since they required computer literacy. The consultant
referred to the same manager as a "dinosaur with a computer,"
according to the suit, an earlier Class Action Reporter story
(July 20, 2004) reports.
Aside from the monetary relief, the Company will also be
required to report twice-yearly to the EEOC regarding
terminations and demotions from the ranks of its sales managers;
provide training to sales managers on the requirements of the
ADEA; and post a notice reflecting the terms of the consent
decree in its Newton, Iowa, headquarters and also mail copies to
its sales managers. In addition, the consent decree provides for
the Company's vice president for human relations to meet with
the EEOC's Chicago District Director, John Rowe, within 90 days.
Mr. Rowe says that the provision in the decree for a personal
meeting between the Company and the EEOC is a novel component of
the decree. According to him, "EEOC believes that a face-to-face
meeting with a member of Maytag's senior management team - in
which we can lay out what our expectations are in terms of
corporate compliance with the ADEA - will likely prove to be a
very effective way of ensuring that the company adheres to the
requirements of the law in the future."
John Hendrickson, Regional Attorney in the EEOC's Chicago
office, added: "EEOC's enforcement of the ADEA becomes
increasingly important as the working population ages and more
Americans work beyond the traditional retirement age of 65. We
are confident that this consent decree will help ensure that
older workers at Maytag have that opportunity. It also goes a
long way toward making whole members of Maytag's sales
management who were denied that opportunity in the past."
The decree also resolves the suit brought individually by Mr.
Max, who was represented by Jeffrey Cummings of the law firm of
Miner Barnhill and Galland of Chicago. The EEOC suit, originally
captioned 04 C 4632, and Mr. Max's suit were both resolved under
the combined caption of 04 C 4617. The court entered the decree
on December 2, 2005.
The suit is styled, "Max, et al. v. Maytag Corporation, Case No.
1:04-cv-04617," filed in the United States District Court for
the Northern District of Illinois, under Judge Nan R. Nolan.
Representing the Plaintiff/s are, Ethan M.M. Cohen of United
States Equal Employment Opportunity Commission, 500 West Madison
St., Suite 2800, Chicago, IL 60661, Phone: (312) 353-7568, E-
mail: ethan.cohen@eeoc.gov; and Jeffrey Irvine Cummings of Miner
Barnhill & Galland, 14 West Erie St., Chicago, IL 60610, Phone:
(312) 751-1170, E-mail: jcummings@lawmbg.com. Representing the
Defendant are James E. Bayles, Jr. of Morgan, Lewis & Bockius,
LLP, 77 West Wacker Drive, 5th Floor, Chicago, IL 60601, Phone:
(312) 324-1000, Fax: (312) 324-1001, E-mail:
jbayles@morganlewis.com; and Jolynn C Caroline of Holland &
Knight, LLC, 131 South Dearborn St., 30th Floor, Chicago, IL
60603, Phone: (312) 263-36007.
MICHAELS STORES: Former Canadian Employees File Overtime Lawsuit
----------------------------------------------------------------
The Ontario Superior Court of Justice has yet to rule on
plaintiffs' application for class certification for a complaint
filed against Michaels Stores, Inc. by James Cotton, a former
store manager of Michaels of Canada, ULC, its wholly-owned
subsidiary, and Suzette Kennedy, a former assistant manager of
Michaels of Canada. The suit also names as defendant Michaels
of Canada.
The suit was filed on behalf of current and former employees
employed in Canada and alleges that the defendants violated
employment standards legislation in Ontario and other provinces
and territories of Canada by failing to pay overtime
compensation as required by that legislation. The claim also
alleges that this conduct was in breach of the contracts of
employment of those individuals. The claim seeks a declaration
that the defendants have acted in breach of applicable
legislation, payment to current and former employees for
overtime, damages for breach of contract, punitive, aggravated
and exemplary damages, interest, and costs.
In May of 2005, the plaintiffs delivered material in support of
their request that this action be certified as a class
proceeding. A date has not yet been set for the hearing with
respect to certification.
MICHAELS STORES: Faces Wage Law Violations Lawsuit in CA Court
--------------------------------------------------------------
Michaels Stores, Inc. faces a class action filed in the United
States District Court in California, alleging violations of the
state's wage and labor laws.
On July 13, 2005, Michael Clark, a former Michaels store
assistant manager and Lucinda Prouty, a former Michaels store
department manager in San Diego, California, commenced the suit
on behalf of themselves and current and former hourly retail
employees employed in California from July 13, 2001 to the
present. The Clark suit was filed in the Superior Court of
California, County of San Diego, and alleges that the Company
failed to pay overtime wages, provide meal and rest periods (or
compensation in lieu thereof), and provide itemized employee
wage statements. The Clark suit also alleges that this conduct
was in breach of California's unfair competition law. The
plaintiffs seek injunctive relief, damages for unpaid overtime
pay, meal break penalties, waiting time penalties, interest, and
attorneys' fees and costs. Under the Class Action Fairness Act,
the Company removed the case to federal court on August 5, 2005.
NETFLIX INC.: Law Firm Targets CA DVD Consumer Fraud Settlement
---------------------------------------------------------------
The national public interest law firm, Trial Lawyers for Public
Justice (TLPJ), which has long been taking aim at what it
considers unfair class action settlements, filing objections to
the settlements it believes offer lots of money to the plaintiff
attorneys but very little, which is usually coupons with
relatively small monetary value to consumers, is targeting a
proposed class action settlement involving Netflix, Inc.
(NASDAQ: NFLX) customers, The Washington Post reports.
The national class action lawsuit, filed on September 2004 in
San Francisco Superior Court, alleged that Netflix misled
consumers by failing to deliver DVDs as promised, within one
business day. In reality, according to the suit, it would often
take as long as four to six business days for customers to
receive their requested DVDs. And that meant customers could
watch fewer videos than they had signed up for under Netflix's
monthly membership plan.
The Company has denied wrongdoing but agreed to settle the suit,
whose costs dragged down its third-quarter net income by $3.4
million. According to the proposed settlement, Netflix
subscribers who joined the service before January 15 and
remained members through October 19, will get a one-month
upgrade in their service level while paying their usual
subscription price. For example, subscribers to the three-
movies-out plan would pay $17.99 but would get four movies out
at a time for one month. Meanwhile, those who subscribed to
Netflix before January 15 but canceled their membership before
October 19 are eligible to one month of free service. Netflix
users must register by February 17 to receive the upgrade, an
earlier Class Action Reporter story (November 4, 2005) reports.
The proposed settlement, which TLPJ officials said is worth $4
million max, includes $2.5 million in attorney fees. But that's
just one of the problems with the proposed settlement, according
to TLPJ, which filed a legal challenge. More troublesome, TLPJ
says, is what consumers get: Current Netflix customers would get
one-month upgrade to receive more DVDs, a value that ranges from
$2 to $6, depending on what plan a customer is signed up for.
But if consumers fail to cancel that upgraded service at the end
of 30 days, they would then be billed for the more expensive
service every month after that. Meanwhile, former Netflix
customers, would get a month's free service.
TLPJ says the proposed settlement is just a marketing tool
designed to increase the Company's revenues. In the long run,
customers could be worse off, especially if they fail to opt out
of the more expensive service. It is asking both sides to come
up with a more fair settlement, as it has done on other class
action settlements.
Company spokesman Steve Swasey told The Washington Post that the
company agreed to the settlement because it is in the best
interest of its shareholders and customers. A court hearing on
the proposed settlement and TLPJ's objections will be held
January 18 in California Superior Court in San Francisco.
The suit is styled "FRANK CHAVEZ VS. NETFLIX, INC., A FOREIGN
CORPORATION et al, Case No. CGC-04-434884." Representing the
Company is Keith Eggleton of WILSON SONSINI GOODRICH & ROSATI,
650 Page Mill Road, Palo Alto CA 94304-1050 USA Phone:
(650) 493-9300. Representing the plaintiffs are Adam Gutride
LAW OFFICES OF ADAM GUTRRIDE 835 Douglass Street, San Francisco
CA 94114 USA Phone: (415) 271-6469; and Seth Safire, 6467
California, San Francisco CA 94121 USA Phone: (415) 876-4345.
PATHMARK STORES: Asks DE Court To Dismiss Securities Fraud Suit
---------------------------------------------------------------
Pathmark Stores, Inc. asked the United States District Court for
the District of Delaware to dismiss the securities class action
filed against it and its directors.
On June 15, 2005, Rick Hartman, a stockholder in the Company,
filed the suit, asserting on behalf of a purported class of
stockholders of the Company a claim against the Defendants for
issuing a proxy statement in connection with the Purchase
Agreement, that was allegedly materially false and misleading.
The Complaint additionally asserts a claim against the
Individual Defendants for alleged breach of fiduciary duties in
connection with the Purchase Agreement. The Complaint seeks an
award of damages for the alleged wrongs asserted in the
Complaint.
The lawsuit is in its preliminary stage. On August 19, 2005, the
Defendants filed a motion to dismiss the Complaint.
ROYAL DUTCH: Fund Takes Lead Plaintiff Status in NJ Fraud Case
--------------------------------------------------------------
Stichting Pensioenfonds ABP of Heerleen, Netherlands is the lead
plaintiff in a class action lawsuit of 26 Dutch pension funds
against Royal Dutch Shell to recover losses linked to an
accounting scandal in which Shell overstated its oil and gas
reserves from 1997 to 2003, The Pensions & Investments.
The securities fraud suit, filed by the $225 billion Dutch fund
in U.S. District Court in New Jersey, is believed to be the
first of its kind in the Netherlands. The 26 pension funds
represent the majority of the Dutch labor force.
According to the lawsuit, filed on January 6, 2006, the group
collectively bought more than 200 million Shell shares between
1999 and 2005. Court documents revealed that when Shell
disclosed that it had overstated reserves by several billion
barrels in early 2004, it lost about $16 billion in market
value. Since then, the energy giant reduced its estimated
reserves four more times, resulting in an aggregate loss of more
than $25 billion in value to shareholders.
Shell spokeswoman Lisa Givert told The Pensions & Investments in
an e-mail statement that the Company plans to "rigorously defend
itself against the action."
ROYAL OASIS: Bahamas Resort Time-Share Owners Consider Suit
-----------------------------------------------------------
Several time-share owners of the now defunct Royal Oasis resort
in the Bahamas are talking with lawyers and are planning to file
a class action suit, The Freeport News reports.
The resort owner Driftwood Freeport, David Buddeyemer, president
of Driftwood Freeport Limited, and Lehman Brothers were among
those expected to be named in the suit. The situation is leaving
a bad taste in the time-share owners' mouths and a terrible
impression on the government of The Bahamas. One frustrated
owner, who has yet to use her timeshare since her purchase in
2003, "We don't want it to come to this, but with no information
forthcoming, it seems we have no other recourse."
Fifteen months ago, the Crowne Plaza Golf Resort and Casino at
the Royal Oasis closed down, reportedly for much needed repairs
after Hurricane Frances in September 2004. The closure forced
the lay-off of some 1,300 employees and subsequently the time-
share arm.
With no word from the timeshare resort for several months
regarding a pending sale or reopening of the resort, and
virtually stuck with a time-share point system that is useless
to them, several owners are threatening legal action.
Darlene Barber from Stafford, Virginia, paid cash for her
timeshare "points" in July 2004 and says unlike many she can't
stop her payment. Mrs. Barber told The Freeport News, "I didn't
take a loan, I didn't make monthly payments, I wrote a check for
$12,000."
Just four weeks ago, she received a letter from RCI stating that
there was a hold on her timeshare points. She said, according to
the letter, the "management company" (Driftwood or Royal Oasis)
had notified RCI that she had not paid her maintenance fees. But
Mrs. Barber explained that she had never received a bill.
With her points being frozen, she is unable to take advantage of
any other time-share properties like she had anticipated. Mrs.
Barber told The Freeport News, "Now we are out in limbo. We
can't go anywhere because RCI says our points are blocked and no
one will return my e-mails or my phone calls and so I'm out of
$12,000 and can't even go on a vacation."
After the resort closed, she was told the owners were
rebuilding, but she told The Freeport News that red flags
started shooting up when she received the letter. She explains,
"That's when I started making phone calls and realized that
Driftwood had abandoned everything down there."
Now, she says she doesn't understand how Driftwood can have
property all over the Untied States and elsewhere and still be
running and totally abandon the people who have invested in
their project in Grand Bahama. The resort closed only two months
after she bought her points, adding insult to injury. She says
the situation is upsetting and even admits it makes her want to
cry at times. Mrs. Barber, who is willing to go all the way,
told The Freeport News, "Hopefully, I would get my money back.
Whatever I have to do."
Some owners even took out loans to buy their time-share, while
others have been making monthly installments. A number of owners
continued with their monthly payments out of fear that they
would lose their points, but they now question where the funds
were going since the resort remained closed and their points
have been frozen.
Owners Francis Becker and Diane Sgro of Vernon, Connecticut, say
they had not been impressed with the timeshare unit's
"unprofessional system" even before the hurricanes. The couple
purchased their points in February 2004 and Ms. Sgro says it has
been chaotic ever since they returned to the U.S., trying to get
through to the time-share unit. She said, "It's unfortunate that
they were hit with the hurricane, however, all of this could
have been handled more appropriately."
Ms. Sgro revealed they were unable to use their points in the
first year before the hurricanes hit. While she is not saying
whether they are joining in on the class action suit, she told
The Freeport News that they are going to take some action for
the thousands they have invested. She adds, "We're going to do
what we feel we have to do to recoup our money and also make
sure that others are aware of their unprofessional manner of
doing business."
Some owners also feel the government is not helping either and
have made attempts to get their plight heard via e-mails and
telephone calls, but to no avail. One Alberta, Canada, father
and husband, in a recent e-mail to Prime Minister Perry
Christie, explained that they had such a wonderful time here,
they invested in the Royal Oasis timeshare, but now they fear
their investment is lost. In fact, they were planning to send
their daughter and her friends on vacation here after they
graduate high school next year. Still anticipating his return to
the island to bask on our "beautiful" beaches, he beseeched the
prime minister, "I would like to ask for your attention to this
situation so that this can be resolved quickly." To-date, there
has been no word on the status of the resort or the time-share
unit.
UNITED STATES: Supreme Court Agrees to Hear Mutual Funds Case
-------------------------------------------------------------
The U.S. Supreme Court recently agreed to consider whether a
federal appeals court properly ruled that a group of state class
action lawsuits that accuses a group of mutual funds of eroding
investor holdings should be dismissed, Reuters reports.
In state court, investors had sued mutual funds for failing to
calculate share prices correctly, allowing others to profit by
taking advantage of different exchange closing times, in a
strategy known as market timing. Those mutual funds in turn had
the cases sent to federal district court where they were unable
to have them dismissed under federal law that prevents holders
of securities, as opposed to buyers and sellers, from suing.
Later on the mutual funds appealed the cases. One of four
federal appeals courts agreed to review some of the cases and
ordered the lower court to dismiss the lawsuits.
However, the investors argued in their high court petition that
the district court decisions to send the cases back to state
court were not eligible to be reviewed by federal appeals
courts, and thus the Supreme Court has agreed to review the
matter. The high court though is most likely to hear arguments
at the end of April, with a decision expected by the end of
June.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
January 14, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
San Francisco Hilton and Towers, San Francisco
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 14, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
Wilshire Grand Hotel and Centre, Los Angeles
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 18-19, 2006
REGULATORY COMPLIANCE FOR THE INSURANCE INDUSTRY
American Conference Institute
New York
Contact: 1-888-224-2480 or customercare@americanconference.com
January 19-20, 2006
LPL / LEGAL MALPRACTICE
American Conference Institute
Miami
Contact: 1-888-224-2480 or customercare@americanconference.com
January 21, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
Doubletree Hotel, Sacramento
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 21, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
San Diego County Bar Association, San Diego
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 23-24, 2006
EMPLOYMENT PRACTICES LIABILITY INSURANCE
American Conference Institute
New York
Contact: 1-888-224-2480 or customercare@americanconference.com
January 23-24, 2005
4TH ANNUAL ADVANCED INSURANCE COVERAGE ISSUES
Mealey Publications
The Four Seasons Hotel, Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
January 24, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
PLI California Center, San Francisco
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 25, 2006
CONCRETE LITIGATION CONFERENCE
Mealey Publications
The Ritz-Carlton, Laguna Niguel, Dana Point, CA
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
January 26-27, 2006
DEFENSE STRATEGIES IN PHARMACEUTICAL LITIGATION CONFERENCE
Mealey Publications
The Ritz-Carlton, Laguna Niguel, Dana Point, CA
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
January 26-27, 2006
AUTO INSURANCE CLAIMS AND LITIGATION
American Conference Institute
Las Vegas
Contact: 1-888-224-2480 or customercare@americanconference.com
January 28, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
Santa Clara Convention Center, Santa Clara
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
January 28, 2005
TORTS PRACTICE: 21ST ANNUAL RECENT DEVELOPMENTS
CEB
Sheraton Anaheim, Anaheim
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
February 2-3, 2006
SOLVENT SCHEMES OF ARRANGEMENT CONFERENCE
Mealey Publications
The Ritz-Carlton Battery Park, New York
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
February 9, 2006
LEXISNEXIST PRESENTS WALL STREET FORUM: ASBESTOS Mealey
Publications
The Ritz-Carlton Battery Park New York
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
February 13-14, 2006
FUNDAMENTALS OF ASBESTOS CONFERENCE
Mealey Publications
The Westin Hotel Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
February 13-14, 2006
FUNDAMENTALS OF INSURANCE
Mealey Publications
The Westin Hotel Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
February 16-17, 2006
ACCOUNTANTS' LIABILITY
ALI-ABA
Coral Gables, Miami, Florida
Contact: 215-243-1614; 800-CLE-NEWS x1614
February 23-24, 2006
LITIGATING DISABILITY INSURANCE CLAIMS
American Conference Institute
Miami
Contact: 1-888-224-2480 or customercare@americanconference.com
February 27-28, 2006
REINSURANCE AGREEMENTS
American Conference Institute
New York
Contact: 1-888-224-2480 or customercare@americanconference.com
March 9-10, 2006
TOXIC TORT UPDATE: TEXAS
Mealey Publications
Las Colinas Four Seasons, Dallas, Texas
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
March 23-24, 2006
FUNDAMENTALS OF REINSURANCE LITIGATION & ARBITRATION CONFERENCE
Mealey Publications
The Ritz-Carlton Boston
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
March 30, 2006
EMAIL DISCOVERY & RETENTION POLICIES CONFERENCE
Mealey Publications
Grand Hyatt, New York
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
March, 2006
BIRTH CONTROL PATCH LITIGATION CONFERENCE
Mealey Publications
Dallas, TX
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
April 5-8, 2006
13TH INSURANCE INSOLVENCY AND REINSURANCE ROUNDTABLE
Mealey Publications
The Fairmont Scottsdale Princess, Scottsdale, AZ
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
May 25-26, 2006
INSURANCE COVERAGE 2006: CLAIM TRENDS & LITIGATION
Practising Law Institute
New York
Contact: 800-260-4PLI; 212-824-5710; info@pli.edu
September 28-30, 2006
LITIGATING MEDICAL MALPRACTICE CLAIMS
ALI-ABA
Boston
Contact: 215-243-1614; 800-CLE-NEWS x1614
* Online Teleconferences
------------------------
January 02-31, 2006
HBA PRESENTS: AUTOMOBILE LITIGATION: DISPUTES AMONG
CONSUMERS, DEALERS, FINANCE COMPANIES AND FLOORPLANNERS
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
January 02-31, 2006
CONSTRUCTION DISPUTES: TEXAS RESIDENTIAL CONSTRUCTION DEFECT
LIABILITY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
January 02-31, 2006
HBA PRESENTS: ETHICS IN PERSONAL INJURY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
January 02-31, 2006
IN-HOUSE COUNSEL AND WRONGFUL DISCHARGE CLAIMS:
CONFLICT WITH CONFIDENTIALITY?
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
January 02-31, 2006
BAYLOR LAW SCHOOL PRESENTS: 2004 GENERAL PRACTICE INSTITUTE --
FAMILY LAW, DISCIPLINARY SYSTEM, CIVIL LITIGATION, INSURANCE
& CONSUMER LAW UPDATES
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
(2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 23RD ANNUAL RECENT DEVELOPMENTS
(2005)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINATION
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING WRITTEN
DISCOVERY
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
SUMMARY JUDGMENT AND OTHER DISPOSITIVE MOTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS (2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 20TH ANNUAL RECENT DEVELOPMENTS (2005)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
ASBESTOS BANKRUPTCY - PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com / Law Education Institute
Contact: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
Contact: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Contact: 800-285-2221; abacle@abanet.org
_______________________________________________________________
The Meetings, Conferences and Seminars column appears in the
Class Action Reporter each Wednesday. Submissions via
e-mail to carconf@beard.com are encouraged.
New Security Fraud Cases
CIPHERGEN BIOSYSTEMS: Schneider & Wallace Files Fraud Suit in CA
----------------------------------------------------------------
The law firm of Schneider & Wallace filed a class action suit in
the United States District Court for the Northern District of
California against Ciphergen Biosystems, Inc. ("Ciphergen" or
the "Company") (NASDAQ: CIPHE) and certain of its officers and
directors, on behalf of all persons or entities who purchased
the publicly traded common stock of Ciphergen Biosystems between
August 8, 2005 and November 16, 2005, inclusive (the "Class
Period").
The complaint alleges that during the Class Period, defendants
violated Sections 10(b) and 20(a) of the Securities and Exchange
Act of 1934 by publicly issuing a series of false and misleading
statements regarding the Company's financial condition, thus
causing Ciphergen's shares to trade at artificially inflated
levels.
The complaint alleges that on November 16, 2005, Ciphergen
disclosed, inter alia, that its Audit Committee had determined
that the Company's previously reported results for the quarter-
ended June 30, 2005 should no longer be relied upon and would
need to be restated because revenue was recognized on certain
transactions "in a manner inconsistent with the Company's
revenue recognition policy." Indeed, the Company indicated that
the restatement would reduce previously reported revenues for
such quarter by $503,000 or 7% and result in an increase in the
Company's previously reported net loss for such quarter by
$301,000 or 3%. The Company also advised that the Audit
Committee's investigation was not yet complete and that it was
also "reviewing the appropriateness of revenue recognition in
connection with certain transactions that took place in the
fourth quarter of fiscal 2004 and in fiscal 2005."
On November 17, 2005, as a result of these disclosures, the
complaint alleges that the price of Ciphergen common stock
declined from a prior day close of $1.73 to close at $1.36 per
share, a decline of approximately 21%, on unusually heavy
volume.
For more details, contact Todd Schneider of Schneider & Wallace,
180 Montgomery Street, Suite 2000, San Francisco, CA 94104,
Phone: (415) 421-7100, Fax: (415) 421-7105 or (415) 421-1655, E-
mail: info@schneiderwallace.com, Web site:
http://www.schneiderwallace.com/Stock-
Investigations/Ciphergen.htm.
*********
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Copyright 2006. All rights reserved. ISSN 1525-2272.
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