/raid1/www/Hosts/bankrupt/CAR_Public/060223.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 23, 2006, Vol. 8, No. 39
Headlines
ABC DISTRIBUTING: Recalling Pilates Balls with Defective Clips
ALCOA INC: Faces Lawsuit over Chemical Disposal at N. Mex. Mine
ASPEON INC: Plaintiffs Appeal Dismissal of Calif. Stock Lawsuit
AUSTRALIA: Planned Lawsuit V. Westpoint's Advisers to Proceed
BALLARAT UNIVERSITY: Hearing Begins in Employees Labor Lawsuit
BEST BRANDS: Issues Allergy Alert on Undeclared Soy in Dough
BROADCOM CORPORATION: Appeal V. Calif. Stock Settlement Dropped
BUCKEYE CHECK: Florida High Court Refers Lawsuit to Arbitration
CALIFORNIA: Suit Questions NCAA's Cap on Student Athletes Aid
COVENTRY FIRST: 21st Services Drops Mortality Model Complaints
DOMINION HOMES: Faces Lawsuit Over Alleged Fraudulent Contracts
DOW CHEMICAL: To Appeal Ruling on $554M Rocky Flats Litigation
ELECTRONIC DATA: Securities Settlement Hearing Set March 7, 2006
EMERSON RADIO: Faces Shareholder Class, Derivative Suits in Del.
EN POINTE: Calif. Court Grants Class Status to Securities Suit
EN POINTE: Plaintiffs Proceed with Stock Suit in Calif. Court
FLORIDA: Local Attorney Plans Lawsuit Over St. Lucie County Jail
FORTUNE BRANDS: Faces Consolidated Consumer Complaint in Ohio
GENERAL MOTORS: Hundreds Object to Union-led Health Care Deal
GILMAN & CIOCIA: Del. Court Mulls Investor Fraud Suit Dismissal
LEVI STRAUSS: Calif. Securities Fraud Suit Awaits Court Ruling
NATURAL GAS: Units Face Suit Over Louisiana Ground Contamination
OIL COMPANIES: Face Suit for Supporting OPEC's Energy Scheme
ONSPAN NETWORKING: Faces Amended Securities Fraud Suit in Okla.
PRESTIGE BRANDS: Plans Dismissal Motion V. N.Y. Securities Suit
PRIMEDEX HEALTH: Discovery Begins in DVI Securities Suit in Pa.
SELECTICA INC: N.Y. Court Set to Approve Stock Suit Settlement
SERVICE CORPORATION: Enters $4.45M Settlement in N.Y. Labor Suit
TENET CORPORATION: Paying $7M to Settle State Issues in Florida
UNITED STATES: Federal Prosecutors Absolve High-Profile Lawyers
VIRGIN ISLANDS: Meeting to Update Nadine Jones Suit Set Today
VITAS HEALTHCARE: Books $11M for Calif. Suit Deal in Q4 Results
WAL-MART INC: Wisconsin Court Refuses to Certify Overtime Suit
New Securities Fraud Cases
CHICAGO BRIDGE: Brodsky & Smith Lodges Securities Suit in N.Y.
CHICAGO BRIDGE: Goldman Scarlato Lodges Securities Suit in N.Y.
COOPER COMPANIES: Milberg Weiss Files Securities Suit in Calif.
COOPER COMPANIES: Stull, Stull Lodges Securities Suit in Calif.
NVE CORP: Charles J. Piven Lodges Securities Fraud Suit in Minn.
NVE CORP: Marc S. Henzel Lodges Securities Fraud Suit in Minn.
NVE CORP: Schatz & Nobel Lodges Securities Fraud Suit in Minn.
*********
ABC DISTRIBUTING: Recalling Pilates Balls with Defective Clips
--------------------------------------------------------------
Abc Distributing LLC of North Miami, Florida, in cooperation
with CPSC, is voluntarily recalling 8,300 pilates balls.
The company said the plastic black clips at the end of the
rubber tubing could come apart when in use. In addition, the
grommet used to hold the black rubber tubing could separate from
the nylon webbing. Consumers using the pilates balls could fall
and be hit by pieces that separate. The firm has received one
report of a minor injury.
The inflatable pilates balls are blue with black handles. They
are about 26-inches in diameter when inflated. They are sold
with a blue air pump. They were sold by Catalog and online
sales nationwide from August 2005 through September 2005 for
about $9.
Consumers are advised to immediately stop using these pilates
balls and contact the firm to obtain instructions on how to
receive free replacement handles. All consumers who purchased
these pilates balls were notified directly about the recall.
Consumer Contact: Abc Distributing Phone: (866) 736-3654 (toll-
free) between 8:30 a.m. and 5:30 p.m. ET Monday through Friday:
E-mail: ball.pilates@abcdistributing.com; On the Net:
http://www.abcdistributing.com.
ALCOA INC: Faces Lawsuit over Chemical Disposal at N. Mex. Mine
---------------------------------------------------------------
A former Squaw Creek miner is drumming up support for a class
action he filed against Alcoa Inc. in January, according to
14WFIE.
Bill Musgrave alleged in his lawsuit that chemicals Alcoa
disposed of at the mine decades ago caused his cancer. Mr.
Musgrave, who was diagnosed with a rare form of bile duct cancer
in 2000, is now recuperating after a liver transplant and
chemotherapy.
According to the report, a meeting of the United Mine Workers in
Warrick County on Feb. 20 tackled at one point on finding
workers from the Squaw Creek Mine in New Mexico to serve as
plaintiff in the lawsuit.
Alcoa -- which from 1965 to 1979 disposed of five different
chemicals at the Squaw Creek Mine with the consent of the health
regulator -- just finished offering health screenings to miner
with concerns.
Company spokesperson Sally Rideout Lambert said there are three
separate environmental studies being conducted in the mine. The
University of Cincinnati Center for Occupational Health is
analyzing the results, and is expected to report on it in late
April or early May.
Alcoa Inc. on the Net: http://www.alcoa.com.
ASPEON INC: Plaintiffs Appeal Dismissal of Calif. Stock Lawsuit
---------------------------------------------------------------
Plaintiffs are appealing the dismissal by the U.S. District
Court for the Central District of California of the consolidated
securities class action filed against Aspeon, Inc., its Chief
Executive Officer, and its former Chief Financial Officer. The
motion was filed with the U.S. District Court of Appeal for the
9th Circuit.
In October and November 2000, eight purported class actions were
filed, alleging violations of the Securities Exchange Act of
1934. After the defendants moved to dismiss each of the
actions, the lawsuits were consolidated under a single action,
entitled "In re Aspeon Securities Litigation, Case No. SACV 00-
995 AHS (ANx)," and the appointed lead plaintiff voluntarily
filed an amended and consolidated complaint.
The defendants moved to dismiss that complaint, and on April 23,
2001, the Court entered an order dismissing the complaint
without prejudice. On May 21, 2001 the appointed lead plaintiff
filed a third complaint, styled as a "First Amended Consolidated
Complaint." On June 4, 2001, the defendants moved to dismiss
this complaint and on September 17, 2001, the court dismissed
the suit with prejudice and entered judgment in favor of the
Company and its officers.
On September 20, 2001, the lead plaintiff in the class action
suit appealed against the dismissal of the case. On January 21,
2003 the decision to dismiss the case was upheld but the lead
plaintiff was given the opportunity to remedy the deficiencies
in the complaint that had been filed. Accordingly on May 30,
2003 the plaintiff filed its "Second Amended Consolidated
Complaint" which again was subsequently dismissed by the Court.
On November 26, 2003 the lead plaintiff filed its "Third Amended
Consolidated Complaint," which was again dismissed with
prejudice in March 2004. The lead plaintiff once again appealed
against the dismissal and the U.S. District Court of Appeal for
the 9th Circuit heard the appeal on February 8, 2006. The
Company was advised that it might be several months before the
Court reaches a decision.
The suit was styled, "Jay Spechler, et al. v. Aspeon Inc, et
al., Case No. 8:00-cv-00995-AHS-AN," filed in the U.S. District
Court for the Central District of California, under Judge
Alicemarie H. Stotler. Representing the Defendant/s are, Donald
A. Daucher, Jay C. Gandhi, Colleen Elizabeth Hushke, Peter M.
Stone, Paul Hastings Janofsky and Walker, 3579 Valley Centre
Dr., San Diego, CA 92130, Phone: 858-720-2500, E-mail:
dondaucher@paulhastings.com; and Eric J. Belfi, Murray Frank and
Sailer, 275 Madison Avenue, Suite 801, New York, NY 10016,
Phone: 212-682-1818. Representing the Plaintiff/s are, Thomas
C. Bright, Solomon B. Cera, Steven Orrin Sidener, Gold Bennett
Cera & Sidener, 595 Market St, Ste 2300, San Francisco, CA
94105-2835, Phone: 415-777-2230, Fax: 415-777-5189.
AUSTRALIA: Planned Lawsuit V. Westpoint's Advisers to Proceed
-------------------------------------------------------------
Law firm Slater & Gordon is going ahead with a class action
against advisers of failed Perth, Australia-based company
Westpoint Corp., according to News.com.au.
Slater & Gordon spokeswoman Joanne Rees said: "We expect to
begin litigation shortly against more than 75 financial planners
on behalf of some 2,000 Westpoint investors." According to the
report, the firm has joined litigation fund IMF to conduct the
class action on behalf of at least 150 people who invested in
Westpoint's mezzanine companies. Seven Westpoint mezzanine
financing firms called in administrator Geoff Totterdell from
PricewaterhouseCoopers in December.
Previously, Ms. Rees said they are targeting financial planners
because there is little chance anything can be recovered from
Westpoint. But they are investigating first which financial
planner recommended the firm's high-risk promissory notes to
investors (Class Action Reporter, Jan. 23, 2006).
Recently, a federal court ordered the liquidation of the Perth,
Australia-based company. Accountancy firm PBB, the newly
appointed liquidators of Westpoint Corporation Pty Ltd., expects
it will take years to unravel the failed property developer's
finances because of its complexity. About 3000 investors are
likely to lose a combined $300 million in Westpoint's collapse.
BALLARAT UNIVERSITY: Hearing Begins in Employees Labor Lawsuit
--------------------------------------------------------------
Court proceedings will start soon in a $7 million class action
against the University of Ballarat in western Victoria,
Australia, ABC Victoria reports.
University staff, together with the National Tertiary Education
Union, recently filed legal papers, signaling their intention to
challenge the university's campaign to put workers on new
Australian Workplace Agreements (AWAs).
The University says present key employment conditions will be
safeguarded under the new agreement, but the staff says that is
untrue. The staff's lawyers are seeking an injunction to
prevent the University from signing any extra staff onto the
AWAs.
If the court rules the University did intentionally overstate
the benefits of its new workplace package, it could be liable to
pay damages of up to $7 million.
Law firm Maurice Blackburn Cashman lodged the class action in a
federal court seeking an injunction to stop the University from
continuing to enter into workplace agreements.
Ballarat University on the Net: http://www.ballarat.edu.au/;
Maurice Blackburn on the Net:
http://www.mauriceblackburncashman.com.au/.
BEST BRANDS: Issues Allergy Alert on Undeclared Soy in Dough
------------------------------------------------------------
Best Brands Corp. of Eagan, Minnesota is recalling all lots of
Twisted Snails Frozen Danish Dough that contain undeclared soy.
The company said people who have an allergy or severe
sensitivity to soy run the risk of serious or life-threatening
allergic reaction if they consume these products. The products
are not harmful unless the consumer is allergic to soy.
The Danish twist dough was sold to retail and grocery store
bakeries and other foodservice outlets. According to the
company, consumers may have purchased the product as baked,
spiral-shaped Danish, either iced, filled, or plain. The Danish
twists may have been sold from trays in the bakery counter or in
individual packages with grocery store labels. The name "Best
Brands" or "Twisted Snails Frozen Danish Dough" would not appear
on the consumer package.
The Danish twist dough was distributed to retail bakeries,
grocery store bakeries and other foodservice outlets in
Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Michigan,
Minnesota, Missouri, Nebraska, North Dakota, Pennsylvania, Ohio,
South Dakota, Texas, and Wisconsin.
The recall was initiated after it was discovered that product
containing soy was distributed in packaging that did not reveal
the presence of soy. In the future, the product will be
distributed with the correct ingredient listing.
Consumers with allergen concerns who have purchased Danish
twists are advised to contact the place of purchase to determine
if their Danish twists were made from the Best Brands Corp.
Twisted Snails Danish dough and are part of this recall. The
Danish twists may be disposed of or returned to the place of
purchase for a full refund. Consumers with questions may
contact the company at 1-800-328-2068.
Best Brands Corp. said it is taking this voluntary action to
ensure the safety of its consumers and is working closely with
the U.S. Food & Drug Administration in the recall process. Best
Brands Corp. is committed to the quality and safety of its
products and sincerely regrets any inconvenience that this
incident may have caused.
BROADCOM CORPORATION: Appeal V. Calif. Stock Settlement Dropped
---------------------------------------------------------------
Parties dissatisfied with the settlement of the consolidated
securities class action filed against Broadcom Corporation and
certain of its current and former executive officers in the U.S.
District Court for the Central District of California
voluntarily dropped their respective appeals.
From March through May 2001 the Company and three of its current
and former executive officers were served with a number of
shareholder class action complaints alleging violations of the
Securities Exchange Act of 1934, as amended. The essence of the
allegations was that the defendants intentionally failed to
disclose and properly account for the financial impact of
performance-based warrants assumed in connection with five
acquisitions consummated in 2000 and 2001, which plaintiffs
allege had the effect of materially overstating the Company's
reported and future financial performance.
In June 2001, the lawsuits were consolidated before the U.S.
District Court for the Central District of California into a
single action, entitled, "In re Broadcom Corporation Securities
Litigation."
In October 2003, the court issued an order certifying a class of
all persons or entities who purchased or otherwise acquired
publicly traded securities of the Company, or bought or sold
options on the Company's stock, between July 31, 2000 and
February 26, 2001, with certain exceptions. By a Stipulation of
Settlement dated as of June 24, 2005, the parties agreed to
settle the Class Action. Under the Stipulation, the Class
Action will be dismissed with prejudice in exchange for an
aggregate payment of $150 million in cash, which will be
distributed to class members after the payment of costs of
administering the settlement and any fees and costs the Court
may award to plaintiffs' counsel.
The Company expects that its insurance carriers will pay
approximately $40 million of the Settlement Fund. Of the
remaining balance, the Company paid $108 million into an escrow
account on July 2005. Any additional amount necessary to bring
the Settlement Fund to $150 million will be paid into the escrow
account by the Company no later than two business days before
the Court hearing on final approval of the Stipulation.
In June 2005 the Court granted preliminary approval of the
Stipulation and the settlement set forth therein, set a hearing
date of September 12, 2005 on a motion for final approval, and
directed that a notice of the settlement be delivered to members
of the class and published in national media. In September 2005
the court granted final approval of the Stipulation and entered
final judgment and an order of dismissal thereon and made
effective full releases by all class members of all claims
relating to the matters asserted in the Class Action.
However, two objectors to the settlement have filed notices of
appeal before the Ninth Circuit Court of Appeals from, among
other things, the order granting final approval of the
settlement and the final judgment and order of dismissal. The
Settlement Fund will not be distributed to members of the class
until all appeals have been resolved.
If for any reason the settlement does not become final, or the
Stipulation is cancelled or terminated, contributions to the
Settlement Fund will be returned to the parties that made them
(less any notice or administrative costs incurred pursuant to
the Stipulation), the parties will be restored to their
respective positions in the litigation as of June 20, 2005, and
the Company will continue to contest the claims on the merits.
In December 2005 one of the objectors decided to voluntarily
dismiss its appeal, and the parties filed a stipulation with the
Ninth Circuit Court of Appeals dismissing that appeal. The
second objector also decided to voluntarily dismiss its appeal,
and the parties filed a stipulation in January 2006 dismissing
the final appeal. The settlement, final judgment and order of
dismissal are now final and no longer subject to appeal.
The Plaintiffs have agreed to dismiss the Class Action with
prejudice effective upon final Court approval. The Plaintiffs
and Defendants have also agreed to releases covering all
asserted and unasserted, known and unknown, claims relating to
the Class Action and the prosecution of the Class Action,
contingent upon final approval of the settlement. As part of
the settlement, the Company and the other Defendants continue to
deny any liability or wrongdoing with respect to the claims
raised in the Class Action.
If for any reason the settlement does not become final, or if
the Stipulation is cancelled or terminated, contributions to the
Settlement Fund will be returned to the parties who made them
(less any notice or administrative costs incurred pursuant to
the Stipulation), the parties will be restored to their
respective positions in the litigation as of June 20, 2005, and
the Company will continue to contest the claims on the merits.
In February 2002 an additional complaint, entitled, "Arenson, Et
al. v. Broadcom Corp., et al.," was filed by 47 persons and
entities in the Superior Court of the State of California for
the County of Orange, against the Company and three of its
current and former executive officers. The Company removed the
lawsuit to the U.S. District Court for the Central District of
California, where it was consolidated with the Class Action.
The plaintiffs subsequently filed an amended complaint in that
court that tracks the allegations of the Class Action complaint.
The parties have completed discovery in this case.
Through orders issued in October and December 2004, the court
dismissed the claims of 31 plaintiffs on the ground that they
had sustained no damages. By stipulation and order entered by
the court in January 2005, the parties agreed that the claims of
one of the dismissed plaintiff could be reinstated (subject to
that plaintiff's agreement that its damages, calculated in
accordance with the court's prior orders, did not exceed $745)
but that five additional plaintiffs should be dismissed because
they did not incur any damages. Accordingly, the claims of 35
of the original 47 "Arenson" plaintiffs have been dismissed and
the claims of 12 plaintiffs remain.
According to the opinion provided by the plaintiffs' expert, the
remaining plaintiffs appear to have claims for no more than $1.6
million in potential damages, which defendants contest and
believe to be overstated. The plaintiffs in the "Arenson" matter
are not parties to the proposed settlement of the Class Action,
although the Stipulation provides that the "Arenson" plaintiffs
may elect individually to become members of the class and
participate in that settlement in lieu of pursuing their claims
in the "Arenson" action. The Court has stayed further
proceedings in the "Arenson" matter pending the hearing on final
approval of the settlement in the Class Action.
The Stipulation of Settlement in the Class Action provided to
the "Arenson" plaintiffs the option of joining the class in the
Class Action in exchange for dismissal of their claims in the
separate case. In September 2005 each of the Arenson plaintiffs
exercised that option. Accordingly, the Arenson plaintiffs are
now bound by the terms of the Class Action settlement and the
judgment in the Class Action, subject to the outcome of the
appeals. In October 2005 the parties filed a stipulation
dismissing the Arenson action with prejudice.
The suit is styled, "In re Broadcom Securities Litigation, case
no. 8:01-cv-00275-DT-MLG," filed in the U.S. District Court for
the Central District of California, under Judge Dickran
Tevrizian. Representing the plaintiffs are:
(1) Barbara A. Podell, Berger & Montague, 1622 Locust St
Philadelphia, PA 19103-6365, Phone: 215-875-3000
(2) Brian L. Williams and Madge S. Thorsen of Heins Mills &
Olson, 80 South 8th St, Minneapolis, MN 55402, Phone:
612-338-4605, E-mail: bwilliams@heinsmills.com
(3) Jonathan E. Behar, Lerach Coughlin Stoia Geller Rudman
and Robbins, 9601 Wilshire Boulevard, Suite 510, Los
Angeles, CA 90210, Phone: 310-859-3100, Fax: 310-278-
2148
(4) Marc A. Topaz, Schiffrin & Barroway, 3 Bala Plaza E
Ste 400, Bala Cynwyd, PA 19004, Phone: 610-667-7706
Representing the Company are Christine WS Byrd, Daniel P.
Lefler, David Siegel, Harry Arthur Mittleman, Jason M. Goldberg,
Layn R. Phillips, Peter J. Gregora of Irell & Manella, 1800
Avenue of the Stars, Ste 900, Los Angeles, CA 90067-4276, Phone:
310-277-1010, E-mail: lphillips@irell.com and Patrick Ryan of
Ryan Whaley and Coldiron, 900 Robinson Renaissance, 119 North
Robinson, Oklahoma City, OK 73102, Phone: 405-239-6040, E-mail:
pryan@ryanwhaley.com.
BUCKEYE CHECK: Florida High Court Refers Lawsuit to Arbitration
---------------------------------------------------------------
The Supreme Court ordered that a Florida lawsuit against Buckeye
Check Cashing Inc. go first to arbitration, according to
MarketWatch. The check-cashing dispute has been kept with the
state court.
The sticking point in the suit is the question of whether the
company's customer contract, which contains an arbitration
clause, is valid. The class action alleges that Buckeye charged
illegally high interest rates on short-term loans made against
personal checks. The practice is known in the industry as
deferred presentment transactions.
The case is "Buckeye Check Cashing, Inc., v. John Cardegna, et
al. (04-1264)." Justices in the case includes Antonin Scalia and
Clarence Thomas.
Attorneys for the Petitioner (Buckeye Check Cashing, Inc.):
Christopher Landau
Counsel of Record
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
Phone: (202) 879-5000
Attorneys for Respondent (John Cardegna, et al.):
F. Paul Bland Jr.
Counsel of Record
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, N.W.
Suite 800
Washington, DC 20036
Phone: (202) 797-8600
CALIFORNIA: Suit Questions NCAA's Cap on Student Athletes Aid
-------------------------------------------------------------
Three former college athletes filed an antitrust suit in the
federal district court in Los Angeles against the National
Collegiate Athletic Association (NCAA).
The lawsuit challenges an agreement under which the NCAA and its
member schools have imposed a maximum cap on the amount of
athletics-based financial aid, or "grant-in-aid" (GIA), support
available to student athletes competing in major college sports.
Under this agreement, the amount of the GIA is artificially
fixed at an amount that falls far short of the full "cost of
attendance" (COA) at NCAA member institutions. The lawsuit
alleges that this agreement is an unlawful restraint of trade in
violation of the federal antitrust laws.
The suit is brought as a class action on behalf of all football
and men's basketball players at major Division I schools. The
plaintiffs allege that major college football and men's
basketball are lucrative and profitable businesses, with the
NCAA and its member institutions taking in hundreds of millions
of dollars each year as a result of the efforts of the student
athletes.
The plaintiffs further allege that the NCAA has enforced an
agreement to short-change student athletes by imposing an
artificial cap on the amount of financial aid a student athlete
may receive in the form of an athletic scholarship, or GIA. The
plaintiffs allege that this artificial cap has imposed
significant hardships on many student athletes, and that
competition among NCAA schools would result in student athletes
receiving GIA's covering the full COA if the artificial cap were
eliminated.
One major object of the lawsuit -- to raise the student athlete
scholarship level from GIA to COA -- has actually been endorsed
by Dr. Myles Brand, the current President of the NCAA, who wrote
in 2003:
"Ideally, the value of an athletically related scholarship would
be increased to cover the full cost of attendance, calculated at
between the $2000 and $3000 more per year than is currently
provided. I favor this approach of providing the full cost of
attendance. The Division 1-A membership, which is where the
final decision will be made, will continue to address the issue
over the next several months."
Despite this encouragement, the NCAA membership refused to raise
the GIA cap, and this lawsuit seeks to enjoin the enforcement of
the present agreement and permit financial aid covering the full
COA to be paid in the future. The suit also seeks damages for
financial aid, which would have been paid if the artificial cap
had not been in place.
The named plaintiffs and class representatives are:
(1) Jason White, who played football at Stanford;
(2) Brian Polak, who played football at UCLA; and
(3) Jovan Harris, who played basketball at the University
of San Francisco.
The plaintiffs and class are represented by Marc Seltzer, Steve
Morrissey and Steven Sklaver of Susman Godfrey L.L.P., and
Maxwell Blecher and Courtney Palko of Blecher & Collins, P.C.
For information contact Stephen E. Morrissey, Phone:
(310) 789-3103; Fax: 310) 789-3150; E-mail:
smorrissey@susmangodfrey.com; or Maxwell M. Blecher, Phone:
(213) 622-4222; Fax: (213) 622-1656; E-mail:
mblecher@blechercollins.com.
COVENTRY FIRST: 21st Services Drops Mortality Model Complaints
--------------------------------------------------------------
21st Services said it resolved a lawsuit against Coventry First.
All claims and counterclaims have been dismissed. 21st
Services's insurer has paid an undisclosed sum to Coventry.
21st Services does not admit to any wrongdoing and makes this
statement.
21st Services entered the life expectancy estimation business in
1998, using an estimation model developed in consultation with
third-party consultants. In 2004, 21st Services engaged two
outside consulting firms to analyze accumulated data from its
life expectancy estimation model. Based on the consultants'
analysis and subsequent recommendations, as well as on
recommendations of its own director of medical underwriting, in
January 2005, 21st Services implemented substantial and material
enhancements to its life expectancy estimation model, which
resulted in longer average life expectancies in the aggregate.
These changes included replacing its original mortality table
(the 1994 Tillinghast non-medical table) with the 2001 Valuation
Basic Table, implementing an impaired-insured underwriting model
based on best practices found in the life insurance, long term
care and life settlement industries, and implementing a new
mortality calculator engine to better capture the mortality
impact of minimally and substantially impaired insurers.
21st Services said the new life expectancy model it implemented
in 2005 relies on a more current mortality table than the
company's original model and also adopts a more sophisticated
impairment methodology for the assignment of mortality debits
and credits. This methodology is expected to result in more
accurate estimates of life expectancy and to enhance 21st
Services' position in the market. 21st Services strongly
believes that accurate life expectancy estimates are in the
interest of all participants in the life settlement market.
21st Services has asserted various counterclaims against
Coventry. The company's attorneys have concluded, after
depositions and a review of documents produced in discovery,
that there is insufficient evidence to pursue the counterclaims
or to substantiate allegations that Coventry has acted to the
detriment of consumers.
DOMINION HOMES: Faces Lawsuit Over Alleged Fraudulent Contracts
---------------------------------------------------------------
Homeowners in two Dominion Homes' subdivisions are suing the
Dublin-based builder for predatory lending, according to The
Columbus Dispatch.
The class action was filed by homeowners in Galloway Ridge and
the Village at Galloway Ridge on the Far West Side in Franklin
County Common Pleas Court on Feb. 21. It alleged that
homeowners were defrauded when the company added without their
consent the cost of what was promised as "down-payment gifts"
and "interest-rate subsidies" into the cost of their houses. The
Ohio Attorney General's Office and the U.S. Department of
Housing and Urban Development have already investigated the
matter.
"The effect of the scheme employed by Dominion Homes is to sell
homes to unsuspecting consumers worth far less than the amount
financed and less than the amount of the appraisal," the suit
states, according to the report. Thousands of Dominion
homeowners in Central Ohio could be affected.
The suit seeks at least $25,000 in damages, attorney fees and a
court order prohibiting Dominion from, among other things,
offering down-payment gifts and interest-rate subsidies.
Defendants in the suit include Dominion Homes Inc., its Dominion
Homes Financial Services Ltd.financing subsidiary, Dominion's
appraisal company, Valuation Resources Inc., and charitable
organizations including California-based Nehemiah Corp. of
America.
The plaintiffs are Clifford and Shannon Rece and Christopher and
Amanda Endl.
DOW CHEMICAL: To Appeal Ruling on $554M Rocky Flats Litigation
--------------------------------------------------------------
Dow Chemical Co. plans to appeal a verdict saying it negligently
allowed plutonium from the former Rocky Flats nuclear weapons
plant to contaminate thousands of homes and businesses near
Denver, according to the American Chemical Society.
The company contends that the judge improperly instructed the
jury, there was no detriment to the property values in the area,
and scientific studies have shown no harm to residents' health
or property.
"There was simply no merit to the property owners' claims,"
Charles J. Kalil, corporate vice president and general counsel
for Dow said. He said the company operated in the area from
1952 through 1975 in compliance of then-applicable standards.
"It is unfair and improper to impose today's standards on
operations that occurred over 30 years ago," he said.
According to the report, although the Department of Energy was
not named as a defendant in the class action, the government
will be responsible for paying unfavorable jury verdict because
the companies operated Rocky Flats as indemnified government
contractors.
Dow Chemical and Rockwell International Corp., which was
recently ordered to pay $553.9 million in damages to the
homeowners, filed a sealed motion seeking to interview a juror
who walked out in tears during deliberations (Class Action
Reporter, Feb. 21, 2006). According to the report, the Dow and
Rockwell lawyers have alleged that other jurors may have bullied
the woman, and perhaps others, into changing their votes.
Lawyers for Rocky Flats residents have until March 3 to respond
to the challenge.
The federal jury has recommended that Dow Chemical Co. and the
former Rockwell International Corp. pay $553.9 million to
property owners whose lands were contaminated by plutonium from
the former Rocky Flats nuclear weapons plant, according to
Associated Press (Class Action Reporter, Feb. 16, 2006). The
lawsuit was filed on behalf of 13,000 people.
The ruling includes punitive damages of $110.8 million against
Dow Chemical and $89.4 million against Rockwell, and some $352
million in actual damages. There was no immediate word on an
appeal, the report said.
Case Background
The trial of the $500 million class action, filed 15 years ago,
began in Oct. 2005. Residents who owned property near the site,
claimed that Dow Chemical Co., which operated the site from the
1950s through 1975, and Rockwell International Corp., which took
over in 1975 and operated the plant until it was shut down in
1989, improperly stored or otherwise mishandled plutonium-laced
waste, resulting in contamination of soil and groundwater.
According to the suit, both firms operated the plant under a
Department of Energy (DOE) contract (Class Action Reporter, Oct.
11, 2005).
Those residents, who are the named plaintiffs in the suit,
claimed that large fires at the plant and windstorms and other
natural events helped to spread the waste outside the plant's
boundaries. That contamination, plus what the property owners
said was a stigma attached to houses near the plant, resulted in
plummeting property values (Class Action Reporter, Oct. 11,
2005). They also contend that Dow, Rockwell and the DOE have
covered up how harmful the plant really was.
Much of the case centers on an FBI raid at the site in the
summer of 1989. Rockwell, which ran Rocky Flats at the time,
pleaded guilty in 1992 to 10 federal environmental crimes and
paid a fine of $18.5 million.
Built in the 1950s during the Cold War era, the plant has been
shut down. Its 6,500-acre site underwent environmental
cleansing and is slated to become a wildlife refuge.
The suit was styled, "Cook, et al v. Rockwell Intl. Corp., Case
No. 1:90-cv-00181-JLK," filed in the U.S. District Court for the
District of Colorado, under Judge John L. Kane. Representing the
Plaintiff/s are:
(1) Gary B. Blum of Silver & DeBoskey, P.C., 1801 York St.,
Denver, CO 80206, U.S.A, Phone: 303-399-3000, Fax: 303-
399-2650, E-mail: blumg@s-d.com;
(2) Stanley M. Chesley of Waite, Schneider, Bayless &
Chesley Co., L.P.A., 1513 Fourth and Vine Tower, One
West Fourth St., Cincinnati, OH 45202, U.S.A, Phone:
513-621-0268;
(3) Merrill Gene Davidoff, Jennifer E. MacNaughton, Peter
B. Nordberg, Ellen T. Noteware, Bernadette M. Rappold,
Stanley B. Siegel and David F. Sorensen of Berger &
Montague, P.C., 1622 Locust St., Philadelphia, PA
19103, U.S.A, Phone: 215-875-3084, 215-875-3000 and
215-875-3051, Fax: 215-875-4671, 215-875-4604 and 215-
875-5707, E-mail: mdavidoff@bm.net,
jmacnaughton@bm.net, pnordberg@bm.net,
enoteware@bm.net and dsorensen@bm.net;
(4) Bruce H. DeBoskey of Silver & Deboskey, P.C., 1801 York
St. #700, Denver, CO 80206-5607, U.S.A, Phone: 303-399
-3000;
(5) Kenneth A. Jacobsen of Jacobsen Law Offices, LLC, 12
Orchard Lane, Wallingford, PA 19086, U.S.A., Phone:
610-566-7930, Fax: 610-566-7940;
(6) David Evans Kreutzer of Colorado Department of Law,
1525 Sherman St., 5th Floor, Denver, CO 80203, U.S.A,
Phone: 303-866-5667, Fax: 303-866-3558, E-mail:
david.kreutzer@state.co.us;
(7) Louise M. Roselle of Waite, Schneider, Bayless &
Chesley Co., L.P.A., 1513 Fourth and Vine Tower, One
West Fourth St., Cincinnati, OH 45202, U.S.A, Phone:
513-621-0267, Fax: 513-381-2375, E-mail:
louiseroselle@wsbclaw.com;
(8) Clisham, Satriana & Biscan, LLC, 1512 Larimer St., #400
Denver, CO 80202, U.S.A, Phone: 303-468-5403, Fax: 303-
942-7290, E-mail: satrianad@csbattorneys.com;
(9) Holly Brons Shook of Silver & DeBoskey, P.C., 1801 York
St., Denver, CO 80206, U.S.A, Phone: 303-399-3000, Fax:
303-399-2650, E-mail: shookh@s-d.com;
(10) Ronald Simon of Simon & Associates, 1707 N. St., N.W.
Washington, DC 20036, U.S.A, Phone: 202-429-0094, Fax:
202-429-0075, E-mail: ron@1707law.com; and
(11) John David Stoner of Chimicles & Tikellis, L.L.P., 361
West Lancaster Ave., One Haverford Centre, Haverford,
PA 19041-0100, U.S.A
Representing the Defendant/s are:
(i) Joseph John Bronesky and Christopher Lane of Sherman &
Howard, L.L.C.- 17th St., Denver, CO, U.S.
District Court Box 12, 633 Seventeenth St., #3000
Denver, CO 80202, U.S.A, Phone: 303-299-8450 and 303-
299-8422, Fax: 303-298-0949 and 303-298-0940, E-mail:
jbronesk@sah.com and clane@sah.com;
(ii) Wendy S. White, Timothy P. Brooks, Patrick M. Hanlon,
Amy Horton, Franklin D. Kramer and Edward J. Naughton
Of Goodwin Procter, LLP-DC, 1800 Massachusetts Ave.,
N.W. #800, Washington, DC 20036, U.S.A, Phone: 202-
828-2000, Fax: 828-2000;
(iii) Michael K. Isenman of Goodwin Procter, LLP-DC, 901 New
York Ave., NW #700, Washington, DC 20001, U.S.A, Phone:
202-346-4000, Fax: 202-346-4444, E-mail:
misenman@goodwinprocter.com;
(iv) Lester C. Houtz of Bartlit, Beck, Herman, Palenchar &
Scott-Colorado, 1899 Wynkoop St., #800 Denver, CO
80202, U.S.A., Phone: 303-592-3177, Fax: 303-3140, E-
mail: lester.houtz@bartlit-beck.com;
(v) Douglas J. Kurtenbach, S. Jonathan Silverman, Mark S.
Lillie and David M. Bernick of Kirkland & Ellis, LLP-
Illinois, 200 East, Randolph Drive, #5400 Chicago, IL
60601, U.S.A, Phone: 312-861-2225, 312-861-2089 and
312-861-2248, Fax: 861-2200, 312-660-0452 and 312-861-
2200, E-mail: mlillie@kirkland.com and
dbernick@kirkland.com;
(vi) Douglas M. Poland of LaFollette, Godfrey & Kahn, P.O.
Box 2719, One East Main St., Madison, WI 53703-2719,
U.S.A, Phone: 608-257-3911, Fax: 608-257-0609, E-mail:
dpoland@gklaw.com; and
(vii) Louis W. Pribila of Dow Chemical Company, 2030 Dow
Center, Midland, MI 48674, U.S.A, Phone: 517-638-9511,
Fax: 638-9410.
ELECTRONIC DATA: Securities Settlement Hearing Set March 7, 2006
----------------------------------------------------------------
The U.S. District Court for the Eastern District of Texas, Tyler
Division will hold a fairness hearing in the matter: "Electronic
Data Systems (EDS) Corporation Securities Litigation, CASE NO.
6:03-MD-1512 + LEAD CASE 6:03-CV-110."
The case was brought on behalf of all persons or entities that
purchased or otherwise acquired the securities of the Company
between February 7, 2001 through and including September 18,
2002.
The hearing will be held on March 7, 2006 at 10:00 a.m., before
the Honorable Leonard Davis, in the U.S. District Courthouse,
Eastern District of Texas, Tyler Division, located at 211 W.
Ferguson, Tyler, Texas 75702, to determine whether the proposed
settlement of the Litigation on the terms and conditions
provided for in the Stipulation is fair, reasonable and adequate
to the Class and should be approved by the Court; whether a
Judgment should be entered herein; whether the proposed Plan of
Allocation should be approved; and to determine the amount of
fees and expenses that should be awarded.
Deadline for submitting a proof of claim is on April 19, 2006.
Any objections to the settlement must be filed by February 21,
2006.
For more details, contact Electronic Data Systems (EDS)
Corporation Securities Litigation c/o Poorman-Douglas
Corporation, Claims Administrator, P.O. Box 3560, Portland, OR
97208-3560, Phone: 888-230-9850, Fax: 503-350-5890, E-mail:
edssecuritieslitigation@poorman-douglas.com, Web site:
http://www.edssecuritieslitigation.com;Bernstein Litowitz
Berger & Grossmann LLP, 12481 High Bluff Drive, Third Floor, San
Diego, CA 92130, Web site: http://www.blbglaw.com;and
Lowenstein Sandler P.C., 65 Livingston Avenue, Roseland, NJ
07068-1791, Web site: http://www.lowenstein.com.
EMERSON RADIO: Faces Shareholder Class, Derivative Suits in Del.
----------------------------------------------------------------
Emerson Radio Corporation was named as a defendant in a putative
class action and derivative complaint filed in the Court of
Chancery of the State of Delaware, Civil Action No. 1845-N.
On December 15, 2005, Jeffrey S. Abraham, as Trustee of the Law
Offices of Jeffrey S. Abraham Money Purchase Plan dated December
31, 1999 F/B/O Jeffrey S. Abraham (Plaintiff), on behalf of
himself and all common shareholders of Sport Supply Group, Inc.,
filed the lawsuit against Emerson Radio Corporation, Geoffrey P.
Jurick, Arthur J. Coerver, Harvey Rothenberg, Collegiate
Pacific, Inc. and Michael J. Blumenfeld and nominal defendant
Sport Supply.
The complaint asserts two causes of action: The first cause of
action is a purported class claim against the Company and Mr.
Jurick for breach of fiduciary duty to the minority shareholders
of Sport Supply by selling the Company's controlling stake in
Sport Supply to Collegiate at a premium, allegedly knowing that
Collegiate intended to use for its own benefit the proprietary
assets of Sport Supply. The second cause of action asserts a
purported derivative claim against Collegiate and Messrs.
Coerver and Rothenberg for alleged breaches of fiduciary duty
and unjust enrichment.
Plaintiff alleges that in connection with the purchase of the
Company's controlling block of Sport Supply's stock, Collegiate
and Messrs. Coerver and Rothenberg breached their fiduciary
duties of loyalty and good faith to Sport Supply's shareholders
by transferring assets and technology to Collegiate without
compensation to Sport Supply's shareholders. Plaintiff further
alleges that Collegiate was unjustly enriched through the use
and transfer of Sport Supply's assets.
The defendants are currently required to respond to the
complaint on or before March 15, 2006. The Company and Mr.
Jurick believe that the claims against them are without merit
and intend to defend this lawsuit vigorously. Based on the
expectation that the defendants will prevail in their defense,
no loss has been accrued in this matter as of December 31, 2005.
EN POINTE: Calif. Court Grants Class Status to Securities Suit
--------------------------------------------------------------
The U.S. District Court for the Southern District of California
granted class certification for the securities class action
filed against En Pointe Technologies, Inc., five of its
directors, one current officer, and certain former officers
along with seven unrelated parties.
The suit alleges that the defendants made misrepresentations
regarding the Company and that the individual defendants
improperly benefited from the sales of shares of the Company's
common stock and seeking a recovery by our stockholders of the
damages sustained as a result of such activities. The suit,
which was filed is styled, "In Re En Pointe Technologies
Securities Litigation, Case No. 01CV0205L (CGA))."
In an amended complaint, the plaintiffs limited their claims the
Company and its Chief Executive Officer. In response to a
motion to dismiss, the Court further limited plaintiffs' claims
to allegations of market manipulation and insider trading. The
En Pointe defendants have answered the amended and limited
complaint.
The suit is styled, "In Re En Pointe Technologies Securities
Litigation, Case No. 01CV0205L (CGA))," filed in the U.S.
District Court for the Southern District of California.
Plaintiff firms involved in this litigation are:
(1) Finkelstein, Thompson & Loughran, 1050 30th Street, NW,
Washington, DC, 20007, Phone: 202.337.8000, Fax:
202.337.8090, E-mail: contact@ftllaw.com
(2) Krause & Kalfayan, 1010 Second Avenue, Suite 1750, San
Diego, CA, 92101, Phone: 619.232.0331, Fax:
619.232.4019
(3) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(4) Wechsler Harwood, LLP, 488 Madison Avenue, 8th Floor,
New York, NY, 10022, Phone: 212.935.7400, E-mail:
info@whhf.com
(5) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala
Cynwyd, PA, 19004, Phone: 610.668.7987, Fax:
610.660.0450, E-mail: esmith@Brodsky-Smith.com
EN POINTE: Plaintiffs Proceed with Stock Suit in Calif. Court
-------------------------------------------------------------
Plaintiffs in the case, captioned, "Crosby V. En Pointe
Technologies, et al., Case No. GIC 759905," which was filed in
Superior Court of California, County of San Diego, recently
elected to proceed with their case despite a previous
stipulation to put it on hold.
In December 2000, the Company and certain current and former
directors and officers along with several unrelated parties were
named in a complaint alleging that the defendants made
misrepresentations regarding the Company and that the individual
defendants improperly benefited from the sales of shares of the
Company's common stock and seeking a recovery by its
stockholders of the damages sustained as a result of such
activities.
The parties previously stipulated to a stay of the case pending
the class action, "In Re En Pointe Technologies Securities
Litigation, Case No. 01CV0205L (CGA))." However, plaintiffs
recently elected to proceed with their case. The Court recently
set a trial date of June 2006.
FLORIDA: Local Attorney Plans Lawsuit Over St. Lucie County Jail
----------------------------------------------------------------
Florida attorney Bob Watson is set to announce the filing of a
state class-action lawsuit against the St. Lucie County Board of
Commissioners and St. Lucie County Sheriff Ken Mascara. The
suit will allege that the conditions at the county jail violate
inmates' civil rights, The Fort Pierce Tribune reports.
Mr. Watson and Public Defender Diamond Litty plan to make the
announcement about the suit, which alleges the overcrowded
conditions at the jail create a dangerous situation for inmates
and guards, at the St. Lucie County Jail in Fort Pierce.
FORTUNE BRANDS: Faces Consolidated Consumer Complaint in Ohio
-------------------------------------------------------------
Fortune Brands, Inc., its Spirits and Wine business and numerous
other manufacturers and importers of beer, spirits and wine are
defendants in a purported consolidated class action seeking
damages and injunctive relief regarding alleged marketing of
beverage alcohol to people under the legal purchase age for
alcohol.
The lawsuit, styled, "Eisenberg v. Anheuser-Busch Inc., et al.,"
was filed September 15, 2004 in the U.S. District Court for the
Northern District of Ohio. It alleges that the defendants have
engaged in deceptive marketing practices and schemes targeted at
people under the legal purchase age, negligently marketed their
products to the underage and fraudulently concealed their
alleged misconduct. Plaintiffs seek the disgorgement of
unspecified profits earned by the Company's Spirits and Wine
business in the past and other unspecified damages and equitable
relief. Other purported class actions are pending against other
producers of alcoholic beverages for alleged marketing to
persons under the legal drinking age.
The Company denies that its Spirits and Wine business markets
beverage alcohol products to persons under the legal purchase
age and denies that the advertising practices of its Spirits and
Wine business are illegal or in violation of industry codes
concerning responsible marketing practices. It is not possible
to predict the outcome of this action or give an estimate of a
possible loss or range of loss, if any that may result from this
action. The Company believes, however, and counsel has advised
that the Company and its Spirits and Wine business have
meritorious defenses against plaintiffs' claims. The Company is
vigorously contesting this action and believes that ultimately
it will not have a material adverse effect on the results of
operations, cash flow and financial condition of the Company.
The suit is styled, "Eisenberg et al v. Anheuser-Busch, Inc. et
al., Case No. 1:04-cv-01081-DCN," filed in the U.S. District
Court for the Northern District of Ohio under Judge Donald C.
Nugent. Representing the Plaintiff/s are, Timothy D. Battin
Staus & Boies, LLP, 10513 Braddock Road, Fairfax, VA 22032,
Phone: 703-764-8700, Fax: 703-764-8704; and John S. Chapman, 300
Hoyt Block, 700 West St. Clair Avenue, Cleveland, OH 44113,
Phone: 216-241-8172, Fax: 216-241-8175, E-mail:
jchapman@jscltd.com.
Representing the Defendant/s are, Robert N. Rapp of Calfee,
Halter & Griswold, Ste. 1400, 800 Superior Avenue, Cleveland, OH
44114, Phone: 216-622-8288, Fax: 216-241-0816, E-mail:
rrapp@calfee.com; and David S. Cupps and Anthony J. O'Malley of
Vorys, Sater, Seymour & Pease, Phone: 614-464-6400 and
216-479-6159, Fax: 614-464-6350 and 216-479-6060, E-mail:
dscupps@vssp.com and ajomalley@vssp.com.
GENERAL MOTORS: Hundreds Object to Union-led Health Care Deal
-------------------------------------------------------------
More than a thousand people objected to a health care coverage
deal between General Motors Corp. and the United Auto Workers,
according to WZZM 13.
By the Feb. 13 deadline to file objections, records in the
federal court of Detroit, Michigan showed 1,265 people rejected
the agreement that would see hourly retirees paying up to $752 a
year in health care premiums and deductibles.
A former GM employee Leroy McKnight -- who wants to replace the
current representatives for approximately 500,000 retirees and
their spouses in the class action -- encouraged people to file
objections. He was recently initially denied by U.S. District
Judge Robert Cleland. But his attorney, Mark Baumkel, has said
he's considering filing an appeal of the judge's ruling.
Previously, the Company and the UAW jointly filed a motion in
Michigan federal court that asks a judge to approve their recent
healthcare settlement, which would curtail benefits for 500,000
retirees, surviving spouses and dependents. The request comes
in response to a lawsuit filed last October 18, 2005 by the UAW
and several retirees, which asks to be recognized as a class
action and challenges GM's assertion that it has the right to
change or terminate retiree benefits unilaterally. In additon,
GM consents in the court filings to UAW's petition to be
recognized as a class, (Class Action Reporter, Dec. 20, 2005).
The suit was styled, "United Automobile, Aerospace and
Agricultural Implement Workers of America et al v. General
Motors Corporation, Case No. 2:05-cv-73991-RHC-VMM," filed in
the U.S. District Court for the Eastern District of Michigan,
under Judge Robert H. Cleland with referral to Judge Virginia M.
Morgan. Representing the Plaintiff/s are, William T. Payne,
1007 Mt. Royal Blvd., Pittsburgh, PA 15223, US, Phone:
412-492-5797, Fax: 412-492-8978, E-mail: wpayne@stargate.net;
and Michael F. Saggau and Daniel W. Sherrick of International
Union, UAW (Detroit), 8000 E. Jefferson Ave., Detroit, MI 48214,
US, Phone: 313-926-5216, Fax: 313-926-5240, E-mail:
msaggau@uaw.net.
Representing the Defendant/s are, Richard C. Godfrey of Kirkland
& Ellis (Chicago), 200 E. Randolph Drive, Suite 6000, Chicago,
IL 60601, Phone: 312-861-2391; and Francis S. Jaworski and
Edward W. Risko of General Motors Legal Staff, 400 Renaissance
Center, P.O. Box 400, Detroit, MI 48265-4000.
For more details, contact Mark S. Baumkel, Bingham Office Park,
30200 Telegraph Rd., Ste. 200, Bingham Farms, MI 48025, Phone:
(800) 288-9080 ext.211, Fax: (248) 642-6661, E-mail:
m.baumkel@p-ppclawfirm.org.
GILMAN & CIOCIA: Del. Court Mulls Investor Fraud Suit Dismissal
---------------------------------------------------------------
The Court of Chancery for the State of Delaware has yet to rule
on the dismissal of the shareholder class action and derivative
complaint filed against Gilman & Ciocia, Inc., and certain of
its officers and directors.
The suit was styled "Gary Kosseff, Plaintiff, against James
Ciocia, Thomas Povinelli, Michael P. Ryan, Kathryn Travis, Seth
A. Akabas, Louis P. Karol, Edward H. Cohen, Steven Gilbert and
Doreen Biebusch, Defendants and Gilman & Ciocia, Inc., Nominal
Defendant, Civil Action No. 188-N."
The nature of the action is that the Company, its Board of
Directors and its management, breached their fiduciary duty of
loyalty in connection with the sale of the offices to Pinnacle
Taxx Advisors LLC. The action alleges that the sale to Pinnacle
was for inadequate consideration and without a fairness opinion
by independent financial advisors, without independent legal
advice and without a thorough evaluation and vote by an
independent committee of the Board of Directors.
The action seeks:
(1) a declaration that the Company, its Board of Directors
and its management breached their fiduciary duty and
other duties to the plaintiff and to the other members
of the purported class;
(2) a rescission of the Asset Purchase Agreement;
(3) unspecified monetary damages; and
(4) an award to the plaintiff of costs and disbursements,
including reasonable legal, expert and accountants
fees.
On March 15, 2004, counsel for the Company and for all
defendants filed a motion to dismiss the lawsuit. On June 18,
2004, counsel for the plaintiff filed an Amended Complaint.
On July 12, 2004, counsel for the Company and for all defendants
filed a motion to dismiss the Amended Complaint. On October 27,
2004, counsel for the plaintiff filed a memorandum of law in
opposition to defendant's motion to dismiss the Amended
Complaint. On March 8, 2005, oral argument was heard on the
motion to dismiss, and on July 29, 2005 the case Master
delivered his draft report denying the motion. The parties have
briefed exceptions to the report, after review of which the
Master will deliver his final report.
LEVI STRAUSS: Calif. Securities Fraud Suit Awaits Court Ruling
--------------------------------------------------------------
The U.S. District Court for the Northern District of California
is yet to issue a ruling in the consolidated securities class
action filed against Levi Strauss & Co, in connection with its
April 6,2001 and June 16,2003 registered bond offerings.
The suit, styled, "In re Levi Strauss & Co., Securities
Litigation, Case No. C-03-05605 RMW," also names as defendants:
(1) the Company's chief executive officer,
(2) its former chief financial officer,
(3) its corporate controller,
(4) its directors and
(5) its underwriters
The court appointed a lead plaintiff and approved the selection
of lead counsel. The action purports to be brought on behalf of
purchasers of the Company's bonds who made purchases pursuant or
traceable to the Company's s prospectuses dated March 8, 2001 or
April 28, 2003, or who purchased the Company's bonds in the open
market from January 10, 2001 to October 9, 2003.
The action makes claims under the federal securities laws,
including Sections 11 and 15 of the Securities Act of 1933, and
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
relating to the Company's SEC filings and other public
statements.
Specifically, the action alleges that certain of the Company's
financial statements and other public statements during this
period materially overstated its net income and other financial
results and were otherwise false and misleading, and that the
Company's public disclosures omitted to state that it made
reserve adjustments that plaintiffs allege were improper.
Plaintiffs contend that these statements and omissions caused
the trading price of the Company's bonds to be artificially
inflated. Plaintiffs seek compensatory damages as well as other
relief.
On July 15, 2004, the Company filed a motion to dismiss this
action. The matter came before the court on October 15, 2004,
and, after oral arguments had concluded, the court took the
matter under submission. The court has not yet issued a ruling.
The suit is styled, "In re Levi Strauss & Co., Securities
Litigation, Case No. 5:03-cv-05605-RMW," filed in the U.S.
District Court for the Northern District of California under
Judge Ronald M. Whyte with referral to Judge Howard R. Lloyd.
Representing the Plaintiff/s are, Robert A. Jigarjian of Green
Welling, LLP, 235 Pine Street, 15th Floor, San Francisco, CA
94104, Phone: 415-477-6700, Fax: 415-477-6710, E-mail:
CAND.USCOURTS@CLASSCOUNSEL.COM; Robert Gans of Bernstein
Litowitz Berger & Grossman, LLP, 12481 High Bluff Drive, Suite
300, San Diego, CA 92130, Phone: 858-793-0070, E-mail:
robert@blbglaw.com; and Jill Manning of Kirby McInerney &
Squire, LLP, 7665 Redwood Blvd., Suite 200, Novato, CA 94945,
Phone: (415) 898-8160, E-mail: jmanning@kmslaw.com.
Representing the Defendant/s are, Erin E. Schneider and Austin
Van Schwing of Gibson, Dunn & Crutcher, LLP, One Montgomery
Street, 31st Floor, San Francisco, CA 94104, Phone:
(415) 393-8276 and 415-393-8210, Fax: 415-374-8458, E-mail:
eschneider@gibsondunn.com and aschwing@gibsondunn.com.
NATURAL GAS: Units Face Suit Over Louisiana Ground Contamination
---------------------------------------------------------------
Two subsidiaries of Natural Gas Systems, Inc., were named as two
of the 26 defendants in a class action filed in the Fifth
Judicial District Court, Richland Parish, Louisiana, over
alleged contamination of landowners' property.
On November 17, 2005, two of the Company's subsidiaries, Arkla
Petroleum L.L.C., and NGS Sub. Corporation, were named as
defendants in the suit. The Company was not served with the
lawsuit until February 2006.
The plaintiffs claim to be landowners whose property (including
the soil, surface water, and groundwater) has been contaminated
by oil and gas exploration, production and development
activities conducted by the defendants on the plaintiffs'
property and adjoining land, since the 1930s (including
activities by Arkla as operator of the Delhi Field subsequent to
Arkla's formation in 2002 and our acquisition of Arkla in 2003,
and activities since NGS Sub.'s acquisition of a 100% working
interest in the Delhi Field in 2003). The plaintiffs claim that
the defendants knew of the alleged dangerous nature of the
contamination and actively concealed it rather than remedy the
problem.
The plaintiffs are seeking unspecified compensatory damages and
punitive damages, as well as an order that the defendants
restore the property and prevent further contamination. The
Company's ultimate exposure related to this lawsuit is not
currently determinable, but could, if adversely determined, have
a material adverse effect on our financial condition. The costs
to defend this action could also have a material adverse effect
on the Company's financial condition.
OIL COMPANIES: Face Suit for Supporting OPEC's Energy Scheme
------------------------------------------------------------
U.S. law firm Osen & Associate has filed a price fixing suit
against several non-OPEC countries, as well as their state-owned
oil companies, according to DowJones Select.
In the class action filed with the U.S. District court in
Florida last month, the law firm alleged that these companies
violated U.S. antitrust laws by fixing world crude market prices
by cutting output through their state-owned companies in late
2001 and early 2002. The suit alleged that the scheme was done
in conspiracy with OPEC. Osen said it may take up to a year
before an initial hearing.
The defendants are Norway, Oman, Mexico, Angola, Statoil ASA
(STO), Norsk Hydro ASA (NHY), Pemex and Sociedade Nacional de
Combustiveis de Angola, or Sonangol. The court has yet to award
it class action status to the case. The suit did not specify
the amount of compensation being demanded. None of the
countries' ministries of foreign affairs said they had been
served official notice of the suit, according to the report.
The suit alleged that as a result of the decision of OPEC, which
was supported by several non-OPEC countries, plaintiffs were
forced to purchase gasoline and other good and services at
higher prices.
Dow Jones said the case is similar to one brought by an Alabama
gas-station owner against OPEC in 2000 for oil-price fixing,
which was subsequently turned down by the U.S. Supreme Court.
The rejection follows similar actions by a federal trial judge
and an appeals court panel, which ruled that Vienna-based OPEC
couldn't be sued in a U.S. court because of Austrian law
provisions specific to OPEC.
Osen & Associate on the Net: http://www.osen.us/about-us-
german.php.
ONSPAN NETWORKING: Faces Amended Securities Fraud Suit in Okla.
---------------------------------------------------------------
Onspan Networking, Inc. and certain of its officers are facing
an amended securities class action in U.S. District Court for
the Northern District of Oklahoma, captioned, "Clark, et al. v.
OnSpan Networking, et al., Case No. 4:03-cv-00289-TCK-SAJ."
On March 28, 2003, Plaintiffs Richard Clark and Joel Holt filed
a petition in the Tulsa County District Court alleging claims
against the Company and its President, CEO and Director, Herbert
Tabin, for, among other things, fraud, breach of fiduciary duty,
and breach of contract.
On May 1, 2003, the Company, along with Mr. Tabin, removed this
action to the U.S. District Court for the Northern District of
Oklahoma and filed a Motion to Dismiss all claims. On October
15, 2003, Plaintiffs withdrew their claims and filed an Amended
Complaint asserting claims against Mr. Tabin, both individually
and derivatively, on behalf of the Company. Plaintiffs also
asserted claims against the Company. Plaintiffs sought damages
in the amount of $300,000 each, as well as punitive damages.
The Company retained independent counsel to conduct an
investigation into the allegations by Plaintiffs made
derivatively on behalf of the Company and, based on that
investigation, determined that no action on behalf of the
Company was warranted. Defendants also filed a Motion to
Dismiss all of the allegations in the Amended Complaint.
On October 19, 2004, Plaintiffs filed a Second Amended Complaint
in which they dropped the Company as a defendant and dropped the
derivative shareholder claims. Plaintiffs added Gary Schultheis
as an individual defendant. The Second Amended Complaint
alleges claims against Mr. Tabin and Mr. Schultheis
individually. Defendants filed Motions to Dismiss the Second
Amended Complaint, which was denied by the Court.
On December 2, 2005, Plaintiffs filed a Third Amended Complaint
alleging claims against Mr. Tabin and Mr. Schultheis
individually for breach of contract, breach of fiduciary duty,
civil conspiracy, and violations of Oklahoma securities laws.
Plaintiffs seek damages in the amount of $300,000 each, plus the
amount of lost opportunity to gain on their investments, less
the value of their investments at the time of trial, along with
interest costs, attorneys' fees and punitive damages.
Plaintiffs also seek rescission of their investments in the
Company.
The Company has agreed to indemnify the directors against losses
from litigation and has provided for any expected losses
resulting from various legal proceedings.
The suit is styled, "Clark, et al. v. OnSpan Networking, et al.,
Case No. 4:03-cv-00289-TCK-SAJ," filed in the U.S. District
Court for the Northern District of Oklahoma under Judge Terence
Kern with referral to Judge Sam A. Joyner. Representing the
Plaintiffs/s are, Marc Francis Conley and Ada L. Mitrani of Mark
Conley Law Office, 100 W. 5th St., Ste. 610, Tulsa, OK 74103-
4289, Phone: 918-585-8877, Fax: 918-585-5102, E-mail:
marcfconley@aol.com; and Charles Michael Copeland and James E.
Weger of Jones Gotcher & Bogan, 15 E. 5TH ST., STE. 3800, TULSA,
OK 74103-4309, Phone: 918-581-8200, Fax: 918-583-1189, E-mail:
mcopeland@jonesgotcher.com and jweger@jonesgotcher.com.
Representing the Defendant/s are:
(1) Heather Leanne Cupp and Terrance Lane Wilson of Hall
Estill Hardwick Gable Golden & Nelson (Tulsa), 320 S.
BOSTON, STE. 400, TULSA, OK 74103-3708, Phone: 918-594-
0422 and 918-594-0470, Fax: 918-594-0505, E-mail:
hcupp@hallestill.com and lwilson@hallestill.com;
(2) Glenn Reuben Davis and Garry Michael Gaskins, II of
Boone Smith Davis Hurst & Dickman, 100 W. 5TH ST., STE.
500, TULSA, OK 74103, Phone: 918-587-0000, Fax: 918-
599-9317 and 918-599-9316, E-mail:
rdavis@boonesmith.com and ggaskins@boonesmith.com
(3) Jennifer K Van Zant of Brooks Pierce McLendon Humphrey
& Leonard, LLP, P.O. Box 26000, Greensboro, NC 27401,
Phone: 336-271-3132, Fax: 336-378-1001, E-mail:
jvanzant@brookspierce.com
PRESTIGE BRANDS: Plans Dismissal Motion V. N.Y. Securities Suit
---------------------------------------------------------------
Prestige Brands International, Inc., which faces a consolidated
securities class action filed in the U.S. District Court for the
Southern District of New York reports that it intends to files a
motion for dismissal against the pending court case.
The Company and certain of its officers and directors are
defendants in a consolidated putative securities class action
filed in the U.S. District Court for the Southern District of
New York. The first of the six consolidated cases was filed on
August 3, 2005. Plaintiffs purport to represent a class of
shareholders of the Company who purchased shares between
February 9, 2005 through November 15, 2005.
Plaintiffs also name as defendants the underwriters in the
Company's initial public offering and a private equity fund that
was a selling shareholder in the offering. The district court
has appointed a Lead Plaintiff. On December 23, 2005, the Lead
Plaintiff filed a Consolidated Class Action Complaint, which
asserts claims under Sections 11, 12(a)(2), and 15 of the
Securities Act of 1933 and Sections 10(b), 20(a), and 20A of the
Securities Exchange Act of 1934.
The Lead Plaintiff generally alleges that the Company issued a
series of materially false and misleading statements in
connection with its initial public offering and thereafter in
regard to these areas:
(1) the accounting issues described in the Company's press
release issued on or about November 15, 2005; and
(2) the alleged failure to disclose that demand for certain
of the Company's products was declining and that the
Company was planning to withdraw several products from
the market.
Plaintiffs seek an unspecified amount of damages. The Company
intends to file a motion to dismiss the Consolidated Class
Action Complaint on or about February 21, 2006. The Company's
management believes the allegations to be unfounded, will
vigorously pursue its defenses, and cannot reasonably estimate
the potential range of loss, if any.
The suit is styled, "In re Prestige Brands Holdings, Inc.
Securities Litigation, Case No. 7:05-cv-06924-CLB," filed in the
U.S. District Court for the Southern District of New York under
Judge Charles L. Brieant. Representing the Plaintiff/s are:
(1) Samuel Howard Rudman and Mario Alba, Jr., of Lerach,
Coughlin, Stoia, Geller, Rudman & Robbins, LLP (LIs),
50 South Service Road, Suite 200, Melville, NY 11747,
Phone: 631-367-7100, Fax: 631-367-1173, E-mail:
srudman@lerachlaw.com and malba@lerachlaw.com
(2) Laurence Paskowitz of Paskowitz & Associates, 60 East
42nd Street, 46th Floor, New York, NY 10165, Phone:
(212)-685-0969, Fax: (212)-685-2306, E-mail:
classattorney@aol.com
(4) Peter Edward Seidman of Milberg Weiss Bershad &
Schulman LLP (NYC), One Pennsylvania Plaza, New York,
NY 10119, Phone: (212) 613-5625, Fax: (212) 868-1229,
E-mail: pseidman@milberg.com
(5) Evan J Smith of Brodsky & Smith, L.L.C., 240 Mineola
Blvd., Mineola, NY 11501, Phone: 516-741-4977, E-mail:
esmith@brodsky-smith.com
(6) William J. Ban of Barrack, Rodos & Bacine, 3300 Two
Commerce Square, 2001 Market Street, Philadelphia, PA
19103, Phone: (215) 963-0600, Fax: (215) 963-0838, E-
mail: wban@barrack.com.
Representing the Defendant/s are:
(i) Todd R. David and Scott P. Hilsen of Alston & Bird,
L.L.P., One Atlantic Center, 1201 West Peachtree
Street, Atlanta, GA 30309-3424, Phone: (404) 881-7357,
Fax: (404) 527-8717
(ii) John Gueli of Shearman & Sterling LLP (New York), 599
Lexington Avenue, New York, NY 10022, Phone: 212 848-
4744, Fax: 212 848-7179, E-mail: jgueli@shearman.com
(iii) Jeff G. Hammel of Latham and Watkins (NY), 885 Third
Avenue, New York, NY 10022, Phone: (212) 906-1200, Fax:
(212)-751-4864, E-mail: jeff.hammel@lw.com
PRIMEDEX HEALTH: Discovery Begins in DVI Securities Suit in Pa.
---------------------------------------------------------------
Primedex Health Systems, Inc. reports that discovery just begun
in the securities class action styled "In Re DVI, Inc.
Securities Litigation, Case No. 2:03-CV-05336-LDD," filed in the
U.S. District Court for the Eastern District of Pennsylvania.
The class action securities fraud case was filed under Section
10(b) of the Securities Exchange Act and Rule 10b-5. It was
brought by shareholders of DVI, Inc., one of the Company's
former major lenders, against DVI officers and directors and a
number of third party defendants, including the Company. The
case arose from bankruptcy proceedings instituted by DVI in
August 2003. The Company was named as a defendant in the Third
Amended Complaint filed in July 2004.
The putative plaintiff class consists of those persons who
purchased or otherwise acquired DVI, Inc. securities between
August of 1999 and August of 2003. Plaintiffs allege that in
2000, the Company acquired from a third party one or more
unprofitable imaging centers in order to help DVI conceal the
fact that existing DVI loans on the centers were delinquent.
Plaintiffs argue that the Company should have known that DVI was
engaging in fraudulent practices to conceal losses, and its
alleged "lack of due diligence" in investigating DVI's finances
in the course of these acquisitions amounted to complicity in
deceptive and misleading practices.
The Company has answered the complaint. The matter is still in
its initial stages with discovery just beginning. We intend to
vigorously contest the allegations.
The suit is styled, "In re: DVI Inc. Securities Class-Action
Litigation, Case No. 2:03-CV-05336-LDD," filed in the U.S.
District Court for the Eastern District of Pennsylvania under
Judge Legrome Davis. Representing the Plaintiff/s are, Clinton
A. Krislov and Michael R. Karnuth of Krislov & Associates, Ltd.,
20 North Wacker Drive, Chicago, IL, 60606, Phone: 312-606-0500,
Fax: 312-606-0207, E-mail: clint@krislovlaw.com and
mike@krislovlaw.com; and Mary Katherine Meermans of Chimicles &
Tikellis, LLP, 361 West Lancaster Avenue, Haverford, PA 19041,
Phone: 610-642-8500, E-mail: kathymeermans@chimicles.com.
Representing the Defendant/s are, Gregory Ballard of Cadwalader
Wickersham & Taft, LLP, One World Financial Center, New York, NY
10281, Phone: 212-504-6701, E-mail: gregory.ballard@cwt.com; and
David L. Comerford of Akin Gump Strauss Hauer & Feld, LLP, One
Commerce Sq., 2005 Market St., STE. 2200, Philadelphia, PA
19103, Phone: 215-965-1200, Fax: 215-965-1210.
SELECTICA INC: N.Y. Court Set to Approve Stock Suit Settlement
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York is
set to grant final approval to the settlement of the
consolidated class action, styled, "In Re Selectica, Inc.
Initial Public Offering Securities Litigation," filed against:
(1) Selectica, Inc., certain of its officers and directors;
and
(2) Credit Suisse First Boston Corporation (CSFB), as
underwriters of the Company's March 13,2005 initial
public offering (IPO) on April 24, 2006.
Between June 5, 2001 and June 22, 2001, four securities class
action complaints were filed. On August 9, 2001, these actions
were consolidated before a single judge along with cases brought
against numerous other issuers, their officers and directors and
their underwriters, that make similar allegations involving the
allocation of shares in the IPOs of those issuers. The
consolidation was for purposes of pretrial motions and discovery
only. On April 19, 2002, plaintiffs filed a consolidated
amended complaint asserting essentially the same claims as the
original complaints.
The amended complaint alleges that the officer and director
defendants, CSFB and the Company violated federal securities
laws by making material false and misleading statements in the
prospectus incorporated in the Company's registration statement
on Form S-1 filed with the SEC in March 2000 in connection with
the Company's IPO. Specifically, the complaint alleges, among
other things, that CSFB solicited and received excessive and
undisclosed commissions from several investors in exchange for
which CSFB allocated to those investors material portions of the
restricted number of shares of common stock issued in the
Company's IPO.
The complaint further alleges that CSFB entered into agreements
with its customers in which it agreed to allocate the common
stock sold in the Company's IPO to certain customers in exchange
for which such customers agreed to purchase additional shares of
the Company's common stock in the after-market at pre-determined
prices. The complaint also alleges that the underwriters
offered to provide positive market analyst coverage for the
Company's after the IPO, which had the effect of manipulating
the market for the Company's stock.
On July 15, 2002, the Company and the officer and director
defendants, along with other issuers and their related officer
and director defendants, filed a joint motion to dismiss based
on common issues. Opposition and reply papers were filed and
the Court heard oral argument. Prior to the ruling on the
motion to dismiss, on October 8, 2002, the individual officers
and directors entered into a stipulation of dismissal and
tolling agreement with plaintiffs. As part of that agreement,
plaintiffs dismissed the case without prejudice against the
individual defendants. The Court ordered the dismissal of the
officers and directors without prejudice on October 9, 2002. The
Court rendered its decision on the motion to dismiss on
February 19, 2003, denying dismissal of the Company.
On June 25, 2003, a Special Committee of the Board of Directors
of the Company approved a Memorandum of Understanding (the
"MOU") reflecting a settlement in which the plaintiffs agreed to
dismiss the case against the Company with prejudice in return
for the assignment by the Company of certain claims that the
Company might have against its underwriters. The same offer of
settlement was made to all the issuer defendants involved in the
litigation. No payment to the plaintiffs by the Company is
required under the MOU.
After further negotiations, the essential terms of the MOU were
formalized in a Stipulation and Agreement of Settlement, which
has been executed on behalf of the Company. The settling parties
presented the proposed Settlement papers to the Court on June
14, 2004 and filed formal motions seeking preliminary approval
on June 25, 2004. The underwriter defendants, who are not
parties to the proposed Settlement, filed a brief objecting to
its terms on July 14, 2004.
On February 15, 2005, the Court granted preliminary approval of
the settlement conditioned on the agreement of the parties to
narrow one of a number of the provisions intended to protect the
issuers against possible future claims by the underwriters. The
Company re-approved the Settlement with the proposed
modifications that were outlined by the Court in its February
15, 2005 Order granting preliminary approval. Approval of any
settlement involves a three-step process in the district court:
(1) a preliminary approval,
(2) determination of the appropriate notice of the
settlement to be provided to the settlement class, and
(3) a final fairness hearing.
On August 31, 2005, the Court entered a preliminary order
approving, with only minor modifications, the modified proposed
settlement agreement. The court ordered that the mailing of the
notices of pendency and proposed settlement of the class actions
be completed by January 15, 2006. The court scheduled the final
fairness hearing for April 24, 2006 as the date for the final
fairness hearing. The deadline for class members to request
exclusion from the settlement classes is on March 24, 2006.
Despite the preliminary approval, there can be no assurance that
the Court will ultimately approve the settlement.
In the meantime, the plaintiffs and underwriters have continued
to litigate the consolidated action. The litigation is
proceeding through the class certification phase by focusing on
six cases chosen by the plaintiffs and underwriters ("focus
cases"). The Company is not a focus case. On October 13, 2004,
the Court certified classes in each of the six focus cases. The
underwriter defendants have sought review of that decision.
Along with the other non-focus case issuer defendants, the
Company has not participated in the class certification phase.
The plaintiffs' money damage claims include prejudgment and
post-judgement interest, attorneys' and experts' witness fees
and other costs, as well as other relief to which the plaintiffs
may be entitled should they prevail.
The suit is styled, "In Re Selectica, Inc. Initial Public
Offering Securities Litigation," filed in relation to "In re IPO
Securities Litigation, 21-MC-92 (SAS)," in the U.S. District
Court for the Southern District of New York, under Judge Shira
N. Scheindlin. The plaintiff firms in this litigation are:
(1) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E.
40th Street, 22nd Floor, New York, NY, 10016, Phone:
800.217.1522, E-mail: info@bernlieb.com
(2) Milberg Weiss Bershad Hynes & Lerach, LLP (New York,
NY), One Pennsylvania Plaza, New York, NY, 10119-1065,
Phone: 212.594.5300
(3) Schiffrin & Barroway, LLP, Mail: 3 Bala Plaza E, Bala
Cynwyd, PA, 19004, Phone: 610.667.7706, Fax:
610.667.7056, E-mail: info@sbclasslaw.com
(4) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New
York, NY, 10005, Phone: 888.759.2990, Fax:
212.425.9093, E-mail: Info@SirotaLaw.com
(5) Stull, Stull & Brody (New York), 6 East 45th Street,
New York, NY, 10017, Phone: 310.209.2468, Fax:
310.209.2087, E-mail: SSBNY@aol.com
(6) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270
Madison Avenue, New York, NY, 10016, Phone:
212.545.4600, Fax: 212.686.0114, E-mail:
newyork@whafh.com
SERVICE CORPORATION: Enters $4.45M Settlement in N.Y. Labor Suit
----------------------------------------------------------------
A class of present and former employees of Service Corp.
International affiliates and the company reached a settlement in
the case "Sines et al. v. Service Corp. International, et al.,"
filed in the U.S. District Court for the Southern District of
New York.
The case involves premium payments, overtime and other wage &
hour claims for funeral directors and other non-exempt employees
under the Fair Labor Standards Act (FLSA) and the New York Labor
Law (NYLL). The Court gave preliminary approval to the proposed
settlement on February 10, for the purpose of providing notice
to class members and to give them an opportunity to opt out,
object, or file claim forms, and approved the Notice on February
15, 2006.
Settlement Terms
Under the settlement, more than six hundred New York present and
former employees of affiliates of SCI from July 23, 1997, to
October 1, 2004, will share in the award. The ending date
coincides with a number of changes SCI made in its compensation
practices as a result of the case. A 19-page proposed Consent
Decree is part of the settlement. The proposed Consent Decree
provides a means of resolving any disputes that arise in the
three years after approval, and for monitoring defendants'
compliance with the Consent Decree.
The parties have submitted the proposed settlement to the Court,
and have requested preliminary approval so that notice can be
given to present and former employees and they can be given an
opportunity to comment or file objections on the proposed
settlement, to opt out. Employees considered exempt from
overtime requirements will also have an opportunity under the
settlement to assert that they were not exempt, and to seek
relief.
Defendant/Plaintiff Attorneys
The proposed settlement was submitted by Richard T. Seymour of
the Law Office of Richard T. Seymour, P.L.L.C., in Washington,
D.C., Alan L. Fuchsberg of The Jacob Fuchsberg Law Firm in New
York City, representing the employees, and Nancy L. Patterson of
Baker & Hostetler in Houston, Texas, representing defendants.
The law firm of Lieff, Cabraser, Heimann & Bernstein, LLP, a
class action firm with offices in New York, San Francisco, and
Nashville, also worked extensively on the case.
Mr. Seymour said: "This is an important case involving premium
payments, overtime, and other issues, with massive computer
files and hard-copy pay records. Some of the problems in this
case began before SCI acquired some of the funeral homes in
question, and continued thereafter. SCI should be commended for
its willingness to recognize the problems we brought to its
attention, and to correct the situation."
"SCI was willing to deem every present and former employee
within the three-year period of limitations on the FLSA claims
to have "opted in," and was willing to deem every present and
former employee as having intervened on the NYLL claims, subject
to their right to "opt out" later, if that is what they want."
"The class recovery in the proposed settlement is an eminently
reasonable amount."
"Both sides worked together extremely well in resolving
difficult factual and legal issues, and plaintiffs were given
the opportunity to meet informally with defense counsel and
defendants' expert and officials, both in person and by
telephone, in addition to all the tools of formal discovery. Mr.
Sines,' Mr. Williams,' and SCI's problem-solving approach made a
resolution possible much earlier, with more going to the class
and less in transaction costs.
A great deal of credit is also due to Alan Fuchsberg, who
originated the case, persuaded me of its merit, and worked with
me throughout it, and to my former firm, Lieff, Cabraser,
Heimann & Bernstein LLP, which has unfailingly supported this
case both when I was with the firm, and thereafter.
Mr. Fuchsberg said: "Credit also goes to the Department of Labor
for being the first to advise the class representatives that a
wage and hour violation might exist, and to the class
representatives for expressing aloud their conviction that their
overtime wages were not being calculated correctly and for
providing their counsel with a detailed understanding of the
everyday overtime activities in the funeral profession where
unfortunately needs have to be met on short notice at unplanned
times."
"Good faith negotiation was demonstrated by both sides in a
matter that called for correction under the Department of
Labor's interpretation of Fair Labor Standards Act. This effort
combined with the insistence of counsel for a meticulous
application of the law, which has now resulted in a very just
compensatory settlement."
Ms. Patterson said: "SCI's approach to this case is in fact a
model for other employers. SCI never had any intention of
violating the law, and denies having done so. The Department of
Labor regulations on which this lawsuit was based are highly
technical, and the outcome of a lawsuit was uncertain. If the
case had gone to trial, there was a real possibility SCI might
have won."
"However, SCI has always prided itself on setting an example for
other companies to follow, in terms of how it treats its
employees. From the outset, SCI was strongly interested in
getting straight to the merits, finding out if there were any
problems that had possible merit, and doing the right thing. We
made clear to plaintiffs' counsel that we were interested in
working out a fair solution, and one that carries out SCI's
policies of being an exemplary employer."
"The practical approach of both sides helped a great deal in
bringing this case to a fair resolution."
Mr. Seymour will hold meetings with class members in Buffalo,
Rochester, Syracuse, Albany, Long Island, Queens, and Manhattan.
Counsel for Plaintiff:
Richard T. Seymour
Law Office of Richard T. Seymour, P.L.L.C.
1150 Connecticut Avenue N.W., Suite 900
Washington, D.C. 20036-4129
Voice: 202-862-4320
Cell: 202-549-1454
Fax: 800-805-1065
E-mail: rick@rickseymourlaw.net
Web site: http://www.rickseymourlaw.com
Alan L. Fuchsberg
The Jacob D. Fuchsberg Law Firm, LLP
500 Fifth Avenue
New York, NY 10110
Voice: (212) 869-3500
Fax: (212) 398-1532
Counsel for Defendant:
Nancy L. Patterson, Esq.
Baker & Hostetler LLP
1000 Louisiana, Suite 1000
Houston, TX 77002
Voice: 713-646-1339
Fax: 713-751-1717
E-mail: npatterson@bakerlaw.com
TENET CORPORATION: Paying $7M to Settle State Issues in Florida
---------------------------------------------------------------
Tenet Healthcare Corp. reached a broad agreement with Florida
Attorney General Charlie Crist to resolve all matters involving
Tenet that are currently being litigated or investigated by the
Florida attorney general's office.
The matters being resolved include a civil lawsuit regarding
Medicare outlier payments that was filed by the attorney
general's office in March 2005 on behalf of 13 county hospital
districts, health care systems and non-profit corporations in
Florida. None of Tenet's South Florida hospitals were named as
individual defendants in the attorney general's lawsuit.
The settlement also ends an investigation begun in mid-2003 by
the Florida Medicaid Fraud Control Unit of certain Medicaid
payments and a separate investigation begun in early 2005 by
that unit of certain Medicaid psychiatric billings at a Tenet
hospital in South Florida. The lawsuit and the investigations
were all previously disclosed by the company. In the settlement
agreement the company did not admit, and specifically denied all
of the allegations made in the suit.
Settlement Terms
As part of the settlement, Tenet will pay a total of $7 million,
which the company will record as a charge in its fourth quarter
ended Dec. 31, 2005. This includes $4 million to establish a
fund to pay for care of indigent, uninsured patients at the 13
county hospital districts and systems in Florida who were
plaintiffs in the lawsuit. It also includes a $3 million
payment to be allocated among the Florida Medicaid Fraud Control
Unit and the public hospitals in Florida.
"We are pleased by our cooperative dialogue with Attorney
General Crist that has resulted in a fair and reasonable
resolution of these legacy issues," said Tenet General Counsel
Peter Urbanowicz. "We appreciate the attorney general's
recognition of the important role that Tenet's hospitals play in
the delivery of health care to the people of South Florida, and
our entire organization pledges our continuing commitment to
provide quality care to every patient that comes through our
doors. Our 15 hospitals in Palm Beach, Broward and Dade
counties treat more than 176,000 patients annually and employ
more than 13,000 Floridians."
Tenet is involved in finding solutions for the uninsured since
it announced its groundbreaking Compact With Uninsured Patients
in January 2003. Under the Compact, Tenet hospitals provide
managed-care style discounts to all uninsured patients and
charity care to those with no ability to pay. "This settlement
continues Tenet's commitment and our $4 million contribution
provides another means for dealing with the uninsured crisis in
Florida," Mr. Urbanowicz said.
Specifically, the settlement will end the suit pending in U.S.
District Court in Miami entitled State of Florida, Office of the
Attorney General, Department of Legal Issues, et al. v. Tenet
Healthcare Corporation. The settlement does not resolve a
separate purported class action civil lawsuit filed in March
2005 on behalf of Boca Raton Community Hospital and most other
private acute care hospitals in the U.S. In that suit, which is
entitled Boca Raton Community Hospital Inc. v. Tenet Healthcare
Corporation, Tenet has filed a motion for partial summary
judgment and has asserted in legal filings that the case cannot
legally proceed as a class action.
Tenet Healthcare Corporation -- http://www.tenethealth.com--
through its subsidiaries, owns and operates acute care hospitals
and related health care services. Tenet's hospitals aim to
provide the best possible care to every patient who comes
through their doors, with a clear focus on quality and service.
UNITED STATES: Federal Prosecutors Absolve High-Profile Lawyers
---------------------------------------------------------------
Insiders familiar with a protracted federal investigation said
that prosecutors decided not to seek charges against class-
action lawyer William Lerach and his former partner, The
Associated Press reports.
Mr. Lerach and Melvyn Weiss, former partners who had a bitter
falling out in 2004, were told recently that they would not be
prosecuted in connection with a five-year investigation into
whether they paid kickbacks to people who served again and again
as the lead plaintiffs in shareholder lawsuits, some which date
to the 1980s. However, according to the insiders, who spoke on
condition of anonymity, because the Justice Department has not
made any public comment about the lawyers, it is unclear whether
Mr. Weiss' law firm, Milberg Weiss Bershad & Schulman, or other
partners will be indicted.
Retired lawyer Seymour Lazar was indicted back in June 2005 and
was accused of accepting kickbacks from Milberg Weiss in
exchange for serving as plaintiff, or getting others to serve,
in more than 50 suits. Paul Selzer, Mr. Lazar's lawyer, also
was indicted on charges he laundered the payments to his client.
VIRGIN ISLANDS: Meeting to Update Nadine Jones Suit Set Today
-------------------------------------------------------------
The Disability Rights Center of the Virgin Islands called a
meeting today for parents of children with disabilities in St.
Croix to discuss the availability of special education services
in V.I. public schools, according to The Virgin Islands Daily
News. Similar meetings have been held on St. Thomas, according
to the report.
Archie Jennings, managing attorney for the center, said the
information will be used to update an ongoing class action filed
in 1984 by the center to compel the government to offer a "free
and appropriate" education for all children with disabilities.
The program will bring the government in compliance with the
Individuals with Disabilities Education Act that requires school
systems to offer the special education and therapy that disabled
students need.
Parents throughout the Virgin Islands, who charged that hundreds
of students were being denied special education services such as
speech therapy and occupational therapy, brought the lawsuit in
1984. The suit, which was certified as class action, demanded
that the government take action to remedy the inadequacies in
education for disabled children.
Titled the Nadine Jones case, the suit was filed under the
federal Education of the Handicapped Act of 1984, a precursor to
today's Individuals With Disabilities Education Act. The suit
named as defendants, governor Juan Luis, Education Commissioner
Charles Turnbull and Office of Special Education Office Director
Priscilla Stridiron.
As a result of the lawsuit, the court required an annual status
conference to determine whether the department was improving
special education programs.
VITAS HEALTHCARE: Books $11M for Calif. Suit Deal in Q4 Results
---------------------------------------------------------------
VITAS Healthcare Corporation said at its fourth quarter 2005
results that after excluding the aftertax cost of a class action
litigation in California, LTIP and OIG investigation, its net
income of $13.8 million increased 29% when compared to the
prior-year adjusted pro forma net income.
"The litigation settlement involved a wage-hour class action
case pending against VITAS in California. This case was filed
in April 2004, shortly after completion of the VITAS
acquisition. We accrued a pretax liability of $2.3 million and
accounted for this issue as an assumed liability on our opening
balance sheet," the company said in a statement.
It added: "Since the establishment of this accrual, there has
been a significant increase in litigation, high settlements and
unfavorable verdicts against companies involving wage-hour
claims in California. Recognizing this legal climate, we have
reached a tentative agreement to resolve this matter. Generally
Accepted Accounting Principles (GAAP) do not allow for a period
of more than 12-months post acquisition to finalize the
quantification of existing contingencies on the opening balance
sheet of an acquisition. As a result, VITAS' fourth-quarter
operating results include an aftertax charge of $10.8 million
representing the portion of this preliminary settlement not
accounted for on VITAS' opening balance sheet."
VITAS faced a class action filed in the Superior Court of
California, Los Angeles County, in April of 2004 by Ann Marie
Costa, Ana Jimenez, Maria Ruteaya and Gracetta Wilson alleging
failure to pay overtime wages and to provide meal and break
periods to California nurses, home health aides and licensed
clinical social workers (Class Action Reporter, Sept. 15, 2005).
Chemed Corporation -- http://www.chemed.com-- operates VITAS
Healthcare as well as Roto-Rooter, a commercial and residential
plumbing and drain cleaning services provider.
WAL-MART INC: Wisconsin Court Refuses to Certify Overtime Suit
--------------------------------------------------------------
The District 1 Court of Appeals in Wisconsin denied class action
status to a lawsuit filed by employees of Wal-Mart Inc. alleging
non-payment for hours worked through breaks. The suit was
originally filed in 2001 on behalf of tens of thousands of
current and former Wal-Mart employees in Wisconsin.
The court said the proposed class of workers under the suit is
"unmanageable" considering there are 86,000 former and current
Wal-Mart employees, whose time-clock entries should be reviewed
in order to verify the allegation.
"We are pleased that the Wisconsin Court of Appeals has agreed
this case is not appropriate for class certification," said
Sarah Clark, Wal-Mart spokeswoman. "To date, 17 courts have
denied class certification in Wal-Mart's wage-and-hour cases,
and an appellate court has yet to rule in favor of class
certification. Including the decision Wednes[day], three of
these rulings have been affirmed on appeal.
Wal-Mart is facing similar class actions across the country. In
one suit Wal-Mart was ordered by a California jury to award
employees $172 million. It settled a similar case in Colorado
for $50 million.
Wal-Mart Stores, Inc.-- http://www.walmart.com-- operates Wal-
Mart Stores, Supercenters, Neighborhood Markets and SAM'S CLUB
locations in the U.S.
New Securities Fraud Suit
CHICAGO BRIDGE: Brodsky & Smith Lodges Securities Suit in N.Y.
--------------------------------------------------------------
The Law offices of Brodsky & Smith, LLC, initiated a securities
class action filed on behalf of shareholders who purchased the
common stock and other securities of Chicago Bridge & Iron Co.
NV (NYSE: CBI) between March 9, 2005 and February 3, 2006,
inclusive. The class action was filed in the U.S. District
Court for the Southern District of New York.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of material
misrepresentations to the market during the Class Period,
thereby artificially inflating the price of Chicago Bridge
securities. No class has yet been certified in the above
action.
For more details, contact Evan J. Smith, Esq. or Marc L.
Ackerman, Esq. of Brodsky & Smith, LLC, Two Bala Plaza, Suite
602, Bala Cynwyd, PA 19004, Phone: 877-LEGAL-90, E-mail:
clients@brodsky-smith.com.
CHICAGO BRIDGE: Goldman Scarlato Lodges Securities Suit in N.Y.
---------------------------------------------------------------
Goldman Scarlato & Karon, P.C., initiated a lawsuit in the U.S.
District Court for the Southern District of New York, on behalf
of persons who purchased or otherwise acquired publicly traded
securities of Chicago Bridge & Iron Co. NV (NYSE:CBI) between
March 9, 2005 and February 3, 2006, inclusive. The lawsuit was
filed against Chicago Bridge and certain officers and directors.
The complaint alleges that Defendants violated Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. Specifically, the complaint alleges
that:
(1) the Company was overstating its financial results by
not properly employing the percentage-of-completion
accounting methodology;
(2) the Company was not recognizing revenue in accordance
with its own stated revenue recognition policy;
(3) as a result of the foregoing, the Company's financial
statements were not prepared in accordance with
Generally Accepted Accounting Principles ("GAAP").
On October 26, 2005, Chicago Bridge announced that it would
delay the release of its third quarter financial statements
because the results were not prepared to meet the Company's
original earnings release schedule. On October 31, 2005, the
Company followed up with investors by saying that its third
quarter results would be delayed due to a memo the Company
received from its accounting department alleging certain
accounting improprieties. Then on February 3, 2006, the Company
issued a press release announcing that it had terminated
Defendants Glenn and Jordan. In reaction to this news, shares
of Chicago Bridge fell from $29.00 per share to $22.33 per share
on very heavy trading volume.
For more details, contact Mark S. Goldman, Esq. of The Law Firm
of Goldman Scarlato & Karon, P.C., Phone: 888-753-2796, E-mail:
info@gsk-law.com.
COOPER COMPANIES: Milberg Weiss Files Securities Suit in Calif.
---------------------------------------------------------------
The law firm of Milberg Weiss Bershad & Schulman, LLP, initiated
a class action on behalf of purchasers of the securities of The
Cooper Companies, Inc. between July 29, 2004 and November 21,
2005, inclusive, including persons who received Cooper shares in
exchange for exchanging shares of Ocular Sciences in the January
2005 merger between Cooper and Ocular Sciences, Inc., seeking to
pursue remedies under the Securities Exchange Act of 1934.
The action, numbered SACV-06-169 CJC, is pending in the U.S.
District Court for the Central District of California, Southern
Division, against defendants Cooper, A. Thomas Bender (CEO),
Robert S. Weiss (CFO) and John D. Fruth (Director). The Judge
presiding over the action is the Honorable Cormac J. Carney.
The Complaint alleges that defendants' Class Period statements,
made in press releases and SEC filings, were materially false
and misleading for the following reasons, among other reasons
detailed in the complaint, because:
(1) the Company improperly accounted for assets acquired in
the Ocular Sciences merger, as reported in the Proxy
Statement, by misclassifying intangible assets as
tangible ones, which had the effect of lowering
amortization expense;
(2) the Company's aggressive earnings guidance reflected
the improper accounting for intangible assets and was
inflated by (among other things) the amount of the
understated amortization expense;
(3) the merger synergies touted by defendants were
unrealistic and were lacking in any reasonable basis;
(4) Ocular Sciences had stuffed the channel with its
Biomedics products;
(5) the Company's lack of a two-week silicone hydrogel
product would prevent it from meeting its aggressive
growth targets for 2005 and beyond, contrary to
defendants' repeated representations that the Company's
Proclear product was competing favorably against the
silicone hydrogel products;
(6) Cooper and Ocular in fact competed in the two-week lens
market.
When the truth was disclosed at the end of the Class Period, on
November 21, 2005 and November 22, 2005, the price of Cooper
common stock collapsed, falling by $21 per share, or 29%, to
close at $51.47 per share on November 22, 2005. During the Class
Period, before the value of Cooper securities collapsed,
insiders sold a total of 1,970,233 shares of common stock for
proceeds of $141,492,613, at the mean price of $71.82 per share.
For more details, contact Steven G. Schulman, Peter E. Seidman
and Andrei V. Rado of Milberg Weiss Bershad & Schulman, LLP,
Phone: 800-320-5081, E-mail: sfeerick@milbergweiss.com, Web
site: http://www.milbergweiss.com.
COOPER COMPANIES: Stull, Stull Lodges Securities Suit in Calif.
---------------------------------------------------------------
Stull, Stull & Brody initiated a class action in the U.S.
District Court for the Central District of California on behalf
of all persons who purchased or acquired the publicly traded
securities of The Cooper Companies, Inc. (NYSE: COO) from July
29, 2004 through November 21, 2005 inclusive. Also included are
all those who acquired Cooper through its acquisition of Ocular
Sciences, Inc.
The complaint alleges defendants violated federal securities
laws by issuing a series of materially false statements
regarding Cooper's business condition. Specifically, defendants
failed to disclose that:
(1) Cooper improperly accounted for assets acquired in the
Ocular merger, as reported in the Proxy Statement, by
misclassifying intangible assets as tangible, which had
the effect of lowering amortization expense;
(2) Cooper's aggressive earnings guidance reflected the
improper accounting for intangible assets and was
inflated by the amount of the understated amortization
expense;
(3) the merger synergies touted by defendants were
unrealistic;
(4) Ocular had stuffed the channel with its Biomedics
products;
(5) Cooper's lack of a two-week silicone hydrogel product
would prevent it from meeting its aggressive growth
targets for 2005 and beyond, contrary to defendants'
repeated representations that the Company's Proclear
product was competing favorably against the silicone
hydrogel products; and
(6) Cooper and Ocular in fact competed in the two-week lens
market.
When the truth emerged on November 21, 2005 and November 22,
2005, Cooper fell $21 per share, or 29%, to close at $51.47 per
share on November 22, 2005. During the Class Period, insiders
sold 1,970,233 shares of common stock for proceeds of
$141,492,613.
For more details, contact Tzivia Brody, Esq. of Stull, Stull &
Brody, 6 East 45th Street, New York, NY 10017, Phone: 1-800-337-
4983, Fax: 212/490-2022, E-mail: SSBNY@aol.com, Web site:
http://www.ssbny.com.
NVE CORP: Charles J. Piven Lodges Securities Fraud Suit in Minn.
----------------------------------------------------------------
The Law Offices Of Charles J. Piven, P.A. initiated a securities
class action on behalf of shareholders who purchased, converted,
exchanged or otherwise acquired the common stock of NVE
Corporation (NASDAQ: NVEC) between May 22, 2003 and February 11,
2005, inclusive.
The case is pending in the U.S. District Court for the District
of Minnesota. The action charges that defendants violated
federal securities laws by issuing a series of materially false
and misleading statements to the market throughout the Class
Period, which statements had the effect of artificially
inflating the market price of the Company's securities. No
class has yet been certified in the above action.
For more details, contact The Law Offices Of Charles J. Piven,
P.A., The World Trade Center-Baltimore, 401 East Pratt Street,
Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-
mail: hoffman@pivenlaw.com.
NVE CORP: Marc S. Henzel Lodges Securities Fraud Suit in Minn.
--------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action in
the U.S. District Court for the District of Minnesota of bahalf
of investors who purchased the stock of NVE Corporation (Nasdaq:
NVEC), during the period from May 22, 2003 through February 11,
2005.
The Complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5, including allegations that the defendants issued
a series of material misrepresentations to the market concerning
its projected revenues and product technology, which had the
effect of artificially inflating the shares' market price.
For more details, contact Marc S. Henzel, Esq. of The Law
Offices of Marc S. Henzel, 273 Montgomery Ave, Suite 202 Bala
Cynwyd, PA 19004-2808, Phone (888) 643-6735 or (610) 660-8000,
Fax: (610) 660-8080, E-mail: Mhenzel182@aol.com, Web site:
http://members.aol.com/mhenzel182.
NVE CORP: Schatz & Nobel Lodges Securities Fraud Suit in Minn.
--------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., initiated a lawsuit
seeking class action status in the U.S. District Court for the
District of Minnesota on behalf of all persons who purchased or
otherwise acquired the common stock of NVE Corporation
(Nasdaq:NVEC) between May 22, 2003 and February 11, 2005,
inclusive.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of materially false
statements regarding NVE's business condition. Specifically
defendants made misrepresentations concerning the Company's
projected revenues and the potential of Magnetic Random Access
Memories (MRAM) technology. As a result of defendants' positive
statements, the market price of NVE's shares was artificially
inflated throughout the Class Period.
For more details, contact Wayne T. Boulton and Nancy A. Kulesa
of Schatz & Nobel, P.C., Phone: (800) 797-5499, E-mail:
sn06106@aol.com, Web site: http://www.snlaw.net.
*********
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Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2006. All rights reserved. ISSN 1525-2272.
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