/raid1/www/Hosts/bankrupt/CAR_Public/060302.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, March 2, 2006, Vol. 8, No. 44
Headlines
ALLIANCEBERNSTEIN LP: Court Reaffirms Dismissal of Goggins Case
ANNTAYLOR STORES: Paying $6.5M to Settle Calif. Overtime Suit
CHEVRON CORPORATION: High Court Junks Calif. Price Fixing Suit
C.H. ROBINSON: Employees File Sexual Harassment Lawsuit in Ill.
COMMUNITY HEALTH: Defendant Added in Uninsured Patients' Lawsuit
COMMUNITY HEALTH: Discovery Begins in Uninsured Patients' Suit
DIOCESE OF JOLIET: Sexual Abuse Suit Demands List of Offenders
EBAY INC: Faces Lawsuit Over Alleged "Shill Bidding" at Web Site
EBAY INC: Reaches Settlement in Calif. Improper Billing Lawsuit
EBAY INC: Reaches Settlement in N.Y. Consumer Fraud Litigation
ENOGEX INC: Oil, Gas Well Owners Launch Royalties Suit in Okla.
ENOGEX INC: Settles Small Gas Producers' Antitrust Suit in Okla.
ENOGEX INC: Units Face Kans. Lawsuit Over Natural Gas Analysis
EXPRESS SCRIPTS: Calif. Court Allows Filing of Amended PBM Suit
EXPRESS SCRIPTS: Dismissal of Bradley Complaint Under Appeal
EXPRESS SCRIPTS: Pharmacies File Ala. Suit Over Reimbursements
EXPRESS SCRIPTS: Pharmacy Launches Antitrust Suit in N.D. Ala.
EXPRESS SCRIPTS: Plaintiff Appeals Dismissal of AFSCME Complaint
EXPRESS SCRIPTS: Shareholder Lawsuits in E.D. Miss. Consolidated
FAMILY DOLLAR: Managers' Lawsuit Goes Back to Ala. Federal Court
HARTFORD FINANCIAL: Faces Consolidated Securities Suit in Conn.
HARTFORD FINANCIAL: Faces Multidistrict Litigation in N.J. Court
HARTFORD FINANCIAL: Faces Suits Over ERISA Violations in Conn.
LOWRANCE ELECTRONICS: Settles Securities Suit Over Simrad Merger
MAGNA ENTERTAINMENT: Unit Faces Forced Labor Claims in Europe
NC SOFT: Thousands Join Legal Action Over Identity Thefts
OGE ENERGY: Subsidiaries Face Lawsuit Over Alleged Underpayments
PAYPAL INC: Reaches Settlement in Calif. Consumer Fraud Lawsuit
PEPSI BOTTLING: Gets $23M from Corn Syrup Antitrust Settlement
PHISHING SCAMS: AOL Files $18M Suit Against Major Phishing Gangs
PRIORITY HEALTHCARE: Reaches Pact in Fla. Suit Over ESRX Merger
SERENA SOFTWARE: Agrees to Settle Lawsuits Over Spyglass Merger
SOUTH CAROLINA: Myrtle Beach Insurer Wins Appeal on Refund Suit
TARA HOSPITAL: Sued for Alleged Failure to Advise of Closure
UNITED STATES: Court Says Abortion Demonstrations Not Extortion
UNITED STATES: Paying Damages to Egyptian Held After Sept. 11
WELDING FUME LITIGATION: Judge Confirms Fume-Related Health Risk
WEST CORP: Nev. Court Remands Ritt Case Back to Ohio State Court
New Securities Fraud Cases
CHICAGO BRIDGE: Charles J. Piven Lodges Securities Suit in N.Y.
CHICAGO BRIDGE: Schatz Nobel Files Securities Fraud Suit in N.Y.
COOPER COMPANIES: Marc S. Henzel Files Securities Suit in Calif.
PENSION FUNDS: Law Firms File Securities Fraud Suit in S.D. Fla.
PROQUEST COMPANY: Marc S. Henzel Lodges Securities Suit in Mich.
SFBC INTERNATIONAL: Ark. Teachers' Pension Fund to Pursue Case
*********
ALLIANCEBERNSTEIN LP: Court Reaffirms Dismissal of Goggins Case
---------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit reaffirmed the
dismissal of a putative class action complaint, styled, "Patrick
J. Goggins, et al. v. Alliance Capital Management L.P., et al."
The suit was filed on Dec. 13, 2002, in the U.S. District Court
for the Southern District of New York against:
(1) AllianceBernstein, L.P.,
(2) Large Cap Growth Fund, and
(3) individual directors and certain officers of Large Cap
Growth Fund.
On August 13, 2003, the court granted AllianceBernstein's motion
to transfer the Goggins Complaint to the U.S. District Court for
the District of New Jersey. On December 5, 2003, plaintiffs
filed an amended complaint in the U.S. District Court for the
District of New Jersey, which alleges that defendants violated
Sections 11, 12(a)(2) and 15 of the Securities Act because Large
Cap Growth Fund's registration statements and prospectuses
contained untrue statements of material fact and omitted
material facts.
More specifically, the Amended Goggins Complaint alleges that
Large Cap Growth Fund's investment in Enron was inconsistent
with the Large Cap Growth Fund's stated strategic objectives and
investment strategies. Plaintiffs seek rescissionary relief or
an unspecified amount of compensatory damages on behalf of a
class of persons who purchased shares of Large Cap Growth Fund
during the period October 31, 2000 through February 14, 2002.
On January 23, 2004, the Company's moved to dismiss the Amended
Goggins Complaint. On December 10, 2004, the court granted Athe
Company's motion and dismissed the case. On January 5, 2005,
plaintiffs appealed the court's decision.
On January 13, 2006, the U.S. Court of Appeals for the Third
Circuit affirmed the dismissal. Plaintiffs' time to seek
further review of the court's decision expires on April 13,
2006.
The Company, Large Cap Growth Fund and the other defendants
believe that plaintiffs' allegations in the Amended Goggins
Complaint are without merit and will fight these allegations.
The Company has not engaged in settlement negotiations.
The suit is styled, "Goggins, et al. v. Alliance Capital, et
al., Case No. 2:03-cv-04082-JLL-RJH," filed in the U.S. District
Court for the District of New Jersey under Judge Jose L.
Linares. Representing the Plaintiff/s are Patrick Louis Rocco
and Jennifer A. Sullivan, Shalov Stone & Bonner LLP, 163 Madison
Avenue, PO Box 1277, Morristown NJ 07962-1277, Phone:
(973) 775-8997, E-mail: procco@lawssb.com or
jsullivan@lawssb.com. Representing the Defendant/s are, James
N. Benedict, Clifford Change US LLP, 200 Park Avenue, New York,
NY 10166, Phone: 212 878-8000; and Joel M. Silverstein and
Herbert Jay Stern, STERN & KILCULLEN, 75 Livingston Avenue,
Roseland NJ 07068 Phone: 973-535-1900.
ANNTAYLOR STORES: Paying $6.5M to Settle Calif. Overtime Suit
-------------------------------------------------------------
AnnTaylor Stores Corp. reached a tentative agreement to settle
two previously disclosed putative class actions related to how
the Company classified certain employees under California
overtime laws.
The lawsuits are similar to numerous lawsuits filed against
retailers and others with operations in California. While the
Company denies the allegations underlying the lawsuits, it has
agreed to the tentative settlement to avoid significant legal
fees, other expenses and management time that would have to be
devoted to protracted litigation.
The settlement, which is subject to final documentation and
court approval, will result in a one-time pre-tax charge in the
fourth quarter of fiscal 2005 of approximately $6.5 million, or
approximately $0.06 per diluted share.
On February 2, 2006, the Company confirmed that it remained
comfortable with its previously provided earnings guidance of
$1.17 per fully diluted share (on a GAAP basis) for fiscal year
2005. This guidance excludes the impact of the litigation
settlement announced today [Feb. 28, 2006]. The Company remains
comfortable with that guidance, subject to the adjustment for
this litigation settlement.
Ann Taylor is one of the country's leading women's specialty
retailers, operating 824 stores in 46 states, the District of
Columbia and Puerto Rico, and also Online Stores at
http://www.anntaylor.comand http://www.anntaylorLOFT.comas of
January 28, 2006.
CHEVRON CORPORATION: High Court Junks Calif. Price Fixing Suit
--------------------------------------------------------------
The Supreme Court has dismissed a lawsuit accusing Chevron Corp.
and Shell Oil Co. of oil price fixing, according to Associated
Press. The ruling throws out a decision by a San Francisco-
based 9th Circuit U.S. Court of Appeals.
Justice Clarence Thomas ruled on Tuesday the gas distributors
failed to prove allegations that a partnership by the two oil
companies helped them fix gas prices in violation of antitrust
provisions of the Sherman Act.
Gas distributors filed the suit in California on behalf of
23,000 service station owners, arguing that a joint venture by
the companies violated antitrust laws making it illegal to limit
competition by setting a common price for a product made by
competing companies (Class Action Reporter, July 11, 2005).
They are accused of inflating gas prices by at least $1 billion
using a joint venture that ended four years ago.
Chevron, which was still Texaco, joined with Shell in 1998 to
form a business to handle refining and marketing of their
gasoline. The creation of two refining and marketing joint
ventures in 1998 allowed Texaco and Shell to continue to sell
their brands separately but save an estimated $800 million each
year by sharing refining capacity and the cost of selling the
fuels. At the pump, consumers saw Texaco and Shell as two
different brands of gas, but the gas was sold at the same
wholesale price by the joint venture (Class Action Reporter,
July 11, 2005).
The joint venture at the heart of the lawsuit, Equilon, operated
in the western U.S. Texaco and Shell were partners with Saudi
Refining in a similar joint venture called Motiva that operated
in the eastern U.S. Recently though Texaco's stake in the joint
venture was sold to Shell Oil Co. after Texaco was taken over by
ChevronTexaco Corp (Class Action Reporter, July 11, 2005).
The cases are Texaco v. Dagher, 04-805, and Shell Oil v. Dagher,
04-814. Daniel Shulman is attorney for the plaintiffs (Class
Action Reporter, July 11, 2005).
C.H. ROBINSON: Employees File Sexual Harassment Lawsuit in Ill.
---------------------------------------------------------------
Six current and former employees at C.H. Robinson Worldwide Inc.
(CHRW) filed sexual harassment and other individual claims of
sex discrimination against the company in the U.S. District
Court for the Northern District of Illinois.
The lawsuit follows four similar suits recently filed against
the transportation logistics company in North Carolina, Alabama
and Washington in which nine women have alleged that they were
subjected to sexual harassment, discrimination and retaliation.
According to Sprenger & Lang, counsel for the plaintiffs, 50 or
more women will be filing additional lawsuits in at least 17
states in the months ahead alleging similar fact patterns.
The six women, who worked in the company's Chicago-area
branches, describe a sexually charged work environment where men
openly viewed and commented on pornographic pictures on
computers, made unwelcome comments and sexual advances, and
followed "team building" exercises at a bar with excursions to a
local strip club. Afterwards, back in the office, the men
typically described the strippers in the presence of the
plaintiffs.
Two of the women also allege C.H. Robinson discriminated against
them due to their pregnancies by ostracizing and demoting them,
which resulted in financial losses.
"C.H. Robinson fostered a fraternity house environment where
women were treated like party crashers rather than valued
employees," said Steven Sprenger, lead counsel for the
plaintiffs. "The company implicitly condoned this behavior,
which left the women with no recourse. We hope these claims will
finally put an end to the party."
2002 Class Action Trial
Sprenger & Lang initially filed a complaint against C.H.
Robinson in October 2002 seeking class certification for current
and former employees who alleged a pattern of sex discrimination
in compensation, promotions, and working conditions. In March
2005, a federal judge in Minnesota granted class certification
with regard to the compensation and promotion claims, but denied
the hostile environment class, stating that the fact patterns
were too diverse. The class action is scheduled for trial on
April 11, 2006.
Based on the federal court's ruling, the firm intends to file
additional claims against C.H. Robinson in the months ahead,
with potential compensatory and punitive damages totaling
millions of dollars.
For more information about the claims against C.H. Robinson,
visit http://www.chrwgendercase.com.
Contact for plaintiff's lead counsel:
Steven M. Sprenger
Sprenger & Lang, PLLC
1400 Eye Street, N.W., Suite 500
Washington, District of Columbia 20005
Phone: 202-265-8010
Fax: 202-332-6652
Steven M. Sprenger
Sprenger & Lang, PLLC
310 Fourth Avenue South
Suite 600
Minneapolis, Minnesota 55415
(Hennepin Co.)
Phone: 612-871-8910
Fax: 612-871-9270
COMMUNITY HEALTH: Defendant Added in Uninsured Patients' Lawsuit
----------------------------------------------------------------
Community Health Systems, Inc.'s management company subsidiary
was added as a defendant in a class action filed in the Court of
Common Pleas, Montgomery County, Pennsylvania. The suit is
styled, "James Monroe v. Pottstown Memorial Hospital and
Community Health Systems, Inc."
The class action was brought by the plaintiff on behalf of
himself and as the representative of similarly situated
uninsured individuals who were treated at the Company's
Pottstown Memorial Hospital or any of its other Pennsylvania
hospitals. The plaintiff alleges that uninsured patients who do
not qualify for Medicaid, Medicare or charity care are charged
unreasonably high rates for services and materials and that the
Company use unconscionable methods to collect bills.
The plaintiff seeks recovery under the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, restitution of
overpayment, compensatory and other allowable damages and
injunctive relief. This case was recently dismissed and re-
filed, adding Community Health's management company subsidiary
as a defendant.
COMMUNITY HEALTH: Discovery Begins in Uninsured Patients' Suit
--------------------------------------------------------------
Discovery has started in a class action filed against Community
Health Systems, Inc. in the Circuit Court of Barbour County,
Alabama, (Eufaula Division). The suit is styled, "Arleana
Lawrence and Lisa Nichols vs. Eufaula Community Hospital,
Community Health Systems, Inc., South Baldwin Regional Medical
Center and Community Health Systems Professional Services
Corporation."
The class action, previously, captioned, "Arleana Lawrence and
Robert Hollins v. Lakeview Community Hospital and Community
Health Systems, Inc.," was brought by the plaintiffs on behalf
of themselves and as the representatives of similarly situated
uninsured individuals who were treated at the Company's Lakeview
Hospital or any of the Company's other Alabama hospitals. The
plaintiffs allege that uninsured patients who do not qualify for
Medicaid, Medicare or charity care are charged unreasonably high
rates for services and materials and that we use unconscionable
methods to collect bills. The plaintiffs seek restitution of
overpayment, compensatory and other allowable damages and
injunctive relief.
In October 2005, the complaint was amended to eliminate one of
the named plaintiffs and to add Community Health's management
company subsidiary as a defendant. In November 2005, the
complaint was again amended to add another plaintiff, Lisa
Nichols and another defendant, our hospital in Foley, Alabama,
South Baldwin Regional Medical Center. Discovery has commenced
in this case.
DIOCESE OF JOLIET: Sexual Abuse Suit Demands List of Offenders
--------------------------------------------------------------
A Minnesota man claiming to be a victim of sexual harassment by
a priest from the Diocese of Joliet filed a class action against
the parish on Feb. 28, according to Associated Press.
George Knotek, who filed the suit in Dupage County Circuit
Court, claims he was abused by his family's priest at Divine
Savior Church in Downer's Grove in 1970. The priest already
died in 2004.
Mr. Knotek is not seeking monetary compensation. Instead, he is
asking:
(1) the release the names of all priests and other
employees accused of sexually abusing children since
1950;
(2) an order against the destruction of any documents
regarding suspected sexual abuse; and
(3) the turning over of the documents to the court for
safekeeping.
His lawsuit lists the names of 28 priests it says have been
accused of sexual misconduct in the Joliet Diocese based on
media reports and previous litigation.
The Diocese of Joliet said in a statement that in 2002 it gave
to the state's attorneys of Will and DuPage counties the files
of priests accused of sexual abuse of a minor.
Mr. Knotek's attorney is Marc Pearlman.
Marc J. Pearlman
Kerns, Pitrof, Frost & Pearlman, L.L.C.
Three First National Plaza, Suite 5350, 70 West Madison
Chicago, Illinois 60602
(Cook Co.)
Phone: 312-261-4550
Fax: 312-261-4565
EBAY INC: Faces Lawsuit Over Alleged "Shill Bidding" at Web Site
----------------------------------------------------------------
eBay, Inc. is facing a purported class action in the Superior
Court of the State of California, County of Santa Clara (No.
105CV035930). The suit alleges that certain bidding features of
the Company's web site constitute "shill bidding" for the
purpose of artificially inflating bids placed by buyers on the
site.
The complaint alleges violations of California's Auction Act,
California's Consumer Remedies Act, and unfair competition. The
complaint seeks injunctive relief, damages, and a constructive
trust. In April 2005, we filed a demurrer seeking to dismiss the
complaint, and a hearing on the demurrer was held in February
2006. The Company believes that it has meritorious defenses to
the allegations.
EBAY INC: Reaches Settlement in Calif. Improper Billing Lawsuit
---------------------------------------------------------------
eBay, Inc. and plaintiffs have reached tentative settlement in a
purported class action filed in the Superior Court of the State
of California, County of Santa Clara. The suit alleges that the
Company engaged in improper billing practices as the result of
problems with the rollout of a new billing software system in
the second and third quarters of 2004.
The lawsuit is seeking damages and injunctive relief. An
amended complaint was filed in January 2005, dropping one
plaintiff, changing the capacity of the other plaintiff to that
of representative plaintiff, and adding seven additional eBay
users as plaintiffs. The amended complaint expanded its claim
to include numerous alleged improper billing practices from
September 2003 until the present. In February 2005, eBay filed a
motion to strike and a demurrer seeking to dismiss the
complaint.
In April 2005, the court sustained portions of the demurrer, but
granted the plaintiffs leave to amend their complaint. The
plaintiffs filed a second amended complaint, dropping the last
original plaintiff and again adding new plaintiffs. The Company
filed a motion to strike and a demurrer regarding the
plaintiffs' second amended complaint. In July 2005, the court
again sustained a portion of the demurrer and again granted the
plaintiffs leave to amend their complaint, and the plaintiffs
filed a third amended complaint. In December 2005, the
plaintiffs filed a fourth amended complaint, dropping several
plaintiffs.
In January 2006, the parties reached tentative agreement on the
terms of a settlement, though the settlement has not been
finalized.
The suit is styled, "Cerreta v. Ebay, Inc., case no. 1-04-CV-
022708," filed in the Santa Clara County Superior Court in
California. Representing the Plaintiff/s is Jeffrey L. Fazio,
Fazio & Micheletti LLP, 1900 South Norfolk Street, Suite 350,
San Mateo, CA 94403. Representing the Defendant/s are, Grant P.
Fondo, Michael G. Rhodes, Melina K. Patterson, and Arron P.
Arnzen of Cooley Godward LLP, Five Palo Alto Square, 3000 El
Camino Real, Palo Alto, CA 94306-2155.
EBAY INC: Reaches Settlement in N.Y. Consumer Fraud Litigation
--------------------------------------------------------------
eBay, Inc. and plaintiffs reached tentative settlement in the
consumer class action filed against the Company in the U.S.
District Court for the Eastern District of New York.
In March 2005, the Company, PayPal, and an eBay seller were sued
in Supreme Court of the State of New York, County of Kings
(No. 6125/05) in a purported class action alleging that certain
disclosures regarding PayPal's Buyer Protection Policy, users'
chargeback rights, and the effects of users' choice of funding
mechanism are deceptive and/or misleading.
The complaint alleged:
(1) misrepresentation on the part of the Company and
PayPal,
(2) breach of contract and deceptive trade practices by
PayPal, and
(3) joint violation of PayPal and the Company of the civil
RICO statute (18 U.S.C. Section 1961(4)).
In April 2005, eBay and PayPal removed the case to the U.S.
District Court for the Eastern District of New York and the
plaintiffs filed an amended complaint in the U.S. District Court
(No. 05-CV-01720) repeating the allegations of the initial
complaint but dropping the civil RICO allegations. The
complaint seeks injunctive relief, compensatory damages, and
punitive damages.
Following several mediation sessions, the parties reached a
tentative settlement in December 2005. The parties are still
engaged in the process of documenting this settlement. In order
for the settlement to become final, the court must preliminarily
approve its terms, and the settlement must then receive final
approval from the court after a public hearing. The full amount
of the proposed settlement was accrued in the Company's
consolidated income statement for the year ended December 31,
2005.
The suit is styled, "Steele, et al. v. Paypal, Inc. et al., Case
No. 1:05-cv-01720-ILG-VVP," filed in the U.S. District Court for
the Eastern District of New York, under Judge I. Leo Glasser.
Representing the Plaintiff/s is Marina Trubitsky, Marina
Trubitsky & Associates, PLLC, 11 Broadway, Ste. 861, New York,
NY 10004 Phone: 212-732-7707 E-mail: dtcassociates@yahoo.com.
Representing the Defendant/s are, Benjamin Chapman, Angela
Dunning, Laura C. Pierri; Lori R.E. Ploeger and Michael G.
Rhodes of Cooley Godward LLP, 4401 Eastgate Mall San Diego, CA
92121-1909 Phone: 858-550-6000; and Amy W. Schulman of DLA Piper
Rudnick Gray Cary US LLP, 1251 Avenue of the Americas
New York, NY 10020-1104 Phone: (212) 835-6108 Fax: 212-835-6001
E-mail: amy.schulman@piperrudnick.com.
ENOGEX INC: Oil, Gas Well Owners Launch Royalties Suit in Okla.
---------------------------------------------------------------
Enogex, Inc., Enogex Products Corporation and Enogex Gas
Gathering, L.L.C. face a purported class action filed in the
District Court of Canadian County, Oklahoma.
On July 22, 2005, the Company along with certain other
unaffiliated co-defendants was served with a purported class
action, which had been filed on February 7, 2005 by Farris Buser
and other named plaintiffs in the District Court of Canadian
County, Oklahoma.
The plaintiffs own royalty interests in certain oil and gas
producing properties and allege they have been under-compensated
by the named defendants, including the Enogex companies,
relating to the sale of liquid hydrocarbons recovered during the
transportation of natural gas from the plaintiffs' wells. The
plaintiffs assert breach of contract, implied covenants,
obligation, fiduciary duty, unjust enrichment, conspiracy and
fraud causes of action and claim actual damages in excess of
$10,000, plus attorneys' fees and costs, and punitive damages in
excess of $10,000.
The Enogex companies filed a motion to dismiss, which was
granted on November 18, 2005, subject to the plaintiffs' right
to conduct discovery and the possible re-filing of their
allegations in the petition against Enogex companies. The
court-established re-filing deadline has been extended by order
of the court until May 17, 2006.
On September 19, 2005, the co-defendants, BP America, Inc. and
BP America Production Co., filed a cross claim against Enogex
Products Corporation seeking indemnification and/or contribution
from it based upon the 1997 sale of a third party interest in
one of Products natural gas processing plants. Based on its
investigation to date, the Company believes these claims and
cross claims in this lawsuit are without merit and intends to
vigorously defend this case.
ENOGEX INC: Settles Small Gas Producers' Antitrust Suit in Okla.
----------------------------------------------------------------
Enogex, Inc. reached s settlement for in a putative class action
filed by G.M. Oil Properties, Inc. in the District Court of
Comanche County, Oklahoma.
Filed on March 8, 2005, the petition alleges that the Company
exercises a monopoly power with respect to its gathering
facilities within the state of Oklahoma. The petition further
alleges that, due to the alleged monopoly power, the Company
caused damage to the plaintiff and other small gas producers and
marketers. A settlement of this case was reached with the named
plaintiffs and the case brought by the named plaintiffs will be
dismissed with prejudice. Pursuant to the settlement, a certain
segment of gathering pipeline will be sold to G.M. Oil
Properties with the Company recognizing the resulting gain of
less than $0.1 million.
ENOGEX INC: Units Face Kans. Lawsuit Over Natural Gas Analysis
--------------------------------------------------------------
Several subsidiaries of Enogex, Inc. were named as defendant in
the class action, styled, "Will Price and Stixon Petroleum, et
al. v. Gas Pipelines, et al., 26th Judicial District, District
Court of Stevens County, Kansas, Civil Department, Case No.
03C232 (Price II)."
On May 12, 2003, the Plaintiffs (same as those in Price I) filed
a new class action petition (Price II) in the District Court of
Stevens County, Kansas, relating to wrongful Btu analysis
against natural gas pipeline owners and operators, naming the
same defendants as in the amended petition of the Price I case.
Two Enogex subsidiaries were served on August 4, 2003.
The Plaintiffs seek to represent a class of only royalty owners
either from whom the defendants had purchased natural gas or
measured natural gas since January 1, 1974 to the present. The
class action petition alleges improper analysis of gas heating
content. In all other respects, the Price II petition appears
to be the same as the amended petition in Price I. Discovery on
class certification is proceeding. A hearing on class
certification issues was held April 1, 2005.
EXPRESS SCRIPTS: Calif. Court Allows Filing of Amended PBM Suit
---------------------------------------------------------------
The Superior Court of the State of California for Alameda County
allowed the plaintiffs in the class action filed against Express
Scripts, Inc. (NASDAQ: ESRX) and styled, "Irwin v. AdvancePCS,
et al., Cause No. RG030886393," to file an amended complaint.
This case purports to be a class action against:
(1) the Company and other pharmacy benefit manager (PBM)
defendants on behalf of self-funded,
(2) non-Employee Retirement Income Security Act (ERISA)
health plans,
(3) and individuals with no prescription drug benefits that
have purchased drugs at retail rates.
The complaint alleges that certain business practices engaged in
by the Company and by other PBM defendants, violated
California's Unfair Competition Law.
The suit seeks unspecified monetary damages and injunctive
relief. It was coordinated with case, styled, "American
Federation of State, County Municipal Employees (AFSCME) v.
AdvancePCS, et al.," in Los Angeles County Superior Court. The
Company's motion for judgment on the pleadings in its favor was
granted, with plaintiffs given leave to file an amended
complaint, which they did.
EXPRESS SCRIPTS: Dismissal of Bradley Complaint Under Appeal
------------------------------------------------------------
Plaintiffs are appealing the Superior Court for the State of
California, Los Angeles County's decision to grant Express
Scripts, Inc.'s motion to dismiss the class action filed against
it and other companies, styled, "Anthony Bradley, et al v. First
Health Services Corporation, et al., Case No. BC319292."
On July 30, 2004, plaintiffs filed a complaint as a putative
class action, alleging rights to sue as a private attorney
general under California law. The complaint alleges that the
Company, and the other defendants, failed to comply with
statutory obligations under California Civil Code Section 2527
to provide its California clients with the results of a bi-
annual survey of retail drug prices. Plaintiffs request
injunctive relief, unspecified monetary damages and attorneys'
fees. The Company's motion to dismiss the complaint was granted
and plaintiffs appealed.
EXPRESS SCRIPTS: Pharmacies File Ala. Suit Over Reimbursements
--------------------------------------------------------------
Express Scripts, Inc. (NASDAQ: ESRX), faces a class action in
the U.S. District Court for the Middle District of Alabama,
captioned, "Pearson's Pharmacy, Inc. and Cam Enterprises, Inc.
d/b/a Altadena Pharmacy v. Express Scripts, Inc., Case No. 3:06-
CV-00073-WKW."
On February 15, 2005, a class action on behalf of all pharmacies
reimbursed based upon Average Wholesale Price was filed. The
complaint alleges that the Company fails to fully, timely and
properly reimburse pharmacies for filling prescriptions.
Plaintiffs seek unspecified monetary damages and injunctive
relief.
The suit is styled, "Pearson's Pharmacy, Inc. v. Express
Scripts, Inc., Case No. 3:06-cv-00073-WKW-VPM," filed in the
U.S. District Court for the Middle District of Alabama under
Judge William Keith Watkins with referral to Judge Vanzetta P.
McPherson. Representing the Plaintiff/s are, Robert G. Methvin,
Jr. and James Michael Terrell of McCallum, Methvin & Terrell,
2201 Arlington Avenue, South Birmingham, AL 35205, Phone: (205)
939-0199, Fax: 205-939-0399, E-mail: rgm@mmlaw.net and
jterrell@mmlaw.net; and Kenneth Evan Riley of Farris, Riley &
Pitt, LLP, 2025 Third Avenue, North Suite 200, Birmingham, AL
35203, Phone: (205) 324-1212, Fax: 324-1255, E-mail:
Kriley@frplegal.com.
EXPRESS SCRIPTS: Pharmacy Launches Antitrust Suit in N.D. Ala.
--------------------------------------------------------------
Express Scripts, Inc. (NASDAQ: ESRX) continues to face a class
action filed in the U.S. District Court for the Northern
District of Alabama, styled, "North Jackson Pharmacy, Inc., et
al. v. Express Scripts, Inc., Case No. 5:03-cv-02696-VEH."
This case purports to be a class action against the Company on
behalf of independent pharmacies within the U.S. The complaint
alleges that certain of its business practices violate the
Sherman Antitrust Act, 15 U.S.C 1, et. seq. The suit seeks
unspecified monetary damages (including treble damages) and
injunctive relief. Plaintiffs' motion for class certification
has been briefed and argued.
The suit is styled "North Jackson Pharmacy, Inc. et al. v.
Express Scripts, Inc., et al., Case No. 5:03-cv-02696-VEH,"
filed in the U.S. District Court for the Northern District of
Alabama, under Judge Virginia Emerson Hopkins. Representing the
Plaintiff/s are:
(1) Andrew C Allen, Othni J. Lathram, Joe R. Watley,
WHATLEY DRAKE LLC, 2323 Second Avenue North Post Office
Box 10647, Birmingham, AL 35202-0647, Phone: 328-9576,
E-mail: ecf@whatleydrake.com, jwhatley@whatleydrake.com
(2) Chris W. Cantrell, A. David Fawal, Archie Lamb, Jr.,
LAW OFFICES OF ARCHIE LAMB LLC, PO Box 2088,
Birmingham, AL 35201, Phone: 324-4644, Fax: 324-4649,
E-mail: ccantrell@archielamb.com,
dfawal@archielamb.com, alamb@archielamb.com
(3) Gail A McQuilkin, Harley Tropin, KOZYAK TROPIN &
THROCKMORTON PA, 2525 Ponce de Leon, 9th Floor Coral
Gables, FL 33134, Phone: 305-372-1800, fax: 305-372-
3508, E-mail: gam@kttlaw.com or hst@kttlaw.com
Representing the Defendant/s are, A. Kelly Brennan, Gregory C.
Cook, BALCH & BINGHAM LLP, PO Box 306 Birmingham, AL 35201-0306,
Phone: 251-8100, Fax: 488-5828, E-mail: kbrennan@balch.com and
gcook@balch.com; and Peter E. Kazanoff, Kenneth R. Logan, Jama
M. Meyer, SIMPSON THACHER & BARTLETT LLP, 425 Lexington Avenue,
New York, NY 10017-3954, Phone: 212-455-3525, Fax: 212-455-2502,
E-mail: pkazanoff@stblaw.com, klogan@stblaw.com,
jmeyer@stblaw.com.
EXPRESS SCRIPTS: Plaintiff Appeals Dismissal of AFSCME Complaint
----------------------------------------------------------------
The plaintiff in the purported class action, styled, "American
Federation of State, County Municipal Employees (AFSCME) v.
AdvancePCS, et al., (Cause No. BC292227)," is appealing the
dismissal of the case.
The suit was filed with the Superior Court of the State of
California for the County of Los Angeles against Express
Scripts, Inc. (NASDAQ: ESRX) and other (pharmacy benefit
manager) PBM defendants on March 17, 2003.
The case purports to be a class action on behalf of:
(1) AFSCME,
(2) its California member unions having non-Employee
Retirement Income Security Act (ERISA) health plans,
and
(3) all California public employees who participate in non-
ERISA health plans.
The complaint alleges that certain business practices engaged in
by the Company and other PBM defendants, violated California's
Unfair Competition Law. The suit seeks unspecified monetary
damages and injunctive relief. The case was coordinated with
the suit, styled, "Irwin v. AdvancePCS, et al., Cause No.
RG030886393." The parties have signed a stipulated dismissal
and the court has entered an order of dismissal with prejudice.
Plaintiff is appealing though.
EXPRESS SCRIPTS: Shareholder Lawsuits in E.D. Miss. Consolidated
----------------------------------------------------------------
Several pending securities class action filed against Express
Scripts, Inc. (NASDAQ: ESRX), were consolidated into a single
action, styled, "In re Express Scripts Securities Litigation,
(Cause No. 4:04-CV-1009, U.S. District Court for the Eastern
District of Missouri)." The shareholder lawsuits that were
consolidated, include:
(1) Sylvia Childress, et al. v. Express Scripts, Inc., et
al., (Cause No. 04-CV-01191, U.S. District
Court for the Eastern District of Missouri)
(2) Lidia Garcia, et al. v. Express Scripts, Inc., et al.,
(Cause No. 04-CV-1009, United States District Court for
the Eastern District of Missouri)
(3) Robert Espriel, et al. v. Express Scripts, Inc., et
al., (Cause No. 04-CV-01084, United States District
Court for the Eastern District of Missouri)
(4) Raymond Hoffman, et al. v. Express Scripts, Inc., et
al., (Cause No. 04-CV-01054, United States District
Court for the Eastern District of Missouri)
(5) John R. Nicholas, et al. v. Express Scripts, Inc., et
al., (Cause No. 04-CV-1295, United States District
Court for the Eastern District of Missouri)
(6) John Keith Tully, et al. v. Express Scripts, Inc., et
al., (Cause No. 04-CV-01338, United States District
Court for the Eastern District of Missouri).
Plaintiffs have filed an amended complaint. The complaint
alleges that the Company and certain of its officers violated
federal securities law. The complaint alleges that the Company
failed to disclose certain alleged improper business practices
and issued false and misleading financial statements and that
certain Company officers violated insider trading laws.
The complaint is brought on behalf of purchasers of the Company
stock during the period October 29, 2003 to August 3, 2004. The
complaint requests unspecified compensatory damages, equitable
relief and attorney's fees. Defendants have filed a motion to
dismiss.
The suit is styled, "In Re: Express Scripts, Inc., Securities
Litigation, Class Action, Case No. 4:04-cv-01009-SNL," filed in
the U.S. District Court for the Eastern District of Missouri
under Judge Stephen N. Limbaugh. Representing the Plaintiff/s
are:
(1) Martin W. Blanchard of Sauerwein and Blanchard, P.C.,
147 N. Meramec, Suite 200, Clayton, MO 63105, Phone:
314-863-9100, Fax: 314-863-9101, E-mail:
mwb@sauerwein.com;
(2) Travis E. Downs, III of Lerach and Coughlin, LLP, 655
West Broadway, Suite 1900, San Diego, CA 92101, Phone:
619-231-1058, Fax: 619-231-7423, E-mail:
travisd@lerachlaw.com;
(3) Patrick J. Kaine of Dysart and Taylor, 4420 Madison
Avenue, Suite 200, Kansas City, MO 64111, Phone: 816-
931-2700, Fax: 816-931-7377, E-mail:
pkaine@dysarttaylor.com.
Representing the Defendant/s are, Michael J. Chepiga, James G.
Gamble and Robert J. Pfister of Simpson and Thacher, LLP, 425
Lexington Avenue, New York, NY 10017, Phone: 212-455-2598, Fax:
212-455-2502, E-mail: mchepiga@stblaw.com, jgamble@stblaw.com
and rpfister@stblaw.com.
FAMILY DOLLAR: Managers' Lawsuit Goes Back to Ala. Federal Court
----------------------------------------------------------------
Lawyers for more than 1,400 Family Dollar Stores Inc. managers
are back in Tuscaloosa, Alabama federal court seeking millions
of dollars in back pay for overtime wages the managers say the
company owes them, The Birmingham News reports.
It is the second time attorneys brought the class-action case to
trial. The first ended in a mistrial. The first plaintiff in
the case was Janice Morgan, a former Family Dollar manager who
lives in Childersburg.
Attorneys for Ms. Morgan and other plaintiffs say they were
misled by the Company into believing they were hired to manage a
store for a salary and bonus covering 48 hours a week. Instead,
attorneys claim the managers worked up to 90 hours a week doing
manual labor such as unloading trucks, stocking shelves and
mopping floors.
The Charlotte-based Company though denied the plaintiffs' claims
and reiterated that the managers are salaried, so they are
ineligible for overtime.
The suit is styled, "Morgan, et al. v. Family Dollar Stores,
Case No. 7:01-cv-00303-UWC," filed in the U.S. District Court
for the Northern District of Alabama under Judge U W Clemon.
Representing the Plaintiff/s are, Robert L. Wiggins, Jr. of
Wiggins Childs Quinn & Pantazis, 301 19th Street, North
Birmingham, AL 35203-3204, Phone: 328-0640, E-mail:
RWiggins@WCQP.com; and Barry V. Frederick of The Frederick Firm,
5409 Trace Ridge Lane, Hoover, AL 35244, Phone: 205-410-0822, E-
mail: bvf123@charter.net.
Representing the Defendant/s are, Jay D. St. Clair of Bradley
Arant Rose & White, P.O. Box 830709, Birmingham, AL 35283-0709,
Phone: 521-8000, E-mail: jstclair@bradleyarant.com; and Arnold
W. Umbach, III, STARNES & ATCHISON, LLP, 100 Brookwood Place,
Seventh Floor, P.O. Box 598512, Birmingham, AL 35259-8512,
Phone: 205-868-6072, Fax: 205-868-6099, E-mail:
tumbach@starneslaw.com.
HARTFORD FINANCIAL: Faces Consolidated Securities Suit in Conn.
---------------------------------------------------------------
The Hartford Financial Services Group and certain of its
executive officers faces a consolidated amended complaint in the
U.S. District Court for the District of Connecticut under
Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5.
The consolidated amended complaint alleges on behalf of a
putative class of shareholders that the Company and the four
named individual defendants, as control persons of the Company,
failed to disclose to the investing public that the Company's
business and growth was predicated on the unlawful activity
alleged in New York Attorney General Eliot Spitzer's civil
complaint over insurance fraud (NYAG Complaint).
On October 14, 2004, the NYAG Complaint was filed against Marsh
Inc. and Marsh & McLennan Companies, Inc. (collectively, Marsh)
alleging, among other things, that certain insurance companies,
including the Company, participated with Marsh in arrangements
to submit inflated bids for business insurance and paid
contingent commissions to ensure that Marsh would direct
business to them. The Company is not joined as a defendant in
the action.
The class period alleged is August 6, 2003 through October 13,
2004, the day before the NYAG Complaint was filed. The
complaint seeks damages and attorneys' fees. Defendants filed a
motion to dismiss in June 2005, and the Court heard oral
argument on December 22, 2005. The Company and the individual
defendants dispute the allegations.
The suit is styled, "Staehr v. Hartford Financial Services
Group, Inc., et al., Case No. 3:04-cv-01740-CFD," filed in the
U.S. District Court for the District of Connecticut under Judge
Christopher F. Droney. Representing the Plaintiff/s are, Erin
Green Comite of Scott & Scott, 108 Norwich Ave., P.O. Box 192,
Colchester, CT 06415, Phone: 860-537-5537, Fax: 869-537-4432, E-
mail: ecomite@scott-scott.com; and Tor Gronborg of Lerach
Coughlin Stoia Geller Rudman & Robbins - SD, CA, 655 W.
Broadway, Suite 1900, San Diego, CA 92101, Phone: 619-231-1058,
Fax: 631-231-7423, E-mail: torg@lerachlaw.com.
Representing the Defendant/s are, Jack C. Auspitz of Morrison &
Foerster, 1290 Avenue Of The Americas, New York, NY 10104-0050,
Phone: 212-468-8000, Fax: 212-468-7900, E-mail:
jauspitz@mofo.com; and Timothy Andrew Diemand of Wiggin & Dana -
Htfd., One Cityplace, 185 Asylum St., Hartford, CT 06103, Phone:
860-297-3738, Fax: 860-525-9380, E-mail: tdiemand@wiggin.com.
HARTFORD FINANCIAL: Faces Multidistrict Litigation in N.J. Court
----------------------------------------------------------------
The Hartford Financial Services Group is a defendant in a
multidistrict litigation in federal district court in New
Jersey.
There are two consolidated amended complaints filed in the
multidistrict litigation, one related to alleged conduct in
connection with the sale of property-casualty insurance and the
other related to alleged conduct in connection with the sale of
group benefits products. The Company and several of its
subsidiaries are named in both complaints.
The actions assert, on behalf of a class of persons who
purchased insurance through the broker defendants, claims under
the Sherman Act, the Racketeer Influenced and Corrupt
Organizations Act (RICO), state law, and in the case of the
group benefits complaint, claims under Employee Retirement
Income Security Act (ERISA) arising from conduct similar to that
alleged in New York Attorney General Eliot Spitzer's civil
complaint over insurance fraud (NYAG Complaint).
The class period alleged is 1994 through the date of class
certification, which has not yet occurred. The complaints seek
treble damages, injunctive and declaratory relief, and
attorneys' fees.
The Company also has been named in two similar actions filed in
state courts, which the defendants have removed to federal
court. Those actions currently are transferred to the court
presiding over the multidistrict litigation.
HARTFORD FINANCIAL: Faces Suits Over ERISA Violations in Conn.
--------------------------------------------------------------
Three putative class actions were filed in the U.S. District
Court for the District of Connecticut on behalf of participants
in The Hartford Financial Services Group's 401(k) plan against:
(1) the Company,
(2) Hartford Fire Insurance Company,
(3) The Hartford's Pension Fund Trust and Investment
Committee,
(4) The Hartford's Pension Administration Committee,
(5) The Hartford's Chief Financial Officer, and
(6) John/Jane Does 1-15.
The suits assert claims under the Employee Retirement Income
Security Act of 1974, as amended (ERISA), alleging that The
Hartford and the other named defendants breached their fiduciary
duties to plan participants by, among other things, failing to
inform them of the risk associated with investment in The
Hartford's stock as a result of the activity alleged in New York
Attorney General Eliot Spitzer's civil complaint over insurance
fraud (NYAG Complaint). The class period alleged is November 5,
2003 through the present. The complaints seek restitution of
losses to the plan, declaratory and injunctive relief, and
attorneys' fees.
LOWRANCE ELECTRONICS: Settles Securities Suit Over Simrad Merger
----------------------------------------------------------------
Lowrance Electronics, Inc. (LEIX) and its board members have
entered into an agreement in principle to settle the stockholder
class action brought against them in opposition of the tender
offer and merger transaction with Simrad Yachting AS and Simrad
Yachting's wholly owned subsidiary, Navico Acquisition Corp.
Under the agreement in principle:
(1) Lowrance,
(2) Simrad Yachting,
(3) Navico, and
(4) their respective advisors
would be released from all claims that have been brought or
could have been brought under state or federal law arising out
of or related to the tender offer and any subsequent merger. In
consideration for the settlement and dismissal with prejudice of
the action and the releases, Lowrance agreed to include
additional disclosures in its filings with the Securities and
Exchange Commission and not to oppose a fee application by
plaintiff's attorneys of $325,000.
The additional disclosures were included in a document filed by
Lowrance with the Securities and Exchange Commission on February
23, 2006. The proposed settlement is subject to customary
conditions, such as the completion of reasonable confirmatory
discovery in the action by plaintiff's counsel and court
approval.
Lowrance Electronics -- http://www.lowrance.com-- designs,
manufactures and markets SONAR and GPS products, digital mapping
systems and accessories under the brand names "Lowrance"(R) and
"Eagle"(R) Electronics, "Lowrance Automotive(TM)" and "Lowrance
Avionics"(R). These products are used in: marine, general
consumer (which includes handheld GPS outdoor recreational use
and voice turn-by-turn navigational systems for aftermarket
automotive use) and aviation.
For more information on Lowrance Electronics, Inc., contact Paul
Murphy, Phone: 918-437-6881, or Berkman Associates, Phone: 310-
826-5051, E-mail: info@BerkmanAssociates.com.
MAGNA ENTERTAINMENT: Unit Faces Forced Labor Claims in Europe
-------------------------------------------------------------
Magna Entertainment Corp. said that one of its subsidiaries has
been named as a defendant in a class action brought in a U.S.
District Court by various plaintiffs.
The plaintiffs in this action claim unspecified compensatory and
punitive damages, for restitution and disgorgement of profits,
all in relation to forced labor performed by the plaintiffs for
such subsidiary and certain other Austrian and German corporate
defendants at their facilities in Europe during World War II and
certain property right claims.
As a result of a reorganization in prior years, the Company
acquired the shares of such subsidiary. Under Austrian law,
such subsidiary would be jointly and severally liable for the
damages awarded in respect of these class action claims. An
Austrian subsidiary of Magna has agreed to indemnify such
subsidiary for any damages or expenses associated with this
case.
Magna Entertainment -- -- http://www.magnaent.com/-- owns and
operates horse racetracks, and supplies, via simulcasting, live
racing content to the inter-track, off-track and account
wagering markets.
For more information on Magna Entertainment, contact Blake
Tohana, Executive Vice-President and Chief Financial Officer,
Magna Entertainment Corp., 337 Magna Drive, Aurora,
ON, L4G 7K1, Phone: (905) 726-7493.
NC SOFT: Thousands Join Legal Action Over Identity Thefts
---------------------------------------------------------
Approximately 3,500 people joined a class action suit against
the maker of the online game Lineage, making it the largest ever
in South Korea's legal history, an Internet law portal service
leading the case said, The Korea Herald reports.
Previously, Lawmarket Asia, a legal Internet portal site, along
with the K.R. law firm, told The Korea Herald that it would lead
a class action against Korean online game maker N.C. Soft and
its blockbuster game, to demand compensation for massive
identification thefts. They accuse the company of failing to
verify the identifications of members when they registered,
(Class Action Reporter, Feb. 27, 2006).
According to Lawmarket, more than 3,500 people have applied to
join the litigation as of February 28, 2006. It plans to file
the lawsuit on March 13.
Local police have been investigating the nation's biggest case
of online identification theft since mid March of 2005, after
nearly 224,000 "netizens" reported their I.D. numbers as stolen
and registered at Lineage.
Lawmarket is planning to demand that N.C. Soft compensate each
I.D. theft victim with about $1,034.3 for violating personal
information protection. "It will only cost each victim 10,000
won ($10.34) to join the group lawsuit, so it is practically a
lawsuit with no charge, for the public interest," the Lawmarket
spokesperson told The Korea Herald, (Class Action Reporter, Feb.
27, 2006).
The Ministry of Information and Communication told The Korea
Herald that it will strengthen its monitoring of Internet
Protocol addresses suspected of being used to steal private
online information. It also promised that it would introduce
alternatives to resident registration numbers, an identification
that users are required to submit when registering with Internet
sites.
In addition, the ministry said that it would develop and
distribute security patches to Internet sites to protect the
privacy of users. It also plans to ask for cooperation from the
Chinese government to delete stolen information still in
circulation online in the assumption that hackers in China were
involved in the incident. Efforts to prevent further such theft
of private information from frequently visited Web sites will be
strengthened, the ministry told The Korea Herald.
OGE ENERGY: Subsidiaries Face Lawsuit Over Alleged Underpayments
----------------------------------------------------------------
Several subsidiaries of OGE Energy Corp. were named as defendant
in the class action claiming that the defendants had underpaid
gas producers and royalty owners throughout the U.S. by
intentionally understating both the volume and the heating
content of purchased gas.
The suit is styled, "Will Price, et al. v. Gas Pipelines, et al.
(f/k/a Quinque Operating Company, et al. v. Gas Pipelines, et
al.), 26th Judicial District, District Court of Stevens County,
Kansas, Civil Department, Case No. 99C30 (Price I)."
On Sept. 24, 1999, various subsidiaries of the Company were
served with a class action petition alleging miscalculation of
natural gas on non-federal lands. On April 10, 2003 the Court
entered an order denying class certification. On May 12, 2003,
Plaintiffs (now Will Price, Stixon Petroleum, Inc., Thomas F.
Boles and the Cooper Clark Foundation, on behalf of themselves
and other royalty interest owners) filed a motion seeking to
file an amended petition and the court granted the motion on
July 28, 2003.
In this amended petition, the Company and Enogex Inc. were
omitted from the case. Two subsidiaries of Enogex remain as
defendants. The Plaintiffs' amended petition alleges that
approximately 60 defendants, including two Enogex subsidiaries,
have improperly measured natural gas. The amended petition
reduces the claims to:
(1) mismeasurement of volume only;
(2) conspiracy, unjust enrichment and accounting;
(3) a putative Plaintiffs’ class of only royalty
owners; and
(4) gas measured in three specific states.
Discovery on class certification is proceeding. A hearing on
class certification issues was held April 1, 2005. The Company
intends to vigorously defend this action. At this time, the
Company is unable to provide an evaluation of the likelihood of
an unfavorable outcome and an estimate of the amount or range of
potential loss to the Company.
PAYPAL INC: Reaches Settlement in Calif. Consumer Fraud Lawsuit
---------------------------------------------------------------
PayPal, Inc. reached a settlement for the consolidated class
action filed against it in the U.S. District Court for the
Northern District of California, alleging that its restriction
of customer accounts and failure to promptly unrestrict
legitimate accounts violates California state consumer
protection laws and is an unfair business practice and a breach
of PayPal's User Agreement.
In February 2002, PayPal was initially sued in California state
court (No. CV-805433). This action was re-filed with a
different named plaintiff in June 2002 (No. CV-808441), and a
similar action was also filed in the U.S. District Court for the
Northern District of California in June 2002 (No. C-02-2777).
In March 2002, PayPal was sued in the U.S. District Court for
the Northern District of California (No. C-02-1227) in a
purported class action alleging that its limiting access to
customer accounts and failure to promptly restore access to
legitimate accounts violates federal and state consumer
protection and unfair business practice laws.
The two federal court actions were consolidated into a single
case, and the state court action was stayed pending developments
in the federal case. In June 2004, the parties announced that
they had reached a proposed settlement. The settlement received
approval from the federal court on November 2, 2004, and the
state court action was dismissed with prejudice in March 2005.
In the settlement, PayPal does not acknowledge that any of the
allegations in the case are true. Under the terms of the
settlement, certain PayPal account holders are eligible to
receive payment from a settlement fund of $9.25 million, less
administrative costs and the amount awarded to plaintiffs'
counsel by the court. That sum is being distributed to class
members who have submitted timely claims in accordance with the
settlement's plan of allocation. The court must still approve
the plan of allocation for a portion of the settlement fund that
remains undistributed. The Special Master, who has recommended
that the District Court issue its approval, recently approved
that plan. Substantially all of the cost associated with the
settlement was reserved in 2003.
The suit is styled, "In Re Paypal Litigation, Case No. 5:02-cv-
01227-JF," filed in the U.S. District Court for the Northern
District of California, under Judge Jeremy Fogel with referral
to Judge Patricia V. Trumbull. Representing the plaintiffs are:
(1) Patricia I. Avery, Wolf Popper LLP, 845 Third Avenue,
New York, NY 10022, Phone: 212-759-4600, Fax: 212-486-
2093, E-mail: pavery@wolfpopper.com
(2) A.J. De Bartolomeo, Eric H. Gibbs, Daniel C. Girard,
Rosemary M. Rivas, Ann Saponara of Girard Gibbs & De
Bartolomeo, 601 California Street, Suite 1400, San
Francisco, CA 4108, Phone: 415-981-4800, Fax: 415 981-
4846, E-mail: ajd@girardgibbs.com,
girardgibbs@girardgibbs.com, rmr@girardgibbs.com
(3) James A.N. Smith, The Davis Law Firm, 625 Market St
12FL, San Francisco, Ca 94105-3314, Phone: (415)-278-
1400, E-mail: jsmith@sfdavislaw.com
Representing the Company are David J. Brown, Mikayla Shawn
Connell, David S. Harris, Stephanie Jane Johnson, Molly Moriarty
Lane, Morgan, Lewis & Bockius LLP, One Market, Spear Street
Tower, San Francisco, CA 94105, Phone: 415-442-1222, Fax: 415-
442-1010, E-mail: djbrown@morganlewis.com,
msconnell@morganlewis.com, dsharris@morganlewis.com,
sjjohnson@morganlewis.com, mlane@morganlewis.com
For more details, visit: http://ResearchArchives.com/t/s?5f2.
PEPSI BOTTLING: Gets $23M from Corn Syrup Antitrust Settlement
--------------------------------------------------------------
The Pepsi Bottling Group, Inc. received approximately $23
million in relation to the settlement of a class action
concerning price-fixing in the sale of high fructose corn syrup
(HFCS) purchased by the Company during the years 1991 to 1995.
The suit, styled "In re: High Fructose Corn Syrup Antitrust
Litigation Master File No. 95-1477," filed in the U.S. District
Court for the Central District of Illinois," relates to
purchases of high fructose corn syrup made by the Company and
others. About 20 corn syrup buyers initially filed the suit in
the U.S. District Court for the Central District of Illinois
against several corn processors, alleging that they violated
antitrust laws from 1988 to 1995 by conspiring to artificially
inflate the price of high fructose corn syrup. About 2,000
plaintiffs joined the suit, including Coca-Cola Co., PepsiCo
Inc., Kraft Foods Inc. and Quaker Oats, an earlier Class Action
Reporter story (July 30,2004) states.
In July 2004, the parties in the suit forged a $531 million
settlement for the suit. The settlement amount was allocated to
each class action recipient based on the proportion of its
purchases of high fructose corn syrup from these suppliers
during the period 1991 through 1995 to the total of such
purchases by all class action recipients.
The suit is styled, "In Re High Fructose Corn Syrup Antitrust
Litigation, Master File No. 95-1477," filed in the U.S. District
court for the Central District of Illinois, Peoria Division.
Representing the Plaintiff/s are:
(1) Mr. Michael J. Freed of Much Shelist Freed Denenberg
Ament Bell & Rubenstein, P.C., 200 N. LaSalle Street,
Suite 2100 Chicago, IL 60601-1095
(2) Mr. Robert N. Kaplan, Kaplan, Kilsheimer & Fox, LLP
805 Third Avenue, New York, NY 10022
(3) Mr. H. Laddie Montague, Jr., Berger & Montague, P.C.
1622 Locust Street, Philadelphia, PA 19103-6365
PHISHING SCAMS: AOL Files $18M Suit Against Major Phishing Gangs
----------------------------------------------------------------
America Online Inc. has filed three civil lawsuits against
several major phishing gangs to help battle the rising tide of
E-mail phishing scams, devious email hoaxes, and complex
identity theft on the Internet. The filing of the suit is part
of the firm's wide-ranging efforts to protect the email safety
and security of AOL's members.
The lawsuits are the first by a major ISP to cite Virginia's
first-in-the-nation anti-phishing statute, adopted in July 2005.
The lawsuits also cite applicable Federal laws, including the
Federal Lanham Act (trademark law), and the Federal Computer
Fraud & Abuse Act (antispam). AOL is seeking total damage
awards of $18 million.
AOL's lawsuits allege that these phishing gangs, some believed
to operate from abroad, victimized AOL and CompuServe members
through E-mails that attempted to trick and lure them to fake
Web sites of legitimate online companies, for the purpose of
fooling them into giving up their personal identifying
information, such as AOL screen names, passwords, and credit
card information.
Overview Summary of AOL Phishing Complaints
(February 28, 2006)
(1) John Doe Phishers 11-20 case filed in the United States
District Court for the Eastern District of Virginia,
Alexandria Division, styled, "America Online, Inc. v.
John Does 1-10 Transmitting Phishing Spam Spoofing
Official AOL Mail and Websites (1:06cv206)":
Type of Phish: AOL Billing - Screen Name, PW,
credit card, CVN, bank and PIN
information, name, address
telephone number
Time Period Active: March 2005 to Present
Falsity in Headers: Use of Yahoo connecting MTAs;
falsified from lines claiming
to be Official AOL Mail
Summary of Investigation to Date: 600 domain names registered
that contain "aol" in the name
Webpages hosted in Germany
Romanian and domestic IP
addresses
Phishers allegedly used stolen
AOL screen names and
fraudulently-created screen
names using stolen credit
cards to acquire Internet
services used in phish
Damages Sought: $7.5 million based on $25,000
per day under Virginia
Computer Crimes Act
(anitphishing statute)
(2) John Doe Phishers 11-20 case filed in the United States
District Court for the Eastern District of Virginia,
Alexandria Division, styled "America Online, Inc. v.
John Does 1-10 Transmitting Phishing Spam Spoofing
Official Websites (1:06cv207)":
Type of Phish: AOL Billing - Screen Name, PW,
credit card, CVN, bank and PIN
information, SSN, DOB, DLN,
name, address, telephone
number, personal security
information (mother's maiden
name)
Time Period Active: March 2005 to Present
Falsity in Headers: Use of vulnerable form mail
scripts on foreign and
domestic commercial websites
Summary of Investigation To Date: Phishing sites typically
hosted with free webhosts
Phished data forwarded via E-
mail to E-mail addresses
accessed from both domestic
and foreign IPs
Damages Sought: $7.5 million based on $25,000
per day under Virginia
Computer Crimes Act
(anitphishing statute)
(3) John Doe Phishers 21-30 case filed in the U.S District
Court for the Eastern District of Virginia, Alexandria
Division, styled, "America Online, Inc. v. John Does 1-
10 Transmitting Phishing Spam Spoofing Compuserve
Websites (1:06cv208)":
Type of Phish: Compuserve Billing - Screen
Name, PW, credit card, CVN,
name, address, telephone
number
Time Period Active: July 2005 to October 2005
Falsity in Headers: Use of foreign and domestic
open proxies and mail relays
Summary of Investigation To Date:Dozens of domain names used to
host phishing websites
Other companies targeted
include PayPal and AT&T
Nearly a dozen stolen credit
cards allegedly used to
acquire Internet access used
in the phish
Damages Sought: $3.0 million based on $25,000
per day under Virginia
Computer Crimes Act
(anitphishing statute)
Lawyers for the plaintiff are:
Jennifer C. Archie
Latham Watkins
555 Eleventh St. N.W., Suite 1000
Washington, D.C. 20004-2505
(202)637-2200
Internet Law Group
Jon L. Praed (VSB #40678)
4121 Wilson Boulevard, Suite 101
Arlington, Virginia 22203
(703) 243-8100
"Phishing scams have grown more sophisticated and more dangerous
to consumers," said Curtis Lu, Senior Vice President and Deputy
General Counsel. "At AOL, we are using every legal and
technical means at our disposal to drive phishers from the AOL
service, not only to protect our members, but to make the
Internet a better, safer place for all consumers. The phishers
targeted in our lawsuits spoof a variety of prominent internet
brands, including AOL. We are going to continue to play our
part in protecting the sanctity and integrity of the email
experience of the web -- and [Tues]day's actions are a part of
our ongoing, successful, and comprehensive anti-spam and anti-
identity theft work."
AOL Anti-Phishing Lawsuits
The three lawsuits, filed in Alexandria, Virginia's U.S. Court
for the Eastern District of Virginia, target aggressive and
complex identity thieves who sent official-looking emails to AOL
members in an attempt to trick and lure them to websites that
mimicked the appearance and feel of official AOL or CompuServe
websites. Once directed to one of these fake websites, AOL and
CompuServe members were encouraged to enter their screen names,
passwords, billing and other financial information. These
phishers could then use this information to traffic in stolen
identities, to compromise credit cards and personal identities
of innocent internet users -- and then interfere with their
online experience, and for some -- to steal their identities and
assets. According to the lawsuits, these phishing groups used
vast resources and creativity to intricately design hundreds and
hundreds of fake websites to mislead consumers. AOL has stored
tens of thousands of examples of phish E-mails transmitted by
these gangs.
The Serious and Ongoing Threat of Phishing
Phishing is a growing online threat as scammers adapt and refine
their fraudulent efforts to trick consumers into giving up
personal information. The IRS, for example, is warning of
widespread phishing E-mails as tax filing deadlines near. The
Anti-Phishing Working Group (http://www.apwg.org)found almost
50,000 phishing Web sites created last year -- and more than
7,000 in December alone. A 2005 survey of personal computers by
AOL and the National Cyber Security Alliance found that 1 of
every 4 home computer users are hit by phishing attacks each
month.
AOL has fought the scourge of spamming and phishing on a number
of fronts -- from lawsuits to advanced technology to certified
mail programs. Every day, for example, AOL blocks an average
1.5 billion spam E-mails from reaching member inboxes, thereby
catching most phishing E-mails. AOL also blocks 80% of all
incoming E-mail from the Internet as spam at the gateway. Even
with spam complaints down on the AOL service by more than 75%
since its peak in late 2003, antispam filters blocked over 500
billion spam E-mails from reaching members in 2005, as announced
in December. AOL has also launched a program that blocks
delivery of E-mails with web links to known phishing sites. Web
links in E-mails from unknown senders are disabled by default,
to add another layer of protection for members. AOL also blocks
access to known phishing sites for members who use either the
AOL software or the AOL Explorer browser to access the Web. In
Fall 2005, AOL announced partnerships with leading anti-phishing
companies MarkMonitor and Cyveillance, and an expanded agreement
with existing partner Cyota, to provide AOL members multiple
layers of invisible protection against phishing attacks.
In October 2005, AOL and Yahoo! announced plans to implement a
Goodmail Systems program known as 'CertifiedE-mail' to make it
even more difficult for phishers and spammers to deceive
consumers into believing their E-mails are legitimate.
America Online, Inc. and its subsidiaries operate a network of
Web brands and the largest Internet access subscription service
in the U.S.. Brands include the AOL(R) service, the AOL.com(R)
website, and the AIM(R), MapQuest(R), Moviefone(R), Netscape(R),
CompuServe(R) and ICQ(R) services. America Online offers a range
of digital services including the TotalTalk(R) voice service.
The company also has operations in Canada and Europe. America
Online, Inc. is based in Dulles, Virginia, and is a wholly owned
subsidiary of Time Warner Inc. (NYSE: TWX).
PRIORITY HEALTHCARE: Reaches Pact in Fla. Suit Over ESRX Merger
---------------------------------------------------------------
Priority Healthcare Corp. (NASDAQ: PHCC) reached a settlement in
a purported shareholder class action related to the merger
agreement between the Company and Express Scripts, Inc. The
suit is styled, "Harry Silverman v. Priority Healthcare
Corporation, et al., (Case No. 05-CA-1628-16-K, Circuit Court of
the Eighteenth District, Seminole County, Florida)."
The suit was filed on or about August 15, 2005, naming the
Company and each of its directors as defendants. The Company
and its directors responded to the complaint by filing a Motion
for Judgment on the Pleadings requesting that the lawsuit be
dismissed.
On September 19, 2005, the plaintiff filed a First Amended Class
Action Complaint alleging, among other things, that Priority's
directors breached their fiduciary duties of good faith, fair
dealing, loyalty, due care and candor to Priority's shareholders
and that Priority aided and abetted its directors' breaches of
their fiduciary duties by entering into the merger agreement.
On September 20, 2005, the parties reached an agreement in
principle providing for the settlement of the lawsuit based upon
additional disclosures in Priority's final proxy statement and
the payment of plaintiff's fees and expenses.
SERENA SOFTWARE: Agrees to Settle Lawsuits Over Spyglass Merger
---------------------------------------------------------------
Serena Software, Inc. (SRNA) agreed in principle with certain
stockholders of Serena to settle a purported class action
commenced against the firm and its directors over an announced
merger with Spyglass Merger Corp. The parties expect to enter
into definitive documentation reflecting their agreement in
principle within the next few days.
The settlement will not affect the merger consideration to be
paid to stockholders of Serena in connection with the proposed
merger between Serena and Spyglass Merger Corp. or the timing of
the special meeting of stockholders of Serena scheduled for
Thursday, March 9, 2006, beginning at 1:00 p.m., local time, at
Serena's principal executive offices at 2755 Campus Drive, 3rd
Floor, San Mateo, California 94403, to vote upon a proposal to
adopt the merger agreement between Serena and Spyglass Merger
Corp. and to approve the merger.
As previously disclosed in the merger proxy statement, which was
first mailed to stockholders of Serena on or about Feb. 6, 2006,
beginning on Nov. 11, 2005, certain Serena stockholders filed
three purported class actions against Serena and its directors.
The purported class actions are filed in:
(1) the Court of Chancery in the State of Delaware (two
actions); and
(2) the Superior Court of the State of California for the
County of San Mateo.
Serena and the other defendants have reached an agreement in
principle with the plaintiffs providing for the settlement of
the litigation.
Settlement Terms
In connection with this settlement, Serena agreed to make
available additional information to its stockholders. Some of
that information is included in the merger proxy statement. The
remaining additional information is contained below and should
be read in conjunction with the merger proxy statement. In
return, the plaintiffs agreed to the dismissal of the actions
and to withdraw all motions filed in connection with such
actions.
In addition, Serena agreed to pay the legal fees and expenses of
plaintiffs' counsel, subject to the approval by the respective
courts. This payment will not affect the amount of merger
consideration to be paid in the merger. The details of the
settlement will be set forth in a notice to be sent to Serena's
stockholders prior to a hearing before the court to consider
both the settlement and plaintiffs' fee application.
Defendants deny plaintiffs' allegations in the actions and have
agreed to settle the purported class action litigation in order
to avoid costly litigation and eliminate the risk of any delay
to the closing of the merger.
These information relating to Morgan Stanley & Co. Incorporated,
the financial advisor to the special committee of the board of
directors of Serena, should be read in conjunction with the
definitive proxy statement mailed to Serena's stockholders on or
about February 6, 2006:
Silver Lake Partners Investment Plan
To: Silver Lake Partners' knowledge, Morgan Stanley and some of
its officers, employees and affiliates have committed to invest
approximately $39.5 million in Silver Lake Partners II, L.P.,
the approximately $3.6 billion fund through which Silver Lake
Partners proposes to invest in Serena.
These commitments were made before Morgan Stanley began advising
the special committee of the Serena board of directors. The
aggregate amount of these commitments that could be drawn to
finance the merger of Spyglass Merger Corp. into Serena and
related transactions represents approximately 1.1 % of the
equity financing required by Spyglass Merger Corp. to complete
the merger and related transactions.
In addition, certain officers, employees and affiliates of
Morgan Stanley have invested approximately $10 million in an
investment fund controlled by Integral Capital Partners, which
has a preexisting contractual right to coinvest up to 2% in any
investment made by Silver Lake Partners II, L.P. Such officers,
employees and affiliates of Morgan Stanley do not have the right
to direct or control whether Integral will coinvest in the
acquisition of Serena and their $10 million interest represents
less than 4% of the relevant Integral fund that may be joining
the investor group organized by Silver Lake Partners to purchase
Serena.
Following the special's committee's retention of Morgan Stanley
to serve as its financial advisor, Morgan Stanley initially
contacted Silver Lake Partners and the four other private equity
firms with which Serena's management or its advisors had had
previous discussions. Morgan Stanley also suggested additional
potential buyers for Serena to the special committee.
Following discussion with the special committee, Morgan Stanley
contacted additional private equity firms and other potential
financial and strategic parties selected by the special
committee. Among the factors considered by and discussed with
the special committee were, for potential financial buyers,
experience with similar transactions, prior interest in
technology companies, and potential financial resources. With
regard to potential strategic buyers, the factors considered by
and discussed with the special committee included experience
with similar transactions, potential financial resources,
potential product or strategic fit, and regulatory issues.
None of the analyses performed by Morgan Stanley in connection
with its oral opinion and the preparation of its written opinion
letter dated November 10, 2005 and described in the proxy
statement included a control premium metric, except for Morgan
Stanley's analysis of precedent transactions.
In deriving the assumed beta for Serena's common stock, Morgan
Stanley reviewed certain historical market data as well as the
data of certain providers of proprietary market data. In
connection with the proposed merger, Serena filed a definitive
proxy statement with the Securities and Exchange Commission on
February 2, 2006.
With more than 25 years of experience in managing change
throughout the IT environment, Serena Software (SRNA:) --
http://www.serena.com-- provides Change Governance software to
help global 2000 organizations visualize, orchestrate and
enforce effective business processes throughout the IT
lifecycle. More than 15,000 organizations around the world,
including 96 of the Fortune 100, leverage Serena's integrated
change management framework to manage costs, ensure consistent
quality of service, mitigate business risks and ultimately
profit from change. Serena is headquartered in San Mateo,
California, with offices throughout the U.S., Europe, and Asia
Pacific.
For more information on Serena, contact Investor Relations, 2755
Campus Drive, 3rd Floor, San Mateo, California 94403-2538, USA,
Phone: (650) 522-6600.
SOUTH CAROLINA: Myrtle Beach Insurer Wins Appeal on Refund Suit
---------------------------------------------------------------
A State Appeals Court has overturned a ruling requiring a state
insurance fund to pay Myrtle Beach residents illegally charged
for water service by the City, according to Myrtle Beach Sun
News.
The decision issued on Monday overturns a ruling earlier made by
Circuit Judge Jackson Gregory ordering the state's Municipal
Insurance and Risk Fund to cover the refunds. In 2001, the
Circuit Court, reviewing a class action filed in 1996,
determined that the city's ordinance forcing landlords or new
owners or tenants to pay outstanding water bills left by
previous occupants violated federal due process and other
provisions. It thus ordered the refund of payments made under
the ordinance by the city.
The city turned to its insurer. In 2003 the insurance group
sought legal judgment on arguments that its contract did not
cover Myrtle Beach because it excluded incidents involving
property takings. The Circuit Court ordered it to pay.
On appeal, the State Court said improper charges for water
service fell under the insurer's contract that frees it of
liability on disputes involving unconstitutional takings of
property. It, therefore, does not have to cover the city of
Myrtle Beach's refunds.
TARA HOSPITAL: Sued for Alleged Failure to Advise of Closure
------------------------------------------------------------
Nurses and office workers unions at the former Brownsville
General Hospital in Fayette County, Pennsylvania filed a federal
lawsuit, alleging violation of federal law regarding plant
closures.
The Brownsville Nurses Association lodged a lawsuit against Tara
Hospital in U.S. District Court in Pittsburgh on Friday,
claiming they were not given sufficient warning regarding the
hospital's closure.
The plaintiffs are:
(1) Lynn White, president of Local 471 of the Office of
Professional Employees International Union;
(2) Denise Seman, president of the nurses union; and
(3) Judy White, a former employee.
They alleged the company did not give them 60-days notice under
the Worker Adjustment and Retraining Notification Act before
they were laid off on Nov. 16 together with 100 other workers.
The union has previously filed an unfair labor complaint with
the National Labor Relations Board.
The hospital was closed Jan. 8. It faces a $500-a-day fine
should it be found to have violated the law. Tara Hospital's
board of directors filed for bankruptcy under Chapter 11 in
January.
UNITED STATES: Court Says Abortion Demonstrations Not Extortion
---------------------------------------------------------------
The U.S. Supreme Court has ruled that anti-abortion protests in
clinics did not constitute extortion or racketeering under
federal law, reversing a court of appeals decision.
About two years ago, the high court ruled in the Scheidler v.
National Organization of Women suit that there was no basis for
using federal extortion and racketeering laws to ban
demonstrations. Subsequently, an appeals court ruled that a
nationwide injunction may be supported on other legal grounds,
and the protesters brought the case back to the Supreme Court
(Class Action Reporter, Dec. 2, 2005).
The case started in 1986 when the National Organization of
Women, intending to end protests at abortion clinics in
Wisconsin, filed a federal class action seeking a nationwide
injunction saying the disruptions amounted to attempted
extortion. The suit was filed against 20 individuals and
groups, including Operation Rescue, that had taken lead roles in
anti-abortion demonstrations.
Using the Hobbs Act and the Racketeer Influenced and Corrupt
Organizations (RICO) Act, NOW accused the protesters of trying
to "extort" anti-abortion views from women seeking abortions and
their providers.
On Tuesday's ruling, Judge Breyer rejected the broad
interpretation of the federal law, stating that the law means
"acts or threats of violence in furtherance of a plan or purpose
to engage in robbery or extortion."
The cases are Scheidler v. NOW, 04-1244, and Operation Rescue v.
NOW, 04-1352.
The defendants in the case are:
(1) Joseph Scheidler,
(2) Andrew Scholberg,
(3) Timothy Murphy, and
(4) the Pro-Life Action League.
The lead defense counsel is:
Thomas Brejcha
29 S. La Salle St.
Chicago, Illinois
(Cook Co.)
Mr. Brejcha's co-counsel is Alan Untereiner, a partner in
Robbins, Russell, et al, in Washington, D.C.
Lawyer Joseph Secola represents anti-abortion group Operation
Rescue.
Attorney for the clinic is:
Jon L. Schoenhorn
Schoenhorn & Associates
Hartford, Connecticut
(Hartford Co.)
UNITED STATES: Paying Damages to Egyptian Held After Sept. 11
-------------------------------------------------------------
The U.S. government agreed to compensate an Egyptian man who
filed a lawsuit in 2004 alleging he was abused at a federal
lock-up in New York City following the September 11, 2001
terrorist attacks.
The government will pay $300,000 to Ehab Elmaghraby in a
settlement filed in Brooklyn, according to the Irish Examiner.
Mr. Elmaghraby's lawyer is Haeyoung Yoon.
Mr. Elmaghraby and Pakistani man Javaid Igbal filed a lawsuit in
August 2004 claiming human rights violation when they were held
in U.S. custody. Mr. Igbal, a former cable technician and Mr.
Elmaghraby, a former restaurant worker asserted federal agents
apprehended them on suspicion of ties to terrorists, and held
them for months at the Metropolitan Detention Center in
Brooklyn, New York. The two men were allegedly placed in
solitary confinement for 23 hours a day, beaten and verbally
abused (Class Action Reporter, May 5, 2004).
The men were later cleared of terrorist ties, and deported to
their homelands after pleading guilty to minor federal criminal
charges. Mr. Iqbal admitted having false papers and bogus
checks; Mr. Elmaghraby pleaded guilty to credit card fraud
(Class Action Reporter, May 5, 2004).
According to Irish Times, more than 80 men were classified as
suspected terrorists and were jailed in high-security cells at
the Brooklyn facility between September 14, 2001, and August 27,
2002.
Defendants in the suit are former U.S. Attorney General John
Ashcroft and dozens of other federal officials. In Mr. Ashcroft
had asked a federal judge handling the case to dismiss the case,
partly because the threat of foreign terrorism exempts the
government from following rules made in peacetime. But the
judge rejected the claim in September 2005.
Mr. Ashcroft and other officials are facing a separate federal
class action in relation to the detention of hundreds of people
suspected terrorists in Brooklyn and New Jersey after the
terrorist attack. The plaintiff in the case is the Centre for
Constitutional Rights.
WELDING FUME LITIGATION: Judge Confirms Fume-Related Health Risk
----------------------------------------------------------------
The Plaintiffs' Executive Committee in the national welding fume
multidistrict litigation (MDL) announced a major victory in the
legal battle being waged against:
(1) The Lincoln Electric Company,
(2) General Electric,
(3) Westinghouse, Caterpillar, Inc., and
(4) a number of other manufacturers of welding rods and
equipment.
The suit is styled "In re Welding Fume Products Liability
Litigation, MDL Docket No. 1535," filed in the U.S. District
Court for the Northern District of Ohio.
The Honorable Kathleen O'Malley, the federal judge overseeing
this matter, issued her written order on Feb. 27 informing that
scientific evidence shows that welding fumes containing
manganese can indeed cause serious neurological damage to
welders.
"The evidence so far presented is sufficiently reliable to
support the assertion that exposure to low-manganese welding
fumes can cause, contribute to, or accelerate a movement
disorder, including a parkinsonian syndrome that some doctors
will diagnose as PD," the order states. This order confirms a
similar ruling made by Judge O'Malley last year, which found
that reliable scientific evidence supports the conclusion that
welding fumes cause Parkinson's disease. Judge O'Malley also
ruled that the health warnings given by two welding-equipment
manufacturers, Hobart Brothers Company and ESAB, could be found
by a jury to be "grossly inadequate and possibly even
misleading."
Judge O'Malley's rulings related to scientific evidence are
sharply at odds with statements made to the media by defense
attorney John Beisner. According to an article in The Wall
Street Journal, "Mr. Beisner said the science isn't there to
establish a connection between welding fumes and Parkinson's
disease," and The Tennessean newspaper has quoted him as saying
that "(t)here are no scientifically sound studies demonstrating
that mild steel welding causes Parkinson's disease or any other
Parkinson's-like movement disorder."
Furthermore, a recent article in Forbes magazine claimed that
"defense attorneys for a dozen companies are asserting that
manganese-induced Parkinson's and its supposed symptoms were
fabricated 'out of thin air' by lawyers and a physician working
with them."
During a mid-February hearing in a Cleveland courtroom, Judge
O'Malley ruled that the above commentary in Forbes magazine was
"completely inconsistent" with the causation decision she
rendered last year. "We are not talking about junk science,"
Judge O'Malley went on to say, and she also cautioned the
defense lawyers regarding statements made to the press.
"[On Monday], the Court finally put the scientific causation
issue to bed," said Don Barrett, co-lead counsel for the
plaintiffs, "and we feel enormously vindicated. Let me be
perfectly clear about this: Welding fumes containing manganese
can cause permanent neurological damage to the welders who use
them. I know it, thousands of injured welders know it, and
companies that manufacture these welding rods know it and have
conspired to hide this atrocity for decades. "
The order was issued in Charles Ruth, III v. A.O. Smith Corp.,
et al. (Case No. 1:04-CV-18912, U.S. District Court for the
Northern District of Ohio), a welding fume lawsuit, which the
welding industry settled on the courthouse steps last year.
Judge O'Malley issued the order at the request of the parties,
because the rulings have implications for the multidistrict
litigation cited above and for related actions filed in various
state courts.
A copy of the order is available by contacting Eric Wetzel,
Phone: 512-474-7514; E-mail: eric@shipleyassociates.net.
WEST CORP: Nev. Court Remands Ritt Case Back to Ohio State Court
----------------------------------------------------------------
The U.S. Bankruptcy Court for the District of Nevada remanded a
class action filed against West Corporation and Billy Blanks
Enterprises back to the Court of Common Pleas, Cuyahoga County,
Ohio.
The suit, styled "Brandy L. Ritt, et al. v. Billy Blanks
Enterprises, et al." was filed in January 2001 in the Court of
Common Pleas in Cuyahoga County, Ohio, against two of the
Company's clients. The suit, a purported class action, was
amended for the third time in July 2001 and the Company was
added as a defendant at that time. The suit, which seeks
statutory, compensatory, and punitive damages as well as
injunctive and other relief, alleges violations of various
provisions of Ohio's consumer protection laws, negligent
misrepresentation, fraud, breach of contract, unjust enrichment
and civil conspiracy in connection with the marketing of certain
membership programs offered by the Company's clients.
On February 6, 2002, the court denied the plaintiffs' motion for
class certification. On July 21, 2003, the Ohio Court of
Appeals reversed and remanded the case to the trial court for
further proceedings. The plaintiffs have filed a Fourth Amended
Complaint naming West Telemarketing Corporation as an additional
defendant and a renewed motion for class certification.
One of the defendants, NCP Marketing Group, filed bankruptcy and
on July 12, 2004 removed the case to federal court. Plaintiffs
filed a motion to remand the case back to state court. One of
the defendants moved to transfer the case from the U.S. District
Court for the Northern District of Ohio to the federal
Bankruptcy Court in Nevada. On October 29, 2004, the district
court referred the case to the Bankruptcy Court for the Northern
District of Ohio. On February 22, 2005, the Bankruptcy Court
for the Northern District of Ohio referred the case to the
Bankruptcy Court for the District of Nevada.
A hearing was held on August 1, 2005 in Nevada on plaintiffs'
motion to remand or for mandatory abstention. At the hearing,
the Bankruptcy Court indicated that it would grant the motion on
the grounds of permissive abstention and equitable remand. As a
result, the parties anticipate that the case will be transferred
back to the state court in Cuyahoga County, Ohio. At the
hearing, the Bankruptcy Court also tentatively approved a
settlement between the named Plaintiffs and NCP and two other
defendants, Shape The Future International LLP and Integrity
Global Marketing LLP. The Company and West Telemarketing
Corporation have filed a motion for judgment on the pleadings
and a motion for summary judgment. It is uncertain when the
motion for class certification will be ruled on or when the case
will be tried.
On August 30, 2005, the U.S. Bankruptcy Court for the District
of Nevada remanded the case back to the state court in Cuyahoga
County, Ohio. The Bankruptcy Court also approved a settlement
between the named plaintiffs and NCP and two other defendants,
Shape The Future International LLP and Integrity Global
Marketing LLC. West Corporation and West Telemarketing
Corporation have filed motions for judgment on the pleadings and
a motion for summary judgment. The motion for class
certification and the motions for judgment on the pleadings and
for summary judgment await rulings. A jury trial is scheduled
for April 26, 2006.
New Securities Fraud Cases
CHICAGO BRIDGE: Charles J. Piven Lodges Securities Suit in N.Y.
---------------------------------------------------------------
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 Chicago
Bridge & Iron Company, N.V. (NYSE: CBI) between March 9, 2005
and February 15, 2006, inclusive.
The case is pending in the U.S. District Court for the Southern
District of New York against defendant Chicago Bridge & Iron and
one or more of its officers and/or directors. 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, MD 21202, Phone: 410/986-0036, E-mail:
hoffman@pivenlaw.com.
CHICAGO BRIDGE: Schatz Nobel Files Securities Fraud Suit in N.Y.
----------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., filed a lawsuit seeking
class action status in the U.S. District Court for the Southern
District of New York on behalf of all persons who purchased or
otherwise acquired the publicly traded securities of Chicago
Bridge & Iron Co. N.V. NYSE:CBI) between March 9, 2005 and
February 3, 2006, inclusive.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of materially false
statement. Specifically defendants failed to disclose the
following adverse facts: that the Company was materially
overstating its financial results by failing to properly utilize
percentage-of-completion accounting and that the Company was not
following its publicly stated revenue recognition policies.
On October 26, 2005, Chicago Bridge announced that it would be
delaying the release of its third quarter financial results
because they were not finalized as scheduled. On October 31,
2005, Chicago Bridge issued a press release announcing that the
delay in its release of financial results was "precipitated by a
memo from a senior member of CB&I's accounting department
alleging accounting improprieties, including the determination
of claim recognition on two projects and the assessment of costs
to complete two projects."
Then, on February 3, 2006, after the close of the market,
Chicago Bridge announced the terminations of Defendants Glenn
and Jordan. Two hours after the announcement, an attorney
representing Defendants Glenn and Jordan issued a press release
representing that they had been terminated in connection with
the Company's internal accounting investigation. On the next
trading day, the price of Chicago Bridge stock dropped from
$29.00 to $22.33 per share.
For more details, contact Wayne T. Boulton or Nancy A. Kulesa of
Schatz & Nobel, Phone: (800) 797-5499, Web site:
http://www.snlaw.net,E-mail: sn06106@aol.com.
COOPER COMPANIES: Marc S. Henzel Files Securities Suit in Calif.
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action in
the U.S. District Court for the Central District of California,
Southern Division on behalf of purchasers of the securities of
The Cooper Companies, Inc. (NYSE: COO) between July 29, 2004 and
November 21, 2005, inclusive.
The suit includes 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, 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. Weisss
(CFO) and John D. Fruth (Director).
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 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.
PENSION FUNDS: Law Firms File Securities Fraud Suit in S.D. Fla.
----------------------------------------------------------------
The law firms of Kozyak Tropin & Throckmorton, P.A. and
Podhurst, Orsek, P.A. initiated a class action on behalf of all
persons who purchased, sold, held and/or retained investments in
retirement trust plans offered by Pension Funds of America
(PFA), or its affiliated companies, during the period commencing
January 1999 through the present, seeking to pursue remedies
under the Securities Exchange Act of 1934.
The action, civil action number 05-21169, is pending in the U.S.
District Court for the Southern District of Florida against
defendants:
(1) Lehman Brothers, Inc.,
(2) Merrill Lynch & Co., Inc.,
(3) Raymond James Financial Services, Inc.,
(4) Oliva Investment Group, Inc.,
(5) Suntrust Banks, Inc.,
(6) HSBC Bank, U.S.A.,
(7) Luis Cornide, and
(8) Robert A. de la Riva.
According to the complaint, the defendants violated Sections 12,
17(a), and 22(a) of the Securities Act of 1933, 15 U.S.C. ss.
77l, 77q(a), and 77v(a); and Sections 10(b) and 27 of the
Securities Exchange Act of 1934, 15 U.S.C. ss. 78j(b) and 78aa,
and Section 12 and 15 of the Securities Act, 15 U.S.C. ss. 77(l)
and 77(o), in connection with the sale of unregistered
securities and the fraudulent scheme perpetrated by Defendants
and PFA.
For more details, contact David P. Milian, Esq. of Kozyak Tropin
& Throckmorton, P.A., Coral Gables, Fla., Phone: 305-372-1800,
E-mail: DPM@Kttlaw.com, Web site: http://www.kttlaw.com;and
Victor Diaz, Esq. of Podhurst Orsek, P.A., Phone: 305-358-2800,
E-mail: Vdiaz@Podhurst.com.
PROQUEST COMPANY: Marc S. Henzel Lodges Securities Suit in Mich.
----------------------------------------------------------------
The Law Offices of Marc S. Henzel initiated a class action in
the U.S. District Court for the Eastern District of Michigan on
behalf of purchasers of ProQuest Company (NYSE: PQE) common
stock during the period between January 9, 2003 and February 8,
2006.
The complaint charges ProQuest and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. ProQuest publishes solutions for the education,
automotive, and power equipment markets.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's business and financial results. As a result of
defendants' false statements, ProQuest stock traded at
artificially inflated prices during the Class period, reaching a
high of $37.89 per share on April 12, 2005.
Then, on February 9, 2006, prior to the market opening, the
Company announced that it had discovered material irregularities
in its accounting and would have to restate certain of its
previously issued financial statements. As a result of the
irregularities, the Company's deferred income and accrued
royalty accounts were materially understated in previously
issued financial statements and its prepaid royalty account was
materially overstated. On this news, ProQuest's stock collapsed
to as low as $21.90 per share, before closing at $24.19 per
share on volume of 3 million shares, 13 times the average
volume.
According to the complaint, the facts, known by the defendants
but concealed from the investing public during the Class Period,
involved that the Company lacked requisite internal controls,
and, as a result, the Company's projections and reported results
were based upon defective assumptions and/or manipulated facts;
and the Company's financial statements were materially misstated
due to its failure to properly defer income and royalty payments
and its improper capitalization of royalty expenses, thereby
overstating its revenue and income from at least 1999 to 2005.
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.
SFBC INTERNATIONAL: Ark. Teachers' Pension Fund to Pursue Case
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The law firm of Bernstein Litowitz Berger & Grossmann LLP has
been retained by the Arkansas Teacher Retirement System
(Arkansas Teachers) to pursue a securities class action on
behalf of all persons who purchased common stock or convertible
senior notes of SFBC International Inc. between August 4, 2003
and December 15, 2005, inclusive.
This notice relates to prior notices, which have been published
announcing the filing of class actions in:
(1) the U.S. District Courts for the Southern District of
Florida, and
(2) the U.S. District Courts for the District of New Jersey
on behalf of all persons who purchased common stock or publicly
traded securities of SFBC during the Class Period.
As indicated in the prior notices, the deadline by which any
member of the Class may file a motion for appointment as lead
plaintiff in the pending lawsuits is March 6, 2006. The
previously announced lawsuits assert claims under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 on behalf of
SFBC common stock purchasers.
Arkansas Teachers intends to seek appointment as lead plaintiff
to pursue claims on behalf of all purchasers of SFBC common
stock and SFBC 2.25% Convertible Senior Notes due 2024 during
the Class Period. In addition to the claims that are asserted
in the previously announced lawsuits, Arkansas Teachers, if
appointed as lead plaintiff, intends to pursue:
(1) claims under Section 10(b) and 20(a) of the Exchange
Act on behalf of purchasers of SFBC Convertible Senior
Notes in an unregistered offering in August and
September 2004;
(2) claims under Section 10(b) and 20(a) of the Exchange
Act and Sections 11 and 12(a)(2) of the Securities Act
of 1933 on behalf of purchasers of Convertible Senior
Notes who purchased pursuant to the Registration
Statement filed on January 28, 2005 and the
Prospectuses dated February 4 and February 24, 2005;
and
(3) claims under Sections 11 and 12(a)(2) of the Securities
Act on behalf of purchasers of SFBC common stock in
public offerings on or about October 30, 2003 and March
9, 2005.
SFBC provides clinical drug development services to
pharmaceutical, biotechnology, generic drug, and medical device
companies. Its primary services are clinical tests of
development-stage drugs in human subjects who are paid to
participate in the experiments.
On November 2, 2005, Bloomberg News reported that SFBC violated
standard regulatory procedures in administering clinical trials
for its clients by:
(1) failing to adequately disclose the risks of trials
before obtaining participants' "consent";
(2) enrolling participants in back-to-back trials without
adhering to minimum waiting requirements;
(3) not contacting competing clinics to determine if its
participants were enrolled in more than one drug trial
at the same time; and
(4) using coercively back-loaded payment schedules to
decrease the chance that a participant would report
uncomfortable or adverse reactions to the drug.
The article also reported on conflicts of interest between SFBC
and the institutional review board the Company hired to oversee
the safety of its human drug testing and misleading statements
by the Company about the professional credentials of its
Chairman of the Board and President and its Chief Executive
Officer and Treasurer.
On December 1, 2005, the Company disclosed that it would have to
reduce its principal trial center's capacity by 50% because it
was in violation of the applicable building code. On December
15, 2005, SFBC announced the results of its internal
investigation into the allegations by Bloomberg, stating that
SFBC executives threatened drug-test participants with
deportation for reporting ethical violations to Bloomberg's
reporters, and reported that the Company reduced its profit
forecast for 2005 "as a direct result of one client canceling
two signed contracts of ongoing studies due to the Bloomberg
articles."
SFBC's Chairman and President, CEO and Treasurer, and Vice
President for Legal Affairs have all resigned in response to the
revelations of wrongdoing at SFBC. The revelations raised
issues concerning the accuracy of the Company's prior favorable
statements about its business operations and compliance with
legal and ethical requirements and caused massive losses for
purchasers of the Company's common stock and Convertible Senior
Notes.
Arkansas Teachers is a public pension fund system formed for the
benefit of the current and former employees of Arkansas public
schools and certain Arkansas state agencies, colleges and
universities. Arkansas Teachers has in excess of $9 billion in
assets under management.
Deadline for appointment as lead plaintiff is March 6, 2006.
For more information, contact Douglas M. McKeige or Gerald H.
Silk, Bernstein Litowitz Berger & Grossmann LLP, 1285 Avenue of
the Americas, 38th Floor, New York, N.Y. 10019, Phone:
(212) 554-1400.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Editors.
Copyright 2006. All rights reserved. ISSN 1525-2272.
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