/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/060710.mbx C L A S S A C T I O N R E P O R T E R Monday, July 10, 2006, Vol. 8, No. 135 Headlines AT&T CORP: Mo. Court Okays Class in "Stocking" Gender Bias Suit BANK OF AMERICA: Employee Lawsuit in W.Va. Sent to Mediation BOEING CO: Ex-McDonnell Douglas Workers File ERISA Suit in Ill. CINGULAR WIRELESS: Sued Over Purchase of AT&T Cell Phone System ENRON CORP: Stock Suit Plaintiff to Vote on Suit Against Mr. Lay EXXON MOBIL: Fla. Law Firm Gets $247M in Station Owners' Suit FLEETWOOD ENTERPRISES: Recalls Motor Homes with Faulty Shafts HARLAND FINANCIAL: Removes "Kitson" Case to Ill. Federal Court HYPERCOM CORP: Ariz. Court Dismisses Securities Fraud Complaint LEVEL 3: Delays Mount in Ill. Landowners' Right of Way Lawsuit L'OREAL USA: Former Model's Suit Continues in Calif. High Court MASSACHUSETTS: Worcester Library Faces Suit by Shelter Residents MASSACHUSSETTS: Police Unions Allege Late Payment of Detail Work MICROSOFT CORP: Faces Second Suit in Wash. Over Anti-Piracy Tool MINNESOTA: Black-Owned Businesses Sue St. Paul Over Racial Bias NATIONAL ENTERPRISES: Feb. 2007 Hearing Set for Lakeshore Suit NISSAN NORTH: Recalls 2006 Car Models with Faulty Piston Rings NORBOURG GROUP: Canadian Regulator Seeks to Junk Brokers' Suit OHIO: County Judge Prohibits Use of Speed Camera in Girard City QWEST COMMUNICATIONS: Ill. Court Nixes Class in Landowners' Suit RIVIERA HOLDINGS: Plaintiffs Consolidate Suits Over Merger Plans SWISS COLONY: Recalls Money Bag Candles Posing Fire Hazard TOBACCO LITIGATION: High Court Reverses $145B Award in "Engle" UNITED STATES: Health & Human Services Dept. Amends Medicaid Law WORKHORSE CUSTOM: Recalls Motor Home with Defective GM Engines WORLDCOM INC: Trustee Accepting Bids in Columbus Lumber Interest New Securities Fraud Cases ESCALA GROUP: Lead Plaintiff Application in Stock Suit Due Today ESCALA GROUP: Lead Plaintiff Application in Stock Suit Due Today KINDER MORGAN: Lerach Coughlin Files Securities Suit in Tex. ********* AT&T CORP: Mo. Court Okays Class in "Stocking" Gender Bias Suit --------------------------------------------------------------- The U.S. District Court for the Western District of Missouri granted class-action status to the suit, "Stocking v. AT&T Corp., Case No. 03-421 CV-W-HFS." The suit was filed on May 12, 2003 by Susan Stocking and Jane Lund. It challenges a corporate policy excluding coverage of prescription contraceptives from employee health plans that cover other prescription drugs and devices. It contends that excluding prescription contraceptives disproportionately harms women, and is therefore sex discrimination, which is barred under Title VI, the federal anti-discrimination law. In its June 7, 2006 class certification order, the court defined the class as, "all female employees of AT&T enrolled in the Occupational Medical Expense Plan who, for their own use, at any time between Oct. 31, 2001 and June 30, 2002 purchased prescription contraception solely for birth control without insurance reimbursement from said Plan." The court also held that the company was required under Title VII and/or the Pregnancy Discrimination Act to cover prescription contraceptives for birth control under its Occupational Medical Expense Plans, but failed to do so. The court's class certification order is available free of charge at: http://researcharchives.com/t/s?d66. The suit is "Stocking v. AT&T Corporation, Case No. 03-421 CV-W- HFS," filed in the U.S. District Court for the Western District of Missouri under Judge Howard F. Sachs. Representing the plaintiffs are: (1) Rick D. Holtsclaw of DeFeo, Holtsclaw, Kendall, LLC, 2029 Wyandotte, Suite 100, Kansas City, MO 64108, Phone: (816) 221-2555, Fax: (816) 221-2508, E-mail: rick@holtsclaw-kendall.com. (2) Sylvester James, Jr. of The Sly James Firm, Trial Lawyers, PC, 802 Broadway, 7th Floor, Kansas City, MO 64105, Phone: 816-472-6800, Fax: 816-472-6805, E-mail: sly@slyjamesfirm.com. Representing the company are: (i) Laura M. Franze of Akin, Gump, Strauss, Hauer & Feld, LLP, 1700 Pacific Avenue, Suite 4100, Dallas, TX 75201, Phone: (214) 969-2779, Fax: (214) 969-4343, E- mail: lfranze@akingump.com; and (ii) Brian N. Woolley of Lathrop & Gage, L.C., 2345 Grand Blvd., Suite 2500, Kansas City, MO 64108, Phone: (816) 292-2000, Fax: (816) 292-2001, E-mail: bwoolley@lathropgage.com. BANK OF AMERICA: Employee Lawsuit in W.Va. Sent to Mediation ------------------------------------------------------------ U.S. District Judge James Turk has ordered mediation in a class action filed against Bank of America Corp. by a former employee, according to The Roanoke Times. Mediation is set next month before U.S. Magistrate Judge B. Waugh Crigler of the Charlottesville division of the courts. The suit was filed by Cynthia Diane Deel in early 2004, claiming that she was denied overtime by the company. A judge approved the suit as class action in the same year. Ms. Deel left the company in July 2003. In 2005, a federal judge in the Western District of Virginia ruled that about 250 current and former Bank of America employees may join a class action seeking compensation for unpaid overtime labor, the Associated Press reports (Class Action Reporter, Feb. 14, 2005). The suit charges that Bank of America improperly classified the workers as ineligible for overtime between September 2002 and April 2003. Furthermore, the suit also charges the bank of changing their classification, but improperly discouraged overtime claims. The affected employees had worked for the Banking Center Control Review department, performing on-site reviews at Bank of America branches. The suit is "Deel v. Bank of America Corp., Case No. 7:04-cv- 00150-jct," filed in the U.S. District Court for the Western District of Virginia under Judge James C. Turk. Representing the defendant are: (1) Richard F. Kane of Mcguire Woods LLP, Suite 2900, 100 North Tryon Street, Charlotte, NC 28202-4011, Phone: 704-373-8957, Fax: 704-373-8828, E-mail: rkane@mcguirewoods.com; and (2) Bruce M. Steen of Mcguire Woods LLP, Suite 2900, 100 North Tryon Street, Charlotte, NC 28202-4011, Phone: 704-353-6244, Fax: 704-353-6200, E-mail: bsteen@mcguirewoods.com. Representing the plaintiff are John Palmer Fishwick, Jr. and Devon James Munro of Lichtenstein, Fishwick & Johnson, plc, P.O. BOX 601, Roanoke, VA 24004-0601, Phone: 540-345-5890, Fax: 540- 345-5789, E-mail: jpf@vaonline.com, devon@vaonline.com. BOEING CO: Ex-McDonnell Douglas Workers File ERISA Suit in Ill. --------------------------------------------------------------- Four former employees of McDonnell Douglas, with which Boeing Co. merged in 1997, filed a purported class action against Boeing Co.'s Pension Value Plan for Employees, alleging violations of the Employment Retirement Income Security Act, The Madison St. Clair Record reports. The suit was filed in the U.S. District Court for the Southern District of Illinois on June 26, 2006 by: -- Larry Wheeler of Edwardsville, -- David and Maral Keeton of Wildwood, Missouri, and -- Vincent Parisi of Bellefontaine Neighbors, Missouri who, according to the complaint, were transferred to work for Boeing on Aug. 1, 1997. The workers are seeking injunctive relief pursuant to ERISA, claiming the current method of calculation of their pension is unlawful. Allegations Specifically, plaintiffs claim that their retirement benefits are less than the accrued benefit to which they are legally entitled, since the plan failed to properly apply accrual and vesting rules imposed by ERISA. The conduct mentioned is widespread, affecting hundreds of plan participants, according to the complaint. Plaintiffs also claim that the plan violates ERISA's anti-back loading provisions by making benefits accrue very slowly over time until the participants nears the normal retirement age so that a participant's vested pension rights have very little value until they complete a very long period of service. In addition, plaintiffs argue that under ERISA a defined benefit plan must allow a participant to accrue, i.e. earn benefits no less that ratably over a working career so as to prevent employers from using creative plan designs to avoid the protection afforded by ERISA's vesting rules. Relief Sought Furthermore, plaintiffs claim they are entitled to appropriate equitable relief to redress the plan's violations of ERISA and to enforce provisions, and incidental monetary relief mechanically flowing from injunctive relief in the form of a common fund equal to the difference between what they were paid under the alleged unlawful method of computing their pension benefits. The suit is asking the court for a declaration that the pension plan's method of computing benefits is unlawful, a judgment for them and against the company and a permanent injunction preventing the plan from calculating pension benefits in violation of ERISA. Plaintiffs are also asking for the creation of a common fund equal to the amount of pension benefits due, pre and post judgment interest, attorneys' fees and costs pursuant to the common fund/benefit doctrine or any other applicable laws and any other relief the court deems appropriate under the circumstances. The suit is, "Wheeler et al v. Pension Value Plan for Employees of The Boeing Co. et al, Case No. 3:06-cv-00500-DRH-PMF," filed in the U.S. District Court for the Southern District of Illinois under Judge David R. Herndon. Representing the plaintiffs are Matthew H. Armstrong and Jerome J. Schlichter of Schlichter Bogard, Phone: 314-621-6115 and 618- 632-3329, Fax: 314-621-7151, E-mail: marmstrong@uselaws.com and jschlichter@uselaws.com. CINGULAR WIRELESS: Sued Over Purchase of AT&T Cell Phone System --------------------------------------------------------------- AT&T Wireless Services Customers commenced a class action in the U.S. District Court for the Western District of Washington, against Cingular Wireless Corp., based on conduct related to the recent $41 billion acquisition of AT&T Corp.'s cell phone system in October, 2004. The lawsuit was brought on behalf of all AT&T Wireless customers who were allegedly deceived or overcharged by Cingular's actions related to the merger. The class action is brought by a group of lawyers and law firms, including attorneys for the non-profit Foundation for Taxpayer and Consumer Rights, the law firm of Cotchett, Pitre, Simon and McCarthy, of Burlingame, California, and Stritmatter, Kessler, Whelan, Withey and Coluccio, based in Seattle. The suit charges that Cingular engaged in false advertising, breached the contracts with AT&T customers, and violated the consumer protection laws of each of the 50 states. Specifically, it alleges that: (1) prior to the merger, Cingular promised that AT&T Wireless customers would "continue to enjoy the benefits of their current phones, rate plans and features, without any service interruption"; (2) after the merger, Cingular implemented a deliberate scheme to dismantle the AT&T Wireless network in order to degrade the service provided to AT&T Wireless customers and induce them to "transfer" to the Cingular network; (3) AT&T Wireless customers have complained of increasing dropped calls, and poor or no reception; (4) dissatisfied AT&T Wireless customers are given the option to "upgrade" to Cingular; (5) AT&T customers who do not agree to such an "upgrade" are left with the choice of fulfilling their contract term with AT&T despite degraded or non-existent service, or paying an early termination fee of $175 to cancel service before the expiration of the 12- or 24- month contract term. The lawsuit stems from an investigation of numerous complaints received by the non-profit Foundation for Taxpayer and Consumer Rights, a California-based crusader for consumer rights. FTCR on the Net: http://www.consumerwatchdog.org. The class covers all AT&T Wireless customers who were customers as of October 26, 2004. The suit comes one week after the California Court of Appeal upheld a decision by the California Public Utilities Commission imposing a $12.1 million fine against Cingular for promising cell phone service it could not provide and charging customers who tried to cancel early termination fees of up to $500. FTCR has sued Cingular for that conduct; that case is underway. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?d63 The suit is "Coneff et. al. v Cingular Wireless Corp. et. al., Case No. CV06-0944," filed in the U.S. District Court for the Western District of Washington. Representing the plaintiffs are: (1) Bruce L. Simon, Esther L. Klisura both of Cotchett, Pitre, Simon & McCarthy, 840 Malcolm Road, Suite 200, Burlingame California 94010, Phone: (650) 697-6000, Fax: (650) 697-0577, E-mail: bsimon@cpsmlaw.com; (2) Paul L. Stritmatter, Michael E. Withey, Kevin Coluccio all of Strimatter Kessler Whelan Withey Coluccio, 200 Second Ave., West Seattle, WA 98119, Phone: (206) 448- 1777, Fax: (206) 728-2131, Email: mike@skwwc.com; and (3) Harvey Rosenfeld and Pamela Presley both of The Foundation for Tax Payer and Consumer Rights, 1750 Ocean Park Boulevard, Suite 200, Santa Monica, CA 90405, Phone: (310) 392-0522, Fax: (310) 392-8874, E- mail: harvey@consumerwatchdog.org. ENRON CORP: Stock Suit Plaintiff to Vote on Suit Against Mr. Lay ---------------------------------------------------------------- Lead plaintiffs in the shareholder class action against Enron Corp. and its executives are expected to drop claims against the estate of former chief executive Kenneth Lay after his recent death, reports say. The Regents of the University of California are the lead plaintiffs in the suit on behalf of all investors who lost billions when the energy company collapsed. Trey Davis, a spokesman for the University of California, said "The final decision is up to the Regents but I do not imagine it would be worth our while to go after what [Mr. Lay] has left behind," according to The Australian. The Regents will meet this month to decide whether to remove him from the suit. Following U.S. law, all his liabilities from civil litigation will pass to his estate after his death. The suit will be dealt with by benefactors. But Mr. Lay, whose personal assets are estimated at $US50 million when the Enron trial began, is believed cash-strapped upon his death, according to the report. Mr. Lay's wife and children are understood to have sizeable annuities, which is protected from creditors under Texas law. Mr. Lay, 64, died of coronary artery disease, according to the forensic pathologist who performed his post-mortem examination. He was holidaying near Aspen, Colorado when he died. Six weeks before, he and another former Enron chief executive, Jeffrey Skilling, were found guilty of hiding financial troubles at Enron. A civil litigation trial on the case against Mr. Lay and Mr. Skilling has earlier been set Oct. 16, 2006, according to plaintiff attorney William Lerach. Case Background On April 8, 2002, Lerach Coughlin Stoia Geller Rudman & Robbins, LLP attorneys filed a consolidated class action against Enron Corp. in the U.S. District Court in Houston. The suit seeks relief for purchasers of Enron publicly traded equity and debt securities between Oct. 19, 1998 and Nov. 27, 2001. The consolidated complaint charges certain Enron executives and directors, its accountants, law firms, and banks with violations of the federal securities laws and alleges that defendants engaged in massive insider trading while making false and misleading statements about Enron's financial performance. Shareholders in the company lost billions after Enron revealed in late 2001 it would incur losses of at least $1 billion and would restate its financial results for 1997, 1998, 1999, 2000, and the first two quarters of 2001, to correct errors that inflated Enron's net income by $591 million. On Dec. 2, 2001, Enron filed for Chapter 11 bankruptcy. The U.S. District Court in Houston has denied a number of motions to dismiss Lerach Coughlin's securities litigation. The parties are currently engaged in discovery and motion practice; depositions began in the summer of 2004, according to the law firm. Lead Plaintiff The lead plaintiff is the University of California Regents. Settlements The lead plaintiff has reached settlements with Lehman Brothers, Bank of America, the Outside Directors, Citigroup, JP Morgan Chase and CIBC totaling over $7 billion for investors. The court granted on May 24 final approval for three banks to pay $6.6 billion to settle civil claims of conspiracy with Enron. The deal was made by Canadian Imperial Bank of Commerce, JPMorgan Chase & Co., and Citigroup Inc. It brings the settlement to a total of $7.3 billion, including interest. The banks entered these settlements last year: CIBC $2.4 billion JPMorgan $2.2 billion Citigroup $2 billion Previously some $500 million of settlements had been reached with Lehman Brothers Holdings Inc., Bank of America Corp., Andersen Worldwide, and 18 former outside Enron directors. Non-settling Defendants The non-settling defendants include Merrill Lynch & Co., Barclays PLC, Toronto-Dominion Bank, Royal Bank of Canada, Deutsche Bank AG and the Royal Bank of Scotland Group PLC. The suit against Enron is "In Re: Enron Corp Securities, et al. (4:02-md-01446)" filed in the U.S. District Court for the Southern District of Texas under Judge Melinda Harmon. Representing the defendants are: J Mark Brewer of Brewer and Pritchard, Three Riverway Ste 1800, Houston, TX 77056, Phone: 713-209-2950, Fax: 713-659-5302; E-mail: brewer@bplaw.com; and William S. Lerach of Lerach Coughlin et al., 655 West Broadway, Ste 1900, San Diego, CA 92101, Phone: 619-231-1058. EXXON MOBIL: Fla. Law Firm Gets $247M in Station Owners' Suit ------------------------------------------------------------- The U.S. District Court for the Southern District of Florida awarded a Florida law firm $247 million for its work in a protracted class action against Exxon Mobil Corp. by a group of gas-station owners, according to The Wall Street Journal. The award, given to the firm of Stearns Weaver Miller Weissler Alhadeff & Sitterson on July 6, 2006, represents about 75% of an overall fee award of $325 million that the court approved on behalf of five law firms. Previously, other law firms had argued that Stearns Weaver didn't deserve the award. The windfall stems from a 15-year-old case in which gas-station owners accused the oil company of overcharging them for gasoline. Unlike many class actions that were eventually settled, the case was tried twice before a jury and later went to the Supreme Court, which ruled in favor of the plaintiffs last year. In April, Judge Alan Gold in Miami granted final approval to a $1.08 billion settlement. The fee controversy hinged on an agreement struck in 1996 in which Stearns Weaver, which began working on the case that year, signed an agreement to receive 25% of the total legal fees awarded in the case. However, the law firm later requested 77% of the total fee, maintaining it did a disproportionate amount of the work compared with the other law firms over the next 10 years. Judge Gold that Stearns Weaver performed "the near totality of the real legal work." Besides the fees for lawyers, a share of the broader settlement goes to the nine gas-station owners who served as class representatives in the case, which was brought on behalf of more than 11,000 current and former Exxon gas-station owners. Judge Gold awarded the class representatives $15.9 million in incentive awards. Attorneys involved in the matter were Jewel Grutman of Grutman, Greene & Humphre and Daniel Jarcho of McKenna Long & Aldridge in Washington, D.C. FLEETWOOD ENTERPRISES: Recalls Motor Homes with Faulty Shafts ------------------------------------------------------------- Fleetwood Enterprises, Inc., in cooperation with the National Traffic Safety Administration, is recalling about 947 units of Fleetwood motor homes. The company said the Workhorse chassis built on certain Class A motor homes have been equipped with incorrect steering intermediate shafts. The spline can strip while the steering wheel is being turned. This steering condition could result in a loss of steering control, increasing the risk of a crash. These models are included in this recall: Make/Models: Model/Build Years: FLEETWOOD/BOUNDER 2005-2006 FLEETWOOD/FLAIR 2005-2006 FLEETWOOD/PACE ARROW 2005-2006 FLEETWOOD/SOUTHWIND 2005-2006 FLEETWOOD/STORM 2005-2006 Consumers are advised to contact Fleetwood at 1-800-322-8216 or Workhorse at 1-877-294-6773 for inspection and, if necessary, for replacement of intermediate shafts. HARLAND FINANCIAL: Removes "Kitson" Case to Ill. Federal Court -------------------------------------------------------------- Attorneys for Harland Financial Solutions removed a protracted class action pending in St. Clair County Circuit Court to the U.S. District Court for the Southern District of Illinois, The Madison St. Clair Record reports. Originally filed in 2002 by Kenneth Kitson, the company claims that it was not named as a defendant in the case until June 26, 2006. That was the time when plaintiff was granted leave to amend his complaint. Citing the Class Action Fairness Act of 2005, the company argues that the case should be removed to federal court since its value exceeds $5 million. It also pointed out that the company has its principal place of business in Oregon, while the plaintiff is a citizen of a different state. In the amended complaint, Mr. Kitson seeks monetary damages in excess of $50,000 for an alleged breach of contract, an injunction enjoining the company from licensing and collecting licensing fees from the Bank of Edwardsville for Laser Pro Software, punitive damages and reasonable attorney fees. The suit is "Kitson v. Bank of Edwardsville, The et al., Case No. 3:06-cv-00528-GPM-CJP," filed in the U.S. District Court for the Southern District of Illinois under Judge G. Patrick Murphy, with referral to Judge Clifford J. Proud. Representing the plaintiffs are: (1) Pat Ducey of Law Offices of Pat Ducey, Generally Admitted, 41 Oakbrooke, Troy, IL 62294, Phone: 618-667- 3367, E-mail: cpatoutd@yahoo.com; and (2) Bernard J. Ysursa, Sr. of Cook, Ysursa et al., Generally Admitted, 12 West Lincoln Street, Belleville, IL 62220, Phone: 618-235-3500, E-mail: bjy@cooklawoffice.com. Representing the defendants are: (i) Barry Goheen and Misty M. Speake of King & Spalding, LLP, 1180 Peachtree Street N.E., Atlanta, GA 30309- 3521, Phone: 404-572-4600, Fax: 404-572-5139; and (ii) Russell K. Scott of Greensfelder, Hemker et al. - Swansea, Generally Admitted, 12 Wolf Creek Drive, Suite 100, Swansea, IL 62226, Phone: 618-257-7308, E-mail: rks@greensfelder.com. HYPERCOM CORP: Ariz. Court Dismisses Securities Fraud Complaint --------------------------------------------------------------- The U.S. District Court for the District of Arizona entered judgment dismissing with prejudice the second consolidated amended class action company that was filed against Hypercom Corp. and John W. Smolak, the company's former chief financial officer. The amended complaint related to Hypercom's restatement of its financial statements for the first three quarters of 2004 because certain leases generated by Hypercom's U.K. subsidiary were incorrectly accounted for as sales-type leases, rather than operating leases. In its July 5, 2006, Order, the district court found that the amended complaint failed to state claims under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934. Case Background In February and March 2005, various shareholder class action complaints were filed on behalf of a class of purchasers of its common stock in the period from April 30, 2004 to Feb. 3, 2005. The complaints alleged that the company, and certain of its executive management, violated the U.S. Securities Exchange Act of 1934 based on its February 2005 announcement that certain leases in the U.K. had been incorrectly accounted for as sales- type leases, rather than operating leases, and that the company would restate its financial statements for the first three quarters of 2004. In May 2005, these class actions were consolidated into one action and the designated lead plaintiff filed a consolidated amended class action complaint. In January 2006, the court dismissed the consolidated amended class action complaint, and in February 2006, the plaintiffs filed a second consolidated amended class action complaint. The company filed a motion to dismiss the second complaint in April 2006. The suit is "Ray v. Hypercom Corporation, et al., Case No. 2:05- cv-00455-NVW," filed in the U.S. District Court for District of Arizona under Judge Neil V. Wake. Representing the plaintiffs are: (1) Francis Joseph Balint, Jr. of Bonnett Fairbourn Friedman & Balint, PC, 2901 N Central Ave., Ste. 1000, Phoenix, AZ 85012-3311, Phone: 602-274-1100, Fax: 602- 274-1199, E-mail: fbalint@bffb.com; and (2) Stuart L. Berman of Schiffrin & Barroway, LLP, 280 King of Prussia Rd., Radnor, PA 19087, Phone: 610-667-7706, Fax: 610-667-7056, E-mail: ecf_filings@sbclasslaw.com. Representing the defendants are Nicole Healy, Bruce Gordon Vanyo and Lloyd Winawer of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Rd., Palo Alto, CA 94304, Phone: 650-496-4334, 650-320-4904 and 650-493-9300, Fax: 650-565-5100, E-mail: nhealy@wsgr.com, bvanyo@wsgr.com and lwinawer@wsgr.com. LEVEL 3: Delays Mount in Ill. Landowners' Right of Way Lawsuit -------------------------------------------------------------- A class certification hearing in a railroad right of way lawsuit pending in Madison County Circuit Court against Level 3 Communications has been delayed intermittently, The Madison St. Clair Record reports. In April 2002, the company and two of its subsidiaries were named as a defendant in the case, "Bauer, et al. v. Level 3 Communications, LLC, et al.," a purported class action covering 22 states (Class Action Reporter, March 15, 2006). While Judge Andy Matoesian keeps preparing for a hearing, the parties kept putting it off, the report said. In the last 10 weeks, attorneys for the company and three plaintiffs have agreed to continue a hearing on class certification four times. Neither side has submitted briefs that Judge Matoesian ordered last August on the Illinois Supreme Court decision in "Avery v. State Farm." In March, Judge Matoesian ordered Avery briefs on April 7, however he hasn't seen any. The Avery decision threw out a Williamson County verdict worth about $1.2 billion and derailed class action in the state of Illinois. In the Level 3 case, Harriet Bauer, George Schillinger and Ruth Schillinger claim that the company trespassed while laying fiber optic cable. Troy Bozarth, Level 3 attorney countered last year that plaintiffs owned no interest in railroad right of way where the company laid cable. To back his statement, Mr. Bozarth also submitted back then a copy of a "quit claim" deed from 1859, for right of way adjoining the Bauer property. He also submitted a copy of a condemnation from 1857 for right of way adjoining the Schillinger property. Case Background The action involves the firm's right to install its fiber optic cable network in easements and right-of-ways crossing the plaintiffs' land. In general, the companies obtained the rights to construct their networks from railroads, utilities, and others, and have installed their networks along the right-of-way so granted (Class Action Reporter, March 15, 2006). However, plaintiffs in the suit assert that they are the owners of lands over which the fiber optic cable networks pass, and that the railroads, utilities, and others who granted the company the right to construct and maintain their networks did not have the legal authority to do so (Class Action Reporter, March 15, 2006). The complaints seek damages on theories of trespass, unjust enrichment and slander of title and property, as well as punitive damages (Class Action Reporter, March 15, 2006). For more details, contact: (1) [Plaintiff] Elizabeth V. Heller of Goldenberg, Miller, Heller, & Antognoli, P.C., 2227 S. State Route 157, P.O. Box 959, Edwardsville, IL 62025, Phone: (618) 656- 5150, Fax: (618) 656-6230, E-mail: liz@ghalaw.com, Web site: http://www.gmhalaw.com/;and (2) [Defendant] Troy A. Bozarth of Burroughs, Hepler, Broom, MacDonald, Hebrank & True, LLP, Two Mark Twain Plaza, Suite 300, 103 West Vandalia Street, P.O. Box 510, Edwardsville, Illinois 62025-0510, (Madison Co.), Phone: 618-656-0184, Telecopier: 618-656-1364, Web site: http://www.ilmolaw.com. L'OREAL USA: Former Model's Suit Continues in Calif. High Court --------------------------------------------------------------- The California Supreme Court heard oral arguments in a suit filed by a former Beverly Hills hair model against L'OREAL USA late in May, according to Law.com. Amanza Smith filed the suit in 2004 in Los Angeles Superior Court. Ms. Smith worked as a hair model at a show featuring L'Oreal products that time. She accepted the assignment for $500 for one day of work. She received her pay two months later in the form of a check sent from the company's main accounting office in New York. She is claiming that the failure of the company to pay promptly constituted conversion, fraud, unfair business practices, violation of Labor Code sections requiring immediate payment upon discharge, breach of contract, and negligent misrepresentation. L'Oreal claimed Smith was an independent contractor, not an employee within the meaning of the state Labor Code, and therefore, not entitled to immediate payment. The company denied it owes her or any other hair model so-called waiting time penalties. Los Angeles County Superior Court Judge Frances Rothschild granted summary judgment for L'Oreal, and Los Angeles' 2nd District affirmed in 2004. During the May hearing, the court seemed almost annoyed by arguments of the defendant's attorney that individuals who sign on for work for an agreed-upon period of time aren't entitled to prompt payment, according to the report. They were especially concerned that a ruling against Ms. Smith could subject the state's day laborers to delayed payments, the report said. The suit is Smith v. Superior Court (L'Oreal USA), S129476. Representing L'Oreal's is William Carroll Morgenstein & Jubelirer LLP -- http://www.mjllp.com-- One Market, Spear Street Tower, 32nd Floor, San Francisco, California 94105 (San Francisco Co.), Phone: 415-901-8700, Fax: 415-901-8701. The plaintiff is represented by Glancy, Binkow & Goldberg, Lionel Z. Glancy, Kevin F. Ruf and Avi Wagner. On the Net: http://www.glancylaw.com. MASSACHUSETTS: Worcester Library Faces Suit by Shelter Residents ---------------------------------------------------------------- A class action filed on July 6 in federal court in Worcester is challenging the Worcester Public Library's policy restricting the borrowing privileges of residents of homeless shelters, transitional housing programs and adolescent programs. The lawsuit was filed on behalf of three Worcester residents affected by the policy. The lead plaintiff, identified in the complaint as "Jane Doe," is a resident of a family shelter and was attempting to home school her child but was allegedly unable to obtain the necessary educational materials from the library. In addition to the individuals, the suit was brought by the Massachusetts Coalition for the Homeless and the Central Massachusetts Housing Alliance. The lawsuit names the City of Worcester, the Worcester Public Library, and the Library's Board of Directors as defendants. The challenged policy allegedly limits residents of homeless shelters, transitional housing programs and adolescent programs to borrowing a maximum of two items. After borrowing for the first time, other library patrons -- including individuals who reside outside of Worcester -- are not limited to borrowing only two items, according to a statement by ACLU Massachusetts. The library allegedly keeps a list of the names and addresses of the shelters and programs whose residents are limited in their borrowing privileges. As a result of the library's policy, the plaintiffs were supposedly unable to borrow books they needed for themselves and their children. The lawsuit alleges that the policy is unlawful because it violates the guarantees of equal protection of the law, freedom of speech and expression and due process in both the federal and state constitutions as well as the rights of library patrons who are specifically guaranteed by the Massachusetts General Laws. The lawsuit, brought by the Legal Assistance Corporation of Central Massachusetts and the American Civil Liberties Union of Massachusetts, seeks to restore the full and equal library privileges of all residents of homeless shelters and transitional housing programs in the City of Worcester. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?d70 The suit is Civil Action No: 06-40133, filed in the U.S. District Court for the District of Massachusetts. Plaintiffs are "Jane doe," Suzette Lindgren, Andrew Moyer on behalf of themselves and all others similarly situated, and Massachusetts Coalition for the Homeless, and Central Massachusetts Housing Alliance. Defendants are the City of Worcester, Worcester Public Library, and Worcester Public Library Board of Directors. Representing the plaintiffs are: (1) Jonathan L. Mannina and Kate J. Fitzpatrick of Legal Assistance Corp. or Central Massachusetts, 405 Main Street, Fourth Floor, Worcester, Massachusetts 01608 Phone: (508) 753-3718; and (2) John Reinstein of American Civil Liberties Union of Massachusetts, 211 Congress St. Suite 300, Boston, Massachusetts 02110, Phone: (617)482-3170. MASSACHUSSETTS: Police Unions Allege Late Payment of Detail Work ---------------------------------------------------------------- Patrolman John Slaney initiated a class suit against the city of Melrose, alleging violation of state law, the Melrose Free Press reports. The suit, filed on behalf of members of the Melrose Police Patrolmen's Union and the Melrose Superior Officer's Union, accuses the city delaying payment for detail work and training time. According to Melrose police Sgt. Jim Smith, under Massachusetts General Law, detail work is to be paid within seven days of the pay period when the work was performed. The complaint by both unions claim that officers perform detail work -- the extra work police officers and patrolmen perform in addition to their regular duties -- for which they still haven't received pay some six to eight weeks after the work. According to City Auditor Patrick Dello Russo, the late pay is from the third-party vendors, companies such as Verizon and National Grid, for whom the police perform the detail work. These third-party vendors often hire police officers to provide detail around their construction sites. But Terry Coles, plaintiffs' lawyer, refuted the city's inclination to hold the police department accountable for enforcing timely payment from third-party vendors, saying the burden of being paid is on the officers' employer, which is the city. Recently, Mr. Dello Russo said the city, through the general fund, will advance between $40,000-50,000 to cover the back detail pay. The plan is still subject to bureaucratic approval. Plaintiffs are represented by Terry Coles and Liss-Riordan both of Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C., 18 Tremont Street, Suite 500, Boston, MA 02108, Phone: (617) 367- 7200. MICROSOFT CORP: Faces Second Suit in Wash. Over Anti-Piracy Tool ---------------------------------------------------------------- Microsoft Corp. faces a second putative class action in the U.S. District Court for the Western District of Washington over its Windows Genuine Advantage (WGA) anti-piracy tool, alleging that the company pushes it to all Windows PCs, whether or not they have Automatic Updates turned on. Filed on June 30, 2006, plaintiffs in the suit were identified as Engineered Process Controls, LLC, and Univex, Inc., along with individual end users David DiDomizio, Edward Misfud and Martin Sifuentes. The individual plaintiffs are listed as owners of licensed copies of Windows XP running WGA, which was designed to check the validity of a user's copy of the Windows operating system Plaintiffs are charging that the anti-piracy tool amounts to a form of spyware. In addition, they also charged the company of misleading users by labeling WGA as a critical security update without telling them that it would secretly communicate with its servers. According to the suit, since WGA gathers data that can easily identify individual PCs and could potentially be used to gather other types of information, it is akin to malicious threats. In so doing, the suit claims that the program violates Washington's anti-spyware laws. The suit is demanding unspecified damages. It also calls on the company to warn users of the risks associated with using WGA, as well as the creation of a tool to remove it from users' machines. The case is the second legal action the company faces in relation to WGA. On June 26, 2006, Los Angeles resident Brian Johnson, filed a suit against the company claiming that it didn't adequately disclose details of the tool when it was delivered to users via its Automatic Update system. Mr. Johnson's suit, which was filed on June 26, 2006, alleges that the company effectively installed the WGA software on consumers' systems without providing consumers any opportunity to make an informed choice about that software. It also challenges the company's practice of using the automatic updating system as one method of delivering the tool. Though in the past, the company has delivered a variety of programs through Automatic Updates, it's most commonly used for security updates. But, the suit alleges that the software giant effectively hid delivery of the tool under that guise. Like the June 30 class action, the "Johnson" case is seeking unspecified damages. It also makes claims under the Washington Consumer Protection Act and California Unfair Competition Law, in addition to anti-spyware statutes in both states. The suit is "Engineered Process Controls LLC et al v. Microsoft Corporation, Case No. 2:06-cv-00927-JLR," filed in the U.S. District Court for the Western District of Washington under Judge James L. Robart. Representing the plaintiffs are: (1) David Elliot Breskin of Short Cressman & Burgess, 999 3rd Ave., Ste. 3000, Seattle, WA 98104-4088, Phone: 206-682-3333, Fax: 340-8856, E-mail: dbreskin@scblaw.com; and (2) William W. Houck of Law Offices of William W. Houck, 4045 262ND Ave., SE Issaquah, WA 98029, Phone: 425-392- 7118, E-mail: houck@houcklaw.com. MINNESOTA: Black-Owned Businesses Sue St. Paul Over Racial Bias --------------------------------------------------------------- The city of St. Paul faces a purported racial discrimination class action alleging that the city discriminates against black- owned businesses in the area in awarding bids for contracts The suit was filed in the U.S. District Court for the District of Minnesota. Plaintiffs in the case are seeking remedy in this claimed discrimination to ensure their businesses are given equal opportunity to participate in city contracting. The suit names as plaintiffs: -- Brian Conover, -- Frederick Newell, -- Joe Boone, -- Mel Tyner, -- Michael Thomas Plaintiffs are also alleging that the city fails to contact them about bid opportunities, and when they are contacted, it is without adequate notice, thereby making it difficult to submit a timely or competitive bid. The suit is "Thomas et al v. City of Saint Paul, Case No. 0:06- cv-02860-JNE-JJG," filed in the U.S. District Court for the District of Minnesota under Judge Joan N. Ericksen with referral to Judge Jeanne J. Graham. Representing the plaintiffs are: (1) Blair M. Jacobs of Sutherland Asbill & Brennan, LLP, 1275 Pennsylvania Ave., NW, Washington, DC 20004, Phone: 202-383-0773, E-mail: blair.jacobs@sablaw.com; (2) Tricia G. Jefferson of Lawyers' Committee for Civil Rights, 1401 New York Ave., Ste. 400, Washington, DC 20005, Phone: 202-662-8332, E-mail: tjefferson@lawyerscommittee.org; and (3) Stephen L. Smith of Law Firm of Stephen L. Smith, PLLC, 10 S. 5th St., Ste. 700, Mpls, MN 55402, Phone: 612- 305-4355, Fax: 612-305-4388, E-mail: smith@trial-advocate.com. NATIONAL ENTERPRISES: Feb. 2007 Hearing Set for Lakeshore Suit -------------------------------------------------------------- The Circuit Court for Garland County, Arkansas will hold a hearing on February 2007 in the class action, "Donald D. Kessler and Mary L. Kessler, et al. v. National Enterprises, Inc. and Arkansas No 1 LLC, Case No. E-96-1637-11." The case was brought on behalf of all purchasers of the time- sharing condominium units at the Lakeshore Resort & Yacht Club, located on a parcel of land situated at 3501 Albert pike Road, Hot Springs, Garland County, Arkansas, during the period from on or about June 28, 1985 through on or about April 12, 1994. In the suit, plaintiffs sought restitution and rescission of their purchase contracts and raised claims of misrepresentation and breach of contract. The circuit court later certified the class and on that same date granted summary judgment in favor of the plaintiffs and against defendants on issues involving liability and damages. Pursuant to an order of the court issued on June 12, 2006, a heaing will be held before Judge Vicki Cook in the Courtroom No. 102 in the Garland County Courthouse, 607 Ouachita Ave., Hot Springs, Arkansas 71901 on Feb. 5, 2007 at 9:00 a.m. and ending Feb. 16, 2007 to the claims of the class members, the damages they sustained and for the entry of final judgment against the defendants. Parties interested in joining the suit must submit a claim from by Sept. 29, 2006. For more details, contact: (1) George Jay Bequette, Jr. of Skokos, Bequette & Billingsley, 425 West Capitol, 3200 TCBY Tower, Little Rock, AR 72201-3439, Phone: (501) 374-1107; and (2) Don M. Schnipper of Wood, Smith, Schnipper & Clay, Smith Building, 123 Market Street, Hot Springs, AR 71901-5398, Phone: (501) 624-1252. NISSAN NORTH: Recalls 2006 Car Models with Faulty Piston Rings -------------------------------------------------------------- Nissan North America, Inc., in cooperation with the National Traffic Safety Administration, is recalling about 85,000 units of Nissan Altima and Sentra. The Nissan models affected in this recall are NISSAN/ALTIMA built in 2006, and NISSAN/SENTRA also built in 2006. The company said certain passenger vehicles equipped with 2.5 L engines may experience excessive oil consumption as a result of improper performance of the piston rings. If the oil is not maintained at least at the minimum level, engine damage can occur and in extreme cases result in an engine fire. For more information on this recall, call Nissan at 1-800-647- 7261. NORBOURG GROUP: Canadian Regulator Seeks to Junk Brokers' Suit -------------------------------------------------------------- A hearing in respect of the motion for authorization of a class action filed by Francis Rosso on behalf of all representatives who sold Norbourg, Evolution and Perfolio funds since inception or are part of Tandem Wealth Management began on July 6 in Superior Court. Mr. Rosso is a former manager at Gestion de Patrimoine Tandem Inc., a brokerage that was part of the Norbourg group and sold Norbourg, Evolution and Perfolio mutual funds. The action relates solely to the Autorite des marche financiers (AMF) and not to any of the main players in the Norbourg matter. At the hearing, the AMF asked Judge Jean-Yves Lalonde to dismiss the motion for authorization of the class action. According to the AMF, the proposed class action does not meet any of the criteria required for authorization. In particular, AMF said that the group of representatives covered by the class action is in no way homogeneous and cannot be addressed as part of a class action because it includes: -- representatives whose clients have not incurred a loss as a result of the conduct of the Norbourg Group, and this includes representatives who: * purchased and sold units in the Evolution and Perfolio Funds before they were acquired by Norbourg, * did not sell a single unit in the Evolution, Norbourg or Perfolio Funds to clients; -- representatives who took part, according to statements made in the course of other proceedings, in the offences alleged in the Norbourg matter; -- representatives who, in exchange for transferring clients, received money from the Norbourg Group totaling almost $4.8 million. Francis Rosso himself allegedly received $40,000 from the Norbourg Group on Feb. 15, 2005. Some representatives, including Mr. Rosso, would have therefore derived benefits at the expense of defrauded investors, the AMF said. Mr. Rosso is claiming $161,000. The Autorite des marches financiers is the regulatory and oversight body for Qu,bec's financial sector. On the Net: http://www.lautorite.qc.ca. OHIO: County Judge Prohibits Use of Speed Camera in Girard City --------------------------------------------------------------- Trumbull County Common Pleas Judge John M. Stuard ruled in favor of more than 1,500 car owners who argued that use of speed cameras by the city of Girard, Ohio to nab traffic violators was unconstitutional and in violation of due process laws, Tribune Chronicle reports. With the ruling, Judge Stuard ordered the city to stop using its cameras and to stop collecting fines claimed under its civil ordinance against speeding. According to his ruling, "The Legislature has authorized civil, non-criminal penalties to be set by municipalities for parking tickets. There has been no legislative action by the state to allow the extension of this concept to speeding." Judge Stuard explains in his ruling that state law takes precedence over a local ordinance if it is in conflict with the state statute, if it is an exercise of police power rather than self-government or if the statute is a general law. He found that the city failed each of those tests. Furthermore, Judge Stuard ruled that the city not only changed speeding violations from being criminal to civil infractions, but also was changing a previously set punishment for those crimes. Whereas traffic violations amount points to drivers' licenses, the city's tickets simply are paid and forgotten like a parking ticket. The camera, furnished to the city by Traffipax, a Maryland-based firm, was used primarily on U.S. Route 422, for eight hours a day, six days a week and yielded an obvious reduction in speeding along the thoroughfare. Back in January, Judge Stuard certified a class in the suit that includes anyone who received a ticket from the camera and didn't pay it, who are contesting citations or who have yet to receive one in the mail. Of the $85 filed collected from violators, $60 goes to the city and the remaining amount goes to Traffipax, which was contracted to install and operate the device. Judge Stuard previously ordered that Traffipax's portion of the fine also be placed in escrow (Class Action Reporter, Jan. 24, 2006) In addition, the judge allowed both the city and Traffipax to sue those who refused to pay the tickets, but prohibits them from doing so until the issues questioning the legality of the camera have been settled (Class Action Reporter, Jan. 24, 2006) For more details, contact James A. Denney, 1631 S. State St., Girard, OH 44420-3370, Phone: (330) 545-4250, Fax: (330) 545- 4255. QWEST COMMUNICATIONS: Ill. Court Nixes Class in Landowners' Suit ---------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois denied class-action status to the suit, "McDaniel v. Qwest Communications Corp." Filed on Feb. 18, 2005, the case was brought as a putative class action by 14 landowners against various telecommunications firms, including the company. The suit involves whether fiber optic cable lines are trespassing on the plaintiffs' properties. Various railroads acquired rights-of-way during the 19th century over these parcels and have since granted the telecommunications companies the right to lay their cable lines across the rights-of-way. Plaintiffs though contend that the rights conveyed by their ancestors to the railroads do not encompass these fiber optic cable networks. The court's opinion is available free of charge at: http://ResearchArchives.com/t/s?d65. The suit is "McDaniel et al v. QWest Communications Corporation et al., Case No. 1:05-cv-01008," filed in the U.S. District Court for the Northern District of Illinois under Judge Rebecca R. Pallmeyer. Representing the plaintiffs are: (1) Arthur T. Susman of Susman, Watkins & Wylie, LLP, Two First National Plaza, Suite 600, Chicago, IL 60603, Phone: (312) 346-3466, Fax: 312-346-2829, E-mail: asusman@ameritech.net; and (2) William T. Gotfryd, 20 South Clark Street, Chicago, IL 60603, Phone: (312) 346-3466, E-mail: wtglawproj@aol.com. Representing the defendants are: (i) John F. Daum of O'Melveny & Myers, 400 South Hope Street, Los Angeles, CA 90071-2899, Phone: (213) 669- 6000; (ii) Emily J. Brubaker of Corr Cronin Michelson Baumgardner & Preece, 1001 Fourth Avenue, Suite 3900, Seattle, WA 98154-1051, Phone: (206) 625-8600; and (iii) Kevin Buckley Duff of Rachlis Durham Duff & Adler, 542 South Dearborn Street, Suite 1310, Chicago, IL 60605, Phone: (312) 733-3950, E-mail: kduff@rddlaw.net. RIVIERA HOLDINGS: Plaintiffs Consolidate Suits Over Merger Plans ---------------------------------------------------------------- A group of Riviera Holdings Corp. shareholders has filed a class action complaint against the company's board, consolidating several individual complaints that had been filed in April over plans to sell the company. The complaint was filed in Clark County, Nevada District Court on June 19, according to In Business Las Vegas. It was specifically directed at a definitive merger agreement under which Riv Acquisition Holdings, Inc. will acquire all of the outstanding shares of the company (Class Action Reporter, June 14, 2006). Between April 6, 2006 and April 25, 2006, five class action complaints were filed against the company and its directors, each on behalf of a named plaintiff shareholder and all others similarly situated. The named plaintiffs in the complaints are: -- "Thomas A. Trozzi (Case No. A520076, filed on April 6, 2006)"; -- "Phillip LaBarbara (Case No. A520100, filed on April 7, 2006)"; -- "Todd Veeck (Case No. A520136, filed on April 7, 2006)"; -- "Norberto Silva (Case No. A520638, filed on April 19, 2006)"; and -- "Robert Strougo (Case No. A520911, filed on April 25, 2006)." Plaintiff Thomas A. Trozzi notified the company on April 10, 2006, that he did not agree to be a party to a lawsuit filed against the company or to have such a lawsuit filed in his name. On April 17, 2006, the Trozzi complaint against the company was voluntarily dismissed without prejudice. Plaintiffs in each of the four remaining lawsuits allege, among other things, that the defendants breached their fiduciary duties owed to the company shareholders by entering into the agreement and plan of merger, dated April 6, 2006, among Riv Acquisition Holdings Inc., Riv Acquisition Inc. and Riviera Holdings Corp. (RHC) at a price the plaintiffs considered to be inadequate. On April 6, 2006, RHC and Riv Acquisition Holdings Inc., entered into a definitive merger agreement under which all of the outstanding shares of RHC will be acquired for $17.00 per share in cash, other than shares owned by William L. Westerman, RHC's chief executive officer. Mr. Westerman had entered into a previous personal agreement to sell his shares to the investment group for $15 per share in cash and to vote his shares in favor of the acquisition. The transaction is expected to be complete sometime in the first half of 2007, subject to shareholder approval and licensing by gaming authorities. In the complaints the plaintiffs request the court to do the following, among others: -- certify all company shareholders, other than the defendants and persons or entities related to or affiliated with any defendants, as a class for purposes of a class action; -- enjoin consummation of the transactions contemplated by the merger agreement; and -- rescind the merger agreement. SWISS COLONY: Recalls Money Bag Candles Posing Fire Hazard ---------------------------------------------------------- The Swiss Colony, of Monroe, Wisconsin, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 65,500 units of "Money Bag" candles. The company said the decorations on the candle can ignite, posing a fire hazard. Also, excessive pooling of wax from the burning candles poses a burn hazard. The Swiss Colony has received four reports of incidents involving the candle igniting nearby combustibles including one report of extensive property damage. No injuries have been reported. The recalled product is the "Money Bag" candle, which is 3 1/4- inches tall and green in color. There is a gold glitter dollar symbol on the front of the candle and the candle is molded in the shape of a bag. Inside the candle is a varying amount of money from a $1 coin to a $50 bill. Hang tags on the candle identify the candle as "The Money Bag by The Original Treasure Candle, Inc." They were sold under item numbers BI4372, BR4372, RA7372, RB4372, RG4372 and RW4372. The item number is not written on the candle. These money bag candles were manufactured in the U.S. and are being sold by The Swiss Colony catalog, Web site and outlet stores nationwide from September 1997 through April 2006 for about $20. Picture of the recalled money bag candle: http://www.cpsc.gov/cpscpub/prerel/prhtml06/06196.jpg Consumers are advised to stop using this recalled product immediately and contact The Swiss Colony for instructions on how to return the product for a full refund. For additional information, consumers should contact The Swiss Colony at (800) 991-4442 between 8 a.m. and 12 a.m. CT Monday through Friday, or visit http://www.swisscolony.com. TOBACCO LITIGATION: High Court Reverses $145B Award in "Engle" -------------------------------------------------------------- The Florida Supreme Court decertified the Engle class and reversed the state court jury's award of $145 billion in punitive damages because, as a matter of law, the award was improper and excessive. The High Court also concluded that certain issues decided by the Engle trial jury may be considered as resolved for any potential future cases filed by former class members. In its 68-page opinion, the three-judge panel set forth in considerable detail why the Engle case failed to meet virtually every legal requirement for class certification. In addition, the court said that the three individual Engle plaintiffs, whose claims were tried in the second phase of the trial, were not entitled to damages. The court also criticized the plaintiffs' lawyer for his misconduct throughout the trial and found that it inflamed the jury into awarding an excessive $145 billion in punitive damages. In summary, the Court said, "The fate of an entire industry and of close to a million Florida residents cannot rest upon such a fundamentally unfair proceeding." The Engle plaintiffs asked the Third DCA to reconsider its ruling, and that the entire Court consider the matter. The Engle plaintiffs also asked the Third DCA to "certify" certain legal issues for review by the Florida Supreme Court. Philip Morris USA and other tobacco companies have said the court's decision was correct, as a matter of law, and reconsideration is unnecessary. Case Background Miami lawyers Stanley and Susan Rosenblatt, purportedly on behalf of all "addicted" smokers in the U.S. who had suffered alleged smoking-related injuries, filed the Engle case in 1994. In 1996, an intermediate state appellate court ruled that the case could proceed as a class action, but it reduced the breadth of the class to Florida residents. In July 1999, the jury returned a verdict in favor of the plaintiffs on a number of these broad questions, such as generic causation and addiction. In addition, the jury returned a verdict for plaintiffs on extremely broad questions dealing with fraud, breach of warranty and strict liability, among others. The jury also said that the tobacco companies' conduct rose to the level that would permit the potential award of punitive damages. On April 7, 2000, the jury determined that the companies bore the majority of responsibility for the plaintiffs' injuries and that compensatory damages should be awarded. The trial then entered a punitive damages phase, and on July 14, 2000, the jury awarded plaintiffs $145 billion. In November, Judge Robert P. Kaye entered an order of final judgment in that amount. On May 21, 2003, Florida's Third District Court of Appeal set aside a Dade County Circuit Court jury's decision in the Engle case and ordered the Engle class decertified against Philip Morris USA and other cigarette makers, overturning the nearly $145 billion punitive damages award On September 22, 2003, Florida's Third District Court of Appeal rejected all petitions by the Engle class for reconsideration and other relief. Attorneys for the class have sought review of the Third District decision by the Florida Supreme Court and the parties are awaiting the court's decision. On May 12, 2004, the Florida Supreme Court agreed to consider the Engle plaintiffs appeal and directed all parties to brief the issues involved. All briefing has been completed, and oral argument before the court occurred on November 3, 2004. A copy of the Florida Supreme Court Engle opinion is available free of charge at: http://ResearchArchives.com/t/s?d60. UNITED STATES: Health & Human Services Dept. Amends Medicaid Law ---------------------------------------------------------------- The U.S. Department of Health and Human Services has now exempted the elderly and the disabled from having to prove their U.S. citizenship in order to qualify for Medicaid, according to All Headline News. A Medicaid law that went into effect on July 1 required Medicaid beneficiaries and applicants to provide proof of citizenship to receive benefits. Specifically, it required people to supply original documents like passports or birth certificates. That law sought to ensure that only citizens or qualified legal immigrants gain access to Medicaid, the state-federal health insurance program for the poor (Class Action Reporter, July 4, 2006) The law met protests, including a class action. The Shriver Center on Poverty Law in Chicago filed a case on June 28, 2006 in the U.S. District Court for the Northern District of Illinois, arguing that the law would hurt the most vulnerable people. The suit was filed on behalf of nine plaintiffs who say they cannot document their citizenship and might lose their Medicaid benefits if the law is implemented (Class Action Reporter, July 4, 2006). It sought to enjoin the Bush administration from implementing the law, which allegedly violates the Fifth Amendment of the U.S. Constitution regarding due process of law. (Class Action Reporter, July 4, 2006) On Friday, John Bouman, an attorney for the Shriver Center, said the law has now been amended to exempt the elderly and the disabled. However, the exemption wouldn't be applicable on certain groups, including those on Medicare and those who get certain Social Security benefits. The suit named as plaintiffs: -- Ruby Bell, -- A.L., -- Alocia Brown, -- Della Otis, -- George Crawford, -- Kevin Harris, -- Ruby Bell, -- Ruby Trammell, and -- Robert Patterson According to Mr. Bouman, plaintiffs will be seeking to extend the amendment to key groups like the homeless and victims of natural disasters, who still face significant challenges to comply with the law. A brief hearing at the U.S. District Court in Chicago on the plaintiffs' request for a temporary restraining order was held July 7, 2006, but a new hearing was set for July 28 in light of the new regulations. The suit is "Bell et al. v. Leavitt, Case No. 1:06-cv-03520," filed in the U.S. District Court for the Northern District of Illinois under Judge Ronald A. Guzman. Representing the plaintiffs are: (1) Mary Anderson and David E. Morrison of Goldberg Kohn, 55 East Monroe, Suite 3700, Chicago, IL 60603, US, Phone: (312) 201-4000, E-mail: mary.anderson@goldbergkohn.com and david.morrison@goldbergkohn.com. (2) John Mark Bouman of Poverty Law Project, 111 North Wabash, Suite 500, Chicago, IL 60602, Phone: (312) 263- 3830, E-mail: johnbouman@povertylaw.org; and (3) Thomas D. Yates of Health & Disability Advocates, 205 West Monroe Street, 3rd Floor, Chicago, IL 60606-5013, Phone: (312) 223-9600, E-mail: tyates@hdadvocates.org. Representing the defendant is Jonathan C. Haile, U.S. Attorney's Office, NDIL, 219 South Dearborn Street, Suite 500, Chicago, IL 60604, Phone: (312) 353-5300, E-mail: jonathan.haile@usdoj.gov. WORKHORSE CUSTOM: Recalls Motor Home with Defective GM Engines -------------------------------------------------------------- Workhorse Custom Chassis, in cooperation with the National Traffic Safety Administration, is recalling about 17,033 units of motor home and truck chassis. The company said certain motor home and truck chassis equipped with General Motors' 8.1L V8 engines, results to improper hardening during the heat treatment process, which causes the fuel rail pulse damper retainer clip to fracture. This could result to an inadequate retention of the damper. If the damper becomes loose, fuel could be dumped by the fuel pump into the under hood area. In the presence of an ignition source, a fire could result. The models affected by the recall include: Make/Models: Model/Build Years: WORKHORSE/P32 2004 WORKHORSE/W20 2004 WORKHORSE/W22 2004 WORKHORSE/W24 2004 WORKHORSE/W52 2004 Owners are advised to contact Workhorse at 877-294-6773 for replacement of the fuel rail pulse damper retainer clips on the engines, free of charge. WORLDCOM INC: Trustee Accepting Bids in Columbus Lumber Interest ---------------------------------------------------------------- Development Specialists, Inc., as Trustee, pursuant to a Trust that was created under a settlement agreement In re: WorldCom, Inc., Securities Litigation 02-Civ. 3288 (S.D.N.Y.), will accept bids to purchase membership interests in Columbus Lumber, LLC, on July 17, 2006, 2:00 p.m., at the offices of: Burr & Forman, LLP 401 East Capitol Street, Suite 100 Jackson, MS 39201 Columbus Lumber's primary business contains a southern yellow pine sawmill operation including a log yard, wet yard, sawmill equipment, planer mill, material handling equipment, kilns, a wood treating facility, rolling rock, sheds and buildings all situated on approx. 91 acres of property. Assets also include inventory of timber tracts, logs, lumber and accounts receivable. The Trustee has received a qualified bid of $17.7 million, less certain long-term debts of approximately $3.1 million as of Dec. 31, 2005, for a net bid of $14.6 million. Any competing bids must be at least $18.5 million, less that debt, or net of $15.4 million, in cash, and include terms that are equal to or better than the terms within the initial bid. Bidders must make an initial deposit of $1,543,000 to be considered as a qualified bidder, and must post a cashier's check or wire transfer with the Trustee five days prior to the sale. Parties interested in receiving a bid package, conducting due diligence or viewing the property and submitting offer for the property must contact the Trustee's counsel, Burr & Forman LLP, and the Trustee's representatives: Development Specialists, Inc. Attn: Brian C. Weepie 70 West Madison Street, Suite 2300 Chicago, IL 60602 Tel: (312) 263-4141 Fax: (312) 263-1180 -- and -- Development Specialists, Inc. Attn: Joseph J.Luzinski 200 South Biscayne Boulevard, Suite 1818 Miami, FL 33131 Tel: (305) 374-2717 Fax: (305) 374-2717 Also being sold is a property of former Worldcom chief executive Bernie Ebbers in Lincoln County, Mississippi (Class Action Reporter, June 28, 2006). A suit filed against Mr. Ebbers by investors who lost money when WorldCom collapsed in 2002, calls for him to pay $5 million up front and to place the remainder of his assets in a trust that is expected to be sold for an estimated $25 million to $40 million. All monies from the sale of Mr. Ebber's property are to be deposited in a fiduciary fund for disbursement to plaintiffs in the class action. Headquartered in Clinton, Mississippi, WorldCom, Inc., now known as MCI -- http://www.worldcom.com/-- is a pre-eminent global communications provider, operating in more than 65 countries and maintaining one of the most expansive IP networks in the world. The company filed for chapter 11 protection on July 21, 2002 (Bankr. S.D.N.Y. Case No. 02-13532). On March 31, 2002, the Debtors listed $103,803,000,000 in assets and $45,897,000,000 indebts. The Bankruptcy Court confirmed WorldCom's Plan on Oct. 31, 2003, and on Apr. 20, 2004, the company formally emerged from U.S. Chapter 11 protection as MCI, Inc. (Troubled Company Reporter Vol. 10, No. 160) New Securities Fraud Cases ESCALA GROUP: Lead Plaintiff Application in Stock Suit Due Today ---------------------------------------------------------------- Glancy Binkow & Goldberg, LLP, reminds interested parties may move the court not later than July 10, 2006 for appointment as lead plaintiff in the shareholder lawsuit filed on behalf of all persons and institutions, who purchased securities of Escala Group, Inc. between Sept. 5, 2003 and May 8, 2006, inclusive. The company charges Escala and certain of the company's executive officers with violations of federal securities laws. Among other things, plaintiff claims that defendants' material omissions and dissemination of materially false and misleading statements concerning Escala's business and financial performance caused the company's stock price to become artificially inflated, inflicting damages on investors. Escala, formerly, Greg Manning Auctions, Inc., operates through various subsidiaries as a global collectibles merchant and auction house network specializing in auctions, merchant/dealer operations and trading in various collectibles and precious metals. The company alleges that the company represented throughout the class period that it was achieving record results -- particularly as a result of agreements entered into with its majority shareholder, Afinsa Bienes Tangibles, S.A. -- without disclosing that these results were actually achieved from questionable and potentially illegal activities. Defendants also stated that they had complied with the reporting requirements of the U.S. Securities and Exchange Commission and U.S. Generally Accepted Accounting Principles, and had voluntarily complied with the reporting requirements of the Sarbanes-Oxley Act of 2002. The company alleges that representations Escala made about its financial condition, business prospects, and operations were false and misleading and the individuals in charge of managing the company had a duty to disclose the company's true condition to the investing public. Throughout the Class Period, Escala suffered a range of problems affecting its bottom line that remained undisclosed to investors. When investors finally learned that Escala's majority shareholder, from whom Escala derived substantial revenue, was engaged in a pyramid scheme, the market reacted negatively. Shares of the company declined approximately 85% in heavy trading volume in the days following the company's disclosures. For more details, contact Lionel Z. Glancy and Michael Goldberg of Glancy Binkow & Goldberg, LLP, Phone: (310) 201-9150 or (888) 773-9224, E-mail: info@glancylaw.com, Web site: http://www.glancylaw.com. ESCALA GROUP: Lead Plaintiff Application in Stock Suit Due Today --------------------------------------------------------------- The Rosen Law Firm reminds investors that they have until July 10, 2006 to seek appointment by the court as lead plaintiff in the class action filed on behalf of purchasers of Escala Group, Inc. stock during the period between Sept. 5, 2003 through May 8, 2006. The complaint filed by the Rosen Law Firm specifically alleges that the company misrepresented the true value of transactions with its affiliate and controlling shareholder Afinsa Bienes Tangibles, S.A. The company alleges that these transactions were in furtherance of a Ponzi scheme orchestrated by Afinsa in Spain and constituted the primary source of the company's purported operating profits. For more details, contact Laurence Rosen, Esq. and Phillip Kim, Esq. of The Rosen Law Firm, Phone: (212) 686-1060, (917) 797- 4425 and 1-866-767-3653, Fax: (212) 202-3827, E-mail: lrosen@rosenlegal.com and pkim@rosenlegal.com, Web site: http://www.rosenlegal.com. KINDER MORGAN: Lerach Coughlin Files Securities Suit in Tex. ------------------------------------------------------------ Lerach Coughlin Stoia Geller Rudman & Robbins LLP commenced a class action in the U.S. District Court for the Southern District of Texas on behalf of holders of common stock of Kinder Morgan, Inc. The complaint charges certain of the officers and directors of Kinder Morgan with violations of applicable state law on behalf of the company's shareholders. Specifically, the stockholder class action is brought on behalf of the holders of Kinder Morgan common stock against Kinder Morgan's senior officers and directors arising out of their efforts to complete a management- led buyout of Kinder Morgan via an unfair process at a grossly inadequate and unfair price of $100 per share. The complaint further alleges that, in pursuing the unlawful plan to cash out Kinder Morgan's public stockholders for grossly inadequate consideration and without full and fair disclosure of all material information, each of the defendants violated applicable law by directly breaching and/or aiding other defendants' breaches of their fiduciary duties of loyalty, due care, independence, candor, good faith and fair dealing. Instead of attempting to obtain the highest price reasonably available for the company's stockholders, the company alleges defendants spent a substantial effort tailoring the structural terms of the Acquisition to meet the specific needs of the Management Buyout Group, which includes the company's top officers and directors as well as a group of private equity funds. The company explains that because defendants dominate and control the business and corporate affairs of Kinder Morgan, and are in possession of private corporate information concerning Kinder Morgan's assets, business and future prospects, there exists an imbalance and disparity of knowledge and economic power between them and the public shareholders of Kinder Morgan which makes it inherently unfair for them to pursue any proposed transaction wherein they will reap disproportionate benefits to the exclusion of maximizing stockholder value. The company provides examples of such disparities. For example, the company describes how Kinder Morgan Energy Partners, L.P. (KMP) and its partner Sempra Energy are moving forward on the $4.4 billion Rockies Express Pipeline project after obtaining binding commitments from creditworthy shippers for all 1.8 billion cubic feet (Bcf) of transportation capacity on the 1,323-mile pipeline that will move natural gas from the Rocky Mountain region to the eastern U.S. KMP also has binding commitments with major oil companies to support the $500 million Kinder Morgan Louisiana Pipeline project, which will transport regasified liquefied natural gas from the Gulf Coast into the country's pipeline network. Combined, these two projects alone are expected to result in an increase of $0.50 to $0.60 in earnings per share at Kinder Morgan once they are fully completed in 2009, and will be substantially accretive prior to that as certain segments of each project come online. The company further alleges in detail how these investments were made on the backs of the company's public shareholders. Defendants now wish to squeeze the company's public shareholders out of their shares in the company so that they, and they alone, can enjoy the fruits of these strategic investments. In addition, once the Acquisition is completed, the defendants will also have the opportunity to acquire the Trans Mountain Pipeline system in British Columbia from the company on terms which they, and they alone, can and will dictate. Thus, the company claims that not only will defendants' personal profits generated from the Acquisition be affected by their paying the lowest price to shareholders in connection therewith, but also, defendants will profit from these piecemeal projects by selling various parts of the company to themselves. Thus, collectively, as alleged in the company, it is in defendants' interests to conceal the true value of the company, including various methods of extracting further profits from these future "side deals," which defendants are already negotiating for themselves. In short, the company alleges that the Acquisition is designed to unlawfully divest Kinder Morgan's public stockholders of a large portion of the valuable assets of the company -- assets defendants know will continue to produce substantial revenue and earnings -- for grossly inadequate consideration. Although the company has formed a so-called "Special Committee" to evaluate the Acquisition, the decision is essentially a fait accompli, as the Special Committee is dominated and controlled by various members of the Management Buyout Group, many of whom are the company's top executives and private equity firms, and all of whom have structured the Acquisition to share in the company's spoils to the exclusion of the minority shareholders, who for years have shouldered these very investments/benefits which they are being squeezed out of benefiting from. Plaintiff seeks to enjoin the Acquisition of Kinder Morgan on behalf of the company's minority shareholders. The plaintiff is represented by Lerach Coughlin, which has expertise in prosecuting investor class actions and extensive experience in actions involving mergers and acquisitions on terms detrimental to the interests of minority shareholders. For more information, contact William Lerach or Darren Robbins of Lerach Coughlin Stoia Geller Rudman & Robbins LLP, Phone: (800) 449-4900 or (619) 231-1058, E-mail: wsl@lerachlaw.com. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. 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