/raid1/www/Hosts/bankrupt/CAR_Public/060713.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 13, 2006, Vol. 8, No. 138
Headlines
A.G. EDWARDS: Stock Broker Sues Over Alleged FLSA Violations
ALLSTATE INSURANCE: Ken. Court Has Yet to Certify Hager Lawsuit
AMERIGROUP CORP: Va. Court Refuses to Dismiss Securities Suit
BAUSCH & LOMB: Chinese Consumers Consider U.S. Suit Over ReNu
BIJOU-MARKET: Faces $66M Labor Suit in Calif. Bankruptcy Court
CALIFORNIA: Sacramento County Settles Juvenile Strip-Search Case
CHALK'S OCEAN: 2005 Plane Crash Suit May be Settled for $51M
CHATTEM INC: Calif. Court Denies Class Status to Dexatrim Suit
CHATTEM INC: Files Responses to Calif. Bullfrog Suncare Suit
COMPUTER LEARNING: Court Finds Students Proof of Claim Too Late
E.I. DUPONT: Lawyers Meet in Iowa Court to Discuss Teflon Case
ENTERGY NEW ORLEANS: Seeks Summary Judgment on Plaintiffs Claims
HALLIBURTON CO: Court Yet to Rule on Motion to Junk Stock Suit
HARNISCHFEGER INDUSTRIES: Mass. Suit Over Pension Fund Settled
HOME FRAGRANCE: Recalls Cement Candles Posing Fire Hazard
INDIANA: Correction Dept. Sued Over New Policy on Adult Magazine
INDIAN TRUST: Appeals Court Removes Judge Lamberth from "Cobell"
MEDTRONIC INC: Seeks Dismissal of Lawsuit Over Defibrillator
MRL INC: Launches Nationwide Recall of Monitor/Defibrillators
SOUTH CAROLINA: High School Drug Raid Suit Settled for $1.6M
SUPERIOR FORESTRY: Politician Files Brief in "Rosiles-Perez"
TOYOTA MOTOR: Recalls FJ Cruiser with Damaged Inner Tire Bead
UNIVERSITY OF CALIFORNIA: Settles Willed Body Program Lawsuit
US BANK: Appeals Court Sides with Bank in Depositors' Lawsuit
WAL-MART STORES: Recalls Office Chairs After Fall Injury Reports
WAVE SYSTEMS: Settles Securities Fraud Suit in Mass. for $1.75M
WD-40 CO: Consumer Files Consumer Fraud Lawsuit in Calif. Court
New Securities Fraud Cases
INFOSONICS CORP: Murray, Frank Files Securities Suit in Calif.
SUNTERRA CORP: The Rosen Law Commences Securities Fraud Inquiry
*********
A.G. EDWARDS: Stock Broker Sues Over Alleged FLSA Violations
------------------------------------------------------------
A securities broker filed a purported class action against A.G.
Edwards, Inc. and A.G. Edwards & Sons, Inc. in the U.S. District
Court for the Northern District of New York, alleging violations
of the federal and state labor laws.
Carl J. Basile, a securities broker for the defendants, filed
the suit on behalf of all employees who are engaged in or
training to be in the business of selling securities after July
6, 2004 for claims purportedly under Fair Labor Standards Act.
It was also filed on behalf of such employees in New York after
July 6, 2000 for claims purportedly under New York Labor and the
New York State Labor Department's Codes, Rules and Regulations.
According to the complaint, plaintiff worked for the defendants
as securities broker with his primary duties being:
-- selling securities,
-- assuring client trades were successfully processed,
-- making "cold calls," and
-- engaging in other activities to develop and service a
book of business
As a securities broker, the plaintiff received commission on
sales. Under federal and state law, compensation in the form of
commissions is a "wage" for purposes of the overtime laws.
Plaintiff regularly worked in excess of 40 hours per week, but
the complaint alleges that defendants did not pay him for
overtime hours worked.
The complaint also alleges that the plaintiff paid for his own
when meeting with clients and paid for expenses such as meals
for his clients, both without any reimbursements from the
defendants.
The action seeks overtime pay and reimbursement of certain
amounts that were deducted from commissions allegedly owed the
employees.
The complaint is available free of charge at:
http://researcharchives.com/t/s?d9c
The suit is "Basile v. A.G. Edwards Inc. et al., Case No. 1:06-
cv-00833-GLS-DRH," filed in the U.S. District Court for the
Northern District of New York under Judge Gary L. Sharpe with
referral to Judge David R. Homer.
Representing the plaintiffs are:
(1) Robert Abrams and Jeffrey G. Smith of Wolf Haldenstein
Adler Freeman & Herz, LLP, 270 Madison Avenue, New
York, NY 10016, US, Phone: (212) 545-4600; and
(2) Brian F. Mumford and Amanda R. Stern of Harvey, Mumford
Law Firm, 20 Corporate Woods Boulevard, Third Floor,
Albany, NY 12207, Phone: 518-463-4491, Fax: 518-463-
5665, E-mail: bmumford@harveyandmumford.com and
astern@harveyandmumford.com.
ALLSTATE INSURANCE: Ken. Court Has Yet to Certify Hager Lawsuit
---------------------------------------------------------------
The suicide of a veteran claims adjuster employed by Allstate
Insurance Co. could play a role in a class action by Geneva
Hager, according to the Herald-Leader.
Sarah Howard, who committed suicide in 1999, was the adjuster
who handled Ms. Hager's insurance claim for a vehicular
accident. Mrs. Howard's son had sued Allstate saying the
company drove her to death by increasing her workload and
harassing her after she filed for workers' compensation,
complained of "illegal practices" and disability discrimination,
and sought medical leave. The lawsuit was settled out of court.
It's not clear, however, whether Hager's lawyers will be allowed
to bring up Mrs. Howard's suicide if the case goes to trial,
according to the report.
Circuit Judge Thomas Clark has yet to rule on the certification
as a class action of the suit that accuses Allstate Insurance of
fraudulently denying policyholders and claimants fair offers.
Ms. Hager got $25,000 from the insurer after her vehicle was
rear-ended by a truck insured by Allstate in 1997. The $25,000
was the policy limit for the truck's driver more than five years
ago.
However, Ms. Hager's attorneys argue the payout was only offered
days after Fayette Circuit Court Judge Thomas Clark set a trial
date over her claim. The attorneys further argue that Allstate
did not act in good faith and they question whether Allstate's
protocol for handling what the company calls "minor impact, soft
tissue" claims violates Kentucky's Unfair Claims Settlement
Practices Act. Ms. Hager suffered neck and lower back injuries
during the accident.
The plaintiff's lawyers say Allstate illegally singles out cases
with about $1,000 in property damage, trains adjusters to assume
such wrecks can't result in severe injuries and drags out those
cases so claimants will give up.
Ms. Hager's attorneys are asking the court to allow them to
proceed with an $800 million class action (Class Action
Reporter, May 19, 2005). The lawyers are seeking $6 million in
damages for Ms. Hager alone.
If allowed to proceed, Ms. Hager's suit could include thousands
of Kentuckians who suffered soft-tissue injuries in wrecks with
minor property damage, according to Herald-Leader.
The suit is "Geneva Hager and others v. Allstate Insurance Co.,
Allstate Indemnity Co. and Northbrook Property and Casualty
Insurance Co., Case No. 98-CI-2482" filed in Fayette Circuit
Court Civil Branch 8th Division.
Representing the plaintiff is Paul Kaplan, 157 North Broadway
Lexington, Kentucky 40507, (859) 254-2900.
AMERIGROUP CORP: Va. Court Refuses to Dismiss Securities Suit
-------------------------------------------------------------
The U.S. District Court for the Eastern District of Virginia
denied AMERIGROUP Corp.'s motion to dismiss a consolidated
securities fraud class action filed against it and certain of
its officers by the Illinois State Board of Investment, The
Virginian-Pilot reports.
Though Judge Henry C. Morgan, Jr. criticized parts of a case in
his decision to deny the dismissal motion, he did open the way
for the plaintiff to question former officers of the Virginia
Beach-based managed-care company. In addition, he also ordered
the parties to try to resolve their dispute by means of
mediation as soon as possible.
The state's Board of Investment, which is the overseer of the
assets of public-employee pension funds, was one of five company
shareholders that contended in separate lawsuits filed in 2005
that AMERIGROUP defrauded them.
Those suits were prompted by the collapse of company's stock
price, after the disclosure of a third-quarter loss and
actuarial difficulties within the company.
The board, which gained lead plaintiff status when the suits
were consolidated in Jan. 10, 2006, called attention to
favorable earnings projections that the company provided to the
public during part of 2005.
It also alleged that certain company officers, including
Chairman and Chief Executive Officer Jeffrey L. McWaters, took
advantage of the favorable earnings forecasts by selling shares
before the company's disclosures of internal difficulties and
its loss for the July-through-September quarter.
In a 90-minute hearing on July 10, 2006, Jay B. Kasner, an
attorney representing the company, insisted that the investment
board's suit lacked the details required by a landmark federal
statute, the Private Securities Litigation Reform Act.
That act, according to Mr. Kasner, protects publicly traded
companies when their earnings guidance for investors later
proves to be wrong.
Mr. Kasner of Skadden, Arps, Slate, Meagher & Flom LLP, also
pointed out that when filing a securities fraud suit, Congress
has said you have to do more and document the allegations in
much greater detail.
Though Judge Morgan acknowledged that there were shortcomings in
parts of the suit, he declined to dismiss it. Referring to the
specificity of fraud and insider-trading allegations made by the
investment board.
With the court's authorization, ISBI's attorneys will begin
scheduling depositions in the next day or two, according to Mr.
Entwistle of Entwistle & Cappucci LLP.
Judge Morgan imposed an Oct. 1, 2006 deadline for completing the
depositions. He also set that date for the company to file a
motion for summary judgment, which could end the case if
granted.
The suit is "Illinois State Board of Investment v. AMERIGROUP
Corp., et al., Case No. 2:05-cv-00701-HCM-FBS," filed in the
U.S. District Court for the Eastern District of Virginia under
Judge Henry C. Morgan, Jr. with referral to Judge F. Bradford
Stillman.
Representing the plaintiffs are:
(1) Edward James Powers of Vandeventer Black, LLP, 500
World Trade Ctr., Norfolk, VA 23510, Phone: (757) 446-
8600;
(2) Jeffrey Arnold Breit of Breit Drescher & Imprevento,
PC, 1000 Dominion Tower, 999 Waterside Dr., Norfolk, VA
23510-3320, Phone: (757) 622-6000; and
(3) Michael Andrew Glasser of Glasser & Glasser, PLC, 580
E. Main St., Suite 600, Norfolk, VA 23510, Phone: (757)
625-6787.
Representing the defendants are:
(i) Stephen Edward Noona of Kaufman & Canoles, PC, 150 W.
Main St., P.O. Box 3037, Norfolk, VA 23510, Phone:
(757) 624-3000; and
(ii) Jay B. Kasner of Skadden, Arps, Slate, Meagher & Flom,
LLP & Affiliates, Four Times Square, New York, NY
10036, Phone: (212) 735-2628, Fax: (917) 777-2628, E-
mail: jkasner@skadden.com.
BAUSCH & LOMB: Chinese Consumers Consider U.S. Suit Over ReNu
-------------------------------------------------------------
Chinese lawyer Hao Junbo plans to file a lawsuit against Bausch
& Lomb on behalf of nearly 80 Chinese citizens who claim they
contracted fungal keratitis after using the company's ReNu with
MoistureLoc products, the Business Daily Update reports.
Mr. Hao considers filing the suit in New York where the company
is based or in a state where higher compensation is likely. He
believes the company made a mistake by not informing Chinese
consumers of the quality problem after it recalled products in
Singapore in February.
Sources with Bausch & Lomb China said they would not comment
over the cases until they had been processed, China Business
News previously reported.
The hearing for the numerous product liability class suits filed
against Bausch & Lomb Inc. will begin on July 27 in U.S.
District Court for the Northern District of Illinois (Class
Action Reporter, July 4, 2006).
Case Background
The company first introduced ReNu with MoistureLoc into the U.S.
and several foreign markets, including Hong Kong and Singapore,
in late 2004.
In November of 2005, the Hong Kong Department of Health asked
the company to investigate a rising trend in keratitis among
Hong Kong contact lens wearers.
In February of 2006, the Singapore Department of Health
identified ReNu as the common brand of lens solution of 21 of 22
Singapore patients with Fusarium keratitis.
As a result, the company withdrew ReNu with MoistureLoc from the
Hong Kong and Singapore markets, but took no action at that time
to withdraw the product from the U.S. market.
On March 8, The U.S. Centers for Disease Control received a
report from an ophthalmologist in New Jersey regarding three
patients with contact lens-associated Fusarium keratitis.
Initial contact by the CDC with several corneal disease
specialty centers in the U.S. revealed that other centers also
have seen recent increases in Fusarium keratitis.
As of April 9, a total of 109 patients with suspected Fusarium
keratitis were under investigation in multiple states. CDC
reports that of the 30 patients interviewed at that time, 28 had
worn contact lenses, and 26 could specifically recall using a
contact lens solution manufactured by the company.
On April 10, the same day as the public release of the CDC data,
the company announced that it was suspending shipments of ReNu
with MoistureLoc to stores in the U.S.
On May 15, the company announced that it was permanently
removing ReNu with MoistureLocfrom worldwide markets. In
announcing the decision, Bausch & Lomb Chief Executive Ronald L.
Zarella acknowledged that some aspect of the MoistureLoc formula
might be increasing the relative risk of Fusarium infection in
unusual circumstances.
According to subsequent statements by Mr. Zarella, the company
determined that certain comfort-enhancing polymers unique to the
ReNu with MoistureLo formula might actually have had the
inadvertent effect of preventing the product's fungal
disinfectant from killing the Fusarium fungus.
As of May 18, the CDC had received reports of 130 confirmed
cases of Fusarium keratitis since June 1, 2005, including 26
cases in Florida (Class Action Reporter, June 20, 2006).
More information on ReNu with MoistureLoc is available at:
http://www.renulawsuit.com
http://www.yourlawyer.com/topics/overview/renu_contact_solution
Bausch & Lomb is represented by Harvey L. Kaplan of Shook Hardy
& Bacon LLP, 2555 Grand Blvd., Kansas City, Missouri U.S.A.,
64108, Phone: 816-559-2214 Direct or 816-474-6550 Main, Fax:
816-421-5547.
For more information on the Chinese lawsuit, contact Junbo Hao
of Lehman Lee & Xu(Beijing China), 10-2 Liangmaqiao Diplomatic
Compound, No.22 Dongfang East Road Chaoyang District, Beijing,
100600 China, Phone: +86-10 8532-1919, Fax: +86-10 8532-1999, E-
mail: mail@lehmanlaw.com, Website: http://www.lehmanlaw.com.
BIJOU-MARKET: Faces $66M Labor Suit in Calif. Bankruptcy Court
--------------------------------------------------------------
The U.S. Bankruptcy Court for the Northern District of
California gave Bijou-Market, LLC permission to hire The Law
Offices of Edi Thomas, as its special litigation counsel.
Bijou-Market filed for bankruptcy to resolve the claims asserted
in Roe v. Bijou-Century, LLC, et al. prosecuted by Minami, Lew &
Tanaki law firm. The Minami lawsuit is a nascent dancer class
lawsuit. No class action certification has yet been sought.
The Minami lawsuit states that a former manager of the company
implemented a practice of forced tip-outs and that dancers were
permitted to work longer hours than the hours for which they
received wages.
The plaintiffs assert an aggregate hypothetical claim of more
than $66 million.
The company needs the help of Edi Thomas regarding employment
law issues. The Employment Development Department has indicated
that it intends to conduct an audit of the Debtor's books and
records to evaluate employee/independent contractor treatment of
the dancers. Additionally, the Debtor was one of the defendants
in a Federal Court class action addressing the manner in which
live adult theaters were operated and the treatment of dancers
in the course of those operations. The confidential settlement
of that class action involved non-monetary relief in the form of
alterations and modification to the defendants' business
practices. Edi Thomas represented the Debtor in that
settlement.
The firm's help would be needed in administering and monitoring
compliance with the settlement. The firm also represented the
Debtor in the Minami lawsuit.
The company tells the court that Edi Thomas, Esq., a principal
of the firm, will bill $225 per hour for this engagement. Mr.
Thomas assures the court that he doesn't hold any material
interest adverse to the company and that he is disinterested as
defined in Section 101(14) of the Bankruptcy Code.
Bijou-Market, LLC -- http://www.msclive.com/-- operates an
adult entertainment facility on Market Street in San Francisco.
The company filed for chapter 11 protection on Feb. 28, 2006
(Bankr. N.D. Calif. Case No. 06-30118). Michael St. James,
Esq., at St. James Law, P.C., represents the Debtor in its
restructuring efforts. No Official Committee of Unsecured
Creditors has been appointed in this case to date. When the
Debtor filed for protection from its creditors, it listed assets
totaling $620,458 and debts totaling $66,308,352.
CALIFORNIA: Sacramento County Settles Juvenile Strip-Search Case
----------------------------------------------------------------
Sacramento County agreed to pay $6.28 million to settle a class
action filed against it in the U.S. District Court for the
Eastern District of California over alleged illegal visual body-
cavity strip searches at juvenile hall, according to Sacramento
Bee.
The terms of the proposed settlement allocates $4 million to the
8,166 juveniles booked and strip-searched at juvenile hall
between Jan. 1, 1998, and Oct. 1, 2004, according to Mark E.
Merin, attorney for the juveniles.
The proposed agreement, submitted Monday to U.S. District Judge
Frank C. Damrell Jr., allows individual payments of between $500
and $9,000. The allocation is based on a formula depending on
the seriousness of the crime for which a juvenile was arrested.
Eight juveniles who were representative plaintiffs in the suit,
captioned, "Robinson, et al v. Sacramento County, et al.," would
share $280,000, under the agreement's terms.
Though disappointed with the deal, Assistant Chief Probation
Officer Suzanne Collins did say that it was appropriate. She
reiterates though that the department's previous policy
prohibited strip searches of juveniles charged with misdemeanors
not involving violence, drugs or weapons.
Mr. Merin filed the suit back in Aug. 10, 2004, alleging that
the Sacramento County Probation Department, which operates the
county's juvenile detention facilities, used strip-search
policies and practices at juvenile hall, violating state and
federal statutes and the juveniles' constitutional rights to be
free of illegal searches.
Once Judge Damrell has given preliminary approval to the
proposed agreement, claim forms with a postage-prepaid return
envelope will be mailed to the last known addresses of members
in the class action, the report said. Claimants will have six
months to submit a claim.
The suit is "Robinson, et al. v. Sacramento County, et al., Case
No. 2:04-cv-01617-FCD-PAN (JFM)," filed in the U.S. District
Court for the Eastern District of California under Judge Frank
C. Damrell, Jr. with referral to Judge Peter A. Nowinski.
Representing the plaintiffs is Mark E. Merin of Law Office of
Mark E. Merin, 2001 P Street, Suite 100, Sacramento, CA 95814,
Phone: (916) 443-6911, Fax: (916) 447-8336, E-mail:
mark@markmerin.com.
Representing the defendants is Terence John Cassidy of Porter
Scott Weiberg and Delehant, P.O. Box 255428, 350 University
Avenue, Suite 200, Sacramento, CA 95865, Phone: 916-929-1481, E-
mail: tcassidy@pswdlaw.com.
CHALK'S OCEAN: 2005 Plane Crash Suit May be Settled for $51M
------------------------------------------------------------
Relatives of seaplane crash victims who filed a class action
against Chalk's Ocean Airways in Miami-Dade Circuit Court could
share up to $51 million in a tentative settlement, Yahoo News
reports.
The settlement came after the National Transportation Safety
Board released its report of the investigation about the
December 2005 crash.
The report stated that some of the company's pilots worry over
the "blatant neglect" in many maintenance areas, including
engine problems, corrosion and cracks and issues with the
airplanes' weight resulting to the resignation of three captains
in 2004.
Twenty people died when the Bimini-bound Flight 101 plunged into
the ocean shortly after taking off from Watson Island in Miami,
Florida.
The suit was filed in January against the company, asking a
judge to make sure all the crash victims' families get their
share of the company's insurance money (Class Action Reporter,
Jan. 5, 2006).
The Nolan Law Group, representing the families of Genevieve
Ellis, Salome Rolle, and Niesha Fox, sought to obtain not only
the company's insurance policy, but also whatever other assets
the airline may own (Class Action Reporter, Jan. 12, 2006).
The complaint alleges that the Grumman G-73T seaplane that was
built in 1947 crashed as a result of failure on the part of the
company to have the plane properly maintained. It also said
that old aircrafts should be subjected to rigorous inspections
and maintenance to monitor the effects of saltwater erosion.
The plane that crashed was 58 years old (Class Action Reporter,
Jan. 12, 2006).
The tentative settlement though still needs to be finalized for
the families to receive the amount.
Some families are represented by The Nolan Law Group, 20 North
Clark, 30th Floor, Chicago, IL 60602, Phone: (312) 630-4000,
Fax: (312) 630-4011.
CHATTEM INC: Calif. Court Denies Class Status to Dexatrim Suit
--------------------------------------------------------------
The Superior Court of the State of California for the County of
Los Angeles denied class-action status for a lawsuit against
Chattem, Inc. in relation to the manufacturing, labeling,
advertising, promotion and sale of certain Dexatrim Natural
products.
The suit, filed on Jan. 13, 2005, seeks injunctive relief,
compensatory damages and attorneys fees against the company
under the California Business and Professions Code, arising out
of alleged deceptive, untrue or misleading advertising and
breach of express warranty with regards to Dexatrim Natural
products.
It seeks certification of a class consisting of all persons who
purchased Dexatrim Natural in California during the four-year
period prior to the filing of the lawsuit up to the date of any
judgment obtained.
The plaintiff stipulated that the amount in controversy with
respect to each individual claim and each member of the proposed
class in the action does not exceed $75.
The company filed an answer on Mar. 1, 2006, and is vigorously
defending the lawsuit. On May 23, 2006, the court denied the
plaintiff's motion to certify a class action, according to the
company's July 10, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended May 31,
2006.
CHATTEM INC: Files Responses to Calif. Bullfrog Suncare Suit
------------------------------------------------------------
Chattem, Inc. answered allegations in a coordinated class action
filed in the Superior Court of the State of California for the
County of Los Angeles in relation to the labeling, advertising,
promotion and sale of its Bullfrog suncare products, according
to the company's July 10, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended May 31,
2006.
Initially, a putative class action was filed against the company
on Feb. 11, 2004, to which the company filed an answer on Jun.
28, 2004.
An amended complaint was filed Mar. 29, 2006, pursuant to a
court order formally consolidating the lawsuit with eight
existing lawsuits involving other manufacturers of sunscreen
products into a coordinated proceeding in California state
court.
The amended lawsuit seeks class certification of all persons who
purchased the company's Bullfrog sun care products in California
during a four-year period prior to Feb. 11, 2004.
It seeks restitution and/or disgorgement of profits, actual
damages, injunctive relief, punitive damages and attorneys fees
and costs arising out of alleged deceptive, untrue or misleading
advertising and breach of warranty, fraudulent or negligent
misrepresentations, in connection with the manufacturing,
labeling, advertising, promotion and sale of Bullfrog products
in California. An answer to this amended complaint was due mid
April 2006.
According to an April 3 issue of the Class Action Reporter,
aside from the company, other defendants in the coordinated suit
are:
-- Schering-Plough (Coppertone);
-- Sun Pharmaceuticals and Playtex Products (Banana Boat);
-- Tanning Research Laboratories (Hawaiian Tropic); and
-- Neutrogena Corp and Johnson & Johnson (Neutrogena).
The coordinated lawsuit alleges false claims about the
effectiveness of their products in blocking sunrays and
preventing skin diseases (Class Action Reporter, Apr. 3, 2006).
Sun Protection Factor designations, the suits says, apply only
to protection from Ultraviolet light, type B (UVB) rays, but
manufacturers use it to imply a similar level of ultraviolet
radiation (UVA) protection, which it does not in fact provide.
The U.S. Food and Drug Administration accepts SPF standards for
UVB but there is no standard to measure UVA protection, law
firms bringing the complaint said. Both UVA and UVB pose health
threats.
The suits also note that the "waterproof" designation is
deceptive because all sunscreen products lose efficacy when
immersed in water and there is no standard for measuring their
efficacy against UVA rays (Class Action Reporter, Apr. 3, 2006).
The company filed an answer to the coordinated cases on April
2006. The cases are now before Judge Carl J. West in Superior
Court for the State of California, County of Los Angeles.
The amended complaint is available free of charge at:
http://researcharchives.com/t/s?d9a
For more details, contact:
(1) Abraham Fruchter & Twersky, LLP, One Penn Plaza Suite
2805 New York, NY 10119, Phone: (212) 279-5050 and
(800) 440-8986, Fax: (212) 279-3655, E-mail:
info@aftlaw.com; and
(2) Lerach Coughlin Stoia Geller Rudman & Robbins, LLP,
Phone: 1-800-449-4900, Web site:
http://www.lerachlaw.com.
COMPUTER LEARNING: Court Finds Students Proof of Claim Too Late
---------------------------------------------------------------
The Hon. Robert G. Mayer says that a motion for a determination
of the applicability, to the claims filing process in Computer
Learning Centers, Inc.'s bankruptcy proceeding, of a Rule 7023
of the Federal Rules of Bankruptcy Procedure governing class
action proceedings in bankruptcy was not timely filed and should
be denied on that basis.
Joshua Ruiz, Eric Evangelista, Edwin Potts, Jr., and Frank
Seklecki, filed a proof of claim on behalf of themselves and a
prospective class consisting of all persons who, from May 5,
1992 through May 4, 1998, were enrolled in a course of study,
education or training provided by Computer Learning Centers,
Inc., at its New Jersey locations.
The proposed class includes those who suffered injury from
Computer Learning's alleged false claims, misrepresentations or
omissions regarding the nature and quality of instruction
provided by it; the quality and sufficiency of its equipment;
the qualifications, capability and quality of its instructors;
and its job placement services.
Plaintiffs base their claims on fraud, breach of contract and
violation of New Jersey's consumer fraud act. The chapter 7
trustee objected to the proof of claim as a class proof of
claim.
Judge Mayer observes that the former students waited more than
four years after commencement of the Chapter 7 case, and years
following expiration of the bar date set for filing proofs of
claim, after records bearing on the propriety of individual
class members claims' had been destroyed with the court's
permission, at a time when creditors were about to receive a
distribution on their claims, to file their motion. That delay,
Judge Mayer says in a Memorandum Opinion published at 2006 WL
1653361, is too long.
H. Jason Gold, Esq., at Gold Morrison & Laughlin PC in McLean,
Virginia, serves as the Chapter 7 Bankruptcy Trustee for the
state of Computer Learning Centers, Inc. CLC filed for
bankruptcy on Jan. 26, 2001 (Bankr. E.D. Va. Case No. 01-80096).
E.I. DUPONT: Lawyers Meet in Iowa Court to Discuss Teflon Case
--------------------------------------------------------------
Sixteen lawyers who represent more than 72 clients in a $5
billion suit questioning the safety of Teflon cookware met on
July 12 in the U.S. District Court for the Southern District of
Iowa to iron details over information sharing, the AP
WorldStream reports.
A U.S. Judicial Panel on Multidistrict Litigation has voted to
consolidate several lawsuits over the non-stick material for
pretrial proceedings and transferred it to federal court in Des
Moines, Iowa (Class Action Reporter, April 11, 2006). U.S.
Magistrate Celeste Bremer is considering pretrial motions.
DuPont faces approximately 15 intra-state class actions in
federal district courts that were filed on behalf of consumers
that have purchased cookware with Teflon non-stick coating
(Class Action Reporter, March 8, 2006).
The suit includes people from Florida, Massachusetts, California
and 10 other states, including Iowa. The actions allege that
Teflon contained or released harmful and dangerous substances,
including a chemical that is alleged to "likely" cause cancer in
humans.
Lawyers are asking reimbursement on behalf of customers who
bought Teflon-coated products, and money for periodic testing
for possible health problems.
In 2005, an independent review board revealed that a
controversial chemical used by the company to make the nonstick
substance Teflon poses a greater cancer risk than indicated in
an earlier draft assessment by the U.S. Environmental Protection
Agency.
The allegation has been continually denied by company, which
began selling nonstick cookware coatings in the 1960s.
Based in Wilmington, Delaware, Dupont -- http://www.dupont.com/
-- manufactures resins and additives used in the trenchless pipe
rehabilitation industry.
The suit is "In re Teflon Products Liability Litigation, MDL-
1733, Master Docket No. 4:06-md-1733," pending in the U.S.
District Court for the Southern District of Iowa under Judge
Ronald E. Longstaff with referral to Judge Celeste F. Bremer.
ENTERGY NEW ORLEANS: Seeks Summary Judgment on Plaintiffs Claims
----------------------------------------------------------------
Entergy New Orleans, Inc., Entergy Corp., Entergy Services,
Inc., and System Fuels, Inc., ask the U.S. Bankruptcy Court for
the Eastern District of Louisiana to enter a summary judgment
denying class certification to the Gordon and Lowenburg
Plaintiffs and their proofs of claim, to the extent the claims
are based upon alleged claims of purported class members.
The Gordon Plaintiffs and Lowenburg Plaintiffs have filed Claim
Nos. 328 and 329 for $240,000,000 and $82,796,573 in connection
with their allegations against ENOI in the Civil District Court
for the Parish of New Orleans, Louisiana, and the Council for
the City of New Orleans.
The Gordon Plaintiffs -- The Reverend C. S. Gordon, Jr., on
behalf of New Zion Baptist Church; J. Michael Malec; Darryl
Malek-Wiley; Willie Webb, Jr.; and Maison St. Charles, L.L.C.,
d/b/a Quality Inn Maison St. Charles -- filed two actions, one
with the Council of the City of New Orleans, and another in the
Civil District Court for the Parish of Orleans, against Entergy
New Orleans, Inc., and other Entergy entities.
The Lowenburg Plaintiffs -- Thomas P. Lowenburg, Martin Adamo,
Vern K. Baxter, Philip D. Carter, Bernard Gordon, Leonard
Levine, Ivory S. Madison, Donetta Dunn Miller, and Maison St.
Charles, L.L.C. d/b/a Quality Inn Maison St. Charles -- also
filed a class action against ENOI and the Council for the City
of New Orleans, seeking various remedies for ENOI's overcharges
in base rates billed to ratepayers since 1975 in violation of
the allowable 2% rate of return on rate base established in 1922
by the Commission Council of the city of New Orleans.
The Gordon and Lowenburg Plaintiffs had jointly asked the court
to:
(a) certify the classes of ENOI's customers who have claims
for declaratory and injunctive relief, for restitution
of ascertainable losses of money, including refund of
overcharges, and damages as the result of payments of
overcharges for electricity sold by, or electric service
provided by, provided by ENOI; and
(b) designate representatives of the classes, appoint
counsel to represent the classes, and authorize
appropriate notice to be provided to the class members.
Pursuant to Rule 23(a) of the Federal Rule of Civil Procedure,
putative class representatives are required to show that the
class is so numerous that joinder of all members is
impracticable, that there are questions of law or fact common to
the class, that the claims or defenses of the representative
parties are typical of the claims or defenses of the class and
that the representative parties will fairly protect the
interests of the class.
Besides claiming that they satisfy the Rule 23(a) requirements
for certification, the plaintiffs contend that their claims
should be maintained as a class action under Rule 23(b)(3).
Under Rule 23(b)(3), the plaintiffs must show that the questions
of law common to the members of the class predominate over any
questions affecting only individual members and that a class
action is superior to other available methods for the fair
adjudication of any controversy.
The plaintiffs assert that they satisfy Rule 23(b)(3) because
thousands of claims based upon overcharging of the ratepayers
are unmanageable and the claims administration process for the
class members' claims can be handled in an efficient manner that
is far superior to any alternatives.
The Entergy Entities assert, however, that the plaintiffs'
putative class claims can be resolved by an administrative body
with expertise over the claims or can be resolved through the
bankruptcy claims process.
The Entergy Entities argue that a class action is not superior
to other available methods for adjudicating the dispute as the
claims at issue can be resolved by a regulatory or
administrative body.
The Gordon Plaintiffs' claims concern "the sale of electric
energy at wholesale in interstate commerce." These claims are
subject to the U.S. Federal Energy Regulatory Commission's
jurisdiction under the Federal Power Act, 16 U.S.C. Section 791
et seq., asserts Nan Roberts Eitel, Esq., at Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, LLP, in Washington, D.C.
In addition, as the Louisiana Supreme Court has noted in State
ex rel. Guste V. Council of City of New Orleans, 309 So. 2d 290,
294 (La. 1975), the Council is "vested with the sole legal
authority to regulate the rates charged by companies furnishing
utility services in the City of New Orleans." The Council's
exclusive jurisdiction over ENOI's retail rates and changes
encompasses regulation of the precise conduct that the Gordon
Plaintiffs complain about, Ms. Eitel contends.
Ms. Eitel also points out that the Gordon Plaintiffs do not have
valid anti-trust or other claims beyond the FERC and the
Council's exclusive jurisdiction. She notes that the Gordon
Plaintiffs have not explained how they suffered any damages
other than alleged overcharges, and the nature or extend of any
other "damages".
Because exclusive original jurisdiction over the Plaintiffs'
claims lie with the FERC and the City Council, the
administrative proceedings before the FERC and the Council are
superior to a class action to resolve the Gordon Plaintiffs'
claims.
The Entergy Entities also assert that the exclusive jurisdiction
over the Lowenburg Plaintiffs' claims lies with the City
Council.
Thus, regulatory proceedings before the City Council and
subsequent appeals that may be filed are superior to a class
action to resolve the Lowenburg Plaintiffs' claims, Ms. Eitel
argues. She adds that a regulatory proceeding before the
Council is superior to a class action because it is the only
party authorized to pursue any claims of alleged overcharges on
behalf of ENOI customers.
Additionally, the Debtor's pending bankruptcy claims process is
superior to a class action in resolving the Plaintiffs' claims,
Ms. Eitel argues. She says that, because bankruptcy procedural
rules are designed to handle large numbers of claims, the
bankruptcy court has complete control over the bankruptcy estate
and the mandatory joinder of all claims against a debtor.
* * *
The Court denies Gordon and Lowenburg Plaintiffs' request to
strike the Summary Judgment Motions as untimely.
The Plaintiffs argued that the Court's May 25, 2006 scheduling
order adopts the Court's "short-form pre-trial order" for
matters relating to the Plaintiffs' Class Certification Motion,
which is set for evidentiary hearing on July 31 and Aug. 1,
2006.
The short-form pre-trial order requires that "all dispositive
motions [will] be filed and served in sufficient time to permit
hearing, and counsel will set the motion so as to be heard no
later than 30 days before the trial." The Entergy Entities
filed their Summary Judgment Motions on June 22, 2006, and
sought a hearing on the Motions on July 12.
The Plaintiffs also argued that their counsel will be involved
in the final preparation for the trial on their Class
Certification Motion, not only in preparing the witnesses, but
also preparing the exhibits, trial memoranda and bench books.
The Entergy Parties responded that having a hearing on the
Summary Judgment Motions on July 12 is the most economical and
efficient way to proceed, and will not prejudice the Plaintiffs.
Ms. Eitel argued that the Motions, if granted, would obviate the
need for the trial on July 30 and Aug. 1.
Motions for Summary Judgment Hearing
Judge Brown will convene a hearing on the Motions for Summary
Judgment on July 13, 2006, at 2 p.m.
The Plaintiffs were granted an extension to file their
oppositions to the Motions for Summary Judgment until noon on
July 12
About Entergy New Orleans
Headquartered in Baton Rouge, Louisiana, Entergy New Orleans
Inc. -- http://www.entergy-neworleans.com/-- is a wholly owned
subsidiary of Entergy Corporation. Entergy New Orleans provides
electric and natural gas service to approximately 190,000
electric and 147,000 gas customers within the city of New
Orleans. Entergy New Orleans is the smallest of Entergy
Corporation's five utility companies and represents about 7% of
the consolidated revenues and 3% of its consolidated earnings in
2004. Neither Entergy Corporation nor any of Entergy's other
utility and non-utility subsidiaries were included in Entergy
New Orleans' bankruptcy filing.
Entergy New Orleans filed for chapter 11 protection on Sept. 23,
2005 (Bankr. E.D. La. Case No. 05-17697). Elizabeth J. Futrell,
Esq., and R. Partick Vance, Esq., at Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P., represent the Debtor in
its restructuring efforts. When the Debtor filed for protection
from its creditors, it listed total assets of $703,197,000 and
total debts of $610,421,000. (Entergy New Orleans Bankruptcy
News, Issue No. 19; Bankruptcy Creditors' Service, Inc.,
215/945-7000).
HALLIBURTON CO: Court Yet to Rule on Motion to Junk Stock Suit
--------------------------------------------------------------
The court presiding over the securities suit against Halliburton
Co. denied plaintiffs' motion seeking certification of the
court's March 14, 2006 Order for Interlocutory Appeal.
Plaintiffs may submit written discovery requests to Halliburton.
However, no party is to conduct a deposition in this case until
the court rules on the Motions to Dismiss filed by individual
defendants on May 9, 2006.
Defendants in the suit are Halliburton Co., David J. Lesar,
Douglas L. Foshee, Gary V. Morris, and Robert Charles Muchmore,
Jr.
In June 2002, a class action was filed against the company in
federal court on behalf of purchasers of its common stock during
approximately May 1998 until approximately May 2002. The suit
alleges violations of the federal securities laws in connection
with the accounting change and disclosures involved in the U.S.
Securities and Exchange Commission investigation.
In addition, the plaintiffs allege that the company overstated
its revenue from unapproved claims by recognizing amounts not
reasonably estimable or probable of collection. In the weeks
that followed, approximately 20 similar class actions were filed
against the company.
Several of those lawsuits also named as defendants Arthur
Andersen LLP, the company's independent accountants for the
period covered by the lawsuits, and several of the company's
present or former officers and directors. The class actions
were later consolidated, and the amended consolidated class
action complaint "Richard Moore, et al. v. Halliburton company,
et al.," was filed and served upon the company in April 2003
(the Moore class action).
In early May 2003, the company announced that it entered into a
written memorandum of understanding setting forth the terms upon
which the Moore class action would be settled.
In June 2003, the lead plaintiffs in the Moore class action
filed a motion for leave to file a second amended consolidated
complaint, which was granted by the court.
In addition to restating the original accounting and disclosure
claims, the second amended consolidated complaint includes
claims arising out of the 1998 acquisition of Dresser
Industries, Inc. by Halliburton, including that the company
failed to timely disclose the resulting asbestos liability
exposure (the Dresser claims).
The Dresser claims were included in the settlement discussions
leading up to the signing of the memorandum of understanding and
were among the claims the parties intended to have resolved by
the terms of the proposed settlement of the consolidated Moore
class action and the derivative action. The memorandum of
understanding called for Halliburton to pay $6 million, which
would be funded by insurance proceeds.
In June 2004, the court entered an order preliminarily approving
the settlement. Following the transfer of the case to another
district judge and a final hearing on the fairness of the
settlement, the court entered an order in September 2004 holding
that evidence of the settlement's fairness was inadequate,
denying the motion for final approval of the settlement in the
Moore class action, and ordering the parties, among others, to
mediate.
After the court's denial of the motion to approve the
settlement, the company withdrew from the settlement, as it
believes that it is entitled to do by its terms. The mediation
was held in January 2005, but was declared by the mediator to be
at an impasse with no settlement having been reached.
In April 2005, the court appointed new co-lead counsel and a new
lead plaintiff, directed that they file a third consolidated
amended complaint, and that the company file motion to dismiss.
The court held oral arguments on that motion in August 2005, at
which time the court took the motion under advisement.
On Mar. 14, 2006, the court entered an order in which it granted
the motion to dismiss with respect to claims arising prior to
June 1999 and granted the motion with respect to certain other
claims while permitting the plaintiffs to re-plead those claims
to correct deficiencies in their earlier complaint.
With respect to those issues regarding which the court denied
the motion, the company requested that the court certify its
order for interlocutory appeal.
On Apr. 4, 2006, the plaintiffs filed their fourth amended
consolidated complaint.
In May, The Archdiocese of Milwaukee Supporting Fund, Inc., one
of the plaintiffs, requested that Neil Rothstein, on leave of
absence from Scott + Scott, LLC, the law firm, serving as lead
counsel in the securities suit, be named Special Counsel to the
lead plaintiff. Neil Rothstein objected to the settlement and
has since defeated defendants' Motion to Dismiss. Document
discovery has commenced, according to the Web site of Truth in
Corporate Justice LLC, of the Worldwide Tree Group.
The suit is "The Archdiocese of Milwaukee Supporting Fund, Inc.,
et al. v. Halliburton Company, et al., Case No. 3:02-cv-01152,"
filed in the U.S. District Court for the Northern District of
Texas under Judge Barbara M. G. Lynn. Representing the
plaintiffs are:
(1) Richard S. Schiffrin of Schiffrin & Barroway - Radnor,
280 King of Prussia Rd, Radnor, PA 19087, Phone: 610-
667-7706, Fax: 610/667-7056;
(2) Marc R. Stanley, Stanley Mandel & Iola, 3100 Monticello
Ave, Suite 750, Dallas, TX 75205, Phone: 214/443-4301,
Fax: 214/443-0358, E-mail: mstanley@smi-law.com; and
(3) Thomas Burt, Wolf Haldenstein Adler Freeman & Herz, 270
Madison Ave, Ninth Floor, New York, NY 10016, Phone:
212/545-4600.
Representing the company is Thomas E Bilek of Hoeffner & Bilek,
1000 Louisiana St, Suite 1302, Houston, TX 77002, Phone:
713/227-7720, Fax: 713/227-9404, E-mail: tbilek@hb-legal.com.
For more details, contact Neil Rothstein of Worldwide Tree Group
-- http://www.halliburtonsecuritieslitigation.com,
http://www.worldwidetree.org-- Phone: +1-619-251-0887, E-mail:
nrothstein@worldwidetree.org.
HARNISCHFEGER INDUSTRIES: Mass. Suit Over Pension Fund Settled
--------------------------------------------------------------
Former Harnischfeger Industries workers reached a $10.8 million
settlement in a class action claiming that the company's pension
fund did not warn them about the risk of investing heavily in
their own company, even as it was headed toward bankruptcy, The
Journal Sentinel reports.
Approved by the U.S. District Court for the District of
Massachusetts, the settlement will result in the distribution of
the money among about 4,700 current and past employees,
including retirees.
Court documents revealed that the amount each person receives
will depend on how much he or she lost in the pension plan, but
it will be less than the full amount lost.
The company filed for bankruptcy in 1999. It later emerged as
Joy Global, a Milwaukee mining equipment company, which is named
as one of the defendants in the lawsuit. The company used to
manufacture mining equipment and machines used in the paper
industry.
The suit was filed in Nov. 2001 on behalf of workers, including
steelworker John Klin and Kenneth Brooks of Milwaukee. The suit
claims that the defendants allowed the Harnischfeger 's 401(k)
assets to be invested in Harnischfeger stock when it was an
unsuitable retirement investment. It also claims that the
defendants violated federal law by failing to disclose the true
financial status of the company.
Fidelity Management Trust Co. is a co-defendant in the case.
Under the settlement, attorneys will get 30% of the money plus
compensation for expenses. Mr. Brooks have objected to the
settlement, saying the attorneys should not be the main
beneficiaries in class suits like this.
The settlement was paid for by insurance carriers for Joy Global
and the former Harnischfeger Industries, according to the
report.
The suit is "Kling v. Fidelity Management, et al., Case No.
1:01-cv-11939-MEL," filed in the U.S. District Court for the
District of Massachusetts under Judge Morris E. Lasker.
Representing the plaintiffs are:
(1) Ellen M. Doyle and Joel R. Hurt of Malakoff, Doyle &
Finberg, P.C., 437 Grant St., Suite 400, The Frick
Building, Pittsburgh, PA 15219, Phone: 412-281-8400,
Fax: 412-281-3262, E-mail: edoyle@mdfpc.com and
jhurt@mdfpc.com;
(2) Robert D. Friedman and Harry S. Miller of Perkins,
Smith & Cohen, LLP, One Beacon Street, 30th Floor,
Boston, MA 02108, Phone: 617-854-4000, Fax: 617-854-
4040, E-mail: hmiller@pscboston.com;
(3) Matthew J. Tuttle of Burns & Levinson, LLP, 30th Floor
One Beacon Street, Boston, MA 02108, Phone: 617-854-
4000, Fax: 617-854-4040, E-mail: mtuttle@burnslev.com;
and
(4) Gerald S. Walsh and Peter J. Walsh of Walsh & Keating,
S.C., 1505 Wauwatosa Ave., Wauwatosa, WI 53213, Phone:
414-257-9929, Fax: 414-257-9959, E-mail:
PJWalsh@ameritech.net.
HOME FRAGRANCE: Recalls Cement Candles Posing Fire Hazard
---------------------------------------------------------
Home Fragrance Holdings Inc., Houston, Texas, in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 413,000 units of Cement Candles.
The company said the candles can unexpectedly flare, posing a
fire hazard to consumers. It has received nine reports from
Pier 1 Imports of incidents involving flaring of the candles.
No injuries are reported.
The recalled candles are cylindrical pillars measuring 3"(d) x
4" (h), 3"(d) x 6"(h), and 4"(d) x 6"(h) with a sand layer base.
The recalled models are:
-- Cement Aspen Flower (White), SKUs 2115564, 2115577,
2115592;
-- Cement Downpour (Grey), SKUs 2118150, 2118176, 2118189;
-- Cement Biscotti (Khaki), SKUs 2115523, 2115536, 2115549;
and
-- Cement Citrus Cilantro (Green), SKUs 2115499, 2115508,
2115510.
These Cement Candles were manufactured in Guatemala and are
being sold by Pier 1 Imports through its retail stores
nationwide, its We bsite: http://www.pier1.comand its Summer
2006 catalog from February 2006 through May 2006 for between $10
and $20.
Picture of the recalled Cement Candle:
http://www.cpsc.gov/cpscpub/prerel/prhtml06/06204.jpg
Consumers are advised to stop using the recalled candles
immediately and return them to the nearest Pier 1 Imports retail
store for a full refund or merchandise credit.
For more information, contact Pier 1 Imports at (800) 245-4595
between 8 a.m. and 11 p.m. CT Monday through Saturday and 9 a.m.
and 9 p.m. CT Sunday, visit the firm's Website:
http://www.pier1.com
INDIANA: Correction Dept. Sued Over New Policy on Adult Magazine
----------------------------------------------------------------
Two inmates are challenging a new prison policy of the Indiana
Department of Correction that bars magazines and other printed
materials depicting nudity or sexual conduct.
The suit is filed in U.S. District Court in Indianapolis by the
American Civil Liberties Union of Indiana on behalf of more than
20,000 state prisoners.
The suit states the policy, which took effect July 1, is so
broad it could be applied to prohibit sexually explicit letters
and general circulation publications, including daily
newspapers. It claims the new rule violates the plaintiffs'
civil rights to get access to adult magazines such as Playboy
and Hustler and the motorcycle magazine Easyriders.
The plaintiffs are Ernest Tope, an inmate at the Pendleton
Correctional Facility near Anderson, and Wade Meisbeger, who is
being held at the Miami Correctional Facility near Peru.
The complaint seeks a court order barring the new policy and
attorneys' fees.
The suit is "Meisberger et al. v. Donahue, Case No. 1:06-cv-
01047-LJM-WTL," filed in the U.S. District Court for the
Southern District of Indiana under Judge Larry J. McKinney with
referral to Judge William T. Lawrence.
Representing the plaintiffs is Kenneth J. Falk of ACLU of
Indiana, 1031 East Washington Street, Indianapolis, IN 46202-
3952, Phone: (317) 635-4059 x229, Fax: (317) 635-4105, E-mail:
kfalk@aclu-in.org.
INDIAN TRUST: Appeals Court Removes Judge Lamberth from "Cobell"
----------------------------------------------------------------
The U.S. Court of Appeals for the District of Columbia Circuit
removed Judge Royce Lamberth from a 10-year-old class action
"Cobell v. Norton," in which thousands of American Indians claim
that the government mismanaged billions of dollars in federal
trust funds.
In siding with the government and finding that the judge lost
his objectivity, the three-judge panel from the D.C. Circuit
concluded that this was one of those "rare cases in which
reassignment is necessary."
In so ruling, the panel ordered that a new judge be reassigned
to the case. That task now falls on the hands of Judge Thomas
Hogan, chief judge of the U.S. District Court for the District
of Columbia.
The panel also stated, "Our ruling [] presents an opportunity
for a fresh start... We expect both parties to work with the new
judge to resolve this case expeditiously and fairly."
Filed in 1996 by Blackfeet Indian Elouise Cobell, the case
became the longest and largest class action brought against the
government, involving royalties for farming, grazing, mining,
logging and other economic activities on tribal lands (Class
Action Reporter, Dec. 21, 2005).
The suit dates back to the 1880s, when the government, trying to
break up reservations, "allotted" some Indian lands, giving 40
to 160 acres to some individual Native Americans. Back then,
the government leased the lands for oil, gas, timber, grazing
and coal, and collected the fees to put into trust funds for
Indians and their survivors.
As of the moment the case involves 500,000 Native Americans who
are asking the Interior Department to account for the billions
of dollars in their ancestors' land and natural resource assets
the federal government has held in trust since 1887. The issue
of how to determine what is owed the Indians has gone back and
forth from Judge Lamberth to the appeals court repeatedly during
the last 10 years.
A decision last July by Judge Lamberth wherein he lambasted the
Interior Department prompted the government to petition for his
removal from the case. They argued that the judge was too
biased to continue.
In that ruling, Judge Lamberth described the Interior Department
as "a dinosaur -- the morally and culturally oblivious hand-me-
down of a disgracefully racist and imperialist government that
should have been buried a century ago."
Circuit Judge David Tatel, who wrote on behalf of the panel,
pointed out that Judge Lamberth was understandably frustrated,
but the July decision -- combined with eight rulings the court
said were evidence of bias -- went too far.
Besides Judge Tatel, who was appointed by President Bill
Clinton, the panel was composed of Circuit Judge Janice Rogers
Brown, appointed by President George W. Bush, and Senior Circuit
Judge Laurence H. Silberman, appointed by President Ronald
Reagan.
Judge Lamberth, a Ronald Reagan appointee, repeatedly sided with
the Indians in their class action. His previous opinions
condemned the government and found interior secretaries Gale
Norton and Bruce Babbitt in contempt of court for their handling
of the case.
The Appeals Court opinion is available free of charge at:
http://researcharchives.com/t/s?d98
The suit is "Elouise Pepion Cobell, et al., v. Gale Norton,
Secretary of the Interior, et al., Case No. 96-1285 (RCL),"
filed in the U.S. District Court for the District of Columbia,
under Judge Royce C. Lamberth.
Representing the plaintiffs are:
(1) Mark Kester Brown, 607 14th Street, NW Washington, DC
20005-2000, Phone: (775) 542-4938, Fax: 202-318-2372,
E-mail: mkesterbrown@attglobal.net;
(2) Dennis M. Gingold, 607 14th Street, NW 9th Floor,
Washington, DC 20005, Phone: (202) 824-1448, Fax: 202-
318-2372, E-mail: dennismgingold@aol.com;
(3) Richard A. Guest and Keith M. Harper, Native American
Rights Fund, 1712 N Street, NW Washington, DC 20036-
2976, Phone: (202) 785-4166, Fax: 202-822-0068, E-mail:
richardg@narf.org or harper@narf.org; and
(4) Elliott H. Levitas, Kilpatrick Stockton, LLP, 607 14th
Street, NW Suite 900, Washington, DC 20005 Phone: (202)
508-5800, Fax: 202-508-5858, E-mail:
elevitas@kilpatrickstockton.com.
Representing the defendants are Robert E. Kirschman, Jr. and
Sandra Peavler Spooner of the U.S. Department of Justice, 1100 L
Street, NW Suite 10008, Washington, DC 20005, Phone: (202) 616-
0328, E-mail: robert.kirschman@usdoj.gov or
sandra.spooner@usdoj.gov.
For more details, contact The Committee on Indian Affairs,
Phone: 202-224-2251, Web site: http://indian.senate.gov;and
House Resources Committee, Phone: 202-225-2761, Web site:
http://resourcescommittee.house.gov.
MEDTRONIC INC: Seeks Dismissal of Lawsuit Over Defibrillator
------------------------------------------------------------
Medtronic Inc. argued in court on July 10 to have lawsuits over
its recalled implantable cardiac defibrillator dismissed,
according to Associated Press.
The company said the U.S. Food and Drug Administration
regulations for medical devices pre-empt state laws on which the
lawsuits are based.
Medtronic faces about 200 lawsuits seeking class-action status
after it warned doctors about some faulty batteries installed in
a line of its implantable heart defibrillators.
In February 2005, Medtronic warned physicians about a potential
battery shorting mechanism in certain of its implantable
cardioverter-defibrillator (ICDs) and cardiac resynchronization
therapy defibrillators (CRT-Ds) models. ICDs shock the heart
back into a regular rhythm if the patient suffers a life
threatening arrhythmia that could lead to cardiac arrest. CRT-
Ds provide electrical impulses to improve heart function.
Medtronic heart devices were surgically implanted in persons
that were either prone to life-threatening heart rhythms,
congestive heart failure or a combination of both. According to
the FDA, Medtronic heart devices with batteries manufactured
between April 2001 and December 2003 may exhibit this shorting
action.
The particular ICDs and CRT-Ds were manufactured between April
2001 and December 2003 and include:
* Model 7230 Marquis VR
* Model 7274 Marquis DR
* Model 7232 Maximo VR
* Model 7278 Maximo DR
* Model 7277 InSync Marquis
* Model 7289 InSync II Marguis
* Model 7279 InSync III Marquis
* Model 7285 InSync IIIProtect
The point of contention in the July 10 hearing is whether
Medtronic adequately informed medical professionals and the FDA
when it learned of a potential shorting problem with one of its
implantable defibrillators in 2003, according to the report.
Medtronic told the court that the FDA has special authority over
lifesaving or life-sustaining medical devices, while attorneys
for the plaintiffs argued that Medtronic played down the problem
in an October 2003 filing with the FDA that sought approval of a
new defibrillator model.
The lawsuits have been consolidated as "In re: Medtronic, Inc.,
Implantable Defilbrillators Products Liability Litigation, Case
No. 0:05-md-01726-JMR-AJB" in U.S. District Court in Minneapolis
before Judge James Rosenbaum with referral to Judge Arthur J.
Boylan
Defendants lead counsel is Stephen J. Immelt of Hogan & Hartson
LLP, 111 S Calvert St., Baltimore, MD 21202, Phone: 410-659-
2757, Fax: 410-539-6981, E-mail: sjimmelt@hhlaw.com.
Plaintiffs lead counsels are:
(1) Charles S. Zimmerman of Zimmerman Reed, PLLP, 651
Nicollet Mall Ste 501, Minneapolis, MN 55402-4123,
Phone: 612-341-0400, Fax: 612-341-0844, E-mail:
csz@zimmreed.com; and
(2) Daniel E. Gustafson of Gustafson Gluek PLLC, 608 2nd
Ave S Ste 650 Minneapolis, MN 55402, Phone: 612-333-
8844, Fax: 612-339-6622, E-mail:
dgustafson@gustafsongluek.com.
MRL INC: Launches Nationwide Recall of Monitor/Defibrillators
-------------------------------------------------------------
MRL, Inc., a Welch Allyn company, is initiating a voluntary
worldwide recall of 1,184 PIC50 External Monitor/Defibrillators
manufactured in Buffalo Grove, Illinois between February 2002
and October of 2004.
The company said these PIC50s may display a DEFIB COMM ERROR,
which may prevent or unacceptably delay the delivery of therapy,
may fail to resuscitate the patient. This problem occurs
because of an intermittent electrical connection within the
device.
The company has received 18 related complaints about devices in
this group of PIC50s, corresponding to 1.5 percent of the 1,184
recalled devices, which the company deems an unacceptable risk.
In two instances the "Defib Comm Error" delayed patient
resuscitation.
The company has taken corrective action and no other devices
besides those manufactured between the above dates are subject
to this recall.
Most of the Defib Comm errors are detected by a self-test that
is automatically performed when the PIC50 is powered up, and
many of the errors are transient. If the Defib Comm error is
detected by the self-test, the device should be serviced before
further use on patients to eliminate the risk that the problem
might recur when defibrillation of a patient is required.
MRL, Inc. initiated notification via certified mail on June 30,
2006 to its customers who purchased PIC50s in this group of
devices, 673 of which were sold within the U.S. and 511 outside
of the U.S. Owners of PIC50s in the affected population should
contact MRL, Inc. using the response form included with the
recall notification they receive by registered mail.
MRL will schedule customers' returns of PIC50s for service,
giving priority to the units that have displayed the Defib Comm
error. Customers will be provided with loaner units at no
charge while their units are being serviced. MRL, Inc. will pay
all costs associated with shipping, handling and replacement of
the units "DEFIB" board.
This recall is being conducted with the full knowledge of the
U.S. Food and Drug Administration. FDA has determined that this
action is a Class I recall.
The FDA defines Class I as a situation in which there is
reasonable probability that the use of or exposure to the
product will cause serious adverse health consequences or death.
Customers with questions may contact the company at
1.800.462.0777 or 1.847.520.0300 for more information.
For more information, contact Jamie Arnold, Manager, Public
Relations, Phone: (315) 685-4599 or (800) 462-0777 or (847) 520-
0300.
SOUTH CAROLINA: High School Drug Raid Suit Settled for $1.6M
------------------------------------------------------------
The U.S. District Court for the District Court of South Carolina
approved a settlement in a lawsuit initiated by the American
Civil Liberties Union challenging police tactics in the high-
profile drug raid of Stratford High School in Goose Creek, South
Carolina.
The settlement includes a consent decree that sets a new
standard for students' rights to be free from unreasonable
search and seizure.
Absent a warrant, police will now need either to have probable
cause and pressing circumstances or voluntary consent in order
to conduct law enforcement activity on school grounds --
effectively granting Goose Creek students the essential privacy
rights enjoyed by all Americans.
"Goose Creek students now have a unique place in our nation,"
said Graham Boyd, Director of the ACLU's Drug Law Reform
Project. "They are the only students in the nation who have
complete protection of their Fourth Amendment rights of search
and seizure."
Both the school's surveillance cameras and a police camera
recorded the Nov. 5, 2003 police raid of Stratford High School.
The tapes show students as young as 14 forced to the ground in
handcuffs as officers in Special Weapons and Tactics team
uniforms and bulletproof vests aim guns at their heads and lead
a drug dog to tear through their book bags. The ACLU represents
20 of the nearly 150 students caught up in the raid.
The school's principal George McCrackin, who resigned shortly
after the tapes surfaced on national television, initiated the
raid at the time. The raid was authorized based on the
principal's suspicion that a single student was dealing
marijuana. The raid was carried out despite the suspected
student being absent at the time. No drugs or weapons were
found during the raid and no charges were filed.
While African Americans represented less than a quarter of the
high school's students, more than two-thirds of those caught up
in the sweep were African American. The raid took place in the
early morning hours when the school's hallways are predominantly
populated with African American students whose buses -- which
largely travel from different neighborhoods -- arrive before
those of their white classmates. White students began to arrive
during the raid and witnessed the hostile roundup and detention
of their African American peers.
As 16-year-old Joshua Ody, one of the students caught up in the
raid, put it, "I felt like I had less rights than other people
that day."
Following the raid, the ACLU brought a lawsuit on behalf of
students' families charging police and school officials with
violating the students' right to be free from unlawful search
and seizure and use of excessive force. The lawsuit demanded a
court order declaring the raid unconstitutional and blocking the
future use of such tactics, as well as damages on behalf of the
students.
In addition to recognizing students' rights to be free from
unconstitutional search and seizure and restricting police
tactics, the settlement establishes a $1.6 million dollar fund
to compensate the students and help cover medical and counseling
costs from the incident.
The settlement will be funded by:
Contribution
Berkeley County School District $50,000
Zurich North America Insurance Co. $500,000
The City of Goose Creek $60,000
S.C. Municipal Insurance Risk Financing Fund $990,000
(Class Action Reporter, April 6, 2006).
It is not yet known exactly how many of the nearly 150 students
will accept the settlement.
The offer came in response to a class action on behalf of 53
students, of which the ACLU's lawsuit is a part. Both sides
agreed to the terms of the settlement earlier this year. The
agreement received judicial approval on July 10, 2006.
Named plaintiffs in the suit are:
- 15-year-old Carl Alexander, Jr.;
- 15-year-old Rodney Goodwin;
- 17-year-old Samuel Ody III;
- 17-year-old Micah Bryant;
- 15-year-old Marcus Blakeney;
- 14-year-old Danyielle Ashley Cills;
- 15-year-old Cedric Penn, Jr.;
- 14-year-old Elijah Le'Quan Simpson;
- 14-year-old Jeremy Bolger;
- 14-year-old Tristan Cills;
- 14-year-old Arielle Pena;
- 17-year-old Jalania McCullough;
- 17-year-old Cedric Simmons;
- 14-year-old Nathaniel Smalls;
- 15-year-old Timothy Rice;
- 15-year-old Shnikqua Simmons;
- 16-year-old Joshua Ody;
- 16-year-old De'Nea Dykes;
- 15-year-old Chernitua Bryant; and
- 18-year-old Rodricus Perry.
A copy of the 2003 ACLU complaint is available free of charge
at: http://ResearchArchives.com/t/s?d94
A copy of the settlement agreement is available free of charge
at: http://ResearchArchives.com/t/s?d95
The suit is "Alexander, et al v. Goose Creek PD, et al., Case
No. 2:03-cv-03943-PMD," filed in the U.S. District Court for the
District of South Carolina under Judge Patrick Michael Duffy.
Representing the plaintiffs are:
(1) Badge Humphries of Ducks Unlimited Inc, 3896 Leeds
Ave., Charleston, SC 29464, Phone: 843-745-9110, Fax:
843-745-9112, E-mail: badgehumphries@yahoo.com;
(2) Gregg Meyers of The Gregg Meyers Law Firm, 39 Broad
Street, Suite 300, Charleston, SC 29401-2247, Phone:
843-720-8714, Fax: 843-720-8704, E-mail:
attygm@aol.com;
(3) Antonio Ponvert of Koskoff Koskoff and Bieder, 350
Fairfield Avenue, 5th Floor, Bridgeport, CN 06604,
Phone: 203-336-4421;
(4) David Rudovsky of Kairys Rudovsky Epstein and Messing,
924 Cherry Street, Suite 500, Philadelphia, PA 19107;
and
(5) Graham A Boyd of The ACLU Drug Policy Litigation
Project, 85 Willow Street, New Haven, CT 06511.
Representing the defendants are:
(i) Stephen L Brown and Duke Raleigh Highfield both of
Young Clement Rivers and Tisdale, PO Box 993,
Charleston, SC 29402, Phone: 843-577-4000, Fax: 843-
579-1351 or 843-724-6600, E-mail: sbrown@ycrlaw.com and
dhighfield@ycrlaw.com;
(ii) Kenneth Lendrem Childs, Kathryn Long Mahoney and John M
Reagle all of Childs and Halligan, PO Box 11367,
Columbia, SC 29211-1367, Phone: 803-254-4035, Fax: 803-
771-4422, E-mail: kchilds@childs-halligan.net and
kmahoney@childs-halligan.net and
jreagle@childs-halligan.net;
(iii) Donna Seegars Givens of Woods and Given, PO Box 2444,
Lexington, SC 29071-2444, Phone: 803-808-8088, Fax:
803-808-8090, E-mail: dgivens@woodsgivens.com; and
(iv) Daryl G Hawkins of Daryl G Hawkins Law Office, PO Box
11906, Columbia, SC 29211, Phone: 803-733-3531, Fax:
803-799-9202, E-mail: dgh@dghlaw.net.
SUPERIOR FORESTRY: Politician Files Brief in "Rosiles-Perez"
------------------------------------------------------------
Tom Kovach, a Republican candidate for Tennessee's 5th
Congressional District, filed a friend of the court brief in an
immigration lawsuit pending in the U.S. District Court for the
Middle District of Tennessee against Superior Forestry Services,
Inc., according to The City Paper Online.
Mr. Kovach said in his brief that the federal lawsuit should be
dismissed, since the migrant workers, who are suing their
employer lack standing to sue.
The suit, filed on Jan. 25, 2006 and captioned, "Rosiles-Perez,
et al. v. Superior Forestry Service, Inc., et al.," encompasses
as many as 1,500 foreign nationals, who are all seeking overtime
and back wages form their domestic employer.
Back by the Southern Poverty Law Center, the suit sought to
become a class action for the migrant workers that the company,
employed over the past six years to plant trees in Tennessee
(Class Action Reporter, July 7, 2006).
In addition, it also sought back pay, travel expenses, other
monetary damages and an injunction prohibiting the company from
violating federal wage and working condition laws. The suit's
three named plaintiffs are Andres Aldana-Moreno, Jesus Santiago-
Salmoran, and Jose Rosiles-Perez.
Plaintiffs, who are arguing their case before U.S. District
Court Judge William J. Haynes, asserted that they are
"systematically underpaid and abused by unscrupulous employers
who treat them as virtual indentured servants," according to the
Southern Poverty Law Center.
However, Mr. Kovach pointed out that the suit should be thrown
out, since the employees were here illegally. He also said in a
recent interview with The City Paper Online that that fact has
been overlooked, since the laborers do not want to admit to it
and also because the employer was complicit in obtaining guest
worker permits for them under fraudulent pretenses.
Mr. Kovach's brief specifically states, "Plaintiff workers were
admittedly in the U.S. under the H2B Visa Program. The H2B Visa
program specifically excludes agricultural workers...Based on
the above, Plaintiff's (sic) were inside the U.S. illegally,
because they had obtained their visas under circumstances that
were wrong for their type of visa."
However, Mr. Kovach also held the employer equally responsible
for the alleged fraud. He stated in the brief, "The requirement
for the H2A Visa is that the employer must certify that domestic
workers are not available for the job. Since any worker could
do the job (but not for such shamefully low wages), it would not
be possible for defendant to provide the U.S. Office of
Citizenship and Immigration Services with a valid certification
of the unavailability of domestic labor."
Previously, the federal court denied a request by migrant
workers to certify the case as class action, but allowed
plaintiffs to renew such motion. No trial date has been
scheduled yet (Class Action Reporter, July 7, 2006).
The suit is "Rosiles-Perez, et al. v. Superior Forestry
Service, Inc., et al. Case No. 1:06-cv-00006," filed in the U.S.
District Court for the Middle District of Tennessee under Judge
William J. Haynes.
Representing the plaintiffs are:
(1) Clifton David Briley of Briley Law Group, PLLC, 511
Union Street, Suite 1610, Nashville, TN 37219, Phone:
(615) 986-2684, E-mail: david@brileylaw.com;
(2) Tim A. Freilich of Legal Aid Justice Center, 1000
Preston Avenue, Suite A, Charlottesville, VA 22903, US,
Phone: (434) 977-0553 x 111, Fax: (434) 977-0558, E-
mail: tim@justice4all.org;
(3) Mary C. Bauer, Kristi Graunke and Jennifer J. Rosenbaum
of Southern Poverty Law Center, Immigrant Justice
Project, 400 Washington Avenue, Montgomery, AL 36104,
US, Phone: (334) 956-8200, Fax: (334) 956-8481, E-mail:
kgraunke@splcenter.org and
jennifer.rosenbaum@splcenter.org;
(4) Marni Willenson of Willenson Law Group, LLC, 4308 N.
Ridgeway Avenue, Chicago, IL 60618, US, Phone: (312)
546-4137, Fax: (312) 261-9977, E-mail:
marni.willenson@gmail.com;
(5) James M. Knoepp of Virginia Justice Center for Farm and
Immigrant Workers, 6066 Leesburg Pike, Suite 520, Falls
Church, VA 22041, US, Phone: (703) 778-3450, Fax: (703)
778-3454; and
(6) Matthew J. Piers and Joshua Karsh of Hughes, Socol,
Piers, Resnick & Dum, Ltd., 70 W. Madison, Suite 4000,
Chicago, IL 60602-4692, US, Phone: (312) 580-0100, Fax:
(312) 580-1994.
TOYOTA MOTOR: Recalls FJ Cruiser with Damaged Inner Tire Bead
--------------------------------------------------------------
Toyota Motor Corp., in cooperation with the U.S. National
Traffic Safety Administration, is recalling about 9, 434 units
of Toyota 2007 FJ Cruiser.
The company said certain passenger vehicles are equipped with
either Bridgestone Dueler or Dunlop Grandtek Tires, which
probably has a damaged inner bead of the tire. If the bead is
damaged, a bulge may develop on the sidewall of the tire and air
may leak from the area of the damaged bead.
If the tire loses air pressure, it may lead to a loss of vehicle
control and increase the possibility of a crash.
Consumers are advised to contact Toyota at 1-800-331-4331 for
inspection of all five tires, including the spare tire, to
determine if they are within the affected tire-to-wheel assembly
range and for replacement of all involved tires with new tires,
free of charge.
UNIVERSITY OF CALIFORNIA: Settles Willed Body Program Lawsuit
-------------------------------------------------------------
The University of California and a contractor reached an
agreement to settle a lawsuit over the use of cadavers donated
to the university in late 1990s, according to the Los Angeles
Times.
The university and Jeffrey Frazier, a contractor who handled
donation forms, billing and transporting bodies for University
of California Irvine, agreed to pay $630,000 to settle a lawsuit
over UC Irvine's alleged selling of a spine from a donated
cadaver. Under the deal, the university would pay $455,000,
while Mr. Frazier would pay $175,000. The University of
California Board of Regents still has to approve the settlement.
The suit concerns the family of Joseph Coghill who had requested
before his death in 1999 that his body be donated for research
to UC Irvine. The family was told that it would be used for an
anatomy class at UCI School of Medicine. But they became
suspicions when unused remains, allegedly that of Mr. Coghill's,
were returned to them earlier than expected.
Later it turned out that Mr. Coghill's body was cremated one
week after the director of the UCI's Willed Body Program,
Christopher Brown, sold seven spines to a research facility in
Arizona. Though cremated remains were sent to one of Mr.
Coghill's sons, a forensics expert retained by the family
concluded that they were not Mr. Coghill's, according to the
report.
Problems in the program triggered as many as 40 claims in a
dozen of lawsuits, including 20 filed as part of a class action.
At least four cases already have been settled, some have been
dismissed, and several more are still pending. Usually, the
suits were dismissed because the donors did not specify that
their remains be returned to their families, giving them little
basis to make legal claims, according to the report. In Mr.
Coghill's case, a written contract specified that his remains be
returned.
Mr. Brown was fired after investigators concluded that he had
sold cadaver parts, misappropriated funds and conducted
unauthorized autopsies. He has not been, however, charged with
any crime.
Representing the Coghill family is attorney David L. Belz of
Kuhn & Belz -- http://www.kuhnbelz.com/-- San Juan Capistrano,
California (Orange Co.). Representing University of California
is Lou Marlin of Marlin & Saltzman, 29229 Canwood Street, Suite
208, Agoura Hills, California 91301 (Los Angeles Co.), Phone:
818-991-8080, Fax: 818-702-6555.
US BANK: Appeals Court Sides with Bank in Depositors' Lawsuit
-------------------------------------------------------------
The Illinois Appellate Court reversed a circuit court decision
to deny US Bank's motion to dismiss a 2003 class action,
according to The Madison St. Clair Record.
The appeals court said the suit filed by two depositors lack
standing. The case was filed by Kenneth Kronemeyer of New
Memphis and Darryl Johnson of Collinsville. It accuses the
company of consumer fraud, wrongful dishonor and unjust
enrichment by charging a $10 fee to cash checks drawn by the
bank's depositors and payable to the bank.
In January, US Bank filed a motion to dismiss arguing that the
plaintiffs did not have standing to assert a cause of action for
wrongful dishonor under section 4-402 of the Uniform Commercial
Code.
Madison County Circuit Court Judge Nicholas Byron denied the
motion after a May hearing.
In June, US Bank filed an unopposed motion to certify the
preemption and jurisdiction issues for interlocutory appeal
pursuant to Illinois Supreme Court Rule 308 and an order was
entered granting the motion and certifying the issues.
On July 7, presiding Justice Steve Spomer wrote in a court
opinion that the Uniform Commercial Code definition of
'customer' Section 4-402(b) confers no cause of action on the
holder of an allegedly dishonored item."
The ruling preempted a determination whether the plaintiffs'
claim for wrongful dishonor is preempted by federal law.
"The OCC's interpretation that the word 'customer' includes
payees who present a check to a drawee bank for payment is
controlling. Consequently, the national banks are authorized by
federal regulation 12 C.F.R. SS7.4002(a) (2000) to charge non-
account-holding payees a check-cashing fee," the judge wrote.
US Bank was represented by the Burroughs firm in Edwardsville.
The plaintiffs are represented by the Lakin Law Firm in Wood
River and Freed and Weiss in Chicago.
WAL-MART STORES: Recalls Office Chairs After Fall Injury Reports
----------------------------------------------------------------
Wal-Mart Stores Inc., of Bentonville, Arkansas, in cooperation
with the U.S. Consumer Product Safety Commission, is recalling
about 762,000 units of Mainstays Associate Office Chairs.
The company said the legs and backs of these chairs can break,
and the chairs can easily tip over, posing a fall hazard to
consumers.
Wal-Mart has received nine reports of chairs breaking and two
reports of tipping. There have been seven reported injuries,
including a broken wrist.
The recall involves the Mainstays Associate office chair with a
5-star nylon base with dual wheel casters and pneumatic seat
height adjustment. The chair has a fabric cushioned seat and
back that is black/grey in color. The armrests are shaped in
half-circle loops. Under the seat is a UPC Code Label no.
9501401610 with printed Model no. VCR1022.
Picture of the recalled office chair:
http://www.cpsc.gov/cpscpub/prerel/prhtml06/06208.jpg
These office chairs were manufactured in China and are being
sold at Wal-Mart stores exclusively nationwide from April 2003
through April 2006 for about $36.
Consumers are advised to immediately stop using the product and
return it to Wal-Mart for a full refund.
For more information, call Wal-Mart at (800) 925-6278 between 7
a.m. and 9 p.m. CT Monday through Friday, or visit
http://www.walmartstores.com.
WAVE SYSTEMS: Settles Securities Fraud Suit in Mass. for $1.75M
---------------------------------------------------------------
Wave Systems Corp. reached a settlement in principle of all
claims asserted by the plaintiffs in a consolidated securities
class action pending in the U.S. District Court for the District
of Massachusetts against the company, its chief executive
officer and its chief financial officer.
According to a filing with the U.S. Securities and Exchange
Commission, the company in conjunction with its insurer, agreed
to pay the plaintiffs a total of $1.75 million in exchange for
the dismissal with prejudice and release of the claims against
all defendants.
The company does not have any financial obligation related to
the settlement. In principle the settlement terms will be
committed to formal settlement agreements, and the settlement is
subject to court approval, since it was filed as a class action.
In settling the suit, the company and its management have denied
all wrongdoing alleged by the plaintiffs, a July 10 SEC filing
said.
Filed in June, the suit named as defendants the company, CEO
Steven K. Sprague and CFO Gerard T. Feeney. It asserted claims
arising under the Securities Exchange Act of 1934 concerning
certain disclosures in 2003.
The complaint claims that the company and the named individuals
violated Section 10(b) of the Securities Exchange Act of 1934
(1934 Act), Rule 10(b)-5 promulgated thereunder and Section
20(a) of the 1934 Act by publicly disseminating materially false
and misleading statements, relating to the company's agreements
with Intel and IBM. It does not specify the amount of alleged
damages plaintiffs seek to recover (Class Action Reporter, June
14, 2006).
The suit is "Brumbaugh v. Wave Systems Corporation et al., Case
No. 3:04-cv-30022-MAP," filed in the U.S. District Court for the
District of Massachusetts under Judge Michael A. Ponsor.
Representing the plaintiffs are:
(1) Stuart L. Berman and Darren Check of Schiffrin &
Barroway LLP, Three Bala Plaza East, Suite 400, Bala
Cynwyd, PA 19004, Phone: 610-667-7706;
(2) David Pastor, Gilman and Pastor, LLP, 60 State Street,
37th Floor, Boston, MA 02109, Phone: 617-742-9700, Fax:
617-742-9701, E-mail: dpastor@gilmanpastor.com;
(3) John C. Martland, Martland & Brooks LLP, Stonehill
Corporate Center, Suite 500, 999 Broadway, Saugus, MA
01906, Phone: 617-742-9700, Fax: 617-742-9701, E-mail:
jcmartland@gilmanpastor.com; and
(4) Karen Reilly and Marc I. Willner, Schiffrin & Barroway,
LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone:
610-667-7706, Fax: 610-667-7056.
Representing the Company are:
(i) Michael D. Blanchard and Robert A. Buhlman of Bingham
McCutchen LLP - Hartford, One State Street, Hartford,
CT 06103, Phone: 860-240-2700, Fax: 860-240-2818, E-
mail: michael.blanchard@bingham.com or
robert.buhlman@bingham.com; and
(ii) Eunice E. Lee and Raquel J. Webster, Bingham McCutchen
LLP, 150 Federal Street, Boston, MA 02110, Phone: 617-
951-8000, Fax: 617-951-8736, E-mail:
eunice.lee@bingham.com or raquel.webster@bingham.com.
WD-40 CO: Consumer Files Consumer Fraud Lawsuit in Calif. Court
---------------------------------------------------------------
WD-40 Co. is a defendant in a purported class action filed in
the U.S. District Court for the Southern District of California,
alleging fraud in its marketing of automatic toilet bowl
cleaners.
James Drimmer filed the suit on April 19, 2006. It seeks class-
action status and alleges that the company misrepresented that
its 2000 Flushes Bleach, 2000 Flushes Blue Plus Bleach and X-14
Anti-Bacterial ATBCs are safe for plumbing systems.
Plaintiff also alleges that the company unlawfully omitted to
advise consumers regarding the allegedly damaging effect the use
of the ATBCs has on toilet parts made of plastic and rubber.
The complaint seeks to remedy such allegedly wrongful conduct:
-- by requiring the company to identify all consumers who
have purchased the ATBCs and to return money as may be
ordered by the court; and
-- by the granting of other equitable relief, interest,
attorneys' fees and costs.
Though a new named plaintiff brought this case, it is legally
and factually identical to a similar case that was dismissed by
the San Diego Superior Court in April 2005, according to the
company's July 10, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended May 31,
2006.
The suit is "Drimmer v. WD-40 Company, Case No. 3:06-cv-00900-W-
AJB," filed in the U.S. District Court for the Southern District
of California under Judge Thomas J. Whelan with referral to
Judge Anthony J. Battaglia.
Representing the plaintiff is Robert L. Kenny of The Law Offices
of Robert L. Kenny, 401 West A Street, Suite 2300, San Diego, CA
92101, Phone: (619) 234-1616, Fax: (619) 234-1650.
Representing the company is Shannon Sweeney of Baker and
McKenzie, 101 West Broadway, Suite 1200, San Diego, CA 92101-
8213, Phone: (619) 236-1441, Fax: (619) 236-0429.
New Securities Fraud Cases
INFOSONICS CORP: Murray, Frank Files Securities Suit in Calif.
--------------------------------------------------------------
Murray, Frank & Sailer, LLP, filed a class action in the U.S.
District Court for the Southern District of California on behalf
of all who purchased shares of InfoSonics Corp. between May 8,
2006 and June 9, 2006, inclusive.
The complaint charges InfoSonics and certain of its officers and
directors with violations of the Securities Exchange Act of
1934. InfoSonics is a distributor of wireless handsets and
accessories in the U.S. and Latin America.
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, InfoSonics' stock
traded at artificially inflated prices during the class period,
reaching a high of $33.53 per share on June 2, 2006.
On June 12, 2006, before the market opened, the company
announced that it had filed an amended 10-Q for the quarter
ended March 31, 2006 to include a restatement of certain non-
cash items in the financial statements for that period.
The non-cash adjustment was the result of warrants issued in
conjunction with the company's financing completed in January
2006.
The warrants were originally classified as a derivative
liability for the period of Jan. 30, 2006 through the end of the
first quarter, March 31, 2006.
However, upon further investigation, the company determined the
warrants should have been reclassified as equity at Feb. 17,
2006, the date upon which the U.S. Securities and Exchange
Commission declared effective the company's registration
statement on Form S-3 registering the shares underlying the
warrants.
On this news, InfoSonics' stock collapsed to as low as $16.83
per share before closing at $17.38 per share.
According to the complaint, the true facts, which were known by
the defendants but concealed from the investing public during
the class period, were:
-- the company lacked requisite internal controls, and, as
a result, the Company's projections and reported
results issued during the Class Period were based upon
defective assumptions and/or manipulated facts; and
-- the company's financial statements were materially
misstated for the first quarter due to the improper
classification of warrants as liabilities instead of as
equity.
Interested parties may no later than Aug. 14, 2006 move the
court for appointment as lead plaintiff.
For more details, contact Bradley P. Dyer of Murray, Frank &
Sailer, LLP, Phone: (800) 497-8076, Fax: (212) 682-1818 and
(212) 682-1892, E-mail: info@murrayfrank.com, Web site:
http://www.murrayfrank.com.
SUNTERRA CORP: The Rosen Law Commences Securities Fraud Inquiry
---------------------------------------------------------------
The Rosen Law Firm commenced an investigation into allegations
that Sunterra Corp. violated the federal securities laws by
issuing materially false and misleading financial results for
the fiscal years ended Dec. 31, 2002 to Sept. 30, 2005 and the
first quarter ended Dec. 31, 2005.
On March 23, 2006 the company's independent auditor Grant
Thornton, LLP sent the U.S. Securities and Exchange Commission a
previously undisclosed letter from a former employee of Sunterra
detailing allegations concerning certain "accounting practices"
of the company's Spanish operations.
On March 27, 2006 the company announced that it had terminated
Grant Thornton as its independent auditor. On May 2, 2006, the
company terminated its Managing Director of Sunterra Europe.
On May 3, 2006 the company announced that its financial results
for the fiscal years ended Dec. 31, 2002 to Sept. 30, 2005 and
the fiscal quarter ended Dec. 31, 2005 contained material
inaccuracies and should no longer be relied upon.
On June 22, 2006, the company announced that it had placed its
chief executive officer, Nicholas J. Benson, on administrative
leave pending the completion of the company's investigation into
the company's accounting practices and the allegations by the
former employee.
That same day, the company announced that its chief financial
officer, Steven E. West, had resigned. As a result of these
adverse disclosures, the company's stock declined nearly 50%.
Subsequently, on July 6, 2006, the company's stock was de-listed
from the Nasdaq.
As a result of these allegations, the Rosen Law Firm is
preparing a class action on behalf of investors who purchased
Sunterra stock during the period from April 15, 2003 through
June 22, 2006.
For more details, contact Laurence Rosen, Esq. or Phillip Kim,
Esq., Phone: 866-767-3653, (212) 686-1060 and (917) 797-4425,
Fax: (212) 202-3827, E-mail: lrosen@rosenlegal.com and
pkim@rosenlegal.com, Web site: http://www.rosenlegal.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.
This material is copyrighted and any commercial use, resale or
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re-mailing and photocopying) is strictly prohibited without
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Information contained herein is obtained from sources believed
to be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
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