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/raid1/www/Hosts/bankrupt/CAR_Public/060801.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 1, 2006, Vol. 8, No. 151 Headlines AMERICAN FAMILY: Court Asks for Death Certificate of Plaintiff AMERICAN SUZUKI: Recalls All-Terrain Vehicles to Repair Mounting AT&T CORP: Aug. 11 Fairness Hearing Set for Salomon Analyst Case BANK WEST: Mich. High Court Sends Fee Lawsuit to Kent County BISSELL APARTMENTS: Court Denies Motion to Dismiss Molds Suit CHALLENGER FINANCIAL: Aussie Advisers Plan Suit Over Collapse CINCINNATI BELL: Pays $36M to Settle Broadwing Securities Suit DEERE & CO: Recalls Utility Tractors with Faulty Seat Bracket DIOCESE OF COVINGTON: Order to Disclose Victims' Names Remains GATEWAY INC: Denies Claims in Calif. Suit Over Faulty Plasma TVs GENERAC POWER: Recalls Plastic Fuel Tanks Due to Risk of Fire HILLTOP STEAK: $2.5M Payout in Tips Lawsuit Likely, Report Says HOSPITAL CORP: Kans. Consumer Suit Over Nurse Staffing Dismissed INDIAN TRUST: OST Officers Accused of Giving Special Treatment KAVA KAVA: Settlement Hearing of Calif. Lawsuit Set August 11 MEDIA COMPANIES: Faces California Labor Violations Lawsuit NORBORD INC: Continues to Face OSB Antitrust Lawsuits in Pa. OHIO: Youngstown Renews Bid to Intervene in Mahoning Jail Suit PHILIP SERVICES: Faces Suit Over Nauseating Odor From Ga. Plant SONY MUSIC: N.Y. Lawsuit Over Music Royalties to Cover Ringtones SUNNY LAKE: Recalls Dried Potatoes with Undeclared Sulfites UNITED STATES: Pre-1949 China Bondholders to Sue Rating Agencies VISY INDUSTRIES: Trial on Price Fixing Suit to Start in 2007 YAHOO INC: Faces N.J. Suit Over Ads in Spyware, Inferior Sites New Securities Fraud Cases HOME SOLUTIONS: Aug. 21 Deadline Set to File as Lead Plaintiff JUNIPER NETWORKS: Brower Piven Announces Securities Suit Filing PAR PHARMACEUTICALS: Ademi & O'Reilly Files Stock Fraud Suit SUNTERRA CORP: Goldman Scarlato Files Securities Suit in Nev. VONAGE HOLDINGS: Kirby McInerney Announces Stock Suit Filing ZALE CORP: Federman & Sherwood Announces N.Y. Stock Suit Filing ********* AMERICAN FAMILY: Court Asks for Death Certificate of Plaintiff -------------------------------------------------------------- Madison County Circuit Judge Daniel Stack has ordered plaintiffs' attorney in a class action against American Family Insurance to send the company a death certificate of his client, according to The Madison St. Clair Record. Judge Stack gave the order at a July 26 case management conference to hear the company's motion to overrule objections to questions the company posed about the knowledge of the plaintiff's attorney regarding the previously undisclosed death of his client. The company discovered several months ago that Manuel Hernandez of Granite City, whom the judge certified last year as a representative in a class action filed against the insurer, has already been dead since January 2004. The company's attorney attached a copy of Mr. Hernandez's death certificate in a filing in March. Attorney Jeffrey Millar of the Lakin Law firm confirmed the death of Mr. Hernandez, but has not answered questions that American Family Insurance submitted about his knowledge of it. Mr. Millar objected to the questions, arguing to Judge Stack that American Family Insurance should submit them not to Mr. Hernandez's attorney but to Mr. Hernandez himself. At the hearing, Judge Stack overruled the motion to compel Mr. Millar to answer the questions, but he did order Mr. Millar to send the death certificate. Mr. Millar notified Judge Stack that he would withdraw the amended complaint submitted on May 19, and file a new one -- for the fifth time -- with Helen Nemeth as class representative. Ms. Nemeth's claim arose from an auto accident in 2004, according to Mr. Millar. Mr. Millar has 21 days to file a proposed amended complaint. A hearing is set for Oct. 3, 2003 to decide if the Judge will accept the complaint. Mr. Millar told Judge Stack that he plans to make Mr. Hernandez's estate a plaintiff in the case along with the Ohio resident. Mr. Hernandez filed a suit against American Family Insurance in 2000, claiming the insurer improperly reduced a payout on a medical claim resulting from an auto accident. He was certified in 2002 by Judge Stack as class representative of everyone who received improper payouts in the 17 states where American Family Insurance did business back to 1990. After the company filed motions to decertify him, he was certified as plaintiffs' representative in 12 states only in July 2005. Representing the defendant are Anthony Martin and Timothy Sansone at Sandberg, Phoenix & von Gontard, 23 South 1st Street, Belleville, Illinois 62220 (St. Clair Co.), Phone: 618-397-2721; 800-225-5529, Web site: http://www.spvg.com. Representing the plaintiff is Mr. Millar, associate at The Lakin Law Firm, P.C., 300 Evans Avenue, P.O. Box 229, Wood River, Illinois 62095-0229 (Madison Co.), Phone: 618-254-1127, Telecopier: 618-254-0193. AMERICAN SUZUKI: Recalls All-Terrain Vehicles to Repair Mounting ---------------------------------------------------------------- American Suzuki Motor Corp., of Brea, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 300 all-terrain vehicles. The company said the mounting brackets used to secure the left- front suspension arm to the ATV frame may not have been welded completely and could break off during riding. If this occurs the rider could lose control of the ATV and crash, posing a risk of serious injury or death. No injuries were reported. Only Suzuki 2006 model year LT-A400K6, LT-A400FK6 and LT-F400FK6 model ATVs with certain vehicle identification numbers are included in this recall. Refer to the vehicle identification number (VIN) at http://www.suzukicycles.com. The VIN is located on the left rear side of the ATV frame. Eiger, printed in white letters, and QuadRunner and Suzuki are written on the side of the ATV. These ATVs were sold in red, black and green. These all-terrain vehicles were manufactured in the U.S. and are sold at Suzuki ATV dealers nationwide from May 2006 through July 2006 for about $4,500 for the LT-A400K6, $5,300 for the LT- A400FK6 and $5,200 for the LT-F400FK6. Pictures of the recalled vehicles: http://www.cpsc.gov/cpscpub/prerel/prhtml06/06566a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml06/06566b.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml06/06566c.jpg Consumers are advised to stop using these vehicles immediately and contact their local Suzuki ATV dealer to schedule an appointment for a free repair. Consumers with the recalled ATVs are being sent direct notices from Suzuki. For more information, contact Suzuki at (800) 444-5077 between 8:30 a.m. and 4:45 p.m. PT Monday through Friday, or visit http://www.suzukicycles.com. AT&T CORP: Aug. 11 Fairness Hearing Set for Salomon Analyst Case ---------------------------------------------------------------- The U.S. District Court for the Southern District of New York will hold a fairness hearing on Aug. 11, 2006 at 10:00 a.m. for the proposed settlement in the matter, "In Re Salomon Analyst AT&T Litigation, Case No. 02-6801." The hearing will be held before the Honorable Gerard E. Lynch, U.S. District Judge, at the U.S. Courthouse, 500 Pearl St., Room 2103, New York, NY 10007. Any objections and exclusions to and from the settlement must be made on or before July 12, 2006. Deadline for submission of a proof of claim is on Sept. 12, 2006. The case was brought on behalf of all persons who purchased AT&T Corp. common stock between Nov. 29, 1999 and Oct. 25, 2000, inclusive, and/or AT&T Wireless Tracking and/or common stock between May 2, 2000 and June 14, 2002. For more details, contact Salomon Analyst AT&T Litigation, c/o Berdon Claims Administration, LLC, P.O. Box 9014, Jericho, NY 11753-8914, Phone: 800-766-3330, Fax: 516-931-0810, Web site: http://bca.berdonllp.com/claims/cases/details.asp?CaseID=204. BANK WEST: Mich. High Court Sends Fee Lawsuit to Kent County ------------------------------------------------------------ In a 4-3 decision, The Michigan Supreme Court sent a 1998 class action against Bank West -- now known as Chemical Bank -- over certain fees it levied, back to Kent County Circuit Court, The Grand Rapids Press reports. The decision comes after eight years of appeals and legal wrangling over the statute of limitations to determine which plaintiffs are eligible and what claims are appropriate in the suit. In 1998, attorney John Anding of Drew, Cooper & Anding, filed the lawsuit on behalf of a Lowell homeowner who was charged a $250 "document preparation fee" when she received a mortgage from Bank West. The lawsuit, now representing 556 people, alleges the fee encompasses more than document preparation and therefore should have been disclosed under the federal Truth in Lending Act. Mr. Anding argued that if it's really a loan-processing fee, it has to be in the finance charges, thus it should be included in the interest rate quoted to customers. When asked if the fee is still charged to mortgage customers, David B. Ramaker, president of Midland-based Chemical Bank, said no. He explains that it always been the bank's contention that it never did. According to Mr. Anding, if his clients prevail in court, the statute states they will be entitled to a minimum payment of $500,000 divided among them, plus interest. For more details, contact John E. Anding of Drew, Cooper & Anding, Ledyard Building, Suite 300, 125 Ottawa Avenue, N.W. Grand Rapids, Michigan 49503-2898, (Kent Co.), Phone: 616-454- 8300, Fax: 616-454-0036, Web site: http://www.dcadvocate.com/. BISSELL APARTMENTS: Court Denies Motion to Dismiss Molds Suit ------------------------------------------------------------- Circuit Judge Andy Matoesian of Madison County, Illinois denied a motion to dismiss a suit filed over molds at Bissell Apartments in Venice, The Madison St. Clair Record reports. At a July 7 hearing, plaintiff lawyer Lanny Lar proposed to certify property owner Kesha Manning as representative of the proposed class. Ms. Manning sued BA-2003 Limited Partnership and Independent Management Services, the owners of The Bissel Apartments, in April 2005 on behalf of herself and her two minor children and Claude Taylor. The suit was brought by Mr. Darr of the Alton law firm of Schrempf, Blaine, Kelly & Darr (Class Action Reporter, Jan. 9, 2006). It specifically alleges that the apartments had mold and fungal growth penicillium and cladosporiumo on surfaces and structures of the building that make up the complex located at 1400 Klein Ave. According to the complaint, the defendants breached a duty under Illinois law to exercise ordinary care in the maintenance of the Bissel complex. The defense moved to dismiss the case twice, first on argument that Ms. Manning failed to attach a lease to her complaint, then on failure of plaintiff to prosecute. Each time, plaintiff filed an amended complaint. In February 2006, Mr. Darr filed another amended complaint. Defense attorney Troy Bozarth responded -- as in the second motion to dismiss -- that plaintiffs refused to disclose the property they claimed was damaged. On April 7, 2006, Judge Matoesian ordered her to make a list of personal property that mold damaged, but instead, Mr. Darr again moved to amend his complaint so he could add a new party. The judge granted that motion. In Ms. Manning's third amended complaint, she sued not only BA- 2003 and Independent Management Services, but also Bissell Apartments Limited. Mr. Darr wrote that BA-2003 bought the property from Bissell Apartments Limited in 2004. For more details, contact Schrempf, Blaine, Kelly & Darr, L.T.D., Suite 415, 307 Henry Street, Alton, IL 62002-6326, Phone: (618) 465-2311, Fax: (618) 465-2318, Web site: http://sbkdlaw.com/;or defense attorney Matthew Jacober of Jenkins & Kling, P.C., 10 South Brentwood, Suite 200, St. Louis, Missouri 63105 (Independent City), Phone: 314-721-2525, Telecopier: 314-721-5525. CHALLENGER FINANCIAL: Aussie Advisers Plan Suit Over Collapse ------------------------------------------------------------- Several financial planning groups in Australia are to proceed with a class action against Challenger Financial Services Group over the collapse of its Challenger Howard Property Trust -- Penrith Homemaker Center, according to Money Management. Led by the Association of Independently Owned Financial Planners (AIOFP), the decision to launch the class action follows a final payout to fund investors of 35 cents in the dollar. AIOFP chief executive Peter Johnston told Money Management the organization is "facilitating and coordinating the action on behalf of about 12 to 15 planning groups, both AIOFP members and non-members, and their clients." A Challenger spokesperson confirmed the 35-cent payout. She emphasized, however that the "overall payout to investors over the life of the fund is actually closer to 50 cents in the dollar." According to the spokesperson, the company would also make a "further smaller final distribution" to investors sometime before September this year, as there was still some money left in the fund. Mr. Johnston also told Money Management that the action would proceed, on the basis of legal advice that suggests the company did not fulfill the original Product Disclosure Statement (PDS), and has a case to answer for negligence. In calling on other non-AIOFP members to join the proposed action, he also told Money Management that the planners would be seeking "legal redress for fund investors by way of full damages, including interest, for these shortcomings in the PDS." AIOFP on the Net: http://www.aiofp.net.au/ CINCINNATI BELL: Pays $36M to Settle Broadwing Securities Suit -------------------------------------------------------------- Judge Walter H. Rice of the U.S. District Court for the Southern District of Ohio gave preliminary approval to the settlement of the consolidated securities class action filed on behalf of purchasers of the securities of the company's wholly owned subsidiary, BRCOM Inc. (f/k/a Broadwing Communications, Inc.) between Jan. 17, 2001 and May 20, 2002, inclusive, the Associated Press reports. Cincinnati Bell and certain of its insurance carriers entered into an agreement to pay a total of $36 million to settle the claims in this matter and obtain in exchange a release of all claims from the class members in June (Class Action Reporter, June 12, 2006). "We decided to settle the case on these terms because we think it's a fair settlement to the investors who lost money during this period," said Richard Wayne, counsel for the shareholders. The court gave preliminary approval late in July. It has slated a Sept. 6 final hearing on the matter. Case Background Between October and December 2002, five virtually identical class actions were filed against Broadwing Inc. and two of its former chief executive officers in U.S. District Court for the Southern District of Ohio. These complaints were filed on behalf of purchasers of Broadwing's securities between Jan. 17, 2001 and May 20, 2002, inclusive. They alleged violations of Section 10(b) and 20(a) of the Securities and Exchange Act of 1934 by, inter alia: -- improperly recognizing revenue associated with Indefeasible Right of Use agreements; and -- failing to write-down goodwill associated with the company's 1999 acquisition of IXC Communications, Inc. The plaintiffs sought unspecified compensatory damages, attorney's fees, and expert expenses. On Dec. 30, 2002, the "Local 144 Group" filed a motion seeking consolidation of the complaints and appointment as lead plaintiff. By order dated Oct. 29, 2003, Local 144 Nursing Home Pension Fund, Paul J. Brunner and Joseph Lask were named lead plaintiffs in a putative consolidated class action. On Dec. 1, 2003, lead plaintiffs filed their amended consolidated complaint on behalf of purchasers of Broadwing's securities between Jan. 17, 2001 and May 20, 2002, inclusive. This amended complaint contained a number of new allegations. Cincinnati Bell Inc. was added as defendant in this amended filing. The company's motion to dismiss was filed on Feb. 6, 2004. Plaintiffs filed their opposition on April 2, 2004, and the company filed its reply on May 17, 2004. On Sept. 24, 2004, Judge Walter Rice issued an order granting in part and denying in part the company's motion to dismiss. The order indicated that a more detailed opinion would follow, which would provide further information regarding the portions of the case dismissed. On April 28, 2006, the company and plaintiffs entered into a Memorandum of Understanding, which sets forth an agreement in principle to settle this matter. Under the MOU, the company and certain of its insurance carriers will contribute a total of $36 million to settle the claims in this matter and obtain in exchange a release of all claims from the class members. The suit is "In re Broadwing, Inc. Securities Litigation, Case No. 1:02-cv-00795-WHR," filed in the U.S. District Court for the Southern District of Ohio under Judge Walter H Rice. Representing the plaintiffs are: (1) William Kendall Flynn and Richard Stuart Wayne, Strauss & Troy - 1, The Federal Reserve Building, 150 E Fourth Street, 4th Floor, Cincinnati, OH 45202-4018, Phone: 513-621-2120, Fax: 513-621-2120, E-mail: wkflynn@strausstroy.com or rswayne@strausstroy.com; and (2) Paul David Young, Milberg Weiss Bershad Hynes & Lerach LLP, One Pennsylvania Plaza, New York, NY 10119-0165, Phone: 212-594-5300, Fax: 212-868-1229, E-mail: pyoung@milberg.com. Representing the company are: (i) Peter J Beshar of Gibson Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, Phone: 212-351-4084, E- mail: pbeshar@gibsondunn.com; and (ii) Grant Spencer Cowan, Frost Brown Todd LLC - 1, 2200 PNC Center, 201 E 5th Street, Cincinnati, OH 45202-4182, Phone: 513-651-6800, Fax: 513-651-6745, E-mail: gcowan@fbtlaw.com. DEERE & CO: Recalls Utility Tractors with Faulty Seat Bracket ------------------------------------------------------------- Deere & Co. of Moline, Illinois, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 2,800 units of John Deere 3000 Twenty Series and 4000 Twenty Series Open Station compact utility tractors. The company said the seat bracket to which the seat belt is attached could have been positioned incorrectly during the manufacturing process resulting in a poor weld. In a tractor roll over, the weight of the operator could cause the bracket to break off of the seat's pivot plate. No injuries were reported. These vehicles are small agricultural tractors that are green with yellow seats and wheels. These model and serial numbers can be found on the serial number plate on the tractor's frame: Model Serial Numbers 3120 LV3120H210126 through 210552 3320 LV3320E138296 & 245001 through 245250 LV3320F139038 & 250001 through 250015 LV3320H230163 through 231295 LV3320P240043 through 240199 3520 LV3520E270019 through 270240 LV3520F275002 through 275029 LV3520H258079 & 258205 through 258988 LV3520P266001 through 266169 3720 LV3720E290014 through 290325 LV3720H280020 through 280669 4120 LV4120H310005 through 310220 LV4120P317068 through 317435 4320 LV4320E338001 through 338011 LV4320F339002 through 339008 LV4320H320037 through 320562 LV4320P330037 through 330286 4520 LV4520E358001 through 358223 LV4520F360006 through 360052 LV4520H250391 & 340043 through 340385 LV4520P255680 & 347024 through 347334 4720 LV4720H370053 through 370771 These compact utility tractors were manufactured in the U.S. and are being sold at authorized John Deere dealers nationwide from October 2005 through March 2006 for between $17,000 and $28,300. Picture of the recalled compact utility tractor: http://www.cpsc.gov/cpscpub/prerel/prhtml06/06567.jpg The company is directly notifying those consumers who purchased an affected tractor. Consumers should contact a John Deere dealer for a free repair. For more information, contact John Deere's Customer Contact Center at (800) 537-8233 between 8 a.m. and 7 p.m. ET Monday through Friday and 9 a.m. and 5:30 p.m. ET Saturday, or go to John Deere's Web site: http://www.deere.com DIOCESE OF COVINGTON: Order to Disclose Victims' Names Remains -------------------------------------------------------------- Senior Judge John Potter has kept his order that the names of sexual abuse victims involved in a $85 million settlement with the Covington Diocese be turned over to prosecutors, according to The Cincinnati.com. In that order, Judge Potter pointed out that under Kentucky law sex-abuse allegations must be forwarded to police. The judge reasoned that he wants the prosecutors to know the type of abuse, when it occurred and the name of the suspected abuser. Though the order requires the information be kept confidential except as necessary to investigate, it was stipulation of turning over victims' names that sparked a recent court battle in Boone County Circuit Court. Stan Chesley, lead attorney for the victims in the class action, argued against the order. Dr. Rena Kay, a psychiatrist treating many of the victims abused by Covington diocesan employees, testified on the hearing. In court filings, Dr. Kay wrote that victims placed a lot of faith in the legal system in order to help right the wrong that was done to them. She adds that based on her experience in treating such victims, the Court's order -- in her opinion -- will be viewed by most them as a final betrayal of their trust by the legal system. According to Mr. Chesley, plaintiffs in the class were promised confidentiality and the releasing their names would cause them psychiatric harm. Mr. Chesley argues that the law requiring all child sex-abuse cases be reported to authorities does not apply in this case, pointing out that it does not apply to adults who come forward reporting that they were abused as a child. He also reiterates that the case is a civil one and not a criminal prosecution. He also pointed out that 141 newspaper, 213 television and 523 radio advertisements seeking victims all promised anonymity to the abused. Case Background Mr. Chesley filed the class action in Boone County Circuit Court back in 2003, claiming 21 priests and some other workers abused more than 150 victims in the Diocese of Covington for decades while church officials did nothing to stop the misconduct, (Class Action Reporter, Feb. 18, 2003). According to court filings, from about 1956, information on the sexual abuse of minors by diocesan priests has been concealed from the public, including parents of children in schools and parishes where the alleged perpetrators were assigned, as well as from family members of employees of the diocese. Specifically, the suit accuses the diocese of a 50-year cover-up of sexual abuse by priests and others. On Jan. 31, Special Judge John Potter approved an $85 million settlement between sexual abuse victims and the Roman Catholic Diocese of Covington, Kentucky (Class Action Reporter, Feb. 2, 2006). The settlement covers 361 victims. The settlement was initially approved in July 2005. For more info, visit: http://www.covingtonkydioceseabuse.com/. GATEWAY INC: Denies Claims in Calif. Suit Over Faulty Plasma TVs ---------------------------------------------------------------- Gateway, Inc. denied allegations in the amended complaint in a consumer class action over its faulty plasma TVs, captioned, "Koch v. Gateway." Magistrate Judge Anthony J. Battaglia E.N.E. will continue to hear the matter on Aug. 1, 2006, at the U.S. District Court for the Southern District of California. The amended complaint charges the company of: (1) violations of California's consumer legal remedies act (CLRA); (2) unlawful, unfair and deceptive business practices; (3) false and misleading advertising; (4) breach of express warranty; (5) breach of implied warranty; and (6) violations of the Song-Beverly consumer warranty act, which provides that under implied warranty of merchantability, consumer goods "must conform to the promises or affirmations of fact made on the container or label" and must "pass without objection in the trade under the contract description." In the amended complaint, plaintiffs are seeking: (1) an order certifying that the action may be maintained as a class action; (2) compensatory damages, general damages and punitive damages as permitted under the CLRA in an amount to be proven at trial, including any damages as may be provided for by statute; (3) a temporary, preliminary and/or permanent order providing for equitable and injunctive relief; (4) an order enjoining defendant from pursuing the policies, acts and practices complained; (5) an order requiring disgorgement of the defendant's ill- gotten gains and to pay restitution to plaintiffs and all class members and to restore to the public all funds acquired by means of any act or practice declared by the court to be unlawful, fraudulent or unfair business act or practice, a violation of laws, statutes or regulations, or constituting unfair competition or false, untrue or misleading advertising; and (6) remuneration for attorney's fees, cost of suit and pre and post judgment interest. Case Background In December, 2005, a nationwide class action was initiated against Gateway, Inc. by a group of consumers in the U.S. District Court for Southern District of California, alleging the computer giant violated the California Consumer's Legal Remedies Act as well as the Song-Beverly Consumer Warranty Act through its manufacturing, distribution and sales of GTW Series Plasma Television sets (Class Action Reporter, Dec. 15, 2005). Gateway, which introduced its line of plasma televisions in 2002, claimed they had "exceptional value and brilliant picture quality." The complaint alleges, however, that consumers experienced a total failure of their television sets within a short time after purchase. It is believed that Gateway's plasma televisions contain defective parts caused by a design or manufacture defect, which renders the television sets completely inoperable. Consumers complained that the televisions emitted "popping sounds" and produced a "burning odor." Local television repair shops notified complaining consumers that their only recourse would be to request repairs from Gateway. Despite attempts by consumers to work with Gateway, replacements parts were unavailable and the televisions could not be repaired. The televisions varied in price from $3,000 to $7,000. A copy of the amended complaint and Gateway's response to it is available free of charge at: http://ResearchArchives.com/t/s?e96 http://ResearchArchives.com/t/s?e94 The suit is "Koch v. Gateway, Case No. 05-CV-2229," filed in the U.S. District Court for the Southern District of California under Judge Thomas J. Whelan, with referral to Magistrate Judge Anthony J. Battaglia. Representing the plaintiffs are Anton N. Handal and Pamela C. Chalk both of Handal and Associates, 1200 Third Avenue, Civic Center Plaza Suite 1321, San Diego, CA 92101-4109, Phone: (619) 696-0323 or (619) 544-6400. Representing the defendants is Micha Danzig of Quinn Emanuel Urquhart Oliver and Hedges, 4445 Eastgate Mall, Suite 200, San Diego, CA 92121-1979, Phone: (858) 812-3336 or (858) 812-3107. GENERAC POWER: Recalls Plastic Fuel Tanks Due to Risk of Fire ------------------------------------------------------------- Generac Power Systems Inc. of Waukesha, Wisconsin, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 700 units of Generac GTH410 and GTH220 engines with plastic fuel tanks. The company said the plastic fuel tanks can leak. If an ignition source is present, a fire or explosion can occur. Generac Power has received 33 reports of fuel tank leaks with these engines. Generac has not received any reports of injuries or property damage. These industrial power equipment products, manufactured by the original equipment manufacturers listed below are included in this recall: Power Equipment Type OEM/Equipment Seller Pressure Washer Cleaning Systems Specialists, Inc. Phone: (619) 448-8111 Air Compressors Ingersoll-Rand Phone: (800) 820-0308 Pressure Washers Silver Eagle Phone: (936) 264-2215 Saw Mill Wood Mizer Phone: (317) 808-0717 The recalled Generac GTH410 and GTH220 engines were manufactured from July 2001 to July 2005. GTH410 Engines model numbers with defective fuel tanks are: -- 0041930EHF, -- 0043290EHF, -- 0043291, -- 0045050EHF, -- 0045281, -- 0045283, -- 0046100EHF, -- 0046150EHF, -- 0046910EHF, -- 0046911 GTH220 Engines model numbers with defective fuel tanks are: -- 0040990EHC, -- 0043930EHC, -- 0045300EHC, -- 0046090EHC, -- 0046370EHC, -- 0046380EHC, -- 0046390EHC, -- 0046820EHC, -- 0047640EHC, -- 0048820, -- 0050650, -- 0051170 The engine model number is located on the side of the motor and contained on a small sticker above the Generac nameplate. The top number on the small sticker is the model number (e.g., 220 or 410). The larger Generac nameplate contains the Engine Identification Number and Serial Number. These Generac engines were manufactured in the U.S. and are being sold at independent and national dealers sold the power equipment with the recalled engines from July 2001 through July 2005. Pictures of the Generac engines with plastic fuel tanks: http://www.cpsc.gov/cpscpub/prerel/prhtml06/06569a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml06/06569b.jpg Consumers who purchased power equipment with the recalled engine are advised to stop using it immediately and contact the equipment manufacturer to schedule a free tank replacement. For more information, call Generac Power Systems at (800) 320- 1143 anytime, or log on to Generac's Web site: http://www.generac.com. Consumers can also contact the OEM/Equipment Seller directly at the phone numbers listed above. Consumers can also call Stephanie Borowski Generac's Media Contact at (262) 544-4811. HILLTOP STEAK: $2.5M Payout in Tips Lawsuit Likely, Report Says --------------------------------------------------------------- The Essex Superior Court may require Hilltop Steak House in Saugus, Massachusetts to pay more than $2.5 million in damages to wait staff in connection with a lawsuit over tips, the Boston Globe reports. An Essex County jury has found that the restaurant wrongfully and illegally maneuvered tip money to managers. The jury also found that the Hilltop wrongly fired four waitresses who complained about losing a percentage of their tips. They are identified in court papers as: -- Janet Calcagno; -- Joan Rossi, 51, of Saugus; -- Sunok Gatchell of Revere; and -- Chong O'Connell, 45, of Everett. The jury awarded $125,000 to each of three plaintiffs, and $75,000 to a fourth. It also found that the harm suffered by the waitresses as a result of the restaurant's violation of the tip law and its decision to fire them merited tripling of $610,000 in damages. Of that, 42 members of a class certified by the court will share $160,000. The case was the first of 19 "tip cases" to go to trial in the state after the Legislature amended Massachusetts law in 2002 to say that waitresses, waiters and bartenders aren't legally required to share tips with kitchen staff or managers. According to plaintiff lawyer Shannon Liss-Riordan, these waitresses made $3.60 per hour plus a gratuity, but the managers who were getting their money were making several hundred dollars per week. She said that, in some cases, the waitresses received 14 percent of the 18 percent gratuity, with the remainder going to managers. The Massachusetts tip law requires that all proceeds from tips, gratuities, and service charges that are added to bills after customers are served must be distributed to wait staff, according to the report. It further bars restaurant owners from distributing the money to other employees, including managers, even if they also serve food and beverages. Representing the plaintiffs is Shannon E. Liss-Riordan of Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C., 18 Tremont Street, Suite 500, Boston, MA 02108, Phone: 617-367-7200, Fax: 617-367-4820. Hilltop is represented by John Coyne of Law Office of John Coyne, 558 Pleasant St., New Bedford, MA 02740-6246, Phone: (508) 990-3738, Web site: http://coynelaw.comor http://www.massachusettscollectionslaw.com. HOSPITAL CORP: Kans. Consumer Suit Over Nurse Staffing Dismissed ---------------------------------------------------------------- The U.S. District Court for the District of Kansas dismissed a consumer class action against Hospital Corporation of America over allegations it operates under unsafe levels of nurse staffing, The Wichita Eagle reports. The hospital owns Wesley Medical Center in Wichita and 181 others. The suit had contended that the hospital chain defrauded patients by directing its affiliated hospitals to staff its nursing units below generally accepted levels. Judge J. Thomas Marten ruled the case involves medical malpractice that needs to be examined on an individual basis and not in a consumer class action. He also ruled that the company as a corporation could not be held liable for cases at each of its hospitals. The judge specifically wrote in his ruling, that plaintiffs' claims are in reality medical malpractice claims, and therefore not appropriately advanced as claims for consumer protection or unjust enrichment. Commenting on the decision, plaintiffs' attorney Lawrence Williamson said that while they respected the judge's ruling, they would still seek for its review by the 10th Circuit Court of Appeals in Denver. Case Background Mildred Spires, a widow who claims that her husband died at the company's Wesley Medical Center in Wichita, filed the suit in the U.S. District Court for District of Kansas in March. She claimed that her husband died because the hospital did not have enough nurses working to care for him when he was hospitalized in 2004 (Class Action Reporter May 24, 2006). The lawsuit asked the company to repay no less than $12.5 billion to millions of patients who have been treated at its hospitals. The suit is "Spires v. Hospital Corporation of America, Case No. 2:06-cv-02137-JWL-JPO," filed in the U.S. District Court for the District of Kansas under Judge John W. Lungstrum with referral to Judge James P. O'Hara. Representing the plaintiffs are Lawrence W. Williamson, Jr. and Uzo L. Ohaebosim of Shores, Williamson & Ohaebosim, LLC, 301 N. Main, 1400 Epic Center, Wichita, KS 67202, Phone: 316-261-5400, Fax: 316-261-5404, E-mail: u.ohaebosim@swolawfirm.com and l.williamson@swolawfirm.com. Representing the defendants are: (1) John H. Gibson of Gilliland & Hayes, P.A.- Wichita, 301 N. Main, Suite 1300, Wichita, KS 67202-4801, Phone: 316-264-7321, Fax: 316-264-8614, E-mail: jgibson@gh-wichita.com; (2) Carlos Mattioli of Shannon, Martin, Finkelstein, & Sayre, P.C., 909 Fannin St.-Ste. 2400, Houston, TX 77010-1001, Phone: 713-646-5555, Fax: 713-752-0337, E- mail: cmattioli@smfs.com; (3) Charles H. Moody, Jr. of Rodolf & Todd, 401 S. Boston Ave., Ste. 2000, Tulsa, OK 74103-5026, Phone: 918-295- 2100, Fax: 918-295-7800, E-mail: cmoody@rodolftodd.com. INDIAN TRUST: OST Officers Accused of Giving Special Treatment -------------------------------------------------------------- An investigation by the federal government found that officials of the Office of the Special Trustee for American Indians (OST) based in Albuquerque, an agency overseeing American Indian trust assets, had an improper social relationship with an accounting firm and pressured subordinates to give the firm preferential treatment, according to The Associated Press. The Interior Department's inspector general, senior managers in the trustee's office -- created in 1994 to improve accountability and management of Indian funds held in trust by the government -- reportedly golfed, drank and partied with the executives of the New Mexico accounting firm Chavarria, Dunne & Lamey, which won $6.6 million in contract work over eight years. First reported by U.S. News & World Report, the investigation found that employees felt pressured by these senior officials to continue to award work to the firm and that they feared retaliation for speaking out. In a letter accompanying the report dated May 16, Inspector General Earl Devaney wrote to department officials that the relationship with the firm "created an appearance of preferential treatment," thus violating ethics standards and an internal memo directing employees to avoid close contact with contractors. In a statement regarding the report, Special Trustee Ross Swimmer revealed that he had directed his managers to take new ethics training as a result of those findings. According to Mr. Swimmer, "Any appearance of an ethics violation at any level within OST is a great concern, and I believe that the additional ethics training will allow everyone to be fully informed of the rules." In their own press statement regarding the report, Chavarria Dunne executives said that they believe their contracts were awarded under the appropriate guidelines, citing that the report does not allege they did anything wrong. They did however, point out that the Inspector General's concern of "an appearance of preferential treatment" for the firm is subjective and unsubstantiated. The report outlines how the firm's executives and trustee managers exchanged gifts of meals and drinks, took out-of-town trips to a major golf event and played golf together almost weekly. Through an eight-page chart, the report details the dates of golf trips and meals, which often happens just days before contracts were awarded. The report found that the office awarded, extended and expanded the contract without competition. However, Donna Erwin, principal deputy special trustee, defended the socializing referred to in the report, saying that it involved only refreshments and meals, which may have given the appearance of preferential treatment. She vehemently maintains that no preferential treatment was ever given. According to the inspector general, the findings are of particular concern to the Interior Department since they go "close to the heart" of the 10-year-old class-action, "Cobell v. Kempthorne," formerly known as Cobell v. Norton. The class action was filed on June 10, 1996, in U.S. District Court for the District of Columbia to force the federal government to account for billions of dollars belonging to approximately 500,000 American Indians and their heirs, and held in trust since the late 19th century. The case involves royalties for farming, grazing, mining, logging and other economic activities on tribal lands. It 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. At present, the case involves about 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. Mr. Devaney wrote that the "seriousness of this conduct on the part of the OST senior management is exacerbated by the nature of the contract, the sensitivity of the work involved, the level of the OST officials' positions and the mission of OST." For more details, contact: (1) Elouise Cobell, Blackfeet Reservation Development Fund, Inc., PO Box 3029, 101 Pata Street, Browning, MT 59417, E-mail: info@indiantrust.com, Web site: http://www.indiantrust.com. (2) The Committee on Indian Affairs, Phone: 202-224-2251, Web site: http://indian.senate.gov;and (3) House Resources Committee, Phone: 202-225-2761, Web site: http://resourcescommittee.house.gov. KAVA KAVA: Settlement Hearing of Calif. Lawsuit Set August 11 ------------------------------------------------------------- Judge Emilie H. Elias of the Los Angeles Superior Court will hold a fairness hearing on the proposed $717,031 settlement of the class action "In re Kava Kava Litigation" on Aug. 11, 2006, 9:00 a.m. The trial will be at Department 308 of the Superior Court of California for the County of Los Angeles, 600 South Commonwealth Avenue, Los Angeles, California 90005. Deadline to file for exclusion and objection was July 14, 2006. The settlement covers all persons in California who purchased products containing the herb Kava Kava between March 14, 1998, and Dec. 31, 2005. Under the settlement, the court shall enter a permanent injunction requiring each settling defendant to provide specific product warnings on all Kava Products that the respective settling defendant makes available for sale in the State of California or makes available for sale to any third party whom settling defendants know will offer Kava Products for sale in the State of California. In summary, the warnings pertain to the alleged risk of liver problems associated with Kava Product use, among other warnings. The settling defendants have also agreed to make settlement payments totaling $717,031, from which two charitable contributions, together totaling at least $100,000, will be made to two organizations agreed upon by the settling parties and approved by the Court. The class counsel will apply for attorneys' fees and expenses not to exceed $520,531. This amount will not fully reimburse Class Counsel for their fees and costs. In addition, class counsel will ask the court to award each of the representative plaintiffs $500 in recognition of the services provided for the class in this lawsuit. The court preliminarily approved the settlement on April 27, 2006. In 2002, cases were filed against certain entities that allegedly manufactured, distributed and/or sold products containing "kava kava" or "piper methysticum" without adequately warning consumers of alleged risks of liver damage. These actions were subsequently consolidated by the Los Angeles Superior Court into: "In re Kava Kava Litigation, Case No. BC 269717." For more information, contact: (1) defendants' notice counsel, Amy P. Lally, Sidley Austin LLP, 555 West Fifth Street, Suite 4000, Los Angeles, CA 90013; or (2) co-lead class counsel Christopher M. Burke of Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 655 West Broadway, Suite 1900 San Diego, CA 92101, Phone: 619- 231-1058); or (3) David R. Scott and Arthur L. Shingler III Scott+Scott, LLC, 108 Norwich Avenue, Colchester, CT 06415, Phone: 619-233-4565. MEDIA COMPANIES: Faces California Labor Violations Lawsuit ---------------------------------------------------------- Twelve reality-TV writers, assisted by the Writers Guild of America, west, filed a class action in the Superior Court of California on July 7, charging eight television networks and production companies with gross violations of California's labor laws governing payment of overtime, wages, and meal periods. "These violations of California law are no mere accounting errors," said WGAw president Daniel Petrie Jr. "They are deliberately designed to deny these writers the basic rights and legal protections of fair wages, overtime, and a meal break. Unfortunately, those cases are not unique. It is but one example of the pervasive conditions we have found in reality television productions-and it underscores why so many reality writers and editors have come to the Writers Guild seeking union representation." The writers who brought the suit worked on such reality shows as The Bachelor, The Bachelorette, Are You Hot?, The Two Timer, The Will, The Starlet, and The Real Gilligan's Island. They were given such various job titles as Assistant Story Editor, Story Assistant, Story Editor, Story Producer, Segment Producer, Supervising Story Producer, Producer, and Senior Producer. Their complaint charges production companies, and networks: -- Next Entertainment, -- Telepictures Productions, -- Syndicated Productions, Inc., and -- Dawn Syndicated Productions, and -- American Broadcasting Co., -- CBS Broadcasting, -- WB Broadcasting Network, and -- Turner Broadcasting System with failure to pay overtime, willful falsification of or failure to maintain payroll records, and the chronic failure to afford meal periods required by law. The suit also seeks class-action status on behalf of the plaintiffs and others employed on these programs. According to the suit, The Bachelor and the other shows established a flat weekly rate for an 84-hour work week. Regardless of the number of hours employees worked, they allegedly received only the flat weekly rate, even when the law requires that they receive time-and-a-half after 40 hours and double-time after 80 hours. In California, employers are required to calculate an employee's hourly rate by dividing 40 hours into the weekly rate. The suit alleges that once they were hired, the 12 writers were required to falsify their time cards, either by simply writing the term "Worked" across the card or by entering predetermined start and end times for each day of the week. In fact, the suit notes, the employees worked far in excess of 40 hours per week during virtually every week of their employment but never received any premium overtime pay. "The entertainment industry established basic decent working conditions and compensation standards decades ago," Mr. Petrie noted. "What is happening here harkens back to the conditions experienced in the early 20th century. The companies falsified the hour rates on their pay stubs to reflect that overtime had been paid when it hadn't. To add insult to injury, they refused to give meal periods to writers when they were working 10-, 12-, and 20-hour days, six or seven days a week. "These are major production companies and networks with financial and creative control who should be ashamed to have talented writers with a de facto hourly pay of less than $10 per hour, with no overtime, no meal periods, no pension and health, and no residuals. It's time to put an end to these conditions." The Writers Guild of America, west represents writers in the motion picture, broadcast, cable, and new media industries in both entertainment and news. The union conducts numerous programs, seminars, and events throughout the world on issues of interest to, and on behalf of, writers. The suit is filed in Superior Court of California, County of Los Angeles. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?ea8 Plaintiffs in the suit are Harmon T. Sharp, III, Troy Devolld, Sarah Levine, Michel M. Gara, Eduardo Penna, Emily Sinclair, J., Ryan Stradal, Kevin Thomas, Thomas L. Hietter, Nicole L. Hedlund, Christian T. Huber, and Brian Gibson. Representing them are Anthony R. Segall and Emma Leheny at Rothner, Segall & Greenstone, 510 South Marengo Ave. Pasadena, California 91101-3115, Phone: (626) 796-7555, Fax: (626) 577- 0124. NORBORD INC: Continues to Face OSB Antitrust Lawsuits in Pa. ------------------------------------------------------------ Norbord Inc. and seven other North American oriented strand board producers remained defendants in several lawsuits filed in the U.S. District Court for the Eastern District of Pennsylvania. Each of the lawsuits alleges that seven North American OSB producers violated U.S. antitrust laws by allegedly agreeing to fix prices and reduce the supply of OSB from June 1, 2002 through the present. Sawbell Lumber Co., Norwood Sash & Door Manufacturing Co., Columbare Inc., West Lumber Co., and Frontier Lumber Co. Inc. are plaintiffs in five lawsuits (Class Action Reporter, March 7, 2006). The plaintiffs seek to have the cases certified as class actions. One group of plaintiffs seeks to certify a class of persons and entities that purchased OSB in the U.S. directly from any of the named North American OSB producers between June 1, 2002 and the present. Other plaintiffs seek to certify one or more classes of persons and entities that purchased OSB in various states and the District of Columbia indirectly between June 1, 2002 and the present. Two of the suits are: (1) "New Deal Lumber & Millwork Co. Inc. v. Louisiana- Pacific Corporation, et al., Case No. 2:06-cv-00971-PD" (2) "Frontier Lumber Co. Inc. v. Louisiana-pacific corporation, et al., Case No. 2:06-cv-00920-PD" Contact information: Robin Lampard, Vice President, Treasurer: Phone: (416) 643-8843, E-mail: robin.lampard@norbord.com or Roberta D. Liebenberg of Fine, Kaplan And Black, 1835 Walnut Street, 28th Floor, Philadelphia, PA 19103, Phone: 215-567-6565, Fax: 215-568-5872, E-mail: rliebenberg@finekaplan.com. OHIO: Youngstown Renews Bid to Intervene in Mahoning Jail Suit -------------------------------------------------------------- Youngstown re-filed its intervention in a class action over operations at Mahoning County jail on July 27, according to Vindy.com. In March 2005, Judge David D. Dowd Jr. found that the lockup was overcrowded and unsafe. To avoid jail overcrowding, Judge Dowd, Judge Dan A. Polster and U.S. 6th Circuit Court of Appeals Judge Alice M. Batchelder set plans to issue orders concerning possible inmate releases. However, the City of Youngstown opposed any existing or future prisoner release orders and subsequently filed an earlier motion to intervene in the case. Federal judges rejected the attempt on the city's failure to file a legal motion setting forth a claim or defense for which intervention is sought. The second intervention recently filed included a resolution allowing the city law department to oppose release of prisoners that judges have ordered held in the jail. Case Background The suit was filed on Nov. 14, 2003 against the County of Mahoning, Dave Ludt, Edward J. Reese, Randall A. Wellington, and Vicki Allen Sherlock. Named as plaintiffs are James Joseph Mancini, Joshua Baird, Kevin Whitacker, Leland Scott, Maurice Barnes, Mike Hamad, Nathaniel Roberts, and Rodney Gray The suit is "Roberts, et al. v. County of Mahoning, Ohio, A Local Government Entity, et al., Case No. 4:03-cv-02329-DDD," filed in the U.S. District Court for the Northern District of Ohio under Judge David D. Dowd, Jr. Representing the plaintiffs are Robert P. Armbruster and Thomas Kelley of Armbruster, Kelley, Kot, Honeck & Baker, Ste. 720, 159 South Main Street, Akron, OH 44308, Phone: 330-434-2113, Fax: 330-434-2158, E-mail: robattarm@aol.com and tkelley1@neo.rr.com. Representing the defendants is Sharon K. Hackett, Office of the Prosecuting Attorney, Mahoning County, 120 Market Street, Youngstown, OH 44503, Phone: 330-740-2330, Fax: 330-740-2366. Representing the Intervenor is Anthony J. Farris, City of Youngstown, Department of Law, 26 South Phelps Street, Youngstown, OH 44503, Phone: 330-742-8874, Fax: 330-742-8867, E- mail: ajf@cityofyoungstownoh.com. PHILIP SERVICES: Faces Suit Over Nauseating Odor From Ga. Plant --------------------------------------------------------------- About 75 people filed a lawsuit seeking class-action status in Fulton County Superior Court in Georgia over a nauseating odor coming from an industrial waste plant owned by the Philip Services Corp., The Associated Press reports. Residents, represented by attorney Scott Zahler, claimed in the suit that they have suffered migraine headaches, nosebleeds, rashes, nausea, sore throats, diarrhea, eye irritation, dizziness and respiratory problems over the odor. Residents first complained about the odor a month ago, saying the smell was like strong onions or garlic. Just last week, Dr. Steven Katkowsky, district health officer for the county declared a critical health incident after more than 200 people said the odor from plant sickened them. Meanwhile, commissioners in both Fulton and Fayette counties are trying to get the plant shut down until the situation is resolved. According to Morris Azose, the company's vice president of environmental affairs, in late June the company received four trucks carrying a chemical which is used to give an offensive smell to otherwise odorless chemicals. The chemical pvropyl mercaptan is added to warn people of the presence of a dangerous substance. The smell was so strong that the trucks were sent away, but not before one was unloaded, releasing the chemical into the air. Environmental Protection Division spokesman Kevin Chambers said that the summer heat and lack of rain have kept the odor in the air -- with reports of the smell as far as 15 miles away. Also named in the suit is propyl mercaptan maker AMVAC Chemical Corp., based in Axis, Alabama. AMVAC reportedly transported multiple shipments of MOCAP pesticide wash water to the Philip Services facility. Georgia Environmental Protection Division had originally indicated that the propyl mercaptan wash water came from a Bayer Corp. plant in Alabama. For more details, contact Scott Zahler of Goetz, Pierce & Zahler, Overlook III, Suite 1740, 2859 Paces Ferry Road, Atlanta, Georgia 30339, (DeKalb & Fulton Cos.), Phone: 770-431- 1107, Fax: 770-431-1101, Web site: http://goetzallenzahler.com. SONY MUSIC: N.Y. Lawsuit Over Music Royalties to Cover Ringtones ---------------------------------------------------------------- Rock bands The Allman Brothers Band and Cheap Trick has amended their lawsuit against Sony Music over royalties for downloaded music, the Billboard Radio Monitor reports. The new complaint expands the types of downloaded tunes referred to in the suit to include services like mobile phone ringtones. In April, Labaton Sucharow & Rudoff LLP and Probstein & Weiner sued Sony Music, alleging the company is not paying its recording artists 50% of the net licensing revenue it received in connection with the master recordings licensed to Apple and other third-party providers of digital downloads as it is contractually obligated to do (Class Action Reporter, April 30, 2006). Instead of paying its recording artists the approximate 30 cents of the 70 cents it receives for digital downloads, after deducting payments to music publishers, the suit alleges that Sony Music: -- wrongfully treats each download as a sale of a physical phonorecord (i.e. a CD or cassette tape); -- only pays on 85% of such "sales" (allegedly because of product breakage); -- deducts a 20% fee for container/packaging charges associated with the digital downloads although there are none; and -- reduces its payments by a further 50% "audiofile" deduction, yielding a payment to the Sony Music recording artist of approximately 4 1/2 cents per digital download. According to the complaint, The Allman Brothers Band, Cheap Trick and other members of the class action were damaged in the amount of millions of dollars through the loss of royalty payments, which Sony Music retained for its own benefit in breach of the applicable contractual record royalty provisions. The suit is "Allman et al v. Sony BMG Music Entertainment, Inc., Case No. 1:06-cv-03252-GBD," filed in the U.S. District Court for the Southern District of New York under Judge George B. Daniels. Representing the defendant is Jonathan M. Sperling of Covington & Burling LLP, 1330 Avenue of the Americas, New York, NY 10019, Phone: 212.841.1153, E-mail: jsperling@cov.com. Representing the defendants are Brian D. Caplan and Conor R. Crowley both of Labaton Sucharow & Rudoff LLP, 100 Park Avenue New York, NY 10017, Phone: (212) 907-0700 or (212) 907-0883, Fax: (212) 818-0477 or (212) 883-7083, E-mail: bcaplan@labaton.com or ccrowley@labaton.com. SUNNY LAKE: Recalls Dried Potatoes with Undeclared Sulfites ----------------------------------------------------------- Sunny Lake Trading, Inc. of Lexington Avenue, Brooklyn, New York, is recalling Dried Potato because it may contain undeclared sulfites. The company said people who have severe sensitivity to sulfites run the risk of serious or life-threatening reactions if they consume this product. The recalled Dried Potato, sold in six-ounce, clear, uncoded plastic bags, was sold in the Brooklyn, New York area. The recall was initiated after routine sampling by New York State Department of Agriculture and Markets food inspectors and subsequent analysis of the product by Food Laboratory personnel revealed the presence of sulfites in packages of Dried Potato that did not have sulfites declared on the label. The consumption of 10 mg. of sulfites per serving has been reported to elicit severe reactions in some asthmatics. Anaphylactic shock could occur in certain sulfite-sensitive individuals upon ingesting 10 mg. or more of sulfites. No illnesses have been reported to date in connection with this problem. Consumers who have purchased Dried Potato should return it to the place of purchase. Consumers with questions may contact the company at 718-453-3838. UNITED STATES: Pre-1949 China Bondholders to Sue Rating Agencies ---------------------------------------------------------------- Several Florida-based bondholders are planning to launch a class action against credit rating agencies Standard & Poor's, Moody's and Fitch over their ratings of bonds issued by the People's Republic of China's Nationalist government between 1912 and 1942, according to EuroWeek. A group of 25 bondholders, led by an unnamed charitable foundation, claims the rating agencies failed to recognize that the country had defaulted on the bonds. According to them, by failing to change China's rating from A2/A-/A to Ba or Ca/SD/DDD or 'RD proposed,' and ignoring these defaults, the agencies misled investors. The security in question for the planned class action is the estimated $46.56 million (GBP25 million) Chinese Government Five Percent Reorganization Gold Loan that was issued in 1913 and linked to the prevailing market value of gold. According to the president of an Arizona-based financial advisory firm that is helping the bondholders, they believe that China's total defaulted obligations to U.S. bondholders are now worth $175 billion. Kevin O'Brien, president of Sovereign Advisers, pointed out that investors in sovereign PRC bonds, issued after 1949 should pay particular attention to the case. Since, according to him, the credit rating does not disclose the risk of litigation and the seizure of interest payments. Mr. O'Brien said that once the case gains class-action status bondholders would invite investors in Nationalist-era bonds from other countries to join it as co-plaintiffs. They plan to file the suit in the U.S. District Court for the Southern District of New York. He also pointed out that like the investors, the rating agencies should take particular interest in this matter, since they realize by now that the Chinese government rejects the successor government doctrine of settled international law. Previously, Sovereign Advisers argued that China's Communist government has a responsibility to honor debts raised by Chiang Kai-Shek's Kuomintang government. The firm cites that that the former Union of Soviet Socialist Republics settled the claims of British holders of defaulted pre-1917 bonds in 1986. It also cites that even the PRC itself settled pre-1949 claims with British bondholders in 1987. In 2005, Sovereign informed EuroWeek that the PRC was negotiating the claims of French bondholders of pre-1949 paper. The Nationalist government that issued these debts in question took refuge in Taiwan when the Communists gained control of Mainland China in 1949. However, proving that the bonds are Taiwan's responsibility poses quite a challenge for the PRC, since it regards the island as a renegade province of China rather than a sovereign nation that could have sovereign obligations, according to the report. Mr. O'Brien told EuroWeek that the Florida bondholders had several objectives in filing the case, which are: -- to stop the publication of China's phony credit rating; -- to recover payment of defaulted debt; and -- damages from the egregious acts of the ratings agencies. In addition, Mr. O'Brien also said that the class action, which will be filed sometime in October, would charge the agencies of: -- "foreknowledge of falsity"; -- "a reckless standard of care; -- "aiding and abetting circumvention of payment"; and -- "aiding and abetting the discriminatory payment of other creditors." Mr. O'Brien added that since the agencies were previously notified and given the ample opportunity to change their ratings for China they risked prosecution under the Racketeer Influenced Corrupt Organizations Act. RICO is a U.S. federal law, which provides for extended penalties for criminal acts performed as part of an ongoing criminal organization. VISY INDUSTRIES: Trial on Price Fixing Suit to Start in 2007 ------------------------------------------------------------ Attorney Peter Jopling of the Australian Competition and Consumer Commission said he hopes to bring the lawsuit brought by the commission against Visy Industries to trial "in the early part of the second half of next year," the Australian Associated Press reports. The ACCC alleges Visy formed a price fixing cartel with its principal competitor Amcor, Ltd. between 2000 and late 2004 while supplying packaging throughout Australia, according to the report. Plaintiffs in a CA$300 million class action filed in April in federal court in Sydney on behalf of about 1,700 claim to have been damaged by price fixing and market sharing in the cardboard box industry between 2000 and 2005 (Class Action Reporter, April 12, 2006). Ben Slade at the Maurice Blackburn Cashman law firm estimated that businesses incurred damages at between $2 million and $3 million as a result of anti-competitive practices in the industry. Justice Peter Heerey adjourned the case against Visy for further directions on Dec. 8. According to a previous report by The Sydney Morning Herald, the main industries involved in the action include fruit and vegetable growers, and people in the meat, milk, beer and wine market. Named defendants in the ACCC suit are: -- Visy Industries Holdings Pty Ltd, -- Visy Industries Australia Pty Ltd, -- Visy Board Pty Ltd., and -- Amcor Ltd. Proceedings were also taken against Visy chairman Richard Pratt, chief executive Harry Debney and former general manger of the board Rod Carroll for allegedly being knowingly concerned in or party to the cartel. Amcor escaped prosecution after being granted immunity by the commission in return for information about the practice. But, it is facing one of the biggest class actions in Australian history over its alleged involvement. Maurice Blackburn: http://www.mauriceblackburncashman.com.au/. YAHOO INC: Faces N.J. Suit Over Ads in Spyware, Inferior Sites -------------------------------------------------------------- Attorney Ben Edelman initiated a class action in the U.S. District Court for the District of New Jersey against Yahoo, Inc., accusing it of placing advertisements on spyware-vendor and "low-quality" sites, the PCWelt reports. The suit, filed on behalf of Yahoo advertiser Crafts By Veronica as well as other advertisers, accuses Yahoo and its ad sales subsidiary Overture Services Inc. of charging higher rates for ads promised with "premium" placement, but then placing those ads on spyware-vendor sites and on Web pages with URLs that are misspellings of popular sites. The suit claims that Yahoo allowed its paid ads to be displayed via search queries generated by numerous spyware products. It also said that Yahoo uses its relationships with spyware driven ad-sites to deliberately inflate its revenues towards the end of each quarter. The lawsuit further accuses Yahoo of placing ads on sites run by Intermix Media and Direct Revenue LLC -- two companies identified in an April lawsuit by New York Attorney General Eliot Spitzer as distributors of spyware and unwanted pop-up adware, according to the report. In addition, Yahoo allegedly places ads on so-called "typosquatting" Web sites. Typosquatters register Web sites that have URLs that are common misspellings of popular Web brands, and many typosquatting sites that Yahoo placed premium ads have long lists of advertisements as their only content, the lawsuit says. According to Mr. Edelman, the suit seeks to recover the money advertisers paid to Yahoo for premium, "highly targeted," ad placement. Although plaintiffs' lawyers have not released an estimate of damages, it could run into the hundreds of millions of dollars, he said. The suit is "Crafts by Veronica v. Yahoo! Inc. et al., Case No. 2:06-cv-01985-JCL-MF," filed in the U.S. District Court for the District of New Jersey under Judge John C. Lifland, with referral to Judge Mark Falk. Representing the plaintiffs are Donna Siegel Moffa and Lisa J. Rodriguez both of Trujillo, Rodriguez & Richards LLP, 8 Kings Highway West, Haddonfield, NJ 08033, Phone: (856) 795-9002, E- mail: donna@trrlaw.com or lisa@trrlaw.com. Representing the defendant is Gregory Robert Haworth of Duane Morris LLP, 744 Road St., Suite 1200, Newark, NJ 07102-1997, Phone: (973) 424-2000, E-mail: grhaworth@duanemorris.com. New Securities Fraud Cases HOME SOLUTIONS: Aug. 21 Deadline Set to File as Lead Plaintiff -------------------------------------------------------------- Glancy Binkow & Goldberg LLP said that parties interested at becoming lead plaintiff in the shareholder lawsuit against Home Solutions Of America, Inc. have until Aug. 21, 2006 to seek for appointment. All persons and institutions that purchased securities of Home Solutions Of America, Inc. between April 11, 2006 and June 6, 2006, can move for lead plaintiff status. The complaint charges Home Solutions 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 Home Solutions' business and prospects caused the Company's stock price to become artificially inflated, inflicting damages on investors. Home Solutions offers recovery, restoration, rebuilding/remodeling and specialty interior services to commercial and residential properties in the U.S. The complaint alleges that during the class period defendants announced that the company had been awarded a contract valued at up to $20 million to provide infrastructure support for Hurricane Katrina rebuilding efforts, including contracts with Home Depot Inc. and American Renaissance Homes. Then, on June 6, 2006, a company-issued press release revealed that Home Solutions actually was lending up to $800,000 to American Renaissance Homes for "working capital," secured by its modular homes and land. The Complaint alleges that defendants' prior representations concerning the company's financial performance and prospects, based, among other things, on the American Renaissance Homes' contract, were false and misleading and concealed from the investors the company's actual performance and prospects. As a result of this news, Home Solutions' stock price plummeted 29.1%, or $2.80, to close on June 6, 2006 at $6.80, on extremely heavy trading volume of 26.2 million shares. For more details, contact Michael Goldberg, Esquire, of Glancy Binkow & Goldberg LLP, 1801 Avenue of the Stars, Suite 311, Los Angeles, California 90067, Phone: (310) 201-9150 or (888) 773- 9224, E-mail: info@glancylaw.com, Web site: http://www.glancylaw.com. JUNIPER NETWORKS: Brower Piven Announces Securities Suit Filing --------------------------------------------------------------- The law firm of Brower Piven, A Professional Association announced that a securities class action was commenced on behalf of shareholders who purchased, converted, exchanged or otherwise acquired the common stock of Juniper Networks, Inc. (JNPR) between Sept. 1, 2003 and May 22, 2006. The case is pending in the U.S. District Court for the Northern District of California against defendant Juniper Networks and one or more of its officers and/or directors. The action charges that defendants violated federal securities laws by issuing a series of materially false and misleading statements to the market throughout the Class Period, which statements had the effect of artificially inflating the market price of the company's securities. Interested parties may move the court no later than Sept. 15, 2006 to serve as a lead plaintiff for the proposed class. For more details, contact Brower Piven, The World Trade Center- Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-mail hoffman@browerpiven.com. PAR PHARMACEUTICALS: Ademi & O'Reilly Files Stock Fraud Suit ------------------------------------------------------------ Ademi & O'Reilly, LLP, filed a class action on behalf of purchasers of Par Pharmaceutical Companies Inc. securities during the period between April 29, 2004, and July 5, 2006. On July 24, 2006, Par disclosed that the SEC was conducting an informal investigation regarding its restatement of previous financial statements. According to the complaint, on July 5, 2006, Par admitted that it's previously issued financial results and financial statements materially overstated the Company's financial performance and that the Company's financial statements were not prepared in accordance with GAAP. On that date, Par issued a press release announcing that it would be restating its financial statements for fiscal years 2004, 2005 and the first quarter of 2006 to correct for "an understatement of accounts receivable reserves which resulted primarily from delays in recognizing customer credits and uncollectible customer deductions." The company reported that the effect of the restatement over reported periods will be $55 million, that the company would also write down $15 million in inventory and that its prior financial statements "should not be relied upon." In response to the announcement of the restatement, the price of Par stock dropped from $18.25 per share to $13.47 per share on extremely heavy trading volume. Interested parties must move the Court no later than Sept. 15, 2006 for appointment as lead plaintiff. For more details, contact Guri Ademi, Ademi & O'Reilly, LLP, Phone: 866/264-3995, E-mail: gademi@ademilaw.com, Web site: http://www.ademilaw.com. SUNTERRA CORP: Goldman Scarlato Files Securities Suit in Nev. ------------------------------------------------------------- Goldman Scarlato & Karon, P.C. announces that a lawsuit was filed in the U.S. District Court for the District of Nevada, on behalf of persons who purchased or otherwise acquired publicly traded securities of Sunterra Corp. between April 15, 2003 and June 22, 2006. The lawsuit was filed against Sunterra and certain officers and directors. The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Specifically, the complaint alleges that Defendants issued materially false and misleading financial results for the fiscal years ended Dec. 31, 2002, to Sept. 30, 2005 and for the first quarter ended Dec. 31, 2005. On March 27, 2006, the Company announced that it had terminated Grant Thornton as its independent auditor. On April 10, 2006, Grant Thornton indicated in a letter to the SEC that it disagreed with Sunterra's statements regarding its termination. Specifically, the letter indicated that Grant Thornton had received an email from a former employee alleging accounting improprieties in the company's European operations, which was a reportable event. On May 3, 2006, Sunterra 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. Then on June 22, 2006, the company announced that it had placed its CEO on administrative leave pending the completion of the company's investigation into its accounting practices. Interested parties may move the Court no later than Sept. 11, 2006 to serve as a lead plaintiff for the Class. For more details, contact Mark S. Goldman, Esq. of The Law Firm of Goldman Scarlato & Karon, P.C., Phone: 888-753-2796, E-mail: info@gsk-law.com. VONAGE HOLDINGS: Kirby McInerney Announces Stock Suit Filing ------------------------------------------------------------ The law firm of Kirby McInerney & Squire, LLP, announces that a class action was commenced in the U.S. District Court for the District of New Jersey on behalf of all purchasers of Vonage Holdings Corp. common stock pursuant to or traceable to the company's May 23, 2006 Initial Public Offering. This claim is also being brought on behalf of Vonage customers who purchased or otherwise acquired Vonage common stock through the Vonage Directed Share Program. The complaint charges Vonage and certain of its officers and directors with violations of the U.S. Securities Act of 1933. Vonage is a leading provider of broadband telephone services with over 1.6 million subscriber lines as of April 1, 2006. The complaint alleges that, in connection with the company's IPO, defendants failed to disclose inter alia, that: -- Vonage's technology platform experienced problems carrying telephone data over the networks of certain internet service providers; and -- Vonage's voice-over-Internet protocol (VoIP) technology did not properly allow facsimile transmissions. Immediately following the IPO, shares of Vonage plunged from the offering price of $17.00 per share to close, on May 24, 2006, at $14.85 per share, a loss of $2.15, or 12.6 percent, on concerns about the Company's ability to compete in the market place. Following these concerns, shares of Vonage continued to fall on news that serious technical and logistical issues plagued the company's Directed Share Program. In the seven days after the IPO, shares of Vonage declined over 30 percent. Interested parties must move the Court no later than August 1, 2006 to serve as lead plaintiff in the case. For more details, contact Ira M. Press and Frank Loya of Kirby McInerney & Squire, LLP, Phone: (212) 317-2300 and (888) 529- 4787, E-mail: floya@kmslaw.com and ipress@kmslaw.com, Web site: http://www.kmslaw.com. ZALE CORP: Federman & Sherwood Announces N.Y. Stock Suit Filing --------------------------------------------------------------- Federman & Sherwood announces that on July 19, 2006, a class action was filed in the U.S. District Court for the Southern District of New York against Zale Corp. The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material misrepresentations to the market which had the effect of artificially inflating the market price. The class period is from Feb. 18, 2005 through May 5, 2006. Interested parties may move the court no later than Sept. 18, 2006, to serve as a lead plaintiff for the class. For more details, contact William B. Federman of Federman & Sherwood, 120 N. Robinson, Suite 2720, Oklahoma City, OK 73102, Phone: (405) 235-1560, Fax: (405) 239-2112, E-mail: wfederman@aol.com, Web site: http://www.federmanlaw.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 publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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. * * * End of Transmission * * *