/raid1/www/Hosts/bankrupt/CAR_Public/060808.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 8, 2006, Vol. 8, No. 156
Headlines
ALASKA: School Faces Lawsuit Over Alleged SPED Laws Violations
AMEDISYS INC: Settles Securities Fraud Suit in La. for $300T
AMERUS GROUP: Continues to Face Consumer Fraud Suit in E.D. Pa.
APPLE COMPUTER: Faces Suit Over Back-Dated Stock Option Grants
ASSOCIATED ESTATES: Seeks Judgment for Suredeposit Suit in Ohio
ATMEL CORP: Faces Lawsuit Over Back-Dated Stock Option Grants
COMPUCREDIT CORP: Continues to Face N.C. Consumer Fraud Lawsuit
COMPUTER COMPANIES: Accused of Violating California Labor Laws
DELL COMPUTER: Chinese Consumers to Sue Over Processor Switch
DIOCESE OF COVINGTON: Plaintiff Attorney Seeks Part of $84M Deal
DHB INDUSTRIES: Provides Update on Securities Suit Settlement
DOLLAR GENERAL: Court Decertifies AL FLSA Violations Litigation
ENOGEX INC: Reaches Settlement in G.M. Oil Litigation in Okla.
ENOGEX INC: Seeks Dismissal of Well Owners' Royalties Suit
EQUIFAX CONSUMER: Class Status, Judgment Sought in Ga. CROA Suit
EQUIFAX INFORMATION: Fifth Amended CROA Complaint Filed in Ga.
FEDEX CORP: Calif. Court Sets February 2007 Trial for "Satchell"
FEDEX GROUND: Faces Owner-Operators' Classification Suit in Ind.
GRACELAND MEMORIAL: Suit Over Record Keeping Seeks Class Status
JAPAN: Hepatitis C-Infected Blood Recipient Breaks Anonymity
MARSH SUPERMARKETS: Hamilton Court Rules on Suit Over MSH Merger
NOBEL COURT: Buyers of La Jolla, Calif. Condos Allege Fraud
OKLAHOMA GAS: Customers File Suit in Okla. Over Electric Bills
PACER INT'L: Settles Truckers' Suit Over Earnings Deductions
PEROT SYSTEMS: IPO Suit Settlement Yet to Obtain Court Approval
PRINCIPAL FINANCIAL: Plaintiffs Dismiss Annuities Case in Iowa
ROYAL TOWER: Faces Suit Over Fire that Killed 17 Indian Workers
RYAN'S RESTAURANT: Charges $8.4M for Tenn. Suit in 2Q Results
SOLUTIA INC: Pension Plan Seeks Dismissal of ERISA Suits in Ill.
STATE STREET: Court Affirms Dismissal of Claims in "Summers"
SUNSHINE STAFF: Settles Fla. Litigation Over Healthcare Claims
TELLUS CORP: Canadian Court Refuses to Certify Access Fee Suit
TIME WARNER: N.Y. Court Approves $2.4B Stock Suit Settlement
TRAVEL COMPANIES: Leon County in Fla. Sues Online Travel Agents
U-HAUL CO: Calif. County Court Rejects Customers' Damage Claims
UNITED STATES: Plaintiffs File Brief in Phone Call Tax Lawsuit
UNITED STATES: D.C. Judge Dismisses Vets' Suit Against Pentagon
YANKEE CANDLE: Continues to Face Calif. Labor Violations Suit
New Securities Fraud Cases
FOXHOLLOW TECHNOLOGIES: Federman Sherwood Announces Suit Filing
JOS A BANK: Local Attorney Files Securities Fraud Suit in Md.
NPS PHARMACEUTICALS: Lerach Coughlin Announces Stock Suit Filing
RAMBUS INC: Johnson & Perkinson Files Securities Fraud Lawsuit
SCOTTISH RE: The Paskowitz Law Firm Files N.Y. Securities Suit
SCOTTISH RE: Schatz & Nobel, P.C. Announces Stock Suit Filing
*********
ALASKA: School Faces Lawsuit Over Alleged SPED Laws Violations
--------------------------------------------------------------
A group of parents initiated a class action in Palmer Superior
Court in Alaska over alleged violations of federal special-
education laws by the Matanuska-Susitna Borough School District,
the Anchorage Daily News reports.
The suit stemmed from a decision made by the School District to
restrict summer school for special-education students to six
days. It is seeking a court order to force the School District
to comply with the federal Individuals with Disabilities
Education Act, as well as compensatory damages for plaintiffs.
Under the Individuals with Disabilities Education Act, school
districts must offer extended school year services to disabled
students who require them, according to the report.
But Theresa Hennemann, the School District's attorney, said
there is no basis for the suit. While the district did limit
its formal summer school, or Extended School Year, she said, it
met its legal obligation to students who needed more than the
six days offered.
According to Sonja Kerr, the supervising attorney with the
Disability Law Center of Alaska and one of the attorneys
representing the parents, while not every child needs ESY, every
child has the right to have their Individual Education Program
team decide what they need.
This year, though, the district didn't allow the Individual
Education Program to work, as it should, Ms. Kerr added.
Instead, it created a unilateral policy that limited extended
school year services, regardless of individual needs, and then
directed the teams to write individual programs that meshed with
policy, she said.
For more details, contact:
(1) [Plaintiffs] Sonja D. Kerr of Kerr Law Offices, 5972
Cahill Ave., Suite 110, Inver Grove Heights, MN 55076,
Phone: (612) 552-4900, E-mail: info@kerrlaw.com, Web
site: http://www.kerrlaw.com;and
(2) [Defendant] Theresa Hennemann of Holmes Weddle &
Barcott, 701 West Eighth Avenue, Suite 700, Anchorage,
Alaska 99501-3408, (Third Judicial District), Phone:
907-274-0666, Fax: 907-277-4657, Web site:
http://www.hwb-law.com.
AMEDISYS INC: Settles Securities Fraud Suit in La. for $300T
------------------------------------------------------------
Amedisys, Inc. reached a $300,000 settlement in a consolidated
securities class action filed against it and certain of its
executive officers in the U.S. District Court for the Middle
District of Louisiana.
On Aug. 23 and Oct. 4, 2001, two class actions were filed, which
have since been consolidated, on behalf of all purchasers of the
company's common stock between Nov. 15, 2000 and June 13, 2001,
against the company and three of its executive officers.
In May of 2003, the trial court certified the class, and the
company appealed that decision. On Feb. 17, 2005, the U.S.
Court of Appeals for the Fifth Circuit vacated the trial court's
certification order and remanded the case for further
proceedings relative to class certification.
The parties agreed to a stay of all depositions and other
discovery, subject to certain limited exceptions, pending a
ruling on class certification.
The suits seek damages based on the decline in the company's
stock price following an announced restatement of earnings for
the fourth quarter of 2000 and first quarter of 2001, alleging
that the company's management knew or were reckless in not
knowing the facts giving rise to the restatement.
On June 28, 2006, the company entered into a settlement
agreement with the class representatives in the suits. On July
5, 2006, the court issued an order dismissing the consolidated
lawsuits.
The entire settlement amount of $0.3 million, inclusive of all
expenses and attorneys' fees, was covered by insurance.
The suit is "Unger, et al. v. Amedisys, Inc., et al., Case No.
3:01-cv-00703-JJB-SCR," filed in the U.S. District Court for the
Middle District of Louisiana under Judge James J. Brady.
Representing the plaintiffs is Jody E. Anderman of LeBlanc &
Waddell, LLP, 5141 Bluebonnet Blvd. Baton Rouge, LA 70809-5000
Phone: 225-768-7222.
Representing the company are James R. Swanson and Loretta G.
Mince of Correro Fishman Haygood Phelps Weiss Walmsley &
Casteix, 201 St. Charles Avenue, 46th Floor, New Orleans, LA
70170-4600 Phone: 504-586-5252, E-mail: jswanson@cfhlaw.com and
lmince@cfhlaw.com.
AMERUS GROUP: Continues to Face Consumer Fraud Suit in E.D. Pa.
---------------------------------------------------------------
AmerUs Group Co. and certain of its subsidiaries remain as
defendants in a consolidated consumer fraud class action filed
in the U.S. District Court for the Eastern District of
Pennsylvania, according to the company's Aug. 2, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended June 30, 2006.
These federal class actions were initially filed on behalf of
certain purchasers of the company's products:
Court Date of Filing
Central District of California April 7, 2005
District of Kansas April 25, 2005
Eastern District of Pennsylvania May 19, 2005
Middle District of Florida August 29, 2005
Eastern District of Pennsylvania November 8, 2005
Eastern District of Pennsylvania December 8, 2005
The lawsuits relate to the use of purportedly inappropriate
sales practices and products in the senior citizen market.
The complaints allege, among other things, the unauthorized
practice of law involving the marketing of estate or financial
planning services, the lack of suitability of the products, the
improper manner in which they were sold, including pretext sales
and non-disclosure of surrender charges, as well as other
violations of the state consumer and insurance laws.
Plaintiffs in the lawsuits seek compensatory damages,
rescission, injunctive relief, treble and/or punitive damages,
attorneys' fees and other relief and damages.
In November 2005, each of the aforementioned lawsuits as well as
certain other statewide class actions and individual lawsuits
were assigned to the U.S. District Court for the Eastern
District of Pennsylvania for coordinated and consolidated
pretrial proceedings.
Based in Des Moines, Iowa, AmerUs Group Co. (NYSE: AMH) --
http://www.amerus.com/-- is a holding company that through its
subsidiaries is primarily engaged in the business of marketing,
underwriting and distributing a range of individual life,
annuity and insurance deposit products to individuals and
businesses in 50 states, the District of Columbia and the U.S.
Virgin Islands.
APPLE COMPUTER: Faces Suit Over Back-Dated Stock Option Grants
--------------------------------------------------------------
The law firm of Keller Rohrback L.L.P. commenced a shareholder
lawsuit in the U.S. District Court for the Northern District of
California on behalf of nominal defendant Apple Computer, Inc.
and certain company executives and board members.
The complaint alleges that the defendants breached their
fiduciary duties and colluded with one another to:
(1) improperly backdate grants of Apple stock options to
various Apple executives in violation of the company's
shareholder-approved stock option plans;
(2) improperly record and account for the backdated stock
options in violation of Generally Accepted Accounting
Principles;
(3) improperly take tax deductions based on the backdated
stock options in violation of the Tax Code; and
(4) produce and disseminate to the company's shareholders
false financial statements and other U.S. Securities
and Exchange Commission filings that improperly
recorded and accounted for the backdated option grants
thereby concealing the improper backdating of stock
options.
Apple had previously announced an internal investigation related
to the issuance of certain stock option grants made between 1997
and 2001.
Recently, the company announced that although the investigation
is ongoing, the company had discovered additional evidence of
irregularities and in light of that, Apple would likely need to
restate its historical financial statements.
For more information on the case, contact Jennifer Tuato'o or
attorneys Juli Farris, Elizabeth Leland, Cari Campen Laufenberg,
Lynn Sarko or Gary Gotto, toll free at 800/776-6044, E-mail:
investor@kellerrohrback.com, Website:
http://www.seattleclassaction.com.
ASSOCIATED ESTATES: Seeks Judgment for Suredeposit Suit in Ohio
---------------------------------------------------------------
The Ohio Court of Common Pleas, Franklin County has yet to rule
on Associated Estates Realty Corp.'s motion asking summary
judgment in the class action filed against it by Melanie and
Kyle Kopp. The suit, which arose out of the company's
Suredeposit program, is seeking undetermined damages, injunctive
relief and class-action certification.
The Suredeposit program allows cash short prospective residents
to purchase a bond in lieu of paying a security deposit. The
bond serves as a fund to pay those resident obligations that
would otherwise have been funded by the security deposit.
Plaintiffs allege that the non-refundable premium paid for the
bond is a disguised form of security deposit, which is otherwise
required to be refundable in accordance with Ohio's Landlord-
Tenant Act.
Plaintiffs further allege that certain nonrefundable pet
deposits and other nonrefundable charges required by the company
are similarly security deposits that must be refundable in
accordance with Ohio's Landlord-Tenant Act.
On Jan. 15, 2004, the plaintiffs filed a motion for class
certification. The company subsequently filed a motion for
summary judgment. Both motions are pending before the court,
according to the company's Aug. 1, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period June
30, 2006.
Based in Richmond Heights, Ohio, Associated Estates Realty Corp.
(NYSE: AEC) -- http://www.aecrealty.com/-- is a fully
integrated multifamily real estate company engaged in property
acquisition, advisory, development, management, disposition,
operation and ownership activities in the U.S.
ATMEL CORP: Faces Lawsuit Over Back-Dated Stock Option Grants
-------------------------------------------------------------
The law firm of Stull, Stull & Brody commenced a shareholder
lawsuit against certain members of the board of directors and
certain executive officers of Atmel Corp.
The complaint alleges that certain current and prior officers
and directors manipulated the prices of executive and director
stock option grants a.k.a. back-dated stock options.
Such practice of awarding stock options to executives and
directors at artificially low prices is alleged to violate the
company's internal documents -- such as the company's stock
option plan -- as well as state laws governing officer and
director fiduciary duties and/or federal laws governing
securities and taxation.
In addition, the practice results in lower payments to
companies, results in those companies under-reporting
compensation expenses, and permits directors, officers and/or
executives to unjustifiably reap millions and billions of
dollars which should be disgorged and returned to the corporate
coffers thereby contributing to the financial health of the
company.
For more details, contact Tzivia Brody, Esq. of Stull, Stull &
Brody, 6 East 45th Street, New York, NY 10017, Phone: (800) 337-
4983, Fax: (212) 490-2022, E-mail: ssbny@aol.com, Web site:
http://www.ssbny.com.
COMPUCREDIT CORP: Continues to Face N.C. Consumer Fraud Lawsuit
---------------------------------------------------------------
CompuCredit Corp. and five of the company's subsidiaries remain
defendants in a purported class action, "Knox, et al. v. First
Southern Cash Advance, et al., No. 5 CV 0445," which was filed
in the Superior Court of New Hanover County, North Carolina,
according to the company's Aug. 2, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
June 30, 2006.
Plaintiffs allege that in conducting a so-called "payday
lending" business, certain of the company's Retail Micro-Lending
and Servicing segment subsidiaries violated various laws
governing consumer finance, lending, check cashing, trade
practices and loan brokering.
They also further allege that the company is the alter ego of
its subsidiaries and is liable for their actions. Plaintiffs
are thus seeking damages of up to $75,000 per class member.
Based in Atlanta, Georgia, CompuCredit Corp. (NASDAQ: CCRT) --
http://www.compucredit.com/-- is a provider of credit and
related financial services and products to or associated with
the underserved, or sub-prime, consumer credit market, as well
as to un-banked consumers.
COMPUTER COMPANIES: Accused of Violating California Labor Laws
--------------------------------------------------------------
United Employees Law Group, PC, in conjunction with several
other class action law firms, filed several overtime class
lawsuits across California on behalf of computer and IT
professionals against some of the nation's largest computer and
computer-related companies.
United Employees Law Group, PC has also filed lawsuits against
smaller computer companies that may have violated California
labor laws, including Oberman, Tivoli, Miller and Pickert (Case
No. BC399051).
Attorney Walter Haines commented, "Computer companies both large
and small in California must step up and pay the overtime wages
they are obligated to pay under the California Labor Code."
Although federal labor laws require overtime pay for eligible
employees who work more than 40 hours a week, in California
overtime pay must be calculated on a daily basis -- requiring
companies to pay for overtime after an eligible employee has
worked more than 8 hours in a single day.
Workers for these computer giants are alleging the companies are
denying legitimate overtime wages to computer programmers, code
writers, and other IT professionals by not correctly calculating
employees' overtime hours, in defiance of California Labor Laws.
State labor laws also require in 2006 that if a California
computer professional earns less than $47.81 per hour or the
annual salary equivalent of approximately $99,445, they may be
entitled to overtime pay. Claims for overtime may be asserted
for the past 3 and sometimes 4 years of employment.
Code writers or computer professionals who are not paid overtime
wages by a computer company, or any other California employer
can register their complaints with the United Employees Law
Group at their Website: http://www.collectovertime.com.
DELL COMPUTER: Chinese Consumers to Sue Over Processor Switch
-------------------------------------------------------------
Dell Computer Corp. could face a possible class action and other
lawsuits in China over its substitution of the Intel Conroe
T2300 processors with Intel Conroe T2300E in its laptops,
according to the People's Daily Online.
Chinese customers are accusing the U.S.-based P.C. giant of
fraud over the switch. A Shanghai court will hear a petition
against the company by an IT engineer. Beijing consumers are
preparing for legal action. Consumers in Anhui, Jilin provinces
are also considering taking legal action against the company.
When Zhang Min tried to upgrade his Dell laptop three days after
the delivery, the Shanghai consumer discovered that its
processor was an Intel T2300E, instead of the Intel T2300 as
agreed upon his order. He ordered his laptop via fax for
CNY8398.26 on June 15, which was then delivered on June 22.
He brought to light the processor issue on the Internet and
recorded company responses to his complaint. The Internet
postings prompted hundreds of Dell buyers to also check their
own laptops and they confirmed the same result.
In a letter to the consumers' association in Shanghai and
Zhejiang, the company apologized for the "ambiguity and
misunderstanding" caused by its failure to make corresponding
adjustments on the name of the processor.
The company repeatedly stressed to the press that the processor
replacement would not cause any loss to users either in terms of
price or performance.
It pointed out that the only difference between the T2300 and
the T2300E is that the former features a technology called
Virtualization (VT) while the later does not. VT, according to
the company is a processor feature intended only for future use.
However, consumers were not convinced by the company's
explanation. An I.T. professional pointed out that the
technology would certainly make a difference on prices.
There is a report that the replacement saves the company CNY300
for each computer. Dell or any other authoritative departments
have not confirmed that report, though.
Mr. Zhang's lawyer insisted that the company's failure to
perform the order and inform the change was commercial fraud and
thus it should be held liable for its actions. Their claim
includes the refund of the full amount of cost for the laptop,
the same amount for indemnity, and fees for the lawsuit. Dell
has apologized to Mr. Zhang and offered a return.
An expert on law in Shanghai believes that Mr. Zhang's appeal is
exemplary and that when consumers take the same action, the
company will be involved in a class action.
DIOCESE OF COVINGTON: Plaintiff Attorney Seeks Part of $84M Deal
----------------------------------------------------------------
Senior Judge John Potter will hear on Nov. 6, 2006 a request by
Covington attorney Brenda Dahlenburg Bonar to get part of an $84
million settlement of a suit against the Roman Catholic Diocese
of Covington, according to Associated Press.
The Judge has awarded plaintiff attorneys $18.5 million in fees
in May, but Stan Chesley, lawyer for the lead plaintiff, has
refused to give Ms. Bonar a share. Ms. Bonar argues that she is
entitled part of the fees for her efforts in the initiation,
prosecution and ultimate settlement of the case. The initial
two plaintiffs in the case that eventually became a class action
were her clients, as well as 13 of the original class members,
the report said.
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.
Sexual abuse victims and the Roman Catholic Diocese of
Covington, Kentucky subsequently reached an $84 million
settlement that the court initially approved in July 2005. On
Jan. 31, Special Judge John Potter finally approved the
settlement that covers 361 victims.
In recent developments, Judge Potter has kept his order that the
names of sexual abuse victims involved in the settlement be
turned over to prosecutors.
For more info, visit: http://www.covingtonkydioceseabuse.com/.
DHB INDUSTRIES: Provides Update on Securities Suit Settlement
-------------------------------------------------------------
DHB Industries Inc. has funded its approximately $22.3 million
portion of the previously reported $34.9 million cash settlement
to resolve class and derivative actions filed against it. The
company entered into a Memorandum of Understanding in July to
settle the suit currently pending in the U.S. District Court for
the Eastern District of New York.
The company made its payments using funds generated by a series
of transactions with David H. Brooks, the company's former
chairman and chief executive officer.
The remaining portion of the $34.9 million settlement is to be
paid for by the company's directors' and officers' liability
insurers through a buyout of the policies. The company paid the
funds into an escrow account, pending court approval of the
settlement, pursuant to the MOU.
Of the $22.3 million paid by the company, $7.5 million came from
the accelerated exercise by Mr. Brooks of a warrant to acquire 3
million shares of the company's common stock. The warrant's
original exercise price was $1.00 per share. Mr. Brooks paid an
elevated exercise price of $2.50 per share to generate funds for
the settlement.
The company sold an additional 3,007,099 shares of its common
stock at a price of $4.93 per share in a private placement
transaction to Mr. Brooks. It used the proceeds from this
transaction to fund the remaining $14.8 million.
The company also announced that pursuant to a release agreement,
Mr. Brooks resigned on July 31, 2006 from his position as a
member of the board of directors and from all positions held by
him in the company or any of its subsidiaries or affiliates.
The employment agreement between the company and Mr. Brooks was
accordingly terminated. The company agreed to pay Mr. Brooks
any unpaid salary through July 31, 2006, but Mr. Brooks is not
entitled to any additional compensation, accrued or unused
vacation, or unpaid expenses. This agreement also contains
general releases from the company to Mr. Brooks and from Mr.
Brooks to the company, which will become invalid if the
settlement of the litigation is not approved by the court.
Mr. Brooks's resignation and the termination of his employment
agreement, however, will stand, regardless of the court's
decision.
The proposed settlement of the class action and derivative
lawsuits remains subject to, among other things, review and
approval of the court.
If the settlement is not finally approved, the company is
required to return $4.5 million of the $7.5 million in proceeds
from Mr. Brooks's warrant exercise -- representing the
difference between the original exercise price of the warrants
and the elevated exercise price pursuant to the MOU -- and Mr.
Brooks will have the right to sell back to the company some or
all of the company's common stock he acquired in the private
placement at $4.93 per share.
Additionally, the company announced that it is exploring various
strategic alternatives to enhance shareholder value. There can
be no assurance that this process will result in any specific
transaction, nor does the company expect to disclose
developments with respect to the exploration of strategic
alternatives unless and until its board of directors has
approved a definitive transaction. At present time, there is
nothing material to report.
In 2005, DHB Industries and certain of its officers and
directors faced several securities class actions filed in the
U.S. District Court for the Eastern District of New York on
behalf of purchasers of the company's publicly traded securities
from April 21, 2004 to Aug. 29, 2005 (Class Action Reporter,
Dec. 23, 2005).
The complaints alleged that the company's body armor products
were defective and failed to meet the standards of its
customers, and that these alleged facts should have been
publicly disclosed.
The suit is "In Re DHB Industries, Inc. Derivative Litigation,
Case No. 2:05-cv-04345-JS-ETB," filed in the U.S. District Court
for the Eastern District of New York under Judge Joanna Seybert
with referral to Judge E. Thomas Boyle.
Plaintiffs are represented by:
(1) Thomas G. Amon of the Law Offices of Thomas G. Amon,
500 Fifth Avenue, Suite 1650, New York, NY 10110,
Phone: 212-810-2430, Fax: 212-810-2427, E-mail:
tamon@amonlaw.com;
(2) Jeffrey Fink, Brian Robbins and Steven Wedeking all of
Robbins Umeda & Fink, LLP, 610 West Ash Street, Suite
1800, San Diego, CA 92101, Phone: 619-525-3990, Fax:
619-525-3991, E-mail: jfink@ruflaw.com or
brobbins@ruflaw.com or swedeking@ruflaw.com; and
(3) Harry H. Wise, III, 500 Fifth Avenue, Suite 1650, New
York, NY 10110, Phone: 212-810-2430, Fax: 212-810-2427,
E-mail: hwiselaw@aol.com.
Representing the defendants are:
(i) George S. Canellos and Christopher Neil Gray both of
Milbank, Tweed, Hadley & McCloy LLP, One Chase
Manhattan Plaza, New York, NY 10005, Phone: 212-530-
5174 or 212-530-5127, Fax: 212-822-5174 or 212-822-
5127, E-mail: gcanellos@milbank.com or
cngray@milbank.com;
(ii) Mary K Dulka and Mark Holland both of Clifford Chance
U.S. LLP, 31 West 52nd Street, New York, NY 10019,
Phone: 212-878-3132 or 212-878-8000, Fax: 212-878-8375,
E-mail: mary.dulka@cliffordchance.com or
mark.holland@cliffordchance.com;
(iii) Jerome Gotkin of Mintz Levin, 666 Third Avenue, New
York, NY 10017, Phone: 212-935-3000, Fax: 212-983-3115,
E-mail: jgotkin@mintz.com;
(iv) Richard B. Harper, Leigh Michele Nemetz and Seth T.
Taube all of Baker Botts L.L.P., 30 Rockefeller
Plaza, New York, NY 10112, Phone: 212-408-2500, Fax:
212-259-2475 or 212-408-2501 or 212-259-2655, E-mail:
richard.harper@bakerbotts.com or
leigh.nemetz@bakerbotts.com or
seth.taube@bakerbotts.com;
(v) Michael S Kim of Kobre & Kim, 888 Seventh Avenue, New
York, NY 10019, Phone: 212-586-9150, Fax: 212-586-9600,
E-mail: michael.kim@kobrekim.com;
(vi) Matthew T. McLaughlin of Venable LLP, 405 Lexington
Avenue, 62nd Floor, New York, NY 10174, Phone: (212)
307-5500, Fax: (212) 307-5598, E-mail:
tmclaughlin@venable.com;
(vii) Robert Popeo, Adam L. Sisitsky and John F. Sylvia all
of Mintz Levin, One Financial Center, Boston, MA 02111,
Phone: 617-542-6000, Fax: 617-542-2241, E-mail:
rrpopeo@mintz.com or asisitsky@mintz.com or
jsylvia@mintz.com;
(viii) Roland G. Riopelle of Sercarz & Riopelle LLP, 152 West
57th Street, 24th Floor, New York, NY 10019, Phone:
212-586-4900, Fax: 212-586-1234, E-mail:
rriopelle@sercarzandriopelle.com; and
(ix) R. Stan Mortenson of Baker Botts L.L.P., 1299
Pennsylvania Avenue, NW, Washington, DC 20004, Phone:
202-639-7979, Fax: 202-585-1092, E-mail:
rstanmortenson@bakerbotts.com.
DOLLAR GENERAL: Court Decertifies AL FLSA Violations Litigation
---------------------------------------------------------------
Judge U. W. Clemon of the U.S. District Court for the Northern
District of Alabama issued a ruling decertifying a collective
action filed against Dollar General Corp., but allowed the 12
named plaintiffs in the lawsuit to proceed with their case. The
case originally consisted of approximately 2,500 individuals.
The company presently does not know whether the plaintiffs
intend to challenge the ruling.
On March 14, 2002, a suit "Brown, et al v. Dollar Gen Stores, et
al., Case No. 7:02-cv-00673-UWC", filed on March 14, was filed
in a federal court in Alabama, asserting claims under the Fair
Labor Standards Act (Class Action Reporter, Jan. 10, 2006).
The suit is a collective action against the company on behalf of
current and former salaried store managers claiming that these
individuals were entitled to overtime pay and should not have
been classified as exempt employees under the Fair Labor
Standards Act.
Plaintiffs sought to recover overtime pay, liquidated damages,
declaratory relief and attorneys' fees.
Representing the plaintiffs are Jere L. Beasley, W. Daniel Miles
III and Roman A. Shaul all of Beasley Allen Crow Methvin Portis
& Miles PC, PO Box 4160, Montgomery, AL 36103-4160, Phone: 1-
334-269-2343, Fax: 1-334-954-7555, E-mail:
jere.beasley@beasleyallen.com or dee.miles@beasleyallen.com or
roman.shaul@beasleyallen.com.
Representing the company are:
(1) Joel S. Allen and Ronald Manthey both of Baker &
McKenzie, 2300 Trammell Crow Center, 2001 Ross Avenue,
Dallas, TX 75201, Phone: 1-214-978-3000, Fax: 1-214-
978-3099, E-mail: joel.allen@bakernet.com or
ron.manthey@bakernet.com; and
(2) Keith D. Frazier and J. Trent Scofield both of Ogletree
Deakins Nash Smoak & Stewart, Suntrust Center, Suite
800, 424 Church Street, Nashville, TN 37219, Phone: 1-
615-254-1900, Fax: 1-615-254-1908, E-mail:
keith.frazier@odnss.com or trent.scofield@odnss.com.
ENOGEX INC: Reaches Settlement in G.M. Oil Litigation in Okla.
--------------------------------------------------------------
Enogex Inc., a subsidiary of OGE Energy Corp., has settled a
putative class action filed by G.M. Oil Properties, Inc. in the
District Court of Comanche County, Oklahoma, according to the
OGE Energy's Aug. 2, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended June 30,
2006.
The petition, served to the company on March 8, 2005, alleged
that the company exercises a monopoly power with respect to its
gathering facilities within the state of Oklahoma.
It further alleges that, due to the alleged monopoly power,
Enogex has caused damage to the plaintiff and other small gas
producers and marketers.
Pursuant to the settlement, a certain segment of gathering
pipeline was sold to G.M. Oil Properties with the company
recognizing a loss of less than $0.1 million. This case was
dismissed with prejudice and is now closed.
Oklahoma-based OGE Energy Corp. -- http://www.oge.com/-- is an
energy and energy services provider offering physical delivery
and management of both electricity and natural gas primarily in
the south central U.S.
ENOGEX INC: Seeks Dismissal of Well Owners' Royalties Suit
----------------------------------------------------------
Enogex Inc., Enogex Products Corp. and Enogex Gas Gathering,
L.L.C., subsidiaries of OGE Energy Corp., are seeking the
dismissal of a purported class action filed against them in the
District Court of Canadian County, Oklahoma.
On July 22, 2005, Enogex along with certain other unaffiliated
co-defendants was served with the suit, which had been filed on
Feb. 7, 2005 by Farris Buser and other named plaintiffs.
The plaintiffs' own royalty interests in certain oil and gas
producing properties and allege they have been under-compensated
by the named defendants, including the Enogex companies,
relating to the sale of liquid hydrocarbons recovered during the
transportation of natural gas from the plaintiffs' wells.
Plaintiffs' assert breach of contract, implied covenants,
obligation, fiduciary duty, unjust enrichment, conspiracy and
fraud causes of action and claim actual damages in excess of
$10,000, plus attorneys' fees and costs, and punitive damages in
excess of $10,000.
The Enogex companies filed a motion to dismiss, which was
granted on Nov. 18, 2005, subject to the plaintiffs' right to
conduct discovery and the possible re-filing of their
allegations in the petition against Enogex companies.
On Sept. 19, 2005, the co-defendants, BP America, Inc. and BP
America Production Co., filed a cross claim against Enogex
Products Corp. seeking indemnification and/or contribution from
Products based upon the 1997 sale of a third party interest in
one of Products natural gas processing plants.
The court-established date for the refiling of the allegations
in the petition was extended until May 17, 2006, and, on such
date, the plaintiffs filed an amended petition against the
Enogex companies.
The company expects to file a motion to dismiss the amended
petition on Aug. 2, 2006, according to the OGE Energy's Aug. 2,
2006 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended June 30, 2006.
Oklahoma-based OGE Energy Corp. -- http://www.oge.com/-- is an
energy and energy services provider offering physical delivery
and management of both electricity and natural gas primarily in
the south central U.S.
EQUIFAX CONSUMER: Class Status, Judgment Sought in Ga. CROA Suit
----------------------------------------------------------------
Plaintiff in a putative consumer class action filed in the U.S.
District Court for the Northern District of Georgia against
Equifax Consumer Services, Inc., filed motions for class
certification and partial summary judgment.
The suit, "Robbie Hillis v. Equifax Consumer Services, Inc. and
Fair Isaac, Inc., Case No. 1:04-cv-03400-BBM," was filed on Nov.
19, 2004, and asserts that defendants have jointly sold the
company's Score Power credit score product in violation of
certain procedural requirements under the Credit Repair
Organizations Act (CROA).
Plaintiff contends that the company and Fair Isaac are "credit
repair organizations" under CROA and that the transaction by
which he purchased Score Power was in violation of CROA and
fraudulent.
Plaintiff seeks certification of a class on behalf of all
individuals who purchased such services from defendants within
the five-year period prior to the filing of the complaint.
Plaintiff seeks unspecified damages, attorneys' fees and costs.
On May 23, 2005, the District Court denied defendants' partial
motions to dismiss the case and the defendants have answered,
denying all liability or wrongdoing. Discovery has concluded.
Plaintiff has filed motions for class certification and partial
summary judgment, according to the company's Aug. 2, 2006 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the period ended June 30, 2006.
The suit is "Hillis v. Equifax Consumer Services, Inc. et al.,
Case No. 1:04-cv-03400-BBM," filed in the U.S. District Court
for the Northern District of Georgia under Judge Beverly B.
Martin.
Representing the plaintiffs are:
(1) Michael Lee McGlamry, Charles Neal Pope, Wade H.
Tomlinson, Pope McGlamry Kilpatrick Morrison & Norwood,
925 The Pinnacle, P.O. Box 191625, 3455 Peachtree Road,
N.E., Atlanta, GA 31119-1625, Phone: 404-523-7706, E-
mail: efile@pmkm.com;
(2) Arthur R. Miller, Arthur R. Miller, P.C., Areeda Hall
225, Cambridge, MA 02138, Phone: 617-495-1278; and
(3) Michael C. Spencer or Melvyn I. Weiss, Milberg Weiss
Bershad & Schulman, One Pennsylvania Plaza, 48th Floor,
New York, NY 10119-0165, Phone: 212-594-5300.
Representing the defendants are:
(i) Craig Edward Bertschi, Audra Ann Dial, Cindy Dawn
Hanson, Kilpatrick Stockton, 1100 Peachtree Street,
Suite 2800, Atlanta, GA 30309-4530, Phone: 404-815-
6500, E-mail: cbertschi@kilpatrickstockton.com,
adial@kilpatrickstockton.com,
chanson@kilpatrickstockton.com; and
(ii) Kenneth M. Kliebard and Todd L. McLawhorn, Howrey, LLP,
Suite 3400, 321 North Clark Street, Chicago, IL 60610,
Phone: 312-595-2255, Fax: 312-264-0362, E-mail:
kliebardk@howrey.com or mclawhornt@howrey.com.
EQUIFAX INFORMATION: Fifth Amended CROA Complaint Filed in Ga.
--------------------------------------------------------------
Plaintiffs recently filed a Fifth Amended Complaint in the
action, "Steven G. Millett and Melody J. Millett v. Equifax
Information Services, LLC and Equifax Consumer Services, Inc."
The suit was originally filed on June 16, 2004 in the U.S.
District Court for Kansas, but was transferred to the U.S.
District Court for the Northern District of Georgia.
Filed on April 19, 2006, the complaint asserts among other
allegations, that Equifax Consumer Services, Inc. sold Equifax's
Credit Watch product in violation of the Credit Repair
Organizations Act. It asserted claims similar to those made by
plaintiff in the class action, "Robbie Hillis v. Equifax
Consumer Services, Inc. and Fair Isaac, Inc., Case No. 1:04-cv-
03400-BBM."
Plaintiffs seek certification of a class on behalf of all
individuals who purchased the CreditWatch product from Equifax
from Sept. 9, 2001 to the present, and unspecified damages,
attorney's fees and costs. Discovery has commenced.
The suit is "Millett, et al. v. Equifax Credit Information
Services, Inc. et al., Case No. 1:05-cv-02122-TWT," filed in the
U.S. District Court for the Northern District of Georgia, under
Judge Thomas W. Thrash Jr.
Representing the plaintiffs are:
(1) Leslie J. Bryan, Doffermyre Shields Canfield Knowles &
Devine, 1355 Peachtree Street, N.E., Suite 1600,
Atlanta, GA 30309, Phone: 404-881-8900, E-mail:
lbryan@dsckd.com
(2) Barry R. Grissom, Law Office of Barry R. Grissom,
Building 7-Suite 220, 7270 West 98th Terrace, Overland
Park, KS 66212-6166, Phone: 913-341-6616, Fax: 913-341-
4780
(3) B. Joyce Yeager, Yeager Law Firm, LLC, Building 7,
Suite 220, 7270 West 98th Terrace, Overland Park, KS
66212, Phone: 913-648-6673, Fax: 913-648-6921, E-mail:
jyeager@joyceyeagerlaw.com
Representing the company is Cindy Dawn Hanson, Kilpatrick
Stockton, 1100 Peachtree St., Ste. 2800, Atlanta, GA 30309-4530,
Phone: 404-815-6500, E-mail: chanson@kilpatrickstockton.com.
FEDEX CORP: Calif. Court Sets February 2007 Trial for "Satchell"
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
set a tentative February 2007 trial date for the racial
discrimination class action, "Satchell v. FedEx Express, Case
No. 03-2659," which was against FedEx Express, a unit of FedEx
Corp.
Filed on June 6, 2003, the suit alleges that the company has a
culture of hostility toward minorities and that the company
turns "a blind eye," allowing racial bias to infect performance
evaluation, promotion, compensation, and discipline decisions,
according to court documents.
Plaintiffs are seeking injunctive relief as well as money in the
form of front pay, back pay and compensatory and punitive
damages.
On Sept. 28, 2005, the court granted class certification to the
case, which is specifically alleging discrimination by the
company in the Western region of the U.S. against certain
current and former minority employees in pay and promotion.
The District Court's ruling on class certification is not a
decision on the merits of the plaintiffs' claim and does not
address whether the company will be held liable. Trial is
currently scheduled for February 2007.
The suit is "Satchell v. FedEx Express, Case No. 03-2659," filed
in the U.S. District Court for the Northern District of
California under Judge Susan Illston.
Representing the plaintiffs are:
(1) Guy B. Wallace of Schneider & Wallace, 180 Montgomery
Street, Suite 2000, San Francisco, Ca 94109, Phone:
415-421-7100, Fax: 415-421-7105, E-mail:
gwallace@schneiderwallace.com;
(2) Michael S. Davis of The Law Offices of Michael S.
Davis, 345 Hill Street, San Francisco, CA 94114, Phone:
(415) 282-4315, Fax: (415) 358-5576, E-mail:
msdlegal@comcast.net; and
(3) Waukeen Q. Mccoy of The Law Offices of Waukeen Q.
McCoy, 703 Market Street, Suite 1407, San Francisco, CA
94103, Phone: 415-675-7705, Fax: 415-675-2530, E-mail:
mccoylawsf@yahoo.com.
Representing the company are Gilmore F. Diekmann, Jr. and
Francis J. Ortman, III of Seyfarth Shaw, LLP, 560 Mission
Street, Suite 3100, San Francisco, CA 94105, Phone: 415-397-
2823, Fax: 415-397-8549, E-mail: gdiekmann@sf.seyfarth.com; and
fortman@sf.seyfarth.com.
FEDEX GROUND: Faces Owner-Operators' Classification Suit in Ind.
----------------------------------------------------------------
FedEx Ground Package System, Inc., a unit of FedEx Corp. is a
defendant in "In re FedEx Ground Package System, Inc.,
Employment Practices Litigation, MDL-1700," filed in the U.S.
District Court for the Northern District of Indiana.
The company was initially involved in numerous purported class
actions and other proceedings that claim that the company's
owner-operators should be treated as employees, rather than
independent contractors.
These matters include "Estrada v. FedEx Ground," a class action
involving single work area contractors that is pending in
California state court. Although the trial court has granted
some of the plaintiffs' claims for relief in Estrada -- $18
million, inclusive of attorney's fees, plus equitable relief --
the company expect to prevail on appeal.
Adverse determinations in these matters could, among other
things, entitle certain of the company's contractors to the
reimbursement of certain expenses and to the benefit of wage-
and-hour laws and result in employment and withholding tax
liability for FedEx Ground.
On Aug. 10, 2005, the Judicial Panel on Multi-District
Litigation granted the company's motion to transfer and
consolidate the majority of the class actions for administration
of the pre-trial proceedings by a single federal court.
That consolidated litigation is known as "In re FedEx Ground
Package System, Inc., Employment Practices Litigation, MDL-
1700," which was filed in the U.S. District Court for the
Northern District of Indiana under Judge Robert L. Miller, Jr.
For more details, visit http://www.fedexdriverslawsuit.com.
GRACELAND MEMORIAL: Suit Over Record Keeping Seeks Class Status
---------------------------------------------------------------
Attorneys Neil W. Hirschfeld and Ervin Gonzalez have asked a
Miami-Dade judge to certify as class action a case against
Graceland Memorial Park South in Miami, Florida, over alleged
poor record keeping and lax grave maintenance, the South Florida
Sun-Sentinel reports.
The suit, initially filed two years ago on behalf of the family
of the late Eloisa Garcia, was amended in Miami-Dade Circuit
Court on July 17 because lawyers said further investigation
showed the problem was much more pervasive.
Plaintiffs' attorneys said they've uncovered evidence that
thousands of graves at Graceland Memorial Park South in Miami
weren't properly recorded.
The suit alleges the company has shown disregard for its clients
and has no plans to properly plot gravesites, referring to a
large memorial wall that shows a lists of buried people but
without their exact locations.
Specifically, the suit claims 5,460 bodies buried at Graceland
Memorial Park South were not properly recorded, making it nearly
impossible for relatives to locate graves of the dead because of
"bungled" record-keeping and destroyed or nonexistent grave
markers.
Plaintiffs claim previous owners of Graceland Memorial paid a
$150,000 fine to the state in 1997 and promised to fix problems
at the cemetery. Instead, the suit claims, the cemetery kept
selling more plots and the situation worsened.
Graceland General Manager Yvette McPhillips said the charges are
baseless and said lawyers are distorting the facts. She said
the cemetery does know where Ms. Garcia's grave is, though she
would not say whether there was confusion over the location of
other graves, a report from the AP WorldStream said.
She asserted that plaintiffs' lawyers haven't provided any
evidence of abuses at Graceland.
The lawsuit is seeking to compensate the family and have every
grave in the memorial park surveyed and identified.
Graceland Memorial Park South is owned by Cincinnati-based
Alderwoods Group, North America's second-largest operator of
funeral homes and cemeteries, with some 579 funeral homes, 72
cemeteries and 61 properties with both funeral homes and
cemeteries.
Representing the plaintiffs are:
(1) Neal W. Hirschfeld of Greenspoon, Marder, Hirschfeld,
Rafkin, Ross & Berger, PA., Trade Center South, Ste.
700, 100 West Cypress Creek Road, Fort Lauderdale, FL
33309-2140, Phone: (954) 491-1120 or (888) 491-1120
(Toll Free), Fax: (954) 771-9264; and
(2) Ervin A. Gonzalez of Colson Hicks Eidson, 255 Aragon
Avenue, Second Floor, Coral Gables, Florida 33134,
Phone: (305) 476-7400, Fax: (305) 476-7444, E-mail:
ervin@colson.com.
JAPAN: Hepatitis C-Infected Blood Recipient Breaks Anonymity
------------------------------------------------------------
One of the 21 plaintiffs who filed a lawsuit at the Tokyo
District Court against the government and three pharmaceutical
companies, has finally revealed his name in court, the Yomiuri
Shimbun reports.
Painter Kaname Hirai, 55, from Niigata Prefecture broke his
anonymity as the trial in the case relating to hepatitis C virus
contamination of blood products concluded.
The plaintiffs, made up of patients and families of victims, are
demanding about $11,644,011.86 (JPY1.34 billion) in compensation
from the defendants, according to the report.
In 2004, a blood scandal brought down a Japanese pharmaceutical
company -- the now defunct Green Cross Corp. -- because of
accusations it failed to heat-treat imported blood products used
to make fibrogen, a blood-clotting drug, in the 1980s despite
widespread knowledge at the time that untreated blood could
transmit HIV (Class Action Reporter, Jan. 5, 2004).
The resulting scandal shook Japan's government and
pharmaceutical industry. About 1,800 hemophiliacs were
infected, and an estimated 500 have died. Similar class suits
are filed at five district courts.
Earlier, the Osaka District Court ordered the Japanese
government, Mitsubishi Pharma Corp. and its affiliate Benesis
Corp. to pay about $2,209,233.11 (JPY256.3 million) in
compensation to nine of 13 plaintiffs infected with the
hepatitis C virus via fibrinogen and blood products (Class
Action Reporter, June 26, 2006).
MARSH SUPERMARKETS: Hamilton Court Rules on Suit Over MSH Merger
----------------------------------------------------------------
The Hamilton Superior Court issued its ruling in the declaratory
judgment action that Marsh Supermarkets, Inc. filed in June
against MSH Supermarkets Holding Corp., MS Operations, Inc., a
subsidiary of MSH Supermarkets, Cardinal Paragon, Inc. and
Drawbridge Special Opportunities Advisors LLC.
In May 2006, Marsh signed a merger agreement with MSH
Supermarkets for an acquisition of the company at a price of
$11.125 per share of Marsh common stock. Cardinal and
Drawbridge subsequently indicated their interest in acquiring
Marsh for $13.625 per share, subject to completion of due
diligence. The court declared that, because of the merger
agreement, Marsh may not, under any circumstances, pursue any
proposal from Cardinal and Drawbridge.
"We appreciate the court's prompt response in this matter," said
Don E. Marsh, chairman of the board and chief executive officer
of Marsh Supermarkets, Inc. "We expect to file revised proxy
materials with the U.S. Securities and Exchange Commission as
quickly as possible so that we can call a special meeting of
shareholders for next month to consider and vote on the all cash
offer from MSH Supermarkets."
A copy of the court's order and judgment will be included as an
exhibit to a current report on Form 8-K the company intends to
file shortly.
In June, Marsh Supermarkets was named defendant in a purported
shareholder class and derivative action in the Marion Superior
Court, Marion County, Indiana over a May 2, 2006 agreement and
plan of merger with MSH Supermarkets Holding Corp., an affiliate
of Sun Capital Partners Group IV, Inc., a private investment
firm (Class Action Reporter, July 6, 2006).
The suit is filed by Irene Kasmer, on behalf of herself and all
others similarly situated and derivatively on behalf of Marsh
Supermarkets, Inc. against:
-- Don E. Marsh,
-- William L. Marsh,
-- David A. Marsh,
-- P. Lawrence Butt,
-- Charles R. Clark,
-- James K. Risk, III,
-- Stephen M. Huse,
-- J. Michael Blakley,
-- K. Clay Smith,
-- Catherine A. Langham,
-- John J. Heidt,
-- Sun Capital Partners, Inc. and
-- Marsh Supermarkets, Inc.
The complaint, purportedly filed on behalf of both the company
and a putative class of its shareholders, alleges that the
individual defendants breached their fiduciary duties to the
company and its shareholders, abused their ability to control
and influence the company, grossly mismanaged the company and
were unjustly enriched, each of which caused the company and its
shareholders to suffer damages.
Plaintiff alleges that Sun aided and abetted the foregoing acts
and transactions.
The complaint seeks:
-- a declaration that the lawsuit is properly maintainable
as a class action and certification of the plaintiff as
a class representative;
-- a declaration that the individual defendants have
breached and are breaching their fiduciary and other
duties to plaintiff and the other members of the
putative class of shareholders;
-- a declaration that the proposed transaction with MSH
Supermarkets is null and void;
-- an injunction prohibiting the company and its directors
from proceeding with, consummating or closing the
proposed transaction with MSH Supermarkets;
-- an injunction requiring the individual defendants to
explore third-party interest from other potential
acquirors and obtain the highest offer to acquire the
company;
-- an order rescinding and setting aside the proposed
transaction with MSH Supermarkets in the event that it
is consummated;
-- undisclosed compensatory damages and interest;
-- an award of costs and disbursements, including
reasonable attorneys' and experts' fees; and
-- such other and further relief as the court may deem
just and proper.
NOBEL COURT: Buyers of La Jolla, Calif. Condos Allege Fraud
-----------------------------------------------------------
The developer of condo units in Villa Vicenza, La Jolla in
California is facing a class action over allegations of fraud by
buyers of the units, according to the Union-Tribune.
Miami-based Nobel Court Development LLC is accused of
advertising all four of Villa Vicenza's floorplans -- which
include more than 400 condos -- as bigger than what they
actually are.
The suit is filed in San Diego Superior Court. It seeks to get
refund for the plaintiffs and an order to prevent the developer
from continuing to distribute its alleged fraudulent promotional
literature.
Potential losses to buyers of the one-and two-bedroom condos
range from $18,000 to roughly $92,000, estimates Patrick
Catalano, one of two lawyers representing the homeowners.
Mr. Catalano based the figures on selling prices that average
about $500 a square foot and discrepancies in unit sizes of as
much as 185 square feet.
Villa Vicenza was built as a rental complex in 1987 before being
converted to condos a year ago.
OKLAHOMA GAS: Customers File Suit in Okla. Over Electric Bills
--------------------------------------------------------------
Oklahoma Gas and Electric Co., a subsidiary of OGE Energy Corp.,
is a defendant in a purported class action filed in the District
Court of Creek County, Oklahoma, according to the company's Aug.
2, 2006 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended June 30, 2006.
On June 19, 2006, two OG&E customers brought a putative class
action, on behalf of all similarly situated customers
challenging certain charges on their electric bills.
Plaintiffs claim that OG&E improperly charged sales tax based on
franchise fee charges paid by its customers. They also
challenge certain franchise fee charges, contending that such
fees are more than is allowed under Oklahoma law.
Oklahoma-based OGE Energy Corp. -- http://www.oge.com/-- is an
energy and energy services provider offering physical delivery
and management of both electricity and natural gas primarily in
the south central U.S.
PACER INT'L: Settles Truckers' Suit Over Earnings Deductions
------------------------------------------------------------
Pacer International, Inc. subsidiaries engaged in local cartage
and harbor drayage operations settled a class action filed by
truck drivers in the Los Angeles Superior Court in California.
Interstate Consolidation, Inc., which was subsequently merged
into Pacer Cartage, Inc., and Intermodal Container Service,
Inc., are defendants in the "Albillo" case, which was filed in
July 1997.
The suit alleges breach of fiduciary duty, unfair business
practices, conversion and money had and received in connection
with monies, including insurance premium costs, allegedly
wrongfully deducted from truck drivers' earnings.
Plaintiffs and defendants entered into a Judge Pro Tempore
Submission Agreement in October 1998, pursuant to which they
waived their rights to a jury trial, stipulated to a certified
class, and agreed to a minimum judgment of $250,000 and a
maximum judgment of $1.75 million.
In August 2000, the trial court ruled in the subsidiaries' favor
on all issues except one, namely that in 1998 the subsidiaries
failed to issue to the owner-operators new certificates of
insurance disclosing a change in the subsidiaries' liability
insurance retention amount, and ordered that restitution of
$488,978 be paid for this omission.
Plaintiffs' counsel then appealed all issues except one, the
independent contractor status of the drivers, and the
subsidiaries appealed the insurance retention disclosure issue.
In December 2003, the appellate court affirmed the trial court's
decision as to all but one issue, reversed the trial court's
decision that the owner-operators could be charged for the
workers compensation insurance coverage that they voluntarily
elected to obtain through our subsidiaries -- a case of first
impression in California -- and remanded back to the trial court
the question of whether the collection of workers compensation
insurance charges from the owner-operators violated California's
Business and Professions Code and, if so, to determine an
appropriate remedy.
The subsidiaries sought review at the California Supreme Court
of this workers compensation issue, and the plaintiffs sought
review only of whether the company's subsidiaries' providing
insurance for the owner-operators constituted engaging in the
insurance business without a license under California law.
In March 2004, the Supreme Court of California denied both
parties' petitions for appeal, thus ending all further appellate
review.
As a result, the company had successfully defended and prevailed
over the plaintiffs' challenges to the subsidiaries' core
operating practices, establishing that:
-- the owner-operators were independent contractors and
not employees of the company's subsidiaries; and
-- the subsidiaries may charge the owner-operators for
liability insurance coverage purchased by the company's
subsidiaries.
Following the California Supreme Court's decision, the only
remaining issue was whether the subsidiaries' collection of
workers compensation insurance charges from the owner-operators
violated California's Business and Professions Code and, if so,
what restitution, if any, should be paid to the owner-operator
class. This issue was remanded back to the same trial court
that heard the original case in 1998.
In the fourth quarter of 2004, the trial court set the schedule
for the remand trial and ordered each of the parties to present
its case to the court by way of written submissions of the
affidavits, records and other documentary evidence and the legal
arguments upon which such party would rely in the remand trial.
Following these submissions, the court would then determine
whether to schedule and hear oral testimony and argument.
During the second quarter of 2005, and following extensions of
filing deadlines, the parties delivered their respective
evidentiary submissions and initial briefs to the court. The
court extended into the third quarter the deadlines for filing
final response and reply briefs.
During the second quarter of 2005, the company also engaged in
earnest discussions with the plaintiffs in an attempt to
structure a potential settlement of the case within the original
$1.75 million cap but on a claims-made basis that would return
to the company any settlement funds not claimed by members of
the plaintiff class.
The company believed that the ongoing cost of litigating the
final issue in the case -- including defending appeals that the
plaintiffs' counsel has assured would occur if the company were
to prevail in the remand trial -- would exceed the net liability
to the company of a final settlement on a claims-made basis
within the cap of $1.75 million.
During the second quarter, the company reached an agreement in
principle with the plaintiffs to settle the litigation on a
claims-made basis within the cap of $1.75 million. Based on the
settlement agreement, the company increased its reserve to the
full amount of the $1.75 million cap at the end of the second
quarter.
During the third quarter of 2005, the parties signed the
definitive documents reflecting the settlement agreement, and
the settlement agreement and related documents received the
preliminary approval of the court.
Pursuant to the settlement agreement, the company retained an
independent third party to administer the claims process. In
the first quarter of 2006, the court granted final approval to
the settlement. The claims process, payment calculations and
final settlement payments were concluded in the second quarter
of 2006.
The same law firm that brought "Albillo" filed a separate class
action against the same subsidiaries in March 2003 in the same
jurisdiction on behalf of a putative class of owner-operators
who are purportedly not included in "Albillo."
Each of the claims in the "Renteria" case, which has been stayed
pending full and final disposition of the remaining issue in
"Albillo," mirror claims in "Albillo," specifically that the
subsidiaries' providing insurance for their owner-operators
constitutes engaging in the insurance business without a license
in violation of California law and that charging the putative
class of owner-operators in "Renteria" for workers compensation
insurance that they elected to obtain through the subsidiaries
violated California's Business and Professions Code.
The company believes that the final disposition in its favor of
the insurance issue in "Albillo" precludes the plaintiffs from
re-litigating this issue in "Renteria."
Based in California, Pacer International, Inc. (NASDAQ:PACR) --
http://www.pacer-international.com/-- is a non-asset based
logistics provider in North America. It also provides truck
brokerage services.
PEROT SYSTEMS: IPO Suit Settlement Yet to Obtain Court Approval
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to issue an order with respect to the final approval of
the settlement of a consolidated securities class action against
Perot Systems, Corp., according to the company's Aug. 1, 2006
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended June 30, 2006.
In July and August 2001, the company, as well as some of its
current and former officers and directors and the investment
banks that underwrote the company's initial public offering, was
named as defendants in two purported class actions.
These lawsuits, "Seth Abrams v. Perot Systems Corp., et al." and
"Adrian Chin v. Perot Systems, Inc., et al.," were filed in the
U.S. District Court for the Southern District of New York.
The suits allege violations of Rule 10b-5, promulgated under the
U.S. Securities Exchange Act of 1934, and Sections 11, 12(a)(2)
and 15 of the Securities Act of 1933.
Approximately 300 issuers and 40 investment banks have been sued
in similar cases. The suits against the issuers and
underwriters have been consolidated for pretrial purposes in the
IPO Allocation Securities Litigation.
The lawsuit involving the company focuses on alleged improper
practices by the investment banks in connection with the
company's initial public offering in February 1999.
Plaintiffs allege that the investment banks, in exchange for
allocating public offering shares to their customers, received
undisclosed commissions from their customers on the purchase of
securities and required their customers to purchase additional
shares in aftermarket trading.
The lawsuit also alleges that the company should have disclosed
in its public offering prospectus the alleged practices of the
investment banks, whether or not the company was aware that the
practices were occurring. Plaintiffs are seeking unspecified
damages, statutory compensation and costs and expenses of the
litigation.
During 2002, the current and former officers and directors of
Perot Systems Corp. that were individually named in the lawsuits
referred to above were dismissed from the cases.
In exchange for the dismissal, the individual defendants entered
agreements with the plaintiffs that toll the running of the
statute of limitations and permit the plaintiffs to refile
claims against them in the future.
In February 2003, in response to the defendant's motion to
dismiss, the court dismissed the plaintiffs' Rule 10b-5 claims
against the company, but did not dismiss the remaining claims.
The company has accepted a settlement proposal presented to all
issuer defendants under which, it would not be required to make
any cash payment or have any material liability.
Pursuant to the proposed settlement, plaintiffs would dismiss
and release all claims against the company and its current and
former officers and directors, as well as all other issuer
defendants, in exchange for an assurance by the insurance
companies collectively responsible for insuring the issuers in
all of the IPO cases that the plaintiffs will achieve a minimum
recovery of $1 billion -- including amounts recovered from the
underwriters -- and for the assignment or surrender of certain
claims that the issuer defendants may have against the
underwriters.
Under the terms of the proposed settlement of claims against the
issuer defendants, the insurance carriers for the issuers would
pay the difference between $1 billion and all amounts, which the
plaintiffs recover from the underwriter defendants by way of
settlement or judgment.
On April 24, 2006, the court held a fairness hearing with
respect to the proposed settlement. The court has not yet
issued a ruling with respect to the proposed settlement.
For more details, visit http://www.iposecuritieslitigation.com/.
PRINCIPAL FINANCIAL: Plaintiffs Dismiss Annuities Case in Iowa
--------------------------------------------------------------
Plaintiffs in a class action filed against Principal Financial
Group, Inc., Principal Life Insurance Co. and Principal
Financial Services, Inc. in the U.S. District Court for the
Southern District of Iowa, dismissed their case without
prejudice.
The lawsuit, "Dykes et al v. Principal Life Insurance Company,
et al., Case No. 4:05-cv-00599-RP-TJS," was filed against the
defendants on Oct. 28, 2005.
The claims and allegations in the lawsuit were substantially the
same as those of the class action, "Sofonia v. Principal Life
Insurance Company et al., Case No. 4:05-cv-00040-RP-TJS" (Class
Action Reporter, May 26, 2006).
Filed on Dec. 23, 2004, "Sofonia" was filed in Iowa state court
against the defendants on behalf of a proposed class comprised
of the settlement class in the Principal Life sales practices
class action settlement, which was approved in April 2001 by the
U.S. District Court for the Southern District of Iowa.
"Sofonia" claims that the treatment of the settlement costs of
that sales practices litigation in relation to the allocation of
demutualization consideration to Principal Life policyholders
was inappropriate.
Demutualization allocation was done pursuant to the terms of a
plan of demutualization approved by the policyholders in July
2001 and Insurance Commissioner of the State of Iowa in August
2001.
In "Dykes" though the proposed class was limited to those
members of the settlement class in the Principal Life sales
practices class action settlement who did not own annuities and
who received demutualization consideration in the form of cash
under the plan of demutualization.
However, on March 17, 2006, plaintiff dismissed the case without
prejudice.
The suit is "Dykes et al v. Principal Life Insurance Company, et
al., Case No. 4:05-cv-00599-RP-TJS," filed in the U.S. District
Court for the Southern District of Iowa under Judge Robert W.
Pratt with referral to Judge Thomas J. Shields.
Representing the plaintiffs is E. Ralph Walker of Baudino Law
Group, PLC, 2600 Grand Avenue, Suite 300, Des Moines, IA 50312,
Phone: 515 282 1010, Fax: 282 1066, E-mail: walker@baudino.com.
Representing the defendants is Carl Micarelli of Debevoise &
Plimpton LLP, 919 Third Avenue, New York, NY 10022, Phone: 212
909 6000, Fax: 212 909 6836, E-mail: cmicarelli@debevoise.com.
ROYAL TOWER: Faces Suit Over Fire that Killed 17 Indian Workers
---------------------------------------------------------------
Royal Tower Construction Co. is facing a suit filed by workers
who survived a recent labor-camp fire in Bahrain, according to
The Peninsula.
The company is also facing potential criminal charges in
relation to the fire, which resulted to the death of 17 Indian
workers and injuries of nine others, India's Ambassador to
Bahrain Balkrishna Shetty said. According to him, related
investigations by the public prosecutor are now under way.
Regarding the class action, he said the case could lead to
payout of hundreds of thousands of Bahraini dinars by the
company to the workers. According to him, the workers had been
subjected to mental torture and were forced to work long hours
without any off days.
The Bahrain Tribune newspaper reports that the embassy has
presented a dossier on irregularities such as lack of safety and
basic comfort for workers in 30 companies.
RYAN'S RESTAURANT: Charges $8.4M for Tenn. Suit in 2Q Results
-------------------------------------------------------------
Ryan's Restaurant Group, Inc. said that its results for the
second quarter of 2006 included an $8.4 million charge for the
Tennessee class action that has been disclosed in the company's
prior filings with the U.S. Securities and Exchange Commission.
A $5.0 million charge related to this same litigation was made
during the second quarter of 2005, it said.
According to a May 12, 2006 Form 10-Q filing by Ryan's
Restaurant for the period ended March 29, 2006, the company
entered a joint stipulation for the settlement of a suit
"Walker, et al. v. Ryan's Family Steak Houses, Inc."
On Nov. 12, 2002, representative plaintiffs Erric Walker, Steve
Ricketts, and Vickie Atchley brought the lawsuit in the U.S.
District Court for the Middle District of Tennessee against
Ryan's Restaurant Group, Inc. f/k/a Ryan's Family Steak Houses,
Inc. The suit was filed on behalf of the named plaintiffs and
all other past and present similarly-situated restaurant
employees of Ryan's who were paid on an hourly basis in any
position -- including, but not limited to, servers, cooks, meat
cutters, dishwashers, and other hourly-paid employees. It
alleges that plaintiffs are owed unpaid wages and overtime pay
under the federal Fair Labor Standards Act.
Ryan's denies plaintiffs' allegations and denies any wrongdoing,
and has vigorously opposed the claims made against it. It said
the settlement is a compromise of disputed claims and defenses
and should not be construed as any evidence of wrongdoing
whatsoever by Ryan's.
Under the stipulation, the action and all claims for minimum
wages or overtime during the recovery period for all settlement
class members who participate in the settlement, whether based
on federal or state laws, will be dismissed on the merits with
prejudice, subject to the terms and conditions set forth in, and
approval by the court of, the joint stipulation.
In consideration for the release of claims by the settlement
class, Ryan's agrees, among others, to create a settlement fund
of no less than $2,000,000, and no more than $9,000,000, from
which eligible class members who timely file a claim form will
be paid.
The eligible class consists of present and former hourly-paid
restaurant employees -- including, but not limited to, servers,
cooks, meat cutters, dishwashers, and other hourly-paid
employees -- who were employed by Ryan's between Nov. 12, 1999
and Aug. 2, 2005.
Counsel for the defendant are Nexsen Pruet, LLC
(http://www.nexsenpruet.com/),and Constangy, Brooks & Smith,
LLC (http://www.constangy.com/). The class counsel is Stewart,
Estes & Donnell (http://www.sedlaw.com/).
SOLUTIA INC: Pension Plan Seeks Dismissal of ERISA Suits in Ill.
----------------------------------------------------------------
The U.S. District Court for the Southern District of Illinois
has yet to rule on a request by Solutia Inc. Employees' Pension
Plan to dismiss several purported class actions filed against it
over allegations that it violated Employee Retirement Income
Security Act of 1974.
Since October 2005, participants in the Solutia Inc. Employees'
Pension Plan filed three cases alleging that the Pension Plan:
-- violates ERISA prohibitions on reducing rates of
benefit accrual based on age;
-- results in the impermissible forfeiture of accrued
benefits under ERISA;
-- violates ERISA's present value calculation rules for
determining lump sum distributions; and
-- violates the minimum accrual requirements of ERISA.
The cases were:
-- "Davis, et al. v. Solutia, Inc. Employees' Pension
Plan" (filed in the U.S. District Court for the
Southern District of Illinois, Case No. 3:05-CV-00736-
DRH & PMF);
-- "Scharringhausen, et al. v. Solutia, Inc. Employees'
Pension Plan, et al." (originally filed in the United
States District Court for the Eastern District of
Missouri, Case No. 4:05-CV-02210-HEA and later
voluntarily dismissed and re-filed in the U.S.
District Court for the Southern District of Illinois,
Case No. 3:06-CV-00099-DRH & PMF); and
-- "Juanita Hammond, et al. v. Solutia, Inc. Employees'
Pension Plan" (filed in the U.S. District
Court for the Southern District of Illinois, Case No.
3:06-00139-DRH & PMF).
None of Solutia Inc. and its 14 U.S. subsidiaries, and, except
for the Solutia Inc. Employee Benefits Plans Committee, which
was named in the Scharringhausen case, no individual or entity
other than the Pension Plan, has been named as a defendant in
any of these cases.
The plaintiffs in each of these cases sought to obtain
injunctive and other equitable relief, including money damages
awarded by the creation of a common fund, on behalf of
themselves and the nationwide putative class of similarly
situated current and former participants in the Pension Plan for
whose pension benefits the Pension Plan is responsible.
The Pension Plan, and in the case of the Scharringhausen case,
the Employee Benefits Plans Committee, moved to dismiss all
three actions for plaintiffs' failure to exhaust administrative
remedies and failure to join necessary and indispensable
parties.
The Scharringhausen plaintiffs have moved to intervene in the
Davis action and to consolidate the Davis, Scharringhausen and
Hammond cases.
The Hammond plaintiff has moved to consolidate the three cases
and the Pension Plan has responded by agreeing that it should
not be required to defend itself against three cases.
The Davis plaintiffs have intervened in the Scharringhausen and
Hammond cases and moved to stay or dismiss those later-filed
cases, rather than consolidating them with the Davis case.
Plaintiffs' counsel in the Davis, Scharringhausen and Hammond
cases each have sought appointment as interim lead class
counsel. In response to these motions, on April 24, 2006 the
Scharringhausen plaintiffs voluntarily dismissed their case.
On June 2, 2006, the Hammond plaintiffs agreed to stay their
action pending exhaustion of administrative remedies with
respect to the claim that it violated the minimum accrual
requirements of ERISA.
Thereafter the Hammond and Davis plaintiffs also each withdrew
their respective motions to consolidate and to stay or dismiss.
In addition, the Hammond and Davis plaintiffs each withdrew
their motions to appoint interim class counsel and have advised
the court that they are cooperating in the representation of the
putative class. The Pension Plan's motions to dismiss in both
the Hammond and Davis cases remain pending.
For more details, contact:
(1) [Hammond] Eric L. Dirks of Stueve, Siegel, et al.,
Generally Admitted, 330 West 47th Street, Suite #250,
Kansas City, MO 64112, Phone: 816-714-7100, Fax: 816-
714-7101, E-mail: dirks@sshwlaw.com;
(2) [Davis] Matthew H. Armstrong of Schlichter, Bogard, et
al. - St. Louis, MO, Generally Admitted, 100 South
Fourth Street, Suite 900, St. Louis, MO 63102, Phone:
314-621-6115, Fax: 314-621-7151, E-mail:
marmstrong@uselaws.com;
(3) [Scharringhausen] Edward W. Ciolko of Schiffrin &
Barroway, LLP, 280 King of Prussia Road, Radnor, PA
19087, US, Phone: 610-667-7706, Fax: 610-667-7056, E-
mail: eciolko@sbclasslaw.com; and
(4) [Solutia Inc. Employees' Pension Plan] Robert J.
Golterman of Lewis, Rice, et al., 500 North Broadway,
Suite 2000, St. Louis, MO 63102-2147, Phone: 314-444-
7600, E-mail: rgolterman@lewisrice.com.
STATE STREET: Court Affirms Dismissal of Claims in "Summers"
------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit affirmed the
dismissal by the U.S. District Court for the Northern District
of Illinois of claims against State Street Bank and Trust Co. in
the suit, "Summers, et al. v. UAL Corporation ESOP, et al."
Certain participants in the UAL Corp. Employee Stock Ownership
Plan (ESOP) sued ESOP, ESOP Committee and State Street Bank and
Trust Co. in February 2003. The ESOP Committee appointed State
Street in September 2002 to act as investment manager and
fiduciary to manage the assets of the ESOP itself.
The suit seeks monetary damages in a purported class action that
alleges that ESOP Committee breached its fiduciary duty by not
selling UAL stock held by the ESOP commencing as of July 19,
2001 (Class Action Reporter, April 26, 2006).
In August 2005, a proposed settlement was reached between the
plaintiffs and the ESOP Committee defendants. The agreed upon
settlement amount is to be paid out of the $5.2 million in
insurance proceeds remaining after deducting legal fees.
State Street objected to the agreement during the required
fairness hearing before the District Court.
The court nevertheless approved the settlement in October 2005,
but also granted State Street's motion for summary judgment,
dismissing the underlying claims.
Both sides appealed, from the District Court's decision, and as
a result, no settlement funds have been disbursed pending a
ruling on appeal.
In June 2006, the U.S. Court of Appeals for the Seventh Circuit
affirmed the lower court's ruling dismissing the claims against
State Street and in effect rendering State Street's challenge to
the settlement agreement moot. Plaintiffs have until Sept. 25,
2006 to request a review by the Supreme Court.
The suit is "Summers, et al. v. UAL Corp. ESOP, et al., Case No.
1:03-cv-01537," filed in the U.S. District Court for the
Northern District of Illinois under Judge Samuel Der-Yeghiayan.
Representing the plaintiffs are:
(1) Elizabeth A. Fegan of Hagens Berman Sobol Shapiro, LLP,
60 West Randolph, #200, Chicago, IL 60601, Phone: (312)
762-9235, Fax: 312-762-9286, E-mail: beth@hbsslaw.com;
and
(2) Kenneth A. Wexler of Wexler Firm, LLP, 1 North LaSalle
Street, Suite 2000, Chicago, IL 60602, Phone: 312-346-
2222, E-mail: kawexler@wexlerfirm.com.
Representing the company is Randall J. Sunshine of Liner
Yankelevitz Sunshine & Regenstreif, LLP, 1100 Glendon Ave., 14th
Floor, Los Angeles, CA 90024, Phone: (310) 500-3500, E-mail:
rsunshine@linerlaw.com.
SUNSHINE STAFF: Settles Fla. Litigation Over Healthcare Claims
--------------------------------------------------------------
Sunshine Staff Leasing, Inc., along with multiple other
companies, reached an agreement to settle all claims by unpaid
healthcare providers and individuals with un-reimbursed
healthcare claims. The lawsuit was filed in the Tenth Judicial
Circuit of Highlands County, Florida.
AQMI Strategy Corp., an Orlando-based international consulting
and threat-neutralization firm headed by Frank L. Amodeo, was
engaged by Sunshine to resolve the case.
According to Frank L. Amodeo, AQMI president and chief
executive, "All the claimants have been satisfied. Even though
five of them filed their claim too late, we made a special
request to the court, asking to have them included in the final
distribution."
Mr. Amodeo said that a complete report regarding this case would
be published by the end of this year.
AQMI Strategy Corp. is a highly specialized international
consulting firm that develops and implements actionable
strategies to resolve complex, seemingly insurmountable global
issues.
Representing the plaintiffs is Robin Gibson of Gibson, Valenti &
Ashley, P.A., 212 East Stuart Avenue, Lake Wales, FL 33853-3713,
Phone: (863) 676-8584, Fax: (863) 676-0548, E-mail:
r.gibson@gvalawyers.com, Web site: http://www.gvalawyers.com
Representing the defendants is Tracy A. Marshall of
GrayRobinson, P.A., 301 East Pine Street, Suite 1400, P.O. Box
3068, Orlando, FL 32801, Phone: (407) 843-8880, Fax: (407) 244-
5690, E-mail: tmarshall@gray-robinson.com
For more information contact Woody Johnson, Executive Vice
President, AQMI Strategy Corporation, Phone: +1-407-454-5101, E-
mail: WJohnson@nexiastrategy.com.
TELLUS CORP: Canadian Court Refuses to Certify Access Fee Suit
--------------------------------------------------------------
Tellus Corp. said at its second-quarter report that a
Saskatchewan court in Canada declined to certify a suit filed
against the company and other communications companies over
their collection of system access fees.
A class action was brought on Aug. 9, 2004, under the Class
Actions Act of Saskatchewan against a number of past and present
wireless service providers including the company. The claim
alleges that each of the carriers is in breach of contract and
has violated competition, trade practices and consumer
protection legislation across Canada in connection with the
collection of system access fees. It seeks to recover direct
and punitive damages in an unspecified amount.
Similar proceedings have also been filed by, or on behalf of,
plaintiffs' counsel in other provincial jurisdictions. On July
18, 2006, the Saskatchewan court declined to certify the action
as a class action, but granted the plaintiffs leave to renew
their application in order to further address certain statutory
requirements respecting class actions.
The company believes that it has good defenses to these actions.
Should the ultimate resolution of these actions differ from
management's assessments and assumptions, a material adjustment
to the company's financial position and the results of its
operations could result.
A July story in Class Action Reporter stated that the court of
Queen's Bench Justice Frank Gerein denied class certification to
a lawsuit filed against SaskTel Mobility and four other Canadian
cellular telephone carriers by the Merchant Law Group of Regina
in 2004.
Judge Gerein ruled that several of the alleged causes of action
are not grounded in law, thus he declined to certify it as a
class action. He specifically noted in the ruling that the case
did not have a suitable representative plaintiff or plan for the
class action.
The suit stemmed from an investigation by the Toronto Star in
April 2004 claiming that mobile phone carriers stand to pocket
more than CA$800 million annually from the special fee, which
appears monthly on most wireless phone bills as a CA$6.95
charge, but can sometimes vary in value from region to region.
The suit alleges that a hefty "system access fee" charged
monthly to wireless customers had been misrepresented and
falsely advertised by wireless carriers.
The fee, which can add as much as 30 percent to the advertised
cost of some cell phone plans, is reportedly a wireless industry
creation not required by the government.
User agreements broadly describe the fee as a charge covering a
number of costs associated with the maintenance and expansion of
mobile phone networks, including government licensing fees and
related regulatory costs.
Named defendants in the suit were SaskTel Mobility, Bell
Mobility, Telus Mobility, Aliant Inc., Rogers Wireless Inc., and
Microcell Telecommunications Inc.
TIME WARNER: N.Y. Court Approves $2.4B Stock Suit Settlement
------------------------------------------------------------
The U.S. District Court for Southern District of New York
granted final approval to a $2.4 billion settlement of a
consolidated class action alleging that Time Warner, Inc. and
America Online Inc. inappropriately inflated advertising
revenues in a series of transactions.
As of July 31, 2006, 30 shareholder class actions have been
filed naming as defendants the company, certain current and
former executives of the company and, in several instances, AOL.
These lawsuits were filed in U.S. District Courts for the
Southern District of New York, the Eastern District of Virginia
and the Eastern District of Texas.
The complaints purport to be made on behalf of certain
shareholders of the company and allege that the company made
material misrepresentations and/or omissions of material fact in
violation of Section 10(b) of the U.S. Securities Exchange Act
of 1934, Rule 10b-5 promulgated thereunder, and Section 20(a) of
the Exchange Act.
Plaintiffs claim that the company failed to disclose AOL's
declining advertising revenues and that the company and AOL
inappropriately inflated advertising revenues in a series of
transactions.
Certain of the lawsuits also allege that certain of the
individual defendants and other insiders at the company
improperly sold their personal holdings of Time Warner stock,
that the company failed to disclose that the AOL-Historic Time
Warner Merger was not generating the synergies anticipated at
the time of the announcement of the merger and, further, that
the company inappropriately delayed writing down more than $50
billion of goodwill.
The lawsuits seek an unspecified amount in compensatory damages.
All of these lawsuits have been centralized in the U.S. District
Court for the Southern District of New York for coordinated or
consolidated pretrial proceedings -- along with the federal
derivative lawsuits and certain lawsuits brought under Employee
Retirement Income Security Act -- under the caption, "In re AOL
Time Warner Inc. Securities and 'ERISA' Litigation."
Additional lawsuits brought by individual shareholders have also
been filed, and the federal actions have been, or are in the
process of being transferred and/or consolidated for pretrial
proceedings.
The Minnesota State Board of Investment was designated lead
plaintiff for the consolidated securities actions and filed a
consolidated amended complaint on April 15, 2003, adding
additional defendants including additional officers and
directors of the company, Morgan Stanley & Co., Salomon Smith
Barney Inc., Citigroup Inc., Banc of America Securities LLC and
JP Morgan Chase & Co.
Plaintiffs also added additional allegations, including that the
company made material misrepresentations in its registration
statements and joint proxy statement-prospectus related to the
AOL-Historic Time Warner Merger and in its registration
statements pursuant to which debt securities were issued in
April 2001 and April 2002, allegedly in violation of Section 11
and Section 12 of the U.S. Securities Act of 1933.
On July 14, 2003, the defendants filed a motion to dismiss the
consolidated amended complaint. On May 5, 2004, the district
court granted in part the defendants' motion, dismissing all
claims with respect to the registration statements pursuant to
which debt securities were issued in April 2001 and April 2002
and certain other claims against other defendants, but otherwise
allowing the remaining claims against the company and certain
other defendants to proceed.
On Aug. 11, 2004, the court granted MSBI's motion to file a
second amended complaint. On July 30, 2004, defendants filed a
motion for summary judgment on the basis that plaintiffs cannot
establish loss causation for any of their claims, and thus
plaintiffs do not have any recoverable damages.
On April 8, 2005, MSBI moved for leave to file a third amended
complaint to add certain new factual allegations and four
additional individual defendants.
In July 2005, the company reached an agreement in principle for
the settlement of the case, which was brought on behalf of all
persons or entities who purchased, exchanged or otherwise
acquired publicly traded common stock of AOL Time Warner, Inc.,
and/or bought or sold options on AOL common stock during the
period Jan. 27, 1999 through Jan. 11, 2001, and/or purchased,
exchanged or otherwise acquired publicly traded common stock and
bonds of Time Warner and/or bought or sold options on Time
Warner common stock during the period Jan. 11, 2001 through and
including Aug. 27, 2002, and were damaged thereby.
The court granted initial approval to the settlement in
September 2005. Pursuant to the settlement, in October 2005,
Time Warner paid $2.4 billion into a settlement fund -- MSBI
Settlement Fund -- for the members of the class represented in
the action.
The court then issued an order dated April 6, 2006 granting
final approval to the settlement. The time to appeal that
decision has expired.
Under the deal, Time Warner will pay most of the settlement,
while its auditor, Ernst & Young LLP, will pay $100 million.
Claimants are estimated at 600,000.
The suit is "AOL Time Warner, Inc. Securities & 'ERISA'
Litigation, Case No. 02 Civ. 5575 (SWK)," filed in the U.S.
District Court for Southern District of New York under Judge
Shirley Wohl Kram.
For more details, contact AOL Time Warner, Inc. Securities
Litigation, c/o Gilardi & Co., Settlement Administrator, P.O.
Box 808061, Petaluma, CA 949475-8061, Phone: (877) 800-7852, E-
mail: aoltimewarnersettlement@gilardi.com, Web site:
http://www.aoltimewarnersettlement.com/.
TRAVEL COMPANIES: Leon County in Fla. Sues Online Travel Agents
---------------------------------------------------------------
Leon County in Miami, Florida initiated a lawsuit in the U.S.
District Court for the Southern District of Florida against
online travel Web sites, alleging that the firms are underpaying
taxes to Florida counties for brokering hotel rooms, The
Associated Press reports.
The suit, which is seeking class-action status, claims the
online travel agencies failed to pay Florida counties more than
$5 million in hotel room taxes.
Named defendants in the suit are:
-- Hotels.com, L.P.,
-- Hotwire, Inc.,
-- Cheap Tickets, Inc.,
-- Cendant Travel Distribution Services Group, Inc.,
-- Expedia, Inc.,
-- Internetwork Publishing Corp. (d/b/a Lodging.com),
-- Lowestfare.com, Inc.,
-- Maupintour Holding, LLC,
-- Orbitz, Inc.,
-- Orbitz, LLC,
-- priceline.com, Inc.,
-- Travelocity.com, Inc.,
-- Travelocity.com, L.P.
The suit alleges the travel sites buy room rentals from hotels
at a discounted rate, mark them up for resale to customers, who
pays the tax for the full rental price.
The travel agents, however, allegedly remit taxes based only on
the discount rate paid to the local hotel.
Similar lawsuits have been filed in other states, including
California, North Carolina and Ohio (Class Action Reporter,
April 4, 2006).
Representing Leon County is Scott Maddox of 4334 Piedmont Road,
Huntington, WV 25704-1833, Phone: (304) 272-3950.
U-HAUL CO: Calif. County Court Rejects Customers' Damage Claims
---------------------------------------------------------------
A Superior Court Judge in Santa Cruz County, California has
ruled that the two classes of plaintiffs that sued U-Haul Co. of
California and its parent, U-Haul International, Inc., for
allegedly improper business practices in connection with their
reservation system were entitled to no damages.
The lawsuit has been pending for approximately four years and
has been assigned, at various times, to a number of different
judges. The decision was entered by Judge Samuel Stevens of the
Santa Cruz County Superior Court after a two-week trial that
concluded in April of this year.
The plaintiffs, on behalf of a statewide class of customers who
rented or attempted to rent vehicles from U-Haul Co. of
California, had sought recovery of the $5 service fee charged in
connection with certain rental transactions. A final Judgment
has not yet been entered by the court.
In addition to denying any monetary relief, the court indicated
an intent to order U-Haul Co. of California to stop using the
term "confirmed reservation" in connection with its reservation
system, as currently constituted. A representative of U-Haul
Co. of California indicated that the company would carefully
review the court's decision and comply with the court's
directive or, if appropriate, modify certain current practices
to address the concerns noted by the court.
The spokesperson indicated that no decision would be made
regarding any appeal until a final judgment is entered and that
analysis was completed.
U-Haul(r) serviced-marked vehicles are rented to the public
through more than 15,000 company-owned rental centers and
independent dealers located throughout the U.S. and Canada.
More than 93,000 trucks, 80,000 trailers, and 33,000 towing
devices bear the U-Haul(r) service mark. In addition, there are
more than 1,000 U-Haul(r) storage facilities located throughout
the U.S. and Canada.
The suit is "Alan Rosenberg, et al., vs. U-Haul Co. of
California, U-Haul International, Inc., Case No. DV 144045,"
filed July 23, 2002.
UNITED STATES: Plaintiffs File Brief in Phone Call Tax Lawsuit
--------------------------------------------------------------
In briefs filed late in the U.S. District Court for the District
of Columbia, plaintiffs in a federal class action reiterated
charges that the IRS unlawfully devised refund procedures
without public input that will shortchange millions of
individuals and small businesses who unwittingly paid an illegal
federal excise tax on long distance phone calls for at least the
past eight years.
Attorneys for the plaintiffs urged denial of the government's
motion to dismiss the lawsuit and asked to court to certify as a
class the millions of individuals with low incomes and small
businesses that will be effectively denied the tax refund or
credit they are entitled to receive.
The plaintiffs in "Sloan, et al. v. United States of America,"
who seek to represent a class that includes individual and small
business taxpayers, call for an accounting and fair, efficient
and accurate restitution, with interest, to all taxpayers of the
tens of billions of dollars unlawfully exacted before the
Government acknowledged that the tax was illegal.
Among other authorities, they cite the findings of a study
commissioned by plaintiffs' counsel, and released Aug. 3, by
Robert Greenstein and other scholars at the nonprofit,
nonpartisan Center on Budget and Policy Priorities. The report
found ten million or more mostly low-income households would
fail to obtain the excise tax refund under the rules released by
the IRS on May 25 in IRS Notice 2006-50.
"Rather than addressing the very serious matters of fact and law
raised by our lawsuit, the government claims a federal court
lacks jurisdiction over this matter and raises other legal
technicalities to back-up its demand that our case be
dismissed," explained Jonathan Cuneo of Cuneo Gilbert & LaDuca,
LLP of Washington, DC, a co-lead attorney for the plaintiffs.
"After years of 'nickel and diming' everyone on their phone
bills, now the IRS plans to shortchange everyone and the
government is side-stepping the issues."
Among other arguments it makes for dismissing the Sloan suit,
the government is challenging the jurisdiction of federal
courts, and claims its sovereign immunity from lawsuits shields
its conduct.
Secret Rules Issued by Fiat Violate Law and Exclude Millions of
Taxpayers
"Behind closed doors, the IRS by fiat made demographic choices
in designing the tax refund rules that will effectively deny the
less affluent the ability to recover their own money," Mr. Cuneo
continued. "Now, to escape accountability and repayment to
taxpayers of all the money they are owed, the government is
wrapping itself in sovereign immunity and saying it is above
federal law and court jurisdiction."
The IRS rules governing the excise tax refund or credit were
devised without the public review or input required by the
Federal Administrative Procedure Act, the lawsuit asserts. The
IRS would allow for a refund/credit of taxes paid during only
three of the eight years that the tax was illegally exacted.
Additionally, by requiring all taxpayers to file income tax
forms to receive the excise tax refund they are entitled to, the
rules effectively exclude millions of non-filers such as senior
citizens and other low income consumers of phone services whose
level of earnings fall below the minimum filing requirement.
Finally, unlike individual taxpayers who may opt to accept a
flat "safe harbor" refund/credit dollar amount -- yet to be
determined by the IRS -- small businesses are required to
compile years of monthly phone bills (for which telephone
companies charge a fee to reproduce) and calculate the actual
amount of illegal taxes they paid before receiving anything.
"For no stated reason and with no legal authority to do so, the
IRS unilaterally made it appear that it was going to refund
money to taxpayers while devising a plan that will sharply cut
the payback of taxpayers' own money," added Nicholas Chimicles
of Chimicles & Tikellis LLP of Haverford, PA, another co-lead
attorney for the plaintiffs.
"It is simply unfair to exclude millions of non-filers from the
payback and force small 'mom and pop' businesses to expend hours
and hours collecting and analyzing years of records in order to
receive money they never should have paid."
History Demonstrates Non-filers Will Be Left Out, Study Finds
By analyzing Census Bureau data and previous state and federal
tax refund and rebate programs, the Center on Budget and Policy
Priorities found that 10 million or more mostly low-income
households -- including millions headed by someone aged 65 or
older -- would likely fail to file an income tax return to
obtain the excise tax refund.
Among the past rebate and refund programs examined, the study
looked at a Food Sales Tax Refund offered by the state of Kansas
to certain low-income households during the 1980s. As with the
procedures established by the IRS in Notice 2006-50, a household
was required to submit a form to the state that they would
otherwise not be required to file to obtain the rebate. Two-
thirds of eligible households failed to claim the rebate.
Taxpayers Entitled to as Much As $40 Billion Unlawfully
Collected
The Congressional Research Service, in an April 24 report,
estimated that the tax exacted about $6 billion each year from
virtually all Americans with long-distance telephone service.
"Using the CRS annual estimate, between $30 and $40 billion was
collected unlawfully by the government since 1998," according to
Mr. Chimicles. "A long series of Supreme Court decisions
demonstrate taxpayers are entitled to the 'clear and certain'
remedy of full restitution of taxes, plus interest, collected in
violation of federal law."
The three percent federal excise tax was levied upon toll
charges for long distance service as defined in 1965 and should
have been applied only where the charge for a toll call varied
on the basis of both the distance and elapsed time of each
individual call. But, most long-distance carriers now charge a
flat per minute rate for calls to anywhere in the nation. AT&T,
for instance, had abandoned distance and time formulas by 1997
and MCI followed in 2000.
Corporations Had Won Refunds, But Small Taxpayers Left in the
Dark
"As technology changed and more telephone services were billed
at flat rates, the government never went back to Congress to
seek a three percent excise tax on long distance service based
on elapsed time only," explained Robert Cynkar of Egan,
Fitzpatrick, Malsch & Cynkar, PLLC, a Deputy Assistant Attorney
General of the U.S. during the Reagan Administration and another
attorney representing the plaintiffs. "Instead, in a clear
violation of the Constitution, the government simply imposed the
tax, which was small and went unnoticed by most individuals.
Now, by promulgating unfair refund rules without public input,
the government has violated federal law, yet again.
Conservatives should be out-raged."
Several corporations had earlier won federal appeals court
decisions finding the excise tax illegal and won tax refunds.
Among them are AOL, Hewlett Packard, OfficeMax and Honeywell.
"These companies that challenged the tax -- and won -- performed
a valuable service," said Hank Levine of Levine, Blaszak, Block
& Boothby, LLP, one of the Sloan class action plaintiffs'
lawyers and lead counsel in most excise taxpayer court victories
to date. "But, even though companies won relief from this
unauthorized tax, it is only through a class action like ours
that smaller taxpayers can gain relief from being systematically
fleeced by this illegal tax. And, ours is the first case to
point out the fatal flaws in the Government's new refund rules."
The Class Action
Taxpayers filed an amended complaint in the U.S. District Court
for the District of Columbia asserting the Internal Revenue
Service devised rules that will effectively deny refunds to and
shortchange American taxpayers entitled to refunds by billions
of dollars (Class Action Reporter, July 11, 2006).
The IRS allegedly devised these rules without public input. The
tax refund and credit rules released May 25 will harm the
interests of all consumers of phone services and leave millions
with nothing, the lawsuit states.
The amended class action, "Sloan, et al. v. United States of
America, acting by and through the Internal Revenue Service,"
was originally filed on March 15, 2006 to end the illegal three
percent federal excise tax upon long distance phone calls.
It sought the return of all money unlawfully exacted through the
excise "tax" upon certain long distance and wireless telephone
charges added to consumers' monthly bills for more than eight
years.
Two months after the case was filed -- with motions for
preliminary injunction and class certification pending and in
the face of five U.S. District Courts of Appeal declaring the
excise tax to be illegal -- the government announced it would
stop collecting the tax and refund the money to taxpayers.
Now, the Sloan plaintiffs, including individual and small
business taxpayers, call for an accounting and fair, efficient
and accurate restitution, with interest, to all taxpayers of the
tens of billions of dollars unlawfully exacted before the
government acknowledged that the tax was illegal.
For comments or a copy of legal documents or the Center on
Budget and Policy Priorities study, please contact Jonathan
Cuneo at 202-487-8546, Nicholas Chimicles at 610-642-8500, or
Jeff McCord at 540-364-4769. On the Net:
http://www.cuneolaw.com/.
The suit is "Sloan et al. v. United States of America, Case No.
1:06-cv-00483-RMU," filed in the U.S. District Court for the
District of Columbia under Judge Ricardo M. Urbina.
Representing the plaintiffs are:
(1) Steven N. Berk and Jonathan Watson Cuneo both of Cuneo
Gilbert & Laduca, 507 C Street, NE, Washington, DC
20002, Phone: (202) 789-3960, Fax: (202) 789-1813, E-
mail: stevenb@cuneolaw.com and jonc@cuneolaw.com;
(2) Nicholas E. Chimicles and Benjamin F. Johns both of
Chimicles & Tikellis, LLP, 361 West Lancaster Avenue,
Haverford, PA 19041, Phone: (610) 6422-8500, Fax: (610)
649-3633, E-mail: nick@chimicles.com or
benjohns@chimicles.com;
(3) Robert J. Cynkar of Egan Fitzpatrick Malsch & CynKar,
PPLC, 8300 Boone Boulevard, Suite 340, Vienna, VA
22182, Phone: (703) 891-4066, Fax: 703-891-4055, E-
mail: rcynkar@nuclearlawyer.com;
(4) Charles J. LaDuca of Cuneo Waldman & Gilbert, LLP, 317
Massachusetts AVenue, NE, Suite 300, Washington, DC
20002, Phone: (202) 789-3960, E-mail:
charlesl@cuneolaw.com;
(5) Kevin T. Peters of Tony & Weld, 28 State Street,
Boston, MA 02109, Phone: (617) 720-2626; and
(6) Christopher Weld, Jr. of Todd & Weld, LLP, 28 State
Street, Boston, MA 02110, Phone: (617) 720-2626.
Representing the defendant is Ivan C. Dale of The U.S.
Department of Justice, Trial Attorneys, Tax Division,
Post Office Box 227, Washington, DC 20044, Phone: (202) 307-
6615, Fax: (202) 514-6866, E-mail: Ivan.c.dale@usdoj.gov.
UNITED STATES: D.C. Judge Dismisses Vets' Suit Against Pentagon
---------------------------------------------------------------
Judge Richard J. Leon of the U.S. District Court for the
District of Columbia dismissed a suit filed against the Pentagon
by residents of the Armed Forces Retirement Home in Washington,
according to The Washington Post.
Last year, approximately 1,000 residents of the veterans home
managed by the Defense Department launched a class action in
federal court against Defense Secretary Donald H. Rumsfeld,
contending that the Pentagon chief has imposed excessive and
illegal cutbacks in on-site medical and dental services (Class
Action Reporter, May 26, 2006).
In their complaint, the home's residents said Sec. Rumsfeld has
a ready remedy for the financial problems that led to the
cutbacks in services and staffing, but he has chosen not to act.
They also claim that Congress gave the Pentagon authority in
1994 to increase one source of the home's operating funds -- a
50-cent-per-month payroll deduction paid by every enlisted
member and warrant officer in the military. The suit contends
that by raising it to $1 per month, it would generate $7 million
a year in new revenue.
The retirement home's operating costs are borne mainly by a
trust fund and by monthly fees paid by its residents. Another
source of revenue are the fines and forfeitures levied upon
members of the active-duty military in judicial proceedings.
According to the lawsuit, which also named as a defendant the
Pentagon official who manages the home, Timothy Cox, by law the
Armed Forces Retirement Homes, in Washington and in Gulfport,
Mississippi, must provide "on-site primary care, medical care
and a continuum of long-term care services."
But, the suit claims that in an April 27, 2004 letter to the
residents group that was pushing for a reversal of cutbacks, Mr.
Cox asserted that the reduced level of services was in
compliance with the law, according to the lawsuit.
In January, a new federal law detailed the level of care
required at the home.
YANKEE CANDLE: Continues to Face Calif. Labor Violations Suit
-------------------------------------------------------------
The Yankee Candle Co., Inc. remains a defendant in a class
action filed in California state court that alleges violations
of certain California state wage and hour and employment laws
with respect to certain employees in the company's California
retail stores.
This complaint was filed in February 2005 and the company has
therefore only begun to investigate the allegations and have yet
to file its answer.
Discovery phase of the litigation has yet to start. Procedural
motions are currently pending in the applicable California
courts.
While the company intends to vigorously defend itself against
the allegations, it is too early in the litigation process for
it to fully evaluate or predict the outcome of the litigation,
according to the company's Aug. 2, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
July 31, 2006.
Based in South Deerfield, Massachusetts, The Yankee Candle Co.,
Inc. (NYSE: YCC) -- http://www.yankeecandle.com/-- is a
designer, manufacturer and branded marketer of scented candles
in the giftware industry.
New Securities Fraud Cases
FOXHOLLOW TECHNOLOGIES: Federman Sherwood Announces Suit Filing
---------------------------------------------------------------
Federman & Sherwood announces that on July 28, 2006, a class
action was filed in the U.S. District Court for the Northern
District of California against FoxHollow Technologies, Inc.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the U.S. 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 May 13, 2005 through Jan. 26, 2006.
Interested parties may move the Court no later than Sept. 26,
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.
JOS A BANK: Local Attorney Files Securities Fraud Suit in Md.
-------------------------------------------------------------
Maryland lawyer Marshall N. Perkins, initiated a class action in
the U.S. District Court for the District of Maryland against
Jos. A. Bank Clothiers, Inc. (JOSB) on behalf of Roy T. Lefkoe
and all persons who purchased or otherwise acquired the publicly
traded securities of between Jan. 5, 2006 and June 7, 2006, The
Stanford Securities Class Action Clearing House Reports.
The complaint alleges that defendants violated federal
securities laws by issuing a series of materially false
statements.
Specifically, defendants failed to disclose that:
-- the company had overinvested in inventories of fall
clothing, building excessive levels of in-stock
inventories of seasonal merchandise that carried over
into the first quarter of 2006;
-- that the company resorted to very aggressive
promotional pricing in February and March 2006 which
deeply discounted the prices of the merchandise in
order to move the merchandise and make room for new
seasonal merchandise; and
-- the company's gross profit margins were substantially
reduced in February and March 2006 by reason of the
inventory and pricing actions taken by defendants which
caused the company's profit margins and profits in
February and March 2006 to shrink dramatically even as
sales revenues increased, which represented an extreme
departure from Jos. A. Bank's historical pattern.
The complaint further alleges that on or around June 8, 2006,
defendants announced that net income for the first quarter of
2006 had fallen 13% even as sales revenues increased 18%. On
this news, the Company's common stock fell 29%, dropping $10.72
to close at $26.40 per share on June 8, 2006.
The suit is "Lefkoe v. Jos. A. Bank Clothiers, Inc. et al., Case
No. 1:06-cv-01892-WMN," filed in the U.S. District Court for the
District of Maryland under Judge William M Nickerson.
Representing the plaintiffs is Marshall N. Perkins of The Law
Firm Charles J Piven PA, The World Trade Center, 401 E Pratt St,
Ste 2525, Baltimore, MD 21202, Phone: 14103320030, Fax:
14106851300, E-mail: perkins@pivenlaw.com.
NPS PHARMACEUTICALS: Lerach Coughlin Announces Stock Suit Filing
----------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, announces
that a class action has been commenced in the U.S. District
Court for the District of Utah on behalf of purchasers of NPS
Pharmaceuticals, Inc. publicly traded securities during the
period between March 26, 2002 and May 2, 2006.
The complaint charges NPS and certain of its officers and
directors with violations of the Securities Exchange Act of
1934.
NPS engages in the discovery, development, and commercialization
of small molecules and recombinant proteins.
The complaint alleges that during the Class Period, defendants
made false and misleading statements regarding the Company's
business and prospects, including the potential for success of
PREOS, its full-length human parathyroid hormone (PTH) drug
candidate being developed for the treatment of osteoporosis.
As a result of these false statements, NPS stock traded at
inflated levels during the Class Period, whereby the Company was
able to sell 11 million shares of NPS stock for proceeds of more
than $174 million.
According to the complaint, the true facts, which were known by
each of the defendants but concealed from the investing public
during the Class Period, were as follows:
-- contrary to defendants' positive claims concerning the
PaTH study on Aug. 10, 2005, the results in fact
evidenced that PREOS was no different from Fosamax in
bone density and fracture results;
-- the market for PTH drugs like PREOS was limited to
patients with severe spinal osteoporosis who had also
suffered a fracture;
-- on or before Aug. 2, 2005, defendants were notified
that a major study performed by a lead researcher in
the field who had reviewed all PREOS study results had
concluded that further studies were necessary to
determine the efficacy of PREOS, if any, in humans;
-- unlike other bone density drugs/products which can be
used for hip fracture risk reduction, PREOS, assuming
it received FDA approval, could not be prescribed for
this use - a key market for bone density drugs;
-- defendants were also aware that physicians would never
recommend PREOS except in all but the rarest cases,
since the Physician Desk Reference on drugs recommended
injectable PTH drugs like PREOS for second line use in
osteoporosis after failure of oral drugs like Fosamax
and for a maximum of 24 months, which limitations on
physician use narrowed the medical indication for these
types of drugs; and
-- these facts added up to a huge hurdle to market success
for PREOS because the very drug that was the baseline
precursor drug for osteoporosis, Fosamax, had already
been shown to be as effective as PREOS in the PaTH
studies.
These undisclosed facts about PREOS were critical to
understanding the very difficult prospects for FDA approval and
market success for the drug.
Interested parties must move the Court no later than 60 days
from July 12, 2006 for appointment as lead plaintiff.
For more details, contact William Lerach or Darren Robbins of
Lerach Coughlin, Phone: 800/449-4900 or 619/231-1058, E-mail:
wsl@lerachlaw.com, Web site:
http://www.lerachlaw.com/cases/nps/.
RAMBUS INC: Johnson & Perkinson Files Securities Fraud Lawsuit
--------------------------------------------------------------
Johnson & Perkinson filed a class action on behalf of plaintiff
and a proposed class of purchasers of securities of Rambus, Inc.
during the period Dec. 12, 2001 through July 18, 2006.
The Complaint alleges that Rambus and certain officers and
directors violated Sections 10(b), 14(a) and 20(a) of the U>S.
Securities Exchange Act of 1934 by making false and misleading
statements and omissions concerning Rambus's improper and
undisclosed practice of backdating options conferred on certain
executives which made it appear that such options were issued
upon dates when the market price of Rambus stock was lower than
actual market price on the actual grant dates.
This improper backdating masked the virtually instant profits
the option recipients obtained. Under generally accepted
accounting principles, these profits were required to be
recognized as an expense in the company's financial statements
for the appropriate period, but were not.
This backdating of options also violated provisions of the
Internal Revenue Code relating to deduction of option payments.
Thus, the company's financial statements in Form 10-K filings
for the years 2002, 2003, 2004 and 2005 were materially false
and misleading.
In addition, the company's Proxy Statements for annual
shareholder meetings held in years 2002 to 2005 were materially
false and misleading because they contained statements
concealing Rambus's practice of backdating stock options.
Interested parties may no later than sixty days from July 19,
2006 move the court to serve as lead plaintiff.
For more details, contact James F. Conway, III of Johnson &
Perkinson, Phone: 1-888-459-7855, E-mail:
jconway@jpclasslaw.com.
SCOTTISH RE: The Paskowitz Law Firm Files N.Y. Securities Suit
--------------------------------------------------------------
The Paskowitz Law Firm, P.C. announces that it has filed a class
action in the U.S. District Court for the Southern District of
New York on behalf of purchasers of the common stock and other
securities of Scottish Re Group Ltd. who purchased during the
period from Dec. 16, 2005 through July 28, 2006.
The complaint alleges that Scottish Re and some of its officers
and directors violated the federal securities laws by making
false and misleading statements and omissions concerning
Scottish Re's financial health and business prospects, and
covered up serious operational and financial problems.
In February 2006, the company reported robust earnings for the
fourth quarter of 2005, announcing that this positive momentum
would continue going forward. In early May 2006 the company
announced that it had refinanced, at favorable rates, all of its
regulatory reserves for the business acquired in its acquisition
of ING Re's reinsurance business.
While the company also reported reduced earnings for the first
quarter of 2006, this was dismissed as temporary, and not a
cause for concern.
Then on July 28, 2006, the defendants shocked the market by
announcing that CEO Scott Willkomm had resigned, and that for
the second quarter, the company would report a huge loss of $130
million, and that results for the remainder of the year would be
negatively affected.
On this news the company's share prices declined an astounding
75%, from $16.00 to $3.99, wiping out millions in shareholder
value.
All motions for appointment as Lead Plaintiff must be filed with
the Court by Oct. 2, 2006.
For more details, contact Laurence Paskowitz, Esq. of The
Paskowitz Law Firm, P.C., Phone: 1-800-705-9529.
SCOTTISH RE: Schatz & Nobel, P.C. Announces Stock Suit Filing
-------------------------------------------------------------
The law firm of Schatz & Nobel, P.C., announces that a lawsuit
seeking class action status has been filed in the U.S. District
Court for the Southern District of New York on behalf of all
persons who purchased the publicly traded securities of Scottish
Re Group Ltd.
The Complaint alleges that defendants violated federal
securities laws by issuing a series of materially false
statements.
Specifically, defendants made false and misleading statements
concerning Scottish Re's financial health and business
prospects, and covered up serious operational and financial
problems.
In February 2006, Scottish Re reported robust earnings for the
fourth quarter of 2005, announcing that this positive momentum
would continue going forward.
In early May 2006, the company announced that it had refinanced,
at favorable rates, all of its regulatory reserves for the
business acquired in its acquisition of ING Re's reinsurance
business.
While the company also reported reduced earnings for the first
quarter of 2006, this was dismissed as temporary, and not a
cause for concern.
Then on July 28, 2006, the defendants shocked the market by
announcing that CEO Scott Willkomm had resigned, and that for
the second quarter, the company would report a huge loss of $130
million, and that results for the remainder of the year would be
negatively affected. On this news, the company's share prices
declined 75%, from $16.00 to $3.99.
Interested parties may no later than Oct. 2, 2006, request that
the Court for appointment as lead plaintiff of the class.
For more details, contact Schatz & Nobel, Phone: (800) 797-5499,
E-mail: sn06106@aol.com, Web site: http://www.snlaw.net.
*********
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 * * *