/raid1/www/Hosts/bankrupt/CAR_Public/061128.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, November 28, 2006, Vol. 8, No. 236
Headlines
ABERCROMBIE & FITCH: Jan. 20 Hearing Set for $6.05M Settlement
ACU-GEN BIOLAB: Continues to Face Consumer Fraud Suit in Mass.
ADVANCED NEUROMODULATION: Jan. 19 Hearing Set for $3M Settlement
BOYKIN LODGING: Jan. 17 Hearing Set for Investor Suit Settlement
CAREER EDUCATION: Response to Stock Suit Dismissal Motion Filed
CAREER EDUCATION: Amended Complaint Filed in Md. Students' Suit
CAREER EDUCATION: Calif. Court Allows Complaint Against Brooks
CAREER EDUCATION: Calif. Court Refuses to Junk "Nilsen" Claims
CROMPTON CORP: Jan. 9 Hearing Set for $51M Antitrust Suit Deal
DAIMLERCHRYSLER: Recalls Pacifica UVs for Power Train Problem
DANKA BUSINESS: Tenn. Court Dismisses Some Claims in "Edwards"
DAYTONA BEACH: Students File $5M Suit in Fla. Over Book Prices
FORD MOTOR: Recalls Volvos Over Defective Speed Control System
GENERAL MOTORS: Mich. Court Approves Settlement with IUE-CWA
GENERAL MOTORS: Appeals Court Mulls Objections to UAW Suit Deal
GENERAL MOTORS: Files Motion to Dismiss Bondholder Suit in Mich.
GENERAL MOTORS: Mich. Court Yet to Rule on Status of ERISA Suit
GENERAL MOTORS: New Class Certified in Canadian Export Lawsuit
IAC/INTERACTIVECORP: N.Y. Court Mulls Dismissal of Stock Lawsuit
ILLINOIS: Judge Declares Waukegan Towing Law Unconstitutional
KINDER MORGAN: Ohio Court Okays $2M Styrene Leak Suit Settlement
KINDER MORGAN: N.Mex Court Orders Review of Royalty Payout Suit
NATIONAL AUSTRALIA: Cutoff Date Set for New Claims in Stock Suit
NDCHEALTH CORP: 11th Circuit Upholds "Garfield" Suit Dismissal
OREGON: Settles Retirees' Suit over PERS, Disability Payments
PACIFIC CAPITAL: Calif. Refund Anticipation Loan Suit Continues
PACIFIC CAPITAL: Settles Lawsuit Over RT Agreement in Calif.
PACIFIC CAPITAL: Dismissal of Suit Over Processing Fee Appealed
SEARS ROEBUCK: Dec. 8 Hearing Set for $215M Stock Suit Agreement
SPRINT NEXTEL: Faces Calif. Suit Over Cell Phone Billing Charges
STAKTEK HOLDINGS: Tex. Court Mulls Motion to Certify Stock Suit
TIME WARNER: Customers File Suit in Calif. Over Service Switch
TOBACCO LITIGATION: Supreme Court Refuses to Review 'Lights' Suit
New Securities Fraud Cases
BODISEN BIOTECH: Glancy Binkow Files Securities Suit in N.Y.
MARVELL TECHNOLOGY: Kaplan Fox Files Securities Suit in Calif.
*********
ABERCROMBIE & FITCH: Jan. 20 Hearing Set for $6.05M Settlement
--------------------------------------------------------------
The U.S. District Court for the Southern District of New York
will hold a fairness hearing on Jan. 30, 2007 at 4:30 p.m., for
the proposed $6,050,000 settlement in the matter, "In Re:
Abercrombie & Fitch Co. Securities Litigation, Master File No.
M-21-83 (TPG)."
The hearing will be held in the U.S. District Court for the
Southern District of New York, Daniel Patrick Moynihan U.S.
Courthouse, 500 Pearl Street, New York, New York 10007.
Any objections or exclusions to and from the settlement must be
filed by Jan. 2, 2007. Claim forms must be submitted by Feb.
26, 2007.
The settlement covers all persons or entities that purchased
shares of Abercrombie & Fitch Co. (A&F) common stock between
Oct. 8, 1999, at a price on that date at or below $39.50, and
including Oct. 13, 1999, at a price on that date at or above
$32.50.
Case Background
Abercrombie & Fitch Co. (A&F) was charged with misleading
investors in a securities class action with respect to declining
sales affecting the financial condition of the company.
The case was filed as a class action in the U.S. District Court
for the Southern District of Ohio, Eastern Division. The action
charges that A&F and certain of its officers violated the
securities laws and regulations of the U.S. by issuing a series
of false and misleading statements concerning declining sales
trends during the Class Period.
In particular, the complaint charges that A&F selectively
disclosed to one analyst that same-store sales were declining
and below Wall Street expectations. When other analysts spoke
with senior management at the company, A&F denied the rumors of
declining sales, stating they were unsubstantiated and
unfounded.
Nevertheless, on October 13, 1999, A&F disclosed to the general
investing public that sales trends were sluggish. As a result
of these revelations, A&F's stock collapsed, falling over $6 per
share to $26 5/16. Plaintiffs seek to recover damages on behalf
of all those who purchased or otherwise acquired A&F common
stock during the Class Period.
This case is now pending in the U.S. District Court for the
Southern District of New York. The court appointed lead
plaintiffs and lead counsel. An amended and consolidated
complaint was filed on Dec. 14, 2000. On Feb. 14, 2001,
defendants filed a motion asking the court to dismiss the
complaint.
Lead plaintiffs opposed defendants' motion. The court denied
defendants' motion to dismiss on Nov. 17, 2003. On March 1,
2004 defendants filed their answers to the amended complaint.
Lead plaintiffs filed a motion with the court for class
certification, both parties have briefed the issues and await
the Judge to issue his ruling. Additionally the case proceeded
into the discovery phase of the litigation.
Thereafter, the parties attended mediation that resulted in a
settlement of the action. The terms of the proposed settlement
as outlined more fully in the stipulation and agreement of
settlement create a settlement fund in the amount of $6,050,000
for the benefit of the class.
Claims Administrator Abercrombie & Fitch Securities Litigation,
c/o The Garden City Group, Inc.
Claims Administrator, P.O. Box 9000
#6478, Merrick, NY 11566-9000
Phone: 1 (866) 487-1709
Web site: http://www.gardencitygroup.com
Plaintiffs' Lead Counsel Robert J. Berg, Esq.
Bernstein Liebhard & Lifshitz, LLP
Phone: 212-779-1414, 877-779-1414
Fax: 212-779-3218
E-mail: berg@bernlieb.com
Web site: http://www.bernlieb.com/
ACU-GEN BIOLAB: Continues to Face Consumer Fraud Suit in Mass.
--------------------------------------------------------------
Acu-Gen Biolab Inc. remains a defendant in a purported class
action filed in Massachusetts by customers who were allegedly
deceived by false and misleading claims the company made with
regards to its Baby Gender Monitor.
The suit is filed against the company and its exclusive
retailer, Illinois-based PregnancyStore.com. More than 40
people who purchased the baby gender test filed a suit against
the company in Massachusetts back in March.
Plaintiffs, represented by Gainey & McKenna, claim that Acu's
Baby Gender Mentor, which promised to determine the sex of a
baby as early as five weeks of pregnancy, are claiming incorrect
results.
They also alleged that the company reneged on its promise of a
200% refund should the test fail. According to a report, the
company changed the terms of the refund policy by stipulating
additional requirements (Class Action Reporter, March 1, 2006).
The company advertised the kit as being able to detect the
gender of a fetus using just a few drops of the mother's blood
with 99.9% accuracy. The test, which hit the market last year,
costs $275 (Class Action Reporter, May 2, 2006).
For more details, contact Gainey & McKenna, Phone: (201) 689-
9000; Fax: (201) 689-9969; E-mail: info@gaineyandmckenna.com.
ADVANCED NEUROMODULATION: Jan. 19 Hearing Set for $3M Settlement
----------------------------------------------------------------
The U.S. District Court for the Eastern District of Texas will
hold a fairness hearing on Jan. 19, 2007 at 9:00 a.m., for the
proposed $3,000,000 settlement in the matter, "PLA, LLC, et al.
v. Advanced Neuromodulation Systems, Inc., et al., Case No.
4:05-CV-00078."
The hearing will be held at the U.S. Bankruptcy Court for the
Eastern District of Texas, Plano Division, 660 North Central
Expressway, Suite 300, Plano, Texas 75074 (Please not that this
courthouse is located in the City of Plano, not the City of
Sherman, Texas).
Any objections or exclusions to and from the settlement must be
filed by Jan. 2, 2007. Claim forms must be submitted by March
19, 2007.
The settlement covers all persons or entities that purchased or
otherwise acquired the common stock of Advanced Neuromodulation
Systems, Inc. (ANSI) between April 24, 2003 and Feb. 16, 2005.
The consolidated class action complaint filed on Sept. 19, 2005,
generally alleges, among other things that between April 24,
2003 and Feb. 16, 2005 defendants issued false and misleading
statements to the public by:
-- not disclosing that ANSI had made payments to
physicians that the complaint alleges were in violation
of the Anti-Kickback Statute and the Stark Law; and
-- stating that ANSI complied with its Code of Conduct and
the code of ethics adopted by the Advanced Medical
Technology Association, that ANSI had a good
relationship with its customers, that ANSI's internal
controls were sufficient to ensure disclosure to the
public of all required information, and that ANSI's
financial statements were prepared in accordance with
Generally Accepted Accounting Principles.
The complaint alleges that, on Feb. 17, 2005, ANSI announced
that it had received a subpoena from federal authorities
investigating ANSI's practices relating to sales and marketing,
reimbursement, and Medicare and Medicaid billing, among other
things.
It also alleges that, following that announcement, that same
day, the ANSI stock price plummeted from $37.60 per share to
slightly over $29 per share, a drop of 22% on unusually heavy
trading volume of over 7.9 million shares, far greater than the
average trading volumes of approximately 400,000 shares.
The lawsuit seeks money damages against defendants for
violations of the federal securities laws, including Sections
10(b), 20(a) and 20A of the U.S. Securities and Exchange Act of
1934.
Defendants deny all allegations of misconduct contained in the
complaint, and deny having engaged in any wrongdoing whatsoever.
Claims
Administrator ANSI Settlement
c/o RSM McGladrey, Inc.
P.O. Box 1387, Blue Bell, PA 19422
Phone: 1-800-222-2760
Web site: http://www.claimsinformation.com/ANSI
Class Counsels Maya Saxena, Esq. of Saxena White, P.A.
2424 North Federal Highway, Suite 257, Boca
Raton, Florida 33431, Phone: (800) 361-5096,
E-mail: msaxena@saxenawhite.com
Web site: http://www.saxenawhite.com/
Robert N. Cappucci, Esq.
Entwistle & Cappucci, LLP
280 Park Avenue, 26th Floor West, New York
New York 10017, Phone: 212-894-7200, Fax: 212-
894-7272, E-mail: rcappucci@entwistle-law.com
Web site: http://www.entwistle-law.com
BOYKIN LODGING: Jan. 17 Hearing Set for Investor Suit Settlement
----------------------------------------------------------------
The Court of Common Pleas of Cuyahoga County, Ohio will on a
fairness hearing on Jan. 17, 2007 at 2:00 p.m. for the proposed
settlement in the matter, "Delduco v. Adams, et al., Case No. CV
06 593403," which was filed against Boykin Lodging Co. n/k/n BH
Lodging Corp. and its directors as a purported shareholder class
action.
The hearing will be held before Judge Michael J. Russo in
Courtroom 17-C of the Cuyahoga County Court of Common Pleas,
1200 Ontario St., Cleveland, Ohio.
Any objections to the settlement must be filed by Dec. 20, 2006.
The settlement covers all persons who owned any interest in the
capital stock of Boykin Lodging whether of record or
beneficially, between June 3, 2005 and Sept. 21, 2006.
Filed on June 6, 2006, the shareholder complaint was filed
against the company and each of its directors in connection with
the transactions contemplated by the agreement and plan of
merger, dated May 19, 2006, among:
* Braveheart Investors LP,
* Braveheart II Realty (Ohio) Corp.,
* Braveheart II Properties Holding LLC,
* Braveheart II Properties Co. LLC,
* the company, and
* Boykin Hotel Properties, L.P.,
That deal include sales of the Pink Shell Beach Resort and
Banana Bay Resort to entities controlled by Robert W. Boykin,
the company's chairman of the board and chief executive officer.
For more details, contact Richard S. Wayne of Strauss & Troy,
The Federal Reserve Building, 150 East Fourth Street,
Cincinnati, OH 45202-4018, Phone: (513) 621-2120, Fax: (513)
241-8259, Web site: http://www.strausstroy.com/.
CAREER EDUCATION: Response to Stock Suit Dismissal Motion Filed
---------------------------------------------------------------
Plaintiffs in the consolidated securities class action pending
against Career Education Corp. in the U.S. District Court for
the Northern District of Illinois filed a response to the
company's motion to dismiss a third amended complaint.
The consolidated case represents the consolidation into one suit
of six purported class actions filed between Dec. 9, 2003, and
Feb. 5, 2004, in the U.S. District Court for the Northern
District of Illinois by and on behalf of certain purchasers of
the company's common stock against Career Education and two of
its executive officers, John M. Larson and Patrick K. Pesch.
The suits purportedly were brought on behalf of all persons who
acquired shares of the company's common stock during specified
class periods.
The complaints allege that in violation of Section 10(b) of the
U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, the defendants made certain material
misrepresentations and failed to disclose certain material facts
about the condition of the company's business and prospects
during the putative class periods, causing the respective
plaintiffs to purchase shares of the company's common stock at
artificially inflated prices.
The plaintiffs further claim that John M. Larson and Patrick K.
Pesch are liable as control persons under Section 20(a) of the
U.S. Exchange Act. The plaintiffs ask for unspecified amounts
in damages, interest, and costs, as well as ancillary relief.
Five of these lawsuits were related to the first filed case,
"Taubenfeld v. Career Education Corp. et al., Case No. 03 CV
8884)," and were reassigned to the same judge.
On March 19, 2004, the court ordered these six cases to be
consolidated and appointed Thomas Schroeder as lead plaintiff.
On April 6, 2004, the court appointed the firm of Labaton
Sucharow & Rudoff LLP -- http://www.labaton.com-- which
represents Mr. Schroeder, as lead counsel.
Subsequently, the court issued an order changing the caption of
this lawsuit to "In re Career Education Corp. Securities
Litigation."
On June 17, 2004, plaintiffs filed a consolidated amended
complaint. On Feb. 11, 2005, defendants' motion to dismiss was
granted, without prejudice.
On April 1, 2005, plaintiffs filed a second amended complaint.
On March 28, 2006, defendants' motion to dismiss the second
amended complaint was granted, without prejudice.
On May 1, 2006, plaintiffs filed a third amended complaint.
Defendants filed their motion to dismiss the third amended
complaint on Aug. 2, 2006. Plaintiffs filed their response to
defendants' motion to dismiss the third amended complaint on
Oct. 18, 2006.
The suit is "In re: Career Education Corp. Securities
Litigation, Case No. 1:03-cv-08884," filed in the U.S. District
Court for the Northern District of Illinois, under Judge Joan
Humphrey Lefkow.
Representing the company are Karl Richard Barnickol, Mary Ellen
Hennessy, Joni S. Jacobsen, David H. Kistenbroker, Katten Muchin
Zavis Rosenman, 525 West Monroe Street Suite 1600 Chicago, Il
60661-3693 Phone: (312) 902-5200.
CAREER EDUCATION: Amended Complaint Filed in Md. Students' Suit
---------------------------------------------------------------
Plaintiffs in the suit "Laronda Sanders, et al. v. Ultrasound
Technical Services, Inc. et al.," filed an amended complaint
with the U.S. District Court for the District of Maryland.
On March 15, 2006, 12 former students of the Landover, Maryland
campus of Sanford-Brown Institute, one of Career Education
Corp.'s schools, filed a class action complaint, on behalf of
themselves and all others similarly situated, against Career
Education and Ultrasound Technical Services, Inc., one of the
company's subsidiaries. The suit was filed in the Circuit Court
for Prince George's County, Maryland.
The complaint alleges that the defendants made fraudulent
misrepresentations and violated the Maryland consumer fraud act
by misrepresenting or failing to disclose, among other things,
details regarding instructors' experience or preparedness,
availability of clinical externship assignments, and estimates
for the dates upon which the plaintiffs would receive their
certificates and be able to enter the work force.
Plaintiffs further allege that defendants failed to maintain
accurate attendance records, and that the defendants negligently
or deliberately dropped students without justification. The
complaint also alleges that defendants breached the enrollment
contract with plaintiffs by failing to provide the promised
instruction, training, externships, and placement services.
Plaintiffs seek actual damages, punitive damages, and costs.
Defendants removed the action to the U.S. District Court for the
District of Maryland, Greenbelt Division, and filed a motion to
dismiss significant portions of the complaint. Plaintiff moved
to remand the action to state court.
On Sept. 18, 2006, the Court denied plaintiffs' motion to
remand. The Court also granted defendants' motion to dismiss
the common law and statutory fraud counts of the complaint, with
leave to amend. On Oct. 17, 2006, plaintiffs filed an amended
complaint.
CAREER EDUCATION: Calif. Court Allows Complaint Against Brooks
--------------------------------------------------------------
The Superior Court for the State of California, County of Los
Angeles ordered plaintiffs in the suit, "Thurston, et al. v.
Brooks College, Ltd., et al." to file a motion for class
certification.
On March 21, 2005, a purported class action complaint was filed
in the Superior Court for the State of California, County of Los
Angeles, against Brooks College, one of Career Education Corp.'s
schools.
The complaint was purportedly filed on behalf of all current and
former attendees of Brooks College. The complaint alleges that
Brooks College violated the California Business and Professions
Code and Consumer Legal Remedies Act by allegedly misleading
potential students regarding Brooks College's admission
criteria, transferability of credits, and retention and
placement statistics, and by engaging in false and misleading
advertising.
Plaintiffs seek injunctive relief, restitution, unspecified
punitive and exemplary damages, attorneys' fees, interest,
costs, and other relief.
On June 24, 2005, the Court ruled that this action was related
to the case, "Outten, et al. vs. Career Education Corp., et al."
Brooks College filed an answer to the complaint on May 31, 2006.
The parties are engaged in pre-trial discovery. The Court has
ordered plaintiffs to file a motion for class certification on
December 18, 2006. No trial date has been set for this matter.
CAREER EDUCATION: Calif. Court Refuses to Junk "Nilsen" Claims
--------------------------------------------------------------
The Superior Court of the State of California, County of Santa
Barbara, overruled the defendants' motion to strike a portion of
a third amended complaint in the suit, "Nilsen v. Career
Education Corp., et al."
On Feb. 4, 2005, three former students of Brooks Institute of
Photography (BIP), one of Career Education Corp.'s schools,
filed a purported class action complaint in the Superior Court
of the State of California, County of Santa Barbara, against the
company and BIP. The action was purportedly brought on behalf
of all students who attended BIP from Feb. 4, 2001, to the
present.
Plaintiffs' third amended complaint states causes of action for:
-- violations of the California Education Code;
-- violations of the Consumer Legal Remedies Act;
-- fraud;
-- false advertising in violation of California Business
and Professions Code 17500, et seq.; and
-- unfair competition in violation of California Business
and Professions Code section 17200, et seq.
The plaintiffs primarily allege that BIP violated the California
Education Code, the California Consumer Legal Remedies Act, and
California's Unfair Competition Law by allegedly misleading
potential students regarding BIP's placement rates and by
engaging in false and misleading advertising.
The plaintiffs seek injunctive relief, disgorgement of profits,
punitive damages, interest, and attorneys' fees and costs.
On Oct. 11, 2006, the court overruled the defendants' demurrers
and motion to strike a portion of the third amended complaint.
The court has ordered plaintiffs to file their motion for class
certification on Feb. 14, 2007, and scheduled a hearing on Feb.
27, 2007, at which time the court will set a briefing schedule
for the opposition and reply to plaintiffs' motion as well as a
hearing date.
The company has initiated discovery of the class
representatives.
CROMPTON CORP: Jan. 9 Hearing Set for $51M Antitrust Suit Deal
--------------------------------------------------------------
The U.S. District Court for the Northern District of California
will hold a fairness hearing on Jan. 9, 2007 at 9:30 a.m., for
the proposed $51 million settlement by:
-- Crompton Corp. (n/k/a Chemtura Corp.), and
-- Uniroyal Chemical Co., Inc. (n/k/a Chemtura USA Corp.)
in the matter, "In Re Rubber Chemicals Antitrust Litigation, MDL
Docket No. C-04-1648."
The hearing will be held at the U.S. District Court for the
Northern District of California, 450 Golden Gate Ave., Courtroom
11, 19th Floor, San Francisco, CA 94102.
Claim forms must be submitted by Jan. 31, 2007.
The settlement covers all persons or entities that purchased
rubber chemicals in the U.S. directly from any defendant at any
time from May 1, 1995 through Dec. 31, 2001.
The first complaint in this action was filed in U.S District
Court for the Northern District of California on April 8, 2003.
That case and several subsequently filed cases were consolidated
and a Consolidated Amended Complaint was filed on Nov. 3, 2003.
On or about March 15, 2005, plaintiffs filed their Second
Amended Consolidated Complaint. The complaint alleges that the
defendants conspired to fix or maintain the prices of, and/or
allocate markets for rubber chemicals sold in the U.S. in
violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1.
It also alleges that, as a result of this conspiracy, members of
the class paid more for rubber chemicals than they otherwise
would have and, thus, were injured.
For more details, contact:
(1) Gilardi & Co., LLC, 3301 Kerner Boulevard, San Rafael,
CA 94901, Phone: 415-461-0410, Fax: 415-461-0412, E-
mail: classact@gilardi.com, Web site:
http://researcharchives.com/t/s?15d5.
(2) Richard A. Koffman of Cohen, Milstein, Hausfeld & Toll,
P.L.L.C., 1100 New York Avenue, N.W., Suite 500 West,
Washington, District of Columbia 20005-3964, Phone:
202-408-4600, Fax: 202-408-4699, Web site:
http://www.CMHT.com;and
(3) Steven O. Sidener of Gold Bennett Cera & Sidener, LLP,
595 Market Street, Suite 2300, San Francisco,
California 94105, (San Francisco Co.), Phone: 415-777-
2230, Fax: 415-777-5189, Web site:
http://www.gbcslaw.com.
DAIMLERCHRYSLER: Recalls Pacifica UVs for Power Train Problem
-------------------------------------------------------------
DaimlerChrysler, in cooperation with the U.S. National Highway
Traffic Safety Administration, is recalling about 128,000
Pacifica sport utility vehicles because of a problem with the
software governing the fuel pump and power train control of the
vehicles, the ConsumerAffairs.com reports.
NHTSA said the defect could cause the engine to stall in some
cases. The recall applies to Pacifica models built between 2005
and 2006.
Chrysler dealers will reprogram the power train controls and
replace the fuel pump on certain cars as part of the recall.
DANKA BUSINESS: Tenn. Court Dismisses Some Claims in "Edwards"
--------------------------------------------------------------
The U.S. District Court for the Middle District of Tennessee
granted Danka Business Systems plc's motion for summary judgment
and dismissed the plaintiff's claims regarding shipping and
handling charges in the suit, "Edwards v. Danka Industries Inc.,
et al."
In June 2003, Danka was served with a putative class action
complaint, "Stephen L. Edwards, et al., v. Danka Industries,
Inc., et al.," including American Business Credit Corp. The
suit alleges claims of breach of contract, fraud/intentional
misrepresentation, unjust enrichment, violation of the Florida
Deception and Unfair Trade Protection Act and injunctive relief.
The claim was filed in the state court in Tennessee, and the
company has removed the claim to the U.S. District Court for
Middle District of Tennessee for further proceedings.
The plaintiffs have filed a motion to certify the class, which
the company has opposed. The company had filed a motion for
summary judgment, which plaintiffs had opposed.
On Oct. 13, 2006, the U.S. District Court for the Middle
District of Tennessee granted Danka's motion for summary
judgment and dismissed the plaintiff's claims regarding shipping
and handling charges, which served as the basis of the putative
class claim. The plaintiff's remaining claim has not been
resolved.
The suit is "Edwards v. Danka Industries Inc., et al., Case No.
3:03-cv-00575," filed in the U.S. District Court for the Middle
District of Tennessee under Judge John T. Nixon.
Representing the plaintiffs is Charles P. Yezbak, III, 144
Second Avenue North, Suite 200, Nashville, TN 37201, Phone:
(615) 250-2000, Fax: (615) 250-2020, E-mail:
yezbak@yezbaklaw.com.
Representing the company are:
(1) Thomas B. Hatch, Robins, Kaplan, Miller & Ciresi, 2800
LaSalle Plaza, Minneapolis, MN 55402-2015, Phone: (612)
349-8500; and
(2) Andrew J. Pulliam, Wyatt, Tarrant & Combs, 2525 West
End Avenue, Suite 1500, Nashville, TN 37203-1423,
Phone: (615) 244-0020, E-mail: apulliam@wyattfirm.com.
DAYTONA BEACH: Students File $5M Suit in Fla. Over Book Prices
--------------------------------------------------------------
Daytona Beach Community College (DBCC) and Follett Higher
Education Group (FHEG) were named as defendants in a purported
class action filed by two DBCC students, who claim that they are
being overcharged for textbooks, The Orlando Sentinel reports.
The suit was filed on Sept. 9, 2006 in the U.S. District Court
for the Middle District of Florida. It alleges unfair and
illegal pricing practices and seeks to recover at least $5
million in damages.
Plaintiffs Thomas Rebman and Danny Brandner, basically accuse
the defendants of overcharging students pennies on each used-
book sale and underpaying them when buying books back.
That may amount to only a few bucks each semester, but when
multiplied by thousands of students at each of the company's
more than 750 bookstores, it adds up to millions, the plaintiffs
argue.
Additionally, the plaintiffs explained that the college is
"complicit" in the textbook company's actions because through
DBCC's contract with FHEG, it receives up to 10.5 percent of all
bookstore revenues annually.
The five-count complaint alleges breach of the contract between
FHEG and the college, violations of the Florida Deceptive, and
Unfair Trade Practices Act and a civil conspiracy.
Holland & Knight LLP attorneys, who are representing both
defendants, have already filed a motion to dismiss the suit,
arguing that the students are not parties to the contract and
are attempting to paint "themselves as third-party
beneficiaries" of the contract.
The court will next determine whether the student's claims
should apply to a larger student body and can be certified as a
class action.
The suit is "Rebman, et al. v. Follet Higher Education Group,
Inc., et al., Case No. 6:06-cv-01476-JA-KRS," filed in the U.S.
District Court for the Middle District of Florida under Judge
John Antoon II with referral to Judge Karla R. Spaulding.
Representing the plaintiffs are:
(1) Robert Sheridan Thurlow of Robert S. Thurlow, P.A., 415
Canal St., New Smyrna Beach, FL 32168-7009, Phone: 386-
424-1530, Fax: 386-424-1493, E-mail:
dianeeyre@bellsouth.net; and
(2) Marc A. Wites of Wites & Kapetan, P.A., 4400 North
Federal Highway, Lighthouse Point, FL 33064, Phone:
954-570-8989, Fax: 954/354-0205, E-mail:
mwites@wklawyers.com.
Representing the defendants are Sanford Lewis Bohrer and Scott
D. Ponce of Holland & Knight, LLP, 701 Brickell Ave., Suite 3000
P.O. Box 015441, Miami, FL 33131-5441, Phone: 305/374-8500 and
305/789-7575, Fax: 305-789-7799, E-mail: sbohrer@hklaw.com and
sponce@hklaw.com.
FORD MOTOR: Recalls Volvos Over Defective Speed Control System
--------------------------------------------------------------
Ford Motor Co., in cooperation with the National Highway Traffic
Safety Administration, issued a recall of 360,000 Volvos because
the vehicle speed control systems can cause the engine to lose
power without warning, the ConsumerAffairs.com reports.
Volvo reports a problem inside the electronic throttle control
module in cars built between 1999 and 2002, which could cause
the vehicle to shift into a "limp home" mode limiting the
maximum speed to roughly 15 miles per hour.
The "limp home" setting is a safety feature in Volvo cars
intended to prevent unintended acceleration in case of a
throttle malfunction.
The recall applies to Volvo C70 and V70 models built between
1999 and 2002, S60 models built between 2001 and 2002, and S70
and V70X models built between 1999 and 2000.
Volvo has already repaired the speed control problem in about
165,000 vehicles of the recall total after sending out notices
to owners in March.
Earlier this month, NHTSA informed Volvo that the agency was
making the recall mandatory. Volvo owners who bring their cars
to dealerships will have new software reinstalled for the
throttle control unit.
GENERAL MOTORS: Mich. Court Approves Settlement with IUE-CWA
------------------------------------------------------------
The U.S. District Court for the Eastern District of Michigan has
issued an order approving a settlement between General Motors
Co. and the International Union of Electronics Workers -
Communication Workers of America (IUE-CWA).
On May 10, 2006, the IUE-CWA along with individual retirees
filed a class action in the U.S. District Court for the Eastern
District of Michigan on behalf of hourly retirees, spouses and
dependants, seeking to enjoin General Motors from making
unilateral changes to their hourly retiree health care benefits.
On November 1, 2006, the District Court issued an order
approving a classwide settlement regarding modifications to
health care benefits for hourly retirees.
GENERAL MOTORS: Appeals Court Mulls Objections to UAW Suit Deal
---------------------------------------------------------------
The 6th Circuit Court of Appeals has yet to rule on objections
against the settlement of a suit filed against General Motors
Co. regarding modifications by the company to hourly retiree
health-care benefits.
On Oct. 18, 2005, the United Automobile Workers (UAW) and two
hourly retirees filed a suit in the U.S. District Court for the
Eastern District of Michigan on behalf of hourly retirees,
spouses and dependants, seeking to enjoin unilateral
modifications by the company to hourly retiree health-care
benefits, claiming that such benefits are unalterably vested.
The company though maintains that retiree health-care benefits
are not vested and that it has expressly reserved the right to
make unilateral changes.
On Oct. 29, 2005, the company and the UAW entered into a
memorandum of understanding that provided for a number of
changes to health care coverage for both UAW represented active
employees and UAW retirees.
On Oct. 31, 2005, plaintiffs' filed an amended complaint adding
four additional retirees and one surviving spouse as putative
class representatives. The lawsuit followed months of
negotiations between the company and the UAW regarding changes
to retiree health-care benefits and is the initial step in
implementing this agreement.
On December 16, 2005, the company, the UAW and the putative
class representatives finalized a settlement agreement and
submitted motions to the court for certification of the class,
preliminary approval of the final settlement and approval of the
proposed notice to class members.
At a hearing on December 22, 2005, the court granted the motion
for class certification, preliminarily approved the final
settlement agreement and directed that proposed notice of the
settlement be mailed to class members. That mailing was
complete on December 30, 2005.
The District Court finally approved the settlement. The
classwide settlement has been appealed to the Sixth Circuit
Court of Appeals by a small number of individual objectors. The
appeal has been fully briefed and is awaiting decision,
according to the company's Nov. 7 form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30.
The suit is "United Automobile, Aerospace and Agricultural
Implement Workers of America, et al. v. General Motors Corp.,
Case No. 2:05-cv-73991-RHC-VMM," filed in the U.S. District
Court for the Eastern District of Michigan under Judge Robert H.
Cleland with referral to Judge Virginia M. Morgan. Representing
the plaintiffs are,
(1) Michael F. Saggau and Daniel W. Sherrick of UAW
International Union, 8000 E. Jefferson Avenue, Detroit,
MI 48214, US, Phone: 313-926-5216, Fax: 313-926-5240,
E-mail: msaggau@uaw.net;
(2) John M. West of Bredhoff and Kaiser (Washington), 805
Fifteenth Street, N.W., Suite 1000, Washington, DC
20005, Phone: 202-842-2600, Fax: 22-842-1888, E-mail:
jwest@bredhoff.com; and
(3) William T. Payne, 1007 Mt. Royal Boulevard, Pittsburgh,
PA 15223, US, Phone: 412-492-5797, Fax: 412-492-8978,
E-mail: wpayne@stargate.net.
Representing the defendants are: Richard C. Godfrey of Kirkland
& Ellis, (Chicago), 200 E. Randolph Drive, Suite 6000, Chicago,
IL 60601, Phone: 312-861-2391; and Edward W. Risko and Francis
S. Jaworski of General Motors Corp., Legal Staff, 300
Renaissance Center, Phone: 313-667-2408, Fax: 313-667-6323, E-
mail: edward.w.risko@gm.com.
GENERAL MOTORS: Files Motion to Dismiss Bondholder Suit in Mich.
----------------------------------------------------------------
General Motors Co. and its finance and insurance operation GMAC
LLC filed a motion to dismiss an amended securities fraud
complaint filed against them in U.S. District Court for the
Eastern District of Michigan.
J&R Marketing, SEP, filed a suit on December 28, 2005, in the
Circuit Court for Wayne County, Michigan against:
-- General Motors,
-- GMAC;
-- G. Richard Wagoner, Jr., GM's chairman and chief
executive officer;
-- Eric Feldstein, GMAC's chairman;
-- William F. Muir;
-- Linda K. Zukauckas;
-- Richard J.S. Clout;
-- John E. Gibson;
-- W. Allen Reed;
-- Walter G. Borst;
-- John M. Devine;
-- Gary L. Cowger; and
-- several underwriters of GMAC debt securities.
The complaint alleges claims under Sections 11, 12(a), and 15 of
the U.S. Securities Act based on alleged material
misrepresentations or omissions in the Registration Statements
for GMAC SmartNotes purchased between Sept. 30, 2003 and
March 16, 2005, inclusive.
The complaint alleges inadequate disclosure of the company's
financial condition and performance as well as issues arising
from GMAC's 2005 restatement of quarterly results for the three
quarters ended Sept. 30, 2005.
It does not specify the amount of damages sought. On Jan. 13,
2006 defendants removed this case to the U.S. District Court for
the Eastern District of Michigan.
A substantially identical suit was filed by Alex Mager on Feb.
17, 2006, in the U.S. District Court for the Eastern District of
Michigan. On Feb. 24, 2006, J&R Marketing filed a motion to
consolidate the Mager case with its case and for appointment as
lead plaintiff and the appointment of lead counsel. On March 8,
2006, the court entered an order consolidating the two cases.
On July 28, 2006, plaintiffs filed a consolidated amended
complaint, which mainly differed from the initial complaint in
that it asserted claims for GMAC debt securities purchased
during a different time period (July 28, 2003 through November
9, 2005), and added additional underwriter defendants.
On Aug. 28, 2006 the underwriter defendants were dismissed
without prejudice. On Sept. 25, 2006, the GM and GMAC
defendants filed a motion to dismiss the amended complaint. No
determination has been made that the case may be maintained as a
class action, according to the company's Nov. 7 form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30.
The suit is "J and R Marketing, SEP v. General Motors Corp. et
al., Case No. 2:06-cv-10201-NGE-WC," filed in U.S. District
Court for the Eastern District of Michigan under Judge Nancy G.
Edmunds with referral to Judge Wallace Capel.
Representing defendants General Motors Acceptance Corp. are;
(1) Dennis M. Barnes at Barris, Sott, 211 W. Fort Street
Suite 1500, Detroit, MI 48226-3281, Phone: 313-965-
9725, E-mail: dbarnes@bsdd.com; and
(2) Timothy A. Duffy at Kirkland & Ellis (Chicago), 200 E.
Randolph Drive, Chicago, IL 60601-6436, Phone: 312-861-
2000, E-mail: tduffy@kirkland.com.
Representing consol plaintiff Alex Mager is Deborah R. Gross,
1515 Locust Street, 2nd Floor, Philadelphia, PA 19102, Phone:
215-561-3600.
GENERAL MOTORS: Mich. Court Yet to Rule on Status of ERISA Suit
---------------------------------------------------------------
General Motors filed a motion to dismiss the amended complaint
in the suit, "In re General Motors ERISA Litigation" filed in
the U.S. District Court for the Eastern District of Michigan.
General Motors is facing an Employee Retirement Income Security
Act (ERISA) lawsuit in relation to its two retirement funds.
The case involved two General Motors ERISA Plans namely: the
Personal Savings Plan for Hourly Employees, and the Savings-
Stock Purchased Program for Salaried Employees, both holding
large amounts of General Motors stock.
The suit claimed the defendants put the interests of the company
ahead of the interests of the plan participants by continuing to
offer General Motors stock as an investment option, matching
employee contributions in General Motors stock and failing to
diversify the stock fund when it was clear General Motors stock
was not a prudent investment.
According to the suit, the members of the investment fund
committee were also responsible for overseeing the horribly
under-funded defined-benefit pension and healthcare plans.
U.S. District Judge Nancy Edmunds appointed Steve Berman as co-
lead counsel for the consolidation of three suits. A
consolidated suit was filed May 13, 2005. Defendants filed a
motion to dismiss the suit. But the U.S. District Court for the
Eastern District of Michigan denied the motion.
In the ruling, U.S. District Judge Nancy Edmunds cited that the
company had a duty to convey complete and accurate financial
information about General Motors' true financial health to the
plaintiffs, something the suit claims it failed to do.
On July 17, 2006, plaintiffs filed a First Amended Consolidated
Class Action Complaint, which principally adds allegations about
GM's restated earnings and reclassification of cash flows, but
which does not name any additional defendants or assert any new
claims.
On Aug. 24, 2006, the GM defendants filed a motion to dismiss
the amended complaint. No determination has been made that the
case may be maintained as a class action, according to the
company's Nov. 7 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30.
GENERAL MOTORS: New Class Certified in Canadian Export Lawsuit
--------------------------------------------------------------
The U.S. District Court for the District of Maine will certify a
class for damages in the suit, "In re New Market Vehicle
Canadian Export Antitrust Litigation Cases," which names General
Motors Corp. as defendant.
Some 79 purported class actions were filed in various state and
federal courts on behalf of all purchasers of new motor vehicles
in the U.S. since Jan. 1, 2001. The defendants include:
-- General Motors Corp.,
-- General Motors of Canada Ltd. along with Ford,
-- Daimler Chrysler,
-- Toyota,
-- Honda,
-- Nissan and BMW,
-- their Canadian affiliates,
-- the National Automobile Dealers Association, and
-- the Canadian Automobile Dealers Association
The federal court actions were consolidated for coordinated
pretrial proceedings in federal court under the caption "In re
New Market Vehicle Canadian Export Antitrust Litigation Cases"
in the U.S. District Court for the District of Maine. Meanwhile
the more than 30 California cases were consolidated in the
California Superior Court in San Francisco County as:
* "Belch v. Toyota, et al.," and
* "Bell v. General Motors"
The nearly identical complaints alleged that the defendant
manufacturers, aided by the association defendants, conspired
among themselves and with their dealers to prevent the sale to
U.S. citizens of vehicles produced for the Canadian market and
sold by dealers in Canada.
The complaints alleged that new vehicle prices in Canada are 10%
to 30% lower than those in the U.S. and that preventing the sale
of these vehicles to U.S. citizens resulted in the payment of
supracompetitive prices by U.S. consumers. In addition, the
complaints also alleged unjust enrichment and violations of
state unfair trade practices act.
As amended, the complaints sought injunctive relief under
federal antitrust law and treble damages under federal and state
antitrust laws, but did not specify damages.
On March 5, 2004, the federal court in Maine issued a decision
holding that the purported indirect purchaser classes failed to
state a claim for damages but allowed a separate claim seeking
to enjoin future alleged violations to continue.
On March 10, 2006, the federal court in Maine certified a
nationwide class of buyers and lessees under Federal Rule
23(b)(2) solely for injunctive relief.
According to the company's Nov. 7 form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30, the court ruled that it will certify a class action for
damages for six exemplar states under federal rule 23(b) (3)
after further discovery to determine the scope of the classes.
GM intends to appeal the ruling certifying the damages classes
to the U.S. Court of Appeals for the First Circuit and expects
that appeal will be consolidated with its pending appeal from a
prior order certifying a class for the six exemplar states for
injunctive relief only.
IAC/INTERACTIVECORP: N.Y. Court Mulls Dismissal of Stock Lawsuit
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
has yet to rule on a motion to dismiss a consolidated securities
fraud complaint filed against IAC/InterActiveCorp.
The case arose out of the company's Aug. 4, 2004 announcement of
its earnings for the second quarter of 2004.
The consolidated amended complaint, filed on May 20, 2005,
generally alleges that the value of the company's stock was
artificially inflated by pre-announcement statements about its
financial results and forecasts that were false and misleading
due to the defendants' alleged failure to disclose various
problems faced by the company's travel businesses.
The plaintiffs seek to represent a class of shareholders who
purchased IAC common stock between March 21, 2003 and Aug. 3,
2004. The defendants are IAC and 14 current or former officers
or directors of the company or its former Expedia travel
business.
The complaint purports to assert claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10(b)(5)
promulgated thereunder, as well as Sections 11 and 15 of the
U.S. Securities Act of 1933, and seeks damages in an unspecified
amount.
Two related shareholder derivative actions Garber and Butler
have been consolidated with the securities class action for pre-
trial purposes. The consolidated shareholder derivative
complaint, filed on July 5, 2005 against IAC (as a nominal
defendant) and 16 current or former officers or directors of the
company or its former Expedia travel business, is based upon
factual allegations similar to those in the securities class
action. It purports to assert claims for breach of fiduciary
duty, abuse of control, gross mismanagement, waste of corporate
assets, unjust enrichment, violation of Section 14(a) of the
Exchange Act, and contribution and indemnification.
The complaint seeks an order voiding the election of the
company's current Board of Directors, as well as damages in an
unspecified amount, various forms of equitable relief,
restitution, and disgorgement of remuneration received by the
individual defendants from the company.
On Sept. 15, 2005, IAC and the other defendants filed motions to
dismiss the complaints in both the securities class action and
the shareholder derivative suits. The plaintiffs opposed the
motions. On Oct. 12, 2006, the Court heard oral argument on the
motions to dismiss, which remain pending, according to the
company's Nov. 7 form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30.
The suit is "In re IAC/InteractiveCorp Securities Litigation,
Case No. 1:04-cv-07447-RJH," filed in the U.S. District Court
for the Southern District of New York under Judge Richard J.
Holwell.
Representing defendant Wachtell, Lipton, Rosen & Katz (all
defendants) is Stephen R. DiPrima at Wachtell, Lipton, Rosen &
Katz, 51 West 52nd Street, New York, NY 10019, Phone: (212) 403-
1382, Fax: (212) 403-2000, E-mail: srdiprima@wlrk.com.
Representing lead plaintiff Cement Masons and Plasterers
Retirement Trust are:
(1) Gregory M. Nespole at Wolf, Haldenstein, Adler, Freeman
& Herz L.L.P., 270 Madison Avenue, New York, NY 10016;
and
(2) Jeffrey S. Nobel at Schatz & Nobel, One Corporate
Center, 20 Church Street, Suite 1700, Hartford, CT
06103, Phone: 860-493-6292.
ILLINOIS: Judge Declares Waukegan Towing Law Unconstitutional
-------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
has ruled as unconstitutional the City of Waukegan's towing
ordinance that critics say targets the poor, The Waukegan News
Sun reports.
The decision came in a purported class action filed on Sept. 14,
2004, which challenges the city's three-year-old towing
ordinance.
Under the ordinance, drivers without a current license or valid
insurance face having their cars seized and paying a $500 fine
and $300 for towing.
Waukegan-based attorney Earline Navy filed the suit on behalf of
Larissa Harrington and her son, Jeffrey, contending that the
ordinance resulted in unreasonable seizure, in violation of the
Fourth Amendment to the Constitution.
Ms. Navy said that with the recent court ruling, she would now
seek to expand the case into a class action, thus requiring the
city to reimburse everyone whose car has been towed.
Judge Joan Lefkow set a Nov. 20, 2006 hearing to resolve the
amount of Ms. Navy's fees, which the city must pay. The judge
held the city must repay the Harringtons $800, but no punitive
damages are due.
The suit is "Harrington v. Doe, et al., Case No. 1:04-cv-05991,"
filed in the U.S. District Court for the Northern District of
Illinois under Judge Joan Humphrey Lefkow.
Representing the plaintiff is Earline D. Navy, 2813 19th Place,
North Chicago, IL 60064, Phone: (847) 625-0006.
Representing the defendants is Gretchen Anne Neddenriep of
Diver, Grach, Quade & Masini, 111 North County Street, Waukegan,
Il 60085, Phone: (708) 662-8611, E-mail: gnedden@yahoo.com.
KINDER MORGAN: Ohio Court Okays $2M Styrene Leak Suit Settlement
----------------------------------------------------------------
The Hamilton County Court of Common Pleas, Ohio approved a
proposed $2 million settlement in a consolidated class action
filed against Kinder Morgan Energy Partners, L.P. and certain of
its subsidiaries as well as other firms, over a styrene gas leak
in Cincinnati, Ohio.
On Aug. 28, 2005, a railcar containing the chemical styrene
began leaking styrene gas in Cincinnati, Ohio while en route to
a terminal operated by Queen City. The railcar was sent by the
Westlake Chemical Cor. from Louisiana, transported by Indiana &
Ohio Railway, and consigned to Westlake at its dedicated storage
tank at the Queen City terminal.
The railcar leak resulted in the evacuation of many residents
and the alleged temporary closure of several businesses in the
Cincinnati area. Within three weeks of the incident, seven
separate class action complaints were filed in the Hamilton
County Court of Common Pleas, including case numbers: A0507115,
A0507120, A0507121, A0507149, A0507322, A0507332, and A0507913.
On Sept. 28, 2005, the court consolidated the complaints under
consolidated case number A0507913. Concurrently, 13 designated
class representatives filed a Master Class Action Complaint in
the Hamilton County Court of Common Pleas, case number A0507105
against:
-- Westlake Chemical Corp.,
-- Indiana and Ohio Railway Corp.,
-- Queen City Terminals, Inc.,
-- Kinder Morgan Liquids Terminals, LLC,
-- Kinder Morgan GP, Inc. and
-- Kinder Morgan Energy Partners, L.P.
The complaint alleges negligence, absolute nuisance, nuisance,
trespass, negligence per se, and strict liability against all
defendants stemming from the styrene leak. It seeks
compensatory damages in excess of $25,000, punitive damages, pre
and post-judgment interest, and attorney fees.
The claims against the Indiana and Ohio Railway and Westlake are
based generally on an alleged failure to deliver the railcar in
a timely manner, which allegedly caused the styrene to become
unstable and leak from the railcar. The plaintiffs allege that
The Kinder Morgan had a legal duty to monitor the movement of
the railcar en route to its terminal and guarantee it's timely
arrival in a safe and stable condition.
On Oct. 28, 2005, Kinder Morgan filed an answer denying the
material allegations of the complaint. On Dec. 1, 2005, the
plaintiffs filed a motion for class certification. On Dec. 12,
2005, Kinder Morgan filed a motion for an extension of time to
respond to plaintiffs' motion for class certification in order
to conduct discovery regarding class certification. On Feb. 10,
2006, the court granted the company's motion for additional time
to conduct class discovery.
On Feb. 10, 2006, the court granted the company's motion for
additional time to conduct class discovery.
In June 2006, the parties reached an agreement to partially
settle the class action. On June 29, 2006, the plaintiffs filed
an unopposed motion for conditional certification of a
settlement class.
The settlement provides for a fund of $2.0 million to distribute
to residents within the evacuation zone (Zone 1) and residents
immediately adjacent to the evacuation zone (Zone 2). Persons
in Zones 1 and 2 reside within approximately one mile from the
site of the incident.
The court preliminarily approved the partial class action
settlement on July 7, 2006. The company agreed to participate
in and fund a minor percentage of the settlement.
A fairness hearing occurred on Aug. 18, 2006 for the purpose of
establishing final approval of the partial settlement. The
Court approved the settlement, entered a final judgment, and
certified a settlement class for Zones 1 and 2. The bar date or
claims has passed and Plaintiffs' counsel reports that they will
be paying claims in the immediate future.
Certain claims by other residents and businesses remain pending.
Specifically, the settlement and final judgment does not apply
to purported class action claims by residents in outlying
geographic zones more than one mile from the site of the
incident.
Defendants deny liability to such other residents in outlying
geographic zones and intend to vigorously defend such claims.
In addition, the non-Kinder Morgan defendants have agreed to
settle remaining claims asserted by businesses and will obtain a
release of such claims favoring all defendants, including Kinder
Morgan and its affiliates, subject to the retention by all
defendants of their claims against each other for contribution
and indemnity.
Kinder Morgan expects that a claim will be asserted by other
defendants against Kinder Morgan seeking contribution or
indemnity for any settlements funded exclusively by other
defendants, and Kinder Morgan expects to vigorously defend
against any such claims.
KINDER MORGAN: N.Mex Court Orders Review of Royalty Payout Suit
---------------------------------------------------------------
The New Mexico Supreme Court granted a petition for writ of
certiorari in a suit filed against Kinder Morgan Energy Partners
LP by members of the class in the settled Feerer suit.
This case involves a purported class action against Kinder
Morgan CO2 Co., L.P. alleging that it has failed to pay the full
royalty and overriding royalty (royalty interests) on the true
and proper settlement value of compressed carbon dioxide
produced from the Bravo Dome Unit in the period beginning Jan.
1, 2000.
The complaint purports to assert claims for violation of the New
Mexico Unfair Practices Act, constructive fraud, breach of
contract and of the covenant of good faith and fair dealing,
breach of the implied covenant to market, and claims for an
accounting, unjust enrichment, and injunctive relief.
The purported class is comprised of current and former owners,
during the period January 2000 to the present, who have private
property royalty interests burdening the oil and gas leases held
by the defendant, excluding the Commissioner of Public Lands,
the U.S. of America, and those private royalty interests that
are not unitized as part of the Bravo Dome Unit.
The plaintiffs allege that they were members of a class
previously certified as a class action by the U.S. District
Court for the District of New Mexico in the matter,
* Doris Feerer, et al. v. Amoco Production Co., et
al., USDC N.M. Civ. No. 95-0012
Plaintiffs allege that Kinder Morgan CO2 Co.'s method of paying
royalty interests is contrary to the settlement of the Feerer
Class Action. Kinder Morgan CO2 Co. filed a motion to compel
arbitration of this matter pursuant to the arbitration
provisions contained in the Feerer Class Action settlement
agreement, which motion was denied by the trial court.
Kinder Morgan appealed that ruling to the New Mexico Court of
Appeals. Oral arguments took place before the New Mexico
Court of Appeals on March 23, 2006, and the New Mexico Court of
Appeals affirmed the district court's order on Aug. 8, 2006.
Kinder Morgan filed a petition for writ of certiorari in the New
Mexico Supreme Court. The New Mexico Supreme Court granted the
petition on Oct. 11, 2006.
In addition to the matters listed above, various audits and
administrative inquiries concerning Kinder Morgan CO2 Co. L.P.'s
royalty and tax payments on carbon dioxide produced from the
McElmo Dome Unit are currently ongoing.
These audits and inquiries involve various federal agencies, the
State of Colorado, the Colorado oil and gas commission, and
Colorado county taxing authorities.
The suit J. Casper Heimann, Pecos Slope Royalty Trust and Rio
Petro Ltd., individually and on behalf of all other private
royalty and overriding royalty owners in the Bravo Dome Carbon
Dioxide Unit, New Mexico against the Kinder Morgan CO2 Co.,
L.P., No. 04-26-CL (8th Judicial District Court, Union County
New Mexico).
NATIONAL AUSTRALIA: Cutoff Date Set for New Claims in Stock Suit
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
set a Dec. 26, 2006 deadline for the filing of an amended
complaint with a substitute plaintiff in the class action, "In
re: National Australia Bank Securities Litigation."
The suit was brought as a class action on behalf of purchasers
of the equity, debt, and other securities of National Australia
Bank Ltd. including, but not limited to, its ordinary shares and
ADRs between April 1, 1999 and Sept. 3, 2001, inclusive (Class
Action Reporter, Oct. 30, 3006).
The consolidated class action complaint alleged that defendants
violated Sections 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934 by disseminating materially false and
misleading statements concerning fraud by NAB at its subsidiary,
HomeSide Lending, Inc.
In a recent order, entered on Oct. 26, 2006, the court dismissed
the complaint, finding that it lacked subject matter
jurisdiction over the claims of foreign purchasers of NAB
securities purchased on non-U.S. exchanges.
The court also ruled that the lead plaintiff who purchased NAB
American Depository Receipts did not sustain damages and
dismissed the claims of all ADR purchasers.
However, the court, expressly "granted leave to substitute a
lead domestic plaintiff and to otherwise amend the pleadings
with respect to ADR purchasers only."
This means that someone who purchased NAB ADRs between April 1,
1999 and Sept. 3, 2001, inclusive, and lost money on the
investment, may seek to be substituted as a lead plaintiff so
that the action can continue.
Additionally, the court has set a deadline for the substitution
of a new lead plaintiff. If an amended complaint with a new
lead plaintiff is not filed, the case will end and the claims of
all ADR purchasers will be dismissed. An amended complaint with
a substitute plaintiff must now be filed by Dec. 26, 2006.
The suit is "In re National Australia Bank Securities
Litigation, Case No. 1:03-cv-06537-BSJ," filed in the U.S.
District Court for the Southern District of New York under Judge
Barbara S. Jones.
Representing the defendants are:
(1) A. Graham Allen of Rogers, Towers, P.A., 1301
Riverplace Boulevard, Suite 1500, Jacksonville, FL
32207, Phone: (904) 398-3911, Fax: (904) 396-0663;
(2) George T Conway, III of Wachtell, Lipton, Rosen & Katz,
51 West 52nd Street, New York, NY 10019, Phone: (212)
403-1000, Fax: (212) 403-2000, E-mail:
GTConway@wlrk.com; and
(3) Robert Scott Loigman and Eric Jonathan Seiler both of
Friedman, Kaplan, Seiler and Adelman, 1633 Broadway,
NY, NY 10019, Phone: (212) 833-1114, Fax: (212) 373-
7914, E-mail: rloigman@fklaw.com.
Representing plaintiffs are:
(1) Thomas A. Dubbs and James W. Johnson both of Labaton
Rudoff & Sucharow LLP, 100 Park Avenue, 12th Floor, New
York, NY 10017, Phone: 212-907-0700 or 212-907-0859,
Fax: 212-818-0477 or 212-883-7059, E-mail:
tdubbs@labaton.com or jjohnson@labaton.com; and
(2) Menachem E. Lifshitz of Bernstein Liebhard & Lifshitz,
LLP, 10 East 40th Street, New York, NY 10016, Phone:
212-779-1414, Fax: 212-779-3218, E-mail:
lifshitz@bernlieb.com.
NDCHEALTH CORP: 11th Circuit Upholds "Garfield" Suit Dismissal
--------------------------------------------------------------
The U.S. Court of Appeals for the 11th Circuit upheld the
dismissal of a putative securities class action filed against
NDCHealth Corp. and certain of its officers and advisors while
further detailing the heightened scienter standard under the
Private Securities Litigation Reform Act, the Securities
Litigation Alert reports.
The court finds that the investors' allegations, which accused
NDC and its accounting firm of accounting irregularities arising
from so-called "channel stuffing," were "vague and difficult to
evaluate" and did not state with particularity facts that would
support a strong inference that the defendants acted in a
severely reckless manner.
The plaintiffs attempted to bootstrap the certifications made by
the company's officers under Sarbanes-Oxley as support for their
scienter allegations.
This case reaffirms the 11th Circuit's previously held "severely
reckless" scienter standard and appears to extend that standard
to allegations against individual defendants.
Originally filed on April 7, 2004, the suit "Garfield v.
NDCHealth Corp. et al., was brought on behalf of all purchasers
of the company's common stock from Oct. 1, 2003 to March 31,
2004. The complaint alleged that the company employed improper
revenue recognition practices in violation of Generally Accepted
Accounting Principles (Class Action Reporter, Oct. 4, 2004).
The complaint was filed shortly after the company's April 1,
2004 announcement that it would delay the release of its fiscal
third quarter financial results pending the completion of a
special independent review of the timing of recognition of
revenue related to sales of the company's physician practice
management systems through value added resellers.
On Aug. 9, 2004, the complaint was amended to extend the
putative class period to include the period from Aug. 21, 2002
through April 19, 2004 and to add additional claims related to
the timing of the company's write-down of its investment in
MedUnite.
On Sept. 1, 2004, the Complaint was amended further to include
Charles W. Miller, David H. Shenk, James W. FitzGibbons and Lee
Adrean, each an officer of the company, and Ernst & Young LLP,
the company's independent registered public accounting firm, as
additional defendants.
As amended, the complaint asserts violations of Section 10(b) of
the U.S. Securities Exchange Act of 1934, as amended and Rule
10b-5 promulgated thereunder and Section 20(a) of the Exchange
Act. The lawsuit seeks unspecified damages, attorney's fees and
costs, and prejudgment interest.
The company's motion to dismiss the second amended complaint was
filed on Oct. 13, 2004, and that motion was granted by order of
the Honorable William S. Duffey Jr. of the U.S. District Court
Judge for the Northern District of Georgia.
The suit is case no. 05-14765.
OREGON: Settles Retirees' Suit over PERS, Disability Payments
-------------------------------------------------------------
The State of Oregon has reached a settlement for a purported
class action involving more than 300 former public employees who
were forced to retire because of work-related injuries or
disabilities, The Associated Press reports.
Salem retiree Brad Howser filed the suit in Marion County
Circuit Court against the Public Employees Retirement System
(PERS) and the state revenue department. Mr. Howser sought for
refunds of $20,000 he had paid in taxes on the advice of the
retirement system.
Due to PERS' advice, the workers involved in the case paid
income taxes on disability payments. In 2004, after getting
different legal advice from a new law firm, it was determined
that the payments were not taxable.
Plaintiffs' attorneys Paul Connolly and Donna Goldian of
Connolly & Goldian, LLP, explained that under the settlement,
which was approved on Nov. 17, 2006, former workers will get
typical payments of $5,000 to $10,000, although some may get
nothing and others as much as $30,000.
The deal also calls for the state to reimburse retirees who paid
taxes they didn't owe. For their part, retires must now submit
their past tax filings to show how much they paid so as to get a
piece of the settlement, plaintiffs' attorney Donna Goldian
explains.
For more details, contact Connolly & Goldian, LLP, 2731 12th
St., SE, P.O. Box 3095, Salem, OR 97302-0095 Phone: (503) 585-
2054 Fax: (503) 584-7037, E-mail: donna@connollygoldian.com.
PACIFIC CAPITAL: Calif. Refund Anticipation Loan Suit Continues
---------------------------------------------------------------
A court of appeal has allowed complaints of California consumer
protection laws violations to go ahead against Pacific Capital
Bancorp.
The company has been a defendant in a class action brought on
behalf of persons who entered into a refund anticipation loan
application and agreement with the company from whose tax refund
the company deducted a debt owed by the applicant to another RAL
lender.
The lawsuit was filed on March 18, 2003 in the Superior Court in
San Francisco, California as "Canieva Hood and Congress of
California Seniors v. Santa Barbara Bank & Trust, Pacific
Capital Bank, N.A., and Jackson-Hewitt, Inc."
The company is a party to a separate cross-collection agreement
with each of the other RAL lenders by which it agrees to collect
sums due to those other lenders on delinquent RALs by deducting
those sums from tax refunds due to its RAL customers and
remitting those funds to the RAL lender to whom the debt is
owed.
This cross-collection procedure is disclosed in the RAL
Agreement with the RAL customer and is specifically authorized
and agreed to by the customer. The plaintiff does not contest
the validity of the debt, but contends that the cross-collection
is illegal and requests damages on behalf of the class,
injunctive relief against the company, restitution of sums
collected, punitive damages and attorneys' fees.
Venue for this suit was changed to Santa Barbara. The company
filed an answer to the complaint and a cross complaint for
indemnification against the other RAL lenders. On May 4, 2005,
a superior court judge in Santa Barbara granted a motion filed
by the company and the other RAL lenders, which resulted in the
entry of a judgment in favor of the company dismissing the suit.
The plaintiffs have filed an appeal. A hearing before the Court
of Appeal was held on June 14, 2006, and the matter was taken
under submission. On Sept. 29, 2006 the Court of Appeal, in a
2-1 decision, issued an opinion, which held that the claims in
the Complaint that the company had violated certain California
consumer protection laws were not preempted by Federal law and
regulations. The company and the Cross-Defendants have filed a
Motion for Reconsideration.
PACIFIC CAPITAL: Settles Lawsuit Over RT Agreement in Calif.
------------------------------------------------------------
Pacific Capital Bank, N.A., which operates under brand name
Santa Barbara Bank & Trust, and co-defendant Intuit, entered
into an agreement to settle a suit brought on behalf of persons
who entered into a refund transfer application and agreement (RT
Agreement) with the company from whose tax refund the company
deducted a debt owed by the applicant to another refund
anticipation loan lender.
The lawsuit was filed on May 13, 2003 in the Superior Court in
San Francisco, California as, "Alana Clark, Judith Silverstine,
and David Shelton v. Santa Barbara Bank & Trust."
The cross-collection procedures mentioned in the description
above of the Hood case is also disclosed in the refund transfer
application and agreement with each RT customer and is
specifically authorized and agreed to by the customers.
The plaintiffs do not contest the validity of the debt, but
contend that the cross-collection is illegal and request damages
on behalf of the class, injunctive relief against the company,
restitution of sums collected, punitive damages and attorneys'
fees.
The company filed a motion for a change in venue from San
Francisco to Santa Barbara. The plaintiffs' legal counsel
stipulated to the change in venue. Thereafter, the plaintiffs
dismissed the complaint without prejudice.
The plaintiffs filed a new complaint in San Francisco limited to
a single cause of action alleging a violation of the California
Consumer Legal Remedies Act. The company filed an answer to the
complaint and a cross complaint for indemnification against the
other RAL lenders.
On Oct. 10, 2006, the company, co-defendant Intuit and the
plaintiff who represents the class entered into a settlement
agreement, which was subject to court approval. On Oct. 16,
2006, the Superior Court judge issued an order, which
preliminarily approved the settlement.
Proceeds of the settlement are expected to be paid in the first
quarter of 2007.
PACIFIC CAPITAL: Dismissal of Suit Over Processing Fee Appealed
---------------------------------------------------------------
Plaintiffs in a class action filed against Pacific Capital
Bancorp over its refund anticipation loan processing fee is
appealing the dismissal of the suit by the Supreme Court of the
State of New York, County of New York.
The company is a defendant in a class action brought on behalf
of residents of the state of New York who engaged Jackson
Hewitt, Inc. to provide tax preparation services and who through
Jackson Hewitt entered into an agreement with the company to
receive a refund anticipation loan. Jackson Hewitt is also a
defendant in the suit.
The lawsuit was filed on June 18, 2004, in the Supreme Court of
the State of New York, County of New York as, "Myron Benton v.
Jackson Hewitt, Inc. and Santa Barbara Bank & Trust Co." As
part of the RAL documentation, the customer receives and signs a
disclosure form which discloses that the company may share a
portion of the federal refund processing fee and finance charge
with Jackson Hewitt.
The plaintiffs allege that the failure of Jackson Hewitt, and
the company to disclose the specific amount of the fee that
Jackson Hewitt, receives is unlawful and request damages on
behalf of the class, injunctive relief, punitive damages and
attorneys' fees.
The company filed a motion to dismiss the complaint. In
response to the complaint, on December 22, 2004, the plaintiffs
filed an amended complaint. The amended complaint added three
new causes of action:
-- a cause of action for an alleged violation of California
Business and Professions Code Sections 17200 and 17500,
et seq, as a result of alleged deceptive business
practices and false advertising;
-- a cause of action for an alleged violation of California
Consumer Legal Remedies Act, California Civil Code
Section 1750, et seq; and
-- a cause of action for alleged negligent
misrepresentation.
The company filed a motion for summary judgment. The plaintiff
filed a motion for partial summary judgment. Following a court
hearing on December 6, 2005, the judge took the matter under
submission.
In an opinion filed on July 26, 2006, the judge issued an
Opinion and Order, which granted the company motion for summary
judgment, denied the plaintiff's motion for partial summary
judgment, and dismissed the amended complaint.
On Aug. 17, 2006, judgment was entered in favor of the company.
On Sept. 15, 2006 the plaintiff filed a notice of appeal.
SEARS ROEBUCK: Dec. 8 Hearing Set for $215M Stock Suit Agreement
----------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
will hold a fairness hearing on Dec. 8, 2006 for the proposed
$215,000,000 settlement in the matter, "In Re Sears, Roebuck and
Co. Securities Litigation, Case No. 02 C 07527."
Any objections to the settlement must be made by Nov. 20, 2006.
Deadline for submission of claim form is on Jan. 5, 2007.
The suit covers all purchasers of the securities of Sears,
Roebuck and Co. between Oct. 24, 2001 and Oct. 17, 2002.
A consolidated amended class action complaint for violations of
federal securities laws was filed against the company on June
16, 2003. It alleges, among other things, that defendants
issued materially false and misleading press releases and other
statements regarding Sears' financial condition between Oct. 24,
2001 and Oct. 17, 2002, inclusive, in a scheme to artificially
inflate the value of Sears securities.
The allegations of the complaint focus on Sears' credit card
operations, which (until Sears sold its credit card operations
in 2003) managed one of the largest credit card businesses in
the U.S., and which had issued billions of dollars' worth of
credit to holders of Sears' traditional private label store
credit card and to holders of Sears' more recently introduced
general purpose credit card.
More specifically, the complaint alleges that, during the class
period, the defendants concealed material adverse information
concerning the financial condition, performance and prospects of
Sears' credit card operations, and that defendants issued a
series of falsely positive statements in which, inter alia, they
allegedly:
-- misrepresented the performance and quality of Sears'
credit card operations and concealed the deteriorating
condition of those operations;
-- misled the investing public into believing that the
delinquency and charge-off rates of Sears' credit card
products were comparable to, or better than, those of
other leading credit card issuers; and
-- failed to disclose that Sears' reserves for bad credit
card debt were materially inadequate.
The complaint alleges that these alleged material
misrepresentations and omissions caused Sears' public statements
issued during the class period to be materially false and
misleading, in violation of the federal securities laws.
The complaint further alleges that lead plaintiff and other
class members purchased Sears securities during the class period
at prices artificially inflated as a result of the defendants'
dissemination of materially false and misleading statements
regarding Sears, allegedly in violation of Sections 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934, and Rule 10b-
5 promulgated thereunder.
The defendants deny all allegations of misconduct contained in
the complaint, and deny having engaged in any wrongdoing
whatsoever.
The defendants maintain that the allegedly false and misleading
statements were truthful and not misleading, and that all
material facts were disclosed. In addition, the defendants have
asserted numerous affirmative defenses.
On July 16, 2003, the defendants moved to dismiss the complaint.
By a court rder dated Oct. 23, 2003, the court denied the
defendants' motions to dismiss. This ruling assumed the truth
of the allegations of the complaint and did not make factual
findings.
Since November 2003, when the court denied the defendants'
motion to dismiss, the parties have engaged in extensive
discovery proceedings relating to the claims asserted in the
complaint.
During this period, Sears produced to the lead plaintiff and its
counsel over 4.5 million pages of documents and 1.45 gigabytes
of electronic data files, which included voluminous internal
Sears emails and data relating to Sears' credit card operations.
In addition, plaintiffs' counsel obtained and reviewed
approximately 50,000 additional pages of documents that it
subpoenaed from over a dozen third parties (including Sears
outside auditors) relating to Sears' credit card operations.
Plaintiffs' counsel also took numerous depositions of current or
former officers, directors and/or employees of Sears, including
the most senior executives in Sears' credit card business during
the class period.
Plaintiff's counsel also consulted extensively, over a more than
two-year period, with experts in the credit card industry
concerning the evidence developed in the course of pre-trial
discovery.
Throughout the litigation, Sears and the other defendants have
vigorously disputed plaintiffs' allegations that Sears or the
individual defendants made any public statements that
misrepresented the financial condition or performance of Sears'
credit card operations.
In addition, defendants assert that all of their public
statements were truthful and made in good faith, and deny that
any such statements were made with knowing or reckless disregard
for the truth (as is required to establish liability), and deny
that any member of the class was harmed by them or their actions
in any way.
In the spring of 2006, the lead plaintiff:
* the Department of the Treasury of the State of New Jersey
and its Division of Investment
and plaintiffs' counsel reached an agreement in principle with
defendants and defendants' counsel on the terms of the
settlement discussed in this notice, subject to court approval.
The settlement in principle was reached only after lengthy
mediation proceedings supervised by a retired federal district
court judge.
The court in this action did not decide in favor of Plaintiffs
or in favor of defendants. Instead, both sides agreed to a
settlement.
That way, both sides avoid the inherent risks and significant
additional costs of a trial and any appeals, and class members
who suffered losses on their transactions in Sears securities
during the class period will get compensation.
The lead plaintiff and its counsel believe, after weighing the
risks and opportunities of further litigation against the
benefits of the proposed $215 million settlement (which, in
addition, requires defendants to pay for all reasonable costs
and expenses of class notice and settlement administration),
that the proposed settlement represents a significant recovery
for the class and is the best interests of all class members.
In re: Sears, Roebuck and Co. Securities Litigation
c/o The Garden City Group, Inc., Claims Administrator, P.O. Box
9000 #6228, Merrick, New York 11566-9000, Phone: (800) 364-0216,
Web site: http://www.gardencitygroup.com/.
SPRINT NEXTEL: Faces Calif. Suit Over Cell Phone Billing Charges
----------------------------------------------------------------
Sprint Nextel Corp. and Nextel of California, Inc. have been
named defendants in a class action filed in the U.S. District
Court for the Central District of California alleging that the
company has been charging its cell phone customers $1.15 a month
for a service it has not provided since April 2002, the
Courthouse News reports.
The suit alleges violations of federal law, California state law
and common law arising out of the unfair, deceptive and
misleading practices engaged in by defendants in continuing to
bill and collect from their customers monthly a charge of $1.15
for network access or a service which defendants no longer even
proved to their customers.
Specifically, the suit, filed by the EH Butland Development
Corp., claims Sprint Nextel has been billing customers for
"network access" for a service it no longer provides.
It claims Sprint Nextel "did not remove the charge from their
customers' bills but rather left it to their customers to
discover and demand that defendants remove the charge."
Butland further claims it has been paying $1.15 for multiple
cellular lines for more than four years and receiving nothing
for it.
The class, which plaintiff seeks to represent, is defined as all
residents of the U.S. of America who have paid the $1.15 monthly
fee at any time after the date on which defendants ceased to
provide the service access for which the fee was charged.
Plaintiff also has defined and defines the following subclass
which it seeks to represent as: all residents of the state of
California who have paid the $1.15 monthly fee at any time after
the date on which defendants ceased to provide the service or
access for the fee was charged.
Common questions of law and fact exist to the class members, as
required by Fed. R. Civ. P. 23(a)(2), and predominate over any
questions which affect only individual class members within the
meaning of Fed. R. Civ. P. 23(b)(3).
The common questions of fact include, but are not limited to:
-- whether defendants disclosed to their customers that
defendants access a recurring charge of $1.15 per month
for a service or access no longer provided by
defendants;
-- whether defendants collected from their customers the
$1.15 monthly recurring charge for a service or access
that is no longer provided by defendants; and
-- whether defendants' failure to itemize this charge
misled their customers into paying the charge.
The questions of law which are common to the members of the
class include, but are not limited to:
-- whether defendants' failure to make full and adequate
disclosures to their customers concerning the $1.15
monthly charge violates Section 201(b) of the Federal
Communications Act; and
-- whether the class is entitled to the declaratory relief
sought herein.
The questions of law which are common to the members of the
California subclass include, but are not limited to:
-- whether defendants' failure to make full and adequate
disclosures to their customers concerning their practice
or assessing a monthly recurring charge of $1.15 per
month for service or access no longer provided by
defendants constitutes a breach of the class members'
contractual agreements with defendants;
-- whether defendants' failure to make full and adequate
disclosures to their customers concerning their practice
of assessing a monthly recurring charge of $1.15 per
month for services or access no longer provided by
defendants constitutes an unfair, unlawful and/or
fraudulent business practice under California Business
and Professions Code Section 17200, et seq.;
-- whether defendants' failure to make full and adequate
disclosures to their customers concerning the $1.15
monthly charges violates Section 201(b) of the Federal
Communications Act; and
-- whether the California Subclass is entitled to the
declaratory relief sought herein.
Plaintiff seeks disgorgement, restitution with interest, and an
injunction.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?15c5
The suit is "E.H. Butland Development Corp. et al v. Sprint
Nextel Corp. et al, Case No. CV 06 7463 DSF (RZX)," filed in the
U.S. District Court for the Central District of California,
Western Division.
Representing plaintiffs are:
(1) J. Paul Gignac, Katherin Donoven and Lisa Johnston
Nicholes all of Arias Ozzello & Gignac, 4050 Calle
Real, Suite 130, Santa Barabara, California 93110,
Phone: (805) 683-7400, Fax: (805) 683-7401, E-mail:
j.paul@aogllp.com; and
(2) Robert A. Curtis of Foley Bezek Behle & Curtis, LLP, 15
West Carrillo Street, Santa Barbara, CA 93101-8215,
Phone: (805) 962-9495, Fax: (805) 962-0722, E-mail:
rcurtis@foleybezek.com.
STAKTEK HOLDINGS: Tex. Court Mulls Motion to Certify Stock Suit
---------------------------------------------------------------
The U.S. District Court for the Western District of Texas has
yet to certify a securities fraud class action filed against
Staktek Holdings, Inc. and two of its executive officers,
according to the company's Nov. 7, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30, 2006.
On Oct. 22, 2004, a class action complaint for violations of
U.S. federal securities laws was filed against the company in
the U.S. District Court in New Mexico.
Plaintiff claims that the defendants failed to disclose to the
public an anticipated shortage of computer memory chips and that
they knew or recklessly disregarded that the anticipated
shortage would have a materially adverse impact on its revenue
and earnings.
In addition, the plaintiff claims that the defendants failed to
disclose to investors that the industry's transition to a new
generation of higher-capacity memory chips was causing computer
makers to stockpile supplies of older memory chips, increasing
the shortage. The suit covers individuals who purchased the
company's stock between Nov. 26, 2003 and May 19, 2004.
In April 2005, the case was transferred to federal district
court in Austin, Texas, and in June the plaintiff amended her
complaint, adding the company's chairman of the board as a
defendant.
In July 2005, the company filed a motion to dismiss the amended
complaint, which the court denied on March 30, 2006 (Class
Action Reporter, June 13, 2006).
A class has not been certified at this time, the company said in
the regulatory filing.
The suit is "Holzwasser v. Staktek Holdings, In, et al., Case
No. 1:05-cv-00239-LY," filed in the U.S. District Court for
Western District of Texas under Judge Lee Yeakel.
Representing the plaintiffs are:
(1) Peter A. Binkow and Dale MacDiarmid of Glancy Binkow &
Goldberg, LLP, 1801 Avenue of The Stars, #311, Los
Angeles, CA 90067, US, Phone: (310) 201-9150, Fax:
(310) 201-9160; and
(2) Howard G. Smith of Smith & Smith, L.L.P., 3070 Bristol
Pike, Suite 112, Bensalem, PA 19020, Phone: (215) 638-
4847, Fax: (215) 638-4867.
Representing the defendants are:
(i) Robert W. Brownlie and Jennifer A. Lloyd of DLA Piper
Rudnick Gray Cary, US, Phone: (619) 699-3665 and (512)
457-7000, Fax: 619/699-2701 and 512/457-7001, E-mail:
jenny.lloyd@dlapiper.com; and
(ii) Stephanie Lucie, 8900 Shoak Creek Blvd., #125 Austin,
TX 78757, US, Phone: (512) 454-9531, Fax: (512) 454-
2598.
TIME WARNER: Customers File Suit in Calif. Over Service Switch
--------------------------------------------------------------
Time Warner Cable, Inc. faces a purported class action filed in
Los Angeles County Superior Court by customers who are
experiencing service disruptions and problems with their cable
TV and Internet services, The Los Angeles Times reports.
The suit was filed former Comcast Communications Corp. and
Adelphia Communications Corp. customers on Nov. 22, 2006,
alleging that the disruptions and other problems were the result
of the conversion of those services to Time Warner's network.
It comes as the company works to move 1.6 million customers to
its system.
The suit alleges that the widespread disruption made a mockery
of the company's promises that these services would not be
interrupted as a result of the migration. Plaintiffs are
seeking class-action status for the case.
Time Warner, Inc. on the Net: http://www.timewarner.com/.
TOBACCO LITIGATION: Supreme Court Refuses to Review 'Lights' Suit
-----------------------------------------------------------------
The U.S. Supreme Court denied a request by plaintiffs to review
a suit filed against Philip Morris USA by smokers who alleged
they were misled about the health risks of 'light' cigarettes,
reports say.
The suit was brought on behalf of an estimated 1.1 million
smokers who bought Marlboro Lights or Cambridge Lights in the
state over a 30-year period.
In 2003, Madison County Circuit Court Judge Nicholas Byron
handed down a $10.1 billion judgment against Philip Morris
saying it violated the provisions of Illinois' Consumer Fraud
Act, when it described Cambridge Lights and Marlboro Lights as
having "lowered tar and nicotine" content. The statements he
said had the effect of deceiving 1.1 million Illinois smokers
into believing that the "lights" were safer than the more full-
flavored regular cigarettes.
The Illinois Supreme Court overturned the award in 2005 ruling
that smokers couldn't invoke a state consumer protection law
because the Federal Trade Commission had endorsed the "light"
and "low-tar" descriptions in settlements with other cigarette
makers.
The suit is "Sharon Price and Michael Fruth, et al. v. Philip
Morris Incorporated, No. 00-L-112," filed under Judge Nicholas
Byron.
Class counsel is Stephen Tillery of Korein Tillery, Mail: 10
Executive Woods Court, Belleville, IL 62226, Phone: (618) 277-
1180, Fax: (618) 222-6939 E-mail: contact@koreintillery.com.
Lawyers for the company are:
(1) James R. Thompson, George C. Lombardi, Jeffrey M.
Wagner, Julie A. Bauer and Stuart Altschuler of Winston
& Strawn LLP, 35 West Wacker Drive, Chicago IL 60601-
9703, Phone: 312-558-5600
(2) Michele Odorizzi, Joel D. Bertocchi, Michael K. Forde
of Mayer, Brown, Rowe & Maw LLP, 190 South LaSalle
Street, Chicago, IL 60603-3441, Phone: 312-782-0600
(3) Larry Hepler, Beth A. Bauer of Burroughs, Hepler,
Broom, Macdonald, Hebrank & True, LLP, 103 West
Vandalia Street, Suite 300, Post Office Box 510,
Edwardsville, IL 62025-0510 Phone: 618-656-0184
(4) Kevin M. Forde, Kevin M. Forde, Ltd., 111 West
Washington Street, Suite 1100, Chicago, IL 60602 Phone:
312-641-1441
New Securities Fraud Cases
BODISEN BIOTECH: Glancy Binkow Files Securities Suit in N.Y.
------------------------------------------------------------
Glancy Binkow & Goldberg, LLP, filed a class action in the U.S.
District Court for the Southern District of New York on behalf
of a class consisting of all persons or entities who purchased
or otherwise acquired the common stock of Bodisen Biotech, Inc.
between Aug. 26, 2005 and November 14, 2006.
The complaint charges Bodisen, certain of the company's
executive officers, and Benjamin Wey (a/k/a Benjamin Wei) and
his company New York Global Group, Inc. (NYGG) with violations
of federal securities laws.
Among other things, plaintiff claims that defendants' material
omissions and dissemination of materially false and misleading
statements concerning Bodisen's business and operations caused
the company's stock price to become artificially inflated,
inflicting damages on investors.
Bodisen describes itself as primarily engaged in the
development, manufacture and sales of organic fertilizers and
pesticides in the People's Republic of China.
The complaint alleges that during the class period defendants
failed to disclose material information concerning the company's
relationships with Benjamin Wey, NYGG and related companies.
On Nov. 12, 2006, Bodisen issued a press release stating, among
other things, that it had received a Deficiency Letter from the
American Stock Exchange (AMEX), concerning Bodisen's
relationship with NYGG, stating that "AMEX believes that the
company made insufficient or inaccurate disclosure in its public
filings with regard to its relationship with, and payments to, a
consultancy firm and its affiliates both prior to and subsequent
to its listing on the AMEX.
Additionally, in the context of the company's relationship with
the consultancy firm, AMEX expressed concern that the company
has internal control issues related to its accounting and
financial reporting obligations."
The November 12, 2006, press release followed news reports,
which had raised concerns about the company's relationships with
Benjamin Wey and NYGG and certain of its affiliated entities.
Plaintiff seeks to recover damages on behalf of Class members
and is represented by Glancy Binkow & Goldberg LLP, a law firm
with significant experience in prosecuting class actions, and
substantial expertise in actions involving corporate fraud.
Interested parties can move the court no later than Jan. 15,
2007, to serve as lead plaintiff.
For more details, contact Michael Goldberg, Esq., of Glancy
Binkow & Goldberg LLP, 1801 Avenue of the Stars, Suite 311, Los
Angeles, California 90067, Phone: (310) 201-9150 or (888) 773-
9224, E-mail: info@glancylaw.com, Web site:
http://www.glancylaw.com.
MARVELL TECHNOLOGY: Kaplan Fox Files Securities Suit in Calif.
--------------------------------------------------------------
Kaplan Fox & Kilsheimer, LLP, filed a class action in the U.S.
District Court for the Northern District of California against
Marvell Technology Group, Ltd., and certain of its officers and
directors, on behalf of all persons or entities who purchased
the publicly traded common stock of Marvell between Feb. 24,
2005 and Oct. 2, 2006.
The complaint alleges that during the class period, defendants
violated Sections 10(b), 20(a) and 14(a) of the U.S. Securities
Exchange Act of 1934 by publicly issuing a series of false and
misleading statements regarding the company's business and
financial results, thus causing Marvell's publicly traded common
stock to trade at artificially inflated prices.
In particular, the complaint alleges that throughout the class
period, defendants failed to disclose material adverse facts
about the company's financial status, business, and prospects.
Specifically, defendants are alleged to have failed to disclose:
-- that the actual date of significant stock option grants
to company executives were purposely concealed by the
company;
-- that the company's financial statements were presented
in violation of generally accepted accounting
principles (GAAP);
-- that the company failed to have in place the personnel
and controls necessary to issue accurate financial
reports and projections; and
-- that, as a result, the company's financial results were
materially overstated at all relevant times.
On Oct. 2, 2006, after the close of trading, Marvell filed a
Form 8-K with the SEC which set forth the conclusion of its
special committee that Marvell's financial statements and all
earning press releases and similar communications issued by the
company relating to periods beginning on or after its initial
public offering in June 2000 should no longer be relied on.
The company announced that it would restate historical financial
statements to record additional non-cash charges for stock-based
compensation expense related to certain past option grants.
On Oct. 3, 2006, based in substantial part on these revelations,
Marvell stock plummeted, closing at $16.80 per share, a decline
of $2.29 per share or approximately 12%.
Also, during the class period, it is alleged that Marvell
insiders sold approximately 4 million artificially inflated
Marvell shares for proceeds of approximately $175 million.
Interested parties may move the court no later than Dec. 5, 2006
to serve as a lead plaintiff for the class.
For more details, contact Kaplan Fox & Kilsheimer, LLP, Phone:
(415) 772-4700, Fax: (415) 772-4707, E-mail: mail@kaplanfox.com,
Web site: http://www.kaplanfox.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Copyright 2006. All rights reserved. ISSN 1525-2272.
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are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
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