/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/061204.mbx C L A S S A C T I O N R E P O R T E R Monday, December 4, 2006, Vol. 8, No. 240 Headlines 7-ELEVEN: Ind. Appeals Court Allows Goshen Gasoline Spill Suit ARIZONA: Shores Residents Sues VLPOA Over Shoreline Maintenance BMO NESBITT: To Pay Part of $24.7M FMF Capital Stock Suit Deal CABLEVISION SYSTEMS: Expedited Discovery Ordered in N.Y. Lawsuit CABLEVISION SYSTEMS: SLC Files Motion to Stay N.Y., Del. Suits CHUBB CORP: Still Faces Litigation Over Contingent Commissions DAIMLER-CHRYSLER: Workers File Suit in Ill. Over "Temp" Status DYNAMICS RESEARCH: Appeals Ruling in Mass. Employee Litigation FEDERAL NATIONAL: Second Amended Complaint Filed in D.C. Lawsuit FELTEX CARPETS: Shareholders Urged to Support Lawsuit Over IPO HERSHEY INC: Recalls Canadian Candy Products Due to Salmonella INDEPENDENCE BLUE: Penn. Supreme Court Revives Suit Over Surplus JOHNSON & JOHNSON: Still Faces Employment Bias Lawsuit in N.J. JOHNSON & JOHNSON: Still Faces Endo-Mechanical Devices Lawsuits JOHNSON & JOHNSON: Trial Starts on Mass. Class in AWP Litigation KRAFT FOODS: Faces Calif. Consumer Suit Over Fraudulent Labeling LOUISIANA: Judge Overturns State Video Game Restriction Statute MARTHA STEWART: Expects Hearing in N.Y. Stock Suit Deal in 2006 MEDIACOM LLC: Appeal in Mo. Landowners Suit Certification Denied MICROSOFT CORP: $200M Available in Wis. Antitrust Suit Agreement MOTOROLA INC: Continues to Face 401(k) Litigation in Ill. MURPHY OIL: Claims Deadline Set for $330M Oil Spill Settlement NEW JERSEY: Parents Sues School District, Seek NCLB Compliance NORTH CAROLINA: Court Nixes Brunswick County EMTs' Overtime Suit NS GROUP: Faces Lawsuit in Ky. Over IPSCO-PI Acquisition Merger NVE BANK: CD Holder Files Litigation in N.J. Over Lower Rate PHILIPPINES: SEAPA Backs Journalists' Suit v. First Gentleman REDBACK NETWORKS: Officials Continue to Face Calif. Stock Suit SIRENZA MICRODEVICES: Settles Del. Suit Over Micro Linear Deal TASER INT'L: Awaits Approval of $20M Securities Suit Settlement TASER INT'L: Parties Agree to Dismissal of Ill. Stun Gun Lawsuit TEXTRON INC: R.I. Court Enters Favorable Ruling in ERISA Lawsuit TREX CO: Dismissal of Va. Securities Fraud Litigation Appealed WESBANCO INC: W.Va. Court Mulls Okay for "Martin" Settlement New Securities Fraud Cases BODISEN BIOTECH: Yourman Alexander Announces Stock Suit Filing IKANOS COMMS: Brower Piven Announces N.Y. Securities Suit Filing PEGASUS WIRELESS: Schatz Nobel Announces Securities Suit Filing ********* 7-ELEVEN: Ind. Appeals Court Allows Goshen Gasoline Spill Suit -------------------------------------------------------------- The Indiana Court of Appeals affirmed a Superior Court decision allowing a class action over a gasoline spill at a South Main Street convenience store in Goshen 10 years to go forward against 7-Eleven, MDK Corp., C & J Realty and ENSR Corp., Goshen News reports. Larry and Kathy Bowens and a group of about 30 residents of the area of Main and Jackson streets filed the suit in Elkhart Superior Court No. 3 in September 2002. It seeks damages for the effects of a fuel spill that the companies allegedly failed to warn the residents about. Judge George Biddlecome of the Elkhart Superior Court No. 3 had ruled that the class action might go forward. The defendant's appealed, but the Indiana Court of Appeals denied their request to dismiss the suit. A copy of the court's decision is available free of charge at: http://ResearchArchives.com/t/s?162b The suit is case no. 20A03-0505-CV-201. The attorney working on behalf of the Bowens and the Jackson Street group is John Ulmer member at Yoder, Ainlay, Ulmer & Buckingham, LLP, 130 North Main Street, P.O. Box 575, Goshen, Indiana 46527-0575 (Elkhart Co.), Phone: 574-533-1171, Telecopier: 574-534-4174. ARIZONA: Shores Residents Sues VLPOA Over Shoreline Maintenance ---------------------------------------------------------------- The Ventana Lakes Property Owners Association (VLPOA) faces a purported class action filed by residents of the Shores, a subdivision near Beardsley Road and 106th Avenue in Peoria, The Newszap Arizona reports. Ventana Lakes is a 1,700-home association whose major crossroads are 107th Avenue and Beardsley Road. VLPOA absorbed Shores'159- home Home Owner Association (HOA) in 1992. Though the shorelines are part of the homeowner's property, the original HOA maintained the steep banks. After the integration, Ventana Lakes continued maintenance of the lakefront property along the Shores (Class Action Reporter, Oct. 31, 2006). However, after consulting with their attorney, the VLPOA board sent a letter to Shores residents telling them maintenance of the land would be turned over to them Jan. 1, 2007, and the decision would be announced at an Oct. 18 board meeting. The suit was filed after residents of Shores, a Ventana Lakes enclave, heard last spring of the VLPOA decision. Plaintiffs are seeking a reversal of that decision, arguing that VLPOA has maintained the land for 16 years and they have a legal obligation to continue. Mel Millsap, chairman of the Shores committee explains that the suit includes both temporary and permanent injunctions, and a plea for declaratory judgment. He is arguing that when the Shores was absorbed into Ventana Lakes more than a decade ago, it was understood the services of their original HOA would continue, even though it was not put in the governing documents. Residents of Shores, which is composed of 159 homes near Beardsley Road and 106th Avenue, pooled their funds to hire the law firm Dessaules & Harper to represent them in the case. For more details, contact Dessaules Harper, PLC, One North Central Ave., Suite 1130, Phoenix, Arizona 85004, Phone: 602- 256-6400, Fax: 602-256-6418, Web site: http://www.dessaulesharper.com/. BMO NESBITT: To Pay Part of $24.7M FMF Capital Stock Suit Deal -------------------------------------------------------------- BMO Nesbitt Burns Inc. and several other Canadian brokerage firms will pay about $3.7 million as part of a settlement of class actions filed by investors of failed FMF Capital Group Ltd., according to the Globe and Mail. Recently, FMF Capital reached an out-of-court agreement with counsel for the plaintiffs to resolve three class actions filed against it in Michigan, Ontario and Quebec for a total of $24.7 million. The suit was filed in relation to the company's $197-million initial public offering in 2005 in which BMO Nesbitt was lead underwriter. Back in March, FMF, a U.S. mortgage company, was spun into a trust and listed on the Toronto Stock Exchange. Investors were promised an initial yield of 11 per cent, however, FMF shocked the market last month when it said it would suspend distributions. Three FMF executives, who held just over 90 per cent of the company, sold the majority of their stake in the IPO. Chief executive officer Robert Pilcowitz, chief financial officer Howard Morof and chief operating officer Edan King are named as defendants. Five other Bay Street firms namely, National Bank Financial Inc., TD Securities Inc., Canaccord Capital Corporation, Blackmont Capital Inc. and Sprott Securities Inc. were also named as defendants. All were part of FMF's underwriting syndicate. In 2005, U.S. law firm Juroviesky and Ricci LLP filed a class action against BMO Nesbitt Burns Inc. in a Michigan court. The suit accuses Bank of Montreal's investment banking unit and a U.S. subsidiary, Harris Nesbitt Corporation of conspiring with FMF management to perpetrate a fraud during the marketing of the $197-million initial public offering FMF Capital (Class Action Reporter, Dec. 8, 2005). One of the key accusations is that FMF covered up key risks in its business, including the fact that the company could be stuck with mortgages it didn't want, and that BMO failed to properly investigate it before it agreed to handle the deal. The lawsuit charges that FMF buried those risks through its accounting, which failed to make an estimate for losses for bad loans the company was on the hook for. Under the recently agreed settlement, FMF's insurers and by Michigan Fidelity Acceptance Corp., a privately held affiliate of FMF, will pay $21 million. FMF's auditors and underwriters will pay the rest. A court approval of the settlement in Ontario Superior Court of Justice will be sought before the on Jan. 25, 2007. For FMF Class Action details, case background and timing information, contact Dimitri Lascaris of Siskinds LLP, Phone: (519) 660-7844. CABLEVISION SYSTEMS: Expedited Discovery Ordered in N.Y. Lawsuit ---------------------------------------------------------------- A number of shareholder class action lawsuits were filed against Cablevision Systems Corp. and its individual directors in New York Supreme Court, Nassau County, relating to the Oct. 8, 2006 offer by the Dolan Family Group to acquire all of the outstanding shares of Cablevision's common stock, except for the shares held by the Dolan Family Group. On Oct. 8, 2006, the company received a proposal from the Dolan Family Group to acquire, at a purchase price of $27.00 per share in cash, all of the outstanding shares of the company's common stock, except for the shares held by the Dolan Family Group. The Dolan Family Group Proposal contemplates that substantially all of the purchase price would be funded by the incurrence of additional indebtedness by Cablevision, CSC Holdings Inc., Rainbow National Services, LLC and several other subsidiaries of Cablevision and CSC Holdings. The lawsuits against Cablevision allege breaches of fiduciary duty and seek injunctive relief to prevent consummation of the proposed transaction and compensatory damages. The trial court has ordered expedited discovery to begin this month. CABLEVISION SYSTEMS: SLC Files Motion to Stay N.Y., Del. Suits -------------------------------------------------------------- The special litigation committee (SLC) of Cablevision Systems Corp. filed motions to intervene and to stay all proceedings filed against the company in three courts until completion of SLC's independent investigation of the claims raised in these actions. In addition, purported derivative lawsuits (including one purported combined derivative and class action lawsuit) relating to the company's past stock option and stock appreciation rights grants have been filed in: -- New York State Supreme Court, Nassau County, -- the U.S. District Court for the Eastern District of New York, and -- Delaware Chancery Court, New Castle County. They were filed by parties identifying themselves as shareholders of Cablevision purporting to act on behalf of Cablevision. These lawsuits name as defendants certain present and former members of Cablevision's Board of Directors and certain present and former executive officers, alleging breaches of fiduciary duty and unjust enrichment relating to practices with respect to the dating of stock options, recordation and accounting for stock options, financial statements and SEC filings, and alleged violation of IRC 162(m). In addition, certain of these lawsuits assert claims under Sections 10(b), 14(a), and 20(a) of the U.S. Securities Exchange Act of 1934 and Section 304 of the Sarbanes-Oxley Act. The suits seek damages from all defendants, disgorgement from the officer defendants, declaratory relief, and equitable relief, including rescission of the 2006 Employee Stock Plan and voiding of the election of the director defendants. Plaintiff in the Delaware case filed a motion for expedited proceedings, which was denied by the court on Oct. 13, 2006. Certain plaintiffs in the Nassau County cases have also filed a motion for expedited proceedings. That motion is pending before the court. On Oct. 27, 2006, the Board of Directors of Cablevision appointed Grover C. Brown and Zachary W. Carter as directors and, on the same date, appointed Messrs. Brown and Carter to a newly formed the SLC of the Board. The SLC has filed motions in all three courts to intervene and to stay all proceedings until completion of its independent investigation of the claims raised in these actions. The SLC's motions are pending. CHUBB CORP: Still Faces Litigation Over Contingent Commissions -------------------------------------------------------------- Chubb Corp. and certain of its subsidiaries remain defendants in purported class actions arising out of the investigations into market practices in the property and casualty insurance industry involving the payment of contingent commissions to brokers and agents, which were filed in a number of state and federal courts, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. Purported class actions arising out of the investigations into the payment of contingent commissions to brokers and agents have been filed in a number of state and federal courts. On Aug. 1, 2005, Chubb Corp. and certain of its subsidiaries were named in a putative class action, "In re Insurance Brokerage Antitrust Litigation" in the U.S. District Court for the District of New Jersey. This action, brought against several brokers and insurers on behalf of a class of persons who purchased insurance through the broker defendants, asserts claims under the Sherman Act and state law and the Racketeer Influenced and Corrupt Organizations Act (RICO) arising from the alleged unlawful use of contingent commission agreements. It seeks treble damages, injunctive and declaratory relief, and attorneys' fees. Chubb Corp. and certain of its subsidiaries have also been named as defendants in two purported class actions relating to allegations of unlawful use of contingent commission arrangements that were originally filed in state court. The first was filed on Feb. 16, 2005 in Seminole County, Florida. The second was filed on May 17, 2005 in Essex County, Massachusetts. Both cases were removed to federal court and then transferred by the Judicial Panel on Multidistrict Litigation to the U.S. District Court for the District of New Jersey for consolidation with the "In re Insurance Brokerage Antitrust Litigation." In December 2005, Chubb Corp. and certain of its subsidiaries were named in an action similar to the In re Insurance Brokerage Antitrust Litigation. That action is pending in the same court and has been assigned to the judge who is presiding over the In re Insurance Brokerage Antitrust Litigation. The complaint has not yet been served in this matter. Separately, in April 2006, Chubb Corp. and one of its subsidiaries were named in an action similar to the In re Insurance Brokerage Antitrust Litigation. This action is pending in the U.S. District Court for the Northern District of Georgia. In these actions, the plaintiffs generally allege that the defendants unlawfully used contingent commission agreements. The actions seek unspecified damages and attorneys' fees. Chubb Corp. in the Net: http://www.chubb.com/. DAIMLER-CHRYSLER: Workers File Suit in Ill. Over "Temp" Status -------------------------------------------------------------- Daimler-Chrysler Corp., the International United Auto Workers Union, and Local 1268 were named as defendants in a purported class action in the U.S. District Court for the Northern District of Illinois over allegations that newly hired workers were deceived and forced into an illegal contract, according to WREX-TV. Filed on Nov. 28, 2006 by Kathy Hungness, the suit claims that the company "intentionally and deceptively led" workers to believe they'd receive the same type of benefits and pay other full-time union workers get, only to find out after that the pay was only 70 percent of what union workers earned and the jobs were temporary. Additionally, the suit alleges that Local 1268 "failed to perform its own duty of fair representation." The suit is "Hungness v. Daimler-Chrysler Corporation et al., Case No. 1:06-cv-06491," filed in the U.S. District Court for the Northern District of Illinois under Judge Wayne R. Andersen. DYNAMICS RESEARCH: Appeals Ruling in Mass. Employee Litigation -------------------------------------------------------------- Dynamics Research Corp. intends to appeal a portion of the U.S. District Court for the District of Massachusetts' partial dismissal of the purported class action filed against it, alleging violations of the Fair Labor Standards Act and certain provisions of Massachusetts General Laws. The suit was filed on June 28, 2005. The company believes that its practices comply with the Fair Labor Standards Act and Massachusetts General Laws. The company intends to vigorously defend itself and has sought to have the complaint dismissed from federal court and addressed in accordance with the company's mandatory Dispute Resolution Program for the arbitration of workplace complaints. On April 10, 2006, the court entered an order granting in part the company's motion to dismiss the civil action filed in that court against the company, and to compel compliance with its mandatory Dispute Resolution Program. The company intends to appeal a portion of the court's decision to the effect that a class action waiver set forth in the dispute resolution program is not enforceable, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is, "Skirchak et al. v. Dynamics Research Corporation, Case No. 1:05-cv-11362-MEL," filed in the U.S. District Court for the District of Massachusetts under Judge Morris E. Lasker. Representing the plaintiffs is Elayne N. Alanis, 3rd Floor, 10 Tremont St., Boston, MA 02108, Phone: 617-263-1203, Fax: 617- 723-4729, E-mail: ealanislaw@verizon.net. Representing the defendants are: Carrie J. Campion, Jeffrey B. Gilbreth and David S. Rosenthal of Nixon Peabody, LLP, 100 Summer Street, Boston, MA 02110, Phone: 617-345-1045, 617-345- 1000 and 617-345-6183, Fax: 866-812-2847, E-mail: ccampion@nixonpeabody.com, jgilbreth@nixonpeabody.com and drosenthal@nixonpeabody.com. FEDERAL NATIONAL: Second Amended Complaint Filed in D.C. Lawsuit ---------------------------------------------------------------- A second amended complaint was filed in the consolidated shareholder class action pending in the U.S. District Court for the District of Columbia against Federal National Mortgage Association (Fannie Mae). The suit that generally alleges that the company and certain former officers and directors made false and misleading statements in violation of the federal securities laws in connection with certain accounting policies and practices. Discovery has recently commenced in the consolidated shareholder class action following the denial of the defendants' motion to dismiss. In addition the company is also a defendant in two related opt- out cases that were filed by institutional investors seeking to proceed independently of the putative class of shareholders in the consolidated shareholder class action. The court has consolidated the opt-out cases as part of the consolidated shareholder class action, but the opt-out plaintiffs have filed motions objecting to the consolidation of the lawsuits. On April 17, 2006, the plaintiffs in the consolidated class action filed an amended complaint that adds purchasers of publicly traded call options and sellers of publicly traded put options to the putative class, and extends the end of the putative class period from Sept. 21, 2004 to Sept. 27, 2005. On Aug. 14, 2006, the plaintiffs in the consolidated class action filed a second amended complaint adding, among other things, allegations based on Office of Federal Housing Enterprise Oversight's final report and the report of Paul Weiss, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is "In Re: Fannie Mae Securities Litigation, Case No. 04-CV-01639," filed in the U.S. District Court for the District of Columbia under Judge Richard J. Leon. Plaintiff firms named in the complaint are: (1) Berman, DeValerio, Pease, Tabacco Burt & Pucillo, (MA), One Liberty Square, Boston, MA, 2109, Phone: 617.542.8300, Fax: 617.230.0903, E-mail: info@bermanesq.com; (2) Cohen, Milstein, Hausfeld & Toll, P.L.L.C., (Washington, DC), 1100 New York Avenue, N.W., Suite 500, West Tower, Washington, DC, 20005, Phone: 202.408.4600, Fax: 202.408.4699, E-mail: lawinfo@cmht.com; and (3) Waite, Schneider, Bayless & Chesley Co., L.P.A., 1513 Fourth & Vine Tower, One West Fourth Street, Cincinnati, OH, 45202, Phone: 513.621.026, Fax: 513.381.2375, E-mail: wsbclaw@aol.com. FELTEX CARPETS: Shareholders Urged to Support Lawsuit Over IPO -------------------------------------------------------------- Lawyer Garry Wakefield in Christchurch, New Zealand is asking support to file a class action against the former directors of bankrupt Feltex Carpets Ltd., which was recently sold to carpet giant Godfrey Hirst, Stuff.con.nz reports. Mr. has written to 8893 Feltex shareholders asking for $380 each to support the suit against the company and the promoters of its 2004 float. Credit Suisse First Boston Asian Merchant Partners, an associate of CS First Boston, sold the company to the public. The Securities Commission has investigated the float and found no wrongdoing. On Sept. 22, 2006, Australia & New Zealand Banking Group Ltd. named Colin Nicol, Peter Anderson and Kerryn Downey, of McGrathNicol+Partners as receivers and managers of Feltex Carpets, Bloomberg says (Troubled Company Reporter-Asia Pacific, Sept. 25, 2006). The appointment of receivers and managers follows the deterioration in Feltex's financial performance, which has led to unsustainable debt levels and a share price collapse. Bloomberg relates that Feltex failed to repay its NZ$135 million debt to ANZ Bank. On Nov. 30, receivers for the company issued a statement announcing that the sale process was complete and the new name EXFTX Ltd. HERSHEY INC: Recalls Canadian Candy Products Due to Salmonella -------------------------------------------------------------- U.S. chocolate maker Hershey, Inc., in cooperation with the Canadian Food Inspection Agency, is recalling a number of candy products made at its Smiths Falls plant between October 15 and November 10, 2006 because one or more of its ingredients may be tainted with Salmonella bacteria, the ConsumerAffairs.com reports. There have been no reported illnesses associated with consumption of these items. No Halloween or Christmas items are included in the recall. Candy produced in the U.S. is not affected. The action includes the recall of 25 popular chocolates, including Oh Henry! and Reese's Peanut Butter Cups. The Pennsylvania-based company said a chocolate ingredient tested positive for salmonella during routine quality inspections. A company spokeswoman said tests confirmed the presence of the bacteria, but she would not say what ingredient was responsible for the suspected contamination. She said most of the affected chocolate was still in the factory and that product that had been released to customers was being recalled. The Ontario production plant, which employs 500 people, was immediately closed and the Canadian Food Inspection Agency notified. "Product quality and safety are top priorities at Hershey," said Eric Lent, General Manager, Canada. "We are working in close cooperation with the Canadian Food Inspection Agency to quickly retrieve the product in question from our customers and to ensure that consumers who may have purchased this product are aware of the potential health concern." INDEPENDENCE BLUE: Penn. Supreme Court Revives Suit Over Surplus ---------------------------------------------------------------- The Pennsylvania Supreme Court reversed a December 2002 Commonwealth Court decision dismissing a case over surpluses at nonprofit company Independence Blue Cross, reports say. Jules Ciamaichelo, the owner of a Bensalem appliance store, who wants Independence Blue Cross to return part of the surplus to insurance buyers, filed the suit five years ago. The Commonwealth Court dismissed several suits against the insurer at the company's argument that the size of Independence Blue Cross' surplus is a regulatory matter that must be decided by the Insurance Department. Pennsylvania's largest health insurer had a surplus of nearly $1.2 billion at last year's end, up from $689.6 million in 2001. The Pennsylvania Insurance Department has determined for two succeeding years that the surpluses are not excessive. The company is accused of breaching obligations as nonprofits by keeping an amount in reserve more than necessary to secure solvency and not using it to lower rates or help the uninsured. But the recent ruling did not address whether the surplus was excessive. It ruled on who will determine such. On Nov. 22, the Supreme Court sent back the class action to lower courts and three similar ones, each against one of the state's four Blue Cross and Blue Shield health plans. The plaintiffs have argued that the case centers on state laws governing nonprofits. Chief Justice Ralph J. Cappy and Justices Ronald D. Castille, Sandra Schultz Newman, Thomas G. Saylor and Max Baer agreed. Supreme Court Justice J. Michael Eakin wrote a dissenting opinion, while Max Baer. Russell M. Nigro did not participate. The questions that the lower court must now face are whether the health insurance policyholders have standing to sue over the use of the surplus and the opening of the Blues' books to outside inspection. The court's opinion is available for free at: http://ResearchArchives.com/t/s?1626 The suit is numbered 2001-04985, filed in the Court of Common Please of Bucks County, Civil Division. Lawyers representing Mr. Ciamaichelo are Jonathan Auerbach and his partner, Jerome Marcus, of Marcus Auerbach L.L.C. They are joined by Gregory Miller and Gregg W. Mackuse of Miller, Alfano & Raspanti P.C. (http://www.mar-law.com/) Independence Blue Cross' lawyer is Joseph Podraza of Sprague & Sprague (http://www.spragueandsprague.com/). JOHNSON & JOHNSON: Still Faces Employment Bias Lawsuit in N.J. -------------------------------------------------------------- The U.S. District Court for the District of New Jersey is expected to rule by 2007 on the motion for class-action status for the employment discrimination litigation filed against Johnson & Johnson in 2001. In September 2004, plaintiffs moved to certify a class of all African American and Hispanic salaried employees of the company and its affiliates in the U.S., who were employed at any time from November 1997 to the present. Plaintiffs seek monetary damages for the period 1997 through the present (including punitive damages) and equitable relief. The company filed its response to plaintiffs' class certification motion in May 2005. The company expects the court to decide that motion in 2007, according to company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 1, 2006. Johnson & Johnson on the Net: http://www.jnj.com/. JOHNSON & JOHNSON: Still Faces Endo-Mechanical Devices Lawsuits --------------------------------------------------------------- Johnson & Johnson, along with its wholly owned Ethicon and Ethicon Endo-Surgery subsidiaries, remain defendants in several federal suits pending in California, New York and Texas relating to endo-mechanical devices contracts. Three federal antitrust actions challenging suture and endo- mechanical contracts with group purchasing organizations and hospitals in which discounts are predicated on a hospital achieving specified market share targets for both categories of products. In each case, plaintiffs seek substantial monetary damages and injunctive relief. These actions are: -- "Applied Medical v. Ethicon Inc., et al.," (C.D.CA, filed Sept. 5, 2003); -- "Conmed v. Johnson & Johnson, et al.," (S.D.N.Y., filed Nov. 6, 2003); and -- "Genico v. Ethicon, Inc., et al.," (E.D. TX, filed Oct. 15, 2004). Trial in the Applied Medical case commenced July 11, 2006. In December 2005, two purported class actions were filed on behalf of purchasers of endo-mechanical instruments. These actions -- both filed in the U.S. District Court for the Central District of California -- are: -- "Delaware Valley Surgical Supply Co., Inc. v. Johnson & Johnson et al.;" and -- "Niagara Falls Memorial Medical Center v. Johnson & Johnson, et al." In early 2006, a third class action was filed in the same court, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 1, 2006. Johnson & Johnson in the Net: http://www.jnj.com/. JOHNSON & JOHNSON: Trial Starts on Mass. Class in AWP Litigation ---------------------------------------------------------------- The trial of two Massachusetts-only class actions against Johnson & Johnson and other pharmaceutical firms, which fall under the Multi-District Litigation (MDL), "In re Average Wholesale Price Litigation, MDL No. 1456," which is pending in the U.S. District Court for the District of Massachusetts began on Nov. 6, 2006 The company several of its pharmaceutical subsidiaries, along with numerous other pharmaceutical companies, are defendants in a series of lawsuits in state and federal courts involving allegations that the pricing and marketing of certain pharmaceutical products amounted to fraudulent and otherwise actionable conduct because, among other things, the companies allegedly reported an inflated Average Wholesale Price (AWP) for the drugs at issue. Most of these cases, both federal actions and state actions removed to federal court, have been consolidated for pre-trial purposes in a MDL in U.S. District Court for the District of Massachusetts. The plaintiffs in these cases include classes of private persons or entities that paid for any portion of the purchase of the drugs at issue based on AWP, and state government entities that made Medicaid payments for the drugs at issue based on AWP. In the MDL proceeding in Boston, plaintiffs moved for class certification of all or some portion of their claims. On Aug. 16, 2005, the trial judge certified Massachusetts-only classes of private insurers providing "Medi-gap" insurance coverage and private payers for physician-administered drugs where payments were based on AWP. The judge also allowed plaintiffs to file a new complaint seeking to name proper parties to represent a national class of individuals who made co-payments for physician-administered drugs covered by Medicare. The Court of Appeals declined to allow an appeal of those issues and in January 2006, the court certified the national class as noted above. A trial of the two Massachusetts-only class actions began before the U.S. District Court for the District of Massachusetts on Nov. 6, 2006, according to company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Oct. 1, 2006. The suit is "In re Average Wholesale Price Litigation, MDL No. 1456," filed in the U.S. District Court for the Massachusetts, under Judge Patti B. Saris with referral to Judge Marianne B. Bowler. Representing the plaintiffs are: (1) Steve W. Berman of Hagens Berman Sobol Shapiro LLP, 1301 5th Avenue, Suite 2900, Seattle, WA 98101-1090, Phone: 206-623-7292, Fax: 206-623-0594, E-mail: steve@hbsslaw.com; (2) Gary L. Azorsky of Berger & Montague, PC, 1622 Locust Street, Philadelphia, PA 19103, Phone: 215-875-3000; and (3) Terrianne Benedetto of Kline & Specter, 1525 Locust Street, 19th Floor, Philadelphia, PA 19102. Representing the defendants are: (1) Jon Steven Baughman of Ropes & Gray LLP, 700 Twelfth Street, N.W., Suite 900, Washington, DC 20005-3948, Phone: 202-508-4606, Fax: 202-508-4650, E-mail: sbaughman@ropesgray.com; (2) Aimee E. Bierman of Kirkpatrick & Lockhart Nicholson Graham LLP, State Street Financial Center, One Lincoln Boston, MA 02111, Phone: 617-261-3100, Fax: 617-261- 3175, E-mail: abierman@klng.com; (3) Joseph G. Adams of Snell & Wilmer LLP, 1 Arizona Center, 400 E Van Buren, Phoenix, AZ 85004-2202, Phone: 602-382-6207, Fax: 602-382-6070; (4) Neil Alden of Bowman and Brooke LLP, 2901 North Central Avenue, Suite 1600, Phoenix, AZ 85012; (5) Martin A. Aronson of Morrill & Aronson, 1 East Camelback Road, Suite 340, Phoenix, AZ 85012-1648; and (6) Stacy D. Belf of Ropes & Gray LLP, 1 Metro Center, 700 12th St. NW, Suite 900, Washington, DC 20016. KRAFT FOODS: Faces Calif. Consumer Suit Over Fraudulent Labeling ---------------------------------------------------------------- The law firm of Gallo & Associates filed a lawsuit seeking class action status in the Superior Court of the State of California, in and for the County of Los Angeles, on behalf of all purchasers of a certain so-labeled "guacamole" product made and/or marketed by Kraft Foods Global, Inc. The complaint alleges that, while guacamole consists principally of avocado, Kraft's product instead consists largely of partially hydrogenated vegetable oils and whey (water and corn syrup are also major ingredients), and contains less than 2% avocado. The named plaintiff in the suit, Brenda Lifsey of Los Angeles, claims that the company's avocado dip does not qualify, as guacamole. In 2005, she used Kraft Dips Guacamole and found almost no avocado in it when she looked at the ingredients. Ms. Lifsey seeks unspecified damages and a court order barring the company from calling its dip guacamole. She also seeks class-action status for the case. The dip contains modified food starch, coconut and soybean oils, corn syrup and food coloring. It's less than two percent avocado, which in traditional recipes is the dish's main ingredient. The company's website confirms the ingredients of the product as follows: Water, Partially Hydrogenated Coconut and Soybean Oil, Corn Syrup, Whey Protein Concentrate (From Milk), Food Starch Modified, Contains Less Than 2% Of Potatoes, Salt, Avocado, Defatted Soy Flour, Monosodium Glutamate, Tomatoes, Sodium Caseinate, Vinegar, Lactic Acid, Onions, Partially Hydrogenated Soybean Oil, Gelatin, Xanthan Gum, Carob Bean Gum, Mono- And Diglycerides, Spice, with Sodium Benzoate and Potassium Sorbate as Preservatives, Garlic, Sodium Phosphate, Citric Acid, Yellow 6, Yellow 5, Artificial Flavor, Blue 1, Artificial Color. For more details, contact Ray E. Gallo of Gallo & Associates, Phone: (310) 338-1114, E-mail: rgallo@gallo-law.com, Web site: http://www.executiveemploymentlaw.com. LOUISIANA: Judge Overturns State Video Game Restriction Statute --------------------------------------------------------------- The U.S. District Court for the Middle District of Louisiana declared as unconstitutional, HB 1381, a new state law banning the sale or rental of violent video games to minors, Sonya Kimbrell of 2theAdvocate reports. In a ruling issued on Nov. 29, 2006, Judge James J. Brady granted an injunction against the law, declared the statute unconstitutional and granted the plaintiffs' request to certify the defendants' class. Previously, the Entertainment Software Association and Entertainment Merchants Association filed a purported class action in the U.S. District Court for the Middle District of Louisiana, to overturn the state's new video game law (Class Action Reporter, June 30, 2006). Under the statute, video game vendors would be subject to fines of between $100 and $2,000 and up to a year in prison if caught selling video games containing "violent" content to minors. Passed by the Legislature in June and signed by Gov. Kathleen Blanco, the law essentially bans the sale, lease or renting of violent video games to people younger than 18. It defines prohibited materials as those that an average person would conclude appeal to a young person's morbid interest in violence, depict violence patently offensive to adult standards and lacks serious literary, artistic, political or scientific value (Class Action Reporter, July 4, 2006). However, both groups are arguing that the law violates the First Amendment freedom of expression, and the Fourteenth Amendment, which provides equal protection under the law. The suit was filed on June 16, 2006 against Louisiana Attorney General Charles Foti, Jr., as the state's chief legal officer and East Baton Rouge Parish District Attorney Doug Moreau. Back in June 2006, Judge Brady issued a temporary restraining order barring authorities from enforcing the measure, and later extended the injunction. In that previous ruling, the judge stated that the plaintiffs have a strong likelihood of success on the merits of their claims that the statute is unconstitutional. The suit is "Entertainment Software Association et al. v. Foti et al., Case No. 3:06-cv-00431-JJB-CN," filed under Judge James J. Brady with referral to Judge Christine Noland. Representing the plaintiffs is James A. Brown of Liskow & Lewis- LAF, P.O. Box 52008, Lafayette, LA 70505, Phone: 337-232-7424, Fax: 504-556-4108, E-mail: jabrown@liskow.com. Representing the defendants is David Glen Sanders, Louisiana Department of Justice - B.R., P.O. Box 94005, Baton Rouge, LA 70804-9005, Phone: 225-326-6300, Fax: 225-326-6495, E-mail: sandersd@ag.state.la.us. MARTHA STEWART: Expects Hearing in N.Y. Stock Suit Deal in 2006 --------------------------------------------------------------- Martha Stewart Living Omnimedia Inc. anticipates that a hearing to consider approval of a $30 million settlement of a consolidated securities class action filed against it in the U.S. District Court for the Southern District of New York will be held in late 2006 or early 2007, according to a regulatory filing. In late October, the company agreed to settle the consolidated securities class action pending against it and certain of its officers and directors (Class Action Reporter, Nov. 10, 2006). The total settlement is expected to cost $30 million, about $15 million of which the company expects to pay. Its insurers will shoulder about $10 million and Ms. Stewart the rest. Accordingly, the company has recorded a litigation reserve of approximately $18.2 million against third quarter 2006 earnings. This one-time charge includes incurred and anticipated legal fees, is net of insurance reimbursement, and does not include that portion of the anticipated settlement expected to be paid by Ms. Stewart. The company expects that the final settlement amount will be paid either in cash or in a mix of cash and company stock. On Feb. 3, 2003, the company was named as a defendant in a consolidated and amended class action complaint filed by plaintiffs purporting to represent a class of persons who purchased common stock in the company between Jan. 8, 2002 and Oct. 2, 2002 (Class Action Reporter, June 1, 2006). The consolidated suit is captioned, "In re Martha Stewart Living Omnimedia, Inc. Securities Litigation, Case. 02-CV-6273 (JES)." Besides the company, it also names Martha Stewart and seven of its other present or former officers, Gregory R. Blatt, Sharon L. Patrick, and five other company officers, as defendants. All such individuals other than Martha Stewart are collectively referred to herein as the individual defendants. The action consolidated seven class actions previously filed in the Southern District of New York. The claims in the consolidated class action complaint arose out of Ms. Stewart's sale of 3,928 shares of ImClone Systems stock on Dec. 27, 2001. The suit asserts violations of Sections 10(b) (and rules promulgated thereunder), 20(a) and 20A of the U.S. Securities Exchange Act of 1934. Plaintiffs allege that the company, Ms. Stewart and the individual defendants omitted material information and made statements about Ms. Stewart's sale that were materially false and misleading. They also allege that, as a result of these false and misleading statements, the market price of the company's stock was inflated during the putative class periods and dropped after the alleged falsity of the statements became public. Plaintiffs further alleged that the individual defendants traded MSO stock while in possession of material non-public information, but as explained below, all such allegations have been dismissed. The consolidated class action complaint seeks certification as a class action, damages, attorneys' fees and costs, and further relief as determined by the court. The suit is "In re Martha Stewart Living Omnimedia, Inc. Securities Litigation, Case. 02-CV-6273 (JES)," filed in the U.S. District Court for the Southern District of New York under Judge John E. Sprizzo. Representing the plaintiffs are: (1) Robert Craig Finkel of Wolf Popper, LLP, 845 Third Avenue, New York, NY 10022, Phone: (212) 759-4600, E- mail: rfinkel@wolfpopper.com; (2) Salvatore Jo Graziano of Milberg Weiss Bershad & Schulman, LLP, (NYC), One Pennsylvania Plaza, New York, NY 10119, Phone: 212-554-1538, Fax: 212-554-1444, E- mail: SGraziano@blbglaw.com; and (3) Mark David Smilow of Weiss & Yourman, 551 Fifth Avenue, Suite 1600, New York, NY 10176, Phone: (212) 682-3025, Fax: (212) 682-3010, E-mail: msmilow@weisslurie.com. Representing the defendants are Gregory Arthur Markel and Martin L. Seidel of Cadwalader, Wickersham & Taft, LLP, (NYC), One World Financial Center, New York, NY 10281, Phone: (212) 504- 6112 and 212-504-5643, Fax: (212) 504-6666 and 212-504-6387, E- mail: greg.markel@cwt.com and martin.seidel@cwt.com. MEDIACOM LLC: Appeal in Mo. Landowners Suit Certification Denied ---------------------------------------------------------------- The Supreme Court of Missouri has denied Mediacom LLC's petition for an interlocutory appeal or in the alternative a writ of mandamus in a suit over alleged trespassing at private lands. The company is named as a defendant in a putative class action, "Gary Ogg and Janice Ogg v. Mediacom, LLC," pending in the Circuit Court of Clay County, Missouri, by which the plaintiffs are seeking class-wide damages for alleged trespasses on land owned by private parties. The lawsuit was originally filed on April 24, 2001. Pursuant to various agreements with the relevant state, county or other local authorities and with utility companies, the company placed interconnect fiber optic cable within state and county highway rights-of-way and on utility poles in areas of Missouri not presently encompassed by a cable franchise. The lawsuit alleges that the company was required, but failed to obtain permission from the landowners to place the cable. The lawsuit has not made a claim for specified damages. An order declaring that this action is appropriate for class relief was entered on April 14, 2006. The company's petition for an interlocutory appeal or in the alternative a writ of mandamus was denied by order of the Supreme Court of Missouri dated Oct. 31, 2006. Middletown, New York-based Mediacom Communications Corp. (NASDAQ: MCCC) -- http://www.mediacomllc.com/-- is engaged in the acquisition and development of cable systems serving smaller cities and towns in the U.S. Through these cable systems, MCC provides entertainment, information and telecommunications services to its subscribers. MICROSOFT CORP: $200M Available in Wis. Antitrust Suit Agreement ---------------------------------------------------------------- Consumers and businesses who purchased certain Microsoft Corp. software from Dec. 7, 1993 through and including April 30, 2003 for use in Wisconsin may be eligible for money back from the company in a $200 million class action settlement, the Milwaukee Channel.com reports. The settlement will provide up to $223,896,000, in vouchers, which people and businesses can use toward the purchase of computers, computer products, and software. Under the settlement, vouchers can be exchanged for cash by submitting proof of purchases made after September 20, 2006 of the following computer products: -- any desktop, laptop, or tablet computer made by any manufacturer for any operating system platform, or -- any of the following devices: printers, scanners, monitors, keyboards, or pointing devices (e.g. mouse, trackball). Qualifying software includes any non-custom software offered by any software vendor for use on a desktop, laptop or tablet computer. The qualifying computer hardware or software does not have to be a Microsoft product. The Circuit Court of Wisconsin, Milwaukee County will hold a fairness hearing on March 30, 2007 at 11:00 a.m. for the proposed settlement in the matters: -- "Spence v. Microsoft Corp., Case No. 00-CV-003042," -- "Capp v. Microsoft Corp., Case No. No. 05-CV-011127," and -- "Bettendorf v. Microsoft Corp., Case No. No. 05-CV- 010927," (Class Action Reporter, Oct. 25, 2006). The class actions accuse Microsoft of violating Wisconsin's antitrust and unfair competition laws by overcharging customers for some of its operating systems, word processing, and spreadsheet software (Class Action Reporter, Oct. 23, 2006). Specifically, the software included are: Microsoft's "Windows" and "MS-DOS" operating system software; Microsoft's "Office" productivity suite software; Microsoft's "Excel" software; Microsoft's "Word" word processing software (including "Home Essentials" and "Works Suite"). The court appointed Ben Barnow of Barnow and Associates, P.C., Richard M. Hagstrom of Zelle, Hofmann, Voelbel, Mason & Gette LLP, and Mark A. Maasch of Turner & Maasch, Inc. as "co-lead settlement class counsel." The court also appointed those lawyers together with John L. Cates of Gingras, Cates & Leubke, S.C., Roxanne B. Conlin of Roxanne Conlin & Associates, John F. Maloney of McNally, Maloney & Peterson, S.C., Andrew T. Phillips of Stadler, Centofani & Phillips, S.C., and James T. Remington of Remington Law Offices to represent interested parties and other class members as "settlement class counsel." Microsoft-Wisconsin Class Action Settlement on the net: http://www.microsoftwisuit.com/ A copy of the Settlement Agreement is available free of charge at: http://ResearchArchives.com/t/s?1615 For more details, contact: (1) Microsoft-Wisconsin Settlement, P.O. Box 1626, Minneapolis, MN 55440-1626, Phone: 1-800-598-3050 and 1-866-494-8399, Web site: http://www.microsoftWIsuit.com;and (2) Ben Barnow of Barnow and Associates, P.C., One North LaSalle St., Suite 4600, Chicago, IL 60602, Phone: 312- 621-2000, Fax: 312-641-5504. MOTOROLA INC: Continues to Face 401(k) Litigation in Ill. --------------------------------------------------------- Motorola, Inc. remains a defendants in a 401(k) breach of fiduciary duty class action against that was brought on behalf of participants in company's 401(k) defined contribution retirement plan for whose individual account the Plan purchased and/or held shares of the company's common stock at any time from May 16, 2000 to the present. According to a press release by Stull, Stull & Brody, the case "Howell v. Koenemann, et al., Case No. 1:03-cv-05044," which is pending in the U.S. District Court for the Northern District of Illinois, alleges that Motorola and other Plan fiduciaries concealed from Plan participants important information concerning: -- Motorola's true financial and operating condition; -- risks associated with Motorola's vendor financing to, and relationship with, Turkish telephone company Telsim, and -- whether Motorola common stock was a prudent and suitable retirement investment for the Plan. After initially denying a motion to dismiss, the parties engaged in extensive document discovery and depositions. The court thereafter granted summary judgment against the original plaintiff in the case on the ground that he executed a severance agreement and release of claims upon leaving Motorola's employ. That ruling is on appeal. The court has also denied a request by a former participant of the Plan to intervene and represent the participant class, finding that only current Plan participants have standing to assert the claims in the case. The suit is "Howell v. Koenemann, et al., Case No. 1:03-cv- 05044," filed in the U.S. District Court for the Northern District of Illinois under Judge Rebecca R. Pallmeyer. Representing plaintiffs are: (1) Edwin J. Mills of Stull, Stull & Brody, Six East 45th Street, New York, NY 10017, Phone: (212) 687-7230, E- mail: ssbny@aol.com; (2) Robert D. Allison and Bruce C. Howard both of Robert D. Allison & Associates, 122 S. Michigan Avenue, Ste 1850, Chicago, IL 60603, Phone: (312) 427-4500 or (312) 427- 7600, E-mail: rdalaw@ix.netcom.com or bchoward@ix.netcom.com; and (3) Joseph H. Weiss of Weiss & Yourman, 551 Fifth Avenue, Suite 1600, New York, NY 10176, Phone: (212) 682-3025. Representing defendants are: (i) Brian William Barrett, Ada W. Dolph, Timothy F. Haley, Ian H. Morrison, Camille Annette Olson, James Stephen Poor, Allegra R. Rich, Brian M Stolzenbach and Michael A. Warner all of Seyfarth Shaw LLP, 131 South Dearborn Street, Suite 2400, Chicago, IL 60603-4205, Phone: (312) 269-8814 or (312) 460-5000 or (312) 346- 8000, Fax: (312) 460-7977; E-mail: adolph@seyfarth.com or thaley@seyfarth.com or imorrison@seyfarth.com or colson@seyfarth.com or arich@seyfarth.com or bstolzenbach@seyfarth.com; (ii) Sarah Kotler, John C. Massaro, Emily M. Pasquinelli and Stephen M. Sacks all of Arnold & Porter, 555 Twelfth, Street, N.W., Washington, DC 20004-1202, Phone: (202) 942-5000; and (iii) Dara Sahebjami of Funkhouser Vegosen Liebman & Dunn, Ltd., 55 West Monroe Street, Suite 2410, Chicago, IL 60603, Phone: (312) 701-6800. MURPHY OIL: Claims Deadline Set for $330M Oil Spill Settlement -------------------------------------------------------------- Murphy Oil Corp. and attorneys for plaintiffs in a class action against the refinery over an oil spill after Hurricane Katrina scheduled a Jan. 31, 2007 deadline for the submission of a claim form for a share in the proposed $330 million settlement of the case. The settlement affects residents who live in the area of the Murphy Oil spill in Saint Bernard Parish. Plaintiffs' attorneys say the class totals about 6,200 claims. Objections to the settlement must be made to the court by Dec. 15, 2006. Judge Eldon Fallon has scheduled a Jan. 4, 2006 hearing to hear those objections. According to Robert Becnel, one of the plaintiffs' attorneys, residents who opted out of the lawsuit can rejoin it. The deadline to do so is Dec. 8, 2006. The suit, "Turner v. Murphy Oil USA, Inc.," stems from the spill of about 1 million gallons of oil from a storage tank that was moved off its base by massive flooding during Hurricane Katrina. Recently, Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana gave preliminary approval to the proposed $330 million settlement (Class Action Reporter, Oct. 12, 2006). Under the terms of the deal, all residential and commercial properties in the class area will receive a cash payment pursuant to a fair and equitable allocation subject to court approval following recommendations by a court-appointed Special Master. The entire class area will have the benefit of a comprehensive remediation program as approved by the court and regulatory bodies and to be overseen by regulatory authorities. About $80 million would go to settle roughly 2,700 household and business claims, according to Sidney Torres, the court-appointed liaison for the committee that would help disburse the settlement. Another $160 million would go toward property buyouts and paying property owners in the area, while the remaining $90 million would be for cleanup, Mr. Torres said. The class consists of a total of about 6,200 claims, according to him. Additionally, the company has agreed to make bona fide offers to purchase, at fair market value, all residential and business properties located on the first four streets west of the refinery and north of St. Bernard Highway up to the Twenty Arpent Canal. Case Background The class action was filed on Sept. 9, 2005 on behalf of residents of St. Bernard Parish who were claiming compensation for damages caused by a release of crude oil at the company's wholly-owned subsidiary, a refinery of Murphy Oil USA in Meraux, Louisiana. Crude oil leaked from the plant's storage tank that was damaged by Hurricane Katrina (Class Action Reporter, Nov. 17, 2006). Property owner Patrick Joseph Turner on behalf of at approximately 500 property owners in St. Bernard Parish filed the suit. Additional class actions have been consolidated with the first suit into a single action in the U.S. District Court for the Eastern District of Louisiana. The court certified the class on Jan. 30, 2006. The suit is "Turner v. Murphy Oil USA, Inc., Case No. 2:05-cv- 04206-EEF-JCW," filed in the U.S. District Court for the Eastern District of Louisiana under Judge Eldon E. Fallon with referral to Judge Joseph C. Wilkinson, Jr. Representing the plaintiffs are: (1) Mickey P. Landry of Landry & Swarr, LLC, 1010 Common St., Suite 2050, New Orleans, LA 70112, Phone: 504-299- 1214, E-mail: mlandry@landryswarr.com; (2) N. Madro Bandaries of Amato & Creely, 901 Derbigny St., P.O. Box 441, Gretna, LA 70054, Phone: (504) 367-8181, E-mail: madro@att.net; and (3) Daniel E. Becnel, Jr. of Law Offices of Daniel E. Becnel, Jr., 106 W. Seventh St., P.O. Drawer H. Reserve, LA 70084, Phone: 985-536-1186, E-mail: dbecnel@becnellaw.com. Representing the defendants are, George A. Frilot, III and Patrick J. McShane of Frilot Partridge Kohnke & Clements, Phone: 337-988-5422 and (504) 599-8000, E-mail: gfrilot@fpkc.com and pmcshane@fpkc.com. NEW JERSEY: Parents Sues School District, Seek NCLB Compliance -------------------------------------------------------------- Newark Public Schools (NPS) faces a purported class action in the U.S. District of New Jersey that seeks to force the state's largest school district to comply with a law aimed at offering children educational help, including the chance to switch schools, Jeffrey Gold of The Associated Press reports. Under the No Child Left Behind (NCLB) law, children in failing schools are entitled to free tutoring and the right to transfer to other schools, however, according to the lawsuit, NPS has denied those rights. Filed on Nov. 28, 2006 by the Center for Social Justice at the Newark-based Seton Hall University School of Law, the suit was brought on behalf of: -- Newark Parents Association, -- Alberta Green -- Andrea Smith -- Habibullah Saleem The suit, which seeks class-action status, asserted that more than 30,000 of the district's 43,000 students are in failing schools, according to plaintiffs' attorneys Shavar D. Jeffries. Citing an audit by the U.S. Department of Education, it also charges the district has largely ignored the law's requirements to notify parents if their children are attending failing schools, and to inform them of their rights to free tutoring and transfer to a non-failing school. NCLB was President Bush's signature education policy that was enacted in 2001. It requires states to administer their own assessments in math and reading, with penalties for schools that fail to improve. The suit is "Newark Parents Association, et al. V. Newark Public Schools, et al., Case No. 2:06-cv-05690-SDW-MCA," filed in the U.S. District Court for the District of New Jersey under Judge Susan D. Wigenton with referral to Judge Madeline C. Arleo. Representing the plaintiffs is Shavar D. Jeffries of Seton Hall Law School, Center For Social Justice, 833 McCarter Highway, Newark, NJ 07102, Phone: (973) 642-8719, E-mail: jeffrish@shu.edu. NORTH CAROLINA: Court Nixes Brunswick County EMTs' Overtime Suit ---------------------------------------------------------------- The U.S. District Court for the Eastern District of North Carolina ruled that the method of paying overtime wages to Brunswick County's emergency medical technicians (EMT) does not violate the Fair Labor Standards Act, Ken Little of The Wilmington Morning Star reports. The ruling came in the class action, "Geise, et al. v. Brunswick County," which was filed on March 11, 2005 by 39 EMTs. It essentially, dismissed the lawsuit, which had claimed that the "fluctuating workweek" method of overtime payment used by county violated the FLSA. Apparently, no appeal was made in regards to the decision, which was issued by Judge Louise W. Flanagan The EMTs that filed the case are: -- George C. Granger, Jr., -- Leslie Geise, -- Amy Moncure Taylor, -- Anthony F. Davis, Jr., -- Candace Blackwell, -- Connie Shepherd, -- Douglas A. Ledgett, -- Gayther Simmons, -- H. Howard McKellar, -- James Michael Arrowood, -- James Clark, -- James P. Knott, II, -- Jeffrey T. Barber, -- John Messer, -- John Eldridge Grimes, Jr., -- Karen King, -- Kat Corrigan, -- Kevin Mulholland, -- Kevin B. Wallar, -- Laura G. Kennedy, -- Laurie Sillings, -- Michael S. Parks, -- Michele L. Burns, -- Michelle M. Clewis, -- Miguel A. Ramos, -- Misty Rouse, -- Nick Jarman, -- Nicole Schiller, -- Phillip C. Britt, -- Richard Burns, -- Terri L. Caison, -- Timothy G. Abernethy, -- Tonia Y. Patrick, -- Trevor K. Setzer, -- Victoria Bowman Barber, -- Wanda Newberry, -- Coralie Eggers, and -- Elizabeth C. Marlowe. The lawsuit was filed after the federal Department of Labor began an investigation into Brunswick County's wage practices that included an audit into how more than 800 county employees were paid. The "fluctuating workweek" is based on a fixed annual salary. All county EMTs work a recurring schedule of 12-hour shifts that total either 48 or 72 hours per week. Employees with a fluctuating weekly schedule are compensated with a base salary plus an overtime premium of one-half the hourly rate, as opposed to 1 1/2 times the hourly rate. Under the fluctuating workweek method of payment, the regular salary compensates employees for all hours they are scheduled to work. Since it is a salary, employees receive the level of pay regardless of how many hours are worked in a given week. The EMTs sought the difference between their workweek fluctuation pay and time-and-a-half pay for the three previous years. In an order issued on Oct. 23, 2006, Judge Flanagan wrote that working more than 40 hours requires overtime compensation at the time-and-a-half default rate. However, the judge pointed out that there are a number of exceptions to this general rule, and at least one alternative is known as the fluctuating workweek method of payment. The suit is "Geise, et al v. Brunswick County, Case No. 7:05-cv- 00042-FL," filed in the U.S. District Court for the Eastern District of North Carolina under Judge Louise Wood Flanagan. Representing the plaintiffs is Robert J. Willis, P.O. Box 1269, Raleigh, NC 27602, Phone: 919-821-9031, Fax: 919-821-1763, E- mail: rwillis@rjwillis-law.com. Representing the defendants are Norwood P. Blanchard, III and Robert B. Jones, Jr., Cranfill, Sumner & Hartzog, LLP, 1209 Culbreth Dr., Suite 200, Wilmington, NC 28405, Phone: 910-509- 9778, Fax: 910-509-9676, E-mail: npb@cshlaw.com and rjones@CSHLaw.com. NS GROUP: Faces Lawsuit in Ky. Over IPSCO-PI Acquisition Merger --------------------------------------------------------------- NS Group, Inc. and its directors were named as defendants in a purported class action filed in the Campbell Circuit Court of the Commonwealth of Kentucky over a definitive agreement and plan of merger, dated as of September 10, 2006, among the company, IPSCO, Inc., and PI Acquisition Co. The deal provides for the merger of PI Acquisition, a wholly- owned subsidiary of IPSCO, with and into NS Group, with NS Group continuing as the surviving corporation, and the conversion of each outstanding share of common stock of NS Group (other than shares held by NS Group, IPSCO, PI Acquisition or any of their direct or indirect wholly-owned subsidiaries and shares held by shareholders who validly perfect their dissenters' rights under Kentucky law) into the right to receive $66 in cash. Filed on October 2006, the suit also names as defendants, IPSCO Inc. and PI Acquisition. Plaintiff, Advantage Partners, a purported shareholder of the company, has alleged, among other things, that the merger consideration to be paid to the shareholders of NS Group in the merger is unfair and inadequate, as a result of alleged breaches of fiduciary duty by NS Group and its directors. According to the complaint, NS Group's directors agreed to an allegedly unfair and inadequate price and agreed to a termination fee, which is alleged to serve as a substantial deterrent to other prospective buyers, because of the directors' interest in "quickly" signing the merger agreement in order to obtain allegedly "improper" personal benefits from the acceleration of various stock options and incentive plans and the indemnification provision of the merger agreement and, in the case of certain directors, salary continuation agreements. The complaint further alleges that the defendants breached an alleged duty of "full and fair disclosure" by failing to disclose certain allegedly material information regarding the negotiation of the merger agreement, including information relating to NS Group and its directors' consideration of alternative transactions, additional information regarding the criteria that Raymond James utilized in certain aspects of its financial analysis, as well as the percentage of its fee that is contingent on consummation of the merger. It also alleges that IPSCO aided and abetted NS Group and its directors in the breaches of their duties to NS Group's shareholders. Thus, the complaint seeks, among other relief, class certification of the lawsuit, compensatory and/or rescissory damages to the class, and an award of attorneys' fees and expenses to the plaintiff. The NS Group defendants believe the complaint is without merit, according to its Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. NS Group, Inc. on the Net: http://www.nsgrouponline.com/. NVE BANK: CD Holder Files Litigation in N.J. Over Lower Rate ------------------------------------------------------------ NVE Bank faces a purported class action in New Jersey Superior Court over allegations that it deceived customers by automatically renewing certificates of deposit (CD) at below- market rates, Richard Newman of NorthJersey.com reports. The suit was filed by Ira S. Hirschbach of Edgewater, accusing the bank of improperly lowering his 12-month CD rate from 3.35 percent on an initial $1,000 deposit to 0.96 percent over a number of years. Ellen Werther of Ressler & Ressler, which is representing Mr. Hirschbach in the case, said that since her client relied on bank ads promising competitive rates, he was not paying close attention to his money, so it's not clear exactly when the rate dropped. However, most banks were offering more than 3 percent on 12- month CDs last December when, according to the lawsuit, Mr. Hirschbach's CD was again automatically renewed. NVE Banks' action is a deceptive, unfair and unconscionable business practice, says Ms. Werther, who believes that thousands of NVE customers may have been affected. She is therefore seeking class-action status for the case. Court papers revealed that Mr. Hirschbach acquired the CD 13 years ago when it earned 3.35 percent for the first year. He then ignored it and let it automatically renew each year. In June 2006 he was surprised to learn he was getting less than 1 percent. Ms. Werther pointed out that switching automatic renewals into below-market rates is a "deceptive scheme" that's in violation of the state's consumer protection laws. Thus, she is asking the court to stop the practice. She also asks the court to have her client and any other CD customers who comes forward to be awarded three times the difference between "the amount they would have earned at competitive market rates and the amount they actually earned at below-market rates." For more details, contact Ellen R. Werther of Ressler & Ressler, 48 Wall Street, 26th Floor, New York, New York 10005, (New York Co.), Phone: 212-695-6446, Fax: 212-268-0287, E-mail: ewerther@resslerlaw.com, Web site: http://www.resslerlaw.com. PHILIPPINES: SEAPA Backs Journalists' Suit v. First Gentleman ------------------------------------------------------------- The Southeast Asian Press Alliance (SEAPA) issued a joint statement in solidarity and support of the 42 Filipino journalists who are filing a class action against Mr. Jose Miguel "Mike" Arroyo, husband of Philippine president Gloria Macapagal Arroyo, for abuse of power and harassment of the local press, the IFEX reports. "We strongly support the filing of a class civil suit against Mr. Jose Miguel "Mike" Arroyo for his abuse of power and his clear attempt to undermine press freedom in an important member of the Southeast Asian community," the statement said. "The Philippines is in the clear minority of countries in Southeast Asia with a functioning - if perennially vulnerable - free press. In this light, the deterioration of the conditions for press freedom under the regime of President Arroyo is a troubling trend that causes anxiety in the rest of the region." University of the Philippines law professor Harry Roque, on behalf of dozens of Filipino journalists who are facing libel suits filed by Mr. Arroyo, is preparing a class action for alleged civil rights violation (Class Action Reporter, Nov. 21, 2006). The libel cases were in connection with reports of alleged election fraud and corruption involving Mr. Arroyo. The journalists are accusing Mr. Arroyo of trying to stifle freedom of the press. Retaliating against the charges filed against them, the journalists are in turn suing Mr. Arroyo for abuse of power and for seeking to undermine civil liberties, and they are therefore seeking nearly $1.75 million in damages, in a symbolic campaign to charge Mr. Arroyo one peso for each of the 87 million Filipinos he wants to deprive of free expression, the SEAPA statement read. SEAPA in the Net: http://www.seapabkk.org/. REDBACK NETWORKS: Officials Continue to Face Calif. Stock Suit -------------------------------------------------------------- The Northern District of California has yet to rule on a motion to dismiss the consolidated securities class action pending in the U.S. District Court against certain officers and directors of Redback Networks, Inc. On Dec. 15, 2003, the first of several putative class action complaints, "Robert W. Baker, Jr., et al. v. Joel M. Arnold, et al., No. C-03-5642 JF," was filed in the U.S. District Court for the Northern District of California. At least 10 nearly identical complaints were filed in the same court. All of the complaints eventually were consolidated into a single consolidated complaint. Plaintiffs have amended the consolidated complaint several times. Two of plaintiffs' amendments of the consolidated complaint came in response to orders by the court granting defendants' motions to dismiss earlier versions of the consolidated complaint and allowing plaintiffs leave to amend. The current version of the consolidated complaint is the Fourth Amended Consolidated Complaint, which was filed on May 19, 2006. The fourth amended consolidated complaint names 12 of the company's current and former officers and directors as defendants. The company is not named as a defendant. The complaint asserts claims on behalf of all purchasers of the company's shares of common stock from Nov. 27, 1999 through Oct. 10, 2003. The complaint purports to allege violations of the federal securities laws in connection with the alleged failure to timely disclose information primarily relating to certain alleged transactions between the company and Qwest Communications International, Inc. It seeks damages in an unspecified amount. On July 10, 2006, the defendants filed a motion to dismiss the fourth amended consolidated complaint. The plaintiff's filed their opposition to the defendant's motion to dismiss Aug. 4, 2006. The court heard arguments on the motion to dismiss on Sept. 15, 2006. It has not yet issued a ruling on the motion to dismiss, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. The suit is "In re Redback Networks, Inc. Securities Litigation, Case No. 03-05642," filed in the U.S. District Court for the Northern District of California under Judge Jeremy Fogel with referral to Judge Howard R. Lloyd. Representing the plaintiffs are: (1) Grant & Eisenhofer, P.A., 1201 N. Market Street, Suite 2100, Wilmington, DE, 19801, Phone: 302.622.7000, Fax: 302.622.7100, E-mail: info@gelaw.com; and (2) Anderlini, Finkelstein, Emerick & Smoot, 400 S. El Camino Real, San Mateo, CA, 94402, Phone: 650-348-010, Fax: 650-348-096, E-mail: Info@Afelaw.com; (3) Eric J. Belfi of Labaton Sucharow & Rudoff, LLP, 100 Park Avenue, New York, NY 10017, Phone: 212-907-0878, Fax: 212-818-0477, E-mail: ebelfi@labaton.com; (4) Robert A. Jigarjian of Green Welling, LLP, 235 Pine Street, 15th Floor, San Francisco, CA 94104, Phone: 415-477-6700, Fax: 415-477-6710, E-mail: cand.uscourts@classcounsel.com. SIRENZA MICRODEVICES: Settles Del. Suit Over Micro Linear Deal -------------------------------------------------------------- Sirenza Microdevices, Inc. has settled a class action filed against it in the Court of Chancery of the State of Delaware in New Castle County in relation to its plan to acquire Micro Linear Corp. On August 30, 2006, a complaint regarding a putative class action, "Yevgeniy Pinis v. Timothy R. Richardson, et al., No. 2381-N," was filed against the company, Micro Linear, Metric Acquisition Corporation and Micro Linear's board of directors in connection with our proposed acquisition of Micro Linear. The complaint was amended on Sept. 12, 2006. The amended complaint alleges, among other things, that: -- the Micro Linear board of directors violated its fiduciary duties to the stockholders of Micro Linear by approving the merger of Metric Acquisition Corp. with and into Micro Linear; -- the consideration paid to the stockholders of Micro Linear in the merger was unfair and inadequate and that the proxy statement/prospectus that forms a part of our registration statement on Form S-4 (as amended and filed on Sept. 13, 2006) was deficient in a number of respects. The complaint seeks, among other things, an injunction prohibiting us and Micro Linear from consummating the merger, rights of rescission against the merger and the terms of the merger agreement, damages incurred by the class, and attorneys' fees and expenses. On Oct. 4, 2006, the company and Micro Linear agreed in principle with the plaintiff to a settlement of this lawsuit. The agreement in principle as to the proposed settlement contemplates that counsel for the plaintiff will request a reasonable award of fees and expenses from the court in connection with the lawsuit. The amount of any fee award ultimately granted is within the court's discretion and cannot be determined at this time. Further to the proposed settlement, the parties agreed to provide the stockholders of Micro Linear with certain additional disclosures. The settlement is subject to the approval of the Delaware Court of Chancery and provides for a broad release of claims by the stockholder class. Prior to the time at which the settlement will be submitted to the Delaware Court of Chancery for final approval, the parties will provide additional information to class members in a notice of settlement, including further information about the release of claims. TASER INT'L: Awaits Approval of $20M Securities Suit Settlement --------------------------------------------------------------- The U.S. District Court for the District of Arizona has yet to rule on the proposed $20 million settlement of a consolidated securities fraud suit filed against Taser International, Inc. Beginning on or about Jan. 10, 2005, numerous securities class actions were filed against the company and certain of its officers and directors. These actions were filed on behalf of the purchasers of the company's stock in various class periods, beginning as early as May 29, 2003 and ending as late as Jan. 14, 2005. The majority of these lawsuits were filed in the U.S. District Court for the District of Arizona. Four actions were filed in New York and one Michigan, which were transferred to the District of Arizona. Judge Susan Bolton consolidated the class actions and lead plaintiff and lead counsel were selected. The lead plaintiff filed a consolidated complaint, which became the operative complaint for all of the class actions, on Aug. 29, 2005. The operative class period is May 29, 2003 to Jan. 11, 2005. Defendants filed a motion to dismiss the consolidated complaint, which has been fully briefed for the court but has not yet been decided. It alleged, among other things, violations of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5, promulgated thereunder, and seeks unspecified monetary damages and other relief against all defendants. The consolidated amended complaint generally alleges that the company and the individual defendants made false or misleading public statements regarding, among other things, the safety of the company's products and the company's ability to meet its sales goals, including the validity of a $1.5 million sales order with the company's distributor, Davidson's, in the fourth quarter of 2004. The consolidated complaint also alleges that product defects were leading to excessive product returns by customers. On July 25, 2006, lead plaintiff, lead counsel, defendants and defendants' counsel engaged in a mediation conference, and in subsequent discussions, in an attempt to settle the consolidated securities class actions. On Aug. 9, 2006, the parties filed a joint notice of settlement stating, among other things, that the parties had reached an agreement in principal setting all consolidated actions, subject to documentation, notice and court approval. On Aug. 11, 2006, the court issued an order staying the class action for 60 days to allow the parties to complete and submit settlement documents, and further denying as moot the defendants' pending motion to dismiss the consolidated complaint. On Oct. 11, 2006, the parties filed a joint stipulation of settlement and related documents, and plaintiff filed a motion in support of the proposed order preliminarily approving the settlement, to which motion the defendants consented. On Oct. 13, 2006, the court, upon the joint stipulation of the parties to the action, entered an order continuing the stay of the action through Nov. 6, 2006 to complete and submit settlement documents. The stipulation of settlement and related documents filed on Oct. 11, 2006 set forth terms of settlement including, among other things, full releases of any and all related known or unknown claims among the plaintiff, plaintiff class and the defendants, and payment of $20 million from TASER for the benefit of the plaintiff class to be comprised of: -- $12 million in cash (approximately $4.1 million to be provided from the Directors' and Officers' Liability Insurance policy), and -- $8 million in Company common stock valued as of the date at which the stock is transferred (1,103,448 shares based on a closing market price of $7.25 at September 29, 2006). The suit is "In re Taser International Securities Litigation, Master File No. CV 05-115-PHX-SRB," filed in the U.S. District Court for the District of Arizona under Judge Susan R. Bolton. Representing the defendants are: (1) David B. Rosenbaum and Maureen Beyers both of Osborn Maledon, P.A., 2929 North Central Avenue, Phoenix, Arizona 85012-2794, Phone: (602) 640-9000, Fax: (602) 664-2053, E-mail: drosenbaum@omlaw.com or mbeyers@omlaw.com; and (2) Keith E. Eggleton and David A. McCarthy both of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304, Phone: (650) 849-3011, Fax: (650) 493- 6811, E-mail: KEggleton@wsgr.com or DMcCarthy@wsgr.com. Representing the plaintiffs are: (i) Robert Mitchell, 2210 East Camelback Road, Suite 122B, Phoenix, AZ 85106; (ii) Mel E. Lifshitz, Keith M. Fleischman, Timothy J. MacFall, Joseph R. Seidman, Jr., Stephanie Beige, Russell M. Iger and Jeffrey Lerner all of Berstein Liebhard & Lifshitz, LLP, 10 East 40th Street, New York, NY 10016; (iii) Mario Alba, Jr. of Lerach Coughlin Stoia Geller Rudman & Robbins LLP, 200 Broadhollow Rd., Ste 406, Melville, NY 11747, Phone: (631) 367-7100; (iv) Patricia I. Avery of Wolf Popper Ross Wolf & Jones LLP, 845 3rd Ave., 12th Floor, New York, NY 10022, Phone: (212) 759-4600; and (v) Jeffrey Craig Block of Berman DeValerio & Pease, 1 Liberty Sq., Ste 8, Boston, MA 02109, Phone: (617) 542- 8300. TASER INT'L: Parties Agree to Dismissal of Ill. Stun Gun Lawsuit ---------------------------------------------------------------- Parties in the suit over stun guns manufactured by Taser International, Inc. have agreed to dismiss their case, which was pending in the U.S. District Court for the Northern District of Illinois. In August 2005, the company was served with a summons and the complaint in which the plaintiff alleges that defendant misled the plaintiff about the safety of the TASER device when they purchased the TASER device and are seeking damages. The complaint was, "Village of Dolton v. TASER International." The suit, which was filed back in July 2005, alleges that the company misled police departments across the country about the safety of its stun guns and left them with weapons that are too dangerous to use on the street without added safety provisions (Class Action Reporter, Jan. 20, 2006). The plaintiff is seeking to certify the lawsuit as a class action. The company has filed an answer to the complaint and a motion to dismiss. In October 2005, the company filed a declaration of the former chief of police for the Village of Dolton, which refutes many of the allegations made in the complaint, and the company filed a motion for sanctions. In October 2005, the court issued an order partially granting the company motion to dismiss, and denied the balance of the motions. In October 2006, the company reached an agreement with the plaintiffs to dismiss the lawsuit the terms of which are subject to a confidentiality agreement. The suit is "Village of Dolton v. Taser International Inc., Case No. 1:05-cv-04126," filed in the U.S. District Court for the Northern District of Illinois under Judge James F. Holderman. Representing the plaintiffs is John K. Vrdolyak of Edward R. Vrdolyak, Ltd., 741 North Dearborn St., Chicago, IL 60610, Phone: (312) 482-8200. Representing the defendants is David Thomas Ballard of Barnes & Thornburg, One North Wacker Drive, Suite 4400, Chicago, IL 60606, Phone: 312-357-1313, E-mail: dballard@btlaw.com. TEXTRON INC: R.I. Court Enters Favorable Ruling in ERISA Lawsuit ---------------------------------------------------------------- The U.S. District Court for the District of Rhode Island entered a summary judgment in favor of Textron, Inc. in the consolidated class action pending against the company that alleges violations of the Employee Retirement Income Security Act (ERISA), according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. Two identical lawsuits, purporting to be class actions on behalf of Textron benefit plans and participants and beneficiaries of those plans during 2000 and 2001, were filed in 2002 in the U.S. District Court in Rhode Island against Textron, the Textron Savings Plan and the Plan's trustee. A consolidated amended complaint alleges breach of certain fiduciary duties under ERISA, based on the amount of Plan assets invested in Textron stock during 2000 and 2001. The complaint seeks equitable relief and compensatory damages on behalf of various Textron benefit plans and the participants and beneficiaries of those plans during 2000 and 2001 to compensate for alleged losses relating to Textron stock held as an asset of those plans. Textron's motion to dismiss the consolidated amended complaint was granted on June 24, 2003. On May 7, 2004, the U.S. Court of Appeals for the First Circuit affirmed dismissal of all claims against the Plan's trustee and against the Plan itself, and also affirmed dismissal of certain other claims against Textron. However, the Court of Appeals ruled that plaintiffs should be permitted to attempt to develop their breach of fiduciary duty claims, and remanded those claims to the district court. On March 1, 2006, the district court entered summary judgment for Textron. On Nov. 1, 2006, the First Circuit dismissed plaintiffs' appeal, and the matter has been concluded. The suit is "Lalonde v. Textron, Inc., et al., Case No. 1:02-cv- 00334-S-LDA," filed in the U.S. District Court for the District of Rhode Island under Judge William E. Smith with referral to Judge Lincoln D. Almond. Representing the plaintiffs are, G. Douglas Jones of Whatley Drake, LLC, 2323 2nd Avenue, North Birmingham, AL 35203, US, Phone: 205-328-9576, Fax: 328-9669; and David J. Strachman of McIntyre, Tate, Lynch & Holt Counsellors at Law, 321 South Main Street, Suite 400, Providence, RI 02903, Phone: 351-7700, Fax: 331-6095, E-mail: djs@mtlhlaw.com. Representing the defendants are: (i) Paul V. Curcio and Kristen W. Sherman of Adler Pollock & Sheehan, P.C., One Citizens Plaza, 8th Floor, Providence, RI 02903, 274-7200, Phone: 351-4607, Fax: 351-4607, E-mail: pcurcio@apslaw.com; and (ii) Mitchell A. Karlan and William J. Kilberg of Gibson, Dunn & Crutcher, LLP, 200 Park Ave., 47 Floor, New York, NY 10166-0193, Phone: 212-351-4000 and 202-955- 8573, Fax: 351-4035 and 530-9559. TREX CO: Dismissal of Va. Securities Fraud Litigation Appealed -------------------------------------------------------------- Plaintiffs in a securities fraud suit pending against Trex Co. Inc. in the U.S. District Court for the Western District of Virginia filed a notice of appeal with the Fourth Circuit Court of Appeals. Commencing on July 8, 2005, two lawsuits, both of which sought certification as a class action, were filed in the U.S. District Court for the Western District of Virginia naming as defendants: -- the company; -- Robert G. Matheny, a director and the former chairman and chief executive officer; and -- Paul D. Fletcher, senior vice president and chief financial officer. Following agreement by the plaintiffs and the defendants that the two lawsuits should be consolidated, the plaintiffs filed a consolidated class action complaint. The complaints principally allege that the company, Mr. Matheny and Mr. Fletcher violated Sections 10(b) and 20(a) of and Rule 10b-5 under the U.S. Securities Exchange Act of 1934 by, among other things, making false and misleading public statements concerning the company's operating and financial results and expectations. The complaints also allege that certain directors of the Company sold shares of the company's common stock at artificially inflated prices. Plaintiffs seek unspecified compensatory damages. On Feb. 28, 2006, the company filed a motion to have the consolidated class action complaint dismissed with prejudice for failure to state a claim. On Oct. 6, 2006, the court granted the company's motion to dismiss the claim. On Nov. 2, 2006, the plaintiffs filed a notice of appeal with the Fourth Circuit Court of Appeals. Two separate derivative lawsuits have been filed in the U.S. District Court for the Western District of Virginia naming as defendants Mr. Matheny, Mr. Fletcher and each director of the company. The filed complaints are based upon the same factual allegations as the complaints in the class action lawsuits, and allege that the directors and Mr. Fletcher breached their fiduciary duties by permitting the company to issue false and misleading public statements concerning the company's operating and financial results, and also allege that directors of the company sold shares of the company's common stock at artificially inflated prices. The plaintiffs and the defendants have agreed that the two derivative lawsuits should be consolidated, and that the consolidated complaint should be stayed pending final resolution of the class action. The suit is "Mehigan, et al. v. Trex Company, Inc. et al., Case No. 5:05-cv-00047-gec-bwc," filed in the U.S. District Court for the Western District of Virginia under Judge Glen E. Conrad with referral to Judge B. Waugh Crigler. Representing the plaintiffs are: (1) Eric Lechtzin of Schiffrin & Barroway, LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone: 610- 667-7706, Fax: 610-667-7056, E-mail: elechtzin@sbclasslaw.com; and (2) Lionel Z. Glancy of Glancy & Binkow, LLP, 1801 Avenue of the Stars, los Angeles, CA 90067, Phone: 310-201- 9150, Fax: 310-201-9160. Representing the defendants are: (i) Christian J. Mixter, 1111 Pennsylvania Avenue, NW Washington, DC 20004, Phone: 202-739-5073, Fax: 739- 3001, and (ii) Marc J. Sonnenfeld of Morgan Lewis & Bockius, LLP, 1701 Market Street, Philadelphia, PA 19103-2921, Phone: 215- 963-5572, Fax: 215-963-5001, E-mail: msonnenfeld@morganlewis.com. WESBANCO INC: W.Va. Court Mulls Okay for "Martin" Settlement ------------------------------------------------------------ The U.S. District Court for the Northern District of West Virginia has yet give final approval to the settlement of a purported class action inherited by WesBanco, Inc. when it acquired American Bancorporation. On March 1, 2002, the WesBanco, Inc., consummated its acquisition of American Bancorporation through a series of corporate mergers. At the time of the consummation of this transaction, American Bancorporation was a defendant in the suit, "Martin, et al. v. The American Bancorporation Retirement Plan, et al., Civil Action No. 5:00-CV-168," which was pending in the U.S. District Court for the Northern District of West Virginia. WesBanco became the principal defendant in this suit by reason of the merger. This case involves a class action suit against American Bancorporation by certain beneficiaries of the American Bancorporation Defined Benefit Retirement Plan seeking to challenge benefit calculations and methodologies used by the Plan Administrator in determining benefits under the Plan which was frozen by American Bancorporation, as to benefit accruals, in 1992. The Plan had been the subject of a prior action in a case, "American Bancorporation Retirement Plan, et al. v. McKain, Civil Action No. 5:93-CV-110," which was also litigated in the United States District Court for the Northern District of West Virginia. The McKain case resulted in a court order entered on Sept. 22, 1995, which directed American Bancorporation to follow a specific method for determining retirement benefits under the Plan. American Bancorporation asserted that it calculated the benefits in accordance with the requirements of the 1995 order. The purported class of plaintiffs has asserted that they are not bound by the 1995 Order since they were not parties to that proceeding and are seeking a separate benefit determination. In the current case, the court limited the class of plaintiffs to a group of approximately 37 individuals and granted partial summary judgment to significantly reduce the scope and extent of the case. The court subsequently granted summary judgment in favor of WesBanco on the remaining claims on March 31, 2004, and the plaintiff appealed the decision to the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit issued an opinion dated May 11, 2005, which reversed the court's earlier grant of summary judgment on behalf of WesBanco, and remanded the case for further proceedings. The appellate court reversed the district court's ruling that res judicata and collateral estoppel were applicable under the circumstances, which precluded the re-litigation of matters previously decided by the district court in the earlier 1995 case involving the same pension plan. Mediation was held in the case, which resulted in the execution of a tentative settlement agreement. The parties subsequently entered into a formal settlement agreement, which was preliminarily approved by the district court by an order dated Sept. 29, 2006. Class notices have now been sent to members of the class of plaintiffs and a final hearing to approve the settlement of the case has been scheduled for Nov. 17, 2006, according to the company's Nov. 8, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. The suit is "Martin, et al v. American the Plan, et al., Case No. 5:00-cv-00168-WCB-JES," filed in the U.S. District Court for the Northern District of West Virginia under Judge W. Craig Broadwater. Representing the plaintiffs is Thomas M. Cunningham of Cassidy, Myers, Cogan & Voegelin, L.C., 1413 Eoff St., Wheeling, WV 26003, Phone: 304-232-8100, Fax: 304-232-8352, E-mail: tmc@cmcvlaw.com. Representing the company is Cynthia B. Jones of Steptoe & Johnson, PLLC - Morgantown, PO Box 1616, Morgantown, WV 26507- 1616, Phone: 304-598-8111, Fax: 304-598-8116, E-mail: jonescb@steptoe-johnson.com. New Securities Fraud Cases BODISEN BIOTECH: Yourman Alexander Announces Stock Suit Filing -------------------------------------------------------------- Yourman Alexander & Parekh LLP, announces that lawsuits seeking class action status have been filed on behalf of shareholders who purchased or otherwise acquired the securities of Bodisen Biotech, Inc. during the period Aug. 26, 2005 through Nov. 14, 2006. The lawsuits are pending in the U.S. District Court for the Southern District of New York. The lawsuits allege, in part, that the company and certain of its officers, along with Benjamin Wey a/k/a/ Benjamin Wei and his company New York Global Group, Inc. (NYGG), violated federal securities laws by failing to present the true financial condition of Bodisen and that by omitting to disclose the truth about Bodisen during the class period, defendants artificially inflated the price of the company's securities for their own personal gain. It is also alleged that on Nov. 12, 2006, the company issued a press release that it received a deficiency letter from AMEX warning that it is out of compliance with certain listing standards. After that, a press release was issued stating that AMEX believes Bodisen made insufficient or inaccurate disclosures in public filings on its relationship with, and payments to, NYGG and its affiliates both prior to and subsequent to its listing on the exchange and that AMEX expressed concern that Bodisen has internal control issues related to its accounting and financial reporting obligations in the context of this relationship with the NYGG. Finally, it is alleged that after the true financial condition of the company was revealed, Bodisen shares plummeted in response. In fact, Bodisen shares fell almost 70% from a high of $10.84 on Nov. 10, 2006, to an intra day low of $3.93 on Nov. 16, 2006. The deadline to move for appointment as lead plaintiff in the case is Jan. 15, 2007. For more details, contact Vahn Alexander or Behram Parekh of Yourman Alexander & Parekh LLP, 3601 Aviation Blvd., Suite 3000, Manhattan Beach, California 90266, Phone: (800) 725-6020, E- mail: parekhb@yaplaw.com, Web site: http://www.yaplaw.com. IKANOS COMMS: Brower Piven Announces N.Y. Securities Suit Filing ---------------------------------------------------------------- The law firm of Brower Piven announced that a securities class action was commenced on behalf of shareholders who purchased or otherwise acquired the common stock of Ikanos Communications, Inc. pursuant and/or traceable to the company's Registration Statement and Prospectus for its initial public offering on Sept. 22, 2005, or its secondary public offering on March 8, 2006. The case is pending in the U.S. District Court for the Southern District of New York. The action charges that defendants violated federal securities laws by issuing a series of materially false and misleading statements to the market throughout the class period, which statements had the effect of artificially inflating the market price of the Company's securities. No class has yet been certified in the above action. Interested parties may move the court no later than Jan. 5, 2007 for appointment as lead plaintiff for the proposed class. For more details, contact Brower Piven, The World Trade Center- Baltimore, 401 East Pratt Street, Suite 2525, Baltimore, Maryland 21202, Phone: 410/986-0036, E-mail: hoffman@browerpiven.com. PEGASUS WIRELESS: Schatz Nobel Announces Securities Suit Filing --------------------------------------------------------------- The law firm of Schatz Nobel Izard, P.C., announces that a lawsuit seeking class action status has been filed in the U.S. District Court for the Northern District of California on behalf of all persons who purchased or otherwise acquired the common stock of Pegasus Wireless Corp. between Dec. 22, 2005 and Sept. 5, 2006. Also included are those who acquired Pegasus through its acquisitions of SKI Technologies and AMAX Engineering. The complaint alleges that Pegasus and certain of its officers and directors violated federal securities laws. Investors were surprised to learn the following adverse information in an Aug. 24, 2006 report published by The MotleyFool.com: -- Pegasus failed to disclose CEO Jasper Knabb's and CFO Stephen Durland's close business ties with convicted felons; -- Pegasus failed to disclose a series of related party transactions and the manner in which Knabb purchased more than $26 million in Pegasus stock; and -- Pegasus withheld pertinent information involving Knabb's history with penny stock companies with suspicious trading patterns. On this news, Pegasus shares declined almost 25% from the closing price of $7.60 per share two days earlier. At the close of the class period, a report by Barron's revealed that: -- Knabb had previously been arrested for possible insurance fraud; -- Two former Knabb companies -- BIFS Technologies, formerly Biofiltration Systems, and Wireless Frontier -- evidenced suspected stock and market manipulation; and -- Pegasus failed to disclose the truth concerning the novelty and uniqueness of its products and the foreseeability to compete in the current marketplace. On Sept. 5, 2006, shares of Pegasus plummeted to $1.10 per share, falling over 36.5%. Interested parties may no later than Jan. 8, 2007, request for appointment as lead plaintiff of the class. For more details, contact Schatz Nobel, Phone: (800) 797-5499, E-mail: sn06106@aol.com, Web site: http://www.snlaw.net. ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice Mendoza, Editors. Copyright 2006. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *