/raid1/www/Hosts/bankrupt/CAR_Public/061206.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, December 6, 2006, Vol. 8, No. 242
Headlines
ARIBA INC: Investors Suit Transferred to Calif. District Court
ATLAS AIR: Still Faces Cargo Services Price Manipulation Suits
BC FERRY: Queen of the North Passengers Back Suit Over Sinking
BIG LOTS: Enters Agreement to Settle Calif. Wage, Hour Lawsuit
BIG LOTS: Faces Suit Over Calif. Managers Work Classification
BROKERAGE FIRMS: Short Sellers File Lawsuit Over Borrowing Fees
DOT HILL: Files Motion to Dismiss Calif. Consolidated Stock Suit
E.I. DUPONT: Entry of Order for Science Panel Study on C8 Filed
EPIX PHARMACEUTICALS: Mass. Court Dismisses Securities Lawsuit
ESTEE LAUDER: Plaintiffs in N.Y. Securities Suit Amend Complaint
FOXHOLLOW TECHNOLOGIES: Faces Shareholder Litigation in Calif.
FRIEDMAN BILLINGS: Still Faces N.Y. Consolidated Securities Suit
GROUP 1: Tex. Court Approves Settlement in Suit Against Dealers
GUAM: Superior Court Orders $123.5M COLA Payout to Retirees
HORIZON WEST: Faces Litigation Over Business Practices, Staffing
KAISER VENTURES: "Slemmer" Suit Settlement Needs Final Agreement
KANBAY INTL: Stockholder Files Ill. Suit Over Cap Gemini Merger
KING PHARMACEUTICALS: Class Claims Over Mylan Merger Dismissed
LEVITT CORP: Continues to Face Homeowners' Litigation in Fla.
MAXIM PHARMACEUTICALS: Court Okays Stockholder Suit Settlement
MAXIM PHARMACEUTICALS: Settles Calif. Suit Over EpiCept Merger
MEDICARE LITIGATION: Court Certifies Classes in AWP Litigation
MOLINA HEALTHCARE: Calif. Court Mulls Nixing of Securities Suit
PEGASUS WIRELESS: Lead Plaintiff Deadline Set Jan. 8, 2007
POLO RALPH: Calif. Court Approves Dress Code Suit Settlement
POLO RALPH: Faces Several Labor-Related Litigations in Calif.
PREMCOR INC: Family Dropped from Hartford Refinery Vapors Suit
RCN CORP: Discovery Begins in N.J. ERISA Violations Lawsuit
ROCKWELL INT'L: Colo. Jury Holds Firm Liable in Rocky Flats Case
SILLA AMERICA: Recalls Parka Jackets for Strangulation Hazard
THAXTON GROUP: Partial Settlement Attained in S.C. Stock Suit
TNS INC: Continues to Face Del. Suit Over Shares Disposal Plan
TNS INC: Discovery Continuing for Securities Fraud Suit in Va.
TRIDENT MICROSYSTEMS: Faces Suit Over Back-Dated Option Grants
UNITED STATES: Refugees File Penn. Lawsuit Over DHS Stonewalling
VALERO ENERGY: $120M Award in Blue Island Refinery Case Vacated
WAL-MART STORES: Okla. Judge Okays $5.1M Labor Suit Settlement
WEST CORP: Neb. Court Dismisses Complaint in Stockholder Suit
WEST CORP: Nev. Court Remands Ritt Case Back to Ohio State Court
ZIX CORP: Tex. Court Refuses to Dismiss Consolidated Stock Suit
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
New Securities Fraud Cases
BODISEN BIOTECH: Cohen Milstein Files Securities Suit in N.Y.
TIER TECHNOLOGIES: Brower Piven Announces Securities Suit Filing
*********
ARIBA INC: Investors Suit Transferred to Calif. District Court
--------------------------------------------------------------
The suit, "Ariba Investors Group et al. v. McCormick et al.,"
has been transferred from the U.S. District Court for the
Eastern District of Virginia to the U.S. District Court for the
Northern District of California, according to a recent Ariba
Inc. Form 10-K filing.
On Oct. 31, 2005, a purported class action, alleging violations
of Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, was filed in the U.S. District Court for the Eastern
District of Virginia. The company is not named as a defendant
in the suit.
The action was brought on behalf of stockholders who purchased
the company's stock from Jan. 28, 2004 through Jan. 31, 2005.
It alleges that the defendants artificially inflated the
company's stock price between those dates by failing to
disclose, in public statements that the company made about its
products, market position and performance, that some of those
products allegedly infringed patents belonging to a third party.
On Jan. 18, 2006, plaintiff Jonathan Crowell filed a motion for
appointment of lead plaintiff and lead counsel. On June 8,
2006, the Court appointed lead plaintiff and lead counsel.
On Aug. 28, 2006, the case was transferred to the U.S. District
Court for the Northern District of California. Plaintiff has
until Dec. 4, 2006 to file an amended complaint.
The suit is "Ariba Investors Group et al. v. McCormick et al.,
Case No. 3:06-cv-05575-MHP," filed in U.S. District Court for
the Northern District of California under Judge Marilyn H.
Patel.
Representing plaintiffs are:
(1) Kirby McInerney & Squire, LLP, 830 Third Avenue, 10th
Floor, New York, NY 10022, Phone: 212-371-6600, Fax:
212-751-2540, E-mail: ipress@kmslaw.com; and
(2) Mark Campbell at Shuford Kaufman & Canoles, 1051 E Cary
Street, 3 James Center, 12th Floor, Richmond, VA 23219
U.S., Phone: (804) 771-5700.
Representing the defendants are:
(i) Jonathan Richard DeFosse at Shearman & Sterling LLP,
801 Pennsylvania Avenue, NW, Washington, DC 20004,
U.S., Phone: (202) 508-8000, Fax: (202) 661-7374; and
(ii) Jeffrey S. Facter at Shearman & Sterling LLP, 525
Market Street, Suite 1500, San Francisco, CA 94105,
Phone: 415-616-1100, Fax: 415-616-1199, E-mail:
jfacter@shearman.com
ATLAS AIR: Still Faces Cargo Services Price Manipulation Suits
--------------------------------------------------------------
Atlas Air Worldwide Holdings, Inc., and its operating
subsidiary, Polar Air Cargo, Inc. plus a number of other cargo
carriers continue to be named as co-defendants in approximately
80 class actions filed in multiple jurisdictions of the U.S.
Federal District Court, according to the company's Nov. 13 Form
10-Q filing with the Securities and Exchange Commission for the
period ended Sept. 30, 2006.
The complaints generally allege, among other things, that the
defendants, including AAWW and Polar, manipulated the market
price for air cargo services sold domestically and abroad
through the use of surcharges.
They seek treble damages and injunctive relief. All of the
suits have been transferred or are awaiting transfer to the U.S.
District Court for the Eastern District of New York, where the
cases have been consolidated for pre-trial purposes.
The company has notified its directors and officers' insurance
carrier of these lawsuits and has engaged outside counsel.
Also, it has contacted counsel for the other named defendants
with respect to conducting a joint defense in an effort to limit
defense costs where possible.
Further, the company, Polar and a number of other cargo carriers
have been named as defendants in a civil class action in
Ontario, Canada that is substantially similar to the class
actions in the U.S.
Additionally in early 2006, Polar also received notification
from Swiss authorities that they have opened an investigation
into the freight pricing practices of several carriers,
including Polar, on routes between Switzerland and the United
States.
While there has been no specific complaint or demand by the
Swiss authorities of Polar in respect of the matters that are
the subject of the Swiss investigation, Polar may be called upon
to provide information to the Swiss authorities at some future
time.
Atlas Air Worldwide Holdings, Inc. on the Net:
http://www.atlasair.com/.
BC FERRY: Queen of the North Passengers Back Suit Over Sinking
--------------------------------------------------------------
Affidavits supporting a case by two passengers of Canada's BC
Ferry, Queen of the North, which sank in northern British
Columbia in March, have been filed with the court, according to
the Times Colonist.
Seventeen surviving ferry passengers described traumatic impacts
they suffered when the ship sank. One of those who filed an
affidavit is retired Queen of the North Capt. Lewis Glentworth.
Nanaimo Alexander and Maria Kotai filed the case, early this
year. The Kotais, who are seeking class-action status for the
suit, accuse BC Ferries of failing to train crew adequately,
supervise the crew on the bridge, keep a proper lookout, operate
at safe speed, and conduct an evacuation of the ferry in a way
that prevented or minimized injuries (Class Action Reporter,
March 30, 2006).
In September, Justice David Tysoe of the Supreme Court of
British Columbia approved the addition of the ship's captain
Colin Henthorne, Fourth Officer Carl Lilgert and deckhand Karen
Bricker as defendants (Class Action Reporter, Sept. 8, 2006).
The workers are accused of recklessness through "temporary
abandonment of their duty" and "failure to keep a proper
lookout."
James Hanson, lawyer for the couple, had said under provisions
of the Marine Liability Act, there is a presumption of
negligence when a ship sinks, which limits the amount of
compensation that can be recovered.
Bringing into light the issue of abandonment, he said, "brings
us within the higher standard of care and higher degree of
wrongdoing or recklessness." Proof of recklessness entitles
plaintiffs to greater compensation.
He had said that plaintiffs have no evidence that B.C. Ferry
Corp. was reckless, and they won't try to assert that if the
class action is certified.
The Queen of the North sank on March 22 after plowing into Gil
Island. Its 99 passengers and crew safely evacuated the ship,
but two were unable to get off. They have been presumed dead.
Their children have filed a separate lawsuit.
BIG LOTS: Enters Agreement to Settle Calif. Wage, Hour Lawsuit
--------------------------------------------------------------
A California court issued an order granting preliminary approval
to a tentative settlement between Big Lots Inc. and the
plaintiff in a class action alleging violations by the company
of certain California wage and hour laws.
In October 2005, a class action complaint was served upon the
company for adjudication in the Superior Court of the State of
California, County of Ventura. The suit alleged that the
company had violated certain California wage and hour laws.
The plaintiff seeks to recover, on her own behalf and on behalf
of all other individuals who are similarly situated, alleged
unpaid wages and rest and meal period compensation, as well as
penalties, injunctive and other equitable relief, reasonable
attorneys' fees and costs.
In the third quarter of fiscal year 2006, the company and the
plaintiff reached a tentative settlement of the California
matter. On Nov. 6, 2006, the court issued an order granting
preliminary approval of the tentative settlement.
The tentative settlement remains subject to acceptance by the
class and final court approval. The company recorded, in the
third quarter of fiscal year 2006, a pretax charge of $6.5
million included in selling and administrative expenses for the
estimated settlement liability of the California matter.
Big Lots, Inc. on the Net: http://www.biglots.com/.
BIG LOTS: Faces Suit Over Calif. Managers Work Classification
-------------------------------------------------------------
A class action complaint was filed in September against Big Lots
Inc. in the Superior Court of the State of California, County of
Los Angeles.
The suit alleged that the company had violated certain
California wage and hour laws by misclassifying California store
managers as exempt.
Plaintiff seeks to recover, on his own behalf and on behalf of
all other individuals who are similarly situated, alleged unpaid
overtime, unpaid minimum wages, wages not paid upon termination,
improper wage statements, missed rest breaks, missed meal
periods, reimbursement of expenses and loss of unused vacation
time.
Pending discovery on the plaintiffs' claims, the Company cannot
make a determination as to the probability of a loss contingency
resulting from this lawsuit or the estimated range of possible
loss, if any.
Big Lots, Inc. on the Net: http://www.biglots.com/.
BROKERAGE FIRMS: Short Sellers File Lawsuit Over Borrowing Fees
---------------------------------------------------------------
Several Wall Street brokerages were named as defendants in a
purported class action filed in the U.S. District Court for the
Southern District of New York that accuses them of engaging in a
conspiracy to artificially inflate borrowing fees charged to
short sellers.
Forza Capital Management LLC of Bend, Oregon and BHL Capital
Partners LP, of Westport, Connecticut, filed the suit on Dec. 1,
2006, claiming that the defendants' actions are in violation of
antitrust laws.
Both firms, represented by class-action law firm Milberg Weiss
Bershad & Schulman, LLP, are seeking class-action status for
their case on behalf of other short sellers.
Short sellers borrow securities and then sell them in
anticipation of making a profit by buying the securities back
after their price has fallen. Short sellers must pay fees to
cover the cost of borrowing the shares.
Some of those named as defendants in the suit are:
-- Bear Stearns Companies,
-- UBS AG,
-- Merrill Lynch and Co. Inc.,
-- Citigroup,
-- Deutsche Bank AG,
-- Lehman Brothers Holdings Inc.,
-- Bank of America Corp.,
-- JPMorgan Chase & Co.,
-- Van Der Moolen, Morgan Stanley, and
-- Goldman Sachs Group Inc.
The suit, which also seeks unspecified damages, generally
accuses defendants of orchestrating a massive scheme whereby
they have combined and conspired to raise, fix, and maintain, at
artificially inflated levels, the fees paid by plaintiffs for
short sales of so-called "hard-to-borrow" securities.
"Hard-to-borrow" securities are those that are in short supply
for short sellers, who borrow stocks and then sell them in the
hope of buying them back for a lower price once the share price
falls. Short sellers must pay a borrowing fee until the
transaction has been "covered" by a later purchase of the
shares. The defendants locate, borrow and deliver stocks
involved in most short sales, according to the complaint.
Plaintiffs contend that the brokerages communicated with one
another daily to agree on which securities were in short supply
for short sellers and then set artificially high borrowing
rates.
As a result of their conspiracy, the suit contends that
defendants have been able to reap billions of dollars in
improper and illegal fees through price fixing.
Additionally, the complaint charges that defendants have
conspired since 2000 to fix borrowing fees above what would have
been charged absent the alleged conspiracy and have arbitrarily
designated certain securities as "hard to borrow."
The suit is "Forza v. Morgan Stanley, Case No. 06-cv-13676,"
filed in the U.S. District Court for the Southern District of
New York.
Representing the plaintiffs are Jerome M. Congress and Peter
Edward Seidman of Milberg Weiss Bershad & Schulman, LLP, One
Pennsylvania Plaza, New York, NY 10119, Phone: (212) 594-5300
and (212) 613-5625, Fax: (212) 868-1229, E-mail:
pseidman@milberg.com.
DOT HILL: Files Motion to Dismiss Calif. Consolidated Stock Suit
----------------------------------------------------------------
Dot Hill Systems Corp. filed a motion to dismiss a consolidated
securities fraud class action that was filed in the U.S.
District Court for the Southern District of California.
In late January and early February 2006, numerous complaints
purporting to be class actions were filed against the company.
The complaints allege violations of federal securities laws
related to alleged inflation in its stock price in connection
with various statements and alleged omissions to the public and
to the securities markets and declines in the company's stock
price in connection with the restatement of certain of its
quarterly financial statements for fiscal year 2004, and seeking
damages therefore.
The complaints were consolidated into a single action, and the
court appointed as lead plaintiff a group comprised of the
Detroit Police and Fire Retirement System and the General
Retirement System of the City of Detroit.
The consolidated complaint was filed on Aug. 25, 2006, and the
company filed a motion to dismiss on Oct. 5, 2006. A ruling on
this motion is expected sometime after Jan. 8, 2007.
The suit is "Matt Brody, et al. v. Dot Hill Systems Corp., et
al., Case No. 3:06-cv-00228-W-WMC," filed in the U.S. District
Court for the Southern District of California under Judge Thomas
J. Whelan with referral to Judge William McCurine, Jr.
Representing the plaintiffs are:
(1) Eric J. Belfi of Murray Frank and Sailer, 275 Madison
Avenue, Suite 801, New York, NY 10016, Phone: (212)
682-1818;
(2) Michael M. Goldberg of Glancy and Blinkow, 1801 Avenue
of The Stars, Suite 311, Los Angeles, CA 90067, Phone:
(310) 201-9150, Fax: (310) 201-9160; and
(3) Ira M. Press of Kirby McInerney and Squire, 830 Third
Avenue, Tenth Floor, New York, NY 10022, Phone: (212)
317-2300, Fax: (212) 371-6600.
Representing the defendant is Koji F. Fukumura of Cooley Godward
Kronish, 4401 Eastgate Mall, San Diego, CA 92121-9109, Phone:
(858) 550-6000, Fax: (858) 550-6420, E-mail:
kfukumura@cooley.com.
E.I. DUPONT: Entry of Order for Science Panel Study on C8 Filed
---------------------------------------------------------------
Plaintiff attorney in a class action against E.I. DuPont De
Nemours & Co. in Wood County Circuit Court in Ohio filed a
motion for entry of order to enforce a settlement agreement
directing a science panel to perform an independent study on the
effects of the perfluorooctonoate on workers, The West Virginia
Record reports.
Residents living near the plant, located on the Ohio River about
7 miles southwest of Parkersburg, West Virginia sued Dupont in
August 2001, claiming their drinking supply was contaminated
with perfluorooctonoate, also known as C8, C-8, PFOA, APFO,
FC143, FC-143.
The chemical is used to produce Teflon at the plant in
Washington, West Virginia, along the Ohio River. The
communities affected are residents of Belpre, Little Hocking,
Lubeck, Pomeroy, Tuppers Plains, and Mason County.
In 2004, the parties reached a $343 million settlement that
included a review of blood samples and health information of the
residents to determine if there is a link between C8 and health
problems. Wood County Circuit Judge George W. Hill, who now has
retired, subsequently approved the settlement.
Recently, a DuPont lawyer asked the court in a letter to stop a
study by a court-appointed science panel. Subsequently, lawyers
representing the residents filed a motion opposing the move on
grounds it violates the 2004 settlement agreement.
Dupont lawyer Laurence F. Janssen said the particular study was
not contemplated by the settling parties and is not part of the
settlement agreement. He also said the company has conducted it
own studies of its workers, and any additional studies should be
conducted by the company or its contractors.
DuPont had released the second phase of a study that found no
higher mortality rates among current and former West Virginia
employees than workers at seven DuPont plants in other states,
the population of West Virginia or the rest of the nation's
population.
On Nov. 16, Charleston attorney Harry Deitzler filed a motion
for entry of order saying the science panel wishes to do a study
of the nearly 5,000 Washington Works employees.
Judge Arthur Gustke, a fill-in senior status for Judge Hill,
agreed in a Nov. 13 hearing to ask the science panel what it
wished to study.
Laurence F. Janssen: Partner, Steptoe & Johnson LLP, 633 West
Fifth Street, Suite 700, Los Angeles, California 90071 (Los
Angeles Co.), Phone: 213-439-9400, Fax: 213-439-9599.
EPIX PHARMACEUTICALS: Mass. Court Dismisses Securities Lawsuit
--------------------------------------------------------------
The U.S. District Court for the District of Massachusetts
granted EPIX Pharmaceuticals, Inc.'s motion to dismiss for
"failure to prosecute" a shareholder securities class action
filed against it.
On Jan. 27, 2005, a securities class action was filed on behalf
of persons who purchased the company's common stock between July
10, 2003 and Jan. 14, 2005.
The complaint alleged that the defendants violated the U.S.
Securities Exchange Act of 1934 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.
After this initial complaint was filed, other similar actions
were filed against the company and the same officers in the same
court. One of these later-filed complaints purports to be
brought on behalf of persons who purchased the company's common
stock between March 18, 2002 and Jan. 14, 2005.
Since these actions were filed, various plaintiffs have filed
motions to consolidate the related actions, and to appoint a
lead plaintiff and lead counsel.
On Sept. 27, 2005, the District Court consolidated these
motions. On Jan. 31, 2006, the U.S. District Court for the
District of Massachusetts granted the company's motion to
dismiss for "failure to prosecute" the previously disclosed
shareholder class action against the company.
The dismissal was issued without prejudice after a hearing,
which dismissal does not prevent another suit to be brought
based on the same claims, according to Epix Pharmaceuticals'
Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the period ended Sept. 30, 2006.
The suit is "Yorston v. Epix Pharmaceuticals, Inc. et al., Case
No. 1:05-cv-10166-PBS," filed in the U.S. District Court for the
District of Massachusetts under Judge Patti B. Saris.
Representing the plaintiffs are:
(1) Thomas G. Shapiro of Shapiro Haber & Urmy, LLP, 53
State Street, Boston, MA 02108, Phone: 617-439-3939,
Fax: 617-439-0134, E-mail: tshapiro@shulaw.com;
(2) Douglas M. Brooks of Martland & Brooks, LLP, Stonehill
Corporate Center, Suite 500, 999 Broadway, Saugus, MA
01906, Phone: 617-742-9720, Fax: 617-742-9701, E-mail:
dmbrooks@gilmanpastor.com; and
(3) Thomas M. Sobol of Hagens Berman Sobol Shapiro, LLP,
26th Floor, One Main Street, 4th Floor, Cambridge, MA
02142, Phone 617-482-3700, Fax: 617-482-3003, E-mail:
Tom@hbsslaw.com.
Representing the defendants is Adam L. Sisitsky of Mintz, Levin,
Cohn, Ferris, Glovsky & Popeo, PC, One Financial Center, Boston,
MA 02111, Phone: 617-348-1689, Fax: 617-542-2241, E-mail:
asisitsky@mintz.com.
ESTEE LAUDER: Plaintiffs in N.Y. Securities Suit Amend Complaint
----------------------------------------------------------------
An amended complaint has been filed in a consolidated securities
fraud class action filed against The Estee Lauder Cos. Inc. in
the U.S. District Court for the Southern District of New York.
On March 30, 2006, a purported securities class action
complaint, "Thomas S. Shin, et al. v. The Estee Lauder Cos.
Inc., et al.," was filed against the company and certain of its
officers and directors.
The complaint alleged that the defendants made statements during
the period April 28, 2005 to October 25, 2005 in press releases,
the company's public filings and during conference calls with
analysts that were materially false and misleading and that
artificially inflated the price of the company's stock. It also
alleged claims under Sections 10(b) and 20(a) of the U.S.
Securities Exchange Act of 1934.
Additionally, the complaint asserted that during the class
period, certain executive officers and the trust for the benefit
of a director sold shares of our Class A Common Stock at
artificially inflated prices.
Three additional purported securities class action complaints
were subsequently filed in the U.S. District Court for the
Southern District of New York containing similar allegations.
On July 10, 2006, the court consolidated these actions as "In Re
Estee Lauder Companies Securities Litigation," appointed lead
plaintiff, and approved the selection of lead counsel.
A consolidated amended complaint addressing the same issues as
the original complaint was filed on Sept. 8, 2006.
The suit is "In re: Estee Lauder Cos. Securities Litigation,
Case No. 1:06-cv-02505-LAK," filed in the U.S. District Court
for the Southern District of New York under Judge Lewis A.
Kaplan.
Representing the plaintiffs are:
(1) James Henry Glavin of Stull Stull & Brody, 6 East 45th
Street, 5th Floor, New York, NY 10017, Phone: (212)
687-7230, Fax: (212) 490-2022, E-mail:
jhglavin@ssbny.com;
(2) Eric James Belfi of Labaton Rudoff & Sucharow, LLP, 100
Park Avenue, 12th Floor, New York, NY 10017, Phone:
(212) 907-0790, Fax: (212) 883-7579, E-mail:
ebelfi@labaton.com;
(3) Michael Goldberg of Glancy Binkow & Goldberg, LLP, 1801
Avenue of the Stars, Suite 311, Los Angeles, CA 90067,
Phone: (310) 201-9150; and
(4) Marc I. Gross of Pomerantz, Haudek, Block, Grossman &
Gross, L.L.P., 100 Park Avenue, 26th Floor, New York,
NY 10017, US, Phone: (212) 661-1100, Fax: (212) 661-
8665.
FOXHOLLOW TECHNOLOGIES: Faces Shareholder Litigation in Calif.
--------------------------------------------------------------
Foxhollow Technologies, Inc. faces two shareholder class actions
in the U.S. District Court for the Northern District of
California, according to the company's Nov. 9, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Sept. 30, 2006.
In July 2006 and August 2006, two separate shareholder class-
action complaints were filed against the company and two of its
officers. Plaintiffs are seeking to represent a class of
purchasers of the company's common stock from May 13, 2005 to
Jan. 26, 2006.
The complaint generally alleges that false or misleading
statements were made concerning the company's management and
seeks unspecified monetary damages.
The first identified complaint is "Margaret Kovarik, et al. v.
FoxHollow Technologies, Inc., et al., Case No. 06-CV-04595,"
filed in the U.S. District Court for the Northern District of
California under Judge Phyllis J. Hamilton.
Plaintiff firms in this or similar case:
(1) Brower Piven, The World Trade Center-Baltimore, 401
East Pratt Street, Suite 2525, Baltimore, MD, Phone:
410/986-0036;
(2) Cotchett Pitre Simon & McCarthy, San Francisco Airport
Office Center, 840 Malcolm Road, Suite 200, Burlingame,
CA, 94010, Phone: 650.697.6000, Fax: 650.697.0577, E-
mail: info@cpsmlaw.com;
(3) Federman & Sherwood, 120 North Robinson, Suite 2720,
Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail:
wfederman@aol.com;
(4) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com; and
(5) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com.
FRIEDMAN BILLINGS: Still Faces N.Y. Consolidated Securities Suit
----------------------------------------------------------------
Friedman Billings Ramsey Group, Inc. remains a defendant in a
consolidated securities fraud class action filed in the U.S.
District Court for the Southern District of New York.
Initially, the company and certain current and former senior
officers and directors were named in a series of putative
securities class actions filed in the second quarter of 2005.
The complaints in these actions are brought under various
sections of the U.S. Securities Exchange Act of 1934, as
amended, and allege misstatements and omissions concerning the
investigation conducted by the staff of the Division of
Enforcement of the Securities and Exchange Commission and the
staff of the Department of Market Regulation of NASD, concerning
insider trading and other charges related to the company's
trading in a company account and the offering of a private
investment in public equity on behalf of CompuDyne, Inc. in
October 2001.
The suits also allege misstatements and omissions with regard to
the Company's expected earnings, including the potential adverse
impact on the Company of changes in interest rates.
These cases have been consolidated under, "In re FBR Inc.
Securities Litigation." A consolidated amended complaint has
been filed asserting claims under the U.S. Securities Exchange
Act of 1934, according to Friedman Billings' Nov. 9, 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: FBR, Inc. Securities Litigation, Case No.
05-CV-04617," filed in the U.S. District Court for the Southern
District of New York under Judge Richard J. Holwell.
Representing the plaintiffs are:
(1) Mario Alba, Jr. of Lerach, Coughlin, Stoia, Geller,
Rudman & Robbins, LLP, 58 South Service Road, Suite
200, Melville, NY 11747, Phone: 631-367-7100, Fax:
631-367-1173, E-mail: malba@lerachlaw.com;
(2) Eric James Belfi of Labaton Rudoff & Sucharow, LLP, 100
Park Avenue, 12th Floor, New York, NY 10017, Phone:
(212) 907-0790, Fax: (212) 883-7579, E-mail:
ebelfi@labaton.com; and
(3) Nancy Kaboolian of Abbey Spanier Rodd Abrams & Paradis,
LLP, 212 East 39th Street, New York, NY 10016, US,
Phone: (212) 889-3700, Fax: (212) 684-5191, E-mail:
nkaboolian@abbeygardy.com.
Representing the defendants is George Anthony Borden Williams &
Connolly, LLP, 725 12th Street, NW Washington, DC 20005, Phoen:
(202) 434-5563, Fax: (202) 434-5029, E-mail: gborden@wc.com.
GROUP 1: Tex. Court Approves Settlement in Suit Against Dealers
----------------------------------------------------------------
A state court in Texas certified a settlement class of certain
Texas automobile purchasers in a suit alleging customer fraud in
vehicle inventory tax and violations of federal antitrust and
other laws by Group 1 Automotive Inc. subsidiaries.
The Texas Automobile Dealers Association (TADA) and certain new
vehicle dealerships in Texas that are members of the TADA,
including a number of the company's Texas dealership
subsidiaries, have been named in two state court class action
lawsuits and one federal court class action lawsuit.
The three actions allege that since January 1994, Texas dealers
have deceived customers with respect to a vehicle inventory tax
and violated federal antitrust and other laws.
In April 2002, the state court in which two of the actions are
pending certified classes of consumers on whose behalf the
action would proceed.
In October 2002, the Texas Court of Appeals affirmed the trial
court's order of class certification in the state court actions.
The defendants requested that the Texas Supreme Court review
that decision, and the court declined that request on March 26,
2004.
The defendants petitioned the Texas Supreme Court to reconsider
its denial, and that petition was denied on Sept. 10, 2004. In
the federal antitrust action, in March 2003, the federal
district court also certified a class of consumers.
Defendants appealed the district court's certification to the
Fifth Circuit Court of Appeals, which on Oct. 5, 2004, reversed
the class certification order and remanded the case back to the
federal district court for further proceedings.
In February 2005, the plaintiffs in the federal action sought a
writ of certiorari to the U.S. Supreme Court in order to obtain
review of the Fifth Circuit's order, which request the Court
denied.
In June 2005, the company's Texas dealerships and certain other
defendants in the lawsuits entered settlements with the
plaintiffs in each of the cases.
The state court approved the settlement of the lawsuits in
August 2006. It then dismissed them on October 2006.
As a result of that settlement, the state court certified a
settlement class of certain Texas automobile purchasers.
Dealers participating in the settlement, including a number of
the company's Texas dealership subsidiaries, are expected to
issue certificates for discounts off future vehicle purchases,
refund cash in some circumstances, pay attorneys' fees, and make
certain disclosures regarding inventory tax charges when
itemizing such charges on customer invoices.
In addition, participating dealers have funded and will fund
certain costs of the settlement, including costs associated with
notice of the settlement to the class members. The federal
action settlement does not involve the certification of any
additional classes. The company anticipates that a dismissal
motion will be filed soon in the federal court action.
The estimated remaining expense of the proposed settlements of
$1.2 million has been included in accrued expenses in the
company's consolidated financial statements.
GUAM: Superior Court Orders $123.5M COLA Payout to Retirees
-----------------------------------------------------------
Superior Court of Guam Judge Arthur Barcinas issued an order in
November ordering the government to pay government retirees
$123.5 million in cost-of-living allowances, reports say.
The suit was filed in 1993 by government retirees arguing they
have been denied cost-of-living increases based on inflation as
required by a law that was in effect between 1988 and 1995.
Judge Janet Weeks certified the suit as a class action on behalf
of all Guam retirees in August 1994. In March 2005, Judge
Arthur Barcinas takes over the case.
In December 2005, the retirees' attorney renews motion for a
court order stating the COLA must be paid. In April 2006, Judge
Barcinas rules in retirees' favor.
In May 2006, the government's attorneys asked the court to
reconsider decisions made in the case. The parties were in
arguments regarding the base year for the computation of
payments.
The government's legal adviser, which drafted a proposed order
for the award, said it is 1990. On the other hand, the
retirees' attorney said it should be 1988 as ordered by the
court.
Judge Barcinas, in an oral ruling, determined that the formula
for most of the payout would be based on the consumer price
index of 1988. The lawsuit was filed in 1993 and based on a law
that was implemented in 1988 but repealed in 1995.
Oct. 6, 2006, Judge Barcinas rejects most of the governor's
arguments and orders that eligible retirees be paid the amount
calculated by the Retirement Fund, which he said was $91
million, minus the $32 million retirees were paid in cost-of-
living allowances during the years in question.
On Nov. 19, Judge Barcinas finally made a decision to order a
$123.5 million payout to retirees.
Attorney Mike Phillips, who represents the retirees in the suit,
said an initial $118 million COLA calculation failed to compound
inflation and to credit retirees who retired before July. The
new figure includes those factors.
Approximately 4,000 retirees are eligible for the payments, but
half of them are believed to have died since the lawsuit was
filed, according to Pacific Daily News.
Representing the government is Dooley Roberts & Fowler LLP,
Suite 201, Orlean Pacific Plaza, 865 South Marine Drive,
Tamuning 96913, Guam, Phone: 617-646-1222, Fax: 671-646-1223,
Web site: http://www.guamlawoffice.com.
Representing the retirees is Michael F. Phillips, Hagatna
District, Guam.
HORIZON WEST: Faces Litigation Over Business Practices, Staffing
----------------------------------------------------------------
Horizon West, Inc. and Horizon West Healthcare, Inc. are facing
a purported class action in the Sacramento Superior Court in
California over allegations of fraudulent business practices and
inadequate staffing, The Shreveport Times reports.
About 26 Horizon West health care nursing homes in California
were named, including Foothill Oaks Care Center, Colonial
Healthcare Centers, Grass Valley Care Center, Meadow View Manor,
Lincoln Manor, Roseville Care Center, and Sierra Hills Care
Center.
The allegations in the complaint filed span from June 10, 2002
to June 10, 2006 and allege the defendants failed to provide
adequate nursing staff for patients.
According to the complaint, Colonial Healthcare averaged 3.1
nursing hours per patient per day in 2004 and Foothill Oaks Care
Center averaged merely 3.07 nursing hours per patient day during
the year 2004.
In addition to the allegation of understaffing, the suit also
claims that the nursing homes received numerous notices of
deficiencies.
Colonial reportedly received 17 in 2005 and Foothill Oaks 31 in
the same year. The suit claims that the statewide average is 11
notices per year.
The lawsuit seeks to represent any person that was under the
care of any of the nursing homes named in the lawsuit.
KAISER VENTURES: "Slemmer" Suit Settlement Needs Final Agreement
----------------------------------------------------------------
The payment in the settlement of the purported class action,
"Thomas M. Slemmer, et al. v. Fontana Union Water Company, et
al., Case No. SCVSS 086856," in San Bernardino County Superior
Court, California is still subject to the negotiation and
execution of a final settlement agreement, according to a Nov.
13, 2006 Form 10-Q filing of Kaiser Ventures, LLC with the
Securities Exchange Commission for the period ended Sept. 30,
2006.
Plaintiffs allege that they are the owners of 175 shares of the
stock of Fontana Union Water Co., a mutual water company, and
that the defendants conspired and committed acts that constitute
an unlawful restraint of trade, a breach of fiduciary duty by
the controlling shareholders of Fontana Union and fraudulent
business practices in violation of California law (Class Action
Reporter, Jan. 2, 2006).
Among others, plaintiffs have requested $25,000,000 in damages
and the trebling of such damages under California law (Class
Action Reporter, Jan. 2, 2006).
Recently, the company learned that the some of the defendants
named below, have reached a tentative settlement for the case:
-- Fontana Union Water Co.,
-- Cucamonga County Water District, now called Cucamonga
Valley Water District,
-- San Gabriel Valley Water Co.,
-- directors and/or officers of Fontana Union Water Co.
In September 2005, the court ruled that there was no triable
issue of material fact in the lawsuit with regard to the company
and that it was entitled to judgment in its favor as a matter of
law.
In October 2005, the court entered judgment in the company's
favor and dismissed the action against it with prejudice. In
December 2005, the trial court reaffirmed its decision to
dismiss the company from the case in response to plaintiffs'
motion for reconsideration or, in the alternative, motion for
new trial. However, the judgment in Kaiser's favor was
appealed.
To resolve the appeal, and to minimize future litigation costs
and resolve any possible uncertainty associated with the appeal,
Kaiser and the class representative and other named plaintiffs
agreed to a settlement in which the class waived the appeal
right and released their claims.
After notice to the class, and after receiving the
recommendation of the trail court in the matter to approve the
settlement, the California Court of Appeal approved the
settlement. The net out-of-pocket cost of the settlement to
Kaiser was approximately $132,000.
In October 2005, Kaiser instituted an arbitration proceeding
against its managers' and officers' insurance carrier regarding
coverage of the Slemmer litigation since the carrier had not
reimbursed Kaiser for any of its costs of defense.
In November 2005 Kaiser received a payment of $650,000 from the
insurance carrier as partial reimbursement for such defense
costs.
In April 2006, Kaiser received an additional payment of $170,000
toward its defense costs. Since, among other reasons, these
payments do not fully reimburse Kaiser for its costs of defense
and the carrier also indicated that it would not pay some or all
of Kaiser's settlement costs, the arbitration proceeding against
the carrier continued.
In late October 2006, Kaiser and the insurance carrier reached a
tentative settlement whereby the insurance carrier would
reimburse an additional $455,000 of the amount paid by Kaiser in
the defense of the Slemmer suit and in settlement of the appeal.
While the financial terms of the settlement have been agreed
upon, its payment is subject to the negotiation and execution of
a final settlement agreement.
KANBAY INTL: Stockholder Files Ill. Suit Over Cap Gemini Merger
---------------------------------------------------------------
Kanbay International, Inc. was advised that a complaint has been
filed in the Circuit Court of Cook County, Illinois alleging
that Kanbay and its directors breached their fiduciary duties to
the stockholders of Kanbay in the negotiation of the proposed
merger transaction between Cap Gemini SA, Capgemini Financial
Services, Inc. and Kanbay, which was announced on Oct. 26, 2006.
The complaint, which purports to be filed by a stockholder of
Kanbay as a class action complaint, alleges that the price
negotiated is inadequate, that the directors obtained benefits
that are not available to the public stockholders and that
certain material disclosures are omitted from the preliminary
proxy statement Kanbay filed on Nov. 13, 2006 with the
Securities and Exchange Commission.
The complaint also alleges that Cap Gemini aided and abetted the
alleged breaches of fiduciary duty. The complaint seeks monetary
damages and injunctive relief.
Kanbay International, Inc. in the Net: http://www.kanbay.com.
KING PHARMACEUTICALS: Class Claims Over Mylan Merger Dismissed
--------------------------------------------------------------
Plaintiffs in a consolidated shareholder derivative suit that
also raises class claims against King Pharmaceuticals, Inc. in
Tennessee state court have voluntarily dismissed complaints
against two individual defendants.
Beginning in March 2003, four purported shareholder derivative
complaints were filed in Tennessee state court alleging a breach
of fiduciary duty, among other things, by some of the Company's
current and former officers and directors, with respect to
alleged underpayments by the company to governmental programs,
as well as previously disclosed errors relating to reserves for
product returns.
These cases have been consolidated, and on Oct. 3, 2003,
plaintiffs filed a consolidated amended complaint. On Nov. 17,
2003, defendants filed a motion to dismiss or stay the
consolidated amended complaint. The court denied the motion to
dismiss, but granted a stay of proceedings.
On Oct. 11, 2004, the court lifted the stay to permit plaintiffs
to file a further amended complaint adding class action claims
related to the company's then-anticipated merger with Mylan
Laboratories, Inc.
On Oct. 26, 2004, defendants filed a partial answer to the
further amended complaint, and moved to dismiss the newly added
claims. Following the termination of the Mylan merger
agreement, plaintiffs voluntarily dismissed these claims.
On Oct. 11, 2006, plaintiffs voluntarily dismissed claims
against Brian Markison and Elizabeth Greetham. Discovery with
respect to the remaining claims in the case has commenced.
No trial date has been set for the case, according to King's
Nov. 9 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30.
LEVITT CORP: Continues to Face Homeowners' Litigation in Fla.
-------------------------------------------------------------
Levitt Corp. remains a defendant in a purported class action
pending in the 9th Judicial Circuit Court in and for Orange
County, Florida, according to the company's Nov. 9, 2006 Form
10-Q filing with the U.S. Securities and Exchange Commission for
the period ended Sept. 30, 2006.
The suit purports to be a class action on behalf of 95 named
plaintiffs residing in approximately 65 homes located in one of
the company's communities in Central Florida.
It goes under the caption, "Frank Albert, Dorothy Albert, et al.
v. Levitt and Sons, LLC, a Florida limited liability company,
Levitt Homes, LLC, a Florida limited liability company, Levitt
Corporation, a Florida corporation, Levitt Construction Corp.
East, a Florida corporation and Levitt and Sons, Inc., a Florida
corporation."
The complaint alleges:
-- breach of contract, breach of implied covenant of good
faith and fair dealing;
-- failure to disclose latent defects;
-- breach of express warranty;
-- breach of implied warranty;
-- violation of building code;
-- deceptive and unfair trade practices;
-- negligent construction; and
-- negligent design.
Plaintiffs seek certification as a class, or in the alternative
to divide into sub-classes, unspecified damages alleged to range
from $50,000 to $400,000 per house, costs and attorneys' fees.
Plaintiffs seek a trial by jury.
On Feb. 15, 2006, the parties filed a Joint Stipulation for
Abatement of Lawsuit Pending Compliance with Chapter 558,
Florida Statutes and Order Approving Same (Joint Stipulation).
Court approval of the Joint Stipulation is pending.
MAXIM PHARMACEUTICALS: Court Okays Stockholder Suit Settlement
--------------------------------------------------------------
The U.S. District Court for the Southern District of California
gave final approval for the settlement of a consolidated
stockholder class action against Maxim Pharmaceuticals, Inc.
On Sept. 21, 2004, plaintiff Dr. Richard Bassin, on behalf of
himself and purportedly on behalf of a class of other
stockholders similarly situated, filed a complaint against
Maxim, one officer of Maxim and one former officer of Maxim,
alleging violations of federal securities laws related to
declines in Maxim's stock price in connection with various
statements and alleged omissions to the public and to the
securities markets during the class period from Nov. 11, 2002 to
Sept. 17, 2004, and seeking damages.
Thereafter, two similar complaints were filed. These three
actions were consolidated and in March 2005, plaintiffs filed a
consolidated amended complaint. No discovery was conducted.
In October 2005, the court granted Maxim's motion to dismiss the
consolidated amended complaint, but granted plaintiffs leave to
amend. The cases were tendered to Maxim's insurance carrier,
Carolina Casualty Insurance Co., which denied coverage.
On June 22, 2006, the parties entered into a stipulation of
settlement, for $1.0 million in cash and $1.3 million in EpiCept
common stock and Maxim's insurance carrier agreed to contribute
approximately $0.8 million towards that settlement. Final
approval of this settlement was given on Sept. 27, 2006.
The company paid approximately $0.3 million in cash in July 2006
and in October 2006 issued approximately 0.7 million shares of
common stock in settlement of this suit, according to EpiCept
Corp.'s Nov. 9, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the period ended Sept. 30, 2006.
MAXIM PHARMACEUTICALS: Settles Calif. Suit Over EpiCept Merger
--------------------------------------------------------------
A settlement was reached in a derivative complaint filed in
California state court against Maxim Pharmaceuticals, Inc. over
a definitive merger agreement with EpiCept Corp.
On Oct. 7, 2004 plaintiff Jesus Putnam, filed -- purportedly on
behalf of the company -- a derivative complaint in the Superior
Court for the State of California, County of San Diego, against
one officer of the company, two former officers of the company
and the company's entire Board of Directors.
Mr. Putnam's suit alleges breach of fiduciary duty, abuse of
control, gross mismanagement, waste of corporate assets, unjust
enrichment and violations of the California Corporations Code.
All of these arose from allowing purported violations of federal
securities laws related to declines in the company's stock price
in connection with various statements and alleged omissions to
the public and to the securities markets. The complaint sought
damages.
In October 2005, plaintiff attempted to file an amended
complaint to include class action allegations that defendants
breached their fiduciary duties by approving the merger.
In addition, the plaintiff requested that the court enjoin the
company's directors from completing the merger of EpiCept and
Maxim. The court, pending the lifting of the stay, rejected the
amended complaint.
The complaint was tendered to company's insurance carrier, which
denied coverage. The company disputes the position taken by the
insurance carrier and fully intends to enforce its rights under
the policy.
On Mar. 7, 2006, the company entered into a settlement agreement
with the plaintiff where EpiCept will pay $50,000 in EpiCept
common stock to cover the plaintiff's legal expenses.
The settlement is subject to customary conditions such as the
execution of settlement documents, the final court approval of
the settlement and dismissal of the Putnam claims with
prejudice, according to EpiCept Corp.'s Nov. 9, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Sept. 30, 2006.
MEDICARE LITIGATION: Court Certifies Classes in AWP Litigation
--------------------------------------------------------------
The U.S. District Court for the District of Massachusetts has
certified class actions on behalf of Medicare Part B
beneficiaries who purchased certain dosages of particular drugs.
The lawsuits are entitled, "In re: Pharmaceutical Industry
Average Wholesale Price Litigation, Docket No. Docket No. 01-CV-
12257-PBS. CV-12257-PBS."
The lawsuits claim that certain drug companies intentionally
reported false and inflated average wholesale prices (AWP) for
certain types of outpatient drugs.
The reported AWPs are used to set prescription drug prices that
are paid by Medicare and consumers making Medicare Part B co-
payments. Plaintiffs asks the court to award money damages to
individuals who made Medicare Part B co-payments for the drugs.
The court has decided to try the case in stages. The court has
certified a class action on behalf of consumers who purchased
certain dosages of particular drugs manufactured by three of the
Defendants, AstraZeneca, Bristol-Myers Squibb Group and the
Johnson & Johnson Group.
A trial involving the claims of consumers who made Medicare Part
B co-payments for the drugs listed below is scheduled to begin
on March 5, 2007.
Prospective members of the class are those who made a co-payment
under Medicare Part B from Jan. 1, 1991 to Jan. 1, 2005 for
certain dosages of the following prescription drugs:
-- Blenoxane -- (bleomycin sulfate)
-- Remicade -- (infliximab)
-- Cytoxan -- (cyclophosphamide)
-- Rubex -- (doxorubicin hcl)
-- Etopophos -- (etoposide phosphate)
-- Taxol -- (paclitaxel)
-- Paraplatin -- (carboplatin)
-- VePesid -- (etoposide)
-- Procrit -- (epoetin alfa)
-- Zoladex -- (goserelin acetate)
Also included in the class are individuals, who have an
obligation to make such a co-payment, or individuals who are a
legal heir of, or legal successor to the rights of a medicare
part b beneficiary who made such a co-payment.
Individuals who resided in Alabama, Alaska, Georgia, Iowa,
Kentucky, Louisiana, Mississippi, Montana or Virginia at the
time they made a Medicare Part B co-payment are excluded from
the Class.
For more details, contact:
(1) AWP Class Action Administrator, c/o Complete Claim
Solutions, LLC, PO Box 24654, West Palm Beach, FL
33416, Phone: 1-800-419-5391 or 1-866-903-1204, E-mail:
AWPInfo@completeclaimsolutions.com, Web site:
http://www.AWPlitigation.net;and
(2) Steve W. Berman of Hagens Berman Sobol Shapiro, LLP,
1301 Fifth Avenue, Suite 2900, Seattle, WA 98101,
Phone: (206) 268-9320, Fax: (206) 623-0594, Web site:
http://www.hagens-berman.com.
MOLINA HEALTHCARE: Calif. Court Mulls Nixing of Securities Suit
---------------------------------------------------------------
The U.S. District Court for the Central District of California
has yet to rule on a motion to dismiss the consolidated
securities class action against Molina Healthcare, Inc.
Beginning on July 27, 2005, a series of securities class action
complaints were filed on behalf of persons who acquired
company's stock between Nov. 3, 2004 and July 20, 2005.
The class action complaints were consolidated into a single
consolidated action, Case No. CV 05-5460 GPS (SHx), and a lead
plaintiff later appointed.
On March 13, 2006, the lead plaintiff filed its consolidated
complaint. The consolidated complaint purports to allege claims
against the company, J. Mario Molina, John C. Molina, and Joseph
W. White for alleged violations of the Securities Exchange Act
of 1934 arising out of the company's announcement of its
guidance for the 2005 fiscal year.
On May 1, 2006, the defendants filed a motion to dismiss the
consolidated complaint for failure to state a claim upon which
relief can be granted, and the motion has been fully briefed by
the parties.
On July 27, 2006, the federal court judge vacated the hearing on
the motion and took the motion under submission, according to
Molina Healthcare, Inc.'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 "William G. Hunt v. Molina Healthcare Inc., et al.,
Case No. CV 05-5460 GPS (SHx)," filed in the U.S. District Court
for the Central District of California under Judge S. James
Otero with referral to Judge Stephen J. Hillman.
Representing the plaintiffs are:
(1) Christopher Kim and Lisa J. Yang of Lim Ruger & Kim,
1055 W. 7th St., Ste. 2800, Los Angeles, CA 90017,
Phone: 213-955-9500, E-mail: lisa.yang@lrklawyers.com
and christopher.kim@lrklawyers.com;
(2) Richard A. Maniskas and Marc A. Topaz of Schiffrin &
Barroway, 280 King of Prussia Road, Radnor, PA 19087,
Phone: 610-667-7706; and
(3) Tricia L. McCormick of Lerach Coughlin Stoia Geller
Rudman and Robbins, 655 West Broadway, Suite 1900, San
Diego, CA 92101, Phone: 619-231-1058, E-mail:
triciam@lerachlaw.com.
PEGASUS WIRELESS: Lead Plaintiff Deadline Set Jan. 8, 2007
----------------------------------------------------------
Kahn Gauthier Swick, LLC announced that shareholders have only
until Jan. 8, 2007 to move the court for appointment as lead
plaintiff in a class action filed on behalf of shareholders who
purchased, exchanged or otherwise acquired the common stock of
Pegasus Wireless Corp. between Dec. 22, 2005 and Sept. 5, 2006.
In a press release issued in November, KGS stated that it has
filed a class action against Pegasus and certain of its officers
and directors, over alleged issuance of a series of materially
false and misleading statements in violation of Section 10(b)
and 20(a) of the Exchange Act and Rule 10b-5 promulgated
thereunder (Class Action Reporter, Nov. 10, 2006).
Beginning with an Aug. 24, 2006 report published by The
MotleyFool.com, investors were shocked and alarmed to learn a
series of disturbing reports on Pegasus and its management,
including:
-- Pegasus failed to disclose CEO Jasper Knabb's and CFO
Stephen Durland's close business ties with convicted
felons, securities fraudsters and the like;
-- Pegasus failed to disclose a series of related party
transactions and the manner in which Knabb purchased
more than $26 million in Pegasus stock;
-- Pegasus withheld pertinent information involving
Knabb's history with penny stock companies with
suspicious trading patterns.
The revelation of this news caused Pegasus shares to decline
almost 25% on volume of almost 2 million shares from the closing
price of $7.60 per share two days earlier.
At the close of the class period, over Labor Day weekend, 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;
-- Pegasus failed to disclose the truth concerning the
novelty and uniqueness of its products and the
foreseeability to compete in the current marketplace.
Following the Barron's report, on Sept. 5, 2006, the first day
of trading after the Labor Day weekend, shares of Pegasus
plummeted to a trading low of $1.10 per share, falling over
36.5% on huge volume of almost 18 million shares.
For more details, contact Lewis Kahn of Kahn Gauthier Swick,
LLC, Phone: 1-866-467-1400, ext., 100, or 504-648-1850, E-mail:
lewis.kahn@kglg.com.
POLO RALPH: Calif. Court Approves Dress Code Suit Settlement
------------------------------------------------------------
The U.S. District Court for the District of Northern California
granted preliminary approval to the settlement of a suit filed
against Polo Ralph Lauren Corp. over its employee dress policy
in California.
On Sept. 18, 2002, an employee at one of our stores filed a
lawsuit against the company and its Polo Retail, LLC subsidiary,
alleging violations of California antitrust and labor laws.
The plaintiff purported to represent a class of employees who
had allegedly been injured by a requirement that certain retail
employees purchase and wear company apparel as a condition of
their employment.
The complaint, as amended, sought an unspecified amount of
actual and punitive damages, disgorgement of profits and
injunctive and declaratory relief.
The company answered the amended complaint on Nov. 4, 2002. A
hearing on cross motions for summary judgment on the issue of
whether the company's policies violated California law took
place on Aug. 14, 2003.
The court granted partial summary judgment with respect to
certain of the plaintiff's claims, but concluded that more
discovery was necessary before it could decide the key issue as
to whether the company had maintained for a period of time a
dress code policy that violated California law.
On Jan. 12, 2006, a proposed settlement of the purported class
action was submitted to the court for approval. A hearing on
the settlement was held before the court on June 29, 2006.
On October 26, 2006, the court granted preliminary approval of
the settlement and will begin the process of sending out claim
forms to members of the class. The proposed settlement cost is
$1.5 million.
The proposed settlement would also result in the dismissal of
the similar purported class action filed in San Francisco
Superior Court.
San Francisco Superior Court Class Action
On April 14, 2003, a second putative class action was filed in
the San Francisco Superior Court. This suit, brought by the
same attorneys, alleges near identical claims to these in the
Federal class action. The class representatives consist of
former employees and the plaintiff in the federal court action.
Defendants in this class action include us and our Polo Retail,
LLC, Fashions Outlet of America, Inc., Polo Retail, Inc. and San
Francisco Polo, Ltd. subsidiaries as well as a non-affiliated
corporate defendant and two current managers.
As in the federal action, the complaint seeks an unspecified
amount of actual and punitive restitution of monies spent, and
declaratory relief.
If the judge in the federal class action accepts the proposed
$1.5 million settlement, the state court class action would
subsequently be dismissed. As noted above, on Oct. 26, 2006,
the court granted preliminary approval of the settlement.
The suit is "Young v. Polo Retail, LLC et al., 3:02-cv-04546-
VRW," filed in the U.S. District Court for the Northern District
of California under Judge Vaughn R. Walker.
Representing the plaintiffs are:
(1) Daniel L. Feder, Law Offices of Daniel Feder, 807
Montgomery Street, San Francisco, CA 94133, Phone: 415-
391-9476, Fax: 415-391-9432, E-mail:
danfeder@pacbell.net; and
(2) Joseph Lewis Fogel, Tonita Marie Helton and Richard B.
Levy of Freeborn & Peters, 311 S. Wacker Drive, Suite
3000 Chicago, IL 60606, Phone: 312-360-6568, E-mail:
jfogel@freebornpeters.com or
thelton@freebornpeters.com.
Representing for the defendants are:
(i) Mary L. Guilfoyle and Joseph D. Miller, Epstein Becker
& Green, P.C., One California Street, 26th Floor, San
Francisco, CA 94111-5427, Phone: 415-398-3500, Fax:
415-398-0955 or E-mail: mguilfoyle@ebglaw.com or
jmiller@ebglaw.com; and
(ii) Patrick R. Kitchin, Law Office of Patrick R. Kitchin,
807 Montgomery Street, San Francisco, CA, Phone: (415)
677-9058, E-mail: prk@investigationlogic.com.
POLO RALPH: Faces Several Labor-Related Litigations in Calif.
-------------------------------------------------------------
Polo Ralph Lauren Corp. is facing several lawsuits alleging
violations of California wage and hour laws by improperly
classifying employees as exempt and by failing to pay overtime
work and granting meal breaks to workers.
On March 2, 2006, a former employee at our Club Monaco store in
Los Angeles, California filed a lawsuit against us in the San
Francisco Superior Court alleging violations of California wage
and hour laws.
The plaintiff purports to represent a class of Club Monaco store
employees who allegedly have been injured by being improperly
classified as exempt employees and thereby not receiving
compensation for overtime and not receiving meal and rest
breaks.
The complaint seeks an unspecified amount of compensatory
damages, disgorgement of profits, attorneys' fees and injunctive
relief.
On June 2, 2006, a second putative class action was filed by
different attorneys by a former employee of our Club Monaco
store in Cabazon, California against the company in the Los
Angeles Superior Court alleging virtually identical claims as
the San Francisco action and consisting of the same class
members.
As in the San Francisco action, the complaint sought an
unspecified amount of compensatory damages, disgorgement of
profits, attorneys' fees and injunctive relief. On Aug. 21,
2006, the plaintiff voluntarily withdrew his lawsuit.
On May 30, 2006, four former employees of our Ralph Lauren
stores in Palo Alto and San Francisco, California filed a
lawsuit in San Francisco Superior Court alleging violations of
California wage and hour laws.
Plaintiffs purport to represent a class of employees who
allegedly have been injured by not properly being paid
commission earnings, not being paid overtime, not receiving rest
breaks, being forced to work off of the clock while waiting to
enter or leave the store and being falsely imprisoned while
waiting to leave the store.
The complaint seeks an unspecified amount of compensatory
damages, damages for emotional distress, disgorgement of
profits, punitive damages, attorneys' fees and injunctive and
declaratory relief.
PREMCOR INC: Family Dropped from Hartford Refinery Vapors Suit
--------------------------------------------------------------
The law firm of Goldenberg Heller Antognoli Rowland Short & Gori
in Edwardsville, Illinois withdrew one family as plaintiff in a
class action against Premcor, Inc. and Equilon Pipeline Co. over
petroleum vapors in the village of Hartford, The Madison St.
Clair Record reports.
On Nov. 8, Goldenberg Heller dropped Eric and Tina Rose along
with minor child Derek Rose as plaintiffs, but added another
minor, Wesley Lamere. The child's parents were not added to the
plaintiff roster.
Circuit Judge Daniel Stack had conditionally certified Harry and
Ruth Goforth as lead plaintiffs in the suit. He also certified
the three Roses, Tim and Kim Sullivan, Michael Hanbaum and John
Copeland as class representatives.
Case Background
Seven Missouri attorneys filed a suit against Premcor Refining
Group Inc., Shell Oil and other oil companies in 2003, alleging
that the company's refinery created an underground pool of
gasoline whose vapors are causing damage to Hartford residents'
homes. They proposed and obtained a positive ruling to make
Katherine Sparks as lead plaintiff in the suit.
In 2004, Goldenberg Heller sued most of the same companies for
individual damages on behalf of 65 plaintiffs.
The Goldenberg Heller clients did not became part of the
"Sparks" class. Apex Oil and Sinclair moved for
reconsideration, and Madison County Circuit Judge Daniel Stack
granted it. He did not decertify Ms. Sparks as class
representative in the Missouri suit.
Afterwards, Goldenberg Heller negotiated with Premcor and Shell
Oil on an $8 million settlement that would apply throughout
Hartford. The parties reached a settlement, and Judge Stack
approved it.
Attorneys from Missouri asked the Illinois Supreme Court to
overturn, but the court refused.
The agreement stipulates that $3.5 million of it will be legal
fees handed down to Goldenberg, Miller, Heller & Antognoli. The
final approval for the hearing is scheduled for Jan. 11, 2007
(Class Action Reporter, Sept. 1, 2006).
On Sept. 5, the Missouri lawyers petitioned the Supreme Court
directly for a supervisory order against Judge Stack, and moved
for an emergency stay of proceedings in Madison County.
After several motions, on Sept. 12, Justice Thomas Fitzgerald
denied the emergency motion to stay the Madison County
proceedings. On Sept. 13, Justice Charles Freeman turned down
the Heller firm's motion to deny the supervisory order.
On Sept. 19, Elizabeth Heller objected to the supervisory order
stating the Missouri attorneys "strained the bounds of ethical
propriety" in pursuing the settlement.
On Sept. 20, Equilon attorney Gregory Mollett filed an
objection.
The court has not set a date for a hearing on the supervisory
order (Class Action Reporter, Oct. 4, 2006).
Plaintiffs' counsel is Goldenberg, Heller & Antognoli, P.C.,
2227 S. State Route 157, P.O. Box 959, Edwardsville, Illinois
62025, Phone: (618) 656-5150, Fax: (618) 656-6230, E-mail:
info@ghalaw.com.
RCN CORP: Discovery Begins in N.J. ERISA Violations Lawsuit
-----------------------------------------------------------
Discovery has commenced in the consolidated class action against
RCN Corp. that was filed in the U.S. District Court for the
District of New Jersey alleging violations of the Employee
Retirement Income Security Act of 1974.
In September 2004, as part of the company's Chapter 11
bankruptcy proceedings, certain participants and beneficiaries
of the former RCN Savings and Stock Ownership Plan (Savings
Plan) asserted claims against the company and its current and
former directors, officers, employee administrators, and
managers for alleged violations of ERISA.
Plaintiffs generally alleged that the defendants breached their
fiduciary duties by failing to properly manage and monitor the
Savings Plan in light of the drop in the trading price of the
company's then-outstanding common stock, which comprised a
portion of the aggregate contributions made to the Savings Plan.
In April 2005, the U.S. Bankruptcy Court for the Southern
District of New York permitted the filing of a consolidated
class action complaint in the U.S. District Court for the
District of New Jersey against RCN Corp. and its current and
former directors, officers, employee administrators, and
managers, subject to the limitation that the plaintiffs would
not be permitted to enforce a judgment against the company in
excess of any applicable RCN insurance coverage. The class
action complaint was filed on May 16, 2005.
In March 2006, the class action complaint was dismissed as to
all defendants, except for
-- the company and certain former directors of RCN with
respect to an alleged "failure to monitor" the Savings
Plan, and
-- certain individuals who comprised the former
administrative committee of the Savings Plan with
respect to an alleged failure to prudently invest
Savings Plan assets, in each case during late 2003 and
early 2004 when the alleged breaches of fiduciary duty
occurred.
Discovery with respect to these remaining defendants commenced
in September 2006.
The suit is "In re: RCN Corp. ERISA Litigation, Master File No.
04-CV-5068 (SRC)," filed in the U.S. District Court for the
District of New Jersey under Judge Stanley R. Chesler.
Representing the plaintiffs is Lisa J. Rodriguez of Trujillo
Rodriguez & Richards, LLP, 8 Kings Highway West, Haddonfield NJ
08033, Phone: (856) 795-9002, E-mail: lisa@trrlaw.com.
Representing the company is Edward Cerasia, II of Proskauer
Rose, LLP, One Newark Center, 18th Floor, Newark, NJ 07102-5211,
Phone: (973) 274-3200, E-mail: ecerasia@proskauer.com.
ROCKWELL INT'L: Colo. Jury Holds Firm Liable in Rocky Flats Case
----------------------------------------------------------------
A federal jury in Colorado returned a verdict against Rockwell
International Corp. (RIC) saying that it was liable for
trespassing and nuisance in a protracted legal action involving
the Rocky Flats nuclear weapons plant, according to company's
Nov. 9, 2006 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended Sept. 30, 2006.
RIC, which is now part of The Boeing Company, is the predecessor
of Rockwell Automation, Inc. It operated the Rocky Flats Plant
Golden, Colorado, from 1975 through December 1989 for the
Department of Energy (DOE).
Incident to Boeing's acquisition of RIC in 1996, the Rockwell
Automation, Inc. assumed and agreed to indemnify RIC and Boeing
for any liability arising out of RIC's activities at the plant
to the extent such liability is not assumed or indemnified by
the government, and RIC and Boeing assigned to the company the
right to any reimbursements or other proceeds to which they
might be entitled under RIC's Rocky Flats contracts with the
DOE.
On Jan. 30, 1990, a class action was filed in the U.S. District
Court for the District of Colorado against RIC and Dow Chemical
Co., another former operator of the plant.
The action alleges the improper production, handling and
disposal of radioactive and other hazardous substances,
constituting, among other things, violations of various
environmental, health and safety laws and regulations, and
misrepresentation and concealment of the facts relating thereto.
On Oct. 8, 1993, the court certified separate medical monitoring
and property value classes.
On Feb. 14, 2006, a federal jury empanelled to try certain of
the class action plaintiffs' property damage claims found the
contractor defendants liable for trespass and nuisance, and
awarded $176 million in compensatory damages and $200 million in
punitive damages against the two defendants collectively.
The jury also found RIC to be 10% responsible for the trespass
and 70% responsible for the nuisance. No appealable judgment
was entered on the jury verdict, in part because the court has
yet to decide how the damages are to be allocated between the
defendants and among the plaintiff class members.
Appeals are likely after judgment is entered. Effective Aug. 1,
1996, the DOE assumed control of the defense of the contractor
defendants, including RIC, in the action and has either
reimbursed or paid directly the costs of RIC's defense.
Case Background
The trial of the $500 million class action, filed 15 years ago,
began in Oct. 2005. Residents who owned property near the site,
claimed that Dow Chemical Co., which operated the site from the
1950s through 1975, and RIC, which took over in 1975 and
operated the plant until it was shut down in 1989, improperly
stored or otherwise mishandled plutonium-laced waste, resulting
in contamination of soil and groundwater. According to the
suit, both firms operated the plant under a DOE contract, (Class
Action Reporter, Feb. 23, 2006).
Those residents, who are the named plaintiffs in the suit,
claimed that large fires at the plant and windstorms and other
natural events helped to spread the waste outside the plant's
boundaries. That contamination, plus what the property owners
said was a stigma attached to houses near the plant, resulted in
plummeting property values. They also contend that Dow,
Rockwell and the DOE have covered up how harmful the plant
really was.
Much of the case centers on an FBI raid at the site in the
summer of 1989. Rockwell, which ran Rocky Flats at the time,
pleaded guilty in 1992 to 10 federal environmental crimes and
paid a fine of $18.5 million.
Built in the 1950s during the Cold War era, the plant has been
shut down. Its 6,500-acre site underwent environmental
cleansing and is slated to become a wildlife refuge.
The suit is "Cook, et al. v. Rockwell Intl. Corp., Case No.
1:90-cv-00181-JLK," filed in the U.S. District Court for the
District of Colorado, under Judge John L. Kane.
Representing the plaintiffs are:
(1) Gary B. Blum of Silver & DeBoskey, P.C., 1801 York St.,
Denver, CO 80206, U.S.A, Phone: 303-399-3000, Fax: 303-
399-2650, E-mail: blumg@s-d.com;
(2) Stanley M. Chesley of Waite, Schneider, Bayless &
Chesley Co., L.P.A., 1513 Fourth and Vine Tower, One
West Fourth St., Cincinnati, OH 45202, U.S.A, Phone:
513-621-0268;
(3) Merrill Gene Davidoff, Jennifer E. MacNaughton, Peter
B. Nordberg, Ellen T. Noteware, Bernadette M. Rappold,
Stanley B. Siegel and David F. Sorensen of Berger &
Montague, P.C., 1622 Locust St., Philadelphia, PA
19103, U.S.A, Phone: 215-875-3084, 215-875-3000 and
215-875-3051, Fax: 215-875-4671, 215-875-4604 and 215-
875-5707, E-mail: mdavidoff@bm.net,
jmacnaughton@bm.net, pnordberg@bm.net,
enoteware@bm.net and dsorensen@bm.net;
(4) Bruce H. DeBoskey of Silver & Deboskey, P.C., 1801 York
St. #700, Denver, CO 80206-5607, U.S.A, Phone: 303-399
-3000;
(5) Kenneth A. Jacobsen of Jacobsen Law Offices, LLC, 12
Orchard Lane, Wallingford, PA 19086, U.S.A., Phone:
610-566-7930, Fax: 610-566-7940;
(6) David Evans Kreutzer of Colorado Department of Law,
1525 Sherman St., 5th Floor, Denver, CO 80203, U.S.A,
Phone: 303-866-5667, Fax: 303-866-3558, E-mail:
david.kreutzer@state.co.us;
(7) Louise M. Roselle of Waite, Schneider, Bayless &
Chesley Co., L.P.A., 1513 Fourth and Vine Tower, One
West Fourth St., Cincinnati, OH 45202, U.S.A, Phone:
513-621-0267, Fax: 513-381-2375, E-mail:
louiseroselle@wsbclaw.com;
(8) Clisham, Satriana & Biscan, LLC, 1512 Larimer St., #400
Denver, CO 80202, U.S.A, Phone: 303-468-5403, Fax: 303-
942-7290, E-mail: satrianad@csbattorneys.com;
(9) Holly Brons Shook of Silver & DeBoskey, P.C., 1801 York
St., Denver, CO 80206, U.S.A, Phone: 303-399-3000, Fax:
303-399-2650, E-mail: shookh@s-d.com;
(10) Ronald Simon of Simon & Associates, 1707 N. St., N.W.
Washington, DC 20036, U.S.A, Phone: 202-429-0094, Fax:
202-429-0075, E-mail: ron@1707law.com; and
(11) John David Stoner of Chimicles & Tikellis, L.L.P., 361
West Lancaster Ave., One Haverford Centre, Haverford,
PA 19041-0100, U.S.A
Representing the defendants are:
(i) Joseph John Bronesky and Christopher Lane of Sherman &
Howard, L.L.C.- 17th St., Denver, CO, U.S.
District Court Box 12, 633 Seventeenth St., #3000
Denver, CO 80202, U.S.A, Phone: 303-299-8450 and 303-
299-8422, Fax: 303-298-0949 and 303-298-0940, E-mail:
jbronesk@sah.com and clane@sah.com;
(ii) Wendy S. White, Timothy P. Brooks, Patrick M. Hanlon,
Amy Horton, Franklin D. Kramer and Edward J. Naughton
Of Goodwin Procter, LLP-DC, 1800 Massachusetts Ave.,
N.W. #800, Washington, DC 20036, U.S.A, Phone: 202-
828-2000, Fax: 828-2000;
(iii) Michael K. Isenman of Goodwin Procter, LLP-DC, 901 New
York Ave., NW #700, Washington, DC 20001, U.S.A, Phone:
202-346-4000, Fax: 202-346-4444, E-mail:
misenman@goodwinprocter.com;
(iv) Lester C. Houtz of Bartlit, Beck, Herman, Palenchar &
Scott-Colorado, 1899 Wynkoop St., #800 Denver, CO
80202, U.S.A., Phone: 303-592-3177, Fax: 303-3140, E-
mail: lester.houtz@bartlit-beck.com;
(v) Douglas J. Kurtenbach, S. Jonathan Silverman, Mark S.
Lillie and David M. Bernick of Kirkland & Ellis, LLP-
Illinois, 200 East, Randolph Drive, #5400 Chicago, IL
60601, U.S.A, Phone: 312-861-2225, 312-861-2089 and
312-861-2248, Fax: 861-2200, 312-660-0452 and 312-861-
2200, E-mail: mlillie@kirkland.com and
dbernick@kirkland.com;
(vi) Douglas M. Poland of LaFollette, Godfrey & Kahn, P.O.
Box 2719, One East Main St., Madison, WI 53703-2719,
U.S.A, Phone: 608-257-3911, Fax: 608-257-0609, E-mail:
dpoland@gklaw.com; and
(vii) Louis W. Pribila of Dow Chemical Company, 2030 Dow
Center, Midland, MI 48674, U.S.A, Phone: 517-638-9511,
Fax: 638-9410.
SILLA AMERICA: Recalls Parka Jackets for Strangulation Hazard
--------------------------------------------------------------
Silla America Inc., Los Angeles, California, in cooperation with
the U.S. Consumer Product Safety Commission is recalling about
180 units of children's parka jackets with drawstrings.
The company said the garments have a drawstring through the
hood, posing a strangulation hazard to children. In February
1996, CPSC issued guidelines to help prevent children from
strangling or getting entangled on the neck and waist by
drawstrings in upper garments, such as jackets and sweatshirts.
No injuries were reported.
The jackets come in seven color combinations: black with a grey
stripe along the sleeves, light blue with a black stripe along
the sleeves, grey with a black stripe along the sleeves, navy
blue with a gray stripe along the sleeves, yellow with a grey
stripe along the sleeves and navy blue with a white stripe
across the chest, and black with a white stripe across the
chest. The jacket's zipper goes all the way up to create a mock
turtleneck. The removable hood attaches with a zipper and has a
drawstring. There is elastic at the sleeves, side pockets, and
a drawstring at the waist.
These parka jackets were manufactured in Vietnam and are being
sold at Dollar Days International stores and online
http://www.dollardays.comfrom December 2005 through November
2006 for between $7.50 and $10.
Pictures of the recalled parka jackets:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07510a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07510b.jpg
Consumers are advised to immediately remove the drawstrings from
the sweatshirts to eliminate the hazard. Consumers should
contact Dollar Days Customer Service for a refund or store
credit.
For additional information, contact Dollar Days International
toll-free at (877) 837-9569 between 9 a.m. and 8 p.m. ET Monday
through Friday or visit the company's Web site:
http://www.dollardays.com.
THAXTON GROUP: Partial Settlement Attained in S.C. Stock Suit
-------------------------------------------------------------
Bagnell & Eason, LLP and McGowan, Hood, Felder & Johnson
announces that a partial settlement was reached in litigation
pending in the U.S. District Court for the District of South
Carolina against The Thaxton Group, Inc. and its subsidiaries
and their subordinated note program.
The plaintiffs in the class action, "In re: The Thaxton Group,
Inc. Securities Litigation, Case No. 8:04-2612-13," have agreed
to settle with defendant FINOVA Capital Corp., and the court has
certified a class for purposes of carrying out the proposed
settlement.
The settlement class consists of, collectively:
-- each person or entity that purchased any Thaxton note
or other rights or claims arising from a Thaxton note
at any time from any person or entity, including,
without limitation, any note sellers and any claims
traders; and
-- each person or entity that, as of Oct. 31, 2006 and/or
the effective date, holds any other unsecured claim
against any of the Thaxton debtor parties.
The proposed settlement calls for FINOVA to release its claims
and liens on certain of Thaxton's assets, and it will allow
Thaxton to move forward to propose a bankruptcy plan to pay
claims.
This settlement is in addition to previously-announced
settlements with other defendants. The court has granted
preliminary approval of this settlement and certification of the
settlement class but still has to decide whether to grant final
approval.
On Oct. 31, 2006 the Master Settlement Agreement was agreed on,
which will result in the resolution of numerous legal actions
concerning Thaxton.
Under the principal terms of the proposed settlement, which was
approved by the FINOVA Capital's Board of Directors, on the
effective date of Thaxton's plan of reorganization, FINOVA
Capital will receive all amounts paid by Thaxton to FINOVA
Capital since commencement of Thaxton's chapter 11 proceedings,
minus $16 million, plus interest earned from Aug. 16, 2006,
which will be retained by Thaxton (Class Action Reporter, Sept.
25, 2006).
In addition, FINOVA Capital will receive complete releases from
all Thaxton parties for all matters related to Thaxton. The
proposed settlement also requires that the summary judgment
order of the District Court be vacated.
The settlement will be structured as a class action, and FINOVA
Capital will have the right to reject the Settlement if more
than $6 million principal amount of Thaxton subordinated notes
opt out of the settlement, or any of the current individual
plaintiffs in the Gregory action opts out of the settlement.
Consummation of the preliminary settlement is subject to final
documentation, approval by the district court, the U.S.
Bankruptcy Court for the District of Delaware, notice to the
class of the settlement and final court approval of the
settlement after hearings on the fairness of the Settlement.
Pursuant to an order of the Bankruptcy Court dated Sept. 11,
2006, FINOVA Capital has transferred all of the cash received
from Thaxton since commencement of the Thaxton's chapter 11
case, together with interest earned of approximately $97.2
million, to a trust account to be held by Thaxton.
In conjunction with the proposed Settlement, FINOVA Capital
expects to record a loss of approximately $9 million on the
carrying value, as of June 30, 2006, of its loan to Thaxton.
Finova is transferring back to Thaxton all of the cash it has
been paid since 2003, and that money will be held in trust.
Once the settlement is approved, Finova will pay Thaxton $16
million out of that fund, and it will keep the balance.
In return, Finova will for all practical purposes be out of the
bankruptcy entirely, and the noteholders will have the benefit
of all of the assets in Thaxton. This will allow some money to
be paid out once the settlement is approved, with the remainder
to be paid over time through the bankruptcy.
Estimated global settlement based on information provided by
various experts:
Cash paid by Finova $16,000,000
Cash in Thaxton given up by Finova $16,000,000
Claim given up by Finova $ 1,500,000
Payment from settlement with professionals $ 9,350,000
Value of Loan portfolios of Thaxton $79,000,000
In addition, Thaxton is trying to collect about $2 million from
various individuals who sold their notes using inside
information, and it is also trying to collect about $12 million
that was taken from it by an insurance company.
If no recovery is made on the other claims, this would mean at
total of approximately $121,850,000 in value would be left with
Thaxton by Finova. If the other claims were worth, for example,
$10,000,000, that would mean Thaxton would have almost $132
million in cash and assets. Total noteholder claims are around
$125,000,000. Attorneys' fees and operating costs would have to
be paid as well, but a lot of those costs might be paid out of
Thaxton's profits, which will be around $12 million this year.
The company and its debtor-affiliates and subsidiaries filed for
Chapter 11 protection on March 7, 2001 (U.S. Bankr. Del. 01-
00697). Pachulski, Stang, Ziehl, Young & Jones P.C. and
Wachtell, Lipton, Rosen & Katz represent the Official Committee
of Unsecured Creditors. Daniel J. DeFranceschi, Esq., at
Richards, Layton & Finger, P.A., represents the Debtors. FINOVA
has since emerged from Chapter 11 bankruptcy. Financial giants
Berkshire Hathaway and Leucadia National Corp. (together doing
business as Berkadia) own FINOVA through the almost $6 billion
lent to the commercial finance company. Finova is winding up
its affairs.
Thaxton Class Action on the net:
http://www.thaxtonclassaction.com
The suit is "In Re: Thaxton Group Inc, et al v. , et al., Case
No. 8:04-cv-02612-GRA-WMC," filed in the U.S. District Court for
the District of South Carolina under Judge G. Ross Anderson,
Jr., with referral to Judge William M. Catoe.
Representing defendants are:
(1) James C. Adams, II, Caroline R. Heil and Jim W.
Phillips, Jr. all of Brooks Pierce McLendon Humphrey
and Leonard, PO Box 26000, Greensboro, NC 27420, Phone:
336-373-8850, E-mail: jadams@brookspierce.com or
jphillips@brookspierce.com;
(2) J. Edward Bradley of Wilson Moore Taylor and Thomas, PO
Box 5709, West Columbia, SC 29171, Phone: 803-796-9160,
Fax: 803-791-8410, E-mail: ward@mttlaw.com;
(3) R. Paul Childress, Jr., Katrina Clark Forrest, Kristie
G. Haynes and Wesley G. Russell, Jr. all of Childress
Gould and Russell, PO Box 6357, Richmond, VA 23230,
Phone: 804-288-4007 or 804-545-2416, E-mail:
pchildress@cgrpc.com or kforrest@cgrpc.com or
khaynes@cgrpc.com or wrussell@cgrpc.com;
(4) Steven Edward Farrar and Thomas Morgan Larkin both of
Leatherwood Walker Todd and Mann, PO Box 87,
Greenville, SC 29602, Phone: 864-242-6440, Fax: 864-
240-2477, E-mail: sfarrar@lwtm.com or tlarkin@lwtm.com;
(5) Alais LM Griffin, Steven A. Levy, James Madigan, Daniel
P. Shapiro, Michael L. Sullivan, Vanessa Vergara all of
Goldberg Kohn Bell Black Rosenbloom and Moritz, 55 E
Monroe Street, Suite 3700, Chicago, IL 60603, Phone:
312-201-3963, Fax: 312-332-2196 or 312-863-7463, E-
mail: daniel.shapiro@goldbergkohn.com or
michael.sullivan@goldbergkohn.com;
(6) Edwin Russell Jeter of Jeter and Williams, PO Box 7425,
Columbia, SC 29202, Phone: 803-765-0600, Fax: 803-765-
0619, E-mail: ejeter@jeterandwilliams.com; and
(7) Wallace K. Lightsey of Wyche Burgess Freeman and
Parham, PO Box 728, Greenville, SC 29602, Phone: 864-
242-8200, Fax: 864-242-8324, E-mail:
wlightsey@wyche.com; and Matthew T. Richardson of
Wyches Burgess Freeman and Parham, PO Box 12247,
Columbia, SC 29211-2247, Phone: 803-254-6542, Fax: 803-
254-6544, E-mail: mrichardson@wyche.com.
Representing plaintiffs are:
(i) Gilbert Scott Bagnell of Bagnell and Eason, PO Box
11852, Columbia, SC 29211-1852, Phone: 803-748-1333,
Fax: 803-748-1300, E-mail:
gilbagnell@bagnellandeason.com; and Randall Monroe
Eason of Bagnell and Eason, PO Box 2347, Lancaster, SC
29721, Phone: 803-286-5055, Fax: 803-286-7824, E-mail:
randalleason@bagnellandeason.com;
(ii) Erica Busch and Declan Maher Butvick both of Moses &
Singer LLP, 1301 Avenue of the Americas, New York, NY
10019, Phone: (212) 554-7879, Fax: (212) 554-7700, E-
mail: ebusch@mosessinger.com or
dbutvick@mosessinger.com; and David Mark Rabinowitz of
Moses and Singer, The Chrysler Building, 405 Lexington
Avenue, New York, NY 10174, Phone: 212-554-7800, E-
mail: drabinowitz@mosessinger.com;
(iii) William C Cleveland of Buist Moore Smythe and McGee, PO
Box 999, Charleston, SC 29402, Phone: 843-722-3400,
Fax: 843-723-7398, E-mail: wcleveland@bmsmlaw.com;
(iv) John A Hagins, Jr. of Covington Patrick Hagins Stern
and Lewis, PO Box 2343, Greenville, SC 29602, Phone:
864-242-9000, Fax: 864-233-9777, E-mail:
jhagins@covpatlaw.com;
(v) Steven Randall Hood and Chad A McGowan both of McGowan
Hood Felder and Johnson, 1539 Healthcare Drive, Rock
Hill, SC 29732, Phone: 803-327-7800, Fax: 803-328-5656,
E-mail: rhood@mcgowanhood.com or
cmcgowan@mcgowanhood.com;
(vi) Gary W. Poliakoff of Poliakoff and Associates, PO Box
1571, Spartanburg, SC 29304, Phone: 864-582-5472, Fax:
864-582-7280, E-mail: atty@gpoliakoff.com; and
(vii) Julia G. Young of Young Law Trial Attorneys, 1331
Richland St., Columbia, SC 29201, Phone: 803-931-0011,
Fax: 803-931-3040, E-mail: jyoung@younglawsc.com.
TNS INC: Continues to Face Del. Suit Over Shares Disposal Plan
--------------------------------------------------------------
TNS, Inc. remains a defendant in a purported class action over
the acquisition of its outstanding shares, which was filed in
Delaware Chancery Court for New Castle County, according to the
company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the period ended Sept. 30, 2006.
The company and the members of its board of directors are
defendants in a putative shareholder class action that seeks to
enjoin the non-binding proposal announced on March 13, 2006 from
senior management of the company to acquire all outstanding
shares of TNS.
Paul Schwartz, purportedly on behalf of himself and others
similarly situated, filed the suit on March 13, 2006, under the
caption, "Schwartz v. TNS, Inc., et al., C.A. No. 2000-N."
Plaintiff alleges that injunctive relief is necessary because
the company and the members of the board of directors allegedly
breached their fiduciary duties to TNS shareholders by allegedly
causing the company to negotiate for the sale of TNS at an
unfair price, depriving TNS' public shareholders of the maximum
value to which they purportedly are entitled.
Plaintiff further alleges that members of the board of directors
also breached their fiduciary duties by allegedly not taking
adequate measures to ensure that the interests of TNS' public
shareholders are properly protected, as the terms of the
proposed transaction allegedly are grossly unfair to the
shareholders.
On April 3, 2006, the plaintiff and the defendants entered into
a letter agreement that:
-- provides the defendants with an open-ended extension of
time to answer or otherwise respond to the plaintiff's
complaint, and
-- holds discovery and other matters in the case in
abeyance pending an agreement on a management buy-out
proposal or other form of transaction.
On May 1, 2006, the Special Committee of the Board of Directors
announced that it had rejected the non-binding proposal from
senior management that prompted the filing of this lawsuit.
On Aug. 7, 2006, the Special Committee further announced that it
had ended the process of actively seeking strategic alternatives
for the company.
On Oct. 18, 2006, an amended Schedule 13D was filed with the SEC
to report the dissolution of the proposed management buying
group.
In the opinion of TNS' current management and the Board of
Directors, the likelihood of a transaction remains remote, and
this lawsuit likely will continue to be held in abeyance and
eventually dismissed.
TNS INC: Discovery Continuing for Securities Fraud Suit in Va.
--------------------------------------------------------------
Discovery is ongoing in a purported securities class action
filed against TNS, Inc. in the U.S. District Court for the
Eastern District of Virginia.
The company and John J. McDonnell, Jr., chief executive officer,
and Henry H. Graham, Jr., chief financial officer, are
defendants in a putative class action filed in connection with
the company's secondary public offering of common stock in
September 2005.
The Cement Masons and Plasterers Joint Pension Trust,
purportedly on behalf of itself and others similarly situated,
filed the putative class action as, "Cement Masons & Plasterers
Joint Pension Trust v. TNS, Inc., et al., Case No. 1:06 CV 363,
CMH/BRP," on April 4, 2006.
Plaintiff claims that the Registration Statement filed in
connection with the secondary offering negligently failed to
disclose that:
-- TNS' agreement with the Pepsi Bottling Group, Inc.
to provide cashless vending to Pepsi had been
delayed beyond Aug. 7, 2005;
-- TNS was generating less revenues and income than it had
anticipated from its contract with the Royal Bank of
Scotland, because Royal Bank purportedly had overstated
the number of transactions that TNS would be
responsible for processing for Royal Bank; and
-- TNS' International Services Division was experiencing
declining revenues during that time period because of
unfavorable foreign exchange rates.
The company filed a motion to dismiss the lawsuit on July 14,
2006. Plaintiff filed its memorandum in opposition to TNS'
motion to dismiss on Aug. 4, 2006, and TNS filed its reply
memorandum on Aug. 18, 2006.
The court denied the motion to dismiss on Sept. 12, 2006, and
has since ordered the parties to conduct discovery in the case.
The action is in the preliminary phase of discovery, according
to the company's Nov. 9, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the period ended Sept.
30, 2006.
The first identified complaint is "Cement Masons and Plasters
Joint Pension Trust, et al. v. TNS Inc., et al.," filed in the
U.S. District Court for the Eastern District of Virginia.
Plaintiff firms in this or similar case:
(1) Brodsky & Smith, LLC, 11 Bala Avenue, Suite 39, Bala
Cynwyd, PA, 19004, Phone: 610.668.7987, Fax: 610-660-
0450, E-mail: esmith@Brodsky-Smith.com;
(2) Federman & Sherwood, 120 North Robinson, Suite 2720,
Oklahoma City, OK, 73102, Phone: 405-235-1560, E-mail:
wfederman@aol.com;
(3) Goldman Scarlato & Karon, PC, Phone 888-753-2796;
(4) Kahn Gauthier Swick, LLC, 650 Poydras St. Suite 2150,
New Orleans, LA, 70130, Phone: (504) 455-1400, E-mail:
lewis.kahn@kglg.com;
(5) Lerach Coughlin Stoia Geller Rudman & Robbins, LLP,
(Melville), 58 South Service Road, Suite 200, Melville,
NY, 11747, Phone: 631.367.7100, Fax: 631.367.1173;
(6) Roy Jacobs & Associates, 350 Fifth Avenue Suite 3000,
New York, NY, 10118, E-mail:
classattorney@pipeline.com; and
(7) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com.
TRIDENT MICROSYSTEMS: Faces Suit Over Back-Dated Option Grants
--------------------------------------------------------------
The law firm of Stull, Stull & Brody commenced a shareholder
lawsuit against certain members of the board of directors and
certain executive officers of Trident Microsystems.
The complaint alleges that certain current and prior officers
and directors manipulated the prices of executive and director
stock option grants (a.k.a. back-dated stock options).
Such practice of awarding stock options to executives and
directors at artificially low prices is alleged to violate the
company's internal documents (such as the company's stock option
plan), as well as state laws governing officer and director
fiduciary duties and/or federal laws governing securities and
taxation.
In addition, the practice results in lower payments to
companies, results in those companies under-reporting
compensation expenses, and permits directors, officers and/or
executives to unjustifiably reap millions and billions of
dollars which should be disgorged and returned to the corporate
coffers thereby contributing to the financial health of the
company.
For more information on the suit, contact Tzivia Brody, Esq. of
Stull, Stull & Brody, 6 East 45th Street, New York, NY 10017,
Phone: 1-800-337-4983, Fax: 212-490-2022, E-mail: ssbny@aol.com.
UNITED STATES: Refugees File Penn. Lawsuit Over DHS Stonewalling
----------------------------------------------------------------
A class action complaint filed in the U.S. District Court for
the Eastern District of Pennsylvania says 6,000 disabled, blind
and elderly refugees and asylees have lost their Social Security
benefits because the Department of Homeland Security (DHS), by
post-9/11 policy, refuses to act on their petitions for
citizenship or permanent residency, and another 46,000 will
suffer the same fate unless DHS begins doing its job, The
Courthouse News Service reports.
Named defendants in the suit are:
-- Jo Anne B. Hart - Social Security Commissioner,
-- Michael Chertoff - Secretary of the Department of
Homeland Security,
-- Alberto Gonzales - Attorney General of the United
States,
-- Emilio T. Gonzalez - Director of U.S. Citizenship and
Immigration Services,
-- Donald Monica - District Director of the U.S.
Citizenship and Immigration Services, Philadelphia
District Office,
-- Robert S. Mueller, III - Director of the Federal Bureau
of Investigation, and
-- the FBI.
The 1996 welfare reform law requires refugees and asylees to
become U.S. citizens to qualify for more than seven years of SSI
benefits.
But according to the complaint, bureaucratic delay has cost
6,000 elderly and disabled refugees their benefits and another
46,000 will lose them by 2012.
Lead plaintiff Shmul Kaplan, 80, survived the Holocaust, had his
right leg amputated in the Soviet Union, and was persecuted
there for being Jewish.
He was granted political asylum in 1997, but the U.S. government
took five years to rule on his application for permanent
residency. Because of that delay, he cannot apply for
citizenship until next year. He lost his SSI benefits in 2004.
Plaintiffs and their class request for the court to:
-- declare on behalf of named plaintiffs and the certified
class that defendants' failure to act in a timely
fashion in reviewing and making determinations on
plaintiffs' applications for lawful permanent residency
and naturalization in accordance with defendants' own
stated policies and internal operation guidance, and
failure to implement policies to expedite naturalization
applications, results in the unlawful termination of SSI
benefits, and thus violates the guarantees to due
process of law and the equal protection of the laws in
the Fifth Amendment to the United States Constitution,
and constitutes agency action unlawfully withheld or
unreasonably delayed and an abuse of discretion, in
violation of the Administrative Procedure Act;
-- issue a preliminary and final injunction, and a mandamus
order requiring that SSA reinstate payment of SSI
benefits to plaintiffs and those members of the
plaintiff class whose SSI benefits have been terminated
due to the expiration of the seven-year period, and
continue SSI benefits to plaintiffs and their class
until they have had a fair opportunity to complete the
LPR and naturalization processes, and until defendants
have fully ceased their arbitrary practices wherein
class members' applications for lawful permanent
residency and naturalization are unreasonably and
arbitrarily delayed beyond the seven-year time period;
-- issue a preliminary and permanent injunction, and a
mandamus order requiring that CIS and the FBI promptly
process plaintiffs' applications for LPR status and
naturalization, including expediting all LPR and
naturalization applications where loss of SSI benefits
is present or threatened, to avoid any terminations of
SSI benefits after the expiration of the seven-year
period;
-- award plaintiffs the costs of suit and reasonable
attorney's fees pursuant to the Equal Access to Justice
Act 28 U.S.C. Section 2412; and
-- award such other relief as the court may deem just and
proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1672
The suit is "Kaplan et al v. Chertoff et al., Case No. 2:06-cv-
05304-ER," filed in the U.S. District Court for the Eastern
District of Pennsylvania under Judge Eduardo C. Robreno.
Representing plaintiffs is Jonathan M. Stein of the Community
Legal Services, Inc., 1424 Chestnut Street, Philadelphia, PA
19102-2505, Phone: 215-981-3762, E-mail: jstein@clsphila.org.
VALERO ENERGY: $120M Award in Blue Island Refinery Case Vacated
---------------------------------------------------------------
The Judicial Circuit Court, Cook County, Illinois vacated a
jury's award of $80 million in compensatory damages and $40
million in punitive damage to Class C plaintiffs in the suit
"Rosolowski v. Clark Refining Marketing, Inc., et al., Case No.
95-L 014703."
The company assumed this class action after its acquisition of
Premcor Inc. under a merger agreement on Sept. 1, 2005.
The suit, filed Oct. 11, 1995, relates in part to a release to
the atmosphere of spent catalyst containing low levels of heavy
metals from the now-closed Blue Island, Illinois refinery on
Oct. 7, 1994. The release resulted in the temporary evacuation
of certain areas near the refinery.
The case was certified as a class action in 2000 with three
classes:
-- Class A: persons purportedly affected by the Oct. 7,
1994 catalyst release, but with no permanent health
effects;
-- Class B: persons with medical expenses for dependents
purportedly affected by the Oct. 7, 1994 release; and
-- Class C: local residents claiming property damage or
who have suffered loss of use and enjoyment of their
property over a period of several years.
Following three weeks of trial, on Nov. 21, 2005, the jury
returned a verdict for the plaintiffs of $80.1 million in
compensatory damages and $40 million in punitive damages.
In January 2006, the company filed motions for new trial,
remittitur and judgment notwithstanding the verdict, citing,
among other things, rampant misconduct by plaintiffs' counsel
and improper class certification.
On Nov. 3, 2006, the trial judge:
-- upheld the jury's award of $100,000 for Class A and no
damages for Class B;
-- decertified Class C; and
-- vacated the jury's award to Class C of $80 million in
compensatory damages and $40 million in punitive
damages.
Valero Energy Corp. on the Net: http://www.valero.com/.
WAL-MART STORES: Okla. Judge Okays $5.1M Labor Suit Settlement
--------------------------------------------------------------
U.S. Chief District Judge Claire Eagan gave final approval on
Dec. 4, 2006 to an estimated $5.1 million settlement of a class
action brought by the estates of 73 former employees of Wal-Mart
Stores Inc. in Oklahoma, Associated Press reports.
Plaintiffs allege in the suit that Wal-Mart took out life
insurance policies on its employees, made itself the
beneficiary, and wrongfully received the benefits upon
employees' deaths. They sued to recover the money they claim
they are due.
Under the settlement, each of the plaintiffs will receive about
$35,000 to $50,000. About a third of the money will go to the
plaintiffs' attorneys.
According to the report, Michael D. Myers of Houston, one of the
plaintiffs' lawyers, said paperwork will be sent to the class
members and that the claim forms and supporting documentation
will be due back by May 31.
The suit is "Lewis, et al v. Wal-Mart Stores Inc, et al., Case
No. 4:02-cv-00944-CVE-FHM," filed in U.S. District Court for the
Northern District of Oklahoma under Judge Claire V. Eagan with
referral to Judge Frank H. McCarthy.
Representing the defendant is David Len Bryant at Bryant Law
Firm, 321 S Boston Ave Ste 950, Tulsa, OK 74103, Phone: 918-587-
4200, Fax: 918-587-4217, E-mail: dbryant@bryantlaw.com.
Representing plainfiff Frank O. Lewis is Scott M. Clearman at
McClanahan & Clearman LLP, 700 Louisiana, Ste 4100, Houston, TX
77002, Phone: 713-223-2005, Fax: 713-223-3664, E-mail:
scott@mcllp.com.
WEST CORP: Neb. Court Dismisses Complaint in Stockholder Suit
-------------------------------------------------------------
The District Court of Douglas County, Nebraska issued an order
dismissing with prejudice the complaint in the putative
stockholder class action, "Lee v. Barker, et al.," which was
filed against West Corp. and several other defendants.
Filed on July 20, 2006, the complaint specifically named as
defendants:
-- Thomas B. Barker,
-- Gary L. West,
-- Mary E. West,
-- George H. Krauss,
-- William E. Fisher,
-- Greg T. Sloma, and
-- West Corp.
It alleged, among other things, that the defendants had breached
fiduciary duties owed to West Corp.'s stockholders by
negotiating the merger agreement at a price that the plaintiff
alleged to be inadequate, by negotiating a merger agreement
under which Gary and Mary West and certain members of the
company's management retain a portion of their stock in West
Corp., and by negotiating a merger agreement that does not
contain a "majority of the minority" provision. The complaint
sought to enjoin the stockholder vote on the merger agreement.
In the alternative, the complaint sought damages if the
company's stockholders approved the merger agreement, and the
transactions contemplated by the merger agreement were
completed.
On Aug. 24, 2006, the company and the other defendants filed
motions to dismiss the complaint for failure to state a claim on
which relief could be granted. Those motions were set for
hearing on Oct. 19, 2006. Plaintiff served an extensive request
for production of documents on the company.
On Sept. 21, 2006, the company filed a motion to defer any
discovery pending the court's ruling on the motions to dismiss.
That motion was also set for hearing on Oct. 19, 2006.
On Sept. 26, 2006, plaintiff filed a motion for expedited
proceedings and to compel discovery. A hearing was originally
set for Sept. 28, 2006. The court did not hear the motion on
that date.
A hearing on the plaintiff's motion for expedited proceedings
and to compel discovery was held on Oct. 12, 2006. The court
deferred ruling on the plaintiff's motion until Oct. 19, 2006.
On Oct. 17, 2006, the complaint alleging a breach of fiduciary
duties by certain of West Corp.'s officers and directors in
connection with the negotiation and approval of the merger
agreement was voluntarily dismissed.
An order dismissing the complaint with prejudice was entered on
the same date, according to West Corp.'s Nov. 9, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Sept. 30, 2006.
WEST CORP: Nev. Court Remands Ritt Case Back to Ohio State Court
----------------------------------------------------------------
The Court of Common Pleas, Cuyahoga County, Ohio has yet to
issue a ruling on an appeal regarding the certification of a
class in the purported class action, "Brandy L. Ritt, et al. v.
Billy Blanks Enterprises, et al."
Originally, the suit, which named Billy Blanks Enterprises as a
defendant, was filed in January 2001 against two of the
company's clients.
The suit, a purported class action, was amended for the third
time in July 2001 and West Corp. was added as a defendant at
that time.
Seeking statutory, compensatory, and punitive damages as well as
injunctive and other relief, it alleges violations of various
provisions of Ohio's consumer protection laws, negligent
misrepresentation, fraud, breach of contract, unjust enrichment
and civil conspiracy in connection with the marketing of certain
membership programs offered by the company's clients.
On Feb. 6, 2002, the court denied the plaintiffs' motion for
class certification. On July 21, 2003, the Ohio Court of
Appeals reversed and remanded the case to the trial court for
further proceedings.
Plaintiffs filed a fourth amended complaint naming West
Telemarketing Corp. (WTC) as an additional defendant and a
renewed motion for class certification.
One of the defendants, NCP Marketing Group (NCP), filed for
bankruptcy and on July 12, 2004 removed the case to federal
court. Plaintiffs filed a motion to remand the case back to
state court.
On Aug. 30, 2005, the U.S. Bankruptcy Court for the District of
Nevada remanded the case back to the state court in Cuyahoga
County, Ohio.
The Bankruptcy Court also approved a settlement between the
named plaintiffs and NCP and two other defendants, Shape The
Future International LLP and Integrity Global Marketing LLC.
West Corp. and WTC have filed motions for judgment on the
pleadings and a motion for summary judgment. On March 28, 2006,
the state court certified a class of Ohio residents.
West and WTC have filed a notice of appeal from that decision,
and plaintiffs have cross-appealed. West and WTC filed their
opening brief on appeal on June 23, 2006.
Plaintiffs' filed their opening brief on appeal on Aug. 17,
2006. West and WTC filed their reply brief on Sept. 15, 2006.
Plaintiffs' reply brief was filed on Sept. 28, 2006. On April
20, 2006, the trial court denied West and WTC's motion for
judgment on the pleadings. West and WTC's summary judgment
motion remains pending.
The trial court has stayed all further action in the case
pending resolution of the appeal, according to West Corp.'s Nov.
9, 2006 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended Sept. 30, 2006.
ZIX CORP: Tex. Court Refuses to Dismiss Consolidated Stock Suit
---------------------------------------------------------------
The U.S. District Court for the Northern District of Texas
denied a motion by Zix Corp. to dismiss the consolidated
securities class action filed against the company and certain of
its current and former officers and directors.
Beginning in early September 2004, several purported shareholder
class actions were filed against the company in Texas federal
court.
The purported class actions seek unspecified monetary damages on
behalf of purchasers of the company's common stock between Oct.
30, 2003 and May 4, 2004.
The suits alleged that defendants made materially false and
misleading statements and/or omissions in violation of Sections
10(b) and 20(a) of the Exchange Act during this time period.
These class actions were later consolidated into one case.
The defendants are Zix Corp., Dennis F. Heathcote, Daniel S.
Nutkis, John A. Ryan, Ronald A. Woessner, and Steve M. York.
The company filed a motion to dismiss the consolidated lawsuits
pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of
Civil Procedure and also pursuant to the Private Securities
Litigation Reform Act. The court denied the motion in
September.
The consolidated suit is "Brody, et al. v. Zix Corp., et al.,
Case No. 3:04-cv-01931," filed in the U.S. District Court for
the Northern District of Texas.
The plaintiff firms in this litigation are:
(1) Brian Felgoise, 230 South Broad Street, Suite 404,
Philadelphia, PA, 19102 Phone: 215.735.6810, Fax:
215/735.5185;
(2) Charles J. Piven, World Trade Center-Baltimore,401 East
Pratt Suite 2525, Baltimore, MD, 21202 Phone:
410.332.0030, E-mail: pivenlaw@erols.com;
(3) Federman & Sherwood, 120 North Robinson, Suite 2720,
Oklahoma City, OK, 73102 Phone: 405-235-1560, E-mail:
wfederman@aol.com;
(4) Lerach Coughlin Stoia Geller Rudman & Robbins (San
Diego) 401 B Street, Suite 1700, San Diego, CA, 92101
Phone: 619.231.1058, Fax: 619.231.7423, E-mail:
info@lerachlaw.com;
(5) Murray, Frank & Sailer LLP, 275 Madison Ave 34th Flr,
New York, NY, 10016 Phone: 212.682.1818, Fax:
212.682.1892, E-mail: email@rabinlaw.com;
(6) Provost & Umphrey Law Firm, LLP, 3232 McKinney Avenue,
Suite 700, Dallas, TX, 75204 Phone: 214.744.3000, Fax:
214.744.3015, E-mail: info@provostumphrey.com;
(7) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106 Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com;
(8) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004 Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com;
(9) Shepherd, Finkelman, Miller & Shah, LLC Phone:
877.891.9880, E-mail: jshah@classactioncounsel.com; and
(10) Wolf Popper, LLP 845 Third Avenue, New York, NY, 10022-
6689, Phone: 877.370.7703, Fax: 212.486.2093, E-mail:
IRRep@wolfpopper.com.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
December 7-8, 2006
COPYRIGHT - FROM TRADITIONAL CONCEPTS TO THE DIGITAL AGE
Mealeys Seminars
The Argent Hotel, San Francisco
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 7-8, 2006
SECURITIES LITIGATION CONFERENCE: STOCK OPTION BACKDATING AND
EXECUTIVE COMPENSATION
Mealeys Seminars
The Four Seasons Hotel Silicon Valley, East Palo Alto, CA
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 8, 2006
NITA'S COPYRIGHT ENFORCEMENT: ARGUING THE PRELIMINARY INJUNCTION
Mealeys Seminars
The Argent Hotel, San Francisco
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 11-12, 2006
CALIFORNIA BAD FAITH LITIGATION CONFERENCE
Mealeys Seminars
The Miramar Hotel, Santa Monica, CA
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 11-12, 2006
VIOXX LITIGATION CONFERENCE
Mealeys Seminars
The Ritz-Carlton Hotel, Key Biscayne, FL
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 13-15, 2006
DRUG AND MEDICAL DEVICE LITIGATION
American Conference Institute
New York
Contact: https://www.americanconference.com; 1-888-224-2480
January 22-23, 2007
MEALEY'S 5TH ANNUAL ADVANCED INSURANCE COVERAGE CONFERENCE: TOP
10 ISSUES
Mealeys Seminars
The Rittenhouse Hotel, Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
March 2007
MASS TORTS MADE PERFECT SEMINAR
Mass Torts Made Perfect
Loews Hotel, Miami, Florida
Contact: 1-800-320-2227; 850-916-1678
May 3-4, 2007
Accountants' Liability CM076
ALI-ABA
Boston
Contact: 215-243-1614; 800-CLE-NEWS x1614
* Online Teleconferences
------------------------
December 6, 2006
CLIENT DEVELOPMENT STRATEGIES
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 12, 2006
EMERGING DRUGS SERIES #4 - CONTACT LENS SOLUTION
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 12, 2006
E-DISCOVERY - HOW TO CREATE AN E-DISCOVERY PRACTICE TEAM AT YOUR
FIRM
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 13, 2006
ELIMINATION OF BIAS IN THE LEGAL PROFESSION
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
December 14, 2006
DETERMINING WHAT EXPENSES MAY BE CHARGED TO A CONTINGENT FEE
CLIENT
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
(2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 23RD ANNUAL RECENT DEVELOPMENTS
(2005)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINATION
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING WRITTEN
DISCOVERY
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
SUMMARY JUDGMENT AND OTHER DISPOSITIVE MOTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS (2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 20TH ANNUAL RECENT DEVELOPMENTS (2005)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
ASBESTOS BANKRUPTCY - PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
Contact: customerservice@lawcommerce.com
INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com / Law Education Institute
Contact: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
Contact: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Contact: 800-285-2221; abacle@abanet.org
________________________________________________________________
The Meetings, Conferences and Seminars column appears in the
Class Action Reporter each Wednesday. Submissions via
e-mail to carconf@beard.com are encouraged.
New Securities Fraud Cases
BODISEN BIOTECH: Cohen Milstein Files Securities Suit in N.Y.
-------------------------------------------------------------
The Law Firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C.,
filed a class action complaint in the U.S. District Court for
the Southern District of New York on behalf of purchasers of
Bodisen Biotech, Inc. common stock during the period from Aug.
25, 2005 through Nov. 14, 2006.
The complaint charges Bodisen and certain of its officers with
violations of the U.S. Securities Exchange Act of 1934.
According to the company's website, the company "engages in the
research, manufacturing and marketing of proprietary technology
based environmentally friendly fertilizers targeting the $17
billion per year Chinese fertilizer industry."
The complaint alleges that during the class period, defendants
issued materially false and misleading statements regarding the
company's business and management practices and financial
results.
As a result of defendants' false statements, Bodisen stock
traded at artificially inflated prices during the class period,
reaching a high of $20.65 per share on January 31, 2006.
Then, on Nov. 12, 2006, Bodisen announced that, on Nov. 6, 2006,
the company received a letter from the American Stock Exchange
stating that the Staff had determined that the company was not
in compliance with certain of the Amex continued listing
standards.
Bodisen also revealed that: AMEX believes that the company made
insufficient or inaccurate disclosure in its public filings with
regard to its relationship with, and payments to, a consultancy
firm and its affiliates both prior to and subsequent to its
listing on the Amex.
Additionally, in the context of the company's relationship with
the consultancy firm, Amex expressed concern that the company
has internal control issues related to its accounting and
financial reporting obligations.
Prior to receipt of the letter from Amex, the company publicly
announced that it had terminated its relationship with the
consultancy firm.
According to the complaint, the true facts, which were known or
recklessly disregarded by the defendants but concealed from the
investing public during the class period, were as follows:
-- that Benjamin Wey a/k/a Benjamin Wei (Wey or Wei), a
person with a history of regulatory problems, had a
significant undisclosed relationship with the Company;
-- that defendants failed to disclose the true owners of
the company;
-- that Bodisen failed to adequately disclose its
relationship with, and payments to, Wey and New York
Global Group, Inc., a company that was an analyst of
Bodisen and of which Wey was President;
-- that the Company lacked adequate internal controls; and
-- that, as a result of the foregoing, the company's
financial statements were materially misleading and the
company's statements about its financial well-being and
future business prospects were lacking in any
reasonable basis when made.
Interested parties may move the court no later than Jan. 15,
2007 to serve as a lead plaintiff for the proposed class.
For more details, contact Steven J. Toll, Esq. or Lauren
DeStefano of Cohen, Milstein, Hausfeld & Toll, P.L.L.C., 1100
New York Avenue, N.W. West Tower, Suite 500 Washington, D.C.
20005, Phone: (888) 240-0775 or (202) 408-4600, E-mail:
stoll@cmht.com or sdestefano@cmht.com.
TIER TECHNOLOGIES: Brower Piven Announces 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 Tier Technologies, Inc.
between Nov. 29, 2001 and Oct. 25, 2006.
The case is pending in the U.S. District Court for the Eastern
District of Virginia against defendant Tier and one or more of
its officers and/or directors.
The action charges that defendants violated federal securities
laws by issuing a series of materially false and misleading
statements to the market throughout the class period, which
statements had the effect of artificially inflating the market
price of the company's securities. No class has yet been
certified in the above action.
Interested parties may move the court no later than Jan. 9, 2007
to serve as a lead plaintiff for the proposed class.
For more details, contact Charles J. Piven of 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.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel Senorin, Maria Cristina Canson, and Janice
Mendoza, Editors.
Copyright 2006. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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