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/raid1/www/Hosts/bankrupt/CAR_Public/061211.mbx C L A S S A C T I O N R E P O R T E R Monday, December 11, 2006, Vol. 8, No. 245 Headlines AMERICAN EXPRESS: Appeals Certification of "Hoffman" Classes AMERICAN INTERNATIONAL: N.J. Court Refuses to Junk ERISA Claims ANTIGENICS INC: Faces Securities Fraud Litigation in New Mexico APRIA HEALTHCARE: Continues to Face Labor-Related Suit in Calif. BOOKHAM INC: Final Approval of N.Y. Securities Suit Deal Mulled BOSTON SCIENTIFIC: Mass. Court Consolidates ERISA Breach Suits COCA COLA: Ga. Racial Diversity Case Closes After Final Report CONNECTICUT RESOURCES: Dec. 21 Mediation Set for Enron Lawsuit COTT CORP: Continues to Face Suits Over Recycling Fees in Canada CROWLEY MARITIME: Files Motion to Dismiss Investors Suit in Del. DIGITAS INC: N.Y. Court Mulls Approval of IPO Suit Settlement ENCYSIVE PHARMACEUTICALS: Faces Securities Fraud Suits in Tex. FOCUS HEALTHCARE: Faces Health Care Providers' Lawsuit in La. GOLDEN GLEN: Recalls Improperly Pasteurized Eggnog Milk Products GUIDANT CORP: Ind. Court Dismisses ERISA Violations Lawsuit HOST AMERICA: Continues to Face Securities Fraud Suits in Conn. KANA SOFTWARE: Awaits Court's Final OK to Stock Suit Settlement MARSH & MCLENNAN: N.J. Court Finds RICO Act Claims Deficient MARSH & MCLENNAN: N.Y. Court Junks Some Claims in Stock Lawsuit MARSH & MCLENNAN: Continues to Face ERISA Violation Suit in N.Y. MARSH & MCLENNAN: N.Y. Court Junks Stock Lawsuit Against AXIS MARSH & MCLENNAN: Md. Court Junks Some "Market-Timing" Claims MATTEL INC: Recalls Magnetic Play Sets After Injury Reports MODEM MEDIA: Court Considers Approval of IPO Suit Settlement NETRATINGS INC: Faces Del. Suits Over VNU Purchase Proposal NEW JERSEY: Double-dipping Suit Against Representative Dismissed NRT TEXAS: Faces Deceptive Trade Practices Lawsuit in New Jersey PILGRIM'S PRIDE: January Hearing Set in Tex. Poultry Owners Suit RAVING BRANDS: Faces Alleged Racketeering Law Violations in Ga. RHODE ISLAND: Expelled Narragansett Tribe Members Plan Lawsuit SALESFORCE.COM: Calif. Consolidated Shareholder Suit Concluded SCOTTISH RE: Faces Consolidated Securities Fraud Lawsuit in N.Y. STONEPATH GROUP: Penn. Securities Fraud Lawsuit Under Appeal UNIVERSAL AMERICAN: Seeks to Dismiss N.Y. Stock Fraud Lawsuit UNIVERSAL AMERICAN: Faces Four Suits Over Acquisition Proposal USI HOLDINGS: Seeks Nixing of Insurance Brokerage Antitrust Suit VONAGE AMERICA: Faces Suit Over Mobile Service Deceptive Claims WAVE SYSTEMS: Awaits Court Approval of $1.75M Suit Settlement XETHANOL CORP: Lead Plaintiff Appointment Deadline Set Dec. 26 New Securities Fraud Cases BODISEN TECHNOLOGY: Murray, Frank Files Securities Suit in N.Y. HANSEN NATURAL: Schiffrin & Barroway Files Calif. Stock Suit ********* AMERICAN EXPRESS: Appeals Certification of "Hoffman" Classes ------------------------------------------------------------ The Superior Court of the state of California, County of Alameda denied jurisdiction over an interlocutory appeal filed by American Express Travel Related Services Co., Inc. against the certification of a suit by charge card holders. In January 2006, in a matter "Hoffman, et al. v. American Express Travel Related Services Co., Inc., No. 2001-02281," the Superior Court of the State of California, County of Alameda, certified a class action against TRS. Two classes were certified: -- all persons who held American Express charge cards with billing addresses in California who purchased American Express' fee-based travel-related insurance plans from Sept. 6, 1995, through a date to be determined; and -- all persons who held American Express charge cards with billing addresses in states other than California and who purchased American Express' fee-based travel-related insurance plans from Sept. 6, 1995, through a date to be determined. Plaintiffs allege that American Express violated California and New York law by allegedly billing customers for flight and baggage insurance that they did not receive. American Express denies the allegations and filed an interlocutory appeal (petition for a writ of mandate) of the class certification order. In June 2006, the appellate court denied jurisdiction over that interlocutory appeal. American Express also appealed the denial of its motion to compel individual arbitration of all non- California class members. The appellate court has jurisdiction over that appeal and the appeal is pending, according to the company's Nov. 9 form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30. In the U.S. District Court for the Eastern District of New York, a case making related allegations as those raised in Hoffman is pending. That suit, "Environment Law Enforcement Systems v. American Express et al.," had effectively been stayed pending the proceedings in the Hoffman action. In October 2006, the Court in the Environment Law action entered an order scheduling a pre-motion conference on American Express' anticipated motion to compel arbitration for Jan. 31, 2007. AMERICAN INTERNATIONAL: N.J. Court Refuses to Junk ERISA Claims --------------------------------------------------------------- The U.S. District Court for the District of New Jersey denied motions to dismiss claims of Employee Retirement Income Security Act violation against American International Group Inc. in a multidistrict proceeding. Since Oct. 19, 2004, American International or its subsidiaries have been named as a defendant in 18 complaints that were filed in federal court and two that were originally filed in state court of Massachusetts and Florida and removed to federal court. These cases generally allege that American International and its subsidiaries violated federal and various state antitrust laws, as well as federal Racketeer Influenced and Corrupt Organizations laws, various state deceptive and unfair practice laws and certain state laws governing fiduciary duties. The alleged basis of these claims is that there was a conspiracy between insurance companies and insurance brokers with regard to the use of contingent commission agreements, bidding practices, and other broker-related conduct concerning coverage in certain sectors of the insurance industry. The Judicial Panel on Multidistrict Litigation entered an order on Feb. 17, 2005, consolidating most of these cases and transferring them to the U.S. District Court for the District of New Jersey. The remainder of these cases have been transferred to the District of New Jersey. On Aug. 15, 2005, the plaintiffs in the multidistrict litigation filed a Corrected First Consolidated Amended Commercial Class Action Complaint, which, in addition to the previously named American International defendants, names new American International subsidiaries as defendants. Also on Aug. 15, 2005, AIG and two subsidiaries were named as defendants in a Corrected First Consolidated Amended Employee Benefits Class Action Complaint filed in the District of New Jersey, which asserts similar claims with respect to employee benefits insurance and a claim under Employee Retirement Income Security Act on behalf of putative classes of employers and employees. On Nov. 29, 2005, the American International defendants, along with other insurer defendants and the broker defendants filed motions to dismiss both the Commercial and Employee Benefits Complaints. On Oct. 3, 2006, the Court reserved in part and denied in part the motions to dismiss. The Court denied the motions to dismiss the ERISA claims, but ordered an expedited discovery schedule, and the Court reserved on the state law claims. Plaintiffs have filed a motion for class certification in the consolidated action, in response to which defendants have filed an opposition. In addition, complaints were filed against American International and several of its subsidiaries in Massachusetts and Florida state courts, which have both been stayed. In the Florida action, the plaintiff filed a petition for a writ of certiorari with the District Court of Appeals of the State of Florida, Fourth District with respect to the stay order which was granted on Aug. 16, 2006. The Fourth District Court remanded to the trial court to reconsider whether a stay should be granted. On Feb. 9, 2006, a complaint against American International and several of its subsidiaries was filed in Texas state court, making claims similar to those in the federal cases above. On Oct. 17, 2006, the court stayed the case until Jan. 31, 2007. ANTIGENICS INC: Faces Securities Fraud Litigation in New Mexico --------------------------------------------------------------- Antigenics, Inc. was served a purported securities fraud class action complaint in the U.S. District Court for the District of New Mexico by Steven J. Tuckfelt on behalf of himself and all others similarly situated. The complaint was filed on June 16, 2006 against the company and its chief executive officer Garo H. Armen, Ph.D. It alleges that certain of the company's disclosures in connection with the conduct of the Oncophage Phase 3 renal cell carcinoma trial violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 as well as includes purported claims for breach of fiduciary duty. The complaint was served on the company on Sept. 7, 2006, 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. Antigenics, Inc. on the Net: http://www.antigenics.com/. APRIA HEALTHCARE: Continues to Face Labor-Related Suit in Calif. ---------------------------------------------------------------- Apria Healthcare Group, Inc. remains a defendant in a purported class action filed in California Superior Court for the County of San Francisco, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. The suit contains blanket claims of liability under various California employee protection statutes and regulations relating to: -- payment of regular and overtime wages; -- the timeliness of such payments; -- the maintenance and provision of access to required payroll records; and -- the provision of meal and rest periods. The suit is "Venegas v. Apria Healthcare, Inc., et al., Case No. CGC-06-449669," filed on Feb. 21, 2006. No class has been certified at this time, but on behalf of a purported class consisting of all of the company's hourly employees in the State of California, the complaint seeks compensatory and punitive damages in an unspecified amount as well as other relief. The company has filed an answer to the complaint denying all material allegations and asserting a number of affirmative defenses. BOOKHAM INC: Final Approval of N.Y. Securities Suit Deal Mulled --------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to finally approve the proposed settlement of a consolidated securities class action against two subsidiaries of Bookham, Inc., according to the company's May 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Mar. 31, 2006. On June 26, 2001, a putative securities class action, "Lanter v. New Focus, Inc. et al., Civil Action No. 01-CV-5822," was filed against, and several of the company's officers and directors in the U.S. District Court for the Southern District of New York. Also named, as defendants were: -- Credit Suisse First Boston Corp., -- Chase Securities, Inc., -- U.S. Bancorp Piper Jaffray, Inc. and -- CIBC World Markets Corp., the underwriters in New Focus' initial public offering (Underwriter Defendants). Three subsequent lawsuits were filed containing substantially similar allegations. These complaints have been consolidated. On April 19, 2002, plaintiffs filed an amended class action complaint, naming as defendants the individual defendants and the underwriter defendants. On Nov. 7, 2001, a class action complaint was filed against Bookham Technology plc, a wholly owned subsidiary of Bookham, Inc., and others in the U.S. District Court for the Southern District of New York. On April 19, 2002, plaintiffs filed an amended complaint. The amended complaint names as defendants: -- Bookham Technology plc; -- Goldman, Sachs & Co., and -- FleetBoston Robertson Stephens, Inc., two of the underwriters of Bookham Technology plc's initial public offering in April 2000; and -- Andrew G. Rickman, -- Stephen J. Cockrell, and David Simpson, each of whom was an officer and/or director at the time of the initial public offering. The amended complaint asserts claims under certain provisions of the securities laws of the U.S. It alleges, among other things, that the prospectuses for Bookham Technology plc's and New Focus's initial public offerings were materially false and misleading in describing the compensation to be earned by the underwriters in connection with the offerings, and in not disclosing certain alleged arrangements among the underwriters and initial purchasers of ordinary shares, in the case of Bookham Technology plc, or common stock, in the case of New Focus, from the underwriters. The amended complaint seeks unspecified damages, costs, attorneys' fees, experts' fees, interest and other expenses. In the alternative, it asks rescission for those class members who no longer hold ordinary shares, in the case of Bookham Technology plc or common stock, in the case of New Focus. In July 2002, all defendants filed motions to dismiss the amended complaint. The motion was denied as to Bookham Technology plc and New Focus in February 2003. In October 2002, the individual defendants were dismissed, without prejudice, from the action. Special committees of the board of directors authorized the companies to negotiate a settlement of pending claims substantially consistent with a memorandum of understanding negotiated among class plaintiffs, all issuer defendants and their insurers. Plaintiffs and most of the issuer defendants and their insurers have entered into a stipulation of settlement for the claims against the issuer defendants, including the company. Under the stipulation of settlement, the plaintiff will dismiss and release all claims against participating defendants in exchange for a payment guaranty by the insurance companies collectively responsible for insuring the issuers in the related cases, and the assignment or surrender to the plaintiffs of certain claims the issuer defendants may have against the underwriters. On Feb. 15, 2005, the court issued an opinion and order preliminarily approving the settlement provided that the defendants and plaintiffs agree to a modification narrowing the scope of the bar order set forth in the original settlement agreement. The parties agreed to the modification narrowing the scope of the bar order, and on Aug. 31, 2005, the court issued an order preliminarily approving the settlement and setting an April 24, 2006 public fairness hearing. The judge has yet to enter a decision on the hearing. For more details, visit http://www.iposecuritieslitigation.com/. BOSTON SCIENTIFIC: Mass. Court Consolidates ERISA Breach Suits -------------------------------------------------------------- The U.S. District Court for the District of Massachusetts has consolidated several securities fraud complaints against Boston Scientific Corp. and appointed interim lead plaintiffs in the case. On April 3, 2006, the court issued an order consolidating the actions and appointing Jeffrey Klunke, and Michael Lowe as interim lead plaintiffs. Case Background On Jan. 19, 2006, George Larson, on behalf of himself and all others similarly situated, filed a purported class action complaint in the U.S. District Court for the District of Massachusetts on behalf of participants and beneficiaries of the company's: * 401(k) Retirement Savings Plan (401(k) Plan), and * Global Employee Stock Ownership Plan (GESOP) The complaint alleges that the company and certain of its officers and employees violated certain provisions under the Employee Retirement Income Security Act of 1974, as amended and Department of Labor Regulations. On Jan. 26, 2006, Feb. 8, 2006, Feb. 14, 2006, Feb. 23, 2006 and March 3, 2006, Robert Hochstadt, Jeff Klunke, Kirk Harvey, Michael Lowe and Douglas Fletcher, respectively, on behalf of themselves and others similarly situated, filed purported class action complaints in the same Court on behalf of the participants and beneficiaries in the company's Plans alleging similar misconduct and seeking similar relief as in the Larson lawsuit. On April 3, 2006, the Court issued an order consolidating the actions and appointing interim lead plaintiffs. On Aug. 23, 2006, plaintiffs filed a consolidated complaint that purports to bring a class action on behalf of all participants and beneficiaries of the company's 401(k) Plan during the period May 7, 2004 through Jan. 26, 2006. The complaint alleges that the company, its 401(k) Administrative and Investment Committee, members of the Committee, and certain directors violated certain provisions of ERISA. The complaint alleges, among other things, that the defendants breached their fiduciary duties to the 401(k) Plan's participants. The complaint seeks equitable and monetary relief. Defendants filed a motion to dismiss on Oct. 10, 2006. The suit is "In re: Boston Scientific Corp. ERISA Litigation, Case No. 1:06-cv-10105-JLT," filed in the U.S. District Court for the District of Massachusetts under Judge Joseph L. Tauro. Representing the defendants is Stuart J. Baskin at Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022, U.S., Phone: 212-848-4000, Fax: 212-848-7179. Representing plaintiff Jeff Klunke is Lori G. Feldman at Milberg, Weiss, Bershad & Schulman LLP, One Pennsylvania Plaza, New York, NY 10119, Phone: 212-594-5300, Fax: 212-868-1229, E- mail: lfeldman@milbergweiss.com. Representing plaintiff Michael Lowe is Nancy F. Gans at Moulton & Gans, P.C., 55 Cleveland Road, Wellesley, MA 02481, U.S., Phone: 781-235-2246, Fax: 781-239-0353, E-mail: nfgans@gmail.com. COCA COLA: Ga. Racial Diversity Case Closes After Final Report -------------------------------------------------------------- With the issuance of a final report by an independent task force monitoring Coca Cola Co.'s racial diversity efforts, the U.S. District Court for the Northern District of Georgia has declared as "case closed," the settled class action, "Abdallah, et al. v. Coca Cola Co., Case No. 1:98-cv-03679-RWS," The Atlanta Journal- Constitution reports. The creation of the task force, headed by former U.S. Labor Secretary Alexis Herman, was one of the most contentious parts of the company's estimated $192.5 million settlement with current and former African-American employees in 2000 (Class Action Reporter Dec. 20, 2004). Four plaintiffs sued the company in 1998. Specifically, Coca Cola was accused of denying the plaintiffs equal opportunity to excel due to their race. Plaintiffs also allege that the company discriminated against them in pay, promotions and performance evaluations. Coca Colas agreed to settle the class action a few months later, following more than a year of public criticism and negative media attention, and long before trial. The company paid nearly 2,200 African-American class members an average of about $40,000 each. The settlement included an estimated $36 million to create diversity programs intended to ensure fair treatment of workers. Attorneys in the case got $20.6 million. Final Report The final report stated that the company has fulfilled its legal promise to level the playing field at Coke for minorities and women. Ms. Herman, the chairwoman of the seven member task force, praised the company for tying its diversity programs to its business plan and making them an integral part of the training of middle managers. Since 1999, Coca Cola has increased the representation of minority salaried employees from 26 percent to nearly 35 percent, the task force reported. It also has made headway in promoting and hiring minorities within the senior leadership ranks, the report stated. Among the task force's findings that were contained in the report are: -- diversity among Coke's elected and appointed officers increased from 8 percent minority in 2000 to 21 percent in 2006. -- from 2002 to 2005, minority representation among middle managers went from about 21 percent to 27 percent. Overseeing the case is Judge Richard Story. CONNECTICUT RESOURCES: Dec. 21 Mediation Set for Enron Lawsuit -------------------------------------------------------------- Connecticut Resources Recovery Authority (CRRA) and a consortium of 70 cities and towns are set to begin non-binding mediation on Dec. 21 to settle a purported class action over CRRA's attempts to pass to consumers the cost of a $220 million failed deal with now-defunct Enron Corp., The Hartford Courant reports. Previous attempts at settling the case, for which trial has been underway since mid-November, have failed. Case Background The suit was filed in Waterbury Superior Court. It was originally brought by the cities of New Hartford and Barkhamsted. Trial in the suit started Nov. 13. CRRA entered into an agreement to loan Enron $220 million in exchange for some $28.5 million a year payment from Enron between 2001 to 2012 for operating a Hartford trash-to-energy plant, the power produced from which will be sold by Enron. But Enron filed for bankruptcy in 2001. The authority only recovered $111 million after the collapse. The consortium of Connecticut cities and towns is pushing ahead with the case, which seeks to recover at least $53 million that it claims was lost by the authority in the disastrous deal with Enron six years ago. The cities had agreements to dispose trash at the CRRA's Mid-Connecticut Project. In a ruling on March 22, which allowed the case to proceed, Judge Dennis G. Eveleigh said, "The court finds that several of the statements made by CRRA have been misleading, and that the existence of these statements has made it difficult, if not impossible" for the towns to join for the purposes of the suit. The judge cited letters written in 2004 and 2005 by CRRA President Thomas Kirk to the 70 municipalities in central Connecticut (Class Action Reporter, March 27, 2006). The judge said that CRRA misled the public by: -- saying the towns would have to shoulder costs of the lawsuit through increased disposal fees; -- it has substantial legal fees in defending itself in the lawsuit, without disclosing that insurance carriers had paid for most of those costs; and -- not telling them that costs incurred in making the failed $220 million loan to Enron potentially could be recouped through various indemnification agreements made with law firms advising the authority on the transaction. Overhauled by the state legislature in 2002, after Enron collapsed, CRRA argues that state law protects it from paying financial damages to its municipal members. Nearly all towns in Greater Waterbury and Northwestern Connecticut are parties to the suit, which was initiated two years ago by the town of New Hartford, according to plaintiffs' attorney David S. Golub. Despite the protracted legal dispute, CRRA continues to work with the 70 towns in the Mid-Connecticut Project and 48 others throughout the state on a daily basis, collecting and processing solid waste and recyclables (Class Action Reporter, Dec. 1, 2006). For more details, contact David S. Golub of Silver Golub & Teitell, LLP, 184 Atlantic Street, P.O. Box 389, Stamford, Connecticut 06904, (Fairfield Co.), Phone: 203-325-4491; Fax: 203-325-3769. COTT CORP: Continues to Face Suits Over Recycling Fees in Canada ---------------------------------------------------------------- Cott Corp. is facing lawsuits in Canada over allegations of unauthorized use by the company and other defendants of container deposits and the imposition of recycling fees on customers. The suit was filed in January 2005. On June 2, 2006, the British Columbia Supreme Court granted the summary trial application, which resulted in the dismissal of the plaintiffs' action against the company and the other defendants. The plaintiffs appealed the dismissal, and the company and the other defendants are defending the appeal, which the defendants expect to be heard in the next eight to twelve months. In February 2005 similar class action claims were filed in a number of other Canadian provinces. The litigation is at a very preliminary stage and the merits of these cases have not been determined. However, the company recently received notice that the plaintiffs in the class action in Quebec have moved for the litigation to be discontinued. CROWLEY MARITIME: Files Motion to Dismiss Investors Suit in Del. ---------------------------------------------------------------- Crowley Maritime Corp. moved to dismiss an amended complaint in a purported class action and derivative complaint filed against it in Delaware, according to the company's Nov. 20, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. Filed on Nov. 30, 2004, the complaint was brought against the company and its board of directors, alleging breaches of the fiduciary duties owed by the director defendants to the company and its stockholders. Among other things, the complaint alleges that the defendants improperly spent corporate funds on certain split-dollar life insurance policies to advance a corporate policy of entrenching the company's controlling stockholder, Thomas B. Crowley, Jr., and certain members of his family. Thus, plaintiffs seek damages and other relief. On Feb. 25, 2005, the defendants filed a motion to dismiss the complaint. The motion was briefed and heard on Sept. 30, 2005. Before ruling on the company's motion to dismiss, the court, on Jan. 19, 2006, ordered that motion stayed pending resolution of two motions filed on Dec. 27, 2005: one motion to amend filed by the plaintiff, and a second motion to intervene filed by a purported stockholder. These motions were briefed and a hearing on the plaintiffs' motion to amend was held on June 9, 2006. The Court granted these motions and ordered the plaintiffs to promptly file their amended complaint. Plaintiffs filed their amended complaint on Oct. 24, 2006. On Nov. 7, 2006, the company moved to dismiss the Amended Complaint in its entirety. The company believes that no ruling on the motion will be made before the end of the second quarter of 2007. The company believes that there are legal and factual defenses to these claims and intends to defend this action vigorously. DIGITAS INC: N.Y. Court Mulls Approval of IPO Suit Settlement ------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to issue a final order regarding the settlement of a consolidated securities class action filed against Digitas, Inc. Between June 26, 2001 and Aug. 16, 2001, several stockholder class action complaints were filed in the U.S. District Court for the Southern District of New York against Digitas Inc., several of its officers and directors, and five underwriters of its initial public offering. The purported class actions are all brought on behalf of purchasers of Digitas Inc.'s common stock between March 13, 2000, the date of the offering, and Dec. 6, 2000. Plaintiffs allege that Digitas Inc.'s prospectus, incorporated in the Registration Statement on Form S-1 filed with the U.S. Securities and Exchange Commission, was materially false and misleading because it failed to disclose that the underwriters had engaged in conduct designed to result in undisclosed and excessive underwriters' compensation in the form of increased brokerage commissions and also that this alleged conduct of the underwriters artificially inflated Digitas Inc.'s stock price in the period after the offering. They claimed violations of Section 11 of the U.S. Securities Act of 1933 and Section 10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission and seek, among other things, damages, statutory compensation and costs of litigation. Effective Oct. 9, 2002, the claims against Digitas Inc.'s officers and directors were dismissed without prejudice. Effective Feb. 19, 2003, the Section 10(b) claims against Digitas Inc. were dismissed. The terms of a settlement have been tentatively reached between the plaintiffs in the suits and most of the defendants, including Digitas Inc., with respect to the remaining claims. A court hearing on the fairness of the proposed settlement to the plaintiff class was held on April 24, 2006. To date the court has not issued its opinion on the proposed settlement, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. For more details, visit http://www.iposecuritieslitigation.com/. ENCYSIVE PHARMACEUTICALS: Faces Securities Fraud Suits in Tex. -------------------------------------------------------------- Encysive Pharmaceuticals Inc. is facing four securities fraud complaints in the U.S. District Court for the Southern District of Texas in relation to statements it made regarding its drug sitaxsentan sodium. On Sept. 26, 2006, a purported class action complaint (Massachusetts Laborers Complaint) was filed in the U.S. District Court for the Southern District of Texas by Massachusetts Laborers' Annuity Fund, on behalf of itself and all other similarly situated investors against: -- the company; -- Bruce D. Given, M.D., president and chief executive officer; -- Richard A.F. Dixon, senior vice president, research and chief scientific officer; and -- Stephen L. Mueller, former vice president, finance and administration, secretary and treasurer The complaint alleges violations of sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, and focuses on statements that are claimed to be false and misleading regarding the company's drug sitaxsentan sodium. The plaintiffs seek unspecified damages on behalf of a purported class of purchasers of the company's securities during the period from Feb. 19, 2004 through March 24, 2006. In addition, on Oct. 10, 2006, a second purported class action complaint was filed in the U.S. District Court for the Southern District of Texas by Gustav R. Bastian, on behalf of himself and all other similarly situated investors against the company, Dr. Given, Mr. Dixon and Mr. Mueller. The complaint asserts substantially the same factual allegations and legal claims as the Massachusetts Laborers complaint on behalf of the same putative class. A third substantially similar purported class action complaint was filed on Oct. 20, 2006 by Steven O. Scott, and a fourth substantially similar purported class action complaint was filed on Nov. 1, 2006 by Cami Janzen-Guare. These complaints assert substantially the same factual allegations and legal claims as the Massachusetts Laborers' complaint and were filed in the same court on behalf of the same putative class. FOCUS HEALTHCARE: Faces Health Care Providers' Lawsuit in La. ------------------------------------------------------------- FOCUS Healthcare Management Inc., a wholly owned subsidiary of Concentra Operating Corp., is facing a purported class action in Louisiana state court filed by four Louisiana health care providers, according to the company's Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. Aside from the company other defendants include two Preferred Provider Organizations and three third-party administrators (TPAs). The company maintains a preferred provider network of occupational healthcare providers. Plaintiffs assert that it is illegal for a PPO to contract with a provider to pay that provider below the Louisiana Worker's Compensation fee schedule, and that applying PPO discounts, without providing 30 days prior notice, violates the Any Willing Provider Act in Louisiana. The suit claims that the company did not provide legally sufficient notice. GOLDEN GLEN: Recalls Improperly Pasteurized Eggnog Milk Products ---------------------------------------------------------------- The Washington State Department of Agriculture (WSDA) is working with Golden Glen Creamery of Bow, Washington, in Skagit County, on a voluntary recall of its eggnog milk products that may contain illness-causing pathogens due to improper pasteurization. Although no illnesses have been reported, Golden Glen Creamery is voluntarily recalling 160 glass quart bottles of its eggnog product. The eggnog was bottled in quart-glass containers labeled Golden Glen Creamery with a pull date of "Nov. 28" on the cap. The product was distributed to: -- Community Food Co-Op in Bellingham -- Front Street Market Red Apple in Issaquah -- Hop-In Grocery in Seattle -- Petosa's Family Grocery in Edmonds -- Madison Market Central Co-Op in Seattle -- Star Stores in Langley/Bayview Corner, Island County -- Matthew's Thriftway in Bellevue -- Ralph's Red Apple in Bremerton -- Garguile's Red Apple in Bremerton -- Red Apple in Silverdale -- Sno-Isle Natural Foods Co-Op in Everett -- Sunshine Corner in Kent -- Whole Foods in Westlake, Seattle -- Whole Foods in Redmond Consumers who have purchased the eggnog product with a pull date of "Nov 28" are advised to return it to the place of purchase for a full refund or replacement with new product. No other Golden Glen Creamery products are involved in this recall. The creamery's owner is working with WSDA's Food Safety program to notify consumers and has voluntarily removed all remaining eggnog from retail outlets. The owner is also cooperating with WSDA's investigation to determine the cause of the under- pasteurized milk products. WSDA conducted routine sampling of the packaged eggnog product on Nov. 14. Analysis found the sample with high levels of phosphatase, which indicates the eggnog was under-pasteurized. Adequate pasteurization requires eggnog milk products to be heated to 155 degrees Fahrenheit for a continuous 30 minutes in approved pasteurization equipment that is properly operated to assure that every particle of milk is pasteurized. According to Golden Glen, the affected eggnog product had been heated to a temperature of about 149 degrees Fahrenheit for 34 minutes. Because the eggnog product was under-pasteurized, it could carry illness-causing pathogens. Persons with concerns may contact the toll-free WSDA food safety complaint line at 1 (800) 843-7890. GUIDANT CORP: Ind. Court Dismisses ERISA Violations Lawsuit ----------------------------------------------------------- Plaintiffs in a consolidated suit alleging Employee Retirement Income Security Act violations by Guidant Corp. is appealing to the U.S. Court of Appeals for the Seventh Circuit the dismissal of the complaint by the U.S. District Court for the Southern District of Indiana. In July 2005, a purported class action complaint was filed on behalf of participants in Guidant's employee pension benefit plans. This action was filed in the U.S. District Court for the Southern District of Indiana against Guidant and its directors. The complaint alleges breaches of fiduciary duty under the ERISA Act 29 U.S.C. Section 1132. Specifically, the complaint alleges that Guidant fiduciaries concealed adverse information about Guidant's defibrillators and imprudently made contributions to Guidant's 401(k) plan and employee stock ownership plan in the form of Guidant stock. The complaint seeks class certification, declaratory and injunctive relief, monetary damages, the imposition of a constructive trust, and costs and attorneys' fees. A second, similar complaint was filed and consolidated with the initial complaint. A consolidated, amended complaint was filed on Feb. 8, 2006. The defendants moved to dismiss the consolidated complain, and on Sept. 15, 2006, the Court dismissed the complaint for lack of jurisdiction. In October 2006, the plaintiffs appealed the Court's decision to the U.S. Court of Appeals for the Seventh Circuit. HOST AMERICA: Continues to Face Securities Fraud Suits in Conn. --------------------------------------------------------------- Host America Corp. remains a defendant in a consolidated securities fraud class action filed in the U.S. District Court for the District of Connecticut, according to the company's Nov 20 Form 10-Q filing with the U.S. Securities and Exchange Commission. In August 2005 and September 2005, 12 putative class action complaints were filed, naming as defendants the company, Geoffrey W. Ramsey, and David J. Murphy. One or more of the complaints also named: -- Gilbert Rossomando, -- Peter Sarmanian, -- Roger D. Lockhart, and -- EnergyNsync, Inc. The complaints purport to be brought on behalf of all persons who purchased the company's publicly traded securities between July 12, 2005 and July 22, 2005. In general, plaintiffs alleged that the company's July 12, 2005 press release contained materially false and misleading statements regarding the company's commercial relationship with Wal-Mart. The complaints alleged that these statements harmed the purported class by artificially inflating the price of the company's securities and that certain defendants personally benefited from the inflated price by selling stock during the alleged class period. Plaintiffs sought unspecified damages based on alleged violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On Sept. 21, 2005, as amended on Sept. 26, 2005, the court issued a Consolidation and Scheduling Order, consolidating the class actions as, "In re Host America Securities Litigation, Civil Action No. 05-cv-1250 (JBA)." On June 15, 2006, the lead plaintiff filed a consolidated complaint for violations of the securities laws. The consolidated complaint, which supersedes the previously filed class action complaints, names as defendants the company, Geoffrey W. Ramsey, David J. Murphy, Peter Sarmanian and Roger D. Lockhart, and purports to be brought on behalf of all persons who purchased the company's publicly traded securities between July 12, 2005 and Sept. 1, 2005. The Consolidated Complaint is based on substantially the same allegations as the earlier filed complaints. Plaintiffs seek unspecified damages based on alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and under Section 20A against Mr. Sarmanian and Mr. Lockhart. A time for answering or otherwise responding to the Consolidated Complaint has not been established. Pursuant to court order, the parties filed a status report on Nov. 13, 2006. The complaints are: -- "Mintz v. Host America Corp., et al., Civil Action No. 05-cv-1260-SRU (filed on Aug. 9, 2005); -- "RFC Securities LLC v. Host America Corp., et al., Civil Action No. 05-cv-01269-JBA (filed on Aug. 11, 2005);" -- "Collins v. Host America Corp., et al., Civil Action No. 05-cv-01270-JBA (filed on Aug. 11, 2005);" -- "Conlin v. Host America Corp., et al., Civil Action No. 05-cv-01291-WWE (filed on Aug. 15, 2005);" -- "Sutton v. Host America Corp., et al., Civil Action 05- cv-01292-JBA (filed on Aug. 15, 2005);" -- "Dombrowski v. Host American Corp., et al., Civil Action No. 05-cv-01329-RNC (filed on Aug. 19, 2005);" -- "Yorks v. Host America Corp., et al., Civil Action No. 05-cv-1250 (filed on Aug. 8, 2005);" -- "Sullivan v. Host America Corp., et al., Civil Action No. 05-01391 (filed on Sept. 2, 2005);" -- "George Theall v. Host America Corp., et al., Civil Action No. 05-cv-1389 (JBA) (filed Sept. 1, 2005);" -- "Sonia Kilgore v. Host America Corp., et al., Civil Action No. 05-cv-1435 (JBA)(filed Sept. 12, 2005);" -- "Jonathan Destler v. Host America Corp., et al., No. 05-cv-01479 (JBA) (filed Sept. 21, 2005);" and -- "Brett Reeves v. Host America Corp. et al., Civil Action No. 05-cv-01511 (JBA) (filed Sept. 27, 2005)." Representing the plaintiffs are: (1) Elias A. Alexiades, 215 Church Street, 2nd Floor, New Haven, CT 06510, Phone: 203-777-4720, Fax: 203-777- 4722, E-mail: alexiades@mindspring.com; (2) Jeffrey P. Campisi of Kaplan Fox & Kilsheimer, LLP - NY 805 Third Ave., 22nd Floor, New York, NY 10022, Phone: 212-687-1980, Fax: 212-687-7714, E-mail: jcampisi@kaplanfox.com; and (3) Thomas G. Ciarlone, Jr. of Shalov Stone & Bonner, 485 Seventh Avenue, Suite 1000, New York, NY 10018, Phone: 212-239-4340, Fax: 212-239-4310, E-mail: tciarlone@lawssb.com. Representing the defendants is Peter M. Casey of Greenberg & Traurig-MA, One International Place, Boston, MA 02110, Phone: 617-310-6048, Fax: 617-310-6001, E-mail: caseyp@gtlaw.com. KANA SOFTWARE: Awaits Court's Final OK to Stock Suit Settlement --------------------------------------------------------------- The U.S. District Court for the Southern District of New York has yet to grant final approval to the settlement of the consolidated securities class action "In Re Kana Software, Inc. Initial Public Offering Securities Litigation, Case No. 01 Civ. 6822 (Sas)," according to the company's Nov. 14, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2006. The suit is filed against KANA Software, Inc., certain of its current and former officers and the underwriters for its initial public offering: -- Goldman Sachs & Co., -- Lehman Bros, -- Hambrecht & Quist LLC, -- Wit Soundview Capital Corp. The cases allege violations of various securities laws by more than 300 issuers of stock, including the company, and the underwriters for such issuers, on behalf of a class of plaintiffs who, in the case of the company, purchased the company's common stock between Sept. 21, 1999 and Dec. 6, 2000 in connection with the company's initial public offering. Specifically, the complaints allege that the underwriter defendants engaged in a scheme concerning sales of the company's and other issuers' securities in the initial public offering and in the aftermarket. In July 2003, the company decided to join in a settlement negotiated by representatives of a coalition of issuers named as defendants in this action and their insurers. Although the company believes that the plaintiffs' claims have no merit, they have decided to accept the settlement proposal to avoid the cost and distraction of continued litigation. The proposed settlement agreement is subject to final approval by the court. The suit is "In Re Kana Software, Inc. Initial Public Offering Securities Litigation, Case No. 01 Civ. 6822 (Sas)," related to "In re Initial Public Offering Securities Litigation, Master File No. 21 MC 92 (SAS)," filed in the U.S. District Court for the Southern District of New York under Judge Shira A. Scheindlin. The plaintiff firms in this litigation are: (i) Bernstein Liebhard & Lifshitz LLP (New York, NY), 10 E. 40th Street, 22nd Floor, New York, NY, 10016, Phone: 800.217.1522, E-mail: info@bernlieb.com (ii) Milberg Weiss Bershad Hynes & Lerach, LLP (New York, NY), One Pennsylvania Plaza, New York, NY, 10119-1065, Phone: 212.594.5300, (iii) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd, PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E- mail: info@sbclasslaw.com (iv) Sirota & Sirota, LLP, 110 Wall Street 21st Floor, New York, NY, 10005, Phone: 888.759.2990, Fax: 212.425.9093, E-mail: Info@SirotaLaw.com (v) Stull, Stull & Brody (New York), 6 East 45th Street, New York, NY, 10017, Phone: 310.209.2468, Fax: 310.209.2087, E-mail: SSBNY@aol.com (vi) Wolf, Haldenstein, Adler, Freeman & Herz LLP, 270 Madison Avenue, New York, NY, 10016, Phone: 212.545.4600, Fax: 212.686.0114, E-mail: newyork@whafh.com. MARSH & MCLENNAN: N.J. Court Finds RICO Act Claims Deficient ------------------------------------------------------------ The District Court of New Jersey ruled that plaintiffs in a lawsuit related to the New York State Attorney General's civil complaint against Marsh & McLennan Companies, Inc. failed to state specific claims of Racketeer Influenced and Corrupt Organizations Act violations against the company. Case Background In October 2004, the Office of the New York State Attorney General (NYAG) filed a civil complaint in New York State court against Marsh & McLennan Companies, Inc. and its subsidiary Marsh Inc., asserting claims under New York law for fraudulent business practices, antitrust violations, securities fraud, unjust enrichment, and common law fraud. The complaint alleged that market service agreements between Marsh and various insurance companies created an improper incentive for Marsh to steer business to such insurance companies and to shield them from competition. The complaint further alleged that the agreements were not adequately disclosed to Marsh's clients or MMC's investors, and that Marsh engaged in bid-rigging and solicited fraudulent bids to create the appearance of competitive bidding. Numerous lawsuits have been commenced against MMC, one or more of its subsidiaries, and their current and former directors and officers, relating to matters alleged in the NYAG Lawsuit, including: New Jersey Class Actions Various putative class actions purportedly brought on behalf of policyholders were filed in or removed to several federal courts across the country. All of these federal putative class actions were transferred to the District of New Jersey for coordination or consolidated pretrial proceedings. In August 2005, two consolidated amended complaints were filed in the MDL Cases: -- one on behalf of a purported class of "commercial" policyholders, and -- the second on behalf of a purported class of "employee benefit" policyholders which as against MMC and certain affiliates allege statutory claims for violations of the Racketeering Influenced and Corrupt Organizations Act and federal and state antitrust laws, together with common law claims for breach of fiduciary duty and unjust enrichment. The complaints seek a variety of remedies, including unspecified monetary damages, treble damages, disgorgement, restitution, punitive damages, declaratory and injunctive relief, and attorneys' fees and costs. The class periods alleged in the MDL Cases begin on Aug. 26, 1994 and purport to continue to the date of any class certification. In November 2005, MMC and the other defendants moved to dismiss the two consolidated amended complaints. On Feb. 16, 2006, the plaintiffs moved for class certification. On Oct. 3, 2006, the court ruled that plaintiffs had failed to state, with the requisite specificity, claims for violations of RICO and the federal antitrust laws. Plaintiffs have made supplemental filings to address these deficiencies. Other Class Actions Four class or representative actions on behalf of policyholders are pending in state courts. There are also 22 actions brought by individual policyholders and others in federal and state courts relating to matters alleged in the NYAG Lawsuit. MMC expects that all policyholder actions filed in the U.S. federal courts will be transferred to the District of New Jersey. In addition, two putative class actions and one individual policyholder action are pending in Canada. MARSH & MCLENNAN: N.Y. Court Junks Some Claims in Stock Lawsuit --------------------------------------------------------------- Plaintiffs in a purported securities fraud class action filed against Marsh & McLennan Companies, Inc. in the U.S. District Court for the Southern District of New York in relation to the New York State Attorney General's civil complaint against the company filed a second amended complaint after the dismissal of certain claims in the original suit. In October 2004, the Office of the New York State Attorney General (NYAG) filed a civil complaint in New York State court against Marsh & McLennan Companies, Inc. and its subsidiary Marsh Inc., asserting claims under New York law for fraudulent business practices, antitrust violations, securities fraud, unjust enrichment, and common law fraud. The complaint alleged that market service agreements between Marsh and various insurance companies created an improper incentive for Marsh to steer business to such insurance companies and to shield them from competition. The complaint further alleged that the agreements were not adequately disclosed to Marsh's clients or MMC's investors, and that Marsh engaged in bid-rigging and solicited fraudulent bids to create the appearance of competitive bidding. Numerous lawsuits have been commenced against MMC, one or more of its subsidiaries, and their current and former directors and officers, relating to matters alleged in the NYAG Lawsuit, including: Four purported class actions on behalf of individuals and entities who purchased or acquired MMC's publicly-traded securities during the purported class periods are pending in the U.S. District Court for the Southern District of New York. In January 2005, the court issued an order consolidating these complaints into a single proceeding (the MMC SDNY Securities Case) and appointing co-lead plaintiffs and co-lead counsel to represent the purported class. In April 2005, the co-lead plaintiffs filed a consolidated complaint naming MMC, Marsh, MMC's independent registered public accounting firm and twenty present and former directors and officers of MMC and certain affiliates as defendants. The purported class period in the consolidated complaint extended from Oct. 14, 1999 to Oct. 13, 2004. The consolidated complaint alleged, among other things, that MMC inflated its earnings during the class period by engaging in unsustainable business practices based on contingent commissions, and caused the plaintiffs and other members of the purported class to purchase MMC's securities at artificially inflated prices. The consolidated complaint further alleged that MMC failed to disclose that the revenue derived from market service agreements with insurers was part of an unlawful scheme, which could not be sustained and which exposed MMC to significant regulatory sanctions, and that MMC failed to disclose certain alleged anti- competitive and illegal practices, such as "bid rigging" and soliciting fictitious quotes, at MMC's subsidiaries. The consolidated complaint further alleged that MMC's revenues and earnings would have been significantly lower had MMC's subsidiaries not engaged in these allegedly unlawful business practices, and that MMC's earnings were overstated because MMC failed to establish a reserve for contingent losses associated with its allegedly improper activities. The consolidated complaint included factual allegations similar to those asserted in the NYAG Lawsuit, as well as factual allegations concerning alleged misconduct at MMC's subsidiaries Mercer and Putnam, and alleged conflicts of interest associated with MMC's former private equity subsidiary, MMC Capital. The consolidated complaint included claims for violations of Sections 10(b), 18 and 20(a) of the U.S. Securities Exchange Act of 1934 and Sections 11 and 15 of the U.S. Securities Act of 1933, based on MMC's allegedly false or incomplete disclosures. In addition, the consolidated complaint included claims for common law fraud and deceit, negligent misrepresentation, and violations of state securities laws, which were asserted on behalf of a subclass of municipal and state pension funds. The consolidated complaint sought unspecified compensatory damages and attorneys' fees. All defendants filed motions to dismiss the consolidated complaint. On July 19, 2006, the court granted in part and denied in part those motions. The court dismissed the Section 18 and Section 15 claims against Marsh and MMC, as well as all common law and state statutory securities law claims. The claims against MMC's independent registered public accounting firm and all but two of the individual defendants were dismissed in their entirety. Second Amended Complaint On Oct. 13, 2006, plaintiffs filed a second amended complaint, which purports to conform the plaintiffs' allegations to the court's July ruling. MMC has not yet responded to the second amended complaint. Actions Transferred for Inclusion in SDNY Securities Case Four individual shareholder actions have been filed against MMC and others in various state courts. Two of these actions have been transferred for inclusion in the MMC SDNY Securities Case. On July 19, 2006, MMC's motion to dismiss one of the state court actions was denied; an amended complaint has been filed, to which MMC has not yet responded. In the other pending state lawsuit, the court granted MMC's motion to dismiss without prejudice. Plaintiffs have filed an amended complaint, to which MMC has not yet responded. MMC has not yet responded to the complaints in the two actions that have been transferred for inclusion in the MMC SDNY Securities Case. A separate individual shareholder action asserting federal securities laws violations was transferred for inclusion in the MMC SDNY Securities Case. The court granted this plaintiff leave to file a claim under Section 14(a) of the Securities Exchange Act of 1934 by Aug. 18, 2006. No such complaint was filed, and MMC has requested that the Section 14(a) claim be dismissed with prejudice. MARSH & MCLENNAN: Continues to Face ERISA Violation Suit in N.Y. ---------------------------------------------------------------- Marsh & McLennan Cos., Inc. remains a defendant in a purported class action filed in the U.S. District Court for the Southern District of New York over alleged Employee Retirement Income Security Act violations in relation to the New York State Attorney General's civil complaint against the company. In October 2004, the Office of the New York State Attorney General (NYAG) filed a civil complaint in New York State court against Marsh & McLennan Companies, Inc. and its subsidiary Marsh Inc., asserting claims under New York law for fraudulent business practices, antitrust violations, securities fraud, unjust enrichment, and common law fraud. The complaint alleged that market service agreements between Marsh and various insurance companies created an improper incentive for Marsh to steer business to such insurance companies and to shield them from competition. The complaint further alleged that the agreements were not adequately disclosed to Marsh's clients or MMC's investors, and that Marsh engaged in bid-rigging and solicited fraudulent bids to create the appearance of competitive bidding. Numerous lawsuits have been commenced against MMC, one or more of its subsidiaries, and their current and former directors and officers, relating to matters alleged in the NYAG Lawsuit, including 20 purported class actions alleging violations of the Employee Retirement Income Security Act of 1974, as amended. The suits have been filed in the U.S. District Court for the Southern District of New York on behalf of participants and beneficiaries of the Marsh & McLennan Companies Stock Investment Plan. In February 2005, the court issued an order consolidating these complaints into a single proceeding. Plaintiffs filed a consolidated class action complaint in June 2005, naming MMC and various current and former employees, officers and directors as defendants. The Consolidated ERISA Complaint alleges, among other things, that in view of the purportedly fraudulent bids and the receipt of contingent commissions pursuant to the market service agreements referred to above, the defendants knew or should have known that the investment of the Plan's assets in MMC stock was imprudent. The Consolidated ERISA Complaint also asserts that certain defendants failed to provide the Plan's participants with complete and accurate information about MMC stock, that certain defendants responsible for selecting, removing and monitoring other fiduciaries did not comply with ERISA, and that MMC knowingly participated in other defendants' breaches of fiduciary duties. The Consolidated ERISA Complaint seeks, among other things, unspecified compensatory damages, injunctive relief and attorneys' fees and costs. The amount of Plan assets invested in MMC stock at Oct. 13, 2004 (immediately prior to the announcement of the NYAG Lawsuit) was approximately $1.2 billion. The Consolidated ERISA Complaint alleges that during the purported class period, which extends from July 1, 2000 until Jan. 31, 2005, MMC's stock price fell from $52.22 to $32.50. MMC and the other defendants have filed a motion to dismiss the Consolidated ERISA Complaint. The suit is "In Re Marsh & McLennan Companies, Inc., Case No. 1:04-cv-08144-SWK," filed in the U.S. District Court for the Southern District of New York under Judge Shirley Wohl Kram. Representing the plaintiffs are: (1) John Balestriere of Ballestriere, P.L.L.C., 225 Broadway, Suite 2700, New York, NY 10007, Phone: 212 374-5400, Fax: 212-661-8665, E-mail: jb@balestriere.net; (2) Jay W. Eisenhofer of Grant & Eisenhofer, P.A., 1201 North Market Street, Suite 2100, Wilmington, DE 19801, Phone: (302) 622-7000; and (3) Keith Martin Fleischman and Jeffrey Michael Haber both of Bernstein Liebhard & Lifshitz, LLP, 10 East 40th Street, New York, NY 10016, Phone: (212) 779-1414, Fax: (212) 779-3218, E-mail: fleischman@bernlieb.com or haber@bernlieb.com. MARSH & MCLENNAN: N.Y. Court Junks Stock Lawsuit Against AXIS ------------------------------------------------------------- The U.S. District Court for the Southern District of New York dismissed the suit, "In re AXIS Capital Holdings Ltd. Securities Litigation," which also names Marsh & McLennan Cos., Inc. as defendant. In October 2004, the Office of the New York State Attorney General (NYAG) filed a civil complaint in New York State court against Marsh & McLennan Companies, Inc. and its subsidiary Marsh Inc., asserting claims under New York law for fraudulent business practices, antitrust violations, securities fraud, unjust enrichment, and common law fraud. The complaint alleged that market service agreements between Marsh and various insurance companies created an improper incentive for Marsh to steer business to such insurance companies and to shield them from competition. The complaint further alleged that the agreements were not adequately disclosed to Marsh's clients or MMC's investors, and that Marsh engaged in bid-rigging and solicited fraudulent bids to create the appearance of competitive bidding. Numerous lawsuits have been commenced against MMC, one or more of its subsidiaries, and their current and former directors and officers, relating to matters alleged in the NYAG Lawsuit. In May 2005, the plaintiffs in a purported securities fraud class action pending in the U.S. District Court for the Southern District of New York against Axis Capital Holdings Limited and certain of its officers filed a consolidated complaint that named MMC, among others, as an additional defendant. This purported class action is on behalf of all persons and entities that purchased or acquired Axis's publicly traded common stock during a purported class period from Aug. 6, 2003 to Oct. 14, 2004. The complaint alleges violations of federal securities laws in connection with defendants' purported failure to disclose alleged improper business practices concerning incentive commission payments by Axis to, among others, Marsh Inc. With regard to MMC, the complaint also alleges that various entities and partnerships managed by or associated with MMC Capital sold Axis common stock to members of the purported class knowing of the alleged inflated valuation of such stock, and seeks damages for alleged violations of federal securities laws. On Oct. 17, 2006, the court granted all defendants' motions to dismiss without prejudice. The suit is "In re AXIS Capital Holdings Ltd. Securities Litigation, Case No. 1:04-cv-08564-RJH," filed in the U.S. District Court for the Southern District of New York under Judge Richard J. Holwell. Representing the plaintiffs is Samuel Howard Rudman of Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, LLP, 200 Broadhollow Road, Ste. 406, Melville, NY 11747, Phone: 631-367-7100, Fax: 631-367-1173, E-mail: srudman@lerachlaw.com. Representing the company is Benjamin E. Rosenberg of Swidler Berlin Shereff Friedman, LLP, 405 Lexington Avenue, New York, NY 10174, Phone: (212) 891-9231, Fax: (212) 891-9519, E-mail: benjamin.rosenberg@dechert.com. MARSH & MCLENNAN: Md. Court Junks Some "Market-Timing" Claims ------------------------------------------------------------- The U.S. District Court for the District of Maryland has dismissed certain complaints of "market-timing" and "late trading" activities against Marsh & McLennan Companies, Inc. and Putnam Investments Equity Partnership Plan. MMC and Putnam faces more than 70 civil complaints, filed in various state and federal courts, based on allegations of "market-timing" and, in some cases, "late trading" activities. All of the actions filed in federal court have been transferred, along with actions against other mutual fund complexes, to the U.S. District Court for the District of Maryland for coordinated or consolidated pretrial proceedings. The lead plaintiffs in those cases filed consolidated amended complaints in September 2004. MMC and Putnam moved to dismiss these various complaints pending in federal court in Maryland: (1) a consolidated amended class action complaint against MMC and Putnam, along with certain of their former officers and directors purportedly brought on behalf of all purchasers of the publicly-traded securities of MMC between January 3, 2000 and November 3, 2003 (MMC Class Action); In general, the MMC Class Action alleges that the defendants, including MMC, allowed certain mutual fund investors and fund managers to engage in market-timing in the Putnam Funds. The complaint further alleges that this conduct was not disclosed until late 2003, in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint alleges that, as a result of defendants' purportedly misleading statements or omissions, MMC's stock traded at inflated levels during the Class Period. The suit seeks unspecified damages and equitable relief. In an order entered Oct. 13, 2006, the district court dismissed all claims against all defendants in the MMC Class Action. (2) a consolidated amended complaint filed against MMC and Putnam on behalf of a putative class of investors in certain Putnam Funds (Putnam Class Action) and in a consolidated amended complaint in which certain fund investors purport to assert derivative claims on behalf of all Putnam Funds (Putnam Derivative Action); These suits seek to recover unspecified damages allegedly suffered by the funds and their shareholders as a result of purported market-timing and late trading activity that allegedly occurred in certain Putnam Funds. The Putnam Derivative Action seeks additional relief, including termination of the investment advisory contracts between Putnam and the Funds, cancellation of the Funds' 12b-1 plans and the return of all advisory and 12b-1 fees paid by the Funds over a certain period of time. In addition to MMC and Putnam, the Putnam Derivative Action names as defendants various Putnam affiliates, certain trustees of the Putnam Funds, certain present and former Putnam officers and employees, and persons and entities that allegedly engaged in or facilitated market-timing or late trading activities in the Putnam Funds. MMC and Putnam moved to dismiss all claims in the Putnam Class Action and the Putnam Derivative Action. The court dismissed all claims against MMC in both actions. With regard to Putnam, the court dismissed all claims against Putnam in the Putnam Class Action except for claims under Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, Section 20(a) of the Exchange Act, and Section 36(b) of the Investment Company Act of 1940, and all claims against Putnam in the Putnam Derivative Action except the claim under Section 36(b) of the Investment Company Act. On Aug. 24, 2006, the plaintiffs filed a second amended complaint in the Putnam Class Action in response to the court's dismissal order. Putnam has answered the second amended complaint. (3) a class action against Putnam in its capacity as a sub- adviser to a non-Putnam fund in a federal class action suit pending in the District of Maryland against another mutual fund complex; (4) a consolidated amended complaint asserting shareholder derivative claims, purportedly on behalf of MMC, against current and former members of MMC's Board of Directors, two of Putnam's former officers, and MMC as a nominal defendant (the MMC Derivative Action); The MMC Derivative Action generally alleges that the members of MMC's Board of Directors violated the fiduciary duties they owed to MMC and its shareholders by failing to provide oversight regarding market-timing in the Putnam Funds, as a result of which MMC suffered damages. The suit seeks unspecified damages and equitable relief. Pursuant to an agreement of the parties, the MMC Derivative Action was stayed in May 2005. In October 2003 and February 2004, respectively, MMC received two demand letters from stockholders asking the MMC Board of Directors to take action to remedy alleged breaches of duty by certain officers, directors, trustees or employees of MMC or Putnam, based on allegations of market-timing in the Putnam Funds. (5) two consolidated amended complaints that purportedly assert class action claims against MMC, Putnam, and various of their current and former officers, directors and employees under Employee Retirement Income Security Act; The ERISA Actions, which have been brought by participants in MMC's Stock Investment Plan and Putnam's Profit Sharing Retirement Plan, allege, among other things, that, in view of the market-timing trading activity that was allegedly allowed to occur at Putnam, the defendants knew or should have known that the investment of the plans' funds in MMC stock and the Putnam Funds was imprudent and that the defendants breached their fiduciary duties to the plan participants in making these investments. The ERISA Actions seek unspecified damages and equitable relief, including the restoration to the plans of all profits the defendants allegedly made through the use of the plans' assets, an order compelling the defendants to make good to the plans all losses to the plans allegedly resulting from defendants' alleged breaches of their fiduciary duties, and the imposition of a constructive trust on any amounts by which any defendant allegedly was unjustly enriched at the expense of the plans. On Sept. 15, 2006, the ERISA Action regarding the Putnam Profit Sharing Retirement Plan was dismissed against all defendants; the plaintiff has appealed that decision. On Oct. 19, 2006, the plaintiff in the ERISA Action regarding the MMC Stock Investment Plan filed a third amended complaint. (6) a purported class action brought against a number of the Putnam Funds on behalf of certain holders of the funds' Class B shares who either: (i) held such shares and were subject to certain contingent deferred sales charges (CDSCs) as of October 28, 2003, or (ii) were assessed a CDSC for redeeming such shares on or after Oct. 28, 2003; Plaintiff alleges that Putnam engaged in misconduct constituting a breach of contract and breach of the covenant of good faith and fair dealing with purported class members by allowing market-timing. Plaintiff seeks, among other things, actual damages or statutory damages of $25 for each class member, whichever is greater, and relief from paying a CDSC for redeeming Class B shares. In August 2005, this action was transferred to the consolidated proceedings in the U.S. District Court for the District of Maryland. Putnam has agreed to indemnify the Putnam Funds for any liabilities arising from market-timing activities, including those that could arise in the above securities litigations, and MMC has agreed to guarantee Putnam's obligations in that regard. MATTEL INC: Recalls Magnetic Play Sets After Injury Reports ----------------------------------------------------------- Mattel Inc., of El Segundo, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 2.4 million play sets with an additional 2 million play sets sold worldwide. The company said tiny magnets inside the dolls and accessories can fall out undetected by parents and caregivers. The magnets can be swallowed, aspirated by young children or placed by a child in their nose or ears. When more than one magnet is swallowed, the magnets can attract each other and cause intestinal perforation, infection or blockage, which can be fatal. Aspiration to the lungs requires immediate surgery. Magnets placed in the nose or ears can cause swelling and be difficult to remove. CPSC is aware of 170 reports of the small magnets coming out of these recalled toys. There were three reports of serious injuries to children who swallowed more than one magnet. All three suffered intestinal perforations that required surgery. A 2-year-old child was hospitalized for seven days and a 7-year- old child was hospitalized for 12 days. An 8-year-old child was also hospitalized. The recalled Polly Pocket play sets contain plastic dolls and accessories that have small magnets. The magnets measure 1/8 inch in diameter and are imbedded in the hands and feet of some dolls, and in the plastic clothing, hair pieces and other accessories to help the pieces attach to the doll or to the doll's house. The model number is printed on the bottom of the largest pieces on some of the play sets. Contact Mattel if you cannot find a model number on your product to determine if it is part of the recall. Polly Pocket magnetic play sets currently on store shelves are not included in this recall. Polly Pocket Magnetic Play Sets Item Number Polly Pocket! Polly Place Hangin' Out House B2632 Polly Pocket! Polly Place Treetop Clubhouse B3158 Polly Pocket! Spa Day B3201 Polly Totally! Polly Place Totally Tiki Diner B7118 Polly Pocket! Quik-Clik Boutique G8605 Polly Pocket! Quik-Clik City Pretty Playset H1537 Polly Pocket! Quik-Clik Sporty Style Playset H1538 Polly Pocket! Totally Zen Playset H3211 These Polly Pocket magnetic play sets were manufactured in China and are being sold at discount department stores and toy stores from May 2003 through September 2006 for between $15 and $30. Pictures of the recalled Polly Pocket magnetic play sets: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07039a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07039b.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07039c.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07039d.jpg Consumers are advised to immediately take these recalled toys away from children and contact Mattel to arrange for the return of the sets and to receive a voucher for a replacement toy of the customer's choice, up to the value of the returned product. For additional information contact Mattel at (888) 597-6597 anytime, or visit: http://www.service.mattel.com. MODEM MEDIA: Court Considers Approval of IPO Suit Settlement ------------------------------------------------------------ The U.S. District Court for the Southern District of New York has yet to issue a final order regarding the settlement of the consolidated securities class action filed against Modem Media, Inc., a wholly owned subsidiary of Digitas, Inc. Beginning in August 2001, several stockholder class action complaints were filed in the U.S. District Court for the Southern District of New York against Modem Media, several of its officers and directors, and five underwriters of its initial public offering. The purported class actions are all brought on behalf of purchasers of Modem Media's common stock between Feb. 5, 1999, the date of the Modem Media Offering, and Dec. 6, 2000. Plaintiffs allege, among other things, that Modem Media's prospectus, incorporated in the Registration Statement on Form S-1 filed with the U.S. Securities and Exchange Commission, was materially false and misleading because it failed to disclose that the underwriters had engaged in conduct designed to result in undisclosed and excessive underwriters' compensation in the form of increased brokerage commissions and also that this alleged conduct of the underwriters artificially inflated Modem Media's stock price in the period after the Modem Media Offering. They claim violations of Sections 11 and 15 of the U.S. Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission and seek, among other things, damages, statutory compensation and costs of litigation. The terms of a settlement have been tentatively reached between the plaintiffs in the suits and most of the defendants, including Modem Media. A court hearing on the fairness of the proposed settlement to the plaintiff class was held on April 24, 2006. The court has not issued its opinion on the proposed settlement, according to the Digitas, Inc.'s Nov. 9, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. For more details, visit http://www.iposecuritieslitigation.com/. NETRATINGS INC: Faces Del. Suits Over VNU Purchase Proposal ----------------------------------------------------------- NETRATINGS, Inc. is named defendant in several purported class actions filed in the Court of Chancery of the State of Delaware in and for New Castle County over a proposal by VNU Group B.V. to purchase for $16.00 in cash each share of the company's common stock that VNU or its affiliates does not currently own. On or about Oct. 9, 2006 and 10, 2006, three substantially similar putative class actions were filed against the company, its directors and VNU, 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. These actions purport to be brought on behalf of all of the company's stockholders excluding the defendants and their affiliates. Generally, they allege that: -- VNU and the directors of the company breached their fiduciary duties to the class; -- the consideration offered by VNU is inadequate and constitutes unfair dealing; and -- VNU, as controlling stockholder, breached its duty to the class by acting to further its own interests at the expense of the class. The complaints seek to enjoin the proposal or, in the alternative, damages in an unspecified amount and recission in the event a merger occurs pursuant to the proposal. NEW JERSEY: Double-dipping Suit Against Representative Dismissed ---------------------------------------------------------------- New Castle County Superior Court Judge Richard Cooch dismissed a lawsuit filed by a Newark resident accusing state representative Nancy Wagner of double-dipping, Associated Press reports. The suit was filed by Robert Reeder, who represented himself and taxpayers in a complaint accusing the representative of billing the Capital School District, where she is employed, for time spent on legislative duties. Judge Cooch ruled Mr. Reeder has no standing to sue because only a lawyer can bring that type of action. NRT TEXAS: Faces Deceptive Trade Practices Lawsuit in New Jersey ---------------------------------------------------------------- NRT Texas, Inc., trading as Coldwell Banker Residential Brokerage Co., is named defendant in a lawsuit filed in the U.S. District Court for the District of New Jersey over insurance charges it made to agents, the CourtHouse News Service reports. The class includes all persons who, at any time from Dec. 1, 2002, to the present, was or is a salesperson in Texas with Coldwell Banker and paid money to Coldwell Banker for E&O Insurance. Former agent Cynthia Beaird claims Coldwell charged its 1,500 agents in the Dallas-Fort Worth Metroplex $45 a month for errors and omissions insurance, but never obtained coverage for them. She claims Coldwell Banker and its corporate parent, NRT Texas, took the money from her and from other agents, but when she faced a lawsuit, it claimed she was not covered. Then, she says, the defendants said she was covered, but with a $1 million deductible. That's unreasonable and deceptive, she says. There are numerous questions of law and fact common to all class members which control this litigation and which predominate over any individual issues. Included within the common questions of law and fact are the following: -- whether by billing Ms. Beaird and the other class members for alleged E&O Insurance and accepting payment of money in satisfaction of such billings from Ms. Beaird and the other class members, Coldwell Banker entered into a contract with Ms. Beaird and the other class members under which Coldwell Banker agreed to obtain and continuously carry E&O Insurance with an industry standard deductible to defend and indemnify Ms. Beaird and all similarly situated salespersons against claims made by third parties against Coldwell Banker's salespersons in connection with their activities on behalf of Coldwell Banker; -- whether Coldwell Banker breached its contract with Ms. Beaird and the other class members by not maintaining E&O Insurance or by maintaining alleged E&O Insurance with a $1 million deductible; -- whether Ms. Beaird and the other class members are entitled to an award of restitution or damages in connection with Coldwell Banker's breach of the contract; -- whether Coldwell Banker committed a uniform written false, misleading or deceptive act or practice within the meaning of the Texas Deceptive Trade Practices Act, Texas Business & Commerce Code Section 1741 et. seq. misrepresenting to Ms. Beaird and other class members that it was providing E&O Insurance when it was not; -- whether Coldwell Banker materially concealed the actual facts concerning the lack of any E&O Insurance; -- whether Ms. Beaird and other class members are entitled to an award of actual damages and treble damages in connection with the DTPA; and -- whether Ms. Beaird and the other class members are entitled to recover attorneys' fees for breach of contract or violations of the DTPA. Plaintiffs demand that the court: -- certify the purported class; -- approve Ms. Beaird as the class representative and her attorneys as the attorneys for the class; -- award to plaintiff and the other class members damages from defendant, Coldwell Banker, including restitution, actual damages, treble damages, and pre-judgment interest to the extent allowed by law; -- award to plaintiff and other class members their reasonable attorneys' fees, expert fees and reimbursement of expenses; and -- award to plaintiff and other class members any prejudgment and post judgment interest, and such other relief as may be appropriate under the circumstances. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?16a3 The suit is "Beaird v. NRT Texas Inc., Case No. 2:06-cv-05794- FSH-PS," filed in the U.S. District Court for the District of New Jersey under Judge Faith S. Hochberg, with referral to Judge Patty Shwartz. Representing plaintiffs is Allyn Zissel Lite of Lite, De Palma, Greenberg & Rivas, LCC, Two Gateway Center, 12th Floor, Newark, NJ 07102-5003, Phone: (973) 623-3000, E-mail: alite@ldgrlaw.com. PILGRIM'S PRIDE: January Hearing Set in Tex. Poultry Owners Suit ---------------------------------------------------------------- A Jan. 24, 2007 certification hearing is set for the suit, "Wheeler, et al. v. Pilgrim's Pride Corp., et al.," which is pending in the U.S. District Court for the Eastern District of Texas. The complaint, filed on behalf of a class of chicken growers, initially alleged that the company violated the Packers and Stockyards Act (7 U.S.C. Section 192) and breached fiduciary duties allegedly owed to the plaintiff growers. Plaintiffs also brought individual actions under the Packers and Stockyards Act alleging common law fraud, negligence, breach of fiduciary duties and breach of contract. On March 14, 2003, the court entered an order dismissing the plaintiffs' claim of breach of fiduciary duty and negligence. The plaintiffs also dropped the charges of fraud prior to the entering of the order by the court. On Sept. 30, 2005, plaintiffs amended their lawsuit to join Tyson Foods, Inc. as a co-defendant. Two additional former chicken growers were also added as plaintiffs to the lawsuit. The amendment, which occurred 38 months after the lawsuit's filing, also results in a virtual re-writing of the allegations. Now plaintiffs contend that the company and Tyson are involved in a conspiracy to violate federal antitrust laws. Plaintiffs' initial allegations, although still contained in the amended lawsuit, are no longer the sole focus of the case. On Jan. 3, 2006, the court entered an order severing plaintiffs' Packers and Stockyards Act and antitrust claims. The court ordered that plaintiffs: * Cody Wheeler, * Don Davis, and * Davey Williams might proceed with their Packers and Stockyards Act claims as set forth in plaintiffs' Third Amended Complaint. The court also ordered that plaintiffs, Mr. Wheeler, Mr. Davis, Mr. Williams, Richard Grounds and Jerry Ward might proceed with their respective antitrust claims asserted against the company and Tyson in a separate cause of action. On March 6, 2006, the plaintiffs filed their motion for class certification in the original lawsuit. On June 2, 2006 the court entered an order withdrawing plaintiffs' motion for class certification and prohibiting the plaintiffs from filing any additional class-action claims against the company in the Packers and Stockyard Act lawsuit. Additionally, the two former growers that joined the lawsuit on Sept. 30, 2005 withdrew from the case. The Packers and Stockyard Act lawsuit is currently proceeding against the company with individual claims by the three original individual plaintiffs. An action "Cody Wheeler, et al. vs. Pilgrim's Pride Corp., et al." relating to the severed antitrust claims was filed against the company and Tyson on Jan. 3, 2006 by the three original plaintiffs and a former grower, both in their individual capacities and on behalf of a putative class of chicken growers. The court has entered a Docket Control Order and a class certification hearing is currently scheduled for Jan. 24, 2007. The proceedings are currently in the early stages of discovery. The suit is "Wheeler et al v. Pilgrim's Pride Corp et al., Case No. 5:06-cv-00004-DF," filed in the U.S. District Court for the Eastern District of Texas, Texarkana Division, under Judge David Folsom. Representing the plaintiffs is C. Paul Rogers, III of Locke Liddell & Sapp, 2200 Ross Ave, Suite 2200, Dallas, TX 75201- 6776, Phone: 214/740-8477, Fax: 214-740-8800, E-mail: cprogers@lockeliddell.com. Representing the company is Jennifer Parker Ainsworth, Wilson Sheehy Knowles Robertson & Cornelius PC, 909 ESE Loop 323, Suite 400, P.O. Box 7339, Tyler, TX 75711-7339, Phone: 903/509-5000, Fax: 9035095091, E-mail: jainsworth@wilsonlawfirm.com. RAVING BRANDS: Faces Alleged Racketeering Law Violations in Ga. --------------------------------------------------------------- A group of franchisees operating Mama Fu's units filed a class action in Georgia Superior Court of Fulton County over alleged fraudulent financial documentation, theft by falsification and theft by taking and concealments by: -- Raving Brands, the Asian fast-casual chain's parent company; -- Martin Sprock, the company's founder; and -- Daryl Dollinger, a principal shareholder. All these claims are considered racketeering under Georgia's Racketeer Influenced and Corrupt Organizations statute. Plaintiffs include: -- Sugarloaf Noodle House, -- Wong Fu's Noodle House, -- WE 3 Inc., -- Triad Restaurant Management, -- Central Florida Land Investments Inc. and -- H&J Goldt Corp. According to a report by Fast Casual, the suit alleges that Raving Brands received undisclosed kickbacks from suppliers, keeping plaintiffs from seeking more competitive pricing. Plaintiffs allege Mama Fu's misrepresented itself in its Uniform Franchise Offering Circular by claiming to have developed and perfected a system of opening and operating its noodle house restaurants, when in 2003, when Raving Brands was initially seeking franchisees, one company-owned store and no franchised Mama Fu's were yet open. "In the UFOC, Raving Brands said the system was perfected. Well, there never really was a Mama Fu's," said Bob Casey, the plaintiff's attorney. "My clients were looking at Raving Brands and seeing how successful Moe's was. And Raving Brands was saying Mama Fu's was going to be the next big thing." The franchisees are seeking undetermined damages. Raving Brands has until Jan. 8 to respond to the lawsuit. Plaintiffs' counsel is Bob Casey of Casey Gilson Leibel P.C., Atlanta, GA 30328, Phone: 770-512-0300, Fax: 770-512-0070, E- mail: cgl@caseygilson.com RHODE ISLAND: Expelled Narragansett Tribe Members Plan Lawsuit -------------------------------------------------------------- People removed from the Narragansett Tribal membership rolls are planning to file a class action against tribe chief Sachem Matthew Thomas, according to Chariho Times. Former tribe member Lawrence Ollivierre, who lives in South Kingstown, said the premise of the suit will be the deprivation of rights and benefits due to people listed on the 1983 base rolls of the Narragansetts. Membership in the tribe entitles members to healthcare and education benefits. In January 2005, the tribal council decided to have the screening committee investigate the 1880/1881 list of all tribal members and that committee found discrepancies in birth, death, and marriage certificates, hence the dropping of some names, according to Tribe councilor John Brown. Mr. Brown estimated that perhaps 150 to 190 people were taken out from the tribal rolls. Mr. Ollivierre disagrees with the use of the 1880 rolls, according to the report. He said that the base rolls for the tribe are from 1983, when the tribe received federal recognition. Due to the controversy, a group of disenfranchised Indians are working to form a new tribe of Northern Narragansetts. A legal defense fund is also being built up to hire an attorney for a class action against the tribe chief. SALESFORCE.COM: Calif. Consolidated Shareholder Suit Concluded -------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit entered an order of dismissal, dated Aug. 21, 2006, for the consolidated securities class action against salesforce.com, Inc., according to the company's Nov. 17, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. On July 26, 2004, a purported class action complaint, "Morrison v. Salesforce.Com, Inc. et al.," was filed in the U.S. District Court for the Northern District of California, against the company, its chief executive officer and its chief financial officer. The complaint alleged violations of Section 10(b) and Section 20(a) of the U.S. Securities Exchange Act of 1934, as amended (the 1934 Act), purportedly on behalf of all persons who purchased salesforce.com common stock between June 21, 2004 and July 21, 2004, inclusive. The claims were based upon allegations that defendants failed to disclose an allegedly declining trend in its revenues and earnings. Subsequently, four other substantially similar class action complaints were filed in the same district based upon the same facts and allegations, asserting claims under Section 10(b) and Section 20(a) of the 1934 Act and Section 11 and Section 15 of the U.S. Securities Act of 1933, as amended. The actions were later consolidated under the caption, "In re salesforce.com, inc. Securities Litigation, Case No. C-04-3009 JSW (N.D. Cal.)." On Dec. 22, 2004, the court appointed Chuo Zhu as lead plaintiff. On Feb. 22, 2005, lead plaintiff filed a consolidated and amended class action complaint. The consolidated and amended complaint alleged violations of Section 10(b) and Section 20(a) of the 1934 Act, purportedly on behalf of all persons who purchased salesforce.com common stock between June 23, 2004 and July 21, 2004, inclusive. As in the original complaints, the claims in the consolidated and amended complaint were based upon allegations that defendants failed to disclose an allegedly declining trend in its revenues and earnings. On April 14, 2005, defendants filed a motion to dismiss the CAC. On April 15, 2005, the court granted lead plaintiff leave to file an amended/superseding complaint. On April 22, 2005, lead plaintiff filed a Corrected and Superceding [sic] first amended class action complaint. As in the consolidated and amended complaint, the first amended complaint alleged violations of Section 10(b) and Section 20(a) of the 1934 Act, purportedly on behalf of all persons who purchased salesforce.com common stock between June 23, 2004 and July 21, 2004, inclusive. The claims in the first amended complaint were based upon allegations that defendants failed to disclose an internal forecast that earnings for fiscal year 2005 would decline from the prior fiscal year. On April 29, 2005, defendants filed a motion to dismiss the first and amended complaint. On Dec. 22, 2005, the court entered an order granting defendants' motion to dismiss, with prejudice, and directing the clerk to close the file. On Jan. 23, 2006, lead plaintiff filed a motion for leave to file a motion for reconsideration, as well as a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. On Jan. 26, 2006, the Ninth Circuit entered a time schedule order for the appeal, requiring, inter alia, lead plaintiff to file his opening brief on May 11, 2006, and defendants to file their responsive brief on June 12, 2006. On Jan. 27, 2006, defendants filed a motion to strike as untimely lead plaintiff's motion for leave to file a motion for reconsideration. On or about Feb. 2, 2006, lead plaintiff filed a motion with the Ninth Circuit requesting a stay of appellate proceedings pending the district court's determination of lead plaintiff's motion for leave and defendants' motion to strike. Defendants opposed that motion. On Feb. 9, 2006, the Ninth Circuit denied the lead plaintiff's motion for a stay of appellate proceedings, without prejudice to making a motion for limited remand. On March 1, 2006, the district court denied the lead plaintiff's motion for leave to file a motion for reconsideration and defendants' motion to strike on grounds of lack of jurisdiction. Also on March 1, 2006, the lead plaintiff filed a motion with the district court seeking certification for limited remand from the Ninth Circuit. Defendants opposed this motion, which was denied by the district court on April 3, 2006. The lead plaintiff filed his opening brief with the Ninth Circuit on May 25, 2006 and the company filed its answering brief on July 17, 2006. The lead plaintiff voluntarily dismissed his appeal and the Ninth Circuit entered an order of dismissal on Aug. 21, 2006. This matter is now concluded. The suit is "In re salesforce.com, inc. Securities Litigation, Case No. C-04-3009 JSW," filed in the U.S. District Court for the Northern District of California under Judge Jeffrey S. White. Representing the plaintiffs are: (1) Trevor Borum of Schiffrin & Barroway, LLP, 280 King of Prussia, LLP, Radnor, PA 19087, Phone: 610-667-7706; (2) Patrick J. Coughlin of Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, 100 Pine Street, Suite 2600, San Francisco, CA 94111, Phone: 415-288-4545, Fax: 415-288-4534, E-mail: patc@lerachlaw.com; and (3) Robert S. Green of Green Welling, LLP, 595 Market Street, Suite 2750, San Francisco, CA 94105, Phone: 415-477-6700, Fax: 415-477-6710, E-mail: RSG@CLASSCOUNSEL.COM. Representing the defendants is Boris Feldman of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA 94304-1050, 650-493-9300, Fax: 650-565-5100, E-mail: boris.feldman@wsgr.com. SCOTTISH RE: Faces Consolidated Securities Fraud Lawsuit in N.Y. ---------------------------------------------------------------- The U.S. District Court for the Southern District of New York has consolidated securities fraud suits filed against Scottish Re Group Ltd. On Aug. 2, putative class actions were filed against: -- the company, -- Glenn Schafer, the chairman of its board of directors; -- Dean E. Miller, chief financial officer; -- Scott E. Willkomm, former chief executive officer; and -- Seth Vance, former chief executive officer - North America. Between Aug. 7, 2006 and Oct. 2, 2006, seven additional related class actions were filed against the company, certain of its current and former officers and directors, and certain third parties. Each of the complaints allege that the defendants made materially false and misleading statements and/or omissions concerning the company's business and operations, thereby causing investors to purchase the company's securities at artificially inflated prices, in violation of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated under the 1934 Act. Two of the complaints also allege violations of Sections 11 and 15 of the Securities Act of 1933, related to a 2005 preferred stock offering. Each of the class actions filed seek an unspecified amount of damages, as well as other forms of relief. On Oct. 12, 2006, all of the class actions were consolidated. The company contests the allegations that have been asserted and plan to vigorously defend their interests in the actions. STONEPATH GROUP: Penn. Securities Fraud Lawsuit Under Appeal ------------------------------------------------------------ A consolidated securities fraud class action filed against Stonepath Group, Inc. in the U.S. Court for the Eastern District of Pennsylvania is on appeal before the U.S. Court of Appeals for the Third Circuit. The company was named as a defendant in eight purported class action complaints filed between Sept. 24, 2004 and Nov. 19, 2004. Also named as defendants in these lawsuits were officers Dennis L. Pelino and former officers Bohn H. Crain and Thomas L. Scully. These cases were consolidated for all purposes in that Court under the caption, "In re Stonepath Group, Inc. Securities Litigation, Civ. Action No. 04-4515." Lead plaintiff, Globis Capital Partners, LP, filed an amended complaint in February 2005, which was dismissed on April 3, 2006. Globis sought to represent a class of purchasers of the company's shares between March 29, 2002, and Sept. 20, 2004, and alleged claims for securities fraud under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934. These claims were based upon allegations that certain public statements made during the period from March 29, 2002 through Sept. 20, 2004 were materially false and misleading because they failed to disclose that the company's Domestic Services operations had improperly accounted for accrued purchased transportation costs. Plaintiffs sought compensatory damages, attorneys' fees and costs, and further relief and filed a notice of appeal in the U.S. Court of Appeals for the Third Circuit on May 1, 2006. Briefs for the appellants and appellees were filed on September and October 2006, according to the company's Nov. 14, 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 Stonepath Group, Inc. Securities Litigation, Case No. 2:04-cv-04515-SD," filed in the U.S. District Court for the Eastern District of Pennsylvania under Judge Stewart Dalzell. Representing the plaintiffs are: (1) Stephanie M. Beige, U. Seth Ottensoser, Bernstein Liebhard & Lifshitz, LLP 10 East 40th Street New York, NY 10016 Phone: 212-779-1414; (2) Deborah R. Gross, Susan R. Gross, Law Offices Bernard M. Gross, PC 100 Penn Square West, Juniper & Market St. John Wanamaker Bldg Suite 450, Philadelphia PA 19107 Phone: 215-561-3600 Fax: 215-561-3000 E-mail: debbie@bernardmgross.com or susang@bernardmgross.com; and (3) Timothy J. Macfall, Law Offices of Curtis v. Trinko 310 Madison Avenue, 14th Floor, New York NY 10017. Representing the company are Kendra Lee Baisinger, Steven E. Bizar, Thomas P. Manning and, Howard D. Scher of Buchanan Ingersoll, PC, 1835 Market St., 14th Floor, Philadelphia, PA 19103, Phone: 215-665-3878, E-mail: baisingerkl@bipc.com, bizarse@bipc.com, manningtp@bipc.com and scherhd@bipc.com. UNIVERSAL AMERICAN: Seeks to Dismiss N.Y. Stock Fraud Lawsuit ------------------------------------------------------------- Arguments on a motion to dismiss a consolidated securities class action filed against Universal American Financial Corp. in U.S. District Court for the Southern District of New York will be presented on Dec. 13. Several actions containing related factual allegations were filed against the company and certain of its officers and directors between Nov. 22, 2005 and Feb. 2, 2006. Plaintiffs voluntarily withdrew one of these actions, while some of the remaining ones were later consolidated. In the first action, Robert Kemp filed a purported class action complaint on Nov. 22, 2005, in the U.S. District Court for the Southern District of New York. "Kemp" is a purported class action asserted on behalf of those shareholders of the company who acquired the company's common stock between Feb. 16, 2005 and Oct. 28, 2005. Plaintiffs in the "Kemp" seek unspecified damages under Section 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 based upon allegedly false statements by the company and Richard A. Barasch, Robert A. Waegelein and Gary W. Bryant in press releases, financial statements and analyst conferences during the class period. Another purported class action was filed by Western Trust Laborers-Employers Pension Trust, a putative class member in the Kemp Action who had filed a motion to be named as lead plaintiff in that action, on Feb. 2, 2006, in the U.S. District Court for the Southern District of New York. The factual and legal allegations in the Western Trust Action, which also purports to be a class action, are similar to those in the Kemp Action. By order dated May 1, 2006, the Kemp Action and the Western Trust Action were consolidated, and Western Washington Laborers- Employers Pension Trust was named lead plaintiff. On June 26, 2006, a consolidated amended class action complaint was filed in the Kemp Action), which will now subsume the Western Trust Action. The Amended Complaint asserts the same legal claims as in the original Kemp and Western Trust Actions, but also names an additional defendant and includes additional allegations. The additional defendant is William E. Wehner, a former director and former president of Pennsylvania Life Insurance Co., a subsidiary of the company. The Amended Complaint alleges that Mr. Wehner is liable for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on grounds similar to those asserted against the Officer Defendants. The additional assertions are supposedly based in part upon information from six former employees and agents of the company and its subsidiaries concerning, among other things, the company's medical loss ratio. Like the original complaints in the Kemp and Western Trust Actions, the Amended Complaint seeks damages in an unspecified amount. On Aug. 14, 2006, defendants served a motion to dismiss the Amended Complaint in the Kemp Action. The lead plaintiff served opposition papers to the motion on Oct. 17, 2006. Defendants motion to dismiss the complaint will be argued before the Court on Dec. 13, 2006. The first identified complaint is "Kemp v. Universal American Financial Corp., et al., Case No. 1:05-cv-09883-JFK," filed in the U.S. District Court for the Southern District of New York under Judge John F. Keenan. Representing the plaintiffs are Steven G. Schulman, Peter Edward Seidman and David Avi Rosenfeld of Milberg Weiss Bershad & Schulman, LLP, (NYC), One Pennsylvania Plaza, New York, NY 10119, Phone: 212-946-9356, (212) 613-5625 and 631-367-7100 Fax: 212-273-4406, (212) 868-1229 and 631-367-1173, E-mail: sschulman@milbergweiss.com, pseidman@milberg.com and drosenfeld@lerachlaw.com. Representing the defendants are Joseph Francis Donley and Andrew J. Levander of Swidler Berlin Shereff Friedman, LLP, 405 Lexington Avenue, New York, NY 10174, Phone: (212) 891-9524 and (212) 698-3500, Fax: (212) 891-9598 and (212) 698-3500, E-mail: joseph.donley@dechert.com and andrew.levander@dechert.com. UNIVERSAL AMERICAN: Faces Four Suits Over Acquisition Proposal -------------------------------------------------------------- Universal American Financial Corp. is facing four lawsuits in New York state courts in relation to the acquisition proposal received by the company on Oct. 24, 2006, from members of management led by: -- Richard A. Barasch, chairman and chief executive officer; and -- private equity firms: * Capital Z Partners, Ltd., * Lee Equity Partners, LLC, * Perry Capital, LLC, and * Welsh, Carson, Anderson & Stowe X, L.P. to acquire all of the company's publicly held common stock for $18.15 per share in cash. Two of these actions are pending in the Supreme Court for New York County: -- "Stellato v. Universal American Financial Corp., et al. (06-116006);" and -- "Green Meadows Partners LLP v. Barasch, et al. (603724- 06)." The Stellato action names as defendants the company, Mr. Barasch and the other sponsors of the offer, including Capital Z, as well as eight other members of the company's board of directors. Stellato alleges that the offer was made at an "unfair price, under unfair terms and through improper means." The action seeks an injunction preventing the offer from being consummated, or in the alternative, monetary damages. The Green Meadows II action names the company, Mr. Barasch and directors Bradley Cooper, Eric Leathers and Robert Spass as defendants. The complaint alleges that these defendants dominate the board of directors of the company, and have breached their fiduciary duties by, among other things, making a buyout proposal that "fails to take into account the value of UHCO, its improving financial results and its value in comparison to other similar companies." The action seeks, among other things, an injunction preventing defendants from carrying out an unfair transaction, and monetary damages. A third and a fourth action pertaining to the Offer are pending in the Supreme Court for Westchester County and are known as: * "Conolly v. Universal American Financial Corp., et al.," and * "McCormack v. Averill et al.(06-21365)." The Conolly action names as defendants Mr. Barasch and other sponsors of the Offer, including Capital Z, as well as the company and all of its directors. The complaint alleges that the shareholder agreement to which Mr. Barasch and Capital Z are parties "deter[s] potential bids for the company at a premium to the presently offered price," and that the sponsors of the offer (excluding Mr. Barasch) are members of a "club" of elite private equity funds under investigation for violations of the anti-trust laws that have resulted in "driv[ing] down the prices of potential acquisition targets." The Conolly action further asserts that the director defendants have breached their fiduciary duties to maximize shareholder value by, among other things, failing immediately to reject the Offer. The complaint seeks an injunction prohibiting consummation of the Offer, or in the alternative, monetary damages. The complaint in McCormack names as defendants the company and all of its directors, and alleges, among other things, that the Offer is unfair and grossly inadequate. The complaint also asserts that the buyout offer is "the product of unfair dealing" by the management of the company and its largest shareholder, Capital Z. The action seeks an injunction ordering the directors to fulfill their fiduciary duties, and/or enjoining any transaction based upon the Offer, as well as monetary damages. USI HOLDINGS: Seeks Nixing of Insurance Brokerage Antitrust Suit ---------------------------------------------------------------- Plaintiffs in the multidistrict litigation, "In Re Insurance Brokerage Antitrust Litigation," which is pending in the U.S. District Court for the District of New Jersey against USI Holdings Corp. and several other defendants, have yet to set the amounts being sought in the case. The company was named as one of more than 30 insurance firms and insurance brokerage defendants in an amended complaint filed in the U.S. District Court Southern District of New York in a putative class action, "Opticare Health Systems, Inc. v. Marsh & McLennan Companies, Inc., et al., Civil Action No. CV 06954 (DC)." The amended complaint focuses on the payment of contingent commissions by insurers to insurance brokers who sell their insurance and alleged bid rigging in the setting of insurance premium levels. They purport to allege violations of numerous laws including the Racketeer Influenced and Corrupt Organizations (RICO) and federal restraint of trade statutes, state restraint of trade, unfair and deceptive practices statutes and state breach of fiduciary duty and unjust enrichment laws. Plaintiffs, thus seek class certification, treble damages for the alleged injury suffered by the putative plaintiff class and other damages. The company was also named as a defendant in "copycat" or tag- along lawsuits in the U.S. District Court for the Northern District of Illinois: -- "Lewis v. Marsh & McLennan Companies, Inc., et al., 04 C 7847," and -- "Preuss v. Marsh & McLennan Companies, Inc., et al., 04 C 7853." In April 2005, the company was served in another copycat class action, captioned Palm Tree Computers Systems, Inc. et al. v. Ace, USA et al., and filed in the Circuit Court for the Eighteenth Judicial Circuit in and for Seminole County, Florida, Civil Division, Class Representation, No. 05-CA-373-16-W and later removed to the U.S. District Court for the Middle District of Florida, Case No. 6:05-CV-422-2ZKRS. A similar copycat class action complaint captioned, "Bensley Construction, Inc. v. Marsh & McLennan Companies, Inc. et al., No. ESCV2005-0277 (Essex Superior Court, Massachusetts) was served upon the company in May 2005. This action was removed to the U.S. District Court for the District of Massachusetts. Like the Opticare complaint, these complaints contain no particularized allegations of wrongdoing on the company's part. In February 2005, the Judicial Panel on Multidistrict Litigation transferred the actions then pending to the U.S. District Court for the District of New Jersey for coordinated or consolidated pretrial proceedings. Subsequently, the Judicial Panel on Multidistrict Litigation also transferred the Palm Tree and Bensley lawsuits to the same court for the same purposes. Recently, the plaintiff in Bensley withdrew its claims. On Aug. 1, 2005, in the multidistrict litigation pending in the U.S. District Court for the District of New Jersey, the plaintiffs filed a first consolidated amended commercial class action complaint and a first consolidated amended employee benefits class action complaint (Consolidated MDL Complaints) that purport to allege claims against the company based upon RICO, federal and state antitrust laws, breach of fiduciary duty and aiding and abetting breaches of fiduciary duty and unjust enrichment. The Consolidated MDL Complaints, like the predecessor complaints, focus the allegations of fact upon defendants other than the company. The company has moved to dismiss the Consolidated MDL Complaints and has also opposed plaintiffs' motions for class certification. Recently, in response to the court's directive that the plaintiffs further substantiate their claims in writing, they submitted more particularized allegations against the various defendants. None of the plaintiffs in any of the actions has set forth the amounts being sought in the particular actions, 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 is "In Re Insurance Brokerage Antitrust Litigation, Case No. 2:05-cv-01168-FSH," filed in the U.S. District Court in New Jersey under Judge Faith S. Hochberg. Representing the plaintiffs are: (1) Joseph P. Guglielmo and Edith M. Kallas of Milberg Weiss Bershad & Schulman, LLP, (NYC) One Pennsylvania Plaza, New York, NY 10119, Phone: 212-594-5300; and (2) Mark C. Rifkin of Wolf Haldenstein Adler Freeman & Herz, LLP, 270 Madison Avenue, New York, NY 10016 Phone: 212 545-4600 E-mail: rifkin@whafh.com. VONAGE AMERICA: Faces Suit Over Mobile Service Deceptive Claims --------------------------------------------------------------- Vonage America is facing a class action complaint in the U.S. District Court for the District of New Jersey over claims that the company deceives its customers and continues to charge them after they cancel their cell phone service, the CourtHouse News reports. The plaintiffs, one from Washington and one from Colorado, claim Vonage makes deceptive claims for services it knows it does not deliver. They claim the company egregiously refuses to honor customers' requests to cancel service. Further, they claim Vonage admits it has more than 2 percent monthly churn of its 1.9 million subscribers, so it subjects more than 38,000 people a month to its unjust billings. They complain of dropped calls, calls that fail to connect, poor quality, and inability to send faxes as promised. Plaintiffs, on behalf of themselves and the members of the classes, demand judgment as follows: (1) directing that Vonage cease billing consumers for Vonage services after they have contacted Vonage to cancel the service; (2) declaring that Vonage is in breach of its own "Terms of Service" by failing to allow consumers to timely cancel their Vonage service; (3) declaring that Vonage's advertising of its services and the terms of its services are deceptive and misleading, and directing that Vonage establish a fund to allow reimbursement of fees paid by deceived Vonage customers; (4) declaring that all consumers who cancelled their Vonage service within 30 days after the actual date their service was operational are eligible for a refund of their money; (5) directing that Vonage provide, upon request, disgorment to Vonage customers for charges incurred after the customers requested cancellation of their service; (6) directing that Vonage provide upon request, disgorgement of all charges (including any "disconnection fees") incurred by the customer if the customer requested cancellation within 30 days after the date their service became operational; (7) directing that Vonage permit customers to cancel their service via a one-step process on Vonage's website; (8) declaring that the arbitration agreement and other terms found in Vongae's Terms and Conditions is unconscionable and unenforceable; and (9) directing Vonage to give notice to members of the class. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?16a0 The suit is Nahay et. al v. Vonage America, Inc. et al., Case No. 3:06-cv-05801-FLW-TJB," filed in the U.S. District Court for the District of New Jersey under Judge Freda L. Wolfson, with referral to Judge Tonianne J. Bongiovanni. Representing plaintiffs is David R. Buchanan of Seeger Weiss LLP, 550 Broad Street, Suite 920, Newark, NJ 07102, Phone: (973) 639-9100, E-mail: dbuchanan@seegerweiss.com. WAVE SYSTEMS: Awaits Court Approval of $1.75M Suit Settlement ------------------------------------------------------------- The U.S. District Court for the District of Massachusetts has yet to grant final approval to the $1.75 million settlement of all claims asserted by plaintiffs in the consolidated securities class action filed against Wave Systems Corp., its chief executive officer and its chief financial officer, according to the company's Nov. 17, 2006 Form 10-Q filing with the U.S. Securities and Exchange Commission for the period ended Sept. 30, 2006. A consolidated amended class action complaint is pending in the U.S. District Court for the District of Massachusetts, naming Wave, its chief executive officer and its chief financial officer as defendants. The suit is "Brumbaugh et al. v. Wave Systems Corp. et al., Civ. No. 04-30022 (D. Mass.)(MAP)." The purported class action has been filed by alleged purchasers of Wave's Class A Common Stock during the purported class period July 31, 2003 through Feb. 2, 2004. The complaint claims that Wave and the named individuals violated Section 10(b) of the Securities Exchange Act of 1934 (the "1934 Act"), Rule 10(b)-5 promulgated thereunder and Section 20(a) of the 1934 Act by publicly disseminating materially false and misleading statements, relating to Wave's agreements with Intel and IBM. The complaint did not specify the amount of alleged damages plaintiffs seek to recover. In January 2006, the Court granted in part and denied in part defendants' motion to dismiss. The Court dismissed two but let stand seven alleged misrepresentations or omissions. This is not a finding of fault or liability, it is a decision not entirely to dismiss plaintiffs' pleading. Without admitting liability, the defendants recently reached a mediated settlement in principle of all claims asserted by the plaintiffs. Wave's insurer has agreed to pay the plaintiffs a total of $1,750,000 in exchange for the dismissal with prejudice and release of the claims against all defendants. The suit is "Brumbaugh v. Wave Systems Corp. et al., Case No. 3:04-cv-30022-MAP," filed in the U.S. District Court for the District of Massachusetts under Judge Michael A. Ponsor. Representing the plaintiffs are: (1) Stuart L. Berman and Darren Check of Schiffrin & Barroway LLP, Three Bala Plaza East, Suite 400, Bala Cynwyd, PA 19004, Phone: 610-667-7706; (2) David Pastor, Gilman and Pastor, LLP, 60 State Street, 37th Floor, Boston, MA 02109, Phone: 617-742-9700, Fax: 617-742-9701, E-mail: dpastor@gilmanpastor.com; (3) John C. Martland, Martland & Brooks LLP, Stonehill Corporate Center, Suite 500, 999 Broadway, Saugus, MA 01906, Phone: 617-742-9700, Fax: 617-742-9701, E-mail: jcmartland@gilmanpastor.com; and (4) Karen Reilly and Marc I. Willner, Schiffrin & Barroway, LLP, 280 King of Prussia Road, Radnor, PA 19087, Phone: 610-667-7706, Fax: 610-667-7056. Representing the company are: (i) Michael D. Blanchard and Robert A. Buhlman of Bingham McCutchen LLP - Hartford, One State Street, Hartford, CT 06103, Phone: 860-240-2700, Fax: 860-240-2818, E- mail: michael.blanchard@bingham.com or robert.buhlman@bingham.com; and (ii) Eunice E. Lee and Raquel J. Webster, Bingham McCutchen LLP, 150 Federal Street, Boston, MA 02110, Phone: 617- 951-8000, Fax: 617-951-8736, E-mail: eunice.lee@bingham.com or raquel.webster@bingham.com. XETHANOL CORP: Lead Plaintiff Appointment Deadline Set Dec. 26 -------------------------------------------------------------- Kahn Gauthier Swick, LLC announced that shareholders have until Dec. 26, 2006 to move the court to be appointed lead plaintiff in a class action filed on behalf of shareholders who purchased, exchanged or otherwise acquired the common stock of Xethanol Corp. between Jan. 31, 2006 and Aug. 8, 2006. KGS filed a class action the U.S. District Court for the Southern District of New York against Xethanol 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, Oct. 25, 2006). Throughout the class period, Xethanol repeatedly assured investors that it could sustain itself on revenue from corn ethanol production while successfully commercializing biomass ethanol production. In fact, however, as investors have now learned, Xethanol was suffering from a host of undisclosed adverse factors that negatively impacted its business and it appears that they do not have the ability to commercialize biomass ethanol in the foreseeable near term. As investors learned the truth about Xethanol, shares of the company declined precipitously -- falling from a Class Period high of over $15 per share in April 2006, to less than $4.00 per share by the end of the Class Period. While shares of Xethanol were artificially inflated during the Class Period, certain insiders were able to liquidate millions of dollars of their personally held Xethanol shares. Particularly, the complaint alleges that Xethanol: -- misrepresented management's experience and standard of ethics; -- omitted disclosing a series of related party transactions and association with investors who had alarming records of stock fraud and related shareholder abuses; -- materially overstated the company's profitability by under-reporting the true costs associated with completing a biomass to ethanol production facility, and by failing to make proper adjustments to the company's financial reports; -- lacked any reasonable basis to assert that the company was operating according to plan or could achieve the near-term commercialization of biomass ethanol production, or achieve the guidance sponsored and/or endorsed by the company; and -- caused plaintiffs and other Class members to purchase Xethanol common stock at artificially inflated prices. For more details, contact Partner Lewis Kahn of KGS, Phone: 1- 866-467-1400, ext., 100, or 504-648-1850, E-mail: lewis.kahn@kglg.com. New Securities Fraud Cases BODISEN TECHNOLOGY: Murray, Frank Files Securities Suit in N.Y. --------------------------------------------------------------- Murray, Frank & Sailer, LLP, filed a class action on behalf of shareholders who purchased or otherwise acquired the securities of Bodisen Biotech, Inc. between Aug. 26, 2005 and Nov. 14, 2006. The complaint charges Bodisen, and certain of the company's executive officers with violations of federal securities laws. Among other things, plaintiff claims that defendants' material omissions and dissemination of materially false and misleading statements concerning Bodisen's business and operations caused the company's stock price to become artificially inflated, inflicting damages on investors. Bodisen describes itself as primarily engaged in the development, manufacture and sales of organic fertilizers and pesticides in the People's Republic of China. The complaint alleges that during the class period defendants failed to disclose material information concerning the company's relationships with Benjamin Wey, NYGG and related companies. On Nov. 12, 2006, Bodisen issued a press release stating, among other things, that it had received a Deficiency Letter from the American Stock Exchange (AMEX), concerning Bodisen's relationship with NYGG, stating that "AMEX believes that the company made insufficient or inaccurate disclosure in its public filings with regard to its relationship with, and payments to, a consultancy firm and its affiliates both prior to and subsequent to its listing on the AMEX. Additionally, in the context of the company's relationship with the consultancy firm, AMEX expressed concern that the company has internal control issues related to its accounting and financial reporting obligations." The Nov. 12, 2006, press release followed news reports, which had raised concerns about the company's relationships with Benjamin Wey and NYGG and certain of its affiliated entities. Interested parties may no later than Jan. 15, 2007, move the court for appointed as a lead plaintiff. For more details, contact Bradley P. Dyer of Murray, Frank & Sailer, LLP, Phone: (800) 497-8076 and (212) 682-1818, Fax: (212) 682-1892, Web site: http://www.murrayfrank.com. HANSEN NATURAL: Schiffrin & Barroway Files Calif. Stock Suit ------------------------------------------------------------ The law firm of Schiffrin & Barroway, LLP, filed a class action in the U.S. District Court for the Central District of California on behalf of all common stock purchasers of Hansen Natural Corp. from March 9, 2006 through Nov. 9, 2006. The complaint charges Hansen and certain of its officers and directors with violations of the U.S. Securities Exchange Act of 1934. More specifically, the complaint alleges that the company failed to disclose and misrepresented the following material adverse facts, which were known to defendants or recklessly disregarded by them: -- that the company purposely concealed the true dates of stock option grants; -- that the company's financial statements were presented in violation of Generally Accepted Accounting Principles; -- that the company lacked the necessary personnel and internal controls to issue accurate financial reports and projections; and -- that, as a result of the foregoing, the company's financial results were materially overstated at all relevant times. On Oct. 31, 2006, Hansen shocked investors when the company filed a Form 8-K with the U.S. Securities and Exchange Commission in which the company announced that it had received a letter of informal inquiry from the Staff of the Pacific Regional Office of the SEC requesting certain documents relating to the company's past stock option grants and practices. On this news, shares of Hansen dropped $1.70, or 5.4 percent, to close, on Nov. 1, 2006, at $30.05 per share. On Nov. 6, 2006, before the market opened, Hansen announced that the company had appointed a special committee to undertake a special investigation of certain option grants and reported that the company would possibly be unable to timely announce its financial results for the third quarter of 2006. On this news, shares of the company's stock sank an additional $2.42, or 8.0 percent, to close, on Nov. 6, 2006, at $27.86 per share, on heavy trading volume. On Nov. 9, 2006, before the market opened, Hansen announced preliminary financial results for the third quarter of 2006, ended Oct. 31, 2006, and reported that, due to its ongoing investigation into past stock option grants, the company would be unable to timely file its quarterly report with the SEC. On this news, shares of Hansen shed an additional $4.14, or 14.3 percent, to close, on Nov. 9, 2006, at $24.88 per share, on unusually heavy trading volume. Interested parties may move the court no later than Jan. 29, 2007, for appointment as lead plaintiff of the class. For more details, contact Darren J. Check, Esq. or Richard A. Maniskas, Esq. of Schiffrin & Barroway, LLP, Phone: 1-888-299- 7706 or 1-610-667-7706, E-mail: info@sbclasslaw.com, Web site: http://www.sbclasslaw.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. 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