/raid1/www/Hosts/bankrupt/CAR_Public/061213.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, December 13, 2006, Vol. 8, No. 247
Headlines
ADVO INC: Faces Several Securities Fraud Lawsuits in Conn.
ALPEK SA: Activist Group Gets $800T from "Benson" Settlement
ASIAINFO HOLDINGS: Awaits Approval of IPO Lawsuit Settlement
BARCLAYS PLC: "Newby" Plaintiffs Allowed to Replead Complaints
BELK INC: To Get $1.7M Windfall from Antitrust Suit Settlement
BJ'S WHOLESALE: Receives $2.9M from Antitrust Suit Settlement
BOMBARDIER CAPITAL: Court to Review Ruling in N.Y. Stock Suit
BROWN-FORMAN: Suits Over Illegal Alcohol Sales Remain on Appeal
CALIFORNIA: LA Cops, Deputies Face Suit Over Wrongful Arrests
CHEESECAKE FACTORY: Accused of Breaching N.C. "Tip Pooling" Law
CHEESECAKE FACTORY: Faces Sex Discrimination Lawsuit in Ohio
CHEESECAKE FACTORY: Hourly Employees File FLSA Violations Suit
CIB MARINE: Suit by Employee Over Share Option Losses Stayed
CIB MARINE: Wis. Court Refuses to Dismiss Securities Fraud Suit
DEL MONTE: Settles N.J. Fraud Suit Over StarKist Tuna Labeling
DYNAMEX INC: Class Status Sought in Calif. Overtime Lawsuit
ENRON CORP: Appeals Court to Revisit Stock Suit Certification
ENRON CORP: Stock Suit Plaintiffs Want to Drop Vinson from Case
FLEETWOOD ENTERPRISES: Stay on "Brodhead" Consumer Suit Remains
GENESCO INC: Reaches Settlement for Calif. Overtime Wage Suits
HERBALIFE INT'L: Continues to Face Unfair Trade Practices Suit
HERBALIFE INT'L: Continues to Face W.Va. Privacy Violation Suit
JOS. A. BANK: Faces Consolidated Securities Fraud Suit in Md.
KRISP-PAK: Recalls Fresh Cut Fruit Over Possible Contamination
LOUISIANA: Victims of Toxic Fumes at NISH Urged to Join Lawsuit
MAY DEPARTMENT: Mo. Court Mulls "Decristofaro" Dismissal Motion
MTD SOUTHWEST: Recalls Chain Saws to Replace Defective Handle
NAVISITE INC: "Recovery Deficit" Terms in IPO Suit Deal Changed
NAVISITE INC: Appeals Court Vacates IPO Sub-Case Certification
NEWS CORP: Del. Court Dismisses Suit Over Investor Rights Plan
NINTENDO OF AMERICA: Sued Over Defective Wii Game Wrist Straps
NVIDIA CORP: Faces Consumer, Antitrust Lawsuits in Calif.
PERRIGO CO: Settles Lawsuits Over ibuprofen Deal with Alpharma
REFCO INC: Court Disagrees with Shareholders' Prejudice Claim
SHARMAN NETWORKS: Ill. Consumer Files Fraud Lawsuit Over KaZaa
TRANE CO: Recalls Air Conditioners to Repair Power Connectors
ZALE CORP: Securities Fraud Lawsuits Consolidated in Tex. Court
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
* Online Teleconferences
New Securities Fraud Cases
TIER TECHNOLOGIES: Federman & Sherwood Reports Stock Suit Filing
TOP TANKERS: Kahn Gauthier Files Securities Fraud Suit in N.Y.
WARNER CHILCOTT: Klafter & Olsen Files Securities Suit in N.Y.
*********
ADVO INC: Faces Several Securities Fraud Lawsuits in Conn.
----------------------------------------------------------
A class has yet to be certified in securities fraud lawsuits
filed against ADVO, Inc. in the U.S. District Court for the
District of Connecticut.
In September 2006, several class actions were filed against the
company by certain stockholders seeking to certify a class of
all persons who purchased ADVO stock between July 6, 2006 and
Aug. 30, 2006.
These complaints generally allege the company violated federal
securities law by issuing a series of materially false and
misleading statements concerning the company's business and
financial results in connection with the proposed merger with
Valassis Communications, Inc. and, as a result, investors
allegedly believed the acquisition would occur causing the
company's stock price to trade at artificially inflated prices.
No class has been certified to date on any of these suits,
according to the company's Dec. 7, 2006 Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Sept. 30, 2006.
The first identified complaint is "Robert Kelleher, et al. v.
ADVO, Inc., et al., Case No. 06-CV-01422," filed in the U.S.
District Court for the District of Connecticut.
Plaintiff Firms in this or similar case:
(1) Brower Piven, The World Trade Center-Baltimore, 401
East Pratt Street, Suite 2525, Baltimore, Maryland
21202, Phone: 410/986-0036, E-mail:
hoffman@browerpiven.com;
(2) Dyer & Shuman, LLP, 801 East 17th Avenue, Denver, CO,
80218-1417, Phone: 303.861.3003, Fax: 800.711.6483, E-
mail: info@dyershuman.com;
(3) Lerach Coughlin Stoia Geller Rudman & Robbins LLP (San
Diego), 655 West Broadway, Suite 1900, San Diego, CA,
92101, Phone: 619.231.1058, Fax: 619.231.7423;
(4) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com; and
(5) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com.
ALPEK SA: Activist Group Gets $800T from "Benson" Settlement
------------------------------------------------------------
The Friends of the Smokies received a windfall of nearly
$800,000 due to the settlement of a price-fixing class action
against Alpek S.A., WATE.com reports.
A check for $783,906.78 was delivered to the non-profit
organization that helps preserve and protect Great Smoky
Mountains National Park.
The settlement comes from a price-fixing lawsuit, "Benson et al.
vs. Alpek S.A. de C.V., et al.," which was filed in Sevier
County Circuit Court against the polyester fiber industry.
Earlier this year, the parties agreed to a settlement that
included the gift to the Friends of the Smokies. The gift was
made because the parties in the lawsuit determined that finding
individuals affected in the alleged price-fixing scheme would be
impractical.
In a decision by Judge Richard Vance, the funds were to be
disbursed for the public benefit, according to plaintiffs'
attorney, W. Gordon Ball.
According to Friends of the Smokies President Jim Hart, the
organization will invest the contribution in a long-term
endowment fund.
The organization says it has raised more than $17 million to
help support conservation, education, and recreation in the
Smokies since 1973.
For more details, contact Gordon Ball, 550 W. Main St., Suite
601, Knoxville, TN 37902, Phone: (865) 525-7028, Fax: (865) 525-
4679.
ASIAINFO HOLDINGS: Awaits Approval of IPO Lawsuit Settlement
------------------------------------------------------------
AsiaInfo Holdings, Inc. awaits final approval of the settlement
of the Initial Public Offering Securities Litigation pending
against hundreds of companies in the U.S. District Court for the
Southern District of New York.
On Dec. 4, 2001, a securities class action was filed against the
company, certain of its current officers and directors and the
underwriters of the company's initial public offering.
The lawsuit alleged violations of the federal securities laws
and was docketed in the U.S. District Court for the Southern
District of New York, as "Hassan v. AsiaInfo Holdings, Inc., et
al."
The lawsuit alleged, among other things, that the underwriters
of the company's IPO improperly required their customers to pay
the underwriters excessive commissions and to agree to buy
additional shares of the company's common stock in the
aftermarket as conditions to their purchasing shares in the
company's IPO.
The lawsuit further claimed that these supposed practices of the
underwriters should have been disclosed in the company's IPO
prospectus and registration statement.
For purposes of case management, the court consolidated this
case with lawsuits brought against approximately 300 other
companies, all alleging similar practices by the underwriters of
the companies' IPOs.
In June 2003, the company elected to participate in a proposed
settlement agreement with the plaintiffs in this litigation. If
ultimately approved by the court, this proposed settlement would
result in a dismissal, with prejudice, of all claims in the
litigation against the company and against any of the other
issuer defendants who elect to participate in the proposed
settlement, together with the current or former officers and
directors of participating issuers who were named as individual
defendants.
The proposed settlement does not provide for the resolution of
any claims against the underwriter defendants, and the
litigation against those defendants is continuing. The proposed
settlement provides that the class members in the class actions.
If recoveries totaling $1 billion or more are obtained by the
class members from the underwriter defendants, however, the
monetary obligations to the class members under the proposed
settlement will be satisfied.
In addition, all participating issuer defendants will be
required to assign to the class members certain claims that the
company may have against the underwriters.
The plaintiffs filed a motion asking the court to give its
preliminary approval to the form of the documents, including the
notice of the settlement to be sent to class members.
On Sept. 1, 2005, after considering the underwriter defendants'
objections, the court issued an order preliminarily approving
the proposed settlement with the issuers in all respects.
The proposed settlement contemplates that any amounts necessary
to fund the settlement or settlement-related expenses would come
from participating issuers' directors and officers' liability
insurance policy proceeds as opposed to funds of the
participating issuer defendants themselves.
A participating issuer defendant could be required to contribute
to the costs of the settlement if that issuer's insurance
coverage were insufficient to pay that issuer's allocable share
of the settlement costs.
The company expects that its insurance proceeds will be
sufficient for these purposes and that it will not otherwise be
required to contribute to the proposed settlement.
The suit is "In re AsiaInfo Holdings, Inc. Initial Public
Offering Securities Litigation, Case No. 1:01-cv-10901," related
to "In re Initial Public Offering Securities Litigation, No. 21
MC 92 (SAS)," filed in the U.S. District Court for the Southern
District of New York under Judge Shira A. Scheindlin.
Representing the plaintiffs are:
(1) Stanley D Bernstein of Bernstein Liebhard & Lifshitz,
LLP, 10 East 40th Street, New York, NY 10016, Phone:
(212) 779-1414, Fax: (212) 779-3218, E-mail:
bernstein@bernlieb.com;
(2) Jules Brody of Stull Stull & Brody, 6 East 45th Street,
5th Floor, New York, NY 10017, Phone: (212) 687-7230,
Fax: (212) 490-2022;
(3) Frederick Taylor Isquith, Sr. of Wolf, Haldenstein,
Adler, Freeman & Herz, L.L.P., 270 Madison Avenue, New
York, NY 10016, Phone: (212) 545-4600, E-mail:
isquith@whafh.com; and
(4) Saul Roffe of Sirota & Sirota, L.L.P., 110 Wall Street,
New York, NY 10005, Phone: (212) 425-9055.
For more details, visit http://www.iposecuritieslitigation.com/.
BARCLAYS PLC: "Newby" Plaintiffs Allowed to Replead Complaints
--------------------------------------------------------------
U.S. District Judge Melinda Harmon allowed Enron Corp. investors
to file an amended complaint that included more details about
the business relationship of the company with Barclays Bank plc,
Reuters reports.
The judge's order effectively reinstated Barclays as a defendant
in the case, Bill Lerach, who represents the plaintiffs, told
Reuters. Barclays and Barclays Capital Inc. was dismissed from
the case in July.
The suit "Newby, et al. v. Enron Corp., et al.," was filed Oct.
22, 2001. The complaint alleges, among others, that several
companies helped Enron misrepresent, its earnings and revenues
in the fourth quarter of 1999.
A trial is scheduled for April 2007.
Other banks named in the lawsuit include Merrill Lynch, Credit
Suisse Group, Toronto Dominion Bank, Royal Bank of Canada and
Royal Bank of Scotland Plc.
On Dec. 2, 2001, Enron filed for Chapter 11 bankruptcy. Judge
Gonzalez confirmed the company's Modified Fifth Amended Plan on
July 15, 2004, and numerous appeals followed. The Debtors'
confirmed chapter 11 Plan took effect on Nov. 17, 2004.
The case is "Newby, et al. v. Enron Corp., Case No. No. 01-cv-
3624" filed in the U.S. District Court for the Southern District
of Texas. Representing Enron Corp. is Scott David Lassetter
Atty. at Law, 3700 Montrose Blvd., Houston, TX 77006, Phone:
713-523-0325, Fax: 713-523-0132, E-mail: sdl@lassetterfirm.com.
Lerach Coughlin Stoia Geller Rudman & Robbins LLP on the Net:
http://www.lerachlaw.com/.
BELK INC: To Get $1.7M Windfall from Antitrust Suit Settlement
--------------------------------------------------------------
Belk, Inc., was notified that its portion of the settlement of
an antitrust class action against Visa and MasterCard was about
$1.7 million.
The company was a member of the plaintiffs' class in the Visa
Check/MasterMoney Antitrust Litigation, a class action in which
the class consisted of all businesses and organizations in the
U.S. that accepted Visa and MasterCard debit and credit cards
for payment at any time during the period Oct. 25, 1992 to June
21, 2003.
The class plaintiffs claimed that, through their "Honor All
Cards" policies, Visa and MasterCard forced merchants to accept
Visa and MasterCard signature debit card transactions at
supracompetitive prices.
In April 2003, Visa and MasterCard settled with the plaintiffs'
class by agreeing to pay $3.05 billion over time into a
settlement fund.
During the third quarter of fiscal year 2006, the company
received notice that its portion of the VISA Settlement was
approximately $1.7 million.
The company recorded this amount as a reduction to selling,
general and administrative expenses during the quarter ended
Oct. 29, 2005, according to the company's Dec. 7, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Oct. 28, 2006.
BJ'S WHOLESALE: Receives $2.9M from Antitrust Suit Settlement
-------------------------------------------------------------
BJ's Wholesale Club, Inc. has received about $2.9 million from
the $3.05 billion settlement of an antitrust class action
against Visa and MasterCard.
In April 2003, a settlement was reached in the VISA/MasterCard
antitrust class action litigation. The terms of the settlement
require VISA and MasterCard to pay $3.05 billion into a
settlement fund that will be distributed to class members.
The company is a member of the class and is entitled to a
portion of the fund.
During the third quarter of last year, the company received a
settlement offer related to the distribution of the fund. Based
upon information contained in the settlement offer, the company
recorded a $3.1 million pretax estimated recovery as a reduction
to selling, general and administrative expenses in last year's
third quarter. On a post-tax basis, this recovery was $1.9
million.
To date the company has received $2.9 million and expects to
receive the remaining monies prior to year-end, according to the
company's Dec. 7, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the period ended Oct. 28, 2006.
BOMBARDIER CAPITAL: Court to Review Ruling in N.Y. Stock Suit
-------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit has granted
plaintiffs' motion for an interlocutory appeal of the denial of
class-action status to a suit filed on behalf of open market
purchasers of certain certificates offered by Bombardier Capital
Mortgage Securitization Corp. and Bombardier Capital, Inc.
In 2005, Teamsters alleged that defendants engaged in a scheme
to defraud investors by misrepresenting the integrity of the
certificate collateral.
The complaint, filed in the U.S. District Court for the Southern
District of New York, seeks relief under sections 10(b) and
20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5
of the Securities and Exchange Commission.
It also seeks an order to certify this action as a class action
pursuant to Rule 23(b)(3) of the Federal Rules of Civil
Procedure.
Although several of Teamsters' arguments in favor of class
certification are vigorously disputed, the linchpin of
Teamsters' motion -- and the focus of the parties' briefs and
expert reports -- is the efficiency of the market for the
certificates.
If the market is inefficient, then Teamsters may not avail
itself of the presumption that investors relied on defendants'
misrepresentations, the requirement that common issues
predominate over individual issues will not be satisfied, and
class certification must be denied.
If the market is efficient, then Teamsters may rely on the
presumption, common issues will predominate, and class
certification will be granted so long as Teamsters satisfies the
other Rule 23 requirements.
Because Teamsters cannot rely on either the Affiliated Ute or
the fraud on the market presumptions of transaction causation,
Teamsters cannot prove reliance on a class-wide basis, and each
plaintiff will have to prove reliance individually.
Although the predominance requirement of Rule 23(b)(3) does not
mandate that all issues be capable of generalized proof, when
plaintiffs must individually prove reliance -- an element of
their Rule 10b-5 material misrepresentation claim -- the
putative class action fails the predominance requirement.
Thus, Teamsters cannot satisfy the predominance requirement of
Rule 23(b)(3).
On Aug. 1, 2006 Judge Shira A. Scheindlin denied a motion for
class certification, based, inter alia, on a finding that the
certificates did not trade in an "efficient market."
A motion for reconsideration of the decision has been filed, but
has yet to be decided on by the court.
Additionally, the U.S. Court of Appeals for the Second Circuit
has granted plaintiffs' motion for an interlocutory appeal of
the denial of class-action status.
The suit is "Teamsters Local 445 Freight Division Pension Fund
v. Bombardier Inc. et al., Case No. 1:05-cv-01898-SAS-GWG,"
filed in the U.S. District Court for the Southern District of
New York under Judge Shira A. Scheindlin with referral to Judge
Gabriel W. Gorenstein.
Representing the plaintiffs are Joel P. Laitman and Frank Rocco
Schirripa both of Schoengold & Sporn, P.C., 19 Fulton Street
New York, NY 10038, Phone: (212) 964-0046, Fax: 212-267-8137, E-
mail: frank@spornlaw.com.
Representing the defendants are Isaac S. Greaney, Patrick
Michael McGuirk and Alfred Robert Pietrzak all of Sidley Austin,
LLP, 787 Seventh Avenue, New York, NY 10019, Phone: (212)-839-
7324 or 212-839-8709 or (212)-839-5300, Fax: 212-839-5599, E-
mail: igreaney@sidley.com, pmcguirk@sidley.com or
rpietrzak@sidley.com.
BROWN-FORMAN: Suits Over Illegal Alcohol Sales Remain on Appeal
---------------------------------------------------------------
Several lawsuits over the marketing of beverage alcohol to
underage consumers by the Brown-Forman Corp. and other
defendants are still on appeal, according to the company's Dec.
7, 2006 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended Oct. 29, 2006.
Initially, a law firm sued Brown-Forman and many other
manufacturers and marketers of spirits, wines, and beer in a
series of nine very similar class actions seeking damages and
injunctive relief from alleged marketing of beverage alcohol to
underage consumers.
The suits allege that the defendants engage in deceptive and
negligent marketing practices targeting underage consumers.
They seek to recover on behalf of parents those funds that their
children spent on the illegal purchase of alcohol as well as
disgorgement of all profits from the alleged illegal sales.
Six of the suits have been dismissed by trial court and are
being appealed. One case remains pending on a motion to
dismiss. Two others were voluntarily withdrawn.
Brown-Forman Corp. on the Net: http://www.brown-forman.com/.
CALIFORNIA: LA Cops, Deputies Face Suit Over Wrongful Arrests
-------------------------------------------------------------
A Los Angeles city resident, who claims he was wrongfully
detained, arrested, and incarcerated by the city police, filed a
class action in the U.S. District Court for the Western District
of California claiming the Los Angeles Police and Sheriff's
officers routinely arrest and incarcerate innocent people
because their names are similar to people for whom arrest
warrants have been issued, the CourtHouse News Service reports.
Named defendants in the suit filed by Julio Alvarado are:
-- City of Los Angeles;
-- Los Angeles Police Department;
-- William Bratton, Chief of Police;
-- County of Los Angeles;
-- Los Angeles County Sheriff's Department
-- Lee Baca, Sheriff;
-- William Stonich, Assistant Sheriff;
-- Larry W. Waldie;
-- Doyle R. Campbell, Assistant Sheriff;
-- Paul K. Tanaka, Assistant Sheriff;
-- Charles Jackson, Division Chief;
-- Marc L. Klugman, Division Chief; and
-- Does 1 through 100, inclusive.
Further, the suit alleges the police agencies refuse to use
"Livescan" electronic fingerprint technology -- which they
already have -- to prevent these mass violations of civil
rights. The cops do this despite knowing that identity theft,
one of the fastest-growing crimes in the nation, compounds the
problem.
Mr. Alvarado claims the defendants refuse to use Livescan or the
California Law Enforcement Telecommunications System to reduce
the number of their false arrests and wrongful incarcerations.
Plaintiff seeks judgment as follows:
-- compensatory general and special damages in an amount
according to proof;
-- in additional to actual damages identified above,
statutory damages as allowed by law for each wrongful
arrest and/or incarceration;
-- declaratory and injunctive relief as set forth under
Cal. Const., Art. I, Sections 1,7,13; Civil Code
Sections 52(c), 52.1(b);
-- attorneys fees and costs under 42 U.S.C. Section
1988;civil Code Sections 52(b)(3),52.1(h);C.C.P. Section
1021.5, and whatever other bases may exist; and
-- the costs of this suit and such other relief as the
court finds just and proper.
A copy of the suit is available free of charge at:
http://ResearchArchives.com/t/s?16cf
The suit is "Alvarado et al. v. Bratton et. al., Case No. CV 06
7812," filed in the U.S. District Court for the Central District
of California.
Representing plaintiffs is Robert Mann and Donald W. Cook,
Attorneys at Law, 3435 wilshire Blvd., Suite 2900, Los Angeles,
CA 90010, Phone: (213) 252-9444, Fax: (213) 252-0091, E-mail:
doncook@earthlink.net.
CHEESECAKE FACTORY: Accused of Breaching N.C. "Tip Pooling" Law
---------------------------------------------------------------
The Cheesecake Factory Restaurants, Inc. is facing a lawsuit
filed by a current employee accusing the company of unlawfully
failing to pay the named plaintiff and similarly situated tipped
employees certain wages and tips in violation of the "tip
pooling" provisions of the North Carolina wage and hour laws.
The suit was filed on Feb. 22, 2006 in the General Court of
Justice - Superior Court Division, Durham County, North
Carolina.
The Plaintiff seeks class certification and recovery of back
wages and liquidated damages under the North Carolina Wage and
Hour Act.
The company's said at its Dec. 8 form 10-Q filing with the U.S.
Securities and Exchange Commission that the plaintiff and any
other purported class members have been paid all wages and tips
owed; the company does not have any tip pooling arrangement; and
the company's suggested tip-out guidelines, which are voluntary,
comply with all federal, state and local laws.
The suit is "Chandler v. The Cheesecake Factory Restaurants,
Inc. et al.; Case No. 6CVS00724)."
CHEESECAKE FACTORY: Faces Sex Discrimination Lawsuit in Ohio
------------------------------------------------------------
Three current restaurant management employees in Ohio filed
discrimination charge with the U.S. Equal Employment Opportunity
Commission against The Cheesecake Factory Restaurants, Inc. in
June, alleging violations of Title VII of the Civil Rights Act
resulting from alleged sex discrimination in the company's
promotion process.
The claimants seek unspecified amounts of penalties and other
monetary payments. The company is cooperating with the EEOC's
investigation of this matter.
CHEESECAKE FACTORY: Hourly Employees File FLSA Violations Suit
--------------------------------------------------------------
Five present and former hourly restaurant employees of The
Cheesecake Factory Inc. in the States of Tennessee, Texas and
Arizona filed a lawsuit in August alleging violations of the
Fair Labor Standards Act.
The suit was filed in the U.S. District Court for the Middle
District of Tennessee. It claims minimum wage violations,
improper payroll deductions, and requiring work "off the clock",
among others.
The lawsuit seeks unspecified amounts of penalties and other
monetary payments on behalf of the plaintiffs and other
purported class members. The plaintiffs also seek attorneys'
fees for themselves. Discovery is currently continuing in this
matter.
The suit is "Smith v. The Cheesecake Factory Restaurants, Inc.
et al., Case No. 3 06 0829."
CIB MARINE: Suit by Employee Over Share Option Losses Stayed
------------------------------------------------------------
All discovery in the suit filed by a former employee of CIB
Marine Bancshares Inc. have been stayed by an order of a federal
court in the case, "Lewis et al. v. Straka et al."
In June 2004, John C. Ruedi, a former employee of CIB Marine,
filed an action against CIB Marine and "Central Illinois
Bancorp, Inc." in the Circuit Court of the Sixth Judicial
District, Champaign County, Illinois.
The suit was brought to claim rescission or damages, including
punitive damages, in connection with plaintiff's Oct. 1, 2002
exercise of options issued by CIB Marine to acquire 36,688
shares of CIB Marine common stock at various exercise prices.
Plaintiff claims that but for CIB Marine's and Central Illinois
Bancorp, Inc.'s alleged fraudulent concealment of material facts
regarding the financial condition of CIB Marine he would not
have exercised his options. Plaintiff also seeks to recover
from Central Illinois Bancorp, Inc. and CIB Marine in excess of
$40,000 allegedly due plaintiff pursuant to a purported
memorandum providing for the payment of an incentive to
plaintiff in connection with his employment.
In March 2005, plaintiff amended his complaint to add the former
president and the chief executive of CIB Marine as a defendant
based upon claims of alleged fraudulent concealment. Claims
filed in the action against KPMG LLP and a partner of KPMG were
voluntarily dismissed by the plaintiff.
CIB Marine filed a motion to dismiss several of plaintiff's
claims and answered the others denying liability. That motion
to dismiss was denied and CIB Marine answered the remaining
counts against it, denying liability. Plaintiff filed a motion
for summary judgment seeking recovery of $40,000 from CIB Marine
on his incentive payment claim. This motion was denied.
All discovery has been stayed in this action by an order of the
federal court in the case, "Lewis et al. v. Straka et al., case
no. 2:05-cv-01008-LA," filed in the U.S. District Court for the
Eastern District of Wisconsin, with the result that this suit is
currently dormant.
Plaintiff has filed a motion in the Lewis case to vacate the
discovery stay in this case. No date has been set for a ruling
on that motion, which CIB Marine and the other defendants in the
Lewis case opposed.
CIB MARINE: Wis. Court Refuses to Dismiss Securities Fraud Suit
---------------------------------------------------------------
The U.S. District Court for the Eastern District of Wisconsin
denied a motion by CIB Marine Bancshares Inc. to dismiss a
securities fraud suit against it, while partly accepting a
dismissal motion filed by individual defendants and by KPMG LLP.
On June 3, 2005, a first consolidated complaint was filed by
Dennis Lewis, a shareholder, and other alleged shareholders of
CIB Marine in the U.S. District Court for the Central District
of Illinois, Urbana Division, against CIB Marine, certain of its
current and former officers and directors, and KPMG.
The filing consolidated two actions that had been filed in
January 2005:
-- one filed by Mr. Lewis in the U.S. District Court for
the Central District of Illinois, Urbana Division; and
-- another filed in the U.S. District Court for the Central
District of Illinois, Peoria Division by Elaine
Sollberger, a purported shareholder, whose claims were
voluntarily dismissed in connection with the
consolidation, and have not been reasserted in the
consolidated complaint.
Plaintiffs sought to maintain the action as a class action on
behalf of all persons who purchased common stock of CIB Marine
between April 12, 1999, and April 12, 2004, claiming violations
of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder
by CIB Marine and other defendants and liability of certain
defendants other than CIB Marine and KPMG under Section 20(a) of
the Securities Exchange Act as controlling persons.
The substance of the complaint is that the financial condition
of CIB Marine was overstated with the result that members of the
purported class acquired their CIB Marine stock at inflated
prices. Plaintiffs seek money damages, interest, attorneys'
fees and costs.
The federal court in Urbana, Illinois granted the motion of CIB
Marine and several other defendants to transfer the action to
the U.S. District Court for the Eastern District of Wisconsin,
sitting in Milwaukee, Wisconsin, where the action is now
pending.
All defendants moved to dismiss the action on various grounds.
On Oct. 12, 2006 the court denied CIB Marine's motion to
dismiss, granted in part the motions to dismiss filed by the
individual defendants and granted the motion to dismiss filed by
KPMG.
CIB Marine and the individual defendants have filed answers to
the pending complaint denying any liability. An additional
person has moved to intervene as a plaintiff in the action. On
Nov. 10, 2006, plaintiffs filed a further amended complaint as
to KPMG, which KPMG has stated it intends to move to dismiss.
As a result of the filing of the initial motions to dismiss, all
discovery in this action was stayed automatically. Plaintiffs
have moved to vacate that stay of discovery, which all
defendants opposed based on KPMG's pending motion to dismiss the
further amended complaint filed by plaintiffs against KPMG.
The court has not set a date to rule on the motion to vacate the
stay of discovery, according to the company's Dec. 8 form 10-k
filing with the U.S. Securities and Exchange Commission.
The suit is "Lewis et al. v. Straka et al., case no. 2:05-cv-
01008-LA," filed in the U.S. District Court for the Eastern
District of Wisconsin, under Judge Lynn Adelman.
Representing the company are Allan Horwich and John C. Martin,
Schiff Hardin LLP, Sears Tower, 233 S Wacker Dr - Ste 6600,
Chicago, IL 60606-6473, Phone: 312-258-5618, Fax: 312-258-5700,
E-mail: ahorwich@schiffhardin.com or jmartin@schiffhardin.com.
Representing the plaintiffs are:
(1) Kristi L. Browne, The Patterson Law Firm, 33 N LaSalle
St, Chicago, IL 60602, Phone: 312-223-1699
(2) James W Gardner and Douglas J. Phebus, Lawton & Cates,
10 E Doty St - Ste 400, PO Box 2965, Madison, WI 53701-
2965, Phone: 608-282-6200
(3) Thomas Leiter and Samuel B. Zabek, The Leiter Group
309A Main St, Peoria, IL 61602, Phone: 309-673-2922,
Fax: 309-673-2387, E-mail: szabek@leitergroup.com
(4) Joseph W. Phebus, Phebus & Koester, 136 W Main St.,
Urbana, IL 61801, Phone: 217-337-1400, Fax: 217-337-
1607
DEL MONTE: Settles N.J. Fraud Suit Over StarKist Tuna Labeling
--------------------------------------------------------------
Del Monte Foods Co. reached a tentative settlement for a
purported consumer fraud class action claiming discrepancy in
the label and content of its StarKist tuna product.
The case was filed on May 15 and is pending in the Superior
Court in Middlesex, New Jersey. It alleges that four-packs of
the company's StarKist albacore tuna wrapped in shrink-wrap were
mislabeled because the nutritional information on the shrink-
wrap was different from the nutritional information on the
individual cans.
The suit alleges consumer fraud, violations of the New Jersey
Truth-in-Consumer Contract, Warranty and Notice Act and unjust
enrichment. It seeks compensatory, punitive and treble damages
as well as certification as a class action.
The company has negotiated a tentative settlement with the
plaintiff's counsel, according to the company's Dec. 6, 2006
Form 10-Q filing with the U.S. Securities and Exchange
Commission for period the fiscal year ended Oct. 29, 2006.
Del Monte Foods Co. on the Net: http://www.delmonte.com/.
DYNAMEX INC: Class Status Sought in Calif. Overtime Lawsuit
-----------------------------------------------------------
The plaintiff in a class action pending against Dynamex, Inc. in
the Superior Court of California, Los Angeles County has filed a
motion for class certification.
The suit was filed on April 15, 2005 by a company driver. It
alleges that the company unlawfully misclassified its California
drivers as independent contractors, rather than employees.
It asserted, as a consequence, entitlement on behalf of the
purported class claimants to overtime compensation and other
benefits under California wage and hour laws, reimbursement of
certain operating expenses, and various insurance and other
benefits and the obligation of the company to pay employer
payroll taxes under federal and state law.
The plaintiff filed a motion for class certification on Nov. 2,
2006. The company responded in a memorandum of points and
authorities in support of defendants' opposition to plaintiff's
motion for class certification on Nov. 29, 2006.
A Dec. 12 oral argument hearing was set in the case. No update
on the matter is available at the moment.
Dynamex, Inc. on the Net: http://www.dynamex.com.
ENRON CORP: Appeals Court to Revisit Stock Suit Certification
-------------------------------------------------------------
The U.S. Court of Appeals for the Fifth Circuit in New Orleans
agreed on Nov. 1 to hear arguments by Merrill Lynch & Co.,
Credit Suisse Group and the law firm Vinson & Elkins challenging
the certification of a securities fraud suit filed by Enron
Corp. shareholders.
Shareholders in the company lost billions after Enron revealed
in late 2001 it would incur losses of at least $1 billion and
would restate its financial results for 1997, 1998, 1999, 2000,
and the first two quarters of 2001, to correct errors that
inflated Enron's net income by $591 million.
On Dec. 2, 2001, Enron filed for Chapter 11 bankruptcy. On July
5, U.S. District Judge Melinda Harmon in Houston granted class-
action status to a suit by shareholders.
The defendants challenging the certification argue that
investors can't sue together because they must prove
individually whose acts they relied on before buying the Enron
shares.
Lead plaintiff, The University of California Board of Regents,
has reached settlements with Lehman Brothers, Bank of America,
the Outside Directors, Citigroup, JP Morgan Chase and CIBC
totaling over $7 billion for investors.
Non-settling Defendants
The non-settling defendants include Merrill Lynch & Co.,
Barclays PLC, Toronto-Dominion Bank, Royal Bank of Canada,
Deutsche Bank AG and the Royal Bank of Scotland Group PLC.
The suit against Enron is "In Re: Enron Corp Securities, et al.
(4:02-md-01446)" filed in the U.S. District Court for the
Southern District of Texas under Judge Melinda Harmon.
Representing the defendants is J Mark Brewer of Brewer and
Pritchard, Three Riverway Ste 1800, Houston, TX 77056, Phone:
713-209-2950, Fax: 713-659-5302; E-mail: brewer@bplaw.com.
Contact for William S. Lerach of Lerach Coughlin: 655 West
Broadway, Ste 1900, San Diego, CA 92101, Phone: 619-231-1058.
ENRON CORP: Stock Suit Plaintiffs Want to Drop Vinson from Case
---------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins LLP, which
represents the Regents of the University of California, the lead
plaintiffs in the securities litigation against Enron Corp.,
filed a motion to dismiss Vinson & Elkins from the suit, the
Wall Street Journal reports.
Vinson & Elkins is accused of helping Enron defraud investors by
structuring "phony" transactions that would inflate revenue and
hide debt at the energy company.
The report cited Trey Davis, a spokesman for the lead
plaintiffs, saying that the motion was filed considering that it
was unlikely the law firm would be able to pay an amount that
would materially increase the recovery, and they wanted to
streamline the case to eliminate complicating legal issues.
On Dec. 2, 2001, Enron filed for Chapter 11 bankruptcy. On July
5, U.S. District Judge Melinda Harmon in Houston granted class-
action status to a suit by shareholders.
The University of California Board of Regents, lead plaintiff in
a securities suit, has reached settlements with Lehman Brothers,
Bank of America, the Outside Directors, Citigroup, JP Morgan
Chase and CIBC totaling over $7 billion for investors.
Non-settling Defendants
The non-settling defendants include Merrill Lynch & Co.,
Barclays PLC, Toronto-Dominion Bank, Royal Bank of Canada,
Deutsche Bank AG and the Royal Bank of Scotland Group PLC.
The suit against Enron is "In Re: Enron Corp Securities, et al.
(4:02-md-01446)" filed in the U.S. District Court for the
Southern District of Texas under Judge Melinda Harmon.
Representing the defendants is J Mark Brewer of Brewer and
Pritchard, Three Riverway Ste 1800, Houston, TX 77056, Phone:
713-209-2950, Fax: 713-659-5302; E-mail: brewer@bplaw.com.
Contact for William S. Lerach of Lerach Coughlin: 655 West
Broadway, Ste 1900, San Diego, CA 92101, Phone: 619-231-1058.
FLEETWOOD ENTERPRISES: Stay on "Brodhead" Consumer Suit Remains
---------------------------------------------------------------
The stay has yet to be lifted on the purported class action,
"Brodhead et al. v. Fleetwood Enterprises, Inc.," which is
currently before the U.S. District Court for the Central
District of California.
Filed on June 22, 2005, the suit states a claim for damages
growing out of certain California statutory claims with respect
to alleged defects in a specific type of plastic roof installed
on folding trailers from 1995 through 2003.
Plaintiffs have further clarified and narrowed the class for
which they are seeking certification, which now encompasses all
original owners of folding trailers produced by Fleetwood
Folding Trailers, Inc. with this type of roof but not including
original purchasers who received an aluminum roof replacement
and did not pay for freight.
The subject matter of the claim is similar to a putative class
action previously filed in California state court, entitled,
"Griffin et al v. Fleetwood Enterprises, Inc. et al."
The California trial court denied class action certification in
the Griffin matter on April 28, 2005, and the State of
California Court of Appeal upheld the denial in a ruling issued
on May 11, 2006. Plaintiffs did not appeal the Court of Appeal
ruling in Griffin.
Proceedings relating to the class certification in the Brodhead
matter had been stayed pending the outcome of the state court
certification in Griffin, according to the company's Dec. 6,
2006 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended Oct. 29, 2006.
The suit is "Kenneth Brodhead et al. v. Fleetwood Enterprises
Inc., Case No. 2:05-cv-04560-GPS-Mc," filed in the U.S. District
Court for the Central District of California under Judge George
P. Schiavelli with referral to Judge James W. McMahon.
Representing the plaintiffs are:
(1) Edward M. Gergosian and Robert J. Gralewski, Jr. of
Gergosian and Gralewski, 550 West C Street, Suite 1600,
San Diego, CA 92101, Phone: 619-230-0104, E-mail:
ed@gergosian.com; and
(2) Eric H. Gibbs, Karen Lee Hindin and Jonathan K. Levine
of Girard Gibbs & De Bartolomeo, 601 California St.,
Ste. 1400, San Francisco, CA 94108, Phone: 415-981-
4800, E-mail: ehg@girardgibbs.com; klh@girardgibbs.com
and jkl@girardgibbs.com.
Representing the company are:
(i) Howard B. Golds of Best Best & Krieger, 3750 University
Ave., Ste. 400, P.O. Box 1028, Riverside, CA 92502-
1028, Phone: 951-686-1450, E-mail: hbgolds@bbklaw.com;
and
(ii) Lee Ann Anand and Richard K Hines, V of Nelson Mulins
Riley & Scroborough, 999 Peachtree Street, NE, Suite
1400, Atlanta, GA 30309, Phone: 404-817-6000, E-mail:
leeann.anand@nelsonmullins.com and
richard.hines@nelsonmullins.com.
GENESCO INC: Reaches Settlement for Calif. Overtime Wage Suits
--------------------------------------------------------------
Genesco, Inc. settled two overtime class actions filed in the
Superior Court of the State of California, Los Angeles County,
according to the company's Dec. 7, 2006 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the period ended
Oct. 28, 2006.
On Oct. 22, 2004, the company was named a defendant in a
putative class action, "Schreiner v. Genesco Inc., et al.,"
pending in the Superior Court of the State of California, Los
Angeles. The suit alleges violations of California wages and
hours laws. It seeks damages of $40 million plus punitive
damages.
On May 4, 2005, the company and the plaintiffs reached an
agreement in principle to settle the action, subject to court
approval and other conditions.
In connection with the proposed settlement, to provide for the
settlement payment to the plaintiff class and related expenses,
the company recognized a charge of $2.6 million before taxes
included in restructuring and other, net in the accompanying
Consolidated Statements of Earnings for the first quarter of
fiscal 2006.
On May 25, 2005, a second putative class action, "Drake v.
Genesco Inc., et al.," making allegations similar to those in
the Schreiner complaint on behalf of employees of the company's
Johnston & Murphy division, was filed by a different plaintiff
in the California Superior Court, Los Angeles.
On Nov. 22, 2005, the Schreiner court granted final approval of
the settlement and the company and the Drake plaintiff reached
an agreement on Nov. 17, 2005 to settle that action.
The two matters were resolved more favorably to the company than
originally expected, as not all members of the plaintiff class
in Schreiner submitted claims and because the court required
that plaintiff's counsel bear the administrative expenses of the
settlement.
Consequently, the company recognized income of $0.9 million
before tax, reflected in restructuring and other, net, in the
Consolidated Statements of Earnings for the third quarter of
Fiscal 2006.
Genesco Inc. on the Net: http://www.genesco.com/.
HERBALIFE INT'L: Continues to Face Unfair Trade Practices Suit
--------------------------------------------------------------
Herbalife International, Inc. and certain of its independent
distributors continue to face a class action in the Los Angeles
County Superior Court in California, according to the company's
Nov. 13, 2006 Form 10-Q filing with the U.S. Securities and
Exchange Commission.
On Feb. 17, 2005, a suit, "Minton v. Herbalife International, et
al.," was filed in the Superior Court of California, County of
San Francisco. The suit was served on the company on March 14,
2005. The company moved to transfer the case to the Los Angeles
County Superior Court.
The suit is challenging the marketing practices of certain
Herbalife International independent distributors and the company
under various state laws prohibiting "endless chain schemes,"
insufficient disclosure in assisted marketing plans, unfair and
deceptive business practices, and fraud and deceit.
Plaintiff alleges that the Freedom Group system operated by
certain independent distributors of Herbalife International
products places too much emphasis on recruiting and encourages
excessively large purchases of product and promotional materials
by distributors.
Plaintiff also alleges that Freedom Group pressured distributors
to disseminate misleading promotional materials. Plaintiff
seeks to hold the company vicariously liable for the actions of
its independent distributors and is seeking damages and
injunctive relief.
The plaintiff seeks to hold Herbalife International vicariously
liable for the actions of its independent distributors and is
seeking damages and injunctive relief. The company believes that
it has meritorious defenses to the suit.
HERBALIFE INT'L: Continues to Face W.Va. Privacy Violation Suit
---------------------------------------------------------------
Herbalife International and certain of its distributors continue
to be named as defendants in a class action filed in the Circuit
Court of Ohio County in the State of West Virginia, according to
the company's Nov. 13, 2006 Form 10-Q filing with the U.S.
Securities and Exchange Commission.
Filed on July 16, 2003, the complaint alleges that certain
telemarketing practices of certain company distributors violate
the Telephone Consumer Protection Act, and seeks to hold the
company vicariously liable for the practices of its
distributors.
More specifically, the plaintiffs' complaint alleges that
several of the company's distributors used pre-recorded
telephone messages and autodialers to contact prospective
customers in violation of the TCPA's prohibition of such
practices.
The company's distributors are independent contractors and, if
any such distributors in fact violated the TCPA, they also
violated the company's policies, which require its distributors
to comply with all applicable federal, state and local laws, the
company stated in a disclosure to the U.S. Securities and
Exchange Commission.
On Apr. 21, 2006, the court granted plaintiff's motion for class
certification in West Virginia (Class Action Reporter, May 25,
2006).
JOS. A. BANK: Faces Consolidated Securities Fraud Suit in Md.
-------------------------------------------------------------
The U.S. District Court for the District of Maryland has
consolidated two securities fraud lawsuits against Jos. A. Bank
Clothiers, Inc.
On July 24, 2006, a lawsuit was filed against the company and
its chief executive officer in the U.S. District Court for the
District of Maryland by Roy T. Lefkoe (Civil Action Number 1:06-
cv-01892-WMN).
The lawsuit purports to be a class action on behalf of
purchasers of the company's stock from Jan. 5, 2006 through June
6, 2006. The lawsuit purports to make claims under Sections
10(b) and 20(a) and Rule 10b-5 of the U.S. Securities Exchange
Act of 1934, based on the company's disclosures during the time
period described above. It seeks unspecified damages, costs,
and attorneys' fees.
On Aug. 3, 2006, a lawsuit substantially similar to the Lefkoe
Action was filed in the U.S. District Court for the District of
Maryland by Tewas Trust UAD 9/23/86 (Civil Action Number 1:06-
cv-02011-WMN).
The Tewas Trust Action was filed against the same defendants as
those in the Lefkow Action and purports to assert the same
claims and seek the same relief.
On Nov. 20, 2006, the Lefkoe Action and the Tewas Trust Action
were consolidated under the Lefkoe Action (Case No. 1:06-cv-
01892-WMN) and the Tewas Trust Action was administratively
closed.
The first identified complaint is "Roy T. Lefkoe, et al. v. Jos.
A. Bank Clothiers, Inc., et al., Case No. 1:06-cv-01892-WMN,"
filed in the U.S. District Court for the District of Maryland.
Plaintiff firms in this or similar case:
(1) Brower Piven, The World Trade Center-Baltimore, 401
East Pratt Street, Suite 2525, Baltimore, Maryland
21202, Phone: 410/332-0030, E-mail:
piven@browerpiven.com;
(2) Law Offices of Bernard M. Gross, 1515 Locust Street,
2nd Floor, Philadelphia, PA, 19102, Phone: 215-561-
3600, Fax: 215-561-3000, E-mail:
bmgross@bernardmgross.com;
(3) Schatz & Nobel, P.C., 330 Main Street, Hartford, CT,
06106, Phone: 800.797.5499, Fax: 860.493.6290, E-mail:
sn06106@AOL.com; and
(4) Schiffrin & Barroway, LLP, 3 Bala Plaza E, Bala Cynwyd,
PA, 19004, Phone: 610.667.7706, Fax: 610.667.7056, E-
mail: info@sbclasslaw.com.
KRISP-PAK: Recalls Fresh Cut Fruit Over Possible Contamination
--------------------------------------------------------------
Krisp-Pak Co., Inc. of Norfolk, Virginia is voluntarily
recalling all lots of Krisp-Pak Brand packaged fresh cut fruit
with expiration dates on or before Nov. 30, 2006, because it has
the potential to be contaminated with Listeria monocytogenes, an
organism which can cause serious and sometimes fatal infections
in young children, frail or elderly people, and others with
weakened immune systems.
Although healthy individuals may suffer only short-term symptoms
such as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea, Listeria infection can cause
miscarriages and stillbirths among pregnant women.
The product comes in plastic containers in 4 ounce cups, 8 ounce
cups, 1 pound cups, 3 pound tubs, 10" trays (2.5 pounds) and 13"
trays (4.5 pounds) for retail suppliers. The products being
voluntarily recalled include individually packaged fruit which
may contain cantaloupe, honeydew, red grapes, pineapple,
watermelon or strawberries. The voluntary recall is limited to
these products only.
The voluntarily recalled fresh cut fruit was distributed in the
Hampton Roads and Richmond, Virginia areas through retail
stores.
No illnesses have been reported to date in connection with this
problem.
The voluntary recall is the result of a sample by the U.S. Food
and Drug Administration which revealed that one container of the
finished product contained Listeria monocytogenes. Krisp-Pak
has ceased the production and distribution of the product as
Krisp-Pak continues their investigation as to what caused the
problem.
Consumers who have purchased Krisp-Pak Brand fresh cut fruit are
advised to return it to the place of purchase for a full refund.
Consumers with questions may contact Krisp-Pak at 1-800-755-
0746.
LOUISIANA: Victims of Toxic Fumes at NISH Urged to Join Lawsuit
---------------------------------------------------------------
People who feel they were affected by noxious fumes that
permeated the halls and classrooms of New Iberia Senior High
(NISH) in Louisiana are being asked to sign up for participation
in a class action, The Daily Iberian reports.
According to David Groner, plaintiffs' attorney, starting this
month "anyone who experienced any physical effect from breathing
in the fumes" of the roofing sealant Armor-Flex in September,
October or November of 2003 may sign up for participation in the
class action.
He added that the sign-up would continue through Jan. 31, 2007
with the exception of Christmas and New Year's days at the Inn
of Iberia.
The lawsuit alleges that fumes and vapors from the roofing
sealant drifted or were transported into the halls and
classrooms at NISH by the air conditioning system.
Defendants in the class action include:
-- Iberia Parish School Board,
-- Crown Roofing Services, the company contracted to repair
the NISH roof; and
-- Honeywell, Inc., manufacturers of Armor-Flex.
The fumes were first reported at the school on Sept. 16, 2003,
however the bulk of complaints from students, faculty and staff
came only later.
It was determined that the fumes came from the Armor-Flex, which
can cause eye and skin irritation and can also cause headache,
dizziness, nausea, drowsiness and irritation to the respiratory
system, the substance's warning label revealed.
The first lawsuit was filed on Sept. 22. Subsequent suits have
been consolidated into the class action.
Defendants appealed the "class" distinction to the Third Circuit
Court of Appeals, which denied the appeal. Similar action was
subsequently taken by the state Supreme Court.
For more details, contact David Groner, P.L.C., 230 W. Main St.
P.O. Box 9207, New Iberia, Louisiana 70562-9207, E-mail:
info@davidgroner.com, Phone: (337) 364-3629, Fax: (337) 367-
2438, Web site: http://www.davidgroner.com/.
MAY DEPARTMENT: Mo. Court Mulls "Decristofaro" Dismissal Motion
---------------------------------------------------------------
The Circuit Court of St. Louis, Missouri has yet to rule on a
motion to dismiss the purported stockholder class action filed
against The May Department Stores Co., which was acquired by
Federated Department Stores, Inc.
On Jan. 11, 2006, Edward Decristofaro, an alleged former May
stockholder, filed a purported class action on behalf of all
former May stockholders against May and the former members of
the board of directors of May.
The complaint generally alleges that the directors of May
breached their fiduciary duties of loyalty, due care, good faith
and candor to May stockholders in connection with the merger.
On Aug. 30, 2005, pursuant to an agreement and plan of merger,
dated as of Feb. 27, 2005, by and among Federated, The May
Department Stores Co., and Milan Acquisition LLC (a subsidiary
of Federated), May merged with and into Milan Acquisition LLC.
As a result of the merger, May's separate corporate existence
was terminated.
The defendants have filed a motion to dismiss the lawsuit upon
which the court has not yet ruled, according to the company's
Dec. 7, 2006 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the period ended Oct. 28, 2006.
Federated Department Stores, Inc. on the Net:
http://www.federated-fds.com/.
MTD SOUTHWEST: Recalls Chain Saws to Replace Defective Handle
-------------------------------------------------------------
MTD Southwest Inc., of Tempe, Arizona, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
76,000 units of Troy-Bilt and Craftsman Brand gasoline chain
saws.
MTD has received two reports of consumers losing control of the
saw when the handles broke during use. One consumer reported
bruising to his elbow and the other received burns to his
fingers after contacting the muffler when the chain saw he was
using broke and he lost control of the saw.
These Troy-Bilt and Craftsman brand chain saws are powered by a
two-cycle gasoline engine ranging in size from 46cc to 55cc.
They are equipped with either an 18-inch or 20-inch bar.
There are four Troy-Bilt models affected: 41AY00AR966,
41AY60AR766, 41AY90AR766 and 41AY08AR966. There is one
Craftsman "Incredi-Pull" model affected: a 55cc two-cycle
gasoline engine with an 18-inch bar and model number 316.350840.
The model number of the chain saw is located on the engine
casing.
The Troy-Bilt brand chain saws were sold at independent
retailers, home improvement and hardware stores nationwide from
January 2004 through June 2006 for between $200 and $250. The
Craftsman brand chain saws were sold at Sears and Kmart stores
nationwide from January 2004 through June 2006 for between $190
and $230.
Pictures of the recalled gasoline chain saws:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07040a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07040b.jpg
Consumers are advised to stop using these chain saws
immediately, and contact MTD to receive a free service kit with
a replacement handle and installation instructions. Sears
customers will be mailed a free service kit with a replacement
handle and installation instructions.
MTD Southwest on the Net: http://www.troybilt.com.
NAVISITE INC: "Recovery Deficit" Terms in IPO Suit Deal Changed
---------------------------------------------------------------
A second amendment to a settlement agreement in a securities
class action against NaviSite, Inc. in relation to its initial
public offering in Oct. 22, 1999 has been filed with the U.S.
District Court for the Southern District of New York.
The amendment modifies how the "Recovery Deficit," as defined in
the settlement stipulation, is to be calculated and also deletes
certain provisions pursuant to which the insurers could have
recouped certain Notice Costs, Litigation Trust Costs and
Defense Costs as defined in the settlement stipulation. The
matter was taken under advisement and remains pending with the
Court.
Case Background
On or about June 13, 2001, Stuart Werman and Lynn McFarlane
filed a lawsuit against the company, BancBoston Robertson
Stephens, an underwriter of the company's IPO, Joel B. Rosen,
the company's then chief executive officer, and Kenneth W. Hale,
the company's then chief financial officer. The suit was filed
in the U.S. District Court for the Southern District of New
York.
The suit generally alleges that the defendants violated federal
securities laws by not disclosing certain actions allegedly
taken by Robertson Stephens in connection with the company's
initial public offering.
Specifically, the suit alleges that Robertson Stephens, in
exchange for the allocation to its customers of shares of the
company's common stock sold in the company's initial public
offering, solicited and received from its customers' agreements
to purchase additional shares of the company's common stock in
the aftermarket at pre-determined prices.
The suit seeks unspecified monetary damages and certification of
a plaintiff class consisting of all persons who acquired shares
of the company's common stock between Oct. 22, 1999 and
Dec. 6, 2000.
Mayer, Feldman, Nguyen, Federico Lawsuits
Three other substantially similar lawsuits were filed between
June 15, 2001 and July 10, 2001. The suits were filed by:
* Moses Mayer (June 15, 2001);
* Barry Feldman (June 19, 2001); and
* Binh Nguyen (July 10, 2001).
Robert E. Eisenberg, the company's president at the time of the
initial public offering in 1999, also was named as a defendant
in the Nguyen lawsuit.
On or about June 21, 2001, David Federico filed in the U.S.
District Court for the Southern District of New York a lawsuit
against the company, Mr. Rosen, Mr. Hale, Robertson Stephens and
other underwriter defendants including:
-- J.P. Morgan Chase,
-- First Albany Companies, Inc.,
-- Bank of America Securities, LLC,
-- Bear Stearns & Co., Inc.,
-- B.T. Alex. Brown, Inc.,
-- Chase Securities, Inc.,
-- CIBC World Markets,
-- Credit Suisse First Boston Corp.,
-- Dain Rauscher, Inc.,
-- Deutsche Bank Securities, Inc.,
-- The Goldman Sachs Group, Inc.,
-- J.P. Morgan & Co.,
-- J.P. Morgan Securities,
-- Lehman Brothers, Inc.,
-- Merrill Lynch,
-- Pierce, Fenner & Smith, Inc.,
-- Morgan Stanley Dean Witter & Co.,
-- Robert Fleming, Inc. and
-- Salomon Smith Barney, Inc.
The suit generally alleges that the defendants violated the
anti-trust laws and the federal securities laws by conspiring
and agreeing to raise and increase the compensation received by
the underwriter defendants by requiring those who received
allocation of initial public offering stock to agree to purchase
shares of manipulated securities in the after-market of the
initial public offering at escalating price levels designed to
inflate the price of the manipulated stock, thus artificially
creating an appearance of demand and high prices for that stock,
and initial public offering stock in general, leading to further
stock offerings.
The suit also alleges that the defendants arranged for the
underwriter defendants to receive undisclosed and excessive
brokerage commissions and that, as a consequence, the
underwriter defendants successfully increased investor interest
in the manipulated initial public offering of securities and
increased the underwriter defendants' individual and collective
underwritings, compensation, and revenue.
In addition, the suit further alleges that the defendants
violated the federal securities laws by issuing and selling
securities pursuant to the initial public offering without
disclosing to investors that the underwriter defendants in the
offering, including the lead underwriters, had solicited and
received excessive and undisclosed commissions from certain
investors.
The suit seeks unspecified monetary damages and certification of
a plaintiff class consisting of all persons who acquired shares
of the company's common stock between Oct. 22, 1999 and June 12,
2001.
Those five cases, along with lawsuits naming more than 300 other
issuers and over 50 investment banks, which have been sued in
substantially similar lawsuits, were assigned to the Honorable
Shira A. Scheindlin for all pretrial purposes.
Lead Case Designated
On Sept. 6, 2001, the Court entered an order consolidating the
five individual cases involving the company and designating,
"Werman v. NaviSite, Inc., et al., Civil Action No. 01-CV-5374"
as the lead case.
Amended Complaint
A consolidated, amended complaint was filed thereafter on April
19, 2002 on behalf of plaintiffs Arvid Brandstrom and Tony Tse
against underwriter defendants:
* Robertson Stephens (as successor-in-interest to
BancBoston);
* BancBoston;
* J.P. Morgan (as successor-in-interest to Hambrecht &
Quist);
* Hambrecht & Quist and First Albany
-- and against --
-- the company, and
-- Messrs. Rosen, Hale and Eisenberg.
Together, the defendants are called the Navisite Defendants.
Plaintiffs uniformly allege that all defendants, including the
NaviSite Defendants, violated the federal securities laws (i.e.,
Sections 11 and 15 of the Securities Act, Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5) by issuing and selling
the company's common stock pursuant to the Oct. 22, 1999 initial
public offering, without disclosing to investors that some of
the underwriters of the offering, including the lead
underwriters, had solicited and received extensive and
undisclosed agreements from certain investors to purchase
aftermarket shares at pre-arranged, escalating prices and also
to receive additional commissions and/or other compensation from
those investors.
The Class Action Litigation seeks certification of a plaintiff
class consisting of all persons who acquired shares of the
company's common stock between Oct. 22, 1999 and Dec. 6, 2000.
Plaintiffs have not specified the amount of damages they are
seeking in the Class Action Litigation.
Between July and September 2002, the parties to the IPO
Securities Litigation briefed motions to dismiss filed by the
underwriter defendants and the issuer defendants, including the
company.
On Nov. 1, 2002, the Court held oral argument on the motions to
dismiss. The plaintiffs have since agreed to dismiss the claims
against Messrs. Rosen, Hale and Eisenberg without prejudice, in
return for their agreement to toll any statute of limitations
applicable to those claims.
By stipulation entered by the Court on Nov. 18, 2002,
Messrs. Rosen, Hale and Eisenberg were dismissed without
prejudice from the Class Action Litigation.
On Feb. 19, 2003, an opinion and order was issued on defendants'
motion to dismiss the IPO Securities Litigation, essentially
denying the motions to dismiss of all 55-underwriter defendants
and of 185 of the 301-issuer defendants, including the company.
Settlement of Pending Class Action
On June 30, 2003, the company's Board of Directors considered
and authorized the company to negotiate a settlement of the
pending Class Action Litigation substantially consistent with a
memorandum of understanding negotiated among proposed class
plaintiffs, the issuer defendants and the insurers for such
issuer defendants.
Among other contingencies, any such settlement would be subject
to approval by the Court. Plaintiffs filed on June 14, 2004, a
motion for preliminary approval of the Stipulation And Agreement
Of Settlement With Defendant Issuers And Individuals/
On Feb. 15, 2005, the Court approved the Preliminary Approval
Motion in a written opinion which detailed the terms of the
settlement stipulation, its accompanying documents and
schedules, the proposed class notice and, with a modification to
the bar order to be entered, the proposed settlement order and
judgment.
A further conference was held on April 13, 2005, at which time
the Court considered additional submissions but did not make
final determinations regarding the exact form, substance and
program for notifying the proposed settlement class.
On Aug. 31, 2005, the Court entered a further Preliminary Order
In Connection with Settlement Proceedings (the Preliminary
Approval Order), which granted preliminary approval to the
issuer's settlement with the Plaintiffs in the IPO Securities
Litigation.
The Court subsequently held a fairness hearing on April 24, 2006
in order to consider the written and oral submissions addressing
whether the Court should enter final approval of the settlement.
On Nov. 15, 2006, a second amendment to the settlement
stipulation was filed.
If the proposed issuers' settlement is completed and then
approved by the Court without further modifications to its
material terms, the company and the participating insurers
acting on the company's behalf may be responsible for providing
funding of approximately $3.4 million towards the total amount
plaintiffs are guaranteed by the proposed issuer's settlement to
recover in the IPO Securities Litigation.
NAVISITE INC: Appeals Court Vacates IPO Sub-Case Certification
--------------------------------------------------------------
The U.S. Court of Appeals for the Second Circuit vacated the
certification of a sub-group of cases consolidated in the IPO
Securities Litigation pertaining to Navisite Inc.
On Oct. 13, 2004, the Court granted a contested motion for class
certification in the suit. On Dec. 5, 2006, a panel of the U.S.
Court of Appeals for the Second Circuit issued an opinion
vacating the court's class certification decision because, among
others, the plaintiffs therein could not satisfy the
predominance requirement for a section 23(b)(3) of the Federal
Rules of Civil Procedure class action.
Absent modification by or further proceedings in the Second
Circuit, the matter is to be remanded to the Court for further
proceedings. The effect, if any, of the Second Circuit's ruling
on the pending issuers' settlement is not known at this time,
the company said.
NEWS CORP: Del. Court Dismisses Suit Over Investor Rights Plan
--------------------------------------------------------------
The complaint, "Unisuper et al. v. News Corp., C.A. No. 1699-N,"
which was filed in the Court of Chancery of the State of
Delaware has been dismissed with prejudice, according to News
Corp.'s Nov. 8, 2006 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2006.
On Oct. 6, 2005, 13 professionally managed investment funds that
own the company's stock filed a complaint against the company
and its individual directors.
The complaint raised claims of breach of contract, promissory
estoppel, fraud, negligent misrepresentation and breach of
fiduciary duty relating to the policy of the board concerning
the company's stockholder rights plan, and the August 2005
decision of the board to extend the expiration of the existing
stockholder rights plan until Nov. 8, 2007.
On April 13, 2006, the company announced that it had entered
into a settlement agreement with the plaintiffs. Under the
terms of the settlement agreement, the trial and all remaining
proceedings in the litigation were postponed pending an October
2006 stockholder vote on a rights plan.
At the Annual Meeting on Oct. 20, 2006, the company's
stockholders approved the extension of the existing rights plan
to October 2008, with the company having the right to extend the
rights plan for a year if the situation with Liberty has not, in
the board's judgment, been resolved, and pursuant to the
Stipulation of Settlement and the court's order, this action has
been dismissed, with prejudice.
As part of the settlement, the company has agreed to pay the
plaintiffs' attorneys' fees and expenses in the litigation.
On April 18, 2006, the Delaware Court of Chancery entered a
scheduling order:
-- preliminarily approving the lawsuit as a class action
on behalf of the class of plaintiffs set forth in the
stipulation of settlement; and
-- setting the date for a hearing for the purposes of:
determining whether the action should be certified as a
class action, determining whether the terms of the
proposed settlement are fair, reasonable and in the
best interests of the class, and considering the
application of plaintiffs' counsel for an award of
attorneys' fees and expenses.
The settlement hearing was held on May 23, 2006. Liberty Media
International, Inc., filed an objection to the settlement.
Before approving the settlement, the court instructed the
parties to clarify the terms of the releases that they were
providing each other in order to make them easier to read, and
to make express that claims against the parties based on future
conduct were not being released. On June 1, 2006, the court
issued its order and final judgment approving the settlement.
The suit is "Unisuper Ltd., et al. v. News Corp., et al., C.A.
No. 1699-N," filed in the Court of Chancery of the State of
Delaware in and for New Castle County.
For more details, contact Stuart M. Grant of Grant & Eisenhofer
P.A., 1201 N. Market Street, Suite 2100, Chase Manhattan Centre,
Wilmington, DE 19801, Phone: (302) 622-7070 and (302) 622-7000,
Fax: (302) 622-7100, E-Mail: sgrant@gelaw.com.
NINTENDO OF AMERICA: Sued Over Defective Wii Game Wrist Straps
--------------------------------------------------------------
Nintendo of America Inc. faces a class action complaint in the
U.S. District Court for the Western District of Washington
accusing the company of providing defective wrist straps on its
Wii nunchuck controller, the CourtHouse News Service reports.
The new Wii game system, released Nov. 19, includes a controller
that players can swing around, making video tennis games, for
example, more realistic.
Lead plaintiff TJ Diaz claims the wrist strap is "prone to
break" while being used in the intended manner, causing the
remote device to fly out of the user's hand, "causing damage to
the remote, surrounding objects and/or injury to other people.
Common question of fact and law exist to all members of the
class. These common legal and factual questions include:
-- whether Nintendo made false and/or misleading statements
of fact to the class and the public concerning the
defects inherent in the Wii;
-- whether Nintendo concealed from plaintiff, the class and
the public that the Wii does not conform to their
product specification;
-- whether Nintendo's false and/or misleading statements of
fact and its concealment of material facts regarding the
performance and reliability of the Wii were likely to
deceive the public;
-- whether, by the misconduct set forth in the complaint,
Nintendo has engaged in unfair or deceptive practices
with respect to the advertising, marketing, and sale of
the Wii; and
-- whether, as a result of Nintendo's misconduct, plaintiff
and the class are entitled to equitable relief, and, if
so, the nature of such relief.
Plaintiff demands judgment as follows:
-- an order determining that this action is a proper class
action maintainable under Federal Rule of Civil
Procedure 23;
-- an injunction requiring defendant to cease its unfair or
deceptive business to the extent it has not done so
already;
-- an injunction requiring defendant to correct the defect
in the Wii Remote on behalf of the class by refunding or
replacing the product with a product that functions as
warranted, represented, and intended;
-- plaintiff's attorneys fees and costs of suit; and
-- such other and further relief as the court deems just
and proper.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?16cd
The suit is "Diaz v. Nintendo of America Inc., Case No. 2:06-cv-
01743-JLR," filed in the U.S. District Court for the Western
District of Washington under Judge James L. Robart.
Representing plaintiffs are David Elliot Breskin and Daniel
Foster Johnson both of Short Cressman & Burgess, 999 3rd Ave.,
STE 3000, Seattle, WA 98104-4088, Phone: 206-682-3333, Fax: 340-
8856, E-mail: dbreskin@scblaw.com or djohnson@scblaw.com.
NVIDIA CORP: Faces Consumer, Antitrust Lawsuits in Calif.
---------------------------------------------------------
NVIDIA Corp. was named as a defendant in four complaints filed
in the U.S. District Court for the Northern District of
California, according to the company's Dec. 7, 2006 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
period ended Oct. 29, 2006.
The company was served with the four complaints, all seeking
class action status on Dec. 7, 2006. Each of these complaints
makes claims against the company for, among other things,
alleged violation of both federal and state antitrust laws,
violation of state consumer protection laws, unfair competition
and unjust enrichment.
NVIDIA Corp. on the Net: http://www.nvidia.com/.
PERRIGO CO: Settles Lawsuits Over ibuprofen Deal with Alpharma
--------------------------------------------------------------
The Perrigo Co. reached settlements for lawsuits filed against
it over alleged overpricing of children's ibuprofen suspension
product that was the result of an agreement between Alpharma,
Inc. and the company, according to the company's Nov. 9, 2006
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the period ended Sept. 30, 2006.
The company was named as a defendant in three suits, two of
which are class actions that have been consolidated with one
another, filed on behalf of company customers (i.e., retailers)
and the other consisting of four class actions filed on behalf
of indirect company customers, alleging that the plaintiffs
overpaid for children's ibuprofen suspension product as a result
of the company's 1998 agreement with Alpharma, Inc.
As the company defended these claims, it also participated in
settlement negotiations with the plaintiffs.
On April 24, 2006, the court in the Direct Purchaser Action
issued an order and final judgment approving the settlement of
this matter with respect to defendants Alpharma, Inc. and the
company. The company agreed to pay $3,000,000 as part of the
settlement of the Direct Purchaser Action.
Separately, Alpharma, Inc. and the company entered into a
settlement agreement to resolve the Indirect Purchaser Action
for a combination of cash and product donations.
On July 25, 2006 the court issued an order preliminarily
approving the settlement of the Indirect Purchaser Action.
However, the settlement is subject to final court approval.
The company recorded a charge of $4,500,000 in the fourth
quarter of fiscal 2005 as its best estimate of the combined
expected cost of the settlements.
REFCO INC: Court Disagrees with Shareholders' Prejudice Claim
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
disagreed with claims of undue prejudice by shareholder
plaintiffs who are seeking a lift of a discovery stay in the
securities fraud suit against Refco Inc.
Plaintiffs sought partial lift of a discovery stay -- that is in
effect while the court considers motions to dismiss complaints
in the case -- to enable them to receive all documents that have
been produced in response to regulatory and criminal
investigation requests.
Plaintiffs claim in this case that, as shareholders of Refco
stock, sold to them in an August 2005 initial public offering,
they suffered losses when fraud was revealed and Refco's stock
became virtually worthless. The court is empowered to lift a
stay on discovery when undue prejudice would result. That term
has not been defined by the Second Circuit as yet, but it has
been the subject of several Southern District decisions.
Plaintiffs based part of their claim of undue prejudice upon the
assertion that a defendant in the action, BAWAG P.S.K. Group,
was settling with regulators and others who had obtained
discovery and that the exhaustion of BAWAG's resources was a
possibility.
That reason gave way when Plaintiffs settled with BAWAG, but
they claim it still applies "when the government or other
claimants go after the resources of other defendants." They
purport to be the "only major interested party in the
proceedings . . . without access to documents that currently
form the core of those proceedings . . ." and are, therefore, at
a considerable bargaining disadvantage and unable to make
informed decisions.
The Court responds negatively to this proposition, stating that:
"Plaintiffs' inability to gather evidence for settlement
negotiations or to plan a litigation strategy is not evidence of
undue prejudice."
The Court acknowledges that discovery stays are not applicable
in government investigations, bankruptcy proceedings, internal
investigations, or non-PSLRA actions, but the possible harm from
that fact is a question for Congress, not the courts. There are
no special circumstances extant here, as there were in the
WorldCom litigation, when the Court partially lifted a discovery
stay.
Proper briefing will allow a better adjudication of the question
of targeted lifting of the stay, when and if Plaintiffs address
a motion specifically to that point. The Court does issue an
order permitting Plaintiffs to issue document subpoenas to third
parties, which will assure the preservation of relevant
information.
Case Background
The suit, filed in the U.S. District Court for the Southern
District of New York, was consolidated in April (Class Action
Reporter, Apr. 7, 2006). It claimed the collapsed commodity
brokerage hid more than $5 billion off its books, far more than
previously thought. It also accuses company executives, company
auditors, and investment bankers of negligence.
This discovery of the bad debts caused the collapse of the
company a mere two months after its Aug. 10, 2005 initial public
offering of common stock, and only fourteen months after its
issuance of 9% Senior Subordinated Notes due 2012. The company
filed the fourth largest bankruptcy in U.S. history as a result.
In Feb. 2006, U.S. District Judge Gerard Lynch appointed New
York law firm Bernstein Litowitz Berger & Grossmann and
Wilmington, Delaware-based Grant & Eisenhofer as counsel to the
lead plaintiffs. RH Capital Associates LLC and Pacific
Investment Management Co. were lead plaintiffs in the class
action.
The new complaint against Refco is available for free at:
http://researcharchives.com/t/s?78e
The suit is "In re Refco, Inc. Securities Litigation,
Master File No. 05 Civ. 8626 (GEL)," filed in the U.S. District
Court for the Southern District of New York under Judge Gerard
E. Lynch. Representing the plaintiffs are:
(1) Max W. Berger (MB-5010), John P. Coffey (JC-3832),
John C. Browne (JB-0391) and Noam N. Mandel (NM-0203)
of Bernstein Litowitz Berg & Grossmann, LLP, 1285
Avenue of the Americas, New York, NY 10019, Phone:
(212) 554-1400, Fax: (212) 554-1444; and
(2) Stuart M. Grant (SG-8157), James J. Sabella (JS-5454),
Megan D. McIntyre, Jeff A. Almeida, Christine M.
Mackintosh and Jill Agro of Grant & Eisenhofer, P.A.,
Phone: (646) 722-8500 and (302) 622-7000, Fax: (646)
722-8501 and (302) 622-7100.
SHARMAN NETWORKS: Ill. Consumer Files Fraud Lawsuit Over KaZaa
--------------------------------------------------------------
Sharman Networks, Ltd., the creators of the P2P file-sharing
application KaZaa, faces a purported class action in the U.S.
District Court for the Northern District of Illinois, alleging
that it configured KaZaA such that its intended use would be
illegal.
The plaintiff, Catherine Lewan, an Illinois resident filed the
suit, which seeks class-action status, against Sharman Networks
and several other defendants, including:
-- Sharman License Holdings, Ltd.,
-- Geoffrey R. Gee,
-- Global Nominees, and
-- Credit Facilities, Ltd.
The suit accuses Sharman Networks of deceptive marketing and
installing additional spyware on users' computers for "nefarious
purposes." It also alleges negligence, consumer fraud, and
deceptive trade practices.
According to the complaint, due to fraudulent misrepresentation
and deceptive trade practices, Sharman Networks is responsible
for all copyright violations that are made by KaZaa users.
Ms. Lewan, represented by attorney Charles Mudd, alleges that
Sharman Networks led users to believe that KaZaa allows for free
and legal downloads through the file-sharing application.
She also accuses Sharman Networks of marketing the application
in this manner despite knowing that most users would use it to
"catalog and store" music and video files and that once the
catalog was created, the application would deposit them in a
"share folder" and make them available for download by other
users of the network.
"It surreptitiously installed 'spyware' on users' computers
which made the shared files folder accessible to the KaZaa
network even after the user had removed the KaZaa software from
his or her computer."
The suit alleges that all this sharing was done without the
user's consent in order to build traffic on the KaZaa network
and increase the company's advertising revenues.
A copy of the complaint in available free of charge at:
http://researcharchives.com/t/s?16de
The suit is "Catherine Lewan v. Sharman Networks, Ltd., et al.,
Case No. 06-6736," filed in the U.S. District Court for the
Northern District of Illinois.
Representing the plaintiff is Charles Lee Mudd, Jr., Mudd Law
Offices, 3344 North Albany Ave., Chicago, Illinois 60618, Phone:
(773) 588-5410, E-mail: cmudd@muddlawoffices.com.
TRANE CO: Recalls Air Conditioners to Repair Power Connectors
-------------------------------------------------------------
The Trane Co., of Piscataway, New Jersey, in cooperation with
the U.S. Product Safety Commission, is recalling about 10,580
units of PTEE and PTHE series packaged terminal air conditioners
(PTACs).
The company said the heating element on these commercially
installed units can become displaced and, if it contacts metal,
could short circuit. If the electric heater on one of those
units short-circuits, wiring problems on 265-volt models could
allow the unit to remain energized while the unit's fan is
turned off, causing it to overheat and smoke.
Individuals installing units observed smoking and smelled a
burning odor in three units during installation testing
procedures. No injuries have been reported.
The recall includes 208, 230 and 265-volt models of the Trane
PTEE and PTHE Series Packaged Terminal Air Conditioners (PTACs).
They were manufactured from about March 2006 through July 2006.
The date code is F06C through F06G, and is written on the unit's
Manufacturer's Data Plate located behind the molded plastic
cover above the power connection.
The units have the following model numbers, also written on the
Manufacturer's Data Plate:
PTEE0701UAA PTEE1501UAA PTHE0902UAA
PTEE0702UAA PTEE1502UAA PTHE1201UAA
PTEE0901UAA PTHE0701UAA PTHE1202UAA
PTEE0902UAA PTHE0702UAA PTHE1501UAA
PTEE1201UAA PTHE0901UAA PTHE1502UAA
PTEE1202UAA
These PTACs were manufactured by Qingdao Haier Air Conditioner,
of Qingdao, China and are being sold at Trane distributors sold
the recalled units to commercial customers for use in locations
such as hotels and office buildings from May 2006 to July 2006.
Picture of recalled PTAC:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07508.jpg
The power connectors are being rewired or replaced, and the
heaters will be visually inspected and replaced as necessary in
the 265-volt models. Although there have been no incidents with
the 208-volt and 230 volt models, Trane is still inspecting
these units as a precaution. Trane has contacted the affected
customers directly.
For more information, contact Trane at (800)235-2152 or at (931)
648-5047, between 9 a.m. and 4:30 p.m. ET Monday through Friday,
or E-mail: buddy.sholar@trane.com.
ZALE CORP: Securities Fraud Lawsuits Consolidated in Tex. Court
---------------------------------------------------------------
Purported class actions arising, in general, from the matters
that the U.S. Securities and Exchange Commission have
investigated on in Zale Corp. have been consolidated in the U.S.
District Court for the Northern District of Texas.
On April 10, 2006, the company announced that the SEC had
initiated a non-public investigation into various accounting and
other matters related to the company's business, including
accounting for Extended Service Agreements, leases and accrued
payroll.
Subpoenas issued in connection with the investigation requested
materials relating to these accounting matters as well as to
executive compensation and severance, earnings guidance, stock
trading, and the timing of certain vendor payments.
The lawsuits are:
-- "Levy v. Zale Corp., No. 1:06-CV-05464," filed July 19,
2006, U.S. District Court for the Southern District of
New York;
-- "Agoos v. Zale Corp., No. 1:06-CV-5877," filed Aug. 3,
2006, U.S. District Court for the Southern District of
New York;
-- "Pipefitters Local No. 636 Defined Benefit Plan v. Zale
Corp., No. 3:06-CV-1470," filed Aug. 15, 2006, U.S.
District Court for the Northern District of Texas;
-- "Chester v. Zale Corp., No. 1:06-CV-06387," filed Aug.
23, 2006, U.S. District Court for the Southern District
of New York,
-- "Salvato v. Zale Corp., No. 3-06 CV 1124-D," filed June
26, 2006, U.S. District Court for the Northern District
of Texas, and
-- "Connell v. Zale Corp., No. 06 CV 5995," filed Aug. 7,
2006, U.S. District Court for the Southern District of
New York.
Mary L. Forte, Mark R. Lenz, and Sue E. Gove are named as
defendants in all six lawsuits. Cynthia T. Gordon is also named
as a defendant in the Levy, Agoos, and Chester lawsuits.
Richard C. Marcus, J. Glen Adams, Mary E. Burton, John B. Lowe,
Jr., Thomas C. Shull, David M. Szymanski, and the Zale Plan
Committee also are named as defendants in the Salvato and
Connell lawsuits.
On Oct. 16, 2006, the Levy, Agoos, Chester, and Connell lawsuits
were ordered transferred to the U.S. District Court for the
Northern District of Texas. On Nov. 30, 2006, the Levy, Agoos,
and Chester lawsuits were consolidated with the Pipefitters
lawsuit.
The consolidated lawsuit was renamed "In re Zale Corp.
Securities Litigation." The consolidated securities action and
both ERISA cases are now pending in the U.S. District Court for
the Northern District of Texas.
All of the lawsuits are purported class actions.
The plaintiffs in the consolidated securities action allege
various violations of securities laws based upon the company's
public disclosures.
In the Salvato and Connell lawsuits the plaintiffs allege
various violations of the Employee Retirement Income Security
Act of 1974 based upon the investment by the Zale Corp. Savings
and Investment Plan in company stock.
The plaintiffs in all of the lawsuits request unspecified
compensatory damages and costs and, in the Salvato and Connell
lawsuits, injunctive relief and attorneys' fees. All of the
lawsuits are in preliminary stages.
Texas-based Zale Corp. (NYSE: ZLC) -- http://www.zalecorp.com--
is a diversified specialty retailer of fine jewelry in North
America. At July 31, 2005, it operated 1,464 specialty retail
jewelry stores, 812 kiosks and 69 carts located mainly in
shopping malls throughout the U.S., Canada and Puerto Rico.
Meetings, Conferences & Seminars
* Scheduled Events for Class Action Professionals
-------------------------------------------------
December 13-15, 2006
DRUG AND MEDICAL DEVICE LITIGATION
American Conference Institute
New York
Contact: https://www.americanconference.com; 1-888-224-2480
January 22-23, 2007
MEALEY'S 5TH ANNUAL ADVANCED INSURANCE COVERAGE CONFERENCE: TOP
10 ISSUES
Mealeys Seminars
The Rittenhouse Hotel, Philadelphia
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
March 2007
MASS TORTS MADE PERFECT SEMINAR
Mass Torts Made Perfect
Loews Hotel, Miami, Florida
Contact: 1-800-320-2227; 850-916-1678
May 3-4, 2007
Accountants' Liability CM076
ALI-ABA
Boston
Contact: 215-243-1614; 800-CLE-NEWS x1614
* Online Teleconferences
------------------------
December 1-30, 2006
HBA PRESENTS: AUTOMOBILE LITIGATION: DISPUTES AMONG
CONSUMERS, DEALERS, FINANCE COMPANIES AND FLOORPLANNERS
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
CONSTRUCTION DISPUTES: TEXAS RESIDENTIAL CONSTRUCTION DEFECT
LIABILITY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
HBA PRESENTS: ETHICS IN PERSONAL INJURY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
IN-HOUSE COUNSEL AND WRONGFUL DISCHARGE CLAIMS:
CONFLICT WITH CONFIDENTIALITY?
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
BAYLOR LAW SCHOOL PRESENTS: 2004 GENERAL PRACTICE INSTITUTE --
FAMILY LAW, DISCIPLINARY SYSTEM, CIVIL LITIGATION, INSURANCE
& CONSUMER LAW UPDATES
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
HBA PRESENTS: "HOW TO CONSTRUE A CONTRACT IN BOTH CONTRACT AND
TORT CASES IN TEXAS"
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 1-30, 2006
CONSTRUCTION DISPUTES: TEXAS RESIDENTIAL CONSTRUCTION DEFECT
LIABILITY
CLEOnline.Com
Contact: 512-778-5665; info@cleonline.com
December 14, 2006
DETERMINING WHAT EXPENSES MAY BE CHARGED TO A CONTINGENT FEE
CLIENT
Mealeys Seminars
Contact: 1-800-MEALEYS; 610-768-7800;
mealeyseminars@lexisnexis.com
CACI: CALIFORNIA'S NEW CIVIL JURY INSTRUCTIONS
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 22ND ANNUAL RECENT DEVELOPMENTS
(2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
CIVIL LITIGATION PRACTICE: 23RD ANNUAL RECENT DEVELOPMENTS
(2005)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
EFFECTIVE DIRECT AND CROSS EXAMINATION
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
PUNITIVE DAMAGES: MAXIMIZING YOUR CLIENT'S SUCCESS OR MINIMIZING
YOUR CLIENT'S EXPOSURE
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
STRATEGIC TIPS FOR SUCCESSFULLY PROPOUNDING & OPPOSING WRITTEN
DISCOVERY
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
SUMMARY JUDGMENT AND OTHER DISPOSITIVE MOTIONS
CEB Online
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TORTS PRACTICE: 19TH ANNUAL RECENT DEVELOPMENTS (2004)
CEB Online
Contact: customer_service@ceb.ucop.edu or 1-800-232-3444
TORTS PRACTICE: 20TH ANNUAL RECENT DEVELOPMENTS (2005)
CEB Online
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ADVERSARIAL PROCEEDINGS IN ASBESTOS BANKRUPTCIES
LawCommerce.Com/Mealey's
Online Streaming Video
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ASBESTOS BANKRUPTCY - PANEL OF CREDITORS COMMITTEE MEMBERS
LawCommerce.Com/Mealey's
Online Streaming Video
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EXPERT WITNESS ADMISSIBILITY IN MOLD CASES
LawCommerce.Com/Mealey's
Online Streaming Video
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INTRODUCTION TO CLASS ACTIONS AND LARGE RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
NON-TRADITIONAL DEFENDANTS IN ASBESTOS LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
PAXIL LITIGATION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECENT DEVELOPMENTS INVOLVING BAYCOL
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
RECOVERIES
Big Class Action
Contact: seminars@bigclassaction.com
SELECTION OF MOLD LITIGATION EXPERTS: WHO YOU NEED ON YOUR TEAM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
SHOULD I FILE A CLASS ACTION?
LawCommerce.Com / Law Education Institute
Contact: customerservice@lawcommerce.com
THE EFFECTS OF ASBESTOS ON THE PULMONARY SYSTEM
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
THE STATE OF ASBESTOS LITIGATION: JUDICIAL PANEL DISCUSSION
Online Streaming Video
LawCommerce.Com/Mealey's
Contact: customerservice@lawcommerce.com
TRYING AN ASBESTOS CASE
LawCommerce.Com
Contact: customerservice@lawcommerce.com
THE IMPACT OF LORILLAR ON STATE AND LOCAL REGULATION OF TOBACCO
SALES AND ADVERSTISING
American Bar Association
Contact: 800-285-2221; abacle@abanet.org
_______________________________________________________________
The Meetings, Conferences and Seminars column appears in the
Class Action Reporter each Wednesday. Submissions via
e-mail to carconf@beard.com are encouraged.
New Securities Fraud Cases
TIER TECHNOLOGIES: Federman & Sherwood Reports Stock Suit Filing
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Federman & Sherwood announces the filling on Nov. 9, 2006 of a
class action in the U.S. District Court for the Eastern District
of Virginia against Tier Technologies, Inc.
The complaint alleges violations of federal securities laws,
Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of
1934 and Rule 10b-5, including allegations of issuing a series
of material misrepresentations to the market which had the
effect of artificially inflating the market price. The class
period is from November 29, 2001 through Oct. 25, 2006.
Interested parties may move the court no later than Jan. 9,
2007, for appointment as lead plaintiff for the Class.
For more details, contact William B. Federman of Federman &
Sherwood, 10205 North Pennsylvania Avenue, Oklahoma City, OK
73120, E-mail: wfederman@aol.com, Web site:
http://www.federmanlaw.com.
TOP TANKERS: Kahn Gauthier Files Securities Fraud Suit in N.Y.
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Kahn Gauthier Swick, LLC, filed a class action in the U.S.
District Court for the Southern District of New York, on behalf
of shareholders who purchased, exchanged or otherwise acquired
the common stock of TOP Tankers, Inc. between June 28, 2005 and
Nov. 28, 2006.
TOP and certain of its officers and directors are charged with
issuing 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.
On Nov. 29, 2006, TOP shocked investors after it announced that
Ernst & Young, LLP, the company's independent auditors, had
resigned over a disagreement related to its accounting for
certain sale and lease back transactions, and that it would be
forced to restate its interim financial for the entire half of
2006. The revelation of this news caused shares of TOP to fall
almost 15% in the single trading day, to close just above $5.00
per share.
The complaint alleges that TOP materially misrepresented and
failed to disclose conditions that adversely affected the
company throughout the class period in order to:
-- artificially inflate the price of company shares by
deceiving shareholders concerning TOP's business,
operations, management and the intrinsic value of TOP
common stock;
-- register for sale with the SEC, millions of shares of
TOP stock, and to provide shareholders with a massive
$7.50 dividend per share -- almost $40 million of which
was paid to defendants and their families;
-- permit Kingdom Holdings, an entity owned by the family
of defendant Evangelos Pistiolis, to liquidate almost
900,000 company shares during the class period while in
possession of material adverse information about the
company.
For more details, contact Lewis Kahn of KGS, Phone: 1-866-467-
1400, ext. 100, or 504-648-1850, E-mail: lewis.kahn@kglg.com.
WARNER CHILCOTT: Klafter & Olsen Files Securities Suit in N.Y.
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Klafter & Olsen, LLP, filed a class action complaint against
Warner Chilcott Limited in the U.S. District Court for the
Southern District of New York on behalf of investors who
purchased the publicly traded securities of Warner Chilcott
during the period from Sept. 20, 2006 through and including
Sept. 26, 2006.
The complaint alleges that defendants violated Sections 11,
12(a) and 15 of the Securities Act of 1933. The company's
Registration Statement and Prospectus issued in connection with
the IPO failed to disclose that shortly prior to the IPO, the
company had stopped shipping Ovcon 35, Warner Chilcott's top
selling birth control pill and a primary source of revenue for
the company.
On Sept. 26, 2006, the company filed a supplement to Warner
Chilcott's Registration Statement and Prospectus. By that
supplement, the company disclosed for the first time that it had
stopped shipments of Ovcon 35 in September 2006 when Warner
Chilcott launched Ovcon Chewable.
On this news, Warner Chilcott's common stock price closed at
$12.60 a share, on unusually high volume of nearly 15 million
shares traded, down $2.40 a share from the offering price of $15
per share.
Interested parties may move the court no later than Jan. 2,
2007, for appointment as lead plaintiff for the class.
For more details, contact Kurt B. Olsen of Klafter & Olsen, LLP,
Phone: +1-202-261-3553, Web site: http://www.klafterolsen.com.
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
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Class Action Reporter is a daily newsletter, co-published by
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Mendoza, Editors.
Copyright 2006. All rights reserved. ISSN 1525-2272.
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