/raid1/www/Hosts/bankrupt/CAR_Public/070503.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 3, 2007, Vol. 9, No. 87
Headlines
AG EDWARDS: Sued by Financial Consultants in Several States
AG EDWARDS: Still Faces Brokers' Overtime Litigation in Calif.
APPLEWAY VOLKSWAGEN: Buyer Wins Favorable Ruling in B&O Tax Suit
BLUE CROSS: 23 Plans, BCBSA Settle Physicians' Suit for $128M
CANADA: Court Refuses to Hear Appeal by Autistic Kids' Families
CAPT. WILLIAM JACKMAN: 327 Women Settle Suit Against Hospital
CERIDIAN CORP: Truck Stop Owner Krachey's Files Antitrust Suit
CERIDIAN CORP: Truck Stop Owner NuWay Files Antitrust Suit
CHAR-BOIL LLC: Recalls Gas Grills With Incorrect Heat Shield
CHEESECAKE FACTORY: Calif. Restaurant Employees File Wage Suit
CHEESECAKE FACTORY: Discovery Ongoing in Tenn. FLSA Litigation
CONTINENTAL CARBON: Ponca Tribe's Carbon Black Suit Upheld
COUNTRY MUTUAL: Faces Ill. Suit Over Alleged Bogus 'Silent PPO'
DELTA AIR: Settles Ga. ERISA Violations Lawsuit for $4.5M
DIESTEL TURKEY: Recalls Turkey Products Possibly Contaminated
FARMERS GROUP: Tex. High Court Allows State to Sue for Insureds
FEN-PHEN LITIGATION: Ky. Appeals Court Upholds Ruling v. Mills
GRILL CONCEPTS: Lawsuit by Former Hourly Employee Still Stayed
JONES FINANCIAL: June Hearing Set in $127M Deal by Edward Jones
JONES FINANCIAL: Wage, Hour Lawsuits Consolidated in Penn.
KENNETH COLE: Calif. Court Extends Limits for Wage Claim Suits
MENU FOODS: Lenoir County Woman Sues Over Tainted Pet Food
NEWFIELD EXPLORATION: Settles Okla. Royalty Owner's Litigation
NORTHERN STATES: Files Appeal in Minn. Consumer Fraud Litigation
NORTHFIELD LABORATORIES: Faces Ill. Consolidated Securities Suit
ORECK DIRECT: "Bodner" Suit in Cal. Denied Class Certification
RAYTHEON CO: $5.5M Settlement of Mass. ERISA Lawsuit Now Final
REMEC INC: Discovery Begins in Calif. Securities Fraud Lawsuit
RLI CORP: N.J. Court Dismisses Contingent Commissions Litigation
SCHERING-PLOUGH: Discovery is Ongoing in K-DUR Antitrust Suits
SCHERING-PLOUGH: Still Faces N.J. Suit by Savings Plan Members
SIERRA HEALTH: Faces Suit Over Proposed UnitedHealth Group Deal
WILMINGTON FINANCE: Faces Labor Code Violations Complaint in Pa.
XCEL ENERGY: Faces Natural Gas Purchasers' Litigation in Mo.
XCEL ENERGY: Awaits Ruling on Natural Gas Suit Dismissal Motion
XEROX CORP: Conn. Court Decertifies Class in ERISA Litigation
* Oklahoma Gov. Vetoes S.B. 507, Seeks Compromise Before June
New Securities Fraud Cases
ALLOT COMMUNICATIONS: Lerach Files Securities Fraud Suit in N.Y.
*********
AG EDWARDS: Sued by Financial Consultants in Several States
-----------------------------------------------------------
A.G. Edwards, Inc. was named as a defendant in separate lawsuits
filed in the U.S. District Courts for the Northern District of
New York, the District of New Jersey, the District of Oregon,
the Western District of Pennsylvania, and the Court of Common
Pleas of Allegheny County in Pennsylvania.
Each of the suits seeks to be a class action on behalf of
defined groups of financial consultants or employees being
trained to be financial consultants during specified periods
that vary in each lawsuit.
Each of the suits seeks, among other relief, overtime pay for
the purported class members and two of the suits seek
reimbursement of certain amounts deducted from commissions
allegedly owed the employees or paid by the employees.
The company reported no development in the matter in its April
27, 2007 Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Feb. 28, 2007.
Missouri-based A.G. Edwards, Inc. -- http://www.agedwards.com/-
- is a financial services holding company, which through its
directly owned and indirectly owned subsidiaries provide
securities and commodities brokerage, investment banking, trust,
asset management, financial and retirement planning, insurance
products, and other related financial services to individual,
corporate, governmental, municipal and institutional clients
through retail branch distribution systems.
AG EDWARDS: Still Faces Brokers' Overtime Litigation in Calif.
--------------------------------------------------------------
A.G. Edwards, Inc. remains a defendant in a purported overtime
pay class action filed by two former brokers in the U.S.
District Court for the Southern District of California,
according to the company's April 27, 2007 Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended Feb. 28, 2007.
Edwards is a defendant in a complaint that seeks to be a class
action on behalf of all financial consultants and trainees who
worked for Edwards in California after June 30, 2000.
The action, among other relief, seeks overtime pay for financial
consultants, including trainees, on the basis that the financial
consultants should be classified as non-exempt employees under
California law, restitution of amounts that were deducted from
commissions owed to financial consultants to repay advances made
in prior months, payment for meal rest breaks to which financial
consultants are claimed to be entitled, and reimbursement for
certain alleged business-related expenses paid by financial
consultants.
The suit is "Takacs, et al. v. AG Edwards and Sons, et al., Case
No. 3:04-cv-01852-JAH-NLS," filed in the U.S. District Court for
the Southern District of California under Judge John A. Houston
with referral to Judge Nita L. Stormes.
Representing the plaintiffs is:
James F. Clapp, Esq.
Dostart Clapp and Coveney
4370 La Jolla Village Drive, Suite 970
San Diego, CA 92122-1253
Phone: (858) 623-4200
Fax: (858) 623-4299
Representing the defendants is:
Barbara I. Antonucci, Esq.
Morgan Lewis and Bockius
One Market, Spear Street Tower
San Francisco, CA 94105
Phone: (415) 442-1000
Fax: (415) 442-1001
E-mail: bantonucci@morganlewis.com
APPLEWAY VOLKSWAGEN: Buyer Wins Favorable Ruling in B&O Tax Suit
----------------------------------------------------------------
The Washington Supreme Court has ruled that it is illegal for
car dealers and other businesses to pass on state taxes to
buyers by adding overhead charges to a negotiated purchase
price, Associated Press writer Curt Woodward reports.
Court documents say that Herbert Nelson, a Spokane resident
purchased a used Volkswagen Cabriolet from Appleway Volkswagen.
After both parties agreed on the final price of $16,822,
Appleway illegally added a Business and Occupation tax of
$79.23.
Mr. Nelson sued the car dealer on the ground that the company's
adding of the tax was unlawful. Appleway said it was merely
itemizing the overhead charges when it added the tax on the
customer's bill.
The Supreme Court ruled 6-3 that it is illegal to impose the B&O
tax on customers after negotiating on a purchase price.
"Appleway treated the B&O tax as a tax on customers," when state
statute clearly says the tax shouldn't be construed as a charge
on consumer purchases, Justice Richard Sanders wrote.
The court further said that the company could still recover its
B&O tax if the charge is included in the initial price.
The suit has been certified as a class action.
BLUE CROSS: 23 Plans, BCBSA Settle Physicians' Suit for $128M
-------------------------------------------------------------
A group of 23 Blue Cross and Blue Shield Plans and the Blue
Cross and Blue Shield Association (BCBSA) reached an agreement
with representatives of a nationwide class of physicians to
resolve a class action filed in federal court in Miami in 2003.
The complaint identified Blue Cross and Blue Shield plans as
defendants in an alleged scheme to defraud doctors in violation
of the federal Racketeer Influenced and Corrupt Organizations
Act.
Known initially as the "Thomas" case and more recently as the
"Love" case, the agreement resolves past disagreements between
the Blue Plans and physicians and makes commitments to further
promote cooperation and communication with physicians.
"Each of the settling Plans and the BCBSA made an independent
decision that this agreement is in the best interest of the
settling Plans and it will strengthen the settling Plan's
relationships with physicians and benefit its members," said
Michael A. Pope, spokesperson for the settling Plans and an
attorney with McDermott Will & Emery.
In addition to the BCBSA, these companies and their affiliates
are parties to the agreement:
-- Blue Cross and Blue Shield of Alabama
-- CareFirst, Inc.
-- CareFirst of Maryland, Inc.
-- Group Hospitalization and Medical Services, Inc.
-- Blue Cross and Blue Shield of Florida
-- Hawaii Medical Service Association
-- Health Care Service Corp.
-- Wellmark, Inc.
-- Wellmark, Inc., d/b/a Wellmark Blue Cross and Blue
Shield of Iowa
-- Wellmark of South Dakota, Inc. d/b/a Wellmark Blue
Cross and Blue Shield of South Dakota
-- Louisiana Health Services & Indemnity Co. d/b/a Blue
Cross and Blue Shield of Louisiana
-- HMO Louisiana, Inc.
-- Blue Cross and Blue Shield of Massachusetts
-- Blue Cross Blue Shield of Michigan
-- Blue Cross and Blue Shield of Minnesota
-- Blue Cross & Blue Shield of Mississippi
-- HMO of Mississippi
-- Blue Cross and Blue Shield of Montana
-- Horizon Blue Cross Blue Shield of New Jersey
-- Blue Cross and Blue Shield of North Carolina
-- Hospital Service Association of Northeastern Pennsylvania
-- Triple S, Inc. of Puerto Rico
-- The Regence Group
-- Regence BlueCross BlueShield of Oregon
-- Regence BlueCross BlueShield of Utah
-- Regence BlueShield (in Washington)
-- Regence BlueShield of Idaho
-- Blue Cross & Blue Shield of Rhode Island
-- BlueCross BlueShield of South Carolina
-- BlueCross BlueShield of Tennessee
-- Premera Blue Cross
-- Empire Blue Cross Blue Shield
The settling Plans will pay approximately $128 million to a fund
created by the settling Plans from which physicians may seek
compensation or select a charitable organization to receive
their payment. In addition, the settling Blue Plans will pay
legal fees determined by the court, not to exceed approximately
$49 million.
The company also agreed to include commitments to:
-- Implement a definition of medical necessity that
ensures that patients are entitled to receive medically
necessary care as determined by a physician exercising
clinically prudent judgment in accordance with
generally accepted standards of medical practice;
-- Use clinical guidelines that are based on credible
scientific evidence published in peer-reviewed medical
literature (taking into account Physician Specialty
Society recommendations, the views of physicians
practicing in the relevant clinical areas, and other
relevant factors) when making medical necessity
determinations;
-- Provide physicians with access to an independent
medical necessity external review process;
-- Establish an independent external review board for
resolving disputes with physicians concerning many
common billing disputes;
-- Pay for the cost of recommended vaccines and
injectibles and for the administration of such vaccines
and injectibles;
-- Not automatically reduce the intensity coding of
evaluation and management codes billed for covered
services;
-- Ensure the payment of valid clean claims within fifteen
(15) days for electronically-submitted claims and
thirty (30) days for paper claims;
-- Provide fee schedules to physicians;
-- Establish a compliance dispute mechanism to address
disputes regarding the Blues' compliance with the
agreement;
-- Establish and/or maintain physician advisory
committees; and
-- Provide ninety (90) days' notice of changes in
practices and policies and annual changes to fee
schedules.
For more details, visit http://www.hmocrisis.comand
http://www.hmosettlements.com.
CANADA: Court Refuses to Hear Appeal by Autistic Kids' Families
---------------------------------------------------------------
The Canadian Supreme Court will not hear an appeal by 28
families who want the government to cover the cost of intensive
behavioral treatment for their autistic children, Dog Flu Diet
and Diseases Reports.
Ontario's highest court formerly ruled in favor of these
families, which the Court of Appeal promptly reversed.
The Supreme Court didn't provide any reason about the decision.
David Baker, counsel for lead plaintiff Taline Sagharian, said
the Supreme Court's decision not to hear the Wynberg appeal is
not the end of the class action.
"The Court of Appeal confirmed [Applied Behavioural Analysis]'
efficacy, but stated that it did not have enough evidence before
it to find for the families. That case was mainly about social
and health services, but we are talking about education," he
said.
CAPT. WILLIAM JACKMAN: 327 Women Settle Suit Against Hospital
-------------------------------------------------------------
Parties in a suit filed by Labrador City women who were exposed
to tainted gynecological instruments at Capt. William Jackman
Memorial Hospital reached an agreement to settle the class
action, according to CBC News.
The class action by 327 women was filed in 2003 after these
women were told about the possible exposure to contagious
diseases such as HIV and hepatitis A and C, while they underwent
tests at the gynecological clinic.
The settlement, still subject to the judge's approval,
stipulates that each woman involved in the suit receives CAD450,
and her spouse CAD100. It also states that Jackman hospital
must publish changes in policy and procedure in a local paper.
A fairness hearing is expected in June.
Ches Crosbie, representing the plaintiffs, told CBC news he
expects to receive complaints regarding the compensation. He
also said it's not certain that the participants in the class
action would have received more compensation.
He said the maximum amount in such cases is only $1,000, and
they already got about half of that. He added: " in order to
get [the CAD1,000], you were probably looking at another year or
two, with things like a psychiatrist being hired by the
defendant."
CERIDIAN CORP: Truck Stop Owner Krachey's Files Antitrust Suit
--------------------------------------------------------------
Ceridian Corp., and its wholly owned subsidiary, Comdata Corp.
were named as defendants in a purported antitrust class action
alleging monopoly of trucker fleet cards.
Gerald F. Krachey (d/b/a Krachey's BP South), an independent
truck stop owner-operator and operator of 13 local convenience
stores, filed the suit on April 30 in the U.S. District Court
for the Eastern District of Pennsylvania.
Krachey's BP South claims that most of the 3,000 truck stops in
the U.S. are independently owned and operated, but the
defendants have a monopoly in trucker fleet cards.
These cards are essentially credit cards that allow truckers'
employers to capture data to track employees' location,
purchases and fuel use, to prevent certain purchases, and so on.
The complaint states that Comdata has a monopoly on fleet cards
and the systems that track them. Specifically, it claims that
Comdata abuses this monopoly:
-- by programming the Fleet Card Point of Sale program not
to process rival cards;
-- or to process them in an anticompetitive manner, for
instance, by preventing data capture and purchase
controls;
-- by prohibitions and anticompetitive demands in
contracts with chain truck stops; and
-- by threatening chain truck stops with punitive
transaction fees if they accept rival fleet cards.
The suit was purportedly brought on behalf of all persons or
entities that own independent truck stops in U.S. who paid
transaction fees for trucker fleet cards directly to Comdata or
any of its subsidiaries at any time from March 2003, until the
effects of the defendants anticompetitive conduct cease.
Questions raised are:
(a) whether the Fleet Card POS systems and Fleet Card
market are the markets relevant to this case;
(b) whether Comdata possesses monopoly power in each of the
relevant markets;
(c) whether, through the conduct alleged in the complaint,
Comdata willfully acquired, maintained and enhanced its
monopoly power over the Trucker Fleet Card maintained
and enhanced its monopoly power over the Trucker Fleet
Card POS systems and Trucker Fleet Card markets;
(d) whether Comdata engaged in unlawful exclusionary
conduct to impair the opportunities of rivals in the
Trucker Fleet Card market;
(e) whether Comdata entered into exclusionary agreements
that unreasonably restrained trade in the Trucker Fleet
Card POS systems and Trucker Fleet Card markets; and
(f) whether, and to what extent, defendants' conduct caused
independent Truck Stops to pay supracompetitive prices
and/or fees and, thereby, to suffer antitrust injuries.
Plaintiff requests:
-- judgment in favor of itself and the class it seeks to
represent and against defendants, and each of them, for
damages, measured as the overcharges plaintiff and the
other members of the class paid to defendants as a
result of defendants' anticompetitive conduct, trebled;
-- pre- and post-judgment interest;
-- injunctive relief to prevent further anticompetitive
conduct; and
-- costs of suit, including reasonable attorneys' fees.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1e56
The suit is "Krachey v. Ceridian Corp. et al., Case No. 2:07-cv-
01732-JKG," filed in the U.S. District Court for the District of
Pennsylvania under Judge James Knoll Gardner.
Representing plaintiffs is:
Dianne M. Nast, Esq.
Roda & Nast, PC
801 Estele Drive
Lancaster, PA 17601
Phone: 717-892-3000
Fax: 717-892-1200
E-mail: dnast@rodanast.com
CERIDIAN CORP: Truck Stop Owner NuWay Files Antitrust Suit
----------------------------------------------------------
Ceridian Corp., and its wholly owned subsidiary, Comdata Corp.
were named as defendants in a purported antitrust class action
alleging monopoly of trucker fleet cards.
NuWay Cooperative, an independent truck stop owner-operator and
operator of 13 local convenience stores, filed the suit on April
30 in the U.S. District Court for the Eastern District of
Pennsylvania.
NuWay Cooperative claims that most of the 3,000 truck stops in
the U.S. are independently owned and operated, but the
defendants have a monopoly in trucker fleet cards.
These cards are essentially credit cards that allow truckers'
employers to capture data to track employees' location,
purchases and fuel use, to prevent certain purchases, and so on.
The complaint states that Comdata has a monopoly on fleet cards
and the systems that track them. Specifically, it claims that
Comdata abuses this monopoly:
-- by programming the Fleet Card Point of Sale program not
to process rival cards;
-- or to process them in an anticompetitive manner, for
instance, by preventing data capture and purchase
controls;
-- by prohibitions and anticompetitive demands in
contracts with chain truck stops; and
-- by threatening chain truck stops with punitive
transaction fees if they accept rival fleet cards.
The suit was purportedly brought on behalf of all persons or
entities that own independent truck stops in U.S. who paid
transaction fees for trucker fleet cards directly to Comdata or
any of its subsidiaries at any time from March 2003, until the
effects of the defendants anticompetitive conduct cease.
Questions raised by a purported class are:
(a) whether the Fleet Card POS systems and Fleet Card
market are the markets relevant to this case;
(b) whether Comdata possesses monopoly power in each of the
relevant markets;
(c) whether, through the conduct alleged in the complaint,
Comdata willfully acquired, maintained and enhanced its
monopoly power over the Trucker Fleet Card maintained
and enhanced its monopoly power over the Trucker Fleet
Card POS systems and Trucker Fleet Card markets;
(d) whether Comdata engaged in unlawful exclusionary
conduct to impair the opportunities of rivals in the
Trucker Fleet Card market;
(e) whether Comdata entered into exclusionary agreements
that unreasonably restrained trade in the Trucker Fleet
Card POS systems and Trucker Fleet Card markets; and
(f) whether, and to what extent, defendants' conduct caused
independent Truck Stops to pay supracompetitive prices
and/or fees and, thereby, to suffer antitrust injuries.
Plaintiff requests:
-- judgment in favor of itself and the class it seeks to
represent and against defendants, and each of them, for
damages, measured as the overcharges plaintiff and the
other members of the class paid to defendants as a
result of defendants' anticompetitive conduct, trebled;
-- pre- and post-judgment interest;
-- injunctive relief to prevent further anticompetitive
conduct; and
-- costs of suit, including reasonable attorneys' fees.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1e57
The suit is "NuWAy Cooperative v. Ceridian Corp. et al., Case
No. 2:07-cv-01734-JKG," filed in the U.S. District Court for the
District of Pennsylvania under Judge James Knoll Gardner.
Representing plaintiffs is:
Dianne M. Nast, Esq.
Roda & Nast, PC
801 Estele Drive
Lancaster, PA 17601
Phone: 717-892-3000
Fax: 717-892-1200
E-mail: dnast@rodanast.com
CHAR-BOIL LLC: Recalls Gas Grills With Incorrect Heat Shield
------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Char-Broil LLC, of Columbus, Ga., is voluntarily recalling about
600 units of Char-Broil Two-Burner Gas Grills Model 463720407.
The company said the recalled grills could have an incorrect
heat shield that does not fit the grills. Without the correct
heat shield, the propane tank, hose, and regulator could
overheat and damage these components, presenting a risk of fire
and burn to consumers, if a propane leak occurs.
While five consumers have received grills without the correct
heat shield, no injuries or incidents of fire and burn hazards
have been reported.
Only Char-Broil gas grills with model number 463720407, a two-
burner 360 square inch cooking surface gas grill with a 170
square inch swing-away rack, two side shelves and a condiment
basket, are included in the recall. Char-Broil's logo is on the
top of the lid of the grill. The serial number is located on
the white rating label on the back of the upper front panel of
the grill. The serial numbers range from G305040611002821 to
G305040611003420.
These grills were manufactured by Winmax of China and were sold
at Big Lots stores nationwide from January 2007 through March
2007 for about $115 and $130.
Consumers who have purchased the product involved should inspect
their grill to determine whether the heat shield is properly
installed. If the heat shield is missing or cannot be installed
per instructions, stop using the grill and immediately contact
Char-Broil. Char-Broil will send the consumer, free of charge,
the correct heat shield and installation instructions.
For additional information, contact Char-Broil toll-free at
(866) 671-7988 between 8 a.m. and 5 p.m. ET Monday through
Friday, or visit http://www.charbroil.com
CHEESECAKE FACTORY: Calif. Restaurant Employees File Wage Suit
--------------------------------------------------------------
The Cheesecake Factory Restaurants, Inc. is facing a purported
class action alleging violations of California's wage and hour
laws by failing to pay proper wages, making improper payroll
deductions; and violations of California's meal and break period
laws, among others claims.
Two former hourly restaurant employees filed the suit on Jan. 9,
2007 in the Los Angeles County Superior Court, under the
caption, "Guardado v. The Cheesecake Factory Restaurants, Inc.
et al., Case No. BC360426."
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,
according to the company's April 27, 2007 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended April 3, 2007.
Cheesecake Factory, Inc. -- http://www.thecheesecakefactory.com/
-- operates full-service, casual dining restaurants.
CHEESECAKE FACTORY: Discovery Ongoing in Tenn. FLSA Litigation
--------------------------------------------------------------
Discovery is ongoing in the purported class action, "Smith v.
The Cheesecake Factory Restaurants, Inc. et al, Case No. 3 06
0829," which is alleging violations of the Fair Labor Standards
Act.
On Aug. 29, 2006, five present and former hourly restaurant
employees in the states of Tennessee, Texas and Arizona filed
the lawsuit in the U.S. District Court for the Middle District
of Tennessee against the company, alleging violations of FLSA
with respect to alleged minimum wage violations, improper
payroll deductions and requiring work "off the clock," among
others claims.
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, according to
the company's April 27, 2007 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended April 3, 2007.
The suit is "Smith et al. v. The Cheesecake Factory Restaurants,
Inc., Case No. 3:06-cv-00829," filed in the U.S. District Court
for the Middle District of Tennessee under Judge William J.
Haynes.
Representing the plaintiffs is:
Charles P. Yezbak, III, Esq.
2002 Richard Jones Road, Suite B-200
Nashville, TN 37215
Phone: (615) 250-2000
Fax: (615) 250-2020
E-mail: yezbak@yezbaklaw.com
Representing the defendants is:
Wendy V. Bartholomew, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, L.L.P.
Suntrust Center, 424 Church Street, Suite 800
Nashville, TN 37219
Phone: (615) 254-1900
E-mail: wendy.bartholomew@odnss.com
CONTINENTAL CARBON: Ponca Tribe's Carbon Black Suit Upheld
----------------------------------------------------------
A federal appeals court upheld a lawsuit by a group of Ponca
Tribe of Oklahoma against Continental Carbon Co., denying the
company's appeal to try carbon black cases separately, it
emerged in a report by KOTV 6 Tulsa. The company is also facing
a lawsuit filed by non-tribal members.
After the ruling, attorneys refilled the case and hope it will
now move on to trial, said Kalyn Free, an attorney representing
the Ponca Tribe.
The suit was filed in the Western District of Oklahoma in April
2005 (Class Action Reporter, May 12, 2005). It seeks a court
order forcing Continental Carbon to halt polluting the land and
air where the White Eagle community lives.
Additionally, it demands that the company clean up polluted
properties and seeks damages for the Ponca Tribe and its people.
The complaint alleges trespass, private nuisance, public
nuisance, failure to warn, personal injuries, negligence,
medical monitoring, unjust enrichment and punitive damages.
The defendants named in the suit are Continental Carbon Co.,
China Synthetic Rubber Corp. and its domestic corporation, CSRC
USA and Taiwan Cement Corp. The parent company is a publicly
traded corporation in Taiwan, which owns the Ponca City carbon
black facility, while CSRC is the fourth-largest producer of
carbon black in the world.
Carbon black, which contains constituent polynuclear aromatic
hydrocarbons, or PAHs, a known carcinogen to humans, is a
reinforcement product in automobile tires and hoses and used as
a colorant in printing inks and resins. It is also used as
conductivity-imparting filler.
COUNTRY MUTUAL: Faces Ill. Suit Over Alleged Bogus 'Silent PPO'
---------------------------------------------------------------
Country Mutual Insurance Co. a/k/a County Casualty Insurance Co.
d/b/a Country Cos. is facing a class action in the Circuit
Court, 20th Judicial Circuit in St. Clair County, Illinois, over
an alleged "silent PPO" scheme to save millions in payouts to
medical providers, the CourtHouse News Service reports.
A Preferred Provider Organization (PPO) is a managed care
technique in the healthcare industry that involves a tripartite
relationship between:
(1) a group of health care providers (i.e. preferred or in-
network providers);
(2) payors (such as insurance companies) who pay for the
services provided to the insured persons/beneficiaries
(i.e. patients); and
(3) a network administrator who establishes this PPO
arrangement.
Under this arrangement, healthcare providers are organized by a
network administrator to offer their medical services at
discounted rates to entities responsible for paying the medical
expenses, in exchange for those payors "preferring" the
providers to their insured/beneficiaries through incentives
provided to the insured or beneficiary to use the services of
the preferred providers.
According to the complaint, a "Silent PPO" is the illegitimate
appropriation of discounted reimbursement amounts by insurers,
such as an automobile insurer like Country, who do not offer
preferred provider policy to insured persons and beneficiaries,
and who do not offer any financial incentive mechanism (e.g.
reduced co-payments, reduced deductible or reduced premiums) to
direct, steer, or channel insured persons/beneficiaries to
designated providers for receipt of medical services.
In 2003, lead plaintiff Kathleen Roche, a chiropractor, entered
into a Preferred Provider Agreement with Corvel Corp., wherein
Ms. Roche was to become a member in a PPO known as CORCARE PPO
administered by Corvel. Ms. Roche claims Country Mutual
improperly got access to Corvel's provider discount database and
processed its Illinois medical expense claims through Corvel's
automated PPO re-pricing and discounts.
Ms. Roche claims the discounts were applied even though Country
Mutual had no preferred provider policy and its beneficiaries
are not encouraged to get treatment from network providers.
She claims Country Mutual paid Corvel a fee for access to its
database, scamming Illinois health-care providers out of
millions of dollars in services.
The lawsuit is filed on behalf of all licensed healthcare
providers in Illinois who:
(a) submitted medical claims to Country;
(b) received or were tendered partial payment but in an
amount less than the submitted medical expenses based
on a Corvel PPO discount; and
(c) received or were tendered an amount less than the
stated policy limits.
Questions of law and fact raised by the purported class include:
(a) whether Country entered into a payor agreement, on the
one hand, and plaintiff and the class provider
agreements, on the other hand, such that Country is
entitled to take PPO discounted reimbursement rates on
bills submitted by plaintiff and the class;
(b) whether the applicable payor agreement, if any,
contained terms requiring incentives be provided to the
insured or beneficiary to use services of PPO providers
(i.e. plaintiff and the class);
(c) whether Country reduced plaintiff's and the class
members' medical bills under a valid PPO agreement;
(d) whether Country had an obligation to provide financial
incentives to insured persons and beneficiaries to use
network providers from whom it took PPO discounts;
(e) whether Country offered financial incentives to seek
medical services from preferred providers;
(f) whether Country offered PPO policy endorsements;
(g) whether Country's application of PPO discounted
reimbursement amounts is permissible under Illinois
law;
(h) whether Country was unjustly enriched, and, if so, by
what amount;
(i) whether Country's conduct constitutes statutory and/or
common law fraud;
(j) whether Country authorized the issuance of EOBs to the
class representing that Country was entitled to take
PPO discounted reimbursement amounts when it knew that
it did not offer any preferred provider or exclusive
provider health care coverage plans to its
insured/beneficiaries to use the services of plaintiff
and the class;
(k) whether Country engaged in an unfair or deceptive act
or practice by applying PPO discounted reimbursement
amounts to the reasonable charges of healthcare
providers to whom it failed to steer or channel
patients;
(l) whether Country made actionable false or misleading
statements with regard to the application of PPO
discounted reimbursement amounts; and
(m) whether plaintiff and the class have sustained damages,
and, if so, the proper measure of their damages.
Plaintiff, individually, and on behalf of the class, prays for
an order:
-- certifying the Civil Conspiracy Count;
-- designating plaintiff as representative of the class and
counsel as class counsel;
-- entering final judgment in favor of plaintiff and the
class against defendant for all damages (but in no event
shall the recovery to plaintiff or any individual class
member exceed $75,000), and for such other relief
available by law, in an amount to proven at trial;
-- entering final judgment in favor of plaintiff and the
class and against defendant reimbursing all allowable
costs, including the reasonable fees and expenses of any
necessary expert witnesses;
-- entering final judgment in favor of plaintiff and the
class and against defendant indemnifying them for their
reasonable attorneys' fees, or in the alternative,
allowing class counsel's fees to be paid from any common
fund created as a result of this action; and
-- such other further relief as the court deems just and
appropriate.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1e52
The suit is "Kathleen Roche et al. v. Country Mutual Insurance
et al., Case No. 07-6-207," filed in the U.S. Circuit Court,
20th Judicial Circuit in St. Clair County, Illinois.
Representing plaintiffs are:
Kevin T, Hoerner, Esq.
Becker, Paulson, Hoerner & Thompson, P.C.
5111 West Main Street
Belleville, IL 62226
Phone: (618) 235-0020
Paul M. Weiss, Esq.
Eric C. Brunick, Esq.
George Lang, Esq.
Freed & WEiss LLC
111 West Washington Street, Suite 1331
Chicago, Illinois 60602
Phone: (312) 220-0000
- and -
Richard J. Burke
Richard J. Burke LLC
1010 Market Street, Suite 650
St. Louis, Missouri 63101
Phone: (314) 621-8647
DELTA AIR: Settles Ga. ERISA Violations Lawsuit for $4.5M
---------------------------------------------------------
Parties in the purported class action, "Smith v. Delta Air
Lines, Inc., et al.," have reached a settlement in the matter,
according to the company's April 27, 2007 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2007.
On Sept. 3, 2004, a retired company employee filed a class
action complaint (amended on March 16, 2005) against the
company, certain of its current and former officers and
directors on behalf of himself and other participants in the
Delta Family-Care Savings Plan.
The complaint filed in the U.S. District Court for the Northern
District of Georgia is alleging violations of Employee
Retirement Income Security Act.
The amended complaint alleges that the defendants were
fiduciaries of the Savings Plan and, as such, breached their
fiduciary duties under ERISA to the plaintiff class by:
-- allowing class members to direct their contributions
under the Savings Plan to a fund invested in Delta
common stock; and
-- continuing to hold Delta's contributions to the Savings
Plan in Delta's common and preferred stock.
The amended complaint seeks damages unspecified in amount, but
equal to the total loss of value in the participants' accounts
from September 2000 through September 2004 from the investment
in the company's stock.
Defendants denied that there was any breach of fiduciary duty.
The court had stayed the action due to the company's Sept. 14,
2005 bankruptcy filing. The company and substantially all of
its subsidiaries filed voluntary petitions for reorganization
under Chapter 11 of the U.S. Bankruptcy Code in the U.S.
Bankruptcy Court for the Southern District of New York.
It later granted the motion to dismiss filed by the individual
defendants. Plaintiffs appealed to the U.S. Court of Appeals
for the 11th Circuit the court's decision to dismiss the
complaint against the individual defendants but voluntarily
dismissed this appeal, pending resolution of the automatic stay
of their claim against Delta.
The parties have reached an agreement in principle to resolve
this matter on a class-wide basis under which the plaintiffs
would receive a $4.5 million general, unsecured pre-petition
claim in Delta's Chapter 11 proceedings.
The settlement is subject to the completion of definitive
documentation and Bankruptcy Court approval.
The suit is "Smith v. Delta Air Lines, Inc., et al., Case No.
1:04-cv-02592-ODE," filed in the U.S. District Court for the
Northern District of Georgia under Judge Orinda D. Evans.
Representing the plaintiffs are:
Evan J. Smith, Esq.
Brodsky & Smith, LLC
Suite 602, 333 East City Avenue
Bala Cynwyd, PA 19004
Phone: 610-667-6200
Gerald D. Wells, Esq.
Schiffrin & Barroway
280 King of Prussia Road
Radnor, PA 19087
Phone: 610-676-7706
Fax: 610-667-7056
E-mail: gwells@sbclasslaw.com
- and -
Michael Ira Fistel, Jr., Esq.
Holzer & Holzer, LLC
1117 Perimeter Center West, Suite E-107
Atlanta, GA 30338
Phone: 770-392-0090
E-mail: mfistel@holzerlaw.com
Representing the company is:
William Henry Boice, Esq.
Kilpatrick Stockton
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Phone: 404-815-6464
E-mail: bboice@kilpatrickstockton.com
DIESTEL TURKEY: Recalls Turkey Products Possibly Contaminated
-------------------------------------------------------------
The U.S. Department of Agriculture's Food Safety and Inspection
Service announces that Diestel Turkey Ranch, a Chinese Camp,
Calif. firm, is voluntarily recalling approximately 6,907 pounds
of ready-to-eat turkey products that may be contaminated with
Listeria monocytogenes, a bacterium that can cause listeriosis -
an uncommon but potentially fatal disease.
The products subject to recall:
(1) 6-7 -pound approximate weight plastic-wrapped packages
of "HERBED OVEN ROASTED TURKEY BREAST." The label bears a
sell-by date of 5-28-07;
(2) 6-7 -pound approximate weight plastic-wrapped packages
of "CHIPOTLE PEPPERED TURKEY BREAST." The label bears a
sell-by date of 5-28-07;
(3) 6-7 -pound approximate weight plastic-wrapped packages
of "Naturally Smoked Boneless TURKEY BREAST." The label
also a sell-by date of 5-28-07;
(4) 6-7 -pound approximate weight plastic-wrapped packages
of "PEPPERED OVEN ROASTED TURKEY BREAST." The label bears a
sell-by date of 5-28-07;
(5) 6-7 -pound approximate weight plastic-wrapped packages
of "Naturally Smoked, UNCURED, TURKEY BREAST WITH PASTRAMI
SEASONINGS." The label bears a sell-by date of 5-28-07; and
(6) 1-pound approximate weight plastic-wrapped packages of
"Uncured Turkey Breast with Pastrami Seasoning." The label
bears a sell-by date of 5-23-07.
Each label bears the establishment number "P-9332A" inside the
USDA mark of inspection.
The turkey products were produced on April 20, 2007 and were
distributed to retail establishments in Arizona, California,
Colorado, Oregon, Texas and Washington.
The problem was discovered through routine FSIS microbiological
testing. FSIS has received no reports of illnesses associated
with consumption of this product.
Consumption of food contaminated with Listeria monocytogenes can
cause listeriosis, an uncommon but potentially fatal disease.
Healthy people rarely contract listeriosis. However,
listeriosis can cause high fever, severe headache, neck
stiffness and nausea. Listeriosis can also cause miscarriages
and stillbirths, as well as serious and sometimes fatal
infections in those with weakened immune systems, such as
infants, the elderly and persons with HIV infection or
undergoing chemotherapy.
Consumers with questions about the recall should call company
General Manager Mick Williams at (209) 532-4950. Media with
questions about the recall should call company Owner Timothy
Diestel at (209) 532-4950.
Consumers with food safety questions can "Ask Karen," the FSIS
virtual representative available 24 hours a day at
http://www.AskKaren.gov. The toll-free USDA Meat and Poultry
Hotline 1-888-MPHotline (1-888-674-6854) is available in English
and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern
Time) Monday through Friday. Recorded food safety messages are
available 24 hours a day.
FARMERS GROUP: Tex. High Court Allows State to Sue for Insureds
---------------------------------------------------------------
The Texas Supreme Court has reinstated class certification in a
class action brought by the state attorney general against
insurer Farmers Group, Legal News Line reports.
The suit is "Farmers Group, et al. v. Lubin, Vilolanueva and
Paladino (docket# 05-0196)," a case brought by the state on
behalf of insurance policyholders in August 2002. It alleged
unfair and discriminatory practices in homeowners' insurance
lines.
The state reached a global settlement of $177 million with the
company in November 2002, after the insurer threatened to pull
out of the Texas home insurance market. As part of the
settlement, the state amended its pleadings to transform the
suit into a class action covering claims that had or could be
made by company homeowners and automobile insurance
policyholders.
Ms. Lubin and other policyholders intervened in the case to
challenge the settlement. But Judge Scott Jenkins, of Austin's
53rd District Court, certified the class in the state's suit.
In a 2-0 decision, the 3rd Court of Appeals in Austin overturned
the class certification in January 2005. Justice David Puryear,
author of the 3rd Court's opinion, wrote that Texas Insurance
Code Article 21.21 did not grant the attorney general "parens
patriae" authority to bring the class action. The state and
Farmers petitioned the Supreme Court to review the 3rd Court's
decision.
In a Jan. 20, 2006 motion, the petitioners in the "Lubin" case
assert that the questions presented in it involve the attorney
general's authority to protect the insureds of Texas.
The Supreme Court reversed the Court of Appeals' decision that
the attorney general had not met the requirements in its ruling
on April 27, 2007.
According to Supreme Court Justice Scott Brister, the appellate
court failed to determine whether the attorney general's claims
met the class requirements of "typicality" and "adequacy". He
further added that the requirements couldn't be applied in a way
that renders attorney general class actions impossible, a result
that would frustrate the Legislature's intent.
Although Justice Nathan Hecht dissented the ruling on the ground
that the four prerequisites for class certification in the Texas
Insurance Code only apply to class members, he agreed that the
case be returned to the court of appeals for consideration.
FEN-PHEN LITIGATION: Ky. Appeals Court Upholds Ruling v. Mills
--------------------------------------------------------------
The Kentucky Court of Appeals has upheld a ruling by Fayette
County Circuit Court throwing out a $900,000 jury verdict
against trial lawyer Melbourne Mills, The Associated Press
reports.
In 2003, Cindy Sawyer sued Mr. Mills, claiming he had agreed to
reward her if a potential class action she suggested ever
"obtained a big pay day."
Ms. Sawyer says she persuaded Mr. Mills to file a class action
on behalf of 431 fen-phen users who claimed the diet pill
damaged their hearts. Ms. Sawyer is a former friend and unpaid
legal assistant to Ms. Mills.
Mr. Mills was one of the attorneys who sued American Home
Products Corp., maker of the diet drug fen-phen. He would
eventually negotiate a controversial $200,000,000 settlement for
the case in 2001.
According to a secretly recorded conversation, Mr. Mills agreed
to pay Ms. Sawyer $1,000,000, along with $65,000 for a new car,
in a series of payments lasting 10 years.
Ms. Sawyer says the bonus was modeled after the one received by
Erin Brockovich, a California legal assistant made famous by the
2000 movie starring Julia Roberts.
In January 2006, a Fayette County jury found that Mr. Mills had
broken that agreement and awarded Sawyer Ms. $900,000. Mr.
Mills already had made payments totaling $165,000, according to
a report by Brandon Ortiz of The Lexington-Herald Leader.
In April 2006, Circuit Judge James D. Ishmael ruled that the
agreement was not legally enforceable because it was not in
writing.
His opinion cited the statute of frauds, which originated in
17th-century England and is intended to prevent bogus oral
contracts. The Court of Appeals recently affirmed Judge
Ishmael's decision 3-0.
Michael J. Cox, Ms. Sawyer's legal representative has said that
his client will ask the Kentucky Supreme Court to review the
ruling.
For more, details contact:
Michael J. Cox
Miller, Griffin & Marks, P.S.C.
Security Trust Building, 271 W. Short St.
Lexington, Kentucky 40507
Phone: (859) 255-6676
Fax: (859) 259-1562
E-mail: mjcox@kentuckylaw.com.
GRILL CONCEPTS: Lawsuit by Former Hourly Employee Still Stayed
--------------------------------------------------------------
A suit filed by a former hourly restaurant employee of Grill
Concepts, Inc. remains stayed pending outcome of a review by the
California Supreme Court of appealed cases of the same nature.
In June 2004, one of the company's former hourly restaurant
employees filed a class action against the company in the
Superior Court of California of Orange County. The company
requested, and were granted, a motion to move the suit from
Orange County to Los Angeles County.
The lawsuit was then filed in the Superior Court of California
for the County of Los Angeles in December 2004. The plaintiff
alleged violations of California labor laws with respect to
providing meal and rest breaks. The lawsuit sought unspecified
amounts of penalties and other monetary payments on behalf of
the plaintiffs and other purported class members.
The case has been placed in a stay status pending the outcome of
a review by the California Supreme Court of appealed cases of
the same nature that is expected to happen in the first half of
2007.
JONES FINANCIAL: June Hearing Set in $127M Deal by Edward Jones
---------------------------------------------------------------
A July 20, 2007 fairness hearing is set for a settlement of a
suit filed against Edward Jones & Co., L.P., the principal
operating subsidiary of The Jones Financial Cos., L.L.L.P.
Edwards Jones is a registered broker-dealer primarily serving
individual investors.
The Jones Financial was sued in nine civil class actions that
were eventually consolidated into three proceedings:
(1) "Bressler, et al. v. Edward D. Jones & Co., L.P.";
(2) "Spahn IRA, et al. v. Edward D. Jones & Co., L.P."; and
(3) "Enriquez, et al. v. Edward D. Jones & Co., L.P."
In August 2006, Jones Financial announced a preliminary
settlement agreement to resolve all three groups of lawsuits.
Each of the suits claimed that Jones Financial failed to
adequately disclose its revenue sharing arrangements with
certain designated Preferred Mutual Fund Families.
The settlement involves all of the Partnership's present and
former clients who purchased and/or held shares in any of the
Preferred Mutual Fund Families during the period from Jan. 1,
1999 through Dec. 31, 2004. Jones Financial has agreed to pay
$55 million to former clients and for attorneys' fees, as well
as any costs to administer the settlement.
Additionally, Jones Financial will issue $72.5 million of credit
vouchers to current clients that can be redeemed ratably over a
three-year period. Any credit voucher not redeemed during the
applicable year would expire after each annual redemption
period.
The $55 million cash component of the settlement and related
administrative costs was charged against previously established
legal expense accruals. The $72.5 million non-cash credit
voucher component will be recognized as a reduction to revenue
in the periods in which they are redeemed by clients.
The company agreed to assume the cost of notice and
administration of the settlement. The settlement provides for
the release of all claims, debts and causes of action related to
certain revenue sharing payments received by Jones Financial,
fees and commissions received by the company for mutual fund
trades, shelf-space arrangements, directed brokerage
transactions, shareholder accounting fees and mutual fund trades
generally.
On Dec. 12, 2006, the Court in the Spahn case gave its
preliminary approval for the settlement and directed notice be
provided to class members within 120 days. On Dec. 21, 2006,
the Court in the Enriquez case entered an identical order
preliminarily approving the settlement. The District Court in
Bressler dismissed the lawsuit, however, the plaintiffs have
appealed that dismissal. The appeal has been stayed pending
completion of the settlement.
Once the settlement is finally approved, plaintiffs in Bressler
will dismiss their appeal and the dismissal entered by the
District Court will become final.
The preliminarily approved settlement must still proceed through
a final approval process before the Courts. At present,
tentative hearings for final approval of the settlement are
scheduled for July 20, 2007. If the settlement fails to be
finally approved, the company faces the possible legal risk of
adjudicating the claims for damages that currently equal or
exceed the amount of revenue sharing from 1999 through 2004.
JONES FINANCIAL: Wage, Hour Lawsuits Consolidated in Penn.
----------------------------------------------------------
Four wage and hour litigations against Edward Jones & Co., L.P.,
the principal operating subsidiary of The Jones Financial Cos.,
L.L.L.P. have been, or are in the process of being, consolidated
before the U.S. District Court for the Western District of
Pennsylvania.
Jones Financial has been sued in five putative class actions
that allege it has misclassified its financial advisors as
exempt from overtime pay, improperly deducted certain business
expenses and otherwise failed to comply with certain state and
federal wage and hour laws.
Those consolidated actions are:
-- "Booher, et al. v. Edward D. Jones & Co., L.P.,
(National class under federal statutes);"
-- "Ellis, et al. v. Edward D. Jones & Co., L.P.
(Pennsylvania only class);"
-- "Weaver, et al. v. Edward D. Jones & Co., L.P. (Ohio
only class);" and
-- "O'Brien, et al. v. Edward D. Jones & Co., L.P. (New
York only class)."
The fifth lawsuit, "Thill, et al. v. Edward D. Jones & Co.,
L.P." is pending before the United District Court in California
and involves a California only putative class. The California
and Pennsylvania courts have entered coordination orders. No
class has yet been certified and the Partnership has denied the
claims.
KENNETH COLE: Calif. Court Extends Limits for Wage Claim Suits
--------------------------------------------------------------
The California Supreme Court has ruled that companies doing
business in the state who are sued for not providing employees
paid meal and rest periods are subject to a three-year, not a
one-year, statute of limitations, Rob Luke of Legal News Line
reports.
The ruling came in the case, "John Paul Murphy v. Kenneth Cole
Productions, Docket No. S140308." It is expected to have
significant ramifications in future cases of labor-law
violations in the state.
The Supreme Court's unanimous opinion, which overturned a
previous ruling by the Court of Appeals, essentially stated "one
additional hour of pay" is a wage or premium rather than a
penalty payment, and thus it is therefore subject to the three-
year limit.
In addition, the Supreme Court ruled that the trial court did
not err, as the appeals court stated, in introducing additional
related wage claims.
Justice Carlos Moreno writing on behalf of the Supreme Court
panel, pointed out that the relevant statute's "plain language,
the administrative and legislative history, and the compensatory
purpose of the remedy" qualify the "additional hour" as a
"premium wage."
The trial court "properly exercised its discretion" by allowing
additional related claims at the "de novo" trial, according to
the Supreme Court ruling.
Legal observer Michael Hassen in entry on blogsite Class Action
Defense (http://classactiondefense.jmbm.com/)characterized the
decision as having "a substantial and immediate impact on labor
law class actions" in California.
MENU FOODS: Lenoir County Woman Sues Over Tainted Pet Food
----------------------------------------------------------
Susie Laws of Lenoir County, North Carolina, filed a class
action in Guilford County against pet food manufacturers that
supplied contaminated pet food, The Greensboro News Record
reports.
Ms. Laws' suit claims that Menu Foods Inc. used unfair and
deceptive trade practices; that it was negligent; was unjustly
enriched; and that it breached both express and implied
warranties.
She claims her two cats, Tommy and Baby Girl -- who had been
feed Special Kitty cat food -- developed kidney failure.
Ms. Laws is seeking damages against the pet food company, which
makes popular brands such as Iams, Eukanuba and Ol' Roy.
In court records, Ms. Laws claims that four days after she
bought pet food for her two cats, its manufacturer, Menu Foods,
announced a massive recall of pet foods because dogs and cats
across the country were dying from kidney failure.
On March 17, 2007, Menu Foods issued a North American-wide
recall of 48 brands of dog food and 42 brands of cat food in
response to reported deaths of cats and dogs in the U.S.
The nationwide recall includes popular brands such as Iams,
Nutro, and Eukanuba and private-label brands sold by retailers
Wal-Mart, Safeway, Petsmart, and others.
Veterinary professionals estimate thousands of pets across the
nation will die of kidney failure or become very sick with
similar symptoms as a result of consuming the contaminated
products.
To see complete list of recalled products:
http://www.menufoods.com/recall
Menu Foods is facing other federal class actions in other parts
of the country.
NEWFIELD EXPLORATION: Settles Okla. Royalty Owner's Litigation
--------------------------------------------------------------
A subsidiary of Newfield Exploration Co. has settled a purported
class action over royalty payments.
In December 2002, a lawsuit against the company's Mid-Continent
subsidiary was filed in Beaver County, Oklahoma and was later
certified as a class action.
The complaint alleges that the company improperly reduced
royalty payments for certain expenses and charges, and also
claims breach of contract and breach of fiduciary duties, among
other claims.
In April 2007, the company entered into a non-binding settlement
agreement, subject to final documentation and court approval,
with respect to the lawsuit.
Newfield Exploration Co. -- http://www.newfld.com/-- is an
independent oil and gas company engaged in the exploration,
development and acquisition of crude oil and natural gas
properties.
NORTHERN STATES: Files Appeal in Minn. Consumer Fraud Litigation
----------------------------------------------------------------
Northern States Power Co., a wholly owned subsidiary of Xcel
Energy, Inc., is appealing certain rulings made in the purported
consumer class action, "Hoffman vs. Northern States Power Co."
Filed on March 15, 2006, the complaint was brought on behalf of
NSP-Minnesota's residential customers in Minnesota, North Dakota
and South Dakota for alleged breach of a contractual obligation
to maintain and inspect the points of connection between NSP-
Minnesota's wires and customers' homes within the meter box.
Plaintiffs claim NSP-Minnesota's breach results in an increased
risk of fire and that it is in violation of tariffs on file with
the Minnesota Power Utilities Commission.
They thus seek injunctive relief and damages in an amount equal
to the value of inspections plaintiffs claim NSP-Minnesota was
required to perform over the past six years.
NSP-Minnesota filed a motion for dismissal on the pleadings. In
November 2006, the court issued an order denying NSP-Minnesota's
motion.
On Nov. 28, 2006, pursuant to a motion by NSP-Minnesota, the
court certified the issues raised in NSP-Minnesota's original
motion as important and doubtful. This certification permits
NSP-Minnesota to file an appeal, and it has done so, according
to the company's April 27, 2007 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period
ended March 31, 2007.
Minnesota-based Xcel Energy, Inc. -- http://www.xcelenergy.com/
-- is a holding company engaged in the utility business in the
U.S.
NORTHFIELD LABORATORIES: Faces Ill. Consolidated Securities Suit
----------------------------------------------------------------
Northfield Laboratories, Inc. is a defendant in a consolidated
securities fraud class action filed in the U.S. District Court
for the Northern District of Illinois, according to its April 9,
2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Feb. 28, 2007.
Between March 17, 2006 and May 15, 2006, 10 separate complaints
were filed, each purporting to be on behalf of a class of
company's stockholders, against Northfield and Dr. Steven A.
Gould, its chief executive officer, and Richard DeWoskin, its
former chief executive officer.
Those putative class actions have been consolidated in a case
pending in the U.S. District Court for the Northern District of
Illinois.
The consolidated amended class action complaint was filed on
Sept. 8, 2006, and alleges, among other things, that during the
period March 19, 2001 through March 20, 2006, the named
defendants made or caused to be made a series of materially
false or misleading statements and omissions about Northfield's
elective surgery clinical trial and business prospects in
violation of Section 10(b) of the U.S. Securities Exchange Act
of 1934, as amended, and Rule 10b-5 promulgated thereunder and
Section 20(a) of the Exchange Act.
Plaintiffs allege that those allegedly false and misleading
statements and omissions caused the purported class to purchase
shares of the company's common stock at artificially inflated
prices.
As relief, the complaint seeks, among other things, a
declaration that the action be certified as a proper class
action, unspecified compensatory damages (including interest)
and payment of costs and expenses (including fees for legal
counsel and experts).
The putative class action is at an early stage and it is not
possible at this time to predict the outcome of any of the
matters or their potential effect, if any, on Northfield or the
clinical development or future commercialization of PolyHeme.
The suit is "Topaz Realty Corp., et al. v. Northfield
Laboratories, Inc., et al., Case No. 06-CV-1493," filed in the
U.S. District Court for the Northern District of Illinois under
Judge George M. Marovich.
Representing the plaintiffs are:
Patrick Vincent Dahlstrom, Esq.
Pomerantz Haudek Block Grossman & Gross LLP
One North LaSalle Street, Suite 2225
Chicago, IL 60602-3908
Phone: (312) 377-1181
E-mail: pdahlstrom@pomlaw.com
- and -
Anthony F. Fata, Esq.
Cafferty Faucher LLP
30 North LaSalle Street, Suite 3200
Chicago, IL 60602
E-mail: afata@caffertyfaucher.com
Representing the defendants is:
Ronald L. Marmer, Esq.
Jenner & Block LLP
330 North Wabash
Chicago, IL 60611
Phone: (312) 222-9350
E-mail: rmarmer@jenner.com
ORECK DIRECT: "Bodner" Suit in Cal. Denied Class Certification
--------------------------------------------------------------
Judge Marilyn H. Patel of the U.S. District Court for the
Northern District of California declined to grant class-action
status to a lawsuit that alleges Oreck Direct LLC committed
unfair business practice in the advertisement and sale of its
air purifiers, The Wall Street Journal reports.
Filed on Aug. 4, 2006, lead plaintiff Paul Bodner, alleges that
he suffers from allergies and purchased an Oreck air purifier in
reliance on defendant's infomercial claiming that the product
"would remove allergens, bacteria, dirt and dust from the air."
The thrust of his class action complaint is that the air
purifier did nothing to alleviate his allergies.
Plaintiff's lawyer moved the court to certify the lawsuit as a
class action and for appointment of lead plaintiff and lead
counsel, which defense attorneys opposed to.
On April 25, the district court denied the motion, criticizing
plaintiff's law firm for formulating a class action and then
going in search of a class action plaintiff regardless of "the
lack of a fitting plaintiff or the lack of ethical scruples."
The district court noted, however, that plaintiff did not even
know what he was allergic to, had never been diagnosed or
treated for allergies, frequently left open the window to his
apartment, and was "exposed to allergens in other locations
throughout the day."
Moreover, plaintiff's air purifier was never tested to determine
whether it performed as represented. The federal court also
detailed that the class action had been formulated by
plaintiff's law firm before the firm "found" a plaintiff.
Plaintiff acknowledges that he became a plaintiff in this action
by responding to an advertisement by plaintiff's counsel,
Westrup Klick, LLP, in the San Francisco Bay Guardian.
Plaintiff testified that plaintiff's counsel told him "they were
going to have a lawsuit," and that they were looking for a
representative for a class action.
The district court held that plaintiff's "undeniable and
overwhelming ignorance" of the case defeated the typicality or
adequacy requirements of Rule 23(a).
"It is clear from the record that plaintiff's counsel, and not
plaintiff, is the driving force behind this action. Such a
'cart before the horse' approach to litigation is not the proper
mechanism for the vindication of legal rights," the judge's
ruling read.
The federal court further noted, "the Westrup Klick firm has had
trouble regarding its choice of plaintiffs in the past" and
characterized this class action as "one more example of
plaintiff's counsel's improper approach to consumer litigation."
The federal court found the class action offensive, concluding,
"That plaintiff's counsel constructed this lawsuit before it had
a plaintiff cannot be denied. This fact is borne out not only
by plaintiff's own admissions, but by plaintiff's counsel's
previous abortive attempt to bring a seemingly identical lawsuit
in another district.
Indeed, counsel himself admitted at the hearing that he or his
firm had the research performed on the product at issue and had
a theory about the product's deficiencies. Then, armed with
that information they went in search of a plaintiff, never mind
the lack of a fitting plaintiff or the lack of ethical scruples.
The instant action is nothing more than Westrup, Klick bringing
its show to the Northern District and continuing its practice of
selecting stand-in plaintiffs, even ones who are inappropriate.
To grant class certification in such circumstances would be to
place this court's imprimatur on litigation practices which it
finds abhorrent and inconsistent with the standards of federal
class actions. In short, the conduct in this action does not
look good, does not sound good, and does not smell good. In
fact, it reeks. The court will not participate in this scheme by
certifying a class."
The suit is "Bodner v. Oreck Direct, LLC, Case No. 3:06-cv-
04756-MHP," filed in the U.S. District Court for the Northern
District of California, under Judge Marilyn H. Patel.
Representing defendants are:
David Lawrence Aronoff, Esq.
Thelen Reid & Priest LLP
333 South Hope Street, Suite 2600
Los Angeles, Ca 90071
Phone: (213) 687-1844
Fax: (213) 576-8080
E-mail: daronoff@thelenreid.com
Frederick W. Bradley, Esq.
King, Leblanc & Bland, P.L.L.C.
201 St. Charles Avenue, 45th Floor
New Orleans, LA 70170
Phone: (504) 569-1643
Fax: (504) 582-1233
E-mail: bradley@statetax-law.com
Gayle Irene Jenkins, Esq.
Thelen Reid & Priest LLP
333 South Hope, Suite 2900
Los Angeles, CA 90071
Phone: 213-576-8021
Fax: (213) 576-8080
E-mail: gjenkins@thelenreid.com
- and -
Patrick M. Ryan, Esq.
Thelen Reid & Priest LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Phone: (415) 371-1200
Fax: (415) 371-1211
E-mail: pryan@thelenreid.com
Representing plaintiffs are:
Mark L. Van Buskirk, Esq.
R. Duane Westrup, Esq.
Westrup Klick, LLP
444 West Ocean Boulevard, Suite 1614
Long Beach, CA 90802-4524
Phone: (415) 432-2551
Fax: (415) 435-4856
E-mail: jveloff@wkalaw.com
RAYTHEON CO: $5.5M Settlement of Mass. ERISA Lawsuit Now Final
--------------------------------------------------------------
The approval by the U.S. District Court for the District of
Massachusetts of a $5.5 million settlement of a consolidated
Employee Retirement Income Security Act violation suit against
Raytheon Co. is now final.
In May 2003, two purported class actions:
-- "Benjamin Wall v. Raytheon Co. et al. (Civil Action No.
03-10940-RGS)," and
-- "Joseph I. Duggan, III v. Raytheon Co. et al. (Civil
Action No. 03-10995-RGS),"
were filed in the U.S. District Court in Massachusetts on behalf
of participants in the company's savings and investment plans
who invested in the company's common stock between Aug. 19, 1999
and May 27, 2003.
The two class action complaints were brought pursuant to the
Employee Retirement Income Security Act. Both complaints
alleged that the company and certain officers and directors
breached ERISA fiduciary and co-fiduciary duties arising out of
the company's savings and investment plans' investment in the
company's common stock.
The court consolidated these actions in September 2003. In
April 2004, a second consolidated amended complaint was filed on
behalf of participants and beneficiaries in the company's
savings and investment plans who invested in the company's
common stock since Oct. 7, 1998.
After certain preliminary motions and mediation conferences, the
parties reached a tentative settlement in 2006. On Feb. 6,
2007, the court approved the settlement agreement.
The settlement agreement required the company to pay $5.5
million, with part of that amount payable directly to the
company's savings and investment plans, part payable directly to
certain participants and beneficiaries and part payable for
expenses of administering the settlement.
The court also approved an order requiring the company to pay
plaintiffs' attorney fees of $1.4 million, as determined by a
federal Magistrate in September 2006, and approximately $61,000
in plaintiffs' attorney expenses.
The class for purposes of settlement consisted of any person who
was a participant or beneficiary at any time between Oct. 7,
1998, and April 30, 2006, and whose plan accounts included
investments in the Raytheon Common Stock Fund.
Since no appeal or request for reconsideration of the court's
Feb. 6, 2007 orders was requested within 30 days, those orders
became final on March 8, 2007.
The suit is "Wall v. Raytheon Co. et al., Case No. 1:03-cv-
10940-RGS," filed in the U.S. District Court fort the District
of Massachusetts under Judge Richard G. Stearns.
Representing the plaintiffs are:
Edward W. Ciolko, Esq. and Mark K. Gyandoh, Esq.
Schiffrin & Barroway, LLP
Three Bala Plaza East, Suite 400
Bala Cynwyd, PA 19004
Phone: 610-667-7706
Fax: 610-667-7056
E-mail: eciolko@sbclasslaw.com
mgyandoh@sbclasslaw.com
- and -
Peter H. LeVan, Jr., Esq.
Hangley Aronchick Segal & Pudlin
One Logan Square, 27th Floor
Philadephia, PA 19103-6933, U.S.
Phone: 215-496-7071
Fax: 215-585-0300
E-mail: plevan@hangley.com
Representing the defendants are:
Rebecca Ruby Anzidei, Esq.
James P. Gillespie, Esq.
Kirkland & Ellis, LLP, Suite 1200
655 Fifteenth St. N.W.
Washington, DC 20005
Phone: 202-879-5046 and 202-879-5000
Fax: 202-879-5200
E-mail: ranzidei@kirkland.com
jgillespie@kirkland.com
- and-
James F. Kavanaugh, Jr., Esq.
Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP
Ten Post Office Square Boston
MA 02109
Phone: 617-482-8200
Fax: 617-482-6444
E-mail: jkavanaugh@ckrpf.com
REMEC INC: Discovery Begins in Calif. Securities Fraud Lawsuit
--------------------------------------------------------------
Discovery has commenced in a consolidated securities fraud class
action filed against REMEC, Inc. in the U.S. District Court for
the Southern District of California.
On Sept. 29, 2004, three class actions were filed against the
company and certain former officers in the U.S. District Court
for the Southern District of California alleging violations of
federal securities laws between Sept. 8, 2003 and Sept. 8, 2004.
On Jan. 18, 2005, the law firm of Milberg Weiss Bershad &
Schulman, LLP, was appointed lead counsel and its client was
appointed lead plaintiff.
After several consolidated and amended complaints were filed,
challenged by the company and dismissed by the court with leave
to amend, the court denied REMEC's motion to dismiss the fourth
amended complaint on Sept. 25, 2006.
REMEC filed its answer to the fourth amended complaint on Nov.
6, 2006, denying all liability and asserting certain affirmative
defenses.
Discovery has commenced, according to the company's April 27
2007 Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Jan. 31, 2007.
The suit is "In re: REMEC Inc. Securities Litigation, Case No.
04-CV-1948," filed in the U.S. District Court for the Southern
District of California under Judge Jeffrey T. Miller.
Representing the plaintiffs are:
Jeff S. Westerman, Esq.
Milberg Weiss Bershad & Schulman, LLP
355 South Grand Avenue, Suite 4170
Los Angeles, CA 90071
Phone: (213) 617-1200
Fax: (213) 617-1975
David W. Mitchell, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP,
655 West Broadway, Suite 1900
San Diego, California 92101-4297
Phone: 619-231-1058 and 800-449-4900
Fax: 619-231-7423
Web site: http://www.lerachlaw.com
- and -
Blake Muir Harper, Esq.
Hulett Harper Stewart, LLP
550 West C. Street, Suite 1600
San Diego, CA 92101
Phone: (619) 338-1133
Fax: (619) 338-1139
Representing the defendants is:
Robert W. Brownlie
DLA Piper Rudnick Gray Cary, US, LLP,
401 "B" Street, Suite 1700
San Diego, California 92101
Phone: (619) 699-2700 and 858-638-6886
Fax: 858-677-1401
Web site: http://www.dlapiper.com
RLI CORP: N.J. Court Dismisses Contingent Commissions Litigation
----------------------------------------------------------------
The U.S. District Court for the District of New Jersey has
dismissed a purported class action naming RLI Corp., RLI
Insurance Co., and Mt. Hawley Insurance Co. as defendants.
A putative class of plaintiffs who purchased insurance from the
defendants brought the lawsuit in October 2004 against over 100
insurance brokers and insurance companies.
The lawsuit alleges injury through state and federal antitrust
violations, Racketeer Influenced and Corrupt Organizations Act
violations, breach of fiduciary duties and unjust enrichment
resulting from the payment of contingent commissions by the
defendant insurers to the defendant brokers.
It seeks unspecified amounts in damages, including punitive
damages, as well as other legal and equitable relief. The
company denies the allegations made and are vigorously
contesting the suit.
On April 5, 2007, the court dismissed the case in response to
the defendants' motion to dismiss, and stayed all ongoing
discovery and other action in the case. The court allowed the
plaintiffs 30 days to amend the complaint to state a legally
valid claim.
RLI Corp. -- http://my.rlicorp.com/-- underwrites selected
property and casualty insurance through major subsidiaries
collectively known as RLI Insurance Group
SCHERING-PLOUGH: Discovery is Ongoing in K-DUR Antitrust Suits
--------------------------------------------------------------
Discovery is ongoing in several purported antitrust class
actions filed in the federal and state courts against Schering-
Plough Corp. with regards to the drug, K-DUR.
Schering-Plough had settled patent litigation with Upsher-Smith,
Inc. and ESI Lederle, Inc. relating to generic versions of K-
DUR, Schering-Plough's long-acting potassium chloride product
supplement used by cardiac patients, for which Lederle and
Upsher-Smith had filed Abbreviated New Drug Applications.
Following the commencement of a Federal Trade Commission
administrative proceeding alleging anti-competitive effects from
those settlements, alleged class actions were filed in federal
and state courts on behalf of direct and indirect purchasers of
K-DUR against Schering-Plough, Upsher-Smith and Lederle.
These suits claim violations of federal and state antitrust
laws, as well as other state statutory and common law causes of
action. These suits seek unspecified damages.
Discovery is ongoing, according to the company's April 27, 2007
Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2007.
Kenilworth, New Jersey-based Schering-Plough Corp. --
http://www.schering-plough.com-- is a global science-based
healthcare company with prescription, consumer and animal health
products.
SCHERING-PLOUGH: Still Faces N.J. Suit by Savings Plan Members
--------------------------------------------------------------
Schering-Plough Corp. remains a defendant in a purported class
action pending in the U.S. District Court for the District of
New Jersey against it and Richard Jay Kogan, former chairman of
the board, chief executive officer, president and director of
the company.
The suit was filed on March 31, 2003. It alleges that the
company, Mr. Kogan (who resigned as chairman of the board Nov.
13, 2002, and retired as chief executive officer, president and
director of the company April 20, 2003) and the company's
Employee Savings Plan administrator breached their fiduciary
obligations to certain participants in the Plan.
In May 2003, the company was served with a second putative class
action complaint filed in the same court with allegations nearly
identical to the complaint filed March 31, 2003.
On Oct. 6, 2003, a consolidated amended complaint was filed,
which names as additional defendants' seven current and former
directors and other corporate officers.
The complaint seeks damages in the amount of losses allegedly
suffered by the Plan. The court dismissed this complaint on
June 29, 2004. On July 16, 2004, the plaintiffs filed a Notice
of Appeal.
On Aug. 19, 2005, the U.S. Court of Appeals for the 3rd Circuit
reversed the dismissal by the district court and the matter was
remanded back to the district court for further proceedings.
The company reported no development in the matter in its April
27, 2007 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended March 31, 2007.
Kenilworth, New Jersey-based Schering-Plough Corp. --
http://www.schering-plough.com-- is a global science-based
healthcare company with prescription, consumer and animal health
products.
SIERRA HEALTH: Faces Suit Over Proposed UnitedHealth Group Deal
---------------------------------------------------------------
Sierra Health Services, Inc. is facing a purported class action
in relation to its agreement and plan of merger with
UnitedHealth Group, Inc., and Sapphire Acquisition, Inc., a
Nevada corporation and an indirect wholly-owned subsidiary of
UnitedHealth Group.
On March 19, 2007, a complaint was filed by a purported
stockholder of the company, Edward Sara, on behalf of himself
and all others similarly situated, against Sierra Health
Services, Inc., and directors Anthony M. Marlon, Charles L.
Ruthe, Thomas Y. Hartley, Anthony L. Watson, Michael E. Luce and
Albert L. Greene. The complaint was filed in the 8th Judicial
District Court for the State of Nevada in and for the County of
Clark.
The suit alleges, among other things, that the defendants
breached and/or aided the other defendants' breaches of their
fiduciary duties of loyalty, due care, independence, good faith
and fair dealing in connection with the merger contemplated by
the merger agreement, the defendants breached their fiduciary
duty to secure and obtain the best price reasonably available
for the company and shareholders, and the defendants are
engaging in self-dealing and unjust enrichment.
The complaint seeks, among other relief:
-- an injunction prohibiting the defendants from
consummating the merger unless and until the company
adopt and implement a procedure or process to obtain
the highest possible price for shareholders; and
-- the imposition of a constructive trust upon any
benefits improperly received by the defendants as a
result of the alleged wrongful conduct.
Sierra Health Services, Inc. -- http://www.sierrahealth.com/--
is a managed healthcare organization that provides and
administers the delivery of healthcare programs.
WILMINGTON FINANCE: Faces Labor Code Violations Complaint in Pa.
----------------------------------------------------------------
Wilmington Finance, Inc. is facing a purported class action
filed in the U.S. District Court for the Eastern District of
Pennsylvania alleging Fair Labor Standards Act violations.
Lead plaintiffs Todd Burt, Terry Grayson, John McCarthy, Keith
Walker, Steven Werner and Anthony Wesemann bring this action on
behalf of all individuals who were employed by Wilmington
Finance, as retail loan officers (also known as purchase loan
officers, retention loan officers, account executives and other
similarly-titled positions) during the past three years.
Plaintiffs bring this complaint contending that the defendant
has improperly failed to pay overtime compensation to its retail
loan officers, who worked at its Plymouth Meeting Office,
pursuant to the overtime requirements of the Fair Labor
Standards Act, 29 U.S.C. Section 201 et seq.
They claim that during their employment with defendant,
plaintiffs and similarly situated employees regularly worked
more than 40 hours per week, but were not compensated for their
overtime hours pursuant to the FLSA.
As a result of defendant's alleged improper and willful failure
to pay its retail loan officers in accordance with the overtime
requirements of the FLSA, plaintiffs have allegedly suffered
damages.
Plaintiffs pray that the court enter an order:
-- certifying this action as a collective action pursuant
to 29 U.S.C. Section 216(b), and certifying the Class
set forth in the complaint;
-- ordering Defendant to file with the Court and furnish
to counsel a list of all names and addresses of all
retail loan officers who have worked for Defendant at
its Plymouth Meeting Office during the past three years,
and authorizing Plaintiffs' counsel to issue notice at
the earliest possible time to these individuals,
informing them that this action has been filed, of the
nature of the action, and of their right to opt-in to
this lawsuit if they worked hours in excess of 40 hours
in a week during the liability period, but were not paid
overtime as required by the FLSA;
-- adjudicating and declaring that Defendant's conduct as
set forth in the complaint is in violation of the FLSA;
-- adjudicating and declaring that Plaintiffs and similarly
situated retail loan officers are entitled to overtime
compensation for hours worked in excess of 40 hours per
week;
-- adjudicating and declaring that Defendant violated the
FLSA by failing to pay Plaintiffs and similarly situated
retail loan officers for their hours worked in excess of
40 hours per week;
-- awarding Plaintiffs and similarly situated retail loan
officers overtime wages in an amount consistent with the
FLSA;
-- awarding Plaintiffs and similarly situated retail loan
officers liquidated damages in accordance with the FLSA;
-- awarding Plaintiffs reasonable attorneys' fees and all
costs of this action, to be paid by Defendant, in
accordance with the FLSA;
-- awarding pre and post-judgment interest and court costs
as further allowed by law;
-- granting Plaintiffs and the Class leave to add
additional plaintiffs by motion, the filing of written
consent forms, or any other method approved by the
Court; and
-- for all additional general and equitable relief to which
Plaintiffs and the Class may be entitled.
A copy of the complaint is available free of charge at:
http://ResearchArchives.com/t/s?1e5a
The suit is "Burt et al. v. Wilmington Finance, Inc., Case No.
2:07-cv-01593-NS," filed in the U.S. District Court for the
Eastern District of Pennsylvania under Judge Norma L. Shapiro.
Representing plaintiffs is:
Shannon J. Carson
Berger & Montague PC
1622 Locust St.
Philadelphia, PA 19103
Phone: 215-875-4656
Fax: 215-875-4674
E-mail: scarson@bm.net
XCEL ENERGY: Faces Natural Gas Purchasers' Litigation in Mo.
------------------------------------------------------------
Xcel Energy, Inc. is facing a purported class action alleging
that it falsely reported natural gas trades in an effort to
artificially raise natural gas prices.
The suit, "Heartland Regional Medical Center v. e prime, Xcel
Energy et al.," was filed in March 2007 in the Circuit Court of
Buchanan County, Missouri.
It was brought on behalf of a purported class of natural gas
purchasers alleging that defendants, including e prime and Xcel
Energy, engaged in a conspiracy and falsely reported natural gas
trades in an effort to artificially raise natural gas prices.
The complaint alleges restraint of trade, price manipulation,
and violation of Missouri's antitrust laws. e prime and Xcel
Energy deny the allegations and, together with the other
defendants, intend to seek dismissal of all claims.
Minnesota-based Xcel Energy, Inc. -- http://www.xcelenergy.com/
-- is a holding company engaged in the utility business in the
U.S.
XCEL ENERGY: Awaits Ruling on Natural Gas Suit Dismissal Motion
---------------------------------------------------------------
The U.S. District Court for the District of Kansas has yet to
rule on a motion seeking the dismissal of the class action,
"Learjet, Inc. v. e prime and Xcel Energy et al."
The suit was filed in state court for Wyandotte County of Kansas
on behalf of all natural gas producers in Kansas on Nov. 4,
2005.
The lawsuit alleges that e prime, Inc., Xcel Energy, Inc. and
other named defendants conspired to raise the market price of
natural gas in Kansas by, among other things, inaccurately
reporting price and volume information to the market trade
publications.
On Dec. 7, 2005, the state court granted the defendants motion
to remove this matter to the U.S. District Court in Kansas.
Plaintiffs have filed a motion for remand, which was denied on
Aug. 3, 2006.
Plaintiffs in this matter and in a J.P. Morgan Trust case have
moved the judicial panel on MDL for a separate MDL docket to be
set up in Kansas Federal Court.
Xcel Energy's motion to dismiss the complaint is pending,
according to the company's April 27, 2007 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended March 31, 2007.
The suit is "Learjet, Inc., et al. v. ONEOK, Inc et al., Case
No. 2:05-cv-02513-CM-JPO," filed in the U.S. District of
District of Kansas under Judge Carlos Murguia with referral to
Judge James P. O'Hara.
Representing the plaintiffs are:
Jennifer Gille Bacon, Esq.
Shughart Thomson & Kilroy, PC
Twelve Wyandotte Plaza, 120 West 12th Street
Kansas City, MO 64105
Phone: 816-421-3355
Fax: 816-374-0509
E-mail: jbacon@stklaw.com
- and -
Donald D. Barry, Esq.
Barry Law Offices, L.L.C.
5340 West 17th Street, P.O. Box 4816
Topeka, KS 66604
Phone: 785-273-3153
Fax: 785-273-3159
E-mail: dbarry@inlandnet.net
XEROX CORP: Conn. Court Decertifies Class in ERISA Litigation
-------------------------------------------------------------
The U.S. District Court for the District of Connecticut
decertified the class in a consolidated lawsuit alleging that
Xerox Corp. violated the Employee Retirement Income Security
Act.
On Jul. 1, 2002, a class action complaint "Patti v. Xerox Corp.
et al.," was filed, alleging violations of ERISA. Three
additional class actions -- Hopkins, Uebele and Saba -- were
subsequently filed in the same court making substantially
similar claims.
On Oct. 16, 2002, the four actions were consolidated as "In Re
Xerox Corp. ERISA Litigation." On Nov. 15, 2002, a consolidated
amended complaint was filed.
A fifth class action (Wright) was filed in the District of
Columbia. It has been transferred to Connecticut and
consolidated with the other actions.
The purported class includes all persons who invested or
maintained investments in the Xerox Stock Fund in the Xerox
401(k) Plans (either salaried or union) during the proposed
class period, May 12, 1997 through Nov. 15, 2002, and allegedly
exceeds 50,000 persons.
The defendants include the company and these individuals or
groups of individuals during the proposed class period:
-- Plan Administrator;
-- Board of Directors;
-- Fiduciary Investment Review Committee;
-- Joint Administrative Board;
-- Finance Committee of the Board of Directors; and
-- Treasurer.
The complaint claims that all the foregoing defendants were
fiduciaries of the Plan under ERISA and, as such, were obligated
to protect the Plan's assets and act in the interest of Plan
participants. The complaint alleges that the defendants failed
to do so and thereby breached their fiduciary duties.
Specifically, plaintiffs claim that the defendants failed to
provide accurate and complete material information to
participants concerning company stock, including accounting
practices which allegedly artificially inflated the value of the
stock, and misled participants regarding the soundness of the
stock and the prudence of investing their retirement assets in
company stock.
Plaintiffs also claim that defendants failed to invest Plan
assets prudently, to monitor the other fiduciaries and to
disregard Plan directives they knew or should have known were
imprudent, and failed to avoid conflicts of interest.
The complaint does not specify the amount of damages sought.
However, it asks that the losses to the Plan be restored, which
it describes as "millions of dollars."
It also seeks other legal and equitable relief, as appropriate,
to remedy the alleged breaches of fiduciary duty, as well as
interest, costs and attorneys' fees.
The company filed a motion to dismiss the complaint. The
plaintiffs subsequently filed a motion for class certification
and a motion to commence discovery.
Defendants have opposed both motions, contending that both are
premature before there is a decision on their motion to dismiss.
In the fall of 2004, the court requested an updated briefing on
the company's motion to dismiss and update briefs were filed in
December of that year.
On March 31, 2006, the court granted the company's motion to
postpone consideration of class certification pending
disposition of the company's motion to dismiss, and granted
plaintiffs motion to commence formal discovery.
On April 17, 2007, the court ruled on the motion to dismiss,
granting it in part and denying it in part, and giving the
plaintiffs an opportunity to file an amended complaint within 30
days.
In essence, the court stated that the class period does not
extend past the date on which the complaint was filed, Nov. 15,
2002.
The court also required the plaintiffs to plead with greater
specificity with regard to which defendants are alleged to have
breached which duties, and granted the motion with respect to
the duty of loyalty count, agreeing with defendants that ERISA
does not require fiduciaries to avoid conflicts of interest but
rather sets a loyalty standard to which fiduciaries must adhere
when faced with a conflict of interest.
However, the court did give the plaintiffs leave to replead the
duty of loyalty count.
Further, the court granted the motion as to plaintiffs' prayer
for relief seeking to enjoin the defendants from violating
ERISA, holding that an injunction must be more specific than a
simple command that the defendants obey the law.
The court denied the motion as to the prudence count and the
monitoring count, ruling that further fact development is needed
as to those counts, and, on the disclosure count, determined
that plaintiffs have set forth a claim, rejecting defendants'
assertion that SEC filings made by the company in its corporate
capacity and required by the federal securities laws cannot be
the basis of a fiduciary breach under ERISA even if subsequently
included in disclosures made directly to plan participants.
Finally, the court held that the plaintiffs are not precluded
from pursuing their claims under section 502(a)(2) merely
because any recovery will not be shared by all participants in
the plan but rather by a sub-class of participants who had
invested in Xerox stock during the class period.
Also on April 17, 2007, the court denied plaintiffs' motion to
certify a class and said that subject needs to be addressed in a
scheduling conference that the court will convene if, and after,
plaintiffs file an amended complaint.
The suit is "In Re Xerox Corp. ERISA Litigation, Case No. 3:02-
cv-01138-AWT," filed in the U.S. District Court in Connecticut
under Judge Alvin W. Thompson. Representing the plaintiffs are:
Gary A. Gotto, Esq.
Keller Rohrback
3101 North Central Avenue, Suite 900
Phoenix, Arizona 85012-2600
Phone: 602-230-6322
Fax: 602-248-2822
E-mail: ggotto@kellerrohrback.com
- and -
Charles R. Watkins, Esq.
Susman & Watkins
Two First National Plaza, Suite 600,
Chicago, IL 60603
Phone: 312-346-3466
Fax: 312-346-2829
E-mail: chuckwatkins@ameritech.net.
Representing the defendants are:
William H. Boice, Esq.
Kilpatrick Stockton
1100 Peachtree St., Ste. 2800
Atlanta, GA 30309-4530
Phone: 404-815-6464
Fax: 404-541-3134
E-mail: bboice@kilpatrickstockton.com
- and -
William J. Egan, Esq.
Brown Raysman Millstein Felder & Steiner
City Place II, 185 Asylum Street, 10th Floor
Hartford, CT 06103
Phone: 860-275-6400
Fax: 860-275-6410
E-mail: wegan@brownraysman.com.
* Oklahoma Gov. Vetoes S.B. 507, Seeks Compromise Before June
-------------------------------------------------------------
Oklahoma Gov. Brad Henry vetoed amendments made in Senate Bill
507, a major tort reform bill that would have altered
procedures, requirements and rewards for class actions, Louise
Esola of Business Insurance reports.
In a press statement regarding S.B. 507, Gov. Henry said that he
was working with lawmakers to address a number of legal concerns
with the 130-page measure, but "time ultimately ran out" and he
was forced to veto the bill.
The governor, who reiterated that he generally supports tort
reform, also said in the press statement in which he cited
concerns with the bill, "I plan to continue the good-faith
discussions that began several days ago in hopes of reaching a
consensus and passing a comprehensive reform package before the
legislature adjourns at the end of May."
Additionally, the governor pointed out that a chief concern was
that the measure "tied the state's hands in legal actions
designed to protect the citizenry, and the legislation did
little to curb frivolous lawsuits, the chief complaint of many
business owners."
Business Insurance reports that Oklahoma Attorney General Drew
Edmondson had asked the governor to veto the legislation, saying
parts of the bill would severely hamper the state in its
litigation.
The attorney general said in a prepared statement, said "While
the state is often a defendant in civil cases, and we welcome
reform efforts in many regards, it is important to remember that
the state is sometimes a plaintiff."
He also said, "Our ability to pursue actions on behalf of the
state or the people of the state will be severely crippled if
this bill becomes law."
Senate Bill 507
S.B. 507 concerns class actions and is part of a civil justice
measure that also caps pain and suffering damages, provides
liability protection to educators and makes other changes in
Oklahoma's civil justice system.
Recently, the Oklahoma State Senate passed on to Gov. Brad Henry
the amendments made by the state House of Representatives to
S.B. 507. It was touted as a comprehensive lawsuit restriction
bill (Class Action Reporter, April 25, 2007).
The legislation was previously passed in the Senate as a measure
that would have offered liability protection to volunteers
providing transportation services as part of their volunteer
work, as well as liability to firearms manufacturers from
lawsuits.
Sen. Cliff Branan, R-Oklahoma City; Sen. Owen Laughlin, R-
Woodward; Sen. James Williamson, R-Tulsa; Rep. Rob Johnson, R-
Kingfisher; and Rep. Daniel Sullivan, R-Tulsa, are the authors
of the bill.
With House changes, the main elements of S.B. 507 would be to:
-- prevent frivolous lawsuits and require the loser to pay
attorney fees and costs;
-- reform class actions and attorney fees in class
actions;
-- place limits on product liability actions;
-- eliminate joint and several liability for defendants
less than 50 percent at fault;
-- enact $300,000 cap on non-economic damages; and
-- Require reduction of damage awards by percentage of
responsibility of a settling party.
Supporters of S.B. 507 believe that the bill and changes made to
it would help the state attract business and reduce a company's
legal risks. They also believe that the number of frivolous
lawsuits filed in the state will be alleviated.
However, opponents argued that the changes could also strip away
the rights of royalty owners and other groups. The state's oil
and gas royalty owners specifically pointed out that the change
would remove accountability and give energy firms unprecedented
protection when they are accused of cheating royalty owners.
New Securities Fraud Cases
ALLOT COMMUNICATIONS: Lerach Files Securities Fraud Suit in N.Y.
----------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins LLP announced that
a class action has been commenced in the U.S. District Court for
the Southern District of New York on behalf of investors of
Allot Communications Ltd. who purchased the common stock of
Allot pursuant and/or traceable to the company's Registration
Statement and Prospectus for its initial public offering on Nov.
15, 2006, seeking to pursue remedies under the Securities Act of
1933.
The complaint charges Allot and certain of its officers,
directors and underwriters with violations of the Securities Act
of 1933. It alleges that the Registration Statement and
Prospectus issued in connection with the IPO were negligently
prepared and, as a result:
-- contained untrue statements of material facts;
-- omitted to state other facts necessary to make the
statements made therein not misleading; and
-- were not prepared in accordance with the rules and
regulations governing their preparation.
Specifically, the complaint alleges, among other things, that
the Registration Statement and Prospectus included
representations that the company would achieve its goal in
becoming the leader in its industry through its ability to
market and sell its products to end-customers through its
channel partners.
In fact, according to the complaint, the Registration Statement
and Prospectus failed to disclose that Allot was experiencing
declining sales in its indirect distribution channels, such as
enterprise, education and smaller ISP customers, in North
America.
On April 2, 2007, Allot issued a press release announcing that
revenues and earnings for the first quarter of 2007 and the 2007
fiscal year would be lower than its previous guidance -- given
less than two months ago. The company attributed the lower
guidance to "weakness in sales from some of the company's
distributors, principally in the Americas, which are focused on
sales to enterprise, education, and smaller ISPs."
In response to the announcement about the company's revised
guidance, on April 2, 2007, the price of Allot stock declined
precipitously falling from $9.15 per share to $7.11 per share --
approximately 40% below the IPO price -- on heavy trading
volume.
Plaintiff seeks to recover damages on behalf of all those who
purchased the common stock of Allot pursuant and/or traceable to
the company's Registration Statement and Prospectus for its IPO
on Nov. 15, 2006.
Allot is a designer, developer, marketer, and seller of
broadband service optimization solutions. The company's
solutions provide broadband service providers and enterprises
with real-time visibility into, and control of, network traffic.
For more information, contact plaintiff's counsel:
Samuel H. Rudman, Esq.
Mario Alba, Jr., Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800/449-4900 or 619/231-1058
E-mail: wsl@lerachlaw.com
*********
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