/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070607.mbx C L A S S A C T I O N R E P O R T E R Thursday, June 7, 2007, Vol. 9, No. 112 Headlines BMW NORTH: N.J. Lawsuit Alleges Defects in E46 Model Cars BMW NORTH: Cal. Suit Claims 3 Series Tires Wear Out Prematurely BROCADE COMMUNICATIONS: Wilson Sonsini Clarifies Lawyer Status CANADIAN IMPERIAL: Faces CAD600M Suit for Overtime Non-Payment CONSECO INC: Cal. Court Approves Insurance Fraud Suit Settlement CONSECO INSURANCE: 2008 Trial Set for Annuity Products Lawsuit ELECTRONIC DATA: Court Vacates Class Certification in Tex. Suit FIRST HOME: Fla. Suit Alleges Scam in Sub-Prime Realty Finance FNC INC: Accused of Fraudulently Marketing Appraisers’ Report GOOGLE INC: French Sports Groups Sue YouTube for Infringement JDS UNIPHASE: Central States Action Assigned to Judge Wilken JDS UNIPHASE: Hearing Date for Securities Suit Yet to be Set JDS UNIPHASE: Management Conference Set June 28 in OCLI Lawsuit JDS UNIPHASE: June 19 Conference Set in SDL Shareholders Suit JDS UNIPHASE: June 22 Conference Set for Calif. Securities Suit JDS UNIPHASE: Parties Seek Trial Extension for Calif. ERISA Suit KAPLAN INC: BAR/BRI Suit Lawyer Seeks Co-lead Counsel Status KAZUMA MARKET: Refuses to Recall ATVs Found Defective and Unsafe MICHIGAN: Doctor Recommends Inmates Get Kidney Transplants NYSE EURONEXT: Sea Carriers Files $4B Antitrust Lawsuit OAKLEY INC: Faces Suit in Calif. Over Alleged FCRA Violations ORIENT EXPRESS: To Opt Out of Suit Over Airline Fuel Surcharges OWEN ELECTRIC: Wire Runners Sue for Unpaid Overtime Wages PACIFIC CAPITAL: Seeks Review of Ruling in “Canieva Hood” Case REALLY COOL: Recalls Chicken Products with L. Monocytogenes UNITED FOOD: Recalls Ground Beef Due to Possible Contamination UNITED NATIONS: Sued for Not Shielding Civilians from Genocide UNITED STATES: Postal Service Settles Bias Lawsuit for $61M UNITED STATES: Ill Nuclear Workers Sue Over Poor Medical Care VANCITY: Customer Sues to Seek Refund for Overdraft Fees VISTEON CORP: Court Gives Final OK to $7.6M “Skiles” Settlement VISTEON CORP: Seeks Dismissal of ERISA Violations Suit in Mich. WACHOVIA MORTGAGE: Penna. Lawsuit Alleges RESPA Violations WORLDCOM INC: Auction of Brookhaven Country Club Set June 19 New Securities Fraud Cases XINHUA FINANCE: Lerach Coughlin Files N.Y. Securities Fraud Suit ********* BMW NORTH: N.J. Lawsuit Alleges Defects in E46 Model Cars --------------------------------------------------------- BMW of North America, LLC is facing a class-action complaint filed May 31 in the U.S. District Court for the District of New Jersey accusing it of selling E46 Model cars with defective subframes. BMW introduced the E46 automobile platform to its popular 3 Series entry- level luxury car line in 1998. The class vehicles include, but are not limited to models: -- 316i -- 316i/t -- 318i -- 3181/Ci/Ti -- 320i -- 320i/Ci -- 323i -- 325i/xi/Ci/ti -- 328i/Ci -- 330i/xi/Ci -- M3 -- M3 CSL -- 318d/td -- 320d -- 320d/cd/td -- 330d/xd/cd Plaintiffs allege that the class vehicles were negligently designed and/or manufactured by BMW in such a way as to, inter alia, allow the subframe of the vehicle to separate from the body. Specifically, the manufacturing and/or design defects include, but are not limited to a weak or insufficient floor panel in the unibody of the class vehicles that causes, among other things, cracking in the floor pan and misalignment, cracking or the complete o partial failure of the rear subframe of the vehicle. BMW's class vehicles, containing this common design and/or manufacturing defects violate accepted engineering and/or automobile industry principles, standards, and guideline, as well as BMW internal standards for vehicle design and manufacture. Named plaintiffs Stan Solowski and Martin otwinowski files the suit on behalf of a class of owners and/or lessees of BMW E46 passenger vehicles that contain defects in the rear subframe. They want the court to rule on: (a) whether the class vehicles contain a weak or insufficient floor panel in the unibody of the class vehicles that causes, among other things, cracking in the floor pan and misalignment, cracking or the complete or partial failure of the rear subframe of the vehicle; (b) whether BMW has failed to service, repair, correct or address the alleged defects and provide consumers with a non-defective vehicle; (c) whether BMW has failed to breached its warranty due to the existence of the alleged defects; (d) whether plaintifffs and the class are entitled to revoke acceptance and/or rescind its contracts of sale and/or lease, as appropriate; (e) whether BMW has concealed or misrepresented information concerning the alleged defects of the class vehicles; (f) whether the class vehicles, as a result of the alleged defects are inherently defective and not of merchantable quality; and (g) whether the plaintiffs and the class, as a result of BMW's breach and misconduct, are entitled to injunctive relief, and the amount of such relief. Plaintiffs are seeking compensatory damages, punitive damages, attorney's fees, interest, costs of suit, and such other relief as the court deems equitable and just. The suit is “Solowski et al. v. BMW of North America, LLC, Case No. 2:07-cv- 02543-HAA-ES,” filed in the U.S. District Court for the District of New Jersey under Judge Harold A. Ackerman with referral to Judge Esther Salas. Representing plaintiffs are: Eric D. Katz David A. Mazie Mazie, Slater, Katz & Freeman, LLC 103 Eisenhower Parkway Roseland, NJ 07068 Phone: (973) 618-0400 or (973) 229-9898 E-mail: ekatz@mskf.net or dmazie@mskf.net BMW NORTH: Cal. Suit Claims 3 Series Tires Wear Out Prematurely --------------------------------------------------------------- BMW of North America, LLC is facing a class-action complaint filed May 31 in the U.S. District Court for the Northern District of California. Named plaintiffs Kevin Morris and Glenn R. Semow accuse BMW of providing defective run-flat tires on its 2006 and 2007 3 Series cars that wear out prematurely, sometimes after less than 10,000 miles. They demand a jury trial. The suit is “Morris et al. v. BMW of North America, LLC, Case No. 3:07-cv- 02827-WHA,” filed in the U.S. District Court for the Northern District Court of California under Judge William H. Alsup. Representing plaintiffs is: Mark F. Anderson Kemnitzer, Anderson, Barron & Ogilvie 445 Bush St., 6th Floor San Francisco, CA 94108 Phone: 415-861-2265 Fax: 415-861-3151 E-mail: mark@kabolaw.com BROCADE COMMUNICATIONS: Wilson Sonsini Clarifies Lawyer Status -------------------------------------------------------------- Wilson Sonsini Goodrich & Rosati remains counsel to Brocade Communications Systems Inc. in a securities fraud suit filed against the company, though it would not be acting in the same capacity in a case against former Brocade chief executive Gregory Reyes, James Illman of Legalweek.com reports. Brocade filed papers on June 1 indicating it wants to replace Wilson Sonsini with Bay Area rival Cooley Godward Kronish as counsel on the case over Mr. Reyes’ involvement with backdated share options. The replacement came after Northern District of California Judge Charles Breyer said in court last month that Wilson has an apparent conflict. Mr. Reyes, who is facing criminal options-related charges, has blamed lead Wilson partner Larry Sonsini for his predicament, The Recorder reports. A statement from the firm said: “Wilson Sonsini remains counsel to Brocade in connection to a number of proceedings and lawsuits relating to the company's historical stock option granting practices. We remain counsel to Brocade in its class action securities lawsuit. We continue to represent Brocade in connection with the government investigations and we remain counsel for many of the individuals named as defendants in the federal and state derivative cases. We also continue to be the company's principal outside corporate counsel.” Wilson Sonsini on the Net: http://www.wsgr.com/WSGR/Index.aspx. Brocade Communications -- http://www.brocade.com-- through its subsidiaries, engages in the design, development, marketing, sale, and support of data storage networking and data management solutions. It offers storage networking switches, which provide bandwidth and high-speed routing of data; port switches, including fixed-port services, modular chassis, and embedded blades; and support key applications, such as data backup, remote mirroring, and clustering, as well as provides transaction processing applications that consist of enterprise resource planning and data warehousing. CANADIAN IMPERIAL: Faces CAD600M Suit for Overtime Non-Payment -------------------------------------------------------------- A Toronto bank teller sued the Canadian Imperial Bank of Commerce Tuesday in Ontario Superior Court on behalf of 10,000 current and former non-management employees across Canada, Tobi Cohen of Canadian Press Reports. Dara Fresco, 34, lead plaintiff in the class action, has a 10-year banking career with CIBC. She’s still working at a Toronto CIBC branch. Ms. Fresco, represented by Attorney Douglas Elliott, claims the bank owes her about $50,000 for overtime work in the past 10 years. The suit further alleges that CIBC assigns non-management employees heavy tasks that are almost impossible to complete within regular working hours and are discouraged to claim overtime. Louis Sokolov, one of the plaintiffs’ lawyers, said in a press release, “Banks are regulated by the Canada Labour Code which specifically states that federally incorporated businesses may not require or permit non- management employees to work beyond eight hours per day or forty hours perweek without paying overtime.” The action, which is considered to be the “largest unpaid class action ever launched in Canada,” seeks approximately CAD600 million in damages. The CIBC released a statement saying it has a “clearly defined” overtime policy that “exceeds legislative requirement.” It has 30 days to answer the suit. The firm could also choose to wait until the class action is certified, which may take a year. Plaintiffs’ counsels are: Douglas Elliott, Esq. REKO LLP Barristers 200 Front Street West, 23rd Floor P.O. Box #45 Toronto, ON M5V 3K2 Phone: 416 362 1989 Fax: 416 362 6204 E-mail: info@reko.ca - and - Steven Barrett, Esq. Louis Sokolov, Esq. Sack Goldblatt Mitchell LLP 20 Dundas Street West, Suite 1100 Toronto, Ontario M5G 2G8 Phone: 416-977-6070 Toll Free: 1-800-387-5422 Fax: 416-591-7333 CONSECO INC: Cal. Court Approves Insurance Fraud Suit Settlement ---------------------------------------------------------------- The U.S. District Court for the Central District of California granted preliminary approval to a settlement of a consolidated life insurance fraud class action filed against Conseco, Inc. The company and certain subsidiaries, including principally Conseco Life Insurance Co., were named in numerous purported class action and individual lawsuits alleging, among other things, breach of contract, fraud and misrepresentation with regard to a change made in 2003 and 2004 in the way cost of insurance charges are calculated for life insurance policies sold primarily under the names "Lifestyle" and "Lifetime". Approximately 86,500 of these policies were subject to the change, which resulted in increased monthly charges to the policyholders' accounts. Many of the purported class actions were filed in federal courts across the U.S. In June 2004, the Judicial Panel on Multidistrict Litigation consolidated these lawsuits into the action now referred to as "In Re Conseco Life Insurance Co. Cost of Insurance Litigation, Cause No. MDL 1610." In September 2004, plaintiffs in the multi-district action filed an amended consolidated complaint and, at that time, added Conseco, Inc. as a defendant. The amended complaint alleges, among other things that the change enabled Conseco, Inc. to add $360 million to its balance sheet. It seeks unspecified compensatory, punitive and exemplary damages as well as an injunction that would require the company to reinstate the prior method of calculating cost of insurance charges and refund any increased charges that resulted from the change. On April 26, 2005, the judge in the multi-district action certified a nationwide class on the claims for breach of contract and injunctive relief. On April 27, 2005, the Judge issued an order certifying a statewide California class for injunctive and restitutionary relief pursuant to California Business and Professions Code Section 17200 and breach of the duty of good faith and fair dealing, but denied certification on the claims for fraud and intentional misrepresentation and fraudulent concealment. The Company announced on August 1, 2006, that it has reached a proposed settlement of this case. Under the proposed settlement, inforce policyholders will have an option to choose a form of policy benefit enhancement and certain former policyholders will share in a settlement fund by either receiving cash or electing to reinstate their policies with enhanced benefits. The company expects to implement the settlement with the inforce and certain former policyholders in the third quarter of 2007. On Feb. 12, 2007 the court granted preliminary approval of the settlement. The fairness hearing is scheduled to occur in May 2007 where the court will consider final approval of the settlement as well as any related objections, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "In re Conseco Life Insurance Company Cost of Insurance Litigation, Case No. 2:04-ml-01610-AHM-Mc," filed in the U.S. District Court for the Central District of California under Judge A. Howard Matz. Representing the plaintiffs are: Christopher Casper, Esq. John Yanchunis, Esq. James Hoyer Newcomer & Smiljanich 1 Urban Centre, 4830 W Kennedy Blvd., Ste. 550 Tampa, FL 33609 Phone: 813-286-4100 Timothy P. Dillon, Esq. Timothy P. Dillon Law Offices 361 Forest Avenue, Suite 205 Laguna Beach, CA 92651 Phone: 949-376-2800 E-mail: timothy@dillonlaw.net Representing the company is: Timothy G. Majors, Esq. Brent L. Caslin, Esq. Michael S. McCauley, Esq. Kirkland & Ellis 777 S. Figueroa St., Ste. 3700 Los Angeles, CA 90017 Phone: 213-680-8400 and 213-680-8686 E-mail: bcaslin@kirkland.com mmccauley@kirkland.com CONSECO INSURANCE: 2008 Trial Set for Annuity Products Lawsuit -------------------------------------------------------------- A Feb. 12, 2008 trial is set for a consolidated consumer fraud class action against Conseco Insurance Co. over the sale of annuity products to seniors 65 years and older. On Nov. 17, 2005, the complaint "Robert H. Hansen v. Conseco Insurance Co., f/k/a Conseco Annuity Assurance Co., Case No. C0504726" was filed in the U.S. District Court for the Northern District of California. Plaintiff in this putative class action purchased an annuity in 2000 and is claiming relief on behalf of the proposed national class over alleged: -- violations of the Racketeer Influenced and Corrupt Organizations Act; -- elder abuse; -- unlawful, deceptive and unfair business practices; -- unlawful, deceptive and misleading advertising; -- breach of fiduciary duty; aiding and abetting of breach of fiduciary duty; and -- unjust enrichment and imposition of constructive trust. On Jan. 27, 2006, a similar complaint was filed in the same court, “Friou P. Jones, on Behalf of Himself and All Others Similarly Situated v. Conseco Insurance Company, an Illinois company f/k/a Conseco Annuity Assurance Company, Cause No. C06-00537.” Mr. Jones had purchased an annuity in 2003. Each case alleged that the annuity sold was inappropriate and that the annuity products in question are inherently unsuitable for seniors age 65 and older. On March 3, 2006 a first amended complaint was filed in the Hansen case adding causes of action for fraudulent concealment and breach of the duty of good faith and fair dealing. In an order dated April 14, 2006, the court consolidated the two cases under the original Hansen cause number and retitled the consolidated action: “In re Conseco Insurance Co. Annuity Marketing & Sales Practices Litigation.” A motion to dismiss the amended complaint was granted in part and denied in part, and the plaintiffs filed a second amended complaint. The second amended complaint includes the same causes of action as the prior complaint, but adds as defendants Conseco, Inc., Conseco Services, LLC, Conseco Marketing, LLC and 40|86 Advisors, Inc. The company intends to file a motion to dismiss the second amended complaint. The case is set for trial commencing Feb. 12, 2008, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "Robert H. Hansen v. Conseco Insurance Co., Case No. 5:05-cv- 04726-RMW," filed in the U.S. District Court for the Northern District of California under Judge Ronald M. Whyte with referral to Judge Richard Seeborg. Representing the plaintiffs are: Howard D. Finkelstein, Esq. Finkelstein & Krinsk 501 West Broadway, Suite 1250 San Diego, CA 92101-3593 Phone: 619-238-1333 Fax: 619-238-5425 E-mail: fk@classactionlaw.com Andrew S. Friedman, Esq. Bonnett Fairbourn Friedman & Balint, P.C. 2901 N. Central Avenue, Suite 1000 Phoenix, AZ 85012 Phone: 602-274-1100 Fax: 602-274-1199 - and - John J. Stoia, Jr., Esq. Lerach Coughlin Stoia Geller Rudman & Robbins, LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Phone: (619) 231-1058 Fax: (619) 231-7423 E-mail: jstoia@lerachlaw.com Representing the defendants are: Thomas A. Doyle, Esq. James J. Dries, Esq. Mark L. Karasik, Esq. Baker & McKenzie, LLP 130 E. Randolph Drive, Suite 3500 Chicago, IL 60601 Phone: 312-861-8000 Fax: 312-861-2899 E-mail: Thomas.A.Doyle@bakernet.com James.J.Dries@bakernet.com Mark.L.Karasik@bakernet.com ELECTRONIC DATA: Court Vacates Class Certification in Tex. Suit --------------------------------------------------------------- The U.S. Court of Appeals for the Fifth Circuit vacated a class certification decision by the U.S. District Court for the Eastern District of Texas in a purported Employee Retirement Income Security Act violations class action against Electronic Data Systems Corp. Initially, five class actions were filed on behalf of participants in the Electronic Data Systems 401(k) Plan against the company, certain of its current and former officers and, in some cases, its directors, alleging the defendants breached their fiduciary duties under the Employee Retirement Income Security Act and made misrepresentations to the class regarding the value of EDS shares. All of the foregoing cases have been centralized in the U.S. District Court for the Eastern District of Texas. On July 7, 2003, the lead plaintiffs in the consolidated ERISA action each filed a consolidated class action complaint. The consolidated complaint in the ERISA action alleges violation of fiduciary duties under ERISA by some or all of the defendants and violation of Section 12(a)(1) of the U.S. Securities Act by selling unregistered Electronic Data Systems shares to plan participants. The defendants in the ERISA claims are Electronic Data Systems, certain current and former officers of Electronic Data Systems, members of the Compensation and Benefits Committee of its Board of Directors, and certain current and former members of the two committees responsible for administering the plan. On Nov. 8, 2004, the District Court certified a class in the ERISA action on certain of the allegations of breach of fiduciary duty, of all participants in the Electronic Data Systems 401(k) Plan and their beneficiaries, excluding the defendants, for whose accounts the plan made or maintained investments in Electronic Data Systems stock through the Electronic Data Systems Stock Fund between Sept. 7, 1999 and Oct. 9, 2002. Also on that date the court certified a class in the ERISA action on the allegations of violation of Section 12(a)(1) of the U.S. Securities Act of all participants in the Plan and their beneficiaries, excluding the defendants, for whose accounts the Plan purchased EDS stock through the Electronic Data Systems Stock Fund between Oct. 20, 2001 and Nov. 18, 2002. On December 29, 2004, the U.S. Court of Appeals for the Fifth Circuit granted the company's petition to appeal the class certification order from the District Court, and oral arguments were heard on the appeal on April 5, 2005. On Jan. 18, 2007, the Fifth Circuit Court of Appeal issued its decision vacating the district court's class certification decision and remanding the matter to the district court to re-evaluate whether the action may be maintained as a class certification in light of the Fifth Circuit's opinion and instructions, according to the company’s May 8, 2007 Form 10-Q with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is “In re Electronic Data Systems Corp. ERISA Litigation, Case No. 6:03-MD-1512,” filed in the U.S. District Court for the Eastern District of Texas under Judge Leonard Davis. Represented the are plaintiffs is: Barry C. Barnett, Esq. Susman Godfrey LLP 901 Main Street, Suite 4100 Dallas, Texas 75202-3775 Phone: 214-754-1900 Fax: 214-754-1933 Representing the defendants are: David J. Bailey, Esq. Michael McConnell, Esq. Jones Day 1420 Peachtree Street, Suite 800 Atlanta, GA 30309-3053 Phone: 214/969-3700 Fax: 12149695100 E-mail: djbailey@jonesday.com mmcconnell@jonesday.com - and - Richard P. Keeton, Esq. Nickens Keeton Lawless Farrell & Flack 600 Travis, Suite 7500 Houston, TX 77002 Phone: 713/571-9191 Fax: 713/571-9652 E-mail: rkeeton@nickenskeeton.com FIRST HOME: Fla. Suit Alleges Scam in Sub-Prime Realty Finance -------------------------------------------------------------- First Home Builders of Florida is facing a class-action complaint filed May 30 in the U.S. District Court for the Middle District of Florida, alleging Florida’s largest home-builder in Lee County ran a subprime mortgage scam with assistance from D’Alessandro & Woodyard, one of the area’s largest real estate brokerages. Also named defendant in the complaint is K. Hovnanian Homes, which bought First Home in August 2005. Named plaintiffs Randolph Sewell and Daphne Sewell sue for, inter alia, federal securities fraud, breach of the implied covenant of good faith and fair dealing, and violations of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. Section 1701 et seq., and Florida's Deceptive and Unfair Trade Practices Act, Florida Statutes, Section 501.201 et. seq., in connection with the offering and sale of real estate investment opportunities in Lee County, Florida. According to the complaint, defendants promised 14 percent annual returns through a “Lease To Own” program, in which would supply lessees with poor credit to “investors” who bought new homes; the lessees would get options to buy the homes within three years, at a “promised” annual appreciation of 14 percent. The D&W prospectus “explains that investors will realize their guaranteed 14 percent annual rate of return when the ‘ready-made’ tenant procured by D&W ‘buys’ the investor out of the deal. In the “Exit Strategy,” D&W explains that this ‘buyout’ is made possible through the tenant’s successful procurement of refinancing in the ‘sub-prime’ lending market, and that they will be ‘coached’ in this process by D&W and its affiliates.” According to plaintiffs, they “invested” $15,000 in three such homes, couldn’t get financing, and stand to lose everything. Plaintiffs bring this action on behalf of all persons who received the "First Home Lease Purchase Investment Opportunity" prospectus and thereafter purchased properties from First Home Builders in Cape Coral and Lehigh Acres, Florida for investment purposes. Questions raise include: (a) whether defendants violated the federal securities laws by inducing purported class members to purchase investment properties from First Home Builders based upon false and misleading representations contained in the Prospectus and in oral communications with the Plaintiffs and class members; (b) whether defendants violated the Interstate Land Sales Full Disclosure Act by inducing purported class members to purchase investment properties from First Home Builders based upon false and misleading representations contained in the Prospectus and in oral communications; (c) whether defendants' actions also constitute deceptive and unfair trade practices, in violation of Sections 501.201 to 501.213, Florida Statutes; (d) whether defendants D&W and First Home Builders breached their contractual obligations to purported class members failing to obtain tenants for the purchased properties. Plaintiffs demand the following relief: -- that the court certify the case as a class action and appoint the plaintiffs as class representatives and plaintiffs' counsel as class counsel; -- that judgment be entered against defendants in the amount of their damages incurred with interest thereon, including reasonable attorneys' fees and costs; -- that the court order such other relief as it deems just and proper, including, but not limited to, rescission of the subject purchase agreements and the return of each purchaser's down payment or contract deposit (as well as any other monies paid to defendants). The suit is “Sewell et al. v. D'Alessandro & Woodyard, Inc. et al., Case No. 2:07-cv-00343-JES-SPC,” filed in the U.S. District Court for the Middle District of Florida under Judge John E. Steele with referral to Judge Sheri Polster Chappell. Representing plaintiffs are: Gary C. Rosen Daniel L. Wallach Becker & Poliakoff, P.A. Emerald Lake Corp Pk 3111 Stirling Rd. Ft. Lauderdale, FL 33312-9057 Phone: 954/987-7550 Fax: 954/985-4176 E-mail: bthomas@becker-poliakoff.com or dwallach@bellsouth.net FNC INC: Accused of Fraudulently Marketing Appraisers’ Report ------------------------------------------------------------- Mortgage technology firm FNC Inc. is facing a class action filed by a group of professional appraisers in Maryland, Virginia and Oklahoma. The appraisers accuse FNC of systematically taking their appraisal report information and marketing them to lenders and developers of electronic substitutes for traditional appraisals. The information is allegedly converted into electronic formats before being sent to mortgage-lender customers. The company is accused of False Advertising under the Lanham Act, Intentional Misrepresentation (Fraud), Negligent Misrepresentation; Conversion, Misappropriation, and Breach of Bailment Breach of Implied Contract. Plaintiffs claim that FNC defrauded thousands of appraisers into using its “secure” AppraisalPort system, only to find out FNC is accessing and marketing it, cutting appraisers out of potential additional business with no compensation. "The Plaintiffs bring this action as a class action on behalf of all appraisers, including both individuals and entities engaged in performing appraisals, who have used the AppraisalPort web service of FNC since its inception through at least April 2007, and who were damaged thereby." The suit was filed in the U.S. District Court for the District of Maryland by Harold H. Huggins Realty Inc. of Burtonsville, Maryland and P.E. Turner & Co. Ltd. of Richmond Virginia, and Residential Appraisal and Consulting Inc. of Tulsa Oklahoma. It was filed on May 9, 2007. The appraisers are seeking a minimum of $25 million plus punitive damages. Representing the plaintiffs are: Tobey B. Marzouk, Esq. Marzouk & Parry 1120 19th St., N.W., Suite 750 Washington, D.C. 20036 Phone: 202-463-7293 Fax: 202-955-9371 Paul G. Gaston, Esq. Law Office of Paul G. Gaston 1120 19th St. N.W., Suite 750 Washington D.C. 20036 Phone: 202-296-5856 Fax: 202-296-4154 E-mail: pgaston@attglobal.net GOOGLE INC: French Sports Groups Sue YouTube for Infringement ------------------------------------------------------------- French sports groups have joined a class action that accuses YouTube and parent company Google of copyright violations, Greg Sandoval of the CNET News.com reports. Last month, the Football Association Premier League Limited, the premier league of English soccer, and independent music publisher Bourne Co. filed a class action in the U.S. District Court for the Southern District of New York to stop the alleged unauthorized and uncompensated use of their creative and other copyrighted works and those of all other similarly situated copyright holders on the YouTube.com website (Class Action Reporter, May 7, 2007). The lawsuit names as defendants: -- YouTube, Inc.; -- YouTube LLC; as well as -- YouTube's corporate parent, Google, Inc. According to the complaint, "Defendants are pursuing a deliberate strategy of engaging in, permitting, encouraging, and facilitating massive copyright infringement on the YouTube website" in order to build traffic to the site. The complaint alleges that the YouTube defendants have long been aware of this pattern of massive infringement yet purposefully refrain from employing readily available measures to curb it because the defendants understand that the popularity of ouTube.com (and its value as a platform for other uses) derive primarily from the ability of website visitors to access, view, and otherwise exploit copyrighted materials without having to pay the owners of those materials. The complaint further alleges that it was this very business model that persuaded defendant Google to pay $1.65 billion to purchase YouTube in November 2006, and that Google has endorsed and directed YouTube's infringing conduct since becoming its corporate parent. The Federation Francaise de Tennis and Ligue de Football Professionnel are the latest to join legal action against video-sharing site YouTube. The company has argued in the past that a safe harbor within the Digital Millennium Copyright Act protects it from being held responsible for the hundreds of clips users post daily to the site without the permission of copyright holders. Nonetheless, the number of companies willing to challenge that assertion continues to grow. According to Mr. Sandoval, media conglomerate Viacom filed a $1 billion copyright suit against Google in March. Robert Tur, a Los Angeles-based journalist, was the first to file copyright claims against YouTube last July. Those that are part of the class action are seeking unspecified damages as well as an injunction to force YouTube to change its business model, said Louis Solomon, one of the attorneys representing the plaintiffs in the suit and a partner at the firm Proskauer Rose. "We formed a firm conclusion that on Google and YouTube there is rampant copyright infringement," Mr. Solomon said. "We think it's wrong and are eager for a judge to decide the issue." The YouTube Class Action on the net: http://www.youtubeclassaction.com/ Federation Francaise de Tennis is the group that puts on the French Open, one of the grand-slam events in tennis. Ligue de Football Professionnel manages two of France's top professional divisions, which produced French soccer great Zinedine Zidane. Cherry Lane owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas. The suit is "The Football Association Premier League Limited, et al. v. YouTube, Inc., et al.," filed in the U.S. District Court for the Southern District of New York. Representing plaintiffs are: Louis M. Solomon, Esq. Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299 Phone: (212) 969-3000 - and - Max W. Berger, Esq. 1285 Avenue of the Americas New York, NY 10019 Phone: (212) 554-1400 JDS UNIPHASE: Central States Action Assigned to Judge Wilken ------------------------------------------------------------ JDS Uniphase Corp. faces another purported securities fraud class action filed in the U.S. District Court for the Northern District of California on Jan. 29, 2007. That action, “Central States Southeast and Southwest Areas Pension Fund v. JDS Uniphase Corp., No. 07-0584,” is based on allegations similar to those made in “In re JDS Uniphase Corporation Securities Litigation” and asserts claims under Sections 10(b), 14(a), and 20(a) of the Securities Exchange Act of 1934 and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933. The Central State complaint, which was filed against the Company and certain of its officials, seeks unspecified damages on behalf of a pension fund that purportedly purchased Company securities between October 28, 1999, and July 26, 2001, and elected to opt-out of participation in “In re JDS Uniphase Corporation Securities Litigation.” On Feb. 14, 2007, the Central States action was deemed related to “In re JDS Uniphase Corporation Securities Litigation” and was assigned Judge Claudia Wilken. The suit is “Central States, Southeast and Southwest Areas Pension Fund v. JDS Uniphase Corporation et al., Case No. 4:07-cv-00584-CW,” filed in the U.S. District Court for the Northern District of California under Judge Claudia Wilken with referral to Judge Elizabeth D. Laporte. Representing the plaintiffs is: William S. Lerach, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 E-mail: e_file_sf@lerachlaw.com Representing the defendants is: Jordan Eth, Esq. Morrison & Foerster 425 Market Street San Francisco, CA 94105-2482 Phone: 415-268-7000 Fax: 415-268-7522 E-mail: jeth@mofo.com JDS UNIPHASE: Hearing Date for Securities Suit Yet to be Set ------------------------------------------------------------ The U.S. District Court for the Northern District of California has yet to set a trial date for the purported securities fraud class action, "Zelman v. JDS Uniphase Corp., Case No. 02-4656." The suit was purportedly brought on behalf of a class of purchasers of debt securities that were allegedly linked to the price of the company's common stock. The Zelman complaint states that an investment bank issued the debt securities during the period from March 6, 2001 through July 26, 2001. It names the company and several of its former officers and directors as defendants for alleged violations of the federal securities laws, specifically Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, and seeks unspecified damages. On Aug. 26, 2005, defendants answered the complaint. On Nov. 16, 2005, the court granted plaintiffs' motion for class certification, which defendants had not opposed. At a case management conference on Nov. 18, 2005, the court ordered that discovery in the Zelman action proceed according to the same schedule as discovery, "In re JDS Uniphase Corp. Securities Litigation, C-02-1486," which is pending in the same court. On Jan. 9, 2006, the court granted plaintiffs' motion for approval of their proposed form and method of class notice, which defendants had not opposed (Class Action Reporter, Sept. 22, 2006). Accordingly, the deadline for fact discovery in the Zelman action, except for depositions and discovery arising from new information obtained at depositions, was Sept. 29, 2006, and the closing date for completion of depositions and discovery arising from new information obtained at depositions is Dec. 1, 2006. The closing date for expert discovery was March 19, 2007. No trial date has been set, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "Zelman v. JDS Uniphase Corp., et al., Case No. 4:02-cv-04656," filed in the U.S. District Court for the Northern District of California under Judge Claudia Wilken. Representing the plaintiffs are: Susan G. Kupfer, Esq. Glancy & Binkow, LLP 455 Market Street, Suite 1810 San Francisco, CA 94105 Phone: 415-972-8160 Fax: 415-972-8166 E-mail: skupfer@glancylaw.com - and - Ira M. Press, Esq. Kirby McInerney & Squire, LLP 830 Third Avenue, 10th Floor New York, NY 10022 Phone: 212-371-6600 Fax: 212-751-2540 E-mail: ipress@kmslaw.com Representing the defendants is: Holly H. Tambling, Esq. Morrison & Foerster, LLP 425 Market Street San Francisco, CA 94105-2482 Phone: 415 268-7000 Fax: 415-268-7522 E-mail: Htambling@mofo.com JDS UNIPHASE: Management Conference Set June 28 in OCLI Lawsuit --------------------------------------------------------------- The Sonoma Superior Court in California has yet to set a trial date for the class action filed by plaintiffs purporting to represent the former shareholders of The Optical Coating Laboratory, Inc. (OCLI). The suit is asserting that former directors of the company breached their fiduciary duties in connection with the events alleged in the securities litigation against JDS Uniphase Corp. Plaintiffs in the OCLI action, "Pang v. Dwight, No. 02-231989," purport to represent a class of former shareholders of OCLI who exchanged their OCLI shares for JDS Uniphase shares when JDS Uniphase acquired OCLI. The complaint names the former directors of OCLI as Defendants, asserts causes of action for breach of fiduciary duty and breach of the duty of candor, and seeks unspecified damages. On March 4, 2007, the parties signed a memorandum of understanding regarding a settlement of the OCLI action. A case management conference is scheduled for June 28, 2007, when the Court has asked the parties to submit final settlement papers. No trial date has been set in the matter, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. JDS Uniphase Corp. (JDSU) -- http://www.jdsuniphase.com-- is a provider of broadband and optical products and solutions. Its products are used in communications, commercial and consumer applications, including broadband and optical networks, brand protection, biotechnology, semiconductor, aerospace and defense. The storage and distribution of high-speed data, audio and video, such as high-definition television (HDTV) and multi-player games, is transitioning from physical storage, compact discs, and digital video discs and related distribution methods to digital transmission over packet-based communications networks and storage on large-capacity servers and hard drives. JDS UNIPHASE: June 19 Conference Set in SDL Shareholders Suit ------------------------------------------------------------- The Sonoma Superior Court in California has yet to set a trial date for the class action filed by plaintiffs purporting to represent the former shareholders of SDL Ltd. The suit is asserting that defendants breached their fiduciary duties in connection with the events alleged in the securities litigation against JDS Uniphase Corp. Plaintiffs in the SDL action, "Cook v. Scifres, Master File No. CV814824," purport to represent a class of former shareholders of SDL who exchanged their SDL shares for JDS Uniphase shares when the company acquired SDL. Plaintiffs filed an amended complaint on Sept. 12, 2005. The complaint names the former directors of SDL as defendants, asserts causes of action for breach of fiduciary duty and breach of the duty of disclosure, and seeks unspecified damages. Plaintiffs filed an amended complaint on Nov. 20, 2006. On March 6, 2007, the Court overruled Defendants’ demurrer to that complaint. A case management conference is scheduled for June 19, 2007. Limited discovery in the SDL action has occurred. No trial date has been set the matter, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. JDS Uniphase Corp. (JDSU) -- http://www.jdsuniphase.com-- is a provider of broadband and optical products and solutions. Its products are used in communications, commercial and consumer applications, including broadband and optical networks, brand protection, biotechnology, semiconductor, aerospace and defense. The storage and distribution of high-speed data, audio and video, such as high-definition television (HDTV) and multi-player games, is transitioning from physical storage, compact discs, and digital video discs and related distribution methods to digital transmission over packet-based communications networks and storage on large-capacity servers and hard drives. JDSU addresses three major markets: optical communications, communications test and measurement, and commercial and consumer. To serve these markets, JDSU operates in three principal segments: Optical Communications; Communications Test & Measurement, and Advanced Optical Technologies. JDS UNIPHASE: June 22 Conference Set for Calif. Securities Suit --------------------------------------------------------------- An Oct. 1, 2007 trial is scheduled for a consolidated securities fraud class action filed against JDS Uniphase Corp., certain of its former and current officers and directors in the U.S. District Court for Northern District of California. On July 26, 2002, the U.S. District Court for the Northern District of California consolidated all the securities actions then filed in or transferred to that court as, "In re JDS Uniphase Corp. Securities Litigation, Master File No. C-02-1486 CW," and appointed the Connecticut Retirement Plans and Trust Funds as lead plaintiff. The complaint in "In re JDS Uniphase Corp. Securities Litigation" purports to be brought on behalf of a class consisting of those who acquired the company's securities from Oct. 28, 1999, through July 26, 2001, as well as on behalf of subclasses consisting of those who acquired the company's common stock pursuant to its acquisitions of The Optical Coating Laboratory, Inc. (OCLI), E-TEK Dynamics, Inc., and SDL Ltd. Plaintiffs allege that defendants made material misstatements and omissions concerning demand for the company's products, improperly recognized revenue, overstated the value of inventory, and failed to timely write down goodwill. The complaint seeks unspecified damages and alleges various violations of the federal securities laws, specifically Sections 10(b), 14(a), 20(a), and 20A of the U.S. Securities Exchange Act of 1934 and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933. In January 2005, the court denied the motion to dismiss claims against the company, Jozef Straus, Anthony R. Muller, and Charles Abbe, and granted in part and denied in part the motion to dismiss claims against Kevin Kalkhoven. Defendants subsequently filed answers denying liability for the claims asserted against them. On Dec. 21, 2005, the court granted plaintiffs' motion for class certification. Fact discovery in the case is substantially complete. Each party has noticed and taken depositions of both party and non- party witnesses. The closing date for expert discovery was March 23, 2007. The next case management conference is scheduled for June 22, 2007, and trial is set to begin on Oct. 1, 2007. The suit is "In re JDS Uniphase Corp. Securities Litigation, C-02-1486," filed in the U.S. District Court for the Northern District of California under Judge Claudia Wilken with referral to Judge Elizabeth D. Laporte. Representing the plaintiffs are: Reed R. Kathrein, Esq. Darren J. Robbins, Esq. Lerach Coughlin Stoia Geller Rudman & Robbins, LLP Phone: 415-288-4545 and 619-231-1058 Fax: 415-288-4534 and 619-231-7423 E-mail: reedk@lerachlaw.com e_file_sd@lerachlaw.com - and - John Frith Stewart, Esq. Segal, Stewart, Cutler, Lindsay, Janes & Ber 1400-B Waterfront Street, 325 West Main Street Louisville, KY 40202-4251 Phone: 502-568-5600 Representing the defendants are: Philip T. Besirof, Esq. Jordan David Eth, Esq. Morrison & Foerster, LLP 425 Market St. San Francisco, CA Phone: 94105-2482 Fax: (415) 268-7000 and 415-268-7522 E-mail: PBesirof@mofo.com jeth@mofo.com JDS UNIPHASE: Parties Seek Trial Extension for Calif. ERISA Suit ---------------------------------------------------------------- Parties in a consolidated class action alleging violations of the Employee Retirement Income Security Act that was filed against JDS Uniphase Corp. are seeking for an extension of the trial date of the case to May 12, 2008. A consolidated action, "In re JDS Uniphase Corp. ERISA Litigation, Case No. C- 03-4743 WWS (MEJ)," is pending in the District Court for the Northern District of California against the company, certain of its former and current officers and directors, and certain other current and former company employees on behalf of a purported class of participants in the 401(k) Plans of the company and Optical Coating Laboratory, Inc. and the Plans. On Oct. 31, 2005, plaintiffs filed an amended complaint. The amended complaint alleges that defendants violated the ERISA by breaching their fiduciary duties to the Plans and the Plans' participants. The amended complaint alleges a purported class period from Feb. 4, 2000, to the present and seeks an unspecified amount of damages, restitution, a constructive trust, and other equitable remedies. Certain individual defendants' motion to dismiss portions of the amended complaint was granted with prejudice on June 15, 2006. Plaintiffs filed a second amended complaint on June 30, 2006. Defendants answered the complaint on July 6, 2006, and the company asserted counterclaims for breach of contract. The court dismissed those counterclaims on Sept. 11, 2006. Both sides have begun taking discovery. Trial is set to begin on Feb. 11, 2008. The parties have requested an extension of the trial date to May 12, 2008. The Court has not acted on that request as of the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "Pettit v. JDS Uniphase Corp., et al., Case No. 3:03-cv-04743-WWS," filed in the U.S. District Court for the Northern District of California under Judge William W. Schwarzer. Representing the plaintiffs are: Alan R. Plutzik, Esq. Bramson Plutzik Mahler & Birhaeuser, LLP 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598 Phone: 925-945-0200 Fax: (925) 945-8792 E-mail: aplutzik@bramsonplutzik.com - and - Joseph H. Meltzer, Esq. Schiffrin & Barroway, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056 E-mail: jmeltzer@sbclasslaw.com. Representing the defendants are: Paul Flum, Esq. Terri Garland, Esq. Morrison & Foerster 425 Market Street San Francisco, CA 94105 Phone: 415/268-7000 Fax: 415-268-7522 E-mail: paulflum@mofo.com tgarland@mofo.com KAPLAN INC: BAR/BRI Suit Lawyer Seeks Co-lead Counsel Status ------------------------------------------------------------ Former McGuireWoods LLP partner Eliot Disner asked a federal judge to name him co-lead counsel in a suit against Kaplan Inc. after his ouster from the law firm, Matthew Hirsch, of The Recorder reports. However, a brief signed by McGuireWoods partner Sidney Kanazawa and subsequently filed with the court, claims the ousted attorney hadn't yet filed papers to represent any lead plaintiffs, so he lacked standing to represent the class. Mr. Disner is already in line for a 30 percent cut of the attorney fees in the settlement of the suit. He later raised objections against a $49 million settlement. He was terminated from the law firm on May 23. Mr. Disner's brief argues that the case against BAR/BRI and West Publishing is strong enough to justify a more stringent settlement (Class Action Reporter, May 22, 2007). Mr. Disner argues that if the case against BAR/BRI were to go to trial, it could result in a judgment of more than $400 million, based on the treble damages available under antitrust law. A breakup of BAR/BRI into at least two competing companies could be "routinely obtained" as part of the judgment, he wrote. Case Background The case was filed by former law students in California, Michigan and Louisiana, who had brought it on behalf of all persons who purchased a bar review course from BAR/BRI Bar Review from August 1997 (Class Action Reporter, July 17, 2006). Specifically, the suit accuses defendant West Publishing, d/b/a BAR/BRI of violating the federal antitrust laws and conspiring with Kaplan, Inc. to prevent competition in the market for full- service bar review courses. Kaplan is an international provider of educational and career services. BAR/BRI provides bar review courses throughout the U.S. to assist would-be attorneys in their preparation for taking one or more bar examinations required by each state and the District of Columbia prior to the issuance of a license to practice law. Plaintiffs allege that, as a result of defendants' conduct, consumers had to pay more for BAR/BRI bar review courses than they should have (Class Action Reporter, Feb. 19, 2007). Class members are all individuals who purchased a full-service bar review course from BAR/BRI anywhere in the U.S. where BAR/BRI directly operated a course anytime from August 1997 up to the present time. Therefore, any individual who purchased a full-service bar review course from BAR/BRI to prepare for the winter 1998 bar examination or any subsequent bar examination is a class member. In early December 2006, the parties agreed to a settlement of the litigation. On Feb. 2, 2007, the parties filed a settlement agreement with the court together with documents setting forth a procedure for class notice (Class Action Reporter, Mar. 29, 2007). The settlement calls for West Publishing to pay $36 million and Kaplan to pay $13 million. After $12 million in attorney fees, this translates into an average award of $125 each to the roughly 300,000 law students who took West Publishing's BAR/BRI courses between 1997 and 2006. As a part of the settlement, defendants have agreed to establish a $49 million fund. The settlement also provides for other non-monetary relief. Class Members are eligible to obtain up to 30% of the total amount they paid for a bar review course from the fund. The class includes persons who purchased a BAR/BRI full-service bar review course between August 1, 1997 and July 31, 2006, unless they requested exclusion on or before Aug. 13, 2006. BAR/BRI and Kaplan acknowledge having signed a joint marketing agreement, but deny that it violated any antitrust laws. A June 18, 2007 fairness hearing is set for the $49 million settlement in the U.S. District Court for the Central District of California (Class Action Reporter, May 14, 2007). BAR/BRI Class Action Litigation on the net: http://www.barbri-classaction.com The suit is "Ryan Rodriguez et al. v. West Publishing Corp. et al., Case No. 2:05-cv-03222-R-Mc," filed in the U.S. District Court for the Central District of California under Judge Manuel L. Real with referral to Judge James W. McMahon. Representing the plaintiffs is: Sidney K. Kanazawa, Esq. Tracy Evans Moyer, Esq. Colleen M. Regan, Esq. Van Etten Suzumoto and Becket 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Phone: 310-315-8200 E-mail: skanazawa@vsblaw.com or cregan@vsblaw.com - and - Joanna Shally, Esq. Shearman and Sterling 599 Lexington Avenue New York, NY 10022 Phone: 212-848-4700 Representing the defendants are: Edward A. Klein, Esq. Liner Yankelevitz Sunshine & Regenstreif 1100 Glendon Ave, 14th Fl. Los Angeles, CA 90024-3503 Phone: 310-500-3500 Stuart N. Senator, Esq. Lee Scott Taylor, Esq. Munger Tolles & Olson 355 S Grand Ave., 35th Fl., Los Angeles, CA 90071-1560 Phone: 213-683-9100 E-mail: stuart.senator@mto.com - and - Jeffrey A. LeVee, Esq. Courtney M. Schaberg, Esq. Brian A. Sun, Esq. Jones Day 555 South Flower Street, 50th Floor Los Angeles, CA 90071 Phone: 213-489-3939 E-mail: jlevee@jonesday.com or cmschaberg@jonesday.com or basun@jonesday.com For more details, contact: BAR/BRI Class Action Administrator P.O. Box 24639 West Palm Beach, FL 33416 Phone: 1-888-285-7850 E-mail: BARBRI@completeclaimsolutions.com KAZUMA MARKET: Refuses to Recall ATVs Found Defective and Unsafe ---------------------------------------------------------------- The staff of the U.S. Consumer Product Safety Commission (CPSC) is warning consumers who own a Kazuma Meerkat 50 Youth All-Terrain Vehicle that children are at risk of injury or death due to multiple safety defects with this off- road vehicle. The ATVs, which were imported by Kazuma Pacific Inc., of Stafford, Texas, were found to have several serious defects. CPSC staff has determined that the Meerkat 50 lacks front brakes, has no parking brake, is missing a neutral indicator light, and can be started in gear. Additionally, the owner’s manual does not contain complete information on safe operation and maintenance of the ATV. CPSC staff recommends that consumers stop using the product immediately because it is unsafe. The staff recommends that consumers demand a refund of the purchase price from the importer or dealer due to the defective condition of the ATV. The risk with these ATVs is severe because these vehicles are intended for children age 6 to 11. In many cases, youth riders are just learning how to operate an ATV and may not have the experience necessary to help them avoid hazards associated with this product’s defects. Kazuma Pacific has refused to provide complete incident or injury information for any of their products. Therefore, CPSC has been unable to determine how many children have been injured. Between December 2006 and May 2007, Kazuma Pacific has impeded CPSC’s efforts to protect the safety of children, by refusing to implement a corrective action plan for this ATV. Kazuma Pacific has sold at least 2,700 Meerkat 50 ATVs and has stated that they are continuing to sell the units that CPSC staff found to be defective. Kazuma dealers and Web retailers nationwide have sold this ATV since 2003 for between $525 and $825. Click on the link for the photo of the ATV subject to recall: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07204.html CPSC staff is requesting that consumers immediately report any incidents involving the Kazuma Meerkat 50 to the CPSC Hotline at (800) 638-2772 or to the CPSC Web site at http://www.cpsc.gov MICHIGAN: Doctor Recommends Inmates Get Kidney Transplants ---------------------------------------------------------- An appointed doctor in Jackson, Michigan prison made a new suggestion in a long-running class action over conditions at the state prison, Pat Shellenbarger of The Grand Rapids Press reports. Dr. Robert Cohen told U.S. District Judge Richard Enslen that the policy denying prisoners with advanced kidney disease the right to be considered for a transplant is "incompatible with the practice of medicine" and must overturned. Based on the report, two of the 60 prisoners who received kidney dialysis in the Southern Michigan Correctional Facility died in April. In response to the doctor’s recommendation, Corrections Department spokesman Russ Marlan said there are not enough kidneys available to provide law- abiding citizens out in the community and that they will have to live with kidney dialysis. Dr. Cohen added that a transplant is more affordable than keeping a patient on dialysis indefinitely and can add years to a patient's life. In addition, a 1980 case against the prison system alleged it is understaffed with doctors and nurses, resulting to delayed requests for medical help. Hence, inmates get sicker and eventually die due to lack of medical attention (Class Action Reporter, May 14, 2007). Just last month, Judge Enslen rejected the state's plan for moving hundreds of medically fragile inmates at the Southern Michigan Correctional Facility and temporarily shut it down, a decision the state appealed to the 6th U.S. Circuit Court of Appeals. Inmates’ lawyers urge the appeals court to deny the motion and allow the case to proceed before Judge Enslen. They argue the decision to close the prison is an attempt to get out from under federal court jurisdiction by scattering hundreds of medically fragile inmates to prisons statewide. They also asked Judge Enslen to grant them access to Corrections Department records to affirm whether the closing is indeed an attempt to evade the court’s jurisdiction. Judge Enslen has also ordered the state to install air conditioning equipment in the facility before July 15 to make sure the heat index does not exceed 90 degrees. The case is named "USA v. Michigan, State of, et al., Case No. 1:84-cv-00063-RAE", filed in the U.S. District Court for the Western District of Michigan with Judge Richard Enslen presiding. Plaintiffs are represented by: Elizabeth Alexander, Esq. National Prison Project of the ACLUF 915 15th St., NW, 7th Fl. Washington, DC 20005 Phone: (202) 393-4930 E-mail: ealexander@npp-aclu.org - and - Michael Barnhart, Esq. 221 North Main Street, Suite 300 Ann Arbor, MI 48103 Phone: (734) 213-3703 Fax: (734) 213-3704 E-mail: michaelbarnhart@comcast.net NYSE EURONEXT: Sea Carriers Files $4B Antitrust Lawsuit ------------------------------------------------------- NYSE Euronext is facing a $4 billion lawsuit that accuses it of favoring floor traders by providing them better prices than trades executed through its electronic SuperDOT system, reports say. The complaint was filed June 1, 2007 by Sea Carriers LP and its affiliate Sea Carriers Corp. against operators of specialist firms that help conduct trading from the Big Board floor. The complaint names these defendants: -- Bear Stearns Co., -- Bear Stearns Securities Corp., -- Bank of America, -- Fleet Specialists, -- LaBranche & Co., -- Susquehanna International Group, -- SIG Specialists, -- Van der Moolen Holding N.V., -- Van der Moolen Specialists USA LLC, -- Kellogg Group, -- Fidelity Investments, -- Merrill Lynch Pierce Fenner & Smith, -- Merrill Lynch & Co., -- Citigroup Global Markets, -- Citigroup, -- Morgan Stanley Co., -- UBS Securities LLC, -- Credit Suisse Securities (USA) LLC, -- Credit Suisse Group, -- Jeffries Execution Services, -- Jeffries Group, -- Deutsche Bank Securities, and -- National Financial Services. It claims that NYSE does this by filling floor traders' orders first, letting floor traders see incoming SuperDOT orders, and routinely slowing SuperDOT orders placed when market conditions were favorable. "Empirical evidence demonstrates that those who traded through the SuperDOT system got consistently worse executions than those who traded through floor brokers," according to the complaint filed with the U.S. district court in Manhattan. The complaint claims that as a result, the costs of purchasing and selling (securities) by public investors were artificially manipulated and distort. The suit seeks to certify a class period from Oct. 17, 1998 to the present. It seeks triple damages because of alleged antitrust violations. The suit is “Sea Carriers, LP I et al. v. NYSE Euronext, Case No. 1:07-cv- 04658-UA,” filed in the U.S. District Court for the Southern District of New York. The case is not yet assigned to any judge. Representing the plaintiff is: Martin L. Borosko, Esq. Becker Meisel LLC 354 Eisenhower Parkway Suite 2800 Livingston, NJ 07039 Phone: (973) 422-1100 Fax: (973) 422-9122 Seth R. Klein, Esq. Schatz Nobel Izard, P.C. 20 church St. Suite 1700 Hartford, CT 06103 Phone: (860) 493-6292 Fax: (860) 493-6291 OAKLEY INC: Faces Suit in Calif. Over Alleged FCRA Violations ------------------------------------------------------------- Oakley, Inc. faces a lawsuit filed the U.S. District Court for the Central District of California, alleging violations of the Fair Credit Reporting Act (FCRA) related to the inclusion of credit card expiration dates on sales receipts. The complaint, “Stephanie Leowardy v. Oakley Inc et al., Case No. 8:07-cv- 00053-CJC-AN,” which was filed on Jan. 11, 2007, has not been granted class- action status, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit was assigned to Judge Cormac J. Carney with referral to Judge Arthur Nakazato. Representing the plaintiff is: James Mark Moore, Esq. Spiro Moss Barness 11377 West Olympic Boulevard, 5th Floor Los Angeles, CA 90064 Phone: 310-235-2468 E-mail: mark@spiromoss.com Representing the defendants is: Scott J. Ferrell, Esq. Call Jensen and Ferrell 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Phone: 949-717-3000 E-mail: sferrell@calljensen.com ORIENT EXPRESS: To Opt Out of Suit Over Airline Fuel Surcharges --------------------------------------------------------------- Orient Express Travel Group announced that it would ‘opt-out’ of any class action relating to airline fuel surcharge. This announcement was made by the Chief Executive Officer, Tom Manwaring who said that the company’s future is based on discussions with airline partners about their individual contracts. “Our company’s future is based on negotiating individual contracts with airline partners and we do this in good faith and with the commercial realism that the agreement benefits both parties. “Orient Express Travel Group has undergone extensive growth in the last three years and we are looking forward to an exciting future,” Mr. Manwaring said. Twenty-three actions containing common allegations regarding a conspiracy among the various defendants to raise, fix, maintain, or stabilize the prices of fuel, security and insurance surcharges for air cargo shipping services were transferred in June 2006 to the U.S. District Court for the Eastern District of New York for multidistrict litigation. Plaintiffs bring claims under Section 1 of the Sherman Act, and/or Section 4 of the Clayton Act on behalf of putative classes of purchasers of air cargo shipping services. OWEN ELECTRIC: Wire Runners Sue for Unpaid Overtime Wages --------------------------------------------------------- Owen Electric Co. is facing a class-action complaint filed May 24 in the U.S. District Court for the Middle District of Florida alleging Labor Code violations. Named plaintiff Shawn Register - a former wire runner/foreman of Owen Electric -- brings this action for unpaid overtime compensation, declaratory relief, and other relief under the Fair Labor Standards Act, as amended, 29 U.S.C. Section 216(b). Mr. Register claims defendant failed to comply with 29 U.S.C. Sections 201- 209 because he had performed services for which no provisions were made for those hours worked in excess of 40 within a work week. He further claims that during his employment with defendant, he was not paid time and one-half his regular rate of pay for all hours worked in excess of 40 per work wee during one or more work weeks. As a result of defendants' intentional, willful, and unlawful acts in refusing to pay plaintiff time and one-half his regular rate of pay for each jour worked in excess of 40 in one or more weeks, plaintiff has suffered damages plus incurring reasonable attorneys' fees and costs. Further, as a result of defendants' willful violation of the FLSA, plaintiff is entitled to liquidated damages. Plaintiff demands judgment against defendants for all hours worked by them for which defendants did not properly compensate them, liquidated damages, reasonable attorneys' fees and costs incurred, declaratory relief and for such other relief the court deems just and appropriate. The suit is “Register v. Owen Electric Company, Inc. et al., Case No. 3:07-cv- 00448-VMC-MCR,”filed in the U.S. District Court for the Middle District of Florida, under Judge Virginia M. Hernandez Covington, with referral to Judge Monte C. Richardson. Representing plaintiffs is: Carlos V. Leach Morgan & Morgan, PA 20 N Orange Ave - Ste 1600 PO Box 4979 Orlando, FL 32802-4979 Phone: 407/420-1414 Fax: 407/423-7928 E-mail: cleach@forthepeople.com PACIFIC CAPITAL: Seeks Review of Ruling in “Canieva Hood” Case -------------------------------------------------------------- Defendants in the purported class action, “Canieva Hood and Congress of California Seniors v. Santa Barbara Bank & Trust, Pacific Capital Bank, N.A., and Jackson-Hewitt, Inc.,” are appealing to the U.S. Supreme Court a decision handed down by a Court of Appeal’s in the case. A court of appeal has allowed complaints of California consumer protection laws violations to go ahead against Pacific Capital Bancorp. The company has been a defendant in a class action brought on behalf of persons who entered into a refund anticipation loan application and agreement with the company from whose tax refund the company deducted a debt owed by the applicant to another RAL lender. The lawsuit was filed on March 18, 2003 in the Superior Court in San Francisco, California as "Canieva Hood and Congress of California Seniors v. Santa Barbara Bank & Trust, Pacific Capital Bank, N.A., and Jackson-Hewitt, Inc." The company is a party to a separate cross-collection agreement with each of the other RAL lenders by which it agrees to collect sums due to those other lenders on delinquent RALs by deducting those sums from tax refunds due to its RAL customers and remitting those funds to the RAL lender to whom the debt is owed. This cross-collection procedure is disclosed in the RAL Agreement with the RAL customer and is specifically authorized and agreed to by the customer. Plaintiff does not contest the validity of the debt, but contends that the cross-collection is illegal and requests damages on behalf of the class, injunctive relief against the company, restitution of sums collected, punitive damages and attorneys’ fees. Venue for this suit was changed to Santa Barbara. The company filed an answer to the complaint and a cross complaint for indemnification against the other RAL lenders. On May 4, 2005, a superior court judge in Santa Barbara granted a motion filed by the Company and the other RAL lenders, which resulted in the entry of a judgment in favor of the Company dismissing the suit. Plaintiffs have filed an appeal. A hearing before the Court of Appeal was held on June 14, 2006, and the matter was taken under submission. On Sept. 29, 2006 the Court of Appeal, in a 2-1 decision, issued an opinion, which held that the claims in the Complaint that the Company had violated certain California consumer protection laws were not preempted by Federal law and regulations. The Company and the Cross-Defendants have filed a Petition for Writ of Certiorari with the U.S. Supreme Court seeking to reverse the Court of Appeal’s opinion, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. Pacific Capital Bancorp -- http://www.pcbancorp.com/-- is a bank holding company and has one subsidiary Pacific Capital Bank, N.A. (PCBNA). Bancorp provides support services to its subsidiary bank. These services include executive management, legal, accounting and treasury, and investor relations. PCBNA conducts its banking services under six brand names: Santa Barbara Bank & Trust (SBB&T), First National Bank of Central California (FNB), South Valley National Bank (SVNB), San Benito Bank (SBB) Pacific Capital Bank (PCB), and First Bank of San Luis Obispo (FBSLO). The Company has five lines of business: Community Banking, Commercial Banking, RAL/RT Programs, Wealth Management, and All Other. PCBNA has one consolidated subsidiary, Morton Capital Management (MCM) that was acquired in July 2006. The Company’s retail branch businesses are conducted in eight California counties. REALLY COOL: Recalls Chicken Products with L. Monocytogenes ----------------------------------------------------------- The Really Cool Food Company, a Syosset, N.Y., firm, in cooperation with the U.S. Department of Agriculture's Food Safety and Inspection Service, is voluntarily recalling approximately 140 pounds of chicken products that may be contaminated with Listeria monocytogenes. The products subject to recall are 12-ounce trays of “STOP & SHOP All Natural Grilled Balsamic Flavored Chicken Breast” and “ALL-NATURAL CHEF PREPARED READY-TO-HEAT MEALS.” Each label bears the establishment number “P-33912” inside the USDA mark of inspection and a “Sell-by” date of “6/12/07.” The chicken products were produced on May 24, 2007 and were distributed to retail establishments in New Jersey and New York. The problem was discovered through routine FSIS microbiological testing. FSIS has received no reports of illnesses associated with consumption of these products. 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 and media with questions about the recall should contact company representative Cortney McCraw with Freud Communications at (212) 582-0375. 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. UNITED FOOD: Recalls Ground Beef Due to Possible Contamination -------------------------------------------------------------- United Food Group, LLC, a Vernon, Calif., establishment, in cooperation with the U.S. Department of Agriculture's Food Safety and Inspection Service, is voluntarily recalling approximately 75,000 pounds of ground beef products because they may be contaminated with E. coli O157:H7. The problem was discovered through sampling done by the California Department of Health Services and the Colorado Department of Health, in coordination with the Centers for Disease Control and Prevention, in the course of an investigation into illnesses. The ground beef products were produced on April 20 and were shipped to retail distribution centers in Arizona, California, Colorado, Oregon and Utah. E. coli O157:H7 is a potentially deadly bacterium that can cause bloody diarrhea and dehydration. The very young, seniors and persons with compromised immune systems are the most susceptible to food borne illness. The labels of the products subject to recall bear the establishment number "EST. 1241" inside the USDA mark of inspection or printed on the package. All of the products bear a sell by date of "May/06/07," a freeze by date of "May/07/07" or a produced on date of "April/20/07." Products subject to recall include: 10-pound casings of "MORAN'S All Natural, 73/27 fine ground beef"; 10-pound casings of "MORAN'S All Natural, 90/10 fine ground sirloin"; 2-pound chubs of "INTER-AMERICAN PRODUCTS 93/7 ground beef"; 1-pound chubs of "INTER-AMERICAN PRODUCTS 80/20 ground beef"; 1-pound chubs of "MORAN'S All Natural 73/27 ground beef"; 5-pound chubs of "MORAN'S All Natural 73/27 ground beef"; 3-pound chubs of "MORAN'S All Natural 73/27 ground beef"; 1-pound chubs of "MORAN'S All Natural, 90/10 fine ground sirloin"; 2-pound chubs of "MORAN'S All Natural 93/7 ground beef"; 2-pound chubs of "MORAN'S All Natural 96/4 ground beef"; and 3-pound chubs of "STATER BROS. MARKETS 73/27 ground beef." Click on the link to view labels of the products subject to recall: http://www.fsis.usda.gov/images_recalls/025_2007_labels.pdf Consumers with questions about the recall should contact company Customer Service Representative James Turner at (800) 325-4164. Media with questions about the recall should contact company Vice-President for Sales and Marketing Brian Levy at (323) 588-5286. 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. UNITED NATIONS: Sued for Not Shielding Civilians from Genocide -------------------------------------------------------------- Dutch lawyers for the group “Mothers of Srebrenica” filed a class action at the Dutch Supreme Court in The Hague, Netherlands, VOA News reports. Lawyers Axel Hagedorn, Marco Gerritsen, Faruli Capina, Semir Guzin, and a "Mother of Srebrenica" lawyer Maunira Subasic filed the suit on behalf of ten lead plaintiffs and the survivors and relatives of victims of the 1995 Srebrenica massacre. Each lead plaintiff is seeking $34,000 in damages. The suit names United Nations and the Dutch government as defendants and charges them of failing to protect Muslim civilians in the U.N. safe haven. It also accuses the Dutch government of failing to authorize air cover to prevent the massacre, which is considered the worst genocide in Europe since the end of World War II. Based on the report, Dutch forces operating under a U.N. mandate failed to prevent Serb forces into the town and took the victims away. UNITED STATES: Postal Service Settles Bias Lawsuit for $61M ----------------------------------------------------------- The Postal Service reached an agreement to settle for $61 million a suit alleging workplace disability discrimination, 9News reports. The original suit was filed in 1992 by Chandler Glover, a Denver man who was put in a rehabilitation position at the company after his injury, but was never transferred or promoted on the job. He claims he was denied advancement opportunities by USPS officials in Denver after his injury in 1991. Later, Dean Albrecht of Clearwater, Florida, joined as co-class representative. The suit was filed on behalf of more than 7,500 current and former postal workers. The Postal Service agreed to pay back pay, but did not admit wrongdoing. Under it, eligible class member could receive up to $25,000 each, depending on the severity of the discrimination they suffered and on the timing of their injury. Nearly a third of the employees in rehabilitation positions since 1992 will recover under the settlement, according to the report. Class members could receive a notice of the settlement in the week of July 12. Over $53 million will be distributed directly to the workers, the balance represents attorneys fees and expenses of the attorneys who have been litigating the case over the last 14 years. The class representatives each receive $85,000 in the settlement. The Postal Service also agreed to train its managers on workplace discrimination, and to change how it classifies injured employees. The settlement was preliminarily approved by a federal administrative judge on May 23, 2007. Formal notice will be sent to the class members by June 22. Under the settlement, claimants who sign a release will receive their shares by November 2007. Those who do not sign a release will receive their shares after any appeal of the approval of the settlement, which could take a year or more. Brad Seligman of The Impact Fund, a Berkeley, California nonprofit law firm led the negotiations for the class. The case is Glover/Albrecht v. Potter. For more information, visit http://www.gloverclass.com/gloverclass94.pl. Lead counsel for the class is: John Mosby, Esq. 621 17th St. Suite 925 Denver, CO 80293-0621 Phone: (303) 623-1355 UNITED STATES: Ill Nuclear Workers Sue Over Poor Medical Care ------------------------------------------------------------- A class action has been filed in federal court in Colorado on behalf of ill nuclear workers, who may be struggling to receive home nursing care under a U.S. Department of Labor compensation program, Annette Cary of The City Herald reports. The program compensates ill workers, most of them isolated and weak, $150,000 plus coverage for lost wages as well as injuries. It also provides medical coverage for poor health due to abnormal exposure to radiation or toxic substances. The complaint alleges: -- the Department of Labor engages in an "orchestrated, internal campaign to limit access to medical and other benefits available to nuclear energy workers" since last summer; and -- the program arbitrarily overrode doctors' orders for nursing services without appropriate medical review and consent to the change by a doctor. The lawsuit also says several workers who qualified for the program are suffering severe or terminal illnesses. Thus, unreasonable delays in authorizing care for these people eventually become life-threatening. Plaintiffs’ attorney, Gregory Piche, said "People are having difficulty getting authorization or payment of nursing services." The suit names six plaintiffs who used to work in Colorado, New Mexico or Ohio, who benefited the Department of Energy nuclear weapons program. They are suffering from illnesses caused by exposure to radiation or beryllium. Each had doctors' orders for skilled nursing care that were delayed, denied or limited, the suit said. Addison Keaton, of Stout, Ohio, was supposed to get skilled nursing care 24 hours partly because of his risk of hemorrhaging due to his cancer. The suit says it took the Department of Labor 197 days to consider the prescription and only authorized eight hours, three times a week. It also intends to cover those who are similarly situated or those nearly 20,000 people, who are qualified for benefits under the Energy Employees Occupational Illness Compensation Program Act. The suit asks the court to stop the Department of Labor from limiting skilled nursing care without a doctor’s consent. The suit is “Montano et al. v. Chao et al, Case No. 1:07-cv-00735-EWN-MEH,” with Judge Edward W. Nottingham presiding and referral to Judge Michael E. Hegarty. Plaintiffs’ lawyer is: Gregory Piche, Esq. Holland & Hart LLP 555 Seventeenth St. Suite 3200, P.O. Box 8749 Denver, Colorado 80201 Phone: 303-295-8000 Telecopier: 303-295-8261 Web Site: http://www.hollandhart.com VANCITY: Customer Sues to Seek Refund for Overdraft Fees -------------------------------------------------------- Marcia Lynne Smith, a Vancity customer, has won the right to go ahead with a lawsuit seeking refund for “excessive’ overdraft fees predating February 1997, the Vancouver Province reports. Ms. Smith had asked the courts to include people like her who were overcharged prior to that date. Vancity tried to have the case dismissed because of a limitation set out in law. But the courts have ruled in Ms. Smith's favor and is expected to certify the lawsuit as a class action. Vancity already settled a class action by compensating thousands of its customers for overdraft fees over $5, but it applied only to fees paid after Feb. 5, 1997. VISTEON CORP: Court Gives Final OK to $7.6M “Skiles” Settlement --------------------------------------------------------------- The U.S. District Court for the Eastern District of Michigan granted final approval to the $7.6 million settlement of the class action, "Skiles v. Visteon Corp., et al., Case No. 2:05-cv-71205-AC-DAS." In March and April 2005, the company and a number of current and former employees, officers and directors were named as defendants in three class actions brought under the Employee Retirement Income Security Act (ERISA) in the U.S. District Court for the Eastern District of Michigan. In September 2005, the plaintiffs filed an amended and consolidated complaint, which generally alleges that: the defendants breached their fiduciary duties under ERISA during the class period by among other things: -- continuing to offer the company stock as an investment alternative under the Visteon Investment Plan; -- failing to disclose complete and accurate information regarding the prudence of investing in the Visteon stock; -- failing to monitor the actions of certain of the defendants; and -- failing to avoid conflicts of interest or promptly resolve them. The consolidated complaint, as amended, was brought on behalf of a named plaintiff and a putative class consisting of all participants or beneficiaries of the Plans whose accounts included Visteon stock at any time from July 20, 2001 through June 15, 2006. In November 2005, the defendants moved to dismiss the consolidated amended complaint on various grounds. Prior to resolution of the defendants’ motion, the parties agreed to a settlement. Upon review of the proposed settlement the judge assigned to the proceeding certified a class covering the period July 1, 2000 through July 15, 2006, and preliminarily approved the settlement on Dec. 12, 2006. The court entered an order of final approval of the settlement on March 9, 2007 and the settlement became effective on April 9, 2007, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "Skiles v. Visteon Corp., et al., Case No. 2:05-cv- 71205-AC-DAS," filed in the U.S. District Court for the Eastern District of Michigan under Judge Avern Cohn with referral to Judge Donald A. Scheer. Representing the plaintiffs are: Gary A. Gotto, Esq. Keller Rohrback 3101 N. Central Avenue, Suite 900 Phoenix, AZ 85012-2600 Phone: 602-248-2822 E-mail: ggotto@kellerrohrback.com - and - Elwood S. Simon, Esq. Elwood S. Simon Assoc. 355 S. Woodward Avenue, Suite 250 Birmingham, MI 48009 Phone: 248-646-9730 Fax: 248-258-2335 E-mail: esimon@esimon-law.com Representing the defendants are: Gabor Balassa, Esq. Michael A. Duffy, Esq. Kirkland & Ellis Phone: 312-861-2186 and 312-861-2000 Fax: 312-861-2200 and 312-861-2200 E-mail: maduffy@kirkland.com - and - Jenice C. Mitchell, Esq. Foley & Lardner 500 Woodward Avenue, Suite 2700 Detroit, MI 48226-3489 Phone: 313-234-7100 E-mail: jmitchell@foley.com VISTEON CORP: Seeks Dismissal of ERISA Violations Suit in Mich. --------------------------------------------------------------- Visteon Corp. and Ford Motor Co. are seeking the dismissal of a purported class action, alleging violations of the Employee Retirement Income Security Act (ERISA). In June 2006, the company and Ford Motor Co. were named as defendants in a purported class action brought under ERISA in the U.S. District Court for the Eastern District of Michigan on behalf of certain former salaried employees of the company associated with two plants located in Michigan. The complaint alleges that the company and Ford violated their fiduciary duties under ERISA when they established and spun off the company and allocated certain pension liabilities between them, and later when they transferred the subject employees to Ford as new hires in 2006 after Ford acquired the plants. In August 2006, the company and Ford moved to dismiss the complaint for failure to state a claim, which is currently pending, according to the company’s May 9, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The suit is "Mark Ensley et al. v. Ford Motor Co. et al., Case No. 2:06-cv- 12845-AJT-SDP," filed in the U.S. District Court for the Eastern District of Michigan under Judge Arthur J. Tarnow with referral to Judge Steven D. Pepe. Representing the plaintiffs are: Cary S. McGehee, Esq. Robert W. Palmer, Esq. Michael L. Pitt, Esq. Peggy G. Pitt, Esq. Pitt, Dowty 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067-3804 Phone: 248-398-9800 E-mail: cmcgehee@pdmmp.com rpalmer@pdmmp.com attorneypitt@aol.com WACHOVIA MORTGAGE: Penna. Lawsuit Alleges RESPA Violations ---------------------------------------------------------- Wachovia Mortgage Corporation is facing a class-action complaint filed June 4, in the U.S. District Court for the Eastern District of Pennsylvania accusing it of overcharging for credit reports and other services, in violation of the Real Estate Settlement Procedures Act. Named plaintiff Vincent Gibilante brings this class action on behalf of residential mortgage borrowers who received FHA or VA mortgage loans that were originated, processed and/or brokered by Defendant Wachovia Mortgage Corporation, and who were charged a $35 credit report fee. In connection with these loans Plaintiff and the class members were required to pay excessive and unearned fees for credit reporting services in violation of the RESPA, the suit claims. Specifically, in connection with the origination, processing and/or brokering of FHA and VA mortgage loans, Wachovia purchased credit reporting services from a third-party vendor for a per loan price of approximately $15. Notwithstanding that Wachovia provided no compensable services in connection with the imposition of this fee, Wachovia marked-up the fee in violation of RESPA by charging its FHA and VA borrowers $35 for credit reporting services that Wachovia had purchased for $15. In contrast, Wachovia purchases materially identical credit reporting services from the same third-party vendor in connection with the origination, processing and/or brokering of conventional mortgage loans for the same approximate per loan price of $15, but does not mark-up the price. Recently, after an internal review confirmed that the fee for credit reporting services charged by Wachovia in connection with FHA and VA loans was being marked-up, Wachovia’s fees committee decreed that henceforth only $15 could be charged for credit reporting services in connection with FHA and VA loans, and that to the extent any supplemental credit reporting charges were incurred in connection with a given loan, said additional charge should be collected from the borrower at loan closing. This is a class action filed on behalf of all residential borrowers, nationally, who received FHA or VA mortgage loans that were originated, processed and/or brokered by or through Wachovia Mortgage Corporation who were charged a $35 fee for credit reporting services. Questions raised include: -- whether defendants mark-up the costs of settlement services without itself providing actual, necessary, and distinct services and whether defendants otherwise engage in a “mark-up” and/or “fee split,” in violation of RESPA; -- whether the measure of damages is appropriate; and -- whether the declaratory or injunctive relief is appropriate. Plaintiff and the class respectfully request judgment against defendant as follows: -- for an Order certifying this action may be maintained as a class action, as above defined, under Fed. R. Civ. P. 23(a) and 23(b)(3); -- for an Order appointing Plaintiff as a representative of the class; -- for an Order appointing the undersigned counsel as class counsel pursuant to Fed. R. Civ. P. 23; -- for an Order directing that reasonable notice of the class action be provided to all members of the class at the appropriate time after discovery and any potential dispositive motions have been resolved; -- for violating RESPA, an Order and Judgment finding that the Defendant is liable as a matter of law to each member of the class for treble damages; -- for declaratory and injunctive relief as permitted by law or equity, including enjoining Defendant from continuing the unlawful practices as set forth herein; -- for reasonable attorneys’ fees as provided by law and statute; -- for pre-and-post judgment interest as provided by law in an amount according to proof at trial; -- for an award of costs and expenses incurred in this action; and -- for such other relief as the Court may deem just and proper. A copy of the complaint is available free of charge at: http://ResearchArchives.com/t/s?20a9 The suit is “Gibilante v. Wachovia Mortgage Corporation, Case No. 2:07-cv- 02236-LP,” filed in the U.S. District Court for the Eastern District of Pennsylvania, under Judge Louis H. Pollak. Representing plaintiffs is: Gary F. Lynch Carlson Lynch Ltd. 36 N. Jefferson Street P.O. Box 7635 New Castle, PA 16107 Phone: 724-656-1555 Fax: 724-656-1556 E-mail: glynch@carlsonlynch.com WORLDCOM INC: Auction of Brookhaven Country Club Set June 19 ------------------------------------------------------------ Former WorldCom CEO Bernie Ebbers’ Brookhaven Country Club, which was turned over to settle a securities class action, is set for public auction on June 19, 2007, according to Nell Luter Floyd of the Clarion Ledger. The auction will be held at 9 a.m. at the offices of Burr & Forman, 401 E. Capitol St. in Jackson. The country club includes almost 130 acres with an 18-hole golf course, eight tennis courts, a swimming pool, a clubhouse building, maintenance sheds and a single-family home. Also for sale is a majority interest in a trucking firm. Bill Brandt, president and chief executive officer of Chicago-based Development Specialists Inc., said his company has received an offer of $621,000 for the country club. Competing bids must start at $646,000 during the auction. Headquartered in Clinton, Mississippi, WorldCom, Inc., now known as MCI -- http://www.worldcom.com/-- is a pre-eminent global communications provider, operating in more than 65 countries and maintaining one of the most expansive IP networks in the world. The company filed for chapter 11 protection on July 21, 2002 (Bankr. S.D.N.Y. Case No. 02-13532). The Bankruptcy Court confirmed WorldCom's Plan on Oct. 31, 2003, and on Apr. 20, 2004, the company formally emerged from U.S. Chapter 11 protection as MCI, Inc. (Troubled Company Reporter Vol. 10, No. 160) The "WorldCom, Inc., Securities Litigation 02-Civ. 3288 (S.D.N.Y.)" -- http://www.worldcomlitigation.com-- is a consolidated, certified class action pending in the Southern District of New York before District Court Judge Denise L. Cote. It is being prosecuted on behalf of a court-certified class of all individuals or entities who purchased or acquired publicly traded securities of WorldCom, Inc. from April 29, 1999 through and including June 25, 2002, and who were injured thereby. New Securities Fraud Cases XINHUA FINANCE: Lerach Coughlin Files N.Y. Securities Fraud Suit ---------------------------------------------------------------- Lerach Coughlin Stoia Geller Rudman & Robbins LLP lodged a class action in the U.S. District Court for the Southern District of New York on behalf of all persons or entities who acquired Xinhua Finance Media Ltd. (Xinhua American Depositary Shares ADSs) pursuant to the Company's false and misleading Registration Statement and Prospectus issued in connection with its March 8, 2007 initial public offering (IPO). The complaint charges Xinhua and certain of its officers and directors with violations of the Securities Act of 1933. Xinhua is a diversified media company in China. The complaint alleges that on March 9, 2007, Xinhua accomplished its IPO of 23.07 million ADSs, representing 46.15 million common shares, at $13.00 per ADS (including 1.5 million shares sold by Xinhua's Chairman and Chief Executive Officer, Fredy Bush) for net proceeds of $300 million, pursuant to the Registration Statement. Due to defendants' positive but false statements following the IPO, by May 15, 2007, the stock was trading around $12.00 per share. Then on May 21, 2007, Barron's published an article on Xinhua disclosing that the Registration Statement for the IPO failed to disclose that Xinhua's Chief Financial Officer (CFO) was simultaneously the Company's CFO and an investment banker and stockbroker who ran a securities firm that had been under regulatory scrutiny in the past year. On this news, Xinhua's stock price collapsed from $10.79 per share on May 17, 2007 to close at $8.76 per share on May 21, 2007, on unusually high volume. Plaintiff seeks to recover damages on behalf of all persons or entities who acquired Xinhua ADSs pursuant to the Company's false and misleading Registration Statement issued in connection with its March 8, 2007 IPO. Interested parties may move the court no later than 60 days from May 22, 2007 for lead plaintiff appointment. For more information, contact: Samuel H. Rudman Darren J. Robbins Lerach Coughlin Stoia Geller Rudman & Robbins LLP Phone: 800/449-4900 or 619/231-1058 E-mail at wsl@lerachlaw.com Website: http://www.lerachlaw.com ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice Mendoza, and Mary Grace Durana, Editors. Copyright 2007. All rights reserved. ISSN 1525-2272. 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