C L A S S A C T I O N R E P O R T E R Friday, July 20, 2007, Vol. 9, No. 142 Headlines ALCOA INC: Motion to Dismiss Medical Monitoring Suit Denied ATICO INTERNATIONAL: Recalls Coffeemakers Due to Fire Hazard DITECH COMMS: Hearing Set for Dismissal Motion in Calif. Lawsuit FIFTH THIRD: Sued for Negligence in Customer Data Disclosure GAINSCO INC: Plaintiffs Appeal Dismissal of Fla. Insurance Suit GLS CAPITAL: Pa. Suit Over Delinquency Fees Temporarily Stayed GOOGLE INC: Sued in Ill. for Allegedly Infringing on Trademarks INDIANAPOLIS POWER: Reaches Settlement in Ind. Landowners' Suit INTERLINK ELECTRONICS: Seeks to Dismiss Calif. Securities Suit IPALCO ENTERPRISES: ERISA Violations Suit’s Dismissal Appealed MAGURA USA: Recalls Faulty Brake Cylinders for Motorcycles MAXWELL’S BY THE SEA: Faces Labor Code Violations Suit in Fla. METABANK: Sued for Funding “Fraudulent” Vehicle Sales in S.D. MOTOROLA INC: Settles Ill. Securities Fraud Suit for $190M NEW YORK: Vulcan Society Joins Justice Dept.’s Racial Bias Suit NORTHERN MARIANAS: Judge Extends GOB’s Term Until End of 2007 PARMALAT SPA: $50M Securities Suit Settlement Granted Final Okay PROGRESSIVE EXPRESS: “Insurance Discount” Suit Ruling Appealed PUERTO RICO: Final Order in Nixed Touchtone Service Suit Pending SALTON INC: Still Faces N.Y. Injury Litigation Over Teakettles SCHERING-PLOUGH: Faces Mass. Suit Over Intron-Related Kickbacks SUNNYSIDE APARTMENTS: Faces Labor Code Violations Suit in Fla. TRAVELCLICK INC: Faces Labor Code Violations Lawsuit in Ill. UNITED STATES: Reverses Stance on Green Card Applications UNIVERSAL AMERICAN: N.Y. Court Dismisses “Kemp” Securities Suit VEECO INSTRUMENTS: Settles N.Y. Securities Suit for $5.5M VONAGE HOLDINGS: Faces Calif., N.J., Ohio, Wash. Consumer Suits VS HOLDINGS: Faces Multiple Suits Over Multivitamins for Women YANKEE CANDLE: Mass. Suit Over Madison Dearborn Merger Dismissed ZENITH INSURANCE: Chiropractors File Suit in Cal. Federal Court Asbestos Alert ASBESTOS LITIGATION: Appeal Court Favors Board in Veteran’s Case ASBESTOS LITIGATION: Morton Still Faces Exposure Lawsuits in La. ASBESTOS LITIGATION: Continental Casualty’s Leave Motion Granted ASBESTOS LITIGATION: Court Reverses Pretrial Order in Grace Case ASBESTOS LITIGATION: Pa. County to Settle Federal Case for $150T ASBESTOS LITIGATION: Travelers, ACandS Hearing Set for August 28 ASBESTOS LITIGATION: Inquest Links Shipworker’s Death to Hazard ASBESTOS LITIGATION: Laborer Launches GBP250T Case v. Employers ASBESTOS LITIGATION: Kingston Building Cleanup to Cost CDN75,400 ASBESTOS LITIGATION: San Diego Gas Found Guilty in Federal Case ASBESTOS LITIGATION: Study Says Ontario Victims Not Compensated ASBESTOS LITIGATION: DEQ Denies “Poor” Post-Katrina Hazard Check ASBESTOS LITIGATION: Ex-Marine Sues 43 Companies in Texas Court ASBESTOS LITIGATION: Residual Asbestos Found at Old Boiler House ASBESTOS LITIGATION: Chase Corp. Still Faces Inactive Ohio Suit ASBESTOS LITIGATION: Pa. Real Estate Reserves $200T for Cleanup ASBESTOS LITIGATION: Federal-Mogul Has $873.7M Receivable in 2Q ASBESTOS LITIGATION: Inquest Links Scaffolder’s Death to Hazard ASBESTOS LITIGATION: Court Rules v. DaimlerChrysler in D’Ulisse ASBESTOS LITIGATION: GBP500T Removal Work Completed in Tonedale ASBESTOS LITIGATION: Lung Cancer Victim Sues Australian Gov’t. ASBESTOS LITIGATION: Worker Sues Texaco, Chevron in Texas Court ASBESTOS LITIGATION: Asbestos Diseases to Claim 10T Yearly in US ASBESTOS LITIGATION: Aussie Gov’t. Urged to Prioritize Cleanup ASBESTOS LITIGATION: American Standard Cites $642.6Mil Liability ASBESTOS LITIGATION: Pipefitter Gets More Than $1M Compensation ASBESTOS LITIGATION: Capitol Steamfitters Settle Dispute W/ AoC ASBESTOS LITIGATION: Parkland Offers Free Tests to Dallas Locals ASBESTOS LITIGATION: Committee OKs ASARCO Exclusivity Extension ASBESTOS LITIGATION: Court Urged to Deny ASARCO’s Compel Motion ASBESTOS LITIGATION: Court Reverses Board Ruling in Leary Action ASBESTOS LITIGATION: Workers Clean Up N.Y. City After Explosion ASBESTOS ALERT: DEQ Imposes $1,500 Fine to Sona Motor Inn, Mass. New Securities Fraud Cases AMERICAN CAPITAL: Shareholders File Neb. Securities Fraud Suit THRESHHOLD PHARMACEUTICALS: Schiffrin Files N.Y. Securities Suit ********* ALCOA INC: Motion to Dismiss Medical Monitoring Suit Denied ----------------------------------------------------------- Chancellor John F. Weaver of the Knox County (Tenn.) Chancery Court denied ALCOA Inc.’s request to dismiss a class action filed by seven current and former ALCOA employees over exposure to coal tar pitch used in the aluminum smelting process, Rick Laney of The Daily Times Staff reports. In Sept. 2006, current and former employees of ALCOA’s Tennessee Operations filed the suit requiring the company to establish a medical monitoring program for employees exposed to coal tar pitch. The lawsuit claims the workers and retirees have coal tar pitch-related carcinogens in their bodies resulting in an excess risk of various cancers, including cancers of the skin, scrotum, lung, bladder and kidney as well as non-Hodgkins lymphoma and leukemia. The plaintiffs did not request a cash settlement. They asked for: -- a court-administered medical monitoring program funded by ALCOA in the form of a trust fund; -- reimbursement of medical and/or diagnostic tests to monitor the plaintiff’s medical condition relating to contracting cancer; -- a program to educate the plaintiffs about treatment strategies once a diagnosis of cancer has been established; -- the company to pay the costs of the lawsuit and attorneys’ fees; and -- “further relief as the court deems just and equitable.” Judge Weaver heard the case in February. At the time, attorney John Lucas, who represents ALCOA, argued that the lawsuit does not merit a class-action status, and invoked the statute of limitations to block it from proceeding. He warned in the February hearing that allowing the case could increase workers’ compensation premiums for all Tennessee employers and “open the floodgates to litigation.” But Greg Coleman, a Knoxville-based attorney representing the workers, countered that class actions are available in Tennessee for all fields of civil litigation. Six of the plaintiffs are Maryville residents: Stanley Janeway, Robert K. Whitehead, Reba Orr, Glen Gregory, Joe Bible and Mike Rutherford. The seventh is Ray Pryor, a Knoxville resident. Representing ALCOA is: John A. Lucas Hunton & Williams, LLP 2000 Riverview Tower 900 South Gay Street Knoxville, TN 37902 Phone: (865) 549-7750 Fax: (865) 549-7704 Representing plaintiffs is: Gregory F. Coleman Dunn, MacDonald, Coleman & Reynolds, P.C. 6204 Baum Drive Knoxville, TN 37919 Phone: (865) 525-0505 Fax: (865) 525-6001 ATICO INTERNATIONAL: Recalls Coffeemakers Due to Fire Hazard ------------------------------------------------------------- Atico International USA Inc., of Fort Lauderdale, Florida, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 392,000 units of Signature Gourmet and Kitchen Gourmet 12-cup coffeemakers. The company said the coffeemaker can ignite due to an electrical failure, posing a fire hazard. Atico International USA, Inc. has received 14 reports of electrical failures, including six reports in which the unit ignited causing minor property damage. No injuries have been reported. The coffeemaker is white with a glass coffeepot. Signature Gourmet or Kitchen Gourmet is printed on the front of the unit. The Model Number (XQ-673B), Item Number (W14A4984) and date code are located on the bottom of the unit. Only units with date codes from May 2003 (0503) through July 2006 (0706) are affected by this recall. These recalled coffeemakers were manufactured in China and are being sold at Walgreens stores nationwide from August 2003 through December 2006. The Signature Gourmet model sold for about $16 and the Kitchen Gourmet model sold for about $10. Pictures of the recalled coffeemakers: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07244a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07244b.jpg Consumers are advised to stop using the recalled coffeemakers immediately and contact Atico International USA for instructions on returning the product for a full refund. For more information, call Atico International USA toll-free at (877) 546- 4835 between 9 a.m. and 5 p.m. ET Monday through Friday, or visit the company’s Web site: http://www.aticousa.com DITECH COMMS: Hearing Set for Dismissal Motion in Calif. Lawsuit ---------------------------------------------------------------- An Aug. 19, 2007 hearing is set for a motion to dismiss a third amended complaint in a securities fraud class action filed against Ditech Communications Corp. in the U.S. District Court for the Northern District of California. Beginning on June 14, 2005, several purported class actions were filed purportedly on behalf of a class of investors, who purchased the company's stock between Aug. 25, 2004 and May 26, 2005. The complaints allege claims under Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 against Ditech and its chief executive officer and chief financial officer in connection with alleged misrepresentations concerning Voice Quality Assurance orders and the potential effect on the company of the merger between Sprint and Nextel. All of the lawsuits were consolidated into a single action, "In re Ditech Communications Corp. Securities Litigation, Case No. C05-02406-JSW." A consolidated amended complaint was filed on Feb. 2, 2006. The defendants moved to dismiss the complaint, and the motion was granted on Aug. 10, 2006, with leave to amend. A second consolidated amended complaint was filed on Sept. 11, 2006. Defendants again moved to dismiss, and by order dated March 22, 2007, the court dismissed the Second Amended Complaint with leave to amend. Plaintiffs filed their Third Amended Complaint on April 23, 2007. On May 14, 2007, Defendant again moved to dismiss. This latest motion has been set for a hearing on Aug. 19, 2007, according to the company’s July 16, 2007 Form 10- Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended April 30, 2007. The suit is “In re Ditech Communications Corp. Securities Litigation, Case No. 3:05-cv-02406-JSW,” filed in the U.S. District Court for the Northern District of California under Judge Jeffrey S. White. Representing the plaintiffs is: Christopher T. Heffelfinger, Esq. Berman DeValerio Pease & Tabacco, P.C. 425 California Street, Suite 2025 San Francisco, CA 94104 Phone: 415/433-3200 Fax: 415-433-6382 E-mail: cheffelfinger@bermanesq.com Representing the defendants is: William S. Freeman, Esq. Cooley Godward, LLP Five Palo Alto Square, 3000 El Camino Real Palo Alto, CA 9406-2155 Phone: 650 843-5000 Fax: 650 857-0663 E-mail: freemanws@cooley.com FIFTH THIRD: Sued for Negligence in Customer Data Disclosure ------------------------------------------------------------ Fifth Third Bancorp is facing a class-action complaint filed July 10 in the U.S. District Court for the Middle District of Florida accusing it of failing to prevent predators from stealing customers’ identities by e-mail phishing, and draining victims’ accounts. Phishing is a form of email fraud where senders impersonate legitimate organizations to try to get recipients to divulge personal information such as passwords and account numbers so the senders can steal the recipient's identity and/or funds from the recipient's account. Named plaintiff Edify LLC, pursuant to Rule 213 of the Federal Rules of Civil Procedure, brings this action on behalf of all Fifth Third customers who have conducted or otherwise qualified to utilize the online banking services of Fifth Third, whose bank accounts were compromised and the privacy or security of whose transactions or non-public information was compromised. This case has arisen because defendants have a statutory, regulatory, and common law duty to adequately protect their customer's non-public and private financial information, as well as protect the funds which Edify and the class members have entrusted to Fifth Third. Upon information and belief, Fifth Third allegedly did not fulfill its regulatory duty to implement or install the latest equipment available that met the requirements of its circumstances, taking into consideration the exceedingly high incidence of phishing crimes against it and its clients. The plaintiff wants the court to rule: (a) whether Fifth Third breached duties and was negligent in failing to institute appropriate security measures in response to widely publicized security breaches relating to "phishing" scams; (b) whether Fifth Third breached duties and was negligent in failing to immediately recognize, stop, and/or report suspicious transaction activity relating to unauthorized wire transfers; (c) whether the consumer class is entitled to notice as to whether their financial banking information or other non-public information was compromised as a result of Fifth Third's failure to adequately maintain appropriate security measures; (d) whether the class is entitled to declaratory relief; (e) whether the class is entitled to injunctive relief; (f) whether the class is entitled to an award of reasonable attorneys' fees and costs of suit; and (g) whether the consumer class is entitled to any other remedies as a result of the breach of duties of Fifth Third. Plaintiff prays that the court will enter judgment in their favor and against defendants for: -- Edify's and the class members' damages namely: (i) as to Edify, $224,848 plus interest since April 12, 2007; (ii) as to the remaining members of the class, a yet to be identified sum representing funds misappropriated from their Fifth Third accounts as described; -- Edify's and the class members' costs in pursuing this action; -- Edify's and the class members' attorneys' fees as this is an exceptional case warranting such an award; -- declaratory judgment that Fifth Third is not and cannot be held harmless by the TM Agreement for its negligence in failing to adequately protect Edify and the class members' funds in Fifth Third accounts; -- punitive damages; and -- such additional relief as the court deems just and proper. The suit is “Edify, LLC v. Fifth Third Bank et al., Case No. 2:07-cv-00434- JES-DNF,” filed in the U.S. District court for the Middle District of Florida, under Judge John E. Steele, with referral to Judge Douglas N. Frazier. Representing plaintiffs are: Frank Herrera Herrera & Regalado-Herrera, P.A. 12 N.E. 3rd Street Miami, FL 33132 Phone: 305/860-8910 Fax: 305/860-8944 E-mail: fh@frankherrerapa.com - and - Scott W. Rothstein Rothstein Rosenfeld Adler* Suite 1650, 401 E Las Olas Blvd Ft Lauderdale, FL 33301 Phone: 954/522-3456 Fax: 954/527-8663 E-mail: srothstein@rra-law.com GAINSCO INC: Plaintiffs Appeal Dismissal of Fla. Insurance Suit --------------------------------------------------------------- Plaintiffs in a purported class action pending against Gainsco, Inc. in U.S. District Court for the Middle District of Florida are appealing the dismissal of their case over allegations that the company violated state insurance laws. Early in the third quarter 2006, the company and two subsidiaries were served with the putative lawsuit filed by Ruth R. Arbelo, individually, and on behalf of all others similarly situated, against: -- Gainsco, Inc., -- National Specialty Lines, Inc., and -- MGA Insurance Co., Inc. The suit alleges that the defendants violated certain provisions of Florida insurance laws with respect to the manner in which finance charges are imposed on Florida residents in connection with installment payments of insurance premiums. It thus seeks damages in an unspecified amount in excess of $5 million and other relief. The Company and its two subsidiaries moved for dismissal of the lawsuit on various grounds, including on the basis of the filed rate doctrine and the doctrine of primary jurisdiction. On April 9, 2007, the District Court issued an Opinion and Order granting the Company’s and its subsidiaries’ motion to dismiss without prejudice on the basis that the plaintiff was first required to seek relief from the Florida Office of Insurance Regulation. The plaintiff has filed a motion for reconsideration, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. The suit is “Arbelo v. Gainsco, Inc., et al., Case No. 2:06-cv- 00263-JES-DNF,” filed in the U.S. District Court for the Middle District of Florida under Judge John E. Steele with referral to Judge Douglas N. Frazier. Representing the plaintiffs are: Marcus W. Viles, Esq. Viles & Beckman, LLC 6350 Presidential Ct., Suite A Ft. Myers, FL 33919 Phone: 239/334-3933 Fax: 239/334-7105 E-mail: marcus@vilesandbeckman.com - and - Scott Wm. Weinstein, Esq. Weinstein, Bavly & Moon, PA, Suite 303, 2400 First St. Ft. Myers, FL 33901 Phone: 239/334-8844 Fax: 239-334-1289 E-mail: scott@weinsteinlawfirm.com Representing the defendants is: Christopher S. Carver, Esq. Akerman Senterfitt 28th Floor, 1 SE 3rd Ave. Miami, FL 33131-1714 Phone: 305/374-5600 Fax: 305/374-5095 E-mail: christopher.carver@akerman.com GLS CAPITAL: Pa. Suit Over Delinquency Fees Temporarily Stayed -------------------------------------------------------------- A purported class action filed in the Court of Common Pleas of Allegheny County, Pennsylvania against GLS Capital, Inc., a subsidiary of Dynex Capital Inc., has been stayed, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. Plaintiffs allege that GLS illegally charged the taxpayers of Allegheny County certain attorney fees, costs and expenses, and interest in the collection of delinquent property tax receivables owned by GLS. On Oct. 27, 2006, the Court granted class-action status to the litigation, which was originally filed in 1998. In its Order, the Court left open the possible decertification of the class if the fees, costs and expenses charged by GLS are in accordance with public policy considerations as well as the statute and relevant ordinance. The Company successfully sought the stay of this action pending the outcome of other litigation before the Pennsylvania Supreme Court in which GLS is not directly involved but has filed an Amicus brief in support of the defendants. Several of the allegations in that lawsuit are similar to those being made against GLS in this litigation. Plaintiffs have not enumerated its damages in this matter. Dynex Capital, Inc. -- http://www.dynexcapital.com-- together with its subsidiaries, is a specialty finance company organized as a real estate investment trust that invests in loans and securities consisting principally of single-family residential and commercial mortgage loans. GOOGLE INC: Sued in Ill. for Allegedly Infringing on Trademarks --------------------------------------------------------------- Vulcan Golf is suing four major domainer firms and Google Inc. for filling unused sites with ads. The custom club manufacturer filed the suit in the U.S. District Court for the Northern District of Illinois, Eastern Division on June 15 against: -- Google Inc., -- Oversee.net, -- Sedo LLC, -- Dotster Inc., aka RevenueDirect.com, -- Internet Reit, Inc., d/b/a IREIT Inc., and -- John Does J-X The plaintiff is accusing the defendants of "shocking and egregious intentional, bad faith scheme to generate revenue, and profit from their illegal and deceptive actions in deliberately hijacking, diluting, infringing and otherwise unlawfully using lead plaintiff's and the class's vulnerable, valuable, distinctive and famous, registered marks, trade names, logos, famous names, and other distinctive/valuable marks for their own commercial gain." They allegedly directly collude and conspire to commercially profit from this massive "illegal Infringement Scheme," carried out through defendant Google's well-established and actively developed international online/Internet marketing and advertising networks and programs for the knowing purpose of illegal commercial gain. The plaintiff raises 12 class action complaint under the Lanham Act, Anticybersquatting Consumer Protection Act, trademark infringement under 15 USC S1114(1), false designation of origin under 15 USC 1125(a), dilution under USC 1125(c), Racketeering Influenced Corrupt Organizations Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois Uniform Deceptive Trade Practices Act, the identical or substantially similar consumer fraud and fair trade practices act of the various state, and variou states' common law. The purported class consists of "the owners of the Distinctive and Valuable Marks which have been infringed by one or more of the defendants by means of Deceptive Domains through the Illegal Infringement Scheme." The case is docketed as 07cv3371. Representing the plaintiff are: Robert Foote, Esq. Stephen W. Fung, Esq. Foote Meyers Meilke & Flowers LLC 28 North First St. Suite 2 Geneva IL 60134 Phone: 630-232-6333 Kathleen C. Chavez, Esq. Chavez Law Firm, P.C. 28 North First St. Suite 2 Geneva IL 60134 Phone: 630-232-4480 INDIANAPOLIS POWER: Reaches Settlement in Ind. Landowners' Suit --------------------------------------------------------------- Indianapolis Power & Light Co., a subsidiary of IPALCO Enterprises, Inc. settled a lawsuit filed in Morgan County Superior Court, Indiana over the sale of lands it previously acquired. Many years ago, Indianapolis Power obtained, through purchases from several owners, a substantial tract of land as a potential site for a future power plant. Indianapolis Power later determined it no longer intended to build a power plant on that land and sold it in 2004. In September 2004, a former owner of a parcel included within Indianapolis Power's land sued Indianapolis Power in Morgan County Superior Court in a purported class action to force Indianapolis Power to pay any profit on the sale to the various former owners, as well as profits received from ground leases and timber sales. The plaintiffs contended, in essence, that IPL obtained the various parcels through the threat of eminent domain under circumstances where eminent domain would have been inappropriate. In an amended complaint, the plaintiffs asserted claims for fraudulent inducement to contract, unjust enrichment, breach of fiduciary duty and fraudulent concealment, and sought compensatory and punitive damages. IPL settled the case for a nominal amount on March 29, 2007, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. IPALCO Enterprises, Inc. -- http://www.ipalco.com/-- is a holding company that operates through its wholly owned subsidiaries, Indianapolis Power & Light Company (IPL) and Mid-America Capital Resources, Inc. (Mid-America). IPL is a regulated electric utility. INTERLINK ELECTRONICS: Seeks to Dismiss Calif. Securities Suit -------------------------------------------------------------- Interlink Electronics, Inc. is seeking the dismissal of amended complaint in the securities fraud class action filed against it in the U.S. District Court for the Central District of California. Filed on Nov. 15, 2005, the suit, "Roger Brooks, et al. v. Interlink Electronics, Inc., et al., Case No. 2:05-cv-08133-PA-SH," was brought against the company and two of its current and former officers. It alleges that between April 24, 2003 and Nov. 1, 2005, the company and two of its current and former officers made false and misleading statements and failed to disclose material information regarding the company's results of operations and financial condition. The complaint also alleges violations of federal securities laws, Sections 10 (b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material misrepresentations to the market which had the effect of artificially inflating the market price. It seeks unspecified damages and legal expenses. On Nov. 3, 2006, the court appointed new lead plaintiffs. On Jan. 16, 2007, the lead plaintiffs filed an amended complaint. The amended complaint also includes claims under the Securities Act and the Exchange Act and seeks unspecified damages and legal expenses. On Feb. 22, 2007, defendants filed a motion to dismiss the amended complaint. A June 2007 hearing was set on the motion, according to the company’s May 14, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. The suit is “Roger Brooks, et al. v. Interlink Electronics, Inc., et al., Case No. 2:05-cv-08133-PA-SH,” filed in the U.S. District Court for the Central District of California under Judge Percy Anderson with referral to Judge Stephen J. Hillman. Representing the plaintiffs are: Timothy J. Burke, Esq. Stull Stull and Brody 10940 Wilshire Boulevard, Suite 2300 Los Angeles, CA 90024 Phone: 310-209-2468 E-mail: service@ssbla.com Lionel Z. Glancy, Esq. Glancy Binkow and Goldberg 1801 Avenue of the Stars, Suite 311 Los Angeles, CA 90067 Phone: 310-201-9150 - and – Roy L. Jacobs, Esq. Roy L. Jacobs and Associates 60 East 42nd Street, 46th Floor New York, NY 10165 Phone: 212-867-1156 Representing the defendants is: Daniel S. Floyd, Esq. Gibson Dunn & Crutcher 333 S. Grand Ave., 45th Fl. Los Angeles, CA 90071-3197 Phone: 213-229-7000 E-mail: dfloyd@gibsondunn.com IPALCO ENTERPRISES: ERISA Violations Suit’s Dismissal Appealed -------------------------------------------------------------- Plaintiffs in “Nelson, et al. v. IPALCO Enterprises, Inc., et al., Case No. 1:02-cv-00477-DFH-TAB,” are appealing the dismissal of their suit, alleging violations of the Employment Retirement Income Security Act, that was originally filed in the U.S. District Court for the Southern District of Indiana. The class action, filed on March 29, 2002 against Indianapolis Power & Light Co., a wholly owned unit of IPALCO Enterprises, Inc., and certain of its former officers and directors, alleged that the value of employees' 401(k) and retirement plans plummeted when Virginia-based AES Corp. acquired the utility in a stock swap in 2001. It also alleged company officers dumped IPALCO shares about the time employees were prohibited from selling company stocks owned through their benefit plans. In December 2002, plaintiffs moved to certify this case as a class action. The court granted the motion for class certification on Sept. 30, 2003 (Class Action Reporter, Reporter, May 31, 2006). A bench trial was held in February 2006 to determine whether there were any breaches of fiduciary duties. On March 28, 2007 the court issued its judgment, finding for the defendants. The plaintiffs filed a notice of appeal, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. The suit is, “Nelson, et al. v. IPALCO Enterprises, Inc., et al., Case No. 1:02-cv-00477-DFH-TAB,” filed in the U.S. District Court for the Southern District of Indiana under Judge David Frank Hamilton. Representing the plaintiffs are: Steve W. Berman, Esq. Nicholas Styant-Browne, Esq. Andrew M. Volk, Esq. Hagens Berman Sobol Shapiro LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Phone: (206) 623-7292 Fax: (206) 623-0594 E-mail: steve@hbsslaw.com nick@hagens-berman.com andrew@hbsslaw.com Representing the defendants are: Dane Hal Butswinkas, Esq. Williams & Connolly, LLP 725 Twelfth Street NW Washington, DC 20005 Phone: (202) 434-5110 Fax: (202) 434-5029 E-mail: dbutswinkas@wc.com Web site: http://www.wc.com - and - James H. Ham, III, Esq. Baker & Daniels 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 Phone: (317) 237-1256 Fax: (317) 237-1000 E-mail: jhham@bakerd.com Web site: http://www.bakerd.com MAGURA USA: Recalls Faulty Brake Cylinders for Motorcycles ---------------------------------------------------------- Magura USA, of Olney, Illinois, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 200 units of 190 radial brake master cylinders used on off-road motorcycles, which are manufactured by Gustav Magenwirth GmbH, of Bad Urach, Germany. The company said the brake cylinder on the off-road motorcycle can crack and result in brake failure. This poses a risk of severe injury or death to the driver. No incidents or injuries have been reported. This recall involves 190 Radial Brake Master Cylinders used on off-road motorcycles. The brake cylinders have an “A” or “B” code on the underside of the lever’s pivot bolt. The Magura logo is printed on the cylinder. Brake cylinders without the “A” or “B” markings are not included in this recall. These recalled brake cylinders were manufactured in Germany and are being sold by motorcycle dealers nationwide, mail-order catalogues and Web retailers from August 2005 through May 2007 for about $420. Pictures of the recalled brake cylinders: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07242a.jpg http://www.cpsc.gov/cpscpub/prerel/prhtml07/07242b.jpg Consumers are advised to immediately stop using the off-road motorcycles with recalled brake cylinders and contact Magura USA to receive a replacement product. For additional information, contact Magura USA at (800) 448-3876 between 7 a.m. and 4 p.m. CT, or visit the firm’s Web site: http://www.magurausa.com- consumers can also email the firm: techquestion@magurausa.com or write to Magura USA at 724 West Clem Street, Olney, Ill. 62450. MAXWELL’S BY THE SEA: Faces Labor Code Violations Suit in Fla. -------------------------------------------------------------- Maxwell’s By the Sea, and the City of Fort Lauderdale are facing a class action filed July 9 in Fort Lauderdale Federal Court. Plaintiff Salomao Soares De Freitas allege Labor Code violations. The suit is “De Freitas v. Maxwell's By The Sea, Inc. et al., Case No. 0:07- cv-60959-JIC,” filed in the U.S. District Court for the Southern District of Florida under Judge James I. Cohn, with referral to Judge Lurana S. Snow. Representing the plaintiff is: Keith Michael Stern, Esq. Shavitz Law Group 1515 S Federal Highway Suite 404 Boca Raton, FL 33432 Phone: 561-447-8888 Fax: 447-8831 E-mail: kstern@shavitzlaw.com METABANK: Sued for Funding “Fraudulent” Vehicle Sales in S.D. ------------------------------------------------------------- MetaBank, a wholly owned subsidiary of Meta Financial Group, Inc., is named defendant in a lawsuit filed by purchasers of vehicles in South Dakota, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. On or about April 26, 2006, MetaBank, Meta Financial Group, Inc., Meta Trust Co., and J. Tyler Haahr were named as defendants in “Dengler, Flute, et al v. Prairie Auto Group, Inc.,” a class action filed in Circuit Court for the Second Judicial Circuit in Minnehaha County, South Dakota. This lawsuit appears to be a successor suit to a series of two state and three tribal court lawsuits that were filed in 2006, but apparently subsequently abandoned by the plaintiffs. In this action, plaintiff class is comprised of individuals who purchased vehicles and/or obtained financing from the J.D. Byrider franchise in Pennington County, which was owned and operated by companies controlled by Dan Nelson. Plaintiffs allege that the Dan Nelson companies, including the Dan Nelson Auto Group and the South Dakota Acceptance Corp. and other affiliates, operated under the J.D. Byrider franchise and business model and engaged in abusive sales, lending and consumer practices, the bulk of the complaint addresses the various alleged fraudulent schemes perpetrated by the Nelson companies against their customers, principally the “buy here, pay here” model in which individuals with poor credit histories were allegedly sold poor quality vehicles at high prices with worthless warranties on usurious loan terms. Meta Financial Group, Inc. -- http://www.metacash.com/-- through its banking subsidiaries MetaBank and MetaBank WC, provides a range of financial services. The principal business of MetaBank is attracting retail deposits from the general public and investing those funds primarily in one- to four- family residential mortgage loans, commercial and multi-family real estate, agricultural operating and real estate, construction, consumer and commercial business loans primarily in MetaBank's market area. The principal business of MetaBank WC is attracting retail deposits from the general public and investing those funds in commercial and multi-family real estate and commercial operating loans and, to a lesser extent, one- to four- family residential, consumer and agriculture loans. The Banks also purchase mortgage-backed securities and other investments permissible under applicable regulations. Meta Financial also owns Meta Trust Company, a South Dakota trust corporation. MOTOROLA INC: Settles Ill. Securities Fraud Suit for $190M ----------------------------------------------------------- Motorola, Inc. proposed to settle the consolidated securities fraud class action pending against it in the U.S. District Court for the Northern District of Illinois. The settlement will provide $190,000,000 for the benefit of investors who purchased the following six classes of Motorola securities during the Class Period -- February 3, 2000 and May 14, 2001-- inclusive, plus interest accrued on that amount from May 14, 2007: -- Publicly traded Motorola common stock (CUSIP: 620076109); -- Motorola 8.40% Debentures due August 15, 2031 (CUSIP: 620076AC3); -- Motorola 6.5% Notes due March 1, 2008 (CUSIP: 620076AG4); -- Motorola 6.5% Debentures due September 1, 2025 (CUSIP: 620076AK5); -- Motorola 5.80% Notes due October 15, 2008 (CUSIP: 620076AN9); and -- Motorola 6.5% Debentures due November 15, 2028 (CUSIP: 620076AP4). The settlement resolves a lawsuit over whether Motorola misled investors about its financial performance related to its business with a Turkish customer known as Telsim. Deadline to file for exclusion and objection is not later than August 14, 2007. Deadline to file claims is on November 7, 2007. The court will hold a hearing on September 7, 2007, at 10:00 a.m., in the courtroom of the Honorable Rebecca R. Pallmeyer. Case Background A purported class action, "Barry Family LP v. Carl F. Koenemann," was filed against the former chief financial officer of Motorola on Dec. 24, 2002 in the U.S. District Court for the Southern District of New York, alleging breach of fiduciary duty and violations of Section 10(b) of the U.S. Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission Rule 10b-5. In 2003, the case was consolidated with a number of related cases as, "In re Motorola Securities Litigation" in the U.S. District Court for the Northern District of Illinois. The plaintiffs allege that the price of Motorola's stock was artificially inflated by a failure to disclose vendor financing to Telsim Mobil Telekomunikasyon Hizmetleri A.S., in connection with the sale of telecommunications equipment by Motorola as well as other related aspects of Motorola's dealings with Telsim. On Aug. 25, 2004, the Illinois District Court issued its decision on Motorola's motion to dismiss, granting the motion in part and denying it in part. The court dismissed without prejudice the fraud claims against the individual defendants and denied the motion to dismiss as to Motorola. The plaintiffs chose not to file an amended complaint; therefore, the fraud claims against the individual defendants are dismissed. The court, however, declined to dismiss the plaintiffs' claims that the individual defendants were "controlling persons of Motorola." During 2005, the court certified the case as a class action. Motorola Securities Settlement on the net: http://www.motorolasecuritiessettlement.com./motorola/default.htm The suit is "In Re: Motorola Securities Litigation, Case No. 03 C 00287," filed in the U.S. District Court for the Northern District of Illinois under Judge Rebecca R. Pallmeyer. Representing the plaintiffs are: Robert C. Finkel James A. Harrod Lester Levy Wolf Popper, LLP 845 Third Avenue New York, NY 10022 Phone: (212) 759-4600 and (877) 370-7703 Fax: (212) 486-2093 and (877) 370-7704 - and - Bruce D. Greenberg Lite, DePalma, Greenberg, & Rivas, LLC Two Gateway Center, 12th Floor Newark, NJ 07102 Phone: (973) 623-3000 Representing the defendants are: Timothy F. Haley Ian H. Morrison Camille Annette Olson Seyfarth Shaw, LLP 55 East Monroe Street, Suite 4200 Chicago, IL 60603-4205 Phone: (312) 346-8000 E-mail: thaley@seyfarth.com, imorrison@seyfarth.com and colson@seyfarth.com - and - Emily M. Pasquinelli Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004-1202 Phone: (202) 942-5000 NEW YORK: Vulcan Society Joins Justice Dept.’s Racial Bias Suit --------------------------------------------------------------- The Vulcan Society of the New York’s fire department has joined a class action against the City of New York over alleged racial discrimination in the department’s hiring practices, The New York Daily News reports. In May, the U.S. Department of Justice filed in the U.S. District Court for the Eastern District of New York a suit against the city charging that two written exams administered by the Fired Department of New York (FDNY) in 1999 and 2002 were unfair to black and Hispanic candidates. The suit seeks to represent approximately 335 black employees who "were and continue to be affected by the fact that they were delayed and impeded in their ability to obtain employment with the FDNY." The suit is “United States of America v. City of New York, Case No. 1:07-cv- 02067-NGG-RLM,” filed in the U.S. District Court for the Eastern District of New York, under Judge Nicholas G. Garaufis, with referral to Judge Roanne L. Mann. Representing plaintiffs are: Allyson L. Belovin Levy Ratner, P.C. 80 Eighth Avenue, 8th Floor New York, NY 10011 Phone: 212-627-8100 Fax: 212-627-8182 E-mail: abelovin@lrbpc.com Clare F. Geller U.S. Department of Justice 601 D Street, Nw, Room 4926 Washington, DC 20004 Phone: (202)353-1817 Fax: (202)514-1005 E-mail: clare.geller@usdoj.gov - and - Michael J. Goldberger United States Attorneys Office Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, NY 11201 Phone: (718)254-6052 Fax: (718)254-6083 E-mail: Michael.Goldberger@usdoj.gov Representing defendants are: Michael N. Block Sullivan Papain Block McGrath & Cannavo P.C 120 Broadway- 18th Floor New York, NY 10038 Phone: 212-732-9000 Fax: 212-266-4148 E-mail: mblock@triallaw1.com - and - Georgia Mary Pestana Office of the Corporation Counsel 100 Church Street New York, NY 10007 Phone: 212-788-0862 Fax: 212-788-0940 E-mail: gpestana@law.nyc.gov NORTHERN MARIANAS: Judge Extends GOB’s Term Until End of 2007 ------------------------------------------------------------- Chief Judge Alex R. Munson of the U.S. District Court of the Northern Mariana Islands extended the Garment Oversight Board’s term to Dec. 31, 2007, Ferdie de la Torre of the Saipan Tribune reports. Originally set to expire on July 29, the term-set extension will enable GOB to receive and dispose of the undistributed funds pursuant to the settlement agreement. In 1999, New York law firm Milberg Weiss Bershad & Schulman LLP filed the suit in the U.S. District Court of the Northern Mariana Islands, on behalf of some garment workers who were allegedly made to work in sweatshop conditions (Class Action Reporter, May 29, 2006). A settlement reached five years after, provides an award close to $20 million (Class Action Reporter, Nov. 6, 2006). The money is to be distributed as: Payment to workers $5.8 million Claims administrator of the distribution fund $500,000 Repatriation fund for garment workers $400,000 Monitoring fund $4 million Milberg Trust fund $565,254.80 Plaintiffs lawyer $8.75 million At Sept. 29, 2006 status conference in federal court, lawyer Pamela Parker told the U.S. District Court of the Northern Mariana Islands that a total of over $5 million in checks have been mailed to about 29,700 workers for the settlement of the class action against the Commonwealth's garment factories (Class Action Reporter, Oct. 4, 2006). Subsequently, plaintiffs' lawyer Joyce C. H. Tang, in court papers filed in the U.S. District Court of the Northern Mariana Islands, stated that only about 40 percent of the total amount distributed to workers in the $5 million settlement have been cashed (Class Action Reporter, Nov. 8, 2006) Judge Munson then ordered the garment manufacturers to just send back to claims administrator Gilardi and Co. the undistributable checks that are part of the over $5 million being sent to 29,700 workers in connection with the settlement of the class action against the Commonwealth of the Northern Mariana Islands' (CNMI) garment factories (Class Action Reporter, Nov. 6, 2006). In recent developments, Ms. Tang stated in her report that of the 29,771 checks originally issued for the workers, 13,725 checks were cashed. The total cash distribution, Ms. Tang said, represented by these checks is $2,282,835.89 out of an initial net fund of $3,977,674.68. Ms. Tang said Gilardi reissued or has plans to issue checks to those plaintiffs who did not receive their checks originally and for whom Gilardi now has current addresses, representing a total of $65,198.24. In a written order on July 16, Judge Munson cited GOB's “on the ground” presence on Saipan, its physical proximity to China, and its current relationship with garment workers, factories, and local governmental entities as the most efficient and cost-effective means of identifying more workers eligible to receive settlement money. The judge further said that even if settlement funds still remain after such efforts are undertaken, the GOB may use those undistributed money for repatriation efforts or other purposes consistent with the settlement agreement. He ordered the counsel for the plaintiffs in the class-action to transfer the undistributed settlement money to GOB within 30 days, and the claims administrator to transfer to GOB its computerized database of settlement class members, and any other databases it has created that will facilitate the board's efforts to identify eligible workers and avoid duplication of payments. The plaintiffs' counsel and the claims administrator estimate that the unencumbered portion of the undistributed settlement funds may reach $2 million, according to Judge Munson. A Sept. 14, 2007 status hearing at 10 a.m. is set for the plaintiffs' counsel and the GOB to discuss the $280,000 tax-related reserve. The counsel will report to the court how the $280,000 was disposed. It will be decided whether it is necessary to continue to hold this sum in reserve or have it transferred to GOB. For more details, contact: Pamela M. Parker Lerach Coughlin Stoia Geller Rudman & Robbins LLP 655 West Broadway Suite 1900 San Diego, CA 92101 Phone: (619) 231-1058 Fax: (619) 231-7423 Steven P. Pixley 2nd Floor, CIC Centre Beach Rd., Garapan P.O. Box 7757 SVRB, Saipan, MP 96950 Phone: (670) 233-2898/5175 Fax: (670) 233-4716 E-mail: sppixley@aol.com - and - Joyce C. H. Tang Civille & Tang, PLLC 330 Hernan Cortez Avenue, Suite 200 Hagatna 96910, Guam Phone: 671-472-8868 Fax: 671-477-2511 PARMALAT SPA: $50M Securities Suit Settlement Granted Final Okay ---------------------------------------------------------------- Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York gave final approval to a proposed $50 million settlement by: * Banca Nazionale del Lavoro S.p.A. (BNL), * Credit Suisse Group, * Credit Suisse, * Credit Suisse International, and * Credit Suisse Securities (Europe) Ltd. in the matter, "In re Parmalat Securities Litigation, Case No. 04-0030 (LAK),” Reuters reports. During a July 19 brief hearing, Judge Kaplan approved the settlement, under which Credit Suisse and Italy's bank BNL will each pay $25 million. BNL of Italy is now owned by France's BNP Paribas. The judge also approved a reimbursement of $6 million to the plaintiff's attorneys. Case Background Generally, the lawsuit alleges that Parmalat and numerous other defendants participated in a fraudulent financial scheme, resulting in the understatement of Parmalat's debt by nearly $10 billion and the overstatement of its net assets by over $16 billion. Parmalat ultimately filed for bankruptcy, and the value of its stock and bonds dramatically declined. Though some defendants agreed to settle the case, it will still proceed against Parmalat S.p.A. (the successor to Parmalat Finanziaria S.p.A.), financial institutions, two auditing firms, and certain individuals. In particular, the defendants not settling, against whom claims are still pending in the class action, are: -- Bank of America Corp., -- Bank of America, N.A., -- Banc of America Securities Ltd., -- Citigroup Inc., -- Citibank N.A., -- Eureka Securitisation plc, -- Deloitte Touche Tohmatsu, -- Deloitte & Touche USA LLP, -- Grant Thornton International, -- Grant Thornton LLP, -- Pavia e Ansaldo, -- Parmalat S.p.A., and -- numerous individuals. In May 2004, the court appointed the law firms of Cohen, Milstein, Hausfeld & Toll, P.L.L.C, of Washington, D.C., Grant & Eisenhofer, P.A., of Wilmington, Del., and Spector Roseman & Kodroff, P.C., of Philadelphia, Pa., to represent the plaintiffs in the case. These firms have been litigating this case since that time, and they negotiated the partial settlement. The settlement covers all investors, brokers, financial institutions, and other nominees who bought the common stock or bonds of Parmalat Finanziaria S.p.A. and its subsidiaries and affiliates from Jan. 5, 1999, through and including Dec. 18, 2003 (Class Action Reporter, April 19, 2007). For more details, contact: Parmalat Notice Administrator P.O. Box 4068 Portland, OR 97208-4068 Web site: http://www.ParmalatSettlement.com Mark S. Willis, Esq. Cohen, Milstein, Hausfeld & Toll, P.L.L.C. Phone: +1-202-408-4606 James Sabella, Esq. Grant & Eisenhofer P.A. Phone: +1-646-722-8500 - and - Robert M. Roseman, Esq. Spector Roseman & Kodroff, P.C. Phone: +1-215-496-0300 PROGRESSIVE EXPRESS: “Insurance Discount” Suit Ruling Appealed -------------------------------------------------------------- Lawyers for the plaintiff in a suit alleging Progressive Express bills customers an illegal finance charge have appealed to the 2nd District Court of Appeal a decision by a regulatory agency to declare it otherwise, Karen Branch-Brioso of The Tampa Tribune reports. Plaintiff Michelle Reaume of Plant City, Florida filed a class action claiming Progressive’s paid-in-full auto insurance discount for customers who pay their bill in one lump sum is a hidden finance charge beyond the 18 percent allowed by law. In 2005, Hillsborough Circuit Judge Perry Little agreed with Ms. Reaume’s lawyers James Felman and Katherine Earle Yanes. Progressive asked the Second District Court of Appeal to intervene. The lawyers argued that since Ms. Reaume’s complaint dealt with a discount that was part of premiums approved by the Office of Insurance Regulation (OIR), it was the OIR and not the courts that should hear the complaint. The OIR regulates insurance premiums, but state law sets limits on finance charges for people who pay their bill in installments. OIR General Counsel Steven Parton signed off on a friend-of-the-court brief agreeing with Progressive that his department had jurisdiction over the issue. On July 2, the Office of Insurance Regulation, which oversees insurance companies in Florida, agreed with Progressive lawyers’ assertion that the discount is not a finance charge but “a break based on statistical proof that people who pay in full file less claims than people who don’t,” according to Ms. Branch-Brioso. In that decision, OIR Assistant General Counsel Diane Zecchino-Lukin wrote that the discount is part of Progressive’s premium and “not a premium finance charge,” according to the report. Ms. Reaume filed her appeal on July 10. Mr. Felman estimated potential damages to be $242 million, just for the difference between paid-in-full premiums and the higher premiums paid by installment customers. PUERTO RICO: Final Order in Nixed Touchtone Service Suit Pending ---------------------------------------------------------------- A final determination is yet to be issued in a case against Puerto Rico Telephone Co., Inc. that was dismissed by the court of First Instance of Puerto Rico. Puerto Rico Telephone Co., Inc. is a fixed-line subsidiary of Telecomunicaciones de Puerto Rico, Inc. On Nov. 17, 2003, six residential subscribers and eight business service subscribers filed a class action with the court of First Instance of Puerto Rico under the Puerto Rico Telecommunications Act of 1996 and the Puerto Rico Class Action Act of 1971. Plaintiffs claimed that the company's charges for touchtone service are not based on cost, and therefore violate the Act. Thus, they requested that the court: -- issue an order certifying the case as a class action; -- designate the plaintiffs as representative of the class; -- find that the charges are illegal; and -- order the company to reimburse every subscriber for excess payments made since September 1996. On Nov. 1, 2004 Puerto Rico Telephone filed a motion for summary judgment requesting the dismissal of plaintiff's claim due to plaintiff's failure to follow the procedure to object to charges, established by Law 33. Law 33 establishes that a telecommunication services user has 20 days from the receipt of the telecommunications service company invoice to object to charges in the invoice. In the motion, Puerto Rico Telephone has argued that since plaintiffs admittedly failed to comply with said procedure their claims are time- barred. The motion is still under the consideration by the court. On May 10, 2005 the court issued an order certifying the case as a class action. Puerto Rico Telephone sought reconsideration of that decision and a hearing was held on June 20, 2005 to discuss the merits of Puerto Rico Telephone's position. On June 22, 2005 the court issued an order confirming its previous decision. As a consequence, a certiorari writ was filed on June 22, 2005. On Sept. 19, 2005 the P.R. Appeals Court denied the same. Puerto Rico Telephone sought reconsideration of that decision on Oct. 4, 2005. The reconsideration request was denied on Oct. 11, 2005. Therefore Puerto Rico Telephone filed a certiorari writ with the Puerto Rico Supreme Court on Nov. 10, 2005. The certiorari writ was denied on Jan. 18, 2006. On Jan. 11, 2006, Puerto Rico Telephone filed a motion to dismiss alleging lack of subject matter jurisdiction based on the enactment of Law No. 138 of Nov. 4, 2005. This new law grants the Puerto Rico Telecommunications Regulatory Board (TRB) exclusive primary jurisdiction to entertain class actions related to telecommunication services. The hearing scheduled for Jan. 24, 2006 was rescheduled for May 16, 2006 in response to plaintiff's request for time to oppose Puerto Rico Telephone's motion to dismiss. The court granted the plaintiffs until March 24, 2006 to submit their motions opposing Puerto Rico Telephone's motion to dismiss. In addition the court granted Puerto Rico Telephone until April 24, 2006 to submit its reply. On March 24, 2006 plaintiffs filed a request for 60 additional days to submit their opposing motion. On March 29, 2006 Puerto Rico Telephone opposed this request and asked the court to rule on the jurisdictional matter brought by the company. On April 3, 2006, the court denied plaintiff's request for extension of time, but did not rule on Puerto Rico Telephone's motion to dismiss. On April 12, 2006, plaintiff's filed for reconsideration, which was not considered by the court. Consequently, on April 28, 2006, plaintiff's filed an opposition to Puerto Rico Telephone's motion to dismiss arguing that Law 138 is unconstitutional. Puerto Rico Telephone filed an urgent motion, arguing that the opposition was untimely filed, and as a result the court has lost jurisdiction of said motion under the Rules of Civil Procedure. In the alternative, and due to the fact that this is an interlocutory proceeding, Puerto Rico Telephone requested additional time to file a reply and a new date for the argumentative hearing. On May 9, 2006, plaintiffs filed opposition to Puerto Rico Telephone's request. On May 9, 2006, the judge issued a final judgment dismissing the proceeding. The judge acknowledged that with the enactment of Law 138, the TRB has primary jurisdiction to hear the case. On June 8, 2006 the plaintiffs filed an appeal before the Puerto Rico Court of Appeals. On July 10, 2006, Puerto Rico Telephone filed its corresponding opposition to the appeal. Plaintiffs filed a request for oral hearing. On Oct. 12, 2006, the Court of Appeals denied the plaintiffs' request for oral hearing and acknowledged the brief filed by Puerto Rico Telephone. The case has been submitted and pending for a final determination. The company provided no development in the matter in its May 15, 2007 Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. Guaynabo, Puerto Rico-based Telecomunicaciones de Puerto Rico, Inc. -- http://www.telefonicapr.com/is telecommunications services provider in Puerto Rico, the company's fixed-line subsidiary, Puerto Rico Telephone Company (PRT), is the island nation's incumbent local-exchange carrier with more than 1 million residential and business access lines in services. The company also offers wireless communications services under the Verizon Wireless brand, as well as long-distance, Internet access, and directory services. Verizon Communications owns 52% of Telecomunicaciones de Puerto Rico through its purchase of GTE Corporation's GTE Holdings (Puerto Rico); the government of Puerto Rico owns 28% through its Government Development Bank. SALTON INC: Still Faces N.Y. Injury Litigation Over Teakettles -------------------------------------------------------------- Salton, Inc. remains a defendant in a lawsuit filed in New York State Supreme Court seeking damages for claims that the plaintiffs were injured by water contaminated with lead from teakettles the company sold under its Russell Hobbs brand. The suit, "DiNatale v. Salton, Inc.," filed on or about Oct. 27, 2004, seeks unspecified damages. The plaintiffs' attorney was asking to convert the lawsuit into a class action, but no class action has since been filed. The company reported no development in the matter in its May 15, 2007 Form 10- Q Filing with the U.S. Securities and Exchange Commission for the fiscal quarterly period ended March 31, 2007. Salton, Inc. -- http://www.saltoninc.com-- is a designer, marketer and distributor of branded small appliances, home decor and personal care products. The Company's product mix includes a range of small kitchen and home appliances, electronics for the home, tabletop products, time products, lighting products, picture frames, and personal care and wellness products. SCHERING-PLOUGH: Faces Mass. Suit Over Intron-Related Kickbacks --------------------------------------------------------------- Schering-Plough Corp. is facing a class-action complaint filed July 12 in the U.S. District Court for the District of Massachusetts accusing it of paying illegal kickbacks to doctors to push the prescription drugs Intron, Rebetol and Eulexin. Named plaintiff, Teamsters Local 346 Health Fund, brings this action on behalf of all persons and legal entities in the United States and its territories that, for purposes other than resale, purchased, reimbursed and/or paid for Eulexin, Intron A, Rebetol/Intron A Combination Therapy, Temodar, PEG-Intron, Rebetol and Rebetol/PEG-Intron Combination Therapy, Integrilin and/or Fareston from January 1, 1995 through June 2005 based upon payments that were approved only because of Defendants’ illegal off-label marketing scheme for which Defendants were unjustly enriched. Plaintiff alleges damages resulting from payments it made for drugs illegally marketed by Defendants. Among other things, Defendants allegedly engaged in the following general types of acts and omissions as part of their illegal marketing, promotion and sales scheme and conspiracy: (1) they promoted certain of the Subject Drugs to physicians by offering and paying various types of improper bribes, kickbacks and other illegal remuneration, whether or not such Subject Drugs were promoted, prescribed and used for indicated/approved medical conditions and in doses and/or for durations that were indicated/approved; (2) they promoted certain of the Subject Drugs at doses and/or for durations of use that were not medically safe, efficacious, effective, or useful, whether or not such Subject Drugs were promoted, prescribed, and used for an indicated/approved medical condition; and (3) they promoted certain of the Subject Drugs for non- indicated/unapproved or “off-label” uses. More specifically, among other things, the Complaint details numerous kickbacks provided by Defendants to physicians and other medical providers to induce them to prescribe certain pharmaceutical products. Defendants’ practices were allegedly part of a highly organized and orchestrated campaign, which, among other things, included: 1. offering kickbacks to physicians and healthcare providers in the form of samples; 2. offering kickbacks to physicians in the form of “overfilled vials”; 3. offering kickbacks to physicians and healthcare providers in the form of clinical drug trials; 4. providing lavish entertainment to physicians and healthcare providers; 5. providing physicians and healthcare providers with sham speaker fees a/k/a “honorariums”; 6. providing physicians and healthcare providers with sham grants; 7. providing physicians and healthcare providers with sham preceptorships; 8. using “investigator meetings” as inducements; 9. using “advisory board meetings” as inducements; 10. creating sham paperwork programs as a means to provide kickbacks to physicians; 11. providing remuneration as inducements to physicians and healthcare providers through the Commitment to Care program; 12. providing remuneration to a select handful of physicians through the Consultant Care Network; and 13. providing free full-time Physician Assistants to physician practices. In addition, the Complaint alleges violations of the federal False Claims Act, among other violations of law, by Defendants in actively promoting certain products for “off-label” uses and for which Plaintiff and/or members of the Classes were, by way of Defendants’ illegal scheme and conspiracy, caused to make payments. Defendants’ motive in creating and operating the fraudulent scheme and conspiracy, including and/or in addition to the provision of illegal remuneration and illegal inducements to physicians as described herein, was to obtain additional revenues and profits from the marketing, promotion and sale of the Subject Drugs. The plaintiff wants the court to rule on: (a) Whether Defendants engaged in the fraudulent marketing, promotion and sales scheme and conspiracy alleged herein; (b) Whether the conspiracy was implemented; (c) Whether Intron A, Temodar and combination therapy are medically necessary for uses not approved by the FDA; (d) Whether Defendants engaged in a fraudulent and/or unfair deceptive scheme of improperly marketing, promoting and selling Intron A, Temodar and/or combination therapy to treat conditions for which these Subject Drugs were not approved by the FDA; (e) Whether Defendants engaged in a fraudulent and/or unfair deceptive scheme of improperly marketing, promoting and selling Intron A, Temodar and/or Rebetron Combination Therapy for conditions for which these Subject Drugs were not medically safe, efficacious, effective or useful; (f) Whether Defendants engaged in a fraudulent and/or unfair deceptive scheme of improperly marketing, promoting and selling any of the Subject Drugs for durations of use or in dosages that exceeded or were otherwise outside the scope of FDA approval or that were not medically safe, efficacious, effective or useful; (g) Whether Defendants coached or instructed physicians or others on how to conceal the off-label nature of Intron A, Temodar and/or combination therapy on claim forms submitted by or to patients and members of the Class; (h) Whether Defendants prepared, funded and published studies and other materials which contained false information and misrepresentations regarding off-label uses, or the validity of or propriety of or scientific and other support for, off-label uses of Intron A, Temodar and/or combination therapy; (i) Whether, and on how many these Subject Drugs were not medically safe, efficacious, effective or useful; (j) Whether Defendants utilized others and/or engaged in conspiracies to assist in the publication and dissemination of false statements, or fraudulent studies, to physicians concerning off-label uses of Intron A, Temodar and/or combination therapy; (k) Whether Defendants used kickbacks, bribes and/or other payments or provision of illegal remuneration to induce physicians to prescribe, administer, or otherwise treat patients with any of the Subject Drugs, whether or not such prescribing, administration, or treatment was for medical conditions that were FDA-approved; (l) Whether Defendants engaged in a pattern and practice with the intent of deceiving and defrauding Plaintiff and the Class and with the intent of suppressing the unlawful conduct and conspiracy; (m) Whether Defendants violated state consumer protection statutes including the Consumer Protection Act of Massachusetts; (n) Whether Defendants are liable under state conspiracy and/or state concert of action laws; (o) Whether Defendants unjustly enriched themselves at the expense of Plaintiff and members of the Class; (p) Whether Defendants’ illegal bribes, kickbacks, payments of illegal remuneration and/or other illegal inducements provided to physicians and other medical providers directly and proximately caused Plaintiff and members of the Class to pay for any of the Subject Drugs, or to pay more for the Subject Drugs than they otherwise would have paid either for those specific Subject Drugs or for an alternative drug or treatment, whether or not the Subject Drugs for which Plaintiff and the members of the Class paid were for FDA-approved uses; (q) Whether Defendants engaged in a pattern or practice that directly and proximately caused Plaintiff and members of the Class to pay for any of the Subject Drugs for non-medically necessary uses, for uses not Approved by the FDA, or in doses or for durations of use that were not approved by the FDA or that were not medically necessary; (r) Whether Plaintiff and the Class are entitled to compensatory damages, and, if so, the nature of such damages; (s) Whether Plaintiff and members of the Class are entitled to punitive damages, treble damages or exemplary damages and, if so, the nature of such damages; (t) Whether Plaintiff and members of the Class are entitled to equitable relief pursuant to their claim for unjust enrichment or otherwise; and (u) Whether Plaintiff and members of the Class are entitled to an award of reasonable attorneys’ fees, prejudgment interest, post-judgment interest and costs of suit. Plaintiff individually and on behalf of the Class demands judgment against Defendants in each claim for relief, jointly and severally, and as follows: -- On the claim under the consumer protection statutes of Massachusetts, compensatory damages, treble damages, punitive damages, and any other damages permitted under such statutes, such amounts to be determined at trial, plus Plaintiff’s costs in this suit and reasonable attorneys’ fees; -- On the conspiracy/concert of action claim, compensatory damages, treble damages and punitive damages, such amounts to be determined at trial, plus Plaintiff’s costs in this suit and all reasonable attorneys’ fees; -- On the claim for unjust enrichment, recovery in the amount of Plaintiff’s and the Class’s (i) payments for these Subject Drugs to treat conditions for which these drugs were not approved by the FDA; (ii) over-payments for these Subject Drugs resulting from Defendant-promoted treatment with excessive dosages or over excessive durations that were not FDA-approved, even if treating the underlying medical condition with these Subject Drugs was FDA-approved; and (iii) payments or over-payments for these Subject Drugs where Plaintiff’s and the Class’s purchases arose from bribes, kickbacks, illegal remuneration or other illegal inducements paid or provided to physicians by the Defendants, such amounts to be determined at trial, plus Plaintiff’s costs in this suit and reasonable attorneys’ fees; -- Awarding Plaintiff and the Class other appropriate equitable relief, including, but not limited to, disgorgement of all profits obtained from their wrongful conduct nd declaratory relief; -- Awarding Plaintiff and the Class pre-judgment and post- judgment interest at the maximum rate allowed by law; -- Awarding Plaintiff and the Class their costs and expenses in this litigation, including expert fees, and reasonable attorneys’ fees; and -- Awarding Plaintiff and the Class such other and further relief as may be just and proper under the circumstances. The suit is “Teamsters Local 346 Health Fund v. Schering-Plough Corp. et al., Case No. 1:07-cv-11283-MLW,” filed in the U.S. District Court for the District of Massachusetts, under Judge Mark L. Wolf. Representing plaintiffs is: Kristin A. Suga Zelle, Hofmann, Voelbel, Mason & Gette LLP Suite 1300, 950 Winter Street Waltham, MA 02451 Phone: 781-466-0700 Fax: 781-466-0701 E-mail: ksuga@zelle.com SUNNYSIDE APARTMENTS: Faces Labor Code Violations Suit in Fla. --------------------------------------------------------------- Sunnyside Apartments and Double G Corp. are facing a class action filed July 9 in Tampa Federal Court. Plaintiff Frank Jorge alleges Labor Code violations. The suit is “Jorge v. Sunnyside Apartments, Inc. et al., Case No. 8:07-cv- 01191-SCB-MSS,” filed in the U.S. District Court for the Middle District of Florida under Judge Susan C. Bucklew with referral to Judge Mary S. Scriven. Representing the plaintiff is: Keith M. Stern, Esq. Shavitz Law Group, PA Suite 404 1515 S Federal Hwy Boca Raton, FL 33432 Phone: n561/447-8888 Fax: 561/447-8831 E-mail: kstern@shavitzlaw.com TRAVELCLICK INC: Faces Labor Code Violations Lawsuit in Ill. ------------------------------------------------------------ TravelCLICK Inc. is facing a class action filed in Chicago Federal Court. Plaintiffs Ann Sykora and Stephanie Pavisic allege Labor Code violations. The suits is “Pavisic et al. v. TravelCLICK, Inc., Case No. 1:07-cv-03895,’ filed in the U.S. District Court for the Northern District of Illinois under Judge Ruben Castillo. Representing the plaintiff is: John William Billhorn, Esq. Billhorn Law Firm 515 N. State Street Suite 2200 Chicago, IL 60610 Phone: (312) 464-1450 E-mail: jbillhorn@billhornlaw.com UNITED STATES: Reverses Stance on Green Card Applications --------------------------------------------------------- In response to the class action filed by Chicago's largest immigration firm, Azulay, Horn & Seiden, LLC, the federal government announced plans to accept green card applications from skilled legal immigrants. Earlier this summer, the State Department and Citizenship & Immigration Services (CIS) announced that eligible skilled workers could submit applications to become legal residents. However, on July 2, the government claimed that green cards were no longer available because CIS had reduced its backlog of green card applications, and all properly submitted applications would be rejected. The distribution of green cards was indefinitely suspended. On July 6, Azulay Horn & Seiden, LLC filed a class action in the U.S. District Court for the Northern District of Illinois on behalf of its clients and all those like them, against: -- Secretary of State Condoleezza Rice, -- the Department of State, -- Secretary of Homeland Security Michael Chertoff, -- the Department of Homeland Security, -- U.S. Department of State and the and U.S. Citizenship and Immigration Services (USCIS), and -- Emilio Gonzalez, and F. Gerard Heinauer of USCIS for announcing that they would refuse to accept employer-sponsored green card applications on behalf of the skilled workers (Class Action Reporter, July 11, 2007). The CIS now said they will accept employment based petitions under the July Visa Bulletin, at the pre-fee increase rates until August 17, 2007. Applications already filed, which the agency planned to reject, will be accepted. With this decision, tens of thousands of immigrants who had thought their chances to become legal citizens were dashed will now be able to apply for permanent residency. "Azulay, Horn & Seiden was happy to pave the way for the government's reversal of its decision with our class action," said Ira Azulay, firm CEO. "We are pleased that the State Department and CIS acknowledged their mistakes and are taking the appropriate steps to correct their mishaps. Now, deserving U.S. residents will have the opportunity to attain the citizenship they have worked so hard to achieve. We want to thank everyone who worked with us to achieve this result during this difficult process." Azulay Horn & Seiden is the first firm to act proactively and file a complaint. The suit is “Ptasinska v. U.S. Department of State et al., Case No. 1:07-cv- 03795,” filed in the U.S. District Court for the Northern District of Illinois, under Judge Charles P. Kocoras. Representing defendants is: AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street, Suite 500 Chicago, IL 60604 Phone: (312) 353-5300 E-mail: USAILN.ECFAUSA@usdoj.gov Representing plaintiffs are: Judd Azulay Sara M. Collins Roland C Lara Azulay Horn & Seiden, LLC 205 North Michigan Avenue, 40th Floor Chicago, IL 60601 Phone: (312)832-9200 Fax: (312)832-9212 E-mail: scollins@ahslaw.com or rlara@ahslaw.com UNIVERSAL AMERICAN: N.Y. Court Dismisses “Kemp” Securities Suit --------------------------------------------------------------- The U.S. District Court for the Southern District of New York dismissed with prejudice a consolidated securities class action filed against Universal American Financial Corp. Several actions containing related factual allegations were filed against the company and certain of its officers and directors between Nov. 22, 2005 and Feb. 2, 2006. Plaintiffs voluntarily withdrew one of these actions, while some of the remaining ones were later consolidated. In the first action, Robert Kemp filed a purported class action complaint on Nov. 22, 2005, in the U.S. District Court for the Southern District of New York. "Kemp" is a purported class action asserted on behalf of those shareholders of the company who acquired the company's common stock between Feb. 16, 2005 and Oct. 28, 2005. Plaintiffs in the "Kemp" seek unspecified damages under Section 10(b) and 20 (a) of the U.S. Securities Exchange Act of 1934 based upon allegedly false statements by the company and Richard A. Barasch, Robert A. Waegelein and Gary W. Bryant in press releases, financial statements and analyst conferences during the class period. Another purported class action was filed by Western Trust Laborers-Employers Pension Trust, a putative class member in the Kemp Action who had filed a motion to be named as lead plaintiff in that action, on Feb. 2, 2006, in the U.S. District Court for the Southern District of New York. The factual and legal allegations in the Western Trust Action, which also purports to be a class action, are similar to those in the Kemp Action. By order dated May 1, 2006, the Kemp Action and the Western Trust Action were consolidated, and Western Washington Laborers-Employers Pension Trust was named lead plaintiff. On June 26, 2006, a consolidated amended class action complaint was filed in the Kemp Action), which will now subsume the Western Trust Action. The Amended Complaint asserts the same legal claims as in the original Kemp and Western Trust Actions, but also names an additional defendant and includes additional allegations. The additional defendant is William E. Wehner, a former director and former president of Pennsylvania Life Insurance Co., a subsidiary of the company. The Amended Complaint alleges that Mr. Wehner is liable for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on grounds similar to those asserted against the Officer Defendants. The additional assertions are supposedly based in part upon information from six former employees and agents of the company and its subsidiaries concerning, among other things, the company's medical loss ratio. Like the original complaints in the Kemp and Western Trust Actions, the Amended Complaint seeks damages in an unspecified amount. On Aug. 14, 2006, defendants served a motion to dismiss the Amended Complaint in the Kemp Action. The lead plaintiff served opposition papers to the motion on Oct. 17, 2006. Earlier, the U.S. District Court for the Southern District of New York dismissed the suit with prejudice following a ruling by the Court in favor of the company defendants. The first identified complaint is "Kemp v. Universal American Financial Corp., et al., Case No. 1:05-cv-09883-JFK," filed in the U.S. District Court for the Southern District of New York under Judge John F. Keenan. Representing the plaintiffs are: Steven G. Schulman Peter Edward Seidman David Avi Rosenfeld Milberg Weiss Bershad & Schulman, LLP (NYC) One Pennsylvania Plaza New York, NY 10119 Phone: 212-946-9356 or (212) 613-5625 or 631-367-7100 Fax: 212-273-4406 or (212) 868-1229 or 631-367-1173 E-mail: sschulman@milbergweiss.com or pseidman@milberg.com or drosenfeld@lerachlaw.com Representing the defendants are: Joseph Francis Donley Andrew J. Levander Swidler Berlin Shereff Friedman, LLP 405 Lexington Avenue New York, NY 10174 Phone: (212) 891-9524 or (212) 698-3500 Fax: (212) 891-9598 or (212) 698-3500 E-mail: joseph.donley@dechert.com and andrew.levander@dechert.com VEECO INSTRUMENTS: Settles N.Y. Securities Suit for $5.5M --------------------------------------------------------- Veeco Instruments Inc. entered into a Memorandum of Understanding on July 5, 2007 to settle and fully resolve the securities class action litigation, “In re Veeco Instruments Inc. Sec. Litigation, No. 05MD1695,” for a payment of $5.5 million. The suit was filed in the U.S. District Court for the Southern District of New York against Veeco and other defendants, including certain of its current and former officers. Veeco expects that insurance proceeds will cover the settlement amount and any significant legal expenses related to the settlement. The settlement agreement is subject to court approval and would dismiss all pending claims against Veeco and the other defendants with no admission or finding of wrongdoing by Veeco or any of the other defendants, and Veeco and the other defendants would receive a full release of all claims pending in the litigation. Representing the plaintiffs are: Phyllis Maza, Esq. Parker of Berger & Montague, PC 1622 Locust St., Philadelphia PA 19103-6365, U.S. Phone: (215) 875-4647 Fax: (215) 875-4674 E-mail: pparker@bm.net Eric James Belfi, Esq. Murray, Frank & Sailer, LLP 275 Madison Avenue, Ste. 801 New York, NY 10016 Phone: 212-682-1818 Fax: 212-682-1892 E-mail: ebelfi@murrayfrank.com and - Sherrie Raiken, Esq. Savett of Berg & Androphy (Houston), 3704 Travis Street Houston, TX 77002 Phone: (215) 875-3071 Fax: (215)-875-5715 Representing the company is: Robert F. Serio, Esq. Gibson, Dunn & Crutcher, LLP (NYC) 200 Park Avenue, 48th Floor New York, NY 10166 Phone: 212-351-3917 Fax: 212-351-5246 E-mail: rserio@gibsondunn.com VONAGE HOLDINGS: Faces Calif., N.J., Ohio, Wash. Consumer Suits --------------------------------------------------------------- Vonage Holdings Corp. was named in several purported class actions in California, New Jersey, Ohio and Washington, alleging a wide variety of deficiencies with respect to its business practices, marketing disclosures, email marketing and quality issues for both phone and fax service. These cases seek relief under various state consumer protection statutes, federal anti-spam laws, and common law theories. Some of the actions allege that the company failed to adequately disclose terms of service, including how the money-back guarantee and the free month of service operate. Various plaintiffs allege that the disconnect fees are improper and that we failed to honor promised rebates. In addition, some plaintiffs allege the company falsely represented cost savings for its customers and deceptively describe the nature and quality of our service. Other plaintiffs claim its facsimile service is defective, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. Vonage Holdings Corp. -- http://www.vonage.com/-- is a provider of broadband telephone services with over 2.2 million subscriber lines as of Dec. 31, 2006. Utilizing its voice-over-Internet protocol (VoIP) technology platform, the Company offers low-cost communications services. VS HOLDINGS: Faces Multiple Suits Over Multivitamins for Women -------------------------------------------------------------- VS Holdings, Inc. faces several purported class actions over certain of its multivitamins for women, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. On Jan. 19, 2007, media reports noted that an organization called Consumerlab.com had tested various nutritional supplements and found the Company’s private label brand of multivitamins Especially for Women to contain less calcium than specified on the product label and to contain levels of lead that are above acceptable parameters. As a precaution, the Company voluntarily and temporarily ceased selling the Product pending an internal investigation and offered a full refund for those have purchased the Product. On Jan. 22, 2007, plaintiffs Angelique Odum and Sharilyn Castro, represented by different counsel, filed separate lawsuits against the Company in U.S. District Court for the Central District of California and for the Southern District of California, respectively. On March 7, 2007, plaintiffs Sara Pineda and Zara Jellicoe, both represented by other counsel, filed a third lawsuit in the U.S. District Court for the Northern District of California. The Odum and Castro suits allege violations of the California Consumers Legal Remedies Act and other California consumer protection laws. The Castro complaint also alleges various common law torts. The Pineda/Jellicoe suit alleges violations of California's Unfair Competition and False Advertising Laws, but not the CLRA. The Odum, Castro and Pineda/Jellicoe plaintiffs all claim to represent a class of California consumers who purchased the Product, and their complaints are premised on the factual allegations stated in the prior media reports. On March 9, 2007, a fourth plaintiff, Elena Klyachman, filed a purported national class action complaint against the Company, and its affiliates: -- VS Direct, Inc., -- VS Holdings, Inc., and -- VS Parent, Inc., -- Nature's Value, Inc., a supplier of the Product in the Superior Court of New Jersey for Bergen County. The Klyachman complaint is based on the same general allegations about the Product as the earlier complaints, but alleges violations of the New Jersey Consumer Fraud Act, common law, statutory and common law warranties, the Uniform Commercial Code and the Federal Magnusson Moss Act on behalf of all persons in the United States who purchased the Product. In addition, on April 19, 2007, two other plaintiffs, Catherine Guittard and Frances Von Koenig, represented by the same counsel as plaintiffs Pineda and Jellicoe, filed a purported national class action against the Company in the U.S. District Court for the District of New Jersey, alleging violations of the New Jersey Consumer Fraud Act and unjust enrichment based on the same allegations about the Product as in the prior cases. All pending actions seek restitution on behalf of purchasers of the Products as well as an injunction and attorney’s fees and costs of litigation. The Castro complaint also seeks actual and punitive damages, the Klyachman complaint seeks actual, treble, and punitive damages, and the Guittard/Von Koenig complaint seeks actual and treble damages. There is no claim of personal injury in any of the actions. The Company was served with the Odum complaint on Jan. 24, 2007, but on April 19, 2007, plaintiff Odum filed a Request for Dismissal of the case, and Odum's counsel has announced that they will be associating in as counsel for plaintiff Castro. The Company has been served with the other Complaints, but has not yet filed a response. The Company is continuing its investigation so it may respond to Plaintiffs’ claims. VS Holdings, Inc. is a specialty retailer and direct marketer of vitamins, minerals, herbs, supplements, sports nutrition and other health and wellness products. YANKEE CANDLE: Mass. Suit Over Madison Dearborn Merger Dismissed ---------------------------------------------------------------- A putative shareholder class action in relation to The Yankee Candle Co. Inc.’s definitive merger agreement with Madison Dearborn Partners, LLC has been dismissed. On Oct. 25, 2006, The Yankee Candle Co. Inc. announced that it had entered into a definitive merger agreement to sell outstanding shares of the company for approximately $34.75 per share in cash. On the same day as the announcement of the merger, a putative shareholder class action was filed against the company and its directors, as well as against Madison Dearborn, in state court in Massachusetts. The complaint alleged that the company and its directors breached their fiduciary duties to the company's shareholders in approving the proposed transaction between the company and Madison Dearborn, and that Madison Dearborn aided and abetted the directors' alleged breaches of their fiduciary duties. Specifically, among other things, the complaint alleged that the directors: -- failed to properly value the company; -- failed to take steps to maximize the value of the company by failing to adequately solicit alternative potential acquirers or alternative transactions; and -- favored the Madison Dearborn transaction over other potential transactions due to loyalty to current management. The complaint sought, among other things, an injunction preventing the completion of the proposed transaction, rescission if the transaction is consummated, monetary damages, attorneys' fees and expenses associated with the lawsuit, and any other further equitable relief as the court may deem just and proper. The lawsuit was dismissed with prejudice pursuant to a Stipulation of Dismissal with Prejudice filed with the court on Jan. 31, 2007, according to the company’s May 15, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2007. The Yankee Candle Company, Inc. -- http://www.yankeecandle.com-- is a designer, manufacturer and branded marketer of scented candles in the giftware industry. ZENITH INSURANCE: Chiropractors File Suit in Cal. Federal Court --------------------------------------------------------------- Zenith Insurance Co. is facing a class action filed by chiropractors in Los Angeles Federal Court. Plaintiff Kathleen Roche, D.C. alleges that the company improperly reduced their payments for medical services. The suit is “Kathleen Roche v. Zenith Insurance Co. et al., Case No. 2:07-cv- 04492-AHM-VBK,” filed in the U.S. District Court for the Central District of California under Judge A. Howard Matz with referral to Judge Victor B. Kenton.