/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070724.mbx C L A S S A C T I O N R E P O R T E R Tuesday, July 24, 2007, Vol. 9, No. 144 Headlines ARKANSAS: Neurosurgeon Faces Lawsuit Over Unnecessary Surgery BERTUCCI’S CORP: Faces FACTA Violations Litigation in E.D. Pa. BLACK & DECKER: Recalls Trimmers, Edgers with Detachable Parts CHIQUITA BRANDS: Sued in N.J. for Supporting Terrorist Groups CONNECTICUT: Former Gov. Denied Immunity in Suit Over Layoffs DAIMLERCHRYSLER CORP: Judge Okays Deposition in Flaky Paint Suit DARDEN RESTAURANTS: Reaches Settlement in Wash. Labor Litigation DARDEN RESTAURANTS: Units Face Suits Over Server Banking Policy ECOLLEGE.COM: Settles Shareholder Lawsuit Over Pearson Takeover EL APPLE: Faces Labor Code Violations Lawsuit in Texas FLORIDA: Landowners Group Wants to Lead Citrus Springs MSBU Suit GILMAN & CIOCIA: Discovery Ongoing in Suit Over Pinnacle Deal GLOBAL WEALTH: $46M Settlement in D.C. Gender Bias Suit Approved IMAX CORP: Still Faces Canadian Securities Fraud Litigation IMAX CORP: Parties Agree to Extend Time for Filing of Complaint KFC CORP: Faces Litigation in N.J. Alleging FACTA Violations LA ESPERANZA: Reaches $600T Settlement in Suit by Workers LONG JOHN: Seeks Transfer of Cal. Disability Discrimination Suit MERRILL LYNCH: Research Reports Suit Settlement Hearing Set Nov. NISSIN FOODS: Recalls Shrimp-Flavored Noodles on Allergy Risk OSEM: Faces $1.18M Suit Over Petah Tikva Warehouse Mismanagement PALM INC: Seeks to Settle Cal. Consumer Suits Over Treo Products SCHERING-PLOUGH: N.J. Securities Lawsuit Granted Certification STATE FARM: AG Hood Files New Suit After Settlement Breakdown TACO BELL: No Ruling Yet in ADA Suit Summary Judgment Request TACO BELL: Faces FACTA Violations Complaint in Ill. Court TACO BELL: Still Faces Consolidated RGM’s Litigation in Calif. WACHOVIA CORP: Faces $5M Labor Code Violations Suit in Cal. XTO ENERGY: Still Faces Suit Over Natural Gas Royalty Payments YOTRIO INTL: Recalls Reclining Lounge Chairs with Weak Support New Securities Fraud Cases CV TECHNOLOGIES: Faces $110M Securities Fraud Lawsuit in Canada SOUTHWESTERN RESOURCES: Faces $220M Suit Over China Gold Project ********* ARKANSAS: Neurosurgeon Faces Lawsuit Over Unnecessary Surgery ------------------------------------------------------------- Dr. Patrick Chan, a Searcy neurosurgeon, is facing a class action filed by attorney John Ogles of Little Rock on behalf of Scotty and Linda Foster of Searcy, reports say. The suit was filed in White County Circuit Court. It claims Dr. Chan performed multi-level fusion surgeries on Mr. Foster's upper spine that were medically unnecessary leaving him totally disabled. The lawsuit is one of many civil complaints against Dr. Chan. For more information, contact: John Ogles, Esq. Ogles Law Firm 200 S. Jeff Davis Drive Jacksonville AR 72076 Phone: (501) 982-8339 - and – Robert McHenry, Esq. McHenry, McHenry & Taylor 8210 Henderson Road Little Rock, Arkansas 72210 (Pulaski Co.) Phone: 501-372-3425 Fax: 501-372-3428 BERTUCCI’S CORP: Faces FACTA Violations Litigation in E.D. Pa. -------------------------------------------------------------- Bertucci’s Corp. faces a purported class action in the U.S. District Court for the Eastern District of Pennsylvania alleging violations of the federal Fair and Accurate Credit Transaction Act. On or about April 11, 2007, a purported class action, captioned, “Gerald D. Wells, Jr. v. Bertucci’s Corp., et al., Case No. 2:07-cv-01458,” was filed against the company. The complaint alleges willful violation of FACTA based upon certain of our retail stores’ alleged electronic printing of receipts that were not in compliance with the applicable information truncation provisions of FACTA. The complaint seeks statutory damages of not less than $100 and not more than $1,000 for each violation, as well as unspecified punitive damages, attorneys’ fees and equitable relief preventing us from further engaging in violations of FACTA. The complaint does not allege that any class member has suffered actual damages, according to the company’s May 21, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period April 4, 2007. The suit is “Gerald D. Wells, Jr. v. Bertucci’s Corp., et al., Case No. 2:07- cv-01458,” filed in the U.S. District Court for the Eastern District of Pennsylvania under Judge Judge Mary A. McLaughlin. Representing the plaintiffs is: Joseph H. Meltzer, Esq. Schiffrin Barroway Topaz & Kessler, L.L.P. 280 King Of Prussia Road Radnor, PA 19087 Phone: 610-667-7706 Fax: 610-667-7056 E-mail: jmeltzer@sbtklaw.com Representing the defendant is: Gregory T. Arnold Brown Rudnick Berlack Israels LLP One Financial Center Boston, MA 02111 Phone: 617-856-8539 Fax: 617-289-0453 E-mail: garnold@brownrudnick.com - and - Alexandra C. Gaugler, Esq. Miller Alfano & Raspanti PC 1818 Market St. Suite 3402 Philadelphia, PA 19103 Phone: 215-972-6400 E-mail: agaugler@mar-law.com BLACK & DECKER: Recalls Trimmers, Edgers with Detachable Parts -------------------------------------------------------------- Black & Decker (U.S.) Inc., of Towson, Maryland, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 202,000 units of Black & Decker GH1000 Grasshog XP String Trimmer/Edgers. The company said the trimmer/edger’s spool, spool cap and pieces of trimmer string can come loose during use and become airborne projectiles, posing a laceration hazard to the user as well as bystanders. The trimmer/edgers can also overheat posing a burn hazard to consumers. Black & Decker has received 707 reports of incidents, including 58 reports of injuries. Serious injuries included cuts to two consumers’ legs that required medical attention. Minor injuries included bruises, lacerations, and facial injuries such as a welt and broken skin over a consumer’s eye. There were also reports of property damage, including two broken windows. The Black & Decker GH1000 Grasshog XP String Trimmers/Edgers are electric- powered. Trimmer/edgers with date codes 200546 through 200645 (representing manufacture dates of November 14, 2005 through November 6, 2006) are included in this recall. The date code is located on the underside of the trimmer/edger’s handle. Only trimmers with black spools caps are included in the recall. Those with orange spool caps are not included in the recall. These recalled trimmer/edgers were manufactured in China and are being sold at major home center and hardware stores nationwide from November 2005 through January 2007 for about $70. Picture of the recalled trimmer/edgers: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07248.jpg Consumers are advised to stop using the string trimmers/edgers immediately and contact Black & Decker for a free repair kit. For additional information, contact Black & Decker at (888) 742-9158 between 8 a.m. and 5 p.m. ET Monday through Friday, or visit http://www.blackanddecker.com. CHIQUITA BRANDS: Sued in N.J. for Supporting Terrorist Groups ------------------------------------------------------------- Chiquita Brands International, Inc. is facing a class action in the U.S. District Court District of New Jersey for funding, arming, and otherwise supporting terrorist organizations in Colombia, in order to maintain its profitable control of Colombia’s banana growing regions. Plaintiffs are family members of trade unionists, banana workers, political organizers, social activists, and others targeted and killed by terrorists, notably the paramilitary organization United Self-Defense Committees of Colombia (Autodefensorias Unidas de Colombia, or AUC), during the 1990s through 2004. In order to operate its banana production in an environment free of labor opposition and social disturbances, Chiquita funded, armed, and otherwise supported the AUC and other terrorist groups during this period, the suit states. The deaths of plaintiffs’ relatives were allegedly a direct, foreseeable, and intended result of Chiquita’s illegal and tortious actions. Chiquita’s actions violated not only Colombian law and U.S. law, but also international law prohibiting crimes against humanity, extrajudicial killing, torture, war crimes, and other abuses, according to the complaint. General Allegations in the Lawsuit “At all times, defendants knew or should have known that the AUC was a violent paramilitary organization continually engaging in vicious crimes and human rights violations against civilians in Colombia, including extrajudicial killing, torture, and forced disappearances. “The acts described herein were inflicted under color of law and under color of official authority, and/or in conspiracy with, and/or in a joint criminal enterprise with, and/or in concert with, and/or on behalf of those acting under color of official authority. The AUC has carried out its activities with both the tacit approval and active cooperation of official government security forces. “Moreover, high-ranking officials from across the Colombian government have been implicated in paramilitary collaboration, including fourteen current members of Congress, seven former lawmakers, the head of the secret police, mayors, and former governors. Furthermore, Chiquita’s payments to the AUC were facilitated by CONVIVIRs, which are licensed by and operate with the express authority of the government. “The acts described herein were conducted in the course of an internal armed conflict, in which the AUC and other paramilitaries were engaged in combat with guerrilla armies, and committed the abuses against Plaintiffs and decedents as part of their prosecution of this conflict. The AUC and other paramilitaries were also engaged in this conflict in partnership with the Colombian military. “The acts described herein were part of a widespread and systematic attack by the paramilitaries against the civilian population of the banana-growing region, as well as against several discrete sub-populations, including leftist politicians, labor organizers, community activists, persons considered socially undesirable, and perceived guerrilla sympathizers. “This attack spanned a large swath of land in Colombia, resulted in the deaths of thousands of individuals, and was directed by a centrally commanded paramilitary organization. On information and belief, at all relevant times Chiquita had knowledge of this attack. “The acts and injuries to Plaintiffs and decedents described herein were part of a pattern and practice of systematic human rights violations requested, paid for, ordered, confirmed, aided and abetted, and/or ratified by Chiquita and/or committed in conspiracy with the AUC. “As a direct and proximate result of Chiquita’s unlawful conduct, Plaintiffs have suffered and will continue to suffer harm including pain and suffering, personal injuries, property damages, harm to their livelihoods, and extreme and severe mental anguish and emotional distress. Plaintiffs are thereby entitled to general and compensatory damages in amounts to be proven at trial.” Plaintiffs say Chiquita’s actions violated these laws, agreements, conventions, resolutions and treaties: (a) Alien Tort Claims Act; (b) Torture Victims Protection Act; (c) Customary international law; (d) United Nations Charter; (e) Universal Declaration of Human Rights; (f) International Covenant on Civil and Political Rights; (g) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (h) Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (i) Common Article 3 of the 1949 Geneva Conventions; (j) Common law of the United States of America; (k) Statutes and common law of the State of New Jersey, including but not limited to wrongful death, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring; civil conspiracy, and loss of consortium; and the (l) Laws of Colombia. They said a legal action by Plaintiffs in Colombia would be futile. In June 2004, Chiquita sold its Colombian subsidiary Banadex. On information and belief, Chiquita no longer owns any production operations in Colombia and is not subject to service there. Furthermore, the political and legal system in Colombia is characterized by virtual impunity for the crimes of paramilitaries and those who assist them. The vast majority of arrest warrants for paramilitary leaders are never carried out, and when such figures are arrested they are frequently released or allowed to escape from security facilities. Military officers accused of collaboration with paramilitaries are routinely exonerated or given token sentences by military courts. Prosecutors, investigators, and judicial officials who pursue cases of human rights abuses implicating paramilitaries are subject to death threats and assassinations, and many have had to resign or flee the country as a result. Legal action by Plaintiffs in Colombia would also result in serious reprisals. Individuals who seek redress for paramilitary crimes committed against them or their family members are regularly targeted for further retributive violence. Plaintiffs were unable to bring suit in Colombia or the U.S. until the past year due to the poor security situation and the danger of reprisals, which Chiquita’s support of the AUC contributed to. Class Action Allegations Plaintiffs seek certification of this action as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs allege that Chiquita supported a campaign of military and social control by the ACCU, and AUC, and/or other paramilitary groups from at least 1994 through 2004, whose goal, supported by Chiquita, was to exert total control over the land and inhabitants of the banana-growing region of Colombia. Plaintiffs seek to represent a class consisting of all persons (including relatives and/or legal representatives of decedents) subjected to abuses by this campaign in the banana-growing region from 1994 through 2004. Victims include, but are not limited to, individuals who were the objects of acts constituting extrajudicial killing; forced disappearance; torture; cruel, inhuman, or degrading treatment; kidnapping; rape; forced displacement; crimes against humanity; or crimes against civilians constituting war crimes. The members of the Class are so numerous that joinder of all members is impractical. The exact number and identities of all Class members is not currently known. According to reliable statistics, however, the AUC was responsible for many thousands of killings and many hundreds of massacres in Colombia between 1997 and 2004. In 2001 alone, the AUC is believed to have committed at least 1,015 killings and over one hundred massacres; in 2003, the organization was allegedly responsible for the killing or disappearance of at least 1,300 people. In the banana-growing region of Uraba alone, human rights organizations have documented over 3,700 murders by the AUC during 1996–2004 and 60,000 forced displacements during the same period. These figures suggest that the Class at minimum numbers in the thousands and may exceed ten thousand. The plaintiffs want the court to rule on: (a) whether Defendants provided financial assistance to the AUC; (b) whether financial assistance provided to the AUC by Defendants substantially assisted it in perpetrating violations of Plaintiffs’ fundamental human rights; (c) whether Defendants knew, or recklessly ignored, that the payments they made to the AUC were used to finance a campaign of terror directed at the civilian population in Colombia’s banana growing region; (d) whether Defendants provided support to the AUC for the purpose of suppressing labor and community opposition; (e) whether Defendants knew, or recklessly ignored, that their business activities in Colombia, which earned them millions of dollars, resulted in the extrajudicial killing, forced disappearance, kidnapping, rape, forced displacement, property destruction, torture, or cruel, inhuman, or degrading treatment of civilians who lived in Colombia; (f) whether the AUC acted as an agent of Defendants in carrying out a campaign of murder and intimidation directed at union leaders, community activists, and political operatives in the areas of Colombia where Defendants had their banana-producing operations, including whether Defendants ratified such acts; (g) whether Defendants conspired with or aided and abetted the AUC in illegally importing weapons and ammunition from Nicaragua into Colombia for use by the AUC in its paramilitary campaigns; (h) whether the AUC, in committing the injuries inflicted on Plaintiffs, acted under the color of state law and in a joint venture with official Colombian security forces; (i) whether the actions of the AUC constitute war crimes; (j) whether the actions of the AUC constitute crimes against humanity; (k) whether Defendants’ actions as set forth herein constitute violations of international, New Jersey, and/or Colombia law; (l) whether Defendants have been unjustly enriched by the violations set forth herein; (m) whether Defendants’ behavior was negligent; (n) whether this Court has jurisdiction over the claims of the Class against Defendants; (o) whether this Court should order restitution or disgorgement of revenues and profits relating to the violations described herein; and (p) whether Defendants should be subject to awards of compensatory and/or punitive damages and the proper measure thereof. The plaintiff raises claims for relief on: extrajudicial killing; crimes against humanity; torture war crimes; terrorism; material support to terrorist; organizations; cruel, inhuman, or degrading treatment; violation of the rights to life; liberty and security of person and peaceful assembly and association; consistent pattern of gross violations of human rights; wrongful death; assault and battery; intentional infliction of emotional distress; negligent infliction of emotional distress; negligence/negligent hiring/ negligence per se; and loss of consortium. They demand jury trial. Every plaintiff prays for judgment against each defendant in excess of $75,000, as compensatory damages, including general and special damages; and punitive damages, among others. They also ask for injunctive and declaratory relief. Representing the plaintiffs are: Judith Brown Chomsky, Esq. Law Offices Of Judith Brown Chomsky Post Office Box 29726 Elkins Park, PA 19027 Phone: (215) 782-8367 Fax: (215) 782-8368 -- and – Richard Herz, Esq. Marco Simons, Esq. Earthrights International 1612 K Street N.W., Suite 401 Washington, DC 20006 Phone: (202) 466-5188 Fax: (202) 466-5189 CONNECTICUT: Former Gov. Denied Immunity in Suit Over Layoffs ------------------------------------------------------------- The U.S. Court of Appeals for the 2nd Circuit in New York denied former Gov. John G. Rowland's request for immunity from charges he abused the power of his office to silence the voices of his critics when he fired approximately 3,000 state employees in November 2002. The decision in “SEBAC v. John G. Rowland and Marc S. Ryan (docket no. 060616- cv),” clears the way to hold the former governor accountable for illegally retaliating against public workers for their union activity and political views. "This decision is a victory for everyone who supports open, honest, and transparent government" Dan Livingston, General Counsel for the State Employees Bargaining Agent Coalition observed after reviewing the decision. "[Mr.] Rowland has been hiding behind a claim of immunity to avoid answering questions under oath. The court's decision allows us to vindicate the rights of the public service employees who were the victims of [Mr.] Rowland's political vendetta and restore the public services the people of Connecticut need," he added. The case, first filed in January 2003, alleges constitutional violations of the free-speech rights of the terminated state employees. State employee unions contend that Gov. Rowland illegally targeted unionized state workers for termination for refusing to give up their vested contract rights, for opposing his Administration's policies, and for supporting his opponent in the 2002 gubernatorial elections. The case was brought by the SEBAC on behalf of all unionized state employees. Gov. Rowland, and his former OPM Secretary Marc Ryan, had claimed that, as state officials, they had "immunity" and could not be held liable for violating the union workers' rights. Federal Judge Alfred V. Covello, of the Connecticut federal district, rejected that contention in January 2006, and the Court of Appeals issued a unanimous ruling affirming Judge Covello's decision. David S. Golub, the Stamford lawyer representing the unions and the terminated employees, stated, "This decision puts an end to Rowland's claim that he can't be held liable for violating workers' First Amendment rights." Mr. Golub explained that Messrs. Rowland and Ryan will now be required to answer questions under oath in pretrial questioning, and that the unions would press for a speedy trial date. "From the very beginning, this was about standing up to the Rowland administration for harming the services our union members deliver to the people of Connecticut," Mr. Livingston concluded. The full text of the Court of Appeals ruling in the case is available online at: http://www.council4.org/new/wp-content/uploads/2007/07/06-0616-cv.pdf Public employees working for the State of Connecticut who are members of these 13 unions are represented by SEBAC: (1) Administrative & Residual Employees Union/AFT, (2) American Association of University Professors – Connecticut State University; (3) American Association of University Professors – UCONN (4) American Federation of State, County, & Municipal Employees - Council 4; (5) American Federation of School Administrators; (6) Congress of Connecticut Community Colleges/SEIU Local 1973; (7) Connecticut Employees Union Independent/SEIU Local 511 (8) Connecticut Federation of Education and Professional Employees/AFT; (9) Connecticut State Employees Association/SEIU Local 2001 (10) Connecticut State Police Union; (11) International Brotherhood of Police Officers/NAGE (12) New England Health Care Employees Union/SEIU District 1199NE; (13) Protective Services Employees Coalition/IAFF-IUPA The suit was filed in U.S. District Court for the District of Connecticut. For more information, contact Dan Livingston, General Counsel of SEBAC, Phone: (860) 712-4668. DAIMLERCHRYSLER CORP: Judge Okays Deposition in Flaky Paint Suit ---------------------------------------------------------------- Sangamon County (Ill.) Circuit Judge Patrick Kelley denied a motion by the Lakin Law firm to strike out a request to depose the representative of a class action against DaimlerChrysler over flaky paints, Steve Korris of the Madison County Record reports. DaimlerChrysler served a deposition notice on Alan Zuckerman, but Tim Londrigan, local counsel for the Lakins, had moved to strike it. At a hearing April on 27, Judge Kelley denied the Lakin motion, according to Mr. Korris. The docket does not show whether the deposition happened, Mr. Korris stated in the report. In another development, Mr. Zuckerman admitted in responses that the 1995 Dodge Caravan that he claimed had flaky paints, was totaled after a crash. Mr. Zuckerman remained on the plaintiff roster as of July 12, according to Mr. Korris. The Lakin Law firm has three remaining plaintiffs in the lawsuit after losing two in December. The remaining plaintiffs are Thomas Boxdorfer and Joanna Lane of Madison County and Deborah Franke of St. Clair County. The Lakins originally sued DaimlerChrysler in Madison County, in 2000. In 2004, Circuit Judge Philip Kardis sent the case to Sangamon County. DARDEN RESTAURANTS: Reaches Settlement in Wash. Labor Litigation ---------------------------------------------------------------- Darden Restaurants, Inc. settled a purported class action alleging purported class-wide wage and hour violations that was filed in Washington State Superior Court in Spokane Count. In August 2003, three former employees in Washington filed a class action alleging violations of Washington labor laws with respect to providing rest breaks. The Court stayed the action and ordered the plaintiffs into the company’s mandatory arbitration program. Although the company believes it provided the required rest breaks to its employees, it resolved the case through mediation, and the settlement agreement received preliminary court approval in June 2007, according to the company’s July 19, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended May 27, 2007. Darden Restaurants, Inc. -- http://www.dardenusa.com/-- is a casual dining restaurant company. The Company owns and operates the Red Lobster, Olive Garden, Bahama Breeze, Smokey Bones Barbeque & Grill, and Seasons 52 restaurant concepts located in the U.S. and Canada. DARDEN RESTAURANTS: Units Face Suits Over Server Banking Policy --------------------------------------------------------------- Two restaurant concepts of Darden Restaurants, Inc. face purported class actions over its server banking policy, according to the company’s July 19, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended May 27, 2007. In January 2004, a former food server filed a purported class action in California state court alleging that Red Lobster’s “server banking” policies and practices (under which servers settle guest checks directly with customers throughout their shifts, and turn in collected monies at the shift’s end) improperly required her and other food servers and bartenders to make up cash shortages and walkouts in violation of California law. The case was ordered to arbitration. As a procedural matter, the arbitrator ruled that class-wide arbitration is permissible under our dispute resolution program. The company has filed a petition opposing the arbitrator’s decision; no decision on the petition has yet been rendered and no class has been certified. In January 2007, plaintiffs’ counsel filed in California state court a second purported class action on behalf of servers and bartenders alleging that Olive Garden’s server banking policy and its alleged failure to pay split shift premiums violated California law. Darden Restaurants, Inc. -- http://www.dardenusa.com/-- is a casual dining restaurant company. The Company owns and operates the Red Lobster, Olive Garden, Bahama Breeze, Smokey Bones Barbeque & Grill, and Seasons 52 restaurant concepts located in the U.S. and Canada. ECOLLEGE.COM: Settles Shareholder Lawsuit Over Pearson Takeover --------------------------------------------------------------- eCollege.com, a for-profit education company, has entered into a Memorandum of Understanding to settle a purported class action in relation to a takeover deal with Pearson Education Inc. The suit was filed on May 30, 2007 in the Circuit Court of Cook County (Chancery Division) in the State of Illinois by shareholder Martin Gaynor against Oakleigh Blakeman Thorne III, eCollege.com’s chairman and chief executive, and the company’s five directors (Class Action Reporter, June 6, 2007). Pearson is not named in the suit. Pearson offered $22.45 for each eCollege share. The acquisition agreement included a $15.1-million termination fee and its terms “expressly forbid” the company from seeking higher offers, according to the lawsuit. Mr. Gaynor claims the $271,786 to $573,560 bonuses that certain executives will receive in the offer shows that the officials put “their personal interests ahead of the interests of eCollege.com’s shareholders.” Mr. Gaynor wants a judge to declare the termination fee in the transaction unfair. He wants to prevent the sale from going through until eCollege.com executives have considered all options. The complaint alleges, among other things, that the defendants breached, or aided and abetted the breach of, fiduciary duties owed to eCollege shareholders by eCollege's directors in connection with eCollege's entry into the Agreement and Plan of Merger, dated May 14, 2007, by and among eCollege, Pearson Education, Inc. and Epsilon Acquisition Corp. and the value received in the merger. The settlement, which also involves other defendants, will be subject to customary conditions, including court approval following notice to members of the proposed settlement class. If finally approved by the court, the settlement will resolve all of the claims that were or could have been brought on behalf of the proposed settlement class in the action being settled, including all claims relating to the merger, the merger agreement, the value received in the merger and any disclosure made in connection therewith. In addition, in connection with the settlement, the parties have agreed that plaintiffs' counsel will petition the court for an award of attorneys' fees and expenses to be paid by eCollege in an amount not to exceed $300,000, subject to court approval. The merger may be consummated prior to final court approval of the settlement. Each of eCollege and the other defendants denies all of the allegations in the lawsuit, including any allegation that its current disclosures with regard to the pending merger are misleading or incomplete in any way. Nevertheless, without admitting any liability or wrongdoing, eCollege and the other defendants in this case have agreed in principle to settle the case in order to avoid the potential cost and distraction of continued litigation and to eliminate any risk of any delay to the closing of the merger posed by this lawsuit. The settlement will not affect the merger consideration to be paid to shareholders of eCollege in connection with the merger or the timing of the special meeting of its shareholders scheduled for July 30, 2007 to approve the merger agreement. Pursuant to the proposed settlement, eCollege agreed to make certain amended and supplemental disclosures which will be filed with the Securities and Exchange Commission later today. For more information, contact: Kristi Emerson eCollege Phone: +1-303-873-3788 E-mail: kristie@eCollege.com Website: http://www.ecollege.com EL APPLE: Faces Labor Code Violations Lawsuit in Texas ------------------------------------------------------ El Apple Inc., dba Applebee’s Neighborhood Grill, is facing a class action filed July 12 in San Angelo, Texas, Federal Court. Plaintiff Sean Enloe alleges violation of the Federal Labor Standards Act. The suit is “Enloe v. El Apple, Inc. et al., Case No. 6:07-cv-00032,” filed in the U.S. District Court for the Northern District of Texas under Judge Sam R. Cummings. Representing the plaintiff is: Robert J. Wiley, Esq. Law Office of Rob Wiley Turtle Creek Tower 3131 Turtle Creek Blvd Suite 310 Dallas, TX 75219-5426 Phone: 214/528-6500 Fax: 214/528-6511 E-mail: rwiley@robwiley.com FLORIDA: Landowners Group Wants to Lead Citrus Springs MSBU Suit ---------------------------------------------------------------- The Citrus Springs Landowners Association is asking Circuit Judge Patricia Thomas to rule on whether it could represent a class of people damaged by the county’s Municipal Service Benefit Unit (MSBU), Terry Witt of (Citrus County) Chronicle Online. An MSBU is a flat annual fee that appears on the property tax bill, but is not a property tax. The fee is $20 for vacant land and $25 for improved land. It was created when the original developer of Citrus Springs abandoned the project before it was completed. The landowners want the tax scrapped because they said it provides no direct benefit to the land in Citrus Springs. They also want to recoup millions of dollars that have already been paid. Their lawsuit alleges the Citrus County Commission improperly used revenue from the MSBU to build a $2.3 million community center, pave roads, build entrance signs, install fire hydrants and equip a community park. Citrus County stopped using MSBU revenue to fund operation of the community center two years ago, “in an abundance of caution,” according to County Attorney Robert Battista. According to the report, Citrus Springs still uses its MSBU to resurface streets, add signage to its entrances, equip its community park and install fire hydrants. GILMAN & CIOCIA: Discovery Ongoing in Suit Over Pinnacle Deal ------------------------------------------------------------- Discovery is ongoing in a purported stockholders' class action against Gilman & Ciocia, Inc., which is pending in the Court of Chancery of the State of Delaware in and for New Castle County. On Feb. 4, 2004, the company was served with a summons and a shareholder's class action and derivative complaint filed by Gary Kosseff against James Ciocia, Thomas Povinelli, Michael P. Ryan, Kathryn Travis, Seth A. Akabas, Louis P. Karol, Edward H. Cohen, Steven Gilbert and Doreen Biebusch, and Gilman & Ciocia, Inc. (Civil Action No. 188-N). The action accuses the company, its board of directors and its management of breaching their fiduciary duty of loyalty in connection with the sale of offices to Pinnacle Taxx Advisors, LLC in 2002. The action alleges that the sale to Pinnacle was for inadequate consideration and without a fairness opinion by independent financial advisors, without independent legal advice and without a thorough evaluation and vote by an independent committee of the board of directors. The action seeks: -- a declaration that the company, its board of directors and management breached their fiduciary duty and other duties to the plaintiff and to the other members of the purported class; -- a rescission of the Asset Purchase Agreement; -- unspecified monetary damages; and -- an award to the plaintiff of costs and disbursements, including reasonable legal, expert and accountants fees. On March 15, 2004, counsel for the company and for all defendants filed a motion to dismiss the lawsuit. On June 19, 2004, the plaintiff filed an amended complaint. On July 12, 2004, counsel for the company and for all defendants filed a motion to dismiss the amended complaint. On March 8, 2005, oral argument was heard on the motion to dismiss, and on July 29, 2005 the case Master delivered his draft report denying the motion. The parties filed exceptions to the report and on Aug. 3, 2006, the Master delivered his final report denying the motion to dismiss. The parties are proceeding with discovery and a June 4, 2007 trial was scheduled for the case. Gilman + Ciocia, Inc. -- http://www.gilcio.com/-- provides federal, state and local tax preparation services to individuals, predominantly in the middle and upper income tax brackets, and financial planning services, including securities brokerage, insurance and mortgage agency services. GLOBAL WEALTH: $46M Settlement in D.C. Gender Bias Suit Approved ---------------------------------------------------------------- Judge Richard W. Roberts of the U.S. District Court for the District of Columbia granted preliminary approval to a $46 million class action settlement of gender discrimination asserted against Morgan Stanley & Co. Inc.'s Global Wealth Management Group. The settlement also would require the company to make changes in various policies affecting compensation and branch management promotion. The settlement covers female Financial Advisors and Registered Financial Advisor Trainees employed by Morgan Stanley at any time between August 5, 2003 through June 30, 2007. The lawsuit was filed on June 22, 2006 in the U.S. District Court for the District of Columbia under the caption, "Joanne August-Johnson et al. v. Morgan Stanley DW Inc.," (Class Action Reporter, July 11, 2006) Plaintiffs, who seek damages in law and in equity, are: -- Cheryl Guistiniano, -- Debra Shaw, -- Joanne August-Johnson, -- Laurie Blackburn, and -- Nancy Reeves According to the complaint, the case arises out of the company's alleged systematic discriminatory treatment of its female financial advisors in violation of federal and applicable state civil rights laws. The suit was brought under Title VII of the Civil Rights Act of 1964 and under the Age Discrimination in Employment Act of 1967 on behalf of all female financial advisors at Morgan Stanley who were employed at any time from Aug. 5, 2003 to the present. Its filing was designed to protect the rights of the named plaintiffs, who reside in four states, and the prospective class members nationwide. Early this year, Global Wealth Management Group, one of the four main business units of Morgan Stanley DW, Inc., settled for $46,000,000 (Class Action Reporter, May 2, 2007). Settlement Terms Under terms of the settlement, Global Wealth will adopt new programs in such areas as account redistribution, training and management development designed to enhance the success of women financial advisors. In addition, it establishes a process through which women financial advisors who believe they were historically disadvantaged because of their gender may submit monetary claims to a Special Master jointly appointed by the parties. A $46 million pool has been established to pay such claims and related costs. Judge Roberts is scheduled to hold a hearing to consider final approval of the settlement on October 11, 2007. "We are delighted to advance to the final approval stage of the settlement process," said Co-Lead Counsel Cyrus Mehri. "Our courageous clients are bringing about real change at Morgan Stanley, including fair distribution of business opportunities." Co-Lead Counsel Steven Sprenger agreed, stating, "We are pleased that Judge Roberts has agreed to allow the settlement to be submitted to the class members for their consideration. We believe that the class members will overwhelmingly favor final approval of the settlement." A fact sheet on the settlement is available upon request to bwittschen@findjustice.com. The suit is "August-Johnson et al. v. Morgan Stanley DW, Inc., Case No. 1:06- cv-01142-RWR," filed in the U.S. District Court for the District of Columbia under Judge Richard W. Roberts. Representing the plaintiffs are: Cyrus Mehri, Esq. Mehri & Skalet, PLLC 1300 19th Street NW Washington, DC 20036 Phone: (202) 822-5100 E-mail: cmehri@findjustice.com - and - Steven M. Sprenger, Esq. Sprenger & Lang, PLLC 1400 I Street, NW, Suite 500 Washington, DC 20005 Phone: (202) 265-8010 Fax: (202) 332-6652 E-mail: ssprenger@sprengerlang.com IMAX CORP: Still Faces Canadian Securities Fraud Litigation ------------------------------------------------------------ IMAX Corp. remains a defendant in a class action that was filed on Sept. 20, 2006 in the Ontario Superior Court of Justice against the Company and certain of its officers and directors, alleging violations of Canadian securities laws. The lawsuit was brought on behalf of shareholders who acquired the Company’s securities between Feb. 17, 2006 and Aug. 9, 2006. The lawsuit is in a very early stage and seeks unspecified compensatory and punitive damages, as well as costs and expenses, according to the company’s July 20, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2006. MAX Corp. -- http://www.imax.com-- is an entertainment technology company specializing in large-format and three-dimensional (3D) film presentations. The Company's principal business is the design, manufacture, sale and lease of projection systems based on technology for large-format, 15-perforation film frame, 70-mm format (15/70-format) theaters, including commercial theaters, museums and science centers, and destination entertainment sites. IMAX CORP: Parties Agree to Extend Time for Filing of Complaint --------------------------------------------------------------- Parties in a consolidated securities fraud class action against IMAX Corp. and certain of its officers and directors agree to extend time to file an amended complaint in the case. Initially, the company was named as defendants in eight purported class actions filed between Aug. 11, 2006 and Sept. 18, 2006. These eight actions were filed in the U.S. District Court for the Southern District of New York. They were brought on behalf of shareholders who purchased the company's common stock between Feb. 17, 2006 and Aug. 9, 2006. The suits allege primarily that the defendants engaged in securities fraud by disseminating materially false and misleading statements during the class period regarding their revenue recognition of theater system installations, and failing to disclose material information concerning the company's revenue recognition practices. Currently there are motions for consolidation, assignment of lead plaintiff, and appointment of lead plaintiff counsel pending before the court. These lawsuits are in very early stages and seek unspecified compensatory damages, costs, and expenses. On Jan. 18, 2007, the Court consolidated all eight class action lawsuits and appointed: * Westchester Capital Management, Inc. as the lead Plaintiff, and * Abbey Spanier Rodd Abrams & Paradis LLP as lead plaintiff’s counsel. On April 26, 2007, the lead plaintiff and the Company entered into a stipulation extending the time in which the lead plaintiff must file a consolidated amended complaint, according to the company’s July 20, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2006. The suit is “In re IMAX Corp. Securities Litigation, Case No. 1:06-cv-06128- NRB,” filed in the U.S. District Court for the Southern District of New York under Judge Naomi Reice Buchwald. Representing the plaintiff is: Nancy Kaboolian, Esq. Abbey Spanier Rodd Abrams & Paradis, LLP 212 East 39th Street New York, NY 10016 Phone: (212) 889-3700 Fax: (212) 684-5191 E-mail: nkaboolian@abbeygardy.com KFC CORP: Faces Litigation in N.J. Alleging FACTA Violations ------------------------------------------------------------ KFC Corp., an operating segment of YUM! Brands, Inc., faces a purported class action in the U.S. District Court for the District of New Jersey, alleging violations under the new federal Fair and Accurate Credit Transaction Act. The suit, “Peraria v. KFC Corp., et al.,” was filed on July 11, 2007. It is a proposed class action and alleges that KFC failed to protect the private information of its customers under FACTA. The complaint alleges a violation of FACTA based on a transaction involving a franchised restaurant, according to the YUM! Brands’ July 20, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 16, 2007. The suit is “Peraria v. KFC Corp. et al., Case No. 1:07-cv-03190-RMB-AMD,” filed in the U.S. District Court for the District of New Jersey under Judge Renee Marie Bumb with referral to Judge Ann Marie Donio. Evan J. Smith, Esq. Brodsky & Smith, LLC 1040 Kings Highway, North Suite 601 Cherry Hill, NJ 08034 Phone: (856) 795-7250 E-mail: esmith@brodsky-smith.com LA ESPERANZA: Reaches $600T Settlement in Suit by Workers --------------------------------------------------------- La Esperanza Markets in California has reached a $610,000 settlement in a class action filed by workers alleging they were not paid for overtime work at the store, it emerged in a report by Claudia Melendez Salinas in Herald Salinas Bureau. San Francisco lawyer Mark Telamantes was contacted by The Watsonville Law Center after Guillermo Melendez and Jose Contreras Moreno, who worked at the Watsonville stores on Main Street, raised their complaint against their employer late in 2005 (Class Action Reporter, March 29, 2006). The suit was filed in January 2006 in Santa Cruz County Superior Court. The suit also alleged that owners of the chain of stores, Javier and Emilia Vazquez, rarely granted workers their 10-minute and 30-minute lunch breaks in violation of California labor laws. Mr. Telamantes said Mr. Melendez worked as a janitor, a butcher and a stocker at La Esperanza Markets from May 2000 to October 2003. Mr. Contreras worked in the same capacity from June 2003 to August 2004. Both claim they worked 10-hour days for six days a week, but were never paid for the overtime. Under the settlement, $396,000 will be divided among former workers according to a formula that considers weekly salaries and months worked between Jan. 9, 2002, and March 15, 2007. Mr. Melendez is getting $14,000 and Mr. Contreras $10,000. Judge Robert B. Atack approved a preliminary settlement in May. La Esperanza stores serve mostly Latino consumers in San Jose, Salinas, Santa Cruz and Watsonville. For more information, contact Watsonville Law Center at 722-2845. LONG JOHN: Seeks Transfer of Cal. Disability Discrimination Suit ---------------------------------------------------------------- Plaintiffs in a purported class action filed in Superior Court, Kings County, California against Long John Silver’s, Inc., an operating segment of YUM! Brands, Inc., is seeking for the removal of the matter to a federal court. On May 11, 2007, plaintiff John Whited filed the putative class action, styled, “John Whited, For Himself and On Behalf of All Others Similarly Situated v. Long John Silver’s, Inc. and Does 1 – 10.” The complaint alleges, among other things, that LJS has discriminated against the class of people who use wheelchairs or scooters for mobility by failing to make its 23 company-owned restaurants in California (LJS California Restaurants) accessible to the class. Plaintiff’s complaint is based upon the Plaintiff’s inspection of one of the LJS California Restaurants and contends that the restroom paper towel dispenser, customer service, sales, order and condiment counters do not comply with the Americans with Disabilities Act and certain provisions of the Copyright Designs and Patents Act. Plaintiff has requested unspecified injunctive relief and damages. On June 7, 2007, LJS filed to remove the case to the U.S. District Court for the Eastern District of California, according to the YUM! Brands’ July 20, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 16, 2007. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 34,000 units in more than 100 countries and territories. YUM consists of six operating segments: KFC, Pizza Hut, Taco Bell, Long John Silver's (LJS) and A&W All-American Food Restaurants (A&W), YUM Restaurants International (YRI or International Division) and YUM Restaurants China (China Division). MERRILL LYNCH: Research Reports Suit Settlement Hearing Set Nov. ---------------------------------------------------------------- The U.S. District Court for the Southern District of New York will hold a fairness hearing on November 5, 2007, at 10:00 a.m. for the proposed $15,000,000 settlement of the matter "In re Merrill Lynch & Co., Inc. Research Reports Securities Litigation, Case No. 02 MDL 1484 (JFK)." The settlement covers all persons or entities who purchased or otherwise acquired Merrill Lynch & Co., Inc. common stock during the period July 3, 1999 through and including April 8, 2002. Deadline to file for exclusion and objection is on October 1, 2007. Deadline to file claims is on October 30, 2007. The hearing will be at the courtroom of the Honorable John F. Keenan. Merrill Lynch & Co., Inc., was named in dozens of class actions since 2001 that challenged the objectivity of the Company's research recommendations related to securities of Internet companies (Class Action Reporter, March 8, 2006). Representing plaintiffs is: Merrill G. Davidoff, Esq. Lawrence J. Lederer, Esq. Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 Representing defendants are: Jay B. Kasner, Esq. Scott D. Musoff, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 - and - Marc B. Dorfman, Esq. Foley & Lardner LLP 3000 K Street, N.W., Suite 500 Washington, DC 20007 NISSIN FOODS: Recalls Shrimp-Flavored Noodles on Allergy Risk -------------------------------------------------------------- Nissin Foods (USA) Co., Inc. is voluntarily recalling selected shrimp- flavored noodle products as a safety precaution after it was discovered that the seafood-flavored powder used in these Nissin products also contains cod and lobster. Individuals who have an allergy or severe sensitivity to cod or lobster may run the risk of a serious or life-threatening allergic reaction if they consume these specific shrimp-flavored products. The recalled products were distributed throughout the United States through grocery stores and other food stores, under the names Nissin Original Chow Mein Shrimp and Nissin Cup Noodles Shrimp. Nissin Cup Noodles Shrimp was also sold through Wal-Mart stores under the label "Great Value Instant Shrimp" at Winn Dixie stores under the label "Thrifty Maid with Shrimp Oriental Noodles with Vegetables" and at Aldi grocery stores under the label "Jehling Ramen Noodle Soup Cup with Shrimp and Vegetables." "We have not received any report that any person has suffered any allergic reaction as a result of consuming these products," said Nissin Foods President, Tak Naruto. "We have taken this quick action, however, because Nissin’s top priority is now and has always been the safety and health of its customers." Customers who have purchased any of these recalled products and who have any concern about an allergic reaction should discard the product immediately. Customers will receive a refund and a supplemental coupon if they then send the UPC Code only directly to Nissin at 2001 W Rosecrans Ave, Gardena, CA 90249. For more information, customers are urged to call Nissin Foods at 1-866-548- 2945 or visit http://www.nissinfoods.com. OSEM: Faces $1.18M Suit Over Petah Tikva Warehouse Mismanagement ---------------------------------------------------------------- Osem, one of the largest food corporations in Israel, is facing a $1.18 million class-action complaint in the Tel Aviv District Court, Carmel Ben-Zur of the Haaretz Daily reports. The suit was filed by attorney Daniel Mor on behalf of Li Or, who spent $19 on Off Tov and Sabra Salads products, but had to throw them on fear she would endanger her family’s health. The suit claims that Osem's mismanagement of its Petah Tikva warehouse exposed its chilled and frozen products to dangerous bacteria, which multiply rapidly in heat and could affect the digestive system. The suit seeks full compensation for payments made by consumers to buy Tivall, Sabra Salads and Off Tov food products sold by the company. Ms. Or claims Osem failed to immediately inform the public that as a precautionary and hygienic measure, they should not use the products and should return them immediately to distribution centers to receive refunds. Ms. Ben-Zur was not able to reach Osem for comments. PALM INC: Seeks to Settle Cal. Consumer Suits Over Treo Products ---------------------------------------------------------------- Palm, Inc. is working to settle several purported consumer class actions filed in either the U.S. District Court for the Northern District of California or the Superior Court of California for Santa Clara County on behalf of all purchasers of Palm Treo 600 and Treo 650 products. In September and October 2005, these purported consumer class actions were filed against the company: -- "Moya v. Palm, Case No. 5:05-cv-03926-RMW," filed in the U.S. District Court for the Northern District of California; -- "Berliner v. Palm, Case No. 5:05-cv-03854-RMW," filed in the U.S. District Court for the Northern District of California; -- "Loew v. Palm, Case No. 5:05-cv-03980-RMW," filed in the U.S. District Court for the Northern District of California; -- "Geisen v. Palm, Case No. 5:05-cv-04120-RMW," filed in the U.S. District Court for the Northern District of California; and -- "Palza v. Palm," filed in the Superior Court of California for Santa Clara County. All four complaints allege in substance that the company made false or misleading statements regarding the reliability of its Treo 600 and 650 products in violation of various California laws and breached its warranty of these products. The complaints seek unspecified damages, restitution, disgorgement of profits and injunctive relief. In September 2005, a purported consumer class action entitled "Gans v. Palm, Case No. 5:05-cv-03774-RMW" was filed against the company in the U.S. District Court for the Northern District of California on behalf of all purchasers of the Treo 650 product. The complaint alleges that, in violation of various California laws, the company made false or misleading statements regarding automatic E-mail delivery to the Treo 650 product. The complaint seeks unspecified damages, restitution, disgorgement of profits and injunctive relief. The company removed the "Palza" case to the U.S. District Court for the Northern District of California. Subsequently, all six cases were related before a single judge in that court. Subsequently, all six cases were consolidated before a single judge in that Court and the plaintiffs provided a consolidated, amended complaint. The parties have agreed to a tentative settlement and are in the process of negotiating a full settlement agreement, according to the company’s July 19, 2007 Form 10-K Filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 1, 2007. Palm, Inc. -- http://www.palm.com/-- formerly palmOne, Inc. is a provider of mobile computing solutions. The Company offers Treo smartphones, as well as handheld computers, add-ons and accessories. It distributes these products through a network of wireless carriers and retail and business distributors worldwide. SCHERING-PLOUGH: N.J. Securities Lawsuit Granted Certification -------------------------------------------------------------- The U.S. District Court for the District of New Jersey granted certification to a consolidated securities class action filed against Schering-Plough Corp. Following the company's announcement that the U.S. Food and Drug Administration had been conducting inspections of the company's manufacturing facilities in New Jersey and Puerto Rico and had issued reports citing deficiencies concerning compliance with current Good Manufacturing Practices, several lawsuits were filed against the company and certain named officers. These lawsuits allege that the defendants violated the federal securities law by allegedly failing to disclose material information and making material misstatements. Specifically, they allege that the company failed to disclose an alleged serious risk that a new drug application for CLARINEX would be delayed as a result of these manufacturing issues, and they allege that the company failed to disclose the alleged depth and severity of its manufacturing issues (Class Action Reporter, March 22, 2007). These complaints were consolidated into one action in the U.S. District Court for the District of New Jersey, and a consolidated amended complaint was filed on Oct. 11, 2001, purporting to represent a class of shareholders who purchased shares of company stock from May 9, 2000 through Feb. 15, 2001. The complaint seeks compensatory damages on behalf of the class. The court certified the shareholder class on Oct. 10, 2003. Deadline to file for class exclusion is on October 15, 2007. The suit is "In re Schering-Plough Corp. Securities Litigation, Case No. 2:01cv829," filed in the U.S. District Court for the District of New Jersey under Judge Katharine S. Hayden with referral under Judge Mark Falk. Representing the plaintiffs are: Robert J. Berg Bernstein Liebhard & Lifshitz, LLP 2050 Center Avenue, Suite 200 Fort Lee, NJ 07024 Phone: (201) 592-3201 E-mail: berg@bernlieb.com Gary S. Graifman Kantrowitz, Goldhamer & Graifman, Esqs. 210 Summit Avenue Montvale, NJ 07645 Phone: (201) 391-7000 E-mail: ggraifman@kgglaw.com Andrew Robert Jacobs Epstein Fitzsimmons Brown Gioia Jacobs & Sprouls 245 Green Village Road P.O. Box 901 Chatham Township, NJ 07928-0901 Phone: (973) 593-4900 E-mail: ajacobs@epsteinfitz.com - and - Justin F. Johnson Lunga, Evers & Johnson, Esqs. 710 Route 46E, Suite 100 Fairfield, NJ 07004 Phone: (973) 227-4200 E-mail: jfj.lejlaw@attglobal.net Representing the defendant is: Douglas Scott Eakeley Lowenstein Sandler, PC 65 Livingston Avenue Roseland, NJ 07068-1791 Phone: (973) 597-2500 E-mail: deakeley@lowenstein.com STATE FARM: AG Hood Files New Suit After Settlement Breakdown ------------------------------------------------------------- Mississippi Attorney General Jim Hood announced in June a lawsuit filed against State Farm Fire and Casualty Co. to recover damages for the victims of Hurricane Katrina. The lawsuit alleges “a bad faith breach of contract on [State Farm] part for refusing to reconstruct a rejected January settlement between it and [Mr.] Hood's office,” according to John O'Brien of LegalNewsline.com. Mr. Hood was referring to a settlement of a suit he filed after Hurricane Katrina in 2005. He accuses the company of wrongfully representing the amount of water damage to some homes because flood damage, covered by the National Flood Insurance Program, is excluded from their policies. The parties reached an agreement in January that would have cost State Farm at least $500 million according to Mr. Hood’s estimate. But U.S. District Judge L.T. Senter rejected parts of the settlement because it will give State Farm control during an arbitration process. The part of the settlement that was accepted resulted to the settlement of 640 claims and $26 million to the group of trial lawyer Richard Scruggs. According to the report, State Farm has revisited claims as part of a deal reached with Insurance Commissioner George Dale. That deal, State Farm says, mirrors the one originally reached with Hood. The new suit was filed in the Circuit Court of Hinds County. A statement from the office of Mr. Hood about the suit states: “We filed this lawsuit in an effort to help the more than 30,000 Gulf Coast policyholders who have suffered for nearly two years because of State Farm’s inaction.” “The State Farm reevaluation procedure through the Department of Insurance has only resulted in a little more than 300 new offers. That does not comply with the terms we have with them in black and white. We have a state court order that they signed and then backed out on. If they will breach a clear agreement with a State, then this is further evidence that they have breached their own policy provisions with their insured on the Coast.” Attorney General Hood charges that State Farm has violated several specific terms of the settlement agreement, including their failure to make “an offer of settlement to the policyholder based upon criteria and guidelines approved by the United States District Court for the Southern District of Mississippi.” “We are at this point [] because State Farm has intentionally and in bad faith acted with disregard toward the rights of its policyholders,” Mr. Hood said. The complaint seeks compensatory and punitive damages from State Farm. TACO BELL: No Ruling Yet in ADA Suit Summary Judgment Request ------------------------------------------------------------- The U.S. District Court for the Northern District of California has yet to rule on Plaintiffs’ Motion for Partial Summary Judgment in the matter, “Moeller, et al. v. Taco Bell Corp.” On Dec. 17, 2002, Taco Bell Corp. was named as the defendant in a class action, "Moeller, et al. v. Taco Bell Corp.," filed in the U.S. District Court for the Northern District of California. On Aug. 4, 2003, plaintiffs filed an amended complaint that alleges, among other things, that the company discriminated against the class of people who use wheelchairs or scooters for mobility by failing to make its approximately 220 company-owned restaurants in California accessible to the class. Plaintiffs contend that queue rails and other architectural and structural elements of the Taco Bell restaurants relating to the path of travel and use of the facilities by persons with mobility-related disabilities -- including parking spaces, ramps, counters, restroom facilities and seating -- do not comply with the U.S. Americans with Disabilities Act, the Unruh Civil Rights Act, and the California Disabled Persons Act. Plaintiffs have requested: -- an injunction from the District Court ordering Taco Bell to comply with the ADA and its implementing regulations; -- that the District Court declare Taco Bell in violation of the ADA, the Unruh Act, and the CDPA; and -- monetary relief under the Unruh Act or CDPA. Plaintiffs, on behalf of the class, are seeking the minimum statutory damages per offense of either $4,000 under the Unruh Act or $1,000 under the CDPA for each aggrieved member of the class. They contend that there may be in excess of 100,000 individuals in the class. For themselves, the four named plaintiffs have claimed aggregate minimum statutory damages of no less than $16,000, but are expected to claim greater amounts based on the number of company outlets they visited at which they claim to have suffered discrimination. On Feb. 23, 2004, the district court granted plaintiffs' motion for class certification. The district court certified a Rule 23(b)(2) mandatory injunctive relief class of all individuals with disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after Dec. 17, 2001, were denied, or are currently being denied, on the basis of disability, the full and equal enjoyment of the California Restaurants. The class includes claims for injunctive relief and minimum statutory damages. Pursuant to the parties' agreement, on or about Aug. 31, 2004, the district court ordered that the trial of this action be bifurcated so that stage one will resolve plaintiffs' claims for equitable relief and stage two will resolve plaintiffs' claims for damages. Parties are currently proceeding with the equitable relief stage of this action. During this stage, the company filed a motion to partially decertify the class to exclude from the Rule 23(b)(2) class claims for monetary damages. The district court denied the motion. Plaintiffs filed their own motion for partial summary judgment as to liability relating to a subset of the California Restaurants. The district court denied that motion as well. Discovery is ongoing as of the date of this report. On May 17, 2007, a hearing was held on Plaintiffs’ Motion for Partial Summary Judgment seeking judicial declaration that Taco Bell was in violation of accessibility laws as to three specific issues: seating, queue rails and door opening pressure. The court has not yet issued a ruling on this motion, according to the YUM! Brands’ July 20, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 16, 2007. The suit is "Moeller, et al. v. Taco Bell Corp., Case No. 3:02-cv-05849," filed in the U.S. District Court for the Northern District of California under Judge Martin J. Jenkins. Representing the plaintiffs are: Timothy P. Fox, Esq. Fox & Robertson, P.C. 910-16th Street, Suite 610 Denver, CO 80202 Phone: 303-595-9700 Fax: 303-595-9705 E-mail: tfox@foxrob.com - and - Brad Seligman, Esq. The Impact Fund, 125 University Ave. Berkeley, CA 94710 Phone: 510-845-3473 ext. 304 Fax: 510-845-3654 E-mail: bs@impactfund.org Representing the defendant are: Gregory A. Eurich, Esq. Jimmy Goh, Esq. Holland & Hart, LLP 555 17th Street, Suite 3200 Denver, CO 80202 Phone: 303-295-8000 E-mail: geurich@hollandhart.com jgoh@hollandhart.com - and - Gregory F. Hurley, Esq. Greenberg Traurig, LLP 650 Town Center Drive, Suite 1700 Costa Mesa, CA 92626 Phone: 714-708-6564 Fax: 714 708-6501 E-mail: sautters@gtlaw.com TACO BELL: Faces FACTA Violations Complaint in Ill. Court ---------------------------------------------------------- Taco Bell Corp., a division of YUM! Brands, Inc., faces a purported class action in the U.S. District Court for the Northern District of Illinois, alleging violations under the new federal Fair and Accurate Credit Transaction Act. The suit, “Doran Phillips vs. Taco Bell Corp., et al.,” was filed on July 5, 2007. It was delivered to Taco Bell’s agent for service of process in Illinois. It is a proposed class action and alleges that Taco Bell failed to protect the private information of its customers under FACTA. The complaint alleges a violation of FACTA based on a transaction involving a licensed restaurant, according to the YUM! Brands’ July 20, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 16, 2007. The suit is “Phillips v. Taco Bell Corp. et al., Case No. 1:07-cv-03620,” filed in the U.S. District Court for Northern District of Illinois under Judge Mark Filip. Representing the plaintiffs is: Thomas A. Zimmerman, Jr., Esq. Zimmerman and Associates 100 West Monroe, Suite 1300 Chicago, IL 60603 Phone: (312) 440-0020 E-mail: tom@attorneyzim.com TACO BELL: Still Faces Consolidated RGM’s Litigation in Calif. -------------------------------------------------------------- Taco Bell Corp., a division of YUM! Brands, Inc., continues to face a consolidated class action in the California that was filed by a Taco Bell Restaurant General Manager (RGM). On Aug. 4, 2006, a putative class action lawsuit against Taco Bell Corp. styled, “Rajeev Chhibber vs. Taco Bell Corp.,” was filed in Orange County Superior Court. On Aug. 7, 2006, another putative class action lawsuit styled, “Marina Puchalski v. Taco Bell Corp.,” was filed in San Diego County Superior Court. Both lawsuits were filed by an RGM purporting to represent all current and former RGMs who worked at corporate-owned restaurants in California from August 2002 to the present. The lawsuits allege violations of California’s wage and hour laws involving unpaid overtime and meal and rest period violations and seek unspecified amounts in damages and penalties. As of Sept. 7, 2006, the plaintiff voluntarily dismissed the Orange County case and both cases have been consolidated in San Diego County, according to the YUM! Brands’ July 20, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarter ended June 16, 2007. YUM! Brands, Inc. -- http://www.yum.com/-- is a quick service restaurant (QSR) with over 34,000 units in more than 100 countries and territories. YUM consists of six operating segments: KFC, Pizza Hut, Taco Bell, Long John Silver's (LJS) and A&W All-American Food Restaurants (A&W), YUM Restaurants International (YRI or International Division) and YUM Restaurants China (China Division). WACHOVIA CORP: Faces $5M Labor Code Violations Suit in Cal. ----------------------------------------------------------- Wachovia Corp. is facing a class action filed July 12 in Los Angeles Federal Court. Plaintiff Larry Phillips alleges Labor Code violations and seeks $5 million in payments. The suit is “Larry Phillips v. Wachovia Corp. et al., Case No. 2:07-cv-04512- SVW-PJW,” filed in U.S. District Court for the Central District of California under Judge Stephen V. Wilson with referral to Judge Patrick J. Walsh. Representing the plaintiff are: Larry W. Gabriel, Esq. Jenkins Mulligan and Gabriel 78-065 Main Street, Suite 202 La Quinta, CA 92253 Phone: 760-777-1500 -- and -- Derek G Howard, Esq. Murray and Howard 436 14th Street, Suite 1413 Oakland, CA 94612 Phone: 510-444-2660 XTO ENERGY: Still Faces Suit Over Natural Gas Royalty Payments -------------------------------------------------------------- XTO Energy, Inc. remains a defendant in a purported class action filed on January 2006, in the District Court of Texas County, Oklahoma by royalty owners of natural gas wells in Oklahoma. Plaintiffs in the suit, “Beer, et al. v. XTO Energy Inc.,” allege that XTO Energy has not properly accounted to the plaintiffs for the royalties to which they are entitled and seek an accounting regarding the natural gas and other products produced from their wells and the prices paid for the natural gas and other products produced, and for payment of the monies allegedly owed since June 2002, with a certain limited number of plaintiffs claiming monies owed for additional time. A hearing on the class certification has not been scheduled. The plaintiffs have not alleged, in their petition, an amount they are seeking, according to Hugoton Royalty Trust's July 20, 2007 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2006. XTO Energy Inc. -- http://www.xtoenergy.com-- and its subsidiaries are engaged in the acquisition, development, exploitation and exploration of producing oil and gas properties, and in the production, processing, marketing and transportation of oil and natural gas. YOTRIO INTL: Recalls Reclining Lounge Chairs with Weak Support -------------------------------------------------------------- Yotrio International LLC, of Orinda, California, in cooperation with the U.S. Consumer Product Safety Commission, is recalling about 15,000 lounge chairs. The company said faulty support brackets and/or weak frames can cause the chairs to collapse, posing a fall and severe laceration hazard to consumers. Yotrio has received one report of a chair collapsing causing to the consumer to fall to the ground. No injuries have been reported. This recall involves Rockingham deluxe reclining lounge chairs. The folding lounge chairs have an orange mesh covering that attaches to a steel frame by a woven cord. The high-back chairs measure 40-inches long by 28-inches wide by 46-inches high and have a padded headrest. A hangtag attached to the chair reads in part “Backyard Creations” and “Deluxe Rockingham Reclining Chair.” These recalled reclining lounge chairs were manufactured in China and are being sold at Menards stores from March 2007 through May 2007 for between $40 and $60. Picture of the recalled reclining lounge chairs: http://www.cpsc.gov/cpscpub/prerel/prhtml07/07247.jpg Consumers are advised to stop using the recalled chairs immediately and return them to the store where purchased for a full refund. For additional information, contact Yotrio at (800) 793-7055 between 8 a.m. and 4:30 p.m. PT Monday through Friday. Consumers can also visit the firm’s Web site: http://www.yotrioint.com New Securities Fraud Cases CV TECHNOLOGIES: Faces $110M Securities Fraud Lawsuit in Canada --------------------------------------------------------------- The law firms of Siskinds LLP and Sutts Strosberg LLP have jointly filed, on July 20, 2007, a $110 million class action against CV Technologies Inc. under Ontario's new investor protection legislation, Part XXIII.1 of the Ontario Securities Act. The suit is seeking, among other things, leave to proceed with a suit under Ontario's investor protection legislation against CV Technologies, the manufacturers of Cold F/X., CV's chief executive, two members of its Board of Directors, and CV auditors, Grant Thornton LLP. The claim is on behalf of all persons who acquired CV securities between December 11, 2006 and March 23, 2007. The proposed class action arises out of CV's revenue-recognition practices. On December 11, 2006, CV released its management discussion and analysis in which it reported net sales of $46.9 million, an increase of 47% from the prior year, and net earnings of $4.1 million. Before the commencement of trading on March 26, 2007, CV announced that "while reported U.S. sales in the fourth quarter of 2006 and the first quarter of 2007 were $8.6 million, this primarily represented sales to retailers for stocking their shelves. The actual sell through to consumers has been disappointing and is estimated to be $1.5 - $2.5 million for the first six months of 2007." On April 11, 2007, CV announced that its consolidated financial statements for the year ended September 30, 2006, as well as its interim consolidated financial statements for the first quarter of fiscal 2007 required restatement due to a revenue deferral issue in the U.S. markets. Upon this news, CV's share price over the TSX fell sharply. On June 14, 2007, CV issued restated financial statements and reported substantially lower net sales and net earnings for fiscal 2006 and the first quarter if fiscal 2007. The notice of action alleges that the defendants negligently or recklessly overstated CV's revenues for fiscal 2006 and the first quarter of 2007 and thereby artificially inflated the trading price of CV securities. The plaintiffs claim $110 million in damages on behalf of the Class Members, including themselves. Dimitri Lascaris, a lawyer in Siskinds' class actions department, said "we are determined to ensure that the potential of Part XXIII.1 is fully realized, and that investors be afforded meaningful relief when they suffer losses due to inaccurate information. Our securities laws must have teeth if the investments of Canada's working families are to be protected." Jay Strosberg of Sutts Strosberg LLP added "it is alleged that the financial statements at issue were misleading. Investors and members of the public expect that a company's financial statements can be relied upon at all times. Our goal is to prosecute this class action and seek meaningful compensation for the class members." ColdFX class action on the net: http://www.coldfxclassaction.com/ For more information, contact: Dimitri Lascaris Siskinds LLP Phone: (519) 660-7844 - and - Jay Strosberg Sutts Strosberg LLP Phone: (519) 561-6285 SOUTHWESTERN RESOURCES: Faces $220M Suit Over China Gold Project ---------------------------------------------------------------- The law firms of Sutts Strosberg LLP and Siskinds LLP have jointly filed, on July 20, 2007, a $220 million class action seeking damages as a result of Southwestern Resources Corp.’s recent announcement that the integrity of certain of its drill core samples were compromised. On July 19, 2007, Southwestern issued a press release and disclosed that there were deficiencies in its control procedures for its Boka Gold Project. The company also disclosed that it believes there were errors in reported assay results announced in 2007 and that the integrity of drill core samples was compromised. Upon this news, Southwestern's share price fell sharply. The class action was brought on behalf of all persons who acquired shares of Southwestern in the period August 31, 2005 to July 18, 2007. The notice of action alleges that the defendants negligently or recklessly misrepresented the quantity of gold in its drill samples taken from the Boka Gold Project in China. Harvey T. Strosberg, Q.C., of the Sutts, Strosberg LLP law firm said, "Investors are entitled to assume that public companies will ensure that the integrity of drill core samples will not be compromised. Surely, public mining companies have learned something about quality control from the events which occurred 10 years ago!" Dimitri Lascaris, a lawyer in Siskinds' class actions department, added, "The resource sector is critically important to the Canadian economy. Investors must be able to have confidence in the information disseminated by companies operating in this sector." Southwestern class action on the net: http://www.southwesternclassaction.com/ For more information, contact: Harvey T. Strosberg, Q.C. Sutts Strosberg LLP Phone: (519) 561-6228 - and - Dimitri Lascaris Siskinds LLP Phone: (519) 660-784 ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *