/raid1/www/Hosts/bankrupt/CAR_Public/070820.mbx
C L A S S A C T I O N R E P O R T E R
Monday, August 20, 2007, Vol. 9, No. 163
Headlines
ALL-AMERICAN: Seeks to Dismiss Ken. Suit Over Modular Homes
ANDRX CORP: Discovery Continues in Fla. Securities Fraud Suit
AT&T INC: U.S. Lawyers Argue for Dismissal of Wiretapping Suits
AVAYA INC: Motion to Consolidate Suit Over Planned Merger Filed
AVAYA INC: "Ward" ERISA Suit Plaintiff Appeals Dismissal of Case
AVAYA INC: Dismissal of N.J. Securities Suit Still Under Appeal
AVAYA INC: 3rd Circuit Mulls Appeal on Dismissal of "Edgar"
BELLSOUTH CORP: $8M Settlement of Online Service Tax Suit Ok’d
CONEXANT SYSTEMS: Court Vacates Dismissal of “Graden” ERISA Case
CONEXANT SYSTEMS: Settlement of N.J. Securities Suit Now Final
CUTERA INC: Faces Securities Fraud Lawsuits in California
FEDEX EXPRESS: Cal. Court Approves $55M Settlement of “Satchell”
FEDEX GROUND: Denied Appeal in “Estrada”; Drivers Get $6M
JAMES RIVER: Faces Lawsuit in N.C. Over D. E. Shaw Merger Deal
L-3 COMMS: Stock Options Lawsuit Remanded to N.Y. State Court
MATTEL INC: Recalls Action Figure with Magnets that can Detach
MERCURY INSURANCE: 2008 Hearing Set in Claims Valuation Suit
NBTY INC: N.Y. Securities Fraud Suit Gets Initial Approval
NETFLIX INC: Calif. Court Dismisses Consolidated Antitrust Suit
NETFLIX INC: Settlement of Calif. Consumer Fraud Suit Appealed
PHI SERVICE: Parties Seek Summary Judgment in Del. ERISA Lawsuit
SOURCEFIRE INC: Faces Multiple Securities Fraud Lawsuits in Md.
TOSHIBA AMERICA: Recalls Notebook Batteries Posing Fire Hazard
WASHINGTON GROUP: La. Suits Over Levee Failure Remain Pending
New Securities Fraud Cases
AMERICAN HOME: Wolf Haldenstein Files Securities Fraud Lawsuit
COUNTRYWIDE FINANCIAL: Scott+Scott Files Securities Fraud Suit
IMPAC MORTGAGE: Gardy & Notis Files Securities Suit in Calif.
LIMELIGHT NETWORKS: Roy Jacobs Files Securities Fraud Lawsuit
HIMAX TECHNOLOGIES: Shepherd, Finkelman Files Securities Lawsuit
VALUECLICK INC: Lerach Coughlin Files Securities Suit in Cal.
*********
ALL-AMERICAN: Seeks to Dismiss Ken. Suit Over Modular Homes
-----------------------------------------------------------
The state of Kentucky and All-American Homes have argued in court documents
that a case filed by a modular home manufacturer should not be granted class-
action status, Beth Musgrave of (Lexington) Herald leader reports.
Montgomery County builder and developer Orvil Nelson Co. Inc. brought the
suit alleging, among others that:
-- the state failed to ensure that a third-party inspector,
T.R. Arnold, was actually inspecting modular homes for
All-American Homes and had certified Kentucky building
inspectors on staff;
-- All-American Homes failed to have its plans reviewed by
a Kentucky registered professional engineer, which is
required for all single-family homes; and
-- that All-American Homes have consistently used building
methods that do not comply with Kentucky building codes,
used deceptive business practices and violated the
Kentucky Consumer Protection Act.
T.R. Arnold is paid by the modular home dealer but must be approved by the
state.
Orvil Nelson discovered that the two homes it bought from All-Amerian have no
paperwork on file because the homes were not inspected according to Kentucky
building codes. The inspections stickers for the homes actually were for
Tennessee. The state said the homes were inspected according to Tennessee
standards because the homes were originally destined for Tennessee.
Also joining the lawsuit are Tom and Tina Dzurilla, who purchased an All-
American Home in 2004. They allege that the electrical wiring for the
computer and media system of the house was defective. All-American Homes
allegedly did not pay the Dzurillas for wiring repairs.
The suit was filed against:
* All American Homes of Tennessee,
* All American Homes of Indiana, LLC,
* All American Homes, LLC,
* Coachmen Industries, Inc.,
* T.R. Arnold & Associates, Inc.,
* Floyd Van Cook,
* Tim House,
* Kentucky Office of Housing, Buildings and Construction
The state has asked the case to be dismissed. It said Nelson's claims are
barred by the one-year statute of limitations and the state is protected from
lawsuits by sovereign immunity. The state has also moved the case to federal
court in Lexington.
Nelson's lawyer is Grant Stephens.
The case is docketed 5:2007cv00239 in the U.S. District Court for the Eastern
District of Kentucky.
ANDRX CORP: Discovery Continues in Fla. Securities Fraud Suit
-------------------------------------------------------------
Discovery is still ongoing in a purported securities fraud class action filed
against Andrx Corp., a subsidiary of Watson Pharmaceuticals, Inc.
On Oct. 11, 2005, Jerry Lowry filed a class action complaint on behalf of
purchasers of the Andrx's common stock during the class period March 9, 2005
through Sept. 5, 2005 against the company and its then chief executive
officer, Thomas Rice.
The complaint seeks damages under the U.S. Securities Exchange Act of 1934,
and alleges that during the class period, Andrx failed to disclose that its
manufacturing facilities were not in compliance with current Good
Manufacturing Practices.
The complaint further alleges that Andrx's failure to be cGMP compliant led
to the U.S. Food and Drug Administration placing Andrx on Official Action
Indicated status, which resulted in not being eligible for approvals of
Andrx's Abbreviated New Drug Applications.
On July 24, 2006, the defendants moved to dismiss the action. On Dec. 8,
2006, the court granted in part and denied in part the defendants’ motion to
dismiss.
On April 18, 2007, plaintiffs filed a motion seeking class certification.
Andrx has opposed the motion. Discovery is ongoing.
The company reported no new development in the matter in its Aug. 6, 2007
Form 10-Q Filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 29, 2007.
The suit is "Jerry Lowry, et al. v. Andrx Corp., et al., Case
No. 05-CV-61640," filed in the U.S. District Court for the
Southern District of Florida under Judge William P.
Dimitrouleas.
Representing the plaintiffs is:
Deborah R. Gross, Esq.
Bernard M. Gross
450 John Wanamaker Building, Juniper and Market Streets
Philadelphia, PA 19107
Phone: 215-561-3600
Fax: 215-561-3000
E-mail: debbie@bernardmgross.com
Representing the defendants is:
Louise McAlpin Brais, Esq.
Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Phone: 305-789-7715
Fax: 305-789-7799
E-mail: louise.brais@hklaw.com
AT&T INC: U.S. Lawyers Argue for Dismissal of Wiretapping Suits
---------------------------------------------------------------
The 9th U.S. Circuit Court of Appeals held a hearing on Aug. 15 on the
motions by the government to dismiss two lawsuits filed in relation to the
National Security Agency’s surveillance program.
The cases are "Hepting v. AT&T," and a suit filed by the Al-Haramain Islamic
Foundation that claims federal agents violated the law when they tapped into
phone calls between the charity and its outside attorneys.
In the hearing, Deputy U.S. Solicitor General Greg Garre said the government
will be forced to reveal sensitive "state secrets" if the two lawsuits are
allowed to proceed.
Reports say the court raised concerns about the government‘s seemingly
unchecked authority to eavesdrop on terrorist suspects with little judicial
oversight.
The appeals court did not immediately rule. Its ruling will apply to 50
remaining lawsuits, all of which are before U.S. District Court Judge Vaughn
Walker in San Francisco.
Case Background
Plaintiffs allege that AT&T Corp. and its holding company, AT&T
Inc., are collaborating with the National Security Agency in a massive
warrantless surveillance program that illegally tracks the domestic and
foreign communications and communication records of millions of Americans.
The first amended complaint, filed on Feb. 22, 2006, claims that
AT&T and AT&T Inc. have committed violations of:
-- the First and Fourth Amendments to the U.S. Constitution
(acting as agents or instruments of the government) by
illegally intercepting, disclosing, divulging and/or
using plaintiffs' communications;
-- Section 109 of Title I of the Foreign Intelligence
Surveillance Act of 1978, 50 USC SS 1809, by
engaging in illegal electronic surveillance of
plaintiffs' communications under color of law;
-- Section 802 of Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended by section 101
of Title I of the Electronic Communications Privacy Act
of 1986 (ECPA), 18 USC SS 2511(1)(a), (1)(c), (1)(d) and
(3)(a), by illegally intercepting, disclosing, using
and/or divulging plaintiffs' communications;
-- Section 705 of Title VII of the Communications Act of
1934, as amended, 47 USC S 605, by unauthorized
divulgence and/or publication of plaintiffs'
communications;
-- Section 201 of Title II of the ECPA (Stored
Communications Act), as amended, 18 USC SS 2702(a)(1)
and (a)(2), by illegally divulging the contents of
plaintiffs' communications;
-- Section 201 of the Stored Communications Act, as amended
by section 212 of Title II of the USA PATRIOT Act, 18
USC SS 2702(a)(3), by illegally divulging records
concerning plaintiffs' communications to a governmental
entity and (7) California's Unfair Competition Law, Cal
Bus & Prof Code SS 17200 et seq, by engaging in unfair,
unlawful and deceptive business practices.
The complaint seeks certification of a class action and redress through
statutory damages, punitive damages, restitution, disgorgement and injunctive
and declaratory relief.
Since the filing of this complaint, additional class actions have been filed
in various jurisdictions that allege substantially the same claims.
The lawsuits have been consolidated under the jurisdiction of a single court,
namely the U.S. District Court in the Northern District of California.
The suit is "In re National Security Agency Telecommunications
Records Litigation, MDL-1791" filed in the U.S. District Court for the
Northern District of California under Judge Vaughn R. Walker. Representing
the plaintiffs are:
Cindy Ann Cohn
Electronic Frontier Foundation
454 Shotwell Street, San Francisco, CA 94110
Phone: 415-436-9333 x 108
Fax: (415) 436-9993
E-mail: cindy@eff.org
-- and --
Jeff D. Friedman, Esq.
Lerach Coughlin Stoia Geller Rudman & Robbins, LLP
100 Pine Street, Suite 2600, San Francisco, CA 94111
Phone: 415-288-4545
Fax: 415-288-4534
E-mail: JFriedman@lerachlaw.com
Representing the defendants are:
Bruce A. Ericson, Esq.
Jacob R. Sorensen, Esq.
Pillsbury Winthrop Shaw Pittman, LLP
50 Fremont St., Post Office Box 7880
San Francisco, CA 94120-7880
Phone: (415) 983-1000
Fax: (415) 983-1200
E-mail: bruce.ericson@pillsburylaw.com
jake.sorensen@pillsburylaw.com
AVAYA INC: Motion to Consolidate Suit Over Planned Merger Filed
----------------------------------------------------------------
The Superior Court of New Jersey, Chancery and Law Divisions, Somerset County
has yet to rule on a plaintiff's motion that sought for the consolidation of
several lawsuits relating to the Merger Agreement with Silver Lake Partners,
L.L.P. and TPG Capital, L.P.
On June 4, 2007, Avaya entered into an Agreement and Plan of Merger with
Sierra Holdings Corp., a Delaware corporation (Parent), and Sierra Merger
Corp., a Delaware corporation and wholly owned subsidiary of Parent (Merger
Sub).
Under the terms of the Merger Agreement, Merger Sub will be merged with and
into Avaya Inc., with Avaya continuing as the surviving corporation and a
wholly owned subsidiary of Parent (Merger).
Parent was formed by two private equity funds, Silver Lake Partners III, L.P.
and TPG Partners V, L.P. (collectively, the Sponsors), solely for the purpose
of entering into the Merger Agreement and consummating the Merger.
The Merger Agreement provides for a purchase price of $17.50 per share of
Avaya common stock, or approximately $8.21 billion in the aggregate
(excluding fees and expenses in connection with the Merger of approximately
$0.28 billion).
In June and July 2007, seven purported class action complaints were filed
against Avaya Inc., members of the Board, certain officers of Avaya who are
members of the Board, and Silver Lake Partners, L.L.P. and TPG Capital, L.P.,
in the Superior Court of New Jersey, Chancery and Law Divisions, Somerset
County, related to the Merger Agreement with with Silver Lake Partners and
TPG Partners.
The complaints contain allegations substantially similar to one another and
allege that the purchase price of $17.50 per share of outstanding Avaya
common stock is inadequate and unfair consideration for the acquisition of
the Company.
The complaints also allege that defendants, including the Directors and/or
officers of Avaya, breached their fiduciary duties to shareholders in
entering into the Merger Agreement, including, but not limited to, their
duties of loyalty, good faith, and independence and engaged in self-dealing
and in conflicts of interests with respect to the proposed Merger.
Plaintiffs seek to have the court certify these cases as class actions,
enjoin the proposed Merger and award plaintiffs costs and expenses, including
attorneys’ fees.
Plaintiffs have also requested the court to consolidate the various actions
into one consolidated case, which defendants have not opposed.
The motion is pending, according to the company's Aug. 6, 2007 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2007.
Avaya, Inc. -- http://www.avaya.com-- provides communication systems,
applications and services for enterprises, including businesses, government
agencies and other organizations. Its product offerings include Internet
protocol (IP) telephony systems and voice communications systems, multi-media
contact center infrastructure and applications in support of customer
relationship management, unified communications applications and appliances,
such as IP telephone sets. It offers communications solutions, comprising
hardware, software and services, that enable enterprises to communicate with
their customers, suppliers, partners and employees through voice, Web,
electronic mail, facsimile, Web chat sessions and other forms of
communication, across a range of devices. These devices include telephones,
computers, cell phones and personal digital assistants. The Company operates
through two segments: Global Communications Solutions (GCS) and Avaya Global
Services (AGS). In November 2006, it acquired Traverse Networks.
AVAYA INC: "Ward" ERISA Suit Plaintiff Appeals Dismissal of Case
----------------------------------------------------------------
The plaintiff in the purported class action, "Ward v. Avaya, Inc. et al.,"
has appealed the dismissal of the case to the U.S. Court of Appeals for the
Third Circuit.
In April 2006, the purported class action was filed in the U.S. District
Court for the District of New Jersey, alleging that the Company, certain
employees and the Pension and Employee Benefits Investment Committee violated
the Employee Retirement Income Security Act of 1974, by including investment
options for the Lucent Technologies Inc. Stock Fund and the Avaya Inc. Stock
Fund for the period of October 2000 to April 2003 on the following plans:
-- the Avaya Inc. Savings Plan for Salaried Employees;
-- the Avaya Inc. Savings Plan, and
-- the Avaya Inc. Savings Plan for the Variable
Workforce.
The complaint asserts, among other things, that during the Class
Period defendants breached their fiduciary duties under ERISA by:
-- violating ERISA's provisions against prohibited
transactions;
-- offering the Lucent Fund and Avaya Fund imprudently as
investment options;
-- failing properly to monitor the funds; and,
-- failing properly to monitor the actions of other plan
fiduciaries, thus causing the Plans to suffer damages.
The complaint seeks monetary relief on behalf of the Plans and their
participants, and also seeks injunctive relief and costs, including
attorneys' fees.
Defendants have filed a motion to dismiss this case in its entirety and with
prejudice. In April 2007, the District Court issued an opinion dismissing
all but one portion of one count of the complaint, reasoning that the
circumstances surrounding the distribution of Avaya shares of common stock
prior to the spin off of Avaya from Lucent in October 2000 into the various
Avaya Plans could not be addressed in the procedural posture of a motion to
dismiss.
In July 2007, the District Court dismissed the remaining count of the
complaint with prejudice. The Plaintiff has appealed this case to the U.S.
Court of Appeals for the Third Circuit.
The suit is "WARD v. AVAYA, INC. et al., Case No. 3:06-cv-01721-
JAP-TJB," filed in the U.S. District Court for the District of
New Jersey under Judge Joel A. Pisano with referral to Judge
Tonianne J. Bongiovanni.
Representing the plaintiffs is:
Maureen Binetti
Wilentz, Goldman & Spitzer
90 Woodbridge Center Drive, P.O. Box 10
Woodbridge, NJ 07095
Phone: (732) 636-8000
E-mail: mbinetti@wilentz.com
Representing the defendants is:
Joseph A. Martin
Archer & Greiner, PC
One Centennial Square
Haddonfield, NJ 08033
Phon: (856) 795-2121
E-mail: jmartin@archerlaw.com
AVAYA INC: Dismissal of N.J. Securities Suit Still Under Appeal
---------------------------------------------------------------
The U.S. Court of Appeals for the 3rd Circuit has yet to rule on an appeal
regarding the dismissal of a consolidated securities class action filed
against Avaya Inc. and certain of its officers.
In April and May of 2005, purported class actions were filed in the U.S.
District Court for the District of New Jersey alleging violations of the
federal securities laws. The actions purport to be filed on behalf of
purchasers of the company's common stock from Oct. 5, 2004 to Apr. 19,
2005.
The complaints, which are substantially similar to one another, allege, among
other things, that the plaintiffs were injured by:
-- reason of certain allegedly false and misleading
statements made by the company relating to the cost of
the Tenovis Germany GmbH integration;
-- the disruption caused by changes in the delivery of the
company's products to the market and reductions in the
demand for the company products in the U.S., and
-- that based on the foregoing the company had no basis to
project the company's stated revenue goals for fiscal
2005.
Avaya signed an agreement to acquire Tenovis Germany on Oct. 5, 2004.
The company has been served with a number of these complaints. No class has
been certified in the actions. The complaints seek compensatory damages plus
interest and attorneys' fees.
In August 2005, the court entered an order identifying a lead plaintiff and
lead plaintiff's counsel. A consolidated amended complaint was filed in
October 2005.
Pursuant to a scheduling order issued by the District Court, defendants filed
their motion to dismiss the consolidated complaint in December 2005.
In September 2006, the District Court granted defendants' motion to dismiss
the case in its entirety and with prejudice, which was appealed by the
plaintiffs.
The appeal is currently pending with the U.S. Court of Appeals for the Third
Circuit, with the parties having completed their briefing submissions,
according to the company's Aug. 6, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended June 30,
2007.
The suit is "Charatz v. Avaya, Inc., et al., Case No. 3:05-cv- 02319-MLC-
TJB," filed in the U.S. District Court for the District of New Jersey under
Judge Mary L. Cooper with referral to Judge Tonianne J. Bongiovanni.
Representing the plaintiffs are:
Peter S. Pearlman, Esq.
Cohn, Lifland, Pearlman, Herrmann & Knopf, LLP
Park 80 Plaza West One
Saddle Brook, NJ 07663
Phone: (201) 845-9600
E-mail: PSP@njlawfirm.com
Andrew Robert Jacobs Esq.
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 -
James C. Shah, Esq.
Shepherd, Finkelman, Miller & Shah, LLC
475 White Horse Pike
Collingswood, NJ 08107-1909
Phone: (856) 858-1770
Fax: (856) 858-7012
E-mail: jshah@classactioncounsel.com
Representing the defendants are:
Robert T. Egan, Esq.
Joseph A. Martin, Esq.
Archer & Greiner, PC
One Centennial Square
Haddonffield, NJ 08033
Phone: (856) 795-2121
E-mail: regan@archerlaw.com
jmartin@archerlaw.com
AVAYA INC: 3rd Circuit Mulls Appeal on Dismissal of "Edgar"
-----------------------------------------------------------
The U.S. Court of Appeals for the 3rd Circuit has yet to rule on an appeal
regarding the dismissal of an amended complaint in a purported class
action "Edgar v. Avaya, Inc., et al.," according to the company's Aug. 6,
2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2007.
On July 2005, a purported class action was filed in the U.S. District Court
for the District of New Jersey against the company, alleging violations of
certain laws under the Employee Retirement Income Security Act of 1974.
On Oct. 17, 2005, an amended purported class action was filed against the
company and certain of its officers, employees and members of the board.
Like the initial complaint, the amended complain purports to be filed on
behalf of all participants and beneficiaries of the Avaya Inc. Savings Plan,
the Avaya Inc. Savings Plan for Salaried Employees and the Avaya Inc. Savings
Plan for the Variable Workforce from Oct. 5, 2004 to Jul. 20, 2005.
The complaint alleges, among other things, that the named defendants breached
their fiduciary duties owed to participants and beneficiaries of the Plans
and failed to act in the interests of the Plans' participants and
beneficiaries in offering Avaya common stock as an investment option,
purchasing Avaya common stock for the Plans and communicating information to
the Plans' participants and beneficiaries. No class has been certified in
the action.
The complaint seeks a monetary payment to the plans to make them whole for
the alleged breaches, costs and attorneys' fees. Pursuant to a scheduling
order entered by the district court, defendants filed their motion to dismiss
the amended complaint in December 2005.
In an order and opinion dated Apr. 24, 2006, the district court judge granted
the defendant's motion and dismissed the amended complaint in its entirety.
In May 2006, the plaintiffs filed a Notice of Appeal with the U.S. Court of
Appeals for the Third Circuit. The parties have completed their respective
briefing submissions and the court heard argument on the matter in April 2007.
The suit is "Edgar v. Avaya, Inc., et al., Case No. 3:05-cv-03598-SRC-JJH,"
filed in the U.S. District Court for the District of New Jersey under Judge
Stanley R. Chesler with referral to Judge John J. Hughes.
Representing the plaintiffs is:
Mark C. Rifkin, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue, New York, NY 10016
Phone: (212) 545-4600
E-mail: rifkin@whafh.com
Representing the defendants is:
Joseph A. Martin, Esq.
Archer & Greiner, PC
One Centennial Square
Haddonfield, NJ 08033
Phone: (856) 795-2121
E-mail: jmartin@archerlaw.com
BELLSOUTH CORP: $8M Settlement of Online Service Tax Suit Ok’d
---------------------------------------------------------------
U.S. District Judge John Heyburn II approved an $8.2 million settlement
reached among Bellsouth Corp., its high-speed Internet customers, and the
state of Kentucky over taxes on the company’s Fast Access Internet service.
The settlement covers 176,997 people and businesses who paid taxes on
BellSouth's Fast Access Internet service from 1999 through 2006, according to
Brett Barrouquere of Associated Press. They will receive the amount they
were billed as sales taxes plus interest from 1999 through 2006, minus
attorneys’ fees. The attorneys in the case will receive $1.25 million.
The 86,926 class members who are current BellSouth FastAccess customers or
have outstanding balances will receive repayment as a credit on their bill.
The remaining 90,071 who are former BellSouth customers will receive checks.
The suit was filed by Louisville resident Michael Clark and Kentucky Air Tool
Inc., a hand tool company in Louisville. The plaintiffs said BellSouth's
collection of the taxes was illegal.
BellSouth turned over the money it collected from subscribers to the Kentucky
Department of Revenue, who previously allowed the company to collect the tax,
but then reversed its position, saying the FastAccess service wasn't subject
to Kentucky's sales tax.
CONEXANT SYSTEMS: Court Vacates Dismissal of “Graden” ERISA Case
----------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit vacated an order dismissing a
purported class action that alleges Conexant Systems, Inc. violated the
Employee Retirement Income Security Act ERISA.
On February 2005, the company and certain of its current and former officers
and the company's Employee Benefits Plan Committee were named as defendants
in the lawsuit. It was filed on behalf of all persons who were participants
in the company's 401(k) Plan during a specified class period.
The suit alleges that the defendants breached their fiduciary duties under
ERISA, as amended, to the Plan and the participants in the Plan. The
defendants believe these charges are without merit and intend to vigorously
defend the litigation.
The plaintiff filed an amended complaint on Aug. 11, 2005. On Oct. 12, 2005,
the defendants filed a motion to dismiss this case.
The plaintiff responded to the motion to dismiss on Dec. 30,
2005, and the defendants' reply was filed on Feb. 17, 2006.
On March 31, 2006, the judge dismissed this case and ordered it closed.
Plaintiff filed a notice of appeal on April 17, 2006. The appellate argument
was held on April 19, 2007.
On July 31, 2007, the U.S. Court of Appeals for the Third Circuit vacated the
District Court’s order dismissing Graden’s complaint and remanded the case
for further proceedings.
The suit is "Graden v. Conexant Systems, Inc., et al., Case No.
3:05-cv-00695-SRC-TJB," filed in the U.S. District Court for the
District of New Jersey under Judge Stanley R. Chesler with
referral to Judge Tonianne J. Bongiovanni.
Representing the plaintiffs is:
Lisa J. Rodriguez, Esq.
Trujillo Rodriguez & Richards, LLP
8 Kings Highway
West Haddonfield, NJ 08033
Phone: (856) 795-9002
E-mail: lisa@trrlaw.com
Representing the defendants is:
Gregory B. Reilly, Esq.
Lowenstein Sandler, PC
65 Livingston Ave.
Roseland, NJ 07068-1791
Phone: (973) 597-2500
E-mail: greilly@lowenstein.com
CONEXANT SYSTEMS: Settlement of N.J. Securities Suit Now Final
---------------------------------------------------------------
Parties in a consolidated securities fraud lawsuit against
Conexant Systems, Inc. in the U.S. District Court for the District of New
Jersey have finalized a $90,000 settlement in the matter.
Between December 2004 and January 2005, the company and certain current and
former officers and directors were named as defendants in several class
actions seeking monetary damages filed on behalf of all persons who purchased
company common stock during a specified class period.
These suits were filed in the U.S. District Court of New Jersey and the U.S.
District Court for the Central District of California, alleging that the
defendants violated the U.S. Securities Exchange Act of 1934 by disseminating
materially false and misleading statements and/or concealing material adverse
facts.
The California cases have now been consolidated with the New Jersey cases so
that all of the class actions are being heard in the U.S. District Court of
New Jersey by the same judge.
On Sept. 1, 2005, the defendants filed their motion to dismiss the case. On
Nov. 23, 2005, the court granted the plaintiffs' motion to file a second
amended complaint, which was filed on Dec. 5, 2005.
The defendants filed an amended motion to dismiss the case on Feb. 6, 2006.
Plaintiffs filed their opposition on April 24, 2006, and defendants' reply
was filed on June 14, 2006.
On Dec. 4, 2006, the court dismissed the second amended complaint. Two of
the three claims were dismissed with prejudice, while the third claim was
dismissed without prejudice.
On Jan. 10, 2007, the parties filed a stipulation and tolling agreement with
the court stating that plaintiffs will not file an appeal of the ruling
dismissing two claims with prejudice.
Defendants agreed to give plaintiffs' counsel until March 16, 2007 to file an
amended complaint with respect to the third claim.
On April 9, 2007, the Company and the named plaintiff agreed to settle the
case as to all defendants for $90,000, to be paid by the company within 30
days of the execution of a written agreement.
The settlement is now complete and the case has been dismissed in its
entirety, according to the company's Aug. 6, 2007 Form 10-Q Filing with the
U.S. Securities and Exchange Commission for the quarterly period ended June
29, 2007.
The suit is "Witriol v. Conexant Systems, Inc., et al., Case No.
3:04-cv-06219-SRC-TJB," filed in the U.S. District Court for the
District of New Jersey under Judge Stanley R. Chesler with
referral to Judge Tonianne J. Bongiovanni.
Representing the plaintiffs are:
Peter S. Pearlman, Esq.
Cohn, Lifland, Pearlman, Herrmann & Knopf, LLP
Park 80 Plaza West One
Saddle Brook, NJ 07663
Phone: (201) 845-9600
E-mail: PSP@njlawfirm.com
- and -
Katrina Blumenkrants, Esq.
Joseph J. Depalma Esq.
Lite Depalma Greenberg & Rivas, LLC
Phone: (973) 623-3000
E-mail: kblumenkrants@ldgrlaw.com
jdepalma@ldgrlaw.com
Representing the defendants are:
Gregory B. Reilly, Esq.
Deborah A. Silodor, Esq.
Lowenstein Sandler, PC
65 Livingston Avenue
Roseland, NJ 07068-1791
Phone: (973) 597-2500 and (973) 597-2500
E-mail: greilly@lowenstein.com
dsilodor@lowenstein.com
CUTERA INC: Faces Securities Fraud Lawsuits in California
----------------------------------------------------------
Two securities class actions were filed against Cutera, Inc. and two of its
executive officers in April 2007 and May 2007, respectively, in the U.S.
District Court for the Northern District of California following declines in
the company's stock price.
The plaintiffs claim to represent purchasers of the company's common stock
from Jan. 31, 2007 through May 7, 2007.
The complaints generally allege that materially false statements and
omissions were made regarding the company's financial prospects, and seeks
unspecified monetary damages.
The first identified complaint is "Doug Hamilton, et al. v. Cutera, Inc., et
al., Case No. 07-CV-02128," filed in the U.S. District Court for the Northern
District of California under Judge Vaughn R. Walker
Plaintiff firms in this or similar case:
Labaton Sucharow & Rudoff LLP
100 Park Avenue, 12th Floor
New York, NY 10017
Phone: 212-907-0700
Fax: 212-818-0477
E-mail: info@labaton.com
Paskowitz & Associates
60 East 42nd Street, 46th Floor
New York, NY 10165
Phone: 212.685.0969
Fax: 212.685.2306
E-mail: classattorney@aol.com
- and -
Roy Jacobs & Associates
350 Fifth Avenue Suite 3000
New York, NY 10118
E-mail: classattorney@pipeline.com
FEDEX EXPRESS: Cal. Court Approves $55M Settlement of “Satchell”
----------------------------------------------------------------
FedEx Express, a subsidiary of FedEx Corp. (NYSE:FDX), received final
approval for the settlement of the case “Satchell, et al. vs. FedEx Express”
on Aug. 14. The parties had agreed to and filed a Preliminary Consent Decree
with the U.S. District Court in San Francisco on April 9, 2007.
“We are gratified that the Court granted final approval of the settlement
which draws this matter to a close and allows the company to move forward and
avoid the expense and uncertainty of protracted litigation,” said Larry
Brown, senior vice president and chief HR officer for FedEx Express.
In April, presiding judge Susan Illston commended the work of all parties
involved in reaching a settlement saying, “Let me say I know how hard you
have all worked on this, and I think you have done a really wonderful job of
bringing it as far as you have. I congratulate you for that.”
As part of the agreement FedEx Express will eliminate its Basic Skills Test
(BST). The BST was designed to ensure that customer-facing employees possess
the basic skills required for successful job performance, such as map
reading, listening, reading and sorting skills.
FedEx Express says it believes the BST is a lawful and valid selection tool.
Discontinuing the BST removes the perception by some that this test was a
barrier to advancement for minority employees.
The settlement includes a payment of approximately $55 million, paid by
insurance, which covers administrative costs associated with the settlement,
$15 million for the attorneys’ fees and costs of class counsel and
compensation for approximately 23,000 class members.
Case Background
The suit, “Satchell et al. v. FedEx Express,” was originally filed on June 6,
2003 in the U.S. District Court for the Northern District of California.
It was brought on behalf of:
-- Daniel Sherman;
-- Derrick Satchell;
-- Kalini Boykin;
-- Ken Stevenson;
-- Kevin Smith;
-- Rachel Hutchins;
-- Rick Gonzales;
-- Sophia Shainza Hanif; and
-- Valerie Brown.
In general, the suit alleges that the company discriminated against its
African-American and Hispanic workers by passing them over for promotion,
paying them less than white workers and treating them unfairly in evaluation
and disciplinary proceedings.
Representing the plaintiffs are:
Guy B. Wallace, Esq.
Schneider & Wallace
180 Montgomery Street, Suite 2000
San Francisco, Ca 94109
Phone: 415-421-7100
Fax: 415-421-7105
E-mail: gwallace@schneiderwallace.com
Michael S. Davis, Esq.
The Law Offices of Michael S. Davis
345 Hill Street
San Francisco, CA 94114
Phone: (415) 282-4315
Fax: (415) 358-5576
E-mail: msdlegal@comcast.net
Waukeen Q. Mccoy, Esq.
The Law Offices of Waukeen Q. McCoy
703 Market Street, Suite 1407
San Francisco, CA 94103
Phone: 415-675-7705
Fax: 415-675-2530
E-mail: mccoylawsf@yahoo.com
- and -
James M. Finberg, Esq.
Altshuler Berzon, LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Phone: 415-421-7151
Fax: 415-362-8064
E-mail: jfinberg@altshulerberzon.com
FEDEX GROUND: Denied Appeal in “Estrada”; Drivers Get $6M
----------------------------------------------------------
The California Court of Appeal upheld on August 13, the trial court's
decision finding FedEx Ground drivers to be employees and not independent
contractors, thus denying the appeal of FedEx in the landmark “Estrada vs.
FedEx Ground Package System, Inc.”
The appeals court also determined that the FedEx Ground drivers were entitled
to reimbursement for approximately $6 million in additional expenses,
bringing the total damages to about $11 million for 200 drivers.
In denying the appeal from the December 2005 decision, the Appeals Court
found that the California drivers are actually employees, and that "... the
work performed by the drivers is wholly integrated into FedEx's operation.
The drivers look like FedEx employees, act like FedEx employees, are paid
like FedEx employees, and receive many employee benefits." Citing the trial
court's decision, the appellate court noted, "The essence of the trial
court's statement of decision is that if it looks like a duck, walks like a
duck, swims like a duck, quacks like a duck, it is a duck."
The Court also commented that, "FedEx's control over every exquisite detail
of the drivers' performance, including the color of their socks and the style
of their hair, supports the trial court's conclusion that the drivers are
employees... "
"The Appeals Court ruling is another significant step in seeking justice for
every former, current and future FedEx Ground/Home Delivery driver," says
Lynn Rossman Faris, Esq., the lead trial lawyer in the original lawsuit
against FedEx alleging misclassification of the drivers as a way to shift the
burden for paying millions in overhead expenses -- including fuel, insurance
and uniforms -- from the company to the drivers, enabling FedEx Ground to
compete illegally.
"We intend to prove through the federal class-action suit what we've proven
in California: that all FedEx Ground and Home Delivery drivers have been
illegally misclassified to the detriment of the drivers, avoiding taxes every
other employer pays and giving a massive windfall to the company."
Plaintiffs Tony Estrada and Jeff Morgan were thrilled: "We always knew that
if we stood our ground and told the truth, justice would prevail for all of
our fellow drivers."
Ms. Faris noted, "FedEx has been telling Wall Street that it would win this
appeal. FedEx's attempt to spin this decision and other similar holdings
sound increasingly empty and desperate. As the court said, if it quacks like
a duck, it is a duck, not a contractor as the company has claimed. This is
the highest court to date to confirm what we have all known for a very long
time."
JAMES RIVER: Faces Lawsuit in N.C. Over D. E. Shaw Merger Deal
--------------------------------------------------------------
James River Group, Inc. faces a purported class action filed in connection
with the proposed merger entered into by the company with members of the D.
E. Shaw group on June 11, 2007.
Under the agreement, Franklin Holdings (Bermuda), Ltd., a Bermuda company
(Parent) and Franklin Acquisition Corp., a Delaware corporation and a wholly-
owned direct subsidiary of Parent (Merger Sub).
Under the terms of the Merger Agreement, Merger Sub will be merged with and
into the James River, and as a result, James River will continue as the
surviving corporation and a wholly-owned subsidiary of Parent (Merger).
Parent is a Bermuda-based holding company and member of the D. E. Shaw group,
a global investment management firm.
James River is permitted, under the terms of the Merger Agreement, to
continue to pay regular quarterly cash dividends until the consummation of
the Merger, such amount not to exceed $0.15 per share per quarter.
On June 13, 2007, Levy Investments filed a purported class action complaint
(the Levy complaint) in the Superior Court for Orange County, North Carolina
against James River, all of the directors of James River and the D. E. Shaw
group.
The Levy complaint alleges, among other things, that the company directors
breached their fiduciary duties to company stockholders in approving the
Merger Agreement and that the negotiation and structure of the proposed
Merger are the result of an unfair process.
The Levy complaint seeks, among other things, class certification and an
injunction preventing the completion of the Merger, and a declaration that
the directors breached their fiduciary duties.
James River Group, Inc. -- http://www.james-river-group.com--incorporated in
2002, is an insurance holding company that owns and manages specialty
property/casualty insurance companies with the objective of consistently
earning underwriting profits. The Company underwrites in two specialty
areas: excess and surplus lines in 48 states and the District of Columbia,
and workers' compensation primarily for the residential construction industry
in North Carolina. The Company's underwriters evaluate and price each policy
individually, and do not extend underwriting or claims handling authority to
third parties.
L-3 COMMS: Stock Options Lawsuit Remanded to N.Y. State Court
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York remanded a
purported class action filed against L-3 Communications Corp. in relation to
its stock options award practices.
On Nov. 20, 2006, Indiana Electrical Workers Pension Trust Fund IBEW filed a
class action complaint in the Supreme Court of New York, County of New York
against the company and certain current and former directors and officers.
The complaint alleges breach of fiduciary duty in connection with disclosures
concerning the company's stock options award practices.
It seeks monetary damages, rescission of the 2004 amendment to the 1999 Long
Term Performance Plan, equitable relief, and that fees and expenses be
awarded.
The company and other defendants filed a notice of removal of the action to
the U.S. District Court for the Southern District of New York on Jan. 9, and
a motion to dismiss pursuant to the Securities Litigation Uniform Standards
Act on Jan. 11, 2007.
On Feb. 8, 2007, the plaintiff filed a motion to remand the action to New
York State court. On July 24, 2007, the Court denied the Company’s motion
and remanded the action to state court.
The suit is "Indiana Electrical Workers Pension Trust Fund IBEW v. Millard et
al., Case No. 1:07-cv-00172-JGK," filed in the U.S. District Court for the
Southern District of New York under Judge John G. Koeltl.
Representing the plaintiffs is:
Stuart M. Grant, Esq.
Grant & Eisenhofer, PA
Chase Manhattan Centre, 1201 North Market Street
Wilmington, DE 19801
Phone: (302) 622-7000
Fax: (302) 622-7100
E-mail: sgrant@gelaw.com
Representing the defendants is:
Peter Eric Kazanoff, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Phone: 2124552000
Fax: 2124552502
E-mail: pkazanoff@stblaw.com
MATTEL INC: Recalls Action Figure with Magnets that can Detach
--------------------------------------------------------------
Mattel Inc., of El Segundo, California, in cooperation with the U.S. Consumer
Product Safety Commission, is recalling about 345,000 Batman and One Piece
magnetic action figure sets.
The company said small, powerful magnets inside the accessories of the toy
figures can fall out and be swallowed or aspirated by young children. If more
than one magnet is swallowed, they can attract inside the body and cause
intestinal perforation, infection or blockage which can be fatal.
The firm is aware of 21 incidents where a magnet fell out of the toy figure,
including a case of a 3-year-old boy who was found with a magnet in his
mouth. The boy did not swallow the magnet and no injuries have been reported
to Mattel and CPSC.
The recalled Batman toys include:
-- The Batman Magna Battle Armor Batman figure with model
number J1944
-- The Batman Magna Fight Wing Batman figure with model
number J1946
-- The Batman Secret ID figure with model number J5114, and
-- The Batman Flying Fox figure with model number J5115.
The seven inch tall action figures include the Batman logo on the front and
include magnetic accessories. The model number is located on the lower right
corner of the tag which is sewn to the figure.
The recalled One Piece toy is:
-- One Piece Triple Slash Zolo Roronoa figure with model
number J4142.
The 5 ˝ inch tall action figure has green hair, black pants, and has magnets
in his hands which connect to magnets on various swords that the figure can
hold. The model number is printed on the back of the action figure’s left leg.
These recalled magnetic action figure sets were manufactured in China and are
being sold at discount department stores and toy stores nationwide from June
2006 through June 2007 for about $11.
Pictures of recalled magnetic action figure sets:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07269a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07269b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07269c.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07269d.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07269e.jpg
Consumers are advised to immediately stop using the toy and contact Mattel
for instructions on how to return it to receive a free replacement toy.
For additional information, contact Mattel toll-free (888) 597-6597 anytime
or visit the firm’s Web site: http://www.service.mattel.com
MERCURY INSURANCE: 2008 Hearing Set in Claims Valuation Suit
------------------------------------------------------------
A March 28, 2008 hearing is set for a class action questioning Mercury
Insurance Co.’s use of certain automated database vendors to assist in
valuing claims for medical payments.
The suit, "Marissa Goodman, et al. v. Mercury Insurance Co." was filed in the
Los Angeles Superior Court on June 16, 2002. The plaintiff filed a motion
seeking class-action certification to include all of the company's insureds
from 1998 to the present who presented a medical payments claim, had the
claim reduced using the computer program and whose claim did not reach the
policy limits for medical payments.
On Jan. 11, 2007, the court certified the requested class and scheduled a
case management conference to discuss notifying class members. The plaintiff
alleges that these automated databases systematically undervalue medical
payment claims to the detriment of insureds. The plaintiff is seeking
unspecified actual and punitive damages.
Similar lawsuits have been filed against other insurance carriers in the
industry. The case has been coordinated with two other similar cases, and
also with 10 other cases relating to total loss claims. The court denied the
company's Motion for Summary Judgment holding that there is an issue of fact
as to whether Ms. Goodman sustained any damages as a result of the company's
handling of her medical payments claim.
The trial against Mercury has been scheduled for March 28, 2008, according to
the company's Aug. 6, 2007 Form 10-Q Filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2007.
Mercury General Corp., -- http://www.mercuryinsurance.com-- and its
subsidiaries are engaged primarily in writing automobile insurance
principally in California. During the year ended December 31, 2006, private
passenger automobile insurance and commercial automobile insurance accounted
for 83.9% and 4.6%, respectively, of the Company's total direct premiums
written.
NBTY INC: N.Y. Securities Fraud Suit Gets Initial Approval
----------------------------------------------------------
A consolidated securities class action filed against NBTY, Inc., and certain
of its officers and directors in the U.S. District Court for the Eastern
District of New York is on the final stage of being approved.
From June 24, 2004 through Sept. 3, 2004, six separate shareholder class
actions were filed against the company and certain of its officers and
directors on behalf of shareholders who purchased shares of the company's
common stock between Feb. 9, 2004 and July 22, 2004.
The actions allege that the company failed to disclose material facts during
the class period that resulted in a decline in the price of the company's
stock after June 16, 2004 and July 22, 2004, respectively.
The court consolidated the six class actions in March 2005, and appointed
lead plaintiffs and lead counsel for the plaintiffs. Newly appointed lead
plaintiffs filed a consolidated complaint alleging a class period from Nov.
10, 2003 to July 22, 2004.
Along with the officers and directors, we filed a motion to dismiss the
action. The motion was denied on May 1, 2006.
The parties entered into extensive document discovery, during which the Court
certified the class to consist of shareholders who purchased shares of the
company's common stock during the period from November 10, 2003 to July 22,
2004.
Following a mediation session on Feb. 15, 2007, the parties agreed to a
proposed settlement of the class action claims.
Under the terms of the proposed settlement, all the class action claims will
be dismissed with prejudice and a full release will be given to the Company
and its officers and directors, including all defendants named in the
consolidated actions.
The total amount to be paid to the Class in settlement of the claims will be
paid entirely by the NBTY directors' and officers' liability insurers.
In the settlement, NBTY and the individual defendants deny any violation of
law, and have agreed to the settlement to eliminate the uncertainties,
distractions and expense of further litigation. The settlement is subject to
review and approval by the Court.
On April 17, 2007, the lead plaintiff filed with the Court the proposed
settlement, as well as an application for its preliminary approval, for
notice to the Class, and for a settlement hearing.
The Court granted preliminary approval to the settlement on May 2, 2007,
directed that notice be given by mail and publication to the Class, and
scheduled a settlement hearing for August 2007.
The suit is "In Re: NBTY, Inc. Securities Litigation, case no.
04-CV-2619," filed in the U.S. District Court for the EasternDistrict of New
York under Judge Leonard D. Wexler.
Representing the plaintiffs are:
Paskowitz & Associates
Phone: 800.705.9529
E-mail: classattorney@aol.com
- and -
Roy Jacobs & Associates
350 Fifth Avenue, Suite 3000
New York, NY, 10118
E-mail: classattorney@pipeline.com
Representing the company are:
Charles W. Stotter, Esq.
Robert Novack, Esq.
Edwards & Angell, LLP
750 Lexington Avenue
New York, NY 10022-1200
Phone: 212-308-4411
Fax: 212-308-4844
E-mail: Cstotter@edwardsangell.com or
Rnovack@ealaw.com
NETFLIX INC: Calif. Court Dismisses Consolidated Antitrust Suit
---------------------------------------------------------------
The U.S. District Court for the Northern District of California dismissed a
suit alleging antitrust and unfair competition law violations by Netflix
Inc., but allowed plaintiffs to file an amended complaint.
A customer, Dennis Dilbeck, filed the lawsuit on Jan. 31, 2007. It alleges
that the company violated antitrust and unfair competition laws in seeking to
enforce two of its patents against Blockbuster, Inc. and other potential
competitors, which patents were allegedly obtained by deceiving the U.S.
Patent and Trademark Office.
It also alleges that the company's subscribers have paid artificially
inflated subscription prices because potential competitors were allegedly
deterred from entering the online DVD rental market by the company's patents.
The complaint purports to be on behalf of existing and past subscribers who
allegedly would have paid lower subscription rates but for the alleged
anticompetitive conduct. It seeks injunctive relief, restitution and damages
in an unspecified amount.
Subsequently, two other consumer class actions were filed in the U.S.
District Court for the Northern District of California. The suits are:
-- "Melanie Polk-Stamps and Babacar Diene v. Netflix, Inc.,
Civil Case C 07-01266," and
-- "Steven Dassa v. Netflix, Inc., Civil Case C 07 1978 RS"
Each of the suit alleged the same causes of actions and made the same request
for damages as those set forth in the Dilbeck case.
On March 17, 2007, the court entered an order consolidating all of the class
actions. Netflix subsequently filed a motion to dismiss the consolidated
case.
On June 14, 2007, the court entered an order granting Netflix’s motion to
dismiss but allowing plaintiffs leave to file an amended complaint, according
to the company's Aug. 6, 2007 Form 10-Q Filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2007.
The suit is "Dilbeck v. Netflix, Inc., Case No. 3:07-cv-00643-WHA," filed in
the U.S. District Court for the Northern District of California under Judge
William H. Alsup.
Representing the plaintiffs is:
Alan Himmelfarb Esq.
The Law Offices of Himmelfarb & Himmelfarb
2757 Leonis Blvd.
Vernon, CA 90058
Phone: 323-585-8696
Fax: 323-8585-8198
E-mail: Consumerlaw1@earthlink.net
Representing the defendants is:
Keith E. Eggleton, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Phone: 650-493-9300
Fax: 650-565-5100
E-mail: keggleton@wsgr.com
NETFLIX INC: Settlement of Calif. Consumer Fraud Suit Appealed
--------------------------------------------------------------
The final judgment approving a settlement of the case "Frank Chavez v.
Netflix, Inc., et al., Case No. CGC-04-434884," has been appealed to the
California Court of Appeals, First Appellate District.
On Sept. 23, 2004, Frank Chavez, individually and on behalf of others
similarly situated, filed the class action against the company in the
California Superior Court for City and County of San Francisco.
The Company entered into an amended settlement under which Netflix
subscribers who were enrolled in a paid membership before Jan. 15, 2005 and
were a member on Oct. 19, 2005 are eligible to receive a free one-month
upgrade in service level and Netflix subscribers who were enrolled in a paid
membership before Jan. 15, 2005 and were not a member on Oct. 19, 2005 are
eligible to receive a free one-month Netflix membership of either the 1, 2 or
3 DVDs at-a-time unlimited program.
The Court issued final judgment on the settlement on July 28, 2006, awarding
plaintiffs’ attorneys’ fees and expenses of $2.1 million.
The final judgment has been appealed to the California Court of Appeals,
First Appellate District. The Appellate Court has not set a hearing date,
according to the company's Aug. 6, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended June 29,
2007.
The suit is "Frank Chavez v. Netflix, Inc., A Foreign Corp. et al., Case No.
CGC-04-434884."
Representing the plaintiffs is:
Adam Gutride Law Offices
835 Douglass Street
San Francisco, CA 94114
Phone: (415) 271-6469
Representing the company is:
Keith Eggleton, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Phone: (650) 493-9300
Fort more details, visit http://www.netflix.com/settlementor
http://netflixsettlementsucks.com/.
PHI SERVICE: Parties Seek Summary Judgment in Del. ERISA Lawsuit
----------------------------------------------------------------
Parties in a purported class action against PHI Service Co., subsidiary of
Pepco Holdings, Inc., have filed their respective motions for summary
judgment in the matter, which is pending in the U.S. District Court for the
District of Delaware.
The purported class action was filed by management employees of PHI alleging
violations of Employee Retirement Income Security Act (ERISA).
In 1999, Conectiv, which the company later acquired, established a cash
balance retirement plan to replace defined benefit retirement plans then
maintained by Atlantic City Electric Co. and Delmarva Power & Light Co.
Following the acquisition by Pepco of Conectiv, this plan became
the Conectiv Cash Balance Sub-Plan within the PHI Retirement
Plan.
On Sept. 26, 2005, three management employees of PHI Service Co. filed suit
in the U.S. District Court for the District of Delaware against the PHI
Retirement Plan, PHI and Conectiv (PHI Parties), alleging violations of
ERISA, on behalf of a class of management employees who did not have enough
age and service when the Cash Balance Sub-Plan was implemented in 1999 to
assure that their accrued benefits would be calculated pursuant to the terms
of the predecessor plans sponsored by Atlantic City Electric and Delmarva
Power.
A fourth plaintiff was added to the case to represent DPL
heritage "grandfathered" employees who will not be eligible for early
retirement at the end of the grandfathered period.
Plaintiffs have challenged the design of the Cash Balance Sub-Plan and are
seeking a declaratory judgment that the Cash Balance Sub-Plan is invalid and
that the accrued benefits of each member of the class should be calculated
pursuant to the terms of the predecessor plans.
Specifically, the complaint alleges that the use of a variable rate to
compute the plaintiffs' accrued benefit under the Cash Balance Sub-Plan
results in reductions in the accrued benefits that violate ERISA.
The complaint also alleges that the benefit accrual rates and the minimal
accrual requirements of the Cash Balance Sub-Plan violate ERISA as did the
notice that was given to plan participants upon implementation of the Cash
Balance Sub-Plan.
The PHI Parties filed a motion to dismiss the suit, which was denied by the
court in July 2006. The Delaware District Court stayed one count of the
complaint regarding alleged age discrimination pending a decision in another
case before the U.S. Court of Appeals for the Third Circuit (the Third
Circuit).
In January 2007, the Third Circuit issued a ruling in the other case that PHI
believes should result in the favorable disposition of all of the claims
(other than the claim of inadequate notice) against the PHI Parties in the
Delaware District Court. The PHI Parties filed pleadings apprising the
Delaware District Court of the Third Circuit's decision in February 2007.
In March 2007, the plaintiffs filed pleadings apprising the Delaware District
Court that the Third Circuit had denied a request for a rehearing in the
other case.
Also in January 2007, the plaintiffs filed a Motion for Class Certification
and the PHI Parties filed their opposition in February 2007.
In May 2007, the PHI Parties filed a motion for summary judgment at the close
of discovery. Plaintiffs filed their opposition and cross-motion for summary
judgment on June 19, 2007, according to the company's Aug. 6, 2007 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2007.
Pepco Holdings, Inc. -- http://www.pepcoholdings.com/-- is a diversified
energy company that, through its operating subsidiaries, is engaged primarily
in two principal business operations: electricity and natural gas delivery,
and competitive energy generation, marketing and supply. PHI Service Co., a
subsidiary service company of PHI, provides a variety of support services,
including legal, accounting, treasury, tax, purchasing and information
technology services to PHI and its operating subsidiaries. These services
are provided pursuant to a service agreement among PHI, PHI Service Company,
and the participating operating subsidiaries.
SOURCEFIRE INC: Faces Multiple Securities Fraud Lawsuits in Md.
---------------------------------------------------------------
Sourcefire, Inc. is a defendant in several purported securities fraud class
actions pending in the U.S. District Court for the District of Maryland,
according to the company's Aug. 3, 2007 Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarterly period ended June 30,
2007.
On May 8, 2007, a putative class action lawsuit was filed in the U.S.
District Court for the District of Maryland, against the Company and certain
of the Company’s officers and directors, captioned, “Howard Katz v.
Sourcefire, Inc., et al., Case No. 1:07-cv-01210-WMN.”
Since then, two other putative class action lawsuits were filed in the U.S.
District Court of Maryland against the Company and certain of the Company’s
officers and directors and other parties making similar allegations,
captioned:
-- “Mark Reaves v. Sourcefire, Inc. et al, Case No. 1:07-
cv-01351-JFM,” and
-- “Joan Raveill v. Sourcefire, Inc. et al, Case No.
1:07-cv-01425-WMN.”
In addition, a fourth putative class action was filed in the U.S. District
Court for the Southern District of New York against the Company and certain
of the Company’s officers and directors and other parties making similar
allegations, captioned, “Barry Pincus v. Sourcefire, Inc., et al., Case No.
1:07-cv-04720-RJH.”
Pursuant to a stipulation of the parties, in an order entered on or about
June 29, 2007 by the U.S. District Court of the Southern District of New
York, the court ordered that the Pincus case should be transferred to the
U.S. District Court for the District of Maryland.
These actions claim to be filed on behalf of all persons or entities who
purchased the Company’s common stock pursuant to the registration statement
and prospectus issued in connection with the Company’s initial public
offering.
These lawsuits allege violations of Section 11, Section 12 and Section 15 of
the Securities Act of 1933, as amended, in connection with allegedly material
misleading statements and/or omissions contained in the registration
statement and prospectus.
The plaintiffs seek, among other things, a determination of class action
status, compensatory and rescission damages, a rescission of the initial
public offering, as well as fees and costs on behalf of a putative class.
The Company has reached stipulations with all plaintiffs’ counsel to extend
the time to answer, move or otherwise respond to the complaints until after
the appointment of a lead plaintiff and approval of lead plaintiff’s counsel
pursuant to 15 U.S.C. Section 78u-4(a)(3)(B) and the filing of a consolidated
amended complaint.
On July 13, 2007, Sandra Amrhein filed a motion to consolidate the four
cases, to appoint her lead plaintiff and to approve her choice of lead and
liaison counsel. The Court has not entered orders consolidating these cases,
appointing lead plaintiff or approving lead plaintiff’s counsel. The
plaintiffs have not filed a consolidated amended complaint.
The Court has not made a determination of whether a putative class can be
certified. At this time, plaintiffs have not specified the amount of damages
they are seeking in these actions.
Sourcefire, Inc. -- http://www.sourcefire.com/-- is a provider of
intelligence driven, open source network security solutions that enable its
customers to protect their computer networks in an automated manner. The
Company applies the Sourcefire 3D security solution (Discover, Determine and
Defend) to network security through its family of products, which consists of
its Real-time Network Awareness (RNA), Intrusion Sensors and the Defense
Center products.
The Company also manages an open source intrusion detection technology,
Snort. RNA is the Company’s network intelligence product that provides
visibility into the composition, behavior, topology (the relationship of
network components) and risk profile of the network. The Intrusion Sensors
utilize open source Snort and the Company’s technology to monitor network
traffic. The Defense Center aggregates, correlates and prioritizes network
security events from RNA Sensors and Intrusion Sensors to synthesize
multipoint event correlation and policy compliance analysis.
TOSHIBA AMERICA: Recalls Notebook Batteries Posing Fire Hazard
---------------------------------------------------------------
Toshiba America Information Systems Inc., of Irvine, California, in
cooperation with the U.S. Consumer Product Safety Commission, is recalling
about 1,400 rechargeable lithium-ion batteries containing Sony cells used in
Toshiba notebook computers.
The company said the lithium-ion batteries can overheat, posing a fire hazard
to consumers. Toshiba has received three reports outside of the United States
of notebook batteries overheating. No injuries have been reported.
The recalled lithium-ion batteries were sold with, or sold separately to be
used with the following notebook computer models: Satellite A100, Satellite
A105 and Tecra A7. The battery model is printed on the battery.
These recalled rechargeable lithium-ion batteries containing Sony cells were
manufactured by Sony Energy Devices Corp., in China and are being sold
through authorized electronics retailers nationwide from January 2006 through
April 2006 for between $680 and $1,300 for the computer systems and for
between $90 and $120 when sold separately.
Pictures of the recalled rechargeable lithium-ion batteries containing Sony
cells:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07267a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07267b.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07267c.jpg
Consumers are advised to stop using the recalled batteries and contact
Toshiba to receive a free replacement battery. Consumers can continue to use
the notebook computers safely, by turning the system off, removing the
battery, and using the AC adapter and power cord to power the system until
the replacement battery is received. Consumers should use only batteries
obtained from Toshiba or from an authorized Toshiba reseller.
For additional information, contact Toshiba at (800) 457-7777 anytime or
visit the firm's Web site: http://www.bxinfo.toshiba.com
WASHINGTON GROUP: La. Suits Over Levee Failure Remain Pending
-------------------------------------------------------------
Washington Group International, Inc. continues to face class actions related
to the New Orleans levee failure during Hurricane Katrina, according to the
company's Aug. 6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 29, 2007.
From July 1999 through May 2005, the company performed demolition, site
preparation, and environmental remediation services for the U.S. Army Corps
of Engineers (USACOE) on the east bank of the Inner Harbor Navigation Canal
(Industrial Canal) in New Orleans, Louisiana (Task Order 26). All the work
performed by the Company and its subcontractors was directed, supervised and
approved by the USACOE.
On Aug. 29, 2005, Hurricane Katrina devastated New Orleans. The storm surge
created by the hurricane overtopped the Industrial Canal levee and floodwall,
flooding the Lower Ninth Ward and other parts of the city.
Between Sept. 19, 2005 and June 29, 2007, 30 personal injury and property
damage class action lawsuits have been filed in Louisiana State and Federal
court naming the company, of which 29 are currently pending.
Other defendants include the U.S. Army Corps of Engineers, the Board for the
Orleans Parish Levee District, and its insurer, St. Paul Fire and Marine
Insurance Company.
Over 170 hurricane-related cases, including Washington Group International
cases, have been consolidated in the Federal District Court for the Eastern
District of Louisiana.
The plaintiffs claim that defendants were negligent in their design,
construction and/or maintenance of the New Orleans levees.
The purported class of plaintiffs comprises of all residents and property
owners who incurred damages arising out of the breach and failure of the
hurricane protection levees and floodwalls in the wake of Hurricane Katrina.
The allegation against the company is that the work it performed adjacent to
the Industrial Canal damaged the levee and floodwall and caused and/or
contributed to breaches and flooding.
The plaintiffs allege damages of $200 billion and demand attorneys’ fees and
costs.
Washington Group International, Inc. -- http://www.wgint.com
-- is an international provider of a range of design, engineering,
construction, construction management, facilities and operations management,
environmental remediation and mining services. The Company offers its
various services separately or as part of an integrated package throughout
the life cycle of a customer's project. Washington Group International
operates its business through six business units: Power, Infrastructure,
Mining, Industrial/Process, Defense, and Energy and Environment.
New Securities Fraud Cases
AMERICAN HOME: Wolf Haldenstein Files Securities Fraud Lawsuit
--------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP filed a class action in the U.S.
District Court, Eastern District of New York, on behalf of all persons who
acquired the common stock of American Home Mortgage Investment Corp.
(OTC:AHMIQ.PK) between April 19, 2005 and July 27, 2007, inclusive.
The suit was filed against certain of its officers and directors. It alleges
violations under Section 10 of the Securities Exchange Act of 1934, 15 U.S.C.
ss.78j(b) and the rules and regulations promulgated thereunder by the SEC,
including Rule 10b-5, 17 C.F.R. ss.240.10b-5.
The Complaint alleges that throughout the Class Period, defendants issued
numerous, positive press releases, statements and financial reports filed
with the SEC that described the Company's financial performance.
The Complaint alleges that throughout the Class Period, defendants issued
numerous, positive financial statements, annual and quarterly financial
reports filed with the SEC that described the Company's financial
performance, press releases, and other public statements. These public
statements were materially false and misleading because they misrepresented
and failed to disclose the following adverse facts, among others, that:
(a) the Company was experiencing an increasing number of
loan delinquencies;
(b) the Company failed to take adequate reserves against
known or knowable future losses, including losses as a
result loan delinquencies;
(c) the Company failed to write down on its financial
statements the value of certain loans that had
substantially declined, thereby increasing the
Company's overall exposure to loss;
(d) as a result of the increased delinquencies, it was
becoming increasingly more difficult for the Company to
sell its loans absent sharp price discounts, thus
reducing profit margins and profit;
(e) even at reduced prices, the Company was unable sell
many of its loans and was forced to hold them, thereby
increasing its exposure; and
(f) as a result of the foregoing, the Company reported
overstated financial results and concealed from the
investing public, including plaintiff and other members
of the Class, the true nature and extent of the
undisclosed credit risk facing the Company.
The complaint further alleges that as a result of defendants' false
statements, AHM's stock traded at artificially inflated price during the
Class Period, reaching a high of $39.84 per share on August 2, 2005. However,
on July 31, 2007, when the Company issued a press release announcing its true
financial condition and its inability to fund its lending obligations, the
Company's stock price plummeted to an all time low of per share to $1.04 per
share.
As a result of the dissemination of the false and misleading statements set
forth in the complaint, the market price of AHM common stock was artificially
inflated during the Class Period.
In ignorance of the false and misleading nature of the statements described
above, and the deceptive and manipulative devices and contrivances employed
by said defendants, plaintiffs and the other members of the Class relied, to
their detriment, on the integrity of the market price of AHM common stock.
Had plaintiffs and the other members of the Class known the truth, they would
not have purchased said common stock, or would not have purchased them at the
inflated prices that were paid.
Interested parties may move the court no later than October 1, 2007 for lead
plaintiff appointment.
For more information, contact:
Mark C. Rifkin, Esq.
Gregory M. Nespole, Esq.
Martin E. Restituyo, Esq.
Derek Behnke
Wolf Haldenstein Adler Freeman & Herz LLP
Phone: 800-575-0735
E-mail: classmember@whafh.com
E-mail: http://www.whafh.com
COUNTRYWIDE FINANCIAL: Scott+Scott Files Securities Fraud Suit
--------------------------------------------------------------
Scott+Scott, LLP announces a class action against Countrywide Financial Corp.
and certain officers and directors on behalf of Countrywide Financial common
stock purchasers during the period October 24, 2006, through August 9, 2007,
inclusive.
The class action complaint alleges that defendants made false and misleading
statements and material omissions regarding the Company's business and
operations and that, as a result, the price of the Company's securities was
inflated during the Class Period, thereby harming investors.
Even after Federal regulators announced a 0.5% cut in the discount rate it
charges banks, concerns as to Countrywide Financial's financial stability
persist. The Los Angles Times reported that Countrywide Financial loans in
foreclosure reached a five-year high during the month of July.
According to the Associated Press, foreclosure pressures on companies like
Countrywide are likely to increase, given that monthly payments on as much as
$600 billion of subprime mortgages will sharply rise on expected loan-resets,
triggering a further increase in foreclosures.
Interested parties may move the court no later than October 15, 2007 for lead
plaintiff appointment.
For more information, contact:
Scott+Scott, LLP
Phone: (800) 404-7770 or (860) 537-5537
E-mail: scottlaw@scott-scott.com
IMPAC MORTGAGE: Gardy & Notis Files Securities Suit in Calif.
-------------------------------------------------------------
Gardy & Notis, LLP filed a class action in the U.S. District Court for the
Central District of California on behalf of Impac Mortgage Holdings, Inc.
securities during a class period of May 10, 2006 to August 15, 2007.
The complaint charges Impac and its top executive officers with violating the
federal securities laws by issuing a series of materially false and
misleading press releases and filings with the SEC concerning Impac's
financial results and business prospects.
Impac's representations concerning its Alt-A loans are alleged to be patently
untrue, with the Alt-A loans actually being sold to less creditworthy
borrowers, so that the loan portfolio was experiencing the same risks and
discounts in securitization as sub-prime mortgages. At the same time, Impac
overstated its financial results by failing to write down the value of its
loan portfolio, thus falsely inflating the prices investors paid for Impac
securities.
Interested parties may move the court no later than October 16, 2007 for lead
plaintiff appointment.
For more information, contact:
Mark C. Gardy, Esq.
Dustin P. Mansoor, Esq.
Gardy & Notis, LLP
440 Sylvan Avenue, Suite 110
Englewood Cliffs, New Jersey 07632
Phone: 201-567-7377
Fax: 201-567-7337
E-mail: mgardy@gardylaw.com or dmansoor@gardylaw.com
Website: http://www.gardylaw.com
LIMELIGHT NETWORKS: Roy Jacobs Files Securities Fraud Lawsuit
-------------------------------------------------------------
Roy Jacobs & Associates has commenced a class action in the U.S. District
Court for the Southern District of New York on behalf of a class of all
persons who purchased or acquired securities of Limelight Networks, Inc.
between June 8, 2007 and August 8, 2007.
The Complaint alleges that defendants, including the Company's top executives
and the co-lead underwriters of its IPO, negligently violated the federal
securities laws by issuing a Prospectus in connection with its June 8, 2007
initial public offering ("IPO") which was materially misleading regarding
adverse business events that were affecting the Company, including:
(a) that revenues were suffering due to greater reliance on
television-related sales, which are seasonal; and
(b) that Limelight Networks was being forced to resort to
deep discounting its services in order to attract and
maintain customers for its premier services because of
those customers' resistance to paying adequate prices,
a development that has impacted the Company's June 30,
2007 quarter, and which will continue to adversely
impact the Company going forward.
When the truth about these matters was revealed, Limelight Networks shares
dropped substantially.
Interested parties may move the court no later than October 12, 2007 for lead
plaintiff appointment.
For more information, contact:
Roy L. Jacobs, Esq.
Roy Jacobs & Associates
Phone: 800-705-9529
E-mail: rjacobs@jacobsclasslaw.com
HIMAX TECHNOLOGIES: Shepherd, Finkelman Files Securities Lawsuit
----------------------------------------------------------------
The law firm of Shepherd, Finkelman, Miller & Shah, LLC announced that a
lawsuit seeking class-action status was filed in the U.S. District Court for
the Central District of California on behalf of all persons who purchased the
securities of Himax Technologies, Inc. pursuant to the Company's March 30,
2006 Initial Public Offering.
The Complaint names Max Chan, the Company's Chief Financial Officer, as a
defendant. It alleges that, during the Class Period, Defendant violated
Sections 11, 12(a)(2) and 15 of the Securities Act of 1934, and also breached
his fiduciary duties.
Specifically, the Complaint alleges that the Defendant made certain false
and/or misleading statements in the Prospectus issued in connection with the
Company's IPO.
Furthermore, the Complaint alleges that the Prospectus failed to disclose
that Himax's primary operations faced an imminent reduction in customer
demand due to unusually high inventory levels being experienced by the
Company's customers.
Interested parties may move the court no later than October 3, 2007 for lead
plaintiff appointment.
For more information, contact:
James E. Miller, Esquire
Nathan C. Zipperian, Esquire
Shepherd, Finkelman, Miller & Shah, LLC
Phone: 866-540-5505 or 877-891-9880
E-mail: jmiller@sfmslaw.com or nzipperian@sfmslaw.com
Website: http://www.sfmslaw.com
VALUECLICK INC: Lerach Coughlin Files Securities Suit in Cal.
-------------------------------------------------------------
Lerach Coughlin Stoia Geller Rudman & Robbins LLP announces that a class
action has been commenced in the United States District Court for the Central
District of California on behalf of purchasers of ValueClick, Inc. common
stock during the period between November 1, 2006 and July 27, 2007.
The complaint charges ValueClick and certain of its officers and directors
with violations of the Securities Exchange Act of 1934. ValueClick describes
itself as "one of the world's largest integrated online marketing companies,
offering comprehensive and scalable solutions to deliver cost-effective
customer acquisition for advertisers and transparent revenue streams for
publishers."
The complaint alleges that during the Class Period, defendants issued false
and misleading statements concerning ValueClick's sales growth, record
reported revenues and earnings, strong business fundamentals, and upward
earnings guidance. As a result of these false and misleading statements,
ValueClick's stock rose precipitously, reaching a Class Period high of over
$35 per share by May 2007.
Meanwhile, defendants concealed from investors that ValueClick's stellar
financial performance was due in large part to illegal practices, which when
halted (voluntarily or through a regulatory enforcement action) would
adversely impact ValueClick's lead-generation business, the Company's
revenues and its profits.
On May 18, 2007, the Company announced that it was the target of an
investigation by the FTC into potential FTC Act or CAN-SPAM Act violations.
Yet defendants maintained that ValueClick was in full compliance with the law
and that the FTC investigation would not negatively impact the Company's
forward financial performance. Nonetheless, according to the complaint, the
Company's promotional lead-generation business dropped off dramatically
during May and June of 2007, significantly impacting the Company's ability to
achieve its inflated financial targets.
Then, on July 30, 2007, the Company reported second quarter 2007 earnings
which fell short of defendants' forecasts. The Company also lowered its
forward financial guidance for the year. On this news, ValueClick's stock
plummeted over $6 per share, falling below $20 per share in intraday trading,
or 42% from its Class Period high, on very high volume.
Plaintiff seeks to recover damages on behalf of all purchasers of ValueClick
common stock during the Class Period.
For more information, contact:
Darren Robbins
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800/449-4900 or 619/231-1058
E-mail: wsl@lerachlaw.com
Website: http://www.lerachlaw.com
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent researches,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Grace Durana, Editors.
Copyright 2007. All rights reserved. ISSN 1525-2272.
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