/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/070911.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 11, 2007, Vol. 9, No. 180 Headlines 21ST CENTURY: Expects Fla. Securities Suits to be Consolidated 99c ONLY: Vargas Plaintiff Opposes Cal. Labor Lawsuit Settlement ALLEGHENY ENERGY: Deadline to Serve Toxic-Tort Lawsuit Expires ALLEGHENY ENERGY: Miss. Court Considers Dismissal Bid in “Comer” ALLEGHENY ENERGY: Md. Court Approves $4M ERISA Suit Settlement ALLIANCE IMAGING: Calif. Court Orders Dismissal of Labor Lawsuit ALLIED CAPITAL: Amended Complaint Served in D.C. Securities Suit AMERICAN ELECTRIC: 6th Circuit Reinstates Ohio ERISA Lawsuit AT&T CORP: Mo. Landowners File Lawsuit Over Property Rights BODEE LLC: Recalls Potentially Harmful Dietary Supplements CALIFORNIA: Suit Against LAPD Over May 1 Demonstration Builds up CIRCUIT CITY: High Court Sets Aside Class Arbitration Waiver DEL MONTE: Circuit Court Rules on Coverage of Insurance Policy DJO INC: Calif. Suit Challenges Merger with ReAble Affiliate ECOLOGY AUTO: Faces Calif. Lawsuit Over Labor Code Violations GLAXOSMITHKLINE PLC: Suit Over Paxil Settlement Objection Junked HARRY SINGH: Paying $2.5M to Settle Lawsuit Over Back Wages ILLINOIS: Civil Rights Groups’ Suit Seeks Home Care for Disabled L.A. WEIGHT: Dismissal Motion in Discrimination Suit Rejected METZ FRESH: Recalls Bagged Spinach Over Salmonella Contamination MIVA INC: Settlement Talks in Ark. Click Fraud Suit Ongoing MIVA INC: Fla. Court Wants Further Briefing in Securities Suit MIVA INC: Click Fraud Suit by Payday Advance Continues in N.Y. MIVA INC: Still Faces Calif. Lawsuit Over Online Gambling Ads PAYDAY LENDERS: Five Firms Sued for "Unconscionable Loans" PROGRESSIVE CASUALTY: Sued Over Municipal Taxes Collection Fees RAMBUS INC: Agrees to Settle Calif. Securities Suit for $18M SPRINT NEXTEL: $57M Settlement of Age Bias Suit Gets Final OK VERIZON WIRELESS: Settles Suit Over Cellphone Call Tax for $30M New Securities Fraud Cases NORTHWEST BIOTHERAPEUTICS: Bernard Gross Files Securities Suit ********* 21ST CENTURY: Expects Fla. Securities Suits to be Consolidated -------------------------------------------------------------- 21st Century Holding Co. is expecting that two purported securities fraud class actions filed against it will be consolidated in the U.S. District Court for the Southern District of Florida. On July 27, 2007 and Aug. 7, 2007, two securities class actions were filed against the Company and certain of its executive officers in the U.S. District Court for the Southern District of Florida on behalf of all persons and entities who purchased the Company's securities between Oct. 3, 2007 through May 3, 2007. While the specific factual allegations vary slightly in each case, the complaints allege that the defendants made false and misleading statements and failed to accurately project the Company's business and financial performance during the putative class period. The complaints seeks an unspecified amount of damages and claim violations of Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5. The Company expects that these two actions will be consolidated into one case in the U.S. District Court for the Southern District of Florida. 21st Century Holding Co. -- http://www.21stcenturyholding.com/-- is an insurance holding company, which, through its subsidiaries and its contractual relationships with its independent agents and general agents, controls substantially all aspects of the insurance underwriting, distribution and claims process. 99c ONLY: Vargas Plaintiff Opposes Cal. Labor Lawsuit Settlement ---------------------------------------------------------------- Plaintiff in one of two purported labor-related class actions filed against 99c Only Stores is opposing a settlement agreement reached in the matter, according to the company's Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The two suits are: -- "Vargas v. 99c Only Stores," filed in the Ventura County Superior Court in California, and -- "Washington v. 99c Only Stores,” which was filed in the Los Angeles County Superior Court in California. “Vargas” was filed on June 19, 2006. Joanna Vargas filed the suit was as a putative class action against the company and is seeking to represent its California retail non-exempt employees. The lawsuit alleges non-payment of wages, non-payment of overtime wages, failure to provide or pay for meal or rest breaks, and associated claims. It seeks compensatory, special and punitive damages in unspecified amounts, as well as injunctive relief. "Washington" was filed on Oct. 31, 2006. The plaintiff, Chantelle Washington, filed the putative class action against the company seeking to represent its California retail non-exempt cashier employees. The lawsuit alleges the failure to provide or pay for meal or rest breaks and associated claims. It seeks compensatory damages and/or penalties in unspecified amounts, as well as equitable relief, attorney fees and interest. The Vargas and Washington actions have now been coordinated in Ventura County Superior Court. Following mediation in March 2007, counsel for Plaintiff Vargas and a Company representative executed a settlement agreement, which anticipated a more thorough (but not inconsistent) settlement agreement and was conditioned upon Court approval. In April 2007, the California Supreme Court issued a ruling concerning the pertinent statute of limitations for meal and rest period claims. Although a ruling on this issue was anticipated by all parties, counsel for Plaintiff Vargas informed counsel for the Company that they would now oppose Court approval of settlement that they themselves had previously agreed upon. Following such statement by counsel for Plaintiff Vargas, the Company reached a class action settlement agreement with Plaintiff Washington, which is subject to Court approval. The settlement, which the Company and Washington have jointly presented to the Court for preliminary approval, provides for a maximum settlement payment of $3.2 million. If the Court approves the Washington settlement, in addition to settling the claims in the Washington action, that settlement would (in large part or in full) moot the claims in the Vargas action. Based on the initial settlement negotiations with Plaintiff Vargas and her counsel, the Company had reserved $1.5 million for potential liability in these cases. Because the Washington settlement is also claims-made in nature but provides less for attorney fees than the Vargas agreement, the Company has determined that this prior reserve continues to be adequate, pending the Court’s decision on the Washington settlement. On Aug. 6, 2007, Plaintiff Vargas filed an opposition to the Washington settlement, which may result in the Court rejecting the Washington settlement. If the Court rejects the Washington settlement, the parties will likely return to the litigation of both lawsuits, and, in such event, the Company cannot predict the outcome of these matters, and cannot predict whether or not the outcome will have a material adverse effect on the Company’s financial condition or results of operations. 99 Cents Only Stores -- http://www.99only.com/-- is a deep-discount retailer of consumable general merchandise. ALLEGHENY ENERGY: Deadline to Serve Toxic-Tort Lawsuit Expires -------------------------------------------------------------- Allegheny Energy Supply Co., LLC (AE Supply) reported that it has not been served with a purported toxic-tort class action –- filed in the Ontario Superior Court of Justice -- until the time for service of the original action has expired. On June 30, 2005, the company along with its regulated subsidiary Monongahela Power Co. and its unregulated subsidiary Allegheny Generating Co., plus 18 other companies with coal- fired generating plants, was named as defendants in the suit. The suit was brought on behalf of all persons residing in Ontario within the past six years (and/or their family members or heirs). Plaintiffs allege that the defendants negligently failed to prevent their generation facilities from emitting air pollutants in such a manner as to cause death and multiple adverse health effects, as well as economic damages, to the plaintiff class. They are seeking damages in the approximate amount of CAD$49.1 billion (approximately $41.6 billion, assuming an exchange rate of CAD$1.18 per U.S. dollar), along with continuing damages in the amount of CAD$4.1 billion per year and punitive damages of CAD$1.0 billion (approximately $3.5 billion and $850 million, respectively, assuming an exchange rate of CAD$1.18 per U.S. dollar) along with such other relief as the Court deems just. Allegheny Energy, Inc., the parent of AE Supply, Monongahela and AGC reported at its Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007 that it has not yet been served with this lawsuit, and the time for service of the original action has expired. Allegheny Energy, Inc. -- http://www.alleghenyenergy.com-- is a diversified utility holding company that operates primarily through directly and indirectly owned subsidiaries. The Company is an integrated energy business that owns and operates electric generation facilities and delivers electric services to customers in Pennsylvania, West Virginia, Maryland and Virginia. Allegheny has two business segments: the Delivery and Services segment, which includes its electric transmission and distribution (T&D) operations, and the Generation and Marketing segment, which includes its power generation operations. ALLEGHENY ENERGY: Miss. Court Considers Dismissal Bid in “Comer” ---------------------------------------------------------------- The U.S. District Court for the Southern District of Mississippi has yet to rule on motions seeking for the dismissal of a purported class action filed against Allegheny Energy, Inc., and numerous other companies with coal-fired generation facilities. The suit was filed on April 19, 2006 on behalf of a purported class of residents and property owners in Mississippi who were harmed by Hurricane Katrina. The named plaintiffs allege that the emission of greenhouse gases by defendants contributed to global warming, thereby causing Hurricane Katrina and plaintiffs' damages. The plaintiffs seek unspecified damages. On Dec. 6, 2006, the company filed a motion to dismiss plaintiffs' complaint on jurisdictional grounds and joined a motion filed by other defendants to dismiss the complaint for failure to state a claim. A hearing was scheduled for Aug. 30, 2007 on the motion to dismiss that Allegheny Energy joined. No hearing has been set on the other motion, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Comer, et al. v. Nationwide Mutual Insurance Co., Case No. 1:05- cv-00436-LTS-RHW," filed in the U.S. District Court for the Southern District of Mississippi under Judge L. T. Senter, Jr. with referral to Judge Robert H. Walker. Representing the plaintiffs are: F. Gerald Maples, Esq. Meredith A. Mayberry, Esq. F. Gerald Maples, PA 902 Julia Street New Orleans, LA 70113 Phone: 504/569-8732 E-mail: federal@geraldmaples.com mmayberry@geraldmaples.com - and - Randall Allan Smith, Esq. Stephen M. Wiles, Esq. Smith & Fawer 201 St. Charles Ave., Suite 3702 New Orleans, LA 70170 Phone: 504/525-2200 Fax: 504/525-2205 E-mail: rasmith3@bellsouth.net smwiles@smithfawer.com ALLEGHENY ENERGY: Md. Court Approves $4M ERISA Suit Settlement -------------------------------------------------------------- The U.S. District Court for the District of Maryland granted final approval to a settlement of a suit alleging Employee Retirement Income Security Act violations by Allegheny Energy Inc. In February and March 2003, two putative class actions were filed against Allegheny Energy in U.S. District Courts in New York and Maryland alleging that the company violated ERISA by breaching fiduciary duties with respect to the Allegheny Energy Stock Ownership and Savings Plan. The cases were subsequently consolidated in the U.S. District Court for the District of Maryland. On Feb. 13, 2007 the district court entered an order preliminarily approving the settlement. The District Court gave final approval to the settlement on June 25, 2007. Under the settlement, the consolidated ERISA class actions were dismissed with prejudice against all defendants in exchange for a cash payment of $4 million, of which approximately $3.9 million was made by AE’s insurance carrier. The suit is "Keesecker v. Allegheny Energy, Inc. et al., Case No. 1:03-cv-00843-AMD," filed in the U.S. District Court for the District of Maryland under Judge Andre M. Davis. Representing the plaintiffs is: Thomas J. Hart, Esq. Slevin and Hart PC 1625 Massachusetts Ave., NW Ste. 450 Washington, DC 20036 Phone: 12027978700 Fax: 12022348231 E-mail: tjh@slevinhart.com Representing the company are: Christa D. Haas, Esq. Groom Law Group Chtd. 1701 Pennsylvania Ave., NW Washington, DC 20006 Phone: 12028570620 Fax: 12024594503 E-mail: cdh@groom.com Gabrielle S. Moses, Esq. Venable Baetjer and Howard LLP Two Hopkins Plz., Ste. 1800 Baltimore, MD 21201 Phone: 14102447400 Fax: 14102447742 E-mail: gsmoses@venable.com - and - Bradley P. Smith, Esq. William J. Snipes, Esq. Sullivan and Cromwell, LLP 125 Broad St. New York, NY 10004-2498 Phone: 12125581660 Fax: 12125583588 E-mail: smithbr@sullcrom.com snipesw@sullcrom.com ALLIANCE IMAGING: Calif. Court Orders Dismissal of Labor Lawsuit ---------------------------------------------------------------- The Alameda County Superior Court ordered the dismissal of a settled class action against Alliance Imaging, Inc. over allegations that the company violated labor laws in its dealings with approximately 400 former and current California employees. On May 5, 2005, the company was served with a class action complaint. On Aug. 19, 2005, the plaintiffs filed an amended complaint, which the company answered on Sept. 23, 2005. In this suit, "Linda S. Jones, et al. v. Alliance Imaging, Inc., et al.," the plaintiffs allege violations of California's wage, meal period, and break time laws and regulations. Plaintiffs sought recovery of unspecified economic damages, statutory penalties, attorneys' fees, and costs of suit. On or about March 10, 2006, plaintiffs filed a second amended complaint adding a cause of action for conversion and a plea for punitive damages. The company filed a demurrer and motion to strike seeking to dismiss the new claim and plea. On July 19, 2006, the company and the plaintiffs entered into a tentative settlement of the class action complaint pursuant to which the company has agreed to pay $2.5 million, which is included in other accrued liabilities at Sept. 30, 2006, in exchange for a dismissal with prejudice of all claims brought on behalf of the putative class under the class action complaint. On Sept. 8, 2006, the court preliminarily approved the settlement and a conditional class was certified for purposes of seeking class approval of the settlement. On Oct. 2, 2006, notice was mailed to the conditional class members outlining the terms of the settlement and providing all class members with an opportunity to opt out of the settlement prior to the final approval hearing scheduled for Nov. 27, 2006. Two putative class members opted out of the class, and there were no objections submitted. The final approval hearing was held on Nov. 27, 2006 as scheduled, and the Court granted final approval of the settlement. The settlement amount was distributed by the class settlement administrator on Feb. 16, 2007. On July 24, 2007, the Court ordered the case dismissed with prejudice pursuant to the Class Settlement Agreement. Alliance Imaging, Inc. -- http://www.allianceimaging.com-- is a provider of shared-service and fixed-site diagnostic imaging services. The Company’s principal sources of revenue are derived from magnetic resonance imaging (MRI) and positron emission tomography and positron emission tomography/computed tomography (PET and PET/CT). It provides imaging and therapeutic services primarily to hospitals and other healthcare providers. The Company also provides services through a number of fixed sites primarily to hospitals or health systems. ALLIED CAPITAL: Amended Complaint Served in D.C. Securities Suit ---------------------------------------------------------------- Plaintiffs in a purported securities fraud class action pending against Allied Capital Corp. in the U.S. District Court for the District of Columbia have served an amended complaint. On Feb. 26, 2007, Dana Ross filed a class action complaint in which she alleges that the company and certain members of management violated Sections 10(b) and 20(a) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5 thereunder. The complaint, "Dana Ross v. Walton, et al., CV 00402," claims that, between March 1, 2006, and Jan. 10, 2007, Allied Capital either failed to disclose or misrepresented information concerning the loan origination practices of Business Loan Express, LLC, an Allied Capital portfolio company. Thereafter, the court appointed new lead counsel and approved new lead plaintiffs. On July 30, 2007, plaintiffs served an amended complaint. Plaintiffs claim that, between Nov. 7, 2005, and Jan. 22, 2007, Allied Capital either failed to disclose or misrepresented information about its portfolio company, Business Loan Express, LLC. Plaintiffs seek unspecified compensatory and other damages, as well as other relief. The suit is "Ross v. Walton, et al., Case No. 1:07-cv-00402-EGS," filed in the U.S. District Court for the District of Columbia under Judge Emmet G. Sullivan. Representing the plaintiffs is: Steven Richard Freeman, Esq. Freeman, Wolfe & Greenbaum, P.A. 409 Washington Avenue, Suite 300 Towson, MD 21204 Phone: (410) 321-8400 Fax: 410-321-8407 E-mail: srf@fwglaw.com AMERICAN ELECTRIC: 6th Circuit Reinstates Ohio ERISA Lawsuit ------------------------------------------------------------ The U.S. Court of Appeals for the Sixth Circuit has reinstated the ERISA 401 (k) class action against American Electric Power Co., Inc. In the fourth quarter of 2002 and the first quarter of 2003, three putative class actions were filed against AEP, certain executives and AEP's ERISA Plan Administrator alleging violations of ERISA in the selection of AEP stock as an investment alternative and in the allocation of assets to AEP stock. The suits were filed in the U.S. District Court for the Southern District of Ohio. Defendants are American Electric Power Co., Inc., American Electric Power Service Corp., E. Linn Draper, Jr., and Thomas V. Shockley, III. In July 2006, the court entered judgment denying plaintiff's motion for class certification and dismissing all claims without prejudice. In August 2006, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Sixth Circuit. Briefing of this appeal was completed in December 2006. The Court of Appeals heard oral argument in July 2007 (Class Action Reporter, Aug. 27, 2007). On Sep. 10, Stull, Stull & Brody announced that the Circuit Court reinstated the ERISA 401(k) class action. The class action was brought on behalf of all participants in AEP's 401(k) defined contribution retirement plan who purchased and/or held shares of the AEP Stock Fund at any time between December 9, 1998 and December 31, 2002. The case will now proceed in the trial court to seek to recoup losses to the plan and the participants' individual accounts in the plan resulting from the alleged breaches of fiduciary duty. The suit is "Bridges v. American Electric Po, et al., Case No. 2:03-cv-00067- ALM-MRA," filed in the U.S. District Court for the Southern District of Ohio under Judge Algenon L. Marbley with referral to Judge Mark R. Abel. Representing the plaintiffs are: Edwin J. Mills, Esq. Stull, Stull and Brody 6 East 45th Street New York, NY 10017 Phone: 212-687-7230 E-mail: ssbny@aol.com James Edward Arnold, Esq. Clark Perdue Arnold & Scott 471 East Broad Street, Suite 1400 Columbus, OH 43215 Phone: 614-469-1400 E-mail: jarnold@cpaslaw.com - and - Joseph J. Braun, Esq. Strauss & Troy - 1 The Federal Reserve Bldg., 150 E Fourth St., 4th Floor Cincinnati, OH 45202-4018 Phone: 513-621-2120 E-mail: jjbraun@strausstroy.com Representing the defendants are: Michael J. Chepiga, Esq. Charlie L. Divine, Esq. Joseph M. McLaughlin, Esq. Issa Mikel, Esq. George S. Wang, Esq. Simpson Thacher & Bartlett, LLP 425 Lexington Avenue New York, NY 10017-3954 Phone: 212-455-2000 Fax: 212-455-2502 Web site: http://www.stblaw.com/ AT&T CORP: Mo. Landowners File Lawsuit Over Property Rights ----------------------------------------------------------- AT&T Corp. is facing a class-action complaint filed Sept. 6, in the U.S. District Court for the Eastern District of Missouri, accusing it of profiting from burying fiber optic cables on private land without permission, Joe Harris of the Courthouse News Service reports. Lead plaintiffs William and Priscilla Martin brought the action on behalf of all Missouri landowners who had a railroad easement in which AT&T buried cables. They want the court to rule on: (a) Whether AT&T adopted policies, procedures and a pattern of practice to install and operate fiber optic or other telecommunications cable through the right-of-way land without seeking or obtaining the consent of the Class members; (b) Whether it was AT&T’s policy and practice to disregard the rights of underlying landowners when negotiating for and purporting to obtain occupancy rights in the right-of-way land and when entering and occupying the right-of-way land; (c) Whether AT&T acted toward the Class with a reckless indifference to the rights of the Class members; (d) Whether AT&T intentionally entered the Class members’ land or caused a thing, such as a telecommunications cable, to do so, or remained on the Class members’ land or failed to remove from the Class members’ land a thing, such as a telecommunications cable, which it was under a duty to remove; (e) Whether AT&T published false statements disparaging the Class members’ property rights in land, which statements AT&T should have recognized were likely to result in pecuniary harm to the Class members; (f) Whether AT&T acted in heedless disregard of the consequences to the Class members when it published false statements disparaging the Class members’ property rights in land that AT&T should have recognized were likely to result in pecuniary harm to the Class members; (g) Whether AT&T knew that it could not obtain occupancy rights in the right-of-way land from the railroad, pipeline or utility company that held merely a right- of-way easement, license or other limited occupancy right for railroad, pipeline or utility purposes ("right-of-way user") or whether AT&T acted with reckless disregard of whether it could obtain occupancy rights in the right-of-way land from the right-of-way users; (h) Whether AT&T asserted any ownership interest or occupancy rights in the right-of-way land and whether AT&T knew that such assertions were false at the time those assertions were made, or whether such assertions were made recklessly and without adequate investigation of their truth; (i) Whether AT&T negotiated for or entered into contracts that purported to transfer occupancy rights or ownership interests in entire corridors of railroad right-of-way land and corridors of utility right-of-way land and whether AT&T knew or should have known that such purported transfers were wholly ineffective because the granting party had no legal interest in the right-of-way land that it could transfer to AT&T for fiber optic or other telecommunications cable purposes; (j) Whether AT&T obtained revenues from its use and occupancy of the right-of-way land; (k) Whether AT&T exercised dominion and control over the right-of-way land or attempted to restrict access to the right-of-way land; (l) Whether AT&T adopted a common nationwide course of conduct of threats and intimidation, including threats of civil liability, money damages, and criminal prosecution of persons who interfere with AT&T’s fiber optic or telecommunications cables in land belonging to members of the Class; (m) Whether AT&T maintains signs in visible locations along the right-of-way land where its cable is located and whether AT&T did not obtain permission from the underlying landowner when placing the signs on the landowner’s property; (n) Whether AT&T’s signs carry a substantially uniform message that threatens everyone, including the underlying landowners, with prosecution if they disturb AT&T’s buried cables; and (o) Whether AT&T sends out mailings to addresses near the right-of-way land to anyone who may be within sight of the cable to make the general public aware of the presence of AT&T’s cable and AT&T’s claim of right to maintain the cable on the Class members’ land. Plaintiffs and the other members of the Class pray for: (1) an award of common damages sufficient to compensate them for their pecuniary losses, including reasonable costs necessary to obtain a declaration of law that AT&T has no legal interest in their land and the reasonable value of the use of the land; (2) punitive damages; (3) an award of special damages, including damages for the injury to the value of their land, including diminution of the value of the residual estate caused by AT&T’s claim of occupancy rights in their land and deprivation of the full use and enjoyment of their land; and (4) all other just and proper relief. The suit is “Martin et al. v. AT&T Corp. et al., Case No. 4:07-cv-01564-JCH,” filed in the U.S. District Court for the Eastern District of Missouri, under Judge Jean C. Hamilton. Representing plaintiffs is: Elizabeth V. Heller Goldenberg and Heller, P.C. 2227 S. State Route 157 Edwardsville, IL 62025 Phone: 618-656-5150 Fax: 618-656-6230 E-mail: elizabeth@ghalaw.com BODEE LLC: Recalls Potentially Harmful Dietary Supplements ---------------------------------------------------------- Bodee LLC of Century City, Cal., is conducting a voluntary nationwide recall of all the company's supplement product sold under the name Zencore Tabs. The company is conducting the recall after being informed by representatives of the U.S. Food and Drug Administration that lab analysis by FDA of Zencore Tabs samples found the product contains potentially harmful, undeclared ingredients. FDA asserts that its chemical analysis revealed that one lot of Zencore Tabs contains aminotadalafil, an analog of tadalafil, the active ingredient of a FDA-approved drug used for Erectile Dysfunction (ED). FDA maintains Aminotadalafil is close in structure to tadalafil and is expected to possess a similar pharmacological and adverse event profile. Further, FDA declares another lot of Zencore Tabs contains sildenafil, the active ingredient of another FDA-approved drug used for ED, as well as sulfosildenafil and sulfohomosildenafil, both are analogs of sildenafil. All of these undeclared chemicals pose a threat to consumers because they may interact with nitrates found in some prescription drugs (such as nitroglycerin) and may lower blood pressure to dangerous levels. Consumers with diabetes, high blood pressure, high cholesterol, or heart disease often take nitrates. ED is a common problem in men with these conditions, and consumers may seek these types of products to enhance sexual performance. Zencore Tabs is sold in health food stores and by mail order nationwide and in Canada. The Zencore Tabs product is sold as a 2-capsule blister pack packaged in a retail booklet with five booklets in a box. Customers who have this product in their possession are advised to stop using it immediately and contact their physician if they have experienced any problems that may be related to taking this product. The company advises that any unused portion be returned to Bodee LLC for a full purchase price refund by calling (800) 935-0296 for instructions on the return and refund process. The Company is taking this voluntary action because it is committed and is always concerned with the health of persons who have consumed this product. The Company is reviewing the procedures and policies of all firms involved with the manufacture of the product to ensure that there will be no future issues with regard to Zencore Tabs’ composition. The Company is working closely with the FDA in the recall process and is committed to the quality and integrity of its products. It sincerely regrets any inconvenience to consumers and its other customers. CALIFORNIA: Suit Against LAPD Over May 1 Demonstration Builds up ---------------------------------------------------------------- Immigrant rights groups and more than 170 people who say they were brutalized by police after a May 1 immigration march joined a lawsuit against the Los Angeles Police Department, the Associated Press reports. The group also filed documents seeking approval to pursue the case as a class action. In May, The National Lawyers Guild along with attorneys from the Mexican American Legal Defense and Educational Fund filed a purported class action in the U.S. District Court for the Central District of California on behalf of the community groups who organized a May Day immigrants rights rally at MacArthur Park in Los Angeles' heavily Latino immigrant community (Class Action Reporter, May 14, 2007). The suit seeks changes in how the LAPD responds to demonstrations, as well as damages for all of the peaceful participants in the rally who were allegedly beaten and shot by the police and chased from the park. According to the lawsuit, the police broke up the demonstration without justification. Lawyers for the class action estimate that they have received reports from dozens of individuals injured that day as they were chased from the park, including reports of broken bones, concussions, and other contusions. Organizational plaintiffs are: -- MIWON - Multi-Ethnic Immigrant Workers Organizing Network; -- CHIRLA - Coalition for Humane Immigrants Rights Los Angeles; -- KIWA - Koreatown Immigrant Workers Alliance; -- IDEPSCA - Institute of Popular Education of Southern California; -- GWC - Garment Workers Center; and -- PWC - Philipino Workers Center. Individual plaintiffs include Kevin Breslin, Luis Galvez, Jorge Lopez, and Leopoldo Ortiz. For more details, contact: Carol Sobel Cyntha Anderson-Barker Jorge Gonzalez National Lawyers Guild - Los Angeles Chapter 8124 West Third Street, Suite 101 Los Angeles, CA 90048 Phone: 310 393-3055, 213 381-3246, and 213 670-0063 Web site: http://www.nlg.org CIRCUIT CITY: High Court Sets Aside Class Arbitration Waiver ------------------------------------------------------------ California’s State Supreme Court allowed employees suing Circuit City Stores Inc. for unpaid overtime to sue the company as a class despite an arbitration policy. The ruling was made in a suit filed by Robert Gentry on August 29, 2002 in superior court against Circuit City Stores. Mr. Gentry is seeking damages for violations of the Labor Code and Business and Professions Code, as well as for conversion. He filed the suit on behalf of salaried customer service managers such as himself whom Circuit City had allegedly “illegally misclassified” as “exempt managerial/executive employees” not entitled to overtime pay. The Supreme Court of California considered whether class arbitration waivers in employment arbitration agreements may be enforced to preclude class arbitrations by employees whose statutory rights to overtime pay pursuant to Labor Code sections 500 et seq. and 11941 allegedly have been violated. The court concluded that at least in some cases, the prohibition of classwide relief would undermine the vindication of the employees’ unwaivable statutory rights and would pose a serious obstacle to the enforcement of the state’s overtime laws. It said that accordingly, such class arbitration waivers should not be enforced if a trial court determines that class arbitration would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration. The court therefore reversed the judgment of the Court of Appeal upholding the class arbitration waiver and remand for the above determination. Another issue posed by this case is whether a provision in an arbitration agreement that an employee can opt out of the agreement within 30 days means that the agreement is not procedurally unconscionable, thereby insulating it from employee claims that the arbitration agreement is substantively unconscionable or unlawfully exculpatory. The court said a finding of procedural unconscionability is not required to invalidate a class arbitration waiver if that waiver implicates unwaivable statutory rights. But such a finding is a prerequisite to determining that the arbitration agreement as a whole is unconscionable. Plaintiff in this case argues that other terms of the arbitration agreement were substantively unconscionable and that the entire agreement should not be enforced. Contrary to the Court of Appeal, the Supreme Court concluded that the present agreement has an element of procedural unconscionability notwithstanding the opt-out provision, and therefore remand for a determination of whether provisions of the arbitration agreement were substantively unconscionable. The ruling is available at: www.courtinfo.ca.gov/opinions/documents/S141502.PDF The case is Gentry vs. Superior Court, S141502. DEL MONTE: Circuit Court Rules on Coverage of Insurance Policy -------------------------------------------------------------- The Seventh Circuit ruled that an insurance policy of six Del Monte companies excludes class actions accusing them of monopolizing the “extra-sweet” pineapple market, CourtHouse News Service reports. A series of suits filed in U.S. District Courts in New York and Massachusetts in 2004 accuses Del Monte of misrepresenting its Fresh Del Monte Gold pineapples as extra-sweet and patenting the genetic sibling to the Gold pineapple. The Del Monte companies then claimed their general liability policies with Transportation Insurance Co. covered personal and advertising injury claims, but Judge Wood said it fell under the insurer’s “knowledge of falsity” exclusion because the class-action allegations were based on fraud. Del Monte has sued competitors for patent infringement, though it knew its claims about the “extra-sweetness” of the new pineapple were false, the ruling states. Del Monte Foods Co. and its subsidiaries (Del Monte) -- http://www.delmonte.com/-- is a producer, distributor and marketer of branded food and pet products for the U.S. retail market. The segments in which the Company operates include The Consumer Products segment and The Pet Products segment. DJO INC: Calif. Suit Challenges Merger with ReAble Affiliate ------------------------------------------------------------ A purported shareholder class action was filed on August 31, 2007 in the California Superior Court in the County of San Diego challenging DJO Inc.’s proposed merger with an affiliate of ReAble Therapeutics, Inc., reports say. The complaint names the Company, ReAble Therapeutics, Inc. and the current members of the Company's board of directors as defendants. According to a San Diego Business Journal report, DJO, on July 16, entered into a merger agreement with Austin-based ReAble Therapeutics Inc. and a subsidiary for a deal worth a potential $1.6 billion. The Blackstone Group is the controlling shareholder of ReAble. Under the agreement, DJO shareholders would receive $50.25 in cash for their shares of DJO common stock under the proposed merger agreement. The lawsuit alleged that amount was “significantly below the 52-week high price of $53.55.” DJO recommended the stockholders approve the merger. It announced it had obtained the necessary antitrust approvals early, on Aug. 9. The complaint alleges, among other things, that the individual defendants breached their fiduciary duties of care, good faith and loyalty by approving the proposed merger with an allegedly inadequate price, without adequately informing themselves of the company's highest transactional value, and without adequately marketing the Company to other potential buyers. It further alleges that the individual defendants and the Company failed to make full and adequate disclosures in the preliminary proxy regarding the proposed merger. The complaint also alleges that ReAble Therapeutics aided and abetted the individual defendants' alleged breach of fiduciary duties. The lawsuit prays for: (a) a determination that the action is a proper class action, and that plaintiff is a proper class representative; (b) a declaration that the defendants have breached their fiduciary duties to plaintiff and the class and/or aided and abetted such breaches; (c) an injunction of the proposed merger and, if the merger is consummated, an order rescinding it; (d) an order requiring defendants to make corrective and complete disclosures; (e) compensatory and/or rescission damages as allowed by law; (f) interest, attorneys' fees, expert fees and other costs; and (g) such other relief as the court may find just and proper. The Company believes that the lawsuit is without merit and intends to vigorously oppose it. The Company believes that one or more additional lawsuits of a similar nature will be filed. DJO Inc. is a global medical device company specializing in rehabilitation and regeneration products for the non-operative orthopedic and spine markets. ECOLOGY AUTO: Faces Calif. Lawsuit Over Labor Code Violations ------------------------------------------------------------- Ecology Auto Parts is facing a class action seeking millions in compensation for hundreds of past and present employees who might have been denied work breaks and overtime pay, The San Diego Union-Tribune reports. Named plaintiff Samuel Nunez, who worked as an auto dismantler for Ecology from 2000 to 2004, said his supervisors denied him breaks, even after he lodged a complaint with the California Labor Commission. He also said he wasn't paid for overtime. According to the report, State labor laws mandate paid 10-minute breaks for every four hours of work, regardless of the employee's immigration status. Generally, overtime pay is required when workers are on the job more than eight hours a day. Mr. Nunez also alleged that the company unjustly fired injured workers. "There is a greater degree of education about workers' rights," said Paul Jackson, one of the lawyers representing the Ecology employees. The lawsuit, originally filed in December 2004 in San Diego Superior Court, also accuses the company of not paying workers' final paychecks in a timely manner. The lawsuit could affect nearly 600 people who worked for the company from January 2001 to the present, say the plaintiffs' lawyers, the report said. When the plaintiffs said that Ecology pressured workers not to join the lawsuit, a judge found that there were irregularities in the company's actions. Lawyers for the plaintiffs say they could settle the suit with Ecology for $5 million to $10 million. They are looking for more people who worked for Ecology since January 2001. A trial is expected to begin in January if a settlement is not reached. The used-car parts company, which has locations in Oceanside, Chula Vista and San Diego, denied the allegations in its response to the lawsuit. GLAXOSMITHKLINE PLC: Suit Over Paxil Settlement Objection Junked ---------------------------------------------------------------- Madison County Circuit Judge Andy Matoesian dismissed without prejudice a class action filed against lawyers who objected to a $63.8 million Paxil class action settlement, Steve Gonzalez of the Madison County Record reports. On June 7, Teri Hoormann and Mary Kopsie, class representatives in the Paxil litigation, filed the suit in Madison County Circuit Court against lawyers N. Albert Bacharach, Jr. and Paul S. Rothstein, and citizen Lillian Rogers (Class Action Reporter, June 12, 2007). They claim the defendants filed frivolous objection that delayed their receipt of their lawful benefits, thus causing them damage. "As a result of these illegal activities, defendants are individually liable for three-times the amount that they have gained," the complaint stated. Plaintiffs have one year from the date of Judge Matoesian's Aug. 24 order, to re-file their complaint. The plaintiffs are represented by Stephen Swedlow of Chicago, who is also one of the class attorneys in the Paxil case along with Stephen Tillery. Paxil Litigation Settlement The Paxil suit accuses GlaxoSmithKline of promoting the drug for use by children and adolescents while withholding negative information about the medication's safety and effectiveness. The class consists of all U.S. residents who bought Paxil and Paxil CR, a controlled-release version of the drug. Madison County Associate Judge Ralph Mendelsohn approved on Oct. 6 and unsealed on Oct. 27 the $63.8 million settlement (Class Action Reporter, Nov. 7, 2006). Under the deal, parents with proof that they bought GlaxoSmithKline Paxil and Paxil CR for their children can recoup out-of-pocket expenses. Under the new settlement, anyone who purchased Paxil for someone under 18 will get 100 percent of their out-of-pocket expenses reimbursed if they have proof and file a claim by Aug. 31. Anyone who does not have proof of purchase is still entitled to receive up to $100 if the claim is supported by an affidavit swearing that Paxil was purchased. Plaintiffs' attorneys can claim more than $16 million in fees, which will be deducted from the settlement fund, with the remaining money available for payments to consumers. Any money left over in the settlement fund is to be returned to GlaxoSmithKline. The Settlement on the Net: http://www.paxilpediatricsettlement.com http://www.paxilprogress.org http://www.baumhedlundlaw.com HARRY SINGH: Paying $2.5M to Settle Lawsuit Over Back Wages ----------------------------------------------------------- Oceanside (Calif.) vegetable grower Harry Singh & Sons has settled a labor class action in June, it emerged in a report by Leslie Berestein of San Diego Union Tribune. Attorneys who represented the workers said the company had not admitted wrongdoing, but agreed to the settlement. The suit was filed in September last year over allegations the company failed to properly compensate employees for off-the-clock work, overtime and for missed or interrupted meal and rest breaks. The settlement entitles nearly 3,800 current and former workers to back wages totaling $2.5 million, attorneys and Mexican government officials said in August, according to Ms. Berestein. Claims filing deadline is Oct. 12. The class consists of employees who worked for the company between Sept. 21, 2002, and June 17, 2007. Slightly more than 3,700 claim forms have been mailed, said settlement administrator Troy Hoffman. A problem in the distribution of the settlement right now is locating class members because the company uses foreign guest workers with H-2A visas. An estimated 700 former guest workers are believed to be out of the country, about 400 to 500 live in company-provided housing, while the rest live in the U.S., Ms. Berestein reports. For more information, contact: L. Tracee Lorens, Esq. Lorens & Associates 1202 Kettner Blvd., #4100 San Diego, CA 92101 Phone: 239-1233 ILLINOIS: Civil Rights Groups’ Suit Seeks Home Care for Disabled ---------------------------------------------------------------- Three public interest agencies -- Access Living, Equip for Equality, and the American Civil Liberties Union of Illinois –- on behalf of a group of disabled individuals has filed a class action against the state of Illinois under the Americans with Disabilities Act (ADA), asking the state to permit them to receive long-term care services at home rather than in a nursing home, the ElderLawAnswers.com reports. The lawsuit alleges the state has been violating the ADA by not providing enough resources to allow the individuals to receive care in their homes or communities and has been discriminating disabled individuals by segregating them in nursing homes. Unnecessary institutionalization is discrimination under the ADA, it said. According to the lawsuit, 60 percent of disabled, non-elderly nursing home residents would rather receive care at home. The individuals are asking the court to order Illinois officials to assess nursing home residents for community long-term care services, inform residents of home and community based options, and provide eligible residents with services and support in the community instead of requiring them to move into a nursing home. Representing the plaintiffs is Ed Mullen of Ross, Dixon & Bell, LLP (http://www.rdblaw.com). L.A. WEIGHT: Dismissal Motion in Discrimination Suit Rejected ------------------------------------------------------------- Judge William D. Quarles, Jr. of the U.S. District Court for the District of Maryland rejected motions by L.A. Weight Loss Centers to dismiss a class action alleging it discriminated against male applicants, HR.BLR.com reports. Judge Quarles ruled that the U.S. Equal Employment Opportunity Commission may proceed to trial with the case. In Feb. 2002, the EEOC filed the suit under Title VII of the Civil Rights Act of1964, alleging that the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit, the EEOC also alleged that L.A. Weight disciplined and ultimately terminated employee Kathy Koch, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that L.A. Weight failed to hire qualified male applicants because of their gender. With over 450 locations worldwide, including centers in the U.S., Canada, Costa Rica and Puerto-Rico, LA Weight Loss -- http://www.lafreetolive.com/-- is one of the fastest growing center-based Weight Loss Company in the world! They’ve helped over a million clients worldwide to achieve their weight loss goals and finally live the healthy, high-energy lifestyle, they’ve dreamed of. METZ FRESH: Recalls Bagged Spinach Over Salmonella Contamination ---------------------------------------------------------------- Metz Fresh, LLC is voluntarily recalling bagged spinach as a result of a positive test for Salmonella found during routine company testing. The spinach is distributed under the label Metz Fresh, in both retail and food service packages. These include 10 and 16 oz bags as well as 4-2.5 lb. and 4 lb. cartons. The only Metz Fresh product affected is spinach that bears the tracking codes 12208114, 12208214 and 12208314. It was distributed in the continental United States and Canada. There have been no reports of illness or problems related to this spinach. Salmonella is a common food borne pathogen that can cause severe illnesses, including fever, abdominal cramps and diarrhea. While most individuals recover in three to five days without medical intervention, the infection can be life-threatening to young children, the elderly and those with compromised immune systems. Consumers with any of these symptoms should call their physician. Consumers are advised to discard this product or return it to the place of purchase for a refund. Consumers with questions about the recall should contact 831-386-1018. "Nothing is more important to Metz Fresh than the safety of our consumers, period," said Andrew Cumming, President of Metz Fresh. "As soon as we learned of the presumptive positive test, we directed all customers to hold all boxes of the spinach affected as a precaution. Now, with this positive test confirmation, there is no question that we would recall and destroy all spinach bearing these three codes." The positive test came during independent lab testing Metz Fresh conducts on all of its products. Through its labeling and numbering system, Metz Fresh has already tracked, located and put 'holds' on the vast majority of the cartons of spinach affected. That spinach will not be released into the marketplace. While the positive test came from only one sample of many on three packing lines, Metz Fresh has, as a precaution, chosen to recall all of the spinach from the ‘field lot’ packed that day on all three lines. Metz Fresh is keeping appropriate authorities updated on the status of the voluntary recall. MIVA INC: Settlement Talks in Ark. Click Fraud Suit Ongoing ------------------------------------------------------------ Proceedings in the purported class action, "Lane's Gifts LLC, et al. v. Yahoo! Inc., et al.," which names MIVA, Inc., formerly Findwhat.com, Inc., as a defendant, remained stayed while settlement discussions continue. On Feb. 17, 2005, a putative class action was filed in Miller County Circuit Court, Arkansas, against that company and others in its sector by: -- Lane's Gifts and Collectibles, LLC, -- U.S. Citizens for Fair Credit Card Terms, Inc., -- Savings 4 Merchants, Inc., and -- Max Caulfield d/b/a Caulfield Investigations, on behalf of themselves and all others similarly situated. Savings 4 Merchants and U.S. Citizens for Fair Credit Card Terms, Inc. voluntarily dismissed themselves from the case, without prejudice, on April 4, 2005. The complaint names 11 search engines, web publishers, or performance marketing companies as defendants, including the company. It alleges breach of contract, unjust enrichment, and civil conspiracy. All of the plaintiffs’ claims are predicated on the allegation that the plaintiffs have been charged for clicks on their advertisements that were not made by bona fide customers. The lawsuit was brought on behalf of a putative class of individuals who allegedly “were overcharged for [pay per click] advertising,” and seeks monetary damages, restitution, prejudgment interest, attorneys’ fees, and other remedies. The company believes that it has no contractual or other relationship with either of the remaining plaintiffs. On Oct. 7, 2005, the company filed a motion to dismiss the complaint pursuant to Ark. R. Civ. Proc. 12(b)(6) for failure to state claims upon which relief may be granted. On Oct. 14, 2005, the company timely filed a motion to dismiss pursuant to Ark. R. Civ. Proc. 12(b)(2) for lack of personal jurisdiction. The court has not yet ruled on both these motions. Google, Yahoo, and certain other co-defendants in the case who were customers of Google and Yahoo have reached settlement terms with the plaintiffs that have been approved by the Court. The court has stayed the case as to the remaining defendants, including MIVA, to allow them to continue settlement discussions with the plaintiffs, which are ongoing, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. MIVA, Inc. -- http://www.miva.com-- together with its wholly owned subsidiaries is an online media and advertising network company. The Company provides targeted and measurable online advertising campaigns for its advertiser and agency clients, generating qualified consumer leads and sales. The Company's solutions provide a range of products and services through three customer-facing divisions: MIVA Media, MIVA Direct and MIVA Small Business. MIVA derives its revenue primarily from online advertising by delivering relevant contextual and search ad listings to its third-party ad network and its MIVA-owned consumer audiences on a performance basis. The Company offers a range of products and services through three divisions: MIVA Media, MIVA Direct and MIVA Small Business. MIVA INC: Fla. Court Wants Further Briefing in Securities Suit -------------------------------------------------------------- The U.S. District Court for the Middle District of Florida has requested additional briefing on a scienter issue in a consolidated securities class action filed against Miva, Inc., formerly Findwhat.com, Inc., and certain of its officers and directors. Beginning on May 6, 2005, five putative securities fraud class action were filed, alleging that the company and the individual defendants violated Section 10(b) of the U.S. Securities Exchange Act of 1934 and that the individual defendants also violated Section 20(a) of the Act as "control persons" of MIVA. Plaintiffs purport to bring these claims on behalf of a class of the company's investors who purchased company stock between Jan. 5, 2004 and May 4, 2005. Plaintiffs allege generally that, during the putative class period, the company made misleading statements and omitted material information regarding the goodwill associated with a recent acquisition and certain material weaknesses in its internal controls. Plaintiffs assert that the company and the individual defendants made these misstatements and omissions in order to keep its stock price high to allow certain individual defendants to sell stock at an artificially inflated price. Plaintiffs seek unspecified damages and other relief. On June 13 and July 7, 2005, the company and the other defendants moved to dismiss each of these complaints for failure to comply with the mandatory pleading requirements of the Reform Act and also served answers to the complaints. In response to the motions to dismiss, plaintiffs requested leave to file a consolidated amended complaint. On July 27, 2005, the court consolidated all of the outstanding lawsuits under the case as, "In re MIVA, Inc. Securities Litigation," selected lead plaintiff and lead counsel for the consolidated cases, and granted plaintiffs leave to file a consolidated amended complaint. The company and the other defendants then had until Sept. 6, 2005 to file an answer and/or a motion to dismiss. The company and the other defendants moved to dismiss the complaint on Sept. 8, 2005. On Dec. 28, 2005, the court granted defendants' motion to dismiss. The court granted plaintiffs leave to submit a further amended complaint, which was filed on Jan. 17, 2006. On Feb. 9, 2006, defendants filed a renewed motion to dismiss. On March 15, 2007, the Court granted in large part Defendants’ motion to dismiss. However, the Court denied Defendants’ motion to dismiss as to certain statements relating to: -- removal of traffic sources, -- spyware, -- implementation of screening policies and procedures, and -- amounts of traffic purchased from distribution partners. On March 29, 2007, Defendants filed a motion for amendment to the March 15, 2007 order to include certification for interlocutory appeal or, in the alternative, for reconsideration. On July 17, 2007, the Court denied the motion for amendment to the March 15, 2007 order to include certification for interlocutory appeal and granted the motion for reconsideration as to the issue of whether Plaintiffs pled a strong inference of scienter in light of intervening precedent. The Court requested additional briefing on the scienter issue, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "In re MIVA, Inc. Securities Litigation, Case No. 2:05-cv-00201-JES-DNF," filed in the U.S. District Court for the Middle District of Florida under Judge John E. Steele. Representing the plaintiffs are: Chris A. Barker, Esq. Barker, Rodems & Cook, P.A. 300 W. Platt St., Suite 150 Tampa, FL 33606 Phone: 813/489-1001 Fax: 813/489-1008 E-mail: cbarker@barkerrodemsandcook.com - and - Christopher S. Polaszek, Esq. Milberg, Weiss, Bershad & Schulman LLP 5200 Town Center Circle, Ste. 600, Tower One Boca Raton, FL 33486-1018 Phone: 561-361-5000 Fax: 561-367-8400 E-mail: cpolaszek@milbergweiss.com Representing the defendant is: Joseph G. Foster, Esq. Porter, Wright, Morris & Arthur, P.A. 5801 Pelican Bay Blvd., Suite 300 Naples, FL 34108 Phone: 239/593-2900 Fax: 239/593-2990 E-mail: jfoster@porterwright.com MIVA INC: Click Fraud Suit by Payday Advance Continues in N.Y. --------------------------------------------------------------- MIVA, Inc., formerly Findwhat.com, Inc., continues to face a purported class action in the U.S. District Court for the Southern District of New York over allegations of “click fraud.” On March 10, 2006, Payday Advance Plus, Inc. filed a putative class action against the company and Advertising.com, Inc. The complaint alleges that Advertising.com, a MIVA Media Network distribution partner, engaged in click fraud to increase revenues to themselves with MIVA's alleged knowledge and participation. The lawsuit was brought on behalf of a putative class of individuals who have allegedly been overcharged by the defendants and seeks monetary damages, restitution, prejudgment interest, attorneys' fees, injunctive relief, and other remedies. On May 12, 2006, MIVA moved to dismiss the Complaint. In an order dated March 12, 2007, the Court denied MIVA’s motion to dismiss the plaintiff’s breach of contract claim but granted the motion as it related to the remainder of the plaintiff’s claims. On April 2, 2007, the plaintiff filed an amended complaint in which it dropped its claims against Advertising.com. The amended complaint asserts only a claim for breach of contract claim against MIVA, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Payday Advance Plus, Inc. v. Findwhat.com, Inc. et al., Case No. 1:06-cv-01923-JGK," filed in the U.S. District Court for the Southern District of New York under Judge John G. Koeltl. Representing the plaintiffs are: Robin Bronzaft Howald, Esq. Robert M. Zabb, Esq. Glancy Binkow & Goldberg, LLP Phone: (917) 510-0009 and (310)-201-9150 Fax: (646) 366-0895 and (310)-201-9160 E-mail: hobbit99@aol.com info@glancylaw.com Representing the company is: Karl Geercken, Esq. Alston & Bird, LLP 90 Park Avenue New York, NY 10016 Phone: 212-210-9400 Fax: 212-210-9444 E-mail: kgeercken@alston.com MIVA INC: Still Faces Calif. Lawsuit Over Online Gambling Ads -------------------------------------------------------------- MIVA, Inc., formerly Findwhat.com, Inc., continues to face a putative class action filed in the Superior Court of the State of California, County of San Francisco. Mario Cisneros and Michael Voight filed the suit on Aug. 3, 2004, on behalf of themselves, all other similarly situated, and/or for the general public. The suit also names other Internet search sites and service providers. The complaint alleges that acceptance of advertising for Internet gambling violates several California laws and constitutes an unfair business practice. The complaint seeks unspecified amounts of restitution and disgorgement as well as an injunction preventing the company from accepting paid advertising for online gambling. Three of the company's industry partners, each of whom is a co-defendant in the lawsuit, have asserted indemnification claims against the company for costs incurred as a result of such claims arising from transactions with the company. On Oct. 11, 2005, Judge Kramer held a bifurcated trial on the issue of whether California public policy and the doctrine of in pari delicto are defenses to Plaintiffs’ claims for restitution for the gambling losses Internet gamblers purportedly incurred on Internet gambling sites, and Judge Kramer ruled that California public policy barred Plaintiffs’ claim for restitution. On April 13, 2007 the Court ruled that Plaintiffs cannot obtain disgorgement of revenues earned from ads for online gaming. The remaining issue is whether the Court should issue an injunction barring companies in MIVA’s industry from displaying ads for online gaming. In addition, three of MIVA’s industry partners, each of which is a codefendant in the lawsuit, have asserted indemnification claims against MIVA for costs incurred as a result of such claims arising from transactions with MIVA, and MIVA entered into an agreement with one of these industry partners to resolve such claims. Subsequently the partner with which MIVA entered into an agreement was dismissed from the litigation, as well as several additional of MIVA’s co- defendants. In addition, Plaintiff Cisneros has been voluntarily dismissed from the case, but two plaintiffs remain, according to the company's Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2007. The suit is "Mario Cisneros et al., v. Yahoo! Inc., et al., Case No. CGC-04- 433518," filed in the California Superior Court in San Francisco County under Judge Richard A. Kramer. Representing the plaintiffs is: Ira P. Rothken, Esq. The Rothken Law Firm 1050 Northgate Drive, Suite 520 San Rafael, CA 94903 Phone: (415) 924-4250 E-mail: feedback@techfirm.com Web site: http://www.techfirm.com PAYDAY LENDERS: Five Firms Sued for "Unconscionable Loans" ----------------------------------------------------------- A South Carolina couple is suing five payday lenders for allegedly granting loans to borrowers who can’t afford them, The (Charleston) Post and Courier reports. Lawyers for Mark and Rebecca Morgan filed the suit in Horry County court against Advance America, Cash Advance Centers of South Carolina Inc., Carolina Payday Loans Inc., Check Into Cash of South Carolina Inc., Check 'N Go of South Carolina Inc. and Local Cash Advance of S.C. LLC. They allege that through negligent practices, defendants breach their obligations of good faith and make "unconscionable loans," violating the Deferred Presentment Services Act and the Consumer Protection Act, among others. State Sens. John Hawkins, R-Spartanburg, and Vince Sheheen, D-Camden, both lawyers, filed the suit along with Charleston lawyers Alan Sloan and Joseph Wilson. The attorneys have asked the court to classify the case as a class action. The lawsuit seeks financial damages, and an order preventing payday lenders from making loans in South Carolina until they comply with state law requiring that lenders take steps to determine a borrower's ability to repay before granting loans. For more information, contact: Joseph C. Wilson, IV, Esq. Pierce, Herns, Sloan & McLeod, LLC The Blake House, 321 East Bay Street P.O. Box 22437 Charleston, South Carolina 29413 (Berkeley & Charleston Cos.) Phone: 843-722-7733 Fax: 843-722-7732 PROGRESSIVE CASUALTY: Sued Over Municipal Taxes Collection Fees ---------------------------------------------------------------- Progressive Casualty Insurance Co. is accused of fraudulently charging customers for municipal taxes collection, Brandon Ortiz of The Lexington Herald-Leader. Northern Kentucky couple, Jeff and Heather Hassan, filed the suit in U.S. District Court in Covington. They claim the company charge customers for municipal taxes they do not owe and collect from customers an illegal 15% collection fee on top of that. State law allows municipalities and counties to tax premiums paid to insurance companies and to keep 15 percent of the tax or 2 percent of the total premium, whichever is less, as compensation for collecting the tax. But the fee is supposed to come from the taxes Progressive remits to local governments and not charged to consumers, said Christopher S. Nordloh, a Covington lawyer who represents the plaintiffs. Mr. Nordloh said Progressive is charging a 10 percent tax to customers who do not live in places that tax premiums. And Progressive is over-charging customers in cities that have less than a 10 percent tax, he said. The lawsuit asks for the taxes to be refunded to customers, and for punitive damages. The plaintiffs seek to represent thousands who were allegedly overcharged. The suit is Hassan et al. v Progressive Casualty Insurance Co., Case Number 2:2007cv00139," filed in the U.S. District Court for the Kentucky Eastern District Court under Judge David L. Bunning. Representing the plaintiffs is: Christopher S. Nordloh, Esq. 28 W. Fifth Street Covington, KY 41011 Phone: (859) 491-9331 RAMBUS INC: Agrees to Settle Calif. Securities Suit for $18M ------------------------------------------------------------- Rambus Inc. has reached an agreement in principle to settle a consolidated securities class action filed over the company's accounting for option grants and related disclosures. The complaint filed in 2006 in the U.S. District Court for the Northern District of California alleges that Rambus and certain officers and directors violated the federal securities laws by making false and misleading statements and omissions concerning Rambus' improper and undisclosed practice of backdating options given to Rambus executives. Such a scheme allegedly improperly provides the executive with an unearned benefit -- instead of the option being priced at the market price of the shares, it is priced at a lower price. The practice of manipulating stock option dates not only potentially lines the pockets of the executives, but here resulted in the overstatement of Rambus's earnings between 2003 and 2005, according to the complaint. Under accounting rules, back-dating the option is deemed the payment of additional compensation and must be accounted for as an expense, but Rambus allegedly did not properly account for the options granted. As a result, Rambus has been forced to restate its previously issued financial statements for the fiscal years 2003-2005. In addition, the company has stated that the Quarterly Reports on Form 10-Q filed with respect to each of these fiscal years, and the financial statements included in the company's Quarterly Report on Form 10-Q for the first quarter of fiscal year 2006, should no longer be relied upon, and will be restated The settlement, which is subject to final documentation as well as review by the court, provides for a payment by Rambus of $18 million and would lead to a dismissal with prejudice of all claims against all defendants in the litigation. In addition, Rambus has been and will continue to be in discussions with its insurers concerning their contribution of a portion of the settlement amount. This settlement is subject to final documentation as well as preliminary and final court approval. For more information, contact: Linda Ashmore Rambus Inc. Phone: 650-947-5411 E-mail: lashmore@rambus.com Website: http://www.rambus.com SPRINT NEXTEL: $57M Settlement of Age Bias Suit Gets Final OK -------------------------------------------------------------- U.S. District Judge John Lungstrum granted final approval to a $57 million an agreement entered by Sprint Nextel Corp. to settle the class action "Williams v. Sprint/United Management Co.," Kansas City Business Journal reports. The settlement covers 1,697 former employees who were laid off between Oct. 1, 2001, and March 31, 2003 (Class Action Reporter, May 21, 2007). Under the agreement, 11 people who have served as lead plaintiffs in the case would receive an average of $155,000 each. The plaintiff's attorneys would receive $19.4 million in fees, plus an additional $1.65 million to cover the process of confirming the settlement. The remaining 1,686 plaintiffs would split the leftover $34.3 million, or an average of $20,332 apiece. In 2003, about 2,300 former Sprint Corp. employees filed a class action in the U.S. District Court for the District of Kansas against Sprint over age discrimination. The original suit was brought by Shirley Williams. The suit alleged Sprint engaged in a "pattern and practice of age discrimination" by lowering performance evaluations of over- 40 workers or moving them into positions slated for elimination. It also contended that Sprint wrongly used age information in making performance rankings and job assignments in advance of impending mass layoffs. Sprint Nextel agreed to the settlement "without admission or finding of liability or wrongdoing." John Phillips, a Blackwell Sanders LLP lawyer who served as special master for the case. John Phillips, a Blackwell Sanders LLP lawyer, served as special master for the case. The suit is "Williams v. Sprint/United Management Company, Case No. 2:03-cv-02200-JWL-DJW," filed in the U.S. District Court for District of Kansas under Judge John W. Lungstrum with referral to Judge David J. Waxse. Representing the plaintiffs are: Matthew C. Billips, Esq. Miller, Billips & Ates, PC 730 Peachtree St. - Ste. 750 Atlanta, GA 30328 Phone: 404-969-4101 Fax: 404-969-4141 E-mail: mbillips@mbalawfirm.com - and - Dennis Egan, Esq. The Popham Law Firm, P.C. 323 West 8th St.-Ste. 200 Kansas City, MO 64105-1679 Phone: 816-221-2288 x219 Fax: 816-221-3999 E-mail: cmolteni@pophamlaw.com Representing the defendants are: Thomas A. McCarthy, Esq. Christine F. Miller, Esq. James F. Monafo, Esq. Tamara M. Spicer, Esq. Harry B. Wilson, Jr. Husch & Eppenberger, LLC- St Louis 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105-3441 Phone: 314-480-1500 Fax: 314-480-1505 E-mail: thomas.mccarthy@husch.com or chris.miller@husch.com or jim.monafo@husch.com or tamara.spicer@husch.com or harry.wilson@husch.com - and - David A. Schatz, Esq. John J. Yates, Esq. Husch & Eppenberger, LLC - Kansas City 1200 Main Street, Suite 2300 Kansas City, MO 64105 Phone: 816-421-4800 Fax: 816-421-0596 E-mail: david.schatz@husch.com or jack.yates@husch.com VERIZON WIRELESS: Settles Suit Over Cellphone Call Tax for $30M ---------------------------------------------------------------- Verizon Wireless agreed to pay two years of back taxes plus lawyers' fees, worth about $30 million in total, to settle a suit filed by a group of Missouri municipalities trying to charge cellphone companies a tax traditionally levied on telephone companies, The Wall Street Journal reports. The lawsuit was filed by 23 municipalities against six large cellphone providers in 2001. The Missouri municipalities say that landline calls and cellphone calls are essentially the same and must therefore pay the same business license taxes. So far, Verizon’s settlement was the first. AT&T Inc., Sprint-Nextel Corp., T-Mobile USA Inc., U.S. Cellular Corp. and Alltel Corp. Wireless carriers remain defendants in the suit. Verizon’s settlement has already received preliminary approval by a St. Louis County judge. Notice of the settlement will go out to all cities by Sept. 19, and the cities will have until Nov. 18 to submit claims. The court is set to hold a final approval hearing in mid-December. Of the $30 million in settlement, $12.5 million has accumulated in the escrow account. In exchange, Verizon will avoid paying a further eight years' worth of back taxes the local governments had sought. The carrier also agreed to tax rates ranging from between less than 1% to 11% of their customers' bills. The carrier passes these fees on to customers as surcharges on their bills. On Sept. 12, St. Louis County Circuit Court Judge Bernhardt Drumm Jr. is to determine if the case deserves class-action status. If it does, it would automatically include more than 200 other municipalities. New Securities Fraud Cases NORTHWEST BIOTHERAPEUTICS: Bernard Gross Files Securities Suit -------------------------------------------------------------- Law Offices Bernard M. Gross, P.C. filed a class action in the U.S. District Court for the Western District of Washington on behalf of purchasers of the securities of Northwest Biotherapeutics, Inc. between July 9, 2007 and July 16, 2007, inclusive, seeking to pursue remedies under the Securities Act of 1934. The complaint charges NWBO and Dr. Alton Boynton with violations of Sections 10(b) and 20(a) of the Exchange Act, by issuing a materially false and misleading statement. Specifically, on July 9, 2007, the Company issued a press release entitled "World's First Therapeutic Vaccine for Brain Cancer Commercially Available to patients in Switzerland." Defendants announced that they received an Authorization for Use from the Swiss Authorities for the Company's lead drug product which treats brain cancer. As a result of this announcement, the price of NWBO stock shot up from $2 to $7. One week later, on July 16, 2007, NWBO issued another press release explaining that the authorization it received was really just for import/export purposes, and was conditional even for those limited purposes. Additionally, in that press release, the Company stated that the Swiss government had not yet reviewed DCVax for safety or efficacy. As a result of investors learning the truth, that the Swiss government had not approved DCVax-Brain for marketing, NWBO's stock dropped to below $3 per share. Plaintiff seeks to recover damages on behalf of all those who purchased the securities of NWBO between July 9, 2007 and July 16, 2007. Interested parties may move the court no later than October 12, 2007 for lead plaintiff appointment. For more information, contact: Susan R. Gross, Esq. Deborah R. Gross, Esq. Law Offices Bernard M. Gross, P.C. 100 Penn Sq. East, Suite 450 Philadelphia, PA 19103 Phone: 866-561-3600 or 215-561-3600 E-mail: susang@bernardmgross.com or debbie@bernardmgross.com Website: http://www.bernardmgross.com ********* A list of Meetings, Conferences and Seminars appears in each Wednesday's edition of the Class Action Reporter. Submissions via e-mail to carconf@beard.com are encouraged. Each Friday's edition of the CAR includes a section featuring news on asbestos-related litigation and profiles of target asbestos defendants that, according to independent researches, collectively face billions of dollars in asbestos-related liabilities. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Glenn Ruel Senorin, Ma. Cristina Canson, and Janice Mendoza, 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 * * *