/raid1/www/Hosts/bankrupt/CAR_Public/070913.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, September 13, 2007, Vol. 9, No. 182
Headlines
AMGEN INC: Faces Securities Fraud Lawsuits in California
APACHE CORP: La. Court Dismisses Hurricane Katrina Litigation
BANK OF NEW YORK: Sued Over Collapse of Sentinel Management
BARR PHARMACEUTICALS: Wis. Court Affirms Revival of Cipro Suit
BARR PHARMACEUTICALS: Court Denies Tamoxifen Writ of Certiorari
BARR PHARMACEUTICALS: Settles Suit by Indirect Ovcon-35 Buyers
BERKO ELECTRIC: Recalls Toe-Space Heaters Due to Fire Hazard
BLUEGREEN CORP: Continues to Face Suit Over LeisurePath Ad
BROOKS AUTOMATION: Awaits Ruling on Bid to Junk Securities Suit
COUNTRYWIDE FINANCIAL: Employees Launch 401(k) Lawsuit in Calif.
CROCUS INVESTMENT: Winnipeg Court to Hear Investors' Suit Jan. 7
CV TECHNOLOGIES: Served with $110M Securities Suit in Canada
D-SCAN INC: Recalls Bunk Beds with Inadequate Slat Support
FAIRPOINT COMMS: Ruling on Motion to Nix Securities Suit Pending
FRIEDMAN BILLINGS: Still Faces Consolidated Securities Suit
GATEWAY INC: Shareholders Sue in Del. to Block Sale to Acer
HORNBECK OFFSHORE: La. Court Orders Dismissal of Securities Suit
ISSUER PLAINTIFF IPO LITIGATION: Reinstated; Back to N.Y. Court
LIBERTY NATIONAL: Appeals Ruling in Ala. Cancer Policies Lawsuit
MASSEY ENERGY: W. Va. Lawsuit Alleges Environmental Laws Breach
NAMYANG: Arbitration Opened in Suit by Apartment Dwellers
NETTOCOLLECTION LLC: Recalls Cribs to Replace Side Rails
OIL COMPANIES: Accused of Defrauding Customers in Guam Lawsuit
SEONU: S. Korean Sash Firm Ordered to Compensate Apt. Residents
SEPRACOR INC: $52M Mass. Securities Fraud Suits Settlement OK’d
UNIVERSAL HEALTH: Still Faces Labor Law Violations Suit in Cal.
UNITED AMERICAN: Faces Tex. Litigation Over UA Partners Program
VALUECLICK: Cal. Court Junks Dismissal Motion in Adware Lawsuit
New Securities Fraud Cases
RADIAN GROUP: Schiffrin Barroway Files Pa. Securities Fraud Suit
TARRAGON CORP: Coughlin Stoia Files N.Y. Securities Fraud Suit
*********
AMGEN INC: Faces Securities Fraud Lawsuits in California
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Amgen, Inc. is facing securities fraud class actions filed in the U.S.
District Court for the Central District.
On May 21, 2007 and June 18, 2007, securities class actions were filed
against Amgen Inc., Kevin W. Sharer, Willard H. Dere, Richard D. Nanula,
Dennis M. Fenton, Roger M. Perlmutter, Brian M. McNamee, George J. Morrow,
Edward V. Fritzky, Gilbert S. Omenn and Franklin P. Johnson, Jr., in the U.S.
District Court for the Central District of California.
The suits are:
-- “Rosenfield v. Amgen Inc. et. al.,” and
-- “Public Employees’ Retirement Association of Colorado
v. Amgen Inc., et. al.”
The complaints allege that Amgen and the Individual Defendants made false
statements that resulted in a fraudulent scheme and course of business
operated as a fraud or deceit on purchasers of Amgen publicly traded
securities in that:
-- they temporarily deceived the investing public
regarding Amgen’s prospects and business;
-- they artificially inflated the prices of Amgen’s
publicly traded securities; and
-- they caused plaintiffs and other members of the class
to purchase Amgen publicly traded securities at
inflated prices.
The complaint also makes off-label marketing allegations and allegations as
to a failure to disclose negative results of clinical studies. Amgen has not
been served with the complaint.
Plaintiffs seek class certification, compensatory damages, legal fees and
other relief deemed proper. All of the individual securities class actions
were filed with the California court.
California-based Amgen, Inc. -- http://www.amgen.com/-- is a global
biotechnology company. It discovers, develops, manufactures and markets
human therapeutics based on advances in cellular and molecular biology. It
markets human therapeutic products in the areas of supportive cancer care,
nephrology, inflammation and oncology.
APACHE CORP: La. Court Dismisses Hurricane Katrina Litigation
-------------------------------------------------------------
The U.S. District Court for the Eastern District of Louisiana dismissed the
purported class action, “Barasich, et al. v. Columbia Gulf Transmission Co.,
et al, No. 05-4161,” which names Apache Corp. as defendant.
In the suit, the plaintiffs’ claim that defendants were negligent by
constructing canals and conducting oil and gas operations, which plaintiffs
contend is the sole and/or almost the sole cause of the alleged destruction
of the marshes in South Louisiana, which plaintiffs blame for all and/or
substantially all loss of life and destruction of property which was incurred
from Hurricane Katrina.
The court recently entered an order of dismissal. The judgment is now final
and the case has been dismissed, 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 suit is "Barasich et al. v. Columbia Gulf Transmission Company et al.,
Case No. 2:05-cv-04161-SSV-DEK," filed in the U.S. District Court for the
Eastern District of Louisiana under Judge Sarah S. Vance.
Representing the plaintiffs is:
Conrad S. P. Williams, III, Esq.
St. Martin & Williams
4084 Highway 311, P. O. Box 2017
Houma, LA 70361-2017
Phone: 985-876-3891
E-mail: duke525@msn.com
BANK OF NEW YORK: Sued Over Collapse of Sentinel Management
-----------------------------------------------------------
Bank of New York Mellon Corp. is facing a class action filed by a client of
bankrupt asset management firm Sentinel Management Group Inc., CNNMoney.com
reports.
Henry Shatkin, a Chicago resident who had an account at Sentinel, filed the
suit that seeks class-action status in federal court in Manhattan. He
accuses Sentinel and Bank of New York Melon of conniving to make “big bets”
in the credit markets using plaintiff’s and class’ assets as securities
without the knowledge and content of the class members.
Sentinel allegedly used $460 million in client assets as security for its
line of credit at Bank of New York Mellon, according to the lawsuit.
Sentinel sought Chapter 11 bankruptcy protection last month as a result of
credit and bond market problems. It is facing fraud charges by the U.S.
Securities and Exchange Commission.
The company hasn’t seen the lawsuit, according to a Bank of New York Mellon
spokesman.
BARR PHARMACEUTICALS: Wis. Court Affirms Revival of Cipro Suit
--------------------------------------------------------------
The Wisconsin Supreme Court reaffirmed the reinstatement of a purported class
action against Barr Pharmaceuticals, Inc. in relation to Ciprofloxacin
(Cipro).
Initially, the company was named as a co-defendant along with Bayer Corp.,
The Rugby Group, Inc. and others in approximately 38 class-action complaints
filed in state and federal courts by direct and indirect purchasers of Cipro
from 1997 to the present.
The complaints allege that the 1997 Bayer-Barr patent litigation settlement
agreement was anti-competitive and violated federal antitrust laws and/or
state antitrust and consumer protection laws.
As previously disclosed, these lawsuits include one pending in Wisconsin. On
Sept. 19, 2003, the Circuit Court for the County of Milwaukee dismissed the
Wisconsin state class action for failure to state a claim for relief under
Wisconsin state law.
The Court of Appeals reinstated the complaint on May 9, 2006 and the
Wisconsin Supreme Court affirmed that decision on July 13, 2007, while not
reaching the underlying merits of plaintiffs’ case.
The matter will now return to the trial court for further proceedings; no
schedule or trial date has been set, 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.
Barr Pharmaceuticals, Inc. -- http://www.barrlabs.com/-- is primarily a
holding company. The Company's subsidiaries, Barr Laboratories, Inc. and
Duramed Pharmaceuticals, Inc., develop, manufacture and market generic and
proprietary pharmaceutical products, respectively. It operates in two
business segments. In the generic pharmaceutical segment, it manufactures
and distributes approximately 150 different dosage forms and strengths of
approximately 75 different generic pharmaceutical products, including 22 oral
contraceptive products that represent the largest category of its generic
product portfolio.
BARR PHARMACEUTICALS: Court Denies Tamoxifen Writ of Certiorari
---------------------------------------------------------------
The U.S. Supreme Court denied a petition for writ of certiorari in relation
to a dismissal of several antitrust complaints over an agreement between a
unit of AstraZeneca PLC and a unit of Barr Pharmaceuticals Inc. to delay
marketing of a generic tamoxifen drug.
Approximately 33 consumer or third-party payor class-action complaints were
filed in state and federal courts against:
-- Zeneca, Inc.,
-- AstraZeneca Pharmaceuticals L.P., and
-- Barr Pharmaceuticals, Inc.
The suits are generally alleging, among other things, that the 1993
settlement of patent litigation between Zeneca and the company violated the
antitrust laws, insulated Zeneca and the company from generic competition and
enabled Zeneca and the company to charge artificially inflated prices for
tamoxifen citrate.
A prior investigation of this agreement by the U.S. Department of Justice was
closed without further action.
On May 19, 2003, the U.S. District Court dismissed the complaints for failure
to state a viable antitrust claim.
On Nov. 2, 2005, the U.S. Court of Appeals for the Second Circuit affirmed
the District Court’s order dismissing the cases for failure to state a viable
antitrust claim.
On Nov. 30, 2005, plaintiffs petitioned the U.S. Court of Appeals for the
Second Circuit for a rehearing en banc. On Sept. 14, 2006, the Court of
Appeals denied plaintiffs’ petition for rehearing en banc.
On Dec. 13, 2006, plaintiffs filed a petition for writ of certiorari with the
U.S. Supreme Court. On June 25, 2007, the U.S. Supreme Court denied
plaintiffs’ petition for writ of certiorari, definitively ending the
litigation.
Barr Pharmaceuticals, Inc. -- http://www.barrlabs.com/-- is primarily a
holding company. The Company's subsidiaries, Barr Laboratories, Inc. and
Duramed Pharmaceuticals, Inc., develop, manufacture and market generic and
proprietary pharmaceutical products, respectively. It operates in two
business segments. In the generic pharmaceutical segment, it manufactures
and distributes approximately 150 different dosage forms and strengths of
approximately 75 different generic pharmaceutical products, including 22 oral
contraceptive products that represent the largest category of its generic
product portfolio.
BARR PHARMACEUTICALS: Settles Suit by Indirect Ovcon-35 Buyers
--------------------------------------------------------------
Barr Pharmaceuticals, Inc. settled some antitrust lawsuits filed with regards
to its Ovcon-35 drug, 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.
To date, the company has been named as a co-defendant with Warner Chilcott
Holdings, Co. III, Ltd., and others in complaints filed in federal courts by
the Federal Trade Commission, various state Attorneys General and nine
private class action plaintiffs claiming to be direct and indirect purchasers
of Ovcon-35.
These actions allege, among other things, that a March 24, 2004 agreement
between the company and Warner Chilcott, then known as Galen Holdings PLC,
constitutes an unfair method of competition, is anticompetitive and restrains
trade in the market for Ovcon-35 and its generic equivalents.
These cases, the first of which was filed by the FTC on or about Dec. 2,
2005, allege, among other things, that a March 24, 2004 agreement between the
company and Warner Chilcott constitutes an unfair method of competition; is
anticompetitive; and restrains trade in the market for Ovcon-35 and its
generic equivalents.
In the actions brought on behalf of the indirect purchasers, the Company has
reached an agreement in principle with the class representatives to settle
plaintiffs’ claims.
On June 27, 2007 and 28, 2007, the court entered an order conditionally
certifying a settlement class and preliminarily approving the parties’
settlement. The Court has scheduled a fairness hearing for Nov. 6, 2007.
The settlement is conditioned on the number of plaintiffs who exercise their
right to opt-out of the settlement class not exceeding the threshold
established by the terms of the settlement agreement.
Barr Pharmaceuticals, Inc. -- http://www.barrlabs.com/-- is primarily a
holding company. The Company's subsidiaries, Barr Laboratories, Inc. and
Duramed Pharmaceuticals, Inc., develop, manufacture and market generic and
proprietary pharmaceutical products, respectively. It operates in two
business segments. In the generic pharmaceutical segment, it manufactures
and distributes approximately 150 different dosage forms and strengths of
approximately 75 different generic pharmaceutical products, including 22 oral
contraceptive products that represent the largest category of its generic
product portfolio.
BERKO ELECTRIC: Recalls Toe-Space Heaters Due to Fire Hazard
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Berko Electric, of Peru, Ind., now known as Marley Engineered Products, of
Bennettsville, S.C., in cooperation with the U.S. Consumer Product Safety
Commission, is recalling about 84,000 Toe-Space Electric Heaters.
The company said if the fan stops working and the heater continues to run,
the unit can overheat, posing a fire hazard.
Marley has received 29 reports of fires resulting in property damage. No
injuries have been reported.
The recall involves electric, toe-space heaters typically installed in
kitchens and bathrooms at floor level in the recessed space under cabinets.
The recall includes Berko Electric catalog numbers TS, TS-1 and TS-1A and
Emerson Electric "Chromalox Comfort Heating" and "Environmental Products"
catalog number KSH2000. The heater is controlled by a wall thermostat or a
thermostat mounted on the front of the heater. The heater has a removable,
black metal grille that measures 23 1/2 -inches wide and 3 1/2 -inches tall
with five sets of openings, each with seven horizontal louvers.
These recalled toe-space electric heaters were manufactured in the United
States and are being sold by Berko Electric wholesale distributors nationwide
from 1972 through February 1985 and Emerson Electric wholesale distributors
from 1980 through February 1985 for between $70 and $170.
Picture of recalled toe-space electric heaters:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07298.jpg
Consumers are advised to immediately turn off the heater at the thermostat
and, if possible, at the home’s circuit breaker or fuse. Consumers should
contact Marley to determine if they have a recalled heater and for further
instructions.
For additional information, call Marley at (800) 642-4328 between 8:00 a.m.
and 4:30 p.m. ET Monday through Friday, or visit the firm’s Web site:
http://www.berkomep.com/ts.htm
BLUEGREEN CORP: Continues to Face Suit Over LeisurePath Ad
-----------------------------------------------------------
A purported class action filed by Michelle Alamo, Ernest Alamo, Toniann Quinn
and Terrance Quinn (Docket No. L-6716-05) in the Superior Court of New
Jersey, Bergen County continues against Bluegreen Corp. The suit was also
filed against Vacation Station, LLC, LeisurePath Vacation Club, LeisurePath,
Inc.
Plaintiffs filed a purported class action on Sept. 23, 2005. The complaint
raises allegations concerning the marketing of the LeisurePath Travel
Services Network product to the public, and, in particular, New Jersey
residents by Vacation Station, LLC, an independent distributor of travel
products.
Vacation Station, LLC purchased LeisurePath membership kits from
LeisurePath, Inc.'s Master Distributor, Mini Vacations, Inc. and then sold
the memberships to consumers.
The initial Plaintiffs (none of whom actually bought the Leisure Path
product) assert claims for violations of the New Jersey Consumer Fraud Act,
fraud, nuisance, negligence and for equitable relief all stemming from the
sale and marketing by Vacation Station, LLC of the LeisurePath Travel
Services Network.
Plaintiffs are seeking the gifts and prizes they were allegedly told by
Vacation Station, LLC that they won as part of the sales promotion, and that
they be given the opportunity to rescind their agreement with LeisurePath
along with a full refund.
Plaintiffs further seek punitive damages, compensatory damages, attorney's
fees and treble damages of unspecified amounts.
In February 2007, the Plaintiffs amended the complaint to add two additional
Plaintiffs/proposed class representatives, Bruce Doxey and Karen Smith-Doxey.
Unlike the initial Plaintiffs who were first contacted by Vacation Station,
LLC some seven months after LeisurePath terminated its relationship with
Vacation Station, LLC and did not purchase LeisurePath products, the Doxeys
purchased a participation in the LeisurePath Travel Services Network.
On March 16, 2007, the Court denied a motion filed by Leisure Path and
Bluegreen Corp. to dismiss the Doxeys as parties to the lawsuit. Vacation
Station, LLC and its owner have each filed for bankruptcy protection.
The company did not report any development in the case at its
Aug. 9, 2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2007.
Bluegreen Corp. -- http://www.bluegreencorp.com/-- is a provider of vacation
and residential lifestyle choices through its resorts and residential
community businesses. The Company is organized into two divisions: Bluegreen
Resorts and Bluegreen Communities. Bluegreen Resorts acquires, develops and
markets vacation ownership interests (VOIs) in resorts generally located in
drive-to vacation destinations. Bluegreen Corp. also generates interest
income through its financing of individual purchasers of VOIs, and to a
nominal extent, homesites sold by Bluegreen Communities.
BROOKS AUTOMATION: Awaits Ruling on Bid to Junk Securities Suit
---------------------------------------------------------------
The U.S. District Court for the District of Massachusetts has yet to rule on
a motion seeking the dismissal of a Consolidated Amended Complaint in the
securities class action, “Charles E. G. Leech Sr. v. Brooks Automation, Inc.,
et al.”
Leech Class Action
On June 19, 2006, a putative class action, "Charles E. G. Leech
Sr. v. Brooks Automation, Inc., et al." was filed in the U.S. District Court
for the District of Massachusetts. The defendants in this action are:
-- the company;
-- former chairman and chief executive Robert Therrien;
-- Ellen Richstone, former chief financial officer;
-- Roger D. Emerick, former director;
-- Amin D. Khoury, former director;
-- Robert W. Woodbury, Jr. chief financial officer; and
-- Edward C. Grady, director, president and chief
executive.
The complaint alleges violations of Section 10(b) of the U.S.
Exchange Act and Rule 10b-5 against the company and the individual
defendants; Section 20(a) of the Exchange Act against the individual
defendants; Section 11 of the Securities Act against the company and Messrs.
Grady, Woodbury, Emerick, Khoury and Therrien; Section 12 of the Securities
Act against the company and Messrs. Grady, Woodbury, Emerick, Khoury and
Therrien; and Section 15 of the Securities Act against Messrs. Grady,
Woodbury, Emerick, Khoury and Therrien.
The complaint seeks, inter alia, damages, including interest, and plaintiff's
costs.
Shaw Litigation
On July 19, 2006, a putative class action, "James R. Shaw v. Brooks
Automation, Inc. et al., No. 06-11239-RWZ," was filed in the U.S. District
Court for the District of Massachusetts.
The defendants in the case are the company, Mr. Therrien, Ms. Richstone, Mr.
Emerick, Mr. Khoury, Mr. Woodbury, and Mr. Grady. The company has not been
served with the complaint at the time the company prepared its report for the
fiscal year ended Sept.
30.
The complaint alleges violations of Section 10(b) of the Exchange Act and
Rule 10b-5 against all defendants and violations of Section 20(a) of the
Exchange Act against all individual defendants. It thus, seeks, inter alia,
damages, including interest, and plaintiff's costs.
On Dec. 13, 2006, the Court issued an order consolidating the Shaw action
with the Leech action described above and appointing a lead plaintiff and
lead counsel. The lead plaintiff has filed a Consolidated Amended
Complaint.
Motions to dismiss have been filed by all defendants in the case. In partial
response to defendants’ motions to dismiss, the lead plaintiff filed a motion
to amend the complaint to add a named plaintiff on May 10, 2007. Defendants
filed their opposition to the motion.
On June 26, 2007, the Court heard argument on defendants’ motions to dismiss
and lead plaintiff’s motion to amend the complaint.
The Court took the motions under advisement, 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 suit is “Leech v. Brooks Automation, Inc. et al., Case No. 1:06-cv-11068-
RWZ,” filed in the U.S. District Court for the District of Massachusetts
under Judge Rya W. Zobel.
Representing the plaintiff is:
Peter A. Pease, Esq.
Berman DeValerio Pease Tabacco Burt & Pucillo
One Liberty Square, 8th Floor
Boston, MA 02109
Phone: 617/542-8300
Fax: 617/542-1194
E-mail: ppease@bermanesq.com
Representing the defendants is:
Randall W. Bodner, Esq.
Ropes & Gray LLP
One International Place
Boston, MA 02110
Phone: 617-951-7000 x7776
Fax: 617-951-7050
E-mail: rbodner@ropesgray.com
COUNTRYWIDE FINANCIAL: Employees Launch 401(k) Lawsuit in Calif.
----------------------------------------------------------------
Countrywide Financial Corp. employees participating in the company's 401(k)
plan filed a class action in the U.S. District Court for the Central District
of California against the company, its chief executive and all those
responsible for overseeing the employees' retirement plan.
The suit claims the organization's illegal actions caused thousands of 401(k)
plan participants to lose millions of dollars during the recent stock
collapse. Plaintiffs seek to represent all Countrywide employees who lost
millions of dollars in the company-matched 401(k) plan after the mortgage
company's stock plummeted when the depths of the company's financial
situation became clear.
It alleges that while CEO Angelo Mozila and the insider-appointed benefits
committee members had a fiduciary responsibility to warn employees of the
company's precarious financial health, they intentionally concealed
information from plan participants.
Steve Berman, the attorney representing the plaintiffs, said the actions by
Countrywide's CEO and benefits committee members cost thousands of employees
millions of dollars. "Most of these employees weren't risk takers, rather
claims processors and line staff who go to work every morning, putting a
little away every month for retirement, or to finance a child's education,"
Mr. Berman noted. "With Countrywide's demise, they've seen their retirement
funds decimated."
Plaintiff Marc Cruz, like many Countrywide employees, deferred a portion of
his salary and invested in the company 401(k) savings plan, which Countrywide
augmented with a 50 percent match, up to six percent, paid entirely in
company stock during calendar years 2005 and 2006.
According to the complaint, Mr. Cruz and other employees relied on
information supplied by the company, its CEO and other plan fiduciaries in
making the decision to contribute to the plan, and according to the
complaint, the company, its CEO and the other fiduciaries misled him and
other employees.
The suit claims Countrywide CEO Angelo Mozila repeatedly certified financial
statements he knew were misleading in an attempt to cover the high-risk loans
his company was selling, all the while telling a different story to investors
and ignoring analyst recommendations to compile a reserve.
According to the complaint, Countrywide offers two components in their
employee 401(k) plan. The first is a participant contribution plan, where
employees can make voluntary pre-tax contributions out of their base pay. The
second aspect is a company match plan where Countrywide matches up to a pre-
determined percentage.
For the latter portion of the plan, from October 27, 2005 until August 9,
2007, Countrywide provided the match through company stock.
In the past month, Countrywide stock has plummeted. At the end of June, after
the company announced charges of $417 million and a loan-loss provision of
$292.2 million, Countrywide shares dropped more than 10 percent to $30 per
share, losing $1.87 billion in total market capitalization.
On August 16, 2007, after a shattering announcement that the company was
using all of an $11.5 billion credit line due, the company's stock dropped 30
percent to $15 per share. Between February of 2007 and August 16, 2007,
Countrywide's shares lost nearly three-quarters of their value.
The suit makes several claims of wrongdoing by Countrywide and retirement
plan administrators, including:
-- failure to prudently and loyally manage the plan's
assets,
-- failure to provide complete and accurate information to
participants and beneficiaries,
-- failure to monitor the compensation and benefit plan
committees and provide them with accurate information,
-- breach of duty to avoid conflicts of interest, and
-- co-fiduciary liability.
Under ERISA law a plan participant can bring a civil action on behalf of a
retirement plan against companies and individuals that breach any of the
duties outlined for a fiduciary.
According to the complaint Cruz is seeking compensation for money lost,
imposition of a constructive trust on any amount by which the defendants were
unjustly enriched and for the court to require defendants to appoint one or
more independent fiduciaries to participate in the management of the
Countrywide stock.
For more information, contact:
Steve Berman, Esq.
Hagens Berman Sobol Shapiro
Phone: (206) 623-7292
E-mail: Steve@hbsslaw.com
Website: http://www.hbsslaw.com.
- and -
Mark Firmani
Firmani + Associates Inc.
Phone: (206) 443-9357
E-mail: Mark@firmani.com
CROCUS INVESTMENT: Winnipeg Court to Hear Investors' Suit Jan. 7
----------------------------------------------------------------
A Winnipeg court has set a week-long certification hearing starting on Jan.
7, 2008 for a CAD200 million lawsuit filed on behalf of Crocus Investment
shareholders, CJOB reports.
Investors filed the suit in 2005 after the labor sponsored fund failed.
The suit alleges, among others, that the province "did not properly enforce
the Crocus Act," and that provincial officials "deliberately ignored multiple
warning signs regarding the management of the Crocus Fund" (Class Action
Reporter, Nov 22,
2006).
Lead plaintiffs, GrowthWorks Canadian Fund Ltd. and Bernie
Bellan, have proposed a $1 million settlement for the suit.
Defendants in the suit are:
- Crocus Investment;
- Manitoba Securities Commission;
- 17 individuals that include past senior officers and
members of the fund's board of directors; and
- Manitoba province.
Hearing for class certification is set this month (Class Action Reporter, May
25, 2007). A judge must certify the claim in order for the action to proceed
in court.
Lead attorney for the investors is:
David Klein, Esq.
David Klein, Klein Lyons
Suite 1100 - 1333 West Broadway
Vancouver, B.C. V6H 4C1
Phone: (604) 874-7171
CV TECHNOLOGIES: Served with $110M Securities Suit in Canada
------------------------------------------------------------
CV Technologies Inc. said it received statements of claim in two proposed
class actions in Ontario and Alberta alleging the firm's financial statements
were misleading, the Toronto Star reports.
CV Technologies had confirmed that on July 20, a class action was filed in
the Ontario Superior Court of Justice against the Company and certain
officers and directors, Gordon Tallman, Harry Buddle and Jacqueline Shan and
the Company's former auditor (Class Action Reporter, July 31, 2007.
The law firms of Siskinds LLP and Sutts Strosberg LLP jointly filed the $110
million class action against CV Technologies under Ontario's new investor
protection legislation, Part XXIII.1 of the Ontario Securities Act (Class
Action Reporter, July 24, 2007).
The suit is seeking, among other things, leave to proceed with a suit under
Ontario's investor protection legislation against CV Technologies, the
manufacturers of Cold F/X., CV's chief executive, two members of its board of
directors, and CV auditors, Grant Thornton LLP.
The company said leave of the Ontario and Alberta courts has not been granted
for the proposed class actions to proceed as secondary market securities
class actions and they have not been certified as class actions in either
province.
The claim is on behalf of all persons who acquired CV securities between
December 11, 2006 and March 23, 2007.
The proposed class action arises out of CV's revenue-recognition practices.
The notice of action alleges that the defendants negligently or recklessly
overstated CV's revenues for fiscal 2006 and the first quarter of 2007 and
thereby artificially inflated the trading price of CV securities.
The plaintiffs claim $110 million in damages on behalf of the Class Members,
including themselves.
The class action on the Net: http://www.coldfxclassaction.com/.
For more information, contact:
Warren Michaels
Media Contact: CV Technologies Inc.
Vice President, Media Relations
Phone: (780) 432-0022
Email: warren.michaels@cvtechnologies.com
Website: http://www.cvtechnologies.com
- and -
Jane Tulloch
Investor Contact: CV Technologies Inc.
Director, Investor Relations
Phone: (780) 577-3724
Email: jane.tulloch@cvtechnologies.com
Website: http://www.coldfx.com
D-SCAN INC: Recalls Bunk Beds with Inadequate Slat Support
----------------------------------------------------------
D-Scan Inc., of South Boston, Va., in cooperation with the U.S. Consumer
Product Safety Commission, is recalling about 500 Jubee bunk beds.
The company said the recalled bunk beds do not comply with federal safety
standards and have wooden side slat supports that can separate from the bed
frame causing the upper bunk to collapse.
The firm is aware of seven incidents in which the upper bunk collapsed after
the side slat supports separated from the bunk bed’s frame. No injuries have
been reported.
The twin bunk beds are designed for children and were sold in a kit to be
assembled by consumers. Only model number 82008 is included in this recall.
The bunk beds are made of maple wood with a four-step ladder attached to the
side and three pullout drawers under the bottom bunk. These bunk beds have no
markings or labeling.
The recalled bunk beds were manufactured in Denmark, and are being sold at
specialty furniture stores nationwide and on various Web sites from December
2004 through April 2006 for about $600.
Picture of the recalled bunk beds:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07574.jpg
Consumers who have not already received and installed a free repair kit for
the side slat supports are advised to immediately stop using the bunk beds
until repairs can be made. Contact the firm to receive a free repair kit that
can easily be installed at home. Retailers have contacted some consumers who
purchased the bunk beds directly.
For more information, contact d-Scan Inc. at (800) 932-2006 between 8 a.m.
and 5 p.m. ET Monday through Friday, or visit the firm’s Web site:
http://www.tvilum-scanbirk.com
FAIRPOINT COMMS: Ruling on Motion to Nix Securities Suit Pending
----------------------------------------------------------------
The U.S. District Court for the Western District of North Carolina has yet to
rule on either motion to remand or to dismiss the stockholder class
action, "Lowinger v. Johnson, et al., Case No. 3:05-cv-00316," which names
Fairpoint Communications, Inc. as defendant.
On June 6, 2005, a purported class action complaint was filed in the General
Court of Justice, Superior Court Division, of the State of North Carolina by
Robert Lowinger on behalf of himself and all other similarly situated persons
against the company, the company's chairman and chief executive officer,
certain of the company's current and former directors and certain of the
company's stockholders.
The complaint alleged violations of Sections 11 and 12(a)(2) and liability
under Section 15 of the U.S. Securities Act. It also alleged that the
company's registration statement on Form S-1 (which was declared effective by
the U.S. Securities and Exchange Commission on Feb. 3, 2005) and the related
prospectus dated Feb. 3, 2005, each relating to the company's initial public
offering of common stock, contained certain material misstatements and
omitted certain material information necessary to be included relating to the
company's broadband products and access line trends.
The plaintiff, who has been a plaintiff in several other securities cases,
sought rescission rights and unspecified damages on behalf of a purported
class of purchasers of the common stock "issued pursuant and/or traceable to
the company's IPO during the period from Feb. 3, 2005 through March 21, 2005."
The company removed the action to the U.S. District Court for the Western
District of North Carolina. The plaintiff filed a motion to remand the
action to the North Carolina State Court, which was denied by the Federal
Magistrate. The plaintiff objected to and appealed the Magistrate's decision
to the district court judge.
The company contested the appeal and filed a motion to dismiss the action.
The Magistrate, on Feb. 9, 2006, issued a Memorandum and a Recommendation to
the District Court Judge that the Motion to Dismiss be granted and that the
complaint be dismissed with prejudice.
The plaintiff has filed a Notice of Objection to the Magistrate's
Recommendation. Both the appeal of denial of the Motion to Remand and the
Motion to Dismiss are pending before the District Court Judge.
The company reported no development in this matter in its Aug. 9, 2007 Form
10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2007.
The suit is "Lowinger v. Johnson, et al., Case No. 3:05-cv-00316," filed in
the U.S. District Court for the Western District of North Carolina under
Judge Robert J. Conrad, Jr., with referral to Judge Carl Horn, III.
Representing the plaintiffs are:
Jeffrey S. Abraham, Esq.
Lawrence D. Levit, Esq.
Abraham, Fruchter & Twersky, LLP
One Penn Plaza, Suite 2805
New York, NY 10119
Phone: 212-279-5050
Fax: 212-279-3655
- and -
John Thurston O'Neal, Esq.
O'Neal Law Office
7 Battleground Court, Suite 212
Greensboro, NC 27408
Phone: 336-510-7904
Fax: 336-510-7965
E-mail: oneallaw@triadbiz.rr.com
Representing the defendants are:
Brian S. Appel, Esq.
Charles E. Davidow, Esq.
Wilmer Cutler Pickering Hale and Dorr, LLP
2445 M. St., NW
Washington, DC 20037
Phone: 202-663-6000
- and -
James Patrick McLoughlin, Jr., Esq.
Moore & Van Allen
Suite 4700, 100 North Tryon Street
Charlotte, NC 28202
Phone: 704-331-1054
Fax: 704-378-2054
E-mail: jimmcloughlin@mvalaw.com
FRIEDMAN BILLINGS: Still Faces Consolidated Securities Suit
-----------------------------------------------------------
Friedman Billings Ramsey Group, Inc. continues to face a consolidated
securities fraud class action in the U.S. District Court for the Southern
District of New York.
Initially, the company and certain of its current and former senior officers
and directors were named in a series of putative securities class actions
filed in the second quarter of 2005.
The complaints in these actions are brought under various sections of the
U.S. Securities Exchange Act of 1934, as amended, and allege misstatements
and omissions concerning the investigation conducted by the staff of the
Division of Enforcement of the Securities and Exchange Commission and the
staff of the Department of Market Regulation of National Association of
Securities Dealers, concerning insider trading and other charges related to
the company's trading in a company account and the offering of a private
investment in public equity on behalf of CompuDyne, Inc. in October 2001.
The suits also allege misstatements and omissions with regard to the
company's expected earnings, including the potential adverse impact on the
company of changes in interest rates.
These cases have been consolidated under, "In re FBR Inc. Securities
Litigation." A consolidated amended complaint has been filed asserting
claims under the U.S. Securities Exchange Act of 1934.
The company did not report any development in the case at its
Aug. 9, 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: FBR, Inc. Securities Litigation, Case No. 05-CV-04617,"
filed in the U.S. District Court for the Southern District of New York under
Judge Richard J. Holwell.
Representing the plaintiffs are:
Mario Alba, Jr., Esq.
Lerach, Coughlin, Stoia, Geller, Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
E-mail: malba@lerachlaw.com
Eric James Belfi, Esq.
Labaton Rudoff & Sucharow, LLP
100 Park Avenue, 12th Floor
New York, NY 10017
Phone: (212) 907-0790
Fax: (212) 883-7579
E-mail: ebelfi@labaton.com
- and -
Nancy Kaboolian, Esq.
Abbey Spanier Rodd Abrams & Paradis, LLP
212 East 39th Street
New York, NY 10016
Phone: (212) 889-3700
Fax: (212) 684-5191
E-mail: nkaboolian@abbeygardy.com
Representing the defendants is:
George Anthony, Esq.
Borden Williams & Connolly, LLP
725 12th Street, NW
Washington, DC 20005
Phone: (202) 434-5563
Fax: (202) 434-5029
E-mail: gborden@wc.com
GATEWAY INC: Shareholders Sue in Del. to Block Sale to Acer
------------------------------------------------------------
Shareholders of Gateway Inc. have filed a class-action complaint in the Court
of Chancery of the State of Delaware in and for New Castle County challenging
Acer Inc.’s acquisition of the company, the CourtHouse News Service reports.
Shareholders also filed a suit against Galaxy Acquisition Corp. and 10
directors of Gateway and members of its board for the Sept. 4 tender offer of
$1.90 a share, scheduled to close on Oct. 1.
Plaintiffs allege the sale of Gateway to Acer contemplated by the merger is
unfair and inequitable to the Gateway public stockholders and constitutes a
breach of the fiduciary duties of the directors in the sale of Gateway.
Plaintiffs bring this action, pursuant to rule 23 of the Rules of the Court
of Chancery, on behalf of all Gateway shareholders or their successors in
interest, who have been or will adversely affected by the conduct of
defendants alleged.
They want the court to rule on:
(a) whether the Gateway directors have breached their
fiduciary duties to plaintiff and the class in
connection with the merger and related transactions;
(b) whether the merger and transactions contemplated are
unfairly coercive and constitute an unfair and
inequitable subversion of stockholders rights and
abdication of the Gateway Directors' fiduciary duties
in the sale of the company;
(c) whether the purchase and sale provisions are invalid;
(d) whether the plaintiff and other public stockholders
have a fully informed voluntary choice whether to
approve the sale of seek appraisal; and
(e) whether plaintiff and the other members of the class
will be damaged irreparably by defendants' failure to
take action designed to obtain the best value for the
public stockholders' interest in Gateway.
Plaintiffs pray for judgment as follows:
-- determining that this action is a proper class action,
and that plaintiff is a proper class representative and
appointing plaintiff's counsel as class counsel;
-- enjoining defendants, temporarily and permanently, from
taking any steps necessary to accomplish or implement
the acquisition of Gateway including the tender offer,
pending a proper unimpaired sale process;
-- declaring that the proposed merger is in breach of the
fiduciary duties of the defendants and, therefore, any
agreement arising therefrom is unlawful and
unenforceable;
-- declaring the purchase and sale provisions invalid and
unenforceable against the company;
-- to the extent, if any, that the merger complained of is
consummated prior to the entry of final judgment,
rescinding the transaction or awarding damages to the
class;
-- requiring defendants to fully disclose all material
information to the Gateway stockholders;
-- awarding plaintiff and the class pre- and post- judgment
interest;
-- enjoining, temporarily and permanently, any material
transactions or changes to Gateway's business and assets
unless and until a proper process is conducted to
evaluate Gateway's strategic alternatives;
-- awarding to plaintiff the costs and disbursements of
this action, including a reasonable allowance for the
fees and expenses of plaintiff's attorneys and experts;
and
-- granting such other and further relief as the court
deems appropriate.
The suit is "Bennett D. Cin et al. v. Janet M. Clarke et al., Case No. 3216,"
filed in the Court of Chancery of the State of Delaware in and for New Castle
County.
Representing plaintiffs are:
Pamela S. Tikellis
Robert J. Kriner, jr.
A. Zachary Naylor
Scott M. Tucker
Chimicles & Tikellis LLP
One Rodney Square
P.O. Box 1035
Wilmington, DE 19899
Phone: (302) 656-2500
Fax: (302) 656-9053
- and -
Clinton A. Krislov
Jefferey M. Salas
Krislov & Associates, Ltd.
20 North Wacker Drive, Suite 1350
Chicago, IL 60606
Phone: (312) 606-0500
Fax: (312) 606-0207
HORNBECK OFFSHORE: La. Court Orders Dismissal of Securities Suit
----------------------------------------------------------------
The U.S. District Court for the Eastern District of Louisiana has ordered a
dismissal of a class action previously filed against Hornbeck Offshore
Services, Inc. and certain of its senior executives, relating to disclosures
under the securities laws.
Lead plaintiffs voluntarily dismissed the suit without any payment by the
company or its insurers.
Todd Hornbeck, the Company's Chairman, President and CEO, commented, "From
the outset, we firmly believed that the allegations against the Company and
our executive team were without any factual or legal merit. For this reason,
the Company decided to offer access to documents and key personnel not
otherwise available to the plaintiffs so that they could fully reconsider
their allegations.
“We are pleased that after eight months of conducting their independent
investigation, including review of the information that we voluntarily
provided them, the plaintiffs concluded that it was in their best interest to
dismiss their complaint.
“Although it is unfortunate that this lawsuit was ever filed, the plaintiffs'
decision to 'walk away' before the Company even filed a response or motion
for summary judgment, we believe, completely vindicates our position that the
Company and its management team did not violate any securities laws."
Louisiana Cases
Hornbeck Offshore Services, Inc. faces several purported securities fraud
class actions that were filed in the U.S. District Court for the Eastern
District of Louisiana.
On Jan. 18, 2007, Anthony Caiafa filed an action in the U.S. District Court
for the Eastern District of Louisiana against Hornbeck Offshore Services,
Inc. and Todd M. Hornbeck, its Chairman of the Board, President, and Chief
Executive Officer.
On Jan. 24, 2007, Thomas Schedler filed a similar action in the U.S. District
Court for the Eastern District of Louisiana against Hornbeck Offshore
Services, Inc., Todd M. Hornbeck and James O. Harp, Jr., its Executive Vice
President and Chief Financial Officer.
On Jan. 26, 2007, Michael D. Fontenelle filed another similar action in the
U.S. District Court for the Eastern District of Louisiana against Hornbeck
Offshore Services, Inc. and Todd M. Hornbeck.
On Feb. 8, 2007, Oakmont Capital Management, LLC filed a similar action in
the U.S. District Court for the Eastern District of Louisiana against
Hornbeck Offshore Services, Inc., Todd M. Hornbeck, James O. Harp, Jr. and
Carl G. Annessa, its Executive Vice President and Chief Operating Officer.
These lawsuits purport to be filed as a class action on behalf of the
plaintiffs and other similarly situated purchasers of our securities from
Nov. 1, 2006 to Jan. 10, 2007.
In their complaints, the plaintiffs allege that Hornbeck Offshore Services,
Inc. and the other defendants violated Section 10(b) of the U.S. Securities
Exchange Act of 1934, as amended, and Rule 10b-5 thereunder, by allegedly
making false and misleading statements, and/or by omitting to state material
facts necessary to make the statements not misleading, in connection with its
forward earnings guidance and its Jan. 10, 2007 announcement of preliminary
financial results for the fourth quarter of 2006 that fell short of such
guidance and indicated a reduction in 2007 guidance.
ISSUER PLAINTIFF IPO LITIGATION: Reinstated; Back to N.Y. Court
----------------------------------------------------------------
The 2nd Circuit Court of Appeals vacated a district court's decision last
year denying class-action status to a lawsuit brought on behalf of initial
public offerings issuers against major IPO underwriters, reports say.
The appeals court remanded the case to the U.S. District Court for the
Southern District of New York for further proceedings.
The lawsuit was filed in 2000. It accused 32 underwriters of fixing fees at
7 percent for IPOs in the $20 million to $80 million range issued from 1994
to 1998. The 7 percent fee still applies to most U.S. IPOs.
The defendants include:
* Merrill Lynch & Co.,
* Citigroup Inc.,
* Morgan Stanley,
* Goldman Sachs Group Inc., and
* the Bear Stearns Cos.
In 2006, U.S. District Judge Lawrence M. McKenna in New York found the named
plaintiffs weren't qualified to represent the class of stock issuers
described in the suit. The named plaintiffs were:
* Cordes & Co. Financial Services, and
* the unsecured creditors trust of Equalnet Communications
Corp.
They were by representatives of creditors of Western Pacific Airlines and
Equalnet, which both went public in 1995. Western Pacific and Equalnet later
sought bankruptcy protection.
The district court said as assignees of the entities, they weren't members of
the proposed class. In the recent ruling, the circuit court disagreed saying
that although the plaintiffs do not fall within the definition of the class
as set forth in the complaint, as assignees of class members who brought the
suit, they are not categorically excluded from acting as class
representatives. U.S. Circuit Judge Robert D. Sack wrote the opinion.
Damages are estimated at $1.2 billion, which could be tripled under antitrust
law. The class might include 2,000 stock issuers, said the plaintiff's
lawyer Roger Kirby of Kirby McInerney.
The appeals-court case is “Cordes & Co. v. A.G. Edwards & Sons Inc., 06-2143-
cv,” before the 2nd U.S. Circuit Court of Appeals (New York).
The lower-court case is “In re Issuer Plaintiff Initial Public Offering
Antitrust Litigation, Case No. 00-cv-7804,” filed in the U.S. District Court,
Southern District of New York (Manhattan).
Representing the plaintiffs is:
Roger Kirby, Esq.
Kirby McInerney & Squire, L.L.P.
830 Third Avenue
New York, New York 10022-3903
(New York Co.)
Phone: 212-371-6600; 317-2300
Fax: 212-751-2540
LIBERTY NATIONAL: Appeals Ruling in Ala. Cancer Policies Lawsuit
----------------------------------------------------------------
Liberty National Life Insurance Co., a subsidiary of Torchmark Corp., filed a
motion with the Barbour County Circuit Court to certify for an interlocutory
appeal a ruling in the matter "Robertson v. Liberty National Life Insurance
Company, CV-92-021," which names as one of the defendants.
Initially, the companies were parties to the purported class action, "Roberts
v. Liberty National Life Insurance Co., Case No. CV-2002-009-B," filed in the
Circuit Court of Choctaw County, Alabama on behalf of all persons who
currently or in the past were insured under Liberty cancer policies, which
were no longer being marketed, regardless of whether the policies remained in
force or lapsed.
The case was based on allegations of breach of contract in the implementation
of premium rate increases, misrepresentation regarding the premium rate
increases, fraud and suppression concerning the closed block of business and
unjust enrichment.
On Dec. 30, 2003, the Alabama Supreme Court issued an opinion granting
Liberty's and Torchmark's petition for a writ of mandamus, concluding that
the Choctaw Circuit Court did not have subject matter jurisdiction and
ordering that Circuit Court to dismiss the action.
Plaintiffs then filed their purported class action, "Roberts v. Liberty
National Life Insurance Company, Civil Action No. CV-03-0137," against
Liberty and Torchmark in the Circuit Court of Barbour County, Alabama on Dec.
30, 2003.
On April 16, 2004 the parties filed a written Stipulation of Agreement of
Compromise and Settlement with the Barbour County, Alabama Circuit Court
seeking potential settlement of the Roberts case.
A fairness hearing on the potential settlement was held by the Barbour County
Circuit Court on July 15, 2004. After receipt of briefs on certain issues
and submission of materials relating to objections to the proposed settlement
to the court-appointed independent special master, the Court reconvened the
previously continued fairness hearing on Sept. 23, 2004.
After the Sept. 23, 2004 hearing, the court, after hearing from the objectors
to the potential settlement, ordered the appointment of an independent
actuary to report back to the Court on certain issues. The report of the
independent actuary was subsequently furnished to the special master and the
Court on a timely basis.
On Nov. 22, 2004, the court entered an order and final judgment in Roberts
whereby the court consolidated Roberts with "Robertson v. Liberty National
Life Insurance Company, CV-92-021," for purposes of the Roberts stipulation
of settlement and certified the Roberts class as a new subclass of the class
previously certified by that court in Robertson.
The court approved the stipulation and settlement and ordered and enjoined
Liberty to perform its obligations under the stipulation.
Subject to the stipulation, Liberty and Torchmark were permanently enjoined
from:
-- instituting, engaging or participating in, maintaining,
authorizing or continuing premium rate increases
inconsistent with the Stipulation;
-- failing to implement temporary premium waivers in
accordance with the Stipulation;
-- failing to implement the new benefits procedure
described in the Stipulation; and
-- failing to implement the special schedules and special
provisions of the stipulation for subclass members who
have cancer and are receiving benefits and for subclass
members who have no other cancer or medical insurance
and/or are not covered by Medicare.
The court dismissed plaintiffs' claims, released the defendants, enjoined
Roberts subclass members from any further prosecution of released claims and
retained continuing jurisdiction of all matters relating to the Roberts
settlement.
In an order issued Feb. 1, 2005, the court denied the objectors' motion to
alter, amend or vacate its earlier final judgment on class settlement and
certification.
The companies proceeded to implement the settlement terms. On March 10,
2005, the Roberts plaintiffs filed notice of appeal to the Alabama Supreme
Court.
In an opinion issued on September 29, 2006, the Alabama Supreme Court voided
the Barbour County Circuit Court's final judgment and dismissed the Roberts
appeal.
The Supreme Court held that the Barbour County Court lacked subject-matter
jurisdiction in Roberts to certify the Roberts class as a subclass of the
Robertson class and to enter a final judgment approving the settlement since
Roberts was filed as an independent class action collaterally attacking
Robertson rather than being filed in Robertson under the Barbour County
Court's reserved continuing jurisdiction over that case.
On Oct. 23, 2006, Liberty filed a petition with the Barbour County Circuit
Court under its continuing jurisdiction in Robertson for clarification, or in
the alternative, to amend the Robertson final judgment.
Liberty sought an order from the Circuit Court declaring that Liberty pay
benefits to Robertson class members based upon the amounts accepted by
providers in full payment of charges. A hearing was held on Liberty’s
petition on March 13, 2007.
On March 30, 2007, the Barbour County Circuit Court issued an order denying
Liberty’s petition for clarification and/or modification of Robertson,
holding that Liberty’s policies did not state that they will pay “actual
charges” accepted by providers.
On April 8, 2007, the Court issued an order granting a motion to intervene
and establishing a subclass in Robertson comprised of Liberty cancer
policyholders who are now or have within the past six years, undergone cancer
treatment and filed benefit claims under the policies in questions.
Liberty filed a motion with the Barbour County Circuit Court to certify for
an interlocutory appeal that Court’s order on Liberty’s petition for
clarification in Robertson on April 17, 2007, according to the TorchMark
Corp.'s Aug. 8, 2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2007.
Torchmark Corp. -- http://www.torchmarkcorp.com-- is an insurance holding
company. The Company’s primary operating subsidiaries are American Income
Life Insurance Company, Liberty National Life Insurance Co., Globe Life And
Accident Insurance Company, United American Insurance Co. and United
Investors Life Insurance Co. Through its subsidiaries, Torchmark markets
primarily individual life and supplemental health insurance and annuities, to
middle income households throughout the U.S.
The Company operates in two segments: insurance, which includes the insurance
product lines of life, health and annuities, and investments, which supports
the product lines. In January 2007, Torchmark acquired Direct Marketing and
Advertising Distributors, Inc. (DMAD), an advertising and publication company.
MASSEY ENERGY: W. Va. Lawsuit Alleges Environmental Laws Breach
---------------------------------------------------------------
Massey Energy Co. and its executives and board of directors are facing a
derivative class-action complaint filed Sept. 7 in the U.S. District Court
for the Southern District of West Virginia, accusing them of violating
environmental and safety laws numerous times, the CourtHouse News Service
reports.
Massey has been cited for more than 4,100 safety and environmental violations
since 2000 and sued repeatedly in multiple states for it.
An Aracoma Alma Mine tragedy resulted to the death of two miners. Widows of
Aracoma miners Don Bragg and Ellery Hatfield claimed defendant chief
executive Don Blankenship effectively wrote a memo to ignore non-mining
related instructions, including safety projects.
The complaint alleges that from 2000 to the present, defendants engaged in a
scheme and wrongful course of business whereby the individual defendants
disregarded their obligations by failing to ensure company compliance with
legal obligations and failing to remain informed as to the company's internal
controls, failing to make reasonable inquiries in connection with it notice
of unsound conditions or practices, to make reasonable inquiry in connection
therewith, and failing to take steps to correct such conditions or practices.
Plaintiff prays for relief and judgment as follows:
-- authorizing the maintenance of this action as a
derivative action, with plaintiff as derivative
plaintiff;
-- declaring that the individual defendants have violated
their fiduciary duties to the company;
-- awarding against all of the individual defendants and in
favor of the company for the amount of damages sustained
by the company as a result of the individual defendants'
breaches of fiduciary duties;
-- awarding to plaintiff the costs and disbursements of the
action, including reasonable attorneys' fees,
accountants' and experts' fees, costs and expenses; and
-- granting such other and further relief as the court
deems just and proper.
The suit is “Mercier, et al v. Blankenship, et al., Case No. 2:07-cv-00555,”
filed in the U.S. District Court for the Southern District of West Virginia,
under Judge David A. Faber.
Representing plaintiffs are:
Barry M. Hill
Hill Williams
89 12th Street
Wheeling, WV 26003
Phone: 304/233-4966
Fax: 304/233-4969
E-mail: bhill@hwlaw.us
- and -
James A. Maro
Eric L. Zagar
Schiffrin Barroway Topaz & Kessler
280 King of Prussia Road
Radnor, PA 19087
Phone: 610/667-7706
Fax: 610/667-7056
NAMYANG: Arbitration Opened in Suit by Apartment Dwellers
---------------------------------------------------------
Korea’s consumer dispute mediation committee decided to open an arbitration
process regarding a class action raised by 57 residents of the Namyang I
Joeunjip Apartments in Donong-dong, Namyangju-si, Gyeonggi, South Korea’s
Donga.com reports.
Construction company Nam Yang is facing a suit by apartment dwellers accusing
it of breaching a contract to build a library and fitness club. They had
submitted a request form for construction of facilities and compensation
against Nam Yang.
The committee will deliver a decision on October 28 after investigating the
facts, according to the report.
The country’s revised Basic Consumer Law, which took effect in March,
introduces the class-dispute arbitration system that allows class actions
against provincial governments, the Korea Consumer Agency, and other consumer-
related organizations when more than 50 consumers are damaged by the same
products or services.
NETTOCOLLECTION LLC: Recalls Cribs to Replace Side Rails
--------------------------------------------------------
NettoCollection LLC, of New York, N.Y., in cooperation with the U.S. Consumer
Product Safety Commission, is recalling about 400 "Moderne" and "Loft" cribs.
The company said the crib slats can separate from the side rails, posing an
entrapment and strangulation hazard to young children.
NettoCollection has received three reports of the side rail spindles
separating from the top rail. No injuries have been reported.
The crib side rails are made of wood and sold with a brown finish. Only cribs
with model numbers NC-137 and NC-140 and date codes 9/03 and 02/04 are
included in the recall. The model numbers, date codes and "Made in Poland"
are printed on a label on the crib end panels.
These recalled cribs were manufactured in Poland and are being sold at
juvenile furniture stores nationwide from October 2003 through June 2005 for
about $1,350.
Pictures of recalled cribs:
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07300a.jpg
http://www.cpsc.gov/cpscpub/prerel/prhtml07/07300b.jpg
Consumers are advised to stop using the crib immediately and contact
NettoCollection to receive two replacement side rails.
For additional information, contact NettoCollection toll-free at (866) 996-
3886 between 10 a.m. and 6 p.m. ET Monday through Friday or visit
http://www.nettocollection.com.
OIL COMPANIES: Accused of Defrauding Customers in Guam Lawsuit
--------------------------------------------------------------
Several oil companies are facing a class-action complaint filed Sept. 4 in
the U.S. District Court for the District of Guam, accusing them of selling
consumers less fuel than they paid for, the Radio New Zealand International
reports.
Named defendants in the suit are:
-- Ambest, Inc.;
-- Chevron USA, Inc.;
-- Circle K Stores, Inc.;
-- Citgo Petroleum Corp.;
-- Conocophillips Co.;
-- Costco Wholesale Corp.;
-- Exxon Mobil Corp.;
-- Flying J, Inc.;
-- Petro Stopping Centers, L.P.;
-- Pilot Travel Centers LLC;
-- Quiktrip Corp.;
-- 7-Eleven, Inc.;
-- Shell Oil Products Company LLC;
-- Tesoro Refining and Marketing Company;
-- The Kroger Company;
-- Travel Centers of America, Inc.;
-- Total Petrochemicals USA, Inc.;
-- Valero Marketing and Company;
-- BP West Coast Products, LLC;
-- Mobil Oil Guam Inc.; and
-- Shell Guam Inc.;
The suit alleges that current fuel measurement standards, which measure the
volume of fuel at 60 degrees Fahrenheit, means the oil companies are selling
less fuel than consumers pay for in areas with higher temperatures. The
volume of petroleum products expands as the temperature rises, the suit says.
Attorney General Douglas Moylan says that the oil firms have not installed
available monitoring equipment that measures the volume of petroleum products
while adjusting for actual temperatures. He said the actual amount of fuel
that a consumer obtains at a given price varies widely across retailers and
purchases.
The suit is “Young et al. v. Ambest, Inc. et al., Case No. 1:07-cv-00026,”
filed in the U.S. District Court for the District of Guam, under Judge
Frances M. Tydingco-Gatewood.
Representing plaintiffs is:
Douglas B. Moylan
Attorney at Law
P.O. Box 7822
Tamuning, GU 96931
Phone: 671-475-9292
Fax: 671-475-9293
E-mail: dbmoylan@gmail.com
SEONU: S. Korean Sash Firm Ordered to Compensate Apt. Residents
---------------------------------------------------------------
The Korea Consumer Agency made a historic ruling by ordering sash company
Seonu to partly compensate residents of Woolim 1-cha Apt. in Cheongwon-gun,
Chungcheongbuk-do for breach of contract, South Korea’s Donga.com reports.
In May, more than 200 residents of the Woolim 1-cha Apt. filed an arbitration
case with Korea Consumer Agency against the company accusing it of breaking
its promise to include reinforcement beams inside the sash of their homes.
At a dispute mediation committee on Sept. 10, the agency declared that “Seonu
deliberately infringed the contract to set up reinforcement beams and
profiteered.” In what became the first consumer compensation order since the
enforcement of the country’s revised Basic Consumer Law in March, the agency
said Seonu is liable for compensation. It, however, denied the residents’
request for the re-construction of the sash because it doesn’t seem that the
lack of sash beams causes safety problems.
According to the report, for the 37 households for which the company
belatedly built beams, 8% of the construction fees (an estimated
$5,401/pyeong) will be refunded. Those without beams will receive 10% of
their fees.
The class-dispute arbitration system introduced in the Basic Consumer Law
allows class actions against provincial governments, the Korea Consumer
Agency, and other consumer-related organizations when more than 50 consumers
are damaged by the same products or services.
SEPRACOR INC: $52M Mass. Securities Fraud Suits Settlement OK’d
----------------------------------------------------------------
Judge Morris E. Lasker of the U.S. District Court for the District of
Massachusetts has granted final approval to a $52.5 million settlement of two
separate but related securities class actions filed against Sepracor Inc., a
Massachusetts-based pharmaceutical company.
The settlements were for the cases:
-- "In re: Sepracor Inc. Securities Litigation, Case No.
02-12235-MEL," (Debt Purchasers Action); and
-- "In re: Sepracor Inc. Securities Litigation, Case No.
02-12338-MEL," (Equity Purchasers Action).
David L. Wales, Esq. of Wolf Haldenstein Adler Freeman & Herz LLP, lead
counsel for the Equity Purchaser Class, told the Class Action Reporter the
settlement was allocated to the two cases as:
* Debt Purchaser Action $12,390,000
* Equity Purchaser Action $40,110,000
The company and several of its officers were named as defendants in several
class action complaints, which have been filed on behalf of certain persons
who purchased the company's common stock and/or debt securities during
different time periods, beginning on various dates, the earliest being May
17, 1999, and all ending on March 6, 2002.
These complaints allege violations of the U.S. Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder by the Securities and Exchange Commission.
Primarily, they allege that the defendants made certain materially false and
misleading statements relating to the testing, safety and likelihood of
approval of tecastemizole by the U.S. Food and Drug Administration.
In both the debt purchasers' action and equity purchasers' action, the court
has granted the plaintiffs' motion for class certification.
In late February 2006, two corrected and amended consolidated complaints were
filed, one on behalf of the purchasers of the company common stock and the
other on behalf of the purchasers of the company's debt securities.
The cases were brought on behalf of all persons and entities who either
purchased any of the 5%, 5.75% or 7% convertible debt securities of the
company, or purchased the common stock or call options or who sold put
options of the company on the open market, between May 17, 1999 and March 6,
2002.
These corrected and amended consolidated complaints reiterate the allegations
contained in the previously filed complaints.
The parties are engaged in discovery.
On April 20, 2007, the company entered into a Memorandum of Understanding, or
MOU, regarding the cases. Under the terms of the MOU, the company has agreed
with counsel for the lead plaintiffs to pay or cause to be paid $52.5 million
in settlement of the class actions (Class Action Reporter, Jun 22, 2007).
Of this amount, the company expects to pay $34.0 million, and the company
expects that its insurance carriers will pay the remaining $18.5 million.
In consideration of this settlement payment, counsel for the lead plaintiffs
has agreed that the settlement will include a dismissal of the class actions
with prejudice and a release of claims by the plaintiffs.
Lead plaintiff's attorney for the debt class, Sherrie R. Savett of Berger &
Montague, noted that "the settlement is excellent for the classes. If we had
gone to trial, there would have been a battle of conflicting medical and
scientific experts given the multitude of complex scientific issues
surrounding the development of Sepracor's new drug candidate. Additionally,
economic experts would have quarreled about the proper measure of damages to
the two classes caused by Sepracor's failure to obtain approval for its
highly touted antihistamine drug."
For more details, contact:
Sepracor Inc. Securities Litigation
c/o The Garden City Group, Inc., Notice Administrator
P.O. Box 9000 #6372
Merrick, New York 11566-9000
Phone: (800) 916-5305
Equity Purchasers Action Lead Counsel:
David L. Wales, Esq.
Wolf Haldenstein Adler Freeman & Herz LLP
270 Madison Avenue
New York, New York 10016
Phone: (212) 545-4788
E-mail: Wales@whafh.com
Debt Purchasers Action Lead Counsel:
Joshua C. Schumacher, Esq.
Berger & Montague, P.C.
Phone: 215 875-3055
E-mail: jschumacher@bm.net
Website: http://www.bergermontague.com
Sherrie R. Savett
Phone: (215) 875-3071
E-mail: ssavett@bm.net
UNIVERSAL HEALTH: Still Faces Labor Law Violations Suit in Cal.
---------------------------------------------------------------
Universal Health Services, Inc. and some of its subsidiaries are facing a
purported class action in Los Angeles Superior Court alleging violations of
various California Labor Code sections and applicable wage orders.
On Nov. 1, 2005, the company's management company and several of its
facilities located in California, including Inland Valley
Medical Center, Rancho Springs Medical Center, Del Amo Hospital and Corona
Regional Medical Center were named defendants in a wage and hour suit, "Lasko-
Hoellinger, et al v. UHS of Delaware, Inc., et al."
While two of the four original plaintiffs in that case voluntarily requested
that they be dismissed as plaintiffs from that lawsuit, the remaining two
plaintiffs are seeking to have the matter certified as a class action.
The remaining plaintiffs are alleging, among other things, that they are
entitled to recover damages from the Hospitals for missed breaks and other
alleged violations of various California Labor Code sections and applicable
wage orders for a period of at least one year prior to the filing of the
case.
The Hospitals have denied liability and are defending the case, which has not
yet been certified as a class action by the court, 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.
Universal Health Services, Inc. -- http://www.uhsinc.com/-- is engaged in
owning and operating, through its subsidiaries, acute-care hospitals,
behavioral health centers, surgical hospitals, ambulatory surgery centers and
radiation oncology centers.
UNITED AMERICAN: Faces Tex. Litigation Over UA Partners Program
---------------------------------------------------------------
United American Insurance Co., a subsidiary of Torchmark Corp., faces a
purported class action, “Neuman v. United American Insurance Co., Case No.
36593,” in Texas state court.
On July 26, 2007, the purported class action litigation was filed for a class
comprised only of Texas citizens in the state District Court of Falls County,
Texas.
Plaintiffs assert that the UA Partners program is a fraudulent scheme
presented by United American to prospective insureds when they apply for
insurance as a discount product and service program and the fee for this
program is built into the insurance premium.
They allege that United American has been unjustly enriched as a result of
the UA Partners program and are suing for money had and received and
attorneys fees, according to the TorchMark Corp.'s Aug. 8, 2007 Form 10-Q
Filing with the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2007.
According to the company’s Web site, the program offers UA Partners members
and their families access to negotiated rates with over 300,000 physicians
and over 4,100 hospitals across the country through a network of providers.
These network programs are administered by Competitive Health. The company
said it is an optional program. UA Partners members who participate in the
provider network can expect to save 5%-40% for physician charges and hospital
charges. Because this program is not insurance, there are no benefit
restrictions.
United American on the Net: http://www.uageneralagency.com/
VALUECLICK: Cal. Court Junks Dismissal Motion in Adware Lawsuit
---------------------------------------------------------------
The U.S. District Court for the Central District of California upheld the
complaints in two class actions against ValueClick and its wholly-owned
subsidiary, Commission Junction.
Two putative class actions were filed on April 20, 2007 in Federal Court for
the Central District of California, alleging that defendants (collectively,
ValueClick):
-- ValueClick, Inc.;
-- Commission Junction, Inc.; and
-- Be Free
engaged in unfair business practices resulting in harm to affiliates and
merchants on their affiliate networks. According to the complaints,
ValueClick has failed to take reasonable steps to address malicious adware
and adware users on its networks (Class Action Reporter, June 28, 2007).
The following are a few examples identified in the complaints of how adware
may result in harm to ValueClick’s affiliates and merchants:
* by unlawfully diverting earned commissions from
legitimate affiliates;
* by fraudulently causing merchants to pay commissions and
fees for traffic that was not generated by legitimate
affiliate activity;
* by threatening the integrity of merchant affiliate
programs; and
* by exposing merchants to liability for breach of their
contracts with affiliates.
The lawsuits also allege that ValueClick has a motive to allow unlawful
adware activity on its networks because adware results in increased revenues
to ValueClick. The lawsuits seek payment of monetary damages to affiliates
and merchants as well as changes in ValueClick’s corporate practices related
to adware and compliance.
"We look forward to addressing the merits of these lawsuits. ValueClick needs
to take responsibility for its marketing networks and demonstrate it is
committed to act in the best interests of advertisers, affiliates and
consumers," said Kassra Nassiri, co-counsel for plaintiffs.
The suit “Settlement Recovery Center LLC v. Valueclick Inc. et al., Case No.
2:07-cv-02638-FMC-CT,” is before Judge Florence-Marie Cooper with referral to
Carolyn Turchin.
The second lawsuit is “Mireille Carrier v. Valueclick Inc. et al., Case no.
2:07-cv-02641-FMC-CT” before the same judges.
Representing the plaintiffs are:
S. Ashlie Beringer, Esq.
Gibson, Dunn & Crutcher, LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
Phone: 303-298-5700
-- and --
G. Charles Nierlich, III, Esq.
Gibson Dunn & Crutcher
Telesis Tower
One Montgomery St
31st Floor
San Francisco, CA 94104
Phone: 415-393-8200
Representing the plaintiffs are:
Jeff D. Friedman, Esq.
Hagens Berman Sobol Shapiro
425 Second Street, Suite 500
San Francisco, CA 94107
Phone: 415-896-6300
E-mail: jeff@hbsslaw.com
-- and --
Charles H. Jung, Esq.
Nassiri & Jung
251 Kearny Street, Suite 501
San Francisco, CA 94108
Phone: 415-373-5699
New Securities Fraud Cases
RADIAN GROUP: Schiffrin Barroway Files Pa. Securities Fraud Suit
-------------------------------------------0--------------------
The law firm of Schiffrin Barroway Topaz & Kessler, LLP filed a class action
in the U.S. District Court for the Eastern District of Pennsylvania on behalf
of all purchasers of securities of Radian Group Inc. (NYSE: RDN) from January
23, 2007 through July 31, 2007, inclusive.
The Complaint charges Radian and certain of its officers and directors with
violations of the Securities Exchange Act of 1934. Radian is a global credit
risk management company.
More specifically, the Complaint alleges that the Company failed to disclose
and misrepresented the following material adverse facts which were known to
defendants or recklessly disregarded by them:
(1) that the Company's investment in C-BASS was materially
impaired due to increasing margin calls;
(2) that C-BASS' investments were, at an alarming rate,
substantially declining in value;
(3) that the Company overstated its financial results by
failing to properly and timely value its declining
investment in C-BASS;
(4) that the Company's financial statements were not
prepared in accordance with Generally Accepted
Accounting Principles; and
(5) that, as a result of the foregoing, the Company's
financial statements were materially false and
misleading at all relevant times.
C-BASS is a mortgage credit joint venture between Defendant Radian and MGIC
Investment Corporation ("MGIC"). C-BASS was reportedly worth $1 billion, and
Radian and MGIC each possessed a 46 percent equity stake in the company worth
approximately $466 million each. In February 2007, Radian and MGIC announced
that they had agreed to merge and form a new company entitled MGIC Radian
Financial Group, Inc. pursuant to a stock-for-stock transaction, which was
valued at approximately $4.9 billion. It was reported that the two companies
planned to sell down their combined stake in C-BASS by 50 percent at the time
of the merger, which was scheduled to close late in the third quarter or
fourth quarter of 2007.
On July 30, 2007, after the close of the market, Radian shocked investors
when it disclosed that the value of its investment in C-BASS was materially
impaired. The Company admitted that since February 2007, the market for
subprime mortgages had experienced significant turmoil, with market
dislocations recently accelerating and deteriorating. The Company stated that
its investment in C-BASS was approximately $518 million at the time, and that
impairment charges, the level of which could not be determined, could cost
Radian its entire investment in C-BASS.
Then on July 31, 2007, before the market opened, C-BASS disclosed that due to
the "frequency and magnitude" of margin calls, its liquidity was materially
affected. C-BASS revealed that during the first 6 months of 2007, it had met
$290 million in lender margin calls, and since that time it was forced to
meet an additional $260 million of margin calls. As such, C-BASS stated that
it was exploring strategic options in an attempt to mitigate its liquidity
risk. On this news, Radian's shares fell $6.49 per share, or over 16 percent,
to close on July 31, 2007 at $33.71 per share, on unusually heavy trading
volume. The following day, the Company's shares fell an additional $6.20 per
share, or over 18 percent, to close on August 1, 2007 at $27.51 per share,
again on heavy trading volume.
Plaintiff seeks to recover damages on behalf of class members.
Darren J. Check, Esq.
Richard A. Maniskas, Esq.
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA 19087
Phone: 1-888-299-7706 (toll free) or 1-610-667-7706
E-mail: info@sbtklaw.com
TARRAGON CORP: Coughlin Stoia Files N.Y. Securities Fraud Suit
--------------------------------------------------------------
Coughlin Stoia Geller Rudman & Robbins LLP commenced a class action in the
U.S. District Court for the Southern District of New York on behalf of
purchasers of Tarragon Corporation common stock during the period between
January 5, 2005 and August 9, 2007.
The complaint charges Tarragon and certain of its officers and directors with
violations of the Securities Exchange Act of 1934. Tarragon is a homebuilder
and real estate developer.
The complaint alleges that during the Class Period, defendants issued
materially false and misleading statements regarding the Company's business
and financial results. As a result of defendants' false statements, Tarragon
stock traded at artificially inflated prices during the Class Period,
reaching a high of $26.76 per share on July 22, 2005.
Then, on August 9, 2007, at noon Eastern Time, the Company issued a press
release announcing that the filing of its Form 10-Q for the quarter ended
June 30, 2007 would be delayed in order to provide additional time for the
Company to finalize its evaluation of property impairment charges and other
write-downs necessitated by its recent decision to sell certain properties
under current adverse market conditions. The impairment charges were expected
to be in excess of $125 million. On this news, Tarragon's stock collapsed
$1.88 per share to close at $0.94 per share, a decline of 67% on volume of 18
million shares.
According to the complaint, the true facts, which were known by the
defendants but concealed from the investing public during the Class Period,
were as follows:
(a) the Company had failed to consolidate an unprofitable
variable interest entity into its consolidated
financial statements;
(b) the Company had failed to properly account for its
statement of cash flows by failing to properly classify
its cash inflows and cash outflows as operating,
investing and financing activities;
(c) the Company had failed to timely take property
impairment charges and other write downs;
(d) due to the deterioration in the real estate credit
markets, the Company was experiencing liquidity issues
due to its inability to obtain loan modifications and
additional financing and there was serious doubt about
Tarragon's ability to continue as a going concern;
(e) as the Company was experiencing a massive downturn in
its business, Tarragon would not be able to remain in
full compliance with all of its debt covenants; and
(f) given the increased volatility in the homebuilding
industry and the real estate credit markets, the
Company had no reasonable basis to make projections
about its 2007 results, and as a result, the Company's
projections issued during the Class Period about its
2007 results were at a minimum reckless.
Plaintiff seeks to recover damages on behalf of all purchasers of Tarragon
common stock during the Class Period.
For more information, contact:
Darren Robbins
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800-449-4900 or 619-231-1058
E-mail: djr@csgrr.com
*********
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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.
*********
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Copyright 2007. All rights reserved. ISSN 1525-2272.
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