/raid1/www/Hosts/bankrupt/CAR_Public/071127.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, November 27, 2007, Vol. 9, No. 235
Headlines
AMERIQUEST MORTGAGE: Settles Cal. Unfair Practices Suit for $60M
BOPPY CO: Recalls Slipcovers with Zipper Pull that can Break
CANADIAN PACIFIC: $7M Derailment Suit Settlement Gets Final Ok
ELECTRONIC COS: Accused of Cathode Ray Cartel in Calif. Suit
ELMO USA: Recalls Epson Visual Presenters that can Overheat
EWE AG: German Court Throws Out Gas Price Hike Lawsuit
EXXON MOBIL: “Writ of Certiorari” Granted in Exxon Valdez Suit
HARRY & DAVID: Recalls Choco Tubs for Undeclared Nut Allergen
JAMES RIVER: Settles Del. Suit Over D.E. Shaw Merger Agreement
MOTOROLA INC: Court Approves $190M Securities Suit Settlement
MOTOROLA INC: High Court Hears “Stoneridge” Dismissal Appeal
MOTOROLA INC: Ill. Court Certifies Class in ERISA Litigation
MOTOROLA INC: Faces Multiple Securities Fraud Lawsuits in Ill.
NATIONAL LIFE: Seeks to Dismiss ERISA Violations Suit in Wash.
NATIONAL LIFE: Ohio Court Dismisses Suit Over Compensation Plans
NATIONWIDE LIFE: Court Hears “Carr” Summary Judgment Argument
NATIONWIDE LIFE: Dismissal of Market Timing Suit Under Appeal
NATIONWIDE FINANCIAL: Conn. Court Denies Bid to Junk ERISA Suit
NETLIST INC: Faces Consolidated Securities Lawsuit in Calif.
NORTHERN MARIANAS: GOB Reissues Checks in Garment Firms' Suit
PFIZER INC: Mass. Court Refuses to Certify Neurontin-Related MDL
PFIZER INC: N.J. Court Junks Securities Suit Over Celebrex Study
PFIZER INC: N.Y. Court Junks Investor Suit Over Celebrex, Bextra
PHILIP MORRIS: Still Faces Tobacco Price Cases in Kan., N.M.
SARA LEE: Dress, Undress Rule Violates FLSA, 4th Circuit Rules
SOUTH DAKOTA: Women Prisoners Sue to Get Access to Medications
SWEETWATER VALLEY: Recalls Cheese on Possible Contamination
WARNER-LAMBERT: Settles Rezulin Suit by Health Benefit Providers
WEST CORP: Certification of Class in “Ritt” Fraud Suit Upheld
New Securities Fraud Cases
WELLCARE HEALTH: Kahn Gauthier Commences Securities Fraud Suit
*********
AMERIQUEST MORTGAGE: Settles Cal. Unfair Practices Suit for $60M
----------------------------------------------------------------
Ameriquest Mortgage Co. has agreed to pay as much as $60 million
to settle a class action in San Mateo County (Calif.) claiming
the lender engaged in unfair business practices, Andrew Galvin,
of The Orange County Register reports.
The suit was brought on behalf of borrowers who said their loan
terms differed from those initially promised.
According to the settlement, starting February 2003, Ameriquest
"instituted fixed pricing that substantially eliminates
discretion from branch personnel to change loan terms in a
pattern of bait and switch."
The settlement, which received preliminary approval earlier this
month, includes as much as $50 million for borrowers in four
states, and as much as $10 million in fees for plaintiffs'
attorneys.
According to Mr. Galvin, those eligible to participate in the
settlement include borrowers who obtained mortgages on
California homes from Ameriquest or its predecessor, Long Beach
Mortgage Co., from Oct. 25, 1996, through Feb. 29, 2004. Also
included are borrowers in Texas, Alabama and Alaska who obtained
loans from April 8, 1998, through Feb. 29, 2004.
To be eligible, a borrower must have received a loan that meets
one of these conditions:
-- Included an adjustable interest rate when a fixed rate
had been initially promised in a good-faith estimate.
-- Had an annual interest rate at least 0.9 percent higher
than the rate first disclosed.
-- Required the borrower to pay an origination fee when no
such fee had been initially contemplated.
-- Included a prepayment penalty that hadn't been
previously disclosed.
-- Had a monthly payment that excluded property taxes and
insurance when this fact hadn't been disclosed.
In agreeing to the settlement, Ameriquest didn't admit
wrongdoing.
"The settlement pertains to some issues that are nearly 10 years
old and since that time, the company has instituted best
practices that include, among many changes, giving customers the
right to have seven days to review and rescind their loans," the
company said in a statement.
Based in Orange, California, Ameriquest Mortgage Company --
http://www.ameriquestmortgage.com/-- was the nations largest
subprime lender.
BOPPY CO: Recalls Slipcovers with Zipper Pull that can Break
------------------------------------------------------------
The Boppy Co., of Golden, Colorado, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
38,000 Boppy slipcovers.
The company said the zipper pull on the slipcovers can break,
posing a choking hazard to young children. In addition, paint on
the zippers contains excess levels of lead, which violates the
federal lead paint standard. No injuries have been reported.
This recall involves velvet and boa slipcovers intended for use
with the Boppy Bare Naked nursing and support pillow.
Slipcovers recalled due to a choking hazard were sold in three
color combinations and have the following UPC and date codes
found on the California Flammability Law tag. Slipcovers sold in
clear vinyl packages are labeled Boppy Luxe.
Color Combination UPC Code Date Code
Blue/Green Velvet 769662 30802 1 05/2006 and 06/2006
Pink/ Orange Velvet 769662 30801 4 05/2006 and 06/2006
Pastel Blue Velvet 769662 30705 5 05/2006
Picture of recalled slipcovers due to a choking hazard:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08097aa.jpg
Slipcovers recalled due excessive levels of lead paint were sold
in four colors and have the following UPC and date codes found
on the care instructions label and on the exterior of the
packaging. Slipcovers sold in display boxes are labeled Boppy®
Soothing.
Color UPC Code Date Code
Pastel Blue “Boa” 769662 32544 8 07030
Bright Pink Velvet 769662 32542 4 07030
Navy Blue Velvet 769662 32542 4 07030
Sage Green Velvet 769662 32709 1 07030
Picture of recalled slipcovers due to excessive levels of lead
paint:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08097bb.jpg
These recalled slipcovers due to a choking hazard were
manufactured in China and are being sold at discount department
stores nationwide from July 2006 through September 2007 for
about $16.
These recalled slipcovers due to due to lead paint were
manufactured in China and are being sold at discount department
stores nationwide from February 2007 through September 2007 for
between $15 and $17.
Consumers are advised to stop using these products immediately
and contact The Boppy Company for a free replacement product.
For information on identifying and/or exchanging the recalled
slipcovers, call The Boppy Company at (888) 713-3916 anytime or
visit the firm’s Web site: http://www.boppy.com
CANADIAN PACIFIC: $7M Derailment Suit Settlement Gets Final Ok
--------------------------------------------------------------
U.S. District Judge Dan Hovland granted final approval to a
$7,054,000 million settlement of a class action over a train
derailment and chemical spill at Minot, North Dakota in 2002,
KXMCTV Minot reports.
Thirty-one cars on the 112-car Canadian Pacific Railway train
derailed on the west edge of Minot and fire broke open early on
the morning of January 18, 2002.
The case was dismissed by the court in March 2006. In that
dismissal, the court found that people injured by a railroad’s
negligence could not seek a legal remedy. Plaintiffs appealed
that decision to the United States Court of Appeals for the
Eighth Circuit. While on appeal the parties agreed to the
settlement.
The class consists of all persons who were exposed to the
anhydrous ammonia cloud in and around the city of Minot, North
Dakota, and who were adversely affected by the release of the
hazardous chemical on January 18, 2002, and who have sustained
property damages, property value diminution, personal injuries,
and economic or non-economic damages as a result of the
derailment and hazardous chemical release.
Under the settlement, plaintiffs' attorneys will get $2.9
million of the settlement to cover their fees and expenses. The
three lead plaintiffs will each get $25,000, with the remainder
shared equally by about 2,000 people.
The settlement was granted preliminary approval in July (Class
Action Reporter, July 12, 2007). Plaintiffs were given until
Nov. 8 to submit claims (Class Action Reporter, Oct. 11, 2007).
About 4,000 people have submitted claims and the task at hand is
to go through that list of people and make sure everyone is
eligible.
According to the most recent report, the 4,000 people will share
$4.1 million of the $7-million lawsuit...with the rest going to
attorneys in the case. Lead plaintiff attorney, Mike Miller,
said it isn't known how long it will take to go through the list
of people but estimates it will be in January when people get
their checks.
The Settlement on the Net: http://www.minotsettlement.com
The suit is "Mehl, et al. v. Canadian Pacific RR, et al., Case
No. 4:02-cv-00009-DLH-KKK,"on appeal from the U.S. District
Court for the District of North Dakota under Judge Daniel L.
Hovland with referral to Judge Karen K. Klein.
Representing the company is attorney Tim Thornton (E-mail:
thodgson@SHTB-law.com).
Representing the plaintiffs is attorney:
Gordon Rudd, Esq.
651 Nicollet Mall Suite 501
Minneapolis, MN
55402
Phone: (612)341-0400
Fax: (612)341-0844
Website: http://www.zimmreed.com
ELECTRONIC COS: Accused of Cathode Ray Cartel in Calif. Suit
------------------------------------------------------------
An antitrust class action filed in the U.S. District Court for
the Northern District of California accuses electronics
companies of leading an illegal cathode ray cartel, the
CourtHouse News Service reports.
Named in the suit are:
-- Matsushita Electric Industrial Co., Ltd.,
-- Samsung Electronics,
-- LP Displays International,
-- MT Picture Display Co.,
-- Toshiba Corporation,
-- LG Philips LCD Company Ltd.,
-- LG Philips LCD America, Inc.,
-- LG Electronics Inc.,
-- Royal Philips Electronics N.V.,
-- Samsung Semiconductor, Inc.,
-- AU Optronics Corporation,
-- AU Optronics Corporation America,
-- Chi Mei Optoelectronics,
-- Chi Mei Optoelectronics USA, Inc.,
-- Sharp Corporation,
-- Sharp Electronics Corporation,
-- Matsushita Display Technology Co., Ltd.,
-- Hitachi Ltd.,
-- Hitachi Displays, Ltd.,
-- Hitachi America Ltd.,
-- Hitachi Electronic Devices (USA), Inc.,
-- Sanyo Epson Imaging Devices Corporation,
-- NEC Corporation,
-- NEC LCD Technologies, Ltd.,
-- IDT International Ltd.,
-- International Display Technology Co., Ltd.,
-- International Display Technology USA Inc.,
-- Chunghwa Picture Tubes, LTD. and,
-- Hannstar Display Corporation
The suit accuses the companies of conspiring to inflate the
price of cathode ray tube computer monitors since 2003.
The suit is “Kovacevich v. LG Philips LCD Company Ltd. et al.,
Case Number: 3:2007cv05372,” filed in the U.S. District Court
for the Northern District of California, under the Hon. Susan
Illston.
Representing plaintiffs is:
Lovell Stewart Halebian LLP
500 Fifth Avenue, 58th Floor
New York, NY 10110
Phone: 212-608-1900
Fax: 212-719-4677
ELMO USA: Recalls Epson Visual Presenters that can Overheat
-----------------------------------------------------------
ELMO USA Corp. of Plainview, New York, in cooperation with the
U.S. Consumer Product Safety Commission, is recalling about
54,000 units of Visual Presenters (sold as Image Presentation
Cameras by Epson).
The company said, improperly installed fluorescent top lights in
the presenter can overheat, posing a fire hazard. No injuries
have been reported.
Visual presenters capture images to LCD panels, LCD projectors
and TV monitors. The recall includes presenters sold under the
ELMO, Epson, Doar Communications, Vtel and Tandberg brand names.
The presenters were manufactured between December 1993 and
December 2003. The manufacturer information is located on the
side, rear and bottom of the main body of the following ELMO
model numbers, EV-500AF, EV-400AF, EV-6000AF, EV-8000AF, HV-
5000XG, HV-7000SX, HV-8000SX, EV-4400AF, HV-5100XG and Epson
model ELPDC02.
The recalled presenters were manufacture by ELMO Co. Ltd., of
Japan and are being sold by Elmo dealers, office supply stores
and other retailers nationwide from December 1993 to June 2006
for between $2,600 and $9,000.
Consumers should stop using the recalled visual presenters
immediately and contact Elmo USA for all models except Epson.
All Epson owners should contact Epson. Consumers with recalled
units will receive a free inspection and repair.
Picture of recalled visual presenters:
http://www.cpsc.gov/cpscpub/prerel/prhtml08/08098.jpg
For additional information, contact Elmo USA at (877) 275-3566
between 9 a.m. and 5 p.m. ET Monday through Friday or visit the
firm’s Web site: http://www.elmousa.com.
Epson customers should contact Epson at (800) 444-1948 between 7
a.m. and 5 p.m. PT Monday through Friday or visit the firm’s
website: http://www.epson.com
EWE AG: German Court Throws Out Gas Price Hike Lawsuit
------------------------------------------------------
The district court of Aurich recently ruled that gas price
increases by German energy supplier EWE AG were lawful, the Die
Welt reports.
Around 100 EWE customers have been opposing three price
increases between 2004 and 2006, the report said. Plaintiffs
had claimed EWE would be a monopoly in its supply area and
misuse its market dominant position at the expense of customers.
In 2006, lawyers representing 64 German household customers
suing the utility company EWE dropped part of their class action
(Class Action Reporter, Sept. 29, 2006).
Recently, two class actions over the gas price increases have
failed, as the court handing the case declared that the
increased charges were lawful, the report said.
According to the report, EWE provided proof, in expert reports
and through suppliers' statements, that the higher prices were
not passed on in full to consumers.
EWE -- http://www.ewe.de/english/eng_presse.php-- is a multi-
service energy company, headquartered in Oldenburg in the German
federal state of Lower Saxony. In the energy sector, the
company's two core business areas are natural gas and
electricity.
EXXON MOBIL: “Writ of Certiorari” Granted in Exxon Valdez Suit
--------------------------------------------------------------
The U.S. Supreme Court granted Exxon Mobil Corp.'s petition for
a writ of certiorari in relation to a decision by the U.S.
Circuit Court of Appeals for the Ninth Circuit to reconfirm a
$2.5 billion award to victims of the accidental release of crude
oil from the tanker Exxon Valdez in 1989.
A number of lawsuits, including class actions, were brought in
various courts against Exxon Mobil Corp. and certain of its
subsidiaries relating to the accident. All the compensatory
claims have been resolved and paid. All of the punitive damage
claims were consolidated in the civil trial that began in 1994.
The first judgment from the U.S. District Court for the District
of Alaska in the amount of $5 billion was vacated by the U.S.
Court of Appeals for the Ninth Circuit as being excessive under
the Constitution.
The second judgment in the amount of $4 billion was vacated by
the Ninth Circuit panel without argument and sent back for the
District Court to reconsider in light of the recent U.S. Supreme
Court decision in “Campbell v. State Farm.”
The most recent District Court judgment for punitive damages was
for $4.5 billion plus interest and was entered in January 2004.
The Corporation posted a $5.4 billion letter of credit.
ExxonMobil and the plaintiffs appealed this decision to the
Ninth Circuit, which ruled on Dec. 22, 2006, that the award be
reduced to $2.5 billion. On Jan. 12, 2007, ExxonMobil
petitioned the Ninth Circuit Court of Appeals for a rehearing en
banc of its appeal. On May 23, 2007, with two dissenting
opinions, the Ninth Circuit determined not to re-hear
ExxonMobil's appeal before the full court.
Afterwards, the 9th U.S. Circuit court reconfirmed the $2.5
billion award (Class Action Reporter, June 11, 2007).
ExxonMobil filed a petition for writ of certiorari to the U.S.
Supreme Court on Aug. 20, 2007.
On Oct. 29, 2007, the U.S. Supreme Court granted ExxonMobil's
petition for a writ of certiorari, according to the company's
Nov. 7, 2007 Form 10-Q Filing with the U.S. Securities and
Exchange Commission for the quarterly period ended Sept. 30,
2007.
The suit is “Sea Hawk Seafoods Inc. et al. v. Exxon Corp. et al.
(3:89-cv-00095-HRH),” filed in the U.S. District Court of Alaska
under Judge H. Russel Holland.
Representing the defendants are:
John F. Clough, III, Esq.
Clough & Associates
POB 211187
Auke Bay, AK 99821
Phone: 907-790-1912
Fax: 907-790-1913
- and -
Douglas J. Serdahely, Esq.
Patton Boggs LLP
601 West 5th Avenue, Suite 700
Anchorage, AK 99501
Phone: 907-263-6300
Fax: 907-263-6345
E-mail: dserdahely@pattonboggs.com
Representing the plaintiffs are:
Charles W. Coe, Esq.
Law Office of Charles W. Coe
805 W 3rd Avenue, #10
Anchorage, AK 99501 U.S.
Phone: 907-276-6173
Fax: 907-279-1884
E-mail: charlielaw@gci.net
- and -
Lloyd B. Miller, Esq.
Sonosky, Chambers, Sachse, Miller & Munson, LLP
900 West 5th Avenue, Suite 700
Anchorage, AK 99501, U.S.
Phone: 907-258-6377
Fax: 907-272-8332
E-mail: lloyd@sonosky.net
HARRY & DAVID: Recalls Choco Tubs for Undeclared Nut Allergen
-------------------------------------------------------------
Harry & David Operations Corp., of Medford, Oregon, is
voluntarily recalling approximately 5,880 tubs of the Milk &
Dark Chocolate, White Chocolate Macadamia because they may
contain macadamia nuts not declared on the ingredient statement,
and 4,400 tubs of the Peanut Butter, Milk Chocolate, Macadamia
Nut because they may contain macadamia nuts and peanuts not
declared on the ingredient statement.
People who have an allergy or severe sensitivity to these nuts
(macadamia or peanut) run the risk of serious or life-
threatening allergic reaction if they consume these products.
The products are packaged in 1 lb. 10 oz clear plastic tubs
containing three flavors of Moose Munch Confection, a caramel
corn and chocolate confection.
Harry & David is recalling all Milk & Dark Chocolate, White
Chocolate Macadamia with a nutrition label that states Milk
Chocolate, Caramel, Dark Chocolate at the top. The potentially
affected lot codes are lot codes 304 NXXX NN:NN, 305 NXXX NN:NN,
306 NXXX NN:NN or 307 NXXX NN:NN. In the lot number on the
plastic tub, the X is a letter and N is a number.
Harry & David is recalling all Peanut Butter, Milk Chocolate,
Macadamia Nut with a nutrition label that states Milk Chocolate,
Caramel, Dark Chocolate at the top. The potentially affected lot
codes begin with 264 NXXX NN:NN, 265 NXXX NN:NN or 266 NXXX
NN:NN. In the lot number on the plastic tub, the X is a letter
and N is a number.
The lot codes are ink jetted on the sides of the tubs in black
ink.
The Milk & Dark Chocolate, White Chocolate Macadamia was
produced from October 31 through November 3 rd, 2007, and was
distributed exclusively throughout the United States in Harry
and David Stores, beginning on November 9, 2007. The Peanut
Butter, Milk Chocolate, Macadamia Nut was produced from
September 21 st through September 23 rd, 2007, and was
distributed exclusively throughout the United States in Harry
and David Stores, beginning on October 10, 2007.
There have been no injuries reported to date. Anyone concerned
about a potential illness associated with this product should
contact a physician immediately. This problem occurred when tubs
with nutrition labels for another product were used for these
items.
Consumers with questions about the recalled product may phone
the Customer Service division at 800- 233-1101 , 24 hours a day.
Customers may arrange for refunds through this number as well.
JAMES RIVER: Settles Del. Suit Over D.E. Shaw Merger Agreement
--------------------------------------------------------------
James River Group, Inc. settled a consolidated class action in
Delaware over a merger agreement it entered into with members of
the D.E. Shaw group on June 11, 2007.
Under the agreement, Franklin Holdings (Bermuda), Ltd., a
Bermuda company (Parent) and Franklin Acquisition Corp., a
Delaware corporation and a wholly-owned direct subsidiary of
Parent (Merger Sub).
Under the terms of the Merger Agreement, Franklin Acquisition
Corp. -- a Delaware corporation and a wholly-owned direct
subsidiary of Parent (Merger Sub) -- will be merged with and
into the James River, and as a result, James River will continue
as the surviving corporation and a wholly-owned subsidiary of
Franklin Holdings (Bermuda), Ltd. -- a Bermuda company (Parent).
Parent is a Bermuda-based holding company and member of the D.E.
Shaw group, a global investment management firm.
James River is permitted, under the terms of the Merger
Agreement, to continue to pay regular quarterly cash dividends
until the consummation of the Merger, such amount not to exceed
$0.15 per share per quarter.
Presently, the company is aware of two lawsuits filed in
connection with the proposed merger.
Levy N.C. Class Action
On June 13, 2007, Levy Investments filed a purported class
action complaint in the Superior Court for Orange County, North
Carolina against the Company, all of the directors of the
Company and the D.E. Shaw group.
The complaint alleges, among other things, that the company's
directors breached their fiduciary duties to the company's
stockholders in approving the merger agreement and that the
negotiation and structure of the proposed merger are the result
of an unfair process.
The complaint seeks, among other things, class certification and
an injunction preventing the completion of the merger, and a
declaration that the directors breached their fiduciary duties
in approving the merger agreement.
On Sept. 10, 2007, the Levy plaintiff filed an amended complaint
that contains substantially similar allegations as the original
complaint, except that it adds allegations that the directors
have breached their fiduciary duties to the company's
stockholders by filing a preliminary proxy statement on Aug. 3,
2007 that omitted material information about the proposed
merger.
Following a hearing on Sept. 18, 2007, the Superior Court for
Orange County entered an order to stay the Levy NC Class Action
pending the resolution by the Delaware Chancery Court of a
proposed settlement of the Cardwell Class Action discussed
below.
Cardwell Class Action
On Aug. 17, 2007, Judy Quinn Cardwell Roth IRA filed a purported
class action complaint in the Court of Chancery for the State of
Delaware in and for New Castle County against the Company, all
of the directors of the Company and the D.E. Shaw group.
The complaint alleges, among other things:
-- that the company's directors breached their fiduciary
duties to its stockholders in approving the merger
agreement,
-- that certain of the defendants acted to better their
own interests at the expense of the company's
stockholders,
-- that the company's management engineered and timed the
proposed merger to freeze-out its public stockholders
in order to capture the benefits of the company's
future potential without paying adequate or fair
consideration to the company's public stockholders
while enabling the company's largest stockholders to
liquidate their holdings and realize significant gain,
-- that the consideration to be paid in the proposed
merger is unfair and inadequate and that the company's
directors breached their fiduciary duties to the
company's stockholders in not pursuing negotiations or
proposals from other interested parties.
The complaint also alleges that the company's preliminary proxy
statement, filed on Aug. 3, 2007, omitted information that is
material to our stockholders’ decisions whether to approve the
proposed merger or seek appraisal.
The complaint seeks, among other things, class certification, an
injunction preventing the completion of the merger, damages for
all profits and special benefits obtained by the defendants in
connection with the merger and the award of plaintiff’s costs
and expenses, including attorney and expert fees.
On Sept. 17, 2007, the parties entered into a memorandum of
understanding with the plaintiff in the Cardwell Class Action,
providing for the settlement of the Cardwell Class Action
subject to approval by the Chancery Court.
In connection with the terms of the MOU and the contemplated
settlement, the Company agreed to make additional disclosures to
stockholders, which disclosures are contained in the definitive
proxy statement filed on Oct. 2, 2007 in connection with the
proposed merger.
Levy Delaware Class Action
On Oct. 12, 2007, the Levy plaintiff filed a purported class
action complaint in the Court of Chancery for the State of
Delaware in and for New Castle County against the Company, all
of the directors of the Company and the D.E. Shaw group.
Following a motion by the Cardwell plaintiff, the Court of
Chancery entered an order to consolidate the Cardwell Class
Action and the Levy Delaware Class Action (together, the
Consolidated Class Action) on Oct. 17, 2007.
On Nov. 2, 2007, the parties to the Consolidated Class Action
entered into a Stipulation and Agreement of Compromise,
Settlement and Release, providing for the settlement of the
Consolidated Class Action subject to approval by the Chancery
Court.
The parties submitted the Stipulation to the Chancery Court on
Nov. 2, 2007 and the Court is expected to set a date for a
hearing to determine whether to approve the settlement.
James River Group, Inc. -- http://www.james-river-group.com--
incorporated in 2002, is an insurance holding company that owns
and manages specialty property/casualty insurance companies with
the objective of consistently earning underwriting profits.
MOTOROLA INC: Court Approves $190M Securities Suit Settlement
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
gave final approval to a $190 million settlement of a securities
fraud class action against Motorola, Inc. in relation to vendor
financing transactions with Telsim Mobil Telekomunikasyon
Hizmetleri A.S.
On Dec. 24, 2002, a purported class action, “Barry Family LP v.
Carl F. Koenemann,” was filed against the former chief financial
officer of Motorola in the U.S. District Court for the Southern
District of New York, alleging breach of fiduciary duty and
violations of Section 10(b) of the U.S. Securities Exchange Act
of 1934 and U.S. Securities and Exchange Commission Rule 10b-5
(Class Action Reporter April 18, 2007).
In 2003, the case was consolidated with a number of related
cases as, “In re Motorola Securities Litigation” in the U.S.
District Court for the Northern District of Illinois.
The plaintiffs allege that the price of Motorola's stock was
artificially inflated by a failure to disclose vendor financing
to Telsim Mobil Telekomunikasyon Hizmetleri, in connection with
the sale of telecommunications equipment by Motorola as well as
other related aspects of Motorola's dealings with Telsim.
On Aug. 25, 2004, the Illinois District Court issued its
decision on Motorola's motion to dismiss, granting the motion in
part and denying it in part.
The court dismissed without prejudice the fraud claims against
the individual defendants and denied the motion to dismiss as to
Motorola.
The plaintiffs chose not to file an amended complaint;
therefore, the fraud claims against the individual defendants
are dismissed.
The court, however, declined to dismiss the plaintiffs' claims
that the individual defendants were “controlling persons of
Motorola.”
During 2005, the Illinois District Court certified the case as a
class action.
On April 12, 2007, the parties entered into a settlement
agreement, pursuant to which, upon final approval by the court,
Motorola is obligated to pay $190 million to the class and all
claims against Motorola by the class will be dismissed and
released.
On Sept. 7, 2007, the Illinois District Court held a hearing and
granted final approval of the settlement.
The final approval order was entered on Sept. 11, 2007. On Oct.
11, 2007, the time for appeal of that order passed without any
appeal having been filed, according to the company's Nov. 6,
2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 29, 2007.
The suit is “In Re: Motorola Securities Litigation, Case No. 03
C 00287,” filed in the U.S. District Court for the Northern
District of Illinois under Judge Rebecca R. Pallmeyer.
Representing the plaintiffs are:
Robert C. Finkel, Esq.
James A. Harrod, Esq.
Lester Levy, Esq.
Wolf Popper, LLP
845 Third Avenue
New York, NY 10022
Phone: (212) 759-4600 and (877) 370-7703
Fax: (212) 486-2093 and (877) 370-7704
- and -
Bruce D. Greenberg, Esq.
Lite, DePalma, Greenberg, & Rivas, LLC
Two Gateway Center, 12th Floor
Newark, NJ 07102
Phone: (973) 623-3000
Representing the defendants are:
Timothy F. Haley, Esq.
Ian H. Morrison, Esq.
Camille Annette Olson, Esq.
Seyfarth Shaw, LLP
55 East Monroe Street, Suite 4200
Chicago, IL 60603-4205
Phone: (312) 346-8000
E-mail: thaley@seyfarth.com
imorrison@seyfarth.com
colson@seyfarth.com
- and -
Emily M. Pasquinelli, Esq.
Arnold & Porter
555 Twelfth Street, N.W.
Washington, DC 20004-1202
Phone: (202) 942-5000
MOTOROLA INC: High Court Hears “Stoneridge” Dismissal Appeal
------------------------------------------------------------
The U.S. Supreme Court heard arguments on an appeal against the
dismissal of the case, “Stoneridge Investment, et al. v. Charter
Comm. Inc., et al.,” which names Motorola, Inc., as a defendant.
On Aug. 5, 2002, Stoneridge Investment Partners LLC filed a
purported class action in the U.S. District Court for the
Eastern District of Missouri against Charter Communications,
Inc. and certain of its officers, alleging violations of Section
10(b) of the U.S. Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder relating to Charter securities.
This complaint did not name Motorola as a defendant, but
asserted that Charter and the other named defendants had
violated the securities laws in connection with, inter alia, a
transaction with Motorola. On Aug. 5, 2003, the plaintiff
amended its complaint to add Motorola as a defendant.
As to Motorola, the amended complaint alleges a claim under
Section 10(b) of the U.S. Securities Exchange Act of 1934 and
Rule 10b-5(a)-(c) promulgated thereunder relating to Charter
securities and seeks an award of compensatory damages.
The U.S. District Court for the Eastern District of Missouri
issued a final judgment dismissing Motorola from the case, which
plaintiff appealed to the U.S. Court of Appeals for the 8th
Circuit.
On April 11, 2006, the Court of Appeals affirmed the final
judgment of the District Court dismissing Motorola from the
case.
On July 7, 2006 plaintiff filed a petition for certiorari
seeking review of the Court of Appeals decision by the U.S.
Supreme Court. On Oct. 20, 2006, Motorola submitted its
response opposing the petition.
On March 26, 2007, the U.S. Supreme Court granted certiorari in
the case. On Oct. 9, 2007, the U.S. Supreme Court heard
argument in the case.
The suit is “Stoneridge Investment, et al. v. Charter Comm.
Inc., et al., Case No. 4:02-cv-01186-CAS,” filed in the U.S.
District Court for the Eastern District of Missouri under Judge
Charles A. Shaw.
Representing the plaintiff is:
Paul J. D'Agrosa, Esq.
Wolff And D'Agrosa
8019 Forsyth
Clayton, MO 63105
Phone: 314-725-8019
Fax: 314-725-8443
E-mail: wolffdagrosa@birch.net
Representing the defendant is:
Alan C. Kohn, Esq.
Kohn and Shands
One US Bank Plaza, Suite 2410
St. Louis, MO 63101-1643
Phone: 314-241-3963
Fax: 314-241-2509
E-mail: akohn@ksegg.com
MOTOROLA INC: Ill. Court Certifies Class in ERISA Litigation
------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
has certified a limited class in the lawsuit, “Howell v.
Motorola, Inc., et al.,” which was brought on behalf of
participants in Motorola, Inc.'s 401(k) defined contribution
retirement plan.
The purported class action was filed against Motorola and
various of its directors, officers and employees in the U.S.
District Court for the Northern District of Illinois on July 21,
2003. It is generally alleging breach of fiduciary duty and
violations of the Employment Retirement Income Security Act.
The complaint alleged that the defendants had improperly
permitted participants in the Motorola 401(k) Plan to purchase
or hold shares of common stock of Motorola because the price of
Motorola's stock was artificially inflated by a failure to
disclose vendor financing to Telsim Mobil Telekomunikasyon
Hizmetleri A.S. in connection with the sale of
telecommunications equipment by Motorola. It sought unspecified
amount of damages.
The plaintiff sought to represent a class of participants in the
Plan for whose individual accounts the Plan purchased or held
shares of common stock of Motorola from 'May 16, 2000 to the
present.”
On Sept. 30, 2005, the Illinois District Court dismissed the
second amended complaint filed on Oct. 15, 2004. Plaintiff
filed an appeal to the dismissal on Oct. 27, 2005.
On March 19, 2007, the appeals court dismissed the appeal.
Three new purported lead plaintiffs have intervened in the case,
and have filed a motion for class certification seeking to
represent Plan participants for whose individual accounts the
Plan purchased and/or held shares of Motorola common stock from
May 16, 2000 through Dec. 31, 2002.
On Sept. 28, 2007, the Illinois District Court granted the
motion for class certification but narrowed the requested scope
of the class.
Motorola has sought leave to appeal in the appellate court and
reconsideration in the Illinois District Court of certain
aspects of the class certification order.
On Oct. 25, 2007, the Illinois District Court modified the scope
of the class, granted summary judgment dismissing two of the
individually-named defendants in light of the narrowed class,
and ruled that the judgment as to the original named plaintiff,
Howell, would be immediately appealable.
The class as certified includes all Plan participants for whose
individual accounts the Plan purchased and/or held shares of
Motorola common stock from May 16, 2000 through May 14, 2001
with certain exclusions.
The suit is “Howell v. Koenemann, et al., Case No. 1:03-cv-
05044,” filed in the U.S. District Court for the Northern
District of Illinois under Judge Rebecca R. Pallmeyer.
Representing plaintiffs are:
Edwin J. Mills, Esq.
Stull, Stull & Brody
Six East 45th Street
New York, NY 10017
Phone: (212) 687-7230
E-mail: ssbny@aol.com
- and -
Robert D. Allison, Esq.
Bruce C. Howard, Esq.
Robert D. Allison & Associates
122 S. Michigan Avenue, Ste 1850
Chicago, IL 60603
Phone: (312) 427-4500 or (312) 427-7600
E-mail: rdalaw@ix.netcom.com
bchoward@ix.netcom.com
Representing defendants are:
Sarah Kotler, Esq.
John C. Massaro, Esq.
Emily M. Pasquinelli, Esq.
Stephen M. Sacks, Esq.
Arnold & Porter
555 Twelfth, Street, N.W.
Washington, DC 20004-1202
Phone: (202) 942-5000
- and -
Dara Sahebjami, Esq.
Funkhouser Vegosen Liebman & Dunn, Ltd.
55 West Monroe Street, Suite 2410
Chicago, IL 60603
Phone: (312) 701-6800
MOTOROLA INC: Faces Multiple Securities Fraud Lawsuits in Ill.
--------------------------------------------------------------
Motorola, Inc. and certain current and former officers and
directors of the Company face purported class actions that were
brought on behalf of purchasers of Motorola securities between
July 19, 2006 and Jan. 4, 2007, according to the company's Nov.
6, 2007 Form 10-Q Filing with the U.S. Securities and Exchange
Commission for the quarterly period ended Sept. 29, 2007.
The suit, “Silverman v. Motorola, Inc., et al.,” was filed on
Aug. 9, 2007 in the U.S. District Court for the Northern
District of Illinois.
The complaint alleges violations of Section 10(b) of the U.S.
Securities Exchange Act of 1934 and SEC Rule 10b-5 as well as,
in the case of the individual defendants, the control person
provisions of the U.S. Securities Exchange Act of 1934.
The factual assertions in the complaint consist primarily of the
allegation that the defendants knowingly made incorrect
statements concerning Motorola’s projected revenues for the
third and fourth quarter of 2006.
The complaint seeks unspecified damages and other relief
relating to the purported artificial inflation in the price of
Motorola shares during the class period.
Two other federal securities lawsuits making identical
allegations have also been filed in the Illinois District Court
and designated as related to “Silverman.”
The plaintiffs in each case have agreed that a consolidated
amended complaint will be filed 45 days after selection of a
lead plaintiff.
The suit is “Eric Silverman, et al. v. Motorola, Inc., et al.,
Case No. 07-CV-04507,” filed in the U.S. District Court for the
Northern District of Illinois under Judge James B. Moran.
Representing the plaintiffs are:
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY, 11747
Phone: 631.367.7100
Fax: 631.367.1173
Miller Law LLC
115 S. LaSalle Street, Suite 2910
Chicago, IL, 60603
Phone: 312.676.2665
E-mail: info@MillerLawLLC.com
- and -
Schiffrin Barroway Topaz & Kessler, LLP
280 King of Prussia Road
Radnor, PA, 19087
Phone: 610.667.7706
Fax: 610.667.7056
E-mail: info@sbtklaw.com
NATIONAL LIFE: Seeks to Dismiss ERISA Violations Suit in Wash.
--------------------------------------------------------------
National Life Insurance Co. filed a motion to dismiss a suit
pending in the United States District Court for the Western
District of Washington at Tacoma that alleges violation of
Employee Retirement Income Security Act.
On July 11, 2007, NLIC was named in a lawsuit filed in the
United States District Court for the Western District of
Washington at Tacoma, by Jerre Daniels-Hall and David Hamblen,
individually and on behalf of all others similarly situated
against:
-- National Education Association,
-- NEA Member Benefits Corporation,
-- Nationwide Life Insurance Company,
-- Security Benefit Life Insurance Company,
-- Security Benefit Group, Inc.,
-- Security Distributors, Inc.
The plaintiff seeks to represent a class of all current or
former National Education Association (NEA) members who
participated in the NEA Valuebuilder 403(b) program at any time
between January 1, 1991 and the present (and their heirs and/or
beneficiaries).
The plaintiffs allege that the defendants violated the Employee
Retirement Income Security Act of 1974, as amended by failing to
prudently and loyally manage plan assets, by failing to provide
complete and accurate information, by engaging in prohibited
transactions, and by breaching their fiduciary duties when they
failed to prevent other fiduciaries from breaching their
fiduciary duties.
The complaint seeks to have the defendants restore all losses to
the plan, restoration of plan assets and profits to
participants, disgorgement of endorsement fees, disgorgement of
service fee payments, disgorgement of excessive fees charged to
plan participants, other unspecified relief for restitution,
declaratory and injunctive relief, and attorneys’ fees.
On October 12, 2007, NLIC filed a motion to dismiss. NLIC
intends to defend this lawsuit vigorously.
NATIONAL LIFE: Ohio Court Dismisses Suit Over Compensation Plans
----------------------------------------------------------------
The U.S. District Court for the Southern District of Ohio
granted a motion to dismiss a suit filed on behalf of a class of
all sponsors of 457(b) deferred compensation plans in the United
States that had variable annuity contracts with Nationwide
Financial Services, Inc. (NFS), National Life Insurance Co.
(NLIC) and Nationwide Retirement Solutions, Inc. (NRS)
On November 15, 2006, NFS, NLIC and NRS were named in a lawsuit
filed in the United States District Court for the Southern
District of Ohio by Kevin Beary, Sheriff of Orange County,
Florida, In His Official Capacity, Individually and On Behalf of
All Others Similarly Situated against:
-- Nationwide Life Insurance Co.,
-- Nationwide Retirement Solutions, Inc., and
-- Nationwide Financial Services, Inc.
The plaintiff seeks to represent a class of all sponsors of
457(b) deferred compensation plans in the United States that had
variable annuity contracts with the defendants at any time
during the class period, or in the alternative, all sponsors of
457(b) deferred compensation plans in Florida that had variable
annuity contracts with the defendants during the class period.
The class period is from January 1, 1996 until the class notice
is provided.
The plaintiff alleges that the defendants breached their
fiduciary duties by arranging for and retaining service payments
from certain mutual funds.
The complaint seeks an accounting, a declaratory judgment, a
permanent injunction and disgorgement or restitution of the
service fee payments allegedly received by the defendants,
including interest.
On January 25, 2007, NFS, NLIC and NRS filed a motion to
dismiss. On September 17, 2007, the Court granted the motion to
dismiss. On October 1, 2007, the plaintiff filed a motion to
vacate judgment and for leave to file an amended complaint.
The suit is "Beary v. Nationwide Life Insurance Co., et al.,
Case No. 2:06-cv-00967-EAS-NMK," filed in the U.S. District
Court for the Southern District of Ohio under Judge Edmund A.
Sargus with referral to Judge Norah McCann King.
Representing the plaintiffs is:
Scott E. Smith, Esq.
Smith Phillips & Associates
1225 Dublin Road, Columbus, OH 43215
Phone: 614-846-1700
Fax: 614-486-4987
E-mail: ses@smithphillipslaw.com
NATIONWIDE LIFE: Court Hears “Carr” Summary Judgment Argument
-------------------------------------------------------------
The Common Pleas Court, Franklin County, Ohio heard on Aug. 31
oral argument on motions for summary judgment in the purported
class action, “Michael Carr v. Nationwide Life Insurance Co.”
On February 11, 2005, Nationwide Life Insurance Co. (NLIC), a
subsidiary of Nationwide Financial Services, Inc., was named in
a class action filed in Common Pleas Court, Franklin County,
Ohio entitled, “Michael Carr v. Nationwide Life Insurance
Company.” The complaint seeks recovery for breach of contract,
fraud by omission, violation of the Ohio Deceptive Trade
Practices Act and unjust enrichment.
The complaint also seeks unspecified compensatory damages,
disgorgement of all amounts in excess of the guaranteed maximum
premium and attorneys’ fees.
On February 2, 2006, the court granted the plaintiff’s motion
for class certification on the breach of contract and unjust
enrichment claims. The court certified a class consisting of all
residents of the United States and the Virgin Islands who,
during the class period, paid premiums on a modal basis to NLIC
for term life insurance policies issued by NLIC during the class
period that provide for guaranteed maximum premiums, excluding
certain specified products.
Excluded from the class are NLIC; any parent, subsidiary or
affiliate of NLIC; all employees, officers and directors of
NLIC; and any justice, judge or magistrate judge of the State of
Ohio who may hear the case.
The class period is from February 10, 1990 through February 2,
2006, the date the class was certified. On January 26, 2007, the
plaintiff filed a motion for summary judgment. On April 30,
2007, NLIC filed a motion for summary judgment. On August 31,
2007, the court heard oral argument on the motions for summary
judgment. NLIC continues to defend this lawsuit vigorously.
Based in Columbus, Ohio, Nationwide Financial Services, Inc. --
http://www.nationwide.com/nw/-- is the holding company for
Nationwide Life Insurance Co. (NLIC) and other companies that
comprise the domestic life insurance and retirement savings
operations of the Nationwide group of companies. The company, a
provider of long-term savings and retirement products in the
U.S., develops and sells a diverse range of products, including
individual annuities, private and public group retirement plans,
other investment products sold to institutions, life insurance
and advisory services.
NATIONWIDE LIFE: Dismissal of Market Timing Suit Under Appeal
-------------------------------------------------------------
Plaintiffs in the Mutual Funds Investment Litigation, which
names Nationwide Life Insurance Co. (NLIC) as defendant, are
appealing to the U.S. Court of Appeals for the 4th Circuit the
dismissal of the case.
On April 13, 2004, NLIC was named in a class action filed in
Circuit Court, Third Judicial Circuit, Madison County, Illinois,
entitled “Woodbury v. Nationwide Life Insurance Company.” NLIC
removed this case to the United States District Court for the
Southern District of Illinois on June 1, 2004.
On December 27, 2004, the case was transferred to the United
States District Court for the District of Maryland and included
in the multi-district proceeding entitled “In Re Mutual Funds
Investment Litigation.”
In response, on May 13, 2005, the plaintiff filed the first
amended complaint purporting to represent, with certain
exceptions, a class of all persons who held (through their
ownership of an NLIC annuity or insurance product) units of any
NLIC sub-account invested in mutual funds that included foreign
securities in their portfolios and that experienced market
timing or stale price trading activity.
The first amended complaint purports to disclaim, with respect
to market timing or stale price trading in NLIC’s annuities sub-
accounts, any allegation based on NLIC’s untrue statement,
failure to disclose any material fact, or usage of any
manipulative or deceptive device or contrivance in connection
with any class member’s purchases or sales of NLIC annuities or
units in annuities sub-accounts.
The plaintiff claims, in the alternative, that if NLIC is found
with respect to market timing or stale price trading in its
annuities sub-accounts,
-- to have made any untrue statement,
-- to have failed to disclose any material fact or to have
used or employed any manipulative or deceptive device or
contrivance,
then the plaintiff purports to represent a class, with certain
exceptions, of all persons who, prior to NLIC’s untrue
statement, omission of material fact, use or employment of any
manipulative or deceptive device or contrivance, held (through
their ownership of an NLIC annuity or insurance product) units
of any NLIC sub-account invested in mutual funds that included
foreign securities in their portfolios and that experienced
market timing activity.
The first amended complaint alleges common law negligence and
seeks to recover damages not to exceed $75,000 per plaintiff or
class member, including all compensatory damages and costs.
On June 1, 2006, the District Court granted NLIC’s motion to
dismiss the plaintiff’s complaint. The plaintiff appealed the
District Court’s decision, and the issues have been fully
briefed.
Nationwide Life Insurance is a subsidiary of Nationwide
Financial Services, Inc. Nationwide Financial Services, Inc.
reported no development in the matter in its Nov. 2, 2007 Form
10-Q Filing with the U.S. Securities and Exchange Commission for
the quarterly period ended Sept. 30, 2007.
The suit is "In re Mutual Funds Investment Litigation, Case No.
1:04-cv-03944-JFM," filed in the U.S. District Court for the
District of Maryland under Judge J. Frederick Motz.
Representing the plaintiffs are:
Francis Joseph Balint, Jr., Esq.
Andrew Steven Friedman, Esq.
Bonnett Fairbourn Friedman and Balint PC
2901 N. Central Ave., Ste. 1000
Phoenix, AZ 85012
Phone: 1-602-776-5903
Fax: 1-602-274-1199
E-mail: fbalint@bffb.com
afriedman@bffb.com
- and -
Eugene Yevgeny Barash, Esq.
George A. Zelcs
Korein Tillery 701 Market St.
Ste. 300
St. Louis, MO 63108
Phone: 1-314-241-4844
Fax: 1-314-241-3525
E-mail: ebarash@koreintillery.com
gzelcs@koreintillery.com
Representing the company are:
Shoshana Leah Gillers, Esq.
Eric John Mogilnicki, Esq.
Charles Collier Platt, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
399 Park Ave.
New York, NY 10022
Phone: 1-212-230-8841
Fax: 1-212-230-8888
E-mail: shoshana.gillers@wilmerhale.com
eric.mogilnicki@wilmerhale.com
charles.platt@wilmerhale.com
NATIONWIDE FINANCIAL: Conn. Court Denies Bid to Junk ERISA Suit
---------------------------------------------------------------
The U.S. District Court for the District of Connecticut denied a
motion by Nationwide Financial Services, Inc. and its Nationwide
Life Insurance Co. subsidiary to dismiss a fifth amended
complaint alleging Employee Retirement Income Security Act
violations against the company.
On August 15, 2001, NFS and NLIC were named in a lawsuit filed
in the United States District Court for the District of
Connecticut entitled “Lou Haddock, as trustee of the Flyte Tool
& Die, Inc. Deferred Compensation Plan, et al. v. Nationwide
Financial Services, Inc. and Nationwide Life Insurance Company.”
Currently, the plaintiffs’ fifth amended complaint, filed March
21, 2006, purports to represent a class of qualified retirement
plans under ERISA that purchased variable annuities from NLIC.
The plaintiffs allege that they invested ERISA plan assets in
their variable annuity contracts and that NLIC and NFS breached
ERISA fiduciary duties by allegedly accepting service payments
from certain mutual funds.
The complaint seeks disgorgement of some or all of the payments
allegedly received by NLIC and NFS, other unspecified relief for
restitution, declaratory and injunctive relief, and attorneys’
fees. To date, the District Court has rejected the plaintiffs’
request for certification of the alleged class.
On September 25, 2007, NFS’ and NLIC’s motion to dismiss the
plaintiffs’ fifth amended complaint was denied. On October 12,
2007, NFS and NLIC filed their answer to the plaintiffs’ fifth
amended complaint and amended counterclaims.
The suit is "Haddock, et al. v. Nationwide, et al., Case No.
3:01-cv-01552-SRU," filed in the U.S. District Court for the
District of Connecticut under Judge Stefan R. Underhill with
referral to Judge William I. Garfinkel.
Representing the plaintiffs are:
Richard A. Bieder, Esq.
Koskoff, Koskoff & Bieder, P.C.
350 Fairfield Ave., Bridgeport
CT 06604
Phone: 203-336-4421
Fax: 203-368-3244
E-mail: rbieder@koskoff.com
Gregory G. Jones, Esq.
603 S. Main, Suite 200
Grapevine, TX 76051
Phone: 871-424-9001
Fax: 817-424-1665
E-mail: greg@gjoneslaw.com
-- and --
Roger L. Mandel, Esq.
Stanley, Mandel & Iola
3100 Monticello Ave., Suite 750
Dallas, TX 75205
Phone: 214-443-4300
Fax: 214-443-0358
E-mail: rmandel@smi-law.com
Representing the defendants are:
Jessica A. Ballou, Esq.
LeBoeuf, Lamb, Greene & MacRae
Goodwin Square, 225 Asylum St., Hartford, CT 06103
Phone: 860-293-3535
Fax: 860-293-3555
E-mail: jballou@llgm.com
-- and --
Sam Broderick-Sokol, Esq.
Wilmer Cutler Pickering Hale & Dorr-LLP-DC
1875 Pennsylvania Ave., NW, Washington, DC 20006
Phone: 202-663-6000
Fax: 202-663-6363
E-mail: sam.broderick-sokol@wilmerhale.com
NETLIST INC: Faces Consolidated Securities Lawsuit in Calif.
-----------------------------------------------------------
The U.S. District Court for the Central District of California
has consolidated purported securities fraud class actions filed
against Netlist Inc.
Beginning in May 2007, the Company and certain of its officers
and directors were named as defendants in four purported
shareholder class actions, two of which were filed in the U.S.
District Court for the Southern District of New York, and the
others in the U.S. District Court for the Central District of
California.
The New York suits are:
-- “Tran v. Netlist, Inc., Case No. 07 CV 3754;” and
-- “Benjamin v. Netlist, Inc., Case No. 07 CV5518.”
The California suits are:
-- “Belodoff v. Netlist, Inc., Case No. SACV07-677 DOC
(MLGx);” and
-- “Swofford v. Netlist, Inc., Case No. CV07-04006 PSG
(FMOx).”
These purported class actions were filed on behalf of persons
and entities who purchased or otherwise acquired the Company’s
common stock pursuant or traceable to the Company’s Nov. 30,
2006 Initial Public Offering.
The complaints allege that the Registration Statement and
Prospectus issued by the Company in connection with the IPO
contained untrue statements of material fact or omissions of
material fact in violation of Sections 11, 12(a)(2) and 15 of
Securities Act of 1933.
The actions seek unspecified monetary damages and other relief.
On Sept. 5, 2007, the California Actions were consolidated by
the U.S. District Court for the Central District of California.
At that time, the court also designated, “Belodoff v. Netlist,
Inc., Case No. SACV07-677 DOC (MLGx),” as the lead case in this
matter and appointed Iron Workers Local No. 25 Pension Fund to
serve as lead plaintiff.
On September 12, 2007, the New York Actions were consolidated by
the U.S. District Court for the Southern District of New York
and Iron Workers Local No. 25 Pension Fund was again appointed
to serve as lead plaintiff.
The court also ordered, at the request of the parties, that the
consolidated New York action be transferred to the U.S. District
Court for the Central District of California and consolidated
into the lead case there.
Now that all four actions have been consolidated into one lead
action in the Central District of California, and pursuant to a
previous court order, the lead plaintiff has sixty days from the
order appointing lead plaintiff to file a consolidated
complaint.
Once the consolidated complaint is filed and served on the
defendants, defendants will have sixty days to respond.
The reference complaint is “Thu Tran, et al. v. Netlist, Inc.,
et al., Case No. 07-CV-01193,” filed in the U.S. District Court
for the Central District of California under Judge Andrew J.
Guilford.
Representing the plaintiffs is:
Kahn Gauthier Swick, LLC
12 East 41st Street, 12th Floor
New York, NY, 10016
Phone: 212.920.4310
Fax: 212.696.3730
E-mail: info@kglg.com
NORTHERN MARIANAS: GOB Reissues Checks in Garment Firms' Suit
-------------------------------------------------------------
The Garment Oversight Board began mailing out some checks to 74
garment workers who had problems encashing a check they received
from the settlement of a labor class action against the garment
industry.
The workers were among the 356 workers who are all entitled to
checks totaling $53,000. GOB chair Timothy H. Bellas said the
checks are replacement checks and are not new money for the
garment workers. Mr. Bellas said the check amounts range from a
minimum of $72.27 to a maximum of $799.50.
The original checks were issued by San Francisco-based claims
administrator Gilardi and Co. They were returned to the GOB
because they haven't been cashed. Mr. Bellas said either they
are outdated or there are problems with the names or other
things.
Meanwhile, the GOB is drawing plans on how to distribute some
$2.1 million more to garment workers. The money are
undistributed funds that the plaintiffs' counsel turned over to
the GOB. Mr. Bellas said they will come up with a plan on how
to distribute the money within the next two weeks, if possible.
The plan still needs to be approved by U.S. District Court for
the NMI chief judge Alex R. Munson.
Case Background
In 1999, New York law firm Milberg Weiss Bershad & Schulman LLP
filed the suit in the U.S. District Court of the Northern
Mariana Islands, on behalf of some garment workers who were
allegedly made to work in sweatshop conditions. A settlement
reached five years after, provided an award close to $20
million. A $280,000 tax-related reserve was then set up.
The $130,000 tax reserve is allotted as:
* $100,000 to cover any future federal tax penalties,
* $25,000 to pay for efforts to secure abatements of all
penalties (both CNMI and federal), and
* $5,000 to pay for preparation of the settlement fund's
2007 and 2008 tax returns
The $156,000 balance of the fund are be remitted to the GOB,
which has offered to assume responsibility for obtaining refunds
and penalty abatements from the CNMI tax authorities.
The board’s term was originally set to expire on July 29, but
the federal court extended this up to Dec. 31 (Class Action
Reporter, July 20, 2007).
For more details, contact:
Pamela M. Parker
Lerach Coughlin Stoia Geller Rudman & Robbins LLP
655 West Broadway Suite 1900
San Diego, CA 92101
Phone: (619) 231-1058
Fax: (619) 231-7423
Steven P. Pixley
2nd Floor, CIC Centre
Beach Rd., Garapan
P.O. Box 7757
SVRB, Saipan, MP 96950
Phone: (670) 233-2898/5175
Fax: (670) 233-4716
E-mail: sppixley@aol.com
PFIZER INC: Mass. Court Refuses to Certify Neurontin-Related MDL
----------------------------------------------------------------
The U.S. District Court for the District of Massachusetts denied
without prejudice a motion to certify a nationwide class in the
suit “In re Neurontin Marketing, Sales Practices and Product
Liability Litigation MDL-1629.”
As previously reported, a number of lawsuits, including
purported class actions, have been filed against Pfizer, Inc. in
various federal and state courts alleging claims arising from
the promotion and sale of Neurontin.
The plaintiffs in the purported class actions seek to represent
nationwide and certain statewide classes consisting of persons,
including individuals, health insurers, employee benefit plans
and other third-party payers, who purchased or reimbursed
patients for the purchase of Neurontin that allegedly was used
for indications other than those included in the product
labeling approved by the U.S. Food and Drug Administration.
In October 2004, many of the suits pending in federal courts,
including individual actions as well as purported class actions,
were transferred for consolidated pre-trial proceedings to a
Multi-District Litigation, “In re Neurontin Marketing, Sales
Practices and Product Liability Litigation MDL-1629,” in the
U.S. District Court for the District of Massachusetts.
Purported class actions also have been filed against the company
in various Canadia provincial courts alleging claims arising
from the promotion and sale of Neurontin.
In the Multi-District Litigation, on August 29, 2007, the U.S.
District Court for the District of Massachusetts denied without
prejudice plaintiffs' motion to certify a nationwide class of
all consumers and third-party payers who allegedly purchased or
reimbursed patients for the purchase of Neurontin for "off-
label" uses from 1994 through 2004.
The court indicated that it will allow plaintiffs to file a
renewed motion for class certification under certain
circumstances.
Pfizer, Inc. -- http://www.pfizer.com/-- is a research-based,
global pharmaceutical company. The Company discovers, develops,
manufactures and markets prescription medicines for humans and
animals. It operates in two business segments: Pharmaceutical
and Animal Health.
PFIZER INC: N.J. Court Junks Securities Suit Over Celebrex Study
----------------------------------------------------------------
A district court in New Jersey dismissed plaintiffs claims in a
suit alleging that certain companies misrepresented data from a
study concerning the gastrointestinal effects of Celebrex.
In 2003, several purported class action complaints were filed in
the U.S. District Court for the District of New Jersey against
Pharmacia Corp., Pfizer Inc. and certain former officers of
Pharmacia.
The complaints allege that the defendants violated federal
securities laws by misrepresenting the data from a study
concerning the gastrointestinal effects of Celebrex. These
cases have been consolidated for pre-trial proceedings in the
District of New Jersey, as “Alaska Electrical Pension Fund et
al. v. Pharmacia Corp. et al.”
In January 2007, the court certified a class consisting of all
persons who purchased Pharmacia securities from April 17, 2000
through February 6, 2001 and were damaged as a result of the
decline in the price of Pharmacia's securities allegedly
attributable to the misrepresentations.
Plaintiffs seek damages in an unspecified amount. On October 29,
2007, the court granted defendants' motion for summary judgment
and dismissed the plaintiffs' claims in their entirety. This
decision is subject to possible appeal by the plaintiffs.
PFIZER INC: N.Y. Court Junks Investor Suit Over Celebrex, Bextra
----------------------------------------------------------------
Plaintiffs in a purported federal shareholder derivative action
against Pfizer Inc., among others, are appealing a decision that
dismissed the suit.
Beginning in late 2004, actions, including purported class and
shareholder derivative actions, relating to Celebrex and Bextra
have been filed in various federal and state courts against
Pfizer, Pharmacia and certain current and former officers,
directors and employees of Pfizer and Pharmacia.
These actions include a purported federal shareholder derivative
action and certain purported state shareholder derivative
actions alleging that certain of Pfizer's current and former
officers and directors breached fiduciary duties by causing
Pfizer to misrepresent the safety of Celebrex and, in certain of
the cases, Bextra.
On July 17, 2007, the U.S. District Court for the Southern
District of New York dismissed the purported federal shareholder
derivative action. Plaintiffs sought leave of the court to file
an amended complaint, which request was denied by the court. On
August 15, 2007, plaintiffs filed a notice of appeal of the
decision to the U.S. Court of Appeals for the Second Circuit.
PHILIP MORRIS: Still Faces Tobacco Price Cases in Kan., N.M.
------------------------------------------------------------
As of November 1, 2007, two cases were pending in Kansas and New
Mexico in which plaintiffs allege that defendants, including
Philip Morris USA and Philip Morris International Inc. (PMI),
conspired to fix cigarette prices in violation of antitrust
laws.
Altria Group Inc. and PMI are defendants in the case in Kansas.
Plaintiffs’ motions for class certification have been granted in
both cases. In February 2005, the New Mexico Court of Appeals
affirmed the class certification decision. In June 2006,
defendants’ motion for summary judgment was granted in the New
Mexico case. Plaintiffs in the New Mexico case have appealed.
SARA LEE: Dress, Undress Rule Violates FLSA, 4th Circuit Rules
--------------------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit affirmed a
North Carolina district court ruling that states that the Fair
Labor Standards Act pre-empted the breach of contract,
negligence and fraud claims in a class action brought by about
1,600 workers at a Sara Lee Corp.'s bakery in North Carolina.
In early April 2003, Sara Lee enforced a so-called "Dress and
Undress Rule" for hourly production workers at its Tarboro
bakery, which makes cheesecakes, layer cakes, pastries, muffins,
and other perishable goods.
Under the Dress and Undress Rule, workers were to arrive at the
bakery in street clothes, pass through security, walk to the
laundry room, wait in line with their shiftmates, obtain
their uniforms at the laundry room window from the lone
attendant on duty (or occasionally retrieve their uniforms
themselves), walk to the appropriate locker room, wait for space
to change clothes, change into their uniforms, place their
street clothes in their lockers, walk to a hand washing and foot
bath area, wash and sanitize their hands and shoes, and walk to
the time clock inside the production area — all before clocking
in and taking their places on the production line.
At the end of the shift, the workers clocked out, then walked
back to the locker room, changed into their street clothes,
walked to the laundry room, and deposited their soiled uniforms
into a bin before leaving the bakery.
While the Dress and Undress Rule was in effect, the production
workers had to worry about committing two types of infractions.
First, workers who failed to comply with the Dress and Undress
Rule were prohibited from working the shift. Second, workers who
clocked in late because of delays in the clothes-changing
process were deemed tardy; those who accumulated 20 citations
for tardiness in a twelve-month period were discharged. The
Dress and Undress Rule was revised in early April 2003 to allow
workers to don their uniforms (except their safety shoes) at
home.
Case Background
The Class Action Complaint was filed in January 2003 in the
Superior Court of Edgecombe County, North Carolina, on behalf of
current and former hourly production workers at the Tarboro
bakery who were subject to the Dress and Undress Rule and
entitled to FLSA protections.
It alleges that, by failing to compensate workers for time spent
complying with the Dress and Undress Rule, Sara Lee violated the
"applicable wage and hour law," i.e., the FLSA.
The Complaint does not, however, plead claims directly under the
FLSA. Rather, it pleads five separate claims under North
Carolina law for breach of contract, negligence, fraud,
conversion, and unfair trade practices in contravention of the
North Carolina Unfair and Deceptive Trade Practices Act, N.C.
Gen. Stat. Section 75-1.1 (the "UDTPA").
The Complaint seeks recovery of, inter alia: compensatory
damages, including back pay; penalties and interest; punitive
damages; and, with respect to the unfair trade practices claim,
treble damages and attorneys’ fees pursuant to the UDTPA.
The Class Members maintain that they are entitled to damages for
the period from January 27, 2000, through April 1, 2003 (when
the Dress and Undress Policy was revised).
Case Removal and Dismissal
On February 26, 2003, Sara Lee removed this action, under 28
U.S.C. Section 1441, to the Eastern District of North Carolina.
Shortly thereafter, on March 3, 2003, Sara Lee made its motion,
under Federal Rule of Civil Procedure 12(b)(6), to dismiss the
Class Action Complaint for failure to state a claim upon which
relief can be granted.
In support of the Rule 12(b)(6) motion, Sara Lee maintained
that the FLSA preempted each of the Class Members’ state claims
and that, apart from being preempted, the claims were not
cognizable.
By its Dismissal Order of April 14, 2003, the district court
rejected Sara Lee’s preemption contention. The court agreed,
however, that the Complaint fails to state colorable claims for
fraud, conversion, and unfair trade practices, and it therefore
dismissed those three claims with prejudice. Finally, the court
refused to dismiss the contract and negligence claims, based on
its determination that those two claims were sufficiently
pleaded in the Complaint.
Significantly, the court recognized that the contract and
negligence claims were predicated on violations of the FLSA, and
that their ultimate success thus depended on a showing that the
FLSA required Sara Lee to compensate its workers for time spent
complying with the Dress and Undress Rule.
Thereafter, the parties engaged in discovery and stipulated to
the certification of a class on the contract and negligence
claims. On June 1, 2004, Sara Lee filed its motion, under
Federal Rule of Civil Procedure 56, for summary judgment. In its
supporting memorandum, Sara Lee reiterated its position that the
contract and negligence claims are preempted by the FLSA.
Additionally, Sara Lee contended that those claims must
nonetheless fail, because the FLSA (on which they were
predicated) did not require paying workers for compliance with
the Dress and Undress Rule. Specifically, Sara Lee asserted that
time spent complying with the Rule was noncompensable, pursuant
to the Portal-to-Portal Act, 29 U.S.C. Sections 251-262
(excluding from FLSA compensability, in Section 254(a), certain
functions that are "preliminary" or "postliminary" to employees’
"principal" work activities).
Alternatively, Sara Lee recognized that, generally speaking,
time spent by employees on the isolated act of changing clothes
might be compensable under the FLSA, but that the time spent by
the Class Members changing clothes was yet noncompensable
because it was "de minimis."
On its de minimis point, Sara Lee acknowledged that the Class
Members had forecast evidence, by way of the deposition
testimony of the named plaintiffs, showing that "a single
clothes change took as much as 20 minutes," J.A. 102, and that
workers thus spent a total of "30-40 minutes a day on clothes-
changing time alone."
Nevertheless, Sara Lee urged the court, in considering the de
minimis issue, to ignore the actual time it took workers to
change clothes (as established by the named plaintiffs’
testimony) and to instead look at "the time that should
reasonably have been required for changing clothes."
In this regard, Sara Lee presented a study conducted by its
expert, who measured and averaged the time taken by nine
management employees — playing the part of hourly production
workers — to engage in the clothes-changing process during
a Saturday production shutdown. The time study concluded that
the pre- and post-shift clothing changes for workers assigned
the more-complicated pants uniform (with its shirt, pants, and
belt) took an average of 3.12 minutes. The study further
indicated that these workers needed just 7.33 minutes to
complete pre-shift activities from donning their uniforms to
clocking in, as well as post-shift activities from clocking out
through changing back into their street clothes.
The study, however, did not address the time spent on activities
occurring before and after the clothing changes, including
standing in line at the laundry room window, obtaining uniforms
from the attendant on duty, and depositing soiled uniforms into
the laundry bin.
Opposition to Summary Judgment Motion
The Class Members filed a memorandum in opposition to the
summary judgment motion, in which they contended that they were
entitled to compensation for time spent on all of the activities
encompassed in the Dress and Undress Rule.
The Class Members explained in their opposition memorandum that,
because 200 to 300 employees sometimes arrived at the bakery
within fifteen minutes of each other, there were often long
waits at the laundry room window, in the locker rooms, at the
hand washing and foot bath area, and at the time clock.
Moreover, in anticipation of possible gridlock during the
clothes-changing process, workers were compelled to arrive at
the bakery as much as forty-five minutes before the start of
their scheduled shifts in order to avoid tardiness citations.
As part of their opposition memorandum, the Class Members
requested the court to exclude, pursuant to Federal Rule of
Evidence 702, the time study prepared by Sara Lee’s expert. The
Class Members contended that the study — which reached its
conclusions by measuring and averaging the time taken by nine
management employees to go through the clothes-changing process
during a Saturday production shutdown — failed to "adequately
replicate the situation facing the [hourly production workers]
when they are required to comply with [the Dress and Undress
Rule] in the real work-a-day world."
In reply to the Class Members’ opposition memorandum, Sara Lee
moved to strike the Class Members’ sixty-seven worker affidavits
on various grounds, including the failure to produce the
affidavits during discovery. The Class Members did not respond
to Sara Lee’s motion
to strike.
District Court Grants Summary Judgement
By its Summary Judgment Order of December 7, 2004, the district
court granted Sara Lee’s motion to strike the sixty-seven worker
affidavits, limited the admissibility of its expert time study,
and granted its motion for summary judgment on the contract and
negligence claims. The court concluded that exclusion of the
affidavits was an appropriate sanction for the Class Members’
noncompliance with discovery deadlines. As for Sara Lee’s expert
time study, the court expressed agreement with the Class Members
that the study failed to replicate the conditions that sometimes
protracted the clothes-changing process. Even so, the court
declined to wholly exclude the study, instead admitting it on a
limited basis, apparently for the purpose of estimating the time
needed by workers for the isolated acts of changing clothes and
washing and sanitizing their hands and safety shoes (the
"changing-andwashing activities").
Finally, with respect to the contract and negligence claims, the
court again recognized that their viability depended on
establishing that Sara Lee was mandated by the FLSA to
compensate the hourly production workers for time spent
complying with the Dress and Undress Rule.
The court determined that the Portal-to-Portal Act excluded from
FLSA compensability all Rule-related activities, except perhaps
the changing-and-washing activities. The court further decided
that those activities could not be compensable, however, if it
took a de minimis amount of time to perform them. See Summary
Judgment Order 26.
The court adopted Sara Lee’s reasonableness standard for the de
minimis inquiry, ruling that the pertinent question was "how
much time employees would reasonably spend donning and doffing
their uniforms and walking through the footbath."
Nonetheless, the court ignored the named plaintiffs’ deposition
testimony — relevant excerpts of which were attached to and
discussed in Sara Lee’s summary judgment memorandum —
establishing that clothes-changing time alone was as much as
thirty to forty minutes per day. And, because the Class Members
had focused their arguments and evidence on the amount of time
it took to fully comply with the Dress and Undress Rule, the
court was left with no evidence showing that the particular time
spent on the changing-and-washing activities was
more than de minimis.
Accordingly, the court awarded summary judgment to Sara Lee on
the contract and negligence claims. The court then entered its
final judgment on that same day (December 7, 2004).
Post-judgment Motion by Class Members
On December 21, 2004, the Class Members filed a post-judgment
motion, under Federal Rules of Civil Procedure 59(e) and 60(b),
for reconsideration of the Summary Judgment Order. By its Order
of February 8, 2005, the court denied the Class Members’ motion
for reconsideration.
The Class Members have timely appealed from both the final
judgment and the denial of reconsideration, and the Appeals
Court possess jurisdiction pursuant to 28 U.S.C. Section 1291.5.
On appeal, the Class Members challenge the dismissal of their
fraud, conversion, and unfair trade practices claims; the
exclusion of the sixty-seven worker affidavits; the admission of
Sara Lee’s expert time study; and the award of summary judgment
against them on their contract and negligence claims.
In response, Sara Lee defends the district court’s dismissal,
evidentiary, and summary judgment rulings, but also asserts that
the court should have deemed all of the Class Members’ claims to
be preempted by the FLSA.
On Nov. 14, the Fourth Circuit affirmed in part, vacated in
part, and remanded with instructions by published opinion. It
affirmed the district court’s dismissal with
prejudice of the conversion and unfair trade practices claims.
The Fourth Circuit, concluded, however, that the court should
have dismissed the contract, negligence, and fraud claims as
preempted by the FLSA.
Accordingly, it vacated the court’s alternative dispositions of
those claims — the dismissal with prejudice of the fraud claim
and the summary judgment awards on the contract and negligence
claims — and remand with instructions to dismiss the claims
without prejudice, giving the Class Members an opportunity to
pursue any FLSA claims they may possess.
Judge King wrote the opinion, in which Judge Niemeyer and Senior
Judge Wilkins joined.
On appeal from the United States District Court for the Eastern
District of North Carolina, the suit is "David C. Anderson et
al. v. Sara Lee Corp. et al., Case No. CA-03-31-H."
SOUTH DAKOTA: Women Prisoners Sue to Get Access to Medications
--------------------------------------------------------------
Three inmates at South Dakota Women's Prison in Pierre are suing
the state of South Dakota for allegedly denying prisoners access
to medication or delaying so based on decisions by unqualified
people, KELOLAND TV reports.
Named defendants are:
-- Tim Reisch, state Corrections Secretary
-- Douglas L. Weber,
-- Misti Waagmeester,
-- Shannon Muchow,
-- Jackie Schwader,
-- Douglas Loen,
-- Jennifer Lane-Wagner,
-- South Dakota Department of Corrections,
-- State of South Dakota and
-- John/Jane Doe
The lawsuit, which is seeking class-action status, claims
plaintiffs were deprived of drugs they need to treat their
mental disorders. It estimates that one-third of the prison's
350 inmates suffer mental disorders that require psychiatric
medications.
The suit is “Waff v. Reisch et al., Case Number: 4:2007cv04166,”
filed in the U.S. District Court for the Southern District of
South Dakota, under Judge Lawrence L. Piersol.
SWEETWATER VALLEY: Recalls Cheese on Possible Contamination
-----------------------------------------------------------
Sweetwater Valley Farms, Inc. of Philadelphia, TN is recalling
Southern Cheddar Jack Volunteer Special Cheese because it has
the potential to be contaminated with Listeria monocytogenes, an
organism which can cause serious and sometimes fatal infections
in young children, frail or elderly people, and others with
weakened immune systems.
Although healthy individuals may suffer only short-term symptoms
such as high fever, severe headache, stiffness, nausea,
abdominal pain and diarrhea, Listeria infection can cause
miscarriages and stillbirths among pregnant women.
Southern Cheddar Jack Volunteer Special Cheese, Lot Number 539
was distributed in 7, 10, 15 ounce, and 5 pound blocks and
through retail stores in Tennessee, North Carolina, Georgia,
Virginia, Maryland, and Alabama. The product was also
distributed to 48 contiguous states in gift baskets marketed by
the firm’s website.
This product was distributed between September 19, 2006 and
November 18, 2007.
No illnesses have been reported.
The recall was the result of a routine sampling program by the
Tennessee Department of Agriculture which revealed that the
finished product contained the bacteria. The company has ceased
the distribution of this lot as the company continues their
investigation as to what caused the problem
Consumers who have purchased lot number 539 of this product are
urged discard it or ship it back to the company for a full
refund. Contact the company’s consumer affairs department at 1-
877-862-4332 for further information.
WARNER-LAMBERT: Settles Rezulin Suit by Health Benefit Providers
----------------------------------------------------------------
Warner-Lambert settled a lawsuit filed on behalf of a purported
class consisting of all health benefit providers that paid for
or reimbursed patients for the purchase of Rezulin.
In April 2001, Louisiana Health Service Indemnity Co. and
Eastern States Health and Welfare Fund filed a consolidated
complaint against Warner-Lambert in the U.S. District Court for
the Southern District of New York purportedly on behalf of a
class consisting of all health benefit providers that paid for
or reimbursed patients for the purchase of Rezulin between
February 1997 and April 2001.
The action sought to recover amounts paid for Rezulin by the
health benefit providers on behalf of their plan participants
during the specified period.
In September 2005, the court granted Warner-Lambert's motion for
summary judgment and dismissed the complaint. In November 2005,
the plaintiffs appealed the decision to the U.S. Court of
Appeals for the Second Circuit, and a hearing on the appeal was
held in December 2006.
In September 2007, the parties voluntarily withdrew the appeal
and settled this action on terms favorable to Warner-Lambert.
WEST CORP: Certification of Class in “Ritt” Fraud Suit Upheld
-------------------------------------------------------------
The Ohio Supreme Court declined to review a certification of a
class in the case, “Brandy L. Ritt, et al. v. Billy Blanks
Enterprises, et al.,” which relates to the marketing of certain
membership programs offered by the company's clients.
The original suit was filed in January 2001 in the Court of
Common Pleas in Cuyahoga County, Ohio, against two of the
company's clients.
The case, a purported class action, was amended for the third
time in July 2001 and West Corp. was added as a defendant at
that time.
The suit, which seeks statutory, compensatory, and punitive
damages as well as injunctive and other relief, alleges
violations of various provisions of Ohio's consumer protection
laws, negligent misrepresentation, fraud, breach of contract,
unjust enrichment and civil conspiracy in connection with the
marketing of certain membership programs offered by the
company's clients.
On Feb. 6, 2002, the court denied the plaintiffs' motion for
class certification. On July 21, 2003, the Ohio Court of
Appeals reversed and remanded the case to the trial court for
further proceedings.
The plaintiffs filed a Fourth Amended Complaint naming West
Telemarketing Corp. as an additional defendant and a renewed
motion for class certification.
One of the defendants, NCP Marketing Group, filed for bankruptcy
and on July 12, 2004 removed the case to federal court.
Plaintiffs filed a motion to remand the case back to state
court.
On Aug. 30, 2005, the U.S. Bankruptcy Court for the District of
Nevada remanded the case back to the state court in Cuyahoga
County, Ohio. The Bankruptcy Court also approved a settlement
between the named plaintiffs and:
-- NCP,
-- Shape The Future International LLP, and
-- Integrity Global Marketing LLC.
West Corp. and West Telemarketing Corp. (WTC) have filed motions
for judgment on the pleadings and a motion for summary judgment.
On March 28, 2006, the state trial court certified a class of
Ohio residents. West and WTC filed a notice of appeal from that
decision, and plaintiffs cross-appealed. The appeal was briefed
and was then argued on Feb. 26, 2007.
On April 12, 2007, the Court of Appeal affirmed in part and
reversed in part the trial court’s Order.
The Court of Appeal ordered certification of a class of “All
residents of Ohio who, from September 1, 1998 through July 2,
2001:
(a) called a toll-free number, marketed by West and MWI, to
purchase any Tae-Bo product;
(b) purchased a Tae-Bo product;
(c) subsequently were enrolled in an MWI membership
program; and
(d) were charged for the MWI membership on their
credit/debit card.
Not included in the class are defendants, and their officers,
directors, employees, agents, and/or affiliates.”
West and WTC sought review of this ruling by the Ohio Supreme
Court, however, on Oct. 3, 2007, the Ohio Supreme Court declined
to review the case. West and WTC’s summary judgment motion
remains pending.
West Corp. on the Net: http://www.west.com
New Securities Fraud Cases
WELLCARE HEALTH: Kahn Gauthier Commences Securities Fraud Suit
--------------------------------------------------------------
Kahn Gauthier Swick, LLC filed a securities fraud class action
against WellCare Health Plans, Inc. on behalf of shareholders
who purchased the common stock of the Company between May 8,
2006 and October 24, 2007, inclusive.
KGS urges investors who have lost more than $100,000 to inquire
about applying for the lead plaintiff position in the case.
Interested parties may move the court no later than December 26,
2007 for lead plaintiff appointment.
For more information, contact:
Lewis Kahn
Kahn Gauthier Swick, LLC
Phone: 1-866-467-1400, ext. 100
Cell: 504-301-7900
E-mail: lewis.kahn@kgscounsel.com
*********
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
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